Endangered and Threatened Wildlife and Plants; Endangered Species Status for South Llano Springs Moss, 25543-25557 [2023-08846]

Agencies

• Fish and Wildlife Service
• DEPARTMENT OF THE INTERIOR

[Federal Register Volume 88, Number 81 (Thursday, April 27, 2023)]
[Unknown Section]
[Pages 25543-25557]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-08846]



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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-R2-ES-2020-0015; FF09E21000 FXES1111090FEDR 234]
RIN 1018-BD20


Endangered and Threatened Wildlife and Plants; Endangered Species 
Status for South Llano Springs Moss

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), determine 
endangered species status under the Endangered Species Act of 1973 
(Act), as amended, for the South Llano springs moss (Donrichardsia 
macroneuron), an aquatic moss species from Edwards County, Texas. We 
are excluding the single unit of proposed critical habitat, and, 
therefore, no critical habitat is being designated for the South Llano 
springs moss. This rule adds the species to the List of Endangered and 
Threatened Plants and applies the protections of the Act to the 
species.

DATES: This rule is effective May 30, 2023.

ADDRESSES: This final rule is available on the internet at https://www.regulations.gov. Comments and materials we received, as well as 
supporting documentation we used in preparing this rule, are available 
for public inspection at https://www.regulations.gov at Docket No. FWS-
R2-ES-2020-0015.

FOR FURTHER INFORMATION CONTACT: Karen Myers, Field Supervisor, U.S. 
Fish and Wildlife Service, Austin Ecological Services Field Office, 
1505 Ferguson Lane, Austin, Texas; telephone 512-937-7371. 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 endangered 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 the 
South Llano springs moss meets the definition of an endangered species; 
therefore, we are listing it as such. Both listing a species as an 
endangered or threatened species and designating critical habitat can 
be completed only by issuing a rule through the Administrative 
Procedure Act rulemaking process.
    What this document does. This rule lists the South Llano springs 
moss (Donrichardsia macroneuron) as an endangered species under the 
Act. We are excluding the single proposed critical habitat unit 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 that increased groundwater 
pumping from the Edwards-Trinity aquifer that supplies water for the 
springs that the South Llano springs moss is dependent on, as well as 
flash floods, sedimentation, invasive plant species, a single 
population, small population size, and lack of genetic diversity, and 
cumulative impacts from these threats, pose threats to this plant 
species to the degree that listing it as an endangered species under 
the Act is warranted.
    Section 4(a)(3) of the Act requires the Secretary of the Interior 
(Secretary) to designate critical habitat concurrent with listing to 
the maximum extent prudent and determinable. Section 3(5)(A) of the Act 
defines critical habitat as (i) the specific areas within the 
geographical area occupied by the species, at the time it is listed, on 
which are found those physical or biological features (I) essential to 
the conservation of the species and (II) which may require special 
management considerations or protections; and (ii) specific areas 
outside the geographical area occupied by the species at the time it is 
listed, upon a determination by the Secretary that such areas are 
essential for the conservation of the species. Section 4(b)(2) of the 
Act states that the Secretary must make the designation on the basis of 
the best scientific data available and after taking into consideration 
the economic impact, the impact on national security, and any other 
relevant impacts of specifying any particular area as critical habitat.

Previous Federal Actions

    Please refer to the proposed listing and critical habitat rule (86 
FR 53609; September 28, 2021) for a detailed description of previous 
Federal actions concerning this species.

Summary of Changes From the Proposed Rule

    We reviewed the comments related to our proposed listing 
determination and critical habitat for the South Llano springs moss 
(see Summary of Comments and Recommendations, below) and completed our 
analysis of areas considered for exclusion under section 4(b)(2) of the 
Act. This final rule incorporates changes from our proposed listing and 
critical habitat rule (86 FR 53609; September 28, 2021) based on the 
exclusion analysis described in Exclusions Based on Other Relevant 
Impacts, below.
    Specifically, we have determined that the benefits of excluding 
critical habitat outweigh the benefits of inclusion. For a complete 
description of our exclusion analysis, see Consideration of Impacts 
under Section 4(b)(2) of the Act, below. Based on our analysis, we are 
excluding the Upper South Llano River Unit (0.48 acre (ac) (0.19 
hectares (ha))) of proposed critical habitat. As this was the only unit 
proposed for designation as critical habitat, no critical habitat is 
designated for this species in this rule.
    Because we are not designating critical habitat for this species, 
we present an abbreviated list of determinations under Required 
Determinations in this rule (see below). In that portion of this rule, 
we present only those determinations that apply to listing actions due 
to the Act's requirement that listing decisions be made ``solely on the 
basis of the best scientific and commercial data available'' (16 U.S.C. 
1533(b)(1)(A)), instead of the longer list of determinations that apply 
to critical habitat designations.

Supporting Documents

    A species status assessment (SSA) team prepared an SSA report for 
the South Llano springs moss. The SSA team was composed of Service 
biologists, in consultation with other species experts. The SSA report 
represents a compilation of the best

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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 four 
appropriate specialists regarding the SSA. We received one response. We 
also sent the SSA report to partners, including scientists with 
expertise regarding this species, for review. We received review from 
one partner (Texas Parks and Wildlife Department).

I. Final Listing Determination

Background

    The South Llano springs moss is an aquatic moss that grows on 
submerged or partially submerged rocks. The deep, loosely interwoven 
mats are blue-green to blackish-brown when shaded and yellow-green when 
exposed to full sun. Like all mosses, the South Llano springs moss 
forms clonal colonies of leaf-bearing stems.
    The South Llano springs moss has an extremely limited range: it has 
only been documented in two locations and is thought to be extirpated 
from one of those. The remaining extant site is from Seven Hundred 
Springs, on the South Llano River in Edwards County, Texas. The 
extirpated site, referred to as the Redfearn site, was about 5 
kilometers (km) (3.1 miles (mi)) downstream from Seven Hundred Springs 
in Kimble County, Texas, although the exact location is unknown. Both 
sites occur within the Edwards Plateau. Researchers visited 10 other 
springs in the Llano and South Llano River watersheds in 1978 and 1979 
but found no additional populations (Wyatt and Stoneburner 1980, pp. 
514, 516).
    The South Llano springs moss was discovered at Seven Hundred 
Springs in 1932 and was most recently confirmed there in 1979 (Wyatt 
and Stoneburner 1980, entire). When last observed in 1979, the South 
Llano springs moss was abundantly dispersed in the spring outflow, 
partially submerged in shaded areas within an area of about 10 by 100 
meters (m) (33 by 328 feet (ft)) between the springs and the river 
below on privately owned land (Wyatt and Stoneburner 1980, p. 516). 
Observation of the habitat from the opposite side of the river in 2017 
indicated that the habitat appears to be in excellent condition 
(Service 2017, entire). This is the best available information we have 
for this site; consequently, we consider the Seven Hundred Springs 
population to be extant. The South Llano springs moss was last 
documented at the Redfearn site in 1971. The two specimen labels from 
these collections state that they were collected ``1 mile south of 
Telegraph'' with one specimen collected on a dam and the other from 
limestone at the edge of the creek. On topographic maps, Telegraph is a 
location consisting of a single store that is not directly along the 
river; however, there is a road connecting Telegraph to the South Llano 
River with a bridge, and this may be the location from which Redfearn 
was measuring. Due to the vague location description, there is 
uncertainty around the exact location of the Redfearn site. In 2017, we 
conducted surveys along 5.7 km of the South Llano River, including the 
2.25 km in which we believe Redfearn collected his specimens. All 
aquatic moss species encountered were collected and a sample of each of 
the four species encountered was sent to a bryologist at the Missouri 
Botanical Garden for identification. None of the species collected were 
found to be the South Llano springs moss. This is the best available 
information we have for this site; consequently, we consider the 
Redfearn population to be extirpated. It is possible that the species 
does not occur anywhere else. However, few surveys for this species 
have been conducted. Consequently, it is possible that this species 
occurs elsewhere along Paint Creek or the South Llano River. The best 
available data indicate that only the Seven Hundred Springs population 
persists.
    A thorough review of the taxonomy, life history, and ecology of the 
South Llano springs moss is presented in the SSA report (version 1.1; 
Service 2023, entire).

