Endangered and Threatened Wildlife and Plants; Endangered Species Status for Magnificent Ramshorn and Designation of Critical Habitat, 50804-50824 [2022-17743]

Agencies

• Fish and Wildlife Service
• DEPARTMENT OF THE INTERIOR

[Federal Register Volume 87, Number 159 (Thursday, August 18, 2022)]
[Proposed Rules]
[Pages 50804-50824]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-17743]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-R4-ES-2022-0070; FF09E21000 FXES1111090FEDR 223]
RIN 1018-BE86


Endangered and Threatened Wildlife and Plants; Endangered Species 
Status for Magnificent Ramshorn 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 magnificent ramshorn (Planorbella magnifica), a freshwater snail 
species from southeastern North Carolina, as an endangered species and 
to designate critical habitat for the species under the Endangered 
Species Act of 1973, as amended (Act). In total, approximately 739 
acres (299 hectares) of two ponds in Brunswick County, North Carolina, 
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 
magnificent ramshorn. In addition, this document serves as our 12-month 
finding on a petition to list magnificent ramshorn. If we finalize this 
rule as proposed, it would extend the Act's protections to this species 
and its designated critical habitat.

DATES: We will accept comments received or postmarked on or before 
October 17, 2022. Comments submitted electronically using the Federal 
eRulemaking Portal (see ADDRESSES, below) must be received by 11:59 
p.m. eastern time on the closing date. We must receive requests for 
public hearings, in writing, at the address shown in FOR FURTHER 
INFORMATION CONTACT by October 3, 2022.

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 FWS-R4-ES-2022-0070, 
which is the docket number for this rulemaking. Then, click on the 
Search button. On the resulting page, in the 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-R4-ES-2022-0070, U.S. Fish and Wildlife Service, 
MS: PRB/3W, 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 Information Requested, below, for more information).
    Availability of supporting materials: For the proposed critical 
habitat designation, the coordinates or plot points or both from which 
the maps are generated are included in the decision file, are available 
at https://www.regulations.gov under Docket No. FWS-R4-ES-2022-0070, 
and on the Service's website at https://www.fws.gov/office/eastern-north-carolina/library. Any additional tools or supporting information 
that we may develop for the critical habitat designation will also be 
available in the preamble of this proposed rule or at https://www.regulations.gov. The species status assessment (SSA) report is also 
available in the docket at https://www.regulations.gov.

FOR FURTHER INFORMATION CONTACT: Pete Benjamin, Field Supervisor, U.S. 
Fish and Wildlife Service, Raleigh Ecological Services Field Office, 
P.O. Box 33726, Raleigh, NC 27636-3726; telephone 919-856-4520. 
Individuals in the United States who are deaf, deafblind, hard of 
hearing, or have a speech disability may dial 711 (TTY, TDD, or 
TeleBraille) to access telecommunications relay services. Individuals 
outside the United States should use the relay services offered within 
their country to make international calls to the point-of-contact in 
the United States.

SUPPLEMENTARY INFORMATION:

Executive Summary

    Why we need to publish a rule. Under the Act, a species warrants 
listing if it meets the definition of an endangered species (in danger 
of extinction throughout all or a significant portion of its range) or 
a threatened species (likely to become an endangered species within the 
foreseeable future throughout all or a significant portion of its 
range). If we determine that a species warrants listing, we must list 
the species promptly and designate the species' critical habitat to the 
maximum extent prudent and determinable. We have determined that 
magnificent ramshorn meets the definition of an endangered species; 
therefore, we are proposing to list it as such and proposing 
designation of its critical habitat. Both listing a species as an 
endangered or threatened species and making a critical habitat 
determination can be completed only by issuing a rule through the 
Administrative Procedure Act rulemaking process.
    What this document does. We propose to list magnificent ramshorn as 
an endangered species under the Act, and we propose to designate 
critical habitat for the species.
    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 the species may no longer exist 
in the wild, as it has not been found in surveys over the past 40 years 
at the only known historical locations. While likely locally extirpated 
from the wild, it does persist in captive populations. The most 
significant stressor that likely led to the extirpation of magnificent 
ramshorn in

[[Page 50805]]

the wild is the loss of suitable lentic (still or slow-flowing) habitat 
(Factor A) that individuals and populations need to complete their life 
history. The primary causes of historical habitat loss are related to 
anthropogenic activities coupled with extreme weather events that have 
altered water quality (Factor E) such that the breeding, feeding, 
sheltering, and dispersal needs of the snails cannot be met. There are 
no existing regulatory mechanisms that ameliorate or reduce these 
threats such that the species does not warrant listing (Factor D).
    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.

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 range, including distribution patterns;
    (d) Historical 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 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 regarding 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; or
    (b) Such designation of critical habitat would not be beneficial to 
the species. In determining whether a designation would not be 
beneficial, the factors the Services may consider include but are not 
limited to: Whether the present or threatened destruction, 
modification, or curtailment of a species' habitat or range is not a 
threat to the species, or whether any areas meet the definition of 
``critical habitat.''
    (6) Specific information on:
    (a) The amount and distribution of magnificent ramshorn habitat;
    (b) Any additional areas occurring within the range of the species 
(New Hanover and Brunswick Counties in southeastern North Carolina) 
that should be included in the designation because they (1) are 
occupied at the time of listing and contain the physical or biological 
features that are essential to the conservation of the species and that 
may require special management considerations, or (2) are unoccupied at 
the time of listing and are essential for the conservation of the 
species; and
    (c) Special management considerations or protection that may be 
needed in critical habitat areas we are proposing, including managing 
for the potential effects of climate change.
    (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 and any additional information 
regarding probable economic impacts that we should consider.
    (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. If you think we should exclude any 
additional areas, please provide information supporting a benefit of 
exclusion.
    (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, do not provide substantial 
information necessary to support a determination. 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, and section 4(b)(2) 
of the Act directs that the Secretary shall designate critical habitat 
on the basis of the best scientific 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

[[Page 50806]]

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.
    Because we will consider all comments and information received 
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. For critical habitat, our final designation may not 
include all areas proposed, may include some additional areas that meet 
the definition of critical habitat, or may exclude some areas if we 
find the benefits of exclusion outweigh the benefits of inclusion.

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. We may hold the public hearing in person or virtually via 
webinar. We will announce any public hearing on the Service's website, 
in addition to the Federal Register. The use of virtual public hearings 
is consistent with our regulations at 50 CFR 424.16(c)(3).

Previous Federal Actions

    We identified magnificent ramshorn (with the name Cape Fear 
ramshorn snail, Helisoma magnificum (Pilsbry, 1903)) as a Category 2 
candidate in our May 22, 1984, notice of review (49 FR 21664). A 
Category 2 candidate species was one for which there was some evidence 
of vulnerability, but for which additional biological information was 
needed to support a proposed rule to list as an endangered or 
threatened species. The species (as magnificent (=Cape Fear) ramshorn, 
Planorbella (=Helisoma) magnifica)) remained so designated in 
subsequent candidate notices of review (CNORs) (54 FR 554, January 6, 
1989; 56 FR 58804, November 21, 1991; 59 FR 58982, November 15, 1994). 
In the February 28, 1996, CNOR (61 FR 7596), we discontinued the 
designation of Category 2 species as candidates; therefore, magnificent 
ramshorn was no longer a candidate species.
    On April 20, 2010, we were petitioned to list 404 aquatic species 
in the southeastern United States, including magnificent ramshorn. In 
response to the petition, we completed a partial 90-day finding on 
September 27, 2011 (76 FR 59836), in which we announced our finding 
that the petition contained substantial information that listing may be 
warranted for numerous species, including magnificent ramshorn.
    On October 26, 2011, we published the annual CNOR (76 FR 66370) and 
announced magnificent ramshorn as a new candidate species with a 
listing priority number (LPN) of 2, indicating that the full species 
was imminently threatened by a high magnitude of threats. Candidates 
are those fish, wildlife, and plants for which we have on file 
sufficient information on biological vulnerability and threats to 
support preparation of a listing proposal, but for which development of 
a listing regulation is precluded by other, higher priority listing 
activities. Magnificent ramshorn was included with an LPN of 2 in all 
of our subsequent annual CNORs (77 FR 69994, November 21, 2012; 77 FR 
70104, November 22, 2013; 79 FR 72450, December 5, 2014; 80 FR 80584, 
December 24, 2015; 81 FR 87246, December 2, 2016; 84 FR 54732, October 
10, 2019; 85 FR 73164, November 16, 2020; 87 FR 26152, May 3, 2022). 
This document constitutes our 12-month petition finding, proposed 
listing rule, and proposed critical habitat rule. This document also 
serves to meet a court-approved settlement agreement with the Center 
for Biological Diversity to deliver a finding to the Federal Register 
by September 30, 2022 (Center for Biological Diversity v. FWS, No. 
1:21-cv-00884-EGS (May 4, 2022)).

