[Federal Register Volume 75, Number 120 (Wednesday, June 23, 2010)]
[Proposed Rules]
[Pages 35751-35763]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-15252]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-R3-ES-2010-0042]
[MO-92210-0-0009-B4]
RIN 1018-AW90


Endangered and Threatened Wildlife and Plants; Designation of 
Critical Habitat for Tumbling Creek Cavesnail

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 Tumbling Creek cavesnail (Antrobia 
culveri) under the Endangered Species Act of 1973, as amended (Act). We 
propose to designate as critical habitat approximately 25 acres (10.12 
hectares) in one unit. The proposed critical habitat encompasses 
Tumbling Creek and associated springs, located near Protem, in Taney 
County, Missouri.

DATES: We will consider comments from all interested parties until 
August 23, 2010. We must receive requests for public hearings, in 
writing, at the address shown in the FOR FURTHER INFORMATION CONTACT 
section by August 9, 2010. Please note that if you are using the 
Federal eRulemaking Portal (see ADDRESSES section, below) the deadline 
for submitting an electronic comment is 11:59 p.m. Eastern Daylight 
Savings Time on August 23, 2010.

ADDRESSES: You may submit comments by one of the following methods:
     Federal eRulemaking Portal: http://www.regulations.gov. In 
the box that reads ``Enter Keyword or ID,'' enter the Docket number for 
this finding, which is FWS-R3-ES-2010-0042. Check the box that reads 
``Open for Comment/Submission,'' and then click the Search button. You 
should then see an icon that reads ``Submit a Comment.'' Please ensure 
that you have found the correct rulemaking before submitting your 
comment.
     U.S. mail or hand-delivery: Public Comments Processing, 
Attn: FWS-R3-ES-2010-0042; Division of Policy and Directives 
Management; U.S. Fish and Wildlife Service; 4401 N. Fairfax Drive, 
Suite 222; Arlington, VA 22203.
    We will not accept e-mail or faxes. We will post all comments on 
http://www.regulations.gov. This generally means that we will post any 
personal information you provide us (see the Public Comments section 
below for more information).

FOR FURTHER INFORMATION CONTACT: Charles M. Scott, Field Supervisor, 
Columbia Fish and Wildlife Office, U.S. Fish and Wildlife Service, 101 
Park DeVille Dr., Suite A, Columbia, MO 65203; telephone: 573-234-2132; 
facsimile: 573-234-2181. If you use a telecommunications device for the 
deaf (TDD), call the Federal Information Relay Service (FIRS) at 800-
877-8339.

SUPPLEMENTARY INFORMATION:

Public Comments

    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 suggestions from governmental agencies, the scientific 
community, industry, or any other interested party concerning this 
proposed rule. We particularly seek comments concerning:
    (1) Population survey results for the Tumbling Creek cavesnail, as 
well as any studies that may show distribution, status, population 
size, or population trends, as they may pertain to critical habitat for 
the species.
    (2) Pertinent aspects of life history, ecology, and habitat use of 
the Tumbling Creek cavesnail.
    (3) Our ``prudency'' evaluation for the designation of critical 
habitat for Tumbling Creek cavesnail.
    (4) The reasons why we should or should not designate habitat as 
``critical

[[Page 35752]]

habitat'' under section 4 of the Endangered Species Act of 1973, as 
amended (Act) (16 U.S.C. 1531 et seq.), including whether there are 
threats to the species from human activity, the degree of which can be 
expected to increase due to the designation, and whether the benefit of 
designation would be outweighed by threats to the species caused by the 
designation.
    (5) Comments or information that may assist us in identifying or 
clarifying the physical and biological features essential to the 
conservation of the species.
    (6) Specific information on:
     The amount and distribution of Tumbling Creek cavesnail 
habitat,
     What areas occupied at the time of listing contain 
physical and biological features essential to the conservation of the 
species,
     What special management considerations or protections 
these features may require, and
     What areas not occupied at the time of listing are 
essential for the conservation of the species and why.
    (7) Land-use designations and current or planned activities in the 
subject areas and their possible impacts on proposed critical habitat.
    (8) Any probable economic, national security, or other relevant 
impacts of designating any area that may be included in the final 
designation. We are particularly interested in any impacts on small 
entities (for example, small businesses or small governments) or 
families, and the benefits of including or excluding areas that exhibit 
these impacts.
    (9) Whether any specific areas we are proposing as critical habitat 
should be excluded under section 4(b)(2) of the Act, and whether the 
benefits of potentially excluding any particular area outweigh the 
benefits of including that area under section 4(b)(2) of the Act.
    (10) Information on any quantifiable economic costs or benefits of 
the proposed designation of critical habitat.
    (11) Information on the projected and reasonably likely impacts of 
climate change on the Tumbling Creek cavesnail, and any special 
management needs or protections that may be needed in the critical 
habitat area we are proposing.
    (12) 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 concern and 
comments.
    You may submit your comments and materials concerning this proposed 
rule by one of the methods listed in the ADDRESSES section. We will not 
accept comments sent by e-mail or fax or to an address not listed in 
the ADDRESSES section.
    We will post your entire comment--including your personal 
identifying information--on http://www.regulations.gov. If your written 
comments provide 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.
    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, or by 
appointment, during normal business hours at the Columbia Ecological 
Services Office (see FOR FURTHER INFORMATION CONTACT).

