Endangered and Threatened Wildlife and Plants; Endangered Species Status for Slenderclaw Crayfish and Designation of Critical Habitat, 50264-50287 [2021-19093]
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nation’s healthcare community in
responding to COVID–19. On March 11,
2020, the World Health Organization
(WHO) publicly declared COVID–19 a
pandemic. On March 13, 2020, the
President declared the COVID–19
pandemic a national emergency. This
declaration, along with the Secretary’s
January 31, 2020 declaration of a PHE,
conferred on the Secretary certain
waiver authorities under section 1135 of
the Act. On March 13, 2020, the
Secretary authorized waivers under
section 1135 of the Act, effective March
1, 2020.1 Effective July 20, 2021, the
Secretary renewed the January 31, 2020
determination that was previously
renewed on April 21, 2020, July 23,
2020, October 2, 2020, January 7, 2021,
April 15, 2021, and July 19, 2021, that
a PHE exists and has existed since
January 27, 2020. The unprecedented
nature of this national emergency has
placed enormous responsibilities upon
CMS to respond appropriately, and
resources have had to be re-allocated
throughout the agency in order to be
responsive.
Due to the PHE and in accordance
with section 1871(a)(3)(C) of the Act, on
September 8, 2020 (85 FR 55385), we
published a second document
continuing the effectiveness of effect
and the regular timeline for publication
of the final rule for an additional year,
until September 6, 2021.
Because of CMS’s continued efforts to
address resource challenges resulting
from the PHE and consistent with
section 1871(a)(3)(C) of the Act, we are
publishing a third notice of
continuation extending the effectiveness
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the Medicare regulations that were
implemented through interim final rule
and to allow time to publish a final rule.
Therefore, the Medicare provisions
adopted in interim final regulation
continue in effect and the regular
timeline for publication of the final rule
is extended for an additional year, until
September 6, 2022.
Karuna Seshasai,
Executive Secretary to the Department,
Department of Health and Human Services.
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
[Docket No. FWS–R4–ES–2018–0069;
FF09E21000 FXES11110900000 212]
RIN 1018–BD36
Endangered and Threatened Wildlife
and Plants; Endangered Species
Status for Slenderclaw Crayfish and
Designation of Critical Habitat
Fish and Wildlife Service,
Interior.
ACTION: Final rule.
AGENCY:
We, the U.S. Fish and
Wildlife Service (Service), determine
endangered species status under the
Endangered Species Act of 1973, as
amended (Act), for the slenderclaw
crayfish (Cambarus cracens), a cryptic
freshwater crustacean that is endemic to
streams on Sand Mountain within the
Tennessee River Basin in DeKalb and
Marshall Counties, Alabama. This rule
adds this species to the Federal List of
Endangered and Threatened Wildlife. In
addition, we designate approximately
78 river miles (126 river kilometers) in
DeKalb and Marshall Counties,
Alabama, as critical habitat for the
species under the Act.
DATES: This rule is effective October 8,
2021.
ADDRESSES: This final rule is available
on the internet at https://
www.regulations.gov under Docket No.
FWS–R4–ES–2018–0069 and at https://
www.fws.gov/southeast/. Comments and
materials we received, as well as
supporting documentation we used in
preparing this rule, are available for
public inspection at https://
www.regulations.gov under Docket No.
FWS–R4–ES–2018–0069. Comments,
materials, and documentation that we
considered in this rulemaking will be
available by appointment, during
normal business hours at: U.S. Fish and
Wildlife Service, Alabama Ecological
Services Field Office (see FOR FURTHER
INFORMATION CONTACT).
The coordinates or plot points or both
from which the maps are generated are
included in the administrative record
for this critical habitat designation and
are available at https://
www.regulations.gov under Docket No.
FWS–R4–ES–2018–0069, at https://
www.fws.gov/southeast/, and at the
Alabama Ecological Services Field
Office (see FOR FURTHER INFORMATION
CONTACT). Any additional tools or
supporting information that we
developed for this critical habitat
SUMMARY:
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designation will also be available at the
Service website and Field Office set out
above, and may also be included in the
preamble and/or at https://
www.regulations.gov.
FOR FURTHER INFORMATION CONTACT:
William Pearson, Field Supervisor, U.S.
Fish and Wildlife Service, Alabama
Ecological Services Field Office, 1208–
B Main Street, Daphne, AL 36526;
telephone 251–441–5870. Persons who
use a telecommunications device for the
deaf (TDD) may call the Federal Relay
Service at 800–877–8339.
SUPPLEMENTARY INFORMATION:
Executive Summary
Why we need to publish a rule. Under
the Act, a species may warrant
protection through listing if it is
endangered or threatened throughout all
or a significant portion of its range. In
addition, to the maximum extent
prudent and determinable, we must
designate critical habitat for any species
that we determine to be an endangered
or threatened species under the Act.
Listing a species as an endangered or
threatened species and designation of
critical habitat can only be completed
by issuing a rule.
What this rule does. This rule will list
the slenderclaw crayfish (Cambarus
cracens) as an endangered species and
will finalize the designation of critical
habitat for the species under the Act.
Accordingly, this rule revises part 17 of
title 50 of the Code of Federal
Regulations at 50 CFR 17.11 and 17.95.
The basis for our action. Under the
Act, we may determine that a species is
an endangered or threatened species
based on any of five factors: (A) The
present or threatened destruction,
modification, or curtailment of its
habitat or range; (B) overutilization for
commercial, recreational, scientific, or
educational purposes; (C) disease or
predation; (D) the inadequacy of
existing regulatory mechanisms; or (E)
other natural or manmade factors
affecting its continued existence. We
have determined that the slenderclaw
crayfish is threatened by competition
from a nonnative species (Factors A and
E) and habitat degradation resulting
from poor water quality (Factor A).
Under section 4(a)(3) of the Act, if we
determine that any species is an
endangered or threatened species we
must, to the maximum extent prudent
and determinable, designate critical
habitat. Under section 4(b)(2) of the Act,
the Secretary shall designate critical
habitat on the basis of the best available
scientific data after taking into
consideration the economic impact,
national security impact, and any other
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relevant impact of specifying any
particular area as critical habitat.
Section 3(5)(A) of the Act defines
critical habitat as (i) the specific areas
within the geographical area occupied
by the species, at the time it is listed,
on which are found those physical or
biological features (I) essential to the
conservation of the species and (II)
which may require special management
considerations or protections; and (ii)
specific areas outside the geographical
area occupied by the species at the time
it is listed, upon a determination by the
Secretary that such areas are essential
for the conservation of the species.
Economic analysis. In accordance
with section 4(b)(2) of the Act, we
prepared a draft economic analysis of
the impacts of designating critical
habitat. We published an announcement
of the completion of the draft and
solicited public comments (83 FR
50582; October 9, 2018). We received no
comments on the draft economic
analysis. We adopt the draft economic
analysis as final.
Peer review and public comment. We
sought comments from independent
specialists to ensure that our
designation is based on scientifically
sound data, assumptions, and analyses.
We invited these peer reviewers to
comment on our species status
assessment (SSA) report, which
informed both the proposed rule and
this final rule. We also considered all
comments and information received
from the public and peer reviewers
during the comment period.
Supporting Documents
We prepared an SSA report for the
slenderclaw crayfish. Written in
consultation with species experts, the
SSA report represents the best scientific
and commercial data available
concerning the status of the slenderclaw
crayfish, including the impacts of past,
present, and future factors (both adverse
and beneficial) affecting the species
(Service 2019, entire). The SSA report
underwent independent peer review by
scientists with expertise in crayfish
biology, habitat management, and
stressors (factors negatively affecting the
species) to the slenderclaw crayfish. The
SSA report, the proposed rule, this final
rule, and other materials relating to this
rulemaking can be found on the
Service’s Southeast Region website at
https://www.fws.gov/southeast/ and at
https://www.regulations.gov under
Docket No. FWS–R4–ES–2018–0069.
Previous Federal Actions
On October 9, 2018, we published in
the Federal Register a proposed rule (83
FR 50582) to list the slenderclaw
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crayfish as a threatened species with
provisions under section 4(d) of the
Endangered Species Act of 1973, as
amended (16 U.S.C. 1531 et seq.) and to
designate critical habitat. Please refer to
that proposed rule for a detailed
description of all previous Federal
actions concerning this species.
Background
The slenderclaw crayfish is a
relatively small, cryptic freshwater
crustacean, with an average lifespan of
2 to 3 years, that is endemic to streams
on Sand Mountain within the Tennessee
River Basin in DeKalb and Marshall
Counties, Alabama. Primarily due to the
invasion of nonnative virile crayfish
(Faxonius virilis) that prey upon and
compete with the slenderclaw crayfish,
in addition to habitat degradation
resulting in poor water quality, the
species’ range is reduced with
extirpation at some sites and low
condition in both populations currently.
Please refer to the October 9, 2018,
proposed listing and designation of
critical habitat rule for the slenderclaw
crayfish (83 FR 50582) and the SSA
report for a full summary of species
information. Both are available on the
Service’s Southeast Region website at
https://www.fws.gov/southeast/ and at
https://www.regulations.gov under
Docket No. FWS–R4–ES–2018–0069.
Summary of Comments and
Recommendations
In the October 9, 2018, proposed
listing and critical habitat rule (83 FR
50582), we requested that all interested
parties submit written comments on the
proposal by December 10, 2018. We also
contacted appropriate Federal and State
agencies, scientific experts and
organizations, and other interested
parties and invited them to comment on
the proposal. A newspaper notice
inviting general public comment was
published in the Guntersville (Alabama)
Advertiser Gleam on October 17, 2018.
We did not receive any requests for a
public hearing. All substantive
information provided during the
comment period has either been
incorporated directly into the SSA
report or this final determination or is
addressed below, as appropriate.
Peer Reviewer Comments
In accordance with our joint policy on
peer review published on July 1, 1994
(59 FR 34270), and our August 22, 2016,
memorandum updating and clarifying
the role of peer review of listing actions
under the Act, we solicited the expert
opinions from six knowledgeable
individuals with scientific expertise that
included familiarity with slenderclaw
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crayfish and its habitat, biological
needs, and threats. We received
responses from two peer reviewers.
We reviewed all comments received
from the peer reviewers for substantive
issues and new information regarding
the slenderclaw crayfish, and we
updated the SSA report prior to the
proposed rule. The peer reviewers
generally concurred with our methods
and conclusions and provided
additional information, clarifications,
and suggestions to improve the final
SSA report. Peer reviewer comments
were incorporated into the SSA report
and this final rule as appropriate. In our
response to peer reviewer comments, we
only address issues that were not
reflected in changes to the SSA report
or this final rule.
Comment: One peer reviewer
suggested that we project increased
variability in rainfall instead of change
in annual mean precipitation in our
future condition projections. The
reviewer noted that one historic drought
could potentially eliminate one of these
populations, and we do not understand
the effects of flooding on the
slenderclaw crayfish. In addition, the
reviewer noted that considering climateinduced variability with urbanization
could lead to a higher probability of
occasional stream drying.
Our response: Although we did not
use a model to project increased
variability in rainfall as the commenter
suggested, in the SSA, we did account
for increased variability in rainfall and
the hydrological impacts from
precipitation change in our futurescenario projections and predictions of
the slenderclaw crayfish. To assess the
future condition of slenderclaw
crayfish, we projected how precipitation
can change in order to understand
potential future hydrologic impacts
within the system. Based on this
information, we developed future
scenarios on the plausible range in the
hydrologic impacts from precipitation
change as well as other factors
influencing the viability of the
slenderclaw crayfish.
Public Comments
We received 10 public comments on
the proposed listing rule and critical
habitat rule. Where commenters
provided substantive comments or new
information concerning the proposed
listing and species-specific section 4(d)
rule for the slenderclaw crayfish, we
incorporated this information into the
final SSA report and this final rule as
appropriate.
(1) Comment: One commenter
expressed concern about the presence of
the virile crayfish in slenderclaw
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crayfish habitat and provided additional
information and references on research
of the effects of virile crayfish on other
crayfish species. The commenter noted
the virile crayfish has been attributed to
decline of other native crayfish species
in rivers and streams in West Virginia,
Idaho, Wyoming, and Utah.
Our response: We appreciate the
additional information and references
provided regarding the virile crayfish
effects to other native crayfish species.
We incorporated the information from
the additional studies of virile crayfish
into the appropriate section of the SSA
report (Service 2019, pp. 16–17). We
further considered the additional
information about the invasion of virile
crayfish and what the impact is to the
current condition of the slenderclaw
crayfish. After further consideration of
the invasion of virile crayfish, coupled
with the low abundance of slenderclaw
crayfish, we determined the risk of
extinction for the slenderclaw crayfish
is higher (see Determination of
Slenderclaw Status, below) than we
characterized in the proposal to list the
slenderclaw crayfish as a threatened
species. Based on the documented past
expansion of the virile crayfish, current
invasion and expansion into the
slenderclaw crayfish’s range in both
populations will occur. Therefore, the
slenderclaw crayfish is currently at risk
of extinction as a result of the virile
crayfish expansion. We reassessed the
best available scientific and commercial
data available regarding the slenderclaw
crayfish to evaluate its status under the
Act (see Determination of Slenderclaw
Crayfish Status, below).
(2) Comment: Several other
commenters expressed their opinion
that the Service should list the species
as endangered, rather than threatened,
and stated reasons including
degradation of its habitat, inadequacy of
existing regulatory mechanisms, small
population size, competition with virile
crayfish, and climate change. One
commenter specifically identified kudzu
(Pueraria montana), an invasive plant,
as a current and future threat to the
riparian habitat in the range of the
slenderclaw crayfish. In addition, the
commenter noted that degradation of
habitat for the slenderclaw crayfish is
ongoing despite existing regulatory
mechanisms.
Our response: When we evaluated the
best available information, we
concluded that kudzu was not a threat
to the slenderclaw crayfish. Although
we recognize that kudzu can alter
habitat, this plant has not been
documented to impact the slenderclaw
crayfish. As to habitat degradation, as
discussed under the Summary of
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Biological Status and Threats and
Determination sections of the preamble
of this final listing rule, we determined
that existing regulatory mechanisms
currently address the threat of habitat
degradation. Other than identifying
kudzu as a potential threat, the
commenters did not provide any new
information regarding current threats to
the slenderclaw crayfish or its current
status that was not already considered
in the SSA report or proposed rule.
However, as stated above under Our
Response to (1) Comment, based on new
information about the invasive virile
crayfish, coupled with known
information about slenderclaw crayfish
abundance, we determined the
slenderclaw crayfish meets the
definition of an endangered species (see
Determination of Slenderclaw Crayfish
Status, below).
(3) Comment: Two commenters stated
that the slenderclaw crayfish has been
extirpated from 80 percent of its
historical range, citing information from
a status survey for three rare crayfishes,
including the slenderclaw crayfish
(Kilburn et al. 2012, entire).
Our response: As discussed in
Kilburn et al. (2012, entire), the
slenderclaw crayfish was only ever
known to occur at five historical sites
within two watersheds, Short and Town
Creeks, and the authors did not find the
slenderclaw crayfish outside these two
watersheds. Since the publication of
Kilburn et al. (2012, entire), recent
surveys conducted in 2015 through
2017 identified the slenderclaw crayfish
occurring at three new sites within this
historical range. Although there is
evidence of reduced abundance and
presumed extirpation at four historical
sites within this range, there are
currently two populations of
slenderclaw crayfish occurring across
the range in Alabama, and the
slenderclaw crayfish occurs within the
two watersheds where it historically
was known to occur. In short, at this
time, the slenderclaw crayfish has not
been extirpated from 80 percent of its
historical range. Please refer to section
2.5 Range and Distribution in the SSA
report for additional information on the
historical and current range of the
species.
(4) Comment: The Tennessee Valley
Authority (TVA) recommended that the
planting of bare-root seedlings as a
method to revegetate and stabilize
streambanks be included in the 4(d)
rule. TVA has found this method to be
successful for establishing a diversity of
vegetation within riparian zones.
Our response: We agree that the
planting of bare-root seedlings as a
method to revegetate and stabilize
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streambanks would be beneficial to
slenderclaw crayfish. However, in this
final rule, the Service has determined
that the slenderclaw crayfish meets the
definition of an endangered species, and
the Act does not allow issuance of a 4(d)
rule for a species listed as endangered.
Summary of Changes From the
Proposed Rule
The final rule incorporates changes to
our proposed listing rule and SSA
Report based on the comments we
received, as discussed in the Summary
of Comments and Recommendations.
Based on comments received and our
further consideration of the invasion of
virile crayfish coupled with low
abundance of slenderclaw crayfish, we
determined the risk of extinction is
higher (see Determination, below) than
we characterized in the proposal to list
the slenderclaw crayfish as a threatened
species (83 FR 50582; October 9, 2018).
We reassessed our analysis and found
that the documented expansion and
invasion of the virile crayfish in the
slenderclaw crayfish’s range, along with
additional information regarding
impacts to other native crayfish species
and known low abundance in both
populations of the slenderclaw crayfish,
places the slenderclaw crayfish at a high
risk for extinction throughout its range.
Thus, after evaluating the best available
information and the Act’s regulation
and policies, we determined that the
slenderclaw crayfish meets the
definition of an endangered species, and
such status is more appropriate than
that of a threatened species as originally
proposed. Because we determined that
the slenderclaw crayfish meets the
definition of an endangered species, a
4(d) rule is inapplicable; consequently,
the proposed special rule under the
authority of section 4(d) of the Act was
removed from the final rule. We
received no substantive comments on
the proposed critical habitat
designation; accordingly, there are no
changes in the final designation. Lastly,
we made minor editorial and
nonsubstantive corrections throughout
the SSA report and this final rule.
Summary of Biological Status and
Threats
We completed a comprehensive
assessment of the biological status of the
slenderclaw crayfish and prepared an
SSA report (Service 2019, entire), which
provides a thorough account of the
species’ overall viability. Below, we
summarize the key results and
conclusions of the SSA report.
To evaluate the current and future
viability of the slenderclaw crayfish, we
assessed the three conservation biology
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principles of resiliency, redundancy,
and representation (the ‘‘3 Rs’’
described in detail in the SSA report)
(Shaffer and Stein 2000, pp. 306–310).
Briefly, resiliency supports the ability of
the species to withstand environmental
and demographic stochasticity (for
example, wet or dry, warm or cold
years), redundancy supports the ability
of the species to withstand catastrophic
events (for example, droughts, large
pollution events), and representation
supports the ability of the species to
adapt over time to long-term changes in
the environment (for example, climate
changes). In general, the more resilient
and redundant a species is and the more
representation it has, the more likely it
is to sustain populations over time, even
under changing environmental
conditions. Using these principles, we
identified the species’ ecological
requirements for survival and
reproduction at the individual,
population, and species levels, and
described the beneficial and risk factors
influencing the species’ viability.
The historical range of the
slenderclaw crayfish included two
known populations, Short and Town
Creeks, in watersheds leading into the
Tennessee River in Alabama. Within the
Short Creek population, a total of 90
slenderclaw crayfish, with 56 of those
being juveniles, were collected during
the period 1970–1974 (Bouchard and
Hobbs 1976, entire; Schuster 2017,
unpublished data). Historically, only
one crayfish was collected in the Town
Creek population in the period 1970–
1974 (Bouchard and Hobbs 1976, entire;
Schuster 2017, unpublished data).
Surveys conducted from 2009 through
2017 have documented the slenderclaw
crayfish within the same two
populations, Short Creek (three sites in
Shoal Creek) and Town Creek (one site
in Bengis Creek and one site in Town
Creek) (Kilburn et al. 2014, pp. 116–117;
Bearden et al. 2017, pp. 17–18; Schuster
2017, unpublished data; Taylor 2017,
unpublished data).
Of the five historical sites, the
slenderclaw crayfish is no longer found
and is presumed extirpated at three sites
in the Short Creek population (one site
in Short Creek and two sites in Scarham
Creek) and one site in the Town Creek
population (one site in Bengis Creek)
despite repeated survey efforts (Kilburn
et al. 2014, pp. 116–117; Bearden et al.
2017, pp. 17–18; Schuster 2017,
unpublished data; Taylor 2017,
unpublished data). Across current
survey efforts from 2009 through 2017,
researchers collected 28 slenderclaw
crayfish, including 2 juveniles, within
the Short Creek population, and 2 adults
and 2 juveniles from the Town Creek
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population. There are no actual
historical or current population
estimates for slenderclaw crayfish, and
the abundance numbers (total number
collected) reported are not population
estimates.
At the population level, the overall
current condition in terms of resiliency
was determined to be low for both Short
Creek and Town Creek populations. We
estimate that the slenderclaw crayfish
currently has some adaptive potential
(i.e., representation) due to the habitat
variability features occurring in the
Short Creek and Town Creek
populations. The Short Creek
population occurs in streams with
predominantly large boulders and
fractured bedrock, broader stream
widths, and greater depths, and the
Town Creek population occurs in
streams with larger amounts of gravel
and cobble, narrower stream widths,
and shallower depths (Bearden 2017,
pers. comm.). At present, the
slenderclaw crayfish has two
populations in low condition
(resiliency) with habitat types that vary
between populations. Therefore, given
the variable habitat in which the
slenderclaw crayfish occurs, the species
may have some level of adaptive
capacity. Given the low resiliency of
both populations of the slenderclaw
crayfish, current representation is
reduced.
The slenderclaw crayfish exhibits
limited redundancy given its narrow
range and that four out of five sites
within the species’ historical range are
presumed extirpated. In addition,
connectivity between the Short Creek
and Town Creek populations is likely
low, because both Short and Town
Creek streams flow downstream into,
and thus are separated by, Guntersville
Lake. To date, no slenderclaw crayfish
have been documented in impounded
areas including Guntersville Lake.
Multiple sites in the same population
could allow recolonization following a
catastrophic event (e.g., chemical spill)
that may affect a large proportion of a
population; however, given the species’
limited redundancy and current low
resiliency of both populations, it might
be difficult to reestablish an entire
population affected by a catastrophic
event, as the connectivity between the
two populations is low. Further, the
currently occupied sites in the Short
Creek population are in a single
tributary, and one catastrophic event
could impact this entire population.
Risk Factors for Slenderclaw Crayfish
The Act directs us to determine
whether any species is an endangered
species or a threatened species because
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of any factors affecting its continued
existence. Under section 4(a)(1) of the
Act, we may list a species based on (A)
The present or threatened destruction,
modification, or curtailment of its
habitat or range; (B) overutilization for
commercial, recreational, scientific, or
educational purposes; (C) disease or
predation; (D) the inadequacy of
existing regulatory mechanisms; or (E)
other natural or manmade factors
affecting its continued existence.
We reviewed the potential risk factors
(i.e., threats or stressors) that are
affecting the slenderclaw crayfish now
and are expected to affect it into the
future. Because we have determined
that the species is currently in danger of
extinction throughout its range, in this
final rule we will discuss in detail only
those threats that we conclude are
driving the current status and viability
of the species. We have determined that
competition from a nonnative species
(Factors A and E), habitat degradation
resulting from poor water quality
(Factor A), and low abundance (Factor
E) pose the largest risk to the current
viability of the slenderclaw crayfish.
Other potential stressors to the
species—hydrological variation and
alteration (Factors A and E), land use
(Factor A), and scientific collection
(Factor B)—are discussed in the SSA
report and proposed rule. Currently
existing regulatory mechanisms, such as
regulations implemented under the
Clean Water Act to protect water quality
and instream habitat, address the habitat
degradation threat to the slenderclaw
crayfish. However, we also found that
existing regulatory mechanisms do not
address, nor do they contribute to, the
threat of the nonnative virile crayfish,
which is the primary threat to the
slenderclaw crayfish. We find the
species does not face significant threats
from disease or predation (Factor C). We
also reviewed the conservation efforts
being undertaken for the habitat in
which the slenderclaw crayfish occurs.
Nonnative Species
The virile crayfish (Faxonius virilis),
previously recognized as Orconectes
virilis (Crandall and De Grave 2017, p.
5), is a crayfish native to the Missouri,
upper Mississippi, lower Ohio, and the
Great Lakes drainages (Service 2015, p.
1). The species has spread from its
native range through dispersal as fishing
bait, as pets, and through commercial
(human) consumption (Schwartz et al.
1963, p. 267; Service 2015, p. 4). Virile
crayfish inhabit a variety of watersheds
in the United States, including those
with very few to no native crayfish
species, and have been found in lake,
wetland, and stream environments
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(Larson et al. 2010, p. 2; Loughman and
Simon 2011, p. 50). Virile crayfish are
generalists, able to withstand various
conditions, and have the natural
tendency to migrate (Loughman and
Simon 2011, p. 50). This species has
been documented to spread
approximately 124 mi (200 km) over 15
years (B. Williams 2018, pers. comm.;
Williams et al. 2011, entire).
Based on comparison of body size,
average claw size, aggression levels, and
growth rates, it appears that the virile
crayfish has an ecological advantage
over several native crayfish species,
including those in the Cambarus and
Procambarus genera (Hale et al. 2016, p.
6). In addition, virile crayfish have been
documented to displace native crayfish
(Hubert 2010, p. 5; Loughman and
Welsh 2010, pp. 70 and 72).
Virile crayfish were first collected
near the range of slenderclaw crayfish in
1967 (Schuster 2017, unpublished data).
Since then, the virile crayfish has been
documented in Guntersville Lake (a
Tennessee Valley Authority reservoir
constructed in 1939, on the Tennessee
River mainstem) (Schuster 2017,
unpublished data; Taylor 2017,
unpublished data). In addition, the
virile crayfish was found in 2015 at the
type locality (location where the species
was first described) for the slenderclaw
crayfish in Short Creek (Short Creek
population), in which the slenderclaw
crayfish no longer occurs (Schuster
2017, unpublished data; Taylor 2017,
unpublished data). In 2016, the virile
crayfish was found at two sites in Drum
Creek within the Short Creek population
boundary and at the confluence of Short
Creek and Guntersville Lake (Schuster
2017, unpublished data; Taylor 2017,
unpublished data). During 2017, 20
virile crayfish were again found at the
location where slenderclaw crayfish was
first described in Short Creek (Taylor
2017, unpublished data). Also during
2017, this nonnative crayfish was
documented at four new sites in
adjacent watersheds outside of the Short
Creek population boundary. Juvenile
virile crayfish have been collected in the
Short Creek population, indicating that
the species is established there (Taylor
2017, unpublished data). To date, no
virile crayfish have been documented
within the Town Creek population
boundary (Schuster 2017, unpublished
data; Taylor 2017, unpublished data).
