[Federal Register Volume 86, Number 131 (Tuesday, July 13, 2021)]
[Proposed Rules]
[Pages 36678-36697]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-14272]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
[Docket No. FWS-R4-ES-2020-0062; FF09E21000 FXES11110900000 212]
RIN 1018-BE55
Endangered and Threatened Wildlife and Plants; Designation of
Critical Habitat for Pearl Darter
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Proposed rule.
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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), propose to
designate critical habitat for the pearl darter (Percina aurora) under
the Endangered Species Act of 1973 (Act), as amended. In total,
approximately 517 river miles (832 river kilometers) in Clarke,
Covington, Forrest, George, Greene, Lauderdale, Jackson, Jones, Newton,
Perry, Simpson, Stone, and Wayne Counties, Mississippi, fall within the
boundaries of the proposed critical habitat designation. If we finalize
this rule as proposed, it would extend the Act's protections to this
species' critical habitat. We also announce the availability of a draft
economic analysis of the proposed designation.
DATES: We will accept comments on the proposed rule or draft economic
analysis that are received or postmarked on or before September 13,
2021. Comments submitted electronically using the Federal eRulemaking
Portal (see ADDRESSES, below) must be received by 11:59 p.m. Eastern
Time on the closing date. We must receive requests for public hearings,
in writing, at the address shown in FOR FURTHER INFORMATION CONTACT by
August 27, 2021.
ADDRESSES: You may submit comments on the proposed rule or draft
economic analysis by one of the following methods:
(1) Electronically: Go to the Federal eRulemaking Portal: http://www.regulations.gov. In the Search box, enter FWS-R4-ES-2020-0062,
which is the docket number for this rulemaking. Then, click on the
Search button. On the resulting page, in the Search panel on
[[Page 36679]]
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 Now!''
(2) By hard copy: Submit by U.S. mail to: Public Comments
Processing, Attn: FWS-R4-ES-2020-0062, 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 http://www.regulations.gov. This
generally means that we will post any personal information you provide
us (see Information Requested, below, for more information).
Document availability: The draft economic analysis is available at
http://www.fws.gov/mississippiES/, at http://www.regulations.gov under
Docket No. FWS-R4-ES-2020-0062.
The coordinates or plot points or both from which the maps are
generated are included in the administrative record for this critical
habitat designation and are available at http://www.fws.gov/mississippiES/, at http://www.regulations.gov under Docket No. FWS-R4-
ES-2020-0062. Any additional tools or supporting information that we
may develop for this critical habitat designation will also be
available at the Service website and Field Office set out above, and
may also be included in the preamble and/or at http://www.regulations.gov.
FOR FURTHER INFORMATION CONTACT: Stephen Ricks, Field Supervisor, U.S.
Fish and Wildlife Service, Mississippi Ecological Services Field
Office, 6578 Dogwood View Parkway, Jackson, MS 39213; telephone 601-
321-1122. Persons who use a telecommunications device for the deaf
(TDD) may call the Federal Relay Service at 800-877-8339.
SUPPLEMENTARY INFORMATION:
Executive Summary
Why we need to publish a rule. To the maximum extent prudent and
determinable, we must designate critical habitat for any species that
we determine to be an endangered or threatened species under the Act.
Designations of critical habitat can only be completed by issuing a
rule.
What this document does. This document proposes to designate
critical habitat for the pearl darter in the Pascagoula River and Pearl
River basins in Mississippi. We listed the pearl darter as a threatened
species under the Act on September 20, 2017 (82 FR 43885).
The basis for our action. Section 4(a)(3) of the Act requires the
Secretary of the Interior (Secretary) to designate critical habitat to
the maximum extent prudent and determinable for species listed as
endangered or threatened species. 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 protection; and (ii) specific areas outside the
geographical area occupied by the species at the time it is listed,
upon a determination by the Secretary that such areas are essential for
the conservation of the species. Section 4(b)(2) of the Act states that
the Secretary must make the designation on the basis of the best
available scientific data 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.
Economic impacts. In accordance with section 4(b)(2) of the Act, we
prepared an analysis of the economic impacts of the proposed critical
habitat designation. In this document, we announce the availability of
the draft economic analysis for public review and comment.
Peer review. In accordance with our joint policy on peer review
published in the Federal Register on July 1, 1994 (59 FR 34270), and
our August 22, 2016, memorandum updating and clarifying the role of
peer review of listing actions under the Act, we will seek peer review
of this proposed rule. We are seeking comments from independent
specialists to ensure that our critical habitat proposal is based on
scientifically sound data and analyses. We have invited these peer
reviewers to comment on our specific assumptions and conclusions in
this critical habitat proposal during the public comment period for
this proposed rule (see DATES, above).
Information Requested
We intend that any final action resulting from this proposed rule
will be based on the best scientific and commercial data available and
be as accurate and as effective as possible. Therefore, we request
comments or information from other concerned government agencies,
Native American tribes, the scientific community, industry, or any
other interested party concerning this proposed rule. We particularly
seek comments concerning:
(1) The reasons why we should or should not designate habitat as
``critical habitat'' under section 4 of the Act (16 U.S.C. 1531 et
seq.), including information to inform the following factors that the
regulations identify as reasons why designation of critical habitat may
not be prudent:
(a) The species is threatened by taking or other human activity and
identification of critical habitat can be expected to increase the
degree of such threat to the species;
(b) The present or threatened destruction, modification, or
curtailment of a species' habitat or range is not a threat to the
species, or threats to the species' habitat stem solely from causes
that cannot be addressed through management actions resulting from
consultations under section 7(a)(2) of the Act;
(c) Areas within the jurisdiction of the United States provide no
more than negligible conservation value, if any, for a species
occurring primarily outside the jurisdiction of the United States; or
(d) No areas meet the definition of critical habitat.
(2) Specific information on:
(a) The amount and distribution of the pearl darter's habitat;
(b) What areas that were occupied at the time of listing and that
contain the physical or biological features essential to the
conservation of the species should be included in the designation and
why;
(c) Any additional areas occurring within the range of the species,
i.e., rivers and streams within the Pearl River and Pascagoula River
drainages in Mississippi and Louisiana, that should be included in the
designation because they (1) are occupied at the time of listing and
contain the physical or biological features that are essential to the
conservation of the species and that may require special management
considerations, or (2) are unoccupied at the time of listing and are
essential for the conservation of the species;
(d) Special management considerations or protection that may be
needed in occupied critical habitat areas we are proposing, including
managing for the potential effects of climate change; and
(e) What areas not occupied at the time of listing are essential
for the conservation of the species. We particularly seek comments:
(i) Regarding whether occupied areas are inadequate for the
conservation of the species;
(ii) Providing specific information regarding whether or not
unoccupied areas would, with reasonable certainty, contribute to the
conservation of the species and contain at least one physical
[[Page 36680]]
or biological feature essential to the conservation of the species;
(iii) Explaining whether or not unoccupied areas fall within the
definition of ``habitat'' at 50 CFR 424.02 and why.
(3) Land use designations and current or planned activities in the
subject areas and their possible impacts on proposed critical habitat.
(4) Information on the projected and reasonably likely impacts of
climate change on the pearl darter and proposed critical habitat.
(5) Any probable economic, national security, or other relevant
impacts of designating any area that may be included in the final
designation, and the benefits of including or excluding areas that may
be impacted.
(6) Information on the extent to which the description of probable
economic impacts in the draft economic analysis is a reasonable
estimate of those impacts.
(7) 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. For any additional areas that you may
request be excluded from the designation, we will undertake an
exclusion analysis if you provide credible information regarding the
existence of a meaningful economic or other relevant impact supporting
a benefit of inclusion or if we otherwise decide to exercise the
discretion to evaluate the areas for possible exclusion.
(8) 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.
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 http://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 http://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 http://www.regulations.gov.
Because we will consider all comments and information we receive
during the comment period, our final critical habitat designation may
differ from this proposal. Based on the new information we receive (and
any comments on that new information), we may conclude that some
additional areas meet the definition of critical habitat, and some
areas proposed as critical habitat may not meet the definition of
critical habitat. In addition, we may find that the benefit of
excluding some areas outweigh the benefits of including those areas
pursuant to section 4(b)(2) of the Act, and we may exclude them from
the final designation unless we determine that exclusion would result
in extinction of the pearl darter.
Public Hearing
Section 4(b)(5) of the Act provides for a public hearing on this
proposal, if requested. Requests must be received by the date specified
in DATES. Such requests must be sent to the address shown in FOR
FURTHER INFORMATION CONTACT. We will schedule a public hearing on this
proposal, if requested, and announce the date, time, and place of the
hearing, as well as how to obtain reasonable accommodations, in the
Federal Register and local newspapers at least 15 days before the
hearing. For the immediate future, we will provide these public
hearings using webinars that will be announced on the Service's
website, in addition to the Federal Register. The use of these virtual
public hearings is consistent with our regulations at 50 CFR
424.16(c)(3).
Previous Federal Actions
Please refer to the final listing rule for the pearl darter, which
published in the Federal Register on September 20, 2017 (82 FR 43885),
for a detailed description of previous Federal actions concerning this
species.
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). Additionally, our regulations
at 50 CFR 424.02 define the word ``habitat'' as follows: ``For the
purposes of designating critical habitat only, habitat is the abiotic
and biotic setting that currently or periodically contains the
resources and conditions necessary to support one or more life
processes of a species.''
Conservation, as defined under section 3 of the Act, means to use
and the use of all methods and procedures that are necessary to bring
an endangered or threatened species to the point at which the measures
provided pursuant to the Act are no longer necessary. Such methods and
procedures include, but are not limited to, all activities associated
with scientific resources management such as research, census, law
enforcement, habitat acquisition and maintenance, propagation, live
trapping, and transplantation, and, in the extraordinary case where
population pressures within a given ecosystem cannot be otherwise
relieved, may include regulated taking.