Regulatory and Analytical Framework

Regulatory Framework

    Section 4 of the Act (16 U.S.C. 1533) and the implementing 
regulations in title 50 of the Code of Federal Regulations set forth 
the procedures for determining whether a species is an endangered 
species or a threatened species, issuing protective regulations for 
threatened species, and designating critical habitat for endangered and 
threatened species. In 2019, jointly with the National Marine Fisheries 
Service, the Service issued a final rule that revised the regulations 
in 50 CFR part 424 regarding how we add, remove, and reclassify 
endangered and threatened species and the criteria for designating 
listed species' critical habitat (84 FR 45020; August 27, 2019). On the 
same day, the Service also issued final regulations that, for species 
listed as threatened species after September 26, 2019, eliminated the 
Service's general protective regulations automatically applying to 
threatened species the prohibitions that section 9 of the Act applies 
to endangered species (84 FR 44753; August 27, 2019).
    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

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ameliorate the threats--on an individual, population, and species 
level. We evaluate each threat and its expected effects on the species, 
then analyze the cumulative effect of all of the threats on the species 
as a whole. We also consider the cumulative effect of the threats in 
light of those actions and conditions that will have positive effects 
on the species, such as any existing regulatory mechanisms or 
conservation efforts. The Secretary determines whether the species 
meets the definition of an ``endangered species'' or a ``threatened 
species'' only after conducting this cumulative analysis and describing 
the expected effect on the species now and in the foreseeable future.
    The Act does not define the term ``foreseeable future,'' which 
appears in the statutory definition of ``threatened species.'' Our 
implementing regulations at 50 CFR 424.11(d) set forth a framework for 
evaluating the foreseeable future on a case-by-case basis. The term 
``foreseeable future'' extends only so far into the future as the 
Services can reasonably determine that both the future threats and the 
species' responses to those threats are likely. In other words, the 
foreseeable future is the period of time in which we can make reliable 
predictions. ``Reliable'' does not mean ``certain''; it means 
sufficient to provide a reasonable degree of confidence in the 
prediction. Thus, a prediction is reliable if it is reasonable to 
depend on it when making decisions.
    It is not always possible or necessary to define 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.

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 our decision 
on whether the species should be listed 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 FWS-R2-ES-2020-0015 on https://www.regulations.gov.
    To assess South Llano springs moss' 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 the 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.
    Based on the conditions of the only known current and historical 
populations, the South Llano springs moss requires a constant flow of 
mineral-rich spring water or spring-fed river water over shallow 
limestone rocks. Seven Hundred Springs and the areas thought to contain 
the Redfearn sites are supported by spring flows within the Edwards-
Trinity aquifer and the South Llano River watershed (Seven Hundred 
Springs and Big Paint Springs). These springs have never ceased flowing 
in recorded history. Water from these springs emerges at a very 
consistent temperature and is rich in travertine minerals. Rocks and 
plants immersed in the upper South Llano River quickly become encrusted 
with travertine- or tufa-like mineral deposits, to an unusual degree 
not seen in most springs in the Edwards-Trinity aquifer (Service 2017, 
p. 2). Thus, it is possible that high mineral concentrations, or the 
precipitation of minerals from solution, could be requirements for the 
establishment and growth of South Llano springs moss individuals.
    The water temperature of Seven Hundred Springs was consistently 
21.5 degrees Celsius ([deg]C) (70.7 degrees Fahrenheit ([deg]F)) in 
June, and the pH ranged from 7.0 to 7.2 (Wyatt and Stoneburner 1980, p. 
516). The species occurred in both shaded and exposed niches at Seven 
Hundred Springs (Wyatt and Stoneburner 1980, p. 516). Associated 
vascular plant species included maidenhair fern (Adiantum capillus-
veneris), southern shield fern (Thelypteris kunthii), watercress 
(Nasturtium officinale), and members of the mint family (Lamiaceae) and 
composite family (Asteraceae) (Wyatt and Stoneburner 1980, p. 516). 
Associated moss species included Hygroamblystegium tenax and Eucladium 
verticillatum (Wyatt and Stoneburner 1980, p. 517).
    Mosses closely related to the South Llano springs moss reproduce 
both sexually and asexually. However, there is no evidence that sexual 
reproduction is occurring in the single remaining known site of 
occurrence, as no plants with female reproductive structures were 
observed in the wild population or during a 16-month propagation study 
in 1978 and 1979 (Wyatt and Stoneburner 1980, p. 517). The plants 
cultivated in captivity produced only male reproductive structures. It 
is possible that the known population may be a clone of a single or a 
few male individuals and that sexual reproduction is no longer possible 
for the species. Therefore, the South Llano springs moss has extremely 
low representation with one or just a few genetically identical 
individuals.
    In addition to the habitat requirements described above,

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sufficiently resilient populations of South Llano springs moss need to 
be large enough that local stochastic events do not eliminate all 
individuals, allowing the overall population to recover from any one 
event. The larger a population is, the greater the chances that a 
portion of the population will survive. The minimum viable population 
size is not known for this species. However, the geographic extent is 
provided from the observations of Wyatt and Stoneburner (1980, p. 516). 
When last observed, the South Llano springs moss grew in the spring 
outflow partially submerged in shaded areas within a 10-m (33-ft) zone 
between the springs and the river below (Wyatt and Stoneburner 1980, p. 
516). We assume that the population could be as large as the spring 
flow and substrate allow in this zone. The area occupied by a moss 
population is a practical surrogate for abundance, provided that it is 
understood that this does not address the number of genetically unique 
individuals. Since the South Llano springs moss occupies only a small 
area at one location, this species has no redundancy and would be 
unable to recolonize following a catastrophic event.
    Recruitment is also needed for populations to be adequately 
resilient. The colony at Seven Hundred Springs may be a clone of a 
single individual, or only male individuals, and is presumed incapable 
of sexual reproduction (Wyatt and Stoneburner 1980, p. 520). Unless 
female individuals are present, the colony of South Llano springs moss 
at Seven Hundred Springs can persist and grow only through vegetative 
budding or through the establishment of fragments that happen to lodge 
in suitable niches. These mats can expand to occupy new habitats while 
the portion that established earlier dies. An individual remains alive 
as long as old stems die no faster than new stems develop. The same 
individual could migrate back and forth through available habitats for 
an unlimited period of time, and it is not inconceivable that the 
individuals we see today arose from spores that germinated many 
thousands of years ago. For the species to persist, the recruitment of 
new individuals must equal or exceed mortality.
    The species' range may have been more extensive 10,000 years ago, 
and subsequently became restricted to this single location as the 
climate warmed and other springs periodically stopped flowing (Wyatt 
and Stoneburner 1980, pp. 519-520). To assess the climate changes that 
could affect this species into the future, we examined the climate 
parameters using both the representative concentration pathway (RCP) 
4.5 and RCP 8.5 scenarios to provide a range of projected values. These 
models predict that by 2074, climate changes could result in a 
reduction of aquifer recharge and an increased duration and severity of 
droughts and heavy rainfall, thereby increasing the threats of 
interrupted spring flows and flash floods. Annual precipitation is 
highly variable in central Texas, and severe, multi-year droughts 
occurred during the 1950s and from 2006 through 2012. During these 
historical periods of drought, only the largest springs along the South 
Llano River, including Seven Hundred Springs, continued flowing, but at 
lower rates. Prolonged drought in combination with increased pumping 
from the Edwards-Trinity aquifer could increase the probability of 
interrupted flows of these springs and, consequently, the extirpation 
or extinction of the South Llano springs moss. Despite the frequency of 
prolonged drought, the region is also subject to extremely heavy 
rainfall, often resulting from tropical storms in the Gulf of Mexico as 
well as the Pacific Ocean. All of these factors contribute to flash 
floods (high intensity, low duration floods) that can drastically 
change stream beds and the surrounding vegetation, potentially scouring 
the South Llano springs moss from its rock substrate along the edge of 
the stream, or burying it beneath deposits of silt, sand, and gravel.
    The amount of pumping from the Edwards-Trinity aquifer is one of 
the most important factors influencing storage in the aquifer and 
spring flows. Aquifer water levels are stable or have declined slightly 
over most of the Edwards-Trinity aquifer, but in some areas, heavy 
pumping has led to long-term declines in aquifer levels and diminished 
or interrupted spring flows (George et al. 2011, p. 35; Region F Water 
Planning Group 2015, pp. 1-34, 3-15; Plateau Region Water Planning 
Group 2016, pp. 7-11). These sources project relatively little growth 
in the human population in Edwards and Kimble Counties during the next 
50 years. Conversely, population growth is projected to increase for 
five central Texas counties, which include the metropolitan areas of 
San Antonio, New Braunfels, San Marcos, Austin, Round Rock, and 
Georgetown, by 32 percent between 2017 and 2037, and by 53 percent 
between 2017 and 2050 (Texas Demographic Center 2017, p. 1). It is 
reasonably foreseeable that increased pumping may occur from the 
Edwards-Trinity aquifer for transfer to other regions to supply 
increased municipal water demands. This increased pumping could reduce 
water storage in the Edwards-Trinity aquifer and spring flows in the 
South Llano River. Loss of spring flows, even for a short time, would 
likely reduce or extirpate the only known remaining population of the 
South Llano springs moss because the species requires constant 
immersion in flowing spring water to persist.
    The Upper Llano River Watershed Protection Plan (Broad et al. 2016, 
pp. 51, 64-66, 86) identifies increased runoff, evapotranspiration, and 
sediment loading as impacts to the upper Llano River watersheds due to 
the encroachment of woody species. Recharge into the Edwards-Trinity 
aquifer in Edwards County has been reduced during prior periods of 
vegetation loss from overgrazing, resulting in increased runoff and the 
drying of some smaller springs (Brune 1981, p. 173). Aquifer recharge 
may also have been reduced by the encroachment of brush into formerly 
grass-dominated uplands (South Llano Watershed Alliance 2012, p. 9; 
Broad et al. 2016, pp. 40-41, 51). Aquifer recharge would also be 
reduced by an increase in evapotranspiration, due to increased 
temperatures.
    Small populations are less able to recover from losses caused by 
random fluctuations in recruitment (demographic stochasticity) or 
variations in spring outflow (environmental stochasticity) (Service 
2015, p. 12). In addition to population size, it is likely that 
population density also influences population viability, as sexual 
reproduction, if it occurs at all in the species' current situation, 
requires male and female mosses to be in close proximity. Small, 
reproductively isolated populations are also susceptible to the loss of 
genetic diversity, to genetic drift, and to inbreeding (Barrett and 
Kohn 1991, pp. 3-30). The loss of genetic diversity may reduce the 
ability of a species or population to resist pathogens and parasites, 
to adapt to changing environmental conditions, or to colonize new 
habitats. The combined demographic and genetic consequences of small 
population sizes may reduce population recruitment, leading to even 
smaller populations and greater isolation, and further decreasing the 
viability of the species. These factors may already have contributed to 
the decline of the South Llano springs moss to its current state of 
extreme endemism in the upper South Llano River. All of the above 
stressors are exacerbated by the fact that the South Llano springs moss 
likely consists of only one small population. This species has an 
extremely low level of representation,