Background

    It is our intent to discuss only those topics directly relevant to 
the designation of critical habitat in this proposed rule. For more 
information on the Tumbling Creek cavesnail, refer to the final listing 
rule published in the Federal Register on August 14, 2002 (67 FR 
52879), and the Tumbling Creek Cavesnail Recovery Plan (published in 
the Federal Register on September 22, 2003 (68 FR 55060)), available on 
the Internet at http://ecos.fws.gov/docs/recovery_plans/2003/030922a.pdf.
    The Tumbling Creek cavesnail is a critically imperiled aquatic 
snail, endemic to a single cave stream and associated springs in Taney 
County, southwestern Missouri. The species is known only from Tumbling 
Creek and a few of its small tributaries and associated underground 
springs within Tumbling Creek Cave, and areas immediately downstream of 
the cave between the cave's natural exit and the confluence of Tumbling 
Creek with Big Creek at Schoolhouse Spring. Suitable habitat includes 
the underside of rocks, small stones, and cobble, and occasionally the 
upper surface of solid rock bottom within sections of Tumbling Creek 
that have moderate current (U.S. Fish and Wildlife Service 2003, p. 
10). The Tumbling Creek cavesnail is dependent on good water quality 
and reduced sediment loads in Tumbling Creek (Aley and Ashley 2003, p. 
20).
    The Tumbling Creek cavesnail was emergency listed on December 27, 
2001 (66 FR 66803) and subsequently listed as endangered on August 14, 
2002 (67 FR 52879) because of a precipitous population decline and 
water degradation in Tumbling Creek. The primary threats related to the 
degradation of water quality in Tumbling Creek are increased siltation 
from overgrazing, tree removal, and other activities. Nonpoint source 
pollution within the recharge area of Tumbling Creek cave is also a 
threat to the species (Aley and Ashley 2003, p. 19; U.S. Fish and 
Wildlife Service 2003, pp. 14-18). The deposition of silt into Tumbling 
Creek from aboveground activities within the recharge area of Tumbling 
Creek Cave has likely contributed to the decline of the species by 
eliminating the species' habitat, covering egg masses, or adversely 
impacting the snail in other ways (Tom and Cathy Aley, 2001, pers. 
comm.; U.S. Fish and Wildlife Service 2001, p. 66806; Aley and Ashley 
2003, p. 19; U.S. Fish and Wildlife Service 2003, pp. 14-18).
Previous Federal Actions
    The Tumbling Creek cavesnail was emergency listed on December 27, 
2001 (66 FR 66803) and subsequently listed as endangered on August 14, 
2002 (67 FR 52879). At the time of listing, we determined that a delay 
in designating critical habitat would enable us to concentrate our 
limited resources on other actions that must be addressed and allow us 
to invoke immediate protections needed for the conservation of the 
species. We concluded that, if prudent and determinable, we would 
prepare a critical habitat proposal in the future at such time as our 
available resources and other listing priorities under the Act would 
allow. We approved a final recovery plan for the Tumbling Creek 
cavesnail on September 15, 2003, and made it available to the public 
through a notice published in the Federal Register on September 22, 
2003 (68 FR 55060).
    On August 11, 2008, the Institute for Wildlife Protection and 
Crystal Grace Rutherford filed a lawsuit against the Secretary of 
Interior for our failure to timely designate critical habitat for the 
Tumbling Creek cavesnail (Institute for Wildlife Protection et al v. 
Kempthorne (07-CV-01202-CMP)). In a court-approved settlement 
agreement, we agreed to submit to the Federal Register a new prudency 
determination, and if the designation was found to be prudent, a 
proposed designation of critical habitat, by June 30, 2010, and a final 
designation by June 30, 2011.

Critical Habitat

Background
    Critical habitat is defined in section 3 of the Act as:

[[Page 35753]]

    (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.
    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 under 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(a)(2) of the 
Act through the prohibition against Federal agencies carrying out, 
funding, or authorizing the destruction or adverse modification of 
critical habitat. Section 7(a)(2) requires consultation on Federal 
actions that may affect critical habitat. The designation of critical 
habitat does not affect land ownership or establish a refuge, 
wilderness, reserve, preserve, or other conservation area. Such 
designation does not allow the government or public to access private 
lands. Such designation does not require implementation of restoration, 
recovery, or enhancement measures by non-Federal landowners. Where a 
landowner seeks or requests Federal agency funding or authorization for 
an action that may affect a listed species or critical habitat, the 
consultation requirements of section 7(a)(2) would apply, but even in 
the event of a destruction or adverse modification finding, the Federal 
action agency's and the landowner's obligation is not to restore or 
recover the species, but to implement reasonable and prudent 
alternatives to avoid destruction or adverse modification of critical 
habitat.
    To be considered for inclusion in a critical habitat designation, 
the habitat within the geographical area occupied by the species at the 
time it was listed must contain the physical or biological features 
that are essential to the conservation of the species. Areas supporting 
the essential physical or biological features are identified, to the 
extent known using the best scientific data available, as the habitat 
areas that provide essential life cycle needs of the species. Habitat 
within the geographical area occupied by the species at the time of 
listing that contains features essential to the conservation of the 
species meets the definition of critical habitat only if these features 
may require special management consideration or protection. Under the 
Act and regulations in the Code of Federal Regulations (CFR) at 50 CFR 
424.12, we can designate critical habitat in areas outside the 
geographical area occupied by the species at the time it is listed only 
when we determine that the best available scientific data demonstrate 
that the designation of those areas is essential for the conservation 
of the species.
    Section 4 of the Act requires that we designate critical habitat on 
the basis of the best scientific and commercial 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 we should designate 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 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, or other unpublished materials and expert opinion or 
personal knowledge.
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 designate critical habitat at the time 
the species is determined to be endangered or threatened. Our 
regulations at 50 CFR 424.12(a)(1) state that the designation of 
critical habitat is not prudent when one or both of the following 
situations exist: (1) The species is threatened by taking or other 
activity and the identification of critical habitat can be expected to 
increase the degree of threat to the species; or (2) the designation of 
critical habitat would not be beneficial to the species.
    There is no documentation that the Tumbling Creek cavesnail is 
threatened by taking or other human activity that would be increased by 
the identification of critical habitat. In the absence of finding that 
the designation of critical habitat would increase threats to the 
species, if there are any benefits to a critical habitat designation, 
then a prudent finding is warranted. The potential benefits include:
    (1) Triggering consultation, under section 7 of the Act, in new 
areas for action in which there may be a Federal nexus where 
consultation would not otherwise occur, because, for example, an areas 
is or has become unoccupied or the occupancy is in question;
    (2) Identifying the physical and biological features essential to 
the conservation of the Tumbling Creek cavesnail and focusing 
conservation activities on these essential features and the areas that 
support them;
    (3) Providing educational benefits to State or county governments 
or private entities engaged in activities or long-range planning in 
areas essential to the conservation of the species; and
    (4) Preventing people from causing inadvertent harm to the species. 
Conservation of the Tumbling Creek cavesnail and the essential features 
of its habitat will require habitat protection and restoration, which 
will be facilitated by knowledge of habitat locations and the physical 
and biological features of those habitat locations.
    Therefore, since we have determined that the designation of 
critical habitat will not likely increase the degree of threat to the 
species and may provide some measure of benefit, we find that the 
designation of critical habitat for the Tumbling Creek cavesnail is 
prudent.
Critical Habitat Determinability
    As stated above, section 4(a)(3) of the Act requires the 
designation of critical habitat concurrently with the species' listing 
``to the maximum extent prudent and determinable.'' Our regulations at 
50 CFR 424.12(a)(2) state that critical