Critical habitat receives protection under section 7 of the Act
through the requirement that Federal agencies ensure, in consultation
with the Service, that any action they authorize, fund, or carry out is
not likely to result in the destruction or adverse modification of
critical habitat. The designation of critical habitat does not affect
land ownership or establish a refuge, wilderness, reserve, preserve, or
other conservation area. Designation also does not allow the government
or public to access private lands. Designation does not require
implementation of
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restoration, recovery, or enhancement measures by non-Federal
landowners. Where a landowner requests Federal agency funding or
authorization for an action that may affect a listed species or
critical habitat, the Federal agency would be required to consult with
the Service under section 7(a)(2) of the Act. However, even if the
Service were to conclude that the proposed activity would result in
destruction or adverse modification of the critical habitat, the
Federal action agency and the landowner are not required to abandon the
proposed activity, or to restore or recover the species; instead, they
must implement ``reasonable and prudent alternatives'' to avoid
destruction or adverse modification of critical habitat.
Under the first prong of the Act's definition of critical habitat,
areas within the geographical area occupied by the species at the time
it was listed are included in a critical habitat designation if they
contain physical or biological features (1) which are essential to the
conservation of the species and (2) which may require special
management considerations or protection. For these areas, critical
habitat designations identify, to the extent known using the best
scientific data available, those physical or biological features that
are essential to the conservation of the species (such as space, food,
cover, and protected habitat). In identifying those physical or
biological features that occur in specific occupied areas, we focus on
the specific features that are essential to support the life-history
needs of the species, including, but not limited to, water
characteristics, soil type, geological features, 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.
Under the second prong of the Act's definition of critical habitat,
we can designate critical habitat in areas outside the geographical
area occupied by the species at the time it is listed, upon a
determination that such areas are essential for the conservation of the
species. When designating critical habitat, the Secretary will first
evaluate areas occupied by the species. The Secretary will only
consider unoccupied areas to be essential where a critical habitat
designation limited to geographical areas occupied by the species would
be inadequate to ensure the conservation of the species. In addition,
for an unoccupied area to be considered essential, the Secretary must
determine that there is a reasonable certainty both that the area will
contribute to the conservation of the species and that the area
contains one or more of those physical or biological features essential
to the conservation of the species.
Section 4 of the Act requires that we designate critical habitat on
the basis of the best scientific data available. Further, our Policy on
Information Standards Under the Endangered Species Act (published in
the Federal Register on July 1, 1994 (59 FR 34271)), the Information
Quality Act (section 515 of the Treasury and General Government
Appropriations Act for Fiscal Year 2001 (Pub. L. 106-554; H.R. 5658)),
and our associated Information Quality Guidelines, provide criteria,
establish procedures, and provide guidance to ensure that our decisions
are based on the best scientific data available. They require our
biologists, to the extent consistent with the Act and with the use of
the best scientific data available, to use primary and original sources
of information as the basis for recommendations to designate critical
habitat.
When we are determining which areas should be designated as
critical habitat, our primary source of information is generally the
information developed during the listing process for the species.
Additional information sources may include any generalized conservation
strategy, criteria, or outline that may have been developed for the
species; the recovery plan for the species; articles in peer-reviewed
journals; conservation plans developed by States and counties;
scientific status surveys and studies; biological assessments; other
unpublished materials; or experts' opinions or personal knowledge.
Habitat is dynamic, and species may move from one area to another
over time. We recognize that critical habitat designated at a
particular point in time may not include all of the habitat areas that
we may later determine are necessary for the recovery of the species.
For these reasons, a critical habitat designation does not signal that
habitat outside the designated area is unimportant or may not be needed
for recovery of the species. Areas that are important to the
conservation of the species, both inside and outside the critical
habitat designation, will continue to be subject to: (1) Conservation
actions implemented under section 7(a)(1) of the Act, (2) regulatory
protections afforded by the requirement in section 7(a)(2) of the Act
for Federal agencies to ensure their actions are not likely to
jeopardize the continued existence of any endangered or threatened
species, and (3) the prohibitions found in section 9 of the Act.
Federally funded or permitted projects affecting listed species outside
their designated critical habitat areas may still result in jeopardy
findings in some cases. These protections and conservation tools will
continue to contribute to recovery of this species. Similarly, critical
habitat designations made on the basis of the best available
information at the time of designation will not control the direction
and substance of future recovery plans, habitat conservation plans
(HCPs), or other species conservation planning efforts if new
information available at the time of these planning efforts calls for a
different outcome.
Prudency Determination
Section 4(a)(3) of the Act, as amended, and implementing
regulations (50 CFR 424.12) require that, to the maximum extent prudent
and determinable, the Secretary shall designate critical habitat at the
time the species is determined to be an endangered or threatened
species. Our regulations (50 CFR 424.12(a)(1)) state that the Secretary
may, but is not required to, determine that a designation would not be
prudent in the following circumstances:
(i) The species is threatened by taking or other human activity,
and identification of critical habitat can be expected to increase the
degree of such threat to the species;
(ii) The present or threatened destruction, modification, or
curtailment of a species' habitat or range is not a threat to the
species, or threats to the species' habitat stem solely from causes
that cannot be addressed through management actions resulting from
consultations under section 7(a)(2) of the Act;
(iii) Areas within the jurisdiction of the United States provide no
more than negligible conservation value, if any, for a species
occurring primarily outside the jurisdiction of the United States;
(iv) No areas meet the definition of critical habitat; or
(v) The Secretary otherwise determines that designation of critical
habitat would not be prudent based on the best scientific data
available.
No imminent threat of take attributed to collection or vandalism
under Factor B was identified in the final listing rule for the pearl
darter, and identification and mapping of critical habitat is not
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expected to initiate any such threat. In our final listing
determination for the pearl darter, we determined that the present or
threatened destruction, modification, or curtailment of habitat or
range is a threat to this species and that those threats in some way
can be addressed by section 7(a)(2) consultation measures. The species
occurs wholly in the jurisdiction of the United States, and we are able
to identify areas that meet the definition of critical habitat.
Therefore, because none of the circumstances set forth in our
regulations at 50 CFR 424.12(a)(1) has been met and because there are
no other circumstances the Secretary has identified for which this
designation of critical habitat would be not prudent, we have
determined that the designation of critical habitat is prudent for the
pearl darter.
Critical Habitat Determinability
Having determined that designation is prudent, under section
4(a)(3) of the Act we must find whether critical habitat for the pearl
darter is determinable. Our regulations at 50 CFR 424.12(a)(2) state
that critical habitat is not determinable when one or both of the
following situations exist:
(i) Data sufficient to perform required analyses are lacking, or
(ii) The biological needs of the species are not sufficiently well
known to identify any area that meets the definition of ``critical
habitat.''
When we published the proposed listing rule (81 FR 64857; September
21, 2016) and then the final listing rule (82 FR 43885; September 20,
2017) for the pearl darter, a careful assessment of the economic
impacts of an associated critical habitat designation was incomplete,
leading us to find that critical habitat was not determinable. We
continued to review the available information related to the draft
economic analysis, as well as newly acquired biological information
necessary to perform this assessment. This and other information
represent the best scientific data available, and we now find the data
are sufficient for us to analyze the impacts of critical habitat
designation. Accordingly, we conclude that the designation of critical
habitat is determinable for the pearl darter.
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 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 a particular level of
nonnative species consistent with conservation needs of the listed
species. The features may also be combinations of habitat
characteristics and may encompass the relationship between
characteristics or the necessary amount of a characteristic essential
to support the life history of the species.
In considering whether features are essential to the conservation
of the species, the Service may consider an appropriate quality,
quantity, and spatial and temporal arrangement of habitat
characteristics in the context of the life-history needs, condition,
and status of the species. These characteristics include, but are not
limited to, space for individual and population growth and for normal
behavior; food, water, air, light, minerals, or other nutritional or
physiological requirements; cover or shelter; sites for breeding,
reproduction, or rearing (or development) of offspring; and habitats
that are protected from disturbance.
Habitats Representative of the Historical, Geographical, and Ecological
Distributions of the Species
The pearl darter is historically known from rivers and streams
within the Pearl River and Pascagoula River drainages in Mississippi
and Louisiana, and the species was described from the lower Strong
River within the Pearl River drainage of Mississippi (Suttkus et al.
1994, pp. 15-20). The darter has been extirpated from the Pearl River
drainage for several decades, apparently due to system-wide channel and
water quality degradation occurring in the late 1960s to early 1970s
(Wagner et al. 2017, entire). With this extirpation, at least half of
the historical, geographical, and ecological habitats of the pearl
darter are no longer occupied. Channel integrity and water quality
within the Pearl River drainage has since improved due to the enactment
of State and Federal laws and regulations addressing water pollution
and in-channel sand and gravel mining. In the lower Strong River,
channel integrity is controlled and protected by natural bedrock
outcrops, and water quality has improved, as indicated by the
resurgence of other benthic fish species that historically co-occurred
with the pearl darter (Piller et al. 2004, pp. 1007-1011; Tipton et al.
2004, pp. 57-60; Wagner et al. 2018, entire).
Within the Pascagoula River drainage, the pearl darter occurs
within the Pascagoula, Chickasawhay, Leaf, Chunky, and Bouie Rivers and
the Okatoma and Black Creeks (Wagner et al. 2017, pp. 3-10, 12; Clark
et al. 2018, pp. 100-103; Schaefer et al. 2020, pp. 26-27, 43-44).
The lower Strong River within the Pearl River drainage and the
rivers and streams identified above within the Pascagoula River
drainage are representative of the historical, geographical, and
ecological distribution of the species.
Space for Individual and Population Growth and for Normal Behavior
The pearl darter is found in free-flowing, low-gradient streams and
rivers with pools and scour holes associated with channel bends and
runs (Slack et al. 2002, p. 10; Bart et al. 2001, p. 13). Presence of
the darter is associated with coarse sand and gravel substrates and
woody debris, which also supplies habitats for its prey. Other bottom
substrates associated with the species include sand, silt, loose clay,
and gravel, with organic matter in the form of coarse and fine
particulates and snag material (Slack et al. 2005, pp. 9, 11). Pearl
darter occurrence within these habitats may be seasonal, with spawning
occurring in upstream reaches, and growth and recruitment in downstream
reaches (Bart et al. 2001, pp. 13, 15). Therefore, a continuum of
perennial, uninterrupted, and interconnected natural small stream-to-
river channel habitat is required for the
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downstream drift of larvae or movement of juveniles, and the upstream
migration of spawning adults.
