Endangered and Threatened Wildlife and Plants; Endangered Status for South Llano Springs Moss and Designation of Critical Habitat, 53609-53627 [2021-20924]

Download as PDF Federal Register / Vol. 86, No. 185 / Tuesday, September 28, 2021 / Proposed Rules 53609 Peiiasco Least Chipmunk (Neotamias minimus atristriatus) Unit 3 • Sierra Blanca ;_ ~ ~ County Bmmdary ~~!."°"'NF Wilderness iN ~ AGENCY: Species Act of 1973, as amended (Act). After a review of the best available scientific and commercial information, we find that listing the species is warranted. This determination also serves as our 12-month finding on a petition to list the South Llano Springs moss. Accordingly, we propose to list the South Llano Springs moss as an endangered species. If we finalize this rule as proposed, it would add this species to the list of Endangered and Threatened Plants and extend the Act’s protections to the species. We also propose to designate critical habitat for the South Llano Springs moss under the Act. In total, approximately 0.19 hectares (0.48 acres) in Edwards County, Texas, fall within the boundaries of the proposed critical habitat designation. We also announce the availability of a draft economic analysis (DEA) of the proposed designation of critical habitat for the South Llano Springs moss. We, the U.S. Fish and Wildlife Service (Service), propose to list the South Llano Springs moss (Donrichardsia macroneuron), an aquatic moss species from Texas, as an endangered species and to designate critical habitat under the Endangered We will accept comments received or postmarked on or before November 29, 2021. Comments submitted electronically using the Federal eRulemaking Portal (see ADDRESSES, below) must be received by 11:59 p.m. Eastern Time on the closing date. We must receive requests for a public hearing, in writing, at the address * * * * * Martha Williams, Principal Deputy Director, Exercising the Delegated Authority of the Director, U.S. Fish and Wildlife Service. [FR Doc. 2021–20934 Filed 9–27–21; 8:45 am] BILLING CODE 4333–15–C DEPARTMENT OF THE INTERIOR Fish and Wildlife Service 50 CFR Part 17 [Docket No. FWS–R2–ES–2020–0015; FF09E21000 FXES11110900000 212] RIN 1018–BD20 Endangered and Threatened Wildlife and Plants; Endangered Status for South Llano Springs Moss and Designation of Critical Habitat Fish and Wildlife Service, Interior. ACTION: Proposed rule. SUMMARY: VerDate Sep<11>2014 17:45 Sep 27, 2021 Jkt 253001 DATES: PO 00000 Frm 00043 Fmt 4702 Sfmt 4702 shown in FOR FURTHER INFORMATION CONTACT by November 12, 2021. ADDRESSES: Written comments: You may submit comments by one of the following methods: (1) Electronically: Go to the Federal eRulemaking Portal: https:// www.regulations.gov. In the Search box, enter the docket number or RIN for this rulemaking (presented above in the document headings). For best results, do not copy and paste either number; instead, type the docket number or RIN into the Search box using hyphens. Then, click on the Search button. On the resulting page, in the Search panel on the left side of the screen, under the Document Type heading, check the Proposed Rule box to locate this document. You may submit a comment by clicking on ‘‘Comment.’’ (2) By hard copy: Submit by U.S. mail to: Public Comments Processing, Attn: FWS–R2–ES–2020–0015, U.S. Fish and Wildlife Service, MS: JAO/1N, 5275 Leesburg Pike, Falls Church, VA 22041– 3803. We request that you send comments only by the methods described above. We will post all comments on https:// www.regulations.gov. This generally means that we will post any personal information you provide us (see E:\FR\FM\28SEP1.SGM 28SEP1 EP28SE21.012</GPH> 2 Miles 53610 Federal Register / Vol. 86, No. 185 / Tuesday, September 28, 2021 / Proposed Rules Information Requested, below, for more information). Availability of supporting materials: For the critical habitat designation, the draft economic analysis and the coordinates or plot points or both from which the maps are generated are included in the administrative record and are available at the Service’s internet site at https://www.fws.gov/ southwest/es/AustinTexas/ and at https://www.regulations.gov under Docket No. FWS–R2–ES–2020–0015. Any additional tools or supporting information that we may develop for the 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: Adam Zerrenner, Field Supervisor, U.S. Fish and Wildlife Service, Austin Ecological Services Field Office, 10711 Burnet Road, Suite 200, Austin, TX 78758; telephone 512–490–0057. 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, if we determine that a species may be an endangered or threatened species throughout all or a significant portion of its range, we are required to promptly publish a proposal in the Federal Register and make a determination on our proposal within 1 year. 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 document does. We propose to list the South Llano Springs moss as an endangered species under the Act, and we propose to designate critical habitat for the species on approximately 0.19 hectares (ha) (0.48 acres (ac)) in Edwards County, Texas. The basis for our action. Under the Act, we may determine that a species is an endangered or threatened species because of 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 VerDate Sep<11>2014 16:08 Sep 27, 2021 Jkt 253001 affecting its continued existence. We have determined that increased groundwater pumping from the Edwards-Trinity aquifer that supplies water for the springs that the South Llano Springs moss is dependent on, as well as flash floods, sedimentation, invasive plant species, small population size, a single population, and lack of genetic diversity, and cumulative impacts from these threats, threaten this plant species to the degree that listing it as an endangered species under the Act is warranted. Section 4(a)(3) of the Act requires the Secretary of the Interior (Secretary) to designate critical habitat concurrent with listing to the maximum extent prudent and determinable. Section 3(5)(A) of the Act defines critical habitat as (i) the specific areas within the geographical area occupied by the species, at the time it is listed, on which are found those physical or biological features (I) essential to the conservation of the species and (II) which may require special management considerations or protections; and (ii) specific areas outside the geographical area occupied by the species at the time it is listed, upon a determination by the Secretary that such areas are essential for the conservation of the species. Section 4(b)(2) of the Act states that the Secretary must make the designation on the basis of the best scientific data available and after taking into consideration the economic impact, the impact on national security, and any other relevant impacts of specifying any particular area as critical habitat. We prepared a draft economic analysis of the proposed designation of critical habitat. In order to consider economic impacts, we prepared an analysis of the economic impacts of the proposed critical habitat designation. We hereby announce the availability of the draft economic analysis and seek public review and comment. Peer review. In accordance with our joint policy on peer review published in the Federal Register 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 sought the expert opinions of four appropriate specialists regarding the species status assessment report. We received a response from one specialist, which informed this proposed rule. The purpose of peer review is to ensure that our listing determination and critical habitat designation are based on scientifically sound data, assumptions, and analyses. The peer reviewers we contacted have expertise in the biology, habitat, and threats to the species. PO 00000 Frm 00044 Fmt 4702 Sfmt 4702 Because we will consider all comments and information we receive during the comment period, our final determinations may differ from this proposal. Based on the new information we receive (and any comments on that new information), we may conclude that the species is threatened instead of endangered, or we may conclude that the species does not warrant listing as either an endangered species or a threatened species. Such final decisions would be a logical outgrowth of this proposal, as long as we: (a) Base the decisions on the best scientific and commercial data available after considering all of the relevant factors; (2) do not rely on factors Congress has not intended us to consider; and (3) articulate a rational connection between the facts found and the conclusions made, including why we changed our conclusion. Information Requested We intend that any final action resulting from this proposed rule will be based on the best scientific and commercial data available and be as accurate and as effective as possible. Therefore, we request comments or information from other concerned governmental agencies, Native American tribes, the scientific community, industry, or any other interested parties concerning this proposed rule. We particularly seek comments concerning: (1) The species’ biology, range, and population trends, including: (a) Biological or ecological requirements of the species, including habitat requirements for feeding, breeding, and sheltering; (b) Genetics and taxonomy; (c) Historical and current range, including distribution patterns; (d) Historical and current population levels, and current and projected trends; and (e) Past and ongoing conservation measures for the species, its habitat, or both. (2) Factors that may affect the continued existence of the species, which may include habitat modification or destruction, overutilization, disease, predation, the inadequacy of existing regulatory mechanisms, or other natural or manmade factors. (3) Biological, commercial trade, or other relevant data concerning any threats (or lack thereof) to this species and existing regulations that may be addressing those threats. (4) Additional information concerning the historical and current status, range, distribution, and population size of this E:\FR\FM\28SEP1.SGM 28SEP1 Federal Register / Vol. 86, No. 185 / Tuesday, September 28, 2021 / Proposed Rules species, including the locations of any additional populations of this species. (5) The reasons why we should or should not designate habitat as ‘‘critical habitat’’ under section 4 of the Act (16 U.S.C. 1531 et seq.), including information to inform the following factors that the regulations identify as reasons why designation of critical habitat may be not prudent: (a) The species is threatened by taking or other human activity and identification of critical habitat can be expected to increase the degree of such threat to the species; (b) The present or threatened destruction, modification, or curtailment of a species’ habitat or range is not a threat to the species, or threats to the species’ habitat stem solely from causes that cannot be addressed through management actions resulting from consultations under section 7(a)(2) of the Act; (c) Areas within the jurisdiction of the United States provide no more than negligible conservation value, if any, for a species occurring primarily outside the jurisdiction of the United States; or (d) No areas meet the definition of critical habitat. (6) Specific information on: (a) The amount and distribution of the South Llano Springs moss habitat; (b) What areas, that were occupied at the time of listing and that contain the physical or biological features essential to the conservation of the species, should be included in the designation and why; (c) Special management considerations or protection that may be needed in the critical habitat area we are proposing, including managing for the potential effects of climate change; and (d) What areas not occupied at the time of listing are essential for the conservation of the species. We particularly seek comments: (i) Regarding whether occupied areas are adequate for the conservation of the species; and (ii) Providing specific information regarding whether or not unoccupied areas would, with reasonable certainty, contribute to the conservation of the species and contain at least one physical or biological feature essential to the conservation of the species. (7) Land use designations and current or planned activities in the subject areas and their possible impacts on proposed critical habitat. (8) Any probable economic, national security, or other relevant impacts of designating any area that may be included in the final designation, and the related benefits of including or excluding specific areas. VerDate Sep<11>2014 16:08 Sep 27, 2021 Jkt 253001 (9) Information on the extent to which the description of probable economic impacts in the draft economic analysis is a reasonable estimate of the likely economic impacts. (10) Whether any specific areas we are proposing for critical habitat designation should be considered for exclusion under section 4(b)(2) of the Act, and whether the benefits of potentially excluding any specific area outweigh the benefits of including that area under section 4(b)(2) of the Act. (11) Whether we could improve or modify our approach to designating critical habitat in any way to provide for greater public participation and understanding, or to better accommodate public concerns and comments. Please include sufficient information with your submission (such as scientific journal articles or other publications) to allow us to verify any scientific or commercial information you include. Please note that submissions merely stating support for, or opposition to, the action under consideration without providing supporting information, although noted, will not be considered in making a determination, as section 4(b)(1)(A) of the Act directs that determinations as to whether any species is an endangered or a threatened species must be made ‘‘solely on the basis of the best scientific and commercial data available.’’ You may submit your comments and materials concerning this proposed rule by one of the methods listed in ADDRESSES. We request that you send comments only by the methods described in ADDRESSES. If you submit information via https:// www.regulations.gov, your entire submission—including any personal identifying information—will be posted on the website. If your submission is made via a hardcopy that includes personal identifying information, you may request at the top of your document that we withhold this information from public review. However, we cannot guarantee that we will be able to do so. We will post all hardcopy submissions on https://www.regulations.gov. Comments and materials we receive, as well as supporting documentation we used in preparing this proposed rule, will be available for public inspection on https://www.regulations.gov, or by appointment, during normal business hours, at the U.S. Fish and Wildlife Service, Austin Ecological Services Field Office (see FOR FURTHER INFORMATION CONTACT). PO 00000 Frm 00045 Fmt 4702 Sfmt 4702 53611 Public Hearing Section 4(b)(5) of the Act provides for a public hearing on this proposal, if requested. Requests must be received by the date specified in DATES. Such requests must be sent to the address shown in FOR FURTHER INFORMATION CONTACT. We will schedule a public hearing on this proposal, if requested, and announce the date, time, and place of the hearing, as well as how to obtain reasonable accommodations, in the Federal Register and local newspapers at least 15 days before the hearing. For the immediate future, we will provide these public hearings using webinars that will be announced on the Service’s website, in addition to the Federal Register. The use of these virtual public hearings is consistent with our regulation at 50 CFR 424.16(c)(3). Previous Federal Actions On June 18, 2007, we received a formal petition from Forest Guardians (later named WildEarth Guardians) to list 475 species in the southwestern United States, including the South Llano Springs moss, as endangered or threatened species under the Act. On March 19, 2008, WildEarth Guardians filed a complaint that the Service failed to comply with the mandatory duty to make a preliminary 90-day finding. On January 6, 2009, we published in the Federal Register (74 FR 419) a 90-day finding that the petition did not present sufficient information to indicate that listing the South Llano Springs moss may be warranted. On December 16, 2009, we published a new 90-day finding, based on a re-evaluation of the information presented in the petition and readily available in our files, that the petition provided substantial information indicating that listing of the South Llano Springs moss may be warranted based on the present or threatened destruction, modification, or curtailment of habitat or range as a result of drought or changes in hydrology (74 FR 66866). Supporting Documents A species status assessment (SSA) team prepared an SSA report for the South Llano Springs moss. The SSA team was composed of Service biologists, in consultation with other species experts. The SSA report represents a compilation of the best scientific and commercial data available concerning the status of the species, including the impacts of past, present, and future factors (both negative and beneficial) affecting the species. The Service sent the SSA report to four independent peer reviewers and E:\FR\FM\28SEP1.SGM 28SEP1 53612 Federal Register / Vol. 86, No. 185 / Tuesday, September 28, 2021 / Proposed Rules received one response. The Service also sent the SSA report to partners, including scientists with expertise with this species, for review. We received one review from the Texas Parks and Wildlife Department. I. Proposed Listing Determination Background The South Llano Springs moss is an aquatic moss that grows on submerged or partially submerged rocks. The deep, loosely interwoven mats are blue-green to blackish-brown when shaded and yellow-green when exposed to full sun. Like all mosses, the South Llano Springs moss forms clonal colonies of leafbearing stems. The South Llano Springs moss has an extremely limited range: It has only been documented in two locations and is thought to be extirpated from one of those. The remaining extant site is from Seven Hundred Springs, on the South Llano River in Edwards County, Texas. The extirpated site, referred to as the Redfearn site, was about 5 kilometers (km) (3.1 miles (mi)) downstream from Seven Hundred Springs in Kimble County, Texas, though the exact location is unknown. Both sites occur within the Edwards Plateau. Wyatt and Stoneburner (1980, pp. 514, 516) visited 10 other springs in the Llano and South Llano River watersheds in 1978 and 1979, but found no additional populations. The South Llano Springs moss was discovered at Seven Hundred Springs in 1932, and was most recently confirmed there in 1979 (Wyatt and Stoneburner 1980, entire). When last observed, the South Llano Springs moss was abundantly dispersed in the spring outflow, partially submerged in shaded areas within an area of about 10 by 100 meters (m) (33 by 328 feet (ft)) between the springs and the river below on privately owned land (Wyatt and Stoneburner 1980, p. 516). Observation of the habitat from the opposite side of the river in 2017 indicated that the habitat appears to be in excellent condition (Service 2017, entire). This is the best available information we have for this site; consequently, we consider the Seven Hundred Springs population to be extant. The South Llano Springs moss was last documented at the Redfearn site in 1971. The two specimen labels from these collections state that they were collected ‘‘1 mile south of Telegraph’’ with one specimen collected on a dam and the other from limestone at the edge of the creek. On topographic maps, Telegraph is a location consisting of a single store that is not directly along the river; however, VerDate Sep<11>2014 16:08 Sep 27, 2021 Jkt 253001 there is a road connecting Telegraph to the South Llano River with a bridge, and this may be the location from which Redfearn was measuring. Due to the vague location description, there is uncertainty around the exact location of the Redfearn site. In 2017, we conducted surveys along 5.7 km of the South Llano River, including the 2.25 km in which we believe Redfearn collected his specimens. All aquatic moss species encountered were collected and a sample of each of the four species encountered was sent to a bryologist at the Missouri Botanical Garden for identification. None of the species collected were found to be the South Llano Springs moss. This is the best available information we have for this site; consequently, we consider the Redfearn population to be extirpated. It is possible that the species does not occur anywhere else. However, few surveys for this species have been conducted. Consequently, it is possible that this species occurs elsewhere along Paint Creek or the South Llano River. The best available data indicate that only the Seven Hundred Springs population persists. A thorough review of the taxonomy, life history, and ecology of the South Llano Springs moss is presented in the SSA report (version 1.1; Service 2018, entire). Regulatory and Analytical Framework Regulatory Framework Section 4 of the Act (16 U.S.C. 1533) and its implementing regulations (50 CFR part 424) set forth the procedures for determining whether a species is an ‘‘endangered species’’ or a ‘‘threatened species.’’ The Act defines an endangered species as a species that is ‘‘in danger of extinction throughout all or a significant portion of its range,’’ and a threatened species as a species that is ‘‘likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range.’’ The Act requires that we determine whether any species is an ‘‘endangered species’’ or a ‘‘threatened species’’ because of any of the following factors: (A) The present or threatened destruction, modification, or curtailment of its habitat or range; (B) Overutilization for commercial, recreational, scientific, or educational purposes; (C) Disease or predation; (D) The inadequacy of existing regulatory mechanisms; or (E) Other natural or manmade factors affecting its continued existence. These factors represent broad categories of natural or human-caused PO 00000 Frm 00046 Fmt 4702 Sfmt 4702 actions or conditions that could have an effect on a species’ continued existence. In evaluating these actions and conditions, we look for those that may have a negative effect on individuals of the species, as well as other actions or conditions that may ameliorate any negative effects or may have positive effects. We use the term ‘‘threat’’ to refer in general to actions or conditions that are known to or are reasonably likely to negatively affect individuals of a species. The term ‘‘threat’’ includes actions or conditions that have a direct impact on individuals (direct impacts), as well as those that affect individuals through alteration of their habitat or required resources (stressors). The term ‘‘threat’’ may encompass—either together or separately—the source of the action or condition or the action or condition itself. However, the mere identification of any threat(s) does not necessarily mean that the species meets the statutory definition of an ‘‘endangered species’’ or a ‘‘threatened species.’’ In determining whether a species meets either definition, we must evaluate all identified threats by considering the expected response by the species, and the effects of the threats—in light of those actions and conditions that will ameliorate the threats—on an individual, population, and species level. We evaluate each threat and its expected effects on the species, then analyze the cumulative effect of all of the threats on the species as a whole. We also consider the cumulative effect of the threats in light of those actions and conditions that will have positive effects on the species, such as any existing regulatory mechanisms or conservation efforts. The Secretary determines whether the species meets the definition of an ‘‘endangered species’’ or a ‘‘threatened species’’ only after conducting this cumulative analysis and describing the expected effect on the species now and in the foreseeable future. The Act does not define the term ‘‘foreseeable future,’’ which appears in the statutory definition of ‘‘threatened species.’’ Our implementing regulations at 50 CFR 424.11(d) set forth a framework for evaluating the foreseeable future on a case-by-case basis. The term ‘‘foreseeable future’’ extends only so far into the future as the Services can reasonably determine that both the future threats and the species’ responses to those threats are likely. In other words, the foreseeable future is the period of time in which we can make reliable predictions. ‘‘Reliable’’ does not mean ‘‘certain’’; it means sufficient to E:\FR\FM\28SEP1.SGM 28SEP1 Federal Register / Vol. 86, No. 185 / Tuesday, September 28, 2021 / Proposed Rules provide a reasonable degree of confidence in the prediction. Thus, a prediction is reliable if it is reasonable to depend on it when making decisions. It is not always possible or necessary to define foreseeable future as a particular number of years. Analysis of the foreseeable future uses the best scientific and commercial data available and should consider the timeframes applicable to the relevant threats and to the species’ likely responses to those threats in view of its life-history characteristics. Data that are typically relevant to assessing the species’ biological response include speciesspecific factors such as lifespan, reproductive rates or productivity, certain behaviors, and other demographic factors. Analytical Framework The SSA report documents the results of our comprehensive biological status review for the species, including an assessment of the potential threats to the species. The SSA report does not represent a decision by the Service on whether the species should be proposed for listing as an endangered or threatened species under the Act. It does, however, provide the scientific basis that informs our regulatory decisions, which involve the further application of standards within the Act and its implementing regulations and policies. The following is a summary of the key results and conclusions from the SSA report; the full SSA report can be found on https://www.regulations.gov under Docket FWS–R2–ES–2020–0015. To assess the viability of the South Llano Springs moss, we used the three conservation biology principles of resiliency, redundancy, and representation (Shaffer and Stein 2000, pp. 306–310). Briefly, resiliency supports the ability of the species to withstand environmental and demographic stochasticity (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 VerDate Sep<11>2014 16:08 Sep 27, 2021 Jkt 253001 described the beneficial and risk factors influencing the species’ viability. The SSA process can be categorized into three sequential stages. During the first stage, we evaluated individual species’ life-history needs. The next stage involved an assessment of the historical and current condition of the species’ demographics and habitat characteristics, including an explanation of how the species arrived at its current condition. The final stage of the SSA involved making predictions about the species’ responses to positive and negative environmental and anthropogenic influences. This process used the best available information to characterize viability as the ability of a species to sustain populations in the wild over time. We use this information to inform our regulatory decision. Summary of Biological Status and Threats In this section, we review the biological condition of the species and its resources, and the threats that influence the species’ current and future condition, in order to assess the species’ overall viability and the risks to that viability. Based on the conditions of the only known current and historical populations, the South Llano Springs moss requires a constant flow of mineral-rich spring water or spring-fed river water over shallow limestone rocks. Seven Hundred Springs and the areas thought to contain the Redfearn sites are supported by spring flows within the Edwards-Trinity aquifer and the South Llano River watershed (Seven Hundred Springs and Big Paint Springs). These springs have never ceased flowing in recorded history. Water from these springs emerges at a very consistent temperature and is rich in travertine minerals. Rocks and plants immersed in the upper South Llano River quickly become encrusted with travertine- or tufa-like mineral deposits, to an unusual degree not seen in most springs in the Edwards-Trinity aquifer (Service 2017, p. 2). Thus, it is possible that high mineral concentrations, or the precipitation of minerals from solution, could be requirements for the establishment and growth of South Llano Springs moss individuals. The water temperature of Seven Hundred Springs was consistently 21.5 degrees Celsius (°C) (70.7 degrees Fahrenheit (°F)) in June, and the pH ranged from 7.0 to 7.2 (Wyatt and Stoneburner 1980, p. 516). The species occurred in both shaded and exposed niches at Seven Hundred Springs (Wyatt and Stoneburner 1980, p. 516). Associated vascular plant species PO 00000 Frm 00047 Fmt 4702 Sfmt 4702 53613 included maidenhair fern (Adiantum capillus-veneris), southern shield fern (Thelypteris kunthii), watercress (Nasturtium officinale), and members of the mint family (Lamiaceae) and composite family (Asteraceae) (Wyatt and Stoneburner 1980, p. 516). Associated moss species included Hygroamblystegium tenax and Eucladium verticillatum (Wyatt and Stoneburner 1980, p. 517). Mosses closely related to the South Llano Springs moss reproduce both sexually and asexually. However, there is no evidence that sexual reproduction is occurring in the single remaining known site of occurrence, as no plants with female reproductive structures were observed in the wild population or during a 16-month propagation study in 1978 and 1979 (Wyatt and Stoneburner 1980, p. 517). The plants cultivated in captivity produced only male reproductive structures. It is possible that the known population may be a clone of a single or a few male individuals and that sexual reproduction is no longer possible for the species. In addition to the habitat requirements described above, resilient populations of South Llano Springs moss need to be large enough that local stochastic events do not eliminate all individuals, allowing the overall population to recover from any one event. The larger a population is, the greater the chances that a portion of the population will survive. The minimum viable population size is not known for this species. However, the geographic extent is provided from the observations of Wyatt and Stoneburner (1980, p. 516). When last observed, the South Llano Springs moss grew in the spring outflow partially submerged in shaded areas within a 10 m (33 ft) zone between the springs and the river below (Wyatt and Stoneburner 1980, p. 516). We assume that the population could be as large as the spring flow and substrate allow in this zone. The area occupied by a moss population is a practical surrogate for abundance, provided that it is understood that this does not address the number of genetically unique individuals. Recruitment is also needed for populations to be resilient. The colony at Seven Hundred Springs may be a clone of a single individual, or only male individuals, and is presumed incapable of sexual reproduction (Wyatt and Stoneburner 1980, p. 520). Unless female individuals are present, the colony of South Llano Springs moss at Seven Hundred Springs can persist and grow only through vegetative budding or through the establishment of E:\FR\FM\28SEP1.SGM 28SEP1 53614 Federal Register / Vol. 86, No. 185 / Tuesday, September 28, 2021 / Proposed Rules fragments that happen to lodge in suitable niches. These mats can expand to occupy new habitats while the portion that established earlier dies. An individual remains alive as long as old stems die no faster than new stems develop. The same individual could migrate back and forth through available habitats for an unlimited period of time, and it is not inconceivable that the individuals we see today arose from spores that germinated many thousands of years ago. For the species to persist, the recruitment of new individuals must equal or exceed mortality. Wyatt and Stoneburner (1980, pp. 519–520) estimated that the species’ range may have been more extensive 10,000 years ago, and subsequently became restricted to this single location as the climate warmed and other springs periodically stopped flowing. To assess the climate changes that could affect this species into the future, we examined the climate parameters using both the representative concentration pathway (RCP) 4.5 and RCP 8.5 scenarios to provide a range of projected values. These models predict that by 2074 climate changes could result in a reduction of aquifer recharge and an increased duration and severity of droughts and heavy rainfall, thereby increasing the threats of interrupted spring flows and flash floods. Annual precipitation is highly variable in central Texas, and severe, multi-year droughts occurred during the 1950s and from 2006 through 2012. During these historical periods of drought, only the largest springs along the South Llano River, including Seven Hundred Springs, continued flowing, but at lower rates. Prolonged drought in combination with increased pumping from the Edwards-Trinity aquifer could increase the probability of interrupted flows of these springs and, consequently, the extirpation or extinction of the South Llano Springs moss. Despite the frequency of prolonged drought, the region is also subject to extremely heavy rainfall, often resulting from tropical storms in the Gulf of Mexico as well as the Pacific Ocean. All of these factors contribute to flash floods (high intensity, low duration floods) that can drastically change stream beds and the surrounding vegetation, potentially scouring the South Llano Springs moss from its rock substrate along the edge of the stream, or burying it beneath deposits of silt, sand, and gravel. The amount of pumping from the Edwards-Trinity aquifer is one of the most important factors influencing storage in the aquifer and spring flows. Aquifer water levels are stable or have declined slightly over most of the VerDate Sep<11>2014 16:08 Sep 27, 2021 Jkt 253001 Edwards-Trinity aquifer, but in some areas, heavy pumping has led to longterm declines in aquifer levels and diminished or interrupted spring flows (George et al. 2011, p. 35; Region F Water Planning Group 2015, pp. 1–34, 3–15; Plateau Region Water Planning Group 2016, pp. 7–11). These sources project relatively little growth in the human population in Edwards and Kimble Counties during the next 50 years. Conversely, population growth is projected to increase for five central Texas counties, which include the metropolitan areas of San Antonio, New Braunfels, San Marcos, Austin, Round Rock, and Georgetown, by 32 percent between 2017 and 2037, and by 53 percent between 2017 and 2050 (Texas Demographic Center 2017, p. 1). It is reasonably foreseeable that increased pumping may occur from the EdwardsTrinity aquifer for transfer to other regions to supply increased municipal water demands. This increased pumping could reduce water storage in the Edwards-Trinity aquifer and spring flows in the South Llano River. Loss of spring flows, even for a short time, would likely reduce or extirpate the only known remaining population of the South Llano Springs moss because the species requires constant immersion in flowing spring water to persist. The Upper Llano River Watershed Protection Plan (Broad et al. 2016, pp. 51, 64–66, 86) identifies increased runoff, evapotranspiration, and sediment loading as impacts to the upper Llano River watersheds due to the encroachment of woody species. Recharge into the Edwards-Trinity aquifer in Edwards County has been reduced during prior periods of vegetation loss from overgrazing, resulting in increased runoff and the drying of some smaller springs (Brune 1981, p. 173). Aquifer recharge may also have been reduced by the encroachment of brush into formerly grass-dominated uplands (South Llano Watershed Alliance 2012, p. 9; Broad et al. 2016, pp. 40–41, 51). Aquifer recharge would also be reduced by an increase in evapotranspiration, due to increased temperatures. Small populations are less able to recover from losses caused by random fluctuations in recruitment (demographic stochasticity) or variations in spring outflow (environmental stochasticity) (Service 2015, p. 12). In addition to population size, it is likely that population density also influences population viability, as sexual reproduction, if it occurs at all in the species’ current situation, requires male and female mosses to be in close proximity. Small, reproductively PO 00000 Frm 00048 Fmt 4702 Sfmt 4702 isolated populations are also susceptible to the loss of genetic diversity, to genetic drift, and to inbreeding (Barrett and Kohn 1991, pp. 3–30). The loss of genetic diversity may reduce the ability of a species or population to resist pathogens and parasites, to adapt to changing environmental conditions, or to colonize new habitats. The combined demographic and genetic consequences of small population sizes may reduce population recruitment, leading to even smaller populations and greater isolation, and further decreasing the viability of the species. These factors may already have contributed to the decline of the South Llano Springs moss to its current state of extreme endemism in the upper South Llano River. All of the above stressors are exacerbated by the fact that the South Llano Springs moss likely consists of only one, small population. We note that, by using the SSA framework to guide our analysis of the scientific information documented in the SSA report, we have not only analyzed individual effects on the species, but we have also analyzed their potential cumulative effects. We incorporate the cumulative effects into our SSA analysis when we characterize the current and future condition of the species. Our assessment of the current and future conditions encompasses and incorporates the threats individually and cumulatively. Our current and future condition assessment is iterative because it accumulates and evaluates the effects of all the factors that may be influencing the species, including threats and conservation efforts. Because the SSA framework considers not just the presence of the factors, but to what degree they collectively influence risk to the entire species, our assessment integrates the cumulative effects of the factors and replaces a standalone cumulative effects analysis. Determination of Status for the South Llano Springs Moss Section 4 of the Act (16 U.S.C. 1533) and its implementing regulations (50 CFR part 424) set forth the procedures for determining whether a species meets the definition of ‘‘endangered species’’ or ‘‘threatened species.’’ The Act defines an ‘‘endangered species’’ as a species that is ‘‘in danger of extinction throughout all or a significant portion of its range,’’ and a ‘‘threatened species’’ as a species that is ‘‘likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range.’’ The Act requires that we determine whether a species meets the definition of ‘‘endangered species’’ or ‘‘threatened E:\FR\FM\28SEP1.SGM 28SEP1 Federal Register / Vol. 86, No. 185 / Tuesday, September 28, 2021 / Proposed Rules 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 propose listing the South Llano Springs moss as an endangered species throughout all of its range. Only two very small populations of South Llano Springs moss have been documented, which were last observed in 1971 and 1979. One is now extirpated and the other is restricted to a 10 by 100 m (33 by 328 ft) zone between Seven Hundred Springs and the South Llano River (Wyatt and Stoneburner 1980, p. 516). Therefore, the species has an extremely low level of representation, and no redundancy, making it vulnerable to catastrophic events such as flash floods and droughts. During historic droughts, such as in the 1950s and 2006–2012, many regional springs ceased flowing and the flow of Seven Hundred Springs was greatly reduced. Projected climate changes include an increased frequency, duration, and severity of droughts (Factor E), thereby increasing the risk of interrupting the flow of Seven Hundred Springs and the desiccation and mortality of this obligately aquatic moss (Factor A). The amount of pumping from the EdwardsTrinity aquifer is one of the most important factors influencing storage in the aquifer and the spring flows on which the South Llano Springs moss relies. Groundwater pumping is likely to increase as the human population grows and as the severity and duration of droughts increases. Prolonged drought (Factor E), in combination with increased pumping from the EdwardsTrinity aquifer (Factor E), further increase the probability of interrupting the flow of Seven Hundred Springs (Factor A) and, consequently, the probability of extinction of the South Llano Springs moss. The South Llano Springs moss has little or no genetic diversity (Factor E) because this species likely consists of clones of one or a few male individuals and is no longer capable of sexual reproduction (Factor E). Consequently, the species has very low representation and likely has very little ability to adapt to environmental changes. In addition VerDate Sep<11>2014 16:08 Sep 27, 2021 Jkt 253001 the South Llano Springs moss has poor redundancy because there is only one small population remaining. One drought event that reduced the flow of Seven Hundred Springs could result in the extirpation of this species. We find that the South Llano Springs moss is presently in danger of extinction throughout its entire range based on the small remaining single population that is likely genetically compromised. This status puts the species on the brink of extinction where normal stochastic events, such as drought, flooding, or a human-caused drop in the aquifer level could lead to further decline or loss of the species entirely. The only other known population has not been observed since 1971 and is considered likely extirpated. This one remaining population could be affected by a variety of threats acting in combination to reduce the overall viability of the species. The risk of extinction is high because the remaining population is small, with no known potential for natural recolonization. We find that a threatened species status is not appropriate for the South Llano Springs moss because of the species’ current precarious condition due to its contracted range, small population size, and likely compromised genetics, because these stressors are severe, ongoing, and expected to continue into the future. Therefore, after assessing the best available information, we determine that the South Llano Springs moss is 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 South Llano Springs moss is in danger of extinction throughout all of its range, and accordingly, did not undertake an analysis of any significant portion of its range. Because we have determined that the South Llano Springs moss warrants listing as an endangered species throughout all 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), in which the court vacated the aspect of the 2014 Significant Portion of its Range Policy that provided the Services do not undertake an analysis of significant portions of a species’ range if the PO 00000 Frm 00049 Fmt 4702 Sfmt 4702 53615 species warrants listing as threatened throughout all of its range. Determination of Status Our review of the best available scientific and commercial information indicates that the South Llano Springs moss meets the definition of an endangered species. Therefore, we propose to list the South Llano Springs moss as an endangered species in accordance with sections 3(6) and 4(a)(1) of the Act. Available Conservation Measures Conservation measures provided to species listed as endangered or threatened species under the Act include recognition, recovery actions, requirements for Federal protection, and prohibitions against certain practices. Recognition through listing results in public awareness, and conservation by Federal, State, tribal, and local agencies, private organizations, and individuals. The Act encourages cooperation with the States and other countries and calls for recovery actions to be carried out for listed species. The protection required by Federal agencies and the prohibitions against certain activities are discussed, in part, below. The primary purpose of the Act is the conservation of endangered and threatened species and the ecosystems upon which they depend. The ultimate goal of such conservation efforts is the recovery of these listed species, so that they no longer need the protective measures of the Act. Section 4(f) of the Act calls for the Service to develop and implement recovery plans for the conservation of endangered and threatened species. The recovery planning process involves the identification of actions that are necessary to halt or reverse the species’ decline by addressing the threats to its survival and recovery. The goal of this process is to restore listed species to a point where they are secure, 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 E:\FR\FM\28SEP1.SGM 28SEP1 53616 Federal Register / Vol. 86, No. 185 / Tuesday, September 28, 2021 / Proposed Rules 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 Austin 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 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. If this species is listed, 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 Texas would be eligible for Federal funds to implement management actions that promote the protection or recovery of the South Llano Springs moss. Information on our grant programs that are available to aid species recovery can be found at: https:// www.fws.gov/grants. Although the South Llano Springs moss is only proposed for listing under the Act at this time, please let us know if you are interested in participating in recovery efforts for this species. Additionally, we invite you to submit any new information on this species whenever it becomes available and any information you may have for recovery planning purposes (see FOR FURTHER INFORMATION CONTACT). Section 7(a) of the Act requires Federal agencies to evaluate their actions with respect to any species that is proposed or listed as an endangered VerDate Sep<11>2014 16:08 Sep 27, 2021 Jkt 253001 or threatened species and with respect to its critical habitat, if any is designated. Regulations implementing this interagency cooperation provision of the Act are codified at 50 CFR part 402. Section 7(a)(4) of the Act requires Federal agencies to confer with the Service on any action that is likely to jeopardize the continued existence of a species proposed for listing or result in destruction or adverse modification of proposed critical habitat. If a species is listed subsequently, 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 the 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 species’ 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, management and conservation projects conducted on private lands with support from the U.S. Fish and Wildlife Service Partners for Fish and Wildlife Program; issuance of section 404 Clean Water Act (33 U.S.C. 1251 et seq.) permits by the U.S. Army Corps of Engineers; construction and maintenance of roads or highways by the Federal Highway Administration; construction and maintenance of railways by the Federal Railroad Administration; and discharge permits from the Environmental Protection Agency. The Act and its implementing regulations set forth a series of general prohibitions and exceptions that apply to endangered plants. The prohibitions of section 9(a)(2) of the Act, codified at 50 CFR 17.61, make it illegal for any person subject to the jurisdiction of the United States to: Import or export; remove and reduce to possession from areas under Federal jurisdiction; maliciously damage or destroy on any such area; remove, cut, dig up, or damage or destroy on any other area in knowing violation of any law or regulation of any State or in the course of any violation of a State criminal trespass law; deliver, receive, carry, transport, or ship in interstate or foreign commerce, by any means whatsoever and in the course of a commercial activity; or sell or offer for sale in interstate or foreign commerce an endangered plant. Certain exceptions apply to employees of the Service, the National Marine Fisheries Service, other PO 00000 Frm 00050 Fmt 4702 Sfmt 4702 Federal land management agencies, and State conservation agencies. We may issue permits to carry out otherwise prohibited activities involving endangered plants under certain circumstances. Regulations governing permits are codified at 50 CFR 17.62. With regard to endangered plants, a permit may be issued for scientific purposes or for enhancing the propagation or survival of the species. 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 proposed listing on proposed and ongoing activities within the range of the species proposed for listing. Based on the best available information, the following actions are unlikely to result in a violation of section 9, if these activities are carried out in accordance with existing regulations and permit requirements; this list is not comprehensive: (1) Recreational use of the streams, such as fishing, swimming, and canoeing, as these activities normally take place in the river or on the river bank and not in the spring itself, and; (2) Normal residential landscaping activities as these activities do not take place in the spring, nor do they affect the quantity or quality of water in the spring. Based on the best available information, the following activities may potentially result in a violation of section 9 of the Act if they are not authorized in accordance with applicable law; this list is not comprehensive: (1) Removing, cutting, digging up, or damaging or destroying the South Llano Springs moss in knowing violation of any law or regulation of the state of Texas or in the course of any violation of a State criminal trespass law; (2) Importing the South Llano Springs moss into, or exporting from, the United States; (3) Delivering, receiving, carrying, transporting, or shipping the South Llano Springs moss in interstate or foreign commerce, by any means and in the course of a commercial activity, and; (4) Selling or offering the South Llano Springs moss for sale in interstate or foreign commerce. Questions regarding whether specific activities would constitute a violation of E:\FR\FM\28SEP1.SGM 28SEP1 Federal Register / Vol. 86, No. 185 / Tuesday, September 28, 2021 / Proposed Rules section 9 of the Act should be directed to the Austin Ecological Services Field Office (see FOR FURTHER INFORMATION CONTACT). II. Critical Habitat Background Critical habitat is defined in section 3 of the Act as: (1) The specific areas within the geographical area occupied by the species, at the time it is listed in accordance with the Act, on which are found those physical or biological features (a) Essential to the conservation of the species, and (b) Which may require special management considerations or protection; and (2) Specific areas outside the geographical area occupied by the species at the time it is listed, upon a determination that such areas are essential for the conservation of the species. Our regulations at 50 CFR 424.02 define the geographical area occupied by the species as an area that may generally be delineated around species’ occurrences, as determined by the Secretary (i.e., range). Such areas may include those areas used throughout all or part of the species’ life cycle, even if not used on a regular basis (e.g., migratory corridors, seasonal habitats, and habitats used periodically, but not solely by vagrant individuals). Conservation, as defined under section 3 of the Act, means to use and the use of all methods and procedures that are necessary to bring an endangered or threatened species to the point at which the measures provided pursuant to the Act are no longer necessary. Such methods and procedures include, but are not limited to, all activities associated with scientific resources management such as research, census, law enforcement, habitat acquisition and maintenance, propagation, live trapping, and transplantation, and, in the extraordinary case where population pressures within a given ecosystem cannot be otherwise relieved, may include regulated taking. Critical habitat receives protection under section 7 of the Act through the requirement that Federal agencies ensure, in consultation with the Service, that any action they authorize, fund, or carry out is not likely to result in the destruction or adverse modification of critical habitat. The designation of critical habitat does not affect land ownership or establish a refuge, wilderness, reserve, preserve, or other VerDate Sep<11>2014 16:08 Sep 27, 2021 Jkt 253001 conservation area. Designation also does not allow the government or public to access private lands, nor does designation require implementation of restoration, recovery, or enhancement measures by non-Federal landowners. Where a landowner requests Federal agency funding or authorization for an action that may affect a listed species or critical habitat, the Federal agency would be required to consult with the Service under section 7(a)(2) of the Act. However, even if the Service were to conclude that the proposed activity would result in destruction or adverse modification of the critical habitat, the Federal action agency and the landowner are not required to abandon the proposed activity, or to restore or recover the species; instead, they must implement ‘‘reasonable and prudent alternatives’’ to avoid destruction or adverse modification of critical habitat. Under the first prong of the Act’s definition of critical habitat, areas within the geographical area occupied by the species at the time it was listed are included in a critical habitat designation if they contain physical or biological features (1) which are essential to the conservation of the species and (2) which may require special management considerations or protection. For these areas, critical habitat designations identify, to the extent known using the best scientific and commercial data available, those physical or biological features that are essential to the conservation of the species (such as space, food, cover, and protected habitat). In identifying those physical or biological features that occur in specific occupied areas, we focus on the specific features that are essential to support the life-history needs of the species, including, but not limited to, water characteristics, soil type, geological features, prey, vegetation, symbiotic species, or other features. A feature may be a single habitat characteristic, or a more-complex combination of habitat characteristics. Features may include habitat characteristics that support ephemeral or dynamic habitat conditions. Features may also be expressed in terms relating to principles of conservation biology, such as patch size, distribution distances, and connectivity. Under the second prong of the Act’s definition of critical habitat, we can designate critical habitat in areas outside the geographical area occupied by the species at the time it is listed, upon a determination that such areas are essential for the conservation of the species. When designating critical habitat, the Secretary will first evaluate areas occupied by the species. The PO 00000 Frm 00051 Fmt 4702 Sfmt 4702 53617 Secretary will only consider unoccupied areas to be essential where a critical habitat designation limited to geographical areas occupied by the species would be inadequate to ensure the conservation of the species. In addition, for an unoccupied area to be considered essential, the Secretary must determine that there is a reasonable certainty both that the area will contribute to the conservation of the species and that the area contains one or more of those physical or biological features essential to the conservation of the species. Section 4 of the Act requires that we designate critical habitat on the basis of the best scientific data available. Further, our Policy on Information Standards Under the Endangered Species Act (published in the Federal Register on July 1, 1994 (59 FR 34271)), the Information Quality Act (section 515 of the Treasury and General Government Appropriations Act for Fiscal Year 2001 (Pub. L. 106–554; H.R. 5658)), and our associated Information Quality Guidelines, provide criteria, establish procedures, and provide guidance to ensure that our decisions are based on the best scientific data available. They require our biologists, to the extent consistent with the Act and with the use of the best scientific data available, to use primary and original sources of information as the basis for recommendations to designate critical habitat. When we are determining which areas should be designated as critical habitat, our primary source of information is generally the information from the SSA report and information developed during the listing process for the species. Additional information sources may include any generalized conservation strategy, criteria, or outline that may have been developed for the species; the recovery plan for the species; articles in peer-reviewed journals; conservation plans developed by States and counties; scientific status surveys and studies; biological assessments; other unpublished materials; or experts’ opinions or personal knowledge. Habitat is dynamic, and species may move from one area to another over time. We recognize that critical habitat designated at a particular point in time may not include all of the habitat areas that we may later determine are necessary for the recovery of the species. For these reasons, a critical habitat designation does not signal that habitat outside the designated area is unimportant or may not be needed for recovery of the species. Areas that are important to the conservation of the E:\FR\FM\28SEP1.SGM 28SEP1 53618 Federal Register / Vol. 86, No. 185 / Tuesday, September 28, 2021 / Proposed Rules species, both inside and outside the critical habitat designation, will continue to be subject to: (1) Conservation actions implemented under section 7(a)(1) of the Act; (2) regulatory protections afforded by the requirement in section 7(a)(2) of the Act for Federal agencies to ensure their actions are not likely to jeopardize the continued existence of any endangered or threatened species; and (3) the prohibitions found in section 9 of the Act. Federally funded or permitted projects affecting listed species outside their designated critical habitat areas may still result in jeopardy findings in some cases. These protections and conservation tools will continue to contribute to recovery of this species. Similarly, critical habitat designations made on the basis of the best available information at the time of designation will not control the direction and substance of future recovery plans, habitat conservation plans (HCPs), or other species conservation planning efforts if new information available at the time of these planning efforts calls for a different outcome. As discussed above under Proposed Listing Determination, there is currently no imminent threat of collection or vandalism identified under Factor B for this species, and identification and mapping of critical habitat is not expected to initiate any such threat. In our SSA and this proposed listing determination, we determined that the present or threatened destruction, modification, or curtailment of habitat or range is a threat to the South Llano Springs moss and that those threats in some way can be addressed by section 7(a)(2) consultation measures. The species occurs wholly in the jurisdiction of the United States, and we are able to identify an area that meets the definition of critical habitat. Therefore, because none of the circumstances enumerated in our regulations at 50 CFR 424.12(a)(1) have been met, and because there are no other circumstances the Secretary has identified for which this designation of critical habitat would be not prudent, we have determined that the designation of critical habitat is prudent for the South Llano Springs moss. Prudency Determination Section 4(a)(3) of the Act, as amended, and implementing regulations (50 CFR 424.12), require that, to the maximum extent prudent and determinable, the Secretary shall designate critical habitat at the time the species is determined to be an endangered or threatened species. Our regulations (50 CFR 424.12(a)(1)) state that the Secretary may, but is not required to, determine that a designation would not be prudent in the following circumstances: (i) The species is threatened by taking or other human activity and identification of critical habitat can be expected to increase the degree of such threat to the species; (ii) The present or threatened destruction, modification, or curtailment of a species’ habitat or range is not a threat to the species, or threats to the species’ habitat stem solely from causes that cannot be addressed through management actions resulting from consultations under section 7(a)(2) of the Act; (iii) Areas within the jurisdiction of the United States provide no more than negligible conservation value, if any, for a species occurring primarily outside the jurisdiction of the United States; (iv) No areas meet the definition of critical habitat; or (v) The Secretary otherwise determines that designation of critical habitat would not be prudent based on the best scientific data available. Critical Habitat Determinability Having determined that designation is prudent, under section 4(a)(3) of the Act we must find whether critical habitat for the South Llano Springs moss is determinable. Our regulations at 50 CFR 424.12(a)(2) state that critical habitat is not determinable when one or both of the following situations exist: (i) Data sufficient to perform required analyses are lacking, or (ii) The biological needs of the species are not sufficiently well known to identify any area that meets the definition of ‘‘critical habitat.’’ When critical habitat is not determinable, the Act allows the Service an additional year to publish a critical habitat designation (16 U.S.C. 1533(b)(6)(C)(ii)). We reviewed the available information pertaining to the biological needs of the species and habitat characteristics where this species is located. This and other information represent the best scientific data available and led us to conclude that the designation of critical habitat is determinable for the South Llano Springs moss. VerDate Sep<11>2014 16:08 Sep 27, 2021 Jkt 253001 Physical or Biological Features Essential to the Conservation of the Species In accordance with section 3(5)(A)(i) of the Act and regulations at 50 CFR 424.12(b), in determining which areas we will designate as critical habitat from within the geographical area occupied PO 00000 Frm 00052 Fmt 4702 Sfmt 4702 by the species at the time of listing, we consider the physical or biological features that are essential to the conservation of the species and that may require special management considerations or protection. The regulations at 50 CFR 424.02 define ‘‘physical or biological features essential to the conservation of the species’’ as the features that occur in specific areas and that are essential to support the lifehistory needs of the species, including, but not limited to, water characteristics, soil type, geological features, sites, prey, vegetation, symbiotic species, or other features. A feature may be a single habitat characteristic, or a more complex combination of habitat characteristics. Features may include habitat characteristics that support ephemeral or dynamic habitat conditions. Features may also be expressed in terms relating to principles of conservation biology, such as patch size, distribution distances, and connectivity. For example, physical features essential to the conservation of the species might include gravel of a particular size required for spawning, 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 essential to support the life history of the species. In considering whether features are essential to the conservation of the species, the Service may consider an appropriate quality, quantity, and spatial and temporal arrangement of habitat characteristics in the context of the life-history needs, condition, and status of the species. These characteristics include, but are not limited to, space for individual and population growth and for normal behavior; food, water, air, light, minerals, or other nutritional or physiological requirements; cover or shelter; sites for breeding, reproduction, or rearing (or development) of offspring; and habitats that are protected from disturbance. Summary of Essential Physical or Biological Features We derive the specific physical or biological features essential to the E:\FR\FM\28SEP1.SGM 28SEP1 Federal Register / Vol. 86, No. 185 / Tuesday, September 28, 2021 / Proposed Rules conservation of the South Llano Springs moss from studies of the species’ habitat, ecology, and life history as described below. Additional information can be found in the SSA report available at https:// www.regulations.gov under Docket No. FWS–R2–ES–2020–0015. We have determined that the following physical or biological features are essential to the conservation of the South Llano Springs moss: (1) The uninterrupted flow of spring water supplied by the Edwards-Trinity aquifer within the South Llano watershed. (2) Relatively constant water temperature due to proximity to the point of spring outflow. (3) A substrate of calcareous or travertine rock not more than 15 centimeters (cm) (6 inches (in)) below the surface of the water. (4) Contaminant and sediment levels that do not exceed the tolerance limits of South Llano Springs moss and associated plant and animal species. Special Management Considerations or Protection When designating critical habitat, we assess whether the specific areas within the geographical area occupied by the species at the time of listing contain features which are essential to the conservation of the species and which may require special management considerations or protection. The features essential to the conservation of this species may require special management considerations or protection to reduce the following stressors: Reduction or loss of spring flow, erosion, and sedimentation. Management activities that could ameliorate these stressors include (but are not limited to): Prescribed fire, brush management, and grazing management to increase infiltration into the EdwardsTrinity aquifer and reduce runoff and subsequent flooding. 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 VerDate Sep<11>2014 16:08 Sep 27, 2021 Jkt 253001 information pertaining to the habitat requirements of the species and identify specific areas within the geographical area occupied by the species at the time of listing and any specific areas outside the geographical area occupied by the species to be considered for designation as critical habitat. We are not currently proposing to designate any areas outside the geographical area occupied by the species because we have not identified any unoccupied areas that meet the definition of critical habitat. While we acknowledge that the conservation of the species will depend on increasing the number of sites, we are unable at this time to delineate any specific unoccupied areas that are essential to the species’ conservation. For an area to be considered essential unoccupied habitat, we must have reasonable certainty both that the area will contribute to the conservation of the species and that the area contains one of more of the physical or biological features essential to the conservation of the species. The exact location of the Redfearn site is unknown and, although there are a number of other large springs emerging from the Edwards-Trinity aquifer, it is unknown if these sites would be biologically suitable for the species. In addition, there is uncertainty that the species could be transplanted successfully if suitable sites existed for reintroduction. Finally, the specific areas needed for conservation may depend in part on landowner willingness to restore and maintain the species’ habitat in these areas. In summary, for areas within the geographic area occupied by the species at the time of listing, we delineated critical habitat unit boundaries by evaluating the area of spring flow and submerged limestone within the geographic area occupied at the time of listing. When determining proposed critical habitat boundaries, we made every effort to avoid including developed areas such as lands covered by buildings, pavement, and other structures because such lands lack physical or biological features necessary for the South Llano Springs moss. 