Endangered and Threatened Wildlife and Plants; Threatened Species Status With Section 4(d) Rule for Brawleys Fork Crayfish and Designation of Critical Habitat, 57292-57327 [2023-17666]
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Federal Register / Vol. 88, No. 161 / Tuesday, August 22, 2023 / Proposed Rules
DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
[Docket No. FWS–R4–ES–2023–0065;
FF09E21000; FXES1111090FEDR 234]
RIN 1018–BG18
Endangered and Threatened Wildlife
and Plants; Threatened Species Status
With Section 4(d) Rule for Brawleys
Fork Crayfish and Designation of
Critical Habitat
Fish and Wildlife Service,
Interior.
ACTION: Proposed rule.
AGENCY:
We, the U.S. Fish and
Wildlife Service (Service), propose to
list the Brawleys Fork crayfish
(Cambarus williami), a freshwater
crayfish species from Tennessee, as a
threatened species and designate critical
habitat under the Endangered Species
Act of 1973, as amended (Act). This
determination also serves as our 12month finding on a petition to list the
Brawleys Fork crayfish. After a review
of the best available scientific and
commercial information, we find that
listing the species is warranted.
Accordingly, we propose to list the
Brawleys Fork crayfish as a threatened
species with a rule issued under section
4(d) of the Act (‘‘4(d) rule’’). If we
finalize this rule as proposed, it would
add this species to the List of
Endangered and Threatened Wildlife
and extend the Act’s protections to the
species. We also propose to designate
critical habitat for the Brawleys Fork
crayfish under the Act. In total,
approximately 86.6 river miles (139.4
river kilometers) in Cannon, Rutherford,
and Warren Counties, Tennessee, fall
within the boundaries of the proposed
critical habitat designation. We also
announce the availability of a draft
economic analysis of the proposed
designation of critical habitat for
Brawleys Fork crayfish.
DATES: We will accept comments
received or postmarked on or before
October 23, 2023. Comments submitted
electronically using the Federal
eRulemaking Portal (see ADDRESSES,
below) must be received by 11:59 p.m.
eastern time on the closing date. We
must receive requests for a public
hearing, in writing, at the address
shown in FOR FURTHER INFORMATION
CONTACT by October 6, 2023.
ADDRESSES: You may submit comments
by one of the following methods:
(1) Electronically: Go to the Federal
eRulemaking Portal: https://
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SUMMARY:
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www.regulations.gov. In the Search box,
enter FWS–R4–ES–2023–0065, which is
the docket number for this rulemaking.
Then, click on the Search button. On the
resulting page, in the panel on the left
side of the screen, under the Document
Type heading, check the Proposed Rule
box to locate this document. You may
submit a comment by clicking on
‘‘Comment.’’
(2) By hard copy: Submit by U.S. mail
to: Public Comments Processing, Attn:
FWS–R4–ES–2023–0065, U.S. Fish and
Wildlife Service, MS: PRB/3W, 5275
Leesburg Pike, Falls Church, VA 22041–
3803.
We request that you send comments
only by the methods described above.
We will post all comments on https://
www.regulations.gov. This generally
means that we will post any personal
information you provide us (see
Information Requested, below, for more
information).
Availability of supporting materials:
Supporting materials, such as the
species status assessment report, are
available on the Service’s website at at
https://www.fws.gov/library/collections/
Brawleys-Fork-crayfish and at https://
www.regulations.gov in Docket No.
FWS–R4–ES–2023–0065. For the
proposed critical habitat designation,
the coordinates or plot points or both
from which the maps are generated are
included in the decision file for this
critical habitat designation and are
available at https://www.regulations.gov
at Docket No. FWS–R4–ES–2023–0065
and on the Service’s website at https://
www.fws.gov/library/collections/
Brawleys-Fork-crayfish.
FOR FURTHER INFORMATION CONTACT:
Daniel Elbert, Field Supervisor, U.S.
Fish and Wildlife Service, Tennessee
Ecological Services Field Office, 446
Neal Street, Cookeville, Tennessee,
38501; Telephone 931–254–9617.
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-ofcontact 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 in the foreseeable
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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 Brawleys Fork crayfish meets the
definition of a threatened species;
therefore, we are proposing to list it as
such and proposing a designation of its
critical habitat. Both listing a species as
an endangered or threatened species
and making a critical habitat
determination can be completed only by
issuing a rule through the
Administrative Procedure Act
rulemaking process (5 U.S.C. 551 et
seq.).
What this document does. We
propose to list the Brawleys Fork
crayfish as a threatened species with a
rule under section 4(d) of the Act, and
we propose the designation of critical
habitat for the species.
The basis for our action. Under the
Act, we may determine that a species is
an endangered or threatened species
because of any of five factors: (A) The
present or threatened destruction,
modification, or curtailment of its
habitat or range; (B) overutilization for
commercial, recreational, scientific, or
educational purposes; (C) disease or
predation; (D) the inadequacy of
existing regulatory mechanisms; or (E)
other natural or manmade factors
affecting its continued existence. We
have determined that Brawleys Fork
crayfish is threatened due to the
following threats: habitat loss and
degradation due to sedimentation and
water quality impairments from sources
including agricultural practices,
horticultural practices, and
urbanization; and instream modification
including impoundments, gravel
dredging, and channel alteration. Each
of the threats influencing Brawleys Fork
crayfish viability may be further
exacerbated by the effects of small,
isolated populations and the future
effects of climate change.
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
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it is listed, upon a determination by the
Secretary that such areas are essential
for the conservation of the species.
Section 4(b)(2) of the Act states that the
Secretary must make the designation on
the basis of the best scientific data
available and after taking into
consideration the economic impact, the
impact on national security, and any
other relevant impacts of specifying any
particular area as critical habitat.
Information Requested
We intend that any final action
resulting from this proposed rule will be
based on the best scientific and
commercial data available and be as
accurate and as effective as possible.
Therefore, we request comments or
information from other governmental
agencies, Native American Tribes, the
scientific community, industry, or any
other interested parties concerning this
proposed rule.
We particularly seek comments
concerning:
(1) The species’ biology, range, and
population trends, including:
(a) Biological or ecological
requirements of the species, including
habitat requirements for feeding,
breeding, and sheltering;
(b) Genetics and taxonomy;
(c) Historical and current range,
including distribution patterns and the
locations of any additional populations
of this species;
(d) Historical and current population
levels, and current and projected trends;
and
(e) Past and ongoing conservation
measures for the species, its habitat, or
both.
(2) Threats and conservation actions
affecting the species, including:
(a) Factors that may be affecting the
continued existence of the species,
which may include habitat modification
or destruction, overutilization, disease,
predation, the inadequacy of existing
regulatory mechanisms, or other natural
or manmade factors.
(b) Biological, commercial trade, or
other relevant data concerning any
threats (or lack thereof) to this species.
(c) Existing regulations or
conservation actions that may be
addressing threats to this species.
(3) Additional information concerning
the historical and current status of this
species.
(4) Information on regulations that
may be necessary and advisable to
provide for the conservation of the
Brawleys Fork crayfish and that we can
consider in developing a 4(d) rule for
the species. In particular, information
concerning the extent to which we
should include any of the section 9
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prohibitions in the 4(d) rule or whether
we should consider any additional
exceptions from the prohibitions in the
4(d) rule.
(5) Specific information on:
(a) The amount and distribution of
Brawleys Fork crayfish habitat;
(b) Any additional areas occurring
within the range of the species, Cannon,
Rutherford, and Warren Counties,
Tennessee, that should be included in
the designation because they (i) are
occupied at the time of listing and
contain the physical or biological
features that are essential to the
conservation of the species and that may
require special management
considerations, or (ii) are unoccupied at
the time of listing and are essential for
the conservation of the species; and
(c) Special management
considerations or protection that may be
needed in critical habitat areas we are
proposing, including managing for the
potential effects of climate change; and
(d) To evaluate the potential to
include areas not occupied at the time
of listing, we particularly seek
comments regarding whether occupied
areas are adequate for the conservation
of the species. Additionally, please
provide specific information regarding
whether or not unoccupied areas would,
with reasonable certainty, contribute to
the conservation of the species and
contain at least one physical or
biological feature essential to the
conservation of the species. We also
seek comments or information regarding
whether areas not occupied at the time
of listing qualify as habitat for the
species.
(6) Land use designations and current
or planned activities in the subject areas
and their possible impacts on proposed
critical habitat.
(7) Any probable economic, national
security, or other relevant impacts of
designating any area that may be
included in the final designation, and
the related benefits of including or
excluding specific areas.
(8) Information on the extent to which
the description of probable economic
impacts in the draft economic analysis
is a reasonable estimate of the likely
economic impacts and any additional
information regarding probable
economic impacts that we should
consider.
(9) Whether any specific areas we are
proposing for critical habitat
designation should be considered for
exclusion under section 4(b)(2) of the
Act, and whether the benefits of
potentially excluding any specific area
outweigh the benefits of including that
area under section 4(b)(2) of the Act. If
you think we should exclude any
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additional areas, please provide
information supporting a benefit of
exclusion.
(10) Whether we could improve or
modify our approach to designating
critical habitat in any way to provide for
greater public participation and
understanding, or to better
accommodate public concerns and
comments.
Please include sufficient information
with your submission (such as scientific
journal articles or other publications) to
allow us to verify any scientific or
commercial information you include.
Please note that submissions merely
stating support for, or opposition to, the
action under consideration without
providing supporting information,
although noted, do not provide
substantial information necessary to
support a determination. Section
4(b)(1)(A) of the Act directs that
determinations as to whether any
species is an endangered or a threatened
species must be made solely on the
basis of the best scientific and
commercial data available, and section
4(b)(2) of the Act directs that the
Secretary shall designate critical habitat
on the basis of the best scientific data
available.
You may submit your comments and
materials concerning this proposed rule
by one of the methods listed in
ADDRESSES. We request that you send
comments only by the methods
described in ADDRESSES.
If you submit information via https://
www.regulations.gov, your entire
submission—including any personal
identifying information—will be posted
on the website. If your submission is
made via a hardcopy that includes
personal identifying information, you
may request at the top of your document
that we withhold this information from
public review. However, we cannot
guarantee that we will be able to do so.
We will post all hardcopy submissions
on https://www.regulations.gov.
Comments and materials we receive,
as well as supporting documentation we
used in preparing this proposed rule,
will be available for public inspection
on https://www.regulations.gov.
Because we will consider all
comments and information we receive
during the comment period, our final
determinations may differ from this
proposal. Based on the new information
we receive (and any comments on that
new information), we may conclude that
the species is endangered instead of
threatened, or we may conclude that the
species does not warrant listing as either
an endangered species or a threatened
species. For critical habitat, our final
designation may not include all areas
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proposed, may include some additional
areas that meet the definition of critical
habitat, or may exclude some areas if we
find the benefits of exclusion outweigh
the benefits of inclusion and exclusion
will not result in the extinction of the
species. In addition, we may change the
parameters of the prohibitions or the
exceptions to those prohibitions in the
4(d) rule if we conclude it is appropriate
in light of comments and new
information received. For example, we
may expand the prohibitions to include
prohibiting additional activities if we
conclude that those additional activities
are not compatible with conservation of
the species. Conversely, we may
establish additional exceptions to the
prohibitions in the final rule if we
conclude that the activities would
facilitate or are compatible with the
conservation and recovery of the
species.
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Public Hearing
Section 4(b)(5) of the Act provides for
a public hearing on this proposal, if
requested. Requests must be received by
the date specified in DATES. Such
requests must be sent to the address
shown in FOR FURTHER INFORMATION
CONTACT. We will schedule a public
hearing on this proposal, if requested,
and announce the date, time, and place
of the hearing, as well as how to obtain
reasonable accommodations, in the
Federal Register and local newspapers
at least 15 days before the hearing. We
may hold the public hearing in person
or virtually via webinar. We will
announce any public hearing on our
website, in addition to the Federal
Register. The use of virtual public
hearings is consistent with our
regulations at 50 CFR 424.16(c)(3).
Previous Federal Actions
On April 20, 2010, we received a
petition to list 404 species, including
the Brawleys Fork crayfish, as
endangered or threatened species, and
designate critical habitat under the Act
(Center for Biological Diversity et al.
2010, entire). Our subsequent 90-day
finding concluded that the petition
provided substantial information
indicating that the Brawleys Fork
crayfish may be warranted for listing,
and that the status of the species
warranted further review (September 27,
2011; 76 FR 59836).
Peer Review
A species status assessment (SSA)
team prepared an SSA report for the
Brawleys Fork crayfish. The SSA team
was composed of Service biologists, in
consultation with other species experts.
The SSA report represents a
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compilation of the best scientific and
commercial data available concerning
the status of the species, including the
impacts of past, present, and future
factors (both negative and beneficial)
affecting the species.
In accordance with our joint policy on
peer review published in the Federal
Register on July 1, 1994 (59 FR 34270),
and our August 22, 2016, memorandum
updating and clarifying the role of peer
review of listing actions under the Act,
we solicited independent scientific
review of the information contained in
the Brawleys Fork crayfish SSA report.
The Service sent the SSA report to four
independent peer reviewers and
received no responses.
I. Proposed Listing Determination
Background
A thorough review of the taxonomy,
life history, and distribution of the
Brawleys Fork crayfish (Cambarus
williami) is presented in the SSA report
(version 1.1; Service 2023, pp. 14–24).
The Brawleys Fork crayfish is a small,
freshwater crayfish endemic to the
Nashville Basin and Eastern Highland
Rim ecoregions of central Tennessee.
The species occurs primarily in smallto medium-sized streams (first- to thirdorder streams) and in one medium-sized
river (fifth order) of the Stones and
Collins River systems (Bouchard and
Bouchard 1995, p. 6; Williams et al.
2017, p. 51; Giddens and Mattingly
2020, pp. 2–3; Johansen 2021, pers.
comm. 2021; Mattingly 2021, pers.
comm.; Simmons 2021, pers. comm.;
Williams 2021, pers. comm.).
Brawleys Fork crayfish is known to
occur in 20 streams in 5 Hydrologic
Unit Code 12 (HUC 12) watersheds
within its range. The Brawleys Fork
crayfish range has increased from
historical levels and the current known
range of the species is wider than the
historical range (no range contraction)
(Bouchard and Bouchard 1995, entire;
Withers and McCoy 2005, entire;
Rohrbach and Withers 2006, entire;
Giddens and Mattingly 2020, entire).
Brawleys Fork crayfish known
occurrences are in streams with
moderate to fast flow and main channel
depths ranging from 5 to 30 centimeters
(cm) (2–12 inches (in)) (Withers and
McCoy 2005, pp. 3, 27–48; Rohrbach
and Withers 2006, p. 3; Williams et al.
2017, p. 51). Brawleys Fork crayfish
typically occupy runs and riffles in
streams with layered chert gravel and
cobble substrate with ample interstitial
space not consolidated by finer
substrates such as sand or silt (Khan
2021, unpublished data). This species
frequently burrows into chert gravel
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substrate within the wetted stream
channel during normal and reduced
stream flows to escape predators and
access subterranean water (Bouchard
and Bouchard 1995, p. 6; Williams et al.
2017, p. 51; Giddens and Mattingly
2020, pp. 2–3). Streams with Brawleys
Fork crayfish occurrence are
characterized by water temperatures
ranging from 10 to 23 degrees Celsius
(°C) (50–73 degrees Fahrenheit (°F))
(Giddens and Mattingly 2020, pp. 4–5;
Simmons 2021, pers. comm.). Ample
riparian vegetation is an important
habitat characteristic that creates shaded
conditions to maintain the cooler water
temperature required by the species and
buffers streams against pollutants
carried by stormwater runoff. Suitable
habitat conditions also support an
adequate prey base for Brawleys Fork
crayfish, indicated by a healthy aquatic
community structure including native
benthic macroinvertebrates, fishes, and
plant matter (e.g., leaf litter, algae,
detritus). Brawleys Fork crayfish site
occupancy is associated with a high
volume of clean groundwater
discharged into the stream from
subterranean aquifers (Simmons 2021,
pers. comm.).
Although the specific diet of Brawleys
Fork crayfish is unknown, it is likely
similar to congeneric species of the
same size and includes smaller
invertebrates, periphyton, and plant
detritus. Individuals reach reproductive
maturity by their first year. A portion of
males are in reproductive form in all
months except August. Females bear
eggs in the spring as typical of most
crayfish species. The Brawleys Fork
crayfish lifespan is estimated to be 3
years with two to three age classes
present in healthy populations.
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
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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
species’ expected response and the
effects of the threats—in light of those
actions and conditions that will
ameliorate the threats—on an
individual, population, and species
level. We evaluate each threat and its
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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 we 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 speciesspecific factors such as lifespan,
reproductive rates or productivity,
certain behaviors, and other
demographic factors.
Analytical Framework
The SSA report documents the results
of our comprehensive biological 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 proposed
for listing as an endangered or
threatened species under the Act.
However, it does provide the scientific
basis that informs our regulatory
decisions, which involve the further
application of standards within the Act
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and its implementing regulations and
policies.
To assess Brawleys Fork crayfish
viability, we used the three conservation
biology principles of resiliency,
redundancy, and representation (Shaffer
and Stein 2000, pp. 306–310). Briefly,
resiliency is the ability of the species to
withstand environmental and
demographic stochasticity (for example,
wet or dry, warm or cold years),
redundancy is the ability of the species
to withstand catastrophic events (for
example, droughts, large pollution
events), and representation is the ability
of the species to adapt to both near-term
and long-term changes in its physical
and biological environment (for
example, climate conditions,
pathogens). In general, species viability
will increase with increases in
resiliency, redundancy, and
representation (Smith et al. 2018, p.
306). 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.
The following is a summary of the key
results and conclusions from the SSA
report; the full SSA report can be found
at FWS–R4–ES–2023–0065 on https://
www.regulations.gov.
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.
Species Needs
For Brawleys Fork crayfish
populations to have sufficient
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resiliency, the needs of individuals
(cool, clean flowing water with
unembedded substrate) must also be
met at a large enough scale to address
population and species-level needs. As
described under Background above, the
individual needs of Brawleys Fork
crayfish are primarily a function of
habitat condition and are summarized
in Table 1.
TABLE 1—INDIVIDUAL NEEDS OF BRAWLEYS FORK CRAYFISH
Type of requirement
Description
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Stream permanence ............................................
Stream order .......................................................
Water temperature ..............................................
Stream flow velocity ............................................
Stream substrate .................................................
Embeddedness ...................................................
Refugia ................................................................
Diet ......................................................................
Brawleys Fork crayfish populations
need the same key habitat-based
resources as individuals to maintain
sufficient resiliency (table 1), as well as
a sustainable population size and
connectivity within and among
populations. Populations also need
relatively stable conditions within the
stream ecosystem each year, especially
during the spring when females are
ovigerous, to maintain successful
reproduction and recruitment.
Connectivity among populations is
necessary to avoid the effects of genetic
isolation, promote genetic diversity, and
facilitate gene flow via emigration,
immigration, and reproduction. For
Brawleys Fork crayfish, maintaining
gene flow within and among
populations is facilitated by corridors of
suitable habitat for movement of
individuals throughout the stream
network, including road crossings that
are designed to easily pass aquatic
organisms at a range of streamflow
conditions. The species may move
between areas of suitable habitat within
and among connected streams in
response to behavioral drivers (dispersal
or mating) or in search of suitable
habitat in response to environmental
drivers when species’ needs are no
longer met in previously suitable habitat
(reduced prey, unavailable shelter or
refugia, inadequate conditions for
breeding).
For species viability to be sufficient,
there must be adequate redundancy
(suitable number of populations,
distribution of populations, and
connectivity between populations to
allow the species to withstand
catastrophic events) and representation
(suitable genetic and environmental
diversity to allow the species to adapt
to changing environmental conditions).
Redundancy improves with more
sufficiently resilient, connected
populations to allow recovery after
catastrophic events. Representation or
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Permanent.
First- to third-order streams.
10–23 °C (50–73 °F).
Riffle and run habitats with moderate to fast flow.
Chert gravel substrate with unconsolidated pieces of cobble and gravel.
Low embeddedness so that food and refugia under rocks and in crevices remain accessible.
Cavities and burrows within gravel.
Likely smaller invertebrates, periphyton, and/or plant detritus (specific diet unknown).
adaptive capacity is maintained with
genetic and ecological diversity within
and among populations.
Threats
We identified sedimentation, water
quality degradation, and instream
modification as the primary threats
currently affecting the Brawleys Fork
crayfish. The impacts of these threats
may be further exacerbated by the
effects of small, isolated populations
and the future effects of climate change.
The following discussion provides a
summary of the threats and stressors
that are affecting or may be affecting the
current and future condition of the
Brawleys Fork crayfish throughout some
or all of its range. A more detailed
description may be found in the SSA
report (Service 2023, pp. 24–38).
Sedimentation
Sedimentation of substrate and filling
of interstitial spaces is the key driver
affecting the Brawleys Fork crayfish’s
condition. Crayfish are benthic (bottomdwelling) invertebrates that occupy
stream or riverine habitats. The species
requires unembedded rocks, crevices,
and woody debris for access to prey,
refuge from predation and competition,
and cover during vulnerable periods
such as molting or egg extrusion.
Brawleys Fork crayfish density is
strongly and positively correlated with
the relative abundance of
unconsolidated cobble and gravel
substrates (Withers and McCoy 2005, p.
3; Rohrbach and Withers 2006, p. 3).
Excessive sediment input from a variety
of sources can overwhelm the capacity
of the lower order stream systems where
the species occurs to remove sediment
(except during heavy rainfall events),
resulting in sediment deposition that
embeds necessary species’ resources
(e.g., food, shelter, refugia) and
negatively impacts Brawleys Fork
crayfish individuals and populations
(Withers and McCoy 2005, p. 5;
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Rohrbach and Withers 2006, p. 8).
Sedimentation is also related to water
quality as sediment may carry
pollutants into the stream and cloud the
water with suspended solids, reducing
light availability and causing aquatic
plants to die.
In the Brawleys Fork crayfish range,
the sources of sedimentation that have
affected or are affecting the species and
its habitat as a result of current and
historical surrounding land uses include
agriculture and horticulture practices,
stream impoundment, and urbanization
and development. These stressors are
present rangewide and impact the
viability of Brawleys Fork crayfish at a
species level, but the sources are more
concentrated in some areas and may
affect some individuals and populations
to a greater extent (e.g., increased
urbanization in the West Fork Stones
watershed).
Agriculture and horticulture occur
rangewide on the relatively flat terrain
of the Eastern Highland Rim and
Nashville Basin regions where the
species occurs, particularly lands in row
crops, hay/pasture, livestock grazing,
and plant nurseries. Agricultural and
horticultural practices that do not
implement best management practices
(BMPs) or improperly implement BMPs
influence Brawleys Fork crayfish
viability by contributing to
sedimentation within nearby streams.
Practices that contribute to
sedimentation include harvest
techniques that expose bare soil and use
of heavy machinery that disturbs soil
composition and breaks down
sediments into fine particles (Burskey
and Simon 2009, p. 207). Heavy
machinery entering the stream channel
via the stream bank contributes
sediment and modifies the channel
structure (Schmidt 1982, p. 39).
Stream impoundment results in
decreased flow velocity and fine
sediment accumulation leading to
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subsequent substrate embeddedness,
decreased woody debris availability,
more severely entrenched stream
channels, and increased water
temperature (Arnwine et al. 2006, p. 3;
Adams 2013, p. 1328; Barnett and
Adams 2021, p. 3; Williams 2021, pers.
comm.). In the Brawleys Fork crayfish’s
range, impounded streams
demonstrated a lower percentage of
dominant cobble substrate compared to
unimpounded streams, and, statewide,
80 percent of impoundments failed to
meet regional habitat quality
expectations as a result of sediment
deposition below small dams (Arnwine
et al. 2006, pp. 3, 62). However, the
percentage of small impoundments (less
than 250 acres) within the Brawleys
Fork crayfish’s range is relatively low in
comparison to other watersheds in
Tennessee (0.6 and 1.7 percent in the
Stones and Collins watersheds,
respectively) (Arnwine et al. 2006, pp.
9–14). Small impoundments are
associated with large plots of residential
development in this region, and we
expect the impact of this threat may
increase in the future as projected future
residential development increases,
particularly in the East and West Fork
Stones River watersheds (Withers and
McCoy 2005, p. 5; Rohrbach and
Withers 2006, p. 8).
Urbanization, commercial and
residential development, and associated
infrastructure and road construction
have affected Brawleys Fork crayfish
and its habitat in the past and are
expected to continue to affect the
species. In the Brawleys Fork crayfish’s
range, the human population increased
as much as 122 percent from 1990 to
2010 and an additional 32 percent from
2010 to 2020 (World Population Review
2021). In the future, urbanization in the
Southeast is projected to increase up to
192 percent by 2060. In addition, the
greatest change in land use associated
with urbanization and development is
expected to be the conversion of
agricultural land into urban land use
(Terando et al. 2014, p. 5). Because
Brawleys Fork crayfish occurs in a
region of heavy agricultural land use,
the threat of land conversion as a result
of urbanization and development is
expected to affect the species to a
greater extent in the future as
urbanization increases. Streams in the
Southeast experience significant
impacts to water quality when urban
land use reaches 10–14 percent of the
catchment or drainage area (Suttles et al.
2018, p. 813). One watershed with
Brawleys Fork crayfish occurrences now
has greater than 10 percent of its area in
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urban land use (West Fork Stones
River).
Urbanization and development can
alter water quality and hydrology in a
number of ways. An increase in
impervious surfaces associated with
urban land use directly results in a
higher volume and velocity of
stormwater runoff, scouring of
streambeds and stream banks, increased
water temperatures, and increased
sediment and pollutants discharged into
receiving streams. The effects of
sedimentation and other pollutants on
water quality and the Brawleys Fork
crayfish as a result of a variety of
stressors are described under
Sedimentation below. Brawleys Fork
crayfish requires cool, clean water, and
the increased water quantity and
pollutants associated with increased
urbanization negatively impact habitat
conditions. Temperature tolerances of
the Brawleys Fork crayfish are
unknown. However, life stage
development of several aquatic
organisms, including crayfish, is
temperature-dependent and an increase
in water temperature could result in
changes to growth rates, reproduction,
and overall survival (Poff et al. 2002, p.
7). In addition, a higher rate of microbial
activity is associated with warmer water
temperatures, leading to an increased
rate of organic material decomposition
and nutrient loading within streams
(Poff et al. 2002, p. 7). Although we do
not have temperature information for all
streams with Brawley’s crayfish
occurrences, we expect that increased
water temperature associated with
urbanization and other stressors
negatively impacts the species (Lockaby
et al. 2013, p. 333).
Water Quality
Suitable water quality is a
requirement for the Brawleys Fork
crayfish. Although little is known
regarding the Brawleys Fork crayfish’s
specific water quality requirements,
water quality parameters such as water
temperature, nutrient load, pH, and
conductivity are significant factors
influencing several biological processes
of crayfish including osmoregulation,
immunology, acid/base regulation, gas
exchange, reproduction, molting,
growth rate, and behavior (Romano and
Zeng 2013, p. 17; Schorr et al. 2013, p.
340). In the Brawleys Fork crayfish’s
range, agriculture and horticultural
practices, urbanization, and wastewater
treatment outfall negatively affect the
species and its habitat through changes
to water quality.
Agricultural and horticultural
practices influence water quality by
means of stormwater runoff that
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transports chemicals (pesticides,
fungicides, and herbicides) and
nutrients (fertilizers and livestock
waste) into nearby streams. In areas
with no BMPs or improperly
implemented BMPs, stormwater runoff
from agricultural fields during planting
season (spring and early summer) is the
most significant source of water quality
contamination. Several stream reaches
with Brawleys Fork crayfish
occurrences may be exposed to
contaminants on an ongoing basis. For
example, horticultural lands
surrounding occurrences in Mountain
Creek receive pesticide, fungicide, and
fertilizer applications, and these
chemicals enter the adjacent stream
(Mattingly et al. 2021, entire; Mattingly
2021, pers. comm.). Pesticides can cause
deleterious effects on crayfish behavior,
increasing risk of predation (Sohn et al.
2018, pp. 900, 905).
Stormwater runoff from agricultural
and horticultural practices also
contributes to increased nutrient
(nitrogen and phosphate) loads within
nearby streams through fertilizers and
livestock waste transported into the
streams. Nitrogen loading has
deleterious effects on molting,
respiration, disease resistance, and
disruption of reproductive behaviors in
crustaceans, and we expect similar
effects to Brawleys Fork crayfish fitness
and reproductive success (Romano and
Zeng 2013, p. 17; Schorr et al. 2013, p.
340). In addition, slower areas of stream
habitat between occupied riffles and
runs may become stagnant and oxygen
depleted as a result of livestock waste
discharged into the stream (Rorhbach
and Withers 2006, p. 8; Withers and
McCoy 2005, p. 5).
Urbanization and development
influence Brawleys Fork crayfish
through effects to water quality as
described under Sedimentation above.
The increased impervious surface
associated with urbanization results in
higher flow, higher velocity, increased
transport of contaminants, and warmer
water temperatures that negatively
impact Brawleys Fork crayfish through
habitat degradation.
Historically, the Woodbury
wastewater treatment plant has
contributed to increased nutrient loads
in the East Fork Stones River with
negative impacts including fish kills
and decreased benthic
macroinvertebrate communities
(indication of water quality and
ecosystem function) (Schmidt 1982, pp.
26, 30, 49–50). The effects of excessive
nutrients and nutrient loading on
crustaceans are described above. More
recently, the treatment plant was out of
compliance or not complete and/or
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stable in 4 of 13 inspections from 2007
to 2022, primarily due to issues with
sampling. Spring overflows with
discharges outside of the National
Permit Discharge Elimination System
limits have occurred in recent years as
well.
Instream Modification
Stream modification and
impoundment influences Brawleys Fork
crayfish and its habitat through altered
stream depth and flow, sedimentation,
and water quality degradation. Stream
channel modification has occurred and
continues to occur in the Brawleys Fork
crayfish range. Reaches of Mountain
Creek, East Fork Stones River, and
Hollis Creek with Brawleys Fork
crayfish occurrences have experienced
significant disturbance and modification
including heavy machinery directly
entering the stream channel to dredge
gravel, modify stream banks, and alter
the stream channel (Mattingly et al.
2021, entire; Mattingly 2021, pers.
comm.). For headwater species with
specific habitat needs such as Brawleys
Fork crayfish, even small alterations to
the channel, flow, and substrate may
affect individuals or populations. In
Mountain Creek, small rock dams
resulted in local alteration of flows,
depths, and siltation of substrate
particles, negatively impacting Brawleys
Fork crayfish (Mattingly 2021, pers.
comm.).
In addition to the effects of
sedimentation described above, stream
impoundment also results in changes to
stream depth, flow, and water
temperature that may influence
Brawleys Fork crayfish resiliency.
Upstream of impoundments, stream
flows are slower, stream channels are
wider, and water temperatures are
higher. Downstream, flows are
decreased. Thus, crayfish assemblages
are altered both upstream and
downstream of impoundments in
affected stream reaches (Arnwine et al.
2006, p. 152; Hartfield 2010, pp. 25, 43;
Adams 2013, pp. 1325, 1328; Barnett
and Adams 2021, pp. 2, 4). The changes
associated with impoundments degrade
the habitat conditions required by
Brawleys Fork crayfish including
changes from cool, clean water with
moderate to fast flow in riffles and runs
to slower, warmer water with increased
sedimentation and pollutants.
Climate Change
Climate change is projected to result
in changes to precipitation and
temperature in the range of Brawleys
Fork crayfish in the future (Nissenbaum
2016, pp. 6–7). We used a downscaled
model of projected climate change and
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changes to the frequency and severity of
drought and extreme weather events
(e.g., flooding) to assess the effect of
climate change on the Brawleys Fork
crayfish and its habitat (Nissenbaum
2016, entire).
The range of Brawleys Fork crayfish
experienced above-average annual
rainfall in the period 2010–2020
(Climate Explorer 2021). An increase in
the frequency, duration, and severity of
rain events will result in heavier
stormwater runoff transporting larger
loads of sediment, pollutants, and
nutrients into streams and will also
modify stream channels and substrate
composition through flooding (Poff et al.
2002, p. 12; Lockaby et al. 2013, p. 310).
These changes may negatively influence
the Brawleys Fork crayfish through the
effects associated with increased
sedimentation and degraded water
quality as described above.
Since the 1970s, moderate to severe
droughts in the Southeast have
increased by 12 to 14 percent during
spring and summer months and this
trend is projected to continue or
increase (Jones et al. 2015, p. 126;
Nissenbaum 2016, p. 6). An increase in
the frequency and severity of droughts
could result in shallower or dry
headwater streams due to increased
evapotranspiration if this loss is not
counteracted by rainfall and
groundwater recharge (Lockaby et al.
2013, p. 310). We expect decreased
stream flow and reduced habitat
availability to reduce the availability of
food, shelter, or refugia sites as well as
increase predation and competition for
these resources. However, Brawleys
Fork crayfish exhibits an adaptive
strategy during dry periods by
burrowing deeper into the streambed,
thereby accessing subterranean water,
likely providing some resiliency to
drought conditions (Simmons 2021,
pers. comm.; Williams 2021, pers.
comm.). In addition to effects to flow,
warmer water temperatures, particularly
in lower order streams, may influence
Brawleys Fork crayfish growth and
reproduction as described under Water
Quality above. The best available
information does not indicate that the
effects of climate change are currently
impacting Brawleys Fork crayfish, but
increased drought conditions and the
frequency of extreme weather events,
including increased frequency, severity,
and duration of precipitation, are
projected to increase in the future.
Accordingly, the impact of climate
change on Brawleys Fork crayfish
viability may increase in the future.
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Small, Isolated Populations
The Brawleys Fork crayfish is a
narrow endemic species with a limited
range and fragmented distribution.
These species’ characteristics coupled
with small population size (low
abundance of less than 1 crayfish/100
meters or less than 1 crayfish/person
hour) in 8 of 20 streams with Brawleys
Fork crayfish occurrences may
exacerbate the impact of other threats
described above (Service 2023,
appendix A). Small, isolated
populations may have reduced genetic
diversity as a result of inbreeding,
resulting in lower levels of population
resiliency and species’ representation
(Frankham 1995, p. 309; Frankham
2005, pp. 132–135; Johansen 2018, p.
38; Grubb 2019, p. 29). Although the
effects of small, isolated populations
may exacerbate other threats, the best
available information indicates that the
threat of small, isolated populations is
not currently influencing Brawleys Fork
crayfish viability alone.
Conservation Efforts and Regulatory
Mechanisms
State Protections
Brawleys Fork crayfish is listed as
endangered by the State of Tennessee
and receives some protections under the
provisions of the State wildlife code
(Tennessee Nongame and Endangered or
Threatened Wildlife Species
Conservation Act of 1974 (Tennessee
Code Annotated, Section 70–8–101–
112)), which states that it is unlawful for
any person to take, attempt to take,
possess, transport, export, process, sell
or offer for sale, or ship nongame
wildlife, or for any common or contract
carrier knowingly to transport or receive
for shipment nongame wildlife.
Brawleys Fork crayfish is considered a
Species of Greatest Conservation Need
(SGCN) in Tennessee’s State Wildlife
Action Plan (TN–SWAP 2015, appendix
C, p. 255). Key goals of TN–SWAP are
to develop and implement conservation
strategies and prioritize funding for
conservation projects to protect SGCN
species and their habitats, although
specific actions for Brawleys Fork
crayfish have not been implemented.
The protections for the Brawleys Fork
crayfish in Tennessee do not prohibit
the species’ habitat from destruction,
modification, or alteration.
In addition to State protections, the
Brawleys Fork crayfish receives some
habitat protection through the Clean
Water Act of 1972 (33 U.S.C. 1251).
Section 404 of the Clean Water Act
requires a Department of the Army
permit to discharge dredge or fill
material in ‘‘waters of the United
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States’’ that includes most streams
where Brawleys Fork crayfish occurs.
Before acquiring a permit, the requester
must first show that steps have been
taken to avoid impacts to wetlands,
streams, and other aquatic resources,
such as Brawleys Fork crayfish; that
potential impacts have been minimized;
and that compensation will be provided
for all remaining unavoidable impacts.
State-level regulation of water quality
occurs through the Tennessee
Department of Environment and
Conservation (TDEC), whereby laws
such as Tennessee’s Water Quality
Control Act of 1977 (T.C.A. 69–3–101)
are enforced. TDEC personnel also
monitor water quality in surface waters
throughout the State, including
watersheds within the Brawleys Fork
crayfish’s range.
Cumulative Threats
Due to the complexity of freshwater
ecosystems, any single factor
influencing Brawleys Fork crayfish
viability often impacts the species in a
variety of ways. The interconnectedness
of these influences and their ecological
impacts create synergistic and
cumulative effects on Brawleys Fork
crayfish viability. For example,
conversion of forested land to
agricultural use may be associated with
subsequent stream impoundment to
create small reservoirs for livestock or
crop irrigation. The effects of climate
change (warmer temperatures and more
frequent and/or severe drought) could
lead to decreased water availability. As
a result, water withdrawal from nearby
streams would increase to support crop
irrigation demands. Additionally,
urbanization can exacerbate drought
conditions in streams by channeling
stormwater runoff from impervious
surfaces into ditches and drains that
flow into sewer lines and/or larger-order
streams, bypassing headwater streams
and decreasing the amount of water
available for groundwater recharge to
headwater streams. Without adequate
groundwater recharge, lower-order
streams including those with Brawleys
Fork crayfish occurrence are susceptible
to going dry during severe droughts.
Reduced groundwater recharge would
also impact Brawleys Fork crayfish by
decreasing the availability of
subterranean water, which the species
uses as refuge during periods of
drought. Climate change and the effects
of small, isolated populations may
exacerbate the effects of other threats,
including cumulative threats.
We note that, by using the SSA
framework to guide our analysis of the
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scientific information documented in
the SSA report, we have not only
analyzed individual effects on the
species, but we have also analyzed their
potential cumulative effects. We
incorporate the cumulative effects into
our SSA analysis when we characterize
the current and future condition of the
species. 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 relevant
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.
Current Condition
For the purposes of the Brawleys Fork
crayfish SSA, we delineated five
analysis units (AUs) using available
spatial occurrence data (1955–2021)
obtained from State agency survey
reports and data (Tennessee Wildlife
Resources Agency (TWRA), TDEC),
federally owned corporation data
(Tennessee Valley Authority), an
interim research report (Tennessee Tech
University), peer-reviewed literature,
and other surveys (Bouchard and
Bouchard 1995; Withers and McCoy
2005; Rohrbach and Withers 2006;
Giddens and Mattingly 2020). We
evaluated the current viability of
Brawleys Fork crayfish using the
conservation biology principles of
population resiliency, and species’
redundancy and representation.
Based on Brawleys Fork crayfish
survey information and species’ needs
(e.g., the availability of unembedded
chert gravel and cobble substrate within
areas of fast to moderate flow, adequate
water quality, sufficient population size,
and connectivity to support
reproduction and recruitment), we
developed an approach using key
habitat and demographic parameters to
assess population resiliency. These
included three habitat condition
parameters (percent riparian canopy
cover, percent agricultural and/or urban
development, and drought) and three
demographic condition parameters
(extent, abundance, and age class
distribution). We developed four
condition categories for each parameter
ranging from high to very low condition.