Food, Water, Air, Light, Minerals, or Other Nutritional or
Physiological Requirements
The pearl darter requires unimpeded and interconnected stretches of
perennial and flowing streams and rivers with adequate water quality.
Water temperatures at pearl darter collection sites has ranged from 8
to 30 degrees Celsius ([deg]C) (46.4 to 86.0 degrees Fahrenheit
([deg]F)) (Suttkus et al. 1994, pp. 17-19; Bart et al. 2001, p. 13,
Slack et al. 2002, p. 10), with dissolved oxygen of 5.8 to 9.3
milligrams per liter (mg/1) (Suttkus et al. 1994, pp. 17-19; Bart et
al. 2001, pp. 7, 13-14; Slack et al. 2002, p. 10). The species is
apparently sensitive to warmer water temperatures and may seasonally
require tributaries with canopy shading and/or cool spring flows as
seasonal refugia from warmer, unshaded river channels (Bart et al.
2001, p. 14).
The natural diet of the pearl darter is poorly known; however,
other species within the genus feed on chironomids (midges), small
crustaceans, mayflies, and caddisflies (Kuehne and Barbour 1983, p.
49). Food availability is likely affected by adequate flow, channel
stability, and water quality. Pearl darters have been maintained in
captivity for at least 2 years on a diet of bloodworms (Campbell 2019,
p. 1).
Sites for Breeding, Reproduction, or Rearing (or Development) of
Offspring
Pearl darters have been collected at sites with cool to warm water
temperatures (8 to 30 [deg]C (46.4 to 86.0 [deg]F)), high dissolved
oxygen (5.8 to 9.3 mg/l), slightly acidic to basic pH values (6.3 to
7.6), and apparently low levels of pollution (Suttkus et al. 1994, pp.
17-19; Bart et al. 2001, pp. 7, 13-14; Slack et al. 2002, p. 10).
Spawning in the Strong River was associated with bedrock and broken
rubble (Suttkus et al. 1994, p. 19), and three probable spawning sites
in the Pascagoula River system were characterized by extensive outcrops
of limestone or sandstone (Bart and Pillar 1997, p. 8). Pearl darters
in spawning condition in the Pascagoula River drainage have also been
collected over firm gravel in relatively shallow, flowing water from
April to early May (Bart et al. 2001, p. 13). Ideal conditions for
spawning have been described as channel reaches with good canopy
shading, an extensive buffer of mature forest, and good water quality
(Bart et al. 2001, p. 15).
Spawning in the Pearl and Strong Rivers (Mississippi) was
documented during March through May (Suttkus et al. 1994, pp. 19-20),
and young of year were collected in June (Suttkus et al. 1994, p. 19).
Based on collection occurrence patterns, some researchers have
postulated that adult pearl darters migrate upstream during the fall
and winter to spawn in suitable upstream gravel reaches, with elevated
river discharge during the spring dispersing the larvae and juveniles
into downstream reaches (Bart et al. 2001, p. 14; Ross et al. 2000, p.
11). Other studies have hypothesized that the species disperses locally
from shallow spawning habitats into nearby deeper habitats where their
presence is more difficult to detect (Slack et al. 2002, p. 18). The
pattern of the disappearance of the pearl darter from all stream orders
in the Pearl River drainage over a relatively short period of time
suggests that some degree of seasonal interchange between tributary and
river channel subpopulations may have been a factor in the species'
extirpation from that drainage. Therefore, until more is known relative
to seasonal dispersal, connectivity between instream habitats should be
considered essential for successful breeding and rearing of the pearl
darter.
Summary of Essential Physical or Biological Features
We derive the specific physical or biological features essential to
the conservation of the pearl darter from studies of this species'
habitat, ecology, and life history. Additional information can be found
in the September 21, 2016, proposed listing rule (81 FR 64857) and the
September 20, 2017, final listing rule (82 FR 43885). We have
determined that the following physical or biological features are
essential to the conservation of the pearl darter:
(1) Unobstructed and stable stream and river channels with:
(a) Connected sequences of channel runs and bends associated with
pools and scour holes; and
(b) Bottom substrates consisting of fine and coarse sand, gravel,
bedrock, silt, clay, organic matter, or woody debris.
(2) A natural flow regime necessary to maintain instream habitats
and their connectivity.
(3) Water quality conditions, including cool to warm water
temperatures (8 to 30 [deg]C (46.4 to 86.0 [deg]F)), high dissolved
oxygen (5.8 to 9.3 mg/l), slightly acidic to basic pH (6.3 to 7.6), and
low levels of pollutants and nutrients meeting the current State of
Mississippi criteria, as necessary to maintain natural physiological
processes for normal behavior, growth, and viability of all life stages
of the species.
(4) Presence of a prey base of small aquatic macroinvertebrates,
including midges, crustaceans, mayflies, caddisflies, and zooplankton.
Special Management Considerations or Protection
When designating critical habitat, we assess whether the specific
areas within the geographical area occupied by the species at the time
of listing contain features that are essential to the conservation of
the species and which may require special management considerations or
protection. The pearl darter is threatened by water quality degradation
from point and nonpoint source pollution, discharges from
municipalities, and geomorphological changes to its channel habitats
(82 FR 43885, September 20, 2017, pp. 43888-43893). The features
essential to the conservation of this species may require special
management considerations or protection to reduce the following
threats: (1) Actions that alter the minimum or existing flow regime,
including impoundment, channelization, or water diversion; (2) actions
that significantly alter water chemistry or temperature by the release
of chemicals, biological pollutants, or heated effluents into the
surface water or connected groundwater at a point or non-point source;
and (3) actions that significantly alter channel morphology or
geometry, including channelization, impoundment, road and bridge
construction, or instream mining.
Examples of special management actions that would minimize or
ameliorate these threats include: (a) Restoration and protection of
riparian corridors; (b) implementation of best management practices to
minimize erosion (such as State and industry practices for road
construction, forest management, or mining activities); (c) stream bank
restoration projects; (d) private landowner programs to promote
watershed and soil conservation (such as the U.S. Department of
Agriculture's Farm Bill and the Service's Private Lands programs); (e)
implementation of best management practices for storm water; and (f)
upgrades to industrial and municipal treatment facilities to improve
water quality in effluents.
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
[[Page 36684]]
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 at the time of listing to be
considered for designation as critical habitat.
The current distribution of the pearl darter is reduced from its
historical distribution, and we anticipate that recovery will require
continued protection of the existing population and habitat, as well as
establishing a population within its historical range, to ensure there
are adequate numbers of pearl darters occurring in stable populations
for the species' continued conservation. Furthermore, rangewide
recovery considerations, such as maintaining existing genetic diversity
and striving for representation of all major portions of the species'
historical range, were considered in formulating this proposed critical
habitat designation.
We are proposing to designate critical habitat in areas within the
geographical area occupied by the species at the time of listing. We
identified areas with current occurrence records that we deemed
suitable habitat (see delineation steps, below) and that had one or
more of the physical or biological features identified for the pearl
darter which may require special management considerations or
protection. We also are proposing to designate specific areas outside
of the geographical area occupied by the species at the time of listing
because we have determined that a designation limited to occupied areas
would be inadequate to ensure the conservation of the species. For
those unoccupied areas, we have determined that it is reasonably
certain that the unoccupied areas will contribute to the conservation
of the species and contain one or more of the physical or biological
features that are essential to the conservation of the species. We have
also determined that the unoccupied areas fall within the regulatory
definition of ``habitat'' at 50 CFR 424.02.
Threats to pearl darters occurring in the Pascagoula River drainage
are compounded by the species' naturally low numbers and short life
span, but the species' conservation potential is primarily limited by
its extirpation from the Pearl River drainage and, therefore, its lack
of redundancy. The documented Pearl River drainage extirpation was
rapid and system-wide, including all mainstem and tributary collection
sites seemingly simultaneously. As such, we consider pearl darters
occurring within the Pascagoula River and its tributaries as a single
population. The loss of the species' redundancy, with its extirpation
from the Pearl River drainage, has also diminished its genetic and
ecological representation, and, therefore, increased the species'
vulnerability to catastrophic events and population changes. A
successful reintroduction into the Pearl River drainage would restore
the species' redundancy within the historical range. In addition, the
pearl darter's representation would increase from current levels by
allowing for local environmental adaptation and increasing genetic
representation. Thus, reintroducing the species into the Pearl River
drainage would contribute to the resilience and conservation of the
pearl darter.
Factors implicated in the Pearl River extirpation include
geomorphic instability (i.e., channel erosion and degradation),
sedimentation, and point source pollution from municipalities and
industries (e.g., Bart and Suttkus 1995, p. 14; Tipton et al. 2004, pp.
59-60). One or all of these factors may have been responsible for the
diminishment or loss of some or all of the physical or biological
features essential to the conservation of the pearl darter within the
drainage (e.g., channel stability, substrate, water quality, prey
base). We now find that these factors have been reduced to a degree
that the pearl darter may be successfully reintroduced into the Pearl
River.
For example, active channel erosion and degradation that may have
been precipitated by the 1956 construction of the Pearl River
navigation system in the lower basin, and aggravated by the 1963
construction of the Ross Barnett Reservoir in the upper basin, have
diminished, and instream mining is now prohibited by the States of
Mississippi and Louisiana, resulting in more stable channel habitats
within the basin. In addition, point-source pollution from untreated
municipal and industrial discharge into the Pearl River has been
significantly reduced by enactment and enforcement of the Clean Water
Act of 1972 (33 U.S.C. 1251 et seq.). The improvement of the physical
or biological features within the Pearl River drainage is also
demonstrated by recent observed increases in other benthic fish species
(e.g., crystal darter (Crystallaria asprella) and frecklebelly madtom
(Noturus munitus)), which experienced declines concurrent with the
extirpation of the pearl darter (Piller et al. 2004, pp. 1007-1011;
Tipton et al. 2004, pp. 57-60; Wagner et al. 2018, p. 13). These
improvements leave us reasonably certain that all of the physical or
biological features essential to the conservation of the pearl darter
are now present within the Pearl River drainage. Because the Pearl
River drainage habitat contains the physical or biological features for
the pearl darter and supports other benthic fish species with similar
life processes, we conclude that the drainage contains the resources
and conditions necessary to support the life processes for the pearl
darter.