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 PO 00000 Frm 00053 Fmt 4702 Sfmt 4702 53619 lands. Any such lands inadvertently left inside critical habitat boundaries shown on the maps of this proposed rule have been excluded by text in the proposed rule and are not proposed for designation as critical habitat. Therefore, if the critical habitat is finalized as proposed, a Federal action involving these lands would not trigger section 7 consultation with respect to critical habitat and the requirement of no adverse modification unless the specific action would affect the physical or biological features in the adjacent critical habitat. We propose to designate as critical habitat lands that we have determined are occupied at the time of listing (i.e., currently occupied) and contain one or more of the physical or biological features that are essential to support life-history processes of the species. We propose one unit for designation based on one or more of the physical or biological features being present to support the South Llano Springs moss’ life-history processes. This unit contains all of the identified physical or biological features and supports multiple life-history processes. The critical habitat designation is defined by the map, as modified by any accompanying regulatory text, presented at the end of this document under Proposed Regulation Promulgation. We include more detailed information on the boundaries of the critical habitat designation in the preamble of this document. We will make the coordinates or plot points or both on which the map is based available to the public at https://www.regulations.gov under Docket No. FWS–R2–ES–2020– 0015, on our internet site at https:// www.fws.gov/southwest/es/ AustinTexas/, and at the field office responsible for the designation (see FOR FURTHER INFORMATION CONTACT). Proposed Critical Habitat Designation We propose to designate one unit of approximately 0.19 ha (0.48 ac) as critical habitat for the South Llano Springs moss, labeled Upper South Llano River Unit in Table 1 (below). The critical habitat area we describe below constitutes our current best assessment of areas that meet the definition of critical habitat for the South Llano Springs moss. E:\FR\FM\28SEP1.SGM 28SEP1 53620 Federal Register / Vol. 86, No. 185 / Tuesday, September 28, 2021 / Proposed Rules TABLE 1—PROPOSED CRITICAL HABITAT UNIT FOR THE SOUTH LLANO SPRINGS MOSS [Area estimates reflect all land within critical habitat unit boundaries] Size of unit in hectares (acres) Unit Land ownership by type Upper South Llano River .............................................. Private .......................................................................... We present a brief description of the proposed unit, and the reasons why it meets the definition of critical habitat for the South Llano Springs moss, below. Upper South Llano River Unit The Upper South Llano River Unit consists of 0.19 ha (0.48 ac) within the outflow area of Seven Hundred Springs, in northeastern Edwards County, Texas. This unit extends from the points of discharge about 10 m (33 ft) downslope to the South Llano River, and spans a length of about 100 m (328 ft) along the river. The species was last documented at this site in 1979, and the unit is considered occupied. This entire unit is on privately owned land. This unit contains all of the physical or biological features essential to the conservation of the species. The physical or biological features in this unit may require special management consideration due to groundwater pumping causing loss or reduction of springflow flood-control projects; and development of areas adjacent to or within proposed critical habitat. Effects of Critical Habitat Designation Section 7 Consultation Section 7(a)(2) of the Act requires Federal agencies, including the Service, to ensure that any action they fund, authorize, or carry out is not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of designated critical habitat of such species. In addition, section 7(a)(4) of the Act requires Federal agencies to confer with the Service on any agency action which is likely to jeopardize the continued existence of any species proposed to be listed under the Act or result in the destruction or adverse modification of proposed critical habitat. We published a final rule with a revised definition of destruction or adverse modification on August 27, 2019 (84 FR 44976). Destruction or adverse modification means a direct or indirect alteration that appreciably diminishes the value of critical habitat as a whole for the conservation of a listed species. VerDate Sep<11>2014 16:08 Sep 27, 2021 Jkt 253001 If a Federal action may affect a listed species or its critical habitat, the responsible Federal agency (action agency) must enter into consultation with us. Examples of actions that are subject to the section 7 consultation process are actions on State, tribal, local, or private lands that require a Federal permit (such as a permit from the U.S. Army Corps of Engineers under section 404 of the Clean Water Act (33 U.S.C. 1251 et seq.) or a permit from the Service under section 10 of the Act) or that involve some other Federal action (such as funding from the Federal Highway Administration, Federal Aviation Administration, or the Federal Emergency Management Agency). Federal actions not affecting listed species or critical habitat—and actions on State, tribal, local, or private lands that are not federally funded, authorized, or carried out by a Federal agency—do not require section 7 consultation. Compliance with the requirements of section 7(a)(2) is documented through our issuance of: (1) A concurrence letter for Federal actions that may affect, but are not likely to adversely affect, listed species or critical habitat; or (2) A biological opinion for Federal actions that may affect, and are likely to adversely affect, listed species or critical habitat. When we issue a biological opinion concluding that a project is likely to jeopardize the continued existence of a listed species and/or destroy or adversely modify critical habitat, we provide reasonable and prudent alternatives to the project, if any are identifiable, that would avoid the likelihood of jeopardy and/or destruction or adverse modification of critical habitat. We define ‘‘reasonable and prudent alternatives’’ (at 50 CFR 402.02) as alternative actions identified during consultation that: (1) Can be implemented in a manner consistent with the intended purpose of the action, (2) Can be implemented consistent with the scope of the Federal agency’s legal authority and jurisdiction, (3) Are economically and technologically feasible, and PO 00000 Frm 00054 Fmt 4702 Sfmt 4702 0.19 (0.48) Occupied? Yes. (4) Would, in the Service Director’s opinion, avoid the likelihood of jeopardizing the continued existence of the listed species and/or avoid the likelihood of destroying or adversely modifying critical habitat. Reasonable and prudent alternatives can vary from slight project modifications to extensive redesign or relocation of the project. Costs associated with implementing a reasonable and prudent alternative are similarly variable. Regulations at 50 CFR 402.16 set forth requirements for Federal agencies to reinitiate formal consultation on previously reviewed actions. These requirements apply when the Federal agency has retained discretionary involvement or control over the action (or the agency’s discretionary involvement or control is authorized by law) and, subsequent to the previous consultation, 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 ‘‘Destruction or 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. E:\FR\FM\28SEP1.SGM 28SEP1 Federal Register / Vol. 86, No. 185 / Tuesday, September 28, 2021 / Proposed Rules 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 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, during a consultation under section 7(a)(2) of the Act, find are likely to destroy or adversely modify critical habitat include, but are not limited to, actions that would impact the EdwardsTrinity aquifer and the springs and streams within the Hydrologic Unit Code (HUC)-12 watersheds of Paint Creek, Bluff Creek, and Little Paint Creek or within the upper South Llano River HUC–8 watershed. Depending on the activity and location, these actions could include, but are not limited to, groundwater pumping; discharge of contaminants; discharge of dredge or fill material; construction and maintenance of roads, railroads, and pipelines; and conservation and habitat management, which may include thinning of ashe juniper (Juniperus ashei), prescribed burning, and control of invasive aquatic plants, such as elephant ear (Colocassia esculenta). Potential effects of these activities include reduced spring flow at Seven Hundred Springs, increased runoff, flash flooding and scouring along the South Llano River, and contamination of the aquifer with toxic substances or excessive nutrient levels. 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 (DoD) lands with a completed INRMP within the proposed critical habitat designation. Consideration of Impacts Under Section 4(b)(2) of the Act Section 4(b)(2) of the Act states that the Secretary shall designate and make revisions to critical habitat on the basis of the best available scientific data after taking into consideration the economic VerDate Sep<11>2014 16:08 Sep 27, 2021 Jkt 253001 impact, national security impact, and any other relevant impact of specifying any particular area as critical habitat. The Secretary may exclude an area from critical habitat if he determines that the benefits of such exclusion outweigh the benefits of specifying such area as part of the critical habitat, unless he determines, based on the best scientific data available, that the failure to designate such area as critical habitat will result in the extinction of the species. In making the determination to exclude a particular area, the statute on its face, as well as the legislative history, are clear that the Secretary has broad discretion regarding which factor(s) to use and how much weight to give to any factor. The first sentence in section 4(b)(2) of the Act requires that we take into consideration the economic, national security, or other relevant impacts of designating any particular area as critical habitat. We describe below the process that we undertook for taking into consideration each category of impacts and our analyses of the relevant impacts. 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. Accordingly, we have prepared a draft economic analysis concerning the proposed critical habitat designation, which is available for review and comment (see ADDRESSES, above). To assess the probable economic impacts of a designation, we must first evaluate specific land uses or activities and projects that may occur in the area of the critical habitat. We then must evaluate the impacts that a specific critical habitat designation may have on restricting or modifying specific land uses or activities for the benefit of the species and its habitat within the areas proposed. We then identify which conservation efforts may be the result of the species being listed under the Act versus those attributed solely to the designation of critical habitat for this particular species. The probable economic impact of a proposed critical habitat designation is analyzed by comparing scenarios both ‘‘with critical habitat’’ and ‘‘without critical habitat.’’ The ‘‘without critical habitat’’ scenario represents the baseline for the analysis, which includes the existing regulatory and socio-economic burden imposed on landowners, managers, or other resource users potentially affected by the designation of critical habitat (e.g., under the Federal listing as well as other Federal, State, and local PO 00000 Frm 00055 Fmt 4702 Sfmt 4702 53621 regulations). The baseline, therefore, represents the costs of all efforts attributable to the listing of the species under the Act (i.e., conservation of the species and its habitat incurred regardless of whether critical habitat is designated). The ‘‘with critical habitat’’ scenario describes the incremental impacts associated specifically with the designation of critical habitat for the species. The incremental conservation efforts and associated impacts would not be expected without the designation of critical habitat for the species. In other words, the incremental costs are those attributable solely to the designation of critical habitat, above and beyond the baseline costs. These are the costs we use when evaluating the benefits of inclusion and exclusion of particular areas from the final designation of critical habitat should we choose to conduct a discretionary 4(b)(2) exclusion analysis. For this particular designation, we developed an incremental effects memorandum (IEM) considering the probable incremental economic impacts that may result from this proposed designation of critical habitat. The information contained in our IEM was then used to develop a screening analysis of the probable effects of the designation of critical habitat for the South Llano Springs moss (IEc. 2020, entire). We began by conducting a screening analysis of the proposed designation of critical habitat in order to focus our analysis on the key factors that are likely to result in incremental economic impacts. The purpose of the screening analysis is to filter out particular geographic areas of critical habitat that are already subject to such protections and are, therefore, unlikely to incur incremental economic impacts. In particular, the screening analysis considers baseline costs (i.e., absent critical habitat designation) and includes probable economic impacts where land and water use may be subject to conservation plans, land management plans, best management practices, or regulations that protect the habitat area as a result of the Federal listing status of the species. Ultimately, the screening analysis allows us to focus our analysis on evaluating the specific areas or sectors that may incur probable incremental economic impacts as a result of the designation. The screening analysis also assesses whether units are unoccupied by the species and may require additional management or conservation efforts as a result of the critical habitat designation for the species; these additional efforts may incur incremental economic impacts. E:\FR\FM\28SEP1.SGM 28SEP1 53622 Federal Register / Vol. 86, No. 185 / Tuesday, September 28, 2021 / Proposed Rules This screening analysis combined with the information contained in our IEM are what we consider our draft economic analysis (DEA) of the proposed critical habitat designation for the South Llano Springs moss; our DEA is summarized in the narrative below. Executive Orders (E.O.s) 12866 and 13563 direct Federal agencies to assess the costs and benefits of available regulatory alternatives in quantitative (to the extent feasible) and qualitative terms. Consistent with the E.O. regulatory analysis requirements, our effects analysis under the Act may take into consideration impacts to both directly and indirectly affected entities, where practicable and reasonable. If sufficient data are available, we assess to the extent practicable the probable impacts to both directly and indirectly affected entities. As part of our screening analysis, we considered the types of economic activities that are likely to occur within the areas likely affected by the critical habitat designation. In our evaluation of the probable incremental economic impacts that may result from the proposed designation of critical habitat for the South Llano Springs moss, first we identified, in the IEM dated January 7, 2020, probable incremental economic impacts associated with the following categories of activities: (1) Discharge permits (Environmental Protection Agency and U.S. Army Corps of Engineers); (2) stream dams and diversions, and dredge and fill of waterways (Environmental Protection Agency and U.S. Army Corps of Engineers); (3) transportation (U.S. Department of Transporation, Federal Highway Administration, and Federal Railroad Administration); and (4) conservation and habitat management (U.S. Fish and Wildlfie Service). We considered each industry or category individually. Additionally, we considered whether their activities have any Federal involvement. Critical habitat designation generally will not affect activities that do not have any Federal involvement; under the Act, designation of critical habitat only affects activities conducted, funded, permitted, or authorized by Federal agencies. If we list this species, in areas where the South Llano Springs moss is present, Federal agencies would be required to consult with the Service under section 7 of the Act on activities they fund, permit, or implement that may affect the species. If, when we list this species, we also finalize this proposed critical habitat designation, consultations to avoid the destruction or adverse modification of critical habitat VerDate Sep<11>2014 16:08 Sep 27, 2021 Jkt 253001 would be incorporated into the existing consultation process. In our IEM, we attempted to clarify the distinction between the effects that will result from the species being listed and those attributable to the critical habitat designation (i.e., difference between the jeopardy and adverse modification standards) for the South Llano Springs moss’ critical habitat. Because the designation of critical habitat for the South Llano Springs moss is proposed concurrently with the listing, it has been our experience that it is more difficult to discern which conservation efforts are attributable to the species being listed and those which will result solely from the designation of critical habitat. However, the following specific circumstances in this case help to inform our evaluation: (1) The essential physical or biological features identified for critical habitat are the same features essential for the life requisites of the species, and (2) any actions that would result in sufficient harm or harassment to constitute jeopardy to the South Llano Springs moss would also likely adversely affect the essential physical or biological features of critical habitat. The IEM outlines our rationale concerning this limited distinction between baseline conservation efforts and incremental impacts of the designation of critical habitat for this species. This evaluation of the incremental effects has been used as the basis to evaluate the probable incremental economic impacts of this proposed designation of critical habitat. The proposed critical habitat designation for the South Llano Springs moss includes one unit of occupied critical habitat, totaling 0.19 ha (0.48 ac), on private land. Because this area is occupied, any actions that may affect the species or its habitat would also affect designated critical habitat. As such, all activities with a Federal nexus occurring within the proposed critical habitat would be subject to section 7 consultation requirements regardless of critical habitat designation due to the presence of the listed species. Project modifications requested to avoid adverse modification are also likely to be the same as those needed to avoid jeopardy to the South Llano Springs moss. Therefore, only administrative costs are expected when considering adverse modification in section 7 consultations due to the proposed critical habitat designation. While this additional analysis would require time and resources by both the Federal action agency and the Service, we believe that these costs would be administrative in nature and would not be significant. Based upon past consultations in the PO 00000 Frm 00056 Fmt 4702 Sfmt 4702 area, it is conservatively estimated that three or fewer section 7 consultation actions (approximately one formal consultation, one informal consultation, and one technical assistance request) will occur annually in the proposed critical habitat area. These may include consultations with the U.S. Army Corps of Engineers, U.S. Department of Transportation, U.S. Environmental Protection Agency, and the U.S. Fish and Wildlife Service for fish passage projects, riparian restoration, upland habitat restoration, prescribed fire, and brush management. The total annual incremental costs of critical habitat designation for the South Llano Springs moss are anticipated to be approximately $8,100 per year. Current development or other projects are not planned in the proposed critical habitat area. Therefore, future probable incremental economic impacts are not likely to exceed $100 million in any single year, and impacts that are concentrated in any geographic area or sector are not likely as a result of this critical habitat designation. As we stated earlier, we are soliciting data and comments from the public on the DEA, as well as all aspects of this proposed rule and our required determinations. During the development of a final designation, we will consider the information presented in the DEA and any additional information on economic impacts received during the public comment period to determine whether any specific areas should be excluded from the final critical habitat designation on the basis of economic impacts under authority of section 4(b)(2) and our implementing regulations at 50 CFR 424.19. In particular, we may exclude an area from critical habitat if we determine that the benefits of excluding the area outweigh the benefits of including the area, provided the exclusion will not result in the extinction of this species. Consideration of National Security Impacts Section 4(a)(3)(B)(i) of the Act may not cover all DoD lands or areas that pose potential national-security concerns (e.g., a DoD installation that is in the process of revising its INRMP for a newly listed species or a species previously not covered). If a particular area is not covered under section 4(a)(3)(B)(i), national-security or homeland-security concerns are not a factor in the process of determining what areas meet the definition of ‘‘critical habitat.’’ Nevertheless, when designating critical habitat under section 4(b)(2), the Service must consider impacts on national security, E:\FR\FM\28SEP1.SGM 28SEP1 Federal Register / Vol. 86, No. 185 / Tuesday, September 28, 2021 / Proposed Rules including homeland security, on lands or areas not covered by section 4(a)(3)(B)(i). Accordingly, we will always consider for exclusion from the designation areas for which DoD, Department of Homeland Security (DHS), or another Federal agency has requested exclusion based on an assertion of national-security or homeland-security concerns. We cannot, however, automatically exclude requested areas. When DoD, DHS, or another Federal agency requests exclusion from critical habitat on the basis of national-security or homelandsecurity impacts, it must provide a reasonably specific justification of an incremental impact on national security that would result from the designation of that specific area as critical habitat. That justification could include demonstration of probable impacts, such as impacts to ongoing bordersecurity patrols and surveillance activities, or a delay in training or facility construction, as a result of compliance with section 7(a)(2) of the Act. If the agency requesting the exclusion does not provide us with a reasonably specific justification, we will contact the agency to recommend that it provide a specific justification or clarification of its concerns relative to the probable incremental impact that could result from the designation. If the agency provides a reasonably specific justification, we will defer to the expert judgment of DoD, DHS, or another Federal agency as to: (1) Whether activities on its lands or waters, or its activities on other lands or waters, have national-security or homeland-security implications; (2) the importance of those implications; and (3) the degree to which the cited implications would be adversely affected in the absence of an exclusion. In that circumstance, in conducting a discretionary 4(b)(2) exclusion analysis, we will give great weight to national-security and homeland-security concerns in analyzing the benefits of exclusion. In preparing this proposal, we have determined that the land within the proposed designation of critical habitat for the South Llano Springs moss is not owned, managed, or used by DoD or DHS, and, therefore, we anticipate no impact on national security or homeland security. However, during the development of a final designation we will consider any additional information received through the public comment period on the impacts of the proposed designation on national security or homeland security to determine whether any specific areas should be excluded from the final critical habitat designation under VerDate Sep<11>2014 16:08 Sep 27, 2021 Jkt 253001 authority of section 4(b)(2) and our implementing regulations at 50 CFR 424.19. Consideration of Other Relevant Impacts Under section 4(b)(2) of the Act, we consider any other relevant impacts, in addition to economic impacts and impacts on national security discussed above. We consider a number of factors including whether there are permitted conservation plans covering the species in the area such as HCPs, safe harbor agreements (SHAs), or candidate conservation agreements with assurances (CCAAs), or whether there are non-permitted conservation agreements and partnerships that would be encouraged by designation of, or exclusion from, critical habitat. In addition, we look at the existence of tribal conservation plans and partnerships and consider the government-to-government relationship of the United States with tribal entities. We also consider any social impacts that might occur because of the designation. In preparing this proposal, we have determined that there are currently no HCPs or other management plans for the South Llano Springs moss, and the proposed designation does not include any tribal lands or trust resources. We anticipate no impact on tribal lands, partnerships, or HCPs from this proposed critical habitat designation. Additionally, as described above, we are not proposing to exclude any particular areas on the basis of impacts to national security or economic impacts. During the development of a final designation, we will consider any additional information received through the public comment period regarding other relevant impacts to determine whether any specific areas should be excluded from the final critical habitat designation under authority of section 4(b)(2) and our implementing regulations at 50 CFR 424.19. Required Determinations Clarity of the Rule We are required by Executive Orders 12866 and 12988 and by the Presidential Memorandum of June 1, 1998, to write all rules in plain language. This means that each rule we publish must: (1) Be logically organized; (2) Use the active voice to address readers directly; (3) Use clear language rather than jargon; (4) Be divided into short sections and sentences; and (5) Use lists and tables wherever possible. PO 00000 Frm 00057 Fmt 4702 Sfmt 4702 53623 If you feel that we have not met these requirements, send us comments by one of the methods listed in ADDRESSES. To better help us revise the rule, your comments should be as specific as possible. For example, you should tell us the numbers of the sections or paragraphs that are unclearly written, which sections or sentences are too long, the sections where you feel lists or tables would be useful, etc. Regulatory Planning and Review (Executive Orders 12866 and 13563) Executive Order 12866 provides that the Office of Information and Regulatory Affairs (OIRA) in the Office of Management and Budget will review all significant rules. OIRA 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. E:\FR\FM\28SEP1.SGM 28SEP1 53624 Federal Register / Vol. 86, No. 185 / Tuesday, September 28, 2021 / Proposed Rules 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 whether potential economic impacts to these small entities are significant, we considered the types of activities that might trigger regulatory impacts under this designation as well as types of project modifications that may result. In general, the term ‘‘significant economic impact’’ is meant to apply to a typical small business firm’s business operations. Under the RFA, as amended, and as understood in the light of recent court decisions, Federal agencies are required to evaluate the potential incremental impacts of rulemaking only 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 if we adopt the proposed critical habitat designation. There is no requirement under the RFA to evaluate the potential impacts to entities not directly regulated. Moreover, Federal agencies are not small entities. Therefore, because no small entities would be directly regulated by this rulemaking, the Service certifies that, if made final as proposed, this critical habitat designation will not have a significant VerDate Sep<11>2014 16:08 Sep 27, 2021 Jkt 253001 economic impact on a substantial number of small entities. In summary, we have considered whether the proposed designation would result in a significant economic impact on a substantial number of small entities. For the above reasons and based on currently available information, we certify that, if made final, this critical habitat designation will not have a significant economic impact on a substantial number of small business entities. Therefore, an initial regulatory flexibility analysis is not required. Energy Supply, Distribution, or Use— Executive Order 13211 Executive Order 13211 (Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use) requires agencies to prepare Statements of Energy Effects when undertaking certain actions. In our economic analysis, we did not find that the designation of this proposed critical habitat would significantly affect energy supplies, distribution, or use. Therefore, this action is not a significant energy action, and no Statement of Energy Effects is required. Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.) In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.), we make the following finding: (1) This proposed 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: PO 00000 Frm 00058 Fmt 4702 Sfmt 4702 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 do not believe that this rule would significantly or uniquely affect small governments because the unit is very small and is entirely on private land. Small governments would be affected only to the extent that any programs having Federal funds, permits, or other authorized activities must ensure that their actions would not adversely affect the designated critical habitat. The designation of critical habitat imposes no obligations on State or local governments. Therefore, a Small Government Agency Plan is not required. Takings—Executive Order 12630 In accordance with E.O. 12630 (Government Actions and Interference with Constitutionally Protected Private Property Rights), we have analyzed the potential takings implications of designating critical habitat for the South Llano Springs moss in a takings implications assessment. The Act does not authorize the Service to regulate private actions on private lands or E:\FR\FM\28SEP1.SGM 28SEP1 Federal Register / Vol. 86, No. 185 / Tuesday, September 28, 2021 / Proposed Rules 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 for the proposed designation of critical habitat for the South Llano Springs moss, and it concludes that, if adopted, this designation of critical habitat 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 proposed rule does not have significant Federalism effects. A federalism summary impact statement is not required. In keeping with Department of the Interior and Department of Commerce policy, we requested information from, and coordinated development of this proposed critical habitat designation with, appropriate State resource agencies. 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 proposed rule does not have substantial direct effects either on the States, or on the relationship between the national government and the States, or on the distribution of powers and responsibilities among the various levels of government. The proposed designation may have some benefit to these governments because the areas that contain the features essential to the conservation of the species are more clearly defined, and the physical or biological features of the habitat necessary for the conservation of the species are specifically identified. This information does not alter where and what federally sponsored activities may occur. However, it may assist State and local governments in long-range planning because they no longer have to wait for case-by-case section 7 consultations to occur. VerDate Sep<11>2014 16:08 Sep 27, 2021 Jkt 253001 Where State and local governments require approval or authorization from a Federal agency for actions that may affect critical habitat, consultation under section 7(a)(2) of the Act would be required. While non-Federal entities that receive Federal funding, assistance, or permits, or that otherwise require approval or authorization from a Federal agency for an action, may be indirectly impacted by the designation of critical habitat, the legally binding duty to avoid destruction or adverse modification of critical habitat rests squarely on the Federal agency. Civil Justice Reform—Executive Order 12988 In accordance with Executive Order 12988 (Civil Justice Reform), the Office of the Solicitor has determined that the rule 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 have proposed designating critical habitat in accordance with the provisions of the Act. To assist the public in understanding the habitat needs of the species, this proposed rule identifies the elements of physical or biological features essential to the conservation of the species. The proposed area of designated critical habitat is presented on a map, and the proposed rule provides several options for the interested public to obtain more detailed location information, if desired. Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.) This rule does not contain information collection requirements, and a submission to the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.) is not required. We may not conduct or sponsor and you are not required to respond to a collection of information unless it displays a currently valid OMB control number. National Environmental Policy Act (42 U.S.C. 4321 et seq.) It is our position that, outside the jurisdiction of the U.S. Court of Appeals for the Tenth Circuit, we do not need to prepare environmental analyses pursuant to the National Environmental Policy Act (NEPA; 42 U.S.C. 4321 et seq.) in connection with 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 PO 00000 Frm 00059 Fmt 4702 Sfmt 4702 53625 F.3d 1495 (9th Cir. 1995), cert. denied 516 U.S. 1042 (1996)). Government-to-Government Relationship With Tribes In accordance with the President’s memorandum of April 29, 1994 (Government-to-Government Relations with Native American Tribal Governments; 59 FR 22951), Executive Order 13175 (Consultation and Coordination with Indian Tribal Governments), and the Department of the Interior’s manual at 512 DM 2, we readily acknowledge our responsibility to communicate meaningfully with recognized Federal Tribes on a government-to-government basis. In accordance with Secretarial Order 3206 of June 5, 1997 (American Indian Tribal Rights, Federal-Tribal Trust Responsibilities, and the Endangered Species Act), we readily acknowledge our responsibilities to work directly with tribes in developing programs for healthy ecosystems, to acknowledge that tribal lands are not subject to the same controls as Federal public lands, to remain sensitive to Indian culture, and to make information available to tribes. We have determined that no tribal lands fall within the boundaries of the proposed designation of critical habitat for the South Llano Springs moss, so no tribal lands would be affected by the proposed designation. References Cited A complete list of references cited in this rulemaking is available on the internet at https://www.regulations.gov and upon request from the Austin Ecological Services Field Office (see FOR FURTHER INFORMATION CONTACT). Authors The primary authors of this proposed rule are the staff members of the Fish and Wildlife Service’s Species Assessment Team and the Austin Ecological Services Field Office. List of Subjects in 50 CFR Part 17 Endangered and threatened species, Exports, Imports, Reporting and recordkeeping requirements, Transportation. Proposed Regulation Promulgation Accordingly, we propose to amend part 17, subchapter B of chapter I, title 50 of the Code of Federal Regulations, as set forth below: PART 17—ENDANGERED AND THREATENED WILDLIFE AND PLANTS 1. The authority citation for part 17 continues to read as follows: ■ E:\FR\FM\28SEP1.SGM 28SEP1 53626 Federal Register / Vol. 86, No. 185 / Tuesday, September 28, 2021 / Proposed Rules Authority: 16 U.S.C. 1361–1407; 1531– 1544; and 4201–4245, unless otherwise noted. 2. Amend § 17.12, in paragraph (h), the List of Endangered and Threatened Plants, by: ■ Scientific name * ■ a. Adding the heading ‘‘MOSSES’’ to the end of the table; and ■ b. Adding an entry for ‘‘Donrichardsia macroneuron’’ under the new heading ‘‘MOSSES’’. The additions read as follows: Common name * Where listed * Status * § 17.12 * Endangered and threatened plants. * * * * (h) * * * Listing citations and applicable rules * * * MOSSES Donrichardsia macroneuron. South Llano Springs moss. 3. Amend § 17.96 by adding paragraph (c) to read as follows: ■ § 17.96 Critical habitat—plants. * * * * * (c) Mosses. Family Brachytheciaceae: Donrichardsia macroneuron. (1) Critical habitat is depicted for Edwards County, Texas, on the map in this entry. (2) Within this area, the physical or biological features essential to the conservation of the South Llano Springs moss consist of the following components: (i) The uninterrupted flow of spring water supplied by the Edwards-Trinity aquifer within the South Llano watershed; (ii) Relatively constant water temperature due to proximity to the point of spring outflow; VerDate Sep<11>2014 17:45 Sep 27, 2021 Jkt 253001 Wherever found .............. E [Federal Register citation when published as a final rule]; 50 CFR 17.96(c).CH (iii) A substrate of calcareous or travertine rock not more than 15 cm (6 in) below the surface of the water; and (iv) Contaminant and sediment levels that do not exceed the tolerance limits of South Llano Springs moss and associated plant and animal species. (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 within the legal boundaries on [EFFECTIVE DATE OF FINAL RULE]. (4) Critical habitat map units. Data layers defining the map unit were created on a base of U.S. Geological Survey digital ortho-photo quarterquadrangles, and the critical habitat unit was then mapped using Geographic Information System (GIS) mapping. The map in this entry, as modified by any accompanying regulatory text, PO 00000 Frm 00060 Fmt 4702 Sfmt 4702 establishes the boundaries of the critical habitat designation. The coordinates or plot points or both on which the map is based are available to the public at the Service’s internet site at https:// www.fws.gov/southwest/es/ AustinTexas/, at https:// www.regulations.gov at Docket No. FWS–R2–ES–2020–0015, 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) Upper South Llano River Unit, Edwards County, Texas. (i) General description: The Upper South Llano River Unit consists of 0.19 hectares (0.48 acres) in Edwards County and is located on private land along the upper South Llano River. E:\FR\FM\28SEP1.SGM 28SEP1 Federal Register / Vol. 86, No. 185 / Tuesday, September 28, 2021 / Proposed Rules 53627 (ii) Map of Upper South Llano River Unit follows: BILLING CODE 4333–15–P Cnt1eal Haonat for South Llano Sprmgs lv1oss Upper So'Jt;1 Liano River Unit ,, , ,I , ' I Seven Hundred Springs 0 Kimble Co Edwards Co (l WO meters 50 0.5 0.5 HAi 1 Km r- L 1 ,-J--:~ \ Critical Habitat CJ County Rivers Ki Cites - o Springs Map Extent ;!' = Roads \[ BILLING CODE 4333–15–C Martha Williams, Principal Deputy Director, Exercising the Delegated Authority of the Director, U.S. Fish and Wildlife Service. [FR Doc. 2021–20924 Filed 9–27–21; 8:45 am] VerDate Sep<11>2014 17:45 Sep 27, 2021 Jkt 253001 PO 00000 Frm 00061 Fmt 4702 Sfmt 9990 E:\FR\FM\28SEP1.SGM 28SEP1 EP28SE21.000</GPH> BILLING CODE 4333–15–C