Descriptions of the parameters included
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in our resiliency assessment are
summarized individually below
(Service 2023, pp. 38–47). We
developed a scoring framework for
current resiliency that categorized each
AU as either high, moderate, low, or
very low resiliency based on the overall
condition of assessed parameters.
Habitat Parameters
Riparian canopy cover (vegetation)
regulates stream temperature, reduces
sedimentation, and sequesters
stormwater runoff and associated
pollutants. To assess the influence of
riparian vegetation on Brawleys Fork
crayfish resiliency, we determined the
mean percent canopy cover score within
30 meters (m) of the stream edge for
each occupied stream catchment. We
categorized the canopy cover condition
(table 2), then averaged the catchment
scores for an overall AU canopy cover
score.
The extent of land use in agriculture
and urban development impact
Brawleys Fork crayfish current
resiliency through the effects of
increased sedimentation and water
quality degradation. We assessed the
percentage of the stream catchment in
agricultural and urban land cover
categories in the National Land Cover
Database (NLCD 2016 Products in
Dewitz 2019, entire). We developed four
categories for percent agriculture and/or
urban development and scored each
stream catchment with Brawleys Fork
crayfish occurrences, then averaged the
catchment scores within each AU.
We assessed the level of drought in
each AU in the Brawleys Fork crayfish
range using U.S. Drought Monitor data
on the severity and duration of extreme
drought (category D3) and exceptional
drought (category D4) from 2000 to 2020
(U.S. Drought Monitor 2021). We
categorized drought experienced by
Brawleys Fork crayfish AUs based on
the duration of D3 or D4 category
drought conditions that occurred during
reproductive (March–June) and nonreproductive seasons (July–February)
(table 2).
The habitat parameters of riparian
canopy cover and percent agriculture
and/or urban development were
adjusted by –0.5 at the catchment level
to account for the greater impact of the
factors on first-, second- and third-order
streams. Drought scores were not
adjusted at the AU level. The adjusted
riparian canopy cover and land cover
scores and the drought parameter scores
were summed for an overall habitat
condition score.
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TABLE 2—HABITAT PARAMETERS AND PARAMETER CONDITION CATEGORIES USED IN DETERMINING BRAWLEYS FORK
CRAYFISH RESILIENCY
[Parameters were assessed at the catchment level and averaged over the analysis unit, except drought, which was assessed at the analysis unit
level. D3 = extreme drought; D4 = exceptional drought.]
Habitat parameter
High (4)
Moderate (3)
Low (2)
Mean percent riparian canopy cover.
Percent agriculture and
urban land use.
Drought (D3 or D4 2000–
2020).
Greater than 75 percent ...
50–75 percent ...................
25–50 percent ...................
Less than 25 percent.
Less than 10 percent ........
10–30 percent ...................
30–50 percent ...................
Greater than 50 percent.
D3 or D4 drought never
exceeds 4 consecutive
weeks in any season in
a calendar year.
D3 or D4 drought exceeds
4 consecutive weeks in
any non-reproductive
season in a calendar
year.
D3 or D4 drought exceeds
4 consecutive weeks
during reproductive season in 1 calendar year.
D3 or D4 drought exceeds
4 consecutive weeks
during reproductive season in 2 or more calendar years.
Demographic Parameters
Suitable habitat conditions and
occurrence records for Brawleys Fork
crayfish are patchily distributed within
streams. To assess the species’
distributional extent within occupied
streams, we determined the proportion
of stream catchments with Brawleys
Fork crayfish occurrences out of the
total catchments in each AU (extent)
(table 3). We categorized each extent
from high to very low and adjusted the
score based on the level of connectivity
between known occurrences (Service
2023, p. 44). The level of connectivity
was determined using a dendritic
network complexity model.
We used abundance estimates as an
indicator of population size, an essential
demographic factor influencing
Brawleys Fork crayfish resiliency. For
each stream occupied by Brawleys Fork
crayfish, we used quantitative
abundance estimates (reported as
crayfish/100 m) if available, or, if no
quantitative estimate was available, we
used qualitative abundance estimates
(reported as number of crayfish/person
hour or average catch per site visit)
(Withers and McCoy 2005, pp. 20–48;
Rohrbach and Withers 2006, p. 18; Khan
2021, unpublished data). We developed
abundance estimate categories (table 3)
and averaged the occupied catchment
level abundance scores to obtain an
overall abundance score for each AU.
Evidence of reproduction is an
indicator of a population’s fitness and
ability to sustain itself over time
(viability). For Brawleys Fork crayfish,
we used evidence of reproduction
(population age class distribution) as a
parameter to assess current resiliency
(table 3). If age class information was
not available, we assigned each stream
Very low (1)
with any abundance data a default score
of one age class. We recognize that this
assignment of a very low age class
distribution to populations with
unknown age class distribution may
lead to an underestimation of the level
of reproduction in that stream. We next
averaged the population age class
distribution scores for each stream
within an AU to calculate the overall
score for the AU. We then summed the
(adjusted) extent, abundance, and
population age class distribution scores
for each AU to obtain a total
demographic score for each AU. Finally,
we summed the total AU habitat and
total AU demographic parameter scores
to obtain an overall AU resiliency
condition score. Each AU was assigned
an overall resiliency condition class
from high to very low based on the
overall resiliency score.
TABLE 3—DEMOGRAPHIC PARAMETERS AND CONDITION CATEGORIES USED TO ASSESS BRAWLEYS FORK CRAYFISH
CURRENT RESILIENCY
Demographic
parameter
High
(4)
Moderate
(3)
Low
(2)
Very Low
(1)
Extent ................................
Abundance ........................
50 percent or greater ........
Quantitative density greater than 20 crayfish/100
m2; or qualitative greater
than 10 crayfish/person
hour or per site visit.
3 distinct age classes including hatchlings or juveniles.
30–50 percent ...................
Quantitative density 10–20
crayfish/100 m2; or qualitative 5–10 crayfish/person hour or per site visit.
10–30 percent ...................
Quantitative density 1–9
crayfish/100 m2; or qualitative 1–4 crayfish/person hour or per site visit.
2 distinct age classes including hatchlings or juveniles.
2 distinct age classes, but
no hatchlings or juveniles.
Less than 10 percent.
Quantitative density less
than 1 crayfish/100 m2;
or qualitative less than 1
crayfish/person hour or
per site visit.
1 age class of any type.
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Age Class Distribution .......
Of the five delineated Brawleys Fork
crayfish AUs, two currently exhibit
moderate resiliency (Hollis Creek–East
Fork Stones River and Brawleys Fork
AUs), and three exhibit low resiliency
(Lower West Fork Stones River, Bullpen
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Creek, and Mountain Creek AUs) (figure
1). Values for habitat parameters were
generally low, while most AUs have
moderate or high demographic
parameters (Service 2023, appendix A).
Three AUs have very low extent (area of
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occupancy) (Lower West Fork Stones
River, Bullpen Creek, and Mountain
Creek AUs), contributing to a lack of
connectivity within AUs.
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For Brawleys Fork crayfish, we
assessed redundancy by mapping the
number and distribution of occupied
streams across the species’ geographic
range. We determined that current
redundancy is sufficient to support
species viability with small populations
patchily distributed in streams with
suitable habitat across the known
current range. The species occurs in a
limited geographic area, although the
West Fork Stones River Lower analysis
unit is spatially separated from the other
four analysis units, potentially
providing protection against some
catastrophic events. The best available
information does not indicate that
Brawleys Fork crayfish redundancy has
decreased from historical levels as the
current known range of the species is
wider than the historical range (no range
contraction).
Brawleys Fork crayfish has a known
distribution in first- to third-order
streams and a fifth-order stream in two
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EPA level IV ecoregions. We expect the
species occurrence in a diversity of
habitat conditions across ecoregions and
stream types indicates inherent adaptive
capacity that may allow adaption to
changing biotic and abiotic conditions.
We determined that Brawleys Fork
crayfish current representation is
moderate, and best available
information indicates that the species’
representation has not declined from
historical levels (no range contraction).
Future Condition
To project the future condition of
Brawleys Fork crayfish, we developed
three plausible future scenarios with
varying levels of key threats to the
species. We assessed both the projected
threats and the species’ likely response
to those threats to determine the effect
on the resiliency, representation, and
redundancy of Brawleys Fork crayfish
in 2036 and 2051. We modeled the
scenarios at these timesteps based on
the average lifespan of the species
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(approximately 3 years), confidence in
models and projections of factors
influencing the species’ viability, and
certainty in predictions of the species’
response to those factors. To assess the
future condition of Brawleys Fork
crayfish, we selected four key threats
(urbanization, agricultural land-use
change, climate change, and water
withdrawal) based on the potential
influence these factors have on
Brawleys Fork crayfish viability. We
quantitatively assessed expected levels
of urbanization (SLEUTH model), land
use change (cropland in the FORE–SCE
model), and climate change (air
temperature in USGS National Climate
Change Viewer (NCCV 2021) model),
and we qualitatively assessed the threat
of future water withdrawals (see chapter
5 of the SSA report for additional
modeling and scoring details) (Service
2023, pp. 53–57). The three scenarios
considered when predicting future
conditions include: (1) status quo with
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lower development; (2) status quo with
higher development; and (3) increased
impacts (table 4) (Service 2023, pp. 57–
61).
TABLE 4—DATA SOURCES AND MODELED LEVELS OF FOUR KEY DRIVERS OF SPECIES CONDITION IN EACH FUTURE
SCENARIO FOR BRAWLEYS FORK CRAYFISH
Parameters
Scenario
Urbanization
Scenario 1: Status quo/
lower development.
Scenario 2: Status quo/
higher development.
Scenario 3: Increased impacts.
Land use change
Greater than 50 percent
probability of urbanization in SLEUTH *.
Greater than 50 percent
probability of urbanization in SLEUTH.
Greater than 50 percent
probability of urbanization in SLEUTH.
Climate change
Water withdrawal
FORE–SCE *; SRES B1 *
USGS NCCV *; RCP 4.5 *
Reduced rate of increase
in withdrawal.
FORE–SCE SRES B1 ......
USGS NCCV; RCP 4.5 .....
Current rate of increase in
withdrawal.
FORE–SCE; SRES A2 * ...
USGS NCCV; RCP 8.5 * ...
Increased rate of increase
in withdrawal.
* The three future scenarios include the following models or data sources: the SLEUTH model (slope, land use, excluded area, urban area,
transportation, hillside area) to predict the probability of urbanization (Chaudhuri and Clarke 2013, pp. 1–3); the United States Geological Survey
(USGS) Earth Resources Observation and Science Center FOREcasting SCEnarios (FORE–SCE) to model projections of land use change
under two different Special Report on Emission Scenarios (SRES), similar to what is assumed under the two future climate scenarios with varying levels of CO2 concentration known as representative concentration pathways RCP4.5 and RCP8.5 (Nakicenovic et al. 2000, entire; Sohl et al.
2014, entire); and, the USGS National Climate Change Viewer to model projections of future air temperatures and precipitation in the species’
range.
Overall, our analysis projected
declines in Brawleys Fork crayfish
future resiliency, representation, and
redundancy with the magnitude of
decline increasing with increased
impacts and longer timesteps (table 5).
At the 15-year timestep, resiliency is
projected to decline in 3 AUs under
scenarios 1 and 2. At the 15-year
timestep, resiliency is projected to
decline in 4 AUs under scenario 3. At
the 30-year timestep, resiliency is
projected to decline in 3 AUs under
scenario 1. Resiliency is projected to
decline in 4 AUs under scenario 2, and
resiliency is projected to decline in 5
AUs under scenario 3.
Two AUs are projected to maintain
current low resiliency under some
scenarios: Bullpen Creek is projected to
maintain low resiliency at 15 years
under scenarios 1 and 2, and Mountain
Creek is projected to maintain low
resiliency for 15 years under all
scenarios and for 30 years under
scenarios 1 and 2 (table 5). No AUs are
estimated to maintain moderate
resiliency in 15 or 30 years under the
three future condition scenarios. Our
analysis did not project the extirpation
of any AUs under any scenario;
however, at least one AU is predicted to
exhibit very low resiliency in all
scenarios, and all AUs are predicted to
exhibit very low resiliency in 2051
under scenario 3 (increased impacts).
Redundancy is expected to decline in
the future as a function of loss of
resiliency in AUs, although no AUs are
projected to be extirpated and the
distribution of the species across the
range is projected to remain at the
current level. Representation is
expected to decline slightly from
current levels in both future timesteps
as populations (not AUs) are extirpated
and habitat fragmentation reduces
inherent adaptive capacity in Brawleys
Fork crayfish due to decreases in
connectivity and gene flow.
TABLE 5—FUTURE RESILIENCY OF BRAWLEYS FORK CRAYFISH ANALYSIS UNITS UNDER THREE PLAUSIBLE FUTURE
SCENARIOS AT 15- AND 30-YEAR TIMESTEPS
Analysis unit (HUC 12*)
Hollis Creek–East Fork Stones
River.
Brawleys Fork ..............................
Lower West Fork Stones River ....
Bullpen Creek ..............................
Mountain Creek ...........................
Current
resiliency
class
Scenario 1
2036
2051
2036
2051
2036
Moderate ..........
Low ..................
Low ..................
Low ..................
Low ..................
Low ..................
Very Low.
Moderate ..........
Low ..................
Low ..................
Low ..................
Low
Very
Low
Low
Low
Very
Low
Low
Low
Very
Low
Low
Low
Very
Very
Low
Low
Very
Very
Low
Very
Very
Very
Very
..................
Low ..........
..................
..................
Scenario 2
..................
Low ..........
..................
..................
..................
Low ..........
..................
..................
Scenario 3
..................
Low ..........
Low ..........
..................
..................
Low ..........
Low ..........
..................
2051
Low.
Low.
Low.
Low.
* Hydrologic Unit Code.
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Determination of Brawleys Fork
Crayfish 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
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‘‘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 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)
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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
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the threats under the Act’s section
4(a)(1) factors, we determined the
following threats are acting as the
primary drivers of Brawleys Fork
crayfish viability and are ongoing:
habitat loss and degradation (Factor A)
due to sedimentation and water quality
degradation from sources including
agricultural practices, horticultural
practices, and urbanization; and
instream modification including
impoundments, gravel dredging, and
channel alteration. The impacts of these
threats may be further exacerbated by
the effects of small, isolated populations
(Factor E) and the future effects of
climate change (Factor E).
Brawleys Fork crayfish is known to
occur in 20 streams in 5 central
Tennessee HUC12 watersheds and is
distributed across the current range of
the species, which represents an
expansion of the known historical
range. Available information does not
indicate population-level extirpations or
evidence of range contraction for the
species. Of the five delineated analysis
units (HUC12 watersheds), two
currently exhibit moderate resiliency
and three low resiliency. Although
Brawleys Fork crayfish is impacted by
past and ongoing threats of
sedimentation, water quality
degradation, and instream
modifications, the species currently
exhibits sufficient population-level
resiliency and species-level
representation and redundancy to
withstand stochastic and catastrophic
events and has inherent capacity to
adapt to environmental change.
Accordingly, we conclude that the
Brawleys Fork crayfish is not in danger
of extinction throughout its range.
Upon determining that the Brawleys
Fork crayfish is not in danger of
extinction throughout its range, we
consider whether it is likely to become
an endangered species in the foreseeable
future throughout its range. Our analysis
of the species’ future condition under
future scenarios at two timesteps
encompasses the best available
information for future projections of
modeled parameters under a range of
plausible threat levels. We selected
these time steps based on the Brawleys
Fork crayfish’s lifespan of
approximately 3 years and the reliability
of the data and models used in the
future threat projections and analysis.
We determined we can reliably predict
both the future threats and the species’
responses to those threats within a 30year timeframe (i.e., the foreseeable
future). However, after that time period,
we have less confidence in projections.
We found that impacts from habitat
loss and degradation present the most
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substantial threat to the Brawleys Fork
crayfish viability. As described above,
the threats currently acting on the
species include sedimentation, water
quality degradation, and instream
modifications, all of which may be
exacerbated by the effects of climate
change and small, isolated populations.
In the foreseeable future, we anticipate
that threats associated with
urbanization, land use change, and
climate change will continue to increase
in magnitude and will have the greatest
influence on species’ viability. We also
considered the effects of instream
impoundments, water withdrawals, and
small, isolated populations, including
cumulative effects. The best available
information indicates that the threats
and stressors currently acting on the
Brawleys Fork crayfish are expected to
continue into the foreseeable future,
some of which (e.g., urbanization, land
use change (agriculture and
horticulture), and climate change) are
reasonably expected to worsen over
time.
Our assessment of plausible future
scenarios projects declines in resiliency,
representation, and redundancy in the
future as a result of ongoing threats of
habitat loss and degradation. However,
no extirpations of AUs are projected. In
our future condition analysis, no
moderate resiliency populations are
projected and all 5 Brawleys Fork
crayfish AUs are projected to exhibit
low or very low resiliency in the three
plausible future scenarios.
Representation and redundancy are also
projected to be reduced from current
levels in the future as a result of
declining resiliency, extirpations of
individual populations within AUs, and
loss of connectivity. Thus, after
assessing the best available information,
we conclude that the Brawleys Fork
crayfish is not currently in danger of
extinction but is likely to become in
danger of extinction within the
foreseeable future 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. The court in Center
for Biological Diversity v. Everson, 435
F. Supp. 3d 69 (D.D.C. 2020) (Everson),
vacated the provision of the Final Policy
on Interpretation of the Phrase
‘‘Significant Portion of Its Range’’ in the
Endangered Species Act’s Definitions of
‘‘Endangered Species’’ and ‘‘Threatened
Species’’ (hereafter ‘‘Final Policy’’; 79
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FR 37578, July 1, 2014) that provided if
the Services determine that a species is
threatened throughout all of its range,
the Services will not analyze whether
the species is endangered in a
significant portion of its range.
Therefore, we proceed to evaluating
whether the species is endangered in a
significant portion of its range—that is,
whether there is any portion of the
species’ range for which both (1) the
portion is significant and (2) the species
is in danger of extinction in that
portion. Depending on the case, it might
be more efficient for us to address the
‘‘significance’’ question or the ‘‘status’’
question first. We can choose to address
either question first. Regardless of
which question we address first, if we
reach a negative answer with respect to
the first question that we address, we do
not need to evaluate the other question
for that portion of the species’ range.
Following the court’s holding in
Everson, we now consider whether there
are any significant portions of the
species’ range where the species is in
danger of extinction now (i.e.,
endangered). In undertaking this
analysis for Brawleys Fork crayfish, we
choose to address the status question
first—we consider information
pertaining to the geographic distribution
of both the species and the threats that
the species faces to identify portions of
the range where the species may be
endangered.
We evaluated the range of the
Brawleys Fork crayfish to determine if
the species is in danger of extinction
now in any portion of its range. The
range of a species can theoretically be
divided into portions in an infinite
number of ways. We focused our
analysis on portions of the species’
range that may meet the definition of an
endangered species. For Brawleys Fork
crayfish, we considered whether the
threats or their effects on the species are
greater in any biologically meaningful
portion of the species’ range than in
other portions such that the species is
in danger of extinction now in that
portion.
We examined the following threats:
sedimentation and water quality
degradation from sources including
agricultural/horticultural practices and
urbanization; and instream modification
including impoundments, gravel
dredging, and channel alteration,
including cumulative effects. We also
considered the effects of climate change,
small and isolated populations, and
conservation efforts and regulatory
mechanisms. These stressors are present
rangewide, and threats influence
Brawleys Fork crayfish viability
rangewide, but the sources are more
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concentrated in some areas and may
affect some individuals and populations
to a greater extent (e.g., increased
urbanization in the West Fork Stones
watershed). We identified three AUs
where the impact of these threats may
have a more pronounced effect such that
the species may have a different status
in those AUs than the remainder of the
range. The portions we considered are
the geographic areas described as the
West Fork Stones River, Bullpen Creek,
and Mountain Creek AUs (HUC 12
watersheds) in the SSA report (Service
2023).
As described in Status Throughout
All of Its Range, the threats of
sedimentation, water quality
degradation, and instream modifications
have impacted the Brawleys Fork
crayfish’s viability through habitat loss
and degradation. Although threats are
similar throughout the range of the
species, the threats associated with
increased urbanization and
development are greater in the West
Fork Stones River unit. In addition, this
unit does not have connectivity to any
other watershed with Brawleys Fork
crayfish occurrences and is
geographically distanced from other
occupied streams. The West Fork Stones
River unit currently exhibits low
resiliency, and resiliency is projected to
decline in this unit under our future
condition scenarios. Given the current
and ongoing threats, including
urbanization, and the species’ current
and future condition within this unit,
we have identified the West Fork Stones
River AU as an area that may have a
different status than the remainder of
the range.
We also considered the Bullpen Creek
and Mountain Creek AUs as areas that
may require further analysis. The best
available historical information
indicated that the Brawleys Fork
crayfish has occurred and continues to
occur with low abundance at limited
sites within Bullpen Creek and
Mountain Creek. In addition, although
threats are similar throughout the range
of the species, the species’ response to
threats may be more pronounced in the
Bullpen Creek and Mountain Creek
AUs. Due to low current resiliency,
threats are having a greater impact in
the Bullpen Creek and Mountain Creek
AUs. The two AUs exhibit low current
resiliency driven primarily by low
extent of occupancy (few sites known
within the streams), and resiliency is
projected to decline in the two AUs in
future scenarios. Given the current and
ongoing threats and the species’ current
and future condition within this unit,
we have identified the Bullpen Creek
and Mountain Creek AUs as areas that
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may have a different status than the
remainder of the range.
We then proceeded to the significance
question, asking whether these portions
of the range (West Fork Stones River,
Bullpen Creek, or Mountain Creek AU)
are significant. The Service’s most
recent definition of ‘‘significant’’ within
agency policy guidance has been
invalidated by court order (see Desert
Survivors v. U.S. Department of the
Interior, 321 F. Supp. 3d 1011, 1070–74
(N.D. Cal. 2018)). In undertaking this
analysis for the range of the Brawleys
Fork crayfish, we considered whether
any of the three portions of the range
identified are significant based on the
biological importance to the overall
viability of the Brawleys Fork crayfish.
Therefore, for the purposes of this
analysis, when considering whether this
portion is significant, we considered
whether the portion may (1) occur in a
unique habitat or ecoregion for the
species, (2) contain high-quality or highvalue habitat relative to the remaining
portions of the range, for the species’
continued viability in light of the
existing threats, (3) contain habitat that
is essential to a specific life-history
function for the species and that is not
found in the other portions of the range,
or (4) contain a large geographic portion
of the suitable habitat relative to the
remaining portions of the range.
Although every unit provides some
contribution to a species’ viability, the
West Fork Stones River AU comprises a
small geographic portion of the range
with low-quality habitat. This unit may
offer some value to representation as the
West Fork Stones River is the only fifthorder stream with Brawleys Fork
crayfish occurrences and provides
somewhat different habitat conditions
(e.g., a larger, perennial stream that does
not go dry seasonally) and may offer a
refugia in extreme drought. However,
the habitat does not support high
abundance or high-quality habitat.
Brawleys Fork crayfish occurrences are
known only from the Lower West Fork
Stones River in this AU with a low
extent of occupancy compared to the
two moderate-resiliency units (4.3
percent of stream catchments in the unit
have occurrence records) (Service 2023,
appendix A). Overall, there is little
evidence to suggest that the
geographical area of the West Fork
Stones River unit has higher quality or
higher value habitat or provides any
unique resource to the species life
history. Thus, based on the best
available information, we find that this
portion of the range is not biologically
significant in terms of the habitat
considerations discussed above.
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Although every unit provides some
contribution to a species’ viability, the
Bullpen Creek and Mountain Creek AUs
comprise a small percentage of the
known Brawleys Fork crayfish sites and
abundance. The habitat in the Bullpen
Creek and Mountain Creek AUs does
not support high abundance or
represent high-quality habitat. Brawleys
Fork crayfish occurrences are known
from only one site in each AU resulting
in a low extent of occupancy compared
to the two moderate-resiliency units. In
Bullpen Creek AU, 1.4 percent of stream
catchments in the unit have known
occurrences, and, in Mountain Creek
AU, 3.8 percent of stream catchments
have known occurrences (Service 2023,
appendix A). Overall, there is little
evidence to suggest that the
geographical areas of the Bullpen Creek
or Mountain Creek AU have higher
quality or higher value habitat or
provide any unique resource to the
species life history. Thus, based on the
best available information, we find that
the portions of the range represented by
the Bullpen Creek and Mountain Creek
AU are not biologically significant in
terms of the habitat considerations
discussed above.
In addition, we considered the three
AUs (West Fork Stones River, Bullpen
Creek, and Mountain Creek) as one
portion that may have a different status
in order to assess the potential
significance as one geographic area. In
total, the three units represent
approximately 9.5 percent of occupied
catchments in the species’ range. The
units do not provide high-value or
unique habitat for the species, as
described above. Thus, based on the
best available information, we find that
the portion of the range represented by
the West Fork Stones River, Bullpen
Creek, and Mountain Creek AUs is not
biologically significant in terms of the
habitat considerations and occupancy
described above.
We found no biologically meaningful
portion of the Brawleys Fork crayfish’s
range where the species may have a
different status than the species
rangewide and the portion is significant.
Therefore, no portion of the species’
range provides a basis for determining
that the species is in danger of
extinction in a significant portion of its
range, and we determine that the
species is likely to become in danger of
extinction within the foreseeable future
throughout all of its range. This does not
conflict with the courts’ holdings in
Desert Survivors v. U.S. Department of
the Interior, 321 F. Supp. 3d 1011,
1070–74 (N.D. Cal. 2018) and Center for
Biological Diversity v. Jewell, 248 F.
Supp. 3d 946, 959 (D. Ariz. 2017)
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because, in reaching this conclusion, we
did not apply the aspects of the Final
Policy, including the definition of
‘‘significant’’ that those court decisions
held to be invalid.
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Determination of Status
Our review of the best available
scientific and commercial information
indicates that the Brawleys Fork
crayfish meets the definition of a
threatened species. Therefore, we
propose to list the Brawleys Fork
crayfish as a threatened species in
accordance with sections 3(20) 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
conservation of endangered and
threatened species. The goal of this
process is to restore listed species to a
point where they are secure, selfsustaining, 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
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reverse the species’ decline by
addressing the threats to its survival and
recovery. The recovery plan identifies
recovery criteria for review of when a
species may be ready for reclassification
from endangered to threatened
(‘‘downlisting’’) or removal from
protected status (‘‘delisting’’), and
methods for monitoring recovery
progress. Recovery plans also establish
a framework for agencies to coordinate
their recovery efforts and provide
estimates of the cost of implementing
recovery tasks. Revisions of the plan
may be done to address continuing or
new threats to the species, as new
substantive information becomes
available. The recovery outline, draft
recovery plan, final recovery plan, and
any revisions will be available on our
website as they are completed (https://
www.fws.gov/program/recovery/
recovery-plans), or from our Tennessee
Ecological Services Field Office (see FOR
FURTHER INFORMATION CONTACT).
Implementation of recovery actions
generally requires the participation of a
broad range of partners, including other
Federal agencies, States, Tribes,
nongovernmental organizations,
businesses, and private landowners.
Examples of recovery actions include
habitat restoration (e.g., restoration of
native vegetation), research, captive
propagation and reintroduction, and
outreach and education. The recovery of
many listed species cannot be
accomplished solely on Federal lands
because their range may occur primarily
or solely on non-Federal lands. To
achieve recovery of these species
requires cooperative conservation efforts
on private, State, and Tribal lands.
If this species is listed, funding for
recovery actions will be available from
a variety of sources, including Federal
budgets, State programs, and cost-share
grants for non-Federal landowners, the
academic community, and
nongovernmental organizations. In
addition, pursuant to section 6 of the
Act, the State of Tennessee would be
eligible for Federal funds to implement
management actions that promote the
protection or recovery of the Brawleys
Fork crayfish. Information on our grant
programs that are available to aid
species recovery can be found at:
https://www.fws.gov/service/financialassistance.
Although the Brawleys Fork crayfish
is only proposed for listing under the
Act at this time, please let us know if
you are interested in participating in
recovery efforts for this species.
Additionally, we invite you to submit
any new information on this species
whenever it becomes available and any
information you may have for recovery
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planning purposes (see FOR FURTHER
INFORMATION CONTACT).
Section 7 of the Act pertains to
interagency cooperation and mandates
all Federal action agencies to use their
existing authorities to further the
conservation purposes of the Act and to
ensure that their actions are not likely
to jeopardize the continued existence of
listed species or adversely modify
critical habitat. Regulations
implementing this interagency
cooperation provision of the Act are
codified at 50 CFR part 402.
Section 7(a)(2) states that each Federal
action agency shall, in consultation with
the Secretary, ensure that any action
they authorize, fund, or carry out is not
likely to jeopardize the continued
existence of a listed species or result in
the destruction or adverse modification
of designated critical habitat. Each
Federal agency shall review its action at
the earliest possible time to determine
whether it may affect listed species or
critical habitat. If a determination is
made that the action may affect listed
species or critical habitat, formal
consultation is required (50 CFR
402.14(a)), unless the Service concurs in
writing that the action is not likely to
adversely affect listed species or critical
habitat. At the end of a formal
consultation, the Service issues a
biological opinion, containing its
determination of whether the Federal
action is likely to result in jeopardy or
adverse modification.
In contrast, section 7(a)(4) of the Act
requires Federal agencies to confer with
the Service on any action that is likely
to jeopardize the continued existence of
a species proposed to be listed under
the Act or result in destruction or
adverse modification of critical habitat
proposed to be designated for such
species. Although the conference
procedures are required only when an
action is likely to result in jeopardy or
adverse modification, action agencies
may voluntarily confer with the Service
on actions that may affect species
proposed for listing or critical habitat
proposed to be designated. In the event
that the subject species is listed or the
relevant critical habitat is designated, a
conference opinion may be adopted as
a biological opinion and serve as
compliance with section 7(a)(2).
Examples of discretionary actions for
the Brawleys Fork crayfish that may be
subject to the conference and
consultation procedures under section 7
are land management or other
landscape-altering activities on Federal
lands administered by the U.S. Army
Corps of Engineers (USACE) as well as
actions on State, Tribal, local, or private
lands that require a Federal permit
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(such as a permit from USACE under
section 404 of the Clean Water Act (33
U.S.C. 1251 et seq.) or a permit from the
Service under section 10 of the Act) or
that involve some other Federal action
(such as funding from the Federal
Highway Administration, Federal
Aviation Administration, or the Federal
Emergency Management Agency).
Federal actions not affecting listed
species or critical habitat—and actions
on State, Tribal, local, or private lands
that are not federally funded,
authorized, or carried out by a Federal
agency—do not require section 7
consultation. Federal agencies should
coordinate with the local Service Field
Office (see FOR FURTHER INFORMATION
CONTACT) with any specific questions on
section 7 consultation and conference
requirements.
It is our policy, as published in the
Federal Register on July 1, 1994 (59 FR
34272), to identify to the extent known
at the time a species is listed, specific
activities that will not be considered
likely to result in a violation of section
9 of the Act. To the extent possible,
activities that will be considered likely
to result in a violation will also be
identified in as specific a manner as
possible. The intent of this policy is to
increase public awareness of the effect
of a proposed listing on proposed and
ongoing activities within the range of
the species proposed for listing.
Although most of the prohibitions in
section 9 of the Act apply to endangered
species, sections 9(a)(1)(G) and
9(a)(2)(E) prohibit the violation of any
regulation under section 4(d) pertaining
to any threatened species of fish or
wildlife, or threatened species of plant,
respectively. Section 4(d) of the Act
directs the Secretary to promulgate
protective regulations that are necessary
and advisable for the conservation of
threatened species. As a result, we
interpret our policy to mean that, when
we list a species as a threatened species,
to the extent possible, we identify
activities that will or will not be
considered likely to result in violation
of the protective regulations under
section 4(d) for that species.
At this time, we are unable to identify
specific activities that will or will not be
considered likely to result in violation
of section 9 of the Act beyond what is
already clear from the descriptions of
prohibitions and exceptions established
by protective regulation under section
4(d) of the Act.
Questions regarding whether specific
activities would constitute violation of
section 9 of the Act should be directed
to the Tennessee Ecological Services
Field Office (see FOR FURTHER
INFORMATION CONTACT).
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II. Proposed Rule Issued Under Section
4(d) of the Act
Background
Section 4(d) of the Act contains two
sentences. The first sentence states that
the Secretary shall issue such
regulations as she deems necessary and
advisable to provide for the
conservation of species listed as
threatened species. The U.S. Supreme
Court has noted that statutory language
similar to the language in section 4(d) of
the Act authorizing the Secretary to take
action that she ‘‘deems necessary and
advisable’’ affords a large degree of
deference to the agency (see Webster v.
Doe, 486 U.S. 592, 600 (1988)).
Conservation is defined in the Act to
mean the use of all methods and
procedures which are necessary to bring
any endangered species or threatened
species to the point at which the
measures provided pursuant to the Act
are no longer necessary. Additionally,
the second sentence of section 4(d) of
the Act states that the Secretary may by
regulation prohibit with respect to any
threatened species any act prohibited
under section 9(a)(1), in the case of fish
or wildlife, or section 9(a)(2), in the case
of plants. Thus, the combination of the
two sentences of section 4(d) provides
the Secretary with wide latitude of
discretion to select and promulgate
appropriate regulations tailored to the
specific conservation needs of the
threatened species. The second sentence
grants particularly broad discretion to
the Service when adopting one or more
of the prohibitions under section 9.
The courts have recognized the extent
of the Secretary’s discretion under this
standard to develop rules that are
appropriate for the conservation of a
species. For example, courts have
upheld, as a valid exercise of agency
authority, rules developed under section
4(d) that included limited prohibitions
against takings (see Alsea Valley
Alliance v. Lautenbacher, 2007 WL
2344927 (D. Or. 2007); Washington
Environmental Council v. National
Marine Fisheries Service, 2002 WL
511479 (W.D. Wash. 2002)). Courts have
also upheld 4(d) rules that do not
address all of the threats a species faces
(see State of Louisiana v. Verity, 853
F.2d 322 (5th Cir. 1988)). As noted in
the legislative history when the Act was
initially enacted, ‘‘once an animal is on
the threatened list, the Secretary has an
almost infinite number of options
available to [her] with regard to the
permitted activities for those species.
[She] may, for example, permit taking,
but not importation of such species, or
[she] may choose to forbid both taking
and importation but allow the
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transportation of such species’’ (H.R.
Rep. No. 412, 93rd Cong., 1st Sess.
1973).
The provisions of this proposed 4(d)
rule would promote conservation of the
Brawleys Fork crayfish by encouraging
management of the habitat for the
species in ways that facilitate
conservation for the species. The
provisions of this proposed rule are one
of many tools that we would use to
promote the conservation of the
Brawleys Fork crayfish. This proposed
4(d) rule would apply only if and when
we make final the listing of the
Brawleys Fork crayfish as a threatened
species.
As mentioned previously in Available
Conservation Measures, section 7(a)(2)
of the Act requires Federal agencies,
including the Service, to ensure that any
action they fund, authorize, or carry out
is not likely to jeopardize the continued
existence of any endangered species or
threatened species or result in the
destruction or adverse modification of
designated critical habitat of such
species. In addition, section 7(a)(4) of
the Act requires Federal agencies to
confer with the Service on any agency
action that is likely to jeopardize the
continued existence of any species
proposed to be listed under the Act or
result in the destruction or adverse
modification of proposed critical
habitat. If a Federal action may affect a
listed species or its critical habitat, the
responsible Federal agency (action
agency) must enter into consultation
with us.
These requirements are the same for
a threatened species with a speciesspecific 4(d) rule. For example, a
Federal agency’s determination that an
action is ‘‘not likely to adversely affect’’
a threatened species will require the
Service’s written concurrence.
Similarly, a Federal agency’s
determination that an action is ‘‘likely
to adversely affect’’ a threatened species
will require formal consultation and the
formulation of a biological opinion.
Provisions of the Proposed 4(d) Rule
Exercising the Secretary’s authority
under section 4(d) of the Act, we have
developed a proposed rule that is
designed to address the Brawleys Fork
crayfish’s conservation needs. As
discussed previously in Summary of
Biological Status and Threats, we have
concluded that the Brawleys Fork
crayfish is likely to become in danger of
extinction within the foreseeable future
primarily due to habitat loss and
degradation due to sedimentation and
water quality degradation from sources
including agricultural practices,
horticultural practices, and
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urbanization; and instream modification
including impoundments, gravel
dredging, and channel alteration. Each
of the threats influencing Brawleys Fork
crayfish viability may be further
exacerbated by the effects of small,
isolated populations and the future
effects of climate change.
As stated previously, section 4(d)
requires the Secretary to issue such
regulations as she deems necessary and
advisable to provide for the
conservation of each threatened species
and authorizes the Secretary to include
among those protective regulations any
of the prohibitions that section 9(a)(1) of
the Act prescribes for endangered
species. We find that, if finalized, the
protections, prohibitions, and
exceptions in this proposed rule as a
whole satisfy the requirement in section
4(d) of the Act to issue regulations
deemed necessary and advisable to
provide for the conservation of the
Brawleys Fork crayfish.
The protective regulations we are
proposing for Brawleys Fork crayfish
incorporate prohibitions from section
9(a)(1) to address the threats to the
species. Section 9(a)(1) prohibits the
following activities for endangered
wildlife: importing or exporting; take;
possession and other acts with
unlawfully taken specimens; delivering,
receiving, carrying, transporting, or
shipping in interstate or foreign
commerce in the course of commercial
activity; or selling or offering for sale in
interstate or foreign commerce. This
protective regulation includes all of
these prohibitions because the Brawleys
Fork crayfish is at risk of extinction in
the foreseeable future and putting these
prohibitions in place will help to
prevent further declines, preserve the
species’ remaining populations, and
decrease synergistic, negative effects
from other ongoing or future threats.
In particular, this proposed 4(d) rule
would provide for the conservation of
the Brawleys Fork crayfish by
prohibiting the following activities,
unless they fall within specific
exceptions or are otherwise authorized
or permitted: importing or exporting;
take; possession and other acts with
unlawfully taken specimens; delivering,
receiving, carrying, transporting, or
shipping in interstate or foreign
commerce in the course of commercial
activity; or selling or offering for sale in
interstate or foreign commerce.
Under the Act, ‘‘take’’ means to
harass, harm, pursue, hunt, shoot,
wound, kill, trap, capture, or collect, or
to attempt to engage in any such
conduct. Some of these provisions have
been further defined in regulations at 50
CFR 17.3. Take can result knowingly or
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otherwise, by direct and indirect
impacts, intentionally or incidentally.
Regulating take would help preserve the
species’ remaining populations, slow
their rate of decline, and decrease
synergistic, negative effects from other
ongoing or future threats. Therefore, we
propose to prohibit take of the Brawleys
Fork crayfish, except for take resulting
from those actions and activities
specifically excepted by the 4(d) rule.