Supporting Documents

    A species status assessment (SSA) team prepared a report for 
magnificent ramshorn. 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. 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 five appropriate specialists regarding the SSA report. We 
received two responses.

I. Proposed Listing Determination

Background

    A thorough review of the taxonomy, life history, and ecology of 
magnificent ramshorn (Planorbella magnifica) is presented in the SSA 
report (version 1.0; Service 2019, pp. 9-16).
    Magnificent ramshorn is a species of air-breathing snail endemic to 
southeastern North Carolina. It is a freshwater snail in the family 
Planorbidae (Pilsbry 1903) and is the largest North American snail in 
this family. It has a discoidal (i.e., coiling in one plane) relatively 
thin shell that reaches approximately 1.5 inches (38 millimeters) in 
diameter. The aperture of the shell is somewhat bell-shaped and very 
wide, extending beyond the sides of the shell. Like other members of 
the Planorbidae family, magnificent ramshorn is primarily herbivorous, 
feeding on emergent and submerged aquatic plants, algae, and detritus 
(decomposing plant material). Available information indicates that 
suitable habitat for the species is restricted to relatively shallow, 
sheltered portions of still or sluggish, freshwater (no salinity) 
bodies with an abundance and diversity of emergent and submerged 
aquatic vegetation and a circumneutral (nearly neutral) pH (see table 
1, below).

              Table 1--Magnificent Ramshorn's Habitat Needs
------------------------------------------------------------------------
        Waterbody attribute                      Description
------------------------------------------------------------------------
pH................................  Ideal is 6.8 to 7.5; inactive below
                                     6.5 and above 8.
Salinity..........................  Ideal is 0 parts per thousand (ppt);
                                     1.0 ppt (1.0 grams per liter (g/L))
                                     caused snails to withdraw.
Temperature.......................  60 [deg]F (16 [deg]C) and above.
                                     Still able to feed at 93 [deg]F (34
                                     [deg]C). Dormant below 60 [deg]F.

[[Page 50807]]

 
Hardness *........................  Ideal hardness is: Lab: 30 ppm (30
                                     mg/L); Hatchery ponds: between 60
                                     ppm (60 mg/L) and 220 ppm (200 mg/
                                     L).
Emergent vegetation...............  Aquatic vegetation in sufficient
                                     littoral depth (about 0.5 to 6 feet
                                     (ft) (0.15 to 2 meters (m))) used
                                     for feeding and shelter.
------------------------------------------------------------------------
* ``Hardness'' is considered to be the sum of the calcium and magnesium
  ions in water, expressed as milligrams per liter (mg/L) or parts per
  million (ppm) as calcium carbonate. It affects snail survival,
  particularly shell shape.

    Historically, magnificent ramshorn was documented from only four 
sites in the lower Cape Fear River Basin in North Carolina: (1) 
Greenfield Lake, a millpond located on a tributary to the Cape Fear 
River within the present city limits of Wilmington, New Hanover County; 
(2) Orton Pond (also known as Sprunt's Pond), a millpond located on 
Orton Creek in Brunswick County; (3) Big Pond (also known as Pleasant 
Oaks Pond or Sand Hill Creek Pond), a millpond on Sand Hill Creek in 
Brunswick County; and (4) McKinzie Pond, a millpond on McKinzie Creek, 
in Brunswick County. Species-specific surveys of more than 100 
potential sites (including most historical locations) over the last few 
decades have not documented any magnificent ramshorn snails, and the 
species is currently likely extirpated in the wild.

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. On 
July 5, 2022, the U.S. District Court for the Northern District of 
California vacated regulations that the Service (jointly with the 
National Marine Fisheries Service) had promulgated in 2019 (Center for 
Biological Diversity v. Haaland, No. 4:19-cv-05206-JST, Doc. 168 (CBD 
v. Haaland). As a result of that vacatur, regulations that were in 
effect before those 2019 regulations now govern listing and critical 
habitat decisions. Our analysis for this decision applied those pre-
2019 regulations. However, given that litigation remains regarding the 
court's vacatur of those 2019 regulations, we also undertook an 
analysis of whether the decision would be different if we were to apply 
the 2019 regulations. We concluded that the decision would have been 
the same if we had applied the 2019 regulations. The analysis based on 
the 2019 regulations is included in the record for this decision.
    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.'' Because 
the decision in CBD v. Haaland vacated our 2019 regulations regarding 
the foreseeable future, we refer to a 2009 Department of the Interior 
Solicitor's opinion entitled ``The Meaning of `Foreseeable Future' in 
Section 3(20) of the Endangered Species Act'' (M-37021). That 
Solicitor's opinion states that the foreseeable future ``must be rooted 
in the best available data that allow predictions into the future'' and 
extends as those predictions are ``sufficiently reliable to provide a 
reasonable degree of confidence in the prediction, in light of the 
conservation purposes of the Act.'' Id. at 13.
    It is not always possible or necessary to define the 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.

[[Page 50808]]

Analytical Framework

    The SSA report documents the results of our comprehensive 
biological review of the best scientific and commercial data regarding 
the status of 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. However, it does 
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 at Docket No. FWS-R4-ES-2022-0070 on https://www.regulations.gov.
    To assess magnificent ramshorn's viability, 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. Throughout all of these 
stages, we 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 discussion, 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. Although magnificent 
ramshorn is considered a large snail, its shell is thin and fragile, 
indicating that it is adapted to lentic (still or slow-flowing) aquatic 
habitats. Available information indicates that suitable habitat for the 
species is restricted to relatively shallow, sheltered portions of 
still or sluggish, freshwater bodies with an abundance and diversity of 
emergent and submerged aquatic vegetation and a circumneutral pH (pH 
within the range of 6 to 8) (Jones 2020, pers. comm.). The species is 
not able to survive in flowing water, nor is it able to tolerate any 
amount of salinity, thus restricting it to inland, freshwater, pond-
like habitats.

Loss of Lentic (Pond) Habitats

    Although the complete historical range of magnificent ramshorn is 
unknown, available information indicates that the species was likely 
once an inhabitant of beaver ponds on tributaries in the lower Cape 
Fear River basin; the species may also have once inhabited backwater 
and other sluggish portions of tributaries and the main channel of 
lower Cape Fear River. Beaver pond habitat was eliminated throughout 
much of the lower Cape Fear River as a result of the extirpation of the 
beaver due to trapping and hunting during the 19th and early 20th 
centuries. This, together with draining and destruction of beaver ponds 
for development, agriculture, and other purposes, is believed to have 
led to a significant decline in the snails' habitat and significant 
reduction in its abundance (Wood 2010, pp. 6, 7). Surveys in the 1990s 
also noted the loss of ponds due to hurricanes (Adams 1993, p. 26). 
Several ponds that were created or maintained by old mill dams have 
structures that will fail, or have failed, during catastrophic events. 
Catastrophic rainfall can overtop old mill dam structures and cause 
portions of them to wash out, thus draining the ponds behind them. This 
is likely what happened at McKinzie Pond. The four known historical 
sites where magnificent ramshorn were found are, or were, ponds likely 
created by old mill dams.

Saltwater Intrusion

    Dredging and deepening of the Cape Fear River channel, which began 
as early as 1822, and opening of the Atlantic Intracoastal Waterway 
(through Snow's Cut) in 1930 for navigational purposes have caused 
saltwater intrusion, altered the diversity and abundance of aquatic 
vegetation, and changed flows and current patterns far up the river 
channel and its lower tributaries (Adams 1993, p. 22; Wood 2010, p. 7). 
Under these circumstances, magnificent ramshorn could have survived 
only in lentic areas of tributary streams not affected by saltwater 
intrusion and other changes, such as the millponds protected from 
saltwater intrusion by their dams (Adams 1993, p. 22).
    Climate change and sea level rise pose a significant long-term 
threat to the survival of magnificent ramshorn. As previously noted, 
magnificent ramshorn is salt-intolerant (Wood 2002, p. 3), and 
saltwater intrusion into its habitat is one of the primary factors that 
contributed to its extirpation in the wild. In general during the past 
century, sea level has risen by 8+ inches (20+ centimeters (cm)), and 
available information indicates the rate of sea level rise is 
increasing (U.S. Global Change Research Program (USGCRP) 2009, p. 18; 
Kopp et al. 2015, p. 700). Sea levels are rising at a rate of about an 
inch (2.5 cm) per year (5 inches (12.7 cm) from 2011-2015) in some 
areas along the east coast of North Carolina (Valle-Levinson et al. 
2017, p. 7876). While future rates of sea level change are uncertain, 
continued sea level rise threatens the southeastern U.S. coastal zone 
with retreat of shorelines, inundation of coastal wetlands and streams, 
and increased salinity of estuaries, coastal wetlands, and tidal rivers 
and creeks, pushing freshwater coastal ecosystems farther inland. In 
addition, in the future, the southeastern United States faces potential 
higher average temperatures (resulting in increased evaporation rates), 
less frequent rainfall (resulting in potentially more frequent and 
longer dry periods), and an increase in intensity of storm events, 
including hurricanes; all of which are likely to increase the rate and 
upstream distance of saltwater intrusion into coastal streams. Also, 
higher average temperatures and longer periods between rainfall events, 
together with increased development and human population levels in 
Brunswick and New Hanover Counties, will result in an increased demand 
on freshwater systems for drinking, irrigation, and other water needs, 
exacerbating the

[[Page 50809]]

effects of sea level changes on streams in the lower Cape Fear River 
basin, which encompass the entire known historical range of magnificent 
ramshorn (adapted from USGCRP and references therein 2009, pp. 1111-
1116).