Agencies

[Federal Register Volume 86, Number 185 (Tuesday, September 28, 2021)]
[Proposed Rules]
[Pages 53609-53627]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-20924]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-R2-ES-2020-0015; FF09E21000 FXES11110900000 212]
RIN 1018-BD20


Endangered and Threatened Wildlife and Plants; Endangered Status 
for South Llano Springs Moss and Designation of Critical Habitat

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), propose to 
list the South Llano Springs moss (Donrichardsia macroneuron), an 
aquatic moss species from Texas, as an endangered species and to 
designate critical habitat under the Endangered Species Act of 1973, as 
amended (Act). After a review of the best available scientific and 
commercial information, we find that listing the species is warranted. 
This determination also serves as our 12-month finding on a petition to 
list the South Llano Springs moss. Accordingly, we propose to list the 
South Llano Springs moss as an endangered species. If we finalize this 
rule as proposed, it would add this species to the list of Endangered 
and Threatened Plants and extend the Act's protections to the species. 
We also propose to designate critical habitat for the South Llano 
Springs moss under the Act. In total, approximately 0.19 hectares (0.48 
acres) in Edwards County, Texas, fall within the boundaries of the 
proposed critical habitat designation. We also announce the 
availability of a draft economic analysis (DEA) of the proposed 
designation of critical habitat for the South Llano Springs moss.