[[Page 35754]]

habitat is not determinable when one or both of the following 
situations exist:
    (1) Information sufficient to perform required analyses of the 
impacts of the designation is lacking, or
    (2) The biological needs of the species are not sufficiently well 
known to permit identification of an area as critical habitat.
    When critical habitat is not determinable, the Act provides for an 
additional year to publish a critical habitat designation (16 U.S.C. 
1533(b)(6)(C)(ii)).
    We reviewed the available information pertaining to the biological 
needs of the Tumbling Creek cavesnail, the historical distribution of 
the Tumbling Creek cavesnail, and the habitat characteristics where the 
species currently occurs. This and other information represents the 
best scientific and commercial data available and led us to conclude 
that the designation of critical habitat is determinable for the 
Tumbling Creek cavesnail.
Methods
    As required by section 4(b) of the Act, we used the best scientific 
and commercial data available in determining which areas within the 
geographical area occupied by the species at the time of listing 
contain the features essential to the conservation of the Tumbling 
Creek cavesnail that may require special management considerations or 
protections, and which areas outside of the geographical area occupied 
at the time of listing are essential for the conservation of the 
species.
    We reviewed the available information pertaining to historical and 
current distributions, life histories, and habitat requirements of this 
species. Our sources included peer-reviewed scientific publications; 
unpublished survey reports; unpublished field observations by Service, 
State, and other experienced biologists; notes and communications from 
qualified biologists or experts; and Service publications such as the 
final listing rule for the Tumbling Creek cavesnail (67 FR 52879) and 
the Recovery Plan for the Tumbling Creek cavesnail (U.S. Fish and 
Wildlife Service 2003).

Physical and Biological Features

    In accordance with sections 3(5)(A)(i) and 4(b)(1)(A) of the Act 
and the regulations at 50 CFR 424.12, in determining which areas within 
the geographical area occupied at the time of listing to propose as 
critical habitat, we consider the physical and biological features that 
are essential to the conservation of the species which may require 
special management considerations or protection. These include, but are 
not limited to:
    (1) Space for individual and population growth and for normal 
behavior;
    (2) Food, water, air, light, minerals, or other nutritional or 
physiological requirements;
    (3) Cover or shelter;
    (4) Sites for breeding, reproduction, or rearing (or development) 
of offspring; and
    (5) Habitats that are protected from disturbance or are 
representative of the historic, geographical, and ecological 
distributions of a species.
    We consider the specific essential physical and biological features 
to be the primary constituent elements (PCEs; see ``Primary Constituent 
Elements'' below) laid out in the appropriate quantity and spatial 
arrangement for the conservation of the species. The PCEs required for 
the Tumbling Creek cavesnail are derived from biological needs of the 
species as described in the Background section of this proposed rule 
and in the final listing rule (67 FR 52879). Unfortunately, little is 
known of the specific habitat requirements for this species other than 
that the species requires adequate water quality, water quantity, water 
flow, a stable stream channel, minimal sedimentation, and energy input 
from the guano of bats, particularly gray bats (Myotis grisescens) that 
roost in Tumbling Creek Cave. To identify the physical and biological 
features essential to the Tumbling Creek cavesnail, we have relied on 
current conditions at locations where the species survives, and the 
limited information available on this species and its close relatives.
Space for Individual and Population Growth and for Normal Behavior
    The specific space requirements for the Tumbling Creek cavesnail 
are unknown, but given that 15,118 snails were estimated in a 1,016 
square meter area of Tumbling Creek in 1973 (Greenlee 1974, p. 10), 
space is not likely a limiting factor for the species. The loss of 
interstitial habitats for the species, however, likely contributed to 
the species decline (U.S. Fish and Wildlife Service 2003, p. 14).
Food, Water, Air, Light, Minerals, or Other Nutritional or 
Physiological Requirements
    It is believed that the species feeds on biofilm, the organic 
coating and bacterial layer associated with the underside of rocks or 
bare rock stream bottom (Aley and Ashley 2003, p. 19). This biofilm is 
directly connected to energy input from the guano of a large colony of 
roosting bats in Tumbling Creek Cave, particularly the federally listed 
gray bat (Myotis grisescens) (Aley and Ashley 2003, p.18; U.S. Fish and 
Wildlife Service 2003, p. 11). The cavesnail is often found on rocks 
coated with manganese oxide (Aley and Ashley 2003, p. 18); however, the 
role manganese minerals play in the growth and survival of the 
cavesnail is unknown.
    Based on the information above, we identified energy input from bat 
guano, which is essential in the development of biofilm that cavesnails 
use for food to be a PCE for this species.
Cover or Shelter
    The Tumbling Creek cavesnail has been found on both the upper and 
lower surfaces of rocks and gravel (Greenlee 1974, p. 10; Aley and 
Ashley 2003, p. 18; U.S. Fish and Wildlife Service 2003, p. 12). Flow 
rates in Tumbling Creek can reach 150 cubic feet per second (cfs) 
during flash flood events (Aley 2010, pers. comm.), and such events may 
dislodge cavesnails from the upper surface of substrates. Consequently, 
it is likely that the underside of larger rocks provides some cover for 
cavesnails. Rocks and gravel are used by cavesnails for attachment 
(Greenlee 1974, p. 10; U.S. Fish and Wildlife Service, p. 12). 
Additionally, it is likely that a stable stream bottom and cave stream 
banks and riffle, run, and pool habitats are important components of 
the species' habitat.
    Based on the information above, we identified stable stream bottoms 
and banks (stable horizontal dimension and vertical profile) in order 
to maintain bottom features (riffles, runs, and pools) and transition 
zones between bottom features to be a PCE for this species. We also 
identified bottom substrates consisting of fine gravel with coarse 
gravel or cobble, or bedrock with sand and gravel, with low amounts of 
fine sand and sediments within the interstitial spaces of the 
substrates, as a PCE.
Sites for Breeding, Reproduction, or Rearing
    Like other members of the snail family Hydrobiidae, the Tumbling 
Creek cavesnail has separate male and female individuals (Aley and 
Ashley 2003, p. 19), but there is no information on the mating behavior 
of the species or what role the unknown sex ratio of the species may 
have on successful reproduction. Eggs are likely deposited in 
gelatinous egg masses, but to date, the occurrence of such egg masses 
has yet