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no redundancy, and limited resiliency making it vulnerable to 
catastrophic events such as flash floods and droughts.
    We note that, by using the SSA framework to guide our analysis of 
the scientific information documented in the SSA report, we have not 
only analyzed individual effects on the species, but we have also 
analyzed their potential cumulative effects. We have considered the 
cumulative effects from climate change, aquifer recharge, population 
growth, and groundwater pumping on the spring flows on which the South 
Llano springs moss is dependent. We have also considered the risk of 
prolonged drought and increased flash floods due to climate change. We 
incorporate the cumulative effects into our SSA analysis when we 
characterize the current and future condition of the species. To assess 
the current and future condition of the 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 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.

Conservation Efforts and Regulatory Mechanisms

    We are not aware of any projects specifically dedicated to the 
conservation of the South Llano springs moss. However, all efforts to 
improve rangeland and vegetation management within the Edwards-Trinity 
Aquifer recharge zone, and within the upper South Llano River 
watershed, and all efforts to manage and conserve the Edwards-Trinity 
Aquifer itself, contribute to the uninterrupted flow of spring water 
and protection of this species' habitat. The Partners for Fish and 
Wildlife program has assisted several local landowners with conducting 
upland habitat restoration and management. The landowner of the Seven 
Hundred Springs property has worked with the Partners for Fish and 
Wildlife Program to conduct prescribed burning and restore 1,600 acres 
of upland native grassland habitat for migratory monarch butterflies.
Regulatory Mechanisms
    The continued existence of the South Llano springs moss requires 
the uninterrupted flow of groundwater from the Edwards-Trinity Aquifer 
at Seven Hundred Springs. In Texas, the use of groundwater is managed 
through the overlapping authorities of Regional Water Planning groups 
and Groundwater Management Areas established by the Texas Water 
Development Board and by Groundwater Conservation Districts established 
by either the Texas Legislature or the Texas Commission on 
Environmental Quality. The hydrologic basin that supplies the springs 
of the South Llano River lies within Regional Water Planning regions F 
(32 counties, including Kimble) and J Plateau (6 counties, including 
Edwards). The Hydrologic Unit Code (HUC)-12 watersheds (sub-watersheds) 
of the upper South Llano River occur in four Groundwater Conservation 
Districts: Real-Edwards Conservation and Reclamation District, Kimble 
County Groundwater Conservation District, Sutton County Underground 
Water Conservation District, and Headwaters Underground Water 
Conservation District. These districts lie within Groundwater 
Management Area 7, which has established a desired future condition 
limiting average drawdown of the Edwards-Trinity aquifer to 2.1 m (7 
ft). Therefore, if this limit on aquifer drawdown is not exceeded, we 
do not expect any interruptions to the flow of water at Seven Hundred 
Springs.

Summary of Comments and Recommendations

    In the proposed rule published on September 28, 2021 (86 FR 53609), 
we requested that all interested parties submit written comments on the 
proposal by November 29, 2021. We also contacted appropriate Federal 
and State agencies, scientific experts and organizations, and other 
interested parties and invited them to comment on the proposal. A 
newspaper notice inviting general public comment was published in the 
Junction Eagle. We did not receive any requests for a public hearing. 
All substantive information received during comment periods has either 
been incorporated directly into this final determination or is 
addressed below.

Peer Reviewer Comments

    As discussed in Supporting Documents, above, we received comments 
from one peer reviewer. We reviewed the comments we received from the 
peer reviewer for substantive issues and new information regarding the 
information contained in the SSA report (version 1.1; Service 2023, 
entire). The peer reviewer generally concurred with our methods and 
conclusions and did not provide any additional information or 
substantive comments.

Comments From States

    (1) Comment: We received a comment from the State of Texas stating 
that the Service lacks sufficient data on status, trends, and threats 
to warrant listing the South Llano springs moss as an endangered 
species or to designate critical habitat.
    Our Response: We are required to make listing determinations based 
on the best scientific and commercial data available at the time of our 
rulemaking. In our September 28, 2021, proposed rule (86 FR 53609) and 
in this final rule, we considered the best scientific and commercial 
data available regarding the South Llano springs moss to evaluate the 
species' potential status under the Act. Even though the species was 
last confirmed to be present in 1979, the best available information 
indicates the species is extant because the habitat remains intact and 
there has been no interruption to spring flow since that time. In our 
SSA, we document ongoing threats to the only known location of the 
species. We solicited peer review of our evaluation of the available 
data, and the peer reviewer who responded supports our analysis. In 
making a listing decision, we are not required to document a decline in 
species abundance, but rather document threats to the species and the 
risks these threats pose to the survival of the species. To date, we 
have been unable to access this location to conduct surveys, but we 
would welcome the opportunity to do so. Science is a cumulative 
process, and the body of knowledge is ever-growing. In light of this, 
we will always take new research into consideration.
    Based on the best scientific and commercial data available, in this 
rule, we list the South Llano springs moss as an endangered species 
under the Act. We are excluding the single proposed critical habitat 
unit for the species (for more information, see our exclusion analysis 
under Exclusions Based on Other Relevant Impacts, below).