DATES: We will accept comments received or postmarked on or before 
November 29, 2021. Comments submitted electronically using the Federal 
eRulemaking Portal (see ADDRESSES, below) must be received by 11:59 
p.m. Eastern Time on the closing date. We must receive requests for a 
public hearing, in writing, at the address shown in FOR FURTHER 
INFORMATION CONTACT by November 12, 2021.

ADDRESSES: Written comments: You may submit comments by one of the 
following methods:
    (1) Electronically: Go to the Federal eRulemaking Portal: https://www.regulations.gov. In the Search box, enter the docket number or RIN 
for this rulemaking (presented above in the document headings). For 
best results, do not copy and paste either number; instead, type the 
docket number or RIN into the Search box using hyphens. Then, click on 
the Search button. On the resulting page, in the Search panel on the 
left side of the screen, under the Document Type heading, check the 
Proposed Rule box to locate this document. You may submit a comment by 
clicking on ``Comment.''
    (2) By hard copy: Submit by U.S. mail to: Public Comments 
Processing, Attn: FWS-R2-ES-2020-0015, U.S. Fish and Wildlife Service, 
MS: JAO/1N, 5275 Leesburg Pike, Falls Church, VA 22041-3803.
    We request that you send comments only by the methods described 
above. We will post all comments on https://www.regulations.gov. This 
generally means that we will post any personal information you provide 
us (see

[[Page 53610]]

Information Requested, below, for more information).
    Availability of supporting materials: For the critical habitat 
designation, the draft economic analysis and the coordinates or plot 
points or both from which the maps are generated are included in the 
administrative record and are available at the Service's internet site 
at https://www.fws.gov/southwest/es/AustinTexas/ and at https://www.regulations.gov under Docket No. FWS-R2-ES-2020-0015. Any 
additional tools or supporting information that we may develop for the 
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: Adam Zerrenner, Field Supervisor, U.S. 
Fish and Wildlife Service, Austin Ecological Services Field Office, 
10711 Burnet Road, Suite 200, Austin, TX 78758; telephone 512-490-0057. 
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, if we determine that 
a species may be an endangered or threatened species throughout all or 
a significant portion of its range, we are required to promptly publish 
a proposal in the Federal Register and make a determination on our 
proposal within 1 year. 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 document does. We propose to list the South Llano Springs 
moss as an endangered species under the Act, and we propose to 
designate critical habitat for the species on approximately 0.19 
hectares (ha) (0.48 acres (ac)) in Edwards County, Texas.
    The basis for our action. Under the Act, we may determine that a 
species is an endangered or threatened species because of 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 increased groundwater 
pumping from the Edwards-Trinity aquifer that supplies water for the 
springs that the South Llano Springs moss is dependent on, as well as 
flash floods, sedimentation, invasive plant species, small population 
size, a single population, and lack of genetic diversity, and 
cumulative impacts from these threats, threaten this plant species to 
the degree that listing it as an endangered species under the Act is 
warranted.
    Section 4(a)(3) of the Act requires the Secretary of the Interior 
(Secretary) to designate critical habitat concurrent with listing to 
the maximum extent prudent and determinable. Section 3(5)(A) of the Act 
defines critical habitat as (i) the specific areas within the 
geographical area occupied by the species, at the time it is listed, on 
which are found those physical or biological features (I) essential to 
the conservation of the species and (II) which may require special 
management considerations or protections; and (ii) specific areas 
outside the geographical area occupied by the species at the time it is 
listed, upon a determination by the Secretary that such areas are 
essential for the conservation of the species. Section 4(b)(2) of the 
Act states that the Secretary must make the designation on the basis of 
the best scientific data available and after taking into consideration 
the economic impact, the impact on national security, and any other 
relevant impacts of specifying any particular area as critical habitat.
    We prepared a draft economic analysis of the proposed designation 
of critical habitat. In order to consider economic impacts, we prepared 
an analysis of the economic impacts of the proposed critical habitat 
designation. We hereby announce the availability of the draft economic 
analysis and seek public review and comment.
    Peer review. In accordance with our joint policy on peer review 
published in the Federal Register 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 sought the expert 
opinions of four appropriate specialists regarding the species status 
assessment report. We received a response from one specialist, which 
informed this proposed rule. The purpose of peer review is to ensure 
that our listing determination and critical habitat designation are 
based on scientifically sound data, assumptions, and analyses. The peer 
reviewers we contacted have expertise in the biology, habitat, and 
threats to the species.
    Because we will consider all comments and information we receive 
during the comment period, our final determinations may differ from 
this proposal. Based on the new information we receive (and any 
comments on that new information), we may conclude that the species is 
threatened instead of endangered, or we may conclude that the species 
does not warrant listing as either an endangered species or a 
threatened species. Such final decisions would be a logical outgrowth 
of this proposal, as long as we: (a) Base the decisions on the best 
scientific and commercial data available after considering all of the 
relevant factors; (2) do not rely on factors Congress has not intended 
us to consider; and (3) articulate a rational connection between the 
facts found and the conclusions made, including why we changed our 
conclusion.

Information Requested

    We intend that any final action resulting from this proposed rule 
will be based on the best scientific and commercial data available and 
be as accurate and as effective as possible. Therefore, we request 
comments or information from other concerned governmental agencies, 
Native American tribes, the scientific community, industry, or any 
other interested parties concerning this proposed rule.
    We particularly seek comments concerning:
    (1) The species' biology, range, and population trends, including:
    (a) Biological or ecological requirements of the species, including 
habitat requirements for feeding, breeding, and sheltering;
    (b) Genetics and taxonomy;
    (c) Historical and current range, including distribution patterns;
    (d) Historical and current population levels, and current and 
projected trends; and
    (e) Past and ongoing conservation measures for the species, its 
habitat, or both.
    (2) Factors that may affect the continued existence of the species, 
which may include habitat modification or destruction, overutilization, 
disease, predation, the inadequacy of existing regulatory mechanisms, 
or other natural or manmade factors.
    (3) Biological, commercial trade, or other relevant data concerning 
any threats (or lack thereof) to this species and existing regulations 
that may be addressing those threats.
    (4) Additional information concerning the historical and current 
status, range, distribution, and population size of this

[[Page 53611]]

species, including the locations of any additional populations of this 
species.
    (5) The reasons why we should or should not designate habitat as 
``critical habitat'' under section 4 of the Act (16 U.S.C. 1531 et 
seq.), including information to inform the following factors that the 
regulations identify as reasons why designation of critical habitat may 
be not prudent:
    (a) The species is threatened by taking or other human activity and 
identification of critical habitat can be expected to increase the 
degree of such threat to the species;
    (b) The present or threatened destruction, modification, or 
curtailment of a species' habitat or range is not a threat to the 
species, or threats to the species' habitat stem solely from causes 
that cannot be addressed through management actions resulting from 
consultations under section 7(a)(2) of the Act;
    (c) Areas within the jurisdiction of the United States provide no 
more than negligible conservation value, if any, for a species 
occurring primarily outside the jurisdiction of the United States; or
    (d) No areas meet the definition of critical habitat.
    (6) Specific information on:
    (a) The amount and distribution of the South Llano Springs moss 
habitat;
    (b) What areas, that were occupied at the time of listing and that 
contain the physical or biological features essential to the 
conservation of the species, should be included in the designation and 
why;
    (c) Special management considerations or protection that may be 
needed in the critical habitat area we are proposing, including 
managing for the potential effects of climate change; and
    (d) What areas not occupied at the time of listing are essential 
for the conservation of the species. We particularly seek comments:
    (i) Regarding whether occupied areas are adequate for the 
conservation of the species; and
    (ii) Providing specific information regarding whether or not 
unoccupied areas would, with reasonable certainty, contribute to the 
conservation of the species and contain at least one physical or 
biological feature essential to the conservation of the species.
    (7) Land use designations and current or planned activities in the 
subject areas and their possible impacts on proposed critical habitat.
    (8) Any probable economic, national security, or other relevant 
impacts of designating any area that may be included in the final 
designation, and the related benefits of including or excluding 
specific areas.
    (9) Information on the extent to which the description of probable 
economic impacts in the draft economic analysis is a reasonable 
estimate of the likely economic impacts.
    (10) Whether any specific areas we are proposing for critical 
habitat designation should be considered for exclusion under section 
4(b)(2) of the Act, and whether the benefits of potentially excluding 
any specific area outweigh the benefits of including that area under 
section 4(b)(2) of the Act.
    (11) Whether we could improve or modify our approach to designating 
critical habitat in any way to provide for greater public participation 
and understanding, or to better accommodate public concerns and 
comments.
    Please include sufficient information with your submission (such as 
scientific journal articles or other publications) to allow us to 
verify any scientific or commercial information you include.
    Please note that submissions merely stating support for, or 
opposition to, the action under consideration without providing 
supporting information, although noted, will not be considered in 
making a determination, as section 4(b)(1)(A) of the Act directs that 
determinations as to whether any species is an endangered or a 
threatened species must be made ``solely on the basis of the best 
scientific and commercial data available.''
    You may submit your comments and materials concerning this proposed 
rule by one of the methods listed in ADDRESSES. We request that you 
send comments only by the methods described in ADDRESSES.
    If you submit information via https://www.regulations.gov, your 
entire submission--including any personal identifying information--will 
be posted on the website. If your submission is made via a hardcopy 
that includes personal identifying information, you may request at the 
top of your document that we withhold this information from public 
review. However, we cannot guarantee that we will be able to do so. We 
will post all hardcopy submissions on https://www.regulations.gov.
    Comments and materials we receive, as well as supporting 
documentation we used in preparing this proposed rule, will be 
available for public inspection on https://www.regulations.gov, or by 
appointment, during normal business hours, at the U.S. Fish and 
Wildlife Service, Austin Ecological Services Field Office (see FOR 
FURTHER INFORMATION CONTACT).

Public Hearing

    Section 4(b)(5) of the Act provides for a public hearing on this 
proposal, if requested. Requests must be received by the date specified 
in DATES. Such requests must be sent to the address shown in FOR 
FURTHER INFORMATION CONTACT. We will schedule a public hearing on this 
proposal, if requested, and announce the date, time, and place of the 
hearing, as well as how to obtain reasonable accommodations, in the 
Federal Register and local newspapers at least 15 days before the 
hearing. For the immediate future, we will provide these public 
hearings using webinars that will be announced on the Service's 
website, in addition to the Federal Register. The use of these virtual 
public hearings is consistent with our regulation at 50 CFR 
424.16(c)(3).

Previous Federal Actions

    On June 18, 2007, we received a formal petition from Forest 
Guardians (later named WildEarth Guardians) to list 475 species in the 
southwestern United States, including the South Llano Springs moss, as 
endangered or threatened species under the Act. On March 19, 2008, 
WildEarth Guardians filed a complaint that the Service failed to comply 
with the mandatory duty to make a preliminary 90-day finding. On 
January 6, 2009, we published in the Federal Register (74 FR 419) a 90-
day finding that the petition did not present sufficient information to 
indicate that listing the South Llano Springs moss may be warranted. On 
December 16, 2009, we published a new 90-day finding, based on a re-
evaluation of the information presented in the petition and readily 
available in our files, that the petition provided substantial 
information indicating that listing of the South Llano Springs moss may 
be warranted based on the present or threatened destruction, 
modification, or curtailment of habitat or range as a result of drought 
or changes in hydrology (74 FR 66866).

Supporting Documents

    A species status assessment (SSA) team prepared an SSA report for 
the South Llano Springs moss. The SSA team was composed of Service 
biologists, in consultation with other species experts. The SSA report 
represents a compilation of the best scientific and commercial data 
available concerning the status of the species, including the impacts 
of past, present, and future factors (both negative and beneficial) 
affecting the species. The Service sent the SSA report to four 
independent peer reviewers and

[[Page 53612]]

received one response. The Service also sent the SSA report to 
partners, including scientists with expertise with this species, for 
review. We received one review from the Texas Parks and Wildlife 
Department.

I. Proposed Listing Determination

Background

    The South Llano Springs moss is an aquatic moss that grows on 
submerged or partially submerged rocks. The deep, loosely interwoven 
mats are blue-green to blackish-brown when shaded and yellow-green when 
exposed to full sun. Like all mosses, the South Llano Springs moss 
forms clonal colonies of leaf-bearing stems.
    The South Llano Springs moss has an extremely limited range: It has 
only been documented in two locations and is thought to be extirpated 
from one of those. The remaining extant site is from Seven Hundred 
Springs, on the South Llano River in Edwards County, Texas. The 
extirpated site, referred to as the Redfearn site, was about 5 
kilometers (km) (3.1 miles (mi)) downstream from Seven Hundred Springs 
in Kimble County, Texas, though the exact location is unknown. Both 
sites occur within the Edwards Plateau. Wyatt and Stoneburner (1980, 
pp. 514, 516) visited 10 other springs in the Llano and South Llano 
River watersheds in 1978 and 1979, but found no additional populations.
    The South Llano Springs moss was discovered at Seven Hundred 
Springs in 1932, and was most recently confirmed there in 1979 (Wyatt 
and Stoneburner 1980, entire). When last observed, the South Llano 
Springs moss was abundantly dispersed in the spring outflow, partially 
submerged in shaded areas within an area of about 10 by 100 meters (m) 
(33 by 328 feet (ft)) between the springs and the river below on 
privately owned land (Wyatt and Stoneburner 1980, p. 516). Observation 
of the habitat from the opposite side of the river in 2017 indicated 
that the habitat appears to be in excellent condition (Service 2017, 
entire). This is the best available information we have for this site; 
consequently, we consider the Seven Hundred Springs population to be 
extant. The South Llano Springs moss was last documented at the 
Redfearn site in 1971. The two specimen labels from these collections 
state that they were collected ``1 mile south of Telegraph'' with one 
specimen collected on a dam and the other from limestone at the edge of 
the creek. On topographic maps, Telegraph is a location consisting of a 
single store that is not directly along the river; however, there is a 
road connecting Telegraph to the South Llano River with a bridge, and 
this may be the location from which Redfearn was measuring. Due to the 
vague location description, there is uncertainty around the exact 
location of the Redfearn site. In 2017, we conducted surveys along 5.7 
km of the South Llano River, including the 2.25 km in which we believe 
Redfearn collected his specimens. All aquatic moss species encountered 
were collected and a sample of each of the four species encountered was 
sent to a bryologist at the Missouri Botanical Garden for 
identification. None of the species collected were found to be the 
South Llano Springs moss. This is the best available information we 
have for this site; consequently, we consider the Redfearn population 
to be extirpated. It is possible that the species does not occur 
anywhere else. However, few surveys for this species have been 
conducted. Consequently, it is possible that this species occurs 
elsewhere along Paint Creek or the South Llano River. The best 
available data indicate that only the Seven Hundred Springs population 
persists.
    A thorough review of the taxonomy, life history, and ecology of the 
South Llano Springs moss is presented in the SSA report (version 1.1; 
Service 2018, entire).

Regulatory and Analytical Framework

Regulatory Framework

    Section 4 of the Act (16 U.S.C. 1533) and its implementing 
regulations (50 CFR part 424) set forth the procedures for determining 
whether a species is an ``endangered species'' or a ``threatened 
species.'' The Act defines an endangered species as a species that is 
``in danger of extinction throughout all or a significant portion of 
its range,'' and a threatened species as a species that is ``likely to 
become an endangered species within the foreseeable future throughout 
all or a significant portion of its range.'' The Act requires that we 
determine whether any species is an ``endangered species'' or a 
``threatened species'' because of any of the following factors:
    (A) The present or threatened destruction, modification, or 
curtailment of its habitat or range;
    (B) Overutilization for commercial, recreational, scientific, or 
educational purposes;
    (C) Disease or predation;
    (D) The inadequacy of existing regulatory mechanisms; or
    (E) Other natural or manmade factors affecting its continued 
existence.
    These factors represent broad categories of natural or human-caused 
actions or conditions that could have an effect on a species' continued 
existence. In evaluating these actions and conditions, we look for 
those that may have a negative effect on individuals of the species, as 
well as other actions or conditions that may ameliorate any negative 
effects or may have positive effects.
    We use the term ``threat'' to refer in general to actions or 
conditions that are known to or are reasonably likely to negatively 
affect individuals of a species. The term ``threat'' includes actions 
or conditions that have a direct impact on individuals (direct 
impacts), as well as those that affect individuals through alteration 
of their habitat or required resources (stressors). The term ``threat'' 
may encompass--either together or separately--the source of the action 
or condition or the action or condition itself.
    However, the mere identification of any threat(s) does not 
necessarily mean that the species meets the statutory definition of an 
``endangered species'' or a ``threatened species.'' In determining 
whether a species meets either definition, we must evaluate all 
identified threats by considering the expected response by the species, 
and the effects of the threats--in light of those actions and 
conditions that will ameliorate the threats--on an individual, 
population, and species level. We evaluate each threat and its expected 
effects on the species, then analyze the cumulative effect of all of 
the threats on the species as a whole. We also consider the cumulative 
effect of the threats in light of those actions and conditions that 
will have positive effects on the species, such as any existing 
regulatory mechanisms or conservation efforts. The Secretary determines 
whether the species meets the definition of an ``endangered species'' 
or a ``threatened species'' only after conducting this cumulative 
analysis and describing the expected effect on the species now and in 
the foreseeable future.
    The Act does not define the term ``foreseeable future,'' which 
appears in the statutory definition of ``threatened species.'' Our 
implementing regulations at 50 CFR 424.11(d) set forth a framework for 
evaluating the foreseeable future on a case-by-case basis. The term 
``foreseeable future'' extends only so far into the future as the 
Services can reasonably determine that both the future threats and the 
species' responses to those threats are likely. In other words, the 
foreseeable future is the period of time in which we can make reliable 
predictions. ``Reliable'' does not mean ``certain''; it means 
sufficient to

[[Page 53613]]

provide a reasonable degree of confidence in the prediction. Thus, a 
prediction is reliable if it is reasonable to depend on it when making 
decisions.
    It is not always possible or necessary to define foreseeable future 
as a particular number of years. Analysis of the foreseeable future 
uses the best scientific and commercial data available and should 
consider the timeframes applicable to the relevant threats and to the 
species' likely responses to those threats in view of its life-history 
characteristics. Data that are typically relevant to assessing the 
species' biological response include species-specific factors such as 
lifespan, reproductive rates or productivity, certain behaviors, and 
other demographic factors.

Analytical Framework

    The SSA report documents the results of our comprehensive 
biological status review for the species, including an assessment of 
the potential threats to the species. The SSA report does not represent 
a decision by the Service on whether the species should be proposed for 
listing as an endangered or threatened species under the Act. It does, 
however, provide the scientific basis that informs our regulatory 
decisions, which involve the further application of standards within 
the Act and its implementing regulations and policies. The following is 
a summary of the key results and conclusions from the SSA report; the 
full SSA report can be found on https://www.regulations.gov under Docket 
FWS-R2-ES-2020-0015.
    To assess the viability of the South Llano Springs moss, we used 
the three conservation biology principles of resiliency, redundancy, 
and representation (Shaffer and Stein 2000, pp. 306-310). Briefly, 
resiliency supports the ability of the species to withstand 
environmental and demographic stochasticity (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 SSA process can be categorized into three sequential stages. 
During the first stage, we evaluated individual species' life-history 
needs. The next stage involved an assessment of the historical and 
current condition of the species' demographics and habitat 
characteristics, including an explanation of how the species arrived at 
its current condition. The final stage of the SSA involved making 
predictions about the species' responses to positive and negative 
environmental and anthropogenic influences. This process used the best 
available information to characterize viability as the ability of a 
species to sustain populations in the wild over time. We use this 
information to inform our regulatory decision.