[[Page 35755]]

to be documented (Aley and Ashley 2003, p. 19). Although little is 
known about the reproductive behavior and development of offspring of 
the Tumbling Creek cavesnail, it is likely that rock and gravel 
substrates that are free from silt are important elements necessary for 
successful propagation, especially for attachment of gelatinous egg 
masses. Aley and Ashley (2003, p. 19) postulated that silt deposited in 
Tumbling Creek could smother egg masses, and Ashley (2000, p. 8) 
suggested that silt could suffocate early developmental stages of the 
cavesnail. The life span of the Tumbling Creek cavesnail is unknown, 
but, if similar to other surface-dwelling hydrobid snails that have 
been studied, it is probably between 1 and 5 years (Aley and Ashley 
2003, p. 19).
    The cavesnail is dependent on good water quality (Aley and Ashley 
2003, pp. 19-20; U.S. Fish and Wildlife Service 2003, pp. 13-22). Aley 
(2001, pers. comm.; U.S. Fish and Wildlife Service 2003, p. 22) noted 
that oxygen depletion could occur in Tumbling Creek during low flows; 
therefore, permanent flow of the stream is apparently important to the 
survival of the cavesnail. Aley (2010, pers. comm.) calculated that an 
average daily discharge of 0.07-150 cubic feet per second (cfs) was 
necessary to maintain good water quality for the cavesnail. Aley (2010, 
pers. comm.) also postulated that, to ensure good water quality for the 
Tumbling Creek cavesnail, water temperature of the cave stream should 
be between 55-62 [deg]F (12.78-16.67 [deg]C), dissolved oxygen levels 
should not exceed 4.5 milligrams per liter, and turbidity of an average 
monthly reading should not exceed 200 Neophelometric Units and should 
not persist for a period greater than 4 hours.
    Based on the information above, we identified an instream flow 
regime with an average daily discharge between 0.07 and 150 cubic feet 
per second (cfs), inclusive of both surface runoff and groundwater 
sources (springs and seepages), and water quality with temperature 
between 55-62 [deg]F (12.78-16.67[deg]C), dissolved oxygen 4.5 
milligrams or greater per liter, and turbidity of an average monthly 
reading of no more than 200 Nephelometric Turbidity Units (NTU; units 
used to measure sediment discharge) or less for a duration not to 
exceed 4 hours. to be PCEs for this species.
Primary Constituent Elements (PCEs) for the Tumbling Creek Cavesnail
    Under the Act and its implementing regulations, we are required to 
identify the essential physical and biological features essential to 
the conservation of the Tumbling Creek cavesnail. The physical and 
biological features are the essential habitat components (PCEs) laid 
out in the appropriate quantity and spatial arrangement essential to 
the conservation of the species. Areas designated as critical habitat 
for the Tumbling Creek cavesnail contain only occupied areas within the 
species' current and historical geographic range, and contain the 
essential physical and biological features in sufficient quantity and 
arrangement to support the species' main life history functions.
    Based on our current knowledge of the life history, biology, and 
ecology of the Tumbling Creek cavesnail and the requirements of the 
habitat to sustain the essential life history functions of the species, 
we determined that the PCEs specific to the Tumbling Creek cavesnail 
are:
    (1) Geomorphically stable stream bottoms and banks (stable 
horizontal dimension and vertical profile) in order to maintain bottom 
features (riffles, runs, and pools) and transition zones between bottom 
features; to continue appropriate habitat to maintain essential 
riffles, runs, and pools; to promote connectivity between Tumbling 
Creek and its tributaries and associated springs;
    (2) Instream flow regime with an average daily discharge between 
0.07 and 150 cubic feet per second (cfs), inclusive of both surface 
runoff and groundwater sources (springs and seepages);
    (3) Water quality with temperature between 55-62 [deg]F (12.78-
16.67 [deg]C), dissolved oxygen 4.5 milligrams or greater per liter, 
and turbidity of an average monthly reading of no more than 200 
Nephelometric Turbidity Units (NTU; units used to measure sediment 
discharge) for a duration not to exceed 4 hours;
    (4) Bottom substrates consisting of fine gravel with coarse gravel 
or cobble, or bedrock with sand and gravel, with low amounts of fine 
sand and sediments within the interstitial spaces of the substrates; 
and
    (5) Energy input from guano that originates mainly from gray bats 
that roost in the cave; guano is essential in the development of 
biofilm (the organic coating and bacterial layer that covers rocks in 
the cave stream) that cavesnails use for food.
    With this proposed designation of critical habitat, we intend to 
conserve the physical and biological features essential to the 
conservation of the species, through the identification of the 
appropriate quantity and spatial arrangement of the PCEs sufficient to 
support the life history functions of the species. The area proposed as 
critical habitat in this rule contains one or more PCEs to provide for 
the main life history functions of the Tumbling Creek cavesnail.

Special Management Considerations or Protections

    When designating critical habitat, we assess whether the specific 
areas within the geographical area occupied by the species at the time 
of listing contain the physical and biological features that are 
essential to the conservation of the species and whether those features 
may require special management considerations or protection.
    The one unit we are proposing for designation as critical habitat 
will require some level of management to address the current and future 
threats to the physical and biological features essential to the 
conservation of the species. Although no portion of the proposed 
critical habitat unit is presently under special management or 
protection provided by a legally operative plan or agreement for the 
conservation of the Tumbling Creek cavesnail, the cave owners Tom and 
Cathy Aley have been actively involved in implementing numerous 
conservation measures that continue to contribute to the recovery of 
the species. Various activities in or adjacent to the critical habitat 
unit described in this proposed rule may affect one or more of the 
PCEs. For example, features in the proposed critical habitat 
designation may require special management due to threats associated 
with management of water levels on Bull Shoals Reservoir (such as 
increased sedimentation or bank erosion from backwater flooding); by 
significant changes in the existing flow regime of Tumbling Creek, its 
tributaries, or associated springs; by significant alteration of water 
quality; by significant alteration in the quantity of groundwater and 
alteration of spring discharge sites; by alterations to septic systems 
that could adversely affect the water quality of Tumbling Creek; and by 
other watershed and floodplain disturbances that release sediments or 
nutrients into the water. Other activities that may affect PCEs in the 
proposed critical habitat unit include those listed in the `` Effects 
of Critical Habitat Designation'' section below.
    The designation of critical habitat does not imply that lands 
outside of critical habitat do not play an important role in the 
conservation of the Tumbling Creek cavesnail. Activities with a Federal 
nexus that may affect areas outside of critical habitat, such as 
development; road construction and