Disrupted Nutrient Cycles--Pollution and Nutrient Inputs

    The human residential population of Brunswick and New Hanover 
Counties is rapidly increasing; both counties are popular vacationing 
and retirement areas (see section 5-6 of the SSA report (Service 2019, 
pp. 31-35)). Both counties are among the most rapidly developing 
counties in the State, with population growth greater than 25 percent 
during the period of 2000-2010 (WRAL 2019, unpaginated). Typically, as 
development increases, the input of nutrients (through both surface and 
groundwater), silt, and other pollutants into the aquatic system 
increases. Increased input of these pollutants into the stream from 
point and non-point sources may result in eutrophication, decreased 
dissolved oxygen concentration, increased acidity and conductivity, and 
other changes in water chemistry. Impacts from development within the 
areas that formerly harbored magnificent ramshorn or within areas that 
may provide potential habitat for the species, have the potential to 
reduce groundwater levels, which could have a serious adverse effect on 
pH, water hardness, and salinity levels.

Altered Aquatic Vegetation Communities

    Aquatic vegetation is common in pond systems, but sometimes the 
vegetation can be invasive and overwhelm the aquatic system, such as in 
Greenfield Lake, formerly occupied snail habitat in Wilmington. 
Managing vegetation in ponds takes many forms; some practices are 
compatible with molluscan pond inhabitants (like magnificent ramshorn), 
such as aeration or mechanical cutting/removal, but some practices can 
significantly impact snails, such as using grass carp, using copper-
based herbicides, or drawing water out of the pond and subsequently 
drying out vegetation for complete removal, as was once done in Big 
Pond, formerly occupied by the ramshorn. The latter practices result in 
snail mortality, either from complete elimination of aquatic vegetation 
on which the snails depend, exposure to toxic metals like copper, 
lethal temperatures, predation, or desiccation from no access to water 
(Adams 1993, p. 12).

Extreme Weather Events

    Changes in climate and weather patterns may affect ecosystem 
processes and communities by altering the abiotic conditions 
experienced by biotic assemblages, resulting in potential effects on 
community composition and individual species interactions (DeWan et al. 
2010, p. 7). This is especially true for aquatic systems where 
increases in droughts or severe storm events resulting from climate 
change can trigger a cascade of ecological effects. For example, 
increases in air temperatures can lead to subsequent increases in water 
temperatures that, in turn, may lower water quality parameters (like 
pH), ultimately influencing overall habitat suitability for species 
like magnificent ramshorn.
    Impacts from climate change affect sea levels; alter precipitation 
patterns and subsequent delivery of freshwater, nutrients, and 
sediment; and change the frequency and intensity of coastal storms 
(Michener et al. 1997, p. 770; Scavia et al. 2002, p. 149; Neumann et 
al. 2015, p. 97). During the time when magnificent ramshorn became 
extremely rare in the wild (1990s-2000s), three of the top five 
strongest/most intense storms experienced in Wilmington, North 
Carolina, occurred (1996, 1998, and 1999) and caused massive flooding 
and saltwater intrusion into the ponds where magnificent ramshorn 
occurred (Service 2019, p. 24).
    The North Carolina Wildlife Action Plan (NCWRC 2015, pp. 5-48) 
identifies climate change as a ``very high'' threat to magnificent 
ramshorn. In addition, in an assessment of ecosystem response to 
climate change, factors associated with climate change ranked high with 
other factors that were deemed imminent risks to magnificent ramshorn's 
historical population locations (e.g., development, pollution, flood 
regime alteration, etc.; NCNHP 2010, entire). Furthermore, it should be 
recognized that the greatest threat from climate change to magnificent 
ramshorn habitat may come from synergistic effects. That is, factors 
associated with a changing climate may act as risk multipliers by 
increasing the risk and severity of more imminent threats (Arabshahi 
and Raines 2012, p. 8). As a result, impacts from rapid urbanization in 
the region might be exacerbated under even a mild-to-moderate climate 
future.

Regulatory Mechanisms

    Magnificent ramshorn is currently listed by the State of North 
Carolina as an endangered species. However, this designation does not 
protect the species from ``incidental'' harm, injury, or death (that 
is, harm, injury, or death resulting from activities not specifically 
intended to harm the species) or provide any protection to the species' 
habitat except on State-owned lands.

Conservation Efforts

    Captive holding of magnificent ramshorn began in the early 1990s, 
when individuals were collected to learn about their life-history 
requirements (Adams 1993, entire). In the mid-1990s, snails were held 
in captivity at the North Carolina Aquarium at Fort Fisher but were 
later moved to a private residence due to the influence of salt-laden 
air at the aquarium. There is a well-maintained snail sanctuary at the 
private residence, kept since the mid-1990s with approximately 100 
breeding ramshorn snails.
    In early 2012, a small (35 individuals) captive population was 
established at North Carolina State University's College of Veterinary 
Medicine's (CVM) Aquatic Epidemiology Conservation Laboratory in 
Raleigh, North Carolina. These captive snails have reproduced 
successfully and there are currently approximately 100 snails at the 
facility (which has had to scale back operations temporarily due to 
Covid-19 restrictions).
    Additional facilities for holding and propagating magnificent 
ramshorn at the NCWRC's hatchery in Watha, North Carolina, were 
established in 2011. In 2018, NCWRC hired a snail technician to focus 
on magnificent ramshorn husbandry at the Watha hatchery. The NCWRC 
subsequently moved the snail technician and all snails to their 
Conservation Aquaculture Center in Marion, North Carolina; there are 
currently approximately 775 breeding snails at this location.
    In 2012-2013, several potentially suitable locations, including 
portions of Orton Pond, McKinzie Pond, Big Pond (Sand Hill Creek/
Pleasant Oaks Pond), and nearby Pretty Pond, were all brought under 
single ownership. In 2014, the landowner approached the Service to 
determine the possibility of restoring the snail to Big Pond at the 
Pleasant Oaks Plantation. A proposal to assess snail restoration 
potential under a candidate conservation agreement with assurances 
(CCAA) has been formulated but not finalized or implemented.
    The North Carolina Division of Water Resources and the Service are 
working with the city of Wilmington, North Carolina, to improve the 
water quality of Greenfield Lake, which formerly supported the species. 
Greenfield Lake is currently on the State's list of

[[Page 50810]]

impaired water bodies due to excessive nutrient inputs.
    In 2018, Service staff performed an analysis to determine the 
suitability of potential habitats within the former range to support 
introduction of magnificent ramshorn. The results are being used by 
staff to field-verify the suitability of potential locations. In 
preparation for potential reintroduction, the Service has drafted 
experimental protocols to detail necessary steps for possible 
introduction of the species into the wild. Further, the Service is 
drafting a CCAA for landowners interested in contributing to the 
conservation of the State's aquatic species; this agreement would 
broadly cover aquatic species and is in addition to the draft CCAA with 
the owner of three ponds in the species' historical range.
    In 2019 and 2020, Service staff met with Department of Defense 
(DoD) and the North Carolina Plant Conservation Program (NCPCP), both 
landowners with several ponds on their properties within the historical 
range of magnificent ramshorn. The DoD's Military Ocean Terminal Sunny 
Point is immediately adjacent to the private property where the species 
was last known to occur in the wild. The NCPCP and DoD own ponds in the 
same watershed as the historical locations. Both are amenable to having 
water quality analyzed to determine whether their ponds could be 
suitable habitat for snail introduction, and that habitat assessment 
work began in 2021, under the lead of NCWRC.
    Further, in a 2019 legal settlement involving a major highway 
project, NCDOT committed $250,000 for magnificent ramshorn propagation 
into the future while we work on reintroduction site assessment and 
landowner agreements.