Public Comments

    (2) Comment: One commenter stated that the listing of the South 
Llano springs moss would affect the ability of the landowner to use 
their private property and would require the landowner to bear costs 
associated with the protection of the species.
    Our Response: When a plant species is listed, owners of private 
property where the species occurs are not obligated to incur any costs 
related to the species' conservation or alter current

[[Page 25548]]

land management. The presence of a listed species on privately owned 
property does not affect land ownership, establish any restrictions on 
use of or access to the designated areas, or establish specific land 
management standards or prescriptions. Additionally, the presence of a 
listed species does not allow the government or public to access 
private lands.
    The Act's section 9 prohibitions apply to the import and export, 
removal and reduction to possession, interstate or foreign commerce, 
and sale or offer for sale in interstate or foreign commerce of 
endangered plants. The prohibition on removal and reduction to 
possession of endangered plants applies to removing and reducing to 
possession, and maliciously damaging or destroying, the species on 
areas under Federal jurisdiction, not on private lands. That 
prohibition also applies to removing, cutting, digging up, or damaging 
or destroying the species on any other area in knowing violation of any 
State (in this case, Texas) law or regulation or in the course of any 
violation of a State criminal trespass law.
    Section 7 of the Act does require Federal agencies to review the 
projects they fund, regulate, or carry out, such as federally funded 
highways and federally regulated pipelines and powerlines, to assess 
their effects on listed plants that occur on private lands. Through 
consultation with the Service, such projects may be modified to avoid 
or reduce effects to listed plants. Programs are available to aid 
interested landowners in the voluntary conservation of listed species. 
These programs may provide technical or financial assistance and may be 
requested from a local Service field office.
    (3) Comment: One commenter stated that the Service lacks the 
authority to regulate intrastate species.
    Our Response: We have the legal authority to regulate intrastate 
species. Numerous Federal appellate courts have held that regulation of 
purely intrastate species is an essential part of the Act's regulatory 
scheme. See San Luis & Delta-Mendota Water Authority v. Salazar, 638 
F.3d 1163 (9th Cir. 2011); Alabama-Tombigbee Rivers Coalition v. 
Kempthorne, 477 F.3d 1250 (11th Cir. 2007); GDF Realty Investments, 
LTD. v. Norton, 326 F.3d 622 (5th Cir. 2003); Gibbs v. Babbitt, 214 
F.3d 483 (4th Cir 2000); and Nat'l Ass'n of Home Builders v. Babbitt, 
130 F.3d 1041 (D.C.Cir. 1997). In particular, the Fifth Circuit Court 
of Appeals (the Fifth Circuit includes Texas) has held that regulation 
of purely intrastate species ``is an essential part of'' the Act's 
larger regulatory scheme (GDF Realty, 326 F.3d at 640).
    (4) Comment: One commenter stated that the proposed rule would 
designate much of the Edwards Aquifer as critical habitat.
    Our Response: We proposed a critical habitat designation only in 
the immediate vicinity of Seven Hundred Springs, an area of 0.48 ac 
(0.19 ha). We have determined that the benefits of excluding this 
single unit of critical habitat outweigh the benefits of including it, 
so we are excluding this single 0.48-ac area from critical habitat 
designation (for more information, see our exclusion analysis under 
Exclusions Based on Other Relevant Impacts, below). As a result, no 
critical habitat is being designated for the South Llano springs moss 
in this rule.
    (5) Comment: Two commenters expressed concerns that the listing of 
the South Llano springs moss would stop or reduce groundwater pumping 
from the Edwards aquifer.
    Our Response: Nothing in this rule requires a reduction or stoppage 
of groundwater pumping from the Edwards aquifer. See our response to 
(2) Comment, above. As we state there, section 7 of the Act requires 
Federal agencies to review the projects they fund, regulate, or carry 
out, such as federally funded highways and federally regulated 
pipelines and powerlines, to assess their effects on listed plants. 
Although increased pumping from the Edwards-Trinity aquifer could 
potentially pose a threat to the species' survival, especially if 
combined with prolonged drought, pumping from this aquifer is not 
regulated by the Federal Government and is unlikely to have a Federal 
nexus.
    (6) Comment: One commenter stated that the economic and societal 
costs from listing the South Llano springs moss outweigh the extinction 
of this species.
    Our Response: Although we may consider economic impacts from a 
critical habitat designation, the decision on whether or not to list a 
species under the Act must rely solely on the best available scientific 
and commercial data (see 16 U.S.C. 1533(b)(1)(A)), without 
consideration of economic or societal costs.
    (7) Comment: One comment stated that the proposed rule did not 
provide adequate alternatives through a National Environmental Policy 
Act (NEPA; 42 U.S.C. 4321 et seq.) analysis.
    Our Response: It is our position that, outside the jurisdiction of 
the U.S. Court of Appeals for the Tenth Circuit, we do not need to 
prepare environmental analyses pursuant to NEPA in connection with 
regulations adopted pursuant to section 4(a) of 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)).
    (8) Comment: One commenter stated that the Service should specify 
conservation measures for the species.
    Our Response: The Act does not require this rule to specify 
conservation measures for the species. When we list a species as 
endangered or threatened under the Act, we first propose it as such, 
then we evaluate new information received through the public comment 
process, then we make a final determination through a final rule. For 
the South Llano springs moss, we have determined the species is in 
danger of extinction. During the rulemaking process, we developed a 
recovery outline that will be used as the foundation of a recovery plan 
following listing. The recovery outline will be posted to our 
Environmental Conservation Online System (ECOS) website (https://ecos.fws.gov/ecp/) within 30 days after this final listing rule is 
published. The recovery outline presents a preliminary conservation 
strategy that will guide recovery actions until the full recovery plan 
is available. We then prepare a draft recovery plan, with the goal of 
completing it within 18 months of the publication of the final listing 
rule. We will post the draft recovery plan to ECOS when it is ready and 
provide a 60-day public review and comment period. The draft recovery 
plan will contain site-specific management actions needed for recovery, 
objective and measurable recovery criteria, and estimates of time and 
cost needed for recovery. Based on public and peer review comments, we 
will then prepare a final recovery plan, with a goal of completing it 
within 1 year after completing the draft recovery plan. We will also 
prepare a recovery implementation strategy, which will contain step-
down activities or projects needed to implement the recovery actions 
described in the recovery plan.
    (9) Comment: One commenter recommended that we designate additional 
unoccupied critical habitat downstream from Seven Hundred Springs.
    Our Response: We have the ability to designate areas that are not 
occupied by the species (i.e., unoccupied areas) as critical habitat if 
they possess one or more of the physical and biological features that 
are essential for the

[[Page 25549]]

conservation of the species. While we find that the species needs 
additional populations in more locations in order to recover to the 
point of no longer needing the protections of the Act, we do not 
possess sufficient data to demonstrate that any other areas exist that 
possess habitat essential for the conservation of South Llano springs 
moss.

Determination of South Llano Springs Moss'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 an endangered species or a 
threatened species. The Act defines an ``endangered species'' as a 
species in danger of extinction throughout all or a significant portion 
of its range, and a ``threatened species'' as a species likely to 
become an endangered species within the foreseeable future throughout 
all or a significant portion of its range. The Act requires that we 
determine whether a species meets the definition of endangered species 
or threatened species because of any of the following factors: (A) The 
present or threatened destruction, modification, or curtailment of its 
habitat or range; (B) overutilization for commercial, recreational, 
scientific, or educational purposes; (C) disease or predation; (D) the 
inadequacy of existing regulatory mechanisms; or (E) other natural or 
manmade factors affecting its continued existence.

Status Throughout All of Its Range

    After evaluating threats to the species and assessing the 
cumulative effect of the threats under the Act's section 4(a)(1) 
factors, we are listing the South Llano springs moss as an endangered 
species throughout all of its range. Only two very small populations of 
South Llano springs moss have been documented, which were last observed 
in 1971 and 1979. One is now extirpated, and the other is restricted to 
a 10-by-100-m (33-by-328-ft) zone between Seven Hundred Springs and the 
South Llano River (Wyatt and Stoneburner 1980, p. 516). Therefore, the 
species has an extremely low level of representation, and no 
redundancy, making it vulnerable to catastrophic events such as flash 
floods and droughts. During historical droughts, such as in the 1950s 
and 2006-2012, many regional springs ceased flowing, and the flow of 
Seven Hundred Springs was greatly reduced. Projected climate changes 
include an increased frequency, duration, and severity of droughts 
(Factor E), thereby increasing the risk of interrupting the flow of 
Seven Hundred Springs and the desiccation and mortality of this 
obligately aquatic moss (Factor A). The amount of pumping from the 
Edwards-Trinity aquifer is one of the most important factors 
influencing storage in the aquifer and the spring flows on which the 
South Llano springs moss relies. Groundwater pumping is likely to 
increase as the human population grows and as the severity and duration 
of droughts increases. Prolonged drought (Factor E), in combination 
with increased pumping from the Edwards-Trinity aquifer (Factor E), 
further increase the probability of interrupting the flow of Seven 
Hundred Springs (Factor A) and, consequently, the probability of 
extinction of the South Llano springs moss.
    The South Llano springs moss has little or no genetic diversity 
(Factor E) because this species likely consists of clones of one or a 
few male individuals and is no longer capable of sexual reproduction 
(Factor E). Consequently, the species has very low representation and 
likely has very little ability to adapt to environmental changes. In 
addition, the South Llano springs moss has poor redundancy because 
there is only one small population remaining. One future drought event 
that reduces the flow of Seven Hundred Springs could result in the 
extirpation of this species.
    We find that the South Llano springs moss is presently in danger of 
extinction throughout its entire range based on the one small 
population that is likely genetically compromised. This status puts the 
species on the brink of extinction where normal stochastic events, such 
as drought, flooding, or a human-caused drop in the aquifer level, 
could lead to further decline or loss of the species entirely. The only 
other known population has not been observed since 1971 and is 
considered likely extirpated. This one remaining population could be 
affected by a variety of threats acting in combination to reduce the 
overall viability of the species. The risk of extinction is high 
because the remaining population is small, with no known potential for 
natural recolonization. We find that a threatened species status is not 
appropriate for the South Llano springs moss because of the species' 
current precarious condition due to its contracted range, small 
population size, and likely compromised genetics, and because these 
stressors are severe, ongoing, and expected to continue into the 
future.
    Therefore, after assessing the best available information, we 
determine that the South Llano springs moss is in danger of extinction 
throughout all of its range.