For this proposed rule, we completed the following steps to
delineate critical habitat:
(1) We compiled all available current and historical occurrence
data records for the pearl darter in both the Pascagoula and Pearl
River drainages;
(2) We used confirmed presence from 1994-2019 as the foundation for
identifying areas currently occupied in the Pascagoula River drainage;
(3) We evaluated habitat suitability of stream segments that
contain the identified physical or biological features and that are
currently occupied by the species, and we retained all occupied stream
segments;
(4) We evaluated unoccupied segments of the Pearl River drainage
for suitability of spawning and recruitment, darter reintroduction, and
monitoring and management of a reintroduced population; and
(5) We evaluated unoccupied segments of the Pearl River drainage
for connectivity with reaches historically occupied and identified
areas containing the physical or biological features essential to the
conservation of the species that may require special management
considerations or protection.
Sources of data for this proposed critical habitat designation
include the proposed and final listing rules (81 FR 64857, September
21, 2016; 82 FR 43885, September 20, 2017), fish collection databases
provided by the MDWFP, survey reports and observations, and peer-
reviewed publications.
Areas Occupied at the Time of Listing
We used reports and collection data to map species site collections
and occurrences between 1994 and 2019 to determine areas occupied at
the time of listing. Based on the best available scientific data, we
determined that all currently known occupied habitat for the pearl
darter was also occupied by the species at the time of listing, and
that these areas contain the physical or biological features essential
to the conservation of the species and which may require special
management considerations or protection.
As stated above, we delineated units based on documented
occurrences and
[[Page 36685]]
the existing physical or biological features essential to the
conservation of the species. Collection occurrence patterns suggest
that adult pearl darters migrate upstream to spawn in suitable gravel
or bedrock reaches, with elevated spring river discharge dispersing
larvae and juveniles into downstream reaches; an alternative hypothesis
considers that the pearl darter moves from shallow, easily collected
spawning habitats into deeper habitats where it is more difficult to
detect the fish (see Sites for Breeding, Reproduction, or Rearing (or
Development) of Offspring, above). While both hypotheses are partially
supported by data, we note that the disappearance of the species from
the Pearl River drainage occurred fairly rapidly and simultaneously in
all stream orders, suggesting some element of migration may be involved
in the darter's life history. To allow for potential seasonal movement
between stream reaches, we propose to designate one continuous unit of
occupied critical habitat within the Pascagoula River drainage. This
unit includes portions of the Chunky, Bouie, Leaf, Chickasawhay, and
Pascagoula Rivers, as well as reaches of Okatoma and Big Black Creeks,
as described below under Proposed Critical Habitat Designation.
Since the 2017 listing of the species, there have been 71 site
collections of pearl darter in the Pascagoula River drainage (Wagner et
al. 2019, pp. 8-18; Schaefer et al. 2020, pp. 26-27, 43-44). One of
these collections in 2018 extended the known range approximately 60 mi
(97 km) in Black Creek, above its confluence with the occupied reach of
Big Black Creek (Schaefer et al. 2020, pp. 26-27). We consider this
additional mileage of stream reach to be occupied at the time of
listing. This is because the reach between the previously identified
population in Big Black Creek and the newly discovered population
upstream has the physical or biological features essential to the
conservation of the species, and the species potentially seasonally
migrates. The potential for seasonal migration, the species' small size
and rarity, and the fact that surveys for the pearl darter are
difficult and not always definitive of the species' absence within a
particular reach of an occupied stream also support considering this
area occupied at the time of listing.
In making these determinations, we recognize that collection sites
for the pearl darter occur at areas generally accessible to fish
biologists and that occupied habitats within a river reach may vary
depending upon life stage, stream size, and season. Additionally,
stream habitats are highly dependent upon upstream and downstream
channel habitat conditions for their maintenance. Therefore, we
considered the areas occupied at the time of listing to extend from an
identifiable landmark (e.g., bridge crossing, tributary confluence,
etc.) nearest the uppermost records within second or third order
streams, through their confluence with third and fourth order streams,
downstream to an identifiable landmark near the lowermost areas of
collection in the Pascagoula River (i.e., forks of the East and West
Pascagoula River). Within the current range of the pearl darter within
the Pascagoula River drainage, some habitats may or may not be actively
used at all times by individuals; however, these areas are necessary
for maintaining population connectivity, as well as other physical or
biological features essential to the conservation of the species, and,
therefore, are considered the geographic area occupied at the time of
listing for the pearl darter. This area (referred to below as proposed
Unit 1) contains all of the physical or biological features essential
to the conservation of the pearl darter and which may require special
management conditions or protections.
Areas Unoccupied at the Time of Listing
To consider for designation areas not occupied by the species at
the time of listing, we must demonstrate that these areas are essential
for the conservation of the pearl darter. The proposed occupied
critical habitat does not include geographic areas within the Pearl
River drainage--the only other area in which the pearl darter
historically occurred--as it has been extirpated from that drainage. In
addition, because the Pascagoula River drainage population is the only
extant population, that population provides no redundancy for the
species. Based upon the species' rapid and system-wide extirpation from
the Pearl River drainage, a series of back-to-back stochastic events or
a single catastrophic event could similarly significantly reduce
resiliency or extirpate the Pascagoula River population. For these
reasons, we determined we cannot conserve the species by designating
only occupied habitat as it includes only a single population in a
single drainage. Thus, we determined that habitat in another historical
drainage is needed for the long-term survival and recovery of the
species. Therefore, because we determined that the one occupied area
alone is not adequate for the conservation of the species, we have
identified and are proposing for designation as critical habitat
specific areas outside the geographical area occupied by the species at
the time of listing that are essential for the conservation of the
species. We used historical occurrence data and the physical or
biological features described earlier to identify unoccupied habitat
essential for the conservation of the pearl darter.
Based on our review, we determined that the lower Strong River, a
major tributary of the Pearl River, has the potential for future
reintroduction and reoccupation by the pearl darter, provided that
stressors are managed and mitigated. Reestablishing a viable population
in the Strong River will restore the species' redundancy within the
historical range and increase the species' ecological representation.
The specific area encompasses the minimum area of the species'
historical range within the Pearl River drainage, while still providing
ecological diversity so that the species can evolve and adapt over
time. This river reach also provides the potential for the pearl darter
to expand its range into other historically occupied areas, which
currently may be or may later become suitable, to ensure that the
species has an adequate level of redundancy within the Pearl River
drainage and guard against future catastrophic events. The lower Strong
River also represents the stream reach within the historical range with
the best potential for recovery of the species due to current
conditions, suitability for reintroductions, and access for monitoring.
Accordingly, we propose to designate one unoccupied unit in the
lower Strong River within the Pearl River drainage. As described below
in the individual unit descriptions, this unit contains all of the
physical or biological features essential to the conservation of the
species and is reasonably certain to contribute to the conservation of
the species.
General Information on the Maps of the Proposed Critical Habitat
Designation
The areas proposed as critical habitat include only stream channels
within the ordinary high-water line. There are no developed areas
within the critical habitat boundaries except for transportation and
pipeline crossings, which do not remove the suitability of these areas
for the pearl darter. When determining proposed critical habitat
boundaries, we made every effort to avoid including developed areas
such as lands covered by buildings, pavement, and other structures
because such lands lack physical or biological features necessary for
the pearl darter. The scale of the maps we prepared under the
parameters for publication within the
[[Page 36686]]
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.
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 our discussion of the individual units below. We will
make the coordinates or plot points or both on which each map is based
available to the public on http://www.regulations.gov under Docket No.
FWS-R4-ES-2020-0062 and on our internet site http://www.fws.gov/mississippiES/.
Proposed Critical Habitat Designation
We are proposing to designate approximately 517 mi (832 km) of
river and stream channels in two units as critical habitat for the
pearl darter. The critical habitat areas we describe below constitute
our current best assessment of areas that meet the definition of
critical habitat for the pearl darter. The two areas we propose as
critical habitat are: (1) Pascagoula River Unit; and (2) Strong River
Unit. Ownership of stream channel bottoms included in this proposed
rule are determined by riparian land ownership. The table below shows
the occupancy of the units, the riparian land ownership, and
approximate lengths of the proposed critical habitat for the pearl
darter.
Table of Proposed Critical Habitat Units for Pearl Darter
[Unit length estimates include only stream channels within the ordinary high-water line]
--------------------------------------------------------------------------------------------------------------------------------------------------------
Riparian land ownership
----------------------------------------------------------------
Unit Occupancy Federal mi Private mi Total mi (km)
(km) State mi (km) County mi (km) (km)
--------------------------------------------------------------------------------------------------------------------------------------------------------
1. Pascagoula River....................... Occupied.................... ** 45 (72) ** 76 (122) .............. 373 (600) ** 487 (783)
2. Strong River........................... Unoccupied.................. .............. .............. 0.4 (0.6) 30 (48.4) 30 (49)
-------------------------------------------------------------------------------
Total km (mi)......................... ............................ ** 45 (72) ** 76 (122) 0.4 (0.6) 403 (648.4) ** 517 (832)
--------------------------------------------------------------------------------------------------------------------------------------------------------
** 7 mi (11 km) of pearl darter critical habitat stream miles shared between State and Federal lands.
We present brief descriptions of all units, and reasons why they
meet the definition of critical habitat for pearl darter, below.