Exceptions to the prohibition on take
would include all the general
exceptions to the prohibition against
take of endangered wildlife, as set forth
in 50 CFR 17.21 and additional
exceptions, as described below.
The proposed 4(d) rule would also
provide for the conservation of the
species by allowing exceptions that
incentivize conservation actions or that,
while they may have some minimal
level of take of the Brawleys Fork
crayfish, are not expected to rise to the
level that would have a negative impact
(i.e., would have only de minimis
impacts) on the species’ conservation.
The proposed exceptions to these
prohibitions include channel restoration
and bank stabilization projects,
migration barrier removal projects, and
transportation projects that provide fish
passage (described below) and are
expected to have negligible impacts to
the Brawleys Fork crayfish and its
habitat.
The first exception is for incidental
take resulting from channel restoration
projects for creation of natural,
physically stable, ecologically
functioning streams (or stream and
wetland systems). These projects can be
accomplished using a variety of
methods, but the desired outcome is a
natural channel with low shear stress
(force of water moving against the
channel); bank heights that enable
reconnection to the floodplain; a
reconnection of surface and
groundwater systems, resulting in
perennial flows in the channel; riffles
and pools composed of existing soil,
rock, and wood instead of large
imported materials; low compaction of
soils within adjacent riparian areas; and
inclusion of riparian wetlands.
The second exception is for incidental
take resulting from bank stabilization
projects that use bioengineering
methods to replace preexisting, bare,
eroding stream banks with vegetated,
stable stream banks, thereby reducing
bank erosion and instream
sedimentation and improving habitat
conditions for the species. This
exception includes a requirement that
the bank stabilization bioengineering
use methods such as native species live
stakes (live, vegetative cuttings inserted
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57307
or tamped into the ground in a manner
that allows the stake to take root and
grow), native species live fascines (live
branch cuttings, usually willows, bound
together into long, cigar-shaped
bundles), or native species brush
layering (cuttings or branches of easily
rooted tree species layered between
successive lifts of soil fill). This
exception also includes a requirement to
use native species vegetation including
woody and herbaceous species
appropriate for the region and habitat
conditions. This exception does not
apply if the bank stabilization includes
the sole use of quarried rock (riprap) or
the use of rock baskets or gabion
structures.
The third exception is for incidental
take resulting from bridge and culvert
replacement/removal projects or low
head dam removal projects that remove
migration barriers or generally allow for
improved upstream and downstream
movements of Brawleys Fork crayfish
while maintaining normal stream flows,
preventing bed and bank erosion, and
improving habitat conditions for the
species.
The fourth exception is for incidental
take resulting from transportation
projects that provide for fish passage at
stream crossings, thereby providing for
connectivity and dispersal for the
Brawleys Fork crayfish.
Despite these prohibitions regarding
threatened species, we may under
certain circumstances issue permits to
carry out one or more otherwiseprohibited activities, including those
described above. The regulations that
govern permits for threatened wildlife
state that the Director may issue a
permit authorizing any activity
otherwise prohibited with regard to
threatened species. These include
permits issued for the following
purposes: for scientific purposes, to
enhance propagation or survival, for
economic hardship, for zoological
exhibition, for educational purposes, for
incidental taking, or for special
purposes consistent with the purposes
of the Act (50 CFR 17.32). The statute
also contains certain exemptions from
the prohibitions, which are found in
sections 9 and 10 of the Act.
We recognize the special and unique
relationship with our State natural
resource agency partners in contributing
to conservation of listed species. State
agencies often possess scientific data
and valuable expertise on the status and
distribution of endangered, threatened,
and candidate species of wildlife and
plants. State agencies, because of their
authorities and their close working
relationships with local governments
and landowners, are in a unique
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position to assist us in implementing all
aspects of the Act. In this regard, section
6 of the Act provides that we must
cooperate to the maximum extent
practicable with the States in carrying
out programs authorized by the Act.
Therefore, any qualified employee or
agent of a State conservation agency that
is a party to a cooperative agreement
with us in accordance with section 6(c)
of the Act, who is designated by his or
her agency for such purposes, would be
able to conduct activities designed to
conserve Brawleys Fork crayfish that
may result in otherwise prohibited take
without additional authorization.
Nothing in this proposed 4(d) rule
would change in any way the recovery
planning provisions of section 4(f) of the
Act, the consultation requirements
under section 7 of the Act, or our ability
to enter into partnerships for the
management and protection of the
Brawleys Fork crayfish. However,
interagency cooperation may be further
streamlined through planned
programmatic consultations for the
species between us and other Federal
agencies, where appropriate. We ask the
public, particularly State agencies and
other interested stakeholders that may
be affected by the proposed 4(d) rule, to
provide comments and suggestions
regarding additional guidance and
methods that we could provide or use,
respectively, to streamline the
implementation of this proposed 4(d)
rule (see Information Requested, above).
III. Critical Habitat
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Background
Critical habitat is defined in section 3
of the Act as:
(1) The specific areas within the
geographical area occupied by the
species, at the time it is listed in
accordance with the Act, on which are
found those physical or biological
features
(a) Essential to the conservation of the
species, and
(b) Which may require special
management considerations or
protection; and
(2) Specific areas outside the
geographical area occupied by the
species at the time it is listed, upon a
determination that such areas are
essential for the conservation of the
species.
Our regulations at 50 CFR 424.02
define the geographical area occupied
by the species as an area that may
generally be delineated around species’
occurrences, as determined by the
Secretary (i.e., range). Such areas may
include those areas used throughout all
or part of the species’ life cycle, even if
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not used on a regular basis (e.g.,
migratory corridors, seasonal habitats,
and habitats used periodically, but not
solely by vagrant individuals).
Conservation, as defined under
section 3 of the Act, means to use and
the use of all methods and procedures
that are necessary to bring an
endangered or threatened species to the
point at which the measures provided
pursuant to the Act are no longer
necessary. Such methods and
procedures include, but are not limited
to, all activities associated with
scientific resources management such as
research, census, law enforcement,
habitat acquisition and maintenance,
propagation, live trapping, and
transplantation, and, in the
extraordinary case where population
pressures within a given ecosystem
cannot be otherwise relieved, may
include regulated taking.
Critical habitat receives protection
under section 7 of the Act through the
requirement that Federal agencies
ensure, in consultation with the Service,
that any action they authorize, fund, or
carry out is not likely to result in the
destruction or adverse modification of
critical habitat. The designation of
critical habitat does not affect land
ownership or establish a refuge,
wilderness, reserve, preserve, or other
conservation area. 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 nonFederal 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 likely 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
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habitat designations identify, to the
extent known using the best scientific
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
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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 the 4(d) rule.
Federally funded or permitted projects
affecting listed species outside their
designated critical habitat areas may
still result in jeopardy findings in some
cases. These protections and
conservation tools will continue to
contribute to recovery of the species.
Similarly, critical habitat designations
made on the basis of the best available
information at the time of designation
will not control the direction and
substance of future recovery plans,
habitat conservation plans (HCPs), or
other species conservation planning
efforts if new information available at
the time of those planning efforts calls
for a different outcome.
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 lifehistory needs of the species, including,
but not limited to, water characteristics,
soil type, geological features, sites, prey,
vegetation, symbiotic species, or other
features.
A feature may be a single habitat
characteristic or a more complex
combination of habitat characteristics.
Features may include habitat
characteristics that support ephemeral
or dynamic habitat conditions. Features
may also be expressed in terms relating
to principles of conservation biology,
such as patch size, distribution
distances, and connectivity. For
example, physical features essential to
the conservation of the species might
include gravel of a particular size
required for spawning, alkaline soil for
seed germination, protective cover for
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migration, or susceptibility to flooding
or fire that maintains necessary earlysuccessional habitat characteristics.
Biological features might include prey
species, forage grasses, specific kinds or
ages of trees for roosting or nesting,
symbiotic fungi, or 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 lifehistory 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.
As described above under Species
Needs, the Brawleys Fork crayfish
occurs in riffles and runs with fast to
moderately rapid flow in first- to thirdorder streams and one fifth-order
stream. Brawleys Fork crayfish typically
occupy streams with layered chert
gravel and cobble substrate with ample
interstitial space not consolidated by
finer substrates such as sand or silt.
Cool water with ample riparian
vegetation and a high volume of clean
groundwater discharged into the stream
from subterranean aquifers also
characterize streams with Brawleys Fork
crayfish occurrences.
The primary habitat elements that
influence resiliency of the Brawleys
Fork crayfish include water quantity
and flow, water quality, substrate, and
habitat connectivity. These features are
also described above as resource needs
under Background and Summary of
Biological Status and Threats, with
individual needs summarized in table 1,
and a full description is available in the
SSA report (Service 2023, pp. 18–20).
We derive the specific physical or
biological features essential to the
conservation of Brawleys Fork crayfish
from studies of the species’ habitat,
ecology, and life history as described
below. Additional information can be
found in the SSA report (Service 2023,
pp. 14–24); available on https://
www.regulations.gov under Docket No.
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57309
FWS–R4–ES–2023–0065). We have
determined that the following physical
or biological features are essential to the
conservation of Brawleys Fork crayfish:
(1) Moderate to fast-flowing stream
with unembedded chert gravel and
cobble substrate within an unobstructed
stream continuum (i.e., riffle, run, pool
complexes) of perennial, small- to
moderate-sized (generally third order or
smaller) streams and rivers (up to the
ordinary high-water mark as defined at
33 CFR 329.11).
(2) Stream banks with intact riparian
cover to maintain stream morphology
and reduce erosion and sediment inputs
that may reduce availability of substrate
interstitial spaces.
(3) Water quality characterized by
seasonally moderated, or spring
influenced, water temperatures and
physical and chemical parameters (e.g.,
pH, conductivity, dissolved oxygen)
sufficient for the normal behavior,
growth, reproduction, and viability of
all life stages.
(4) Adequate food base, indicated by
a healthy aquatic community structure
including native benthic
macroinvertebrates, fishes, and plant
matter (e.g., leaf litter, algae, detritus).
(5) An interconnected network of
streams and rivers that have the
physical and biological features
described in (1) through (4), above, that
allow for the movement of individual
crayfish in response to environmental,
physiological, or behavioral drivers. The
connectivity of the stream network
should be sufficient to allow for gene
flow within and among watersheds.
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
the Brawleys Fork crayfish may require
special management considerations or
protection to reduce the following
threats: (1) Urbanization of the
landscape, including, but not limited to,
land conversion for urban and
commercial use, infrastructure (roads,
bridges, utilities), and urban water uses
(water supply reservoirs, wastewater
treatment); (2) nutrient pollution from
agricultural and horticultural activities
that impact water quantity and quality;
(3) significant alteration of water
quality; (4) significant alteration of
channel morphology or geometry,
including channelization,
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impoundment, road and bridge
construction, or instream mining,
dredging, or channelization; and (5)
watershed, riparian, and floodplain
disturbances that release sediments or
nutrients into the water or fill suitable
habitat.
Special management considerations
or protections may be required within
critical habitat areas to address these
threats. Management activities that
could ameliorate these threats include,
but are not limited to, restoration and
protection of riparian corridors and
retention of sufficient canopy cover
along banks; implementation of best
management practices to reduce
sedimentation, erosion, and streambank
degradation; stream bank restoration
projects; increased use of stormwater
management and reduction of
stormwater flows into the stream
systems; reduction of other watershed,
riparian, and floodplain disturbances
that release sediments, pollutants, or
nutrients into the water; and
improvements to industrial and
municipal water treatment facilities and
sewage systems to reduce nutrient and
pathogen pollution.
Criteria Used To Identify Critical
Habitat
As required by section 4(b)(2) of the
Act, we use the best scientific data
available to designate critical habitat. In
accordance with the Act and our
implementing regulations at 50 CFR
424.12(b), we review available
information pertaining to the habitat
requirements of the species and identify
specific areas within the geographical
area occupied by the species at the time
of listing and any specific areas outside
the geographical area occupied by the
species to be considered for designation
as critical habitat. We are not currently
proposing to designate any areas outside
the geographical area occupied by the
species because we have not identified
any unoccupied areas that meet the
definition of critical habitat;
specifically, no unoccupied areas are
essential for the conservation of the
species.
We are proposing to designate six
units that are currently occupied across
the geographic range as critical habitat.
The occupied areas proposed are
sufficient and adequate to ensure the
conservation of the species, as they will
support the species’ redundancy and
representation (table 6). We anticipate
that recovery will require continued
protection of the existing populations
and habitat, as well as ensuring there
are streams distributed across the
known range with stable Brawleys Fork
crayfish occurrences in five or more
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analysis units (as delineated in the SSA)
with sufficient abundance and occupied
reaches to increase species’ viability.
This conservation strategy and the
designation of proposed critical habitat
support the species’ ability to withstand
the loss of occurrences or occupied
stream reaches through a catastrophic
event, such as the effects of a rangewide
drought or mega-drought or chemical
spills and help ensure such an event is
less likely to simultaneously affect all
known streams with species’
occurrence. Rangewide recovery
considerations, such as maintaining
existing genetic diversity and striving
for representation across the current
range of the species, were considered in
formulating this proposed critical
habitat designation.
Sources of data for this proposed
critical habitat designation include the
SSA (Service 2023, entire); records
maintained by the Tennessee
Department of Environment and
Conservation, Tennessee Wildlife
Resources Agency, Tennessee Valley
Authority; research published in peerreviewed articles or presented in
academic theses and agency reports
(Rohrbach and Withers 2006; Williams
et al. 2017; Grubb 2019; Giddens and
Mattingly 2020); university and
museum collections; regional
Geographic Information System (GIS)
coverages; and information from other
survey reports on streams throughout
the species’ range (Khan 2021,
unpublished data). We have also
reviewed available information that
pertains to the habitat requirements of
the Brawleys Fork crayfish. Sources of
information on habitat requirements
include studies conducted at occupied
sites and published in peer-reviewed
articles, agency reports, and data
collected during monitoring efforts
(Service 2023, pp. 14–24).
In summary, for areas within the
geographic area occupied by the species
at the time of listing, we delineated
critical habitat unit boundaries using
the following criteria:
We identified streams and rivers
within the geographical area occupied at
the time of listing (i.e., with Brawleys
Fork crayfish occurrence records from
2000 to 2021). Many streams with
suitable habitat in the species’ range
have been surveyed in the last 15 years;
however, a rangewide survey has not
been conducted. Accordingly, it is
possible the species may be detected in
other locations upon subsequent
surveys. For example, the crayfish was
observed in the West Fork Stones River
in 2016 and Mountain Creek in 2018,
both representing new collection sites
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and range extensions for the species
(TWRA 2021, unpublished data).
We then identified those streams that
contain one or more of the physical or
biological features to support the lifehistory functions essential to the
conservation of the Brawleys Fork
crayfish. We delineated end points of
stream and river units by evaluating the
presence or absence of habitat
conditions and physical or biological
features essential to the species. We
selected upstream and downstream
endpoints for each unit where habitat
conditions no longer meet species
requirements (i.e., do not contain the
physical or biological features essential
to the conservation of the Brawleys Fork
crayfish). The endpoints often
correspond to tributary confluences,
dams, or headwater sources because of
the effect of these features on habitat
conditions. Where favorable habitat that
contains physical or biological features
essential to the conservation of
Brawleys Fork crayfish shifts to less
favorable habitat that does not contain
these features, we selected a reference
point such as a highway or bridge
crossing that will allow the public to
identify proposed critical habitat units.
The occurrence data are linear in nature;
therefore, for stretches of habitat
between occurrences, and between
occurrences and endpoints of units, we
assumed the interposing stream
segments contain at least one of the
physical or biological features essential
to the conservation of the species and
include the interposing stream segment
in the proposed critical habitat unit.
Based on the best available scientific
data, we determined that all currently
known occupied habitat for the
Brawleys Fork crayfish contains one or
more of the physical or biological
features essential to the conservation of
the species and which may require
special management considerations or
protection.
Based on this analysis, the following
streams or rivers meet the criteria for
areas occupied by the species: West
Fork Stones River, Brawleys Fork,
Carson Fork, Haws Spring Fork, East
Fork Stones River, Rockhouse Creek,
Bullpen Creek, and Mountain Creek.
The critical habitat designation includes
only the occupied streams or rivers
within the current range that have one
or more of the physical or biological
features essential to the conservation of
the species.
The result was the inclusion of six
units of critical habitat occupied by the
Brawleys Fork crayfish. These six units
encompass the same geographic area
and streams as the five analysis units
delineated in the SSA report (Service
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2023). These six occupied units
constitute approximately 86.6 river
miles (139.4 river kilometers). No areas
outside the geographical area occupied
by the species at the time of listing were
delineated as proposed critical habitat.
We are not designating any areas
outside the geographical area currently
occupied by the Brawleys Fork crayfish
because we determined that occupied
areas are sufficient to conserve the
species. Accordingly, we did not find
any unoccupied areas to be essential for
the conservation of the species.
When determining proposed critical
habitat boundaries, we made every
effort to avoid including developed
areas such as lands covered by
buildings, pavement, and other
structures because such lands lack
physical or biological features necessary
for Brawleys Fork crayfish. Critical
habitat for the Brawleys Fork crayfish
includes only stream channels up to
bankfull height, where the stream base
flow is contained within the channel.
The scale of the maps we prepared
under the parameters for publication
within the Code of Federal Regulations
may not reflect the exclusion of such
developed lands. Any such lands
inadvertently left inside critical habitat
boundaries shown on the maps of this
proposed rule have been excluded by
text in the proposed rule and are not
proposed for designation as critical
habitat. Therefore, if the critical habitat
is finalized as proposed, a Federal
action involving these lands would not
trigger section 7 consultation with
respect to critical habitat and the
requirement of no adverse modification
unless the specific action would affect
the physical or biological features in the
adjacent critical habitat.
We propose to designate as critical
habitat lands that we have determined
are occupied at the time of listing (i.e.,
currently occupied) and that contain
one or more of the physical or biological
features that are essential to support
life-history processes of the species.
Units are proposed for designation
based on one or more of the physical or
biological features being present to
support Brawleys Fork crayfish’s lifehistory processes. Some units contain
all of the identified physical or
biological features and support multiple
life-history processes. Some units
contain only some of the physical or
biological features necessary to support
the Brawleys Fork crayfish’s particular
use of that habitat.
The proposed critical habitat
designation is defined by the map or
maps, as modified by any accompanying
regulatory text, presented at the end of
this document under Proposed
Regulation Promulgation. We include
more detailed information on the
boundaries of the critical habitat
designation in the preamble of this
document. We will make the
coordinates or plot points or both on
which each map is based available to
the public on https://
www.regulations.gov at Docket No.
FWS–R4–ES–2023–0065 and on our
internet site https://www.fws.gov/
library/collections/Brawleys-Forkcrayfish.
Proposed Critical Habitat Designation
We are proposing to designate 86.6
rmi (139.4 rkm) in six units as critical
habitat for Brawleys Fork crayfish. The
critical habitat areas we describe below
constitute our current best assessment of
areas that meet the definition of critical
habitat for Brawleys Fork crayfish. The
six areas we propose as critical habitat
are: (1) West Fork Stones River, (2)
Brawleys Fork, (3) Carson Fork, (4) East
Fork Stones River, (5) Bullpen Creek,
and (6) Mountain Creek. Table 6 shows
the proposed critical habitat units and
the approximate area of each unit. All
six areas proposed as critical habitat are
occupied by Brawleys Fork crayfish.
TABLE 6—PROPOSED CRITICAL HABITAT UNITS FOR BRAWLEYS FORK CRAYFISH
[Area estimates reflect stream length within critical habitat unit boundaries]
Unit/subunit No.
Unit name
Private
(rmi)
Federal
(rmi)
State or
local
(rmi)
Total
river
miles
1 .........................................
2 .........................................
West Fork Stones ...........................................
Brawleys Fork .................................................
........................
13.8
6.2
........................
........................
........................
6.2
13.8
........................
........................
........................
........................
12.3
5.9
Unit 3—Carson Fork
3a .......................................
3b .......................................
Carson Fork ....................................................
Haws Spring Fork ...........................................
12.3
5.9
Unit 4—East Fork Stones River
4a .......................................
4b .......................................
5 .........................................
6 .........................................
East Fork Stones ............................................
Rockhouse Creek ...........................................
Bullpen Creek .................................................
Mountain Creek ...............................................
30.9
3.4
3.1
9.4
........................
........................
........................
........................
1.6
........................
........................
........................
32.5
3.4
3.1
9.4
Total ............................
.........................................................................
78.8
6.2
1.6
86.6
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Note: Area sizes may not sum due to rounding.
We present brief descriptions of all
units, and reasons why they meet the
definition of critical habitat for
Brawleys Fork crayfish, below.
Unit 1: West Fork Stones
Unit 1 consists of approximately 6.2
rmi (10 rkm) of the West Fork Stones
River beginning at the Nice’s Mill
Recreation Area lowhead dam and
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continuing to the confluence with the
Stones River in Rutherford County,
Tennessee. All riparian lands in Unit 1
are in Federal ownership (Department of
Defense, USACE, J. Percy Priest Lake).
Unit 1 is considered to be occupied by
the Brawleys Fork crayfish. Unit 1
contains four of the identified physical
or biological features essential to the
conservation of the Brawleys Fork
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crayfish. The West Fork Stones River is
isolated and does not have connectivity
to any other streams with known
Brawleys Fork crayfish occurrences;
thus, Unit 1 lacks the physical or
biological feature related to an
interconnected network of streams and
rivers. There is no overlap with any
designated critical habitat for other
listed species.
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Threats identified within this unit
include the degradation of habitat and
water quality from sedimentation and
water quality degradation due to
urbanization and development, flow
reduction and water quality degradation
due to water withdrawals and
wastewater treatment plants, and habitat
degradation due to instream
modifications including impoundments
and activities that degrade streambanks.
Special management considerations or
protection that may be required within
Unit 1 to reduce or alleviate impacts
may include implementation of best
management practices to improve water
quality or reverse degradation resulting
from urbanization and development (see
Special Management Considerations or
Protection, above). Special management
or protection may also include
consideration of Brawleys Fork crayfish
in the J. Percy Priest Lake Master Plan
and inclusion of habitat restoration
efforts in future actions.
Unit 2: Brawleys Fork
Unit 2 consists of approximately 13.8
rmi (22.2 rkm) of the Brawleys Fork and
tributaries in Cannon County,
Tennessee. Unit 2 includes the Brawleys
Fork from the headwaters at Mill Bluff
Hollow to the confluence with the
Carson Fork and Shelton Branch from
the Gene Perkins Road crossing to the
confluence with Brawleys Fork.
Riparian lands in Unit 2 are in private
ownership except for a small amount of
publicly owned bridge crossings and
road easements. Unit 2 is considered to
be occupied by the Brawleys Fork
crayfish and contains all physical or
biological features essential to the
conservation of the Brawleys Fork
crayfish. There is no overlap with any
designated critical habitat for other
listed species.
Threats identified within this unit
include the degradation of habitat and
water quality from sedimentation,
siltation, and pollution due to
agriculture, flow reduction and water
quality degradation due to water
withdrawals, and habitat degradation
due to instream modifications including
gravel dredging, impoundments, and
activities that degrade streambanks. In
some cases, these threats are being
addressed or coordinated with our
partners and landowners to implement
needed actions. Special management
considerations or protection measures
that may be required within Unit 2 to
alleviate impacts include reducing
wastewater or stormwater runoff,
removal of barriers or impoundments,
natural stream restoration, and
implementation of agricultural and
grazing practices that minimize nutrient
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and sediment input. Special
management or protection may also
include consideration of Brawleys Fork
crayfish in agriculture and urban
development plans and habitat
restoration efforts.
Unit 3: Carson Fork
Unit 3 consists of approximately 18.2
rmi (29.3 rkm) of the Carson Fork and
tributaries in Cannon County,
Tennessee. Two subunits are included
in Unit 3 (Carson Fork), Subunit 3a
(Carson Fork) and Subunit 3b (Haws
Spring Fork).
Subunit 3a (Carson Fork) consists of
12.3 rmi (19.8 rkm) and extends from
the headwaters of the Carson Fork near
Sadler Lane downstream to the
confluence with the East Fork Stones
River, from the headwaters of Duck
Branch to the confluence of Carson
Fork, and from the headwaters of an
unnamed tributary in Simmons Hollow
to the confluence of Carson Fork.
Subunit 3b (Haws Spring Fork subunit)
consists of 5.9 rmi (9.5 rkm) and extends
from the headwaters of Smith Branch
near Carrick Hollow to the confluence
with Haws Spring Fork and from the
headwaters of Haws Spring to the
confluence with the Carson Fork.
Riparian lands in Unit 3 are in private
ownership except for a small amount of
publicly owned bridge crossings and
road easements. Unit 3 is considered to
be occupied by the Brawleys Fork
crayfish. Unit 3 (subunits 3a and 3b)
contains all physical or biological
features essential to the conservation of
the Brawleys Fork crayfish. There is no
overlap with any designated critical
habitat for other listed species.
Threats identified within this unit
include the following: degradation of
habitat and water quality from
sedimentation, siltation, and pollution
due to agriculture, flow reduction, and
water withdrawals; and habitat
degradation due to instream
modifications including gravel
dredging, impoundments, and activities
that degrade streambanks. Special
management considerations or
protection that may be required within
Unit 3 to alleviate impacts include
reducing wastewater or stormwater
runoff, removal of barriers or
impoundments, natural stream
restoration, and implementation of
agricultural and grazing practices that
minimize nutrient and sediment input
into receiving streams. Special
management or protection may also
include consideration of Brawleys Fork
crayfish in agriculture and urban
development plans and habitat
restoration efforts.
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Unit 4: East Fork Stones River
Unit 4 consists of approximately 35.9
rmi (57.8 rkm) of the East Fork Stones
River mainstem and some of its
tributaries in Cannon County,
Tennessee. Two subunits are included
in Unit 4 (East Fork Stones River),
Subunit 4a (East Fork Stones) and
Subunit 4b (Rockhouse Creek). Subunit
4a (East Fork Stones subunit) consists of
32.5 rmi (52.3 rkm) and includes Hollis
Creek from the headwaters near Hollis
Creek South Road to the confluence
with the East Fork Stones River, Hill
Creek from the tributary at Wood
Hollow to the confluence with the East
Fork Stones River, Parchcorn Hollow
Branch from the Parchcorn Hollow road
crossing to the confluence with the East
Fork Stones River, Cavender Branch
from the Cavender Road bridge to the
confluence with the East Fork Stones
River, and from Locke Creek to the
confluence with the East Fork Stones
River.
Subunit 4b (Rockhouse Creek subunit)
consists of 3.4 rmi (5.5 rkm) and extends
from the stream crossing at Seal Hollow
Branch by Seal Hollow Road to the
confluence with Rockhouse Branch and
from the Higgins Road crossing of
Rockhouse Creek downstream to the
confluence with the East Fork Stones
River. Riparian lands in Unit 4 are in
State (0.7 rmi (1.1 rkm) of Headwater
Wildlife Management Area), local (0.9
rmi (1.4 rkm) in two parks), and private
ownership, as well as small amount of
publicly owned bridge crossings and
road easements. Unit 4 is considered to
be occupied by the Brawleys Fork
crayfish. Unit 4 (subunits 4a and 4b)
contains all physical or biological
features essential to the conservation of
the Brawleys Fork crayfish. There is no
overlap with any designated critical
habitat for other listed species.
Threats identified within this unit
include the following: degradation of
habitat and water quality from
sedimentation, siltation, and pollution
due to urbanization and development,
agriculture, flow reduction, water
withdrawals, and wastewater treatment
plant discharge; and habitat degradation
due to instream modifications including
gravel dredging, impoundments, and
activities that degrade streambanks. In
some cases, these threats are being
addressed or coordinated with our
partners and landowners to implement
needed actions. Special management
considerations or protection that may be
required within Unit 4 to alleviate
impacts include treating wastewater to
the greatest extent feasible, reducing
wastewater or stormwater runoff,
removal of barriers or impoundments,
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natural stream restoration,
implementation of appropriate
silvicultural and forestry best
management practices, and
implementation of agricultural and
grazing practices that minimize nutrient
and sediment input. Special
management or protection may also
include consideration of Brawleys Fork
crayfish in agriculture and urban
development plans and habitat
restoration efforts.
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Unit 5: Bullpen Creek
Unit 5 consists of approximately 3.1
rmi (5.0 rkm) of Bullpen Creek
beginning at the Lonnie Smith Road
crossing and extending downstream to
the lowhead dam near Charlie Powell
Road in Cannon County, Tennessee.
Riparian lands in Unit 5 are in private
ownership except for a small amount of
publicly owned bridge crossings and
road easements. Unit 5 is considered to
be occupied by the Brawleys Fork
crayfish. Unit 5 contains four of the
identified physical or biological features
essential to the conservation of the
Brawleys Fork crayfish. The Bullpen
Creek unit is isolated and does not have
connectivity to any other streams with
known Brawleys Fork crayfish
occurrences; thus, Unit 5 lacks the
physical or biological feature related to
an interconnected network of streams
and rivers. There is no overlap with any
designated critical habitat for other
listed species.
Threats identified within this unit
include the following: degradation of
habitat and water quality from
sedimentation, siltation, and pollution
due to agriculture and horticulture, flow
reduction, and water withdrawals; and
habitat degradation due to instream
modifications including gravel
dredging, impoundments, and activities
that degrade streambanks. In some
cases, these threats are being addressed
or coordinated with our partners and
landowners to implement needed
actions. Special management
considerations or protection that may be
required within Unit 5 to alleviate
impacts from stressors include but are
not limited to the following: treating
wastewater to the greatest extent
feasible, reducing wastewater or
stormwater runoff, removal of barriers
or impoundments, natural stream
restoration, and implementation of
agricultural and grazing practices that
minimize nutrient and sediment input.
Special management or protection may
also include consideration of Brawleys
Fork crayfish in agriculture and urban
development plans and habitat
restoration efforts.
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Unit 6: Mountain Creek
Unit 6 consists of approximately 9.4
rmi (15.1 rkm) of Mountain Creek in
Warren County, Tennessee. Unit 6
extends from the Mountain Creek road
crossing at Short Mountain Road
downstream to the Smithville Highway
bridge in the city of Dibrell, Warren
County, Tennessee. Riparian lands in
Unit 6 are in private ownership except
for a small amount of publicly owned
bridge crossings and road easements.
Unit 6 is considered to be occupied by
the Brawleys Fork crayfish. Unit 6
contains four of the identified physical
or biological features essential to the
conservation of the Brawleys Fork
crayfish. The Mountain Creek unit is
isolated and does not have connectivity
to any other streams with known
Brawleys Fork crayfish occurrences,
thus, Unit 6 lacks the physical or
biological feature related to an
interconnected network of streams and
rivers. There is no overlap with any
designated critical habitat for other
listed species.
Threats identified within this unit
include the following: degradation of
habitat and water quality from
sedimentation, siltation, and pollution
due to urbanization and development,
agriculture, and horticulture, flow
reduction, and water withdrawals; and
habitat degradation due to instream
modifications including gravel
dredging, impoundments, and activities
that degrade streambanks. Special
management considerations or
protection that may be required within
Unit 6 to alleviate impacts from
stressors include but are not limited to
the following: treating wastewater to the
greatest extent feasible, reducing
wastewater or stormwater runoff,
removal of barriers or impoundments,
natural stream restoration, and
implementation of agricultural and
grazing practices that minimize nutrient
and sediment input. Special
management or protection may also
include consideration of Brawleys Fork
crayfish in agriculture and urban
development plans and habitat
restoration efforts.
Effects of Critical Habitat Designation
Section 7 Consultation
Section 7(a)(2) of the Act requires
Federal agencies, including the Service,
to ensure that any action they fund,
authorize, or carry out is not likely to
jeopardize the continued existence of
any endangered species or threatened
species or result in the destruction or
adverse modification of designated
critical habitat of such species. In
addition, section 7(a)(4) of the Act
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57313
requires Federal agencies to confer with
the Service on any agency action which
is likely to jeopardize the continued
existence of any species proposed to be
listed under the Act or result in the
destruction or adverse modification of
proposed critical habitat.
We published a final rule revising the
definition of destruction or adverse
modification on August 27, 2019 (84 FR
44976). Destruction or adverse
modification means a direct or indirect
alteration that appreciably diminishes
the value of critical habitat as a whole
for the conservation of a listed species.
If a Federal action may affect a listed
species or its critical habitat, the
responsible Federal agency (action
agency) must enter into consultation
with us. Examples of actions that are
subject to the section 7 consultation
process are actions on State, Tribal,
local, or private lands that require a
Federal permit (such as a permit from
the U.S. Army Corps of Engineers under
section 404 of the Clean Water Act (33
U.S.C. 1251 et seq.) or a permit from the
Service under section 10 of the Act) or
that involve some other Federal action
(such as funding from the Federal
Highway Administration, Federal
Aviation Administration, or the Federal
Emergency Management Agency).
Federal actions not affecting listed
species or critical habitat—and actions
on State, Tribal, local, or private lands
that are not federally funded,
authorized, or carried out by a Federal
agency—do not require section 7
consultation.
Compliance with the requirements of
section 7(a)(2) is documented through
our issuance of:
(1) A concurrence letter for Federal
actions that may affect, but are not
likely to adversely affect, listed species
or critical habitat; or
(2) A biological opinion for Federal
actions that may affect, and are likely to
adversely affect, listed species or critical
habitat.
When we issue a biological opinion
concluding that a project is likely to
jeopardize the continued existence of a
listed species and/or destroy or
adversely modify critical habitat, we
provide reasonable and prudent
alternatives to the project, if any are
identifiable, that would avoid the
likelihood of jeopardy and/or
destruction or adverse modification of
critical habitat. We define ‘‘reasonable
and prudent alternatives’’ (at 50 CFR
402.02) as alternative actions identified
during consultation that:
(1) Can be implemented in a manner
consistent with the intended purpose of
the action,
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(2) Can be implemented consistent
with the scope of the Federal agency’s
legal authority and jurisdiction,
(3) Are economically and
technologically feasible, and
(4) Would, in the Service Director’s
opinion, avoid the likelihood of
jeopardizing the continued existence of
the listed species and/or avoid the
likelihood of destroying or adversely
modifying critical habitat.
Reasonable and prudent alternatives
can vary from slight project
modifications to extensive redesign or
relocation of the project. Costs
associated with implementing a
reasonable and prudent alternative are
similarly variable.
Regulations at 50 CFR 402.16 set forth
requirements for Federal agencies to
reinitiate formal consultation on
previously reviewed actions. These
requirements apply when the Federal
agency has retained discretionary
involvement or control over the action
(or the agency’s discretionary
involvement or control is authorized by
law) and, subsequent to the previous
consultation: (a) if the amount or extent
of taking specified in the incidental take
statement is exceeded; (b) if new
information reveals effects of the action
that may affect listed species or critical
habitat in a manner or to an extent not
previously considered; (c) if the
identified action is subsequently
modified in a manner that causes an
effect to the listed species or critical
habitat that was not considered in the
biological opinion or written
concurrence; or (d) if a new species is
listed or critical habitat designated that
may be affected by the identified action.
The reinitiation requirement applies
only to actions that remain subject to
some discretionary Federal involvement
or control. As provided in 50 CFR
402.16, the requirement to reinitiate
consultations for new species listings or
critical habitat designation does not
apply to certain agency actions (e.g.,
land management plans issued by the
Bureau of Land Management in certain
circumstances.
Application of the ‘‘Destruction or
Adverse Modification’’ Standard
The key factor related to the
destruction or adverse modification
determination is whether
implementation of the proposed Federal
action directly or indirectly alters the
designated critical habitat in a way that
appreciably diminishes the value of the
critical habitat for the conservation of
the listed species. As discussed above,
the role of critical habitat is to support
physical or biological features essential
to the conservation of a listed species
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and provide for the conservation of the
species.
Section 4(b)(8) of the Act requires us
to briefly evaluate and describe, in any
proposed or final regulation that
designates critical habitat, activities
involving a Federal action that may
violate section 7(a)(2) of the Act by
destroying or adversely modifying such
habitat, or that may be affected by such
designation.
Activities that we may, during a
consultation under section 7(a)(2) of the
Act, consider likely to destroy or
adversely modify critical habitat
include, but are not limited to: (1)
Actions that would impede or
disconnect stream and river channels
and contribute to further habitat
fragmentation at a scale and magnitude
that appreciably diminishes the value of
critical habitat (e.g., large
impoundments, reservoir creation).
Such activities include, but are not
limited to, construction of barriers that
impede the instream movement of the
Brawleys Fork crayfish (e.g.,
impoundments, dams, culverts, or
weirs). These activities could result in
destruction or fragmentation of habitat,
block movements between habitats,
and/or affect flows within or into
critical habitat. In addition, these
activities can isolate populations that
are more at risk of decline or extirpation
as a result of genetic drift, demographic
or environmental stochasticity, and
catastrophic events.
(2) Actions that would affect channel
substrates and stability or
geomorphology at a scale and
magnitude that appreciably diminishes
the value of critical habitat (e.g.,
multiple or large tributaries or main
channel rerouting, dam construction on
a river with Brawleys Fork crayfish
occurrences). Such activities include
channelization, impoundment, mining,
dredging, road and bridge construction,
removal of riparian vegetation, and land
clearing. These activities may lead to
changes in channel substrates, erosion
of the streambed and banks, and
excessive sedimentation that could
degrade Brawleys Fork crayfish habitat.
(3) Actions that would reduce flow
levels or alter flow regimes at a scale
and magnitude that appreciably
diminishes the value of critical habitat
(i.e., flow levels or regimes that no
longer support Brawleys Fork crayfish
in one or more critical habitat units).
These could include, but are not limited
to, activities that block or lower surface
flow or groundwater levels, including
channelization, impoundment,
groundwater pumping, and surface
water withdrawal or diversion. Such
activities can result in long-term
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changes in stream flows that affect
habitat quality and quantity for the
Brawleys Fork crayfish and its prey.
(4) Actions that would significantly
alter water chemistry or quality to the
extent that the value of critical habitat
is appreciably diminished (i.e., water
quality does not support the Brawleys
Fork crayfish’s needs in one or more
units). Such activities could include,
but are not limited to, release of
chemicals or biological pollutants or
heated effluents into the surface water
or connected groundwater at a point
source or by dispersed release (nonpoint source). These activities could
alter water conditions to levels that are
beyond the tolerances of the Brawleys
Fork crayfish and result in direct or
cumulative adverse effects to
individuals and their life cycles.
(5) Actions that would significantly
increase sediment deposition or stream
bottom embeddedness within the stream
channel to the extent that the value of
critical habitat is appreciably
diminished (e.g., excessive siltation
such that Brawleys Fork crayfish are not
able to use the critical habitat unit).
Such activities could include, but are
not limited to, excessive sedimentation
from livestock grazing, road
construction, channel alteration, and
agricultural or horticultural practices
that do not implement BMPs or
improperly implement BMPs, mining,
dredging, and other watershed and
floodplain disturbances. These activities
could eliminate or reduce the habitat
necessary for the growth and
reproduction of the Brawleys Fork
crayfish by increasing the sediment
deposition to levels that would
adversely affect the Brawleys Fork
crayfish’s ability to complete its life
cycle.