Summary of Biological Status and Threats

    In this section, we review the biological condition of the species 
and its resources, and the threats that influence the species' current 
and future condition, in order to assess the species' overall viability 
and the risks to that viability.
    Based on the conditions of the only known current and historical 
populations, the South Llano Springs moss requires a constant flow of 
mineral-rich spring water or spring-fed river water over shallow 
limestone rocks. Seven Hundred Springs and the areas thought to contain 
the Redfearn sites are supported by spring flows within the Edwards-
Trinity aquifer and the South Llano River watershed (Seven Hundred 
Springs and Big Paint Springs). These springs have never ceased flowing 
in recorded history. Water from these springs emerges at a very 
consistent temperature and is rich in travertine minerals. Rocks and 
plants immersed in the upper South Llano River quickly become encrusted 
with travertine- or tufa-like mineral deposits, to an unusual degree 
not seen in most springs in the Edwards-Trinity aquifer (Service 2017, 
p. 2). Thus, it is possible that high mineral concentrations, or the 
precipitation of minerals from solution, could be requirements for the 
establishment and growth of South Llano Springs moss individuals.
    The water temperature of Seven Hundred Springs was consistently 
21.5 degrees Celsius ([deg]C) (70.7 degrees Fahrenheit ([deg]F)) in 
June, and the pH ranged from 7.0 to 7.2 (Wyatt and Stoneburner 1980, p. 
516). The species occurred in both shaded and exposed niches at Seven 
Hundred Springs (Wyatt and Stoneburner 1980, p. 516). Associated 
vascular plant species included maidenhair fern (Adiantum capillus-
veneris), southern shield fern (Thelypteris kunthii), watercress 
(Nasturtium officinale), and members of the mint family (Lamiaceae) and 
composite family (Asteraceae) (Wyatt and Stoneburner 1980, p. 516). 
Associated moss species included Hygroamblystegium tenax and Eucladium 
verticillatum (Wyatt and Stoneburner 1980, p. 517).
    Mosses closely related to the South Llano Springs moss reproduce 
both sexually and asexually. However, there is no evidence that sexual 
reproduction is occurring in the single remaining known site of 
occurrence, as no plants with female reproductive structures were 
observed in the wild population or during a 16-month propagation study 
in 1978 and 1979 (Wyatt and Stoneburner 1980, p. 517). The plants 
cultivated in captivity produced only male reproductive structures. It 
is possible that the known population may be a clone of a single or a 
few male individuals and that sexual reproduction is no longer possible 
for the species.
    In addition to the habitat requirements described above, resilient 
populations of South Llano Springs moss need to be large enough that 
local stochastic events do not eliminate all individuals, allowing the 
overall population to recover from any one event. The larger a 
population is, the greater the chances that a portion of the population 
will survive. The minimum viable population size is not known for this 
species. However, the geographic extent is provided from the 
observations of Wyatt and Stoneburner (1980, p. 516). When last 
observed, the South Llano Springs moss grew in the spring outflow 
partially submerged in shaded areas within a 10 m (33 ft) zone between 
the springs and the river below (Wyatt and Stoneburner 1980, p. 516). 
We assume that the population could be as large as the spring flow and 
substrate allow in this zone. The area occupied by a moss population is 
a practical surrogate for abundance, provided that it is understood 
that this does not address the number of genetically unique 
individuals.
    Recruitment is also needed for populations to be resilient. The 
colony at Seven Hundred Springs may be a clone of a single individual, 
or only male individuals, and is presumed incapable of sexual 
reproduction (Wyatt and Stoneburner 1980, p. 520). Unless female 
individuals are present, the colony of South Llano Springs moss at 
Seven Hundred Springs can persist and grow only through vegetative 
budding or through the establishment of

[[Page 53614]]

fragments that happen to lodge in suitable niches. These mats can 
expand to occupy new habitats while the portion that established 
earlier dies. An individual remains alive as long as old stems die no 
faster than new stems develop. The same individual could migrate back 
and forth through available habitats for an unlimited period of time, 
and it is not inconceivable that the individuals we see today arose 
from spores that germinated many thousands of years ago. For the 
species to persist, the recruitment of new individuals must equal or 
exceed mortality.
    Wyatt and Stoneburner (1980, pp. 519-520) estimated that the 
species' range may have been more extensive 10,000 years ago, and 
subsequently became restricted to this single location as the climate 
warmed and other springs periodically stopped flowing. To assess the 
climate changes that could affect this species into the future, we 
examined the climate parameters using both the representative 
concentration pathway (RCP) 4.5 and RCP 8.5 scenarios to provide a 
range of projected values. These models predict that by 2074 climate 
changes could result in a reduction of aquifer recharge and an 
increased duration and severity of droughts and heavy rainfall, thereby 
increasing the threats of interrupted spring flows and flash floods. 
Annual precipitation is highly variable in central Texas, and severe, 
multi-year droughts occurred during the 1950s and from 2006 through 
2012. During these historical periods of drought, only the largest 
springs along the South Llano River, including Seven Hundred Springs, 
continued flowing, but at lower rates. Prolonged drought in combination 
with increased pumping from the Edwards-Trinity aquifer could increase 
the probability of interrupted flows of these springs and, 
consequently, the extirpation or extinction of the South Llano Springs 
moss. Despite the frequency of prolonged drought, the region is also 
subject to extremely heavy rainfall, often resulting from tropical 
storms in the Gulf of Mexico as well as the Pacific Ocean. All of these 
factors contribute to flash floods (high intensity, low duration 
floods) that can drastically change stream beds and the surrounding 
vegetation, potentially scouring the South Llano Springs moss from its 
rock substrate along the edge of the stream, or burying it beneath 
deposits of silt, sand, and gravel.
    The amount of pumping from the Edwards-Trinity aquifer is one of 
the most important factors influencing storage in the aquifer and 
spring flows. Aquifer water levels are stable or have declined slightly 
over most of the Edwards-Trinity aquifer, but in some areas, heavy 
pumping has led to long-term declines in aquifer levels and diminished 
or interrupted spring flows (George et al. 2011, p. 35; Region F Water 
Planning Group 2015, pp. 1-34, 3-15; Plateau Region Water Planning 
Group 2016, pp. 7-11). These sources project relatively little growth 
in the human population in Edwards and Kimble Counties during the next 
50 years. Conversely, population growth is projected to increase for 
five central Texas counties, which include the metropolitan areas of 
San Antonio, New Braunfels, San Marcos, Austin, Round Rock, and 
Georgetown, by 32 percent between 2017 and 2037, and by 53 percent 
between 2017 and 2050 (Texas Demographic Center 2017, p. 1). It is 
reasonably foreseeable that increased pumping may occur from the 
Edwards-Trinity aquifer for transfer to other regions to supply 
increased municipal water demands. This increased pumping could reduce 
water storage in the Edwards-Trinity aquifer and spring flows in the 
South Llano River. Loss of spring flows, even for a short time, would 
likely reduce or extirpate the only known remaining population of the 
South Llano Springs moss because the species requires constant 
immersion in flowing spring water to persist.
    The Upper Llano River Watershed Protection Plan (Broad et al. 2016, 
pp. 51, 64-66, 86) identifies increased runoff, evapotranspiration, and 
sediment loading as impacts to the upper Llano River watersheds due to 
the encroachment of woody species. Recharge into the Edwards-Trinity 
aquifer in Edwards County has been reduced during prior periods of 
vegetation loss from overgrazing, resulting in increased runoff and the 
drying of some smaller springs (Brune 1981, p. 173). Aquifer recharge 
may also have been reduced by the encroachment of brush into formerly 
grass-dominated uplands (South Llano Watershed Alliance 2012, p. 9; 
Broad et al. 2016, pp. 40-41, 51). Aquifer recharge would also be 
reduced by an increase in evapotranspiration, due to increased 
temperatures.
    Small populations are less able to recover from losses caused by 
random fluctuations in recruitment (demographic stochasticity) or 
variations in spring outflow (environmental stochasticity) (Service 
2015, p. 12). In addition to population size, it is likely that 
population density also influences population viability, as sexual 
reproduction, if it occurs at all in the species' current situation, 
requires male and female mosses to be in close proximity. Small, 
reproductively isolated populations are also susceptible to the loss of 
genetic diversity, to genetic drift, and to inbreeding (Barrett and 
Kohn 1991, pp. 3-30). The loss of genetic diversity may reduce the 
ability of a species or population to resist pathogens and parasites, 
to adapt to changing environmental conditions, or to colonize new 
habitats. The combined demographic and genetic consequences of small 
population sizes may reduce population recruitment, leading to even 
smaller populations and greater isolation, and further decreasing the 
viability of the species. These factors may already have contributed to 
the decline of the South Llano Springs moss to its current state of 
extreme endemism in the upper South Llano River. All of the above 
stressors are exacerbated by the fact that the South Llano Springs moss 
likely consists of only one, small population.
    We note that, by using the SSA framework to guide our analysis of 
the scientific information documented in the SSA report, we have not 
only analyzed individual effects on the species, but we have also 
analyzed their potential cumulative effects. We incorporate the 
cumulative effects into our SSA analysis when we characterize the 
current and future condition of the species. Our assessment of the 
current and future conditions encompasses and incorporates the threats 
individually and cumulatively. Our current and future condition 
assessment is iterative because it accumulates and evaluates the 
effects of all the factors that may be influencing the species, 
including threats and conservation efforts. Because the SSA framework 
considers not just the presence of the factors, but to what degree they 
collectively influence risk to the entire species, our assessment 
integrates the cumulative effects of the factors and replaces a 
standalone cumulative effects analysis.

Determination of Status for the South Llano Springs Moss

    Section 4 of the Act (16 U.S.C. 1533) and its implementing 
regulations (50 CFR part 424) set forth the procedures for determining 
whether a species meets the definition of ``endangered species'' or 
``threatened species.'' The Act defines an ``endangered species'' as a 
species that is ``in danger of extinction throughout all or a 
significant portion of its range,'' and a ``threatened species'' as a 
species that is ``likely to become an endangered species within the 
foreseeable future throughout all or a significant portion of its 
range.'' The Act requires that we determine whether a species meets the 
definition of ``endangered species'' or ``threatened

[[Page 53615]]

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 
propose listing the South Llano Springs moss as an endangered species 
throughout all of its range. Only two very small populations of South 
Llano Springs moss have been documented, which were last observed in 
1971 and 1979. One is now extirpated and the other is restricted to a 
10 by 100 m (33 by 328 ft) zone between Seven Hundred Springs and the 
South Llano River (Wyatt and Stoneburner 1980, p. 516). Therefore, the 
species has an extremely low level of representation, and no 
redundancy, making it vulnerable to catastrophic events such as flash 
floods and droughts. During historic droughts, such as in the 1950s and 
2006-2012, many regional springs ceased flowing and the flow of Seven 
Hundred Springs was greatly reduced. Projected climate changes include 
an increased frequency, duration, and severity of droughts (Factor E), 
thereby increasing the risk of interrupting the flow of Seven Hundred 
Springs and the desiccation and mortality of this obligately aquatic 
moss (Factor A). The amount of pumping from the Edwards-Trinity aquifer 
is one of the most important factors influencing storage in the aquifer 
and the spring flows on which the South Llano Springs moss relies. 
Groundwater pumping is likely to increase as the human population grows 
and as the severity and duration of droughts increases. Prolonged 
drought (Factor E), in combination with increased pumping from the 
Edwards-Trinity aquifer (Factor E), further increase the probability of 
interrupting the flow of Seven Hundred Springs (Factor A) and, 
consequently, the probability of extinction of the South Llano Springs 
moss.
    The South Llano Springs moss has little or no genetic diversity 
(Factor E) because this species likely consists of clones of one or a 
few male individuals and is no longer capable of sexual reproduction 
(Factor E). Consequently, the species has very low representation and 
likely has very little ability to adapt to environmental changes. In 
addition the South Llano Springs moss has poor redundancy because there 
is only one small population remaining. One drought event that reduced 
the flow of Seven Hundred Springs could result in the extirpation of 
this species.
    We find that the South Llano Springs moss is presently in danger of 
extinction throughout its entire range based on the small remaining 
single population that is likely genetically compromised. This status 
puts the species on the brink of extinction where normal stochastic 
events, such as drought, flooding, or a human-caused drop in the 
aquifer level could lead to further decline or loss of the species 
entirely. The only other known population has not been observed since 
1971 and is considered likely extirpated. This one remaining population 
could be affected by a variety of threats acting in combination to 
reduce the overall viability of the species. The risk of extinction is 
high because the remaining population is small, with no known potential 
for natural recolonization. We find that a threatened species status is 
not appropriate for the South Llano Springs moss because of the 
species' current precarious condition due to its contracted range, 
small population size, and likely compromised genetics, because these 
stressors are severe, ongoing, and expected to continue into the 
future.
    Therefore, after assessing the best available information, we 
determine that the South Llano Springs moss is 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 South Llano Springs moss is in 
danger of extinction throughout all of its range, and accordingly, did 
not undertake an analysis of any significant portion of its range. 
Because we have determined that the South Llano Springs moss warrants 
listing as an endangered species throughout all 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), in which 
the court vacated the aspect of the 2014 Significant Portion of its 
Range Policy that provided the Services do not undertake an analysis of 
significant portions of a species' range if the species warrants 
listing as threatened throughout all of its range.

Determination of Status

    Our review of the best available scientific and commercial 
information indicates that the South Llano Springs moss meets the 
definition of an endangered species. Therefore, we propose to list the 
South Llano Springs moss as an endangered species in accordance with 
sections 3(6) and 4(a)(1) of the Act.

Available Conservation Measures

    Conservation measures provided to species listed as endangered or 
threatened species under the Act include recognition, recovery actions, 
requirements for Federal protection, and prohibitions against certain 
practices. Recognition through listing results in public awareness, and 
conservation by Federal, State, tribal, and local agencies, private 
organizations, and individuals. The Act encourages cooperation with the 
States and other countries and calls for recovery actions to be carried 
out for listed species. The protection required by Federal agencies and 
the prohibitions against certain activities are discussed, in part, 
below.
    The primary purpose of the Act is the conservation of endangered 
and threatened species and the ecosystems upon which they depend. The 
ultimate goal of such conservation efforts is the recovery of these 
listed species, so that they no longer need the protective measures of 
the Act. Section 4(f) of the Act calls for the Service to develop and 
implement recovery plans for the conservation of endangered and 
threatened species. The recovery planning process involves the 
identification of actions that are necessary to halt or reverse the 
species' decline by addressing the threats to its survival and 
recovery. The goal of this process is to restore listed species to a 
point where they are secure, self-sustaining, and functioning 
components of their ecosystems.
    Recovery planning consists of preparing draft and final recovery 
plans, beginning with the development of a recovery outline and making 
it available to the public 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

[[Page 53616]]

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 Austin 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 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.
    If this species is listed, 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 Texas would be eligible 
for Federal funds to implement management actions that promote the 
protection or recovery of the South Llano Springs moss. Information on 
our grant programs that are available to aid species recovery can be 
found at: https://www.fws.gov/grants.
    Although the South Llano Springs moss is only proposed for listing 
under the Act at this time, please let us know if you are interested in 
participating in recovery efforts for this species. Additionally, we 
invite you to submit any new information on this species whenever it 
becomes available and any information you may have for recovery 
planning purposes (see FOR FURTHER INFORMATION CONTACT).
    Section 7(a) of the Act requires Federal agencies to evaluate their 
actions with respect to any species that is proposed or listed as an 
endangered or threatened species and with respect to its critical 
habitat, if any is designated. Regulations implementing this 
interagency cooperation provision of the Act are codified at 50 CFR 
part 402. Section 7(a)(4) of the Act requires Federal agencies to 
confer with the Service on any action that is likely to jeopardize the 
continued existence of a species proposed for listing or result in 
destruction or adverse modification of proposed critical habitat. If a 
species is listed subsequently, 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 the 
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 species' 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, management and conservation projects 
conducted on private lands with support from the U.S. Fish and Wildlife 
Service Partners for Fish and Wildlife Program; issuance of section 404 
Clean Water Act (33 U.S.C. 1251 et seq.) permits by the U.S. Army Corps 
of Engineers; construction and maintenance of roads or highways by the 
Federal Highway Administration; construction and maintenance of 
railways by the Federal Railroad Administration; and discharge permits 
from the Environmental Protection Agency.
    The Act and its implementing regulations set forth a series of 
general prohibitions and exceptions that apply to endangered plants. 
The prohibitions of section 9(a)(2) of the Act, codified at 50 CFR 
17.61, make it illegal for any person subject to the jurisdiction of 
the United States to: Import or export; remove and reduce to possession 
from areas under Federal jurisdiction; maliciously damage or destroy on 
any such area; remove, cut, dig up, or damage or destroy on any other 
area in knowing violation of any law or regulation of any State or in 
the course of any violation of a State criminal trespass law; deliver, 
receive, carry, transport, or ship in interstate or foreign commerce, 
by any means whatsoever and in the course of a commercial activity; or 
sell or offer for sale in interstate or foreign commerce an endangered 
plant. 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 plants under certain circumstances. Regulations 
governing permits are codified at 50 CFR 17.62. With regard to 
endangered plants, a permit may be issued for scientific purposes or 
for enhancing the propagation or survival of the species. 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 proposed 
listing on proposed and ongoing activities within the range of the 
species proposed for listing. Based on the best available information, 
the following actions are unlikely to result in a violation of section 
9, if these activities are carried out in accordance with existing 
regulations and permit requirements; this list is not comprehensive:
    (1) Recreational use of the streams, such as fishing, swimming, and 
canoeing, as these activities normally take place in the river or on 
the river bank and not in the spring itself, and;
    (2) Normal residential landscaping activities as these activities 
do not take place in the spring, nor do they affect the quantity or 
quality of water in the spring.
    Based on the best available information, the following activities 
may potentially result in a violation of section 9 of the Act if they 
are not authorized in accordance with applicable law; this list is not 
comprehensive:
    (1) Removing, cutting, digging up, or damaging or destroying the 
South Llano Springs moss in knowing violation of any law or regulation 
of the state of Texas or in the course of any violation of a State 
criminal trespass law;
    (2) Importing the South Llano Springs moss into, or exporting from, 
the United States;
    (3) Delivering, receiving, carrying, transporting, or shipping the 
South Llano Springs moss in interstate or foreign commerce, by any 
means and in the course of a commercial activity, and;
    (4) Selling or offering the South Llano Springs moss for sale in 
interstate or foreign commerce.
    Questions regarding whether specific activities would constitute a 
violation of

[[Page 53617]]

section 9 of the Act should be directed to the Austin Ecological 
Services Field Office (see FOR FURTHER INFORMATION CONTACT).

II. Critical Habitat

Background

    Critical habitat is defined in section 3 of the Act as:
    (1) The specific areas within the geographical area occupied by the 
species, at the time it is listed in accordance with the Act, on which 
are found those physical or biological features
    (a) Essential to the conservation of the species, and
    (b) Which may require special management considerations or 
protection; and
    (2) Specific areas outside the geographical area occupied by the 
species at the time it is listed, upon a determination that such areas 
are essential for the conservation of the species.
    Our regulations at 50 CFR 424.02 define the geographical area 
occupied by the species as an area that may generally be delineated 
around species' occurrences, as determined by the Secretary (i.e., 
range). Such areas may include those areas used throughout all or part 
of the species' life cycle, even if not used on a regular basis (e.g., 
migratory corridors, seasonal habitats, and habitats used periodically, 
but not solely by vagrant individuals).
    Conservation, as defined under section 3 of the Act, means to use 
and the use of all methods and procedures that are necessary to bring 
an endangered or threatened species to the point at which the measures 
provided pursuant to the Act are no longer necessary. Such methods and 
procedures include, but are not limited to, all activities associated 
with scientific resources management such as research, census, law 
enforcement, habitat acquisition and maintenance, propagation, live 
trapping, and transplantation, and, in the extraordinary case where 
population pressures within a given ecosystem cannot be otherwise 
relieved, may include regulated taking.
    Critical habitat receives protection under section 7 of the Act 
through the requirement that Federal agencies ensure, in consultation 
with the Service, that any action they authorize, fund, or carry out is 
not likely to result in the destruction or adverse modification of 
critical habitat. The designation of critical habitat does not affect 
land ownership or establish a refuge, wilderness, reserve, preserve, or 
other conservation area. Designation also does not allow the government 
or public to access private lands, nor does designation require 
implementation of restoration, recovery, or enhancement measures by 
non-Federal landowners. Where a landowner requests Federal agency 
funding or authorization for an action that may affect a listed species 
or critical habitat, the Federal agency would be required to consult 
with the Service under section 7(a)(2) of the Act. However, even if the 
Service were to conclude that the proposed activity would result in 
destruction or adverse modification of the critical habitat, the 
Federal action agency and the landowner are not required to abandon the 
proposed activity, or to restore or recover the species; instead, they 
must implement ``reasonable and prudent alternatives'' to avoid 
destruction or adverse modification of critical habitat.
    Under the first prong of the Act's definition of critical habitat, 
areas within the geographical area occupied by the species at the time 
it was listed are included in a critical habitat designation if they 
contain physical or biological features (1) which are essential to the 
conservation of the species and (2) which may require special 
management considerations or protection. For these areas, critical 
habitat designations identify, to the extent known using the best 
scientific and commercial data available, those physical or biological 
features that are essential to the conservation of the species (such as 
space, food, cover, and protected habitat). In identifying those 
physical or biological features that occur in specific occupied areas, 
we focus on the specific features that are essential to support the 
life-history needs of the species, including, but not limited to, water 
characteristics, soil type, geological features, prey, vegetation, 
symbiotic species, or other features. A feature may be a single habitat 
characteristic, or a more-complex combination of habitat 
characteristics. Features may include habitat characteristics that 
support ephemeral or dynamic habitat conditions. Features may also be 
expressed in terms relating to principles of conservation biology, such 
as patch size, distribution distances, and connectivity.
    Under the second prong of the Act's definition of critical habitat, 
we can designate critical habitat in areas outside the geographical 
area occupied by the species at the time it is listed, upon a 
determination that such areas are essential for the conservation of the 
species. When designating critical habitat, the Secretary will first 
evaluate areas occupied by the species. The Secretary will only 
consider unoccupied areas to be essential where a critical habitat 
designation limited to geographical areas occupied by the species would 
be inadequate to ensure the conservation of the species. In addition, 
for an unoccupied area to be considered essential, the Secretary must 
determine that there is a reasonable certainty both that the area will 
contribute to the conservation of the species and that the area 
contains one or more of those physical or biological features essential 
to the conservation of the species.
    Section 4 of the Act requires that we designate critical habitat on 
the basis of the best scientific data available. Further, our Policy on 
Information Standards Under the Endangered Species Act (published in 
the Federal Register on July 1, 1994 (59 FR 34271)), the Information 
Quality Act (section 515 of the Treasury and General Government 
Appropriations Act for Fiscal Year 2001 (Pub. L. 106-554; H.R. 5658)), 
and our associated Information Quality Guidelines, provide criteria, 
establish procedures, and provide guidance to ensure that our decisions 
are based on the best scientific data available. They require our 
biologists, to the extent consistent with the Act and with the use of 
the best scientific data available, to use primary and original sources 
of information as the basis for recommendations to designate critical 
habitat.
    When we are determining which areas should be designated as 
critical habitat, our primary source of information is generally the 
information from the SSA report and information developed during the 
listing process for the species. Additional information sources may 
include any generalized conservation strategy, criteria, or outline 
that may have been developed for the species; the recovery plan for the 
species; articles in peer-reviewed journals; conservation plans 
developed by States and counties; scientific status surveys and 
studies; biological assessments; other unpublished materials; or 
experts' opinions or personal knowledge.
    Habitat is dynamic, and species may move from one area to another 
over time. We recognize that critical habitat designated at a 
particular point in time may not include all of the habitat areas that 
we may later determine are necessary for the recovery of the species. 
For these reasons, a critical habitat designation does not signal that 
habitat outside the designated area is unimportant or may not be needed 
for recovery of the species. Areas that are important to the 
conservation of the

[[Page 53618]]

species, both inside and outside the critical habitat designation, will 
continue to be subject to: (1) Conservation actions implemented under 
section 7(a)(1) of the Act; (2) regulatory protections afforded by the 
requirement in section 7(a)(2) of the Act for Federal agencies to 
ensure their actions are not likely to jeopardize the continued 
existence of any endangered or threatened species; and (3) the 
prohibitions found in section 9 of the Act. Federally funded or 
permitted projects affecting listed species outside their designated 
critical habitat areas may still result in jeopardy findings in some 
cases. These protections and conservation tools will continue to 
contribute to recovery of this species. Similarly, critical habitat 
designations made on the basis of the best available information at the 
time of designation will not control the direction and substance of 
future recovery plans, habitat conservation plans (HCPs), or other 
species conservation planning efforts if new information available at 
the time of these planning efforts calls for a different outcome.