Status Throughout a Significant Portion of Its Range

    Under the Act and our implementing regulations, a species may 
warrant listing if it is in danger of extinction or likely to become so 
in the foreseeable future throughout all or a significant portion of 
its range. We have determined that the South Llano springs moss is in 
danger of extinction throughout all of its range and accordingly did 
not undertake an analysis of any significant portions of its range. 
Because the South Llano springs moss 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), 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 available scientific and commercial 
information indicates that the South Llano springs moss meets the Act's 
definition of an endangered species. Therefore, we are listing the 
South Llano springs moss as an endangered species in accordance with 
sections 3(6) and 4(a)(1) of the Act.

Available Conservation Measures

    Conservation measures provided to species listed as endangered or 
threatened species under the Act include recognition as a listed 
species, planning and implementation of 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, 
including the Service, and the prohibitions against certain activities 
are discussed, in part, below.
    The primary purpose of the Act is the conservation of endangered 
and threatened species and the ecosystems upon which they depend. The 
ultimate goal of such conservation efforts is the recovery of these 
listed species, so that they no longer need the protective measures of 
the Act. Section 4(f) of the Act calls for the Service to develop and 
implement recovery plans for the

[[Page 25550]]

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 ECOS as they are completed (https://ecos.fws.gov/ecp/), or from our 
Austin Ecological Services Field Office (see FOR FURTHER INFORMATION 
CONTACT).
    Implementation of recovery actions generally requires the 
participation of a broad range of partners, including other Federal 
agencies, States, Tribes, nongovernmental organizations, businesses, 
and private landowners. Examples of recovery actions include habitat 
restoration (e.g., restoration of native vegetation), research, captive 
propagation and reintroduction, and outreach and education. The 
recovery of many listed species cannot be accomplished solely on 
Federal lands because their range may occur primarily or solely on non-
Federal lands. To achieve recovery of these species requires 
cooperative conservation efforts on private, State, and Tribal lands.
    Once this species is listed (see DATES, above), funding for 
recovery actions may be available from a variety of sources, including 
Federal budgets, State programs, and cost-share grants for non-Federal 
landowners, the academic community, and nongovernmental organizations. 
In addition, pursuant to section 6 of the Act, the State of Texas will 
be eligible for Federal funds to implement management actions that 
promote the protection or recovery of the South Llano springs moss. 
Information on our grant programs that are available to aid species 
recovery can be found at: https://www.fws.gov/service/financial-assistance.
    Please let us know if you are interested in participating in 
recovery efforts for the South Llano springs moss. Additionally, we 
invite you to submit any new information on this species whenever it 
becomes available and any information you may have for recovery 
planning purposes (see FOR FURTHER INFORMATION CONTACT).
    Section 7(a) of the Act requires Federal agencies to evaluate their 
actions with respect to any species that is listed as an endangered or 
threatened species and with respect to its critical habitat, if any is 
designated. Regulations implementing this interagency cooperation 
provision of the Act are codified at 50 CFR part 402. Section 7(a)(2) 
of the Act requires Federal agencies to ensure that activities they 
authorize, fund, or carry out are not likely to jeopardize the 
continued existence of any endangered or threatened species or destroy 
or adversely modify its critical habitat. If a Federal action may 
affect a listed species or its critical habitat, the responsible 
Federal agency must enter into consultation with us.
    Federal agency actions within the species' habitat that may require 
conference, consultation, or both as described in the preceding 
paragraph include management and conservation projects conducted on 
private lands with support from the Service's Partners for Fish and 
Wildlife Program; issuance of section 404 Clean Water Act (33 U.S.C. 
1251 et seq.) permits by the U.S. Army Corps of Engineers; construction 
and maintenance of roads or highways by the Federal Highway 
Administration; construction and maintenance of railways by the Federal 
Railroad Administration; and discharge permits from the Environmental 
Protection Agency.
    The Act and its implementing regulations set forth a series of 
general prohibitions and exceptions that apply to endangered plants. 
The prohibitions of section 9(a)(2) of the Act, codified at 50 CFR 
17.61, make it illegal for any person subject to the jurisdiction of 
the United States to: Import or export; remove and reduce to possession 
from areas under Federal jurisdiction; maliciously damage or destroy on 
any such area; remove, cut, dig up, or damage or destroy on any other 
area in knowing violation of any law or regulation of any State or in 
the course of any violation of a State criminal trespass law; deliver, 
receive, carry, transport, or ship in interstate or foreign commerce, 
by any means whatsoever and in the course of a commercial activity; or 
sell or offer for sale in interstate or foreign commerce an endangered 
plant. Certain exceptions apply to employees of the Service, other 
Federal land management agencies, and State conservation agencies.
    We may issue permits to carry out otherwise prohibited activities 
involving endangered plants under certain circumstances. Regulations 
governing permits are codified at 50 CFR 17.62. With regard to 
endangered plants, a permit may be issued for scientific purposes or 
for enhancing the propagation or survival of the species. 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 final listing 
on proposed and ongoing activities within the range of a listed 
species. Based on the best available information, the following actions 
are unlikely to result in a violation of section 9, if these activities 
are carried out in accordance with existing regulations and permit 
requirements; this list is not comprehensive:
    (1) Recreational use of the streams, such as fishing, swimming, and 
canoeing, as these activities normally take place in the river or on 
the river bank and not in the spring itself; and
    (2) Normal residential landscaping activities, as these activities 
do not take place in the spring, nor do they affect the quantity or 
quality of water in the spring.
    Based on the best available information, the following activities 
may potentially result in a violation of section 9 of the Act if they 
are not authorized in accordance with applicable law; this list is not 
comprehensive:
    (1) Removing, cutting, digging up, or damaging or destroying the 
South Llano springs moss in knowing violation of any law or regulation 
of the State of Texas or in the course of any violation of a State 
criminal trespass law;

[[Page 25551]]

    (2) Importing the South Llano springs moss into, or exporting it 
from, the United States;
    (3) Delivering, receiving, carrying, transporting, or shipping the 
South Llano springs moss in interstate or foreign commerce, by any 
means and in the course of a commercial activity; and
    (4) Selling or offering the South Llano springs moss for sale in 
interstate or foreign commerce.
    Questions regarding whether specific activities would constitute a 
violation of section 9 of the Act should be directed to the Austin 
Ecological Services Field Office (see FOR FURTHER INFORMATION CONTACT).