The adaptive nature of the virile
crayfish, the effects of this nonnative
species on other crayfish species in their
native ranges, and records of the virile
crayfish’s presence in the slenderclaw
crayfish’s historical and current range
indicate that the virile crayfish is a
factor that negatively influences the
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viability of the slenderclaw crayfish in
the near term and future. Also,
considering that the virile crayfish is a
larger crayfish, is a strong competitor,
and tends to migrate, while the
slenderclaw crayfish has low abundance
and is a smaller bodied crayfish, it is
reasonable to conclude that once the
virile crayfish is established at a site, it
will out-compete slenderclaw crayfish.
Water Quality
Direct impacts of poor water quality
on the slenderclaw crayfish are
unknown; however, aquatic
macroinvertebrates (i.e., mayflies,
caddisflies, stoneflies) are negatively
affected by poor water quality, and this
may indirectly impact the slenderclaw
crayfish, which likely feeds on them.
Degradation of water quality impacts
aquatic macroinvertebrates and may
even cause stress to individual crayfish
(Arthur et al. 1987, p. 328; Devi and
Fingerman 1995, p. 749; Rosewarne et
al. 2014, p. 69). Although crayfish
generally have a higher tolerance to
ammonia than some aquatic species
(i.e., mussels), their food source, larval
insects, is impacted by ammonia at
lower concentrations (Arthur et al.
1987, p. 328). Juvenile slenderclaw
crayfish likely feed exclusively on
aquatic macroinvertebrates, which are
impacted by elevated ammonia and
poor water quality.
Within the range of the slenderclaw
crayfish, Scarham Creek and Town
Creek were identified as impaired
waters by the Alabama Department of
Environmental Management (ADEM).
These creeks were listed in 1996 and
1998, respectively, on Alabama’s list of
impaired water bodies (list of
waterbodies that do not meet
established State water quality
standards) under section 303(d) of the
Clean Water Act (hereafter, ‘‘the 303(d)
list’’) (ADEM 1996, p. 1; ADEM 2001, p.
11). Scarham Creek was placed on the
303(d) list for impacts from pesticides,
siltation, ammonia, low dissolved
oxygen/organic enrichment, and
pathogens from agricultural sources;
this section of Scarham Creek stretched
24 mi (39 km) upstream from its
confluence with Short Creek to its
source (ADEM 2013, p. 1). However,
Scarham Creek was removed from
Alabama’s 303(d) list of impaired waters
in 2004, after the total maximum daily
loads (TMDLs; maximum amount of a
pollutant or pollutants allowed in a
water body while still meeting water
quality standards) were developed in
2002 (ADEM 2002, p. 5; ADEM 2006,
entire). Town Creek was previously
listed on the 303(d) list for ammonia
and organic enrichment/dissolved
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oxygen impairments. Although TMDLs
have been in development for these
issues (ADEM 1996, entire), all of Town
Creek is currently on the 303(d) list for
mercury contamination due to
atmospheric deposition (ADEM 2016a,
appendix C). One identified source of
wastewater discharge to Town Creek is
Hudson Foods near Geraldine, Alabama
(ADEM 1996, p. 1).
Pollution from nonpoint sources
stemming from agriculture, animal
production, and unimproved roads has
been documented within the range of
the slenderclaw crayfish (Bearden et al.
2017, p. 18). Alabama is ranked third in
the United States for broiler (chicken)
production (Alabama Poultry Producers
2017, unpaginated), and DeKalb and
Marshall Counties are two of the four
most active counties in Alabama for
poultry farming (Conner 2008,
unpaginated). Poultry farms and poultry
litter (a mixture of chicken manure,
feathers, spilled food, and bedding
material that frequently is used to
fertilize pastureland or row crops) have
been documented to contain nutrients,
pesticides, bacteria, heavy metals, and
other pathogens (Bolan et al. 2010, pp.
676–683; Stolz et al. 2007, p. 821). A
broiler house containing 20,000 birds
will produce approximately 150 tons of
litter a year (Ritz and Merka 2013, p. 2).
Surface-spreading of litter allows runoff
from heavy rains to carry nutrients from
manure into nearby streams. Poultry
litter spreading is a practice that occurs
within the Short Creek watershed (Short
Creek population of slenderclaw
crayfish) (Top of Alabama Regional
Council of Governments 2015, p. 8).
During recent survey efforts, water
quality was impaired due to nutrients
and bacteria within the Short Creek
population, and levels of atrazine may
be of concern in the watershed (Bearden
et al. 2017, p. 32). In Bengis Creek
(Town Creek population), lead
measurements exceeded the acute and
chronic aquatic life criteria set by the
U.S. Environmental Protection Agency
(EPA) and ADEM (Bearden et al. 2017,
p. 32; ADEM 2017, p. 10–7). These
criteria are based on levels developed by
the EPA and ADEM to protect fish and
wildlife (ADEM 2017, entire), and
exceedance of these values is likely to
harm animal or plant life (EPA 2018b,
unpaginated). Elevated ammonia
concentrations in Town Creek were also
documented and reflected nonpoint
source pollution at low-flow and highflow measurements (Bearden et al. 2017,
p. 21). In late summer and fall surveys,
potential eutrophication likely
stemming from low-water conditions,
elevated nutrients, and low dissolved
oxygen was documented within both
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Short and Town Creek watersheds
(Bearden et al. 2017, p. 31).
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Low Abundance
The number of slenderclaw crayfish is
currently low, with only two
populations and few individuals within
each population, which is reflected in
the species’ low resiliency, redundancy,
and representation. The current
estimated low abundance (n=32) and
genetic drift may negatively affect
populations of the slenderclaw crayfish.
In general, the fewer populations a
species has or the smaller the sizes of
those populations, the greater the
likelihood of extinction by chance alone
(Shaffer and Stein 2000, p. 307). Genetic
drift occurs in all species but is more
likely to negatively affect populations
that have a smaller effective population
size (Caughley 1994, pp. 219–220; Huey
et al. 2013, p. 10). There are only two
populations of the slenderclaw crayfish
with limited connectivity between those
populations, which may have reduced
genetic diversity. However, no testing
for genetic drift has been conducted for
the slenderclaw crayfish.
Synergistic Effects
In addition to impacting the species
individually, it is likely that several of
the risk factors are acting synergistically
or additively on the species. The
combined impact of multiple stressors is
likely more harmful than a single
stressor acting alone. For example, in
the Town Creek watershed, Town Creek
was previously listed as an impaired
stream due to ammonia and organic
enrichment/dissolved oxygen
impairments, and recent surveys
documented eutrophic conditions of
elevated nutrients and low dissolved
oxygen. In addition, hydrologic
variation and alteration has occurred
within the Town Creek watershed as
discussed further in the SSA report.
Low-water conditions naturally occur in
streams where the slenderclaw crayfish
occurs, and alteration causing prolonged
low-water periods could have a negative
impact on the reproductive success of
the slenderclaw crayfish. Further,
connectivity between Town Creek and
Short Creek watersheds is likely low
due to Guntersville Lake. The
combination of all of these stressors on
the sensitive aquatic species in this
habitat has probably impacted
slenderclaw crayfish, in that only four
individuals have been recorded there
since 2009.
Conservation Actions
TMDLs have been developed in
Scarham Creek for siltation, ammonia,
pathogens, organic enrichment/low
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dissolved oxygen, and pesticides
(ADEM 2002, p. 5). Town Creek is
currently on the 303(d) list for mercury
contamination due to atmospheric
deposition (ADEM 2016a, appendix C).
However, a TMDL for organic
enrichment/dissolved oxygen has been
developed for Town Creek (ADEM 1996,
entire). Through the 303(d) program,
ADEM provides funding derived under
section 319 of the Clean Water Act to
improve water quality in the
watersheds. In 2014, the Upper Scarham
Creek Watershed was selected as a
priority by ADEM for the development
of a watershed management plan. In
Fiscal Year 2016, the DeKalb County
Soil and Water Conservation District
contracted with ADEM to implement
the Upper Scarham Creek Watershed
Project using section 319 funding
(ADEM 2016b, p. 39).
The U.S. Department of Agriculture’s
Natural Resources Conservation Service
(NRCS) National Water Quality
Initiative program identified the
Guntersville Lake/Upper Scarham Creek
in DeKalb County as an Alabama
Priority Watershed in 2015 (NRCS 2017,
unpaginated). This watershed is within
the historical range of the slenderclaw
crayfish. It is recognized as in need of
conservation practices, as it was listed
on the Alabama 303(d) list as impaired
due to organic enrichment/low
dissolved oxygen and ammonia as
nitrogen (ADEM 2002, p. 4). The
National Water Quality Initiative helps
farmers, ranchers, and forest
landowners improve water quality and
aquatic habitats in impaired streams
through conservation and management
practices. Such practices include
controlling and trapping nutrient and
manure runoff, and installation of cover
crops, filter strips, and terraces.
Future Condition of the Slenderclaw
Crayfish
For the purpose of this assessment,
we define viability as the ability of the
species to sustain populations in the
wild over time. As part of the SSA, to
help address uncertainty associated
with the degree and extent of potential
future stressors and their impacts on the
needs of the species, the concepts of
resiliency, redundancy, and
representation were applied using three
plausible future scenarios. We devised
these scenarios by identifying
information on the following primary
stressors that are anticipated to affect
the species in the future: Nonnative
virile crayfish, hydrological variation
(precipitation and water quantity), landuse change, and water quality. However,
having determined that the current
condition of the slenderclaw crayfish is
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consistent with that of an endangered
species (see Determination of
Slenderclaw Crayfish Status, below), the
results of the future scenarios are not
material to our decision, and therefore,
we are not presenting the results in this
final rule. Please refer to the proposed
listing and designation of critical habitat
rule for the slenderclaw crayfish (83 FR
50582; October 9, 2018) and the SSA
report (Service 2018, entire) for the full
analysis of future conditions and
descriptions of the associated scenarios.
Determination of Slenderclaw Crayfish
Status
We have carefully assessed the best
scientific and commercial information
available regarding the past, present,
and future threats to the slenderclaw
crayfish. Section 4 of the Act (16 U.S.C.
1533) and its implementing regulations
(50 CFR part 424) set forth the
procedures for determining whether a
species meets the definition of an
endangered species or a threatened
species. The Act defines an endangered
species as a species ‘‘in danger of
extinction throughout all or a significant
portion of its range,’’ and a threatened
species as a species ‘‘likely to become
an endangered species within the
foreseeable future throughout all or a
significant portion of its range.’’ The Act
requires that we determine whether a
species meets the definition of
‘‘endangered species’’ or ‘‘threatened
species’’ because of any of the following
factors: (A) The present or threatened
destruction, modification, or
curtailment of its habitat or range; (B)
Overutilization for commercial,
recreational, scientific, or educational
purposes; (C) Disease or predation; (D)
The inadequacy of existing regulatory
mechanisms; or (E) Other natural or
manmade factors affecting its continued
existence.
Status Throughout All of Its Range
After evaluating threats to the species
and assessing the cumulative effect of
the threats under the section 4(a)(1)
factors, we have determined the
slenderclaw crayfish to be endangered
throughout all of its range. Our review
of the best available information
indicates that there are currently two
populations of slenderclaw crayfish in
low condition occurring across the
species’ historical range in Alabama.
Despite the species being identified at
three new sites as reflected by recent
increased survey efforts, there is
substantial evidence of reduced
abundance (current estimate of n=32)
and presumed extirpation at four
historical sites. In the Short Creek
population, 28 slenderclaw crayfish
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were collected during surveys from
2009 through 2017; in the Town Creek
population, only 4 slenderclaw crayfish
were collected during this same time
period. Further, there is evidence of
limited reproduction with only 3
juveniles collected from both
populations since 2016. The
slenderclaw crayfish exhibits low
natural redundancy given its narrow
range, but given presumed extirpation of
sites within both populations, the
species’ redundancy is further limited.
Several sources of indirect water
quality impacts on both populations
have been identified. However, no
direct water quality-related impacts are
known at this time, and crayfish
generally have a higher tolerance to
poor water quality conditions than other
aquatic species. In addition, currently
existing regulatory mechanisms, such as
establishing TMDLs, are addressing the
effects of poor water quality on the
slenderclaw crayfish.
Currently, one of the primary threats
to the slenderclaw crayfish is the
nonnative virile crayfish. The virile
crayfish is a larger crayfish, a strong
competitor, and tends to migrate, and
has been attributed to declines of other
native crayfish species. Considering
these characteristics of the virile
crayfish and the size (small-bodied) of
the slenderclaw crayfish, it is reasonable
to infer that once virile crayfish is
established at a site it will out-compete
slenderclaw crayfish. This may already
be the case at the slenderclaw crayfish
type locality where virile crayfish were
found in recent surveys. At present, the
virile crayfish has been reported as
occurring at only one site, the type
locality, where the slenderclaw crayfish
was known to occur. Specifically, the
virile crayfish occupies approximately
12.5 river miles (mi) (20.1 river
kilometers (km)) at a few sites
approximately 7 river mi (11 river km)
downstream of current slenderclaw
crayfish sites in the Short Creek
population (233.6 river mi (375.9 river
km)), and, therefore, the virile crayfish
is an imminent threat to slenderclaw
crayfish in the Short Creek population.
Although there are currently no records
of the virile crayfish in the Town Creek
population (281.7 river mi (453.4 river
km)), the virile crayfish is documented
in Guntersville Lake, which leads
directly into the Town Creek
population. Based on the documented
past expansion of the virile crayfish
(despite some uncertainty and variation
in the rate at which it will expand), and
documented impacts and declines to
other native crayfish species, current
invasion and expansion into the
slenderclaw crayfish’s range in the
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Town Creek population will occur.
Coupled with the current low
abundance (n=4) of slenderclaw crayfish
in the Town Creek population, the
invasion of virile crayfish makes the
slenderclaw crayfish at high risk of
extirpation in this watershed.
Overall, given the current low
resiliency in both populations and the
species’ limited redundancy, it will be
difficult to reestablish an entire
population, should it be affected by a
catastrophic event, without human
intervention, as the connectivity
between the two populations is low.
Therefore, the slenderclaw crayfish is
currently at risk of extirpation in both
populations. Thus, we have determined
that the slenderclaw crayfish is
currently in danger of extinction
throughout all of its range.
Status Throughout a Significant Portion
of Its Range
Under the Act and our implementing
regulations, a species may warrant
listing if it is in danger of extinction or
likely to become so in the foreseeable
future throughout all or a significant
portion of its range. We have
determined that the slenderclaw
crayfish is in danger of extinction
throughout all of its range, warranting
listing as endangered throughout its
range. Accordingly, we did not
undertake an analysis of any significant
portion of its range. Our determination
is consistent with the decision in Center
for Biological Diversity v. Everson, 2020
WL 437289 (D.D.C. Jan. 28, 2020).
Determination of Status
Our review of the best available
scientific and commercial information
indicates that the slenderclaw crayfish
meets the definition of an endangered
species. Therefore, in accordance with
sections 3(20) and 4(a)(1) of the Act, we
add the slenderclaw crayfish as an
endangered species to the List of
Endangered and Threatened Wildlife at
50 CFR 17.11(h).
Available Conservation Measures
The primary purpose of the Act is the
conservation of endangered and
threatened species and the ecosystems
upon which they depend. The ultimate
goal of such conservation efforts is the
recovery of these listed species, so that
they no longer need the protective
measures of the Act. Conservation
measures provided to species listed as
endangered or threatened species under
the Act include recognition, recovery
actions, requirements for Federal
protection, and prohibitions against
certain practices. Recognition through
listing results in public awareness and
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conservation by Federal, State, Tribal,
and local agencies, private
organizations, and individuals. The Act
encourages cooperation with the States
and calls for recovery actions to be
carried out for all listed species. The
protection required by Federal agencies
and the prohibitions against certain
activities are discussed, in part, below.
Subsection 4(f) of the Act requires the
Service to develop and implement
recovery plans for the conservation of
endangered and threatened species. The
recovery planning process involves the
identification of actions that are
necessary to halt or reverse the species’
decline by addressing the threats to its
survival and recovery. The goal of this
process is to restore listed species to a
point where they are secure, selfsustaining, and functioning components
of their ecosystems.
Recovery planning consists of
preparing draft and final recovery plans,
beginning with the development of a
recovery outline and making it available
to the public within 30 days of a final
listing determination. The recovery
outline guides the immediate
implementation of urgent recovery
actions and describes the process to be
used to develop a recovery plan.
Revisions of the plan may be done to
address continuing or new threats to the
species, as new substantive information
becomes available. The recovery plan
also identifies recovery criteria for
review of when a species may be ready
for reclassification from endangered to
threatened (‘‘downlisting’’) or removal
from protected status (‘‘delisting’’), and
methods for monitoring recovery
progress. Recovery plans also establish
a framework for agencies to coordinate
their recovery efforts and provide
estimates of the cost of implementing
recovery tasks. Recovery teams
(composed of species experts, Federal
and State agencies, nongovernmental
organizations, and stakeholders) are
often established to develop recovery
plans. When completed, the recovery
outline, draft recovery plan, and the
final recovery plan will be available on
our website (https://www.fws.gov/
endangered) or from our Alabama
Ecological Services Field Office (see FOR
FURTHER INFORMATION CONTACT).
Implementation of recovery actions
generally requires the participation of a
broad range of partners, including other
Federal agencies, States, Tribes,
nongovernmental organizations,
businesses, and private landowners.
Examples of recovery actions include
habitat restoration (e.g., restoration of
native vegetation), research, captive
propagation and reintroduction, and
outreach and education. The recovery of
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many listed species cannot be
accomplished solely on Federal lands
because their range may occur primarily
or solely on non-Federal lands. To
achieve recovery of these species
requires cooperative conservation efforts
on private, State, and Tribal lands.
Following publication of this final
listing rule, funding for recovery actions
will be available from a variety of
sources, including Federal budgets,
State programs, and cost share grants for
non-Federal landowners, the academic
community, and nongovernmental
organizations. In addition, pursuant to
section 6 of the Act, the State of
Alabama will be eligible for Federal
funds to implement management
actions that promote the protection or
recovery of the slenderclaw crayfish.
Information on our grant programs that
are available to aid species recovery can
be found at: https://www.fws.gov/grants.
Please let us know if you are
interested in participating in recovery
efforts for the slenderclaw crayfish.
Additionally, we invite you to submit
any new information on this species
whenever it becomes available and any
information you may have for recovery
planning purposes (see FOR FURTHER
INFORMATION CONTACT).
Section 7(a) of the Act requires
Federal agencies to evaluate their
actions with respect to any species that
is listed as an endangered or threatened
species and with respect to its critical
habitat. Regulations implementing this
interagency cooperation provision of the
Act are codified at 50 CFR part 402.
Section 7(a)(2) of the Act requires
Federal agencies to ensure that activities
they authorize, fund, or carry out are not
likely to jeopardize the continued
existence of any endangered or
threatened species or destroy or
adversely modify its critical habitat. If a
Federal action may affect a listed
species or its critical habitat, the
responsible Federal agency must enter
into consultation with the Service.
Federal agency actions within the
slenderclaw crayfish’s habitat that may
require conference or consultation or
both as described in the preceding
paragraph include management and any
other landscape-altering activities on
Federal lands administered by the U.S.
Fish and Wildlife Service and U.S.
Forest Service; technical assistance and
projects funded through the U.S.
Department of Agriculture’s NRCS;
issuance of permits by the Tennessee
Valley Authority for right-of-way stream
crossings; issuance of section 404 Clean
Water Act (33 U.S.C. 1251 et seq.)
permits by the U.S. Army Corps of
Engineers; and construction and
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maintenance of roads or highways by
the Federal Highway Administration.
The Act and its implementing
regulations set forth a series of general
prohibitions and exceptions that apply
to endangered wildlife. The prohibitions
of section 9(a)(1) of the Act, codified at
50 CFR 17.21, make it illegal for any
person subject to the jurisdiction of the
United States to take (which includes
harass, harm, pursue, hunt, shoot,
wound, kill, trap, capture, or collect; or
to attempt any of these) endangered
wildlife within the United States or on
the high seas. In addition, it is unlawful
to import; export; deliver, receive, carry,
transport, or ship in interstate or foreign
commerce in the course of commercial
activity; or sell or offer for sale in
interstate or foreign commerce any
species listed as an endangered species.
It is also illegal to possess, sell, deliver,
carry, transport, or ship any such
wildlife that has been taken illegally.
Certain exceptions apply to employees
of the Service, the National Marine
Fisheries Service, other Federal land
management agencies, and State
conservation agencies.
We may issue permits to carry out
otherwise prohibited activities
involving endangered wildlife under
certain circumstances. Regulations
governing permits are codified at 50
CFR 17.22. With regard to endangered
wildlife, a permit may be issued for the
following purposes: For scientific
purposes, to enhance the propagation or
survival of the species, and for
incidental take in connection with
otherwise lawful activities. There are
also certain statutory exemptions from
the prohibitions, which are found in
sections 9 and 10 of the Act.
It is our policy, as published in the
Federal Register on July 1, 1994 (59 FR
34272), to identify, to the maximum
extent practicable at the time a species
is listed, those activities that would or
would not constitute a violation of
section 9 of the Act. The intent of this
policy is to increase public awareness of
the effect of a final listing on proposed
and ongoing activities within the range
of a listed species. Based on the best
available information, at this time, we
are unable to identify specific activities
that would not be considered to result
in a violation of section 9 of the Act,
because it is likely that site-specific
conservation measures may be needed
for activities that may directly or
indirectly affect the slenderclaw
crayfish. Based on the best available
information, the following actions may
potentially result in a violation of
section 9 of the Act or this final rule;
this list is not comprehensive:
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(1) Unauthorized handling, collecting,
possessing, selling, delivering, carrying,
or transporting of the slenderclaw
crayfish, including interstate
transportation across State lines and
import or export across international
boundaries.
(2) Destruction/alteration of the
species’ habitat by discharge of fill
material, draining, ditching, tiling, pond
construction, stream channelization or
diversion, or diversion or alteration of
surface or ground water flow into or out
of the stream (i.e., due to roads,
impoundments, discharge pipes,
stormwater detention basins, etc.).
(3) Introduction of nonnative species
that compete with or prey upon the
slenderclaw crayfish, such as the
introduction of nonnative virile crayfish
in Alabama.
(4) Modification of the channel or
water flow of any stream in which the
slenderclaw crayfish is known to occur.
(5) Discharge of chemicals or fill
material into any waters in which the
slenderclaw crayfish is known to occur.
Questions regarding whether specific
activities would constitute a violation of
section 9 of the Act should be directed
to the Alabama Ecological Services
Field Office (see FOR FURTHER
INFORMATION CONTACT).
Critical Habitat Designation
Background
Critical habitat is defined in section 3
of the Act as:
(1) The specific areas within the
geographical area occupied by the
species, at the time it is listed in
accordance with the Act, on which are
found those physical or biological
features
(a) Essential to the conservation of the
species, and
(b) Which may require special
management considerations or
protection; and
(2) Specific areas outside the
geographical area occupied by the
species at the time it is listed, upon a
determination that such areas are
essential for the conservation of the
species.
Our regulations at 50 CFR 424.02
define the geographical area occupied
by the species as an area that may
generally be delineated around species’
occurrences, as determined by the
Secretary (i.e., range). Such areas may
include those areas used throughout all
or part of the species’ life cycle, even if
not used on a regular basis (e.g.,
migratory corridors, seasonal habitats,
and habitats used periodically, but not
solely by vagrant individuals).
Conservation, as defined under
section 3 of the Act, means to use and
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the use of all methods and procedures
that are necessary to bring an
endangered or threatened species to the
point at which the measures provided
pursuant to the Act are no longer
necessary. Such methods and
procedures include, but are not limited
to, all activities associated with
scientific resources management such as
research, census, law enforcement,
habitat acquisition and maintenance,
propagation, live trapping, and
transplantation, and, in the
extraordinary case where population
pressures within a given ecosystem
cannot be otherwise relieved, may
include regulated taking.
Critical habitat receives protection
under section 7 of the Act through the
requirement that Federal agencies
ensure, in consultation with the Service,
that any action they authorize, fund, or
carry out is not likely to result in the
destruction or adverse modification of
critical habitat. The designation of
critical habitat does not affect land
ownership or establish a refuge,
wilderness, reserve, preserve, or other
conservation area. Designation also does
not allow the government or public to
access private lands, nor does
designation require implementation of
restoration, recovery, or enhancement
measures by non-Federal landowners.
Where a landowner requests Federal
agency funding or authorization for an
action that may affect a listed species or
critical habitat, the Federal agency
would be required to consult with the
Service under section 7(a)(2) of the Act.
However, even if the Service were to
conclude that the proposed activity
would result in destruction or adverse
modification of the critical habitat, the
Federal action agency and the
landowner are not required to abandon
the proposed activity, or to restore or
recover the species; instead, they must
implement ‘‘reasonable and prudent
alternatives’’ to avoid destruction or
adverse modification of critical habitat.
Under the first prong of the Act’s
definition of critical habitat, areas
within the geographical area occupied
by the species at the time it was listed
are included in a critical habitat
designation if they contain physical or
biological features (1) which are
essential to the conservation of the
species and (2) which may require
special management considerations or
protection. For these areas, critical
habitat designations identify, to the
extent known using the best scientific
and commercial data available, those
physical or biological features that are
essential to the conservation of the
species (such as space, food, cover, and
protected habitat). In identifying those
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physical or biological features within an
area, we focus on the specific features
that support the life-history needs of the
species, including but not limited to,
water characteristics, soil type,
geological features, prey, vegetation,
symbiotic species, or other features. A
feature may be a single habitat
characteristic, or a more complex
combination of habitat characteristics.
Features may include habitat
characteristics that support ephemeral
or dynamic habitat conditions. Features
may also be expressed in terms relating
to principles of conservation biology,
such as patch size, distribution
distances, and connectivity.