Summary

    Based on the results of repeated surveys from the 1980s to 2010s by 
qualified species experts in the species' historical habitat and 
suitable habitat in surrounding areas, there appear to be no extant 
populations of magnificent ramshorn in the wild. While several factors 
have likely contributed to the extirpation of magnificent ramshorn in 
the wild, the primary factors include loss of lentic habitats, perhaps 
associated with the extirpation of beavers (and their impoundments) 
between the early and late 20th century; increased salinity and 
alteration of flow patterns in the lower Cape Fear River Basin; and 
increased input of nutrients and other pollutants that may have altered 
the pH of pond waters beyond what the species can tolerate.
    The extirpation of magnificent ramshorn from Greenfield Lake is 
likely attributable to the alteration of the lake's water quality and 
chemistry resulting from past events such as breaks in sewer lines on 
the bottom of the lake; sewage overflows during storm events; runoff of 
fertilizers, sediment, toxic chemicals, and other pollutants from heavy 
development in the watershed; and efforts by the city of Wilmington to 
control aquatic plants and algae within the lake. All of these changes 
to Greenfield Lake likely led to salinization of the waters to levels 
beyond what the species could tolerate. Additionally, application of 
herbicides (usually containing copper) to control aquatic plants would 
not only have eliminated the snail's food source but could have 
directly killed individual snails.
    The Big Pond population of magnificent ramshorn was likely 
extirpated in 1996, when the dam on the pond was breached during 
flooding associated with Hurricane Fran. This resulted in the 
subsequent drawdown of the pond due to failure of the dam, and 
saltwater intrusion into the pond from upstream movement of the 
saltwater wedge in the Cape Fear River, which killed the aquatic 
vegetation and eliminated the salt-intolerant magnificent ramshorn.
    Magnificent ramshorn was last observed in McKenzie Pond in 2004, 
but was likely extirpated due to saltwater intrusion resulting from 
prolonged drought conditions that allowed tidal flow of saltwater to 
extend into the areas harboring the snail.
    Magnificent ramshorn may have been eliminated from Orton Pond by 
the landowner's multiple past attempts to control aquatic vegetation by 
drawing down the pond for extended periods of time, thus eliminating 
essential habitat components of water and vegetation, causing snail 
extirpation.
    The ongoing anthropogenic activities described above, coupled with 
the effects of climate change, such as extreme weather events (e.g., 
storms/hurricanes) that may blow out dams and cause saltwater 
intrusion, have the potential to continue to alter habitat and water 
quality such that the breeding, feeding, sheltering, and dispersal 
needs of magnificent ramshorn cannot be met.
    While efforts have been made to restore habitat for magnificent 
ramshorn at one of the sites known to have previously supported the 
species, all of the sites continue to be affected by many of the same 
factors (i.e., saltwater intrusion and other water quality degradation, 
nuisance aquatic plant control, storms, sea level rise, etc.) thought 
to have resulted in extirpation of the species from the wild. 
Currently, only three captive populations exist, with approximately 
1,000 snails in existence. Although captive populations have been 
maintained since 1993, a catastrophic event, such as a severe storm, 
disease, or predator infestation, affecting one or more of the captive 
populations, could result in the near extinction of the species.
    Magnificent ramshorn lacks the resiliency, redundancy, and 
representation necessary for viability. Magnificent ramshorn 
populations were not able to survive habitat degradation resulting from 
impacts including saltwater intrusion, pollutant influx, and human 
alteration of aquatic vegetation communities, thus eliminating the 
species' resiliency. Based on knowledge of the snail and the systems it 
depends on, the loss of habitat, and the lack of finding any 
magnificent ramshorns despite surveying dozens of possible locations, 
magnificent ramshorn has no redundancy in the wild. Furthermore, the 
historical range of the species is narrow and limited to lentic 
habitats within the Coastal Plain of southeastern North Carolina. We do 
not know the level of genetic diversity of the captive animals; 
however, we do know that the individuals in captivity are all 
descendants of adult snails from two distinct populations: Pleasant 
Oaks Pond and McKinzie Pond. The captive ramshorns have extremely 
limited representation, and since no magnificent ramshorns are known to 
exist in the wild, the species has no representation in the wild. We 
cannot project future conditions because there are no known extant 
populations on which we can project those conditions. While magnificent 
ramshorn is likely extirpated from the wild, recovering the species 
means re-establishing self-sustaining populations in the wild.
    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. The primary causes of 
historical habitat loss within the range of the magnificent ramshorn 
are related to anthropogenic activities coupled with extreme weather 
events that have altered water quality such that the breeding, feeding, 
sheltering, and dispersal needs of the snails cannot be met. We 
incorporate the cumulative effects into our SSA analysis when we 
characterize the current and future condition of the species. To assess 
the condition of the

[[Page 50811]]

species, we undertake an iterative analysis that encompasses and 
incorporates the threats individually and then accumulates and 
evaluates the effects of all the factors that may be negatively or 
positively 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 Magnificent Ramshorn's Status

    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 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.
    We have determined that magnificent ramshorn is likely extirpated 
in the wild. The most significant stressor that likely led to the 
extirpation of magnificent ramshorn in the wild is the loss of suitable 
lentic (still or slow-flowing) habitat that individuals and populations 
need to complete their life history (Factor A). The primary causes of 
historical habitat loss are related to anthropogenic activities that 
removed aquatic vegetation, coupled with extreme weather events (e.g., 
hurricanes that breach dams) that have altered water quality via 
saltwater intrusion (Factor E) such that the breeding, feeding, 
sheltering, and dispersal needs of the snails cannot be met. Existing 
regulatory mechanisms that would ameliorate or reduce these threats are 
not adequate (Factor D).

Status Throughout All of Its Range

    After evaluating threats to the species and assessing the 
cumulative effect of the threats under the Act's section 4(a)(1) 
factors, magnificent ramshorn lacks the three factors for viability. 
Based on the findings of decades of surveys to locate the species, 
magnificent ramshorn is likely extirpated in the wild. The past loss of 
suitable pond habitat and the challenge of finding suitable 
introduction sites exacerbates the current situation for magnificent 
ramshorn. The only known surviving individuals of the species are being 
held as part of captive populations. Although captive populations have 
been maintained since 1993, a catastrophic event, such as a severe 
storm, disease, or predator infestation, affecting one or more of the 
captive populations, could result in the near extinction of the 
species. Thus, after assessing the best available information, we 
conclude that magnificent ramshorn 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 magnificent ramshorn 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 
magnificent ramshorn warrants listing as endangered throughout all of 
its range, our determination does not conflict with the decision in 
Center for Biological Diversity v. Everson, 435 F. Supp. 3d 69 (D.D.C. 
2020) (Everson), because that decision related to significant portion 
of the range analyses for species that warrant listing as threatened, 
not endangered, throughout all of their range.

Determination of Status

    Our review of the best scientific and commercial data available 
indicates that magnificent ramshorn meets the Act's definition of an 
endangered species. Therefore, we propose to list magnificent ramshorn 
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. Subsection 4(f) of the Act calls for the Service to develop 
and implement recovery plans for the conservation of endangered and 
threatened species. 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.
    The recovery planning process begins with development of a recovery 
outline made available to the public soon after a final listing 
determination. The recovery outline guides the immediate implementation 
of urgent recovery actions while a recovery plan is being developed. 
Recovery teams (composed of species experts, Federal and State 
agencies, nongovernmental organizations, and stakeholders) may be 
established to develop and implement recovery plans. The recovery 
planning process involves the identification of actions that are 
necessary to halt and reverse the species' decline by addressing the 
threats to its survival and recovery. The recovery plan identifies 
recovery criteria for review of when a species may be ready for 
reclassification from endangered to threatened (``downlisting'') or 
removal from protected status (``delisting''), and methods for 
monitoring recovery progress. Recovery plans also establish a framework 
for agencies to coordinate their recovery efforts and provide estimates 
of the cost of implementing recovery tasks. Revisions of the plan may 
be done to address continuing or new threats to the species, as new 
substantive information becomes available. The recovery outline, draft 
recovery plan, final recovery plan, and any revisions will be available 
on our website as they are completed (https://www.fws.gov/program/endangered-species), or from our Raleigh Ecological Services Field 
Office (see FOR FURTHER INFORMATION CONTACT).