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. No DoD
lands with a completed INRMP are
within the proposed critical habitat
designation.
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Consideration of Impacts Under Section
4(b)(2) of the Act
Section 4(b)(2) of the Act states that
the Secretary shall designate and make
revisions to critical habitat on the basis
of the best available scientific data after
taking into consideration the economic
impact, national security impact, and
any other relevant impact of specifying
any particular area as critical habitat.
The Secretary may exclude an area from
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.
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Consideration of Economic Impacts
Section 4(b)(2) of the Act and its
implementing regulations require that
we consider the economic impact that
may result from a designation of critical
habitat. To assess the probable
economic impacts of a designation, we
must first evaluate specific land uses or
activities and projects that may occur in
the area of the critical habitat. We then
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must evaluate the impacts that a specific
critical habitat designation may have on
restricting or modifying specific land
uses or activities for the benefit of the
species and its habitat within the areas
proposed. We then identify which
conservation efforts may be the result of
the species being listed under the Act
versus those attributed solely to the
designation of critical habitat for this
particular species. The probable
economic impact of a proposed critical
habitat designation is analyzed by
comparing scenarios both ‘‘with critical
habitat’’ and ‘‘without critical habitat.’’
The ‘‘without critical habitat’’
scenario represents the baseline for the
analysis, which includes the existing
regulatory and socio-economic burden
imposed on landowners, managers, or
other resource users potentially affected
by the designation of critical habitat
(e.g., under the Federal listing as well as
other Federal, State, and local
regulations). Therefore, the baseline
represents the costs of all efforts
attributable to the listing of the species
under the Act (i.e., conservation of the
species and its habitat incurred
regardless of whether critical habitat is
designated). The ‘‘with critical habitat’’
scenario describes the incremental
impacts associated specifically with the
designation of critical habitat for the
species. The incremental conservation
efforts and associated impacts would
not be expected without the designation
of critical habitat for the species. In
other words, the incremental costs are
those attributable solely to the
designation of critical habitat, above and
beyond the baseline costs. These are the
costs we use when evaluating the
benefits of inclusion and exclusion of
particular areas from the final
designation of critical habitat should we
choose to conduct a discretionary
section 4(b)(2) exclusion analysis.
Executive Order (E.O.) 12866, as
reaffirmed by E.O.s 13563 and 14094,
direct Federal agencies to assess the
costs and benefits of available regulatory
alternatives in quantitative (to the extent
feasible) and qualitative terms.
Consistent with the Executive order’s
regulatory analysis requirements, our
effects analysis under the Act may take
into consideration impacts to both
directly and indirectly affected entities,
where practicable and reasonable. If
sufficient data are available, we assess
to the extent practicable the probable
impacts to both directly and indirectly
affected entities. Section 3(f) of E.O.
12866 identifies four criteria when a
regulation is considered a ‘‘significant
regulatory action’’ and requires
additional analysis, review, and
approval if met. The criterion relevant
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57315
here is whether the designation of
critical habitat may have an economic
effect of $200 million in any given year
(section 3(f)(1)). Therefore, our
consideration of economic impacts uses
a screening analysis to assess whether a
designation of critical habitat for
Brawleys Fork crayfish is likely to
exceed the economically significant
threshold.
For this particular designation, we
developed an incremental effects
memorandum (IEM) considering the
probable incremental economic impacts
that may result from this proposed
designation of critical habitat. The
information contained in our IEM was
then used to develop a screening
analysis of the probable effects of the
designation of critical habitat for the
Brawleys Fork crayfish (Industrial
Economics, Inc. 2022, entire). We began
by conducting a screening analysis of
the proposed designation of critical
habitat in order to focus our analysis on
the key factors that are likely to result
in incremental economic impacts. The
purpose of the screening analysis is to
filter out particular geographic areas of
critical habitat that are already subject
to such protections and are, therefore,
unlikely to incur incremental economic
impacts. In particular, the screening
analysis considers baseline costs (i.e.,
absent critical habitat designation) and
includes any probable incremental
economic impacts where land and water
use may already be subject to
conservation plans, land management
plans, best management practices, or
regulations that protect the habitat area
as a result of the Federal listing status
of the species. Ultimately, the screening
analysis allows us to focus our analysis
on evaluating the specific areas or
sectors that may incur probable
incremental economic impacts as a
result of the designation.
The presence of the listed species in
occupied areas of critical habitat means
that any destruction or adverse
modification of those areas is also likely
to jeopardize the continued existence of
the species. For that reason, designating
occupied areas as critical habitat
typically causes little if any incremental
impacts above and beyond the impacts
of listing the species. Therefore, the
screening analysis focuses on areas of
unoccupied critical habitat. If there are
any unoccupied units in the proposed
critical habitat designation, the
screening analysis assesses whether any
additional management or conservation
efforts may incur incremental economic
impacts. This screening analysis
combined with the information
contained in our IEM constitute what
we consider to be our draft economic
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analysis (DEA) of the proposed critical
habitat designation for the Brawleys
Fork crayfish; our DEA is summarized
in the narrative below.
As part of our screening analysis, we
considered the types of economic
activities that are likely to occur within
the areas likely affected by the critical
habitat designation. In our evaluation of
the probable incremental economic
impacts that may result from the
proposed designation of critical habitat
for the Brawleys Fork crayfish, first we
identified, in the IEM dated April 8,
2022, probable incremental economic
impacts associated with the following
categories of activities: (1) agriculture,
(2) forestry, (3) development, (4)
recreation, (5) restoration activities, (6)
flood control, (7) transportation, (8)
water quantity/supply, (9) dredging, and
(10) utilities. We considered each
industry or category individually.
Additionally, we considered whether
their activities have any Federal
involvement. Critical habitat
designation generally will not affect
activities that do not have any Federal
involvement; under the Act, designation
of critical habitat affects only activities
conducted, funded, permitted, or
authorized by Federal agencies. If we
list the species, in areas where the
Brawleys Fork crayfish is present,
Federal agencies would be required to
consult with the Service under section
7 of the Act on activities they fund,
permit, or implement that may affect the
species. If, when we list the species, we
also finalize this proposed critical
habitat designation, our consultations
would include an evaluation of
measures to avoid the destruction or
adverse modification of critical habitat.
In our IEM, we attempted to clarify
the distinction between the effects that
would result from the species being
listed and those attributable to the
critical habitat designation (i.e.,
difference between the jeopardy and
adverse modification standards) for the
Brawleys Fork crayfish’s critical habitat.
Because the designation of critical
habitat for Brawleys Fork crayfish is
being proposed concurrently with the
listing, it has been our experience that
it is more difficult to discern which
conservation efforts are attributable to
the species being listed and those which
will result solely from the designation of
critical habitat. However, the following
specific circumstances in this case help
to inform our evaluation: (1) The
essential physical or biological features
identified for critical habitat are the
same features essential for the life
requisites of the species, and (2) any
actions that would likely adversely
affect the essential physical or biological
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features of occupied critical habitat are
also likely to adversely affect the
Brawleys Fork crayfish. The IEM
outlines our rationale concerning this
limited distinction between baseline
conservation efforts and incremental
impacts of the designation of critical
habitat for this species. This evaluation
of the incremental effects has been used
as the basis to evaluate the probable
incremental economic impacts of this
proposed designation of critical habitat.
The proposed critical habitat
designation for the Brawleys Fork
crayfish totals approximately 86.6 rmi
(139.4 rkm) of stream and river channels
in six units in Tennessee. Ownership of
riparian lands adjacent to the proposed
units includes 78.8 rmi (126.8 rkm; 91
percent) in private ownership and 7.8
rmi (12.5 rkm; 9 percent) in public
(Federal or State) ownership. All six
units are currently occupied by the
species and contain recent (2000 to
2021) occurrences of Brawleys Fork
crayfish. In these areas, any actions that
may affect the species or its habitat
would also affect proposed critical
habitat. Thus, it is unlikely that any
additional conservation efforts would be
recommended to address the adverse
modification standard over and above
those recommended as necessary to
avoid jeopardizing the continued
existence of the Brawleys Fork crayfish.
We are not proposing to designate any
units of unoccupied habitat.
Because we are proposing the
designation only of occupied critical
habitat, the only additional costs that
are expected in all of the proposed
critical habitat designation are
administrative costs. The entities most
likely to incur incremental costs are the
Federal action agencies that are parties
to section 7 consultations. While the
analysis for adverse modification of
critical habitat will require time and
resources by both the Federal action
agency and the Service, these costs
would predominantly be administrative
in nature. About 91 percent of the
proposed critical habitat designation for
the Brawleys Fork crayfish lies on
private lands. As such, incremental
costs from public perception of the
designation have some potential to arise
(Industrial Economics, Inc. (IEc) 2022,
pp. 14–15). However, the critical habitat
units are in largely rural areas that are
not experiencing significant
development pressures. As such, the
likelihood that critical habitat
designation for the Brawleys Fork
crayfish will result in perception-related
impacts appears unlikely. The estimated
incremental costs of critical habitat
designation for the Brawleys Fork
crayfish in the first year are not
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expected to exceed $9,200 per year
(2022 dollars) (IEc 2022, p. 14). Thus,
critical habitat designation for the
Brawleys Fork crayfish is unlikely to
generate costs or benefits exceeding
$200 million in a single year. Therefore,
this rule is unlikely to meet the
threshold for an economically
significant rule, with regard to costs,
under E.O. 12866.
We are soliciting data and comments
from the public on the DEA discussed
above. During the development of a
final designation, we will consider the
information presented in the DEA and
any additional information on economic
impacts we receive during the public
comment period to determine whether
any specific areas should be excluded
from the final critical habitat
designation under authority of section
4(b)(2) of the Act and our implementing
regulations at 50 CFR 424.19. We may
exclude an area from critical habitat if
we determine that the benefits of
excluding the area outweigh the benefits
of including the area, provided the
exclusion will not result in the
extinction of this species.
Consideration of National Security
Impacts
Section 4(a)(3)(B)(i) of the Act may
not cover all DoD lands or areas that
pose potential national-security
concerns (e.g., a DoD installation that is
in the process of revising its INRMP for
a newly listed species or a species
previously not covered). If a particular
area is not covered under section
4(a)(3)(B)(i), then national-security or
homeland-security concerns are not a
factor in the process of determining
what areas meet the definition of
‘‘critical habitat.’’ However, the Service
must still consider impacts on national
security, including homeland security,
on those lands or areas not covered by
section 4(a)(3)(B)(i) because section
4(b)(2) requires the Service to consider
those impacts whenever it designates
critical habitat. Accordingly, if DoD,
Department of Homeland Security
(DHS), or another Federal agency has
requested exclusion based on an
assertion of national-security or
homeland-security concerns, or we have
otherwise identified national-security or
homeland-security impacts from
designating particular areas as critical
habitat, we generally have reason to
consider excluding those areas.
However, we cannot automatically
exclude requested areas. When DoD,
DHS, or another Federal agency requests
exclusion from critical habitat on the
basis of national-security or homelandsecurity impacts, we must conduct an
exclusion analysis if the Federal
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requester provides information,
including a reasonably specific
justification of an incremental impact
on national security that would result
from the designation of that specific
area as critical habitat. That justification
could include demonstration of
probable impacts, such as impacts to
ongoing border-security patrols and
surveillance activities, or a delay in
training or facility construction, as a
result of compliance with section 7(a)(2)
of the Act. If the agency requesting the
exclusion does not provide us with a
reasonably specific justification, we will
contact the agency to recommend that it
provide a specific justification or
clarification of its concerns relative to
the probable incremental impact that
could result from the designation. If we
conduct an exclusion analysis because
the agency provides a reasonably
specific justification or because we
decide to exercise the discretion to
conduct an exclusion analysis, we will
defer to the expert judgment of DoD,
DHS, or another Federal agency as to:
(1) Whether activities on its lands or
waters, or its activities on other lands or
waters, have national-security or
homeland-security implications; (2) the
importance of those implications; and
(3) the degree to which the cited
implications would be adversely
affected in the absence of an exclusion.
In that circumstance, in conducting a
discretionary section 4(b)(2) exclusion
analysis, we will give great weight to
national-security and homeland-security
concerns in analyzing the benefits of
exclusion.
We have evaluated whether any of the
lands within the proposed designation
of critical habitat are owned by DoD or
DHS or could lead to national-security
or homeland-security impacts if
designated. In preparing this proposal,
we have determined that the lands
within the proposed designation of
critical habitat for Brawleys Fork
crayfish including the J. Percy Priest
Reservoir in Unit 1 are owned or
managed by the DoD Army Corps of
Engineers. However, we anticipate no
impact on national security or
homeland security resulting from the
proposed critical habitat designation.
Consideration of Other Relevant
Impacts
Under section 4(b)(2) of the Act, we
consider any other relevant impacts, in
addition to economic impacts and
impacts on national security discussed
above. To identify other relevant
impacts that may affect the exclusion
analysis, we consider a number of
factors, including whether there are
permitted conservation plans covering
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the species in the area—such as HCPs,
safe harbor agreements (SHAs), or
candidate conservation agreements with
assurances (CCAAs)—or whether there
are non-permitted conservation
agreements and partnerships that may
be impaired by designation of, or
exclusion from, critical habitat. In
addition, we look at whether Tribal
conservation plans or partnerships,
Tribal resources, or government-togovernment relationships of the United
States with Tribal entities may be
affected by the designation. We also
consider any State, local, social, or other
impacts that might occur because of the
designation.
In preparing this proposal, we have
determined that no HCPs or other
management plans for Brawleys Fork
crayfish currently exist, and the
proposed designation does not include
any Tribal lands or trust resources or
any lands for which designation would
have any economic or national security
impacts. Therefore, we anticipate no
impact on Tribal lands, partnerships, or
HCPs from this proposed critical habitat
designation and thus, as described
above, we are not considering excluding
any particular areas on the basis of the
presence of conservation agreements or
impacts to trust resources.
However, if through the public
comment period we receive information
that we determine indicates that there
are potential economic, national
security, or other relevant impacts from
designating particular areas as critical
habitat, then as part of developing the
final designation of critical habitat, we
will evaluate that information and may
conduct a discretionary exclusion
analysis to determine whether to
exclude those areas under authority of
section 4(b)(2) and our implementing
regulations at 50 CFR 424.19. If we
receive a request for exclusion of a
particular area and after evaluation of
supporting information we do not
exclude, we will fully describe our
decision in the final rule for this action.
Required Determinations
Clarity of the Rule
We are required by E.O.s 12866 and
12988 and by the Presidential
Memorandum of June 1, 1998, to write
all rules in plain language. This means
that each rule we publish must:
(1) Be logically organized;
(2) Use the active voice to address
readers directly;
(3) Use clear language rather than
jargon;
(4) Be divided into short sections and
sentences; and
(5) Use lists and tables wherever
possible.
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If you feel that we have not met these
requirements, send us comments by one
of the methods listed in ADDRESSES. To
better help us revise the rule, your
comments should be as specific as
possible. For example, you should tell
us the numbers of the sections or
paragraphs that are unclearly written,
which sections or sentences are too
long, the sections where you feel lists or
tables would be useful, etc.
Regulatory Planning and Review
(Executive Orders 12866, 13563, and
14094)
Executive Order 14094 reaffirms the
principles of E.O. 12866 and E.O. 13563
and states that regulatory analysis
should facilitate agency efforts to
develop regulations that serve the
public interest, advance statutory
objectives, and are consistent with E.O.
12866, E.O. 13563, and the Presidential
Memorandum of January 20, 2021
(Modernizing Regulatory Review).
Regulatory analysis, as practicable and
appropriate, shall recognize distributive
impacts and equity, to the extent
permitted by law. We have developed
this proposed rule in a manner
consistent with these requirements.
E.O. 12866, as reaffirmed by E.O.
13563 and E.O. 14094, provides that the
Office of Information and Regulatory
Affairs (OIRA) in the Office of
Management and Budget (OMB) will
review all significant rules. OIRA has
determined that this proposed
rulemaking action is not significant.
Regulatory Flexibility Act (5 U.S.C. 601
et seq.)
Under the Regulatory Flexibility Act
(RFA; 5 U.S.C. 601 et seq.), as amended
by the Small Business Regulatory
Enforcement Fairness Act of 1996
(SBREFA; 5 U.S.C. 801 et seq.),
whenever an agency is required to
publish a notice of rulemaking for any
proposed or final rule, it must prepare
and make available for public comment
a regulatory flexibility analysis that
describes the effects of the rule on small
entities (i.e., small businesses, small
organizations, and small government
jurisdictions). However, no regulatory
flexibility analysis is required if the
head of the agency certifies the rule will
not have a significant economic impact
on a substantial number of small
entities. The SBREFA amended the RFA
to require Federal agencies to provide a
certification statement of the factual
basis for certifying that the rule will not
have a significant economic impact on
a substantial number of small entities.
According to the Small Business
Administration, small entities include
small organizations such as
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independent nonprofit organizations;
small governmental jurisdictions,
including school boards and city and
town governments that serve fewer than
50,000 residents; and small businesses
(13 CFR 121.201). Small businesses
include manufacturing and mining
concerns with fewer than 500
employees, wholesale trade entities
with fewer than 100 employees, retail
and service businesses with less than $5
million in annual sales, general and
heavy construction businesses with less
than $27.5 million in annual business,
special trade contractors doing less than
$11.5 million in annual business, and
agricultural businesses with annual
sales less than $750,000. To determine
whether potential economic impacts to
these small entities are significant, we
considered the types of activities that
might trigger regulatory impacts under
this designation as well as types of
project modifications that may result. In
general, the term ‘‘significant economic
impact’’ is meant to apply to a typical
small business firm’s business
operations.
Under the RFA, as amended, and as
understood in light of recent court
decisions, Federal agencies are required
to evaluate the potential incremental
impacts of rulemaking on those entities
directly regulated by the rulemaking
itself; in other words, the RFA does not
require agencies to evaluate the
potential impacts to indirectly regulated
entities. The regulatory mechanism
through which critical habitat
protections are realized is section 7 of
the Act, which requires Federal
agencies, in consultation with the
Service, to ensure that any action
authorized, funded, or carried out by the
agency is not likely to destroy or
adversely modify critical habitat.
Therefore, under section 7, only Federal
action agencies are directly subject to
the specific regulatory requirement
(avoiding destruction and adverse
modification) imposed by critical
habitat designation. Consequently, it is
our position that only Federal action
agencies would be directly regulated if
we adopt the proposed critical habitat
designation. The RFA does not require
evaluation of the potential impacts to
entities not directly regulated.
Moreover, Federal agencies are not
small entities. Therefore, because no
small entities would be directly
regulated by this rulemaking, the
Service certifies that, if made final as
proposed, the proposed critical habitat
designation will not have a significant
economic impact on a substantial
number of small entities.
In summary, we have considered
whether the proposed designation
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would result in a significant economic
impact on a substantial number of small
entities. For the above reasons and
based on currently available
information, we certify that, if made
final, the proposed critical habitat
designation would not have a significant
economic impact on a substantial
number of small business entities.
Therefore, an initial regulatory
flexibility analysis is not required.
Energy Supply, Distribution, or Use—
Executive Order 13211
Executive Order 13211 (Actions
Concerning Regulations That
Significantly Affect Energy Supply,
Distribution, or Use) requires agencies
to prepare statements of energy effects
when undertaking certain actions.
Facilities that provide energy supply,
distribution, or use occur within some
units of the proposed critical habitat
designations (for example, dams,
pipelines) and may potentially be
affected. We determined that
consultations, technical assistance, and
requests for species lists may be
necessary in some instances. In our
economic analysis, we did not find that
this proposed critical habitat
designation would significantly affect
energy supplies, distribution, or use.
Therefore, this action is not a significant
energy action, and no statement of
energy effects is required.
Unfunded Mandates Reform Act (2
U.S.C. 1501 et seq.)
In accordance with the Unfunded
Mandates Reform Act (2 U.S.C. 1501 et
seq.), we make the following finding:
(1) This proposed rule would not
produce a Federal mandate. In general,
a Federal mandate is a provision in
legislation, statute, or regulation that
would impose an enforceable duty upon
State, local, or Tribal governments, or
the private sector, and includes both
‘‘Federal intergovernmental mandates’’
and ‘‘Federal private sector mandates.’’
These terms are defined in 2 U.S.C.
658(5)–(7). ‘‘Federal intergovernmental
mandate’’ includes a regulation that
‘‘would impose an enforceable duty
upon State, local, or Tribal
governments’’ with two exceptions. It
excludes ‘‘a condition of Federal
assistance.’’ It also excludes ‘‘a duty
arising from participation in a voluntary
Federal program,’’ unless the regulation
‘‘relates to a then-existing Federal
program under which $500,000,000 or
more is provided annually to State,
local, and Tribal governments under
entitlement authority,’’ if the provision
would ‘‘increase the stringency of
conditions of assistance’’ or ‘‘place caps
upon, or otherwise decrease, the Federal
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Government’s responsibility to provide
funding,’’ and the State, local, or Tribal
governments ‘‘lack authority’’ to adjust
accordingly. At the time of enactment,
these entitlement programs were:
Medicaid; Aid to Families with
Dependent Children work programs;
Child Nutrition; Food Stamps; Social
Services Block Grants; Vocational
Rehabilitation State Grants; Foster Care,
Adoption Assistance, and Independent
Living; Family Support Welfare
Services; and Child Support
Enforcement. ‘‘Federal private sector
mandate’’ includes a regulation that
‘‘would impose an enforceable duty
upon the private sector, except (i) a
condition of Federal assistance or (ii) a
duty arising from participation in a
voluntary Federal program.’’
The designation of critical habitat
does not impose a legally binding duty
on non-Federal Government entities or
private parties. Under the Act, the only
regulatory effect is that Federal agencies
must ensure that their actions are not
likely to destroy or adversely modify
critical habitat under section 7. While
non-Federal entities that receive Federal
funding, assistance, or permits, or that
otherwise require approval or
authorization from a Federal agency for
an action, may be indirectly impacted
by the designation of critical habitat, the
legally binding duty to avoid
destruction or adverse modification of
critical habitat rests squarely on the
Federal agency. Furthermore, to the
extent that non-Federal entities are
indirectly impacted because they
receive Federal assistance or participate
in a voluntary Federal aid program, the
Unfunded Mandates Reform Act would
not apply, nor would critical habitat
shift the costs of the large entitlement
programs listed above onto State
governments.
(2) We do not believe that this rule
would significantly or uniquely affect
small governments because small
governments will be affected only to the
extent that any programs having Federal
funds, permits, or other authorized
activities must ensure that their actions
will not adversely affect the critical
habitat. Therefore, a small government
agency plan is not required.
Takings—Executive Order 12630
In accordance with E.O. 12630
(Government Actions and Interference
with Constitutionally Protected Private
Property Rights), we have analyzed the
potential takings implications of
designating critical habitat for Brawleys
Fork crayfish in a takings implications
assessment. The Act does not authorize
the Service to regulate private actions
on private lands or confiscate private
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property as a result of critical habitat
designation. Designation of critical
habitat does not affect land ownership,
or establish any closures, or restrictions
on use of or access to the designated
areas. Furthermore, the designation of
critical habitat does not affect
landowner actions that do not require
Federal funding or permits, nor does it
preclude development of habitat
conservation programs or issuance of
incidental take permits to permit actions
that do require Federal funding or
permits to go forward. However, Federal
agencies are prohibited from carrying
out, funding, or authorizing actions that
would destroy or adversely modify
critical habitat. A takings implications
assessment has been completed for the
proposed designation of critical habitat
for Brawleys Fork crayfish, and it
concludes that, if adopted, this
designation of critical habitat does not
pose significant takings implications for
lands within or affected by the
designation.
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Federalism—Executive Order 13132
In accordance with E.O. 13132
(Federalism), this proposed rule does
not have significant Federalism effects.
A federalism summary impact statement
is not required. In keeping with
Department of the Interior and
Department of Commerce policy, we
requested information from, and
coordinated development of this
proposed critical habitat designation
with, appropriate State resource
agencies. From a federalism perspective,
the designation of critical habitat
directly affects only the responsibilities
of Federal agencies. The Act imposes no
other duties with respect to critical
habitat, either for States and local
governments, or for anyone else. As a
result, the proposed rule does not have
substantial direct effects either on the
States, or on the relationship between
the Federal government and the States,
or on the distribution of powers and
responsibilities among the various
levels of government. The proposed
designation may have some benefit to
these governments because the areas
that contain the features essential to the
conservation of the species are more
clearly defined, and the physical or
biological features of the habitat
necessary for the conservation of the
species are specifically identified. This
information does not alter where and
what federally sponsored activities may
occur. However, it may assist State and
local governments in long-range
planning because they no longer have to
wait for case-by-case section 7
consultations to occur.
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Where State and local governments
require approval or authorization from a
Federal agency for actions that may
affect critical habitat, consultation
under section 7(a)(2) of the Act would
be required. While non-Federal entities
that receive Federal funding, assistance,
or permits, or that otherwise require
approval or authorization from a Federal
agency for an action, may be indirectly
impacted by the designation of critical
habitat, the legally binding duty to
avoid destruction or adverse
modification of critical habitat rests
squarely on the Federal agency.
Civil Justice Reform—Executive Order
12988
In accordance with E.O. 12988 (Civil
Justice Reform), the Office of the
Solicitor has determined that the rule
would not unduly burden the judicial
system and that it meets the
requirements of sections 3(a) and 3(b)(2)
of the Order. We have proposed
designating critical habitat in
accordance with the provisions of the
Act. To assist the public in
understanding the habitat needs of the
species, this proposed rule identifies the
physical or biological features essential
to the conservation of the species. The
proposed areas of critical habitat are
presented on maps, and the proposed
rule provides several options for the
interested public to obtain more
detailed location information, if desired.
Paperwork Reduction Act of 1995 (44
U.S.C. 3501 et seq.)
This rule does not contain
information collection requirements,
and a submission to the Office of
Management and Budget (OMB) under
the Paperwork Reduction Act of 1995
(44 U.S.C. 3501 et seq.) is not required.
We may not conduct or sponsor and you
are not required to respond to a
collection of information unless it
displays a currently valid OMB control
number.
National Environmental Policy Act (42
U.S.C. 4321 et seq.)
Regulations adopted pursuant to
section 4(a) of the Act are exempt from
the National Environmental Policy Act
(NEPA; 42 U.S.C. 4321 et seq.) and do
not require an environmental analysis
under NEPA. We published a notice
outlining our reasons for this
determination in the Federal Register
on October 25, 1983 (48 FR 49244). This
includes listing, delisting, and
reclassification rules, as well as critical
habitat. In a line of cases starting with
Douglas County v. Babbitt, 48 F.3d 1495
(9th Cir. 1995) the courts have upheld
this position.
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57319
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), E.O. 13175
(Consultation and Coordination with
Indian Tribal Governments), and the
Department of the Interior’s manual at
512 DM 2, we readily acknowledge our
responsibility to communicate
meaningfully with federally recognized
Tribes on a government-to-government
basis. In accordance with Secretarial
Order 3206 of June 5, 1997 (American
Indian Tribal Rights, Federal-Tribal
Trust Responsibilities, and the
Endangered Species Act), we readily
acknowledge our responsibilities to
work directly with Tribes in developing
programs for healthy ecosystems, to
acknowledge that Tribal lands are not
subject to the same controls as Federal
public lands, to remain sensitive to
Indian culture, and to make information
available to Tribes. We have determined
that no Tribal lands fall within the
boundaries of the proposed critical
habitat for the Brawleys Fork crayfish,
so no Tribal lands would be affected by
the proposed designation.
References Cited
A complete list of references cited in
this rulemaking is available on the
internet at https://www.regulations.gov
and upon request from the Tennessee
Ecological Services Field Office (see FOR
FURTHER INFORMATION CONTACT).
Authors
The primary authors of this proposed
rule are the staff members of the Fish
and Wildlife Service’s Species
Assessment Team and the Tennessee
Ecological Services Field Office.
List of Subjects in 50 CFR Part 17
Endangered and threatened species,
Exports, Imports, Plants, Reporting and
recordkeeping requirements,
Transportation, Wildlife.
Proposed Regulation Promulgation
Accordingly, we propose to amend
part 17, subchapter B of chapter I, title
50 of the Code of Federal Regulations,
as set forth below:
PART 17—ENDANGERED AND
THREATENED WILDLIFE AND PLANTS
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.
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2. In § 17.11, amend paragraph (h) by
adding an entry for ‘‘Crayfish, Brawleys
Fork’’ to the List of Endangered and
Threatened Wildlife in alphabetical
■
Common name
*
CRUSTACEANS
*
*
*
3. Amend § 17.46 by adding
paragraph (d) to read as follows:
*
*
*
*
*
■
§ 17.46
Special rules—crustaceans.
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*
*
*
*
*
(d) Brawleys Fork crayfish (Cambarus
williami). (1) Prohibitions. The
following prohibitions that apply to
endangered wildlife also apply to
Brawleys Fork crayfish. Except as
provided under paragraph (d)(2) of this
section and §§ 17.4 and 17.5, it is
unlawful for any person subject to the
jurisdiction of the United States to
commit, to attempt to commit, to solicit
another to commit, or cause to be
committed, any of the following acts in
regard to Brawleys Fork crayfish:
(i) Import or export, as set forth at
§ 17.21(b) for endangered wildlife.
(ii) Take, as set forth at § 17.21(c)(1)
for endangered wildlife.
(iii) Possession and other acts with
unlawfully taken specimens, as set forth
at § 17.21(d)(1) for endangered wildlife.
(iv) Interstate or foreign commerce in
the course of a commercial activity, as
set forth at § 17.21(e) for endangered
wildlife.
(v) Sale or offer for sale, as set forth
at § 17.21(f) for endangered wildlife.
(2) Exceptions from prohibitions. In
regard to this species, you may:
(i) Conduct activities as authorized by
a permit under § 17.32.
(ii) Take, as set forth at § 17.21(c)(2)
through (4) for endangered wildlife.
(iii) Take, as set forth at § 17.31(b).
(iv) Possess and engage in other acts
with unlawfully taken wildlife, as set
forth at § 17.21(d)(2) for endangered
wildlife.
(v) Take incidental to an otherwise
lawful activity caused by:
(A) Channel restoration projects that
create natural, physically stable,
ecologically functioning streams (or
stream and wetland systems). These
projects can be accomplished using a
variety of methods, but the desired
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Where listed
*
Wherever found .........
*
Frm 00030
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*
*
*
*
*
*
[Federal Register citation when published
as a final rule]; 50 CFR 17.46(d); 4d 50
CFR 17.95(h).CH
T
*
Sfmt 4702
*
Listing citations and applicable rules
*
outcome is a natural channel with low
shear stress (force of water moving
against the channel); bank heights that
enable reconnection to the floodplain; a
reconnection of surface and
groundwater systems, resulting in
perennial flows in the channel; riffles
and pools composed of existing soil,
rock, and wood instead of large
imported materials; low compaction of
soils within adjacent riparian areas; and
inclusion of riparian wetlands.
(B) Bank stabilization projects that use
bioengineering methods to replace
preexisting, bare, eroding stream banks
with vegetated, stable stream banks,
thereby reducing bank erosion and
instream sedimentation and improving
habitat conditions for the species.
Following these bioengineering
methods, stream banks may be
stabilized using native species live
stakes (live, vegetative cuttings inserted
or tamped into the ground in a manner
that allows the stake to take root and
grow), native species live fascines (live
branch cuttings, usually willows, bound
together into long, cigar-shaped
bundles), or native species brush
layering (cuttings or branches of easily
rooted tree species layered between
successive lifts of soil fill). Native
species vegetation includes woody and
herbaceous species appropriate for the
region and habitat conditions. These
methods will not include the sole use of
quarried rock (riprap) or the use of rock
baskets or gabion structures.
(C) Bridge and culvert replacement/
removal projects or low head dam
removal projects that remove migration
barriers or generally allow for improved
upstream and downstream movements
of Brawleys Fork crayfish while
maintaining normal stream flows,
preventing bed and bank erosion, and
improving habitat conditions for the
species.
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*
*
(h) * * *
Status
*
*
Cambarus williami ............
*
§ 17.11 Endangered and threatened
wildlife.
*
Scientific name
*
*
Crayfish, Brawleys Fork ...............
*
order under CRUSTACEANS to read as
follows:
*
*
(D) Transportation projects that
provide for fish passage at stream
crossings.
■ 4. In § 17.95, amend paragraph (h) by
adding an entry for ‘‘Brawleys Fork
Crayfish (Cambarus williami)’’ after the
entry for ‘‘Big Sandy Crayfish
(Cambarus callainus)’’ to read as
follows:
§ 17.95
Critical habitat—fish and wildlife.
*
*
*
*
*
(h) Crustaceans.
*
*
*
*
*
Brawleys Fork Crayfish (Cambarus
williami)
(1) Critical habitat units are depicted
for Cannon, Rutherford, and Warren
Counties, Tennessee, on the maps in
this entry.
(2) Within these areas, the physical or
biological features essential to the
conservation of Brawleys Fork crayfish
consist of the following components:
(i) Moderate to fast-flowing stream
with unembedded cherty-gravel and
cobble substrate within an unobstructed
stream continuum (i.e., riffle, run, pool
complexes) of perennial, small- to
moderate-sized (generally third order or
smaller) streams and rivers (up to the
ordinary high-water mark as defined at
33 CFR 329.11).
(ii) Stream banks with intact riparian
cover to maintain stream morphology
and reduce erosion and sediment inputs
that may reduce availability of substrate
interstitial spaces.
(iii) Water quality characterized by
seasonally moderated, or spring
influenced, water temperatures and
physical and chemical parameters (e.g.,
pH, conductivity, dissolved oxygen)
sufficient for the normal behavior,
growth, reproduction, and viability of
all life stages.
(iv) Adequate food base, indicated by
a healthy aquatic community structure
including native benthic
macroinvertebrates, fishes, and plant
matter (e.g., leaf litter, algae, detritus).
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(v) An interconnected network of
streams and rivers that have the
physical and biological features
described in paragraphs (2)(i) through
(iv) of this entry that allow for the
movement of individual crayfish in
response to environmental,
physiological, or behavioral drivers. The
connectivity of the stream network
should be sufficient to allow for gene
flow within and among watersheds.
(3) Critical habitat does not include
manmade structures (such as buildings,
aqueducts, runways, roads, and other
paved areas) and the land on which they
are located existing within the legal
boundaries on [EFFECTIVE DATE OF
FINAL RULE].
(4) Data layers defining map units
were created using Esri ArcGIS Pro
mapping software, version 2.7.2 with
U.S. Geological Survey’s National
Hydrography Dataset flowline data, on a
base map of State, County, and city limit
boundaries from the State of
Tennessee’s Strategic Technology
Solutions branch. Critical habitat units
were mapped using the Tennessee State
Plane Coordinate System, Lambert
Conformal Conic projection and North
American 1983 (NAD83) datum. The
maps in this entry, as modified by any
accompanying regulatory text, establish
the boundaries of the critical habitat
designation. The coordinates or plot
points or both on which each map is
(6) Unit 1: West Fork Stones;
Rutherford County, Tennessee.
(i) Unit 1 consists of 6.2 rmi (10 rkm)
of the West Fork Stones River beginning
at the Nice’s Mill Recreation Area
lowhead dam and continuing to the
confluence with the Stones River in
Rutherford County, Tennessee. Riparian
lands in Unit 1 are in Federal ownership
(Department of Defense, U.S. Army
Corps of Engineers, J. Percy Priest Lake).
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based are available to the public at the
Service’s internet site at https://
www.fws.gov/library/collections/
Brawleys-Fork-crayfish, at https://
www.regulations.gov at Docket No.
FWS–R4–ES–2023–0065, and at the
field office responsible for this
designation. You may obtain field office
location information by contacting one
of the Service regional offices, the
addresses of which are listed at 50 CFR
2.2.
(5) Index map of critical habitat units
for the Brawleys Fork crayfish follows:
Figure 1 to Brawleys Fork crayfish
(Cambarus williami) paragraph (5)
BILLING CODE 4333–15–P
(ii) Unit 1 includes stream channel up
to bankfull height.
(iii) Map of Unit 1 follows:
Figure 2 to Brawleys Fork crayfish
(Cambarus williami) paragraph (6)(iii)
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(7) Unit 2: Brawleys Fork; Cannon
County, Tennessee.
(i) Unit 2 consists of approximately
13.8 rmi (22.2 rkm) of the Brawleys Fork
and tributaries in Cannon County,
Tennessee. Unit 2 includes the Brawleys
Fork from the headwaters at Mill Bluff
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Hollow to the confluence with the
Carson Fork and Shelton Branch from
the Gene Perkins Road crossing to the
confluence with Brawleys Fork.
Riparian lands in Unit 2 are in private
ownership except for a small amount of
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publicly owned bridge crossings and
road easements.
(ii) Unit 2 includes stream channel up
to bankfull height.
(iii) Map of Unit 2 follows:
Figure 3 to Brawleys Fork crayfish
(Cambarus williami) paragraph (7)(iii)
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(8) Unit 3: Carson Fork; Cannon
County, Tennessee.
(i) Unit 3 consists of approximately
18.2 rmi (29.3 rkm) of the Carson Fork
and tributaries in Cannon County,
Tennessee. Riparian lands in Unit 3 are
in private ownership except for a small
amount of publicly owned bridge
crossings and road easements.
(A) Subunit 3a (Carson Fork) consists
of 12.3 rmi (19.8 rkm) and extends from
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the headwaters of the Carson Fork near
Sadler Lane downstream to the
confluence with the East Fork Stones
River, from the headwaters of Duck
Branch to the confluence of Carson
Fork, and from the headwaters of an
unnamed tributary in Simmons Hollow
to the confluence of Carson Fork.
(B) Subunit 3b (Haws Spring Fork)
consists of 5.9 rmi (9.5 rkm) and extends
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from the headwaters of Smith Branch
near Carrick Hollow to the confluence
with Haws Spring Fork and from the
headwaters of Haws Spring to the
confluence with the Carson Fork.
(ii) Unit 3 includes stream channel up
to bankfull height.
(iii) Map of Unit 3 follows:
Figure 4 to Brawleys Fork crayfish
(Cambarus williami) paragraph (8)(iii)
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(9) Unit 4: East Fork Stones River,
Cannon County, Tennessee.
(i) Unit 4 consists of approximately
35.9 rmi (57.8 rkm) of the East Fork
Stones River mainstem and some of its
tributaries in Cannon County,
Tennessee. Riparian lands in Unit 4 are
in State (0.7 rmi (1.1 rkm), local (0.9 rmi
(1.4 rkm) in two parks), and private
ownership, as well as small amount of
publicly owned bridge crossings and
road easements.
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(A) Subunit 4a (East Fork Stones)
consists of 32.5 rmi (52.3 rkm) and
includes Hollis Creek from the
headwaters near Hollis Creek South
Road to the confluence with the East
Fork Stones River, Hill Creek from the
tributary at Wood Hollow to the
confluence with the East Fork Stones
River, Parchcorn Hollow Branch from
the Parchcorn Hollow road crossing to
the confluence with the East Fork
Stones River, Cavender Branch from the
Cavender Road bridge to the confluence
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with the East Fork Stones River, and
from Locke Creek to the confluence with
the East Fork Stones River.