Under the second prong of the Act’s
definition of critical habitat, we may
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 will determine whether
unoccupied areas are essential for the
conservation of the species by
considering the life-history, status, and
conservation needs of the species. This
consideration will be further informed
by any generalized conservation
strategy, criteria, or outline that may
have been developed for the species to
provide a substantive foundation for
identifying which features and specific
areas are essential to the conservation of
the species and, as a result, the
development of the critical habitat
designation. For example, an area
currently occupied by the species but
that was not occupied at the time of
listing may be essential to the
conservation of the species and may be
included in the critical habitat
designation.
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.
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When we are determining which areas
should be designated as critical habitat,
our primary source of information is
generally the information from the SSA
report and information developed
during the listing process for the
species. Additional information sources
may include any generalized
conservation strategy, criteria, or outline
that may have been developed for the
species; the recovery plan for the
species; articles in peer-reviewed
journals; conservation plans developed
by States and counties; scientific status
surveys and studies; biological
assessments; other unpublished
materials; or experts’ opinions or
personal knowledge.
Habitat is dynamic, and species may
move from one area to another over
time. We recognize that critical habitat
designated at a particular point in time
may not include all of the habitat areas
that we may later determine are
necessary for the recovery of the
species. For these reasons, a critical
habitat designation does not signal that
habitat outside the designated area is
unimportant or may not be needed for
recovery of the species. Areas that are
important to the conservation of the
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 recovery of this species.
Similarly, critical habitat designations
made on the basis of the best available
information at the time of designation
will not control the direction and
substance of future recovery plans,
habitat conservation plans, or other
species conservation planning efforts if
new information available at the time of
these planning efforts calls for a
different outcome.
On August 27, 2019, we published a
final rule in the Federal Register (84 FR
45020) to amend our regulations
concerning the procedures and criteria
we use to designate and revise critical
habitat. That rule became effective on
September 26, 2019, but, as stated in
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that rule, the amendments it sets forth
apply to ‘‘rules for which a proposed
rule was published after September 26,
2019.’’ We published our proposed
critical habitat designation for the
slenderclaw crayfish on October 9, 2018
(83 FR 50582); therefore, the
amendments set forth in the August 27,
2019, final rule (84 FR 45020) do not
apply to this final designation of critical
habitat for the slenderclaw crayfish.
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 physical or biological features that
are essential to the conservation of the
species and which may require special
management considerations or
protection. The regulations at 50 CFR
424.02 define ‘‘physical or biological
features essential to the conservation of
the species’’ as the features that occur in
specific areas and that are essential to
support the life-history needs of the
species, including, but not limited to,
water characteristics, soil type,
geological features, sites, prey,
vegetation, symbiotic species, or other
features. A feature may be a single
habitat characteristic or a more complex
combination of habitat characteristics.
Features may include habitat
characteristics that support ephemeral
or dynamic habitat conditions. Features
may also be expressed in terms relating
to principles of conservation biology,
such as patch size, distribution
distances, and connectivity. For
example, physical features might
include gravel of a particular size
required for spawning, alkali soil for
seed germination, protective cover for
migration, or susceptibility to flooding
or fire that maintains necessary earlysuccessional habitat characteristics.
Biological features might include prey
species, forage grasses, specific kinds or
ages of trees for roosting or nesting,
symbiotic fungi, or a particular level of
nonnative species consistent with
conservation needs of the listed species.
The features may also be combinations
of habitat characteristics and may
encompass the relationship between
characteristics or the necessary amount
of a characteristic needed to support the
life history of the species. In considering
whether features are essential to the
conservation of the species, the Service
may consider an appropriate quality,
quantity, and spatial and temporal
arrangement of habitat characteristics in
the context of the life-history needs,
condition, and status of the species.
These include, but are not limited to:
(1) Space for individual and
population growth and for normal
behavior;
50273
(2) Food, water, air, light, minerals, or
other nutritional or physiological
requirements;
(3) Cover or shelter;
(4) Sites for breeding, reproduction, or
rearing (or development) of offspring;
and
(5) Habitats that are protected from
disturbance or are representative of the
historical, geographical, and ecological
distributions of a species.
We derive the specific physical or
biological features essential for
slenderclaw crayfish from studies of this
species’ and similar crayfish species’
habitat, ecology, and life history. The
primary habitat elements that influence
resiliency of the slenderclaw crayfish
include water quantity, water quality,
substrate, interstitial space, and habitat
connectivity. More detail of the habitat
and resource needs are summarized in
the Habitat section of the proposed
listing designation of critical habitat
rule for the slenderclaw crayfish (83 FR
50582; October 9, 2018) and the SSA
report. We use the ADEM water quality
standards for fish and wildlife criteria to
determine the minimum standards of
water quality necessary for the
slenderclaw crayfish. A full description
of the needs of individuals, populations,
and the species is available from the
SSA report; the resource needs of
individuals are summarized below in
Table 1.
TABLE 1—RESOURCE NEEDS FOR SLENDERCLAW CRAYFISH TO COMPLETE EACH LIFE STAGE
Life stage
Resources needed
Fertilized Eggs ................................
Juveniles .........................................
Adults ..............................................
•
•
•
•
•
•
•
•
•
•
•
Female to carry eggs.
Water to oxygenate eggs.
Female to fan eggs to prevent sediment buildup and oxygenate water as needed.
Female to shelter in boulder/cobble substrate and available interstitial space.
Female to carry juveniles in early stage.
Water.
Food (likely aquatic macroinvertebrates).
Boulder/cobble substrate and available interstitial space for shelter.
Water.
Food (likely omnivorous, opportunistic, and generalist feeders).
Boulder/cobble substrate and available interstitial space for shelter.
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Summary of Essential Physical or
Biological Features
In summary, we derive the specific
physical or biological features essential
to the conservation of the slenderclaw
crayfish from studies of this species’
and similar crayfish species’ habitat,
ecology, and life history, as described
above. Additional information can be
found in the SSA report (Service 2019,
entire) available on https://
www.regulations.gov under Docket No.
FWS–R4–ES–2018–0069. We have
determined that the following physical
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or biological features are essential to the
conservation of the slenderclaw
crayfish:
(1) Geomorphically stable, small to
medium, flowing streams:
(a) That are typically 19.8 feet (ft) (6
meters (m)) wide or smaller;
(b) With attributes ranging from:
(i) Streams with predominantly large
boulders and fractured bedrock, with
widths from 16.4 to 19.7 ft (5 to 6 m),
low to no turbidity, and depths up to 2.3
ft (0.7 m), to
(ii) Streams dominated by small
substrate types with a mix of cobble,
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gravel, and sand, with widths of
approximately 9.8 feet (3 m), low to no
turbidity, and depths up to 0.5 feet (0.15
m);
(c) With substrate consisting of
boulder and cobble containing abundant
interstitial spaces for sheltering and
breeding; and
(d) With intact riparian cover to
maintain stream morphology and to
reduce erosion and sediment inputs.
(2) Seasonal water flows, or a
hydrologic flow regime (which includes
the severity, frequency, duration, and
seasonality of discharge over time),
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necessary to maintain benthic habitats
where the species is found and to
maintain connectivity of streams with
the floodplain, allowing the exchange of
nutrients and sediment for maintenance
of the crayfish’s habitat and food
availability.
(3) Appropriate water and sediment
quality (including, but not limited to,
conductivity; hardness; turbidity;
temperature; pH; and minimal levels of
ammonia, heavy metals, pesticides,
animal waste products, and nitrogen,
phosphorus, and potassium fertilizers)
necessary to sustain natural
physiological processes for normal
behavior, growth, and viability of all life
stages.
(4) Prey base of aquatic
macroinvertebrates and detritus. Prey
items may include, but are not limited
to, insect larvae, snails and their eggs,
fish and their eggs, and plant and
animal detritus.
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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 that are essential to the
conservation of the species and which
may require special management
considerations or protection. The
features essential to the conservation of
the slenderclaw crayfish may require
special management considerations or
protections to reduce the following
threats: (1) Impacts from invasive
species, including the nonnative virile
crayfish; (2) nutrient pollution from
agricultural activities that impact water
quantity and quality; (3) significant
alteration of water quality and water
quantity, including conversion of
streams to impounded areas; (4) culvert
and pipe installation that creates
barriers to movement; and (5) other
watershed and floodplain disturbances
that release sediments or nutrients into
the water.
Management activities that could
ameliorate these threats include, but are
not limited to: Control and removal of
introduced invasive species; limiting
the spreading of poultry litter to time
periods of dry, stable weather
conditions; use of best management
practices designed to reduce
sedimentation, erosion, and bank side
destruction; protection of riparian
corridors and retention of sufficient
canopy cover along banks; moderation
of surface and ground water
withdrawals to maintain natural flow
regimes; and reduction of other
watershed and floodplain disturbances
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that release sediments, pollutants, or
nutrients into the water.
Criteria Used To Identify Critical
Habitat
As required by section 4(b)(2) of the
Act, we use the best scientific data
available to designate critical habitat. In
accordance with the Act and our
implementing regulations at 50 CFR
424.12(b), we review available
information pertaining to the habitat
requirements of the species and identify
specific areas within the geographical
area occupied by the species at the time
of listing and any specific areas outside
the geographical area occupied by the
species to be considered for designation
as critical habitat.
The current distribution of the
slenderclaw crayfish is much reduced
from its historical distribution in one
(Short Creek watershed) of the two
populations. The currently occupied
sites in the Short Creek watershed occur
in a single tributary (Shoal Creek), and
one catastrophic event could impact this
entire population. In addition, the
nonnative virile crayfish occupies sites
within the Short Creek watershed,
including the type locality for the
slenderclaw crayfish in Short Creek in
which the slenderclaw crayfish no
longer occurs. We anticipate that
recovery will require continued
protection of existing populations and
habitat, as well as establishing sites in
additional streams that more closely
approximate its historical distribution
in order to ensure there are adequate
numbers of crayfish in stable
populations and that these populations
have multiple sites occurring in at least
two streams within each watershed.
This goal will help ensure that
catastrophic events, such as a chemical
spill, cannot simultaneously affect all
known populations.
Sources of data for this critical habitat
designation include numerous survey
reports on streams throughout the
species’ range and databases maintained
by crayfish experts and universities
(Bouchard and Hobbs 1976, entire;
Bearden 2017, unpublished data;
Schuster 2017, unpublished data; Taylor
2017, unpublished data; Service 2018,
entire). We have also reviewed available
information that pertains to the habitat
requirements of this species. Sources of
information on habitat requirements
include surveys conducted at occupied
sites and published in agency reports,
and data collected during monitoring
efforts.
Areas Occupied at the Time of Listing
For locations within the geographic
area occupied by the species at the time
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of listing, we identified stream channels
that currently support populations of
the slenderclaw crayfish. We defined
‘‘current’’ as stream channels with
observations of the species from 2009 to
the present. Due to the recent breadth
and intensity of survey efforts for the
slenderclaw crayfish throughout the
historical range of the species, it is
reasonable to assume that streams with
no positive surveys since 2009 should
not be considered occupied for the
purpose of our analysis. Within these
areas, we delineated critical habitat unit
boundaries using the following process:
We evaluated habitat suitability of
stream channels within the geographical
area occupied at the time of listing, and
retained for further consideration those
streams that contain one or more of the
physical or biological features to
support life-history functions essential
to conservation of the species. We
refined the starting and ending points of
units by evaluating the presence or
absence of appropriate physical or
biological features. We selected the
headwaters as upstream cutoff points for
each stream and downstream cutoff
points that omit areas that are not
suitable habitat. For example, the
Guntersville Lake Tennessee Valley
Authority project boundary was selected
as an endpoint for one unit, as there was
a change to unsuitable parameters (e.g.,
impounded waters).
Based on this analysis, the following
streams meet criteria for areas occupied
by the species at the time of listing:
Bengis Creek, Scarham Creek, Shoal
Creek, Short Creek, Town Creek, and
Whippoorwill Creek (see Unit
Descriptions, below). This list does not
include all stream segments known to
have been occupied by the species
historically; rather, it includes only the
occupied stream segments within the
historical range that have also retained
one or more of the physical or biological
features that will allow for the
maintenance and expansion of existing
populations.
Areas Outside the Geographical Area
Occupied at the Time of Listing
To consider for designation areas not
occupied by the species at the time of
listing, we must demonstrate that these
areas are essential for the conservation
of the species. To determine if these
areas are essential for the conservation
of the slenderclaw crayfish, we
considered the life history, status,
habitat elements, and conservation
needs of the species such as:
(1) The importance of the stream to
the overall status of the species, the
importance of the stream to the
prevention of extinction, and the
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stream’s contribution to future recovery
of the slenderclaw crayfish;
(2) whether the area is and could be
maintained or restored to contain the
necessary habitat (water quantity,
substrate, interstitial space, and
connectivity) to support the slenderclaw
crayfish;
(3) whether the site provides
connectivity between occupied sites for
genetic exchange;
(4) whether a population of the
species could be reestablished in the
location; and
(5) whether the virile crayfish is
currently present in the stream.
For the one subunit containing areas
outside the geographical area occupied
by the species at the time of listing, we
delineated critical habitat unit
boundaries by evaluating stream
segments not known to have been
occupied at listing (i.e., outside of the
geographical area occupied by the
species) but that are within the
historical range of the species to
determine if they are essential for the
survival and recovery of the species.
Essential areas are those that:
(a) Expand the geographical
distribution within areas not occupied
at the time of listing across the historical
range of the species;
(b) Were determined to be of suitable
habitat and contain the primary habitat
elements (water quantity, substrate,
interstitial space, and connectivity) that
support the viability of the slenderclaw
crayfish; and
(c) Are connected to other occupied
areas, which will enhance genetic
exchange between populations.
Based on this analysis, ScarhamLaurel Creek was identified as meeting
the criteria for areas outside the
geographical area occupied at the time
of listing that are essential for the
conservation of the species (see Subunit
2b unit description below).
General Information on the Maps of the
Critical Habitat Designation
When determining critical habitat
boundaries, we made every effort to
avoid including developed areas such as
lands covered by buildings, pavement,
and other structures because such lands
lack physical or biological features
necessary for slenderclaw crayfish. The
scale of the maps we prepared under the
parameters for publication within the
Code of Federal Regulations may not
reflect the exclusion of such developed
lands. Any such lands inadvertently left
inside critical habitat boundaries shown
on the maps of this final rule have been
excluded by text in the rule and are not
included for designation as critical
habitat. Therefore, a Federal action
involving these lands would not trigger
section 7 consultation under the Act
with respect to critical habitat and the
requirement of no adverse modification
unless the specific action would affect
the physical or biological features in the
adjacent critical habitat.
We are designating critical habitat in
areas within the geographical area
occupied by the species at the time of
listing. We also are designating areas
outside the geographical area occupied
by the species at the time of listing that
were historically occupied but are
presently unoccupied, because we have
determined that such areas are essential
for the conservation of the species (see
description of Subunit 2b below for
explanation).
The two occupied units were
designated based on one or more of the
elements of physical or biological
features being present to support
slenderclaw crayfish life processes.
Some stream segments within the units
50275
contained all of the identified elements
of physical or biological features and
supported multiple life processes. Some
stream segments contained only some
elements of the physical or biological
features necessary to support the
slenderclaw crayfish’s particular use of
that habitat.
The critical habitat designation is
defined by the map or maps, as
modified by any accompanying
regulatory text, presented at the end of
this document in the rule portion. We
include more detailed information on
the boundaries of the critical habitat
designation in the discussion of
individual units below. 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 under Docket No.
FWS–R4–ES–2018–0069, and at the
field office responsible for the
designation (see FOR FURTHER
INFORMATION CONTACT, above).
Final Critical Habitat Designation
We are designating approximately 78
river mi (126 river km) in two units as
critical habitat for the slenderclaw
crayfish. The critical habitat areas,
described below, constitute our current
best assessment of areas that meet the
definition of critical habitat for the
slenderclaw crayfish. The two units are:
(1) Town Creek Unit, and (2) Short
Creek Unit. Unit 2 is subdivided into
two subunits: (2a) Shoal Creek and
Short Creek subunit, and (2b) ScarhamLaurel Creek subunit. Table 2 shows the
name, occupancy of the unit, land
ownership of the riparian areas
surrounding the units, and approximate
river miles of the designated critical
habitat units for the slenderclaw
crayfish.
TABLE 2—DESIGNATED CRITICAL HABITAT UNITS FOR THE SLENDERCLAW CRAYFISH
Stream(s)
Occupied at the time of listing
Ownership
Length of unit
in river miles
(kilometers)
Unit 1—Town Creek
Bengis and Town Creeks .........................................................
Yes ..........................................
Private .....................................
42 (67)
Yes ..........................................
Private .....................................
10 (17)
No ...........................................
.................................................
Private .....................................
.................................................
26 (42)
78 (126)
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Unit 2—Short Creek
Subunit 2a—Shoal Creek and Short Creek:
Scarham, Shoal, Short, and Whippoorwill Creeks ............
Subunit 2b—Scarham-Laurel Creek:
Scarham-Laurel Creek .......................................................
Total ............................................................................
Note: Area sizes 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
slenderclaw crayfish, below.
Unit 1: Town Creek
Unit 1 consists of 41.8 river mi (67.2
river km) of Bengis and Town creeks in
DeKalb County, Alabama. Unit 1
includes stream habitat up to bank full
height, consisting of the headwaters of
Bengis Creek to its confluence with
Town Creek and upstream to the
headwaters of Town Creek. Stream
channels in and lands adjacent to Unit
1 are privately owned except for bridge
crossings and road easements, which are
owned by the State and County. The
slenderclaw crayfish occupies all stream
reaches in this unit, and the unit
currently supports all breeding, feeding,
and sheltering needs essential to the
conservation of the slenderclaw
crayfish.
Special management considerations
or protection may be required for
control and removal of introduced
invasive species, including the
nonnative virile crayfish, which
occupies the boulder and cobble
habitats and interstitial spaces within
these habitats that the slenderclaw
crayfish needs. At present, the virile
crayfish is not present in this unit,
although it has been documented just
outside the watershed boundary.
However, based on future projections in
the SSA report, the virile crayfish is
expected to be present in the Town
Creek watershed within the next 2
years.
In addition, special management
considerations or protection may be
required to address water withdrawals
and drought as well as excess nutrients,
sediment, and pollutants that enter the
streams and serve as indicators of other
forms of pollution, such as bacteria and
toxins. A primary source of these types
of pollution is agricultural runoff.
However, during recent survey efforts
for the slenderclaw crayfish, water
quality analysis found lead
measurements in Bengis Creek that
exceeded the acute and chronic aquatic
life criteria set by EPA and ADEM, and
elevated ammonia concentrations in
Town Creek. Special management or
protection may include moderating
surface and ground water withdrawals,
using best management practices to
reduce sedimentation, and reducing
watershed and floodplain disturbances
that release pollutants and nutrients
into the water.
Unit 2: Short Creek
Subunit 2a—Shoal Creek and Short
Creek: Subunit 2a consists of 10.3 river
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mi (16.6 river km) of Scarham, Shoal,
Short, and Whippoorwill Creeks in
DeKalb and Marshall Counties,
Alabama. Subunit 2a includes stream
habitat up to bank full height, consisting
of the headwaters of Shoal Creek to its
confluence with Whippoorwill Creek,
Whippoorwill Creek to its confluence
with Scarham Creek, Scarham Creek to
its confluence with Short Creek, and
Short Creek downstream to the
Guntersville Lake Tennessee Valley
Authority project boundary. Stream
channels in and lands adjacent to
subunit 2a are privately owned except
for bridge crossings and road easements,
which are owned by the State and
Counties. The slenderclaw crayfish
occupies all stream reaches in this unit,
and the unit currently supports all
breeding, feeding, and sheltering needs
essential to the conservation of the
slenderclaw crayfish.
Special management considerations
or protection may be required for
control and removal of introduced
invasive species, including the virile
crayfish (see Unit 1 discussion, above).
At present, the virile crayfish is present
at sites in Short Creek and Drum Creek
within the Short Creek watershed and
just outside of the unit boundary in
Guntersville Lake. Based on future
projections in the SSA report, the virile
crayfish is expected to be present in
more tributaries within the Short Creek
watershed within the next 2 to 5 years.
In addition, special management
considerations or protection may be
required to address water withdrawals
and drought as well as excess nutrients,
sediment, and pollutants that enter the
streams and serve as indicators of other
forms of pollution such as bacteria and
toxins. A primary source of these types
of pollution is agricultural runoff.
During recent survey efforts for the
slenderclaw crayfish, water quality
analysis indicated that impaired water
quality due to nutrients, bacteria, and
levels of atrazine may be of concern in
the Short Creek watershed. Special
management or protection may include
moderating surface and ground water
withdrawals, using best management
practices to reduce sedimentation, and
reducing watershed and floodplain
disturbances that release pollutants and
nutrients into the water.
Subunit 2b—Scarham-Laurel Creek:
Subunit 2b consists of 25.9 river mi
(41.7 river km) of Scarham-Laurel Creek
in DeKalb and Marshall Counties,
Alabama. Subunit 2b includes stream
habitat up to bank full height, consisting
of the headwaters of Scarham-Laurel
Creek to its confluence with Short
Creek. Stream channels in and lands
adjacent to Subunit 2b are privately
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owned except for bridge crossings and
road easements, which are owned by the
State and Counties. The subunit is
connected to Subunit 2a.
This subunit is unoccupied by the
species but is considered to be essential
for the conservation of the species.
Scarham-Laurel Creek is within the
historical range of the slenderclaw
crayfish but is not within the
geographical range occupied by the
species at the time of listing. The
slenderclaw crayfish has not been
documented at sites in Scarham-Laurel
Creek in over 40 years, and we presume
those historically occupied sites to be
extirpated. Scarham-Laurel Creek is a
small to medium, flowing stream with
substrate consisting of boulder and
cobble containing interstitial spaces for
sheltering and breeding. Although it is
currently unoccupied, this subunit
contains some or all of the physical or
biological features necessary for the
conservation of the slenderclaw
crayfish. This subunit possesses
characteristics as described by physical
or biological feature 1 (geomorphically
stable, small to medium, flowing
streams with substrate consisting of
boulder and cobble and intact riparian
cover); physical or biological feature 2
(seasonal water flows, or a hydrologic
flow regime, necessary to maintain
benthic habitats where the species is
found and to maintain connectivity of
streams); and physical or biological
feature 4 (prey base of aquatic
macroinvertebrates and detritus).
Physical or biological feature 3
(appropriate water and sediment
quality) is degraded in this subunit, and
with appropriate management and
restoration actions, this feature can be
restored.
In terms of water quality, ScarhamLaurel Creek is in restorable condition,
and is currently devoid of the virile
crayfish. Water quality concerns have
been documented within ScarhamLaurel Creek, causing it to be listed on
Alabama’s 303(d) list of impaired waters
for impacts from pesticides, siltation,
ammonia, low dissolved oxygen/organic
enrichment, and pathogens from
agricultural sources in 1998 (ADEM
1996, p. 1). In 2004, Scarham Creek was
removed from the 303(d) list after
TMDLs were established (ADEM 2002,
p. 5); however, recent water quality
analysis indicated that water quality
was impaired within the Short Creek
watershed in which Scarham-Laurel
Creek is located (Bearden et al. 2017, p.
32). When the water quality of ScarhamLaurel Creek is restored, the stream
could be an area for population
expansion within the Short Creek
watershed, in that this subunit is
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connected to the occupied Shoal Creek
and Short Creek subunit, and thereby
provide redundancy needed to support
the species’ recovery. Therefore, we
conclude that this stream is essential for
the conservation of the slenderclaw
crayfish, because it will provide habitat
for population expansion in known
historical habitat that is necessary to
increase viability of the species by
increasing its resiliency, redundancy,
and representation.
Exemptions
Application of Section 4(a)(3) of the Act
Section 4(a)(3)(B)(i) of the Act (16
U.S.C. 1533(a)(3)(B)(i)) provides that the
Secretary shall not designate as critical
habitat any lands or other geographical
areas owned or controlled by the
Department of Defense, or designated
for its use, that are subject to an
integrated natural resources
management plan (INRMP) prepared
under section 101 of the Sikes Act (16
U.S.C. 670a), if the Secretary determines
in writing that such plan provides a
benefit to the species for which critical
habitat is proposed for designation.
There are no Department of Defense
lands with a completed INRMP within
the final critical habitat designation.
Exclusions
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Consideration of Impacts Under Section
4(b)(2) of the Act
Section 4(b)(2) of the Act states that
the Secretary shall designate and make
revisions to critical habitat on the basis
of the best available scientific data after
taking into consideration the economic
impact, national security impact, and
any other relevant impact of specifying
any particular area as critical habitat.
The Secretary may exclude an area from
critical habitat if she determines that the
benefits of such exclusion outweigh the
benefits of specifying such area as part
of the critical habitat, unless she
determines, based on the best scientific
data available, that the failure to
designate such area as critical habitat
will result in the extinction of the
species. In making that determination,
the statute on its face, as well as the
legislative history, are clear that the
Secretary has broad discretion regarding
which factor(s) to use and how much
weight to give to any factor.
Consideration of Economic Impacts
Section 4(b)(2) of the Act and its
implementing regulations require that
we consider the economic impact that
may result from a designation of critical
habitat. In order to consider economic
impacts, we prepared an incremental
effects memorandum (IEM) and
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screening analysis which together with
our narrative and interpretation of
effects we consider our draft economic
analysis (DEA) of the proposed critical
habitat designation and related factors
(IEc 2018, entire). The analysis, dated
June 29, 2018, addressed probable
economic impacts of critical habitat
designation for the slenderclaw crayfish.
The DEA was made available for public
review from October 9, 2018, through
December 10, 2018 (Industrial
Economics, Inc. (IEc) 2018, entire), but
we did not receive any comments on the
draft DEA. Additional information
relevant to the probable incremental
economic impacts of critical habitat
designation for the slenderclaw crayfish
is summarized below and available in
the screening analysis for the
slenderclaw crayfish (IEc 2018, entire),
available at https://www.regulations.gov.