Prudency Determination

    Section 4(a)(3) of the Act, as amended, and implementing 
regulations (50 CFR 424.12), require that, to the maximum extent 
prudent and determinable, the Secretary shall designate critical 
habitat at the time the species is determined to be an endangered or 
threatened species. Our regulations (50 CFR 424.12(a)(1)) state that 
the Secretary may, but is not required to, determine that a designation 
would not be prudent in the following circumstances:
    (i) The species is threatened by taking or other human activity and 
identification of critical habitat can be expected to increase the 
degree of such threat to the species;
    (ii) The present or threatened destruction, modification, or 
curtailment of a species' habitat or range is not a threat to the 
species, or threats to the species' habitat stem solely from causes 
that cannot be addressed through management actions resulting from 
consultations under section 7(a)(2) of the Act;
    (iii) Areas within the jurisdiction of the United States provide no 
more than negligible conservation value, if any, for a species 
occurring primarily outside the jurisdiction of the United States;
    (iv) No areas meet the definition of critical habitat; or
    (v) The Secretary otherwise determines that designation of critical 
habitat would not be prudent based on the best scientific data 
available.
    As discussed above under Proposed Listing Determination, there is 
currently no imminent threat of collection or vandalism identified 
under Factor B for this species, and identification and mapping of 
critical habitat is not expected to initiate any such threat. In our 
SSA and this proposed listing determination, we determined that the 
present or threatened destruction, modification, or curtailment of 
habitat or range is a threat to the South Llano Springs moss and that 
those threats in some way can be addressed by section 7(a)(2) 
consultation measures. The species occurs wholly in the jurisdiction of 
the United States, and we are able to identify an area that meets the 
definition of critical habitat. Therefore, because none of the 
circumstances enumerated in our regulations at 50 CFR 424.12(a)(1) have 
been met, and because there are no other circumstances the Secretary 
has identified for which this designation of critical habitat would be 
not prudent, we have determined that the designation of critical 
habitat is prudent for the South Llano Springs moss.

Critical Habitat Determinability

    Having determined that designation is prudent, under section 
4(a)(3) of the Act we must find whether critical habitat for the South 
Llano Springs moss is determinable. Our regulations at 50 CFR 
424.12(a)(2) state that critical habitat is not determinable when one 
or both of the following situations exist:
    (i) Data sufficient to perform required analyses are lacking, or
    (ii) The biological needs of the species are not sufficiently well 
known to identify any area that meets the definition of ``critical 
habitat.''
    When critical habitat is not determinable, the Act allows the 
Service an additional year to publish a critical habitat designation 
(16 U.S.C. 1533(b)(6)(C)(ii)).
    We reviewed the available information pertaining to the biological 
needs of the species and habitat characteristics where this species is 
located. This and other information represent the best scientific data 
available and led us to conclude that the designation of critical 
habitat is determinable for the South Llano Springs moss.

Physical or Biological Features Essential to the Conservation of the 
Species

    In accordance with section 3(5)(A)(i) of the Act and regulations at 
50 CFR 424.12(b), in determining which areas we will designate as 
critical habitat from within the geographical area occupied by the 
species at the time of listing, we consider the physical or biological 
features that are essential to the conservation of the species and that 
may require special management considerations or protection. The 
regulations at 50 CFR 424.02 define ``physical or biological features 
essential to the conservation of the species'' as the features that 
occur in specific areas and that are essential to support the life-
history needs of the species, including, but not limited to, water 
characteristics, soil type, geological features, sites, prey, 
vegetation, symbiotic species, or other features. A feature may be a 
single habitat characteristic, or a more complex combination of habitat 
characteristics. Features may include habitat characteristics that 
support ephemeral or dynamic habitat conditions. Features may also be 
expressed in terms relating to principles of conservation biology, such 
as patch size, distribution distances, and connectivity. For example, 
physical features essential to the conservation of the species might 
include gravel of a particular size required for spawning, 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 essential to support the life history of the species.
    In considering whether features are essential to the conservation 
of the species, the Service may consider an appropriate quality, 
quantity, and spatial and temporal arrangement of habitat 
characteristics in the context of the life-history needs, condition, 
and status of the species. These characteristics include, but are not 
limited to, space for individual and population growth and for normal 
behavior; food, water, air, light, minerals, or other nutritional or 
physiological requirements; cover or shelter; sites for breeding, 
reproduction, or rearing (or development) of offspring; and habitats 
that are protected from disturbance.

Summary of Essential Physical or Biological Features

    We derive the specific physical or biological features essential to 
the

[[Page 53619]]

conservation of the South Llano Springs moss from studies of the 
species' habitat, ecology, and life history as described below. 
Additional information can be found in the SSA report available at 
https://www.regulations.gov under Docket No. FWS-R2-ES-2020-0015. We 
have determined that the following physical or biological features are 
essential to the conservation of the South Llano Springs moss:
    (1) The uninterrupted flow of spring water supplied by the Edwards-
Trinity aquifer within the South Llano watershed.
    (2) Relatively constant water temperature due to proximity to the 
point of spring outflow.
    (3) A substrate of calcareous or travertine rock not more than 15 
centimeters (cm) (6 inches (in)) below the surface of the water.
    (4) Contaminant and sediment levels that do not exceed the 
tolerance limits of South Llano Springs moss and associated plant and 
animal species.

Special Management Considerations or Protection

    When designating critical habitat, we assess whether the specific 
areas within the geographical area occupied by the species at the time 
of listing contain features which are essential to the conservation of 
the species and which may require special management considerations or 
protection.
    The features essential to the conservation of this species may 
require special management considerations or protection to reduce the 
following stressors: Reduction or loss of spring flow, erosion, and 
sedimentation. Management activities that could ameliorate these 
stressors include (but are not limited to): Prescribed fire, brush 
management, and grazing management to increase infiltration into the 
Edwards-Trinity aquifer and reduce runoff and subsequent flooding.

Criteria Used To Identify Critical Habitat

    As required by section 4(b)(2) of the Act, we use the best 
scientific data available to designate critical habitat. In accordance 
with the Act and our implementing regulations at 50 CFR 424.12(b), we 
review available information pertaining to the habitat requirements of 
the species and identify specific areas within the geographical area 
occupied by the species at the time of listing and any specific areas 
outside the geographical area occupied by the species to be considered 
for designation as critical habitat. We are not currently proposing to 
designate any areas outside the geographical area occupied by the 
species because we have not identified any unoccupied areas that meet 
the definition of critical habitat. While we acknowledge that the 
conservation of the species will depend on increasing the number of 
sites, we are unable at this time to delineate any specific unoccupied 
areas that are essential to the species' conservation. For an area to 
be considered essential unoccupied habitat, we must have reasonable 
certainty both that the area will contribute to the conservation of the 
species and that the area contains one of more of the physical or 
biological features essential to the conservation of the species. The 
exact location of the Redfearn site is unknown and, although there are 
a number of other large springs emerging from the Edwards-Trinity 
aquifer, it is unknown if these sites would be biologically suitable 
for the species. In addition, there is uncertainty that the species 
could be transplanted successfully if suitable sites existed for 
reintroduction. Finally, the specific areas needed for conservation may 
depend in part on landowner willingness to restore and maintain the 
species' habitat in these areas.
    In summary, for areas within the geographic area occupied by the 
species at the time of listing, we delineated critical habitat unit 
boundaries by evaluating the area of spring flow and submerged 
limestone within the geographic area occupied at the time of listing.
    When determining proposed critical habitat boundaries, we made 
every effort to avoid including developed areas such as lands covered 
by buildings, pavement, and other structures because such lands lack 
physical or biological features necessary for the South Llano Springs 
moss. 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 proposed 
rule have been excluded by text in the proposed rule and are not 
proposed for designation as critical habitat. Therefore, if the 
critical habitat is finalized as proposed, a Federal action involving 
these lands would not trigger section 7 consultation with respect to 
critical habitat and the requirement of no adverse modification unless 
the specific action would affect the physical or biological features in 
the adjacent critical habitat.
    We propose to designate as critical habitat lands that we have 
determined are occupied at the time of listing (i.e., currently 
occupied) and contain one or more of the physical or biological 
features that are essential to support life-history processes of the 
species.
    We propose one unit for designation based on one or more of the 
physical or biological features being present to support the South 
Llano Springs moss' life-history processes. This unit contains all of 
the identified physical or biological features and supports multiple 
life-history processes.
    The critical habitat designation is defined by the map, as modified 
by any accompanying regulatory text, presented at the end of this 
document under Proposed Regulation Promulgation. We include more 
detailed information on the boundaries of the critical habitat 
designation in the preamble of this document. We will make the 
coordinates or plot points or both on which the map is based available 
to the public at https://www.regulations.gov under Docket No. FWS-R2-ES-
2020-0015, on our internet site at https://www.fws.gov/southwest/es/AustinTexas/, and at the field office responsible for the designation 
(see FOR FURTHER INFORMATION CONTACT).

Proposed Critical Habitat Designation

    We propose to designate one unit of approximately 0.19 ha (0.48 ac) 
as critical habitat for the South Llano Springs moss, labeled Upper 
South Llano River Unit in Table 1 (below). The critical habitat area we 
describe below constitutes our current best assessment of areas that 
meet the definition of critical habitat for the South Llano Springs 
moss.

[[Page 53620]]



                    Table 1--Proposed Critical Habitat Unit for the South Llano Springs Moss
                    [Area estimates reflect all land within critical habitat unit boundaries]
----------------------------------------------------------------------------------------------------------------
                                                                     Size of unit
                  Unit                     Land ownership by type     in hectares             Occupied?
                                                                        (acres)
----------------------------------------------------------------------------------------------------------------
Upper South Llano River................  Private..................     0.19 (0.48)  Yes.
----------------------------------------------------------------------------------------------------------------

    We present a brief description of the proposed unit, and the 
reasons why it meets the definition of critical habitat for the South 
Llano Springs moss, below.

Upper South Llano River Unit

    The Upper South Llano River Unit consists of 0.19 ha (0.48 ac) 
within the outflow area of Seven Hundred Springs, in northeastern 
Edwards County, Texas. This unit extends from the points of discharge 
about 10 m (33 ft) downslope to the South Llano River, and spans a 
length of about 100 m (328 ft) along the river. The species was last 
documented at this site in 1979, and the unit is considered occupied. 
This entire unit is on privately owned land. This unit contains all of 
the physical or biological features essential to the conservation of 
the species. The physical or biological features in this unit may 
require special management consideration due to groundwater pumping 
causing loss or reduction of springflow flood-control projects; and 
development of areas adjacent to or within proposed critical habitat.

Effects of Critical Habitat Designation

Section 7 Consultation

    Section 7(a)(2) of the Act requires Federal agencies, including the 
Service, to ensure that any action they fund, authorize, or carry out 
is not likely to jeopardize the continued existence of any endangered 
species or threatened species or result in the destruction or adverse 
modification of designated critical habitat of such species. In 
addition, section 7(a)(4) of the Act requires Federal agencies to 
confer with the Service on any agency action which is likely to 
jeopardize the continued existence of any species proposed to be listed 
under the Act or result in the destruction or adverse modification of 
proposed critical habitat.
    We published a final rule with a revised definition of destruction 
or adverse modification on August 27, 2019 (84 FR 44976). Destruction 
or adverse modification means a direct or indirect alteration that 
appreciably diminishes the value of critical habitat as a whole for the 
conservation of a listed species.
    If a Federal action may affect a listed species or its critical 
habitat, the responsible Federal agency (action agency) must 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) is documented 
through our issuance of:
    (1) A concurrence letter for Federal actions that may affect, but 
are not likely to adversely affect, listed species or critical habitat; 
or
    (2) A biological opinion for Federal actions that may affect, and 
are likely to adversely affect, listed species or critical habitat.
    When we issue a biological opinion concluding that a project is 
likely to jeopardize the continued existence of a listed species and/or 
destroy or adversely modify critical habitat, we provide reasonable and 
prudent alternatives to the project, if any are identifiable, that 
would avoid the likelihood of jeopardy and/or destruction or adverse 
modification of critical habitat. We define ``reasonable and prudent 
alternatives'' (at 50 CFR 402.02) as alternative actions identified 
during consultation that:
    (1) Can be implemented in a manner consistent with the intended 
purpose of the action,
    (2) Can be implemented consistent with the scope of the Federal 
agency's legal authority and jurisdiction,
    (3) Are economically and technologically feasible, and
    (4) Would, in the Service Director's opinion, avoid the likelihood 
of jeopardizing the continued existence of the listed species and/or 
avoid the likelihood of destroying or adversely modifying critical 
habitat.
    Reasonable and prudent alternatives can vary from slight project 
modifications to extensive redesign or relocation of the project. Costs 
associated with implementing a reasonable and prudent alternative are 
similarly variable.
    Regulations at 50 CFR 402.16 set forth requirements for Federal 
agencies to reinitiate formal consultation on previously reviewed 
actions. These requirements apply when the Federal agency has retained 
discretionary involvement or control over the action (or the agency's 
discretionary involvement or control is authorized by law) and, 
subsequent to the previous consultation, 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 ``Destruction or 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.

[[Page 53621]]

    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 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, during a consultation under 
section 7(a)(2) of the Act, find are likely to destroy or adversely 
modify critical habitat include, but are not limited to, actions that 
would impact the Edwards-Trinity aquifer and the springs and streams 
within the Hydrologic Unit Code (HUC)-12 watersheds of Paint Creek, 
Bluff Creek, and Little Paint Creek or within the upper South Llano 
River HUC-8 watershed. Depending on the activity and location, these 
actions could include, but are not limited to, groundwater pumping; 
discharge of contaminants; discharge of dredge or fill material; 
construction and maintenance of roads, railroads, and pipelines; and 
conservation and habitat management, which may include thinning of ashe 
juniper (Juniperus ashei), prescribed burning, and control of invasive 
aquatic plants, such as elephant ear (Colocassia esculenta). Potential 
effects of these activities include reduced spring flow at Seven 
Hundred Springs, increased runoff, flash flooding and scouring along 
the South Llano River, and contamination of the aquifer with toxic 
substances or excessive nutrient levels.

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 (DoD) lands with a completed INRMP within the 
proposed critical habitat designation.

Consideration of Impacts Under Section 4(b)(2) of the Act

    Section 4(b)(2) of the Act states that the Secretary shall 
designate and make revisions to critical habitat on the basis of the 
best available scientific data after taking into consideration the 
economic impact, national security impact, and any other relevant 
impact of specifying any particular area as critical habitat. The 
Secretary may exclude an area from critical habitat if he determines 
that the benefits of such exclusion outweigh the benefits of specifying 
such area as part of the critical habitat, unless he determines, based 
on the best scientific data available, that the failure to designate 
such area as critical habitat will result in the extinction of the 
species. In making the determination to exclude a particular area, the 
statute on its face, as well as the legislative history, are clear that 
the Secretary has broad discretion regarding which factor(s) to use and 
how much weight to give to any factor.
    The first sentence in section 4(b)(2) of the Act requires that we 
take into consideration the economic, national security, or other 
relevant impacts of designating any particular area as critical 
habitat. We describe below the process that we undertook for taking 
into consideration each category of impacts and our analyses of the 
relevant impacts.

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. Accordingly, we have prepared a draft economic 
analysis concerning the proposed critical habitat designation, which is 
available for review and comment (see ADDRESSES, above). To assess the 
probable economic impacts of a designation, we must first evaluate 
specific land uses or activities and projects that may occur in the 
area of the critical habitat. We then must evaluate the impacts that a 
specific critical habitat designation may have on restricting or 
modifying specific land uses or activities for the benefit of the 
species and its habitat within the areas proposed. We then identify 
which conservation efforts may be the result of the species being 
listed under the Act versus those attributed solely to the designation 
of critical habitat for this particular species. The probable economic 
impact of a proposed critical habitat designation is analyzed by 
comparing scenarios both ``with critical habitat'' and ``without 
critical habitat.''
    The ``without critical habitat'' scenario represents the baseline 
for the analysis, which includes the existing regulatory and socio-
economic burden imposed on landowners, managers, or other resource 
users potentially affected by the designation of critical habitat 
(e.g., under the Federal listing as well as other Federal, State, and 
local regulations). The baseline, therefore, represents the costs of 
all efforts attributable to the listing of the species under the Act 
(i.e., conservation of the species and its habitat incurred regardless 
of whether critical habitat is designated). The ``with critical 
habitat'' scenario describes the incremental impacts associated 
specifically with the designation of critical habitat for the species. 
The incremental conservation efforts and associated impacts would not 
be expected without the designation of critical habitat for the 
species. In other words, the incremental costs are those attributable 
solely to the designation of critical habitat, above and beyond the 
baseline costs. These are the costs we use when evaluating the benefits 
of inclusion and exclusion of particular areas from the final 
designation of critical habitat should we choose to conduct a 
discretionary 4(b)(2) exclusion analysis.
    For this particular designation, we developed an incremental 
effects memorandum (IEM) considering the probable incremental economic 
impacts that may result from this proposed designation of critical 
habitat. The information contained in our IEM was then used to develop 
a screening analysis of the probable effects of the designation of 
critical habitat for the South Llano Springs moss (IEc. 2020, entire).
    We began by conducting a screening analysis of the proposed 
designation of critical habitat in order to focus our analysis on the 
key factors that are likely to result in incremental economic impacts. 
The purpose of the screening analysis is to filter out particular 
geographic areas of critical habitat that are already subject to such 
protections and are, therefore, unlikely to incur incremental economic 
impacts. In particular, the screening analysis considers baseline costs 
(i.e., absent critical habitat designation) and includes probable 
economic impacts where land and water use may be subject to 
conservation plans, land management plans, best management practices, 
or regulations that protect the habitat area as a result of the Federal 
listing status of the species. Ultimately, the screening analysis 
allows us to focus our analysis on evaluating the specific areas or 
sectors that may incur probable incremental economic impacts as a 
result of the designation. The screening analysis also assesses whether 
units are unoccupied by the species and may require additional 
management or conservation efforts as a result of the critical habitat 
designation for the species; these additional efforts may incur 
incremental economic impacts.