II. Critical Habitat

Background

    Section 4(a)(3) of the Act requires that, to the maximum extent 
prudent and determinable, we designate a species' critical habitat 
concurrently with listing the species. Critical habitat is defined in 
section 3 of the Act as:
    (1) The specific areas within the geographical area occupied by the 
species, at the time it is listed in accordance with the Act, on which 
are found those physical or biological features
    (a) Essential to the conservation of the species, and
    (b) Which may require special management considerations or 
protection; and
    (2) Specific areas outside the geographical area occupied by the 
species at the time it is listed, upon a determination that such areas 
are essential for the conservation of the species.
    Our regulations at 50 CFR 424.02 define the geographical area 
occupied by the species as an area that may generally be delineated 
around species' occurrences, as determined by the Secretary (i.e., 
range). Such areas may include those areas used throughout all or part 
of the species' life cycle, even if not used on a regular basis (e.g., 
migratory corridors, seasonal habitats, and habitats used periodically, 
but not solely by vagrant individuals).
    This critical habitat designation was proposed when the regulations 
defining ``habitat'' (85 FR 81411; December 16, 2020) and governing the 
4(b)(2) exclusion process for the Service (85 FR 82376; December 18, 
2020) were in place and in effect. However, those two regulations have 
been rescinded (87 FR 37757; June 24, 2022, and 87 FR 43433; July 21, 
2022) and no longer apply to any designations of critical habitat. 
Therefore, for this final rule designating critical habitat for the 
South Llano springs moss, we apply the regulations at 424.19 and the 
2016 Joint Policy on 4(b)(2) exclusions (81 FR 7226; February 11, 
2016).
    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.
    Section 4 of the Act requires that we designate critical habitat on 
the basis of the best scientific data available. Further, our Policy on 
Information Standards Under the Endangered Species Act (published in 
the Federal Register on July 1, 1994 (59 FR 34271)), the Information 
Quality Act (section 515 of the Treasury and General Government 
Appropriations Act for Fiscal Year 2001 (Pub. L. 106-554; H.R. 5658)), 
and our associated Information Quality Guidelines provide criteria, 
establish procedures, and provide guidance to ensure that our decisions 
are based on the best scientific data available. They require our 
biologists, to the extent consistent with the Act and with the use of 
the best scientific data available, to use primary and original sources 
of information as the basis for recommendations to designate critical 
habitat.
    When we are determining which areas should be designated as 
critical habitat, our primary source of information is generally the 
information from the SSA report and information developed during the 
listing process for the species. Additional information sources may 
include any generalized conservation strategy, criteria, or outline 
that may have been developed for the species; the recovery plan for the 
species; articles in peer-reviewed journals; conservation plans 
developed by States and counties; scientific status surveys and 
studies; biological assessments; other unpublished materials; or 
experts' opinions or personal knowledge.
    Habitat is dynamic, and species may move from one area to another 
over time. We recognize that critical habitat designated at a 
particular point in time may not include all of the habitat areas that 
we may later determine are necessary for the recovery of the species. 
For these reasons, a critical habitat designation does not signal that 
habitat outside the designated area is unimportant or may not be needed 
for recovery of the species. Areas that are important to the 
conservation of the

[[Page 25552]]

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

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 
which may require special management considerations or protection. The 
regulations at 50 CFR 424.02 define ``physical or biological features 
essential to the conservation of the species'' as the features that 
occur in specific areas and that are essential to support the life-
history needs of the species, including, but not limited to, water 
characteristics, soil type, geological features, sites, prey, 
vegetation, symbiotic species, or other features. A feature may be a 
single habitat characteristic or a more complex combination of habitat 
characteristics. Features may include habitat characteristics that 
support ephemeral or dynamic habitat conditions. Features may also be 
expressed in terms relating to principles of conservation biology, such 
as patch size, distribution distances, and connectivity. For example, 
physical features 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 South Llano springs moss from studies of the 
species' habitat, ecology, and life history as described below. 
Additional information can be found in the SSA report (Service 2023, 
entire; available at https://www.regulations.gov under Docket No. FWS-
R2-ES-2020-0015). We have determined that the following physical or 
biological features are essential to the conservation of South Llano 
springs moss:
    (1) The uninterrupted flow of spring water supplied by the Edwards-
Trinity aquifer within the South Llano watershed.
    (2) Relatively constant water temperature due to proximity to the 
point of spring outflow.
    (3) A substrate of calcareous or travertine rock not more than 15 
centimeters (cm) (6 inches (in)) below the surface of the water.
    (4) Contaminant and sediment levels that do not exceed the 
tolerance limits of South Llano springs moss and associated plant and 
animal species.

Special Management Considerations or Protection

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

Criteria Used To Identify Critical Habitat

    As required by section 4(b)(2) of the Act, we use the best 
scientific data available to designate critical habitat. In accordance 
with the Act and our implementing regulations at 50 CFR 424.12(b), we 
review available information pertaining to the habitat requirements of 
the species and identify specific areas within the geographical area 
occupied by the species at the time of listing and any specific areas 
outside the geographical area occupied by the species to be considered 
for designation as critical habitat. We are not designating any areas 
outside the geographical area occupied by the species because we have 
not identified any unoccupied areas that meet the definition of 
critical habitat. While we acknowledge that the conservation of the 
species will depend on increasing the number of sites, we are not aware 
of any other area that has habitat suitable to support the species. 
Therefore, we are unable at this time to identify any specific 
unoccupied areas that are essential to the species' conservation. For 
an area to be considered essential unoccupied habitat, we must have 
reasonable certainty both that the area will contribute to the 
conservation of the species and that the area contains one or more of 
the physical or biological features essential to the conservation of 
the species. The exact location of the Redfearn site is unknown, and, 
although there are a number of other large springs emerging from the 
Edwards-Trinity aquifer, it is unknown if these sites would be 
biologically suitable for the species. In addition, there is 
uncertainty that the species could be transplanted successfully if 
suitable sites existed for reintroduction.
    In summary, for areas within the geographic area occupied by the 
species at the time of listing, we delineated

[[Page 25553]]

critical habitat unit boundaries by evaluating the area of spring flow 
and submerged limestone within the geographic area occupied at the time 
of listing. We delineated one critical habitat unit that we determined 
to be occupied at the time of listing (i.e., currently occupied) and 
that contains one or more of the physical or biological features that 
are essential to support life-history processes of the species.
    As a result of our exclusion analysis (see Exclusions Based on 
Other Relevant Impacts, below), we are not designating critical habitat 
for this species.

Final Critical Habitat Designation

    We are not designating critical habitat for South Llano springs 
moss (see Exclusions Based on Other Relevant Impacts, below).

Exemptions

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

    Section 4(a)(3)(B)(i) of the Act (16 U.S.C. 1533(a)(3)(B)(i)) 
provides that the Secretary shall not designate as critical habitat any 
lands or other geographical areas owned or controlled by the Department 
of Defense (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. In preparing this final rule, we have determined that the 
lands within the unit proposed as critical habitat for South Llano 
springs moss are not owned or managed by the DoD.

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 (hereafter, the ``2016 Policy''; 81 FR 7226, 
February 11, 2016), 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 the process that we undertook for 
taking into consideration each category of impacts and our analyses of 
the relevant impacts.

Exclusions Based on Economic Impacts

    Section 4(b)(2) of the Act and its implementing regulations require 
that we consider the economic impact that may result from a designation 
of critical habitat. In order to consider economic impacts, we prepared 
an incremental effects memorandum (IEM) and screening analysis which, 
together with our narrative and interpretation of effects, we consider 
our economic analysis of the critical habitat designation and related 
factors (IEc 2019, entire). The analysis, dated December 20, 2019, was 
made available for public review from September 28, 2021, through 
November 29, 2021 (see 86 FR 53609). The economic analysis addressed 
probable economic impacts of critical habitat designation for South 
Llano springs moss. Following the close of the comment period, we 
reviewed and evaluated all information submitted during the comment 
period that may pertain to our consideration of the probable 
incremental economic impacts of this critical habitat designation. 
Additional information relevant to the probable incremental economic 
impacts of critical habitat designation for the South Llano springs 
moss is summarized below and available in the screening analysis for 
the South Llano springs moss (IEc 2019, entire), available at https://www.regulations.gov.
    The screening analysis found that the critical habitat designation 
for the South Llano springs moss would be likely to result in annual 
incremental costs of approximately $8,100 per year above those incurred 
due to the species listing alone. These costs would occur as a result 
of additional administrative efforts to consider adverse modification 
of critical habitat during section 7 consultations. The designation of 
critical habitat is not expected to trigger additional requirements 
under State or local regulations, nor is the designation expected to 
have perceptional effects on markets.
    We considered the economic impacts of the critical habitat 
designation. The Secretary is not exercising her discretion to exclude 
any areas from this designation of critical habitat for the South Llano 
springs moss based on economic impacts.

Exclusions Based on Impacts on National Security and Homeland Security

    In preparing this rule, we have determined that the lands within 
the proposed designation of critical habitat for South Llano springs 
moss are not owned or managed by the DoD or Department of Homeland 
Security (DHS), and, therefore, we anticipate no impact on national 
security or homeland security. We also received no requests for 
exclusion from DoD or DHS. We did not receive any additional 
information during the public comment period for the proposed 
designation regarding impacts of the designation on national security 
or homeland security that would support excluding any specific areas 
from the final critical habitat designation under authority of section 
4(b)(2) and our implementing regulations at 50 CFR 424.19. Based on 
this information, the Secretary has determined not to exercise her 
discretion to exclude any areas from this designation of critical 
habitat based on impacts on national security or homeland security.