The final critical habitat designation
for the slenderclaw crayfish totals
approximately 78 river mi (126 river
km), which includes both occupied and
unoccupied streams. This final critical
habitat designation is likely to result,
annually, in a maximum of three
informal section 7 consultations and
five technical assistance efforts at a total
incremental cost of less than $10,000
per year. Within the occupied streams,
any actions that may affect the species
would likely also affect critical habitat,
and it is unlikely that any additional
conservation efforts would be required
to address the adverse modification
standard over and above those
recommended as necessary to avoid
jeopardizing the continued existence of
the species. Within all unoccupied
critical habitat, the Service will consult
with Federal agencies on any projects
that occur within the hydrologic unit
code (HUC) 12-digit watershed
boundaries, due to overlap with the
ranges of other listed species such as
Indiana bat (Myotis sodalis), gray bat
(Myotis grisescens), northern long-eared
bat (Myotis septentrionalis), harperella
(Ptilimnium nodosum), and green
pitcher-plant (Sarracenia oreophila) in
these HUCs. In addition, all of the HUC
12-digit watershed boundaries
containing unoccupied habitat are
within the HUC 12-digit range of
watersheds occupied by slenderclaw
crayfish. Thus, no incremental project
modifications resulting solely from the
presence of unoccupied critical habitat
are anticipated. Therefore, the only
additional costs that are expected in all
of the critical habitat designation are
administrative costs, due to the fact that
this additional analysis will require
time and resources by both the Federal
action agency and the Service.
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Exclusions Based on Economic Impacts
As discussed above, the Service
considered the economic impacts of the
critical habitat designation and the
Secretary is not exercising her
discretion to exclude any areas from this
designation of critical habitat for the
slenderclaw crayfish based on economic
impacts. A copy of the IEM and
screening analysis with supporting
documents may be obtained by
contacting the Alabama Ecological
Services Field Office (see ADDRESSES) or
by downloading from the internet at
https://www.regulations.gov.
Exclusions Based on Impacts on
National Security and Homeland
Security
Section 4(a)(3)(B)(i) of the Act may
not cover all Department of Defense
(DoD) lands or areas that pose potential
national-security concerns (e.g., a DoD
installation that is in the process of
revising its INRMP for a newly listed
species or a species previously not
covered). If a particular area is not
covered under section 4(a)(3)(B)(i),
national-security or homeland-security
concerns are not a factor in the process
of determining what areas meet the
definition of ‘‘critical habitat.’’
Nevertheless, when designating critical
habitat under section 4(b)(2) of the Act,
the Service must consider impacts on
national security, including homeland
security, on lands or areas not covered
by section 4(a)(3)(B)(i) of the Act.
Accordingly, we will always consider
for exclusion from the designation areas
for which DoD, Department of
Homeland Security (DHS), or another
Federal agency has requested exclusion
based on an assertion of nationalsecurity or homeland-security concerns.
However, no lands within the
designation of critical habitat for
slenderclaw crayfish are owned or
managed by DoD or DHS. Consequently,
the Secretary is not exercising her
discretion to exclude any areas from the
final designation based on impacts on
national security.
Exclusions Based on Other Relevant
Impacts
Under section 4(b)(2) of the Act, we
consider any other relevant impacts, in
addition to economic impacts and
impacts on national security. We
consider a number of factors including
whether there are permitted
conservation plans covering the species
in the area, such as habitat conservation
plans, safe harbor agreements, or
candidate conservation agreements with
assurances, or whether there are nonpermitted conservation agreements and
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partnerships that would be encouraged
by designation of, or exclusion from,
critical habitat. In addition, we look at
the existence of Tribal conservation
plans and partnerships and consider the
government-to-government relationship
of the United States with Tribal entities.
We also consider any social impacts that
might occur because of the designation.
In preparing this final rule, we have
determined that there are currently no
permitted conservation plans or other
non-permitted conservation agreements
or partnerships for the slenderclaw
crayfish, and the final critical habitat
designation does not include any Tribal
lands or trust resources. We anticipate
no impact on Tribal lands, partnerships,
permitted or non-permitted plans, or
agreements from this critical habitat
designation. Accordingly, the Secretary
is not exercising her discretion to
exclude any areas from the final
designation based on other relevant
impacts.
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Effects of Critical Habitat Designation
Section 7 Consultation
Section 7(a) of the Act requires
Federal agencies to evaluate their
actions with respect to critical habitat of
any species that is listed as an
endangered or threatened species.
Regulations implementing this
interagency cooperation provision of the
Act are codified at 50 CFR part 402.
Section 7(a)(2) of the Act requires
Federal agencies, including the Service,
to ensure that any action they fund,
authorize, or carry out is not likely to
result in the destruction or adverse
modification of designated critical
habitat of any listed 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 result in the destruction or
adverse modification of proposed
critical habitat.
We published a final regulation with
a revised definition of destruction or
adverse modification on August 27,
2019 (84 FR 45020). Destruction or
adverse modification means a direct or
indirect alteration that appreciably
diminishes the value of critical habitat
as a whole for the conservation of a
listed species. If a Federal action may
affect a listed species’ 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
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U.S.C. 1251 et seq.) or a permit from the
Service under section 10 of the Act) or
that involve some other Federal action
(such as funding from the Federal
Highway Administration, Federal
Aviation Administration, or the Federal
Emergency Management Agency).
Federal actions not affecting listed
species or critical habitat—and actions
on State, Tribal, local, or private lands
that are not federally funded,
authorized, or carried out by a Federal
agency—do not require section 7
consultation.
Compliance with the requirements of
section 7(a)(2) of the Act is documented
through our issuance of:
(1) A concurrence letter for Federal
actions that may affect, but are not
likely to adversely affect, critical
habitat; or
(2) A biological opinion for Federal
actions that may affect, and are likely to
adversely affect, critical habitat.
When we issue a biological opinion
concluding that a project is likely to
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 destruction or adverse
modification of critical habitat. We
define ‘‘reasonable and prudent
alternatives’’ (50 CFR 402.02) as
alternative actions identified during
consultation that:
(1) Can be implemented in a manner
consistent with the intended purpose of
the action,
(2) Can be implemented consistent
with the scope of the Federal agency’s
legal authority and jurisdiction,
(3) Are economically and
technologically feasible, and
(4) Would, in the Service Director’s
opinion, avoid the likelihood of
destroying or adversely modifying
critical habitat.
Reasonable and prudent alternatives
can vary from slight project
modifications to extensive redesign or
relocation of the project. Costs
associated with implementing a
reasonable and prudent alternative are
similarly variable.
Regulations at 50 CFR 402.16 set forth
requirements for Federal agencies to
reinitiate formal consultation on
previously reviewed actions. These
requirements apply when the Federal
agency has retained discretionary
involvement or control over the action
(or the agency’s discretionary
involvement or control is authorized by
law) and, subsequent to the previous
consultation, we have listed a new
species or designated critical habitat
that may be affected by the Federal
action, or the action has been modified
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in a manner that affects the species or
critical habitat in a way not considered
in the previous consultation. In such
situations, Federal agencies sometimes
may need to request reinitiation of
consultation with us, but the regulations
also specify some exceptions to the
requirement to reinitiate consultation on
specific land management plans after
subsequently listing a new species or
designating new critical habitat. See the
regulations for a description of those
exceptions.
Application of the ‘‘Adverse
Modification’’ Standard
The key factor related to the
destruction or adverse modification
determination is whether
implementation of the proposed Federal
action directly or indirectly alters the
designated critical habitat in a way that
appreciably diminishes the value of the
critical habitat as a whole for the
conservation of the listed species. As
discussed above, the role of critical
habitat is to support physical or
biological features essential to the
conservation of a listed species and
provide for the conservation of the
species.
Section 4(b)(8) of the Act requires us
to briefly evaluate and describe, in any
proposed or final regulation that
designates critical habitat, activities
involving a Federal action that may
violate section 7(a)(2) of the Act by
destroying or adversely modifying such
habitat, or that may be affected by such
designation.
Activities that the Services may find
are likely to destroy or adversely modify
critical habitat, during a consultation
under section 7(a)(2) of the Act, include,
but are not limited to:
(1) Actions that would alter the
minimum flow or the existing flow
regime. Such activities could include,
but are not limited to, impoundment,
channelization, water diversion, and
water withdrawal. These activities
could eliminate or reduce the habitat
necessary for the growth and
reproduction of the slenderclaw crayfish
by decreasing or altering seasonal flows
to levels that would adversely affect the
species’ ability to complete its life cycle.
(2) Actions that would significantly
alter water chemistry or quality. Such
activities could include, but are not
limited to, release of chemicals
(including pharmaceuticals, metals, and
salts) or biological pollutants into the
surface water or connected groundwater
at a point source or by dispersed release
(non-point source). These activities
could alter water conditions to levels
that are beyond the tolerances of the
slenderclaw crayfish and result in direct
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or cumulative adverse effects to these
individuals and their life cycles.
(3) Actions that would significantly
increase sediment deposition within the
stream channel. Such activities could
include, but are not limited to, excessive
sedimentation from livestock grazing,
road construction, channel alteration,
poor forestry management, off-road
vehicle use, and other watershed and
floodplain disturbances. These activities
could eliminate or reduce the habitat
necessary for the growth and
reproduction of the slenderclaw crayfish
by increasing the sediment deposition to
levels that would adversely affect the
species’ ability to complete its life cycle.
(4) Actions that would significantly
increase eutrophic conditions. Such
activities could include, but are not
limited to, release of nutrients into the
surface water or connected groundwater
at a point source or by dispersed release
(non-point source). These activities can
result in excessive nutrients and algae
filling streams and reducing habitat for
the slenderclaw crayfish, degrading
water quality from excessive nutrients
and during algae decay, and decreasing
oxygen levels to levels below the
tolerances of the slenderclaw crayfish.
(5) Actions that would significantly
alter channel morphology or geometry
or decrease connectivity. Such activities
could include, but are not limited to,
channelization, impoundment, road and
bridge construction, mining, dredging,
and destruction of riparian vegetation.
These activities may lead to changes in
water flows and levels that would
degrade or eliminate the slenderclaw
crayfish and its habitats. These actions
can also lead to increased sedimentation
and degradation in water quality to
levels that are beyond the tolerances of
the slenderclaw crayfish.
(6) Actions that result in the
introduction, spread, or augmentation of
nonnative aquatic species in occupied
stream segments, or in stream segments
that are hydrologically connected to
occupied stream segments, or
introduction of other species that
compete with or prey on the
slenderclaw crayfish. Possible actions
could include, but are not limited to,
stocking of nonnative crayfishes and
fishes, stocking of sport fish, or other
related actions. These activities can
introduce parasites or disease; result in
direct predation or direct competition;
or affect the growth, reproduction, and
survival of the slenderclaw crayfish.
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Required Determinations
Regulatory Planning and Review
(Executive Orders 12866 and 13563)
Executive Order 12866 provides that
the Office of Information and Regulatory
Affairs in the Office of Management and
Budget (OMB) 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
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50279
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, are not
required to evaluate the potential
impacts to indirectly regulated entities.
The regulatory mechanism through
which critical habitat protections are
realized is section 7 of the Act, which
requires Federal agencies, in
consultation with the Service, to ensure
that any action authorized, funded, or
carried out by the agency is not likely
to destroy or adversely modify critical
habitat. Therefore, under section 7, only
Federal action agencies are directly
subject to the specific regulatory
requirement (avoiding destruction and
adverse modification) imposed by
critical habitat designation.
Consequently, it is our position that
only Federal action agencies would be
directly regulated by this designation.
There is no requirement under RFA to
evaluate the potential impacts to entities
not directly regulated. Moreover,
Federal agencies are not small entities.
Therefore, because no small entities
would be directly regulated by this
rulemaking, the Service certifies that the
final critical habitat designation will not
have a significant economic impact on
a substantial number of small entities.
During the development of this final
rule we reviewed and evaluated all
information submitted during the
comment period that may pertain to our
consideration of the probable
incremental economic impacts of this
critical habitat designation. Based on
this information, we affirm our
certification that this final critical
habitat designation will not have a
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significant economic impact on a
substantial number of small entities,
and a 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. OMB
has provided guidance for
implementing this Executive Order that
outlines nine outcomes that may
constitute ‘‘a significant adverse effect’’
when compared to not taking the
regulatory action under consideration.
The economic analysis finds that none
of these criteria are relevant to this
analysis. Thus, based on information in
the economic analysis, energy-related
impacts associated with slenderclaw
crayfish conservation activities within
critical habitat are not expected. As
such, the designation of critical habitat
is not expected to significantly affect
energy supplies, distribution, or use.
Therefore, this action is not a significant
energy action, and no Statement of
Energy Effects is required.
Unfunded Mandates Reform Act (2
U.S.C. 1501 et seq.)
In accordance with the Unfunded
Mandates Reform Act (2 U.S.C. 1501 et
seq.), we make the following findings:
(1) This rule 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,
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16:25 Sep 07, 2021
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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 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 conclude that this rule would
not significantly or uniquely affect small
governments because the lands within
and adjacent to the streams being
designated as critical habitat are owned
by private landowners. These
government entities do not fit the
definition of ‘‘small governmental
jurisdiction.’’ Consequently, we
conclude that the critical habitat
designation would not significantly or
uniquely affect small government
entities. As such, a Small Government
Agency Plan is not required.
Takings—Executive Order 12630
In accordance with E.O. 12630
(Government Actions and Interference
with Constitutionally Protected Private
Property Rights), we have analyzed the
potential takings implications of
designating critical habitat for
slenderclaw crayfish in a takings
implications assessment. The Act does
not authorize the Service to regulate
private actions on private lands or
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Frm 00068
Fmt 4700
Sfmt 4700
confiscate private property as a result of
critical habitat designation. Designation
of critical habitat does not affect land
ownership, or establish any closures, or
restrictions on use of or access to the
designated areas. Furthermore, the
designation of critical habitat does not
affect landowner actions that do not
require Federal funding or permits, nor
does it preclude development of habitat
conservation programs or issuance of
incidental take permits to permit actions
that do require Federal funding or
permits to go forward. However, Federal
agencies are prohibited from carrying
out, funding, or authorizing actions that
would destroy or adversely modify
critical habitat. A takings implications
assessment has been completed and
concludes that this designation of
critical habitat for slenderclaw crayfish
does not pose significant takings
implications for lands within or affected
by the designation.
Federalism—Executive Order 13132
In accordance with E.O. 13132
(Federalism), this rule does not have
significant federalism effects. A
federalism summary impact statement is
not required. In keeping with
Department of the Interior and
Department of Commerce policy, we
requested information from, and
coordinated development of the
proposed critical habitat designation
with, the appropriate State resource
agency in Alabama. We did not receive
comments from Alabama. 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 State, or on the relationship
between the National Government and
the State, or on the distribution of
powers and responsibilities among the
various levels of government. The
designation may have some benefit to
these governments because the areas
that contain the features essential to the
conservation of the species are more
clearly defined, and the physical or
biological features of the habitat
necessary to the conservation of the
species are specifically identified. This
information does not alter where and
what federally sponsored activities may
occur. However, it may assist these local
governments in long-range planning
(because these local governments no
longer have to wait for case-by-case
section 7 consultations to occur).
Where State and local governments
require approval or authorization from a
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Federal Register / Vol. 86, No. 171 / Wednesday, September 8, 2021 / Rules and Regulations
Federal agency for actions that may
affect critical habitat, consultation
under section 7(a)(2) of the Act would
be required. While non-Federal entities
that receive Federal funding, assistance,
or permits, or that otherwise require
approval or authorization from a Federal
agency for an action, may be indirectly
impacted by the designation of critical
habitat, the legally binding duty to
avoid destruction or adverse
modification of critical habitat rests
squarely on the Federal agency.
Civil Justice Reform—Executive Order
12988
In accordance with Executive Order
12988 (Civil Justice Reform), the Office
of the Solicitor has determined that the
rule does not unduly burden the judicial
system and that it meets the
requirements of sections 3(a) and 3(b)(2)
of the order. We are designating critical
habitat in accordance with the
provisions of the Act. To assist the
public in understanding the habitat
needs of the species, this rule identifies
the elements of physical or biological
features essential to the conservation of
the species. The designated areas of
critical habitat are presented on maps,
and the rule provides several options for
the interested public to obtain more
detailed location information, if desired.
Paperwork Reduction Act of 1995 (44
U.S.C. 3501 et seq.)
This rule does not contain any new
collections of information that require
approval by the Office of Management
and Budget under the Paperwork
Reduction Act of 1995. 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.)
We have determined that
environmental assessments and
environmental impact statements, as
Common name
*
CRUSTACEANS
jbell on DSKJLSW7X2PROD with RULES
*
Crayfish, slenderclaw ......
*
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.
Scientific name
*
Where listed
*
*
*
Cambarus cracens .........
*
3. Amend § 17.95(h) by adding an
entry for ‘‘Slenderclaw Crayfish
(Cambarus cracens)’’ after the entry for
16:25 Sep 07, 2021
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*
Fmt 4700
A complete list of references cited in
the SSA report and this rulemaking is
available on the internet at https://
www.regulations.gov under Docket No.
FWS–R4–ES–2018–0069 and upon
request from the Alabama Ecological
Services Field Office (see FOR FURTHER
INFORMATION CONTACT).
Authors
The primary authors of this final rule
are the staff members of the U.S. Fish
and Wildlife Service Species
Assessment Team and Alabama
Ecological Services Field Office.
List of Subjects in 50 CFR Part 17
Endangered and threatened species,
Exports, Imports, Reporting and
recordkeeping requirements,
Transportation.
Regulation Promulgation
Accordingly, we amend part 17,
subchapter B of chapter I, title 50 of the
Code of Federal Regulations, as set forth
below:
PART 17—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; 1531–
1544; and 4201–4245, unless otherwise
noted.
2. Amend § 17.11(h) by adding an
entry for ‘‘Crayfish, slenderclaw’’ to the
List of Endangered and Threatened
Wildlife in alphabetical order under
Crustaceans to read as follows:
■
§ 17.11 Endangered and threatened
wildlife.
*
*
*
(h) * * *
*
*
Wherever found ..............
Frm 00069
References Cited
*
*
E
*
*
*
*
86 FR [INSERT FEDERAL REGISTER PAGE
WHERE THE DOCUMENT BEGINS], 9/8/21; 50
CFR 17.95(h)CH.
*
Sfmt 4700
*
Listing citations and applicable rules
‘‘Pecos Amphipod (Gammarus pecos)’’
to read as follows:
PO 00000
We have identified no Tribal interests
that will be affected by this final
rulemaking.
Status
*
*
■
VerDate Sep<11>2014
defined under the authority of the
National Environmental Policy Act
(NEPA), need not be prepared in
connection with listing a species as an
endangered or threatened species under
the Act. We published a notice outlining
our reasons for this determination in the
Federal Register on October 25, 1983
(48 FR 49244).
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 NEPA 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)).
*
§ 17.95
*
Critical habitat—fish and wildlife.
*
*
(h) * * *
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Federal Register / Vol. 86, No. 171 / Wednesday, September 8, 2021 / Rules and Regulations
jbell on DSKJLSW7X2PROD with RULES
Slenderclaw Crayfish (Cambarus
cracens)
(1) Critical habitat units are depicted
for DeKalb and Marshall Counties,
Alabama, on the maps in this entry.
(2) Within these areas, the physical or
biological features essential to the
conservation of the slenderclaw crayfish
consist of the following components:
(i) Geomorphically stable, small to
medium, flowing streams:
(A) That are typically 19.8 feet (ft) (6
meters (m)) wide or smaller;
(B) With attributes ranging from:
(1) Streams with predominantly large
boulders and fractured bedrock, with
widths from 16.4 to 19.7 ft (5 to 6 m),
low to no turbidity, and depths up to 2.3
ft (0.7 m); to
(2) Streams dominated by small
substrate types with a mix of cobble,
gravel, and sand, with widths of
approximately 9.8 feet (3 m), low to no
turbidity, and depths up to 0.5 feet (0.15
m);
(C) With substrate consisting of
boulder and cobble containing abundant
interstitial spaces for sheltering and
breeding; and
(D) With intact riparian cover to
maintain stream morphology and to
reduce erosion and sediment inputs.
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16:25 Sep 07, 2021
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(ii) Seasonal water flows, or a
hydrologic flow regime (which includes
the severity, frequency, duration, and
seasonality of discharge over time),
necessary to maintain benthic habitats
where the species is found and to
maintain connectivity of streams with
the floodplain, allowing the exchange of
nutrients and sediment for maintenance
of the crayfish’s habitat and food
availability.
(iii) Appropriate water and sediment
quality (including, but not limited to,
conductivity; hardness; turbidity;
temperature; pH; and minimal levels of
ammonia, heavy metals, pesticides,
animal waste products, and nitrogen,
phosphorus, and potassium fertilizers)
necessary to sustain natural
physiological processes for normal
behavior, growth, and viability of all life
stages.
(iv) Prey base of aquatic
macroinvertebrates and detritus. Prey
items may include, but are not limited
to, insect larvae, snails and their eggs,
fish and their eggs, and plant and
animal detritus.
(3) Critical habitat does not include
manmade structures (such as buildings,
aqueducts, runways, roads, and other
paved areas) and the land on which they
PO 00000
Frm 00070
Fmt 4700
Sfmt 4700
are located existing within the legal
boundaries on October 8, 2021.
(4) Data layers defining map units
were created using Universal Transverse
Mercator (UTM) Zone 16N coordinates
and species’ occurrence data. The
hydrologic data used in the maps were
extracted from U.S. Geological Survey
National Hydrography Dataset High
Resolution (1:24,000 scale) using
Geographic Coordinate System North
American 1983 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
https://www.regulations.gov under
Docket No. FWS–R4–ES–2018–0069 and
at the field office responsible for this
designation. You may obtain field office
location information by contacting one
of the Service regional offices, the
addresses of which are listed at 50 CFR
2.2.
(5) Note: Index map follows:
BILLING CODE 4333–15–P
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50283
Slenderclaw Crayfish ( Cambarus cracens}
Critical Habitat Index Map
Marsh.all and DeKalb Counties, Alabama
~ Slenderclaw
TENNESSEE
Crayfish Critical Habitat
Rivers and Streams
Lakes and Ponds
~
US Interstates
~
State Boundary
GJ
County Boundary
ALABAMA
1:335,000
0 1.5 3
6
9
12
--==::::::.--c::==::::::.--Mll&s
2.5
5
10
15
jbell on DSKJLSW7X2PROD with RULES
--===---c::::==::::iKilometers
(6) Unit 1: Town Creek, DeKalb
County, Alabama.
(i) This unit consists of 41.8 river
miles (67.2 river kilometers) of occupied
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16:25 Sep 07, 2021
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FLORIDA
habitat in Bengis and Town Creeks. Unit
1 includes stream habitat up to bank full
height consisting of the headwaters of
Bengis Creek to its confluence with
PO 00000
Frm 00071
Fmt 4700
Sfmt 4700
Town Creek and upstream to the
headwaters of Town Creek.
(ii) Map of Unit 1 follows:
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08SER1
ER08SE21.000
0
50284
Federal Register / Vol. 86, No. 171 / Wednesday, September 8, 2021 / Rules and Regulations
Unit 1 Town Creek Critical Habitat for
Slenderclaw Crayf1Sh·(Cambarus .cmcens)
Oet2014
16:25 Sep 07, 2021
Jkt 253001
habitat in Scarham, Shoal, Short, and
Whippoorwill Creeks. Subunit 2a
includes stream habitat up to bank full
height consisting of the headwaters of
Shoal Creek to its confluence with
Whippoorwill Creek, Whippoorwill
Creek to its confluence with Scarham
PO 00000
Frm 00072
Fmt 4700
Sfmt 4700
Creek, Scarham Creek to its confluence
with Short Creek, and Short Creek to its
downstream extent to the Guntersville
Lake Tennessee Valley Authority project
boundary.
(B) Map of Subunit 2a follows:
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08SER1
ER08SE21.001
jbell on DSKJLSW7X2PROD with RULES
(7) Unit 2: Short Creek, DeKalb and
Marshall Counties, Alabama.
(i) Subunit 2a: Shoal Creek and Short
Creek, DeKalb and Marshall Counties,
Alabama.
(A) This subunit consists of 10.3 river
miles (16.6 river kilometers) of occupied
Federal Register / Vol. 86, No. 171 / Wednesday, September 8, 2021 / Rules and Regulations
50285
Subunit 2a: Shoal Creek and Short Creek Critical Habitat for
Slenderclaw Crayfish (Cambarus cracens)
DeKalb and Marshall. Counties, Ataba,na
~ Slenderclaw
Crayfish Critical Habitat
TENNESSEE
Rivers and Streams
lakes and Ponds
~ US tntersta~s
•
GJ
Cities
county Boundary
cJ State Boundary
1:200,000
0
1
2
4
8
6
--==::::::a--c:::===---.Miles
0 1 2
4
6
8
-==---==:::::1-•Kllometers
VerDate Sep<11>2014
16:25 Sep 07, 2021
Jkt 253001
Creek. Subunit 2b includes stream
habitat up to bank full height consisting
of the headwaters of Scarham-Laurel
Creek to its confluence with
Whippoorwill Creek. This subunit is a
small to medium, flowing stream with
PO 00000
Frm 00073
Fmt 4700
Sfmt 4700
substrate consisting of boulder and
cobble containing interstitial spaces for
sheltering and breeding and connected
to the occupied subunit 2a.
(B) Map of Subunit 2b follows:
E:\FR\FM\08SER1.SGM
08SER1
ER08SE21.002
jbell on DSKJLSW7X2PROD with RULES
(ii) Subunit 2b: Scarham-Laurel Creek,
DeKalb and Marshall Counties,
Alabama.
(A) This subunit consists of 25.9 river
miles (41.7 river kilometers) of
unoccupied habitat in Scarham-Laurel
50286
Federal Register / Vol. 86, No. 171 / Wednesday, September 8, 2021 / Rules and Regulations
Subunit 2b: Scarham-Laurel Creek Critical Habitat for
Slenderclaw Crayfish (Cambarus cracens)
DeKalb and Marshall Counties, Alabama
«l\,,M Slenderclaw Crayfish Critical Habitat
Rivers and Streams
TBINESSEE
lakes and Ponds
,-.....___, US Interstates
•
GJ
c:J
Cities
County Boundary
1:200,000
State Boundary
0
1
2
A
s
6
4
--=:::::i---======---Miles
0 1 2
4
6
llimingbam
•
S
VerDate Sep<11>2014
16:25 Sep 07, 2021
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Frm 00074
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-::::11--====--Kl!Ometers
Federal Register / Vol. 86, No. 171 / Wednesday, September 8, 2021 / Rules and Regulations
*
*
*
*
*
Martha Williams,
Principal Deputy Director, Exercising the
Delegated Authority of the Director, U.S. Fish
and Wildlife Service.