Unit 1: Pascagoula River Unit
Unit 1 consists of 487 mi (783 km) of occupied connected river and
stream channels within the Pascagoula River drainage in Mississippi,
including:
63 mi (102 km) of the Pascagoula River channel from its
confluence with the West Pascagoula River in Jackson County, upstream
to the confluence of the Leaf and Chickasawhay Rivers in George County;
80 mi (129 km) of Big Black Creek/Black Creek channel from
its confluence with the Pascagoula River in Jackson County, upstream to
U.S. Highway 49 Bridge in Forrest County;
160 mi (257 km) of Chickasawhay River channel from its
confluence with the Leaf River just north of Enterprise, Clarke County,
upstream to the confluence of Okatibbee Creek and Chunky River in
Clarke County;
21 mi (34 km) of Chunky River channel from its confluence
with Okatibbee Creek in Clarke County, upstream to second Highway 80
Crossing in Newton County;
119 mi (192 km) of Leaf River channel from its confluence
with the Chickasawhay River in George County, upstream to the bridge
crossing at U.S. Highway 84 in Covington County;
15 mi (24 km) of Bouie River channel from its confluence
with the Leaf River, upstream to the confluence of Okatoma Creek in
Forrest County; and
28 mi (45 km) of Okatoma Creek from its confluence with
the Bouie River in Forrest County, upstream to the bridge crossing at
U.S. Highway 84 in Covington County.
The riparian lands (channel borders) in this unit are generally
privately owned agricultural or silvicultural lands, with short reaches
owned and managed by the U.S. Forest Service or the State (see table
above). All channel segments in Unit 1 are occupied by the pearl
darter, and the unit contains all the physical or biological features
essential to the conservation of the species, including deep pools,
runs, and bends and scour holes; mixtures of bottom substrates of sand,
silt, loose clay and gravel, fine and coarse particles of organic
matter, and snag material; a natural hydrograph with flows and water
quality that currently support the normal life stages of the pearl
darter; and the species' prey sources.
Special management considerations and protections that may be
required to address threats within the unit include minimizing surface
water withdrawals or other actions that alter stream flow; reducing
excessive use of manures, fertilizers, and pesticides near stream
channels; improving treatment of wastewater discharged from permitted
facilities; and implementing practices that protect or restore riparian
buffer areas along stream corridors.
Unit 2: Strong River Unit
Unit 2 consists of 30 mi (49 km) of unoccupied habitat in the
Strong River channel from its confluence with the Pearl River, upstream
to U.S. Highway 49, in Simpson County, Mississippi. The riparian lands
in this unit are generally privately owned agricultural or
silvicultural lands, with a short channel reach (0.39 mi (0.63 km))
owned and operated by the Simpson County Park Commission (see table
above). Unit 2 is not within the geographic range occupied by the pearl
darter at the time of listing, but this area was historically known to
provide spawning and recruitment habitat prior to the species'
extirpation from the Pearl River drainage. This unit currently provides
all physical or biological features essential to the conservation of
the pearl darter, including a stable channel with bottom substrates of
sand, silt, loose clay and gravel, bedrock, fine and coarse particles
of organic matter, and woody debris; a natural hydrograph
[[Page 36687]]
with flows and water quality to support the normal life stages of the
pearl darter and the species' prey sources. Further evidence of the
presence of physical or biological features within this reach of the
Strong River is demonstrated by recent increases in other benthic fish
species (e.g., frecklebelly madtom) that declined concurrent with the
extirpation of the pearl darter (Piller et al. 2004, pp. 1007-1011;
Wagner et al. 2018, pp. 4-5).
As described above, the best available information demonstrates
that the pearl darter disappeared from the entire Pearl River and all
known tributary segments virtually simultaneously. Therefore, it is
possible that a series of back-to-back stochastic events or a single
catastrophic event could significantly reduce or extirpate the
surviving pearl darter population within the Pascagoula River drainage.
Due to the species' lack of redundancy, its naturally small numbers
within the Pascagoula River drainage, and its short life span, the
pearl darter is more vulnerable to existing and future threats,
including habitat degradation and loss, catastrophic weather events,
and introduced species. This unit would serve to protect habitat needed
to reestablish a wild population within the historical range in the
Pearl River drainage and recover the species. Re-establishing a
population of the pearl darter within Unit 2 would also increase the
species' redundancy and restore ecological representation, better
ensuring its survival if a stochastic event were to impact the
Pascagoula River population. This unit is essential for the
conservation of the species because it will provide habitat for range
expansion in known historical habitat that is necessary to increase
viability of the pearl darter by increasing its resiliency, redundancy,
and representation.
The need for reintroduction of the pearl darter into the Pearl
River drainage has been recognized and is being discussed by our
conservation partners. The landowner of the type locality (location
where the species was described) within the Strong River unit has been
working with the Service and MDWFP to regularly monitor for the
presence of the pearl darter and other benthic fish, and expressed
interest in reestablishing the species on the property. Methods and
facilities for propagating the species have been developed, tested, and
proven at a Service fish hatchery. Accordingly, we are reasonably
certain this unit will contribute to the conservation of the pearl
darter.
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,
(2) Can be implemented consistent with the scope of the Federal
agency's legal authority and jurisdiction,
(3) Are economically and technologically feasible, and
(4) Would, in the Service Director's opinion, avoid the likelihood
of jeopardizing the continued existence of the listed species and/or
avoid the likelihood of destroying or adversely modifying critical
habitat.
Reasonable and prudent alternatives can vary from slight project
modifications to extensive redesign or relocation of the project. Costs
associated with implementing a reasonable and prudent alternative are
similarly variable.
Regulations at 50 CFR 402.16 set forth requirements for Federal
agencies to reinitiate formal consultation on previously reviewed
actions. These requirements apply when the Federal agency has retained
discretionary involvement or control over the action (or the agency's
discretionary involvement or control is authorized by law) and,
subsequent to the previous consultation, we have listed a new species
or designated critical habitat that may be affected by the Federal
action, or the action has been modified in a manner that affects the
species or critical habitat in a way not considered in the previous
consultation. In such situations, Federal agencies sometimes may need
to request reinitiation of consultation with us, but the regulations
also specify some exceptions to the requirement to reinitiate
consultation on specific land management plans after subsequently
listing a new species or designating new critical habitat. See the
regulations for a description of those exceptions.
Application of the ``Destruction or Adverse Modification'' Standard
The key factor related to the destruction or adverse modification
determination is whether implementation of the proposed Federal action
directly or indirectly alters the designated critical habitat in a way
that appreciably diminishes the value of the critical habitat as a
whole for the conservation of the listed species. As
[[Page 36688]]
discussed above, the role of critical habitat is to support physical or
biological features essential to the conservation of a listed species
and provide for the conservation of the species.
Section 4(b)(8) of the Act requires us to briefly evaluate and
describe, in any proposed or final regulation that designates critical
habitat, activities involving a Federal action that may violate section
7(a)(2) of the Act by destroying or adversely modifying such habitat,
or that may be affected by such designation.
Activities that the Services may, during a consultation under
section 7(a)(2) of the Act, find are likely to destroy or adversely
modify critical habitat include, but are not limited to:
(1) Actions that would block or disconnect stream and river
channels. Such activities could include, but are not limited to, the
construction of dams or weirs, channelization, and mining. These
activities could result in destruction of habitat, block movements
between seasonal habitats, fragment and isolate subpopulations within
critical habitat units, and/or affect flows within or into critical
habitat.
(2) Actions that would affect channel substrates and stability.
Such activities include channelization, impoundment, mining, 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
pearl darter habitat.
(3) Actions that would reduce flow levels or alter flow regimes.
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 darter and its
prey.
(4) Actions that would affect water chemistry or temperature or
introduce pollutants and nutrients at levels above State of Mississippi
criteria. Such activities include, but are not limited to, the release
of chemical pollutants, 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
quality conditions to levels that are beyond the tolerances of the
pearl darter or its prey species.
(5) Actions that would result in the introduction, spread, or
augmentation of nonnative aquatic species in occupied stream segments,
or in stream segments that are hydrologically connected to occupied
stream segments, even if those segments are occasionally intermittent,
or the introduction of other species that compete with or prey on the
pearl darter. Possible actions could include, but are not limited to,
stocking of nonnative fishes or other related actions. These activities
can also introduce parasites or disease, or affect the growth,
reproduction, and survival of the pearl darter.
Exemptions
Application of Section 4(a)(3) of the Act
Section 4(a)(3)(B)(i) of the Act (16 U.S.C. 1533(a)(3)(B)(i))
provides that the Secretary shall not designate as critical habitat any
lands or other geographic areas owned or controlled by the Department
of Defense (DoD), or designated for its use, that are subject to an
integrated natural resources management plan (INRMP) prepared under
section 101 of the Sikes Act (16 U.S.C. 670a), if the Secretary
determines in writing that such plan provides a benefit to the species
for which critical habitat is proposed for designation. There are no
DoD lands with a completed INRMP within the proposed critical habitat
designation.
Consideration of Impacts Under Section 4(b)(2) of the Act
Section 4(b)(2) of the Act states that the Secretary shall
designate and make revisions to critical habitat on the basis of the
best available scientific data after taking into consideration the
economic impact, national security impact, and any other relevant
impact of specifying any particular area as critical habitat. The
Secretary may exclude an area from critical habitat if they determine
that the benefits of such exclusion outweigh the benefits of specifying
such area as part of the critical habitat, unless they determine, based
on the best scientific data available, that the failure to designate
such area as critical habitat will result in the extinction of the
species. In making the determination to exclude a particular area, the
statute on its face, as well as the legislative history, are clear that
the Secretary has broad discretion regarding which factor(s) to use and
how much weight to give to any factor.
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). The baseline, therefore, represents the costs of
all efforts attributable to the listing of the species under the Act
(i.e., conservation of the species and its habitat incurred regardless
of whether critical habitat is designated). The ``with critical
habitat'' scenario describes the incremental impacts associated
specifically with the designation of critical habitat for the species.
The incremental conservation efforts and associated impacts would not
be expected without the designation of critical habitat for the
species. In other words, the incremental costs are those attributable
solely to the designation of critical habitat, above and beyond the
baseline costs. These are the costs we use when evaluating the benefits
of inclusion and exclusion of particular areas from the final
designation of critical habitat should we choose to conduct a
discretionary 4(b)(2) exclusion analysis.