[[Page 35756]]

maintenance; oil, gas, and utility easements; forest and pasture 
management; maintenance of Bull Shoals Reservoir; and effluent 
discharges, are still subject to review under section 7 of the Act if 
they may affect the Tumbling Creek cavesnail, because Federal agencies 
must consider both effects to the species and effects to critical 
habitat independently. The Service should be consulted regarding 
disturbances to areas both within the proposed critical habitat units 
as well as areas within the recharge area of Tumbling Creek cave, 
including springs and seeps that contribute to the instream flow in the 
tributaries, especially during times when stream flows are abnormally 
low (during droughts), because these activities may impact the 
essential features of proposed critical habitat. The prohibitions of 
section 9 of the Act against the take of listed species also continue 
to apply both inside and outside of designated critical habitat.

Criteria Used to Identify Proposed Critical Habitat

    As required by section 4(b) of the Act, we used the best scientific 
and commercial data available in determining areas within the 
geographical area occupied at the time of listing that contain the 
physical and biological features essential to the conservation of the 
Tumbling Creek cavesnail, and areas outside of the geographical area 
occupied at the time of listing that are essential for the conservation 
of the Tumbling Creek cavesnail. In order to determine which sites were 
occupied at the time of listing, we used information from surveys 
conducted by Greenlee (1974, pp. 9-11) and Ashley (2010, pers. comm.), 
data summarized in the final listing rule (67 FR 52879), the Tumbling 
Creek Cavesnail Recovery Plan (U.S. Fish and Wildlife Service 2003, pp. 
1-13), and personal observations by cave owners Tom and Cathy Aley. 
Currently, occupied habitat for the species is limited and isolated to 
Tumbling Creek, from its emergence in Tumbling Creek Cave to its 
confluence with Big Creek at Schoolhouse Spring.
    Following the identification of the specific locations occupied by 
the Tumbling Creek cavesnail, we determined the appropriate length of 
occupied segments of Tumbling Creek by identifying the upstream and 
downstream limits of these occupied sections necessary for the 
conservation of the species. Because Tumbling Creek is intricately 
linked with fractures in chert rock and associated springs and 
underground portions that are inaccessible to humans, we determined 
that currently occupied habitat would include the area from the 
emergence of Tumbling Creek within Tumbling Creek Cave to its 
confluence with Big Creek at Schoolhouse Spring. This determination was 
made to ensure incorporation of all potential sites of occurrence. 
These portions of Tumbling Creek, Owens Springs, and Schoolhouse 
Springs were then digitized using 7.5' topographic maps and ArcGIS to 
produce the critical habitat map.
    We are proposing to designate as critical habitat all portions of 
Tumbling Creek and the underground portions of Owens and Schoolhouse 
Springs as occupied habitat. We have defined ``occupied habitat'' as 
those stream reaches documented at the time of listing and all portions 
of Tumbling Creek between its emergence in Tumbling Creek Cave and its 
confluence with Big Creek at Schoolhouse Spring. Although there are 
underground portions of Tumbling Creek that are inaccessible to humans, 
the entire stream length is believed to be occupied by the Tumbling 
Creek cavesnail; thus, the entire stream is believed to comprise the 
entire known range of the Tumbling Creek cavesnail. We are not 
proposing to designate any areas outside of those mentioned above, 
because the species is still believed to be a site endemic, and surveys 
in other nearby cave streams and springs have failed to find additional 
populations (U.S. Fish and Wildlife Service 2003, p. 4).
    The one proposed unit contains all of the PCEs in the appropriate 
quantity and spatial arrangement essential to the conservation of this 
species and supports all life processes for the Tumbling Creek 
cavesnail.
    Although the above ground recharge area of Tumbling Creek Cave has 
been estimated to be 9 miles (14.5 kilometers) (U.S. Fish and Wildlife 
Service 2003, p. 14) and is important to maintain the condition of 
cavesnail habitat, such areas do not themselves contain the physical 
and biological features essential to the conservation of the species.
    To the best of our knowledge, there are no unoccupied areas that 
contain one or more of the PCEs for the Tumbling Creek cavesnail. All 
of the areas proposed as critical habitat for the Tumbling Creek 
cavesnail are currently occupied by the species and contain the PCEs. 
All of the areas proposed as critical habitat are also within the known 
historical range of the species. Therefore, we are not proposing to 
designate any areas outside the geographical area occupied by the 
species at the time of listing. We believe that the occupied areas are 
sufficient for the conservation of the species.
    Habitat is dynamic, and species may move from one area to another 
over time. In particular, we recognize that climate change may cause 
changes in the arrangement of occupied habitat stream reaches. Climate 
change may lead to increased frequency and duration of droughts (Rind 
et al. 1990, p. 9983; Seager et al. 2007, pp. 1181-1184; Rahel and 
Olden 2008, p. 526). Climate warming may increase the virulence of 
nonnative parasites and pathogens to native species (Rahel and Olden 
2008, p. 525), decrease groundwater levels (Schindler 2001, p. 22), or 
significantly reduce annual stream flows (Moore et al. 1997, p. 925). 
Increased drought conditions and prolonged low flows associated with 
climate change may favor the establishment and spread of nonnative 
species (Rahel and Olden 2008, pp. 526, 529-530). In the Missouri 
Ozarks, it is projected that stream basin discharges may be 
significantly impacted by synergistic effects of changes in land cover 
and climate change (Hu et al. 2005, p. 9).
    The information currently available on the effects of global 
climate change and increasing temperatures does not make sufficiently 
precise estimates of the location and magnitude of the effects. Nor are 
we currently aware of any climate change information specific to the 
habitat of the Tumbling Creek cavesnail that would indicate what areas 
may become important to the species in the future. Nonetheless, because 
the Tumbling Creek cavesnail is an aquatic snail that is totally 
dependent upon an adequate water supply, adverse effects associated 
with climate change that could significantly alter the quantity and 
quality of Tumbling Creek could impact the species in the future. Other 
than Tumbling Creek, we are currently unaware of any other cave stream 
inhabited by the Tumbling Creek cavesnail. Therefore, we are unable to 
determine which additional areas, if any, may be appropriate to include 
in the proposed critical habitat for this species; however, we 
specifically request information from the public on the currently 
predicted effects of climate change on the Tumbling Creek cavesnail and 
its habitat. Additionally, 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, especially if future surveys are successful in 
documenting the species' presence in another cave stream. For these 
reasons,