[FR Doc. 2021–19093 Filed 9–7–21; 8:45 am]
BILLING CODE 4333–15–C
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric
Administration
50 CFR Part 622
[Docket Nos. 090206140–91081–03,
120405260–4258–02, and 200706–0181;
RTID 0648–XB391]
Revised Reporting Requirements Due
to Catastrophic Conditions for Federal
Seafood Dealers, Individual Fishing
Quota Dealers, and Charter Vessels
and Headboats in Portions of
Louisiana
National Marine Fisheries
Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA),
Commerce.
ACTION: Temporary rule; determination
of catastrophic conditions.
AGENCY:
In accordance with the
regulations implementing the individual
fishing quota (IFQ), Federal dealer
reporting, and Federal charter vessel
and headboat (for-hire vessel) reporting
programs specific to the reef fish fishery
in the Gulf of Mexico (Gulf) and the
coastal migratory pelagic (CMP)
fisheries in the Gulf, the Regional
Administrator (RA), Southeast Region,
NMFS, has determined that Hurricane
Ida has caused catastrophic conditions
in the Gulf for certain Louisiana
parishes. This temporary rule authorizes
any dealer in the affected area described
in this temporary rule who does not
have access to electronic reporting to
delay reporting of trip tickets to NMFS
and authorizes IFQ participants within
the affected area to use paper-based
forms, if necessary, for basic required
administrative functions, e.g., landing
transactions. This rule also authorizes
any Federal for-hire owner or operator
in the affected area described in this
temporary rule who does not have
access to electronic reporting to delay
reporting of logbook records to NMFS.
This temporary rule is intended to
facilitate continuation of IFQ, dealer,
and Federal for-hire reporting
operations during the period of
catastrophic conditions.
DATES: The RA is authorizing Federal
dealers, IFQ participants, and Federal
for-hire operators in the affected area to
jbell on DSKJLSW7X2PROD with RULES
SUMMARY:
VerDate Sep<11>2014
17:02 Sep 07, 2021
Jkt 253001
use revised reporting methods from
September 2, 2021, through October 8,
2021.
FOR FURTHER INFORMATION CONTACT: IFQ
Customer Service, telephone: 866–425–
7627, fax: 727–824–5308, email:
nmfs.ser.catchshare@noaa.gov. For
Federal dealer reporting, Fisheries
Monitoring Branch, telephone: 305–
361–4581. For Federal for-hire
reporting, Southeast For-Hire Integrated
Electronic Reporting program,
telephone: 833–707–1632.
SUPPLEMENTARY INFORMATION: The reef
fish fishery of the Gulf is managed
under the Fishery Management Plan
(FMP) for Reef Fish Resources of the
Gulf of Mexico (Reef Fish FMP),
prepared by the Gulf of Mexico Fishery
Management Council (Gulf Council).
The CMP fishery is managed under the
FMP for CMP Resources in the Gulf of
Mexico and Atlantic Region (CMP
FMP), prepared by the Gulf Council and
South Atlantic Fishery Management
Council. Both FMPs are implemented
through regulations at 50 CFR part 622
under the authority of the MagnusonStevens Fishery Conservation and
Management Act (Magnuson-Stevens
Act).
Amendment 26 to the Reef Fish FMP
established an IFQ program for the
commercial red snapper component of
the Gulf reef fish fishery (71 FR 67447;
November 22, 2006). Amendment 29 to
the Reef Fish FMP established an IFQ
program for the commercial grouper and
tilefish components of the Gulf reef fish
fishery (74 FR 44732; August 31, 2009).
Regulations implementing these IFQ
programs (50 CFR 622.21 and 622.22)
require that IFQ participants have
access to a computer and the internet
and that they conduct administrative
functions associated with the IFQ
program, e.g., landing transactions,
online. However, these regulations also
specify that during catastrophic
conditions, as determined by the RA,
the RA may authorize IFQ participants
to use paper-based forms to complete
administrative functions for the
duration of the catastrophic conditions.
The RA must determine that
catastrophic conditions exist, specify
the duration of the catastrophic
conditions, and specify which
participants or geographic areas are
deemed affected.
The Generic Dealer Amendment
established Federal dealer reporting
requirements for federally permitted
dealers in the Gulf and South Atlantic
(79 FR 19490; April 9, 2014). The Gulf
For-Hire Reporting Amendment
implemented reporting requirements for
Gulf reef fish and CMP owners and
operators of for-hire vessels (85 FR
PO 00000
Frm 00075
Fmt 4700
Sfmt 4700
50287
44005; July 21, 2020). Regulations
implementing these dealer reporting
requirements (50 CFR 622.5) and forhire vessel reporting requirements (50
CFR 622.26 and 622.374) state that
dealers must submit electronic reports
and that Gulf reef fish and CMP vessels
with the applicable charter vessel/
headboat permit must submit electronic
fishing reports of all fish harvested and
discarded. However, these regulations
also specify that during catastrophic
conditions, as determined by the RA,
the RA may waive or modify the
reporting time requirements for dealers
and for-hire vessels for the duration of
the catastrophic conditions.
Hurricane Ida made landfall in the
U.S. near Port Fourchon, Louisiana, in
the Gulf as a Category 4 hurricane on
August 29, 2021. Strong winds and
flooding from this hurricane impacted
communities throughout coastal
Louisiana. This resulted in power
outages and damage to homes,
businesses, and infrastructure. As a
result, the RA has determined that
catastrophic conditions exist in the Gulf
for the Louisiana parishes of Saint
Tammany, Orleans, Saint Bernard,
Plaquemines, Jefferson, Saint Charles,
Lafourche, Terrebonne, Saint Mary,
Iberia, Vermilion, and Cameron.
Through this temporary rule, the RA
is authorizing Federal dealers and
Federal for-hire operators in these
affected areas to delay reporting of trip
tickets and for-hire logbooks to NMFS,
and authorizing IFQ participants in this
affected area to use paper-based forms,
from September 2, 2021, through
October 8, 2021. NMFS will provide
additional notification to affected
dealers via NOAA Weather Radio,
Fishery Bulletins, and other appropriate
means. NMFS will continue to monitor
and re-evaluate the areas and duration
of the catastrophic conditions, as
necessary.
Dealers may delay electronic
reporting of trip tickets to NMFS during
catastrophic conditions. Dealers are to
report all landings to NMFS as soon as
possible. Assistance for Federal dealers
in affected area is available from the
NMFS Fisheries Monitoring Branch at
1–305–361–4581. NMFS previously
provided IFQ dealers with the necessary
paper forms and instructions for
submission in the event of catastrophic
conditions. Paper forms are also
available from the RA upon request. The
electronic systems for submitting
information to NMFS will continue to
be available to all dealers, and dealers
in the affected area are encouraged to
continue using these systems, if
accessible.
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Agencies
[Federal Register Volume 86, Number 171 (Wednesday, September 8, 2021)]
[Rules and Regulations]
[Pages 50264-50287]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-19093]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
[Docket No. FWS-R4-ES-2018-0069; FF09E21000 FXES11110900000 212]
RIN 1018-BD36
Endangered and Threatened Wildlife and Plants; Endangered Species
Status for Slenderclaw Crayfish and Designation of Critical Habitat
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: We, the U.S. Fish and Wildlife Service (Service), determine
endangered species status under the Endangered Species Act of 1973, as
amended (Act), for the slenderclaw crayfish (Cambarus cracens), a
cryptic freshwater crustacean that is endemic to streams on Sand
Mountain within the Tennessee River Basin in DeKalb and Marshall
Counties, Alabama. This rule adds this species to the Federal List of
Endangered and Threatened Wildlife. In addition, we designate
approximately 78 river miles (126 river kilometers) in DeKalb and
Marshall Counties, Alabama, as critical habitat for the species under
the Act.
DATES: This rule is effective October 8, 2021.
ADDRESSES: This final rule is available on the internet at https://www.regulations.gov under Docket No. FWS-R4-ES-2018-0069 and at https://www.fws.gov/southeast/. Comments and materials we received, as well as
supporting documentation we used in preparing this rule, are available
for public inspection at https://www.regulations.gov under Docket No.
FWS-R4-ES-2018-0069. Comments, materials, and documentation that we
considered in this rulemaking will be available by appointment, during
normal business hours at: U.S. Fish and Wildlife Service, Alabama
Ecological Services Field Office (see For Further Information Contact).
The coordinates or plot points or both from which the maps are
generated are included in the administrative record for this critical
habitat designation and are available at https://www.regulations.gov
under Docket No. FWS-R4-ES-2018-0069, at https://www.fws.gov/southeast/
, and at the Alabama Ecological Services Field Office (see For Further
Information Contact). Any additional tools or supporting information
that we developed for this critical habitat designation will also be
available at the Service website and Field Office set out above, and
may also be included in the preamble and/or at https://www.regulations.gov.
FOR FURTHER INFORMATION CONTACT: William Pearson, Field Supervisor,
U.S. Fish and Wildlife Service, Alabama Ecological Services Field
Office, 1208-B Main Street, Daphne, AL 36526; telephone 251-441-5870.
Persons who use a telecommunications device for the deaf (TDD) may call
the Federal Relay Service at 800-877-8339.
SUPPLEMENTARY INFORMATION:
Executive Summary
Why we need to publish a rule. Under the Act, a species may warrant
protection through listing if it is endangered or threatened throughout
all or a significant portion of its range. In addition, to the maximum
extent prudent and determinable, we must designate critical habitat for
any species that we determine to be an endangered or threatened species
under the Act. Listing a species as an endangered or threatened species
and designation of critical habitat can only be completed by issuing a
rule.
What this rule does. This rule will list the slenderclaw crayfish
(Cambarus cracens) as an endangered species and will finalize the
designation of critical habitat for the species under the Act.
Accordingly, this rule revises part 17 of title 50 of the Code of
Federal Regulations at 50 CFR 17.11 and 17.95.
The basis for our action. Under the Act, we may determine that a
species is an endangered or threatened species based on any of five
factors: (A) The present or threatened destruction, modification, or
curtailment of its habitat or range; (B) overutilization for
commercial, recreational, scientific, or educational purposes; (C)
disease or predation; (D) the inadequacy of existing regulatory
mechanisms; or (E) other natural or manmade factors affecting its
continued existence. We have determined that the slenderclaw crayfish
is threatened by competition from a nonnative species (Factors A and E)
and habitat degradation resulting from poor water quality (Factor A).
Under section 4(a)(3) of the Act, if we determine that any species
is an endangered or threatened species we must, to the maximum extent
prudent and determinable, designate critical habitat. Under section
4(b)(2) of the Act, the Secretary shall designate critical habitat on
the basis of the best available scientific data after taking into
consideration the economic impact, national security impact, and any
other
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relevant impact of specifying any particular area as critical habitat.
Section 3(5)(A) of the Act defines critical habitat as (i) the specific
areas within the geographical area occupied by the species, at the time
it is listed, on which are found those physical or biological features
(I) essential to the conservation of the species and (II) which may
require special management considerations or protections; and (ii)
specific areas outside the geographical area occupied by the species at
the time it is listed, upon a determination by the Secretary that such
areas are essential for the conservation of the species.
Economic analysis. In accordance with section 4(b)(2) of the Act,
we prepared a draft economic analysis of the impacts of designating
critical habitat. We published an announcement of the completion of the
draft and solicited public comments (83 FR 50582; October 9, 2018). We
received no comments on the draft economic analysis. We adopt the draft
economic analysis as final.
Peer review and public comment. We sought comments from independent
specialists to ensure that our designation is based on scientifically
sound data, assumptions, and analyses. We invited these peer reviewers
to comment on our species status assessment (SSA) report, which
informed both the proposed rule and this final rule. We also considered
all comments and information received from the public and peer
reviewers during the comment period.
Supporting Documents
We prepared an SSA report for the slenderclaw crayfish. Written in
consultation with species experts, the SSA report represents the best
scientific and commercial data available concerning the status of the
slenderclaw crayfish, including the impacts of past, present, and
future factors (both adverse and beneficial) affecting the species
(Service 2019, entire). The SSA report underwent independent peer
review by scientists with expertise in crayfish biology, habitat
management, and stressors (factors negatively affecting the species) to
the slenderclaw crayfish. The SSA report, the proposed rule, this final
rule, and other materials relating to this rulemaking can be found on
the Service's Southeast Region website at https://www.fws.gov/southeast/ and at https://www.regulations.gov under Docket No. FWS-R4-
ES-2018-0069.
Previous Federal Actions
On October 9, 2018, we published in the Federal Register a proposed
rule (83 FR 50582) to list the slenderclaw crayfish as a threatened
species with provisions under section 4(d) of the Endangered Species
Act of 1973, as amended (16 U.S.C. 1531 et seq.) and to designate
critical habitat. Please refer to that proposed rule for a detailed
description of all previous Federal actions concerning this species.
Background
The slenderclaw crayfish is a relatively small, cryptic freshwater
crustacean, with an average lifespan of 2 to 3 years, that is endemic
to streams on Sand Mountain within the Tennessee River Basin in DeKalb
and Marshall Counties, Alabama. Primarily due to the invasion of
nonnative virile crayfish (Faxonius virilis) that prey upon and compete
with the slenderclaw crayfish, in addition to habitat degradation
resulting in poor water quality, the species' range is reduced with
extirpation at some sites and low condition in both populations
currently.
Please refer to the October 9, 2018, proposed listing and
designation of critical habitat rule for the slenderclaw crayfish (83
FR 50582) and the SSA report for a full summary of species information.
Both are available on the Service's Southeast Region website at https://www.fws.gov/southeast/ and at https://www.regulations.gov under Docket
No. FWS-R4-ES-2018-0069.
Summary of Comments and Recommendations
In the October 9, 2018, proposed listing and critical habitat rule
(83 FR 50582), we requested that all interested parties submit written
comments on the proposal by December 10, 2018. We also contacted
appropriate Federal and State agencies, scientific experts and
organizations, and other interested parties and invited them to comment
on the proposal. A newspaper notice inviting general public comment was
published in the Guntersville (Alabama) Advertiser Gleam on October 17,
2018. We did not receive any requests for a public hearing. All
substantive information provided during the comment period has either
been incorporated directly into the SSA report or this final
determination or is addressed below, as appropriate.
Peer Reviewer Comments
In accordance with our joint policy on peer review published on
July 1, 1994 (59 FR 34270), and our August 22, 2016, memorandum
updating and clarifying the role of peer review of listing actions
under the Act, we solicited the expert opinions from six knowledgeable
individuals with scientific expertise that included familiarity with
slenderclaw crayfish and its habitat, biological needs, and threats. We
received responses from two peer reviewers.
We reviewed all comments received from the peer reviewers for
substantive issues and new information regarding the slenderclaw
crayfish, and we updated the SSA report prior to the proposed rule. The
peer reviewers generally concurred with our methods and conclusions and
provided additional information, clarifications, and suggestions to
improve the final SSA report. Peer reviewer comments were incorporated
into the SSA report and this final rule as appropriate. In our response
to peer reviewer comments, we only address issues that were not
reflected in changes to the SSA report or this final rule.
Comment: One peer reviewer suggested that we project increased
variability in rainfall instead of change in annual mean precipitation
in our future condition projections. The reviewer noted that one
historic drought could potentially eliminate one of these populations,
and we do not understand the effects of flooding on the slenderclaw
crayfish. In addition, the reviewer noted that considering climate-
induced variability with urbanization could lead to a higher
probability of occasional stream drying.
Our response: Although we did not use a model to project increased
variability in rainfall as the commenter suggested, in the SSA, we did
account for increased variability in rainfall and the hydrological
impacts from precipitation change in our future-scenario projections
and predictions of the slenderclaw crayfish. To assess the future
condition of slenderclaw crayfish, we projected how precipitation can
change in order to understand potential future hydrologic impacts
within the system. Based on this information, we developed future
scenarios on the plausible range in the hydrologic impacts from
precipitation change as well as other factors influencing the viability
of the slenderclaw crayfish.
Public Comments
We received 10 public comments on the proposed listing rule and
critical habitat rule. Where commenters provided substantive comments
or new information concerning the proposed listing and species-specific
section 4(d) rule for the slenderclaw crayfish, we incorporated this
information into the final SSA report and this final rule as
appropriate.
(1) Comment: One commenter expressed concern about the presence of
the virile crayfish in slenderclaw
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crayfish habitat and provided additional information and references on
research of the effects of virile crayfish on other crayfish species.
The commenter noted the virile crayfish has been attributed to decline
of other native crayfish species in rivers and streams in West
Virginia, Idaho, Wyoming, and Utah.
Our response: We appreciate the additional information and
references provided regarding the virile crayfish effects to other
native crayfish species. We incorporated the information from the
additional studies of virile crayfish into the appropriate section of
the SSA report (Service 2019, pp. 16-17). We further considered the
additional information about the invasion of virile crayfish and what
the impact is to the current condition of the slenderclaw crayfish.
After further consideration of the invasion of virile crayfish, coupled
with the low abundance of slenderclaw crayfish, we determined the risk
of extinction for the slenderclaw crayfish is higher (see Determination
of Slenderclaw Status, below) than we characterized in the proposal to
list the slenderclaw crayfish as a threatened species. Based on the
documented past expansion of the virile crayfish, current invasion and
expansion into the slenderclaw crayfish's range in both populations
will occur. Therefore, the slenderclaw crayfish is currently at risk of
extinction as a result of the virile crayfish expansion. We reassessed
the best available scientific and commercial data available regarding
the slenderclaw crayfish to evaluate its status under the Act (see
Determination of Slenderclaw Crayfish Status, below).
(2) Comment: Several other commenters expressed their opinion that
the Service should list the species as endangered, rather than
threatened, and stated reasons including degradation of its habitat,
inadequacy of existing regulatory mechanisms, small population size,
competition with virile crayfish, and climate change. One commenter
specifically identified kudzu (Pueraria montana), an invasive plant, as
a current and future threat to the riparian habitat in the range of the
slenderclaw crayfish. In addition, the commenter noted that degradation
of habitat for the slenderclaw crayfish is ongoing despite existing
regulatory mechanisms.
Our response: When we evaluated the best available information, we
concluded that kudzu was not a threat to the slenderclaw crayfish.
Although we recognize that kudzu can alter habitat, this plant has not
been documented to impact the slenderclaw crayfish. As to habitat
degradation, as discussed under the Summary of Biological Status and
Threats and Determination sections of the preamble of this final
listing rule, we determined that existing regulatory mechanisms
currently address the threat of habitat degradation. Other than
identifying kudzu as a potential threat, the commenters did not provide
any new information regarding current threats to the slenderclaw
crayfish or its current status that was not already considered in the
SSA report or proposed rule. However, as stated above under Our
Response to (1) Comment, based on new information about the invasive
virile crayfish, coupled with known information about slenderclaw
crayfish abundance, we determined the slenderclaw crayfish meets the
definition of an endangered species (see Determination of Slenderclaw
Crayfish Status, below).
(3) Comment: Two commenters stated that the slenderclaw crayfish
has been extirpated from 80 percent of its historical range, citing
information from a status survey for three rare crayfishes, including
the slenderclaw crayfish (Kilburn et al. 2012, entire).
Our response: As discussed in Kilburn et al. (2012, entire), the
slenderclaw crayfish was only ever known to occur at five historical
sites within two watersheds, Short and Town Creeks, and the authors did
not find the slenderclaw crayfish outside these two watersheds. Since
the publication of Kilburn et al. (2012, entire), recent surveys
conducted in 2015 through 2017 identified the slenderclaw crayfish
occurring at three new sites within this historical range. Although
there is evidence of reduced abundance and presumed extirpation at four
historical sites within this range, there are currently two populations
of slenderclaw crayfish occurring across the range in Alabama, and the
slenderclaw crayfish occurs within the two watersheds where it
historically was known to occur. In short, at this time, the
slenderclaw crayfish has not been extirpated from 80 percent of its
historical range. Please refer to section 2.5 Range and Distribution in
the SSA report for additional information on the historical and current
range of the species.
(4) Comment: The Tennessee Valley Authority (TVA) recommended that
the planting of bare-root seedlings as a method to revegetate and
stabilize streambanks be included in the 4(d) rule. TVA has found this
method to be successful for establishing a diversity of vegetation
within riparian zones.
Our response: We agree that the planting of bare-root seedlings as
a method to revegetate and stabilize streambanks would be beneficial to
slenderclaw crayfish. However, in this final rule, the Service has
determined that the slenderclaw crayfish meets the definition of an
endangered species, and the Act does not allow issuance of a 4(d) rule
for a species listed as endangered.
Summary of Changes From the Proposed Rule
The final rule incorporates changes to our proposed listing rule
and SSA Report based on the comments we received, as discussed in the
Summary of Comments and Recommendations. Based on comments received and
our further consideration of the invasion of virile crayfish coupled
with low abundance of slenderclaw crayfish, we determined the risk of
extinction is higher (see Determination, below) than we characterized
in the proposal to list the slenderclaw crayfish as a threatened
species (83 FR 50582; October 9, 2018). We reassessed our analysis and
found that the documented expansion and invasion of the virile crayfish
in the slenderclaw crayfish's range, along with additional information
regarding impacts to other native crayfish species and known low
abundance in both populations of the slenderclaw crayfish, places the
slenderclaw crayfish at a high risk for extinction throughout its
range. Thus, after evaluating the best available information and the
Act's regulation and policies, we determined that the slenderclaw
crayfish meets the definition of an endangered species, and such status
is more appropriate than that of a threatened species as originally
proposed. Because we determined that the slenderclaw crayfish meets the
definition of an endangered species, a 4(d) rule is inapplicable;
consequently, the proposed special rule under the authority of section
4(d) of the Act was removed from the final rule. We received no
substantive comments on the proposed critical habitat designation;
accordingly, there are no changes in the final designation. Lastly, we
made minor editorial and nonsubstantive corrections throughout the SSA
report and this final rule.
Summary of Biological Status and Threats
We completed a comprehensive assessment of the biological status of
the slenderclaw crayfish and prepared an SSA report (Service 2019,
entire), which provides a thorough account of the species' overall
viability. Below, we summarize the key results and conclusions of the
SSA report.
To evaluate the current and future viability of the slenderclaw
crayfish, we assessed the three conservation biology
[[Page 50267]]
principles of resiliency, redundancy, and representation (the ``3 Rs''
described in detail in the SSA report) (Shaffer and Stein 2000, pp.
306-310). Briefly, resiliency supports the ability of the species to
withstand environmental and demographic stochasticity (for example, wet
or dry, warm or cold years), redundancy supports the ability of the
species to withstand catastrophic events (for example, droughts, large
pollution events), and representation supports the ability of the
species to adapt over time to long-term changes in the environment (for
example, climate changes). In general, the more resilient and redundant
a species is and the more representation it has, the more likely it is
to sustain populations over time, even under changing environmental
conditions. Using these principles, we identified the species'
ecological requirements for survival and reproduction at the
individual, population, and species levels, and described the
beneficial and risk factors influencing the species' viability.
The historical range of the slenderclaw crayfish included two known
populations, Short and Town Creeks, in watersheds leading into the
Tennessee River in Alabama. Within the Short Creek population, a total
of 90 slenderclaw crayfish, with 56 of those being juveniles, were
collected during the period 1970-1974 (Bouchard and Hobbs 1976, entire;
Schuster 2017, unpublished data). Historically, only one crayfish was
collected in the Town Creek population in the period 1970-1974
(Bouchard and Hobbs 1976, entire; Schuster 2017, unpublished data).
Surveys conducted from 2009 through 2017 have documented the
slenderclaw crayfish within the same two populations, Short Creek
(three sites in Shoal Creek) and Town Creek (one site in Bengis Creek
and one site in Town Creek) (Kilburn et al. 2014, pp. 116-117; Bearden
et al. 2017, pp. 17-18; Schuster 2017, unpublished data; Taylor 2017,
unpublished data).
Of the five historical sites, the slenderclaw crayfish is no longer
found and is presumed extirpated at three sites in the Short Creek
population (one site in Short Creek and two sites in Scarham Creek) and
one site in the Town Creek population (one site in Bengis Creek)
despite repeated survey efforts (Kilburn et al. 2014, pp. 116-117;
Bearden et al. 2017, pp. 17-18; Schuster 2017, unpublished data; Taylor
2017, unpublished data). Across current survey efforts from 2009
through 2017, researchers collected 28 slenderclaw crayfish, including
2 juveniles, within the Short Creek population, and 2 adults and 2
juveniles from the Town Creek population. There are no actual
historical or current population estimates for slenderclaw crayfish,
and the abundance numbers (total number collected) reported are not
population estimates.
At the population level, the overall current condition in terms of
resiliency was determined to be low for both Short Creek and Town Creek
populations. We estimate that the slenderclaw crayfish currently has
some adaptive potential (i.e., representation) due to the habitat
variability features occurring in the Short Creek and Town Creek
populations. The Short Creek population occurs in streams with
predominantly large boulders and fractured bedrock, broader stream
widths, and greater depths, and the Town Creek population occurs in
streams with larger amounts of gravel and cobble, narrower stream
widths, and shallower depths (Bearden 2017, pers. comm.). At present,
the slenderclaw crayfish has two populations in low condition
(resiliency) with habitat types that vary between populations.
Therefore, given the variable habitat in which the slenderclaw crayfish
occurs, the species may have some level of adaptive capacity. Given the
low resiliency of both populations of the slenderclaw crayfish, current
representation is reduced.
The slenderclaw crayfish exhibits limited redundancy given its
narrow range and that four out of five sites within the species'
historical range are presumed extirpated. In addition, connectivity
between the Short Creek and Town Creek populations is likely low,
because both Short and Town Creek streams flow downstream into, and
thus are separated by, Guntersville Lake. To date, no slenderclaw
crayfish have been documented in impounded areas including Guntersville
Lake. Multiple sites in the same population could allow recolonization
following a catastrophic event (e.g., chemical spill) that may affect a
large proportion of a population; however, given the species' limited
redundancy and current low resiliency of both populations, it might be
difficult to reestablish an entire population affected by a
catastrophic event, as the connectivity between the two populations is
low. Further, the currently occupied sites in the Short Creek
population are in a single tributary, and one catastrophic event could
impact this entire population.