(B) Subunit 4b (Rockhouse Creek)
consists of 3.4 rmi (5.5 rkm) and extends
from the stream crossing at Seal Hollow
Branch by Seal Hollow Road to the
confluence with Rockhouse Branch and
from the Higgins Road crossing of
Rockhouse Creek downstream to the
confluence with the East Fork Stones
River.
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(ii) Unit 4 includes stream channel up
to bankfull height.
(iii) Map of Unit 4 follows:
Figure 5 to Brawleys Fork crayfish
(Cambarus williami) paragraph (9)(iii)
(10) Unit 5: Bullpen Creek; Cannon
County, Tennessee.
(i) Unit 5 consists of approximately
3.1 rmi (5.0 rkm) of Bullpen Creek
beginning at the Lonnie Smith Road
crossing and extending downstream to
the lowhead dam near Charlie Powell
Road in Cannon County, Tennessee.
Riparian lands in Unit 5 are in private
ownership except for a small amount of
publicly owned bridge crossings and
road easements.
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(ii) Unit 5 includes stream channel up
to bankfull height.
(iii) Map of Unit 5 follows:
Figure 6 to Brawleys Fork crayfish
(Cambarus williami) paragraph
(10)(iii)
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(11) Unit 6: Mountain Creek; Warren
County, Tennessee.
(i) Unit 6 consists of approximately
9.4 rmi (15.1 rkm) of Mountain Creek in
Warren County, Tennessee. Unit 6
extends from the Mountain Creek road
crossing at Short Mountain Road
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downstream to the Smithville Highway
bridge in the city of Dibrell, Warren
County, Tennessee. Riparian lands in
Unit 6 are in private ownership except
for a small amount of publicly owned
bridge crossings and road easements.
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(ii) Unit 6 includes stream channel up
to bankfull height.
(iii) Map of Unit 6 follows:
Figure 7 to Brawleys Fork crayfish
(Cambarus williami) paragraph
(11)(iii)
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*
*
*
*
57327
*
Wendi Weber,
Acting Director, U.S. Fish and Wildlife
Service.
BILLING CODE 4333–15–C
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[FR Doc. 2023–17666 Filed 8–21–23; 8:45 am]
]]>Agencies
[Federal Register Volume 88, Number 161 (Tuesday, August 22, 2023)]
[Proposed Rules]
[Pages 57292-57327]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-17666]
[[Page 57291]]
Vol. 88
Tuesday,
No. 161
August 22, 2023
Part IV
Department of the Interior
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Fish and Wildlife Service
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50 CFR Part 17
Endangered and Threatened Wildlife and Plants; Threatened Species
Status With Section 4(d) Rule for Brawleys Fork Crayfish and
Designation of Critical Habitat; Proposed Rule
Federal Register / Vol. 88 , No. 161 / Tuesday, August 22, 2023 /
Proposed Rules
[[Page 57292]]
-----------------------------------------------------------------------
DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
[Docket No. FWS-R4-ES-2023-0065; FF09E21000; FXES1111090FEDR 234]
RIN 1018-BG18
Endangered and Threatened Wildlife and Plants; Threatened Species
Status With Section 4(d) Rule for Brawleys Fork Crayfish and
Designation of Critical Habitat
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: We, the U.S. Fish and Wildlife Service (Service), propose to
list the Brawleys Fork crayfish (Cambarus williami), a freshwater
crayfish species from Tennessee, as a threatened species and designate
critical habitat under the Endangered Species Act of 1973, as amended
(Act). This determination also serves as our 12-month finding on a
petition to list the Brawleys Fork crayfish. After a review of the best
available scientific and commercial information, we find that listing
the species is warranted. Accordingly, we propose to list the Brawleys
Fork crayfish as a threatened species with a rule issued under section
4(d) of the Act (``4(d) rule''). If we finalize this rule as proposed,
it would add this species to the List of Endangered and Threatened
Wildlife and extend the Act's protections to the species. We also
propose to designate critical habitat for the Brawleys Fork crayfish
under the Act. In total, approximately 86.6 river miles (139.4 river
kilometers) in Cannon, Rutherford, and Warren Counties, Tennessee, fall
within the boundaries of the proposed critical habitat designation. We
also announce the availability of a draft economic analysis of the
proposed designation of critical habitat for Brawleys Fork crayfish.
DATES: We will accept comments received or postmarked on or before
October 23, 2023. Comments submitted electronically using the Federal
eRulemaking Portal (see ADDRESSES, below) must be received by 11:59
p.m. eastern time on the closing date. We must receive requests for a
public hearing, in writing, at the address shown in FOR FURTHER
INFORMATION CONTACT by October 6, 2023.
ADDRESSES: You may submit comments by one of the following methods:
(1) Electronically: Go to the Federal eRulemaking Portal: https://www.regulations.gov. In the Search box, enter FWS-R4-ES-2023-0065,
which is the docket number for this rulemaking. Then, click on the
Search button. On the resulting page, in the panel on the left side of
the screen, under the Document Type heading, check the Proposed Rule
box to locate this document. You may submit a comment by clicking on
``Comment.''
(2) By hard copy: Submit by U.S. mail to: Public Comments
Processing, Attn: FWS-R4-ES-2023-0065, U.S. Fish and Wildlife Service,
MS: PRB/3W, 5275 Leesburg Pike, Falls Church, VA 22041-3803.
We request that you send comments only by the methods described
above. We will post all comments on https://www.regulations.gov. This
generally means that we will post any personal information you provide
us (see Information Requested, below, for more information).
Availability of supporting materials: Supporting materials, such as
the species status assessment report, are available on the Service's
website at at https://www.fws.gov/library/collections/Brawleys-Fork-crayfish and at https://www.regulations.gov in Docket No. FWS-R4-ES-
2023-0065. For the proposed critical habitat designation, the
coordinates or plot points or both from which the maps are generated
are included in the decision file for this critical habitat designation
and are available at https://www.regulations.gov at Docket No. FWS-R4-
ES-2023-0065 and on the Service's website at https://www.fws.gov/library/collections/Brawleys-Fork-crayfish.
FOR FURTHER INFORMATION CONTACT: Daniel Elbert, Field Supervisor, U.S.
Fish and Wildlife Service, Tennessee Ecological Services Field Office,
446 Neal Street, Cookeville, Tennessee, 38501; Telephone 931-254-9617.
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 in 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 Brawleys
Fork crayfish meets the definition of a threatened species; therefore,
we are proposing to list it as such and proposing a designation of its
critical habitat. Both listing a species as an endangered or threatened
species and making a critical habitat determination can be completed
only by issuing a rule through the Administrative Procedure Act
rulemaking process (5 U.S.C. 551 et seq.).
What this document does. We propose to list the Brawleys Fork
crayfish as a threatened species with a rule under section 4(d) of the
Act, and we propose the designation of critical habitat for the
species.
The basis for our action. Under the Act, we may determine that a
species is an endangered or threatened species because of any of five
factors: (A) The present or threatened destruction, modification, or
curtailment of its habitat or range; (B) overutilization for
commercial, recreational, scientific, or educational purposes; (C)
disease or predation; (D) the inadequacy of existing regulatory
mechanisms; or (E) other natural or manmade factors affecting its
continued existence. We have determined that Brawleys Fork crayfish is
threatened due to the following threats: habitat loss and degradation
due to sedimentation and water quality impairments from sources
including agricultural practices, horticultural practices, and
urbanization; and instream modification including impoundments, gravel
dredging, and channel alteration. Each of the threats influencing
Brawleys Fork crayfish viability may be further exacerbated by the
effects of small, isolated populations and the future effects of
climate change.
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
[[Page 57293]]
it is listed, upon a determination by the Secretary that such areas are
essential for the conservation of the species. Section 4(b)(2) of the
Act states that the Secretary must make the designation on the basis of
the best scientific data available and after taking into consideration
the economic impact, the impact on national security, and any other
relevant impacts of specifying any particular area as critical habitat.
Information Requested
We intend that any final action resulting from this proposed rule
will be based on the best scientific and commercial data available and
be as accurate and as effective as possible. Therefore, we request
comments or information from other governmental agencies, Native
American Tribes, the scientific community, industry, or any other
interested parties concerning this proposed rule.
We particularly seek comments concerning:
(1) The species' biology, range, and population trends, including:
(a) Biological or ecological requirements of the species, including
habitat requirements for feeding, breeding, and sheltering;
(b) Genetics and taxonomy;
(c) Historical and current range, including distribution patterns
and the locations of any additional populations of this species;
(d) Historical and current population levels, and current and
projected trends; and
(e) Past and ongoing conservation measures for the species, its
habitat, or both.
(2) Threats and conservation actions affecting the species,
including:
(a) Factors that may be affecting the continued existence of the
species, which may include habitat modification or destruction,
overutilization, disease, predation, the inadequacy of existing
regulatory mechanisms, or other natural or manmade factors.
(b) Biological, commercial trade, or other relevant data concerning
any threats (or lack thereof) to this species.
(c) Existing regulations or conservation actions that may be
addressing threats to this species.
(3) Additional information concerning the historical and current
status of this species.
(4) Information on regulations that may be necessary and advisable
to provide for the conservation of the Brawleys Fork crayfish and that
we can consider in developing a 4(d) rule for the species. In
particular, information concerning the extent to which we should
include any of the section 9 prohibitions in the 4(d) rule or whether
we should consider any additional exceptions from the prohibitions in
the 4(d) rule.
(5) Specific information on:
(a) The amount and distribution of Brawleys Fork crayfish habitat;
(b) Any additional areas occurring within the range of the species,
Cannon, Rutherford, and Warren Counties, Tennessee, that should be
included in the designation because they (i) are occupied at the time
of listing and contain the physical or biological features that are
essential to the conservation of the species and that may require
special management considerations, or (ii) are unoccupied at the time
of listing and are essential for the conservation of the species; and
(c) Special management considerations or protection that may be
needed in critical habitat areas we are proposing, including managing
for the potential effects of climate change; and
(d) To evaluate the potential to include areas not occupied at the
time of listing, we particularly seek comments regarding whether
occupied areas are adequate for the conservation of the species.
Additionally, please provide specific information regarding whether or
not unoccupied areas would, with reasonable certainty, contribute to
the conservation of the species and contain at least one physical or
biological feature essential to the conservation of the species. We
also seek comments or information regarding whether areas not occupied
at the time of listing qualify as habitat for the species.
(6) Land use designations and current or planned activities in the
subject areas and their possible impacts on proposed critical habitat.
(7) Any probable economic, national security, or other relevant
impacts of designating any area that may be included in the final
designation, and the related benefits of including or excluding
specific areas.
(8) Information on the extent to which the description of probable
economic impacts in the draft economic analysis is a reasonable
estimate of the likely economic impacts and any additional information
regarding probable economic impacts that we should consider.
(9) Whether any specific areas we are proposing for critical
habitat designation should be considered for exclusion under section
4(b)(2) of the Act, and whether the benefits of potentially excluding
any specific area outweigh the benefits of including that area under
section 4(b)(2) of the Act. If you think we should exclude any
additional areas, please provide information supporting a benefit of
exclusion.
(10) Whether we could improve or modify our approach to designating
critical habitat in any way to provide for greater public participation
and understanding, or to better accommodate public concerns and
comments.
Please include sufficient information with your submission (such as
scientific journal articles or other publications) to allow us to
verify any scientific or commercial information you include.
Please note that submissions merely stating support for, or
opposition to, the action under consideration without providing
supporting information, although noted, do not provide substantial
information necessary to support a determination. Section 4(b)(1)(A) of
the Act directs that determinations as to whether any species is an
endangered or a threatened species must be made solely on the basis of
the best scientific and commercial data available, and section 4(b)(2)
of the Act directs that the Secretary shall designate critical habitat
on the basis of the best scientific data available.
You may submit your comments and materials concerning this proposed
rule by one of the methods listed in ADDRESSES. We request that you
send comments only by the methods described in ADDRESSES.
If you submit information via https://www.regulations.gov, your
entire submission--including any personal identifying information--will
be posted on the website. If your submission is made via a hardcopy
that includes personal identifying information, you may request at the
top of your document that we withhold this information from public
review. However, we cannot guarantee that we will be able to do so. We
will post all hardcopy submissions on https://www.regulations.gov.
Comments and materials we receive, as well as supporting
documentation we used in preparing this proposed rule, will be
available for public inspection on https://www.regulations.gov.
Because we will consider all comments and information we receive
during the comment period, our final determinations may differ from
this proposal. Based on the new information we receive (and any
comments on that new information), we may conclude that the species is
endangered instead of threatened, or we may conclude that the species
does not warrant listing as either an endangered species or a
threatened species. For critical habitat, our final designation may not
include all areas
[[Page 57294]]
proposed, may include some additional areas that meet the definition of
critical habitat, or may exclude some areas if we find the benefits of
exclusion outweigh the benefits of inclusion and exclusion will not
result in the extinction of the species. In addition, we may change the
parameters of the prohibitions or the exceptions to those prohibitions
in the 4(d) rule if we conclude it is appropriate in light of comments
and new information received. For example, we may expand the
prohibitions to include prohibiting additional activities if we
conclude that those additional activities are not compatible with
conservation of the species. Conversely, we may establish additional
exceptions to the prohibitions in the final rule if we conclude that
the activities would facilitate or are compatible with the conservation
and recovery of the species.
Public Hearing
Section 4(b)(5) of the Act provides for a public hearing on this
proposal, if requested. Requests must be received by the date specified
in DATES. Such requests must be sent to the address shown in FOR
FURTHER INFORMATION CONTACT. We will schedule a public hearing on this
proposal, if requested, and announce the date, time, and place of the
hearing, as well as how to obtain reasonable accommodations, in the
Federal Register and local newspapers at least 15 days before the
hearing. We may hold the public hearing in person or virtually via
webinar. We will announce any public hearing on our website, in
addition to the Federal Register. The use of virtual public hearings is
consistent with our regulations at 50 CFR 424.16(c)(3).
Previous Federal Actions
On April 20, 2010, we received a petition to list 404 species,
including the Brawleys Fork crayfish, as endangered or threatened
species, and designate critical habitat under the Act (Center for
Biological Diversity et al. 2010, entire). Our subsequent 90-day
finding concluded that the petition provided substantial information
indicating that the Brawleys Fork crayfish may be warranted for
listing, and that the status of the species warranted further review
(September 27, 2011; 76 FR 59836).
Peer Review
A species status assessment (SSA) team prepared an SSA report for
the Brawleys Fork crayfish. The SSA team was composed of Service
biologists, in consultation with other species experts. The SSA report
represents a compilation of the best scientific and commercial data
available concerning the status of the species, including the impacts
of past, present, and future factors (both negative and beneficial)
affecting the species.
In accordance with our joint policy on peer review published in the
Federal Register on July 1, 1994 (59 FR 34270), and our August 22,
2016, memorandum updating and clarifying the role of peer review of
listing actions under the Act, we solicited independent scientific
review of the information contained in the Brawleys Fork crayfish SSA
report. The Service sent the SSA report to four independent peer
reviewers and received no responses.
I. Proposed Listing Determination
Background
A thorough review of the taxonomy, life history, and distribution
of the Brawleys Fork crayfish (Cambarus williami) is presented in the
SSA report (version 1.1; Service 2023, pp. 14-24).
The Brawleys Fork crayfish is a small, freshwater crayfish endemic
to the Nashville Basin and Eastern Highland Rim ecoregions of central
Tennessee. The species occurs primarily in small- to medium-sized
streams (first- to third-order streams) and in one medium-sized river
(fifth order) of the Stones and Collins River systems (Bouchard and
Bouchard 1995, p. 6; Williams et al. 2017, p. 51; Giddens and Mattingly
2020, pp. 2-3; Johansen 2021, pers. comm. 2021; Mattingly 2021, pers.
comm.; Simmons 2021, pers. comm.; Williams 2021, pers. comm.).
Brawleys Fork crayfish is known to occur in 20 streams in 5
Hydrologic Unit Code 12 (HUC 12) watersheds within its range. The
Brawleys Fork crayfish range has increased from historical levels and
the current known range of the species is wider than the historical
range (no range contraction) (Bouchard and Bouchard 1995, entire;
Withers and McCoy 2005, entire; Rohrbach and Withers 2006, entire;
Giddens and Mattingly 2020, entire). Brawleys Fork crayfish known
occurrences are in streams with moderate to fast flow and main channel
depths ranging from 5 to 30 centimeters (cm) (2-12 inches (in))
(Withers and McCoy 2005, pp. 3, 27-48; Rohrbach and Withers 2006, p. 3;
Williams et al. 2017, p. 51). Brawleys Fork crayfish typically occupy
runs and riffles in streams with layered chert gravel and cobble
substrate with ample interstitial space not consolidated by finer
substrates such as sand or silt (Khan 2021, unpublished data). This
species frequently burrows into chert gravel substrate within the
wetted stream channel during normal and reduced stream flows to escape
predators and access subterranean water (Bouchard and Bouchard 1995, p.
6; Williams et al. 2017, p. 51; Giddens and Mattingly 2020, pp. 2-3).
Streams with Brawleys Fork crayfish occurrence are characterized by
water temperatures ranging from 10 to 23 degrees Celsius ([deg]C) (50-
73 degrees Fahrenheit ([deg]F)) (Giddens and Mattingly 2020, pp. 4-5;
Simmons 2021, pers. comm.). Ample riparian vegetation is an important
habitat characteristic that creates shaded conditions to maintain the
cooler water temperature required by the species and buffers streams
against pollutants carried by stormwater runoff. Suitable habitat
conditions also support an adequate prey base for Brawleys Fork
crayfish, indicated by a healthy aquatic community structure including
native benthic macroinvertebrates, fishes, and plant matter (e.g., leaf
litter, algae, detritus). Brawleys Fork crayfish site occupancy is
associated with a high volume of clean groundwater discharged into the
stream from subterranean aquifers (Simmons 2021, pers. comm.).
Although the specific diet of Brawleys Fork crayfish is unknown, it
is likely similar to congeneric species of the same size and includes
smaller invertebrates, periphyton, and plant detritus. Individuals
reach reproductive maturity by their first year. A portion of males are
in reproductive form in all months except August. Females bear eggs in
the spring as typical of most crayfish species. The Brawleys Fork
crayfish lifespan is estimated to be 3 years with two to three age
classes present in healthy populations.
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
[[Page 57295]]
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 species' expected response and
the effects of the threats--in light of those actions and conditions
that will ameliorate the threats--on an individual, population, and
species level. We evaluate each threat and its expected effects on the
species, then analyze the cumulative effect of all of the threats on
the species as a whole. We also consider the cumulative effect of the
threats in light of those actions and conditions that will have
positive effects on the species, such as any existing regulatory
mechanisms or conservation efforts. The Secretary determines whether
the species meets the definition of an ``endangered species'' or a
``threatened species'' only after conducting this cumulative analysis
and describing the expected effect on the species now and in the
foreseeable future.
The Act does not define the term ``foreseeable future,'' which
appears in the statutory definition of ``threatened species.'' Our
implementing regulations at 50 CFR 424.11(d) set forth a framework for
evaluating the foreseeable future on a case-by-case basis. The term
``foreseeable future'' extends only so far into the future as we 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 proposed for listing as an endangered
or threatened species under the Act. However, it does provide the
scientific basis that informs our regulatory decisions, which involve
the further application of standards within the Act and its
implementing regulations and policies.
To assess Brawleys Fork crayfish viability, we used the three
conservation biology principles of resiliency, redundancy, and
representation (Shaffer and Stein 2000, pp. 306-310). Briefly,
resiliency is the ability of the species to withstand environmental and
demographic stochasticity (for example, wet or dry, warm or cold
years), redundancy is the ability of the species to withstand
catastrophic events (for example, droughts, large pollution events),
and representation is the ability of the species to adapt to both near-
term and long-term changes in its physical and biological environment
(for example, climate conditions, pathogens). In general, species
viability will increase with increases in resiliency, redundancy, and
representation (Smith et al. 2018, p. 306). 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.
The following is a summary of the key results and conclusions from
the SSA report; the full SSA report can be found at FWS-R4-ES-2023-0065
on https://www.regulations.gov.
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.
Species Needs
For Brawleys Fork crayfish populations to have sufficient
[[Page 57296]]
resiliency, the needs of individuals (cool, clean flowing water with
unembedded substrate) must also be met at a large enough scale to
address population and species-level needs. As described under
Background above, the individual needs of Brawleys Fork crayfish are
primarily a function of habitat condition and are summarized in Table
1.
Table 1--Individual Needs of Brawleys Fork Crayfish
------------------------------------------------------------------------
Type of requirement Description
------------------------------------------------------------------------
Stream permanence................. Permanent.
Stream order...................... First- to third-order streams.
Water temperature................. 10-23 [deg]C (50-73 [deg]F).
Stream flow velocity.............. Riffle and run habitats with
moderate to fast flow.
Stream substrate.................. Chert gravel substrate with
unconsolidated pieces of cobble and
gravel.
Embeddedness...................... Low embeddedness so that food and
refugia under rocks and in crevices
remain accessible.
Refugia........................... Cavities and burrows within gravel.
Diet.............................. Likely smaller invertebrates,
periphyton, and/or plant detritus
(specific diet unknown).
------------------------------------------------------------------------
Brawleys Fork crayfish populations need the same key habitat-based
resources as individuals to maintain sufficient resiliency (table 1),
as well as a sustainable population size and connectivity within and
among populations. Populations also need relatively stable conditions
within the stream ecosystem each year, especially during the spring
when females are ovigerous, to maintain successful reproduction and
recruitment. Connectivity among populations is necessary to avoid the
effects of genetic isolation, promote genetic diversity, and facilitate
gene flow via emigration, immigration, and reproduction. For Brawleys
Fork crayfish, maintaining gene flow within and among populations is
facilitated by corridors of suitable habitat for movement of
individuals throughout the stream network, including road crossings
that are designed to easily pass aquatic organisms at a range of
streamflow conditions. The species may move between areas of suitable
habitat within and among connected streams in response to behavioral
drivers (dispersal or mating) or in search of suitable habitat in
response to environmental drivers when species' needs are no longer met
in previously suitable habitat (reduced prey, unavailable shelter or
refugia, inadequate conditions for breeding).
For species viability to be sufficient, there must be adequate
redundancy (suitable number of populations, distribution of
populations, and connectivity between populations to allow the species
to withstand catastrophic events) and representation (suitable genetic
and environmental diversity to allow the species to adapt to changing
environmental conditions). Redundancy improves with more sufficiently
resilient, connected populations to allow recovery after catastrophic
events. Representation or adaptive capacity is maintained with genetic
and ecological diversity within and among populations.
Threats
We identified sedimentation, water quality degradation, and
instream modification as the primary threats currently affecting the
Brawleys Fork crayfish. The impacts of these threats may be further
exacerbated by the effects of small, isolated populations and the
future effects of climate change. The following discussion provides a
summary of the threats and stressors that are affecting or may be
affecting the current and future condition of the Brawleys Fork
crayfish throughout some or all of its range. A more detailed
description may be found in the SSA report (Service 2023, pp. 24-38).
Sedimentation
Sedimentation of substrate and filling of interstitial spaces is
the key driver affecting the Brawleys Fork crayfish's condition.
Crayfish are benthic (bottom-dwelling) invertebrates that occupy stream
or riverine habitats. The species requires unembedded rocks, crevices,
and woody debris for access to prey, refuge from predation and
competition, and cover during vulnerable periods such as molting or egg
extrusion. Brawleys Fork crayfish density is strongly and positively
correlated with the relative abundance of unconsolidated cobble and
gravel substrates (Withers and McCoy 2005, p. 3; Rohrbach and Withers
2006, p. 3). Excessive sediment input from a variety of sources can
overwhelm the capacity of the lower order stream systems where the
species occurs to remove sediment (except during heavy rainfall
events), resulting in sediment deposition that embeds necessary
species' resources (e.g., food, shelter, refugia) and negatively
impacts Brawleys Fork crayfish individuals and populations (Withers and
McCoy 2005, p. 5; Rohrbach and Withers 2006, p. 8). Sedimentation is
also related to water quality as sediment may carry pollutants into the
stream and cloud the water with suspended solids, reducing light
availability and causing aquatic plants to die.
In the Brawleys Fork crayfish range, the sources of sedimentation
that have affected or are affecting the species and its habitat as a
result of current and historical surrounding land uses include
agriculture and horticulture practices, stream impoundment, and
urbanization and development. These stressors are present rangewide and
impact the viability of Brawleys Fork crayfish at a species level, but
the sources are more concentrated in some areas and may affect some
individuals and populations to a greater extent (e.g., increased
urbanization in the West Fork Stones watershed).
Agriculture and horticulture occur rangewide on the relatively flat
terrain of the Eastern Highland Rim and Nashville Basin regions where
the species occurs, particularly lands in row crops, hay/pasture,
livestock grazing, and plant nurseries. Agricultural and horticultural
practices that do not implement best management practices (BMPs) or
improperly implement BMPs influence Brawleys Fork crayfish viability by
contributing to sedimentation within nearby streams. Practices that
contribute to sedimentation include harvest techniques that expose bare
soil and use of heavy machinery that disturbs soil composition and
breaks down sediments into fine particles (Burskey and Simon 2009, p.
207). Heavy machinery entering the stream channel via the stream bank
contributes sediment and modifies the channel structure (Schmidt 1982,
p. 39).
Stream impoundment results in decreased flow velocity and fine
sediment accumulation leading to
[[Page 57297]]
subsequent substrate embeddedness, decreased woody debris availability,
more severely entrenched stream channels, and increased water
temperature (Arnwine et al. 2006, p. 3; Adams 2013, p. 1328; Barnett
and Adams 2021, p. 3; Williams 2021, pers. comm.). In the Brawleys Fork
crayfish's range, impounded streams demonstrated a lower percentage of
dominant cobble substrate compared to unimpounded streams, and,
statewide, 80 percent of impoundments failed to meet regional habitat
quality expectations as a result of sediment deposition below small
dams (Arnwine et al. 2006, pp. 3, 62). However, the percentage of small
impoundments (less than 250 acres) within the Brawleys Fork crayfish's
range is relatively low in comparison to other watersheds in Tennessee
(0.6 and 1.7 percent in the Stones and Collins watersheds,
respectively) (Arnwine et al. 2006, pp. 9-14). Small impoundments are
associated with large plots of residential development in this region,
and we expect the impact of this threat may increase in the future as
projected future residential development increases, particularly in the
East and West Fork Stones River watersheds (Withers and McCoy 2005, p.
5; Rohrbach and Withers 2006, p. 8).
Urbanization, commercial and residential development, and
associated infrastructure and road construction have affected Brawleys
Fork crayfish and its habitat in the past and are expected to continue
to affect the species. In the Brawleys Fork crayfish's range, the human
population increased as much as 122 percent from 1990 to 2010 and an
additional 32 percent from 2010 to 2020 (World Population Review 2021).
In the future, urbanization in the Southeast is projected to increase
up to 192 percent by 2060. In addition, the greatest change in land use
associated with urbanization and development is expected to be the
conversion of agricultural land into urban land use (Terando et al.
2014, p. 5). Because Brawleys Fork crayfish occurs in a region of heavy
agricultural land use, the threat of land conversion as a result of
urbanization and development is expected to affect the species to a
greater extent in the future as urbanization increases. Streams in the
Southeast experience significant impacts to water quality when urban
land use reaches 10-14 percent of the catchment or drainage area
(Suttles et al. 2018, p. 813). One watershed with Brawleys Fork
crayfish occurrences now has greater than 10 percent of its area in
urban land use (West Fork Stones River).
Urbanization and development can alter water quality and hydrology
in a number of ways. An increase in impervious surfaces associated with
urban land use directly results in a higher volume and velocity of
stormwater runoff, scouring of streambeds and stream banks, increased
water temperatures, and increased sediment and pollutants discharged
into receiving streams. The effects of sedimentation and other
pollutants on water quality and the Brawleys Fork crayfish as a result
of a variety of stressors are described under Sedimentation below.
Brawleys Fork crayfish requires cool, clean water, and the increased
water quantity and pollutants associated with increased urbanization
negatively impact habitat conditions. Temperature tolerances of the
Brawleys Fork crayfish are unknown. However, life stage development of
several aquatic organisms, including crayfish, is temperature-dependent
and an increase in water temperature could result in changes to growth
rates, reproduction, and overall survival (Poff et al. 2002, p. 7). In
addition, a higher rate of microbial activity is associated with warmer
water temperatures, leading to an increased rate of organic material
decomposition and nutrient loading within streams (Poff et al. 2002, p.
7). Although we do not have temperature information for all streams
with Brawley's crayfish occurrences, we expect that increased water
temperature associated with urbanization and other stressors negatively
impacts the species (Lockaby et al. 2013, p. 333).
Water Quality
Suitable water quality is a requirement for the Brawleys Fork
crayfish. Although little is known regarding the Brawleys Fork
crayfish's specific water quality requirements, water quality
parameters such as water temperature, nutrient load, pH, and
conductivity are significant factors influencing several biological
processes of crayfish including osmoregulation, immunology, acid/base
regulation, gas exchange, reproduction, molting, growth rate, and
behavior (Romano and Zeng 2013, p. 17; Schorr et al. 2013, p. 340). In
the Brawleys Fork crayfish's range, agriculture and horticultural
practices, urbanization, and wastewater treatment outfall negatively
affect the species and its habitat through changes to water quality.
Agricultural and horticultural practices influence water quality by
means of stormwater runoff that transports chemicals (pesticides,
fungicides, and herbicides) and nutrients (fertilizers and livestock
waste) into nearby streams. In areas with no BMPs or improperly
implemented BMPs, stormwater runoff from agricultural fields during
planting season (spring and early summer) is the most significant
source of water quality contamination. Several stream reaches with
Brawleys Fork crayfish occurrences may be exposed to contaminants on an
ongoing basis. For example, horticultural lands surrounding occurrences
in Mountain Creek receive pesticide, fungicide, and fertilizer
applications, and these chemicals enter the adjacent stream (Mattingly
et al. 2021, entire; Mattingly 2021, pers. comm.). Pesticides can cause
deleterious effects on crayfish behavior, increasing risk of predation
(Sohn et al. 2018, pp. 900, 905).
Stormwater runoff from agricultural and horticultural practices
also contributes to increased nutrient (nitrogen and phosphate) loads
within nearby streams through fertilizers and livestock waste
transported into the streams. Nitrogen loading has deleterious effects
on molting, respiration, disease resistance, and disruption of
reproductive behaviors in crustaceans, and we expect similar effects to
Brawleys Fork crayfish fitness and reproductive success (Romano and
Zeng 2013, p. 17; Schorr et al. 2013, p. 340). In addition, slower
areas of stream habitat between occupied riffles and runs may become
stagnant and oxygen depleted as a result of livestock waste discharged
into the stream (Rorhbach and Withers 2006, p. 8; Withers and McCoy
2005, p. 5).
Urbanization and development influence Brawleys Fork crayfish
through effects to water quality as described under Sedimentation
above. The increased impervious surface associated with urbanization
results in higher flow, higher velocity, increased transport of
contaminants, and warmer water temperatures that negatively impact
Brawleys Fork crayfish through habitat degradation.
Historically, the Woodbury wastewater treatment plant has
contributed to increased nutrient loads in the East Fork Stones River
with negative impacts including fish kills and decreased benthic
macroinvertebrate communities (indication of water quality and
ecosystem function) (Schmidt 1982, pp. 26, 30, 49-50). The effects of
excessive nutrients and nutrient loading on crustaceans are described
above. More recently, the treatment plant was out of compliance or not
complete and/or
[[Page 57298]]
stable in 4 of 13 inspections from 2007 to 2022, primarily due to
issues with sampling. Spring overflows with discharges outside of the
National Permit Discharge Elimination System limits have occurred in
recent years as well.
Instream Modification
Stream modification and impoundment influences Brawleys Fork
crayfish and its habitat through altered stream depth and flow,
sedimentation, and water quality degradation. Stream channel
modification has occurred and continues to occur in the Brawleys Fork
crayfish range. Reaches of Mountain Creek, East Fork Stones River, and
Hollis Creek with Brawleys Fork crayfish occurrences have experienced
significant disturbance and modification including heavy machinery
directly entering the stream channel to dredge gravel, modify stream
banks, and alter the stream channel (Mattingly et al. 2021, entire;
Mattingly 2021, pers. comm.). For headwater species with specific
habitat needs such as Brawleys Fork crayfish, even small alterations to
the channel, flow, and substrate may affect individuals or populations.
In Mountain Creek, small rock dams resulted in local alteration of
flows, depths, and siltation of substrate particles, negatively
impacting Brawleys Fork crayfish (Mattingly 2021, pers. comm.).
In addition to the effects of sedimentation described above, stream
impoundment also results in changes to stream depth, flow, and water
temperature that may influence Brawleys Fork crayfish resiliency.
Upstream of impoundments, stream flows are slower, stream channels are
wider, and water temperatures are higher. Downstream, flows are
decreased. Thus, crayfish assemblages are altered both upstream and
downstream of impoundments in affected stream reaches (Arnwine et al.
2006, p. 152; Hartfield 2010, pp. 25, 43; Adams 2013, pp. 1325, 1328;
Barnett and Adams 2021, pp. 2, 4). The changes associated with
impoundments degrade the habitat conditions required by Brawleys Fork
crayfish including changes from cool, clean water with moderate to fast
flow in riffles and runs to slower, warmer water with increased
sedimentation and pollutants.
Climate Change
Climate change is projected to result in changes to precipitation
and temperature in the range of Brawleys Fork crayfish in the future
(Nissenbaum 2016, pp. 6-7). We used a downscaled model of projected
climate change and changes to the frequency and severity of drought and
extreme weather events (e.g., flooding) to assess the effect of climate
change on the Brawleys Fork crayfish and its habitat (Nissenbaum 2016,
entire).
The range of Brawleys Fork crayfish experienced above-average
annual rainfall in the period 2010-2020 (Climate Explorer 2021). An
increase in the frequency, duration, and severity of rain events will
result in heavier stormwater runoff transporting larger loads of
sediment, pollutants, and nutrients into streams and will also modify
stream channels and substrate composition through flooding (Poff et al.
2002, p. 12; Lockaby et al. 2013, p. 310). These changes may negatively
influence the Brawleys Fork crayfish through the effects associated
with increased sedimentation and degraded water quality as described
above.
Since the 1970s, moderate to severe droughts in the Southeast have
increased by 12 to 14 percent during spring and summer months and this
trend is projected to continue or increase (Jones et al. 2015, p. 126;
Nissenbaum 2016, p. 6). An increase in the frequency and severity of
droughts could result in shallower or dry headwater streams due to
increased evapotranspiration if this loss is not counteracted by
rainfall and groundwater recharge (Lockaby et al. 2013, p. 310). We
expect decreased stream flow and reduced habitat availability to reduce
the availability of food, shelter, or refugia sites as well as increase
predation and competition for these resources. However, Brawleys Fork
crayfish exhibits an adaptive strategy during dry periods by burrowing
deeper into the streambed, thereby accessing subterranean water, likely
providing some resiliency to drought conditions (Simmons 2021, pers.
comm.; Williams 2021, pers. comm.). In addition to effects to flow,
warmer water temperatures, particularly in lower order streams, may
influence Brawleys Fork crayfish growth and reproduction as described
under Water Quality above. The best available information does not
indicate that the effects of climate change are currently impacting
Brawleys Fork crayfish, but increased drought conditions and the
frequency of extreme weather events, including increased frequency,
severity, and duration of precipitation, are projected to increase in
the future. Accordingly, the impact of climate change on Brawleys Fork
crayfish viability may increase in the future.
Small, Isolated Populations
The Brawleys Fork crayfish is a narrow endemic species with a
limited range and fragmented distribution. These species'
characteristics coupled with small population size (low abundance of
less than 1 crayfish/100 meters or less than 1 crayfish/person hour) in
8 of 20 streams with Brawleys Fork crayfish occurrences may exacerbate
the impact of other threats described above (Service 2023, appendix A).
Small, isolated populations may have reduced genetic diversity as a
result of inbreeding, resulting in lower levels of population
resiliency and species' representation (Frankham 1995, p. 309; Frankham
2005, pp. 132-135; Johansen 2018, p. 38; Grubb 2019, p. 29). Although
the effects of small, isolated populations may exacerbate other
threats, the best available information indicates that the threat of
small, isolated populations is not currently influencing Brawleys Fork
crayfish viability alone.
Conservation Efforts and Regulatory Mechanisms
State Protections
Brawleys Fork crayfish is listed as endangered by the State of
Tennessee and receives some protections under the provisions of the
State wildlife code (Tennessee Nongame and Endangered or Threatened
Wildlife Species Conservation Act of 1974 (Tennessee Code Annotated,
Section 70-8-101-112)), which states that it is unlawful for any person
to take, attempt to take, possess, transport, export, process, sell or
offer for sale, or ship nongame wildlife, or for any common or contract
carrier knowingly to transport or receive for shipment nongame
wildlife. Brawleys Fork crayfish is considered a Species of Greatest
Conservation Need (SGCN) in Tennessee's State Wildlife Action Plan (TN-
SWAP 2015, appendix C, p. 255). Key goals of TN-SWAP are to develop and
implement conservation strategies and prioritize funding for
conservation projects to protect SGCN species and their habitats,
although specific actions for Brawleys Fork crayfish have not been
implemented. The protections for the Brawleys Fork crayfish in
Tennessee do not prohibit the species' habitat from destruction,
modification, or alteration.
In addition to State protections, the Brawleys Fork crayfish
receives some habitat protection through the Clean Water Act of 1972
(33 U.S.C. 1251). Section 404 of the Clean Water Act requires a
Department of the Army permit to discharge dredge or fill material in
``waters of the United
[[Page 57299]]
States'' that includes most streams where Brawleys Fork crayfish
occurs. Before acquiring a permit, the requester must first show that
steps have been taken to avoid impacts to wetlands, streams, and other
aquatic resources, such as Brawleys Fork crayfish; that potential
impacts have been minimized; and that compensation will be provided for
all remaining unavoidable impacts. State-level regulation of water
quality occurs through the Tennessee Department of Environment and
Conservation (TDEC), whereby laws such as Tennessee's Water Quality
Control Act of 1977 (T.C.A. 69-3-101) are enforced. TDEC personnel also
monitor water quality in surface waters throughout the State, including
watersheds within the Brawleys Fork crayfish's range.