For this particular designation, we developed an incremental
effects memorandum (IEM) considering the probable incremental economic
impacts that may result from this proposed designation of critical
habitat. The information contained in our IEM was then used to develop
a screening analysis of the probable effects of the designation of
critical habitat for the
[[Page 36689]]
pearl darter (IEc 2020, entire). We began by conducting a screening
analysis of the proposed designation of critical habitat in order to
focus our analysis on the key factors that are likely to result in
incremental economic impacts. The purpose of the screening analysis is
to filter out particular geographic areas of critical habitat that are
already subject to such protections and are, therefore, unlikely to
incur incremental economic impacts. In particular, the screening
analysis considers baseline costs (i.e., absent critical habitat
designation) and includes probable economic impacts where land and
water use may be subject to conservation plans, land management plans,
best management practices, or regulations that protect the habitat area
as a result of the Federal listing status of the species. Ultimately,
the screening analysis allows us to focus our analysis on evaluating
the specific areas or sectors that may incur probable incremental
economic impacts as a result of the designation. 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
are what we consider our draft economic analysis (DEA) of the proposed
critical habitat designation for the pearl darter; our DEA is
summarized in the narrative below.
Executive Orders (E.O.s) 12866 and 13563 direct Federal agencies to
assess the costs and benefits of available regulatory alternatives in
quantitative (to the extent feasible) and qualitative terms. Consistent
with the E.O. regulatory analysis requirements, our effects analysis
under the Act may take into consideration impacts to both directly and
indirectly affected entities, where practicable and reasonable. If
sufficient data are available, we assess to the extent practicable the
probable impacts to both directly and indirectly affected entities. As
part of our screening analysis, we considered the types of economic
activities that are likely to occur within the areas likely affected by
the critical habitat designation. In our evaluation of the probable
incremental economic impacts that may result from the proposed
designation of critical habitat for the pearl darter, first we
identified, in the IEM dated April 21, 2020, probable incremental
economic impacts associated with the following categories of
activities: (1) Roadway and bridge construction and repair; (2)
commercial or residential development; (3) dredging; (4) groundwater
pumping; (5) instream dams and diversions; (6) storage, distribution,
or discharge of chemical pollutants; (7) oil and gas; (8) utilities;
(9) water quantity and supply; and (10) water quality. We considered
each industry or category individually. Additionally, we considered
whether their activities have any Federal involvement. Critical habitat
designation generally will not affect activities that do not have any
Federal involvement; under the Act, designation of critical habitat
only affects activities conducted, funded, permitted, or authorized by
Federal agencies. In areas where the pearl darter is present, Federal
agencies already are 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 we finalize this proposed critical habitat
designation, consultations to avoid the destruction or adverse
modification of critical habitat would be incorporated into the
existing consultation process.
In our IEM, we attempted to clarify the distinction between the
effects that will result from the species being listed and those
attributable to the critical habitat designation (i.e., difference
between the jeopardy and adverse modification standards) for the pearl
darter's critical habitat. The following specific circumstances in this
case help to inform our evaluation: (1) The essential physical or
biological features identified for critical habitat are the same
features essential for the life requisites of the species, and (2) any
actions that would result in sufficient harm or harassment to
constitute jeopardy to the pearl darter would also likely adversely
affect the essential physical or biological features of critical
habitat. The IEM outlines our rationale concerning this limited
distinction between baseline conservation efforts and incremental
impacts of the designation of critical habitat for this species. This
evaluation of the incremental effects has been used as the basis to
evaluate the probable incremental economic impacts of this proposed
designation of critical habitat.
The proposed critical habitat designation for the pearl darter
totals approximately 517 mi (832 km) of river and stream channels in
two units. Riparian lands bordering the proposed critical habitat are
under private (78 percent), county (0.1 percent), State (15 percent),
and Federal (9 percent) ownership. A small portion (1.3 percent) has
shared State and Federal ownership. Unit 1 is occupied by the pearl
darter and represents 94 percent of the proposed critical habitat.
Within this occupied unit, any actions that may affect the species or
its habitat would also affect designated critical habitat, and 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 pearl darter. Therefore, only administrative costs are expected
in actions affecting this unit. While this additional analysis will
require time and resources by both the Federal action agency and the
Service, it is believed that, in most circumstances, these costs,
because they are predominantly administrative in nature, would not be
significant.
Unit 2 is currently unoccupied by the species but is essential for
the conservation of the species. This unit totals 30 mi (49 km) and
comprises 6 percent of the total proposed critical habitat designation.
In this unoccupied area, any conservation efforts or associated
probable impacts would be considered incremental effects attributed to
the critical habitat designation. However, two threatened species, Gulf
sturgeon (listed as Atlantic sturgeon (Gulf subspecies), Acipenser
oxyrinchus desotoi) and ringed map turtle (Graptemys oculifera),
currently occupy this unit, and conservation efforts to protect these
species would also protect pearl darter critical habitat.
The DEA finds that the total annual incremental costs of critical
habitat designation for the pearl darter are not anticipated to reach
$100 million in any given year based on the anticipated annual number
of consultations and associated administrative costs, which are not
expected to exceed $710,000 in any year.
In Unit 1, which constitutes 94 percent of the proposed critical
habitat area, the activities that may affect the critical habitat are
already subject to section 7 consultation due to the presence of pearl
darter. We determined that the project modification recommendations
made to avoid jeopardy to the pearl darter would also result in the
avoidance of adverse modification. Thus, for projects and activities
occurring in Unit 1, no additional project modification recommendations
are likely to result from the proposed critical habitat rule and costs
are limited to additional administrative effort.
A relatively small fraction (6 percent) of the proposed critical
habitat designation is in Unit 2, which is not currently occupied by
the species. In these areas, activities that may affect the
[[Page 36690]]
critical habitat for the pearl darter are also already subject to
section 7 consultation due to the presence of other listed species with
similar habitat requirements and designated critical habitat.
Additionally, activities that may affect pearl darter critical habitat
in Unit 2 generally implement project modification recommendations from
a standardized set provided in the Mississippi Standard Local
Operations Procedures for Endangered Species (SLOPES) agreement.
Through this agreement, enacted in June 2017, the U.S. Army Corps of
Engineers (COE) and the Service have established routine procedures for
jointly implementing section 7 requirements for all projects that
require COE permits. The agreement requires the COE to consult species-
specific SLOPES documents to determine if a project is expected to
adversely affect the species or its habitat. As part of the agreement,
species-specific avoidance and minimization measures have been
established for COE projects. The measures described for the pearl
darter are similar to the measures described for overlapping species
and because the COE addresses permitting for projects with water
impacts, all projects with a Federal nexus in the proposed pearl darter
critical habitat are likely to follow the Mississippi SLOPES procedures
and recommendations. Therefore, even absent critical habitat
designation, these activities are likely to avoid adverse effects on
the habitat.
We are soliciting data and comments from the public on the DEA
discussed above, as well as all aspects of this proposed rule and our
required determinations. During the development of a final designation,
we will consider the information presented in the DEA and any
additional information on economic impacts we receive during the public
comment period to determine whether any specific areas should be
excluded from the final critical habitat designation under authority of
section 4(b)(2) and our implementing regulations at 50 CFR 17.90. If we
receive credible information regarding the existence of a meaningful
economic impact or other relevant impact supporting a benefit of
exclusion, we will conduct an exclusion analysis for the relevant area
or areas. We may also otherwise decide to exercise the discretion to
evaluate any particular areas for possible exclusion. In addition, if
we do conduct an exclusion analysis and we have received any
information from experts in, or sources with firsthand knowledge about,
impacts of the designation that are outside the scope of the Service's
expertise, for purposes of the exclusion analysis we will assign
weights to those impacts consistent with the information from experts
in, or sources with firsthand knowledge about, those impacts, unless we
have rebutting information. We may exclude an area from critical
habitat if we determine that the benefits of excluding the area
outweigh the benefits of including the area, provided the exclusion
will not result in the extinction of this species.
Consideration of National Security Impacts
Section 4(a)(3)(B)(i) of the Act may not cover all DoD lands or
areas that pose potential national-security concerns (e.g., a DoD
installation that is in the process of revising its INRMP for a newly
listed species or a species previously not covered). If a particular
area is not covered under section 4(a)(3)(B)(i), national-security or
homeland-security concerns are not a factor in the process of
determining what areas meet the definition of ``critical habitat.''
Nevertheless, when designating critical habitat under section 4(b)(2),
the Service must consider impacts on national security, including
homeland security, on lands or areas not covered by section
4(a)(3)(B)(i). Accordingly, we will always consider for exclusion from
the designation areas for which DoD, Department of Homeland Security
(DHS), or another Federal agency has requested exclusion based on an
assertion of national-security or homeland-security concerns.
We cannot, however, automatically exclude requested areas. When
DoD, DHS, or another Federal agency requests exclusion from critical
habitat on the basis of national-security or homeland-security impacts,
it must provide credible 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 the agency provides a reasonably specific justification, we will
defer to the expert judgment of DoD, DHS, or another Federal agency as
to: (1) Whether activities on its lands or waters, or its activities on
other lands or waters, have national-security or homeland-security
implications; (2) the importance of those implications; and (3) the
degree to which the cited implications would be adversely affected in
the absence of an exclusion. In that circumstance, in conducting a
discretionary section 4(b)(2) exclusion analysis, we will give great
weight to national-security and homeland-security concerns in analyzing
the benefits of exclusion.
In preparing this proposal, we determined that the lands within the
proposed designation of critical habitat for the pearl darter are not
owned, managed, or used by the DoD or DHS, and, therefore, we
anticipate no impact on national security or homeland security.
However, during the development of a final designation we will consider
any additional information received through the public comment period
on the impacts of the proposed designation on national security or
homeland security to determine whether to undertake the discretionary
analysis to determine whether to exclude any specific areas from the
final critical habitat designation under authority of section 4(b)(2)
and our implementing regulations at 50 CFR 17.90.
Consideration of Other Relevant Impacts
Under section 4(b)(2) of the Act, we consider any other relevant
impacts, in addition to economic impacts and impacts on national
security discussed above. We consider a number of factors including
whether there are permitted conservation plans covering the species in
the area such as HCPs, safe harbor agreements (SHAs), or candidate
conservation agreements with assurances (CCAAs), or whether there are
non-permitted conservation agreements and partnerships that would be
encouraged by designation of, or exclusion from, critical habitat. In
addition, we look at the existence of Tribal conservation plans and
partnerships and consider the government-to-government relationship of
the United States with Tribal entities. We also consider any social
impacts that might occur because of the designation.