Risk Factors for Slenderclaw Crayfish
The Act directs us to determine whether any species is an
endangered species or a threatened species because of any factors
affecting its continued existence. Under section 4(a)(1) of the Act, we
may list a species based on (A) The present or threatened destruction,
modification, or curtailment of its habitat or range; (B)
overutilization for commercial, recreational, scientific, or
educational purposes; (C) disease or predation; (D) the inadequacy of
existing regulatory mechanisms; or (E) other natural or manmade factors
affecting its continued existence.
We reviewed the potential risk factors (i.e., threats or stressors)
that are affecting the slenderclaw crayfish now and are expected to
affect it into the future. Because we have determined that the species
is currently in danger of extinction throughout its range, in this
final rule we will discuss in detail only those threats that we
conclude are driving the current status and viability of the species.
We have determined that competition from a nonnative species (Factors A
and E), habitat degradation resulting from poor water quality (Factor
A), and low abundance (Factor E) pose the largest risk to the current
viability of the slenderclaw crayfish. Other potential stressors to the
species--hydrological variation and alteration (Factors A and E), land
use (Factor A), and scientific collection (Factor B)--are discussed in
the SSA report and proposed rule. Currently existing regulatory
mechanisms, such as regulations implemented under the Clean Water Act
to protect water quality and instream habitat, address the habitat
degradation threat to the slenderclaw crayfish. However, we also found
that existing regulatory mechanisms do not address, nor do they
contribute to, the threat of the nonnative virile crayfish, which is
the primary threat to the slenderclaw crayfish. We find the species
does not face significant threats from disease or predation (Factor C).
We also reviewed the conservation efforts being undertaken for the
habitat in which the slenderclaw crayfish occurs.
Nonnative Species
The virile crayfish (Faxonius virilis), previously recognized as
Orconectes virilis (Crandall and De Grave 2017, p. 5), is a crayfish
native to the Missouri, upper Mississippi, lower Ohio, and the Great
Lakes drainages (Service 2015, p. 1). The species has spread from its
native range through dispersal as fishing bait, as pets, and through
commercial (human) consumption (Schwartz et al. 1963, p. 267; Service
2015, p. 4). Virile crayfish inhabit a variety of watersheds in the
United States, including those with very few to no native crayfish
species, and have been found in lake, wetland, and stream environments
[[Page 50268]]
(Larson et al. 2010, p. 2; Loughman and Simon 2011, p. 50). Virile
crayfish are generalists, able to withstand various conditions, and
have the natural tendency to migrate (Loughman and Simon 2011, p. 50).
This species has been documented to spread approximately 124 mi (200
km) over 15 years (B. Williams 2018, pers. comm.; Williams et al. 2011,
entire).
Based on comparison of body size, average claw size, aggression
levels, and growth rates, it appears that the virile crayfish has an
ecological advantage over several native crayfish species, including
those in the Cambarus and Procambarus genera (Hale et al. 2016, p. 6).
In addition, virile crayfish have been documented to displace native
crayfish (Hubert 2010, p. 5; Loughman and Welsh 2010, pp. 70 and 72).
Virile crayfish were first collected near the range of slenderclaw
crayfish in 1967 (Schuster 2017, unpublished data). Since then, the
virile crayfish has been documented in Guntersville Lake (a Tennessee
Valley Authority reservoir constructed in 1939, on the Tennessee River
mainstem) (Schuster 2017, unpublished data; Taylor 2017, unpublished
data). In addition, the virile crayfish was found in 2015 at the type
locality (location where the species was first described) for the
slenderclaw crayfish in Short Creek (Short Creek population), in which
the slenderclaw crayfish no longer occurs (Schuster 2017, unpublished
data; Taylor 2017, unpublished data). In 2016, the virile crayfish was
found at two sites in Drum Creek within the Short Creek population
boundary and at the confluence of Short Creek and Guntersville Lake
(Schuster 2017, unpublished data; Taylor 2017, unpublished data).
During 2017, 20 virile crayfish were again found at the location where
slenderclaw crayfish was first described in Short Creek (Taylor 2017,
unpublished data). Also during 2017, this nonnative crayfish was
documented at four new sites in adjacent watersheds outside of the
Short Creek population boundary. Juvenile virile crayfish have been
collected in the Short Creek population, indicating that the species is
established there (Taylor 2017, unpublished data). To date, no virile
crayfish have been documented within the Town Creek population boundary
(Schuster 2017, unpublished data; Taylor 2017, unpublished data).
The adaptive nature of the virile crayfish, the effects of this
nonnative species on other crayfish species in their native ranges, and
records of the virile crayfish's presence in the slenderclaw crayfish's
historical and current range indicate that the virile crayfish is a
factor that negatively influences the viability of the slenderclaw
crayfish in the near term and future. Also, considering that the virile
crayfish is a larger crayfish, is a strong competitor, and tends to
migrate, while the slenderclaw crayfish has low abundance and is a
smaller bodied crayfish, it is reasonable to conclude that once the
virile crayfish is established at a site, it will out-compete
slenderclaw crayfish.
Water Quality
Direct impacts of poor water quality on the slenderclaw crayfish
are unknown; however, aquatic macroinvertebrates (i.e., mayflies,
caddisflies, stoneflies) are negatively affected by poor water quality,
and this may indirectly impact the slenderclaw crayfish, which likely
feeds on them. Degradation of water quality impacts aquatic
macroinvertebrates and may even cause stress to individual crayfish
(Arthur et al. 1987, p. 328; Devi and Fingerman 1995, p. 749; Rosewarne
et al. 2014, p. 69). Although crayfish generally have a higher
tolerance to ammonia than some aquatic species (i.e., mussels), their
food source, larval insects, is impacted by ammonia at lower
concentrations (Arthur et al. 1987, p. 328). Juvenile slenderclaw
crayfish likely feed exclusively on aquatic macroinvertebrates, which
are impacted by elevated ammonia and poor water quality.
Within the range of the slenderclaw crayfish, Scarham Creek and
Town Creek were identified as impaired waters by the Alabama Department
of Environmental Management (ADEM). These creeks were listed in 1996
and 1998, respectively, on Alabama's list of impaired water bodies
(list of waterbodies that do not meet established State water quality
standards) under section 303(d) of the Clean Water Act (hereafter,
``the 303(d) list'') (ADEM 1996, p. 1; ADEM 2001, p. 11). Scarham Creek
was placed on the 303(d) list for impacts from pesticides, siltation,
ammonia, low dissolved oxygen/organic enrichment, and pathogens from
agricultural sources; this section of Scarham Creek stretched 24 mi (39
km) upstream from its confluence with Short Creek to its source (ADEM
2013, p. 1). However, Scarham Creek was removed from Alabama's 303(d)
list of impaired waters in 2004, after the total maximum daily loads
(TMDLs; maximum amount of a pollutant or pollutants allowed in a water
body while still meeting water quality standards) were developed in
2002 (ADEM 2002, p. 5; ADEM 2006, entire). Town Creek was previously
listed on the 303(d) list for ammonia and organic enrichment/dissolved
oxygen impairments. Although TMDLs have been in development for these
issues (ADEM 1996, entire), all of Town Creek is currently on the
303(d) list for mercury contamination due to atmospheric deposition
(ADEM 2016a, appendix C). One identified source of wastewater discharge
to Town Creek is Hudson Foods near Geraldine, Alabama (ADEM 1996, p.
1).
Pollution from nonpoint sources stemming from agriculture, animal
production, and unimproved roads has been documented within the range
of the slenderclaw crayfish (Bearden et al. 2017, p. 18). Alabama is
ranked third in the United States for broiler (chicken) production
(Alabama Poultry Producers 2017, unpaginated), and DeKalb and Marshall
Counties are two of the four most active counties in Alabama for
poultry farming (Conner 2008, unpaginated). Poultry farms and poultry
litter (a mixture of chicken manure, feathers, spilled food, and
bedding material that frequently is used to fertilize pastureland or
row crops) have been documented to contain nutrients, pesticides,
bacteria, heavy metals, and other pathogens (Bolan et al. 2010, pp.
676-683; Stolz et al. 2007, p. 821). A broiler house containing 20,000
birds will produce approximately 150 tons of litter a year (Ritz and
Merka 2013, p. 2). Surface-spreading of litter allows runoff from heavy
rains to carry nutrients from manure into nearby streams. Poultry
litter spreading is a practice that occurs within the Short Creek
watershed (Short Creek population of slenderclaw crayfish) (Top of
Alabama Regional Council of Governments 2015, p. 8).
During recent survey efforts, water quality was impaired due to
nutrients and bacteria within the Short Creek population, and levels of
atrazine may be of concern in the watershed (Bearden et al. 2017, p.
32). In Bengis Creek (Town Creek population), lead measurements
exceeded the acute and chronic aquatic life criteria set by the U.S.
Environmental Protection Agency (EPA) and ADEM (Bearden et al. 2017, p.
32; ADEM 2017, p. 10-7). These criteria are based on levels developed
by the EPA and ADEM to protect fish and wildlife (ADEM 2017, entire),
and exceedance of these values is likely to harm animal or plant life
(EPA 2018b, unpaginated). Elevated ammonia concentrations in Town Creek
were also documented and reflected nonpoint source pollution at low-
flow and high-flow measurements (Bearden et al. 2017, p. 21). In late
summer and fall surveys, potential eutrophication likely stemming from
low-water conditions, elevated nutrients, and low dissolved oxygen was
documented within both
[[Page 50269]]
Short and Town Creek watersheds (Bearden et al. 2017, p. 31).
Low Abundance
The number of slenderclaw crayfish is currently low, with only two
populations and few individuals within each population, which is
reflected in the species' low resiliency, redundancy, and
representation. The current estimated low abundance (n=32) and genetic
drift may negatively affect populations of the slenderclaw crayfish. In
general, the fewer populations a species has or the smaller the sizes
of those populations, the greater the likelihood of extinction by
chance alone (Shaffer and Stein 2000, p. 307). Genetic drift occurs in
all species but is more likely to negatively affect populations that
have a smaller effective population size (Caughley 1994, pp. 219-220;
Huey et al. 2013, p. 10). There are only two populations of the
slenderclaw crayfish with limited connectivity between those
populations, which may have reduced genetic diversity. However, no
testing for genetic drift has been conducted for the slenderclaw
crayfish.
Synergistic Effects
In addition to impacting the species individually, it is likely
that several of the risk factors are acting synergistically or
additively on the species. The combined impact of multiple stressors is
likely more harmful than a single stressor acting alone. For example,
in the Town Creek watershed, Town Creek was previously listed as an
impaired stream due to ammonia and organic enrichment/dissolved oxygen
impairments, and recent surveys documented eutrophic conditions of
elevated nutrients and low dissolved oxygen. In addition, hydrologic
variation and alteration has occurred within the Town Creek watershed
as discussed further in the SSA report. Low-water conditions naturally
occur in streams where the slenderclaw crayfish occurs, and alteration
causing prolonged low-water periods could have a negative impact on the
reproductive success of the slenderclaw crayfish. Further, connectivity
between Town Creek and Short Creek watersheds is likely low due to
Guntersville Lake. The combination of all of these stressors on the
sensitive aquatic species in this habitat has probably impacted
slenderclaw crayfish, in that only four individuals have been recorded
there since 2009.
Conservation Actions
TMDLs have been developed in Scarham Creek for siltation, ammonia,
pathogens, organic enrichment/low dissolved oxygen, and pesticides
(ADEM 2002, p. 5). Town Creek is currently on the 303(d) list for
mercury contamination due to atmospheric deposition (ADEM 2016a,
appendix C). However, a TMDL for organic enrichment/dissolved oxygen
has been developed for Town Creek (ADEM 1996, entire). Through the
303(d) program, ADEM provides funding derived under section 319 of the
Clean Water Act to improve water quality in the watersheds. In 2014,
the Upper Scarham Creek Watershed was selected as a priority by ADEM
for the development of a watershed management plan. In Fiscal Year
2016, the DeKalb County Soil and Water Conservation District contracted
with ADEM to implement the Upper Scarham Creek Watershed Project using
section 319 funding (ADEM 2016b, p. 39).
The U.S. Department of Agriculture's Natural Resources Conservation
Service (NRCS) National Water Quality Initiative program identified the
Guntersville Lake/Upper Scarham Creek in DeKalb County as an Alabama
Priority Watershed in 2015 (NRCS 2017, unpaginated). This watershed is
within the historical range of the slenderclaw crayfish. It is
recognized as in need of conservation practices, as it was listed on
the Alabama 303(d) list as impaired due to organic enrichment/low
dissolved oxygen and ammonia as nitrogen (ADEM 2002, p. 4). The
National Water Quality Initiative helps farmers, ranchers, and forest
landowners improve water quality and aquatic habitats in impaired
streams through conservation and management practices. Such practices
include controlling and trapping nutrient and manure runoff, and
installation of cover crops, filter strips, and terraces.
Future Condition of the Slenderclaw Crayfish
For the purpose of this assessment, we define viability as the
ability of the species to sustain populations in the wild over time. As
part of the SSA, to help address uncertainty associated with the degree
and extent of potential future stressors and their impacts on the needs
of the species, the concepts of resiliency, redundancy, and
representation were applied using three plausible future scenarios. We
devised these scenarios by identifying information on the following
primary stressors that are anticipated to affect the species in the
future: Nonnative virile crayfish, hydrological variation
(precipitation and water quantity), land-use change, and water quality.
However, having determined that the current condition of the
slenderclaw crayfish is consistent with that of an endangered species
(see Determination of Slenderclaw Crayfish Status, below), the results
of the future scenarios are not material to our decision, and
therefore, we are not presenting the results in this final rule. Please
refer to the proposed listing and designation of critical habitat rule
for the slenderclaw crayfish (83 FR 50582; October 9, 2018) and the SSA
report (Service 2018, entire) for the full analysis of future
conditions and descriptions of the associated scenarios.
Determination of Slenderclaw Crayfish Status
We have carefully assessed the best scientific and commercial
information available regarding the past, present, and future threats
to the slenderclaw crayfish. Section 4 of the Act (16 U.S.C. 1533) and
its implementing regulations (50 CFR part 424) set forth the procedures
for determining whether a species meets the definition of an endangered
species or a threatened species. The Act defines an endangered species
as a species ``in danger of extinction throughout all or a significant
portion of its range,'' and a threatened species as a species ``likely
to become an endangered species within the foreseeable future
throughout all or a significant portion of its range.'' The Act
requires that we determine whether a species meets the definition of
``endangered species'' or ``threatened species'' because of any of the
following factors: (A) The present or threatened destruction,
modification, or curtailment of its habitat or range; (B)
Overutilization for commercial, recreational, scientific, or
educational purposes; (C) Disease or predation; (D) The inadequacy of
existing regulatory mechanisms; or (E) Other natural or manmade factors
affecting its continued existence.
Status Throughout All of Its Range
After evaluating threats to the species and assessing the
cumulative effect of the threats under the section 4(a)(1) factors, we
have determined the slenderclaw crayfish to be endangered throughout
all of its range. Our review of the best available information
indicates that there are currently two populations of slenderclaw
crayfish in low condition occurring across the species' historical
range in Alabama. Despite the species being identified at three new
sites as reflected by recent increased survey efforts, there is
substantial evidence of reduced abundance (current estimate of n=32)
and presumed extirpation at four historical sites. In the Short Creek
population, 28 slenderclaw crayfish
[[Page 50270]]
were collected during surveys from 2009 through 2017; in the Town Creek
population, only 4 slenderclaw crayfish were collected during this same
time period. Further, there is evidence of limited reproduction with
only 3 juveniles collected from both populations since 2016. The
slenderclaw crayfish exhibits low natural redundancy given its narrow
range, but given presumed extirpation of sites within both populations,
the species' redundancy is further limited.
Several sources of indirect water quality impacts on both
populations have been identified. However, no direct water quality-
related impacts are known at this time, and crayfish generally have a
higher tolerance to poor water quality conditions than other aquatic
species. In addition, currently existing regulatory mechanisms, such as
establishing TMDLs, are addressing the effects of poor water quality on
the slenderclaw crayfish.
Currently, one of the primary threats to the slenderclaw crayfish
is the nonnative virile crayfish. The virile crayfish is a larger
crayfish, a strong competitor, and tends to migrate, and has been
attributed to declines of other native crayfish species. Considering
these characteristics of the virile crayfish and the size (small-
bodied) of the slenderclaw crayfish, it is reasonable to infer that
once virile crayfish is established at a site it will out-compete
slenderclaw crayfish. This may already be the case at the slenderclaw
crayfish type locality where virile crayfish were found in recent
surveys. At present, the virile crayfish has been reported as occurring
at only one site, the type locality, where the slenderclaw crayfish was
known to occur. Specifically, the virile crayfish occupies
approximately 12.5 river miles (mi) (20.1 river kilometers (km)) at a
few sites approximately 7 river mi (11 river km) downstream of current
slenderclaw crayfish sites in the Short Creek population (233.6 river
mi (375.9 river km)), and, therefore, the virile crayfish is an
imminent threat to slenderclaw crayfish in the Short Creek population.
Although there are currently no records of the virile crayfish in the
Town Creek population (281.7 river mi (453.4 river km)), the virile
crayfish is documented in Guntersville Lake, which leads directly into
the Town Creek population. Based on the documented past expansion of
the virile crayfish (despite some uncertainty and variation in the rate
at which it will expand), and documented impacts and declines to other
native crayfish species, current invasion and expansion into the
slenderclaw crayfish's range in the Town Creek population will occur.
Coupled with the current low abundance (n=4) of slenderclaw crayfish in
the Town Creek population, the invasion of virile crayfish makes the
slenderclaw crayfish at high risk of extirpation in this watershed.
Overall, given the current low resiliency in both populations and
the species' limited redundancy, it will be difficult to reestablish an
entire population, should it be affected by a catastrophic event,
without human intervention, as the connectivity between the two
populations is low.
Therefore, the slenderclaw crayfish is currently at risk of
extirpation in both populations. Thus, we have determined that the
slenderclaw crayfish is currently in danger of extinction throughout
all of its range.
Status Throughout a Significant Portion of Its Range
Under the Act and our implementing regulations, a species may
warrant listing if it is in danger of extinction or likely to become so
in the foreseeable future throughout all or a significant portion of
its range. We have determined that the slenderclaw crayfish is in
danger of extinction throughout all of its range, warranting listing as
endangered throughout its range. Accordingly, we did not undertake an
analysis of any significant portion of its range. Our determination is
consistent with the decision in Center for Biological Diversity v.
Everson, 2020 WL 437289 (D.D.C. Jan. 28, 2020).
Determination of Status
Our review of the best available scientific and commercial
information indicates that the slenderclaw crayfish meets the
definition of an endangered species. Therefore, in accordance with
sections 3(20) and 4(a)(1) of the Act, we add the slenderclaw crayfish
as an endangered species to the List of Endangered and Threatened
Wildlife at 50 CFR 17.11(h).
Available Conservation Measures
The primary purpose of the Act is the conservation of endangered
and threatened species and the ecosystems upon which they depend. The
ultimate goal of such conservation efforts is the recovery of these
listed species, so that they no longer need the protective measures of
the Act. Conservation measures provided to species listed as endangered
or threatened species under the Act include recognition, recovery
actions, requirements for Federal protection, and prohibitions against
certain practices. Recognition through listing results in public
awareness and conservation by Federal, State, Tribal, and local
agencies, private organizations, and individuals. The Act encourages
cooperation with the States and calls for recovery actions to be
carried out for all listed species. The protection required by Federal
agencies and the prohibitions against certain activities are discussed,
in part, below.
Subsection 4(f) of the Act requires the Service to develop and
implement recovery plans for the conservation of endangered and
threatened species. The recovery planning process involves the
identification of actions that are necessary to halt or reverse the
species' decline by addressing the threats to its survival and
recovery. The goal of this process is to restore listed species to a
point where they are secure, self-sustaining, and functioning
components of their ecosystems.
Recovery planning consists of preparing draft and final recovery
plans, beginning with the development of a recovery outline and making
it available to the public within 30 days of a final listing
determination. The recovery outline guides the immediate implementation
of urgent recovery actions and describes the process to be used to
develop a recovery plan. Revisions of the plan may be done to address
continuing or new threats to the species, as new substantive
information becomes available. The recovery plan also identifies
recovery criteria for review of when a species may be ready for
reclassification from endangered to threatened (``downlisting'') or
removal from protected status (``delisting''), and methods for
monitoring recovery progress. Recovery plans also establish a framework
for agencies to coordinate their recovery efforts and provide estimates
of the cost of implementing recovery tasks. Recovery teams (composed of
species experts, Federal and State agencies, nongovernmental
organizations, and stakeholders) are often established to develop
recovery plans. When completed, the recovery outline, draft recovery
plan, and the final recovery plan will be available on our website
(https://www.fws.gov/endangered) or from our Alabama Ecological Services
Field Office (see FOR FURTHER INFORMATION CONTACT).
Implementation of recovery actions generally requires the
participation of a broad range of partners, including other Federal
agencies, States, Tribes, nongovernmental organizations, businesses,
and private landowners. Examples of recovery actions include habitat
restoration (e.g., restoration of native vegetation), research, captive
propagation and reintroduction, and outreach and education. The
recovery of
[[Page 50271]]
many listed species cannot be accomplished solely on Federal lands
because their range may occur primarily or solely on non-Federal lands.
To achieve recovery of these species requires cooperative conservation
efforts on private, State, and Tribal lands.
Following publication of this final listing rule, funding for
recovery actions will be available from a variety of sources, including
Federal budgets, State programs, and cost share grants for non-Federal
landowners, the academic community, and nongovernmental organizations.
In addition, pursuant to section 6 of the Act, the State of Alabama
will be eligible for Federal funds to implement management actions that
promote the protection or recovery of the slenderclaw crayfish.
Information on our grant programs that are available to aid species
recovery can be found at: https://www.fws.gov/grants.
Please let us know if you are interested in participating in
recovery efforts for the slenderclaw crayfish. Additionally, we invite
you to submit any new information on this species whenever it becomes
available and any information you may have for recovery planning
purposes (see FOR FURTHER INFORMATION CONTACT).
Section 7(a) of the Act requires Federal agencies to evaluate their
actions with respect to any species that is listed as an endangered or
threatened species and with respect to its critical habitat.
Regulations implementing this interagency cooperation provision of the
Act are codified at 50 CFR part 402. Section 7(a)(2) of the Act
requires Federal agencies to ensure that activities they authorize,
fund, or carry out are not likely to jeopardize the continued existence
of any endangered or threatened species or destroy or adversely modify
its critical habitat. If a Federal action may affect a listed species
or its critical habitat, the responsible Federal agency must enter into
consultation with the Service.
Federal agency actions within the slenderclaw crayfish's habitat
that may require conference or consultation or both as described in the
preceding paragraph include management and any other landscape-altering
activities on Federal lands administered by the U.S. Fish and Wildlife
Service and U.S. Forest Service; technical assistance and projects
funded through the U.S. Department of Agriculture's NRCS; issuance of
permits by the Tennessee Valley Authority for right-of-way stream
crossings; issuance of section 404 Clean Water Act (33 U.S.C. 1251 et
seq.) permits by the U.S. Army Corps of Engineers; and construction and
maintenance of roads or highways by the Federal Highway Administration.
The Act and its implementing regulations set forth a series of
general prohibitions and exceptions that apply to endangered wildlife.
The prohibitions of section 9(a)(1) of the Act, codified at 50 CFR
17.21, make it illegal for any person subject to the jurisdiction of
the United States to take (which includes harass, harm, pursue, hunt,
shoot, wound, kill, trap, capture, or collect; or to attempt any of
these) endangered wildlife within the United States or on the high
seas. In addition, it is unlawful to import; export; deliver, receive,
carry, transport, or ship in interstate or foreign commerce in the
course of commercial activity; or sell or offer for sale in interstate
or foreign commerce any species listed as an endangered species. It is
also illegal to possess, sell, deliver, carry, transport, or ship any
such wildlife that has been taken illegally. Certain exceptions apply
to employees of the Service, the National Marine Fisheries Service,
other Federal land management agencies, and State conservation
agencies.
We may issue permits to carry out otherwise prohibited activities
involving endangered wildlife under certain circumstances. Regulations
governing permits are codified at 50 CFR 17.22. With regard to
endangered wildlife, a permit may be issued for the following purposes:
For scientific purposes, to enhance the propagation or survival of the
species, and for incidental take in connection with otherwise lawful
activities. There are also certain statutory exemptions from the
prohibitions, which are found in sections 9 and 10 of the Act.
It is our policy, as published in the Federal Register on July 1,
1994 (59 FR 34272), to identify, to the maximum extent practicable at
the time a species is listed, those activities that would or would not
constitute a violation of section 9 of the Act. The intent of this
policy is to increase public awareness of the effect of a final listing
on proposed and ongoing activities within the range of a listed
species. Based on the best available information, at this time, we are
unable to identify specific activities that would not be considered to
result in a violation of section 9 of the Act, because it is likely
that site-specific conservation measures may be needed for activities
that may directly or indirectly affect the slenderclaw crayfish. Based
on the best available information, the following actions may
potentially result in a violation of section 9 of the Act or this final
rule; this list is not comprehensive:
(1) Unauthorized handling, collecting, possessing, selling,
delivering, carrying, or transporting of the slenderclaw crayfish,
including interstate transportation across State lines and import or
export across international boundaries.
(2) Destruction/alteration of the species' habitat by discharge of
fill material, draining, ditching, tiling, pond construction, stream
channelization or diversion, or diversion or alteration of surface or
ground water flow into or out of the stream (i.e., due to roads,
impoundments, discharge pipes, stormwater detention basins, etc.).
(3) Introduction of nonnative species that compete with or prey
upon the slenderclaw crayfish, such as the introduction of nonnative
virile crayfish in Alabama.
(4) Modification of the channel or water flow of any stream in
which the slenderclaw crayfish is known to occur.
(5) Discharge of chemicals or fill material into any waters in
which the slenderclaw crayfish is known to occur.
Questions regarding whether specific activities would constitute a
violation of section 9 of the Act should be directed to the Alabama
Ecological Services Field Office (see FOR FURTHER INFORMATION CONTACT).