Cumulative Threats
Due to the complexity of freshwater ecosystems, any single factor
influencing Brawleys Fork crayfish viability often impacts the species
in a variety of ways. The interconnectedness of these influences and
their ecological impacts create synergistic and cumulative effects on
Brawleys Fork crayfish viability. For example, conversion of forested
land to agricultural use may be associated with subsequent stream
impoundment to create small reservoirs for livestock or crop
irrigation. The effects of climate change (warmer temperatures and more
frequent and/or severe drought) could lead to decreased water
availability. As a result, water withdrawal from nearby streams would
increase to support crop irrigation demands. Additionally, urbanization
can exacerbate drought conditions in streams by channeling stormwater
runoff from impervious surfaces into ditches and drains that flow into
sewer lines and/or larger-order streams, bypassing headwater streams
and decreasing the amount of water available for groundwater recharge
to headwater streams. Without adequate groundwater recharge, lower-
order streams including those with Brawleys Fork crayfish occurrence
are susceptible to going dry during severe droughts. Reduced
groundwater recharge would also impact Brawleys Fork crayfish by
decreasing the availability of subterranean water, which the species
uses as refuge during periods of drought. Climate change and the
effects of small, isolated populations may exacerbate the effects of
other threats, including cumulative threats.
We note that, by using the SSA framework to guide our analysis of
the scientific information documented in the SSA report, we have not
only analyzed individual effects on the species, but we have also
analyzed their potential cumulative effects. We incorporate the
cumulative effects into our SSA analysis when we characterize the
current and future condition of the species. 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 relevant 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.
Current Condition
For the purposes of the Brawleys Fork crayfish SSA, we delineated
five analysis units (AUs) using available spatial occurrence data
(1955-2021) obtained from State agency survey reports and data
(Tennessee Wildlife Resources Agency (TWRA), TDEC), federally owned
corporation data (Tennessee Valley Authority), an interim research
report (Tennessee Tech University), peer-reviewed literature, and other
surveys (Bouchard and Bouchard 1995; Withers and McCoy 2005; Rohrbach
and Withers 2006; Giddens and Mattingly 2020). We evaluated the current
viability of Brawleys Fork crayfish using the conservation biology
principles of population resiliency, and species' redundancy and
representation.
Based on Brawleys Fork crayfish survey information and species'
needs (e.g., the availability of unembedded chert gravel and cobble
substrate within areas of fast to moderate flow, adequate water
quality, sufficient population size, and connectivity to support
reproduction and recruitment), we developed an approach using key
habitat and demographic parameters to assess population resiliency.
These included three habitat condition parameters (percent riparian
canopy cover, percent agricultural and/or urban development, and
drought) and three demographic condition parameters (extent, abundance,
and age class distribution). We developed four condition categories for
each parameter ranging from high to very low condition. Descriptions of
the parameters included in our resiliency assessment are summarized
individually below (Service 2023, pp. 38-47). We developed a scoring
framework for current resiliency that categorized each AU as either
high, moderate, low, or very low resiliency based on the overall
condition of assessed parameters.
Habitat Parameters
Riparian canopy cover (vegetation) regulates stream temperature,
reduces sedimentation, and sequesters stormwater runoff and associated
pollutants. To assess the influence of riparian vegetation on Brawleys
Fork crayfish resiliency, we determined the mean percent canopy cover
score within 30 meters (m) of the stream edge for each occupied stream
catchment. We categorized the canopy cover condition (table 2), then
averaged the catchment scores for an overall AU canopy cover score.
The extent of land use in agriculture and urban development impact
Brawleys Fork crayfish current resiliency through the effects of
increased sedimentation and water quality degradation. We assessed the
percentage of the stream catchment in agricultural and urban land cover
categories in the National Land Cover Database (NLCD 2016 Products in
Dewitz 2019, entire). We developed four categories for percent
agriculture and/or urban development and scored each stream catchment
with Brawleys Fork crayfish occurrences, then averaged the catchment
scores within each AU.
We assessed the level of drought in each AU in the Brawleys Fork
crayfish range using U.S. Drought Monitor data on the severity and
duration of extreme drought (category D3) and exceptional drought
(category D4) from 2000 to 2020 (U.S. Drought Monitor 2021). We
categorized drought experienced by Brawleys Fork crayfish AUs based on
the duration of D3 or D4 category drought conditions that occurred
during reproductive (March-June) and non-reproductive seasons (July-
February) (table 2).
The habitat parameters of riparian canopy cover and percent
agriculture and/or urban development were adjusted by -0.5 at the
catchment level to account for the greater impact of the factors on
first-, second- and third-order streams. Drought scores were not
adjusted at the AU level. The adjusted riparian canopy cover and land
cover scores and the drought parameter scores were summed for an
overall habitat condition score.
[[Page 57300]]
Table 2--Habitat Parameters and Parameter Condition Categories Used in Determining Brawleys Fork Crayfish
Resiliency
[Parameters were assessed at the catchment level and averaged over the analysis unit, except drought, which was
assessed at the analysis unit level. D3 = extreme drought; D4 = exceptional drought.]
----------------------------------------------------------------------------------------------------------------
Habitat parameter High (4) Moderate (3) Low (2) Very low (1)
----------------------------------------------------------------------------------------------------------------
Mean percent riparian canopy Greater than 75 50-75 percent..... 25-50 percent..... Less than 25
cover. percent. percent.
Percent agriculture and urban Less than 10 10-30 percent..... 30-50 percent..... Greater than 50
land use. percent. percent.
Drought (D3 or D4 2000-2020).... D3 or D4 drought D3 or D4 drought D3 or D4 drought D3 or D4 drought
never exceeds 4 exceeds 4 exceeds 4 exceeds 4
consecutive weeks consecutive weeks consecutive weeks consecutive weeks
in any season in in any non- during during
a calendar year. reproductive reproductive reproductive
season in a season in 1 season in 2 or
calendar year. calendar year. more calendar
years.
----------------------------------------------------------------------------------------------------------------
Demographic Parameters
Suitable habitat conditions and occurrence records for Brawleys
Fork crayfish are patchily distributed within streams. To assess the
species' distributional extent within occupied streams, we determined
the proportion of stream catchments with Brawleys Fork crayfish
occurrences out of the total catchments in each AU (extent) (table 3).
We categorized each extent from high to very low and adjusted the score
based on the level of connectivity between known occurrences (Service
2023, p. 44). The level of connectivity was determined using a
dendritic network complexity model.
We used abundance estimates as an indicator of population size, an
essential demographic factor influencing Brawleys Fork crayfish
resiliency. For each stream occupied by Brawleys Fork crayfish, we used
quantitative abundance estimates (reported as crayfish/100 m) if
available, or, if no quantitative estimate was available, we used
qualitative abundance estimates (reported as number of crayfish/person
hour or average catch per site visit) (Withers and McCoy 2005, pp. 20-
48; Rohrbach and Withers 2006, p. 18; Khan 2021, unpublished data). We
developed abundance estimate categories (table 3) and averaged the
occupied catchment level abundance scores to obtain an overall
abundance score for each AU.
Evidence of reproduction is an indicator of a population's fitness
and ability to sustain itself over time (viability). For Brawleys Fork
crayfish, we used evidence of reproduction (population age class
distribution) as a parameter to assess current resiliency (table 3). If
age class information was not available, we assigned each stream with
any abundance data a default score of one age class. We recognize that
this assignment of a very low age class distribution to populations
with unknown age class distribution may lead to an underestimation of
the level of reproduction in that stream. We next averaged the
population age class distribution scores for each stream within an AU
to calculate the overall score for the AU. We then summed the
(adjusted) extent, abundance, and population age class distribution
scores for each AU to obtain a total demographic score for each AU.
Finally, we summed the total AU habitat and total AU demographic
parameter scores to obtain an overall AU resiliency condition score.
Each AU was assigned an overall resiliency condition class from high to
very low based on the overall resiliency score.
Table 3--Demographic Parameters and Condition Categories Used to Assess Brawleys Fork Crayfish Current
Resiliency
----------------------------------------------------------------------------------------------------------------
Demographic parameter High (4) Moderate (3) Low (2) Very Low (1)
----------------------------------------------------------------------------------------------------------------
Extent.......................... 50 percent or 30-50 percent..... 10-30 percent..... Less than 10
greater. percent.
Abundance....................... Quantitative Quantitative Quantitative Quantitative
density greater density 10-20 density 1-9 density less than
than 20 crayfish/ crayfish/100 crayfish/100 1 crayfish/100
100 m\2\; or m\2\; or m\2\; or m\2\; or
qualitative qualitative 5-10 qualitative 1-4 qualitative less
greater than 10 crayfish/person crayfish/person than 1 crayfish/
crayfish/person hour or per site hour or per site person hour or
hour or per site visit. visit. per site visit.
visit.
Age Class Distribution.......... 3 distinct age 2 distinct age 2 distinct age 1 age class of any
classes including classes including classes, but no type.
hatchlings or hatchlings or hatchlings or
juveniles. juveniles. juveniles.
----------------------------------------------------------------------------------------------------------------
Of the five delineated Brawleys Fork crayfish AUs, two currently
exhibit moderate resiliency (Hollis Creek-East Fork Stones River and
Brawleys Fork AUs), and three exhibit low resiliency (Lower West Fork
Stones River, Bullpen Creek, and Mountain Creek AUs) (figure 1). Values
for habitat parameters were generally low, while most AUs have moderate
or high demographic parameters (Service 2023, appendix A). Three AUs
have very low extent (area of occupancy) (Lower West Fork Stones River,
Bullpen Creek, and Mountain Creek AUs), contributing to a lack of
connectivity within AUs.
BILLING CODE 4333-15-P
[[Page 57301]]
[GRAPHIC] [TIFF OMITTED] TP22AU23.050
BILLING CODE 4333-15-C
For Brawleys Fork crayfish, we assessed redundancy by mapping the
number and distribution of occupied streams across the species'
geographic range. We determined that current redundancy is sufficient
to support species viability with small populations patchily
distributed in streams with suitable habitat across the known current
range. The species occurs in a limited geographic area, although the
West Fork Stones River Lower analysis unit is spatially separated from
the other four analysis units, potentially providing protection against
some catastrophic events. The best available information does not
indicate that Brawleys Fork crayfish redundancy has decreased from
historical levels as the current known range of the species is wider
than the historical range (no range contraction).
Brawleys Fork crayfish has a known distribution in first- to third-
order streams and a fifth-order stream in two EPA level IV ecoregions.
We expect the species occurrence in a diversity of habitat conditions
across ecoregions and stream types indicates inherent adaptive capacity
that may allow adaption to changing biotic and abiotic conditions. We
determined that Brawleys Fork crayfish current representation is
moderate, and best available information indicates that the species'
representation has not declined from historical levels (no range
contraction).
Future Condition
To project the future condition of Brawleys Fork crayfish, we
developed three plausible future scenarios with varying levels of key
threats to the species. We assessed both the projected threats and the
species' likely response to those threats to determine the effect on
the resiliency, representation, and redundancy of Brawleys Fork
crayfish in 2036 and 2051. We modeled the scenarios at these timesteps
based on the average lifespan of the species (approximately 3 years),
confidence in models and projections of factors influencing the
species' viability, and certainty in predictions of the species'
response to those factors. To assess the future condition of Brawleys
Fork crayfish, we selected four key threats (urbanization, agricultural
land-use change, climate change, and water withdrawal) based on the
potential influence these factors have on Brawleys Fork crayfish
viability. We quantitatively assessed expected levels of urbanization
(SLEUTH model), land use change (cropland in the FORE-SCE model), and
climate change (air temperature in USGS National Climate Change Viewer
(NCCV 2021) model), and we qualitatively assessed the threat of future
water withdrawals (see chapter 5 of the SSA report for additional
modeling and scoring details) (Service 2023, pp. 53-57). The three
scenarios considered when predicting future conditions include: (1)
status quo with
[[Page 57302]]
lower development; (2) status quo with higher development; and (3)
increased impacts (table 4) (Service 2023, pp. 57-61).
Table 4--Data Sources and Modeled Levels of Four Key Drivers of Species Condition in Each Future Scenario for
Brawleys Fork Crayfish
----------------------------------------------------------------------------------------------------------------
Parameters
Scenario -------------------------------------------------------------------------------
Urbanization Land use change Climate change Water withdrawal
----------------------------------------------------------------------------------------------------------------
Scenario 1: Status quo/lower Greater than 50 FORE-SCE *; SRES USGS NCCV *; RCP Reduced rate of
development. percent B1 *. 4.5 *. increase in
probability of withdrawal.
urbanization in
SLEUTH *.
Scenario 2: Status quo/higher Greater than 50 FORE-SCE SRES B1.. USGS NCCV; RCP 4.5 Current rate of
development. percent increase in
probability of withdrawal.
urbanization in
SLEUTH.
Scenario 3: Increased impacts... Greater than 50 FORE-SCE; SRES A2 USGS NCCV; RCP 8.5 Increased rate of
percent *. *. increase in
probability of withdrawal.
urbanization in
SLEUTH.
----------------------------------------------------------------------------------------------------------------
* The three future scenarios include the following models or data sources: the SLEUTH model (slope, land use,
excluded area, urban area, transportation, hillside area) to predict the probability of urbanization
(Chaudhuri and Clarke 2013, pp. 1-3); the United States Geological Survey (USGS) Earth Resources Observation
and Science Center FOREcasting SCEnarios (FORE-SCE) to model projections of land use change under two
different Special Report on Emission Scenarios (SRES), similar to what is assumed under the two future climate
scenarios with varying levels of CO2 concentration known as representative concentration pathways RCP4.5 and
RCP8.5 (Nakicenovic et al. 2000, entire; Sohl et al. 2014, entire); and, the USGS National Climate Change
Viewer to model projections of future air temperatures and precipitation in the species' range.
Overall, our analysis projected declines in Brawleys Fork crayfish
future resiliency, representation, and redundancy with the magnitude of
decline increasing with increased impacts and longer timesteps (table
5). At the 15-year timestep, resiliency is projected to decline in 3
AUs under scenarios 1 and 2. At the 15-year timestep, resiliency is
projected to decline in 4 AUs under scenario 3. At the 30-year
timestep, resiliency is projected to decline in 3 AUs under scenario 1.
Resiliency is projected to decline in 4 AUs under scenario 2, and
resiliency is projected to decline in 5 AUs under scenario 3.
Two AUs are projected to maintain current low resiliency under some
scenarios: Bullpen Creek is projected to maintain low resiliency at 15
years under scenarios 1 and 2, and Mountain Creek is projected to
maintain low resiliency for 15 years under all scenarios and for 30
years under scenarios 1 and 2 (table 5). No AUs are estimated to
maintain moderate resiliency in 15 or 30 years under the three future
condition scenarios. Our analysis did not project the extirpation of
any AUs under any scenario; however, at least one AU is predicted to
exhibit very low resiliency in all scenarios, and all AUs are predicted
to exhibit very low resiliency in 2051 under scenario 3 (increased
impacts).
Redundancy is expected to decline in the future as a function of
loss of resiliency in AUs, although no AUs are projected to be
extirpated and the distribution of the species across the range is
projected to remain at the current level. Representation is expected to
decline slightly from current levels in both future timesteps as
populations (not AUs) are extirpated and habitat fragmentation reduces
inherent adaptive capacity in Brawleys Fork crayfish due to decreases
in connectivity and gene flow.
Table 5--Future Resiliency of Brawleys Fork Crayfish Analysis Units Under Three Plausible Future Scenarios at 15- and 30-Year Timesteps
--------------------------------------------------------------------------------------------------------------------------------------------------------
Current Scenario 1 Scenario 2 Scenario 3
Analysis unit (HUC 12*) resiliency --------------------------------------------------------------------------------------------------------
class 2036 2051 2036 2051 2036 2051
--------------------------------------------------------------------------------------------------------------------------------------------------------
Hollis Creek-East Fork Stones Moderate........ Low............. Low............. Low............. Low............ Low............ Very Low.
River.
Brawleys Fork................ Moderate........ Low............. Low............. Low............. Low............ Low............ Very Low.
Lower West Fork Stones River. Low............. Very Low........ Very Low........ Very Low........ Very Low....... Very Low....... Very Low.
Bullpen Creek................ Low............. Low............. Low............. Low............. Very Low....... Very Low....... Very Low.
Mountain Creek............... Low............. Low............. Low............. Low............. Low............ Low............ Very Low.
--------------------------------------------------------------------------------------------------------------------------------------------------------
* Hydrologic Unit Code.
Determination of Brawleys Fork Crayfish 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 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.
Status Throughout All of Its Range
After evaluating threats to the species and assessing the
cumulative effect of
[[Page 57303]]
the threats under the Act's section 4(a)(1) factors, we determined the
following threats are acting as the primary drivers of Brawleys Fork
crayfish viability and are ongoing: habitat loss and degradation
(Factor A) due to sedimentation and water quality degradation from
sources including agricultural practices, horticultural practices, and
urbanization; and instream modification including impoundments, gravel
dredging, and channel alteration. The impacts of these threats may be
further exacerbated by the effects of small, isolated populations
(Factor E) and the future effects of climate change (Factor E).
Brawleys Fork crayfish is known to occur in 20 streams in 5 central
Tennessee HUC12 watersheds and is distributed across the current range
of the species, which represents an expansion of the known historical
range. Available information does not indicate population-level
extirpations or evidence of range contraction for the species. Of the
five delineated analysis units (HUC12 watersheds), two currently
exhibit moderate resiliency and three low resiliency. Although Brawleys
Fork crayfish is impacted by past and ongoing threats of sedimentation,
water quality degradation, and instream modifications, the species
currently exhibits sufficient population-level resiliency and species-
level representation and redundancy to withstand stochastic and
catastrophic events and has inherent capacity to adapt to environmental
change. Accordingly, we conclude that the Brawleys Fork crayfish is not
in danger of extinction throughout its range.
Upon determining that the Brawleys Fork crayfish is not in danger
of extinction throughout its range, we consider whether it is likely to
become an endangered species in the foreseeable future throughout its
range. Our analysis of the species' future condition under future
scenarios at two timesteps encompasses the best available information
for future projections of modeled parameters under a range of plausible
threat levels. We selected these time steps based on the Brawleys Fork
crayfish's lifespan of approximately 3 years and the reliability of the
data and models used in the future threat projections and analysis. We
determined we can reliably predict both the future threats and the
species' responses to those threats within a 30-year timeframe (i.e.,
the foreseeable future). However, after that time period, we have less
confidence in projections.
We found that impacts from habitat loss and degradation present the
most substantial threat to the Brawleys Fork crayfish viability. As
described above, the threats currently acting on the species include
sedimentation, water quality degradation, and instream modifications,
all of which may be exacerbated by the effects of climate change and
small, isolated populations. In the foreseeable future, we anticipate
that threats associated with urbanization, land use change, and climate
change will continue to increase in magnitude and will have the
greatest influence on species' viability. We also considered the
effects of instream impoundments, water withdrawals, and small,
isolated populations, including cumulative effects. The best available
information indicates that the threats and stressors currently acting
on the Brawleys Fork crayfish are expected to continue into the
foreseeable future, some of which (e.g., urbanization, land use change
(agriculture and horticulture), and climate change) are reasonably
expected to worsen over time.
Our assessment of plausible future scenarios projects declines in
resiliency, representation, and redundancy in the future as a result of
ongoing threats of habitat loss and degradation. However, no
extirpations of AUs are projected. In our future condition analysis, no
moderate resiliency populations are projected and all 5 Brawleys Fork
crayfish AUs are projected to exhibit low or very low resiliency in the
three plausible future scenarios. Representation and redundancy are
also projected to be reduced from current levels in the future as a
result of declining resiliency, extirpations of individual populations
within AUs, and loss of connectivity. Thus, after assessing the best
available information, we conclude that the Brawleys Fork crayfish is
not currently in danger of extinction but is likely to become in danger
of extinction within the foreseeable future 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. The court in Center for Biological Diversity v. Everson, 435
F. Supp. 3d 69 (D.D.C. 2020) (Everson), vacated the provision of the
Final Policy on Interpretation of the Phrase ``Significant Portion of
Its Range'' in the Endangered Species Act's Definitions of ``Endangered
Species'' and ``Threatened Species'' (hereafter ``Final Policy''; 79 FR
37578, July 1, 2014) that provided if the Services determine that a
species is threatened throughout all of its range, the Services will
not analyze whether the species is endangered in a significant portion
of its range.
Therefore, we proceed to evaluating whether the species is
endangered in a significant portion of its range--that is, whether
there is any portion of the species' range for which both (1) the
portion is significant and (2) the species is in danger of extinction
in that portion. Depending on the case, it might be more efficient for
us to address the ``significance'' question or the ``status'' question
first. We can choose to address either question first. Regardless of
which question we address first, if we reach a negative answer with
respect to the first question that we address, we do not need to
evaluate the other question for that portion of the species' range.
Following the court's holding in Everson, we now consider whether
there are any significant portions of the species' range where the
species is in danger of extinction now (i.e., endangered). In
undertaking this analysis for Brawleys Fork crayfish, we choose to
address the status question first--we consider information pertaining
to the geographic distribution of both the species and the threats that
the species faces to identify portions of the range where the species
may be endangered.
We evaluated the range of the Brawleys Fork crayfish to determine
if the species is in danger of extinction now in any portion of its
range. The range of a species can theoretically be divided into
portions in an infinite number of ways. We focused our analysis on
portions of the species' range that may meet the definition of an
endangered species. For Brawleys Fork crayfish, we considered whether
the threats or their effects on the species are greater in any
biologically meaningful portion of the species' range than in other
portions such that the species is in danger of extinction now in that
portion.
We examined the following threats: sedimentation and water quality
degradation from sources including agricultural/horticultural practices
and urbanization; and instream modification including impoundments,
gravel dredging, and channel alteration, including cumulative effects.
We also considered the effects of climate change, small and isolated
populations, and conservation efforts and regulatory mechanisms. These
stressors are present rangewide, and threats influence Brawleys Fork
crayfish viability rangewide, but the sources are more
[[Page 57304]]
concentrated in some areas and may affect some individuals and
populations to a greater extent (e.g., increased urbanization in the
West Fork Stones watershed). We identified three AUs where the impact
of these threats may have a more pronounced effect such that the
species may have a different status in those AUs than the remainder of
the range. The portions we considered are the geographic areas
described as the West Fork Stones River, Bullpen Creek, and Mountain
Creek AUs (HUC 12 watersheds) in the SSA report (Service 2023).
As described in Status Throughout All of Its Range, the threats of
sedimentation, water quality degradation, and instream modifications
have impacted the Brawleys Fork crayfish's viability through habitat
loss and degradation. Although threats are similar throughout the range
of the species, the threats associated with increased urbanization and
development are greater in the West Fork Stones River unit. In
addition, this unit does not have connectivity to any other watershed
with Brawleys Fork crayfish occurrences and is geographically distanced
from other occupied streams. The West Fork Stones River unit currently
exhibits low resiliency, and resiliency is projected to decline in this
unit under our future condition scenarios. Given the current and
ongoing threats, including urbanization, and the species' current and
future condition within this unit, we have identified the West Fork
Stones River AU as an area that may have a different status than the
remainder of the range.
We also considered the Bullpen Creek and Mountain Creek AUs as
areas that may require further analysis. The best available historical
information indicated that the Brawleys Fork crayfish has occurred and
continues to occur with low abundance at limited sites within Bullpen
Creek and Mountain Creek. In addition, although threats are similar
throughout the range of the species, the species' response to threats
may be more pronounced in the Bullpen Creek and Mountain Creek AUs. Due
to low current resiliency, threats are having a greater impact in the
Bullpen Creek and Mountain Creek AUs. The two AUs exhibit low current
resiliency driven primarily by low extent of occupancy (few sites known
within the streams), and resiliency is projected to decline in the two
AUs in future scenarios. Given the current and ongoing threats and the
species' current and future condition within this unit, we have
identified the Bullpen Creek and Mountain Creek AUs as areas that may
have a different status than the remainder of the range.
We then proceeded to the significance question, asking whether
these portions of the range (West Fork Stones River, Bullpen Creek, or
Mountain Creek AU) are significant. The Service's most recent
definition of ``significant'' within agency policy guidance has been
invalidated by court order (see Desert Survivors v. U.S. Department of
the Interior, 321 F. Supp. 3d 1011, 1070-74 (N.D. Cal. 2018)). In
undertaking this analysis for the range of the Brawleys Fork crayfish,
we considered whether any of the three portions of the range identified
are significant based on the biological importance to the overall
viability of the Brawleys Fork crayfish. Therefore, for the purposes of
this analysis, when considering whether this portion is significant, we
considered whether the portion may (1) occur in a unique habitat or
ecoregion for the species, (2) contain high-quality or high-value
habitat relative to the remaining portions of the range, for the
species' continued viability in light of the existing threats, (3)
contain habitat that is essential to a specific life-history function
for the species and that is not found in the other portions of the
range, or (4) contain a large geographic portion of the suitable
habitat relative to the remaining portions of the range.
Although every unit provides some contribution to a species'
viability, the West Fork Stones River AU comprises a small geographic
portion of the range with low-quality habitat. This unit may offer some
value to representation as the West Fork Stones River is the only
fifth-order stream with Brawleys Fork crayfish occurrences and provides
somewhat different habitat conditions (e.g., a larger, perennial stream
that does not go dry seasonally) and may offer a refugia in extreme
drought. However, the habitat does not support high abundance or high-
quality habitat. Brawleys Fork crayfish occurrences are known only from
the Lower West Fork Stones River in this AU with a low extent of
occupancy compared to the two moderate-resiliency units (4.3 percent of
stream catchments in the unit have occurrence records) (Service 2023,
appendix A). Overall, there is little evidence to suggest that the
geographical area of the West Fork Stones River unit has higher quality
or higher value habitat or provides any unique resource to the species
life history. Thus, based on the best available information, we find
that this portion of the range is not biologically significant in terms
of the habitat considerations discussed above.
Although every unit provides some contribution to a species'
viability, the Bullpen Creek and Mountain Creek AUs comprise a small
percentage of the known Brawleys Fork crayfish sites and abundance. The
habitat in the Bullpen Creek and Mountain Creek AUs does not support
high abundance or represent high-quality habitat. Brawleys Fork
crayfish occurrences are known from only one site in each AU resulting
in a low extent of occupancy compared to the two moderate-resiliency
units. In Bullpen Creek AU, 1.4 percent of stream catchments in the
unit have known occurrences, and, in Mountain Creek AU, 3.8 percent of
stream catchments have known occurrences (Service 2023, appendix A).
Overall, there is little evidence to suggest that the geographical
areas of the Bullpen Creek or Mountain Creek AU have higher quality or
higher value habitat or provide any unique resource to the species life
history. Thus, based on the best available information, we find that
the portions of the range represented by the Bullpen Creek and Mountain
Creek AU are not biologically significant in terms of the habitat
considerations discussed above.
In addition, we considered the three AUs (West Fork Stones River,
Bullpen Creek, and Mountain Creek) as one portion that may have a
different status in order to assess the potential significance as one
geographic area. In total, the three units represent approximately 9.5
percent of occupied catchments in the species' range. The units do not
provide high-value or unique habitat for the species, as described
above. Thus, based on the best available information, we find that the
portion of the range represented by the West Fork Stones River, Bullpen
Creek, and Mountain Creek AUs is not biologically significant in terms
of the habitat considerations and occupancy described above.
We found no biologically meaningful portion of the Brawleys Fork
crayfish's range where the species may have a different status than the
species rangewide and the portion is significant. Therefore, no portion
of the species' range provides a basis for determining that the species
is in danger of extinction in a significant portion of its range, and
we determine that the species is likely to become in danger of
extinction within the foreseeable future throughout all of its range.
This does not conflict with the courts' holdings in Desert Survivors v.
U.S. Department of the Interior, 321 F. Supp. 3d 1011, 1070-74 (N.D.
Cal. 2018) and Center for Biological Diversity v. Jewell, 248 F. Supp.
3d 946, 959 (D. Ariz. 2017)
[[Page 57305]]
because, in reaching this conclusion, we did not apply the aspects of
the Final Policy, including the definition of ``significant'' that
those court decisions held to be invalid.
Determination of Status
Our review of the best available scientific and commercial
information indicates that the Brawleys Fork crayfish meets the
definition of a threatened species. Therefore, we propose to list the
Brawleys Fork crayfish as a threatened species in accordance with
sections 3(20) 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 conservation of endangered and
threatened species. The goal of this process is to restore listed
species to a point where they are secure, self-sustaining, and
functioning components of their ecosystems.
The recovery planning process begins with development of a recovery
outline made available to the public soon after a final listing
determination. The recovery outline guides the immediate implementation
of urgent recovery actions while a recovery plan is being developed.
Recovery teams (composed of species experts, Federal and State
agencies, nongovernmental organizations, and stakeholders) may be
established to develop and implement recovery plans. The recovery
planning process involves the identification of actions that are
necessary to halt and reverse the species' decline by addressing the
threats to its survival and recovery. The recovery plan identifies
recovery criteria for review of when a species may be ready for
reclassification from endangered to threatened (``downlisting'') or
removal from protected status (``delisting''), and methods for
monitoring recovery progress. Recovery plans also establish a framework
for agencies to coordinate their recovery efforts and provide estimates
of the cost of implementing recovery tasks. Revisions of the plan may
be done to address continuing or new threats to the species, as new
substantive information becomes available. The recovery outline, draft
recovery plan, final recovery plan, and any revisions will be available
on our website as they are completed (https://www.fws.gov/program/recovery/recovery-plans), or from our Tennessee Ecological Services
Field Office (see FOR FURTHER INFORMATION CONTACT).
Implementation of recovery actions generally requires the
participation of a broad range of partners, including other Federal
agencies, States, Tribes, nongovernmental organizations, businesses,
and private landowners. Examples of recovery actions include habitat
restoration (e.g., restoration of native vegetation), research, captive
propagation and reintroduction, and outreach and education. The
recovery of many listed species cannot be accomplished solely on
Federal lands because their range may occur primarily or solely on non-
Federal lands. To achieve recovery of these species requires
cooperative conservation efforts on private, State, and Tribal lands.
If this species is listed, funding for recovery actions will be
available from a variety of sources, including Federal budgets, State
programs, and cost-share grants for non-Federal landowners, the
academic community, and nongovernmental organizations. In addition,
pursuant to section 6 of the Act, the State of Tennessee would be
eligible for Federal funds to implement management actions that promote
the protection or recovery of the Brawleys Fork crayfish. Information
on our grant programs that are available to aid species recovery can be
found at: https://www.fws.gov/service/financial-assistance.
Although the Brawleys Fork crayfish is only proposed for listing
under the Act at this time, please let us know if you are interested in
participating in recovery efforts for this species. Additionally, we
invite you to submit any new information on this species whenever it
becomes available and any information you may have for recovery
planning purposes (see FOR FURTHER INFORMATION CONTACT).
Section 7 of the Act pertains to interagency cooperation and
mandates all Federal action agencies to use their existing authorities
to further the conservation purposes of the Act and to ensure that
their actions are not likely to jeopardize the continued existence of
listed species or adversely modify critical habitat. Regulations
implementing this interagency cooperation provision of the Act are
codified at 50 CFR part 402.
Section 7(a)(2) states that each Federal action agency shall, in
consultation with the Secretary, ensure that any action they authorize,
fund, or carry out is not likely to jeopardize the continued existence
of a listed species or result in the destruction or adverse
modification of designated critical habitat. Each Federal agency shall
review its action at the earliest possible time to determine whether it
may affect listed species or critical habitat. If a determination is
made that the action may affect listed species or critical habitat,
formal consultation is required (50 CFR 402.14(a)), unless the Service
concurs in writing that the action is not likely to adversely affect
listed species or critical habitat. At the end of a formal
consultation, the Service issues a biological opinion, containing its
determination of whether the Federal action is likely to result in
jeopardy or adverse modification.
In contrast, section 7(a)(4) of the Act requires Federal agencies
to confer with the Service on any action that is likely to jeopardize
the continued existence of a species proposed to be listed under the
Act or result in destruction or adverse modification of critical
habitat proposed to be designated for such species. Although the
conference procedures are required only when an action is likely to
result in jeopardy or adverse modification, action agencies may
voluntarily confer with the Service on actions that may affect species
proposed for listing or critical habitat proposed to be designated. In
the event that the subject species is listed or the relevant critical
habitat is designated, a conference opinion may be adopted as a
biological opinion and serve as compliance with section 7(a)(2).
Examples of discretionary actions for the Brawleys Fork crayfish
that may be subject to the conference and consultation procedures under
section 7 are land management or other landscape-altering activities on
Federal lands administered by the U.S. Army Corps of Engineers (USACE)
as well as actions on State, Tribal, local, or private lands that
require a Federal permit
[[Page 57306]]
(such as a permit from USACE under section 404 of the Clean Water Act
(33 U.S.C. 1251 et seq.) or a permit from the Service under section 10
of the Act) or that involve some other Federal action (such as funding
from the Federal Highway Administration, Federal Aviation
Administration, or the Federal Emergency Management Agency). Federal
actions not affecting listed species or critical habitat--and actions
on State, Tribal, local, or private lands that are not federally
funded, authorized, or carried out by a Federal agency--do not require
section 7 consultation. Federal agencies should coordinate with the
local Service Field Office (see FOR FURTHER INFORMATION CONTACT) with
any specific questions on section 7 consultation and conference
requirements.
It is our policy, as published in the Federal Register on July 1,
1994 (59 FR 34272), to identify to the extent known at the time a
species is listed, specific activities that will not be considered
likely to result in a violation of section 9 of the Act. To the extent
possible, activities that will be considered likely to result in a
violation will also be identified in as specific a manner as possible.
The intent of this policy is to increase public awareness of the effect
of a proposed listing on proposed and ongoing activities within the
range of the species proposed for listing. Although most of the
prohibitions in section 9 of the Act apply to endangered species,
sections 9(a)(1)(G) and 9(a)(2)(E) prohibit the violation of any
regulation under section 4(d) pertaining to any threatened species of
fish or wildlife, or threatened species of plant, respectively. Section
4(d) of the Act directs the Secretary to promulgate protective
regulations that are necessary and advisable for the conservation of
threatened species. As a result, we interpret our policy to mean that,
when we list a species as a threatened species, to the extent possible,
we identify activities that will or will not be considered likely to
result in violation of the protective regulations under section 4(d)
for that species.
At this time, we are unable to identify specific activities that
will or will not be considered likely to result in violation of section
9 of the Act beyond what is already clear from the descriptions of
prohibitions and exceptions established by protective regulation under
section 4(d) of the Act.
Questions regarding whether specific activities would constitute
violation of section 9 of the Act should be directed to the Tennessee
Ecological Services Field Office (see FOR FURTHER INFORMATION CONTACT).
II. Proposed Rule Issued Under Section 4(d) of the Act
Background
Section 4(d) of the Act contains two sentences. The first sentence
states that the Secretary shall issue such regulations as she deems
necessary and advisable to provide for the conservation of species
listed as threatened species. The U.S. Supreme Court has noted that
statutory language similar to the language in section 4(d) of the Act
authorizing the Secretary to take action that she ``deems necessary and
advisable'' affords a large degree of deference to the agency (see
Webster v. Doe, 486 U.S. 592, 600 (1988)). Conservation is defined in
the Act to mean the use of all methods and procedures which are
necessary to bring any endangered species or threatened species to the
point at which the measures provided pursuant to the Act are no longer
necessary. Additionally, the second sentence of section 4(d) of the Act
states that the Secretary may by regulation prohibit with respect to
any threatened species any act prohibited under section 9(a)(1), in the
case of fish or wildlife, or section 9(a)(2), in the case of plants.
Thus, the combination of the two sentences of section 4(d) provides the
Secretary with wide latitude of discretion to select and promulgate
appropriate regulations tailored to the specific conservation needs of
the threatened species. The second sentence grants particularly broad
discretion to the Service when adopting one or more of the prohibitions
under section 9.
The courts have recognized the extent of the Secretary's discretion
under this standard to develop rules that are appropriate for the
conservation of a species. For example, courts have upheld, as a valid
exercise of agency authority, rules developed under section 4(d) that
included limited prohibitions against takings (see Alsea Valley
Alliance v. Lautenbacher, 2007 WL 2344927 (D. Or. 2007); Washington
Environmental Council v. National Marine Fisheries Service, 2002 WL
511479 (W.D. Wash. 2002)). Courts have also upheld 4(d) rules that do
not address all of the threats a species faces (see State of Louisiana
v. Verity, 853 F.2d 322 (5th Cir. 1988)). As noted in the legislative
history when the Act was initially enacted, ``once an animal is on the
threatened list, the Secretary has an almost infinite number of options
available to [her] with regard to the permitted activities for those
species. [She] may, for example, permit taking, but not importation of
such species, or [she] may choose to forbid both taking and importation
but allow the transportation of such species'' (H.R. Rep. No. 412, 93rd
Cong., 1st Sess. 1973).
The provisions of this proposed 4(d) rule would promote
conservation of the Brawleys Fork crayfish by encouraging management of
the habitat for the species in ways that facilitate conservation for
the species. The provisions of this proposed rule are one of many tools
that we would use to promote the conservation of the Brawleys Fork
crayfish. This proposed 4(d) rule would apply only if and when we make
final the listing of the Brawleys Fork crayfish as a threatened
species.
As mentioned previously in Available Conservation Measures, section
7(a)(2) of the Act requires Federal agencies, including the Service, to
ensure that any action they fund, authorize, or carry out is not likely
to jeopardize the continued existence of any endangered species or
threatened species or result in the destruction or adverse modification
of designated critical habitat of such species. In addition, section
7(a)(4) of the Act requires Federal agencies to confer with the Service
on any agency action that is likely to jeopardize the continued
existence of any species proposed to be listed under the Act or result
in the destruction or adverse modification of proposed critical
habitat. If a Federal action may affect a listed species or its
critical habitat, the responsible Federal agency (action agency) must
enter into consultation with us.
These requirements are the same for a threatened species with a
species-specific 4(d) rule. For example, a Federal agency's
determination that an action is ``not likely to adversely affect'' a
threatened species will require the Service's written concurrence.
Similarly, a Federal agency's determination that an action is ``likely
to adversely affect'' a threatened species will require formal
consultation and the formulation of a biological opinion.
Provisions of the Proposed 4(d) Rule
Exercising the Secretary's authority under section 4(d) of the Act,
we have developed a proposed rule that is designed to address the
Brawleys Fork crayfish's conservation needs. As discussed previously in
Summary of Biological Status and Threats, we have concluded that the
Brawleys Fork crayfish is likely to become in danger of extinction
within the foreseeable future primarily due to habitat loss and
degradation due to sedimentation and water quality degradation from
sources including agricultural practices, horticultural practices, and
[[Page 57307]]
urbanization; and instream modification including impoundments, gravel
dredging, and channel alteration. Each of the threats influencing
Brawleys Fork crayfish viability may be further exacerbated by the
effects of small, isolated populations and the future effects of
climate change.
As stated previously, section 4(d) requires the Secretary to issue
such regulations as she deems necessary and advisable to provide for
the conservation of each threatened species and authorizes the
Secretary to include among those protective regulations any of the
prohibitions that section 9(a)(1) of the Act prescribes for endangered
species. We find that, if finalized, the protections, prohibitions, and
exceptions in this proposed rule as a whole satisfy the requirement in
section 4(d) of the Act to issue regulations deemed necessary and
advisable to provide for the conservation of the Brawleys Fork
crayfish.