[[Page 50812]]

    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 North Carolina would be 
eligible for Federal funds to implement management actions that promote 
the protection or recovery of magnificent ramshorn. Information on our 
grant programs that are available to aid species recovery can be found 
at: https://www.fws.gov/service/financial-assistance.
    Although magnificent ramshorn 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. 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 (action 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 issuance of permits under section 404 of the Clean 
Water Act (33 U.S.C. 1251 et seq.) by the U.S. Army Corps of Engineers, 
and construction and maintenance of roads or highways by the Federal 
Highway Administration.
    The Act and its implementing regulations set forth a series of 
general prohibitions and exceptions that apply to endangered wildlife. 
The prohibitions of section 9(a)(1) of the Act, codified at 50 CFR 
17.21, make it illegal for any person subject to the jurisdiction of 
the United States to take (which includes harass, harm, pursue, hunt, 
shoot, wound, kill, trap, capture, or collect; or to attempt any of 
these) endangered wildlife within the United States or on the high 
seas. In addition, it is unlawful to import; export; deliver, receive, 
carry, transport, or ship in interstate or foreign commerce in the 
course of commercial activity; or sell or offer for sale in interstate 
or foreign commerce any species listed as an endangered species. It is 
also illegal to possess, sell, deliver, carry, transport, or ship any 
such wildlife that has been taken illegally. Certain exceptions apply 
to employees of the Service, the National Marine Fisheries Service, 
other Federal land management agencies, and State conservation 
agencies.
    We may issue permits to carry out otherwise prohibited activities 
involving endangered wildlife under certain circumstances. Regulations 
governing permits are codified at 50 CFR 17.22. With regard to 
endangered wildlife, a permit may be issued for the following purposes: 
For scientific purposes, to enhance the propagation or survival of the 
species, and for incidental take in connection with otherwise lawful 
activities. The statute also contains certain 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, 
normal rice cultivation impoundment water level management practices 
that are carried out in accordance with any existing regulations, 
permit requirements, and best management practices are unlikely to 
result in a violation of section 9.
    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) Unauthorized handling or collecting of the species;
    (2) Destruction or alteration of the species' habitat by draining, 
ditching, tiling, or diverting or altering surface or ground water flow 
into or out of ponds or other slack water areas;
    (3) Herbicide or other pesticide applications in violation of label 
restrictions in areas occupied by magnificent ramshorn;
    (4) Introduction of nonnative species that compete with or prey 
upon magnificent ramshorn;
    (5) Removal or destruction of emergent aquatic vegetation in areas 
designated as critical habitat or in any body of water in which 
magnificent ramshorn becomes established; and
    (6) Discharge of chemicals into any waters in which magnificent 
ramshorn becomes established.
    Questions regarding whether specific activities would constitute a 
violation of section 9 of the Act should be directed to the Raleigh 
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

[[Page 50813]]

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). 
Additionally, although on June 24, 2022, we published a final rule 
rescinding the 2019 regulations at 50 CFR 424.02 defining the word 
``habitat'' (87 FR 37757), we have determined that, even if we had to 
apply definition in the 2019 regulations, this proposed critical 
habitat designation would meet this definition.
    Conservation, as defined under section 3 of the Act, means to use 
and the use of all methods and procedures that are necessary to bring 
an endangered or threatened species to the point at which the measures 
provided pursuant to the Act are no longer necessary. Such methods and 
procedures include, but are not limited to, all activities associated 
with scientific resources management such as research, census, law 
enforcement, habitat acquisition and maintenance, propagation, live 
trapping, and transplantation, and, in the extraordinary case where 
population pressures within a given ecosystem cannot be otherwise 
relieved, may include regulated taking.
    Critical habitat receives protection under section 7 of the Act 
through the requirement that Federal agencies ensure, in consultation 
with the Service, that any action they authorize, fund, or carry out is 
not likely to result in the destruction or adverse modification of 
critical habitat. The designation of critical habitat does not affect 
land ownership or establish a refuge, wilderness, reserve, preserve, or 
other conservation area. Such designation also does not allow the 
government or public to access private lands. Such designation does not 
require implementation of restoration, recovery, or enhancement 
measures by non-Federal landowners. Where a landowner requests Federal 
agency funding or authorization for an action that may affect a listed 
species or critical habitat, the 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).
    Under the second prong of the Act's definition of critical habitat, 
we can designate critical habitat in areas outside the geographical 
area occupied by the species at the time it is listed, upon a 
determination that such areas are essential for the conservation of the 
species. We note that the court in CBD v. Haaland vacated the 
provisions from the 2019 regulations regarding unoccupied critical 
habitat. Therefore, the regulations that now govern designations of 
critical habitat are the implementing regulations that were in effect 
before the 2019 regulations.
    Section 4 of the Act requires that we designate critical habitat on 
the basis of the best scientific data available. Further, our Policy on 
Information Standards Under the Endangered Species Act (published in 
the Federal Register on July 1, 1994 (59 FR 34271)), the Information 
Quality Act (section 515 of the Treasury and General Government 
Appropriations Act for Fiscal Year 2001 (Pub. L. 106-554; H.R. 5658)), 
and our associated Information Quality Guidelines provide criteria, 
establish procedures, and provide guidance to ensure that our decisions 
are based on the best scientific data available. They require our 
biologists, to the extent consistent with the Act and with the use of 
the best scientific data available, to use primary and original sources 
of information as the basis for recommendations to designate critical 
habitat.
    When we are determining which areas should be designated as 
critical habitat, our primary source of information is generally the 
information from the SSA report and information developed during the 
listing process for the species. Additional information sources may 
include any generalized conservation strategy, criteria, or outline 
that may have been developed for the species; the recovery plan for the 
species; articles in peer-reviewed journals; conservation plans 
developed by States and counties; scientific status surveys and 
studies; biological assessments; other unpublished materials; or 
experts' opinions or personal knowledge.
    Habitat is dynamic, and species may move from one area to another 
over time. We recognize that critical habitat designated at a 
particular point in time may not include all of the habitat areas that 
we may later determine are necessary for the recovery of the species. 
For these reasons, a critical habitat designation does not signal that 
habitat outside the designated area is unimportant or may not be needed 
for recovery of the species. Areas that are important to the 
conservation of the species, both inside and outside the critical 
habitat designation, will continue to be subject to: (1) Conservation 
actions implemented under section 7(a)(1) of the Act; (2) regulatory 
protections afforded by the requirement in section 7(a)(2) of the Act 
for Federal agencies to ensure their actions are not likely to 
jeopardize the continued existence of any endangered or threatened 
species; and (3) 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 the 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 those 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 a 
designation of critical habitat is not prudent when any of the 
following situations exist:
    (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; or

[[Page 50814]]

    (ii) Such designation of critical habitat would not be beneficial 
to the species. In determining whether a designation would not be 
beneficial, the factors the Services may consider include but are not 
limited to: Whether the present or threatened destruction, 
modification, or curtailment of a species' habitat or range is not a 
threat to the species or whether any areas meet the definition of 
``critical habitat.''
    There is currently no imminent threat of collection or vandalism 
for this species because it is presumed extirpated from the wild, and 
identification and mapping of critical habitat is not expected to 
initiate any such threat. In our SSA report and this proposed listing 
determination for magnificent ramshorn, we have determined that the 
present or threatened destruction, modification, or curtailment of 
habitat or range is a threat to magnificent ramshorn. We are able to 
identify areas that meet the definition of critical habitat. Therefore, 
because none of the circumstances enumerated in our regulations at 50 
CFR 424.12(a)(1) have been identified, we have determined that the 
designation of critical habitat is prudent for magnificent ramshorn.

Critical Habitat Determinability

    Having determined that designation is prudent, under section 
4(a)(3) of the Act we must find whether critical habitat for 
magnificent ramshorn 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 the species was 
historically 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 magnificent ramshorn.

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 as 
the features that 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, alkaline 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 absence of 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, we 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 conservation of magnificent ramshorn from studies of the species' 
habitat, ecology, and life history as described below. Additional 
information can be found in the SSA report (Service 2019, entire; 
available on https://www.regulations.gov under Docket No. FWS-R4-ES-
2022-0070). We have determined that the physical or biological features 
essential to the conservation of magnificent ramshorn consist of 
waterbodies within the species' historical range that:
    1. Maintain permanent, lentic flow conditions;
    2. Have sufficient littoral depth (approximately 0.5 to 6 feet) to 
sustain large-leaved emergent aquatic vegetation (e.g., water lilies, 
spatterdock, etc.);
    3. Maintain circumneutral pH (i.e., between pH 6 and 8);
    4. Have no salinity (i.e., 0 parts per thousand (ppt) salinity); 
and
    5. Maintain natural water hardness to promote shell growth (greater 
than 60 parts per million (ppm) calcium carbonate).