Critical Habitat Designation
Background
Critical habitat is defined in section 3 of the Act as:
(1) The specific areas within the geographical area occupied by the
species, at the time it is listed in accordance with the Act, on which
are found those physical or biological features
(a) Essential to the conservation of the species, and
(b) Which may require special management considerations or
protection; and
(2) Specific areas outside the geographical area occupied by the
species at the time it is listed, upon a determination that such areas
are essential for the conservation of the species.
Our regulations at 50 CFR 424.02 define the geographical area
occupied by the species as an area that may generally be delineated
around species' occurrences, as determined by the Secretary (i.e.,
range). Such areas may include those areas used throughout all or part
of the species' life cycle, even if not used on a regular basis (e.g.,
migratory corridors, seasonal habitats, and habitats used periodically,
but not solely by vagrant individuals).
Conservation, as defined under section 3 of the Act, means to use
and
[[Page 50272]]
the use of all methods and procedures that are necessary to bring an
endangered or threatened species to the point at which the measures
provided pursuant to the Act are no longer necessary. Such methods and
procedures include, but are not limited to, all activities associated
with scientific resources management such as research, census, law
enforcement, habitat acquisition and maintenance, propagation, live
trapping, and transplantation, and, in the extraordinary case where
population pressures within a given ecosystem cannot be otherwise
relieved, may include regulated taking.
Critical habitat receives protection under section 7 of the Act
through the requirement that Federal agencies ensure, in consultation
with the Service, that any action they authorize, fund, or carry out is
not likely to result in the destruction or adverse modification of
critical habitat. The designation of critical habitat does not affect
land ownership or establish a refuge, wilderness, reserve, preserve, or
other conservation area. Designation also does not allow the government
or public to access private lands, nor does designation require
implementation of restoration, recovery, or enhancement measures by
non-Federal landowners. Where a landowner requests Federal agency
funding or authorization for an action that may affect a listed species
or critical habitat, the Federal agency would be required to consult
with the Service under section 7(a)(2) of the Act. However, even if the
Service were to conclude that the proposed activity would result in
destruction or adverse modification of the critical habitat, the
Federal action agency and the landowner are not required to abandon the
proposed activity, or to restore or recover the species; instead, they
must implement ``reasonable and prudent alternatives'' to avoid
destruction or adverse modification of critical habitat.
Under the first prong of the Act's definition of critical habitat,
areas within the geographical area occupied by the species at the time
it was listed are included in a critical habitat designation if they
contain physical or biological features (1) which are essential to the
conservation of the species and (2) which may require special
management considerations or protection. For these areas, critical
habitat designations identify, to the extent known using the best
scientific and commercial data available, those physical or biological
features that are essential to the conservation of the species (such as
space, food, cover, and protected habitat). In identifying those
physical or biological features within an area, we focus on the
specific features that support the life-history needs of the species,
including but not limited to, water characteristics, soil type,
geological features, prey, vegetation, symbiotic species, or other
features. A feature may be a single habitat characteristic, or a more
complex combination of habitat characteristics. Features may include
habitat characteristics that support ephemeral or dynamic habitat
conditions. Features may also be expressed in terms relating to
principles of conservation biology, such as patch size, distribution
distances, and connectivity.
Under the second prong of the Act's definition of critical habitat,
we may 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 will determine whether unoccupied areas are essential for
the conservation of the species by considering the life-history,
status, and conservation needs of the species. This consideration will
be further informed by any generalized conservation strategy, criteria,
or outline that may have been developed for the species to provide a
substantive foundation for identifying which features and specific
areas are essential to the conservation of the species and, as a
result, the development of the critical habitat designation. For
example, an area currently occupied by the species but that was not
occupied at the time of listing may be essential to the conservation of
the species and may be included in the critical habitat designation.
Section 4 of the Act requires that we designate critical habitat on
the basis of the best scientific data available. Further, our Policy on
Information Standards under the Endangered Species Act (published in
the Federal Register on July 1, 1994 (59 FR 34271)), the Information
Quality Act (section 515 of the Treasury and General Government
Appropriations Act for Fiscal Year 2001 (Pub. L. 106-554; H.R. 5658)),
and our associated Information Quality Guidelines, provide criteria,
establish procedures, and provide guidance to ensure that our decisions
are based on the best scientific data available. They require our
biologists, to the extent consistent with the Act and with the use of
the best scientific data available, to use primary and original sources
of information as the basis for recommendations to designate critical
habitat.
When we are determining which areas should be designated as
critical habitat, our primary source of information is generally the
information from the SSA report and information developed during the
listing process for the species. Additional information sources may
include any generalized conservation strategy, criteria, or outline
that may have been developed for the species; the recovery plan for the
species; articles in peer-reviewed journals; conservation plans
developed by States and counties; scientific status surveys and
studies; biological assessments; other unpublished materials; or
experts' opinions or personal knowledge.
Habitat is dynamic, and species may move from one area to another
over time. We recognize that critical habitat designated at a
particular point in time may not include all of the habitat areas that
we may later determine are necessary for the recovery of the species.
For these reasons, a critical habitat designation does not signal that
habitat outside the designated area is unimportant or may not be needed
for recovery of the species. Areas that are important to the
conservation of the 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 recovery of this
species. Similarly, critical habitat designations made on the basis of
the best available information at the time of designation will not
control the direction and substance of future recovery plans, habitat
conservation plans, or other species conservation planning efforts if
new information available at the time of these planning efforts calls
for a different outcome.
On August 27, 2019, we published a final rule in the Federal
Register (84 FR 45020) to amend our regulations concerning the
procedures and criteria we use to designate and revise critical
habitat. That rule became effective on September 26, 2019, but, as
stated in
[[Page 50273]]
that rule, the amendments it sets forth apply to ``rules for which a
proposed rule was published after September 26, 2019.'' We published
our proposed critical habitat designation for the slenderclaw crayfish
on October 9, 2018 (83 FR 50582); therefore, the amendments set forth
in the August 27, 2019, final rule (84 FR 45020) do not apply to this
final designation of critical habitat for the slenderclaw crayfish.
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 physical or biological features that
are essential to the conservation of the species and which may require
special management considerations or protection. The regulations at 50
CFR 424.02 define ``physical or biological features essential to the
conservation of the species'' as the features that occur in specific
areas and that are essential to support the life-history needs of the
species, including, but not limited to, water characteristics, soil
type, geological features, sites, prey, vegetation, symbiotic species,
or other features. A feature may be a single habitat characteristic or
a more complex combination of habitat characteristics. Features may
include habitat characteristics that support ephemeral or dynamic
habitat conditions. Features may also be expressed in terms relating to
principles of conservation biology, such as patch size, distribution
distances, and connectivity. For example, physical features might
include gravel of a particular size required for spawning, alkali soil
for seed germination, protective cover for migration, or susceptibility
to flooding or fire that maintains necessary early-successional habitat
characteristics. Biological features might include prey species, forage
grasses, specific kinds or ages of trees for roosting or nesting,
symbiotic fungi, or a particular level of nonnative species consistent
with conservation needs of the listed species. The features may also be
combinations of habitat characteristics and may encompass the
relationship between characteristics or the necessary amount of a
characteristic needed to support the life history of the species. In
considering whether features are essential to the conservation of the
species, the Service may consider an appropriate quality, quantity, and
spatial and temporal arrangement of habitat characteristics in the
context of the life-history needs, condition, and status of the
species. These include, but are not limited to:
(1) Space for individual and population growth and for normal
behavior;
(2) Food, water, air, light, minerals, or other nutritional or
physiological requirements;
(3) Cover or shelter;
(4) Sites for breeding, reproduction, or rearing (or development)
of offspring; and
(5) Habitats that are protected from disturbance or are
representative of the historical, geographical, and ecological
distributions of a species.
We derive the specific physical or biological features essential
for slenderclaw crayfish from studies of this species' and similar
crayfish species' habitat, ecology, and life history. The primary
habitat elements that influence resiliency of the slenderclaw crayfish
include water quantity, water quality, substrate, interstitial space,
and habitat connectivity. More detail of the habitat and resource needs
are summarized in the Habitat section of the proposed listing
designation of critical habitat rule for the slenderclaw crayfish (83
FR 50582; October 9, 2018) and the SSA report. We use the ADEM water
quality standards for fish and wildlife criteria to determine the
minimum standards of water quality necessary for the slenderclaw
crayfish. A full description of the needs of individuals, populations,
and the species is available from the SSA report; the resource needs of
individuals are summarized below in Table 1.
Table 1--Resource Needs for Slenderclaw Crayfish To Complete Each Life
Stage
------------------------------------------------------------------------
Life stage Resources needed
------------------------------------------------------------------------
Fertilized Eggs................... Female to carry eggs.
Water to oxygenate eggs.
Female to fan eggs to
prevent sediment buildup and
oxygenate water as needed.
Female to shelter in
boulder/cobble substrate and
available interstitial space.
Juveniles......................... Female to carry juveniles
in early stage.
Water.
Food (likely aquatic
macroinvertebrates).
Boulder/cobble substrate
and available interstitial space
for shelter.
Adults............................ Water.
Food (likely omnivorous,
opportunistic, and generalist
feeders).
Boulder/cobble substrate
and available interstitial space
for shelter.
------------------------------------------------------------------------
Summary of Essential Physical or Biological Features
In summary, we derive the specific physical or biological features
essential to the conservation of the slenderclaw crayfish from studies
of this species' and similar crayfish species' habitat, ecology, and
life history, as described above. Additional information can be found
in the SSA report (Service 2019, entire) available on https://www.regulations.gov under Docket No. FWS-R4-ES-2018-0069. We have
determined that the following physical or biological features are
essential to the conservation of the slenderclaw crayfish:
(1) Geomorphically stable, small to medium, flowing streams:
(a) That are typically 19.8 feet (ft) (6 meters (m)) wide or
smaller;
(b) With attributes ranging from:
(i) Streams with predominantly large boulders and fractured
bedrock, with widths from 16.4 to 19.7 ft (5 to 6 m), low to no
turbidity, and depths up to 2.3 ft (0.7 m), to
(ii) Streams dominated by small substrate types with a mix of
cobble, gravel, and sand, with widths of approximately 9.8 feet (3 m),
low to no turbidity, and depths up to 0.5 feet (0.15 m);
(c) With substrate consisting of boulder and cobble containing
abundant interstitial spaces for sheltering and breeding; and
(d) With intact riparian cover to maintain stream morphology and to
reduce erosion and sediment inputs.
(2) Seasonal water flows, or a hydrologic flow regime (which
includes the severity, frequency, duration, and seasonality of
discharge over time),
[[Page 50274]]
necessary to maintain benthic habitats where the species is found and
to maintain connectivity of streams with the floodplain, allowing the
exchange of nutrients and sediment for maintenance of the crayfish's
habitat and food availability.
(3) Appropriate water and sediment quality (including, but not
limited to, conductivity; hardness; turbidity; temperature; pH; and
minimal levels of ammonia, heavy metals, pesticides, animal waste
products, and nitrogen, phosphorus, and potassium fertilizers)
necessary to sustain natural physiological processes for normal
behavior, growth, and viability of all life stages.
(4) Prey base of aquatic macroinvertebrates and detritus. Prey
items may include, but are not limited to, insect larvae, snails and
their eggs, fish and their eggs, and plant and animal detritus.
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 that are essential to the conservation of
the species and which may require special management considerations or
protection. The features essential to the conservation of the
slenderclaw crayfish may require special management considerations or
protections to reduce the following threats: (1) Impacts from invasive
species, including the nonnative virile crayfish; (2) nutrient
pollution from agricultural activities that impact water quantity and
quality; (3) significant alteration of water quality and water
quantity, including conversion of streams to impounded areas; (4)
culvert and pipe installation that creates barriers to movement; and
(5) other watershed and floodplain disturbances that release sediments
or nutrients into the water.
Management activities that could ameliorate these threats include,
but are not limited to: Control and removal of introduced invasive
species; limiting the spreading of poultry litter to time periods of
dry, stable weather conditions; use of best management practices
designed to reduce sedimentation, erosion, and bank side destruction;
protection of riparian corridors and retention of sufficient canopy
cover along banks; moderation of surface and ground water withdrawals
to maintain natural flow regimes; and reduction of other watershed and
floodplain disturbances that release sediments, pollutants, or
nutrients into the water.
Criteria Used To Identify Critical Habitat
As required by section 4(b)(2) of the Act, we use the best
scientific data available to designate critical habitat. In accordance
with the Act and our implementing regulations at 50 CFR 424.12(b), we
review available information pertaining to the habitat requirements of
the species and identify specific areas within the geographical area
occupied by the species at the time of listing and any specific areas
outside the geographical area occupied by the species to be considered
for designation as critical habitat.
The current distribution of the slenderclaw crayfish is much
reduced from its historical distribution in one (Short Creek watershed)
of the two populations. The currently occupied sites in the Short Creek
watershed occur in a single tributary (Shoal Creek), and one
catastrophic event could impact this entire population. In addition,
the nonnative virile crayfish occupies sites within the Short Creek
watershed, including the type locality for the slenderclaw crayfish in
Short Creek in which the slenderclaw crayfish no longer occurs. We
anticipate that recovery will require continued protection of existing
populations and habitat, as well as establishing sites in additional
streams that more closely approximate its historical distribution in
order to ensure there are adequate numbers of crayfish in stable
populations and that these populations have multiple sites occurring in
at least two streams within each watershed. This goal will help ensure
that catastrophic events, such as a chemical spill, cannot
simultaneously affect all known populations.
Sources of data for this critical habitat designation include
numerous survey reports on streams throughout the species' range and
databases maintained by crayfish experts and universities (Bouchard and
Hobbs 1976, entire; Bearden 2017, unpublished data; Schuster 2017,
unpublished data; Taylor 2017, unpublished data; Service 2018, entire).
We have also reviewed available information that pertains to the
habitat requirements of this species. Sources of information on habitat
requirements include surveys conducted at occupied sites and published
in agency reports, and data collected during monitoring efforts.
Areas Occupied at the Time of Listing
For locations within the geographic area occupied by the species at
the time of listing, we identified stream channels that currently
support populations of the slenderclaw crayfish. We defined ``current''
as stream channels with observations of the species from 2009 to the
present. Due to the recent breadth and intensity of survey efforts for
the slenderclaw crayfish throughout the historical range of the
species, it is reasonable to assume that streams with no positive
surveys since 2009 should not be considered occupied for the purpose of
our analysis. Within these areas, we delineated critical habitat unit
boundaries using the following process:
We evaluated habitat suitability of stream channels within the
geographical area occupied at the time of listing, and retained for
further consideration those streams that contain one or more of the
physical or biological features to support life-history functions
essential to conservation of the species. We refined the starting and
ending points of units by evaluating the presence or absence of
appropriate physical or biological features. We selected the headwaters
as upstream cutoff points for each stream and downstream cutoff points
that omit areas that are not suitable habitat. For example, the
Guntersville Lake Tennessee Valley Authority project boundary was
selected as an endpoint for one unit, as there was a change to
unsuitable parameters (e.g., impounded waters).
Based on this analysis, the following streams meet criteria for
areas occupied by the species at the time of listing: Bengis Creek,
Scarham Creek, Shoal Creek, Short Creek, Town Creek, and Whippoorwill
Creek (see Unit Descriptions, below). This list does not include all
stream segments known to have been occupied by the species
historically; rather, it includes only the occupied stream segments
within the historical range that have also retained one or more of the
physical or biological features that will allow for the maintenance and
expansion of existing populations.
Areas Outside the Geographical Area Occupied at the Time of Listing
To consider for designation areas not occupied by the species at
the time of listing, we must demonstrate that these areas are essential
for the conservation of the species. To determine if these areas are
essential for the conservation of the slenderclaw crayfish, we
considered the life history, status, habitat elements, and conservation
needs of the species such as:
(1) The importance of the stream to the overall status of the
species, the importance of the stream to the prevention of extinction,
and the
[[Page 50275]]
stream's contribution to future recovery of the slenderclaw crayfish;
(2) whether the area is and could be maintained or restored to
contain the necessary habitat (water quantity, substrate, interstitial
space, and connectivity) to support the slenderclaw crayfish;
(3) whether the site provides connectivity between occupied sites
for genetic exchange;
(4) whether a population of the species could be reestablished in
the location; and
(5) whether the virile crayfish is currently present in the stream.
For the one subunit containing areas outside the geographical area
occupied by the species at the time of listing, we delineated critical
habitat unit boundaries by evaluating stream segments not known to have
been occupied at listing (i.e., outside of the geographical area
occupied by the species) but that are within the historical range of
the species to determine if they are essential for the survival and
recovery of the species. Essential areas are those that:
(a) Expand the geographical distribution within areas not occupied
at the time of listing across the historical range of the species;
(b) Were determined to be of suitable habitat and contain the
primary habitat elements (water quantity, substrate, interstitial
space, and connectivity) that support the viability of the slenderclaw
crayfish; and
(c) Are connected to other occupied areas, which will enhance
genetic exchange between populations.
Based on this analysis, Scarham-Laurel Creek was identified as
meeting the criteria for areas outside the geographical area occupied
at the time of listing that are essential for the conservation of the
species (see Subunit 2b unit description below).
General Information on the Maps of the Critical Habitat Designation
When determining critical habitat boundaries, we made every effort
to avoid including developed areas such as lands covered by buildings,
pavement, and other structures because such lands lack physical or
biological features necessary for slenderclaw crayfish. The scale of
the maps we prepared under the parameters for publication within the
Code of Federal Regulations may not reflect the exclusion of such
developed lands. Any such lands inadvertently left inside critical
habitat boundaries shown on the maps of this final rule have been
excluded by text in the rule and are not included for designation as
critical habitat. Therefore, a Federal action involving these lands
would not trigger section 7 consultation under the Act with respect to
critical habitat and the requirement of no adverse modification unless
the specific action would affect the physical or biological features in
the adjacent critical habitat.
We are designating critical habitat in areas within the
geographical area occupied by the species at the time of listing. We
also are designating areas outside the geographical area occupied by
the species at the time of listing that were historically occupied but
are presently unoccupied, because we have determined that such areas
are essential for the conservation of the species (see description of
Subunit 2b below for explanation).
The two occupied units were designated based on one or more of the
elements of physical or biological features being present to support
slenderclaw crayfish life processes. Some stream segments within the
units contained all of the identified elements of physical or
biological features and supported multiple life processes. Some stream
segments contained only some elements of the physical or biological
features necessary to support the slenderclaw crayfish's particular use
of that habitat.
The critical habitat designation is defined by the map or maps, as
modified by any accompanying regulatory text, presented at the end of
this document in the rule portion. We include more detailed information
on the boundaries of the critical habitat designation in the discussion
of individual units below. 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 under Docket No. FWS-R4-ES-2018-0069, and at the
field office responsible for the designation (see FOR FURTHER
INFORMATION CONTACT, above).
Final Critical Habitat Designation
We are designating approximately 78 river mi (126 river km) in two
units as critical habitat for the slenderclaw crayfish. The critical
habitat areas, described below, constitute our current best assessment
of areas that meet the definition of critical habitat for the
slenderclaw crayfish. The two units are: (1) Town Creek Unit, and (2)
Short Creek Unit. Unit 2 is subdivided into two subunits: (2a) Shoal
Creek and Short Creek subunit, and (2b) Scarham-Laurel Creek subunit.
Table 2 shows the name, occupancy of the unit, land ownership of the
riparian areas surrounding the units, and approximate river miles of
the designated critical habitat units for the slenderclaw crayfish.
Table 2--Designated Critical Habitat Units for the Slenderclaw Crayfish
----------------------------------------------------------------------------------------------------------------
Length of unit
Stream(s) Occupied at the time of Ownership in river miles
listing (kilometers)
----------------------------------------------------------------------------------------------------------------
Unit 1--Town Creek
----------------------------------------------------------------------------------------------------------------
Bengis and Town Creeks.................. Yes....................... Private................... 42 (67)
----------------------------------------------------------------------------------------------------------------
Unit 2--Short Creek
----------------------------------------------------------------------------------------------------------------
Subunit 2a--Shoal Creek and Short Creek:
Scarham, Shoal, Short, and Yes....................... Private................... 10 (17)
Whippoorwill Creeks.
Subunit 2b--Scarham-Laurel Creek:
Scarham-Laurel Creek................ No........................ Private................... 26 (42)
Total........................... .......................... .......................... 78 (126)
----------------------------------------------------------------------------------------------------------------
Note: Area sizes may not sum due to rounding.
[[Page 50276]]
We present brief descriptions of all units, and reasons why they
meet the definition of critical habitat for the slenderclaw crayfish,
below.
Unit 1: Town Creek
Unit 1 consists of 41.8 river mi (67.2 river km) of Bengis and Town
creeks in DeKalb County, Alabama. Unit 1 includes stream habitat up to
bank full height, consisting of the headwaters of Bengis Creek to its
confluence with Town Creek and upstream to the headwaters of Town
Creek. Stream channels in and lands adjacent to Unit 1 are privately
owned except for bridge crossings and road easements, which are owned
by the State and County. The slenderclaw crayfish occupies all stream
reaches in this unit, and the unit currently supports all breeding,
feeding, and sheltering needs essential to the conservation of the
slenderclaw crayfish.
Special management considerations or protection may be required for
control and removal of introduced invasive species, including the
nonnative virile crayfish, which occupies the boulder and cobble
habitats and interstitial spaces within these habitats that the
slenderclaw crayfish needs. At present, the virile crayfish is not
present in this unit, although it has been documented just outside the
watershed boundary. However, based on future projections in the SSA
report, the virile crayfish is expected to be present in the Town Creek
watershed within the next 2 years.
In addition, special management considerations or protection may be
required to address water withdrawals and drought as well as excess
nutrients, sediment, and pollutants that enter the streams and serve as
indicators of other forms of pollution, such as bacteria and toxins. A
primary source of these types of pollution is agricultural runoff.
However, during recent survey efforts for the slenderclaw crayfish,
water quality analysis found lead measurements in Bengis Creek that
exceeded the acute and chronic aquatic life criteria set by EPA and
ADEM, and elevated ammonia concentrations in Town Creek. Special
management or protection may include moderating surface and ground
water withdrawals, using best management practices to reduce
sedimentation, and reducing watershed and floodplain disturbances that
release pollutants and nutrients into the water.
Unit 2: Short Creek
Subunit 2a--Shoal Creek and Short Creek: Subunit 2a consists of
10.3 river mi (16.6 river km) of Scarham, Shoal, Short, and
Whippoorwill Creeks in DeKalb and Marshall Counties, Alabama. Subunit
2a includes stream habitat up to bank full height, consisting of the
headwaters of Shoal Creek to its confluence with Whippoorwill Creek,
Whippoorwill Creek to its confluence with Scarham Creek, Scarham Creek
to its confluence with Short Creek, and Short Creek downstream to the
Guntersville Lake Tennessee Valley Authority project boundary. Stream
channels in and lands adjacent to subunit 2a are privately owned except
for bridge crossings and road easements, which are owned by the State
and Counties. The slenderclaw crayfish occupies all stream reaches in
this unit, and the unit currently supports all breeding, feeding, and
sheltering needs essential to the conservation of the slenderclaw
crayfish.
Special management considerations or protection may be required for
control and removal of introduced invasive species, including the
virile crayfish (see Unit 1 discussion, above). At present, the virile
crayfish is present at sites in Short Creek and Drum Creek within the
Short Creek watershed and just outside of the unit boundary in
Guntersville Lake. Based on future projections in the SSA report, the
virile crayfish is expected to be present in more tributaries within
the Short Creek watershed within the next 2 to 5 years.
In addition, special management considerations or protection may be
required to address water withdrawals and drought as well as excess
nutrients, sediment, and pollutants that enter the streams and serve as
indicators of other forms of pollution such as bacteria and toxins. A
primary source of these types of pollution is agricultural runoff.
During recent survey efforts for the slenderclaw crayfish, water
quality analysis indicated that impaired water quality due to
nutrients, bacteria, and levels of atrazine may be of concern in the
Short Creek watershed. Special management or protection may include
moderating surface and ground water withdrawals, using best management
practices to reduce sedimentation, and reducing watershed and
floodplain disturbances that release pollutants and nutrients into the
water.
Subunit 2b--Scarham-Laurel Creek: Subunit 2b consists of 25.9 river
mi (41.7 river km) of Scarham-Laurel Creek in DeKalb and Marshall
Counties, Alabama. Subunit 2b includes stream habitat up to bank full
height, consisting of the headwaters of Scarham-Laurel Creek to its
confluence with Short Creek. Stream channels in and lands adjacent to
Subunit 2b are privately owned except for bridge crossings and road
easements, which are owned by the State and Counties. The subunit is
connected to Subunit 2a.
This subunit is unoccupied by the species but is considered to be
essential for the conservation of the species. Scarham-Laurel Creek is
within the historical range of the slenderclaw crayfish but is not
within the geographical range occupied by the species at the time of
listing. The slenderclaw crayfish has not been documented at sites in
Scarham-Laurel Creek in over 40 years, and we presume those
historically occupied sites to be extirpated. Scarham-Laurel Creek is a
small to medium, flowing stream with substrate consisting of boulder
and cobble containing interstitial spaces for sheltering and breeding.
Although it is currently unoccupied, this subunit contains some or all
of the physical or biological features necessary for the conservation
of the slenderclaw crayfish. This subunit possesses characteristics as
described by physical or biological feature 1 (geomorphically stable,
small to medium, flowing streams with substrate consisting of boulder
and cobble and intact riparian cover); physical or biological feature 2
(seasonal water flows, or a hydrologic flow regime, necessary to
maintain benthic habitats where the species is found and to maintain
connectivity of streams); and physical or biological feature 4 (prey
base of aquatic macroinvertebrates and detritus). Physical or
biological feature 3 (appropriate water and sediment quality) is
degraded in this subunit, and with appropriate management and
restoration actions, this feature can be restored.