[[Page 35757]]

a critical habitat designation does not signal that habitat outside the 
designated critical habitat area is unimportant or may not be required 
for recovery of the species.
    Areas that are important to the conservation of the species, but 
are outside the critical habitat designation, will continue to be 
subject to conservation actions we implement under section 7(a)(1) of 
the Act. They are also subject to the regulatory protections afforded 
by the section 7(a)(2) jeopardy standard, as determined based on the 
best available scientific information at the time of the agency action. 
Federally funded or permitted projects affecting listed species outside 
their designated critical habitat areas may still result in jeopardy 
findings in some cases. 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), section 7 
consultations, or other species conservation planning efforts if new 
information available at the time of these planning efforts calls for a 
different outcome.

Proposed Critical Habitat Designation

    We are proposing to designate one unit, totaling approximately 25 
ac (10.12 ha), as critical habitat for the Tumbling Creek cavesnail. 
The critical habitat unit described below constitutes our best 
assessment of areas that currently meet the definition of critical 
habitat for the Tumbling Creek cavesnail.
    We present a brief description for the one unit and reasons why it 
meets the definition of critical habitat below. The proposed critical 
habitat unit includes the stream channel of Tumbling Creek to the 
confluence of Schoolhouse Spring at Big Creek. For the one stream reach 
proposed as a critical habitat, the upstream and downstream boundaries 
are described generally below; more precise descriptions are provided 
in the Proposed Regulation Promulgation at the end of this proposed 
rule.
Unit 1: Tumbling Creek, Taney County, Missouri
    Unit 1 includes the entire length of Tumbling Creek, from its 
emergence in Tumbling Creek Cave (SE of the intersection of Routes 160 
and 125) downstream to its confluence at Big Creek at Schoolhouse 
Spring, encompassing 25 ac (10.12 ha). This section of Tumbling Creek 
and associated springs are under private ownership by Tom and Cathy 
Aley of the Ozark Underground Laboratory and contain all the PCEs for 
the Tumbling Creek cavesnail.
    Threats that may require special management and protection of PCEs 
include: Actions associated with the management of water levels of Bull 
Shoals Reservoir (such as increased sedimentation or bank erosion on 
the terminal portions of Tumbling Creek from backwater flooding); 
significant changes in the existing flow regime of Tumbling Creek, its 
tributaries or associated springs; significant alteration of water 
quality; significant alteration in the quantity of groundwater and 
spring discharge sites; alterations to septic systems that could 
adversely affect the quality of Tumbling Creek; other watershed and 
floodplain disturbances that release sediments or nutrients into the 
water; or the accidental introduction of nonnative aquatic species into 
the stream due to backwater flooding of Bull Shoals Reservoir into 
Tumbling Creek.

Effects of Critical Habitat Designation

Section 7 Consultation
    Section 7(a)(2) of the Act requires Federal agencies, including the 
Service, to ensure that actions they fund, authorize, or carry out are 
not likely to destroy or adversely modify critical habitat. Decisions 
by the Fifth and Ninth Circuits Courts of Appeals have invalidated our 
definition of ``destruction or adverse modification'' (50 CFR 402.02) 
(see Gifford Pinchot Task Force v. U.S. Fish and Wildlife Service, 378 
F.3d 1059 (9th Cir. 2004) and Sierra Club v. U.S. Fish and Wildlife 
Service, 245 F.3d 434, 442 (5th Cir. 2001)), and we do not rely on this 
regulatory definition when analyzing whether an action is likely to 
destroy or adversely modify critical habitat. Under the statutory 
provisions of the Act, we determine destruction or adverse modification 
on the basis of whether, with implementation of the proposed Federal 
action, the affected critical habitat would remain functional (or 
retain the current ability for the PCEs to be functionally established) 
to serve its intended conservation role for the species.
    Section 7(a)(4) of the Act requires Federal agencies to confer with 
the Service on any action that is likely to jeopardize the continued 
existence of a species proposed for listing or result in destruction or 
adverse modification of proposed critical habitat. Conference reports 
provide conservation recommendations to assist the agency in 
eliminating conflicts that may be caused by the proposed action. We may 
issue a formal conference report if requested by a Federal agency. 
Formal conference reports on proposed critical habitat contain an 
opinion that is prepared according to 50 CFR 402.14, as if critical 
habitat were designated. We may adopt the formal conference report as 
the biological opinion when the critical habitat is designated, if no 
substantial new information or changes in the action alter the content 
of the opinion (see 50 CFR 402.10(d)). The conservation recommendations 
in a conference report or opinion are strictly advisory.
    If a species is listed or critical habitat is designated, section 
7(a)(2) of the Act requires Federal agencies to ensure that activities 
they authorize, fund, or carry out are not likely to jeopardize the 
continued existence of the species or to destroy or adversely modify 
its critical habitat. If a Federal action may affect a listed species 
or its critical habitat, the responsible Federal agency (action agency) 
must enter into consultation with us. As a result of this consultation, 
we document compliance with the requirements of section 7(a)(2) through 
our issuance of:
     A concurrence letter for Federal actions that may affect, 
but are not likely to adversely affect, listed species or critical 
habitat; or
     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 or 
destroy or adversely modify critical habitat, we also provide 
reasonable and prudent alternatives to the project, if any are 
identifiable. We define ``reasonable and prudent alternatives'' at 50 
CFR 402.02 as alternative actions identified during consultation that:
     Can be implemented in a manner consistent with the 
intended purpose of the action,
     Can be implemented consistent with the scope of the 
Federal agency's legal authority and jurisdiction,
     Are economically and technologically feasible, and
     Would, in the Director's opinion, avoid jeopardizing the 
continued existence of the listed species or 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 require Federal agencies to reinitiate