Criteria Used To Identify Critical Habitat

Conservation Strategy

    Future viability for magnificent ramshorn depends on maintaining 
multiple resilient populations over time. While the species is 
currently likely extirpated from the wild, species experts have 
identified several strategic efforts that will be important to build 
the future viability of the species. These could include:
    1. Maintain at least two secure captive populations of magnificent 
ramshorn until such time as there are enough populations in the wild to 
no longer necessitate such an effort.
    2. Reintroduce magnificent ramshorn snails to at least two known 
historical locations and establish monitoring to ensure reintroductions 
are successful; augment until populations are established and success 
criteria are met.
    3. Introduce magnificent ramshorn snails to at least two other 
locations with suitable habitat within the historical range of the 
species. Monitor to ensure reintroductions are successful; augment 
until populations are established.
    These strategic efforts to promote at least four wild populations 
(two historical locations occupied and self-sustaining, as well as two 
other locations within the historical range occupied and self-
sustaining), will be more thoroughly addressed in future recovery 
planning for the species.
    As required by section 4(b)(2) of the Act, we use the best 
scientific data available to designate critical habitat. In

[[Page 50815]]

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. Because 
the species is likely extirpated in the wild, we have determined that 
there are no occupied areas to ensure the conservation of the species. 
Accordingly, we are proposing to designate critical habitat in two 
unoccupied areas within the historical range for the species. In 
addition, these unoccupied areas are essential for the conservation of 
the species. Each of the two unoccupied units contain suitable habitat 
for the magnificent ramshorn--the ponds contain slow-moving waters, are 
of sufficient depth to sustain emergent aquatic vegetation, and are 
managed consistent with magnificent ramshorn's life requisites. Both 
ponds were previously occupied by magnificent ramshorn, and we 
determined the factors that led to the species' decline in these 
locations have been ameliorated or are manageable.
    To delineate critical habitat units, we used the U.S. Geological 
Survey's high resolution National Hydrography Dataset (NHD) to 
determine the boundaries of each pond. We included all waters from the 
base of the dams upstream to the upper limits of the pond features that 
became more stream-like, as demarcated in the NHD data layer. For areas 
outside the geographic area occupied by the species at the time of 
listing, we identified the critical habitat units using the following 
considerations:
    a. Unoccupied habitats have historical records of species 
occurrence;
    b. Unoccupied areas exhibit suitable habitat availability, 
providing the physical or biological features necessary for survival, 
growth, and reproduction of the species;
    c. Unoccupied areas provide habitat for reintroduction, with 
potential to reduce the level of stochastic and human-induced threats, 
and decrease the risk of extinction because the areas currently contain 
the essential physical or biological features to support life-history 
functions of magnificent ramshorn; and
    d. Unoccupied habitat currently supports diverse aquatic pond 
communities, including the presence of closely related species 
requiring physical or biological features similar to magnificent 
ramshorn.
    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 
the physical or biological features necessary for magnificent ramshorn. 
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 have determined that because there are no occupied areas at the 
time of listing, unoccupied areas are essential for the conservation of 
the species. Accordingly, we have identified and are proposing two 
unoccupied units as critical habitat. As detailed in Conservation 
Strategy above, additional units will be needed for recovery, but we 
cannot currently determine what other areas will have the best chance 
of successful species introduction. To consider for designation areas 
not occupied by the species at the time of listing, we must demonstrate 
that these areas are essential for the conservation of magnificent 
ramshorn. Because the species is likely extirpated from the wild, the 
only way for the species to be conserved and have viable populations in 
the wild is via captive propagation and reintroduction to unoccupied 
areas.
    Magnificent ramshorn is historically known from four locations, all 
ponds/impoundments. Of these four historical locations, only two meet 
all of the criteria for designation as critical habitat. Both 
Greenfield Lake and McKinzie Pond no longer have suitable habitat for 
the species, and would require extensive restoration and threat 
abatement measures before possibly becoming suitable again. Based on 
our review, we determined that Orton Pond and Big Pond, the two other 
known historical locations for magnificent ramshorn, have the potential 
for future reintroduction and reoccupation by the species. 
Reestablishing viable populations in those two ponds will provide 
redundancy within the historical range and increase the species' 
ecological representation. Orton Pond and Big Pond represent habitat 
within the historical range with the best potential for recovery of the 
species due to current pond conditions, suitability for 
reintroductions, compatibility between landowner's existing habitat 
management and habitat needs of magnificent ramshorn, and landowner 
interest in recovery and access for monitoring.
    Accordingly, we propose to designate two units as critical habitat 
for magnificent ramshorn. Both units contain the identified physical or 
biological features, appear to be capable of supporting multiple life-
history processes of the species, and are essential for the 
conservation of the species.
    The proposed critical habitat designation is defined by the map or 
maps, as modified by any accompanying regulatory text, presented at the 
end of this document under Proposed Regulation Promulgation. We include 
more-detailed information on the boundaries of the proposed critical 
habitat designation in the preamble of this document. We will make the 
coordinates or plot points or both on which each map is based available 
to the public on https://www.regulations.gov at Docket No. FWS-R4-ES-
2022-0070 (see FOR FURTHER INFORMATION CONTACT) and on the Service's 
website at https://www.fws.gov/office/eastern-north-carolina/library.

Proposed Critical Habitat Designation

    We are proposing to designate approximately 739 acres (ac) (299 
hectares (ha)) in two units as critical habitat for magnificent 
ramshorn. The critical habitat areas we describe below constitute our 
current best assessment of areas that meet the definition of critical 
habitat for magnificent ramshorn. The two areas we propose as critical 
habitat are: (1) Orton Pond and (2) Big Pond (Pleasant Oaks Pond). The 
table below shows the proposed critical habitat units and the 
approximate area of each unit.

[[Page 50816]]



                        Table 2--Proposed Critical Habitat Units for Magnificent Ramshorn
                    [Area estimates reflect all land within critical habitat unit boundaries]
----------------------------------------------------------------------------------------------------------------
                                                                 Size of unit in acres
        Critical habitat unit           Land ownership by type         (hectares)               Occupied?
----------------------------------------------------------------------------------------------------------------
1. Orton Pond........................  Private................  688 ac (278 ha)........  No.
2. Big Pond (Pleasant Oaks Pond).....  Private................  51 ac (21 ha)..........  No.
                                      --------------------------------------------------------------------------
    Total............................  .......................  739 ac (299 ha).
----------------------------------------------------------------------------------------------------------------

    We present brief descriptions of each unit, and reasons why they 
meet the definition of critical habitat for magnificent ramshorn, 
below.

Unit 1: Orton Pond

    Unit 1, Orton Pond, consists of 688 ac (278 ha) of unoccupied 
lentic habitat in an impounded section of Orton Creek in Brunswick 
County, North Carolina, approximately \1/2\ mile upstream from its 
confluence with the Cape Fear River, located east of the town of 
Boiling Spring Lakes. This pond is privately owned and has a 
conservation easement along the entire southeastern shore and along the 
dam right-of-way. Access to Orton Pond by researchers surveying for 
magnificent ramshorn has been restricted since the mid-1990s, and the 
species was last observed in this location in 1995. Orton Pond is one 
of four known historical locations for the species, and it currently 
has extensive suitable habitat for the ramshorn, including sluggish 
flows, sufficient littoral depth for emergent aquatic vegetation, and 
no salinity. Its management is consistent with magnificent ramshorn's 
life requisites. For these reasons, we find that the formerly occupied 
Orton Pond is essential for the conservation of the species.

Unit 2: Big Pond (Pleasant Oaks Pond)

    Unit 2, Big Pond, consists of 51 ac (21 ha) of unoccupied lentic 
habitat in an impounded section of Sand Hill Creek in Brunswick County, 
North Carolina, just upstream of the confluence with the Cape Fear 
River across from Campbell Island. This pond is privately owned and has 
a conservation easement surrounding the entire pond. The species was 
last observed in this location in 1994. Big Pond is one of four known 
historical locations for the species, and it currently has extensive 
suitable habitat for the ramshorn, including sluggish flows and 
sufficient littoral depth for emergent aquatic vegetation. Its 
management is consistent with magnificent ramshorn's life requisites. 
For these reasons, we find that the formerly occupied Big Pond is 
essential for the conservation of the species. Because of its proximity 
to the upstream saltwater wedge in the Cape Fear River, and the 
potential for dam failure during hurricanes, this pond will require 
permanent maintenance to prevent effects of saltwater intrusion and the 
landowner has indicated that maintaining the dam to keep freshwater in 
the pond is a priority.

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 February 11, 2016 (81 FR 7214). (Although we 
also published a revised definition after that (on August 27, 2019), 
that 2019 definition was subsequently vacated by the court in CBD v. 
Haaland.) Destruction or adverse modification means a direct or 
indirect alteration that appreciably diminishes the value of critical 
habitat for the conservation of a listed species. Such alterations may 
include, but are not limited to, those that alter the physical or 
biological features essential to the conservation of a species or that 
preclude or significantly delay development of such features.
    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 
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 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

[[Page 50817]]

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: (a) If the amount or extent of 
taking specified in the incidental take statement is exceeded; (b) if 
new information reveals effects of the action that may affect listed 
species or critical habitat in a manner or to an extent not previously 
considered; (c) if the identified action is subsequently modified in a 
manner that causes an effect to the listed species or critical habitat 
that was not considered in the biological opinion; or (d) if a new 
species is listed or critical habitat designated that may be affected 
by the identified action.
    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 for the 
conservation of the listed species. As discussed above, the role of 
critical habitat is to support physical or biological features 
essential to the conservation of a listed species and provide for the 
conservation of the species.
    Section 4(b)(8) of the Act requires us to briefly evaluate and 
describe, in any proposed or final regulation that designates critical 
habitat, activities involving a Federal action that may violate section 
7(a)(2) of the Act by destroying or adversely modifying such habitat, 
or that may be affected by such designation.
    Activities that we 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:
    (1) Actions that would cause physical habitat disturbance. Such 
activities could include, but are not limited to, draining, dredging, 
channelization, placement of fill, or activities that modify or 
compromise the dam structure such that pond habitat quality is 
degraded. These activities could eliminate or reduce the habitat 
necessary for the conservation of these snails.
    (2) Actions that would degrade water quality in tributaries or the 
main pond. Such activities could include, but are not limited to, 
nonpoint discharges, inputs of dissolved solids or contaminants, 
erosion, and sedimentation. These activities could eliminate or greatly 
reduce the habitat necessary for the conservation of these snails.