Exclusions Based on Other Relevant Impacts

    Under section 4(b)(2) of the Act, we consider any other relevant 
impacts, in addition to economic impacts and impacts on national 
security discussed above. We consider a number of factors, including 
whether there are permitted conservation plans covering the species in 
the area--such as HCPs, safe harbor agreements (SHAs), or candidate 
conservation agreements with assurances (CCAAs)--or whether there

[[Page 25554]]

are non-permitted conservation agreements and partnerships that would 
be encouraged by designation of, or exclusion from, critical habitat. 
In addition, we look at the existence of Tribal conservation plans and 
partnerships and consider the government-to-government relationship of 
the United States with Tribal entities. We also consider any social 
impacts that might occur because of the designation.
    When identifying the benefits of inclusion for an area, we consider 
the additional regulatory benefits that the area would receive due to 
the protection from destruction or adverse modification as a result of 
actions with a Federal nexus, the educational benefits of mapping 
essential habitat for recovery of the listed species, and any benefits 
that may result from a designation due to State or Federal laws that 
may apply to critical habitat.
    In the case of the South Llano springs moss, the benefits of 
critical habitat include public awareness of the presence of the 
species and the importance of habitat protection, and, where a Federal 
nexus exists, increased habitat protection for the South Llano springs 
moss due to protection from destruction or adverse modification of 
critical habitat.
    When identifying the benefits of exclusion, we consider, among 
other things, whether exclusion of a specific area is likely to result 
in conservation, or in the continuation, strengthening, or 
encouragement of partnerships. Additionally, continued implementation 
of an ongoing management plan that provides equal to or more 
conservation than a critical habitat designation would reduce the 
benefits of including that specific area in the critical habitat 
designation.
    We evaluate the existence of a conservation plan when considering 
the benefits of inclusion. We consider a variety of factors, including, 
but not limited to, whether the plan is finalized; how it provides for 
the conservation of the essential physical or biological features; 
whether there is a reasonable expectation that the conservation 
management strategies and actions contained in a management plan will 
be implemented into the future; whether the conservation strategies in 
the plan are likely to be effective; and whether the plan contains a 
monitoring program or adaptive management to ensure that the 
conservation measures are effective and can be adapted in the future in 
response to new information.
    After identifying the benefits of inclusion and the benefits of 
exclusion, we carefully weigh the two sides to evaluate whether the 
benefits of exclusion outweigh those of inclusion. If our analysis 
indicates that the benefits of exclusion outweigh the benefits of 
inclusion, we then determine whether exclusion would result in 
extinction of the species. If exclusion of an area from critical 
habitat will result in extinction, we will not exclude it from the 
designation.
    Based on the public comments we received, and the best scientific 
data available, we evaluated whether lands in the critical habitat unit 
identified in the proposed rule were appropriate for exclusion from the 
final designation under section 4(b)(2) of the Act. If the analysis 
indicates that the benefits of excluding lands from the final 
designation outweigh the benefits of designating those lands as 
critical habitat, then the Secretary may exercise her discretion to 
exclude the lands from the final designation. In the paragraphs below, 
we provide a detailed balancing analysis of the critical habitat being 
excluded under section 4(b)(2) of the Act.
Non-Permitted Conservation Plans, Agreements, or Partnerships
    We sometimes exclude specific areas from critical habitat 
designations based in part on the existence of private or other non-
Federal conservation plans or agreements and their attendant 
partnerships. A conservation plan or agreement describes actions that 
are designed to provide for the conservation needs of a species and its 
habitat, and may include actions to reduce or mitigate negative effects 
on the species caused by activities on or adjacent to the area covered 
by the plan. Conservation plans or agreements can be developed by 
private entities with no Service involvement, or in partnership with 
the Service, sometimes through the permitting process under Section 10 
of the Act.
    When we undertake a discretionary section 4(b)(2) analysis, we 
evaluate a variety of factors to determine how the benefits of any 
exclusion and the benefits of inclusion are affected by the existence 
of private or other non-Federal conservation plans or agreements and 
their attendant 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 NEPA 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.
    (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.
    Upper South Llano River Unit (also known as Seven Hundred 
Springs)--We proposed to designate critical habitat identified as the 
``Upper South Llano River Unit'' (0.48 ac (0.19 ha)) on privately owned 
lands where the South Llano springs moss occurs.
    Our Partners for Fish and Wildlife Program has a history of working 
with the private landowner on whose property Seven Hundred Springs 
occurs and where critical habitat was proposed. Since 2013, we have 
completed five habitat improvement projects in partnership with the 
private landowner. These projects included prescribed burning on over 
1,000 ac plus mechanical restoration on 1,126 ac of upland native 
grassland habitat that benefit the South Llano springs moss by reducing 
runoff, flash flooding, and soil erosion, and increasing infiltration 
of rainwater into the aquifer that supplies Seven Hundred Springs. 
These benefits to the springs help ensure the physical and biological 
features necessary for the persistence of the species, including 
uninterrupted flow of spring water and sediment levels that do not 
exceed the tolerance limits of the South Llano springs moss.

Benefits of Inclusion

    The benefits of including lands in critical habitat can be 
regulatory, can be educational, or can aid in recovery of

[[Page 25555]]

species as generally discussed above. We expect only minimal regulatory 
benefits from the designation of critical habitat for the South Llano 
springs moss. 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. 
The difference in the outcomes of the jeopardy analysis and the adverse 
modification analysis represents the regulatory benefits and costs of 
critical habitat. A critical habitat designation requires Federal 
agencies to consult on whether their activity would destroy or 
adversely modify critical habitat to the point where recovery could not 
be achieved. However, all proposed critical habitat is occupied by the 
species, and thus would require section 7 consultation for any project 
with a Federal nexus that may affect the South Llano springs moss. Any 
project that would destroy or adversely modify critical habitat would 
also jeopardize the continued existence of the species, since the 
species is entirely dependent upon Seven Hundred Springs for its 
survival. Additionally, as the proposed critical habitat is located 
entirely on private property, we foresee very few section 7 
consultations due to a lack of a Federal nexus. Any additional projects 
conducted by the Partners for Fish and Wildlife Program would be 
covered by a section 7 consultation. The rarity of section 7 
consultations results in very limited regulatory benefits for the 
designation of critical habitat in the proposed Upper South Llano River 
Unit. Given the anticipated rarity of section 7 consultation, the 
dependence on private conservation actions is more important.
    Another important benefit of including lands in a critical habitat 
designation is that it can serve to educate landowners, agencies, 
Tribes, and the public regarding the potential conservation value of an 
area, and this may focus and contribute to conservation efforts by 
other parties by clearly delineating areas of high conservation value 
for certain species. Any information about the South Llano springs moss 
and its habitat that reaches a wide audience, including other parties 
engaged in conservation activities, would be considered valuable. We 
expect the educational benefits to be especially limited in the 
proposed Upper South Llano River Unit, because it occurs entirely on 
private lands that are not open to the public. With limited regulatory 
and educational benefits likely as a result of designating critical 
habitat, we foresee no other tangible benefits to further recovery of 
the species, and so the benefits of inclusion are outweighed by the 
benefits of exclusion as further explained below.

Benefits of Exclusion

    The only known population of the South Llano springs moss is fully 
within private ownership, and, therefore, Federal agencies have no 
jurisdiction to manage its habitat. As a result, partnerships with and 
among private individuals, like the landowner of the proposed Upper 
South Llano River Unit, are the key to conserving the species through 
habitat conservation projects such as the Partners for Fish and 
Wildlife projects that have been completed near Seven Hundred Springs. 
Therefore, we find it is important to consider the potential benefits 
that will be realized by fostering positive relationships with the 
landowner if we exclude the area from critical habitat designation.
    Excluding the entirety of the proposed critical habitat, known as 
the Upper South Llano River Unit, would provide benefits through the 
continuance and strengthening of our effective cooperative relationship 
with the landowner to promote the conservation of the South Llano 
springs moss and its habitat. Since the South Llano springs moss occurs 
only in the privately owned Upper South Llano River Unit, continued 
conservation and recovery of this species is entirely dependent upon 
cooperation and coordination with the landowner. This landowner has 
worked with our Partners for Fish and Wildlife program in the past, and 
the aforementioned five habitat improvement projects accomplished in 
partnership with the private landowner since 2013 have benefited the 
South Llano springs moss and its habitat. The designation of critical 
habitat is anticipated to harm the previously cooperative working 
relationship that we have established with the landowner. We anticipate 
that continuing our cooperative relationship with the landowner will 
allow voluntary conservation work to continue, which will benefit the 
South Llano springs moss and its recovery.
    The South Llano springs moss and its habitat are expected to 
benefit substantially from voluntary landowner management actions that 
implement appropriate and effective conservation strategies. Where 
consistent with the discretion provided by the Act, it is beneficial to 
implement policies that provide positive incentives to private 
landowners to voluntarily conserve natural resources and that remove or 
reduce disincentives to conservation (Wilcove et al. 1998, entire; Bean 
2002, pp. 1-7). Thus, it is important for the South Llano springs 
moss's recovery to build on continued conservation activities such as 
these with a proven partner, and to provide positive incentives to the 
private landowner to implement voluntary conservation activities. These 
conservation actions help ensure the uninterrupted flow of spring water 
and sediment levels that do not exceed the tolerance limits of the 
South Llano springs moss, aiding the recovery of the species.
    The benefits of excluding this area from critical habitat will 
encourage the continued conservation, land management, and coordination 
between the landowner and the Service. Excluding the proposed Upper 
South Llano River Unit from critical habitat helps ensure the future 
conservation, research, and information sharing for the recovery of the 
South Llano springs moss.