[[Page 35758]]

consultation on previously reviewed actions in instances where we have 
listed a new species or subsequently designated critical habitat that 
may be affected and the Federal agency has retained discretionary 
involvement or control over the action (or the agency's discretionary 
involvement or control is authorized by law). Consequently, Federal 
agencies may sometimes need to request to reinitiate consultation with 
us on actions for which formal consultation has been completed, if 
those actions with discretionary involvement or control may affect 
subsequently listed species or designated critical habitat.
    Federal activities that may affect the Tumbling Creek cavesnail or 
its designated critical habitat will require section 7 consultation 
under the Act. Activities on State, Tribal, local, or private lands 
requiring 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 us under section 10 of the Act or involving 
some other Federal action (such as funding from the Federal Highway 
Administration, Federal Aviation Administration, or the Federal 
Emergency Management Agency)) are subject to the section 7 consultation 
process. 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 permitted, do not require section 
7 consultation.
Application of the ``Adverse Modification'' Standard
    The key factor related to the adverse modification determination is 
whether, with implementation of the proposed Federal action, the 
affected critical habitat would continue to serve its intended 
conservation role for the species, or would retain its current ability 
for the essential features to be functionally established. Activities 
that may destroy or adversely modify critical habitat are those that 
alter the essential features to an extent that appreciably reduces the 
conservation value of critical habitat for the Tumbling Creek 
cavesnail.
    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 destroy or 
adversely modify such habitat, or that may be affected by such 
designation.
    Activities that, when carried out, funded, or authorized by a 
Federal agency, may affect critical habitat and therefore result in 
consultation for the Tumbling Creek cavesnail include, but are not 
limited to:
     Actions that would cause an increase in sedimentation to 
areas of Tumbling Creek, its tributaries, and associated springs 
occupied by the cavesnail. Such activities could include, but are not 
limited to, alteration or maintenance of pool levels on Bull Shoals 
Reservoir that causes backwater flooding of occupied habitat, or any 
discharge of fill materials. Such activities occurring within the 
recharge area of Tumbling Creek Cave may also impact the proposed 
critical habitat. These activities could eliminate or reduce habitats 
necessary for the growth and reproduction of the species by causing 
excessive sedimentation and burial of the species or their habitats or 
eliminate interstitial spaces needed by cavesnails.
     Actions that would significantly alter the existing flow 
regime of Tumbling Creek, its tributaries, and associated springs 
occupied by the cavesnail. Such activities could include, but are not 
limited to, alteration or maintenance of pool levels on Bull Shoals 
Reservoir that significantly reduces the movement of water through 
occupied cavesnail habitat. Such activities occurring within the 
recharge area of Tumbling Creek Cave may also impact the proposed 
critical habitat.
     Actions that would significantly alter water chemistry or 
water quality (for example, changes to temperature or pH, introduced 
contaminants, excess nutrients) in Tumbling Creek, its tributaries, and 
associated springs. Such activities could include, but are not limited 
to, the release of chemicals, biological pollutants, or heated 
effluents that are then introduced into Tumbling Creek, its 
tributaries, and associated springs occupied by the cavesnail through 
backwater flooding. Such activities occurring within the recharge area 
of Tumbling Creek Cave may also impact the proposed critical habitat. 
These activities could alter water conditions that are beyond the 
tolerances of the species and result in direct or cumulative adverse 
effects on the species and its life cycle. These activities could 
eliminate or reduce habitats necessary for the growth and reproduction 
of the species by causing eutrophication leading to excessive 
filamentous algal growth. Excessive filamentous algal growth can cause 
extreme decreases in nighttime dissolved oxygen levels through 
vegetation respiration, and cover the bottom substrates and the 
interstitial spaces needed by cavesnails.
     Actions that could accidentally introduce nonnative 
species into Tumbling Creek, its tributaries, and associated springs 
occupied by the cavesnail via backwater flooding from Bull Shoals 
Reservoir. Such activities occurring within the recharge area of 
Tumbling Creek Cave may also impact the proposed critical habitat. 
These activities could introduce a potential predator or outcompeting 
aquatic invertebrate (for example, another species of cavesnail or 
troglobitic invertebrate) or aquatic parasite.
     Actions that could significantly alter the prey base of 
bats. Energy input from bat guano is essential to the conservation of 
Tumbling Creek cavesnail, such that adverse impacts to gray bat 
populations in Tumbling Creek Cave could indirectly impact the 
cavesnail. Such activities could include, but are not limited to, 
alteration or maintenance of pool levels on Bull Shoals Reservoir that 
significantly reduces the life cycles of the aquatic insects that are 
needed by gray bats for food and the potential use of insecticides for 
mosquito control.

Exemptions

Application of Section 4(a)(3) of the Act
    The National Defense Authorization Act for Fiscal Year 2004 (Pub. 
L. 108-136) amended the Act to limit areas eligible for designation as 
critical habitat. Specifically, section 4(a)(3)(B)(i) of the Act (16 
U.S.C. 1533(a)(3)(B)(i)) now provides: ``The Secretary shall not 
designate as critical habitat any lands or other geographical areas 
owned or controlled by the Department of Defense, or designated for its 
use, that are subject to an integrated natural resources management 
plan prepared under section 101 of the Sikes Act (16 U.S.C. 670a), if 
the Secretary determines in writing that such plan provides a benefit 
to the species for which critical habitat is proposed for 
designation.''
    There are no Department of Defense lands within the proposed 
critical habitat designation for the Tumbling Creek cavesnail. As such, 
we are not exempting any lands owned or managed by the Department of 
Defense from this designation of critical habitat for the Tumbling 
Creek cavesnail.