In preparing this proposal, we determined that there are currently
no HCPs or other management plans for pearl darter, and the proposed
designation does not include any Tribal lands or trust resources. We
anticipate no impact on Tribal lands, partnerships,
[[Page 36691]]
or HCPs from this proposed critical habitat designation. Additionally,
as described above, we are not considering excluding any particular
areas on the basis of impacts to national security or economic impacts.
During the development of a final designation, we will consider all
information currently available or received during the public comment
period. If we receive credible information regarding the existence of a
meaningful impact supporting a benefit of excluding any area, we will
undertake an exclusion analysis and determine whether those areas
should be excluded from the final critical habitat designation under
authority of section 4(b)(2) and our implementing regulations at 50 CFR
17.90. We may also exercise the discretion to undertake exclusion
analyses for other areas as well.
Required Determinations
Clarity of the Rule
We are required by Executive Orders 12866 and 12988 and by the
Presidential Memorandum of June 1, 1998, to write all rules in plain
language. This means that each rule we publish must:
(1) Be logically organized;
(2) Use the active voice to address readers directly;
(3) Use clear language rather than jargon;
(4) Be divided into short sections and sentences; and
(5) Use lists and tables wherever possible.
If you feel that we have not met these requirements, send us
comments by one of the methods listed in ADDRESSES. To better help us
revise the rule, your comments should be as specific as possible. For
example, you should tell us the numbers of the sections or paragraphs
that are unclearly written, which sections or sentences are too long,
the sections where you feel lists or tables would be useful, etc.
Regulatory Planning and Review (Executive Orders 12866 and 13563)
Executive Order 12866 provides that the Office of Information and
Regulatory Affairs (OIRA) in the Office of Management and Budget will
review all significant rules. OIRA has determined that this rule is not
significant.
Executive Order 13563 reaffirms the principles of E.O. 12866 while
calling for improvements in the nation's regulatory system to promote
predictability, to reduce uncertainty, and to use the best, most
innovative, and least burdensome tools for achieving regulatory ends.
The executive order directs agencies to consider regulatory approaches
that reduce burdens and maintain flexibility and freedom of choice for
the public where these approaches are relevant, feasible, and
consistent with regulatory objectives. E.O. 13563 emphasizes further
that regulations must be based on the best available science and that
the rulemaking process must allow for public participation and an open
exchange of ideas. We have developed this proposed rule in a manner
consistent with these requirements.
Regulatory Flexibility Act (5 U.S.C. 601 et seq.)
Under the Regulatory Flexibility Act (RFA; 5 U.S.C. 601 et seq.),
as amended by the Small Business Regulatory Enforcement Fairness Act of
1996 (SBREFA; 5 U.S.C. 801 et seq.), whenever an agency is required to
publish a notice of rulemaking for any proposed or final rule, it must
prepare and make available for public comment a regulatory flexibility
analysis that describes the effects of the rule on small entities
(i.e., small businesses, small organizations, and small government
jurisdictions). However, no regulatory flexibility analysis is required
if the head of the agency certifies the rule will not have a
significant economic impact on a substantial number of small entities.
The SBREFA amended the RFA to require Federal agencies to provide a
certification statement of the factual basis for certifying that the
rule will not have a significant economic impact on a substantial
number of small entities.
According to the Small Business Administration, small entities
include small organizations such as independent nonprofit
organizations; small governmental jurisdictions, including school
boards and city and town governments that serve fewer than 50,000
residents; and small businesses (13 CFR 121.201). Small businesses
include manufacturing and mining concerns with fewer than 500
employees, wholesale trade entities with fewer than 100 employees,
retail and service businesses with less than $5 million in annual
sales, general and heavy construction businesses with less than $27.5
million in annual business, special trade contractors doing less than
$11.5 million in annual business, and agricultural businesses with
annual sales less than $750,000. To determine if potential economic
impacts to these small entities are significant, we considered the
types of activities that might trigger regulatory impacts under this
designation as well as types of project modifications that may result.
In general, the term ``significant economic impact'' is meant to apply
to a typical small business firm's business operations.
Under the RFA, as amended, and as understood in light of recent
court decisions, Federal agencies are required to evaluate the
potential incremental impacts of rulemaking on those entities directly
regulated by the rulemaking itself; in other words, the RFA does not
require agencies to evaluate the potential impacts to indirectly
regulated entities. The regulatory mechanism through which critical
habitat protections are realized is section 7 of the Act, which
requires Federal agencies, in consultation with the Service, to ensure
that any action authorized, funded, or carried out by the agency is not
likely to destroy or adversely modify critical habitat. Therefore,
under section 7, only Federal action agencies are directly subject to
the specific regulatory requirement (avoiding destruction and adverse
modification) imposed by critical habitat designation. Consequently, it
is our position that only Federal action agencies would be directly
regulated if we adopt the proposed critical habitat designation. There
is no requirement under the RFA to evaluate the potential impacts to
entities not directly regulated. Moreover, Federal agencies are not
small entities. Therefore, because no small entities would be directly
regulated by this rulemaking, the Service certifies that, if made final
as proposed, the proposed critical habitat designation will not have a
significant economic impact on a substantial number of small entities.
In summary, we have considered whether the proposed designation
would result in a significant economic impact on a substantial number
of small entities. For the above reasons and based on currently
available information, we certify that, if made final, the proposed
critical habitat designation will not have a significant economic
impact on a substantial number of small business entities. Therefore,
an initial regulatory flexibility analysis is not required.
Energy Supply, Distribution, or Use--Executive Order 13211
Executive Order 13211 (Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use) requires
agencies to prepare Statements of Energy Effects when undertaking
certain actions. In our economic analysis, we did not find that this
proposed critical habitat designation would significantly affect energy
supplies, distribution, or use.
[[Page 36692]]
Therefore, this action is not a significant energy action, and no
Statement of Energy Effects is required.
Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.)
In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501
et seq.), we make the following finding:
(1) This proposed rule would not produce a Federal mandate. In
general, a Federal mandate is a provision in legislation, statute, or
regulation that would impose an enforceable duty upon State, local, or
Tribal governments, or the private sector, and includes both ``Federal
intergovernmental mandates'' and ``Federal private sector mandates.''
These terms are defined in 2 U.S.C. 658(5)-(7). ``Federal
intergovernmental mandate'' includes a regulation that ``would impose
an enforceable duty upon State, local, or Tribal governments'' with two
exceptions. It excludes ``a condition of Federal assistance.'' It also
excludes ``a duty arising from participation in a voluntary Federal
program,'' unless the regulation ``relates to a then-existing Federal
program under which $500,000,000 or more is provided annually to State,
local, and Tribal governments under entitlement authority,'' if the
provision would ``increase the stringency of conditions of assistance''
or ``place caps upon, or otherwise decrease, the Federal Government's
responsibility to provide funding,'' and the State, local, or Tribal
governments ``lack authority'' to adjust accordingly. At the time of
enactment, these entitlement programs were: Medicaid; Aid to Families
with Dependent Children work programs; Child Nutrition; Food Stamps;
Social Services Block Grants; Vocational Rehabilitation State Grants;
Foster Care, Adoption Assistance, and Independent Living; Family
Support Welfare Services; and Child Support Enforcement. ``Federal
private sector mandate'' includes a regulation that ``would impose an
enforceable duty upon the private sector, except (i) a condition of
Federal assistance or (ii) a duty arising from participation in a
voluntary Federal program.''
The designation of critical habitat does not impose a legally
binding duty on non-Federal Government entities or private parties.
Under the Act, the only regulatory effect is that Federal agencies must
ensure that their actions do not destroy or adversely modify critical
habitat under section 7. While non-Federal entities that receive
Federal funding, assistance, or permits, or that otherwise require
approval or authorization from a Federal agency for an action, may be
indirectly impacted by the designation of critical habitat, the legally
binding duty to avoid destruction or adverse modification of critical
habitat rests squarely on the Federal agency. Furthermore, to the
extent that non-Federal entities are indirectly impacted because they
receive Federal assistance or participate in a voluntary Federal aid
program, the Unfunded Mandates Reform Act would not apply, nor would
critical habitat shift the costs of the large entitlement programs
listed above onto State governments.
(2) We do not believe that this rule would significantly or
uniquely affect small governments because it will not produce a Federal
mandate of $100 million or greater in any year, that is, it is not a
``significant regulatory action'' under the Unfunded Mandates Reform
Act. The designation of critical habitat imposes no obligations on
State or local governments and, as such, a Small Government Agency Plan
is not required.
Takings--Executive Order 12630
In accordance with E.O. 12630 (Government Actions and Interference
with Constitutionally Protected Private Property Rights), we have
analyzed the potential takings implications of designating critical
habitat for the pearl darter in a takings implications assessment. The
Act does not authorize the Service to regulate private actions on
private lands or confiscate private property as a result of critical
habitat designation. Designation of critical habitat does not affect
land ownership, or establish any closures, or restrictions on use of or
access to the designated areas. Furthermore, the designation of
critical habitat does not affect landowner actions that do not require
Federal funding or permits, nor does it preclude development of habitat
conservation programs or issuance of incidental take permits to permit
actions that do require Federal funding or permits to go forward.
However, Federal agencies are prohibited from carrying out, funding, or
authorizing actions that would destroy or adversely modify critical
habitat. A takings implications assessment has been completed for the
proposed designation of critical habitat for the pearl darter, and it
concludes that, if adopted, this designation of critical habitat does
not pose significant takings implications for lands within or affected
by the designation.
Federalism--Executive Order 13132
In accordance with E.O. 13132 (Federalism), this proposed rule does
not have significant Federalism effects. A federalism summary impact
statement is not required. In keeping with Department of the Interior
and Department of Commerce policy, we requested information from, and
coordinated development of this proposed critical habitat designation
with, appropriate State resource agencies. From a federalism
perspective, the designation of critical habitat directly affects only
the responsibilities of Federal agencies. The Act imposes no other
duties with respect to critical habitat, either for States and local
governments, or for anyone else. As a result, the proposed rule does
not have substantial direct effects either on the States, or on the
relationship between the national government and the States, or on the
distribution of powers and responsibilities among the various levels of
government. The proposed designation may have some benefit to these
governments because the areas that contain the features essential to
the conservation of the species are more clearly defined, and the
physical or biological features of the habitat necessary for the
conservation of the species are specifically identified. This
information does not alter where and what federally sponsored
activities may occur. However, it may assist State and local
governments in long-range planning because they no longer have to wait
for case-by-case section 7 consultations to occur.