[[Page 53622]]

This screening analysis combined with the information contained in our 
IEM are what we consider our draft economic analysis (DEA) of the 
proposed critical habitat designation for the South Llano Springs moss; 
our DEA is summarized in the narrative below.
    Executive Orders (E.O.s) 12866 and 13563 direct Federal agencies to 
assess the costs and benefits of available regulatory alternatives in 
quantitative (to the extent feasible) and qualitative terms. Consistent 
with the E.O. regulatory analysis requirements, our effects analysis 
under the Act may take into consideration impacts to both directly and 
indirectly affected entities, where practicable and reasonable. If 
sufficient data are available, we assess to the extent practicable the 
probable impacts to both directly and indirectly affected entities. As 
part of our screening analysis, we considered the types of economic 
activities that are likely to occur within the areas likely affected by 
the critical habitat designation. In our evaluation of the probable 
incremental economic impacts that may result from the proposed 
designation of critical habitat for the South Llano Springs moss, first 
we identified, in the IEM dated January 7, 2020, probable incremental 
economic impacts associated with the following categories of 
activities: (1) Discharge permits (Environmental Protection Agency and 
U.S. Army Corps of Engineers); (2) stream dams and diversions, and 
dredge and fill of waterways (Environmental Protection Agency and U.S. 
Army Corps of Engineers); (3) transportation (U.S. Department of 
Transporation, Federal Highway Administration, and Federal Railroad 
Administration); and (4) conservation and habitat management (U.S. Fish 
and Wildlfie Service). We considered each industry or category 
individually. Additionally, we considered whether their activities have 
any Federal involvement. Critical habitat designation generally will 
not affect activities that do not have any Federal involvement; under 
the Act, designation of critical habitat only affects activities 
conducted, funded, permitted, or authorized by Federal agencies. If we 
list this species, in areas where the South Llano Springs moss is 
present, Federal agencies would be required to consult with the Service 
under section 7 of the Act on activities they fund, permit, or 
implement that may affect the species. If, when we list this species, 
we also finalize this proposed critical habitat designation, 
consultations to avoid the destruction or adverse modification of 
critical habitat would be incorporated into the existing consultation 
process.
    In our IEM, we attempted to clarify the distinction between the 
effects that will result from the species being listed and those 
attributable to the critical habitat designation (i.e., difference 
between the jeopardy and adverse modification standards) for the South 
Llano Springs moss' critical habitat. Because the designation of 
critical habitat for the South Llano Springs moss is proposed 
concurrently with the listing, it has been our experience that it is 
more difficult to discern which conservation efforts are attributable 
to the species being listed and those which will result solely from the 
designation of critical habitat. However, the following specific 
circumstances in this case help to inform our evaluation: (1) The 
essential physical or biological features identified for critical 
habitat are the same features essential for the life requisites of the 
species, and (2) any actions that would result in sufficient harm or 
harassment to constitute jeopardy to the South Llano Springs moss would 
also likely adversely affect the essential physical or biological 
features of critical habitat. The IEM outlines our rationale concerning 
this limited distinction between baseline conservation efforts and 
incremental impacts of the designation of critical habitat for this 
species. This evaluation of the incremental effects has been used as 
the basis to evaluate the probable incremental economic impacts of this 
proposed designation of critical habitat.
    The proposed critical habitat designation for the South Llano 
Springs moss includes one unit of occupied critical habitat, totaling 
0.19 ha (0.48 ac), on private land. Because this area is occupied, any 
actions that may affect the species or its habitat would also affect 
designated critical habitat. As such, all activities with a Federal 
nexus occurring within the proposed critical habitat would be subject 
to section 7 consultation requirements regardless of critical habitat 
designation due to the presence of the listed species. Project 
modifications requested to avoid adverse modification are also likely 
to be the same as those needed to avoid jeopardy to the South Llano 
Springs moss. Therefore, only administrative costs are expected when 
considering adverse modification in section 7 consultations due to the 
proposed critical habitat designation. While this additional analysis 
would require time and resources by both the Federal action agency and 
the Service, we believe that these costs would be administrative in 
nature and would not be significant. Based upon past consultations in 
the area, it is conservatively estimated that three or fewer section 7 
consultation actions (approximately one formal consultation, one 
informal consultation, and one technical assistance request) will occur 
annually in the proposed critical habitat area. These may include 
consultations with the U.S. Army Corps of Engineers, U.S. Department of 
Transportation, U.S. Environmental Protection Agency, and the U.S. Fish 
and Wildlife Service for fish passage projects, riparian restoration, 
upland habitat restoration, prescribed fire, and brush management. The 
total annual incremental costs of critical habitat designation for the 
South Llano Springs moss are anticipated to be approximately $8,100 per 
year. Current development or other projects are not planned in the 
proposed critical habitat area. Therefore, future probable incremental 
economic impacts are not likely to exceed $100 million in any single 
year, and impacts that are concentrated in any geographic area or 
sector are not likely as a result of this critical habitat designation.
    As we stated earlier, we are soliciting data and comments from the 
public on the DEA, as well as all aspects of this proposed rule and our 
required determinations. During the development of a final designation, 
we will consider the information presented in the DEA and any 
additional information on economic impacts received during the public 
comment period to determine whether any specific areas should be 
excluded from the final critical habitat designation on the basis of 
economic impacts under authority of section 4(b)(2) and our 
implementing regulations at 50 CFR 424.19. In particular, we may 
exclude an area from critical habitat if we determine that the benefits 
of excluding the area outweigh the benefits of including the area, 
provided the exclusion will not result in the extinction of this 
species.

Consideration of National Security Impacts

    Section 4(a)(3)(B)(i) of the Act may not cover all DoD lands or 
areas that pose potential national-security concerns (e.g., a DoD 
installation that is in the process of revising its INRMP for a newly 
listed species or a species previously not covered). If a particular 
area is not covered under section 4(a)(3)(B)(i), national-security or 
homeland-security concerns are not a factor in the process of 
determining what areas meet the definition of ``critical habitat.'' 
Nevertheless, when designating critical habitat under section 4(b)(2), 
the Service must consider impacts on national security,

[[Page 53623]]

including homeland security, on lands or areas not covered by section 
4(a)(3)(B)(i). Accordingly, we will always consider for exclusion from 
the designation areas for which DoD, Department of Homeland Security 
(DHS), or another Federal agency has requested exclusion based on an 
assertion of national-security or homeland-security concerns.
    We cannot, however, automatically exclude requested areas. When 
DoD, DHS, or another Federal agency requests exclusion from critical 
habitat on the basis of national-security or homeland-security impacts, 
it must provide a reasonably specific justification of an incremental 
impact on national security that would result from the designation of 
that specific area as critical habitat. That justification could 
include demonstration of probable impacts, such as impacts to ongoing 
border-security patrols and surveillance activities, or a delay in 
training or facility construction, as a result of compliance with 
section 7(a)(2) of the Act. If the agency requesting the exclusion does 
not provide us with a reasonably specific justification, we will 
contact the agency to recommend that it provide a specific 
justification or clarification of its concerns relative to the probable 
incremental impact that could result from the designation. If the 
agency provides a reasonably specific justification, we will defer to 
the expert judgment of DoD, DHS, or another Federal agency as to: (1) 
Whether activities on its lands or waters, or its activities on other 
lands or waters, have national-security or homeland-security 
implications; (2) the importance of those implications; and (3) the 
degree to which the cited implications would be adversely affected in 
the absence of an exclusion. In that circumstance, in conducting a 
discretionary 4(b)(2) exclusion analysis, we will give great weight to 
national-security and homeland-security concerns in analyzing the 
benefits of exclusion.
    In preparing this proposal, we have determined that the land within 
the proposed designation of critical habitat for the South Llano 
Springs moss is not owned, managed, or used by DoD or DHS, and, 
therefore, we anticipate no impact on national security or homeland 
security. However, during the development of a final designation we 
will consider any additional information received through the public 
comment period on the impacts of the proposed designation on national 
security or homeland security to determine whether any specific areas 
should be excluded from the final critical habitat designation under 
authority of section 4(b)(2) and our implementing regulations at 50 CFR 
424.19.

Consideration of Other Relevant Impacts

    Under section 4(b)(2) of the Act, we consider any other relevant 
impacts, in addition to economic impacts and impacts on national 
security discussed above. We consider a number of factors including 
whether there are permitted conservation plans covering the species in 
the area such as HCPs, safe harbor agreements (SHAs), or candidate 
conservation agreements with assurances (CCAAs), or whether there are 
non-permitted conservation agreements and partnerships that would be 
encouraged by designation of, or exclusion from, critical habitat. In 
addition, we look at the existence of tribal conservation plans and 
partnerships and consider the government-to-government relationship of 
the United States with tribal entities. We also consider any social 
impacts that might occur because of the designation.
    In preparing this proposal, we have determined that there are 
currently no HCPs or other management plans for the South Llano Springs 
moss, and the proposed designation does not include any tribal lands or 
trust resources. We anticipate no impact on tribal lands, partnerships, 
or HCPs from this proposed critical habitat designation. Additionally, 
as described above, we are not proposing to exclude any particular 
areas on the basis of impacts to national security or economic impacts.
    During the development of a final designation, we will consider any 
additional information received through the public comment period 
regarding other relevant impacts to determine whether any specific 
areas should be excluded from the final critical habitat designation 
under authority of section 4(b)(2) and our implementing regulations at 
50 CFR 424.19.

Required Determinations

Clarity of the Rule

    We are required by Executive Orders 12866 and 12988 and by the 
Presidential Memorandum of June 1, 1998, to write all rules in plain 
language. This means that each rule we publish must:
    (1) Be logically organized;
    (2) Use the active voice to address readers directly;
    (3) Use clear language rather than jargon;
    (4) Be divided into short sections and sentences; and
    (5) Use lists and tables wherever possible.
    If you feel that we have not met these requirements, send us 
comments by one of the methods listed in ADDRESSES. To better help us 
revise the rule, your comments should be as specific as possible. For 
example, you should tell us the numbers of the sections or paragraphs 
that are unclearly written, which sections or sentences are too long, 
the sections where you feel lists or tables would be useful, etc.

Regulatory Planning and Review (Executive Orders 12866 and 13563)

    Executive Order 12866 provides that the Office of Information and 
Regulatory Affairs (OIRA) in the Office of Management and Budget will 
review all significant rules. OIRA 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.

[[Page 53624]]

    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 whether potential 
economic impacts to these small entities are significant, we considered 
the types of activities that might trigger regulatory impacts under 
this designation as well as types of project modifications that may 
result. In general, the term ``significant economic impact'' is meant 
to apply to a typical small business firm's business operations.
    Under the RFA, as amended, and as understood in the light of recent 
court decisions, Federal agencies are required to evaluate the 
potential incremental impacts of rulemaking only 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 if we adopt the proposed critical habitat designation. There 
is no requirement under the RFA to evaluate the potential impacts to 
entities not directly regulated. Moreover, Federal agencies are not 
small entities. Therefore, because no small entities would be directly 
regulated by this rulemaking, the Service certifies that, if made final 
as proposed, this critical habitat designation will not have a 
significant economic impact on a substantial number of small entities.
    In summary, we have considered whether the proposed designation 
would result in a significant economic impact on a substantial number 
of small entities. For the above reasons and based on currently 
available information, we certify that, if made final, this critical 
habitat designation will not have a significant economic impact on a 
substantial number of small business entities. Therefore, an initial 
regulatory flexibility analysis is not required.

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

    Executive Order 13211 (Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use) requires 
agencies to prepare Statements of Energy Effects when undertaking 
certain actions. In our economic analysis, we did not find that the 
designation of this proposed critical habitat would significantly 
affect energy supplies, distribution, or use. Therefore, this action is 
not a significant energy action, and no Statement of Energy Effects is 
required.

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

    In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501 
et seq.), we make the following finding:
    (1) This proposed rule would not produce a Federal mandate. In 
general, a Federal mandate is a provision in legislation, statute, or 
regulation that would impose an enforceable duty upon State, local, or 
tribal governments, or the private sector, and includes both ``Federal 
intergovernmental mandates'' and ``Federal private sector mandates.'' 
These terms are defined in 2 U.S.C. 658(5)-(7). ``Federal 
intergovernmental mandate'' includes a regulation that ``would impose 
an enforceable duty upon State, local, or tribal governments'' with two 
exceptions. It excludes ``a condition of Federal assistance.'' It also 
excludes ``a duty arising from participation in a voluntary Federal 
program,'' unless the regulation ``relates to a then-existing Federal 
program under which $500,000,000 or more is provided annually to State, 
local, and tribal governments under entitlement authority,'' if the 
provision would ``increase the stringency of conditions of assistance'' 
or ``place caps upon, or otherwise decrease, the Federal Government's 
responsibility to provide funding,'' and the State, local, or tribal 
governments ``lack authority'' to adjust accordingly. At the time of 
enactment, these entitlement programs were: Medicaid; Aid to Families 
with Dependent Children work programs; Child Nutrition; Food Stamps; 
Social Services Block Grants; Vocational Rehabilitation State Grants; 
Foster Care, Adoption Assistance, and Independent Living; Family 
Support Welfare Services; and Child Support Enforcement. ``Federal 
private sector mandate'' includes a regulation that ``would impose an 
enforceable duty upon the private sector, except (i) a condition of 
Federal assistance or (ii) a duty arising from participation in a 
voluntary Federal program.''
    The designation of critical habitat does not impose a legally 
binding duty on non-Federal Government entities or private parties. 
Under the Act, the only regulatory effect is that Federal agencies must 
ensure that their actions do not destroy or adversely modify critical 
habitat under section 7. While non-Federal entities that receive 
Federal funding, assistance, or permits, or that otherwise require 
approval or authorization from a Federal agency for an action, may be 
indirectly impacted by the designation of critical habitat, the legally 
binding duty to avoid destruction or adverse modification of critical 
habitat rests squarely on the Federal agency. Furthermore, to the 
extent that non-Federal entities are indirectly impacted because they 
receive Federal assistance or participate in a voluntary Federal aid 
program, the Unfunded Mandates Reform Act would not apply, nor would 
critical habitat shift the costs of the large entitlement programs 
listed above onto State governments.
    (2) We do not believe that this rule would significantly or 
uniquely affect small governments because the unit is very small and is 
entirely on private land. Small governments would be affected only to 
the extent that any programs having Federal funds, permits, or other 
authorized activities must ensure that their actions would not 
adversely affect the designated critical habitat. The designation of 
critical habitat imposes no obligations on State or local governments. 
Therefore, a Small Government Agency Plan is not required.

Takings--Executive Order 12630

    In accordance with E.O. 12630 (Government Actions and Interference 
with Constitutionally Protected Private Property Rights), we have 
analyzed the potential takings implications of designating critical 
habitat for the South Llano Springs moss in a takings implications 
assessment. The Act does not authorize the Service to regulate private 
actions on private lands or

[[Page 53625]]

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 for the 
proposed designation of critical habitat for the South Llano Springs 
moss, and it concludes that, if adopted, this designation of critical 
habitat 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 proposed rule does 
not have significant Federalism effects. A federalism summary impact 
statement is not required. In keeping with Department of the Interior 
and Department of Commerce policy, we requested information from, and 
coordinated development of this proposed critical habitat designation 
with, appropriate State resource agencies. 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 proposed rule does 
not have substantial direct effects either on the States, or on the 
relationship between the national government and the States, or on the 
distribution of powers and responsibilities among the various levels of 
government. The proposed designation may have some benefit to these 
governments because the areas that contain the features essential to 
the conservation of the species are more clearly defined, and the 
physical or biological features of the habitat necessary for the 
conservation of the species are specifically identified. This 
information does not alter where and what federally sponsored 
activities may occur. However, it may assist State and local 
governments in long-range planning because they no longer have to wait 
for case-by-case section 7 consultations to occur.
    Where State and local governments require approval or authorization 
from a Federal agency for actions that may affect critical habitat, 
consultation under section 7(a)(2) of the Act would be required. While 
non-Federal entities that receive Federal funding, assistance, or 
permits, or that otherwise require approval or authorization from a 
Federal agency for an action, may be indirectly impacted by the 
designation of critical habitat, the legally binding duty to avoid 
destruction or adverse modification of critical habitat rests squarely 
on the Federal agency.

Civil Justice Reform--Executive Order 12988

    In accordance with Executive Order 12988 (Civil Justice Reform), 
the Office of the Solicitor has determined that the rule 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 have proposed designating 
critical habitat in accordance with the provisions of the Act. To 
assist the public in understanding the habitat needs of the species, 
this proposed rule identifies the elements of physical or biological 
features essential to the conservation of the species. The proposed 
area of designated critical habitat is presented on a map, and the 
proposed rule provides several options for the interested public to 
obtain more detailed location information, if desired.

Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.)

    This rule does not contain information collection requirements, and 
a submission to the Office of Management and Budget (OMB) under the 
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.) is not 
required. We may not conduct or sponsor and you are not required to 
respond to a collection of information unless it displays a currently 
valid OMB control number.

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

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

Government-to-Government Relationship With Tribes

    In accordance with the President's memorandum of April 29, 1994 
(Government-to-Government Relations with Native American Tribal 
Governments; 59 FR 22951), Executive Order 13175 (Consultation and 
Coordination with Indian Tribal Governments), and the Department of the 
Interior's manual at 512 DM 2, we readily acknowledge our 
responsibility to communicate meaningfully with recognized Federal 
Tribes on a government-to-government basis. In accordance with 
Secretarial Order 3206 of June 5, 1997 (American Indian Tribal Rights, 
Federal-Tribal Trust Responsibilities, and the Endangered Species Act), 
we readily acknowledge our responsibilities to work directly with 
tribes in developing programs for healthy ecosystems, to acknowledge 
that tribal lands are not subject to the same controls as Federal 
public lands, to remain sensitive to Indian culture, and to make 
information available to tribes. We have determined that no tribal 
lands fall within the boundaries of the proposed designation of 
critical habitat for the South Llano Springs moss, so no tribal lands 
would be affected by the proposed designation.

References Cited

    A complete list of references cited in this rulemaking is available 
on the internet at https://www.regulations.gov and upon request from the 
Austin Ecological Services Field Office (see FOR FURTHER INFORMATION 
CONTACT).

Authors

    The primary authors of this proposed rule are the staff members of 
the Fish and Wildlife Service's Species Assessment Team and the Austin 
Ecological Services Field Office.

List of Subjects in 50 CFR Part 17

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

Proposed Regulation Promulgation

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

PART 17--ENDANGERED AND THREATENED WILDLIFE AND PLANTS

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


[[Page 53626]]


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

0
2. Amend Sec.  17.12, in paragraph (h), the List of Endangered and 
Threatened Plants, by:
0
a. Adding the heading ``Mosses'' to the end of the table; and
0
b. Adding an entry for ``Donrichardsia macroneuron'' under the new 
heading ``Mosses''.
    The additions read as follows:


Sec.  17.12  Endangered and threatened plants.

* * * * *
    (h) * * *

----------------------------------------------------------------------------------------------------------------
                                                                                          Listing citations and
         Scientific name              Common name        Where listed         Status         applicable rules
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------
                                                     Mosses
----------------------------------------------------------------------------------------------------------------
Donrichardsia macroneuron.......  South Llano         Wherever found....  E              [Federal Register
                                   Springs moss.                                          citation when
                                                                                          published as a final
                                                                                          rule]; 50 CFR
                                                                                          17.96(c).\CH\
----------------------------------------------------------------------------------------------------------------

0
3. Amend Sec.  17.96 by adding paragraph (c) to read as follows:


Sec.  17.96  Critical habitat--plants.

* * * * *
    (c) Mosses. Family Brachytheciaceae: Donrichardsia macroneuron.
    (1) Critical habitat is depicted for Edwards County, Texas, on the 
map in this entry.
    (2) Within this area, the physical or biological features essential 
to the conservation of the South Llano Springs moss consist of the 
following components:
    (i) The uninterrupted flow of spring water supplied by the Edwards-
Trinity aquifer within the South Llano watershed;
    (ii) Relatively constant water temperature due to proximity to the 
point of spring outflow;
    (iii) A substrate of calcareous or travertine rock not more than 15 
cm (6 in) below the surface of the water; and
    (iv) Contaminant and sediment levels that do not exceed the 
tolerance limits of South Llano Springs moss and associated plant and 
animal species.
    (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 within the legal boundaries on 
[EFFECTIVE DATE OF FINAL RULE].
    (4) Critical habitat map units. Data layers defining the map unit 
were created on a base of U.S. Geological Survey digital ortho-photo 
quarter-quadrangles, and the critical habitat unit was then mapped 
using Geographic Information System (GIS) mapping. The map in this 
entry, as modified by any accompanying regulatory text, establishes the 
boundaries of the critical habitat designation. The coordinates or plot 
points or both on which the map is based are available to the public at 
the Service's internet site at https://www.fws.gov/southwest/es/AustinTexas/, at https://www.regulations.gov at Docket No. FWS-R2-ES-
2020-0015, 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) Upper South Llano River Unit, Edwards County, Texas.
    (i) General description: The Upper South Llano River Unit consists 
of 0.19 hectares (0.48 acres) in Edwards County and is located on 
private land along the upper South Llano River.

[[Page 53627]]

    (ii) Map of Upper South Llano River Unit follows:
BILLING CODE 4333-15-P
[GRAPHIC] [TIFF OMITTED] TP28SE21.000

BILLING CODE 4333-15-C

Martha Williams,
Principal Deputy Director, Exercising the Delegated Authority of the 
Director, U.S. Fish and Wildlife Service.
[FR Doc. 2021-20924 Filed 9-27-21; 8:45 am]
BILLING CODE 4333-15-C