The protective regulations we are proposing for Brawleys Fork
crayfish incorporate prohibitions from section 9(a)(1) to address the
threats to the species. Section 9(a)(1) prohibits the following
activities for endangered wildlife: importing or exporting; take;
possession and other acts with unlawfully taken specimens; delivering,
receiving, carrying, transporting, or shipping in interstate or foreign
commerce in the course of commercial activity; or selling or offering
for sale in interstate or foreign commerce. This protective regulation
includes all of these prohibitions because the Brawleys Fork crayfish
is at risk of extinction in the foreseeable future and putting these
prohibitions in place will help to prevent further declines, preserve
the species' remaining populations, and decrease synergistic, negative
effects from other ongoing or future threats.
In particular, this proposed 4(d) rule would provide for the
conservation of the Brawleys Fork crayfish by prohibiting the following
activities, unless they fall within specific exceptions or are
otherwise authorized or permitted: importing or exporting; take;
possession and other acts with unlawfully taken specimens; delivering,
receiving, carrying, transporting, or shipping in interstate or foreign
commerce in the course of commercial activity; or selling or offering
for sale in interstate or foreign commerce.
Under the Act, ``take'' means to harass, harm, pursue, hunt, shoot,
wound, kill, trap, capture, or collect, or to attempt to engage in any
such conduct. Some of these provisions have been further defined in
regulations at 50 CFR 17.3. Take can result knowingly or otherwise, by
direct and indirect impacts, intentionally or incidentally. Regulating
take would help preserve the species' remaining populations, slow their
rate of decline, and decrease synergistic, negative effects from other
ongoing or future threats. Therefore, we propose to prohibit take of
the Brawleys Fork crayfish, except for take resulting from those
actions and activities specifically excepted by the 4(d) rule.
Exceptions to the prohibition on take would include all the general
exceptions to the prohibition against take of endangered wildlife, as
set forth in 50 CFR 17.21 and additional exceptions, as described
below.
The proposed 4(d) rule would also provide for the conservation of
the species by allowing exceptions that incentivize conservation
actions or that, while they may have some minimal level of take of the
Brawleys Fork crayfish, are not expected to rise to the level that
would have a negative impact (i.e., would have only de minimis impacts)
on the species' conservation. The proposed exceptions to these
prohibitions include channel restoration and bank stabilization
projects, migration barrier removal projects, and transportation
projects that provide fish passage (described below) and are expected
to have negligible impacts to the Brawleys Fork crayfish and its
habitat.
The first exception is for incidental take resulting from channel
restoration projects for creation of natural, physically stable,
ecologically functioning streams (or stream and wetland systems). These
projects can be accomplished using a variety of methods, but the
desired outcome is a natural channel with low shear stress (force of
water moving against the channel); bank heights that enable
reconnection to the floodplain; a reconnection of surface and
groundwater systems, resulting in perennial flows in the channel;
riffles and pools composed of existing soil, rock, and wood instead of
large imported materials; low compaction of soils within adjacent
riparian areas; and inclusion of riparian wetlands.
The second exception is for incidental take resulting from bank
stabilization projects that use bioengineering methods to replace
preexisting, bare, eroding stream banks with vegetated, stable stream
banks, thereby reducing bank erosion and instream sedimentation and
improving habitat conditions for the species. This exception includes a
requirement that the bank stabilization bioengineering use methods such
as native species live stakes (live, vegetative cuttings inserted or
tamped into the ground in a manner that allows the stake to take root
and grow), native species live fascines (live branch cuttings, usually
willows, bound together into long, cigar-shaped bundles), or native
species brush layering (cuttings or branches of easily rooted tree
species layered between successive lifts of soil fill). This exception
also includes a requirement to use native species vegetation including
woody and herbaceous species appropriate for the region and habitat
conditions. This exception does not apply if the bank stabilization
includes the sole use of quarried rock (riprap) or the use of rock
baskets or gabion structures.
The third exception is for incidental take resulting from bridge
and culvert replacement/removal projects or low head dam removal
projects that remove migration barriers or generally allow for improved
upstream and downstream movements of Brawleys Fork crayfish while
maintaining normal stream flows, preventing bed and bank erosion, and
improving habitat conditions for the species.
The fourth exception is for incidental take resulting from
transportation projects that provide for fish passage at stream
crossings, thereby providing for connectivity and dispersal for the
Brawleys Fork crayfish.
Despite these prohibitions regarding threatened species, we may
under certain circumstances issue permits to carry out one or more
otherwise-prohibited activities, including those described above. The
regulations that govern permits for threatened wildlife state that the
Director may issue a permit authorizing any activity otherwise
prohibited with regard to threatened species. These include permits
issued for the following purposes: for scientific purposes, to enhance
propagation or survival, for economic hardship, for zoological
exhibition, for educational purposes, for incidental taking, or for
special purposes consistent with the purposes of the Act (50 CFR
17.32). The statute also contains certain exemptions from the
prohibitions, which are found in sections 9 and 10 of the Act.
We recognize the special and unique relationship with our State
natural resource agency partners in contributing to conservation of
listed species. State agencies often possess scientific data and
valuable expertise on the status and distribution of endangered,
threatened, and candidate species of wildlife and plants. State
agencies, because of their authorities and their close working
relationships with local governments and landowners, are in a unique
[[Page 57308]]
position to assist us in implementing all aspects of the Act. In this
regard, section 6 of the Act provides that we must cooperate to the
maximum extent practicable with the States in carrying out programs
authorized by the Act. Therefore, any qualified employee or agent of a
State conservation agency that is a party to a cooperative agreement
with us in accordance with section 6(c) of the Act, who is designated
by his or her agency for such purposes, would be able to conduct
activities designed to conserve Brawleys Fork crayfish that may result
in otherwise prohibited take without additional authorization.
Nothing in this proposed 4(d) rule would change in any way the
recovery planning provisions of section 4(f) of the Act, the
consultation requirements under section 7 of the Act, or our ability to
enter into partnerships for the management and protection of the
Brawleys Fork crayfish. However, interagency cooperation may be further
streamlined through planned programmatic consultations for the species
between us and other Federal agencies, where appropriate. We ask the
public, particularly State agencies and other interested stakeholders
that may be affected by the proposed 4(d) rule, to provide comments and
suggestions regarding additional guidance and methods that we could
provide or use, respectively, to streamline the implementation of this
proposed 4(d) rule (see Information Requested, above).
III. Critical Habitat
Background
Critical habitat is defined in section 3 of the Act as:
(1) The specific areas within the geographical area occupied by the
species, at the time it is listed in accordance with the Act, on which
are found those physical or biological features
(a) Essential to the conservation of the species, and
(b) Which may require special management considerations or
protection; and
(2) Specific areas outside the geographical area occupied by the
species at the time it is listed, upon a determination that such areas
are essential for the conservation of the species.
Our regulations at 50 CFR 424.02 define the geographical area
occupied by the species as an area that may generally be delineated
around species' occurrences, as determined by the Secretary (i.e.,
range). Such areas may include those areas used throughout all or part
of the species' life cycle, even if not used on a regular basis (e.g.,
migratory corridors, seasonal habitats, and habitats used periodically,
but not solely by vagrant individuals).
Conservation, as defined under section 3 of the Act, means to use
and the use of all methods and procedures that are necessary to bring
an endangered or threatened species to the point at which the measures
provided pursuant to the Act are no longer necessary. Such methods and
procedures include, but are not limited to, all activities associated
with scientific resources management such as research, census, law
enforcement, habitat acquisition and maintenance, propagation, live
trapping, and transplantation, and, in the extraordinary case where
population pressures within a given ecosystem cannot be otherwise
relieved, may include regulated taking.
Critical habitat receives protection under section 7 of the Act
through the requirement that Federal agencies ensure, in consultation
with the Service, that any action they authorize, fund, or carry out is
not likely to result in the destruction or adverse modification of
critical habitat. The designation of critical habitat does not affect
land ownership or establish a refuge, wilderness, reserve, preserve, or
other conservation area. 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
likely 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 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 57309]]
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 the 4(d) rule. Federally funded or permitted
projects affecting listed species outside their designated critical
habitat areas may still result in jeopardy findings in some cases.
These protections and conservation tools will continue to contribute to
recovery of the species. Similarly, critical habitat designations made
on the basis of the best available information at the time of
designation will not control the direction and substance of future
recovery plans, habitat conservation plans (HCPs), or other species
conservation planning efforts if new information available at the time
of those planning efforts calls for a different outcome.
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.
As described above under Species Needs, the Brawleys Fork crayfish
occurs in riffles and runs with fast to moderately rapid flow in first-
to third-order streams and one fifth-order stream. Brawleys Fork
crayfish typically occupy streams with layered chert gravel and cobble
substrate with ample interstitial space not consolidated by finer
substrates such as sand or silt. Cool water with ample riparian
vegetation and a high volume of clean groundwater discharged into the
stream from subterranean aquifers also characterize streams with
Brawleys Fork crayfish occurrences.
The primary habitat elements that influence resiliency of the
Brawleys Fork crayfish include water quantity and flow, water quality,
substrate, and habitat connectivity. These features are also described
above as resource needs under Background and Summary of Biological
Status and Threats, with individual needs summarized in table 1, and a
full description is available in the SSA report (Service 2023, pp. 18-
20).
We derive the specific physical or biological features essential to
the conservation of Brawleys Fork crayfish from studies of the species'
habitat, ecology, and life history as described below. Additional
information can be found in the SSA report (Service 2023, pp. 14-24);
available on https://www.regulations.gov under Docket No. FWS-R4-ES-
2023-0065). We have determined that the following physical or
biological features are essential to the conservation of Brawleys Fork
crayfish:
(1) Moderate to fast-flowing stream with unembedded chert gravel
and cobble substrate within an unobstructed stream continuum (i.e.,
riffle, run, pool complexes) of perennial, small- to moderate-sized
(generally third order or smaller) streams and rivers (up to the
ordinary high-water mark as defined at 33 CFR 329.11).
(2) Stream banks with intact riparian cover to maintain stream
morphology and reduce erosion and sediment inputs that may reduce
availability of substrate interstitial spaces.
(3) Water quality characterized by seasonally moderated, or spring
influenced, water temperatures and physical and chemical parameters
(e.g., pH, conductivity, dissolved oxygen) sufficient for the normal
behavior, growth, reproduction, and viability of all life stages.
(4) Adequate food base, indicated by a healthy aquatic community
structure including native benthic macroinvertebrates, fishes, and
plant matter (e.g., leaf litter, algae, detritus).
(5) An interconnected network of streams and rivers that have the
physical and biological features described in (1) through (4), above,
that allow for the movement of individual crayfish in response to
environmental, physiological, or behavioral drivers. The connectivity
of the stream network should be sufficient to allow for gene flow
within and among watersheds.
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 the Brawleys
Fork crayfish may require special management considerations or
protection to reduce the following threats: (1) Urbanization of the
landscape, including, but not limited to, land conversion for urban and
commercial use, infrastructure (roads, bridges, utilities), and urban
water uses (water supply reservoirs, wastewater treatment); (2)
nutrient pollution from agricultural and horticultural activities that
impact water quantity and quality; (3) significant alteration of water
quality; (4) significant alteration of channel morphology or geometry,
including channelization,
[[Page 57310]]
impoundment, road and bridge construction, or instream mining,
dredging, or channelization; and (5) watershed, riparian, and
floodplain disturbances that release sediments or nutrients into the
water or fill suitable habitat.
Special management considerations or protections may be required
within critical habitat areas to address these threats. Management
activities that could ameliorate these threats include, but are not
limited to, restoration and protection of riparian corridors and
retention of sufficient canopy cover along banks; implementation of
best management practices to reduce sedimentation, erosion, and
streambank degradation; stream bank restoration projects; increased use
of stormwater management and reduction of stormwater flows into the
stream systems; reduction of other watershed, riparian, and floodplain
disturbances that release sediments, pollutants, or nutrients into the
water; and improvements to industrial and municipal water treatment
facilities and sewage systems to reduce nutrient and pathogen
pollution.
Criteria Used To Identify Critical Habitat
As required by section 4(b)(2) of the Act, we use the best
scientific data available to designate critical habitat. In accordance
with the Act and our implementing regulations at 50 CFR 424.12(b), we
review available information pertaining to the habitat requirements of
the species and identify specific areas within the geographical area
occupied by the species at the time of listing and any specific areas
outside the geographical area occupied by the species to be considered
for designation as critical habitat. We are not currently proposing to
designate any areas outside the geographical area occupied by the
species because we have not identified any unoccupied areas that meet
the definition of critical habitat; specifically, no unoccupied areas
are essential for the conservation of the species.
We are proposing to designate six units that are currently occupied
across the geographic range as critical habitat. The occupied areas
proposed are sufficient and adequate to ensure the conservation of the
species, as they will support the species' redundancy and
representation (table 6). We anticipate that recovery will require
continued protection of the existing populations and habitat, as well
as ensuring there are streams distributed across the known range with
stable Brawleys Fork crayfish occurrences in five or more analysis
units (as delineated in the SSA) with sufficient abundance and occupied
reaches to increase species' viability. This conservation strategy and
the designation of proposed critical habitat support the species'
ability to withstand the loss of occurrences or occupied stream reaches
through a catastrophic event, such as the effects of a rangewide
drought or mega-drought or chemical spills and help ensure such an
event is less likely to simultaneously affect all known streams with
species' occurrence. Rangewide recovery considerations, such as
maintaining existing genetic diversity and striving for representation
across the current range of the species, were considered in formulating
this proposed critical habitat designation.
Sources of data for this proposed critical habitat designation
include the SSA (Service 2023, entire); records maintained by the
Tennessee Department of Environment and Conservation, Tennessee
Wildlife Resources Agency, Tennessee Valley Authority; research
published in peer-reviewed articles or presented in academic theses and
agency reports (Rohrbach and Withers 2006; Williams et al. 2017; Grubb
2019; Giddens and Mattingly 2020); university and museum collections;
regional Geographic Information System (GIS) coverages; and information
from other survey reports on streams throughout the species' range
(Khan 2021, unpublished data). We have also reviewed available
information that pertains to the habitat requirements of the Brawleys
Fork crayfish. Sources of information on habitat requirements include
studies conducted at occupied sites and published in peer-reviewed
articles, agency reports, and data collected during monitoring efforts
(Service 2023, pp. 14-24).
In summary, for areas within the geographic area occupied by the
species at the time of listing, we delineated critical habitat unit
boundaries using the following criteria:
We identified streams and rivers within the geographical area
occupied at the time of listing (i.e., with Brawleys Fork crayfish
occurrence records from 2000 to 2021). Many streams with suitable
habitat in the species' range have been surveyed in the last 15 years;
however, a rangewide survey has not been conducted. Accordingly, it is
possible the species may be detected in other locations upon subsequent
surveys. For example, the crayfish was observed in the West Fork Stones
River in 2016 and Mountain Creek in 2018, both representing new
collection sites and range extensions for the species (TWRA 2021,
unpublished data).
We then identified those streams that contain one or more of the
physical or biological features to support the life-history functions
essential to the conservation of the Brawleys Fork crayfish. We
delineated end points of stream and river units by evaluating the
presence or absence of habitat conditions and physical or biological
features essential to the species. We selected upstream and downstream
endpoints for each unit where habitat conditions no longer meet species
requirements (i.e., do not contain the physical or biological features
essential to the conservation of the Brawleys Fork crayfish). The
endpoints often correspond to tributary confluences, dams, or headwater
sources because of the effect of these features on habitat conditions.
Where favorable habitat that contains physical or biological features
essential to the conservation of Brawleys Fork crayfish shifts to less
favorable habitat that does not contain these features, we selected a
reference point such as a highway or bridge crossing that will allow
the public to identify proposed critical habitat units. The occurrence
data are linear in nature; therefore, for stretches of habitat between
occurrences, and between occurrences and endpoints of units, we assumed
the interposing stream segments contain at least one of the physical or
biological features essential to the conservation of the species and
include the interposing stream segment in the proposed critical habitat
unit. Based on the best available scientific data, we determined that
all currently known occupied habitat for the Brawleys Fork crayfish
contains one or more of the physical or biological features essential
to the conservation of the species and which may require special
management considerations or protection.
Based on this analysis, the following streams or rivers meet the
criteria for areas occupied by the species: West Fork Stones River,
Brawleys Fork, Carson Fork, Haws Spring Fork, East Fork Stones River,
Rockhouse Creek, Bullpen Creek, and Mountain Creek. The critical
habitat designation includes only the occupied streams or rivers within
the current range that have one or more of the physical or biological
features essential to the conservation of the species.
The result was the inclusion of six units of critical habitat
occupied by the Brawleys Fork crayfish. These six units encompass the
same geographic area and streams as the five analysis units delineated
in the SSA report (Service
[[Page 57311]]
2023). These six occupied units constitute approximately 86.6 river
miles (139.4 river kilometers). No areas outside the geographical area
occupied by the species at the time of listing were delineated as
proposed critical habitat. We are not designating any areas outside the
geographical area currently occupied by the Brawleys Fork crayfish
because we determined that occupied areas are sufficient to conserve
the species. Accordingly, we did not find any unoccupied areas to be
essential for the conservation of the species.
When determining proposed critical habitat boundaries, we made
every effort to avoid including developed areas such as lands covered
by buildings, pavement, and other structures because such lands lack
physical or biological features necessary for Brawleys Fork crayfish.
Critical habitat for the Brawleys Fork crayfish includes only stream
channels up to bankfull height, where the stream base flow is contained
within the channel. The scale of the maps we prepared under the
parameters for publication within the Code of Federal Regulations may
not reflect the exclusion of such developed lands. Any such lands
inadvertently left inside critical habitat boundaries shown on the maps
of this proposed rule have been excluded by text in the proposed rule
and are not proposed for designation as critical habitat. Therefore, if
the critical habitat is finalized as proposed, a Federal action
involving these lands would not trigger section 7 consultation with
respect to critical habitat and the requirement of no adverse
modification unless the specific action would affect the physical or
biological features in the adjacent critical habitat.
We propose to designate as critical habitat lands that we have
determined are occupied at the time of listing (i.e., currently
occupied) and that contain one or more of the physical or biological
features that are essential to support life-history processes of the
species. Units are proposed for designation based on one or more of the
physical or biological features being present to support Brawleys Fork
crayfish's life-history processes. Some units contain all of the
identified physical or biological features and support multiple life-
history processes. Some units contain only some of the physical or
biological features necessary to support the Brawleys Fork crayfish's
particular use of that habitat.
The proposed critical habitat designation is defined by the map or
maps, as modified by any accompanying regulatory text, presented at the
end of this document under Proposed Regulation Promulgation. We include
more detailed information on the boundaries of the critical habitat
designation in the preamble of this document. We will make the
coordinates or plot points or both on which each map is based available
to the public on https://www.regulations.gov at Docket No. FWS-R4-ES-
2023-0065 and on our internet site https://www.fws.gov/library/collections/Brawleys-Fork-crayfish.
Proposed Critical Habitat Designation
We are proposing to designate 86.6 rmi (139.4 rkm) in six units as
critical habitat for Brawleys Fork crayfish. The critical habitat areas
we describe below constitute our current best assessment of areas that
meet the definition of critical habitat for Brawleys Fork crayfish. The
six areas we propose as critical habitat are: (1) West Fork Stones
River, (2) Brawleys Fork, (3) Carson Fork, (4) East Fork Stones River,
(5) Bullpen Creek, and (6) Mountain Creek. Table 6 shows the proposed
critical habitat units and the approximate area of each unit. All six
areas proposed as critical habitat are occupied by Brawleys Fork
crayfish.
Table 6--Proposed Critical Habitat Units for Brawleys Fork Crayfish
[Area estimates reflect stream length within critical habitat unit boundaries]
----------------------------------------------------------------------------------------------------------------
State or local Total river
Unit/subunit No. Unit name Private (rmi) Federal (rmi) (rmi) miles
----------------------------------------------------------------------------------------------------------------
1............................. West Fork Stones .............. 6.2 .............. 6.2
2............................. Brawleys Fork... 13.8 .............. .............. 13.8
----------------------------------------------------------------------------------------------------------------
Unit 3--Carson Fork
----------------------------------------------------------------------------------------------------------------
3a............................ Carson Fork..... 12.3 .............. .............. 12.3
3b............................ Haws Spring Fork 5.9 .............. .............. 5.9
----------------------------------------------------------------------------------------------------------------
Unit 4--East Fork Stones River
----------------------------------------------------------------------------------------------------------------
4a............................ East Fork Stones 30.9 .............. 1.6 32.5
4b............................ Rockhouse Creek. 3.4 .............. .............. 3.4
5............................. Bullpen Creek... 3.1 .............. .............. 3.1
6............................. Mountain Creek.. 9.4 .............. .............. 9.4
---------------------------------------------------------------
Total..................... ................ 78.8 6.2 1.6 86.6
----------------------------------------------------------------------------------------------------------------
Note: Area sizes may not sum due to rounding.
We present brief descriptions of all units, and reasons why they
meet the definition of critical habitat for Brawleys Fork crayfish,
below.
Unit 1: West Fork Stones
Unit 1 consists of approximately 6.2 rmi (10 rkm) of the West Fork
Stones River beginning at the Nice's Mill Recreation Area lowhead dam
and continuing to the confluence with the Stones River in Rutherford
County, Tennessee. All riparian lands in Unit 1 are in Federal
ownership (Department of Defense, USACE, J. Percy Priest Lake). Unit 1
is considered to be occupied by the Brawleys Fork crayfish. Unit 1
contains four of the identified physical or biological features
essential to the conservation of the Brawleys Fork crayfish. The West
Fork Stones River is isolated and does not have connectivity to any
other streams with known Brawleys Fork crayfish occurrences; thus, Unit
1 lacks the physical or biological feature related to an interconnected
network of streams and rivers. There is no overlap with any designated
critical habitat for other listed species.
[[Page 57312]]
Threats identified within this unit include the degradation of
habitat and water quality from sedimentation and water quality
degradation due to urbanization and development, flow reduction and
water quality degradation due to water withdrawals and wastewater
treatment plants, and habitat degradation due to instream modifications
including impoundments and activities that degrade streambanks. Special
management considerations or protection that may be required within
Unit 1 to reduce or alleviate impacts may include implementation of
best management practices to improve water quality or reverse
degradation resulting from urbanization and development (see Special
Management Considerations or Protection, above). Special management or
protection may also include consideration of Brawleys Fork crayfish in
the J. Percy Priest Lake Master Plan and inclusion of habitat
restoration efforts in future actions.
Unit 2: Brawleys Fork
Unit 2 consists of approximately 13.8 rmi (22.2 rkm) of the
Brawleys Fork and tributaries in Cannon County, Tennessee. Unit 2
includes the Brawleys Fork from the headwaters at Mill Bluff Hollow to
the confluence with the Carson Fork and Shelton Branch from the Gene
Perkins Road crossing to the confluence with Brawleys Fork. Riparian
lands in Unit 2 are in private ownership except for a small amount of
publicly owned bridge crossings and road easements. Unit 2 is
considered to be occupied by the Brawleys Fork crayfish and contains
all physical or biological features essential to the conservation of
the Brawleys Fork crayfish. There is no overlap with any designated
critical habitat for other listed species.
Threats identified within this unit include the degradation of
habitat and water quality from sedimentation, siltation, and pollution
due to agriculture, flow reduction and water quality degradation due to
water withdrawals, and habitat degradation due to instream
modifications including gravel dredging, impoundments, and activities
that degrade streambanks. In some cases, these threats are being
addressed or coordinated with our partners and landowners to implement
needed actions. Special management considerations or protection
measures that may be required within Unit 2 to alleviate impacts
include reducing wastewater or stormwater runoff, removal of barriers
or impoundments, natural stream restoration, and implementation of
agricultural and grazing practices that minimize nutrient and sediment
input. Special management or protection may also include consideration
of Brawleys Fork crayfish in agriculture and urban development plans
and habitat restoration efforts.
Unit 3: Carson Fork
Unit 3 consists of approximately 18.2 rmi (29.3 rkm) of the Carson
Fork and tributaries in Cannon County, Tennessee. Two subunits are
included in Unit 3 (Carson Fork), Subunit 3a (Carson Fork) and Subunit
3b (Haws Spring Fork).
Subunit 3a (Carson Fork) consists of 12.3 rmi (19.8 rkm) and
extends from the headwaters of the Carson Fork near Sadler Lane
downstream to the confluence with the East Fork Stones River, from the
headwaters of Duck Branch to the confluence of Carson Fork, and from
the headwaters of an unnamed tributary in Simmons Hollow to the
confluence of Carson Fork. Subunit 3b (Haws Spring Fork subunit)
consists of 5.9 rmi (9.5 rkm) and extends from the headwaters of Smith
Branch near Carrick Hollow to the confluence with Haws Spring Fork and
from the headwaters of Haws Spring to the confluence with the Carson
Fork. Riparian lands in Unit 3 are in private ownership except for a
small amount of publicly owned bridge crossings and road easements.
Unit 3 is considered to be occupied by the Brawleys Fork crayfish. Unit
3 (subunits 3a and 3b) contains all physical or biological features
essential to the conservation of the Brawleys Fork crayfish. There is
no overlap with any designated critical habitat for other listed
species.
Threats identified within this unit include the following:
degradation of habitat and water quality from sedimentation, siltation,
and pollution due to agriculture, flow reduction, and water
withdrawals; and habitat degradation due to instream modifications
including gravel dredging, impoundments, and activities that degrade
streambanks. Special management considerations or protection that may
be required within Unit 3 to alleviate impacts include reducing
wastewater or stormwater runoff, removal of barriers or impoundments,
natural stream restoration, and implementation of agricultural and
grazing practices that minimize nutrient and sediment input into
receiving streams. Special management or protection may also include
consideration of Brawleys Fork crayfish in agriculture and urban
development plans and habitat restoration efforts.
Unit 4: East Fork Stones River
Unit 4 consists of approximately 35.9 rmi (57.8 rkm) of the East
Fork Stones River mainstem and some of its tributaries in Cannon
County, Tennessee. Two subunits are included in Unit 4 (East Fork
Stones River), Subunit 4a (East Fork Stones) and Subunit 4b (Rockhouse
Creek). Subunit 4a (East Fork Stones subunit) consists of 32.5 rmi
(52.3 rkm) and includes Hollis Creek from the headwaters near Hollis
Creek South Road to the confluence with the East Fork Stones River,
Hill Creek from the tributary at Wood Hollow to the confluence with the
East Fork Stones River, Parchcorn Hollow Branch from the Parchcorn
Hollow road crossing to the confluence with the East Fork Stones River,
Cavender Branch from the Cavender Road bridge to the confluence with
the East Fork Stones River, and from Locke Creek to the confluence with
the East Fork Stones River.
Subunit 4b (Rockhouse Creek subunit) consists of 3.4 rmi (5.5 rkm)
and extends from the stream crossing at Seal Hollow Branch by Seal
Hollow Road to the confluence with Rockhouse Branch and from the
Higgins Road crossing of Rockhouse Creek downstream to the confluence
with the East Fork Stones River. Riparian lands in Unit 4 are in State
(0.7 rmi (1.1 rkm) of Headwater Wildlife Management Area), local (0.9
rmi (1.4 rkm) in two parks), and private ownership, as well as small
amount of publicly owned bridge crossings and road easements. Unit 4 is
considered to be occupied by the Brawleys Fork crayfish. Unit 4
(subunits 4a and 4b) contains all physical or biological features
essential to the conservation of the Brawleys Fork crayfish. There is
no overlap with any designated critical habitat for other listed
species.
Threats identified within this unit include the following:
degradation of habitat and water quality from sedimentation, siltation,
and pollution due to urbanization and development, agriculture, flow
reduction, water withdrawals, and wastewater treatment plant discharge;
and habitat degradation due to instream modifications including gravel
dredging, impoundments, and activities that degrade streambanks. In
some cases, these threats are being addressed or coordinated with our
partners and landowners to implement needed actions. Special management
considerations or protection that may be required within Unit 4 to
alleviate impacts include treating wastewater to the greatest extent
feasible, reducing wastewater or stormwater runoff, removal of barriers
or impoundments,
[[Page 57313]]
natural stream restoration, implementation of appropriate silvicultural
and forestry best management practices, and implementation of
agricultural and grazing practices that minimize nutrient and sediment
input. Special management or protection may also include consideration
of Brawleys Fork crayfish in agriculture and urban development plans
and habitat restoration efforts.
Unit 5: Bullpen Creek
Unit 5 consists of approximately 3.1 rmi (5.0 rkm) of Bullpen Creek
beginning at the Lonnie Smith Road crossing and extending downstream to
the lowhead dam near Charlie Powell Road in Cannon County, Tennessee.
Riparian lands in Unit 5 are in private ownership except for a small
amount of publicly owned bridge crossings and road easements. Unit 5 is
considered to be occupied by the Brawleys Fork crayfish. Unit 5
contains four of the identified physical or biological features
essential to the conservation of the Brawleys Fork crayfish. The
Bullpen Creek unit is isolated and does not have connectivity to any
other streams with known Brawleys Fork crayfish occurrences; thus, Unit
5 lacks the physical or biological feature related to an interconnected
network of streams and rivers. There is no overlap with any designated
critical habitat for other listed species.
Threats identified within this unit include the following:
degradation of habitat and water quality from sedimentation, siltation,
and pollution due to agriculture and horticulture, flow reduction, and
water withdrawals; and habitat degradation due to instream
modifications including gravel dredging, impoundments, and activities
that degrade streambanks. In some cases, these threats are being
addressed or coordinated with our partners and landowners to implement
needed actions. Special management considerations or protection that
may be required within Unit 5 to alleviate impacts from stressors
include but are not limited to the following: treating wastewater to
the greatest extent feasible, reducing wastewater or stormwater runoff,
removal of barriers or impoundments, natural stream restoration, and
implementation of agricultural and grazing practices that minimize
nutrient and sediment input. Special management or protection may also
include consideration of Brawleys Fork crayfish in agriculture and
urban development plans and habitat restoration efforts.
Unit 6: Mountain Creek
Unit 6 consists of approximately 9.4 rmi (15.1 rkm) of Mountain
Creek in Warren County, Tennessee. Unit 6 extends from the Mountain
Creek road crossing at Short Mountain Road downstream to the Smithville
Highway bridge in the city of Dibrell, Warren County, Tennessee.
Riparian lands in Unit 6 are in private ownership except for a small
amount of publicly owned bridge crossings and road easements. Unit 6 is
considered to be occupied by the Brawleys Fork crayfish. Unit 6
contains four of the identified physical or biological features
essential to the conservation of the Brawleys Fork crayfish. The
Mountain Creek unit is isolated and does not have connectivity to any
other streams with known Brawleys Fork crayfish occurrences, thus, Unit
6 lacks the physical or biological feature related to an interconnected
network of streams and rivers. There is no overlap with any designated
critical habitat for other listed species.
Threats identified within this unit include the following:
degradation of habitat and water quality from sedimentation, siltation,
and pollution due to urbanization and development, agriculture, and
horticulture, flow reduction, and water withdrawals; and habitat
degradation due to instream modifications including gravel dredging,
impoundments, and activities that degrade streambanks. Special
management considerations or protection that may be required within
Unit 6 to alleviate impacts from stressors include but are not limited
to the following: treating wastewater to the greatest extent feasible,
reducing wastewater or stormwater runoff, removal of barriers or
impoundments, natural stream restoration, and implementation of
agricultural and grazing practices that minimize nutrient and sediment
input. Special management or protection may also include consideration
of Brawleys Fork crayfish in agriculture and urban development plans
and habitat restoration efforts.
Effects of Critical Habitat Designation
Section 7 Consultation
Section 7(a)(2) of the Act requires Federal agencies, including the
Service, to ensure that any action they fund, authorize, or carry out
is not likely to jeopardize the continued existence of any endangered
species or threatened species or result in the destruction or adverse
modification of designated critical habitat of such species. In
addition, section 7(a)(4) of the Act requires Federal agencies to
confer with the Service on any agency action which is likely to
jeopardize the continued existence of any species proposed to be listed
under the Act or result in the destruction or adverse modification of
proposed critical habitat.
We published a final rule revising the definition of destruction or
adverse modification on August 27, 2019 (84 FR 44976). Destruction or
adverse modification means a direct or indirect alteration that
appreciably diminishes the value of critical habitat as a whole for the
conservation of a listed species.
If a Federal action may affect a listed species or its critical
habitat, the responsible Federal agency (action agency) must enter into
consultation with us. Examples of actions that are subject to the
section 7 consultation process are actions on State, Tribal, local, or
private lands that require a Federal permit (such as a permit from the
U.S. Army Corps of Engineers under section 404 of the Clean Water Act
(33 U.S.C. 1251 et seq.) or a permit from the Service under section 10
of the Act) or that involve some other Federal action (such as funding
from the Federal Highway Administration, Federal Aviation
Administration, or the Federal Emergency Management Agency). Federal
actions not affecting listed species or critical habitat--and actions
on State, Tribal, local, or private lands that are not federally
funded, authorized, or carried out by a Federal agency--do not require
section 7 consultation.
Compliance with the requirements of section 7(a)(2) is documented
through our issuance of:
(1) A concurrence letter for Federal actions that may affect, but
are not likely to adversely affect, listed species or critical habitat;
or
(2) A biological opinion for Federal actions that may affect, and
are likely to adversely affect, listed species or critical habitat.
When we issue a biological opinion concluding that a project is
likely to jeopardize the continued existence of a listed species and/or
destroy or adversely modify critical habitat, we provide reasonable and
prudent alternatives to the project, if any are identifiable, that
would avoid the likelihood of jeopardy and/or destruction or adverse
modification of critical habitat. We define ``reasonable and prudent
alternatives'' (at 50 CFR 402.02) as alternative actions identified
during consultation that:
(1) Can be implemented in a manner consistent with the intended
purpose of the action,
[[Page 57314]]
(2) Can be implemented consistent with the scope of the Federal
agency's legal authority and jurisdiction,
(3) Are economically and technologically feasible, and
(4) Would, in the Service Director's opinion, avoid the likelihood
of jeopardizing the continued existence of the listed species and/or
avoid the likelihood of destroying or adversely modifying critical
habitat.
Reasonable and prudent alternatives can vary from slight project
modifications to extensive redesign or relocation of the project. Costs
associated with implementing a reasonable and prudent alternative are
similarly variable.
Regulations at 50 CFR 402.16 set forth requirements for Federal
agencies to reinitiate formal consultation on previously reviewed
actions. These requirements apply when the Federal agency has retained
discretionary involvement or control over the action (or the agency's
discretionary involvement or control is authorized by law) and,
subsequent to the previous consultation: (a) if the amount or extent of
taking specified in the incidental take statement is exceeded; (b) if
new information reveals effects of the action that may affect listed
species or critical habitat in a manner or to an extent not previously
considered; (c) if the identified action is subsequently modified in a
manner that causes an effect to the listed species or critical habitat
that was not considered in the biological opinion or written
concurrence; or (d) if a new species is listed or critical habitat
designated that may be affected by the identified action. The
reinitiation requirement applies only to actions that remain subject to
some discretionary Federal involvement or control. As provided in 50
CFR 402.16, the requirement to reinitiate consultations for new species
listings or critical habitat designation does not apply to certain
agency actions (e.g., land management plans issued by the Bureau of
Land Management in certain circumstances.
Application of the ``Destruction or Adverse Modification'' Standard
The key factor related to the destruction or adverse modification
determination is whether implementation of the proposed Federal action
directly or indirectly alters the designated critical habitat in a way
that appreciably diminishes the value of the critical habitat for the
conservation of the listed species. As discussed above, the role of
critical habitat is to support physical or biological features
essential to the conservation of a listed species and provide for the
conservation of the species.
Section 4(b)(8) of the Act requires us to briefly evaluate and
describe, in any proposed or final regulation that designates critical
habitat, activities involving a Federal action that may violate section
7(a)(2) of the Act by destroying or adversely modifying such habitat,
or that may be affected by such designation.
Activities that we may, during a consultation under section 7(a)(2)
of the Act, consider likely to destroy or adversely modify critical
habitat include, but are not limited to: (1) Actions that would impede
or disconnect stream and river channels and contribute to further
habitat fragmentation at a scale and magnitude that appreciably
diminishes the value of critical habitat (e.g., large impoundments,
reservoir creation). Such activities include, but are not limited to,
construction of barriers that impede the instream movement of the
Brawleys Fork crayfish (e.g., impoundments, dams, culverts, or weirs).
These activities could result in destruction or fragmentation of
habitat, block movements between habitats, and/or affect flows within
or into critical habitat. In addition, these activities can isolate
populations that are more at risk of decline or extirpation as a result
of genetic drift, demographic or environmental stochasticity, and
catastrophic events.
(2) Actions that would affect channel substrates and stability or
geomorphology at a scale and magnitude that appreciably diminishes the
value of critical habitat (e.g., multiple or large tributaries or main
channel rerouting, dam construction on a river with Brawleys Fork
crayfish occurrences). Such activities include channelization,
impoundment, mining, dredging, road and bridge construction, removal of
riparian vegetation, and land clearing. These activities may lead to
changes in channel substrates, erosion of the streambed and banks, and
excessive sedimentation that could degrade Brawleys Fork crayfish
habitat.
(3) Actions that would reduce flow levels or alter flow regimes at
a scale and magnitude that appreciably diminishes the value of critical
habitat (i.e., flow levels or regimes that no longer support Brawleys
Fork crayfish in one or more critical habitat units). These could
include, but are not limited to, activities that block or lower surface
flow or groundwater levels, including channelization, impoundment,
groundwater pumping, and surface water withdrawal or diversion. Such
activities can result in long-term changes in stream flows that affect
habitat quality and quantity for the Brawleys Fork crayfish and its
prey.
(4) Actions that would significantly alter water chemistry or
quality to the extent that the value of critical habitat is appreciably
diminished (i.e., water quality does not support the Brawleys Fork
crayfish's needs in one or more units). Such activities could include,
but are not limited to, release of chemicals or biological pollutants
or heated effluents into the surface water or connected groundwater at
a point source or by dispersed release (non-point source). These
activities could alter water conditions to levels that are beyond the
tolerances of the Brawleys Fork crayfish and result in direct or
cumulative adverse effects to individuals and their life cycles.
(5) Actions that would significantly increase sediment deposition
or stream bottom embeddedness within the stream channel to the extent
that the value of critical habitat is appreciably diminished (e.g.,
excessive siltation such that Brawleys Fork crayfish are not able to
use the critical habitat unit). Such activities could include, but are
not limited to, excessive sedimentation from livestock grazing, road
construction, channel alteration, and agricultural or horticultural
practices that do not implement BMPs or improperly implement BMPs,
mining, dredging, and other watershed and floodplain disturbances.
These activities could eliminate or reduce the habitat necessary for
the growth and reproduction of the Brawleys Fork crayfish by increasing
the sediment deposition to levels that would adversely affect the
Brawleys Fork crayfish's ability to complete its life cycle.
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. No DoD lands with a completed INRMP are within the
proposed critical habitat designation.
[[Page 57315]]
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.