In terms of water quality, Scarham-Laurel Creek is in restorable
condition, and is currently devoid of the virile crayfish. Water
quality concerns have been documented within Scarham-Laurel Creek,
causing it to be listed on Alabama's 303(d) list of impaired waters for
impacts from pesticides, siltation, ammonia, low dissolved oxygen/
organic enrichment, and pathogens from agricultural sources in 1998
(ADEM 1996, p. 1). In 2004, Scarham Creek was removed from the 303(d)
list after TMDLs were established (ADEM 2002, p. 5); however, recent
water quality analysis indicated that water quality was impaired within
the Short Creek watershed in which Scarham-Laurel Creek is located
(Bearden et al. 2017, p. 32). When the water quality of Scarham-Laurel
Creek is restored, the stream could be an area for population expansion
within the Short Creek watershed, in that this subunit is
[[Page 50277]]
connected to the occupied Shoal Creek and Short Creek subunit, and
thereby provide redundancy needed to support the species' recovery.
Therefore, we conclude that this stream is essential for the
conservation of the slenderclaw crayfish, because it will provide
habitat for population expansion in known historical habitat that is
necessary to increase viability of the species by increasing its
resiliency, redundancy, and representation.
Exemptions
Application of Section 4(a)(3) of the Act
Section 4(a)(3)(B)(i) of the Act (16 U.S.C. 1533(a)(3)(B)(i))
provides that the Secretary shall not designate as critical habitat any
lands or other geographical areas owned or controlled by the Department
of Defense, or designated for its use, that are subject to an
integrated natural resources management plan (INRMP) prepared under
section 101 of the Sikes Act (16 U.S.C. 670a), if the Secretary
determines in writing that such plan provides a benefit to the species
for which critical habitat is proposed for designation. There are no
Department of Defense lands with a completed INRMP within the final
critical habitat designation.
Exclusions
Consideration of Impacts Under Section 4(b)(2) of the Act
Section 4(b)(2) of the Act states that the Secretary shall
designate and make revisions to critical habitat on the basis of the
best available scientific data after taking into consideration the
economic impact, national security impact, and any other relevant
impact of specifying any particular area as critical habitat. The
Secretary may exclude an area from critical habitat if she determines
that the benefits of such exclusion outweigh the benefits of specifying
such area as part of the critical habitat, unless she determines, based
on the best scientific data available, that the failure to designate
such area as critical habitat will result in the extinction of the
species. In making that determination, the statute on its face, as well
as the legislative history, are clear that the Secretary has broad
discretion regarding which factor(s) to use and how much weight to give
to any factor.
Consideration of Economic Impacts
Section 4(b)(2) of the Act and its implementing regulations require
that we consider the economic impact that may result from a designation
of critical habitat. In order to consider economic impacts, we prepared
an incremental effects memorandum (IEM) and screening analysis which
together with our narrative and interpretation of effects we consider
our draft economic analysis (DEA) of the proposed critical habitat
designation and related factors (IEc 2018, entire). The analysis, dated
June 29, 2018, addressed probable economic impacts of critical habitat
designation for the slenderclaw crayfish. The DEA was made available
for public review from October 9, 2018, through December 10, 2018
(Industrial Economics, Inc. (IEc) 2018, entire), but we did not receive
any comments on the draft DEA. Additional information relevant to the
probable incremental economic impacts of critical habitat designation
for the slenderclaw crayfish is summarized below and available in the
screening analysis for the slenderclaw crayfish (IEc 2018, entire),
available at https://www.regulations.gov.
The final critical habitat designation for the slenderclaw crayfish
totals approximately 78 river mi (126 river km), which includes both
occupied and unoccupied streams. This final critical habitat
designation is likely to result, annually, in a maximum of three
informal section 7 consultations and five technical assistance efforts
at a total incremental cost of less than $10,000 per year. Within the
occupied streams, any actions that may affect the species would likely
also affect critical habitat, and it is unlikely that any additional
conservation efforts would be required to address the adverse
modification standard over and above those recommended as necessary to
avoid jeopardizing the continued existence of the species. Within all
unoccupied critical habitat, the Service will consult with Federal
agencies on any projects that occur within the hydrologic unit code
(HUC) 12-digit watershed boundaries, due to overlap with the ranges of
other listed species such as Indiana bat (Myotis sodalis), gray bat
(Myotis grisescens), northern long-eared bat (Myotis septentrionalis),
harperella (Ptilimnium nodosum), and green pitcher-plant (Sarracenia
oreophila) in these HUCs. In addition, all of the HUC 12-digit
watershed boundaries containing unoccupied habitat are within the HUC
12-digit range of watersheds occupied by slenderclaw crayfish. Thus, no
incremental project modifications resulting solely from the presence of
unoccupied critical habitat are anticipated. Therefore, the only
additional costs that are expected in all of the critical habitat
designation are administrative costs, due to the fact that this
additional analysis will require time and resources by both the Federal
action agency and the Service.
Exclusions Based on Economic Impacts
As discussed above, the Service considered the economic impacts of
the critical habitat designation and the Secretary is not exercising
her discretion to exclude any areas from this designation of critical
habitat for the slenderclaw crayfish based on economic impacts. A copy
of the IEM and screening analysis with supporting documents may be
obtained by contacting the Alabama Ecological Services Field Office
(see ADDRESSES) or by downloading from the internet at https://www.regulations.gov.
Exclusions Based on Impacts on National Security and Homeland Security
Section 4(a)(3)(B)(i) of the Act may not cover all Department of
Defense (DoD) lands or areas that pose potential national-security
concerns (e.g., a DoD installation that is in the process of revising
its INRMP for a newly listed species or a species previously not
covered). If a particular area is not covered under section
4(a)(3)(B)(i), national-security or homeland-security concerns are not
a factor in the process of determining what areas meet the definition
of ``critical habitat.'' Nevertheless, when designating critical
habitat under section 4(b)(2) of the Act, the Service must consider
impacts on national security, including homeland security, on lands or
areas not covered by section 4(a)(3)(B)(i) of the Act. Accordingly, we
will always consider for exclusion from the designation areas for which
DoD, Department of Homeland Security (DHS), or another Federal agency
has requested exclusion based on an assertion of national-security or
homeland-security concerns. However, no lands within the designation of
critical habitat for slenderclaw crayfish are owned or managed by DoD
or DHS. Consequently, the Secretary is not exercising her discretion to
exclude any areas from the final designation based on impacts on
national security.
Exclusions Based on Other Relevant Impacts
Under section 4(b)(2) of the Act, we consider any other relevant
impacts, in addition to economic impacts and impacts on national
security. We consider a number of factors including whether there are
permitted conservation plans covering the species in the area, such as
habitat conservation plans, safe harbor agreements, or candidate
conservation agreements with assurances, or whether there are non-
permitted conservation agreements and
[[Page 50278]]
partnerships that would be encouraged by designation of, or exclusion
from, critical habitat. In addition, we look at the existence of Tribal
conservation plans and partnerships and consider the government-to-
government relationship of the United States with Tribal entities. We
also consider any social impacts that might occur because of the
designation.
In preparing this final rule, we have determined that there are
currently no permitted conservation plans or other non-permitted
conservation agreements or partnerships for the slenderclaw crayfish,
and the final critical habitat designation does not include any Tribal
lands or trust resources. We anticipate no impact on Tribal lands,
partnerships, permitted or non-permitted plans, or agreements from this
critical habitat designation. Accordingly, the Secretary is not
exercising her discretion to exclude any areas from the final
designation based on other relevant impacts.
Effects of Critical Habitat Designation
Section 7 Consultation
Section 7(a) of the Act requires Federal agencies to evaluate their
actions with respect to critical habitat of any species that is listed
as an endangered or threatened species. Regulations implementing this
interagency cooperation provision of the Act are codified at 50 CFR
part 402. Section 7(a)(2) of the Act requires Federal agencies,
including the Service, to ensure that any action they fund, authorize,
or carry out is not likely to result in the destruction or adverse
modification of designated critical habitat of any listed 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 result
in the destruction or adverse modification of proposed critical
habitat.
We published a final regulation with a revised definition of
destruction or adverse modification on August 27, 2019 (84 FR 45020).
Destruction or adverse modification means a direct or indirect
alteration that appreciably diminishes the value of critical habitat as
a whole for the conservation of a listed species. If a Federal action
may affect a listed species' critical habitat, the responsible Federal
agency (action agency) must enter into consultation with us. Examples
of actions that are subject to the section 7 consultation process are
actions on State, Tribal, local, or private lands that require a
Federal permit (such as a permit from the U.S. Army Corps of Engineers
under section 404 of the Clean Water Act (33 U.S.C. 1251 et seq.) or a
permit from the Service under section 10 of the Act) or that involve
some other Federal action (such as funding from the Federal Highway
Administration, Federal Aviation Administration, or the Federal
Emergency Management Agency). Federal actions not affecting listed
species or critical habitat--and actions on State, Tribal, local, or
private lands that are not federally funded, authorized, or carried out
by a Federal agency--do not require section 7 consultation.
Compliance with the requirements of section 7(a)(2) of the Act is
documented through our issuance of:
(1) A concurrence letter for Federal actions that may affect, but
are not likely to adversely affect, critical habitat; or
(2) A biological opinion for Federal actions that may affect, and
are likely to adversely affect, critical habitat.
When we issue a biological opinion concluding that a project is
likely to 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 destruction or adverse
modification of critical habitat. We define ``reasonable and prudent
alternatives'' (50 CFR 402.02) as alternative actions identified during
consultation that:
(1) Can be implemented in a manner consistent with the intended
purpose of the action,
(2) Can be implemented consistent with the scope of the Federal
agency's legal authority and jurisdiction,
(3) Are economically and technologically feasible, and
(4) Would, in the Service Director's opinion, avoid the likelihood
of destroying or adversely modifying critical habitat.
Reasonable and prudent alternatives can vary from slight project
modifications to extensive redesign or relocation of the project. Costs
associated with implementing a reasonable and prudent alternative are
similarly variable.
Regulations at 50 CFR 402.16 set forth requirements for Federal
agencies to reinitiate formal consultation on previously reviewed
actions. These requirements apply when the Federal agency has retained
discretionary involvement or control over the action (or the agency's
discretionary involvement or control is authorized by law) and,
subsequent to the previous consultation, we have listed a new species
or designated critical habitat that may be affected by the Federal
action, or the action has been modified in a manner that affects the
species or critical habitat in a way not considered in the previous
consultation. In such situations, Federal agencies sometimes may need
to request reinitiation of consultation with us, but the regulations
also specify some exceptions to the requirement to reinitiate
consultation on specific land management plans after subsequently
listing a new species or designating new critical habitat. See the
regulations for a description of those exceptions.
Application of the ``Adverse Modification'' Standard
The key factor related to the destruction or adverse modification
determination is whether implementation of the proposed Federal action
directly or indirectly alters the designated critical habitat in a way
that appreciably diminishes the value of the critical habitat as a
whole for the conservation of the listed species. As discussed above,
the role of critical habitat is to support physical or biological
features essential to the conservation of a listed species and provide
for the conservation of the species.
Section 4(b)(8) of the Act requires us to briefly evaluate and
describe, in any proposed or final regulation that designates critical
habitat, activities involving a Federal action that may violate section
7(a)(2) of the Act by destroying or adversely modifying such habitat,
or that may be affected by such designation.
Activities that the Services may find are likely to destroy or
adversely modify critical habitat, during a consultation under section
7(a)(2) of the Act, include, but are not limited to:
(1) Actions that would alter the minimum flow or the existing flow
regime. Such activities could include, but are not limited to,
impoundment, channelization, water diversion, and water withdrawal.
These activities could eliminate or reduce the habitat necessary for
the growth and reproduction of the slenderclaw crayfish by decreasing
or altering seasonal flows to levels that would adversely affect the
species' ability to complete its life cycle.
(2) Actions that would significantly alter water chemistry or
quality. Such activities could include, but are not limited to, release
of chemicals (including pharmaceuticals, metals, and salts) or
biological pollutants into the surface water or connected groundwater
at a point source or by dispersed release (non-point source). These
activities could alter water conditions to levels that are beyond the
tolerances of the slenderclaw crayfish and result in direct
[[Page 50279]]
or cumulative adverse effects to these individuals and their life
cycles.
(3) Actions that would significantly increase sediment deposition
within the stream channel. Such activities could include, but are not
limited to, excessive sedimentation from livestock grazing, road
construction, channel alteration, poor forestry management, off-road
vehicle use, and other watershed and floodplain disturbances. These
activities could eliminate or reduce the habitat necessary for the
growth and reproduction of the slenderclaw crayfish by increasing the
sediment deposition to levels that would adversely affect the species'
ability to complete its life cycle.
(4) Actions that would significantly increase eutrophic conditions.
Such activities could include, but are not limited to, release of
nutrients into the surface water or connected groundwater at a point
source or by dispersed release (non-point source). These activities can
result in excessive nutrients and algae filling streams and reducing
habitat for the slenderclaw crayfish, degrading water quality from
excessive nutrients and during algae decay, and decreasing oxygen
levels to levels below the tolerances of the slenderclaw crayfish.
(5) Actions that would significantly alter channel morphology or
geometry or decrease connectivity. Such activities could include, but
are not limited to, channelization, impoundment, road and bridge
construction, mining, dredging, and destruction of riparian vegetation.
These activities may lead to changes in water flows and levels that
would degrade or eliminate the slenderclaw crayfish and its habitats.
These actions can also lead to increased sedimentation and degradation
in water quality to levels that are beyond the tolerances of the
slenderclaw crayfish.
(6) Actions that result in the introduction, spread, or
augmentation of nonnative aquatic species in occupied stream segments,
or in stream segments that are hydrologically connected to occupied
stream segments, or introduction of other species that compete with or
prey on the slenderclaw crayfish. Possible actions could include, but
are not limited to, stocking of nonnative crayfishes and fishes,
stocking of sport fish, or other related actions. These activities can
introduce parasites or disease; result in direct predation or direct
competition; or affect the growth, reproduction, and survival of the
slenderclaw crayfish.
Required Determinations
Regulatory Planning and Review (Executive Orders 12866 and 13563)
Executive Order 12866 provides that the Office of Information and
Regulatory Affairs in the Office of Management and Budget (OMB) 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, are not required to evaluate the
potential impacts to indirectly regulated entities. The regulatory
mechanism through which critical habitat protections are realized is
section 7 of the Act, which requires Federal agencies, in consultation
with the Service, to ensure that any action authorized, funded, or
carried out by the agency is not likely to destroy or adversely modify
critical habitat. Therefore, under section 7, only Federal action
agencies are directly subject to the specific regulatory requirement
(avoiding destruction and adverse modification) imposed by critical
habitat designation. Consequently, it is our position that only Federal
action agencies would be directly regulated by this designation. There
is no requirement under RFA to evaluate the potential impacts to
entities not directly regulated. Moreover, Federal agencies are not
small entities. Therefore, because no small entities would be directly
regulated by this rulemaking, the Service certifies that the final
critical habitat designation will not have a significant economic
impact on a substantial number of small entities.
During the development of this final rule we reviewed and evaluated
all information submitted during the comment period that may pertain to
our consideration of the probable incremental economic impacts of this
critical habitat designation. Based on this information, we affirm our
certification that this final critical habitat designation will not
have a
[[Page 50280]]
significant economic impact on a substantial number of small entities,
and a regulatory flexibility analysis is not required.
Energy Supply, Distribution, or Use--Executive Order 13211
Executive Order 13211 (Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use) requires
agencies to prepare Statements of Energy Effects when undertaking
certain actions. OMB has provided guidance for implementing this
Executive Order that outlines nine outcomes that may constitute ``a
significant adverse effect'' when compared to not taking the regulatory
action under consideration. The economic analysis finds that none of
these criteria are relevant to this analysis. Thus, based on
information in the economic analysis, energy-related impacts associated
with slenderclaw crayfish conservation activities within critical
habitat are not expected. As such, the designation of critical habitat
is not expected to significantly affect energy supplies, distribution,
or use. Therefore, this action is not a significant energy action, and
no Statement of Energy Effects is required.
Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.)
In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501
et seq.), we make the following findings:
(1) This rule 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 conclude that this rule would not significantly or uniquely
affect small governments because the lands within and adjacent to the
streams being designated as critical habitat are owned by private
landowners. These government entities do not fit the definition of
``small governmental jurisdiction.'' Consequently, we conclude that the
critical habitat designation would not significantly or uniquely affect
small government entities. As such, a Small Government Agency Plan is
not required.
Takings--Executive Order 12630
In accordance with E.O. 12630 (Government Actions and Interference
with Constitutionally Protected Private Property Rights), we have
analyzed the potential takings implications of designating critical
habitat for slenderclaw crayfish in a takings implications assessment.
The Act does not authorize the Service to regulate private actions on
private lands or confiscate private property as a result of critical
habitat designation. Designation of critical habitat does not affect
land ownership, or establish any closures, or restrictions on use of or
access to the designated areas. Furthermore, the designation of
critical habitat does not affect landowner actions that do not require
Federal funding or permits, nor does it preclude development of habitat
conservation programs or issuance of incidental take permits to permit
actions that do require Federal funding or permits to go forward.
However, Federal agencies are prohibited from carrying out, funding, or
authorizing actions that would destroy or adversely modify critical
habitat. A takings implications assessment has been completed and
concludes that this designation of critical habitat for slenderclaw
crayfish does not pose significant takings implications for lands
within or affected by the designation.
Federalism--Executive Order 13132
In accordance with E.O. 13132 (Federalism), this rule does not have
significant federalism effects. A federalism summary impact statement
is not required. In keeping with Department of the Interior and
Department of Commerce policy, we requested information from, and
coordinated development of the proposed critical habitat designation
with, the appropriate State resource agency in Alabama. We did not
receive comments from Alabama. 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 State, or on the relationship
between the National Government and the State, or on the distribution
of powers and responsibilities among the various levels of government.
The designation may have some benefit to these governments because the
areas that contain the features essential to the conservation of the
species are more clearly defined, and the physical or biological
features of the habitat necessary to the conservation of the species
are specifically identified. This information does not alter where and
what federally sponsored activities may occur. However, it may assist
these local governments in long-range planning (because these local
governments no longer have to wait for case-by-case section 7
consultations to occur).
Where State and local governments require approval or authorization
from a
[[Page 50281]]
Federal agency for actions that may affect critical habitat,
consultation under section 7(a)(2) of the Act would be required. While
non-Federal entities that receive Federal funding, assistance, or
permits, or that otherwise require approval or authorization from a
Federal agency for an action, may be indirectly impacted by the
designation of critical habitat, the legally binding duty to avoid
destruction or adverse modification of critical habitat rests squarely
on the Federal agency.
Civil Justice Reform--Executive Order 12988
In accordance with Executive Order 12988 (Civil Justice Reform),
the Office of the Solicitor has determined that the rule does not
unduly burden the judicial system and that it meets the requirements of
sections 3(a) and 3(b)(2) of the order. We are designating critical
habitat in accordance with the provisions of the Act. To assist the
public in understanding the habitat needs of the species, this rule
identifies the elements of physical or biological features essential to
the conservation of the species. The designated areas of critical
habitat are presented on maps, and the rule provides several options
for the interested public to obtain more detailed location information,
if desired.
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.)
This rule does not contain any new collections of information that
require approval by the Office of Management and Budget under the
Paperwork Reduction Act of 1995. 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.)
We have determined that environmental assessments and environmental
impact statements, as defined under the authority of the National
Environmental Policy Act (NEPA), need not be prepared in connection
with listing a species as an endangered or threatened species under the
Act. We published a notice outlining our reasons for this determination
in the Federal Register on October 25, 1983 (48 FR 49244).
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 NEPA 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 identified no Tribal interests
that will be affected by this final rulemaking.
References Cited
A complete list of references cited in the SSA report and this
rulemaking is available on the internet at https://www.regulations.gov
under Docket No. FWS-R4-ES-2018-0069 and upon request from the Alabama
Ecological Services Field Office (see FOR FURTHER INFORMATION CONTACT).
Authors
The primary authors of this final rule are the staff members of the
U.S. Fish and Wildlife Service Species Assessment Team and Alabama
Ecological Services Field Office.
List of Subjects in 50 CFR Part 17
Endangered and threatened species, Exports, Imports, Reporting and
recordkeeping requirements, Transportation.
Regulation Promulgation
Accordingly, we amend part 17, subchapter B of chapter I, title 50
of the Code of Federal Regulations, as set forth below:
PART 17--ENDANGERED AND THREATENED WILDLIFE AND PLANTS
0
1. The authority citation for part 17 continues to read as follows:
Authority: 16 U.S.C. 1361-1407; 1531-1544; and 4201-4245, unless
otherwise noted.
0
2. Amend Sec. 17.11(h) by adding an entry for ``Crayfish,
slenderclaw'' to the List of Endangered and Threatened Wildlife in
alphabetical order under Crustaceans to read as follows:
Sec. 17.11 Endangered and threatened wildlife.
* * * * *
(h) * * *
----------------------------------------------------------------------------------------------------------------
Listing citations and
Common name Scientific name Where listed Status applicable rules
----------------------------------------------------------------------------------------------------------------
* * * * * * *
Crustaceans
* * * * * * *
Crayfish, slenderclaw........... Cambarus cracens.. Wherever found.... E 86 FR [INSERT FEDERAL
REGISTER PAGE WHERE
THE DOCUMENT BEGINS],
9/8/21; 50 CFR
17.95(h)\CH\.
* * * * * * *
----------------------------------------------------------------------------------------------------------------
0
3. Amend Sec. 17.95(h) by adding an entry for ``Slenderclaw Crayfish
(Cambarus cracens)'' after the entry for ``Pecos Amphipod (Gammarus
pecos)'' to read as follows:
Sec. 17.95 Critical habitat--fish and wildlife.
* * * * *
(h) * * *
[[Page 50282]]
Slenderclaw Crayfish (Cambarus cracens)
(1) Critical habitat units are depicted for DeKalb and Marshall
Counties, Alabama, on the maps in this entry.
(2) Within these areas, the physical or biological features
essential to the conservation of the slenderclaw crayfish consist of
the following components:
(i) Geomorphically stable, small to medium, flowing streams:
(A) That are typically 19.8 feet (ft) (6 meters (m)) wide or
smaller;
(B) With attributes ranging from:
(1) Streams with predominantly large boulders and fractured
bedrock, with widths from 16.4 to 19.7 ft (5 to 6 m), low to no
turbidity, and depths up to 2.3 ft (0.7 m); to
(2) Streams dominated by small substrate types with a mix of
cobble, gravel, and sand, with widths of approximately 9.8 feet (3 m),
low to no turbidity, and depths up to 0.5 feet (0.15 m);
(C) With substrate consisting of boulder and cobble containing
abundant interstitial spaces for sheltering and breeding; and
(D) With intact riparian cover to maintain stream morphology and to
reduce erosion and sediment inputs.
(ii) Seasonal water flows, or a hydrologic flow regime (which
includes the severity, frequency, duration, and seasonality of
discharge over time), necessary to maintain benthic habitats where the
species is found and to maintain connectivity of streams with the
floodplain, allowing the exchange of nutrients and sediment for
maintenance of the crayfish's habitat and food availability.
(iii) Appropriate water and sediment quality (including, but not
limited to, conductivity; hardness; turbidity; temperature; pH; and
minimal levels of ammonia, heavy metals, pesticides, animal waste
products, and nitrogen, phosphorus, and potassium fertilizers)
necessary to sustain natural physiological processes for normal
behavior, growth, and viability of all life stages.
(iv) Prey base of aquatic macroinvertebrates and detritus. Prey
items may include, but are not limited to, insect larvae, snails and
their eggs, fish and their eggs, and plant and animal detritus.
(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
October 8, 2021.
(4) Data layers defining map units were created using Universal
Transverse Mercator (UTM) Zone 16N coordinates and species' occurrence
data. The hydrologic data used in the maps were extracted from U.S.
Geological Survey National Hydrography Dataset High Resolution
(1:24,000 scale) using Geographic Coordinate System North American 1983
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 https://www.regulations.gov
under Docket No. FWS-R4-ES-2018-0069 and at the field office
responsible for this designation. You may obtain field office location
information by contacting one of the Service regional offices, the
addresses of which are listed at 50 CFR 2.2.
(5) Note: Index map follows:
BILLING CODE 4333-15-P
[[Page 50283]]
[GRAPHIC] [TIFF OMITTED] TR08SE21.000
(6) Unit 1: Town Creek, DeKalb County, Alabama.
(i) This unit consists of 41.8 river miles (67.2 river kilometers)
of occupied habitat in Bengis and Town Creeks. Unit 1 includes stream
habitat up to bank full height consisting of the headwaters of Bengis
Creek to its confluence with Town Creek and upstream to the headwaters
of Town Creek.
(ii) Map of Unit 1 follows:
[[Page 50284]]
[GRAPHIC] [TIFF OMITTED] TR08SE21.001
(7) Unit 2: Short Creek, DeKalb and Marshall Counties, Alabama.
(i) Subunit 2a: Shoal Creek and Short Creek, DeKalb and Marshall
Counties, Alabama.
(A) This subunit consists of 10.3 river miles (16.6 river
kilometers) of occupied habitat in Scarham, Shoal, Short, and
Whippoorwill Creeks. Subunit 2a includes stream habitat up to bank full
height consisting of the headwaters of Shoal Creek to its confluence
with Whippoorwill Creek, Whippoorwill Creek to its confluence with
Scarham Creek, Scarham Creek to its confluence with Short Creek, and
Short Creek to its downstream extent to the Guntersville Lake Tennessee
Valley Authority project boundary.
(B) Map of Subunit 2a follows:
[[Page 50285]]
[GRAPHIC] [TIFF OMITTED] TR08SE21.002
(ii) Subunit 2b: Scarham-Laurel Creek, DeKalb and Marshall
Counties, Alabama.
(A) This subunit consists of 25.9 river miles (41.7 river
kilometers) of unoccupied habitat in Scarham-Laurel Creek. Subunit 2b
includes stream habitat up to bank full height consisting of the
headwaters of Scarham-Laurel Creek to its confluence with Whippoorwill
Creek. This subunit is a small to medium, flowing stream with substrate
consisting of boulder and cobble containing interstitial spaces for
sheltering and breeding and connected to the occupied subunit 2a.
(B) Map of Subunit 2b follows:
[[Page 50286]]
[GRAPHIC] [TIFF OMITTED] TR08SE21.003
[[Page 50287]]
* * * * *
Martha Williams,
Principal Deputy Director, Exercising the Delegated Authority of the
Director, U.S. Fish and Wildlife Service.
[FR Doc. 2021-19093 Filed 9-7-21; 8:45 am]
BILLING CODE 4333-15-C