Benefits of Exclusion Outweigh the Benefits of Inclusion

    We have determined that the benefits of exclusion of the proposed 
Upper South Llano River Unit from critical habitat designation outweigh 
the benefits of inclusion of the unit because maintaining a positive 
working relationship and partnership with the landowner is vital to the 
conservation and recovery of the species. The benefits of designating 
critical habitat for the moss are few since these lands are privately 
owned and thus lack a trigger for section 7 consultation for adverse 
modification of critical habitat unless a project with a Federal nexus 
is proposed. Additionally, all habitat within the proposed critical 
habitat unit is occupied, so any project with a Federal nexus would 
require consultation with us due to the listing of the species. Section 
9 of the Act provides few protections to listed plants, and protections 
to listed plants on private lands pertain only to prohibited actions 
conducted in knowing violation of any State law or regulation, or in 
violation of a State criminal trespass law. Without the presence of a 
Federal nexus which would require a consultation under section 7, the 
South Llano springs moss would have little to no protections. Since the 
only known population of this species occurs on this private land, the 
maintenance of a working relationship with the landowner is vital to 
the recovery and conservation of the species. Therefore, the benefits 
of

[[Page 25556]]

excluding this area from designation as critical habitat for the South 
Llano springs moss outweigh the benefits of inclusion.

Exclusion Will Not Result in Extinction of the Species

    We have determined that excluding all proposed critical habitat 
from designation will not result in the extinction of the species, nor 
hinder its recovery. If a Federal action or Federal permitting occurs 
that may affect the moss, the listing of South Llano springs moss will 
require evaluation under the jeopardy standard of section 7 of the Act, 
even absent the designation of critical habitat, and thus will protect 
the species against extinction. Accordingly, based on the above 
discussion, the Secretary is exercising her discretion to exclude the 
entirety of the proposed Upper South Llano River Unit (approximately 
0.48 ac (0.19 ha) of land) and, therefore, critical habitat for the 
moss will not be designated under section 4(b)(2) of the Act because 
the benefits of exclusion outweigh the benefits of inclusion and will 
not cause the extinction of the species.

Tribal Lands

    Several Executive Orders, Secretary's Orders, and policies concern 
working with Tribes. These guidance documents generally confirm our 
trust responsibilities to Tribes, recognize that Tribes have sovereign 
authority to control Tribal lands, emphasize the importance of 
developing partnerships with Tribal governments, and direct the Service 
to consult with Tribes on a government-to-government basis.
    A joint Secretary's Order that applies to both the Service and the 
National Marine Fisheries Service (NMFS)--Secretary's Order 3206, 
American Indian Tribal Rights, Federal-Tribal Trust Responsibilities, 
and the Endangered Species Act (June 5, 1997) (S.O. 3206)--is the most 
comprehensive of the various guidance documents related to Tribal 
relationships and Act implementation, and it provides the most detail 
directly relevant to the designation of critical habitat. In addition 
to the general direction discussed above, the appendix to S.O. 3206 
explicitly recognizes the right of Tribes to participate fully in any 
listing process that may affect Tribal rights or Tribal trust 
resources; this includes the designation of critical habitat. Section 
3(B)(4) of the appendix requires us to consult with affected Tribes 
when considering the designation of critical habitat in an area that 
may impact Tribal trust resources, Tribally owned fee lands, or the 
exercise of Tribal rights. That provision also instructs us to avoid 
including Tribal lands within a critical habitat designation unless the 
area is essential to conserve a listed species, and it requires us to 
evaluate and document the extent to which the conservation needs of the 
listed species can be achieved by limiting the designation to other 
lands.
    Our implementing regulations at 50 CFR 424.19 and the 2016 Policy 
are consistent with S.O. 3206. When we undertake a discretionary 
exclusion analysis under section 4(b)(2) of the Act, in accordance with 
S.O. 3206 we consult with any Tribe whose Tribal trust resources, 
tribally owned fee lands, or Tribal rights may be affected by including 
any particular areas in the designation. We evaluate the extent to 
which the conservation needs of the species can be achieved by limiting 
the designation to other areas and give great weight to Tribal concerns 
in analyzing the benefits of exclusion.
    However, S.O. 3206 does not override the Act's statutory 
requirement of designation of critical habitat. As stated above, we 
must consult with any Tribe when a designation of critical habitat may 
affect Tribal lands or resources. The Act requires us to identify areas 
that meet the definition of ``critical habitat'' (i.e., areas occupied 
at the time of listing that contain the essential physical or 
biological features that may require special management or protection 
and unoccupied areas that are essential to the conservation of a 
species), without regard to land ownership. While S.O. 3206 provides 
important direction, it expressly states that it does not modify the 
Secretary's statutory authority under the Act or other statutes.
    There are no Tribal lands or Tribal trust resources within the 
range of the South Llano springs moss.

Summary of Exclusions

    As discussed above, based on the information provided by entities 
seeking exclusion, as well as any additional public comments we 
received, we evaluated whether certain lands in the proposed critical 
habitat were appropriate for exclusion from final designation pursuant 
to section 4(b)(2) of the Act. We are not designating critical habitat 
for the South Llano springs moss; the area we proposed for critical 
habitat designation but that we are excluding in this rule is described 
in the table below.

           Table of Area Excluded From Critical Habitat Designation by Proposed Critical Habitat Unit
----------------------------------------------------------------------------------------------------------------
                                                                   Areas meeting the
                                                                 definition of critical    Areas excluded from
            Proposed unit                   Specific area          habitat, in acres      critical habitat,  in
                                                                       (hectares)           acres  (hectares)
----------------------------------------------------------------------------------------------------------------
1: Upper South Llano River...........  Seven Hundred Springs..              0.48 (0.19)              0.48 (0.19)
----------------------------------------------------------------------------------------------------------------

Required Determinations

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) in connection with regulations adopted pursuant to section 
4(a) of the Act. We have determined that environmental assessments and 
environmental impact statements, as defined under the authority of the 
National Environmental Policy Act (NEPA; 42 U.S.C. 4321 et seq.), need 
not be prepared in connection with listing a species as an endangered 
or threatened species under the Act. We published a notice outlining 
our reasons for this determination in the Federal Register on October 
25, 1983 (48 FR 49244). 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

[[Page 25557]]

readily acknowledge our responsibility to communicate meaningfully with 
Federally recognized Tribes on a government-to-government basis. In 
accordance with Secretary's 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. No Tribal lands 
or Tribal trust resources will be affected by this rule.

References Cited

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

Authors

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

List of Subjects in 50 CFR Part 17

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

Regulation Promulgation

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

PART 17--ENDANGERED AND THREATENED WILDLIFE AND PLANTS

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

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


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


Sec.  17.12  Endangered and threatened plants.

* * * * *
    (h) * * *

----------------------------------------------------------------------------------------------------------------
                                                                                          Listing citations and
         Scientific name              Common name        Where listed         Status         applicable rules
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
Mosses
 
Donrichardsia macroneuron.......  South Llano         Wherever found....  E              88 FR [insert Federal
                                   springs moss.                                          Register page where
                                                                                          the document begins],
                                                                                          4/27/2023.
----------------------------------------------------------------------------------------------------------------


Wendi Weber,
Acting Director, U.S. Fish and Wildlife Service.
[FR Doc. 2023-08846 Filed 4-26-23; 8:45 am]
BILLING CODE 4333-15-P