Consideration of Economic Impacts
Section 4(b)(2) of the Act and its implementing regulations require
that we consider the economic impact that may result from a designation
of critical habitat. To assess the probable economic impacts of a
designation, we must first evaluate specific land uses or activities
and projects that may occur in the area of the critical habitat. We
then must evaluate the impacts that a specific critical habitat
designation may have on restricting or modifying specific land uses or
activities for the benefit of the species and its habitat within the
areas proposed. We then identify which conservation efforts may be the
result of the species being listed under the Act versus those
attributed solely to the designation of critical habitat for this
particular species. The probable economic impact of a proposed critical
habitat designation is analyzed by comparing scenarios both ``with
critical habitat'' and ``without critical habitat.''
The ``without critical habitat'' scenario represents the baseline
for the analysis, which includes the existing regulatory and socio-
economic burden imposed on landowners, managers, or other resource
users potentially affected by the designation of critical habitat
(e.g., under the Federal listing as well as other Federal, State, and
local regulations). Therefore, the baseline represents the costs of all
efforts attributable to the listing of the species under the Act (i.e.,
conservation of the species and its habitat incurred regardless of
whether critical habitat is designated). The ``with critical habitat''
scenario describes the incremental impacts associated specifically with
the designation of critical habitat for the species. The incremental
conservation efforts and associated impacts would not be expected
without the designation of critical habitat for the species. In other
words, the incremental costs are those attributable solely to the
designation of critical habitat, above and beyond the baseline costs.
These are the costs we use when evaluating the benefits of inclusion
and exclusion of particular areas from the final designation of
critical habitat should we choose to conduct a discretionary section
4(b)(2) exclusion analysis.
Executive Order (E.O.) 12866, as reaffirmed by E.O.s 13563 and
14094, direct Federal agencies to assess the costs and benefits of
available regulatory alternatives in quantitative (to the extent
feasible) and qualitative terms. Consistent with the Executive order's
regulatory analysis requirements, our effects analysis under the Act
may take into consideration impacts to both directly and indirectly
affected entities, where practicable and reasonable. If sufficient data
are available, we assess to the extent practicable the probable impacts
to both directly and indirectly affected entities. Section 3(f) of E.O.
12866 identifies four criteria when a regulation is considered a
``significant regulatory action'' and requires additional analysis,
review, and approval if met. The criterion relevant here is whether the
designation of critical habitat may have an economic effect of $200
million in any given year (section 3(f)(1)). Therefore, our
consideration of economic impacts uses a screening analysis to assess
whether a designation of critical habitat for Brawleys Fork crayfish is
likely to exceed the economically significant threshold.
For this particular designation, we developed an incremental
effects memorandum (IEM) considering the probable incremental economic
impacts that may result from this proposed designation of critical
habitat. The information contained in our IEM was then used to develop
a screening analysis of the probable effects of the designation of
critical habitat for the Brawleys Fork crayfish (Industrial Economics,
Inc. 2022, entire). We began by conducting a screening analysis of the
proposed designation of critical habitat in order to focus our analysis
on the key factors that are likely to result in incremental economic
impacts. The purpose of the screening analysis is to filter out
particular geographic areas of critical habitat that are already
subject to such protections and are, therefore, unlikely to incur
incremental economic impacts. In particular, the screening analysis
considers baseline costs (i.e., absent critical habitat designation)
and includes any probable incremental economic impacts where land and
water use may already be subject to conservation plans, land management
plans, best management practices, or regulations that protect the
habitat area as a result of the Federal listing status of the species.
Ultimately, the screening analysis allows us to focus our analysis on
evaluating the specific areas or sectors that may incur probable
incremental economic impacts as a result of the designation.
The presence of the listed species in occupied areas of critical
habitat means that any destruction or adverse modification of those
areas is also likely to jeopardize the continued existence of the
species. For that reason, designating occupied areas as critical
habitat typically causes little if any incremental impacts above and
beyond the impacts of listing the species. Therefore, the screening
analysis focuses on areas of unoccupied critical habitat. If there are
any unoccupied units in the proposed critical habitat designation, the
screening analysis assesses whether any additional management or
conservation efforts may incur incremental economic impacts. This
screening analysis combined with the information contained in our IEM
constitute what we consider to be our draft economic
[[Page 57316]]
analysis (DEA) of the proposed critical habitat designation for the
Brawleys Fork crayfish; our DEA is summarized in the narrative below.
As part of our screening analysis, we considered the types of
economic activities that are likely to occur within the areas likely
affected by the critical habitat designation. In our evaluation of the
probable incremental economic impacts that may result from the proposed
designation of critical habitat for the Brawleys Fork crayfish, first
we identified, in the IEM dated April 8, 2022, probable incremental
economic impacts associated with the following categories of
activities: (1) agriculture, (2) forestry, (3) development, (4)
recreation, (5) restoration activities, (6) flood control, (7)
transportation, (8) water quantity/supply, (9) dredging, and (10)
utilities. We considered each industry or category individually.
Additionally, we considered whether their activities have any Federal
involvement. Critical habitat designation generally will not affect
activities that do not have any Federal involvement; under the Act,
designation of critical habitat affects only activities conducted,
funded, permitted, or authorized by Federal agencies. If we list the
species, in areas where the Brawleys Fork crayfish is present, Federal
agencies would be required to consult with the Service under section 7
of the Act on activities they fund, permit, or implement that may
affect the species. If, when we list the species, we also finalize this
proposed critical habitat designation, our consultations would include
an evaluation of measures to avoid the destruction or adverse
modification of critical habitat.
In our IEM, we attempted to clarify the distinction between the
effects that would result from the species being listed and those
attributable to the critical habitat designation (i.e., difference
between the jeopardy and adverse modification standards) for the
Brawleys Fork crayfish's critical habitat. Because the designation of
critical habitat for Brawleys Fork crayfish is being proposed
concurrently with the listing, it has been our experience that it is
more difficult to discern which conservation efforts are attributable
to the species being listed and those which will result solely from the
designation of critical habitat. However, the following specific
circumstances in this case help to inform our evaluation: (1) The
essential physical or biological features identified for critical
habitat are the same features essential for the life requisites of the
species, and (2) any actions that would likely adversely affect the
essential physical or biological features of occupied critical habitat
are also likely to adversely affect the Brawleys Fork crayfish. The IEM
outlines our rationale concerning this limited distinction between
baseline conservation efforts and incremental impacts of the
designation of critical habitat for this species. This evaluation of
the incremental effects has been used as the basis to evaluate the
probable incremental economic impacts of this proposed designation of
critical habitat.
The proposed critical habitat designation for the Brawleys Fork
crayfish totals approximately 86.6 rmi (139.4 rkm) of stream and river
channels in six units in Tennessee. Ownership of riparian lands
adjacent to the proposed units includes 78.8 rmi (126.8 rkm; 91
percent) in private ownership and 7.8 rmi (12.5 rkm; 9 percent) in
public (Federal or State) ownership. All six units are currently
occupied by the species and contain recent (2000 to 2021) occurrences
of Brawleys Fork crayfish. In these areas, any actions that may affect
the species or its habitat would also affect proposed critical habitat.
Thus, it is unlikely that any additional conservation efforts would be
recommended to address the adverse modification standard over and above
those recommended as necessary to avoid jeopardizing the continued
existence of the Brawleys Fork crayfish. We are not proposing to
designate any units of unoccupied habitat.
Because we are proposing the designation only of occupied critical
habitat, the only additional costs that are expected in all of the
proposed critical habitat designation are administrative costs. The
entities most likely to incur incremental costs are the Federal action
agencies that are parties to section 7 consultations. While the
analysis for adverse modification of critical habitat will require time
and resources by both the Federal action agency and the Service, these
costs would predominantly be administrative in nature. About 91 percent
of the proposed critical habitat designation for the Brawleys Fork
crayfish lies on private lands. As such, incremental costs from public
perception of the designation have some potential to arise (Industrial
Economics, Inc. (IEc) 2022, pp. 14-15). However, the critical habitat
units are in largely rural areas that are not experiencing significant
development pressures. As such, the likelihood that critical habitat
designation for the Brawleys Fork crayfish will result in perception-
related impacts appears unlikely. The estimated incremental costs of
critical habitat designation for the Brawleys Fork crayfish in the
first year are not expected to exceed $9,200 per year (2022 dollars)
(IEc 2022, p. 14). Thus, critical habitat designation for the Brawleys
Fork crayfish is unlikely to generate costs or benefits exceeding $200
million in a single year. Therefore, this rule is unlikely to meet the
threshold for an economically significant rule, with regard to costs,
under E.O. 12866.
We are soliciting data and comments from the public on the DEA
discussed above. During the development of a final designation, we will
consider the information presented in the DEA and any additional
information on economic impacts we receive during the public comment
period to determine whether any specific areas should be excluded from
the final critical habitat designation under authority of section
4(b)(2) of the Act and our implementing regulations at 50 CFR 424.19.
We may exclude an area from critical habitat if we determine that the
benefits of excluding the area outweigh the benefits of including the
area, provided the exclusion will not result in the extinction of this
species.
Consideration of National Security Impacts
Section 4(a)(3)(B)(i) of the Act may not cover all DoD lands or
areas that pose potential national-security concerns (e.g., a DoD
installation that is in the process of revising its INRMP for a newly
listed species or a species previously not covered). If a particular
area is not covered under section 4(a)(3)(B)(i), then national-security
or homeland-security concerns are not a factor in the process of
determining what areas meet the definition of ``critical habitat.''
However, the Service must still consider impacts on national security,
including homeland security, on those lands or areas not covered by
section 4(a)(3)(B)(i) because section 4(b)(2) requires the Service to
consider those impacts whenever it designates critical habitat.
Accordingly, if DoD, Department of Homeland Security (DHS), or another
Federal agency has requested exclusion based on an assertion of
national-security or homeland-security concerns, or we have otherwise
identified national-security or homeland-security impacts from
designating particular areas as critical habitat, we generally have
reason to consider excluding those areas.
However, we cannot automatically exclude requested areas. When DoD,
DHS, or another Federal agency requests exclusion from critical habitat
on the basis of national-security or homeland-security impacts, we must
conduct an exclusion analysis if the Federal
[[Page 57317]]
requester provides information, including a reasonably specific
justification of an incremental impact on national security that would
result from the designation of that specific area as critical habitat.
That justification could include demonstration of probable impacts,
such as impacts to ongoing border-security patrols and surveillance
activities, or a delay in training or facility construction, as a
result of compliance with section 7(a)(2) of the Act. If the agency
requesting the exclusion does not provide us with a reasonably specific
justification, we will contact the agency to recommend that it provide
a specific justification or clarification of its concerns relative to
the probable incremental impact that could result from the designation.
If we conduct an exclusion analysis because the agency provides a
reasonably specific justification or because we decide to exercise the
discretion to conduct an exclusion analysis, we will defer to the
expert judgment of DoD, DHS, or another Federal agency as to: (1)
Whether activities on its lands or waters, or its activities on other
lands or waters, have national-security or homeland-security
implications; (2) the importance of those implications; and (3) the
degree to which the cited implications would be adversely affected in
the absence of an exclusion. In that circumstance, in conducting a
discretionary section 4(b)(2) exclusion analysis, we will give great
weight to national-security and homeland-security concerns in analyzing
the benefits of exclusion.
We have evaluated whether any of the lands within the proposed
designation of critical habitat are owned by DoD or DHS or could lead
to national-security or homeland-security impacts if designated. In
preparing this proposal, we have determined that the lands within the
proposed designation of critical habitat for Brawleys Fork crayfish
including the J. Percy Priest Reservoir in Unit 1 are owned or managed
by the DoD Army Corps of Engineers. However, we anticipate no impact on
national security or homeland security resulting from the proposed
critical habitat designation.
Consideration of Other Relevant Impacts
Under section 4(b)(2) of the Act, we consider any other relevant
impacts, in addition to economic impacts and impacts on national
security discussed above. To identify other relevant impacts that may
affect the exclusion analysis, we consider a number of factors,
including whether there are permitted conservation plans covering the
species in the area--such as HCPs, safe harbor agreements (SHAs), or
candidate conservation agreements with assurances (CCAAs)--or whether
there are non-permitted conservation agreements and partnerships that
may be impaired by designation of, or exclusion from, critical habitat.
In addition, we look at whether Tribal conservation plans or
partnerships, Tribal resources, or government-to-government
relationships of the United States with Tribal entities may be affected
by the designation. We also consider any State, local, social, or other
impacts that might occur because of the designation.
In preparing this proposal, we have determined that no HCPs or
other management plans for Brawleys Fork crayfish currently exist, and
the proposed designation does not include any Tribal lands or trust
resources or any lands for which designation would have any economic or
national security impacts. Therefore, we anticipate no impact on Tribal
lands, partnerships, or HCPs from this proposed critical habitat
designation and thus, as described above, we are not considering
excluding any particular areas on the basis of the presence of
conservation agreements or impacts to trust resources.
However, if through the public comment period we receive
information that we determine indicates that there are potential
economic, national security, or other relevant impacts from designating
particular areas as critical habitat, then as part of developing the
final designation of critical habitat, we will evaluate that
information and may conduct a discretionary exclusion analysis to
determine whether to exclude those areas under authority of section
4(b)(2) and our implementing regulations at 50 CFR 424.19. If we
receive a request for exclusion of a particular area and after
evaluation of supporting information we do not exclude, we will fully
describe our decision in the final rule for this action.
Required Determinations
Clarity of the Rule
We are required by E.O.s 12866 and 12988 and by the Presidential
Memorandum of June 1, 1998, to write all rules in plain language. This
means that each rule we publish must:
(1) Be logically organized;
(2) Use the active voice to address readers directly;
(3) Use clear language rather than jargon;
(4) Be divided into short sections and sentences; and
(5) Use lists and tables wherever possible.
If you feel that we have not met these requirements, send us
comments by one of the methods listed in ADDRESSES. To better help us
revise the rule, your comments should be as specific as possible. For
example, you should tell us the numbers of the sections or paragraphs
that are unclearly written, which sections or sentences are too long,
the sections where you feel lists or tables would be useful, etc.
Regulatory Planning and Review (Executive Orders 12866, 13563, and
14094)
Executive Order 14094 reaffirms the principles of E.O. 12866 and
E.O. 13563 and states that regulatory analysis should facilitate agency
efforts to develop regulations that serve the public interest, advance
statutory objectives, and are consistent with E.O. 12866, E.O. 13563,
and the Presidential Memorandum of January 20, 2021 (Modernizing
Regulatory Review). Regulatory analysis, as practicable and
appropriate, shall recognize distributive impacts and equity, to the
extent permitted by law. We have developed this proposed rule in a
manner consistent with these requirements.
E.O. 12866, as reaffirmed by E.O. 13563 and E.O. 14094, provides
that the Office of Information and Regulatory Affairs (OIRA) in the
Office of Management and Budget (OMB) will review all significant
rules. OIRA has determined that this proposed rulemaking action is not
significant.
Regulatory Flexibility Act (5 U.S.C. 601 et seq.)
Under the Regulatory Flexibility Act (RFA; 5 U.S.C. 601 et seq.),
as amended by the Small Business Regulatory Enforcement Fairness Act of
1996 (SBREFA; 5 U.S.C. 801 et seq.), whenever an agency is required to
publish a notice of rulemaking for any proposed or final rule, it must
prepare and make available for public comment a regulatory flexibility
analysis that describes the effects of the rule on small entities
(i.e., small businesses, small organizations, and small government
jurisdictions). However, no regulatory flexibility analysis is required
if the head of the agency certifies the rule will not have a
significant economic impact on a substantial number of small entities.
The SBREFA amended the RFA to require Federal agencies to provide a
certification statement of the factual basis for certifying that the
rule will not have a significant economic impact on a substantial
number of small entities.
According to the Small Business Administration, small entities
include small organizations such as
[[Page 57318]]
independent nonprofit organizations; small governmental jurisdictions,
including school boards and city and town governments that serve fewer
than 50,000 residents; and small businesses (13 CFR 121.201). Small
businesses include manufacturing and mining concerns with fewer than
500 employees, wholesale trade entities with fewer than 100 employees,
retail and service businesses with less than $5 million in annual
sales, general and heavy construction businesses with less than $27.5
million in annual business, special trade contractors doing less than
$11.5 million in annual business, and agricultural businesses with
annual sales less than $750,000. To determine whether potential
economic impacts to these small entities are significant, we considered
the types of activities that might trigger regulatory impacts under
this designation as well as types of project modifications that may
result. In general, the term ``significant economic impact'' is meant
to apply to a typical small business firm's business operations.
Under the RFA, as amended, and as understood in light of recent
court decisions, Federal agencies are required to evaluate the
potential incremental impacts of rulemaking on those entities directly
regulated by the rulemaking itself; in other words, the RFA does not
require agencies to evaluate the potential impacts to indirectly
regulated entities. The regulatory mechanism through which critical
habitat protections are realized is section 7 of the Act, which
requires Federal agencies, in consultation with the Service, to ensure
that any action authorized, funded, or carried out by the agency is not
likely to destroy or adversely modify critical habitat. Therefore,
under section 7, only Federal action agencies are directly subject to
the specific regulatory requirement (avoiding destruction and adverse
modification) imposed by critical habitat designation. Consequently, it
is our position that only Federal action agencies would be directly
regulated if we adopt the proposed critical habitat designation. The
RFA does not require evaluation of the potential impacts to entities
not directly regulated. Moreover, Federal agencies are not small
entities. Therefore, because no small entities would be directly
regulated by this rulemaking, the Service certifies that, if made final
as proposed, the proposed critical habitat designation will not have a
significant economic impact on a substantial number of small entities.
In summary, we have considered whether the proposed designation
would result in a significant economic impact on a substantial number
of small entities. For the above reasons and based on currently
available information, we certify that, if made final, the proposed
critical habitat designation would not have a significant economic
impact on a substantial number of small business entities. Therefore,
an initial regulatory flexibility analysis is not required.
Energy Supply, Distribution, or Use--Executive Order 13211
Executive Order 13211 (Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use) requires
agencies to prepare statements of energy effects when undertaking
certain actions. Facilities that provide energy supply, distribution,
or use occur within some units of the proposed critical habitat
designations (for example, dams, pipelines) and may potentially be
affected. We determined that consultations, technical assistance, and
requests for species lists may be necessary in some instances. In our
economic analysis, we did not find that this proposed critical habitat
designation would significantly affect energy supplies, distribution,
or use. Therefore, this action is not a significant energy action, and
no statement of energy effects is required.
Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.)
In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501
et seq.), we make the following finding:
(1) This proposed rule would not produce a Federal mandate. In
general, a Federal mandate is a provision in legislation, statute, or
regulation that would impose an enforceable duty upon State, local, or
Tribal governments, or the private sector, and includes both ``Federal
intergovernmental mandates'' and ``Federal private sector mandates.''
These terms are defined in 2 U.S.C. 658(5)-(7). ``Federal
intergovernmental mandate'' includes a regulation that ``would impose
an enforceable duty upon State, local, or Tribal governments'' with two
exceptions. It excludes ``a condition of Federal assistance.'' It also
excludes ``a duty arising from participation in a voluntary Federal
program,'' unless the regulation ``relates to a then-existing Federal
program under which $500,000,000 or more is provided annually to State,
local, and Tribal governments under entitlement authority,'' if the
provision would ``increase the stringency of conditions of assistance''
or ``place caps upon, or otherwise decrease, the Federal Government's
responsibility to provide funding,'' and the State, local, or Tribal
governments ``lack authority'' to adjust accordingly. At the time of
enactment, these entitlement programs were: Medicaid; Aid to Families
with Dependent Children work programs; Child Nutrition; Food Stamps;
Social Services Block Grants; Vocational Rehabilitation State Grants;
Foster Care, Adoption Assistance, and Independent Living; Family
Support Welfare Services; and Child Support Enforcement. ``Federal
private sector mandate'' includes a regulation that ``would impose an
enforceable duty upon the private sector, except (i) a condition of
Federal assistance or (ii) a duty arising from participation in a
voluntary Federal program.''
The designation of critical habitat does not impose a legally
binding duty on non-Federal Government entities or private parties.
Under the Act, the only regulatory effect is that Federal agencies must
ensure that their actions are not likely to destroy or adversely modify
critical habitat under section 7. While non-Federal entities that
receive Federal funding, assistance, or permits, or that otherwise
require approval or authorization from a Federal agency for an action,
may be indirectly impacted by the designation of critical habitat, the
legally binding duty to avoid destruction or adverse modification of
critical habitat rests squarely on the Federal agency. Furthermore, to
the extent that non-Federal entities are indirectly impacted because
they receive Federal assistance or participate in a voluntary Federal
aid program, the Unfunded Mandates Reform Act would not apply, nor
would critical habitat shift the costs of the large entitlement
programs listed above onto State governments.
(2) We do not believe that this rule would significantly or
uniquely affect small governments because small governments will be
affected only to the extent that any programs having Federal funds,
permits, or other authorized activities must ensure that their actions
will not adversely affect the critical habitat. Therefore, a small
government agency plan is not required.
Takings--Executive Order 12630
In accordance with E.O. 12630 (Government Actions and Interference
with Constitutionally Protected Private Property Rights), we have
analyzed the potential takings implications of designating critical
habitat for Brawleys Fork crayfish in a takings implications
assessment. The Act does not authorize the Service to regulate private
actions on private lands or confiscate private
[[Page 57319]]
property as a result of critical habitat designation. Designation of
critical habitat does not affect land ownership, or establish any
closures, or restrictions on use of or access to the designated areas.
Furthermore, the designation of critical habitat does not affect
landowner actions that do not require Federal funding or permits, nor
does it preclude development of habitat conservation programs or
issuance of incidental take permits to permit actions that do require
Federal funding or permits to go forward. However, Federal agencies are
prohibited from carrying out, funding, or authorizing actions that
would destroy or adversely modify critical habitat. A takings
implications assessment has been completed for the proposed designation
of critical habitat for Brawleys Fork crayfish, and it concludes that,
if adopted, this designation of critical habitat does not pose
significant takings implications for lands within or affected by the
designation.
Federalism--Executive Order 13132
In accordance with E.O. 13132 (Federalism), this proposed rule does
not have significant Federalism effects. A federalism summary impact
statement is not required. In keeping with Department of the Interior
and Department of Commerce policy, we requested information from, and
coordinated development of this proposed critical habitat designation
with, appropriate State resource agencies. From a federalism
perspective, the designation of critical habitat directly affects only
the responsibilities of Federal agencies. The Act imposes no other
duties with respect to critical habitat, either for States and local
governments, or for anyone else. As a result, the proposed rule does
not have substantial direct effects either on the States, or on the
relationship between the Federal government and the States, or on the
distribution of powers and responsibilities among the various levels of
government. The proposed designation may have some benefit to these
governments because the areas that contain the features essential to
the conservation of the species are more clearly defined, and the
physical or biological features of the habitat necessary for the
conservation of the species are specifically identified. This
information does not alter where and what federally sponsored
activities may occur. However, it may assist State and local
governments in long-range planning because they no longer have to wait
for case-by-case section 7 consultations to occur.
Where State and local governments require approval or authorization
from a Federal agency for actions that may affect critical habitat,
consultation under section 7(a)(2) of the Act would be required. While
non-Federal entities that receive Federal funding, assistance, or
permits, or that otherwise require approval or authorization from a
Federal agency for an action, may be indirectly impacted by the
designation of critical habitat, the legally binding duty to avoid
destruction or adverse modification of critical habitat rests squarely
on the Federal agency.
Civil Justice Reform--Executive Order 12988
In accordance with E.O. 12988 (Civil Justice Reform), the Office of
the Solicitor has determined that the rule would not unduly burden the
judicial system and that it meets the requirements of sections 3(a) and
3(b)(2) of the Order. We have proposed designating critical habitat in
accordance with the provisions of the Act. To assist the public in
understanding the habitat needs of the species, this proposed rule
identifies the physical or biological features essential to the
conservation of the species. The proposed areas of critical habitat are
presented on maps, and the proposed rule provides several options for
the interested public to obtain more detailed location information, if
desired.
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.)
This rule does not contain information collection requirements, and
a submission to the Office of Management and Budget (OMB) under the
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.) is not
required. We may not conduct or sponsor and you are not required to
respond to a collection of information unless it displays a currently
valid OMB control number.
National Environmental Policy Act (42 U.S.C. 4321 et seq.)
Regulations adopted pursuant to section 4(a) of the Act are exempt
from the National Environmental Policy Act (NEPA; 42 U.S.C. 4321 et
seq.) and do not require an environmental analysis under NEPA. We
published a notice outlining our reasons for this determination in the
Federal Register on October 25, 1983 (48 FR 49244). This includes
listing, delisting, and reclassification rules, as well as critical
habitat. In a line of cases starting with Douglas County v. Babbitt, 48
F.3d 1495 (9th Cir. 1995) the courts have upheld this position.
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), E.O. 13175 (Consultation and Coordination
with Indian Tribal Governments), and the Department of the Interior's
manual at 512 DM 2, we readily acknowledge our responsibility to
communicate meaningfully with federally recognized Tribes on a
government-to-government basis. In accordance with Secretarial Order
3206 of June 5, 1997 (American Indian Tribal Rights, Federal-Tribal
Trust Responsibilities, and the Endangered Species Act), we readily
acknowledge our responsibilities to work directly with Tribes in
developing programs for healthy ecosystems, to acknowledge that Tribal
lands are not subject to the same controls as Federal public lands, to
remain sensitive to Indian culture, and to make information available
to Tribes. We have determined that no Tribal lands fall within the
boundaries of the proposed critical habitat for the Brawleys Fork
crayfish, so no Tribal lands would be affected by the proposed
designation.
References Cited
A complete list of references cited in this rulemaking is available
on the internet at https://www.regulations.gov and upon request from
the Tennessee Ecological Services Field Office (see FOR FURTHER
INFORMATION CONTACT).
Authors
The primary authors of this proposed rule are the staff members of
the Fish and Wildlife Service's Species Assessment Team and the
Tennessee Ecological Services Field Office.
List of Subjects in 50 CFR Part 17
Endangered and threatened species, Exports, Imports, Plants,
Reporting and recordkeeping requirements, Transportation, Wildlife.
Proposed Regulation Promulgation
Accordingly, we propose to amend part 17, subchapter B of chapter
I, title 50 of the Code of Federal Regulations, as set forth below:
PART 17--ENDANGERED AND THREATENED WILDLIFE AND PLANTS
0
1. The authority citation for part 17 continues to read as follows:
Authority: 16 U.S.C. 1361-1407; 1531-1544; and 4201-4245, unless
otherwise noted.
[[Page 57320]]
0
2. In Sec. 17.11, amend paragraph (h) by adding an entry for
``Crayfish, Brawleys Fork'' to the List of Endangered and Threatened
Wildlife in alphabetical order under CRUSTACEANS to read as follows:
Sec. 17.11 Endangered and threatened wildlife.
* * * * *
(h) * * *
----------------------------------------------------------------------------------------------------------------
Listing citations and
Common name Scientific name Where listed Status applicable rules
----------------------------------------------------------------------------------------------------------------
* * * * * * *
Crustaceans
* * * * * * *
Crayfish, Brawleys Fork......... Cambarus williami. Wherever found.... T [Federal Register
citation when
published as a final
rule]; 50 CFR
17.46(d); \4d\ 50 CFR
17.95(h).\CH\
* * * * * * *
----------------------------------------------------------------------------------------------------------------
0
3. Amend Sec. 17.46 by adding paragraph (d) to read as follows:
* * * * *
Sec. 17.46 Special rules--crustaceans.
* * * * *
(d) Brawleys Fork crayfish (Cambarus williami). (1) Prohibitions.
The following prohibitions that apply to endangered wildlife also apply
to Brawleys Fork crayfish. Except as provided under paragraph (d)(2) of
this section and Sec. Sec. 17.4 and 17.5, it is unlawful for any
person subject to the jurisdiction of the United States to commit, to
attempt to commit, to solicit another to commit, or cause to be
committed, any of the following acts in regard to Brawleys Fork
crayfish:
(i) Import or export, as set forth at Sec. 17.21(b) for endangered
wildlife.
(ii) Take, as set forth at Sec. 17.21(c)(1) for endangered
wildlife.
(iii) Possession and other acts with unlawfully taken specimens, as
set forth at Sec. 17.21(d)(1) for endangered wildlife.
(iv) Interstate or foreign commerce in the course of a commercial
activity, as set forth at Sec. 17.21(e) for endangered wildlife.
(v) Sale or offer for sale, as set forth at Sec. 17.21(f) for
endangered wildlife.
(2) Exceptions from prohibitions. In regard to this species, you
may:
(i) Conduct activities as authorized by a permit under Sec. 17.32.
(ii) Take, as set forth at Sec. 17.21(c)(2) through (4) for
endangered wildlife.
(iii) Take, as set forth at Sec. 17.31(b).
(iv) Possess and engage in other acts with unlawfully taken
wildlife, as set forth at Sec. 17.21(d)(2) for endangered wildlife.
(v) Take incidental to an otherwise lawful activity caused by:
(A) Channel restoration projects that create natural, physically
stable, ecologically functioning streams (or stream and wetland
systems). These projects can be accomplished using a variety of
methods, but the desired outcome is a natural channel with low shear
stress (force of water moving against the channel); bank heights that
enable reconnection to the floodplain; a reconnection of surface and
groundwater systems, resulting in perennial flows in the channel;
riffles and pools composed of existing soil, rock, and wood instead of
large imported materials; low compaction of soils within adjacent
riparian areas; and inclusion of riparian wetlands.
(B) Bank stabilization projects that use bioengineering methods to
replace preexisting, bare, eroding stream banks with vegetated, stable
stream banks, thereby reducing bank erosion and instream sedimentation
and improving habitat conditions for the species. Following these
bioengineering methods, stream banks may be stabilized using native
species live stakes (live, vegetative cuttings inserted or tamped into
the ground in a manner that allows the stake to take root and grow),
native species live fascines (live branch cuttings, usually willows,
bound together into long, cigar-shaped bundles), or native species
brush layering (cuttings or branches of easily rooted tree species
layered between successive lifts of soil fill). Native species
vegetation includes woody and herbaceous species appropriate for the
region and habitat conditions. These methods will not include the sole
use of quarried rock (riprap) or the use of rock baskets or gabion
structures.
(C) Bridge and culvert replacement/removal projects or low head dam
removal projects that remove migration barriers or generally allow for
improved upstream and downstream movements of Brawleys Fork crayfish
while maintaining normal stream flows, preventing bed and bank erosion,
and improving habitat conditions for the species.
(D) Transportation projects that provide for fish passage at stream
crossings.
0
4. In Sec. 17.95, amend paragraph (h) by adding an entry for
``Brawleys Fork Crayfish (Cambarus williami)'' after the entry for
``Big Sandy Crayfish (Cambarus callainus)'' to read as follows:
Sec. 17.95 Critical habitat--fish and wildlife.
* * * * *
(h) Crustaceans.
* * * * *
Brawleys Fork Crayfish (Cambarus williami)
(1) Critical habitat units are depicted for Cannon, Rutherford, and
Warren Counties, Tennessee, on the maps in this entry.
(2) Within these areas, the physical or biological features
essential to the conservation of Brawleys Fork crayfish consist of the
following components:
(i) Moderate to fast-flowing stream with unembedded cherty-gravel
and cobble substrate within an unobstructed stream continuum (i.e.,
riffle, run, pool complexes) of perennial, small- to moderate-sized
(generally third order or smaller) streams and rivers (up to the
ordinary high-water mark as defined at 33 CFR 329.11).
(ii) Stream banks with intact riparian cover to maintain stream
morphology and reduce erosion and sediment inputs that may reduce
availability of substrate interstitial spaces.
(iii) Water quality characterized by seasonally moderated, or
spring influenced, water temperatures and physical and chemical
parameters (e.g., pH, conductivity, dissolved oxygen) sufficient for
the normal behavior, growth, reproduction, and viability of all life
stages.
(iv) Adequate food base, indicated by a healthy aquatic community
structure including native benthic macroinvertebrates, fishes, and
plant matter (e.g., leaf litter, algae, detritus).
[[Page 57321]]
(v) An interconnected network of streams and rivers that have the
physical and biological features described in paragraphs (2)(i) through
(iv) of this entry that allow for the movement of individual crayfish
in response to environmental, physiological, or behavioral drivers. The
connectivity of the stream network should be sufficient to allow for
gene flow within and among watersheds.
(3) Critical habitat does not include manmade structures (such as
buildings, aqueducts, runways, roads, and other paved areas) and the
land on which they are located existing within the legal boundaries on
[EFFECTIVE DATE OF FINAL RULE].
(4) Data layers defining map units were created using Esri ArcGIS
Pro mapping software, version 2.7.2 with U.S. Geological Survey's
National Hydrography Dataset flowline data, on a base map of State,
County, and city limit boundaries from the State of Tennessee's
Strategic Technology Solutions branch. Critical habitat units were
mapped using the Tennessee State Plane Coordinate System, Lambert
Conformal Conic projection and North American 1983 (NAD83) datum. The
maps in this entry, as modified by any accompanying regulatory text,
establish the boundaries of the critical habitat designation. The
coordinates or plot points or both on which each map is based are
available to the public at the Service's internet site at https://www.fws.gov/library/collections/Brawleys-Fork-crayfish, at https://www.regulations.gov at Docket No. FWS-R4-ES-2023-0065, and at the field
office responsible for this designation. You may obtain field office
location information by contacting one of the Service regional offices,
the addresses of which are listed at 50 CFR 2.2.
(5) Index map of critical habitat units for the Brawleys Fork
crayfish follows:
Figure 1 to Brawleys Fork crayfish (Cambarus williami) paragraph (5)
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(6) Unit 1: West Fork Stones; Rutherford County, Tennessee.
(i) Unit 1 consists of 6.2 rmi (10 rkm) of the West Fork Stones
River beginning at the Nice's Mill Recreation Area lowhead dam and
continuing to the confluence with the Stones River in Rutherford
County, Tennessee. Riparian lands in Unit 1 are in Federal ownership
(Department of Defense, U.S. Army Corps of Engineers, J. Percy Priest
Lake).
(ii) Unit 1 includes stream channel up to bankfull height.
(iii) Map of Unit 1 follows:
Figure 2 to Brawleys Fork crayfish (Cambarus williami) paragraph
(6)(iii)
[[Page 57322]]
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(7) Unit 2: Brawleys Fork; Cannon County, Tennessee.
(i) Unit 2 consists of approximately 13.8 rmi (22.2 rkm) of the
Brawleys Fork and tributaries in Cannon County, Tennessee. Unit 2
includes the Brawleys Fork from the headwaters at Mill Bluff Hollow to
the confluence with the Carson Fork and Shelton Branch from the Gene
Perkins Road crossing to the confluence with Brawleys Fork. Riparian
lands in Unit 2 are in private ownership except for a small amount of
publicly owned bridge crossings and road easements.
(ii) Unit 2 includes stream channel up to bankfull height.
(iii) Map of Unit 2 follows:
Figure 3 to Brawleys Fork crayfish (Cambarus williami) paragraph
(7)(iii)
[[Page 57323]]
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(8) Unit 3: Carson Fork; Cannon County, Tennessee.
(i) Unit 3 consists of approximately 18.2 rmi (29.3 rkm) of the
Carson Fork and tributaries in Cannon County, Tennessee. Riparian lands
in Unit 3 are in private ownership except for a small amount of
publicly owned bridge crossings and road easements.
(A) Subunit 3a (Carson Fork) consists of 12.3 rmi (19.8 rkm) and
extends from the headwaters of the Carson Fork near Sadler Lane
downstream to the confluence with the East Fork Stones River, from the
headwaters of Duck Branch to the confluence of Carson Fork, and from
the headwaters of an unnamed tributary in Simmons Hollow to the
confluence of Carson Fork.
(B) Subunit 3b (Haws Spring Fork) consists of 5.9 rmi (9.5 rkm) and
extends from the headwaters of Smith Branch near Carrick Hollow to the
confluence with Haws Spring Fork and from the headwaters of Haws Spring
to the confluence with the Carson Fork.
(ii) Unit 3 includes stream channel up to bankfull height.
(iii) Map of Unit 3 follows:
Figure 4 to Brawleys Fork crayfish (Cambarus williami) paragraph
(8)(iii)
[[Page 57324]]
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(9) Unit 4: East Fork Stones River, Cannon County, Tennessee.
(i) Unit 4 consists of approximately 35.9 rmi (57.8 rkm) of the
East Fork Stones River mainstem and some of its tributaries in Cannon
County, Tennessee. Riparian lands in Unit 4 are in State (0.7 rmi (1.1
rkm), local (0.9 rmi (1.4 rkm) in two parks), and private ownership, as
well as small amount of publicly owned bridge crossings and road
easements.
(A) Subunit 4a (East Fork Stones) consists of 32.5 rmi (52.3 rkm)
and includes Hollis Creek from the headwaters near Hollis Creek South
Road to the confluence with the East Fork Stones River, Hill Creek from
the tributary at Wood Hollow to the confluence with the East Fork
Stones River, Parchcorn Hollow Branch from the Parchcorn Hollow road
crossing to the confluence with the East Fork Stones River, Cavender
Branch from the Cavender Road bridge to the confluence with the East
Fork Stones River, and from Locke Creek to the confluence with the East
Fork Stones River.
(B) Subunit 4b (Rockhouse Creek) consists of 3.4 rmi (5.5 rkm) and
extends from the stream crossing at Seal Hollow Branch by Seal Hollow
Road to the confluence with Rockhouse Branch and from the Higgins Road
crossing of Rockhouse Creek downstream to the confluence with the East
Fork Stones River.
[[Page 57325]]
(ii) Unit 4 includes stream channel up to bankfull height.
(iii) Map of Unit 4 follows:
Figure 5 to Brawleys Fork crayfish (Cambarus williami) paragraph
(9)(iii)
[GRAPHIC] [TIFF OMITTED] TP22AU23.059
(10) Unit 5: Bullpen Creek; Cannon County, Tennessee.
(i) Unit 5 consists of approximately 3.1 rmi (5.0 rkm) of Bullpen
Creek beginning at the Lonnie Smith Road crossing and extending
downstream to the lowhead dam near Charlie Powell Road in Cannon
County, Tennessee. Riparian lands in Unit 5 are in private ownership
except for a small amount of publicly owned bridge crossings and road
easements.
(ii) Unit 5 includes stream channel up to bankfull height.
(iii) Map of Unit 5 follows:
Figure 6 to Brawleys Fork crayfish (Cambarus williami) paragraph
(10)(iii)
[[Page 57326]]
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(11) Unit 6: Mountain Creek; Warren County, Tennessee.
(i) Unit 6 consists of approximately 9.4 rmi (15.1 rkm) of Mountain
Creek in Warren County, Tennessee. Unit 6 extends from the Mountain
Creek road crossing at Short Mountain Road downstream to the Smithville
Highway bridge in the city of Dibrell, Warren County, Tennessee.
Riparian lands in Unit 6 are in private ownership except for a small
amount of publicly owned bridge crossings and road easements.
(ii) Unit 6 includes stream channel up to bankfull height.
(iii) Map of Unit 6 follows:
Figure 7 to Brawleys Fork crayfish (Cambarus williami) paragraph
(11)(iii)
[[Page 57327]]
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* * * * *
Wendi Weber,
Acting Director, U.S. Fish and Wildlife Service.
[FR Doc. 2023-17666 Filed 8-21-23; 8:45 am]
BILLING CODE 4333-15-C