Exemptions

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

    Section 4(a)(3)(B)(i) of the Act (16 U.S.C. 1533(a)(3)(B)(i)) 
provides that the Secretary shall not designate as critical habitat any 
lands or other geographic areas owned or controlled by the Department 
of Defense (DoD), or designated for its use, that are subject to an 
integrated natural resources management plan (INRMP) prepared under 
section 101 of the Sikes Act Improvement Act of 1997 (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 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 designated critical habitat based on 
economic impacts, impacts on national security, or any other relevant 
impacts. Exclusion decisions are governed by the regulations at 50 CFR 
424.19 and the Policy Regarding Implementation of Section 4(b)(2) of 
the Endangered Species Act, 81 FR 7226 (Feb. 11, 2016) (2016 Policy)--
both of which were developed jointly with the National Marine Fisheries 
Service (NMFS). We also refer to a 2008 Department of the Interior 
Solicitor's opinion entitled ``The Secretary's Authority to Exclude 
Areas from a Critical Habitat Designation under Section 4(b)(2) of the 
Endangered Species Act'' (M-37016). We explain each decision to exclude 
areas, as well as decisions not to exclude, to demonstrate that the 
decision is reasonable.
    In considering whether to exclude a particular area from the 
designation, we identify the benefits of including the area in the 
designation, identify the benefits of excluding the area from the 
designation, and evaluate whether the benefits of exclusion outweigh 
the benefits of inclusion. If the analysis indicates that the benefits 
of exclusion outweigh the benefits of inclusion, the Secretary may 
exercise discretion to exclude the area only if such exclusion would 
not 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. We describe below our process for considering 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. 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

[[Page 50818]]

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.
    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. 
Section 3(f) of E.O. 12866 identifies four criteria when a regulation 
is considered a ``significant'' rulemaking, and requires additional 
analysis, review, and approval if met. The criterion relevant here is 
whether the designation of critical habitat may have an economic effect 
of greater than $100 million in any given year (section 3(f)(1)). 
Therefore, our consideration of economic impacts uses a screening 
analysis to assess whether a designation of critical habitat for the 
magnificent ramshorn is likely to exceed the economically significant 
threshold. 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 magnificent ramshorn (IEc 2020). 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 the geographic areas in which the 
critical habitat designation is unlikely to result in probable 
incremental economic impacts. In particular, the screening analysis 
considers baseline costs (i.e., absent critical habitat designation) 
and includes probable economic impacts where land and water use may be 
subject to conservation plans, land management plans, best management 
practices, or regulations that protect the habitat area as a result of 
the Federal listing status of the species. The screening analysis 
filters out particular areas of critical habitat that are already 
subject to such protections and are, therefore, unlikely to incur 
incremental economic impacts. Ultimately, the screening analysis allows 
us to focus our analysis on evaluating the specific areas or sectors 
that may incur probable incremental economic impacts as a result of the 
designation. This includes assessing 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 
that may incur incremental economic impacts. 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 magnificent ramshorn; our DEA is summarized in the 
narrative below.
    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 magnificent ramshorn, first we 
identified, in the IEM dated February 25, 2020, probable incremental 
economic impacts associated with the following categories of 
activities: (1) Road maintenance and repair; and (2) dam maintenance. 
We considered each industry or category individually. Additionally, we 
considered whether the 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 the species and also 
finalize this proposed critical habitat designation, our consultation 
would include an evaluation of measures to avoid the destruction or 
adverse modification of critical habitat.
    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 
magnificent ramshorn's critical habitat. Because there are currently no 
occupied units, all consultations will be addressing adverse 
modification alone. At such time that the species is reintroduced, and 
as consultation under the jeopardy standard would focus on the effects 
of habitat degradation because threats to the species are habitat-
related, critical habitat designation would not be expected to result 
in additional consultation in occupied habitat. This evaluation of the 
incremental effects has been used as the basis to evaluate the probable 
incremental economic impacts of this proposed critical habitat 
designation.
    The proposed critical habitat designation for magnificent ramshorn 
totals approximately 739 ac (299 ha), all of which are currently 
unoccupied by the species but are essential for the conservation of the 
species. In these unoccupied areas, any conservation efforts or 
associated probable impacts would be considered incremental effects 
attributed to the critical habitat designation. Within the unoccupied 
critical habitat, rarely are any actions expected to occur that will 
result in section 7 consultation or associated project modifications 
because both of the units are privately owned and subject to 
conservation easements. Therefore, future activities and associated 
economic impacts in proposed critical habitat units are anticipated to 
be limited. Our analysis estimates that cost to private entities is 
expected to be relatively minor (administrative efforts will cost less 
than $8,900 per year, and potential incremental project modifications 
may cost up to $12,000 per year).
    We are soliciting data and comments from the public on the DEA 
discussed above, as well as on 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 we receive during the 
public comment period 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, and 
the joint 2016 Policy. We may exclude an area from critical habitat if 
we determine that the benefits of excluding

[[Page 50819]]

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), then national-security 
or homeland-security concerns are not a factor in the process of 
determining what areas meet the definition of ``critical habitat.'' 
However, the Service must still consider impacts on national security, 
including homeland security, on those lands or areas not covered by 
section 4(a)(3)(B)(i) because section 4(b)(2) requires the Service to 
consider those impacts whenever it designates critical habitat. 
Accordingly, if DoD, Department of Homeland Security (DHS), or another 
Federal agency has requested exclusion based on an assertion of 
national-security or homeland-security concerns, or we have otherwise 
identified national-security or homeland-security impacts from 
designating particular areas as critical habitat, we generally have 
reason to consider excluding those areas.
    However, we cannot 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, we must 
conduct an exclusion analysis if the Federal requester provides 
information, including 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 we conduct an exclusion analysis because the agency provides a 
reasonably specific justification or because we decide to exercise the 
discretion to conduct an exclusion analysis, 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 section 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 lands 
within the proposed designation of critical habitat for magnificent 
ramshorn are not owned or managed by the DoD or DHS, and, therefore, we 
anticipate no impact on national security or homeland security. 
However, if through the public comment period we receive information 
regarding impacts on national security or homeland security from 
designating particular areas as critical habitat, then as part of 
developing the final designation of critical habitat, conduct a 
discretionary exclusion analysis to determine whether to exclude those 
areas under authority of section 4(b)(2), our implementing regulations 
at 50 CFR 424.19, and the 2016 Policy.

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. To identify other relevant impacts that may 
affect the exclusion analysis, 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, or CCAAs--or 
whether there are non-permitted conservation agreements and 
partnerships that may be impaired by designation of, or exclusion from, 
critical habitat. In addition, we look at whether Tribal conservation 
plans or partnerships, Tribal resources, or government-to-government 
relationships of the United States with Tribal entities may be affected 
by the designation. We also consider any State, local, social, or other 
impacts that might occur because of the designation.
    We have not identified any areas to consider for exclusion from 
critical habitat based on other relevant impacts because there are no 
identified relevant impacts to Tribes, States, local governments, and 
there are no permitted conservation plans covering the species. 
However, during the development of a final designation, we will 
consider all information currently available or received during the 
public comment period. If we receive information that we determine 
indicates that there is a potential for supporting a benefit of 
excluding any areas, we will undertake an evaluation of that 
information to determine whether those areas should be excluded from 
the final critical habitat designation under the authority of section 
4(b)(2) of the Act and our implementing regulations at 50 CFR 424.19, 
as well as the 2016 Policy. If we evaluate information based on a 
request for an exclusion and we do not exclude, we will fully describe 
in the final critical habitat determination our rationale for not 
excluding. We may also exercise the discretion to undertake exclusion 
analyses for other areas as well, and we will describe all of our 
exclusion analyses as part of a final critical habitat determination.

Non-Permitted Conservation Plans, Agreements, or Partnerships

    Shown below is a non-exhaustive list of factors that we consider in 
evaluating how non-permitted plans or agreements affect the benefits of 
inclusion or exclusion. These are not required elements of plans or 
agreements. Rather, they are some of the factors we may consider, and 
not all of these factors apply to every plan or agreement.
    (i) The degree to which the record of the plan, or information 
provided by proponents of an exclusion, supports a conclusion that a 
critical habitat designation would impair the realization of the 
benefits expected from the plan, agreement, or partnership.
    (ii) The extent of public participation in the development of the 
conservation plan.
    (iii) The degree to which agency review and required determinations 
(e.g., State regulatory requirements) have been completed, as necessary 
and appropriate.
    (iv) Whether National Environmental Policy Act (NEPA; 42 U.S.C. 
4321 et seq.) reviews or similar reviews occurred, and the nature of 
any such reviews.
    (v) The demonstrated implementation and success of the chosen 
mechanism.
    (vi) The degree to which the plan or agreement provides for the 
conservation of the physical or biological features that are essential 
to the conservation of the species.
    (vii) Whether there is a reasonable expectation that the 
conservation management strategies and actions contained in a 
management plan or agreement will be implemented.