Where State and local governments require approval or authorization
from a Federal agency for actions that may affect critical habitat,
consultation under section 7(a)(2) of the Act would be required. While
non-Federal entities that receive Federal funding, assistance, or
permits, or that otherwise require approval or authorization from a
Federal agency for an action, may be indirectly impacted by the
designation of critical habitat, the legally binding duty to avoid
destruction or adverse modification of critical habitat rests squarely
on the Federal agency.
Civil Justice Reform--Executive Order 12988
In accordance with Executive Order 12988 (Civil Justice Reform),
the Office of the Solicitor has determined that the rule 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 elements of physical or biological
features essential to the conservation of the species. The proposed
areas of
[[Page 36693]]
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.)
It is our position that, outside the jurisdiction of the U.S. Court
of Appeals for the Tenth Circuit, we do not need to prepare
environmental analyses pursuant to the National Environmental Policy
Act (NEPA; 42 U.S.C. 4321 et seq.) in connection with designating
critical habitat under the Act. We published a notice outlining our
reasons for this determination in the Federal Register on October 25,
1983 (48 FR 49244). This position was upheld by the U.S. Court of
Appeals for the Ninth Circuit (Douglas County v. Babbitt, 48 F.3d 1495
(9th Cir. 1995), cert. denied 516 U.S. 1042 (1996)).
Government-to-Government Relationship With Tribes
In accordance with the President's memorandum of April 29, 1994
(Government-to-Government Relations with Native American Tribal
Governments; 59 FR 22951), Executive Order 13175 (Consultation and
Coordination with Indian Tribal Governments), and the Department of the
Interior's manual at 512 DM 2, we readily acknowledge our
responsibility to communicate meaningfully with recognized Federal
Tribes on a government-to-government basis. In accordance with
Secretarial Order 3206 of June 5, 1997 (American Indian Tribal Rights,
Federal-Tribal Trust Responsibilities, and the Endangered Species Act),
we readily acknowledge our responsibilities to work directly with
Tribes in developing programs for healthy ecosystems, to acknowledge
that Tribal lands are not subject to the same controls as Federal
public lands, to remain sensitive to Indian culture, and to make
information available to Tribes. We have determined that no Tribal
lands fall within the boundaries of the proposed critical habitat for
the pearl darter, 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 http://www.regulations.gov and upon request from the
Mississippi Ecological Services Field Office (see FOR FURTHER
INFORMATION CONTACT).
Authors
The primary authors of this proposed rule are the staff members of
the Mississippi Ecological Services Field Office.
Signing Authority
The Director, U.S. Fish and Wildlife Service, approved this
document and authorized the undersigned to sign and submit the document
to the Office of the Federal Register for publication electronically as
an official document of the U.S. Fish and Wildlife Service. Martha
Williams, Principal Deputy Director Exercising the Delegated Authority
of the Director, U.S. Fish and Wildlife Service, approved this document
on June 29, 2021, for publication.
List of Subjects in 50 CFR Part 17
Endangered and threatened species, Exports, Imports, Reporting and
recordkeeping requirements, Transportation.
Proposed Regulation Promulgation
Accordingly, we propose to amend part 17, subchapter B of chapter
I, title 50 of the Code of Federal Regulations, as set forth below:
PART 17--ENDANGERED AND THREATENED WILDLIFE AND PLANTS
0
1. The authority citation for part 17 continues to read as follows:
Authority: 16 U.S.C. 1361-1407; 1531-1544; and 4201-4245, unless
otherwise noted.
0
2. Amend Sec. 17.11(h) by revising the entry for ``Darter, pearl''
under Fishes in the List of Endangered and Threatened Wildlife to read
as follows:
Sec. 17.11 Endangered and threatened wildlife.
* * * * *
(h) * * *
----------------------------------------------------------------------------------------------------------------
Listing citations and
Common name Scientific name Where listed Status applicable rules
----------------------------------------------------------------------------------------------------------------
* * * * * * *
Fishes
* * * * * * *
Darter, pearl.................. Percina aurora.... Wherever found.... T 82 FR 43885, 9/20/
2017; 50 CFR
17.95(e).\CH\
* * * * * * *
----------------------------------------------------------------------------------------------------------------
0
3. Amend Sec. 17.95(e) by adding an entry for ``Pearl Darter (Percina
aurora)'' following the entry for ``Niangua Darter (Etheostoma
nianguae)'' to read as set forth below:
Sec. 17.95 Critical habitat--fish and wildlife.
* * * * *
(e) Fishes.
* * * * *
Pearl Darter (Percina aurora)
(1) Critical habitat units are depicted for Clarke, Covington,
Forrest, George, Greene, Jackson, Jones, Lauderdale, Newton, Perry,
Simpson, Stone, and Wayne Counties, Mississippi, on the maps in this
entry.
(2) Within these areas, the physical or biological features
essential to the conservation of the pearl darter consist of the
following components:
(i) Unobstructed and stable stream and river channels with:
(A) Connected sequences of channel runs and bends associated with
pools and scour holes, and
(B) Bottom substrates consisting of fine and coarse sand, gravel,
bedrock, silt, clay, organic matter, or woody debris.
(ii) A natural flow regime necessary to maintain instream habitats
and their connectivity.
[[Page 36694]]
(iii) Water quality conditions, including cool to warm water
temperatures (8 to 30 [deg]C (46.4 to 86.0 [deg]F)), high dissolved
oxygen (5.8 to 9.3 mg/l), slightly acidic to basic pH (6.3 to 7.6), and
low levels of pollutants and nutrients meeting the current State of
Mississippi criteria, as necessary to maintain natural physiological
processes for normal behavior, growth, and viability of all life stages
of the species.
(iv) Presence of a prey base of small aquatic macroinvertebrates,
including midges, crustaceans, mayflies, caddisflies, and zooplankton.
(3) Critical habitat includes only the stream channels within the
ordinary high water line, and 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
the effective date of the final rule.
(4) Data layers defining map units were created using U.S.
Geological Survey's National Hydrography Dataset flowline data, on a
base map of State and County boundaries from the U.S. Department of
Agriculture's Natural Resources Conservation Service. Critical habitat
units were mapped using the Geographic Coordinate System North American
1983 coordinates. The maps in this entry, as modified by any
accompanying regulatory text, establish the boundaries of the critical
habitat designation. The coordinates or plot points or both on which
each map is based are available to the public at the Service's internet
site at http://www.fws.gov/mississippiES/, at http://www.regulations.gov under Docket No. FWS-R4-ES-2020-0062, and at the
field office responsible for this designation. You may obtain field
office location information by contacting one of the Service regional
offices, the addresses of which are listed at 50 CFR 2.2.
(5) Note: Index map follows:
BILLING CODE 4333-15-P
[[Page 36695]]
[GRAPHIC] [TIFF OMITTED] TP13JY21.000
(6) Unit 1: Pascagoula River drainage, Clarke, Covington, Forrest,
George, Greene, Lauderdale, Jackson, Jones, Newton, Perry, Stone, and
Wayne Counties, Mississippi.
(i) Unit 1 consists of 487 miles (mi) (783 kilometers (km)) of
connected river and stream channels within the Pascagoula River
drainage, including:
(A) The Pascagoula River from its confluence with the West
Pascagoula River in Jackson County, upstream 63 mi (102 km) to the
confluence of the Leaf and Chickasawhay Rivers in George County;
(B) The Big Black/Black Creek from its confluence with the
Pascagoula River in Jackson County, upstream 80 mi (129 km) to U.S.
Highway 49 Bridge in Forrest County;
(C) The Chickasawhay River from its confluence with the Leaf River
just north of Enterprise, Clarke County, upstream 160 mi (257 km) to
the confluence of Okatibbee Creek and Chunky River in Clarke County;
(D) The Chunky River from its confluence with Okatibbee Creek in
Clarke County, upstream 21 mi (34 km) to second Highway 80 Crossing in
Newton County;
(E) The Leaf River from its confluence with the Chickasawhay River
in George County, upstream 119 mi (192 km) to the bridge crossing at
U.S. Highway 84 in Covington County;
[[Page 36696]]
(F) The Bouie River from its confluence with the Leaf River,
upstream 15 mi (24 km) to the confluence of Okatoma Creek, in Forrest
County; and
(G) The Okatoma Creek from its confluence with the Bouie River in
Forrest County, upstream 28 mi (45 km) to the bridge crossing at U.S.
Highway 84 in Covington County.
(ii) The channel borders (and therefore the stream channel bottoms)
in Unit 1 are generally privately owned agricultural or silvicultural
lands, with the exception of 76 mi (122 km) of the Pascagoula River
channel border owned and managed by the Mississippi Department of
Wildlife, Fisheries, and Parks, and 45 mi (72 km) owned by the U.S.
Forest Service.
(iii) Map of Unit 1 follows:
[GRAPHIC] [TIFF OMITTED] TP13JY21.001
(7) Unit 2: Strong River, Simpson County, Mississippi.
(i) Unit 2 consists of approximately 30 mi (49 km) of the Strong
River channel from its confluence with the Pearl River, upstream to
U.S. Highway 49 in
[[Page 36697]]
Simpson County. The channel borders (and therefore the stream channel
bottoms) in this unit are generally privately owned agricultural or
silvicultural lands, with the exception of a short channel reach (0.39
mi (0.63 km)) owned and managed by the Simpson County Park Commission.
(ii) Map of Unit 2 follows:
[GRAPHIC] [TIFF OMITTED] TP13JY21.002
* * * * *
Madonna Baucum,
Regulations and Policy Chief, Division of Policy, Economics, Risk
Management, and Analytics, Joint Administrative Operations, U.S. Fish
and Wildlife Service.
[FR Doc. 2021-14272 Filed 7-12-21; 8:45 am]
BILLING CODE 4333-15-C