[[Page 50820]]

    (viii) Whether the plan or agreement contains a monitoring program 
and adaptive management to ensure that the conservation measures are 
effective and can be modified in the future in response to new 
information.
    At this time, we are not considering excluding any areas within the 
proposed critical habitat for magnificent ramshorn that are covered by 
non-permitted plans. We are aware of the conservation partnership of 
the landowner of Big Pond and a portion of Orton Pond, and the 
possibility of a commitment to conserve magnificent ramshorn on their 
property. Therefore, we are requesting information supporting a benefit 
of excluding any areas from the proposed critical habitat designation. 
Based on our evaluation of the information we receive, we may determine 
that we have reason to exclude one or more areas from the final 
designation.

Summary of Exclusions Considered Under Section 4(b)(2) of the Act

    In preparing this proposal, we have determined that no HCPs or 
other management plans for magnificent ramshorn currently exist, and 
the proposed designation does not include any Tribal lands or trust 
resources or any lands for which designation would have any economic or 
national-security impacts. Therefore, we anticipate no impact on Tribal 
lands, partnerships, or HCPs from this proposed critical habitat 
designation, and, as described above, we are not considering excluding 
any particular areas on the basis of the presence of conservation 
agreements or impacts to trust resources.
    During the development of a final designation, we will consider any 
additional information we receive during the public comment period on 
this proposed rule 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) of the Act, and 
our implementing regulations at 50 CFR 424.19, and the joint 2016 
Policy.

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 proposed 
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 proposed rule in a manner 
consistent with these requirements.

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

    Under the Regulatory Flexibility Act (RFA; 5 U.S.C. 601 et seq.), 
as amended by the Small Business Regulatory Enforcement Fairness Act of 
1996 (SBREFA; 5 U.S.C. 801 et seq.), whenever an agency is required to 
publish a notice of rulemaking for any proposed or final rule, it must 
prepare and make available for public comment a regulatory flexibility 
analysis that describes the effects of the rule on small entities 
(i.e., small businesses, small organizations, and small government 
jurisdictions). However, no regulatory flexibility analysis is required 
if the head of the agency certifies the rule will not have a 
significant economic impact on a substantial number of small entities. 
The SBREFA amended the RFA to require Federal agencies to provide a 
certification statement of the factual basis for certifying that the 
rule will not have a significant economic impact on a substantial 
number of small entities.
    According to the Small Business Administration, small entities 
include small organizations such as independent nonprofit 
organizations; small governmental jurisdictions, including school 
boards and city and town governments that serve fewer than 50,000 
residents; and small businesses (13 CFR 121.201). Small businesses 
include manufacturing and mining concerns with fewer than 500 
employees, wholesale trade entities with fewer than 100 employees, 
retail and service businesses with less than $5 million in annual 
sales, general and heavy construction businesses with less than $27.5 
million in annual business, special trade contractors doing less than 
$11.5 million in annual business, and agricultural businesses with 
annual sales less than $750,000. To determine if potential economic 
impacts to these small entities are significant, we considered the 
types of activities that might trigger regulatory impacts under this 
designation as well as types of project modifications that may result. 
In general, the term ``significant economic impact'' is meant to apply 
to a typical small business firm's business operations.
    Under the RFA, as amended, and as understood in light of recent 
court decisions, Federal agencies are required to evaluate the 
potential incremental impacts of rulemaking on those entities directly 
regulated by the rulemaking itself; in other words, the RFA does not 
require agencies 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. While only 
Federal action agencies would be directly regulated if we adopt this 
proposed critical habitat designation, non-Federal applicants for 
federal funds or permits may be indirectly impacted because of 
additional evaluations that may be required during the application 
process for the federally funded or permitted project, but this is 
expected to be rare, and minor when it does occur. The RFA

[[Page 50821]]

does not require evaluation of 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, 
the proposed critical habitat designation will not have a significant 
economic impact on a substantial number of small entities.
    In summary, we have considered whether the proposed designation 
would result in a significant economic impact on a substantial number 
of small entities. For the above reasons and based on currently 
available information, we certify that, if made final, the proposed 
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 will significantly affect 
energy supplies, distribution, or use because the proposed designated 
ponds are privately owned. 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 proposed rule would significantly 
or uniquely affect small governments because only private lands are 
involved in the proposed designation. 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 magnificent ramshorn in a takings implications assessment. 
The Act does not authorize the Service to regulate private actions on 
private lands or confiscate private property as a result of critical 
habitat designation. Designation of critical habitat does not affect 
land ownership, or establish any closures, or restrictions on use of or 
access to the designated areas. Furthermore, the designation of 
critical habitat does not affect landowner actions that do not require 
Federal funding or permits, nor does it preclude development of habitat 
conservation programs or issuance of incidental take permits to permit 
actions that do require Federal funding or permits to go forward. 
However, Federal agencies are prohibited from carrying out, funding, or 
authorizing actions that would destroy or adversely modify critical 
habitat. A takings implications assessment has been completed for the 
proposed designation of critical habitat for magnificent ramshorn, 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, this proposed rule would 
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. 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

[[Page 50822]]

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 proposed 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 the physical 
or biological features essential to the conservation of the species. 
The proposed areas of designated critical habitat are presented on 
maps, 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 proposed 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 critical habitat for 
magnificent ramshorn, 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 Raleigh 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 Raleigh 
Ecological Services Field Office.

List of Subjects in 50 CFR Part 17

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

Proposed Regulation Promulgation

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

PART 17--ENDANGERED AND THREATENED WILDLIFE AND PLANTS

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

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

0
2. Amend Sec.  17.11, in paragraph (h), by adding an entry for 
``Ramshorn, magnificent'' to the List of Endangered and Threatened 
Wildlife in alphabetical order under SNAILS to read as follows:


Sec.  17.11   Endangered and threatened wildlife.

* * * * *
    (h) * * *

----------------------------------------------------------------------------------------------------------------
                                                                                          Listing citations and
           Common name              Scientific name      Where listed         Status         applicable rules
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
             Snails
 
                                                  * * * * * * *
Ramshorn, magnificent...........  Planorbella         Wherever found....  E              [Federal Register
                                   magnifica.                                             citation when
                                                                                          published as a final
                                                                                          rule]; 50 CFR
                                                                                          17.95(f).\CH\
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------

0
3. Amend Sec.  17.95, in paragraph (f), by adding an entry for 
``Magnificent Ramshorn (Planorbella magnifica)'' immediately following 
the entry for ``Rough Hornsnail (Pleurocera foremani)'' to read as 
follows:


Sec.  17.95   Critical habitat--fish and wildlife.

* * * * *
    (f) * * *
* * * * *
Magnificent Ramshorn (Planorbella magnifica)

    (1) Critical habitat units are depicted for Brunswick County, North 
Carolina, on the map in this entry.
    (2) Critical habitat does not include humanmade structures (such as 
buildings, aqueducts, runways, roads, and other paved areas) and the 
land on

[[Page 50823]]

which they are located existing within the legal boundaries on the 
effective date of this rule.
    (3) Data layers defining map units were created in a Geographic 
Information System (GIS), and critical habitat units were mapped using 
the U.S. Geological Survey's National Hydrography Dataset. 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 https://www.regulations.gov at Docket No. 
FWS-R4-ES-2022-0070, 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.
    (4) Unit 1: Orton Pond, Brunswick County, North Carolina.
    (i) Unit 1 consists of 688 acres (ac) (278 hectares (ha)) in an 
impounded section of Orton Creek in Brunswick County, North Carolina, 
approximately \1/2\ mile upstream from the confluence with the Cape 
Fear River and east of the town of Boiling Spring Lakes. Unit 1 is 
composed of lands in private ownership.
    (ii) Map of Units 1 and 2 follows:
BILLING CODE 4333-15-P
[GRAPHIC] [TIFF OMITTED] TP18AU22.001


[[Page 50824]]


    (5) Unit 2: Big Pond (Pleasant Oaks Pond), Brunswick County, North 
Carolina.
    (i) Unit 2 consists of 51 ac (21 ha) in an impounded section of 
Sand Hill Creek in Brunswick County, North Carolina, near the 
confluence with the Cape Fear River across from Campbell Island. Unit 2 
is composed of lands in private ownership.
    (ii) Map of Unit 2 is provided at paragraph (4)(ii) of this entry.
* * * * *

Martha Williams,
Director, U.S. Fish and Wildlife Service.
[FR Doc. 2022-17743 Filed 8-17-22; 8:45 am]
BILLING CODE 4333-15-C