Exclusions

Application of Section 4(b)(2) of the Act
    Section 4(b)(2) of the Act states that the Secretary shall 
designate or 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 
impacts of specifying

[[Page 35759]]

any particular area as critical habitat. The Secretary may exclude an 
area from critical habitat if he determines that the benefits of such 
exclusion outweigh the benefits of specifying such area as part of the 
critical habitat, unless he determines, based on the best scientific 
and commercial data available, that the failure to designate such area 
as critical habitat will result in the extinction of the species. In 
making that determination, the legislative history is clear that the 
Secretary has broad discretion regarding which factor(s) to use and how 
much weight to give to any factor.
    Under section 4(b)(2) of the Act, we may exclude an area from 
designated critical habitat based on economic impacts, impacts on 
national security, or any other relevant impacts. In considering 
whether to exclude a particular area from the designation, we must 
identify the benefits of including the area in the designation, 
identify the benefits of excluding the area from the designation, and 
determine whether the benefits of exclusion outweigh the benefits of 
inclusion. If based on this analysis, we determine that the benefits of 
exclusion outweigh the benefits of inclusion, we can exclude the area 
only if such exclusion would not result in the extinction of the 
species.
Economic Impacts
Under section 4(b)(2) of the Act, we consider the economic impacts of 
specifying any particular area as critical habitat. In order to 
consider economic impacts, we are preparing an analysis of the economic 
impacts of the proposed critical habitat designation and related 
factors.
    We will announce the availability of the draft economic analysis as 
soon as it is completed, at which time we will seek public review and 
comment. At that time, copies of the draft economic analysis will be 
available for download from the Internet at the Federal eRulemaking 
Portal: http://www.regulations.gov, or by contacting the Columbia Fish 
and Wildlife Office (see FOR FURTHER INFORMATION CONTACT). During the 
development of a final designation, we will consider economic impacts, 
public comments, and other new information, and as an outcome of our 
analysis of this information, we may exclude areas from the final 
critical habitat designation under section 4(b)(2) of the Act and our 
implementing regulations at 50 CFR 424.19.
National Security Impacts
    Under section 4(b)(2) of the Act, we consider whether there are 
lands owned or managed by the Department of Defense (DOD) where a 
national security impact might exist. In preparing this proposal, we 
have determined that the lands within the proposed designation of 
critical habitat for the Tumbling Creek cavesnail are not owned or 
managed by the DOD, and we therefore anticipate no impact to national 
security. Therefore, there are no areas proposed for exclusion based on 
impacts to national security.
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. We consider a number of factors, including whether landowners 
have developed any conservation plans or other management plans for the 
area, or whether there are conservation partnerships that would be 
encouraged by designation of lands for, or exclusion of lands from, 
critical habitat. In addition, we look at any Tribal issues, 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 proposed rule, we have determined that there are 
currently no conservation plans or other management plans for the 
Tumbling Creek cavesnail, and the proposed designation does not include 
any Tribal lands or trust resources. We anticipate no impact to Tribal 
lands, partnerships, or management plans from this proposed critical 
habitat designation. There are no areas proposed for exclusion from 
this proposed designation based on other relevant impacts.
    Notwithstanding these decisions, as stated in the Public Comments 
section above, we are seeking specific comments on whether we should 
exclude any areas proposed for designation under section 4(b)(2) of the 
Act from the final designation.

Peer Review

    In accordance with our joint policy published in the Federal 
Register on July 1, 1994 (59 FR 34270), we are obtaining the expert 
opinions of at least three appropriate independent specialists 
regarding this proposed rule. The purpose of such review is to ensure 
that our proposed actions are based on scientifically sound data, 
assumptions, and analyses. We will invite these peer reviewers to 
comment, during the public comment period, on our specific assumptions 
and conclusions regarding the proposed designation of critical habitat.
    We will consider all comments and information we receive during the 
comment period on this proposed rule during our preparation of a final 
rulemaking. Accordingly, the final decision may differ from this 
proposal.

Public Hearings

    The Act provides for one or more public hearings on this proposal, 
if requested. Requests for public hearings must be made in writing 
within 45 days of the publication of this proposal (see DATES and 
ADDRESSES sections). We will schedule public hearings on this proposal, 
if any are requested, and announce the dates, times, and places of 
those hearings in the Federal Register and local newspapers at least 15 
days before the first hearing.

Required Determinations

Regulatory Planning and Review--Executive Order 12866

    The Office of Management and Budget (OMB) has determined that this 
rule is not significant under Executive Order 12866 (E.O. 12866). OMB 
bases its determination upon the following four criteria:
    (a) Whether the rule will have an annual effect of $100 million or 
more on the economy or adversely affect an economic sector, 
productivity, jobs, the environment, or other units of the government.
    (b) Whether the rule will create inconsistencies with other Federal 
agencies' actions.
    (c) Whether the rule will materially affect entitlements, grants, 
user fees, loan programs, or the rights and obligations of their 
recipients.
    (d) Whether the rule raises novel legal or policy issues.

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 
(SBREFA) of 1996), whenever an agency must 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 (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 RFA to

[[Page 35760]]

require Federal agencies to provide a statement of the factual basis 
for certifying that the rule will not have a significant economic 
impact on a substantial number of small entities.
    At this time, we lack the specific information necessary to provide 
an adequate factual basis for determining the potential incremental 
regulatory effects of the designation of critical habitat for the 
Tumbling Creek cavesnail to either develop the required RFA finding or 
provide the necessary certification statement that the designation will 
not have a significant impact on a substantial number of small business 
entities. On the basis of the development of our proposal, we have 
identified certain sectors and activities that may potentially be 
affected by a designation of critical habitat for the Tumbling Creek 
cavesnail. These sectors include industrial development and 
urbanization along with the accompanying infrastructure associated with 
such projects such as road, stormwater drainage, and bridge and culvert 
construction and maintenance. We recognize that not all of these 
sectors may qualify as small business entities. However, while 
recognizing that these sectors and activities may be affected by this 
designation, we are collecting information and initiating our analysis 
to determine (1) Which of these sectors or activities are or involve 
small business entities and (2) to what extent the effects are related 
to the Tumbling Creek cavesnail's being listed as an endangered species 
under the Act (baseline effects) or whether the effects are 
attributable to the designation of critical habitat (incremental). We 
believe that the potential incremental effects resulting from a 
designation will be small. As a consequence, following an initial 
evaluation of the information available to us, we do not believe that 
there will be a significant impact on a substantial number of small 
business entities resulting from this designation of critical habitat 
for the Tumbling Creek cavesnail. However, we will be conducting a 
thorough analysis to determine if this may in fact be the case. As 
such, we are requesting any specific economic information related to 
small business entities that may be affected by this designation and 
how the designation may impact their business. Therefore, we defer our 
RFA finding on this proposal designation until completion of the draft 
economic analysis prepared under section 4(b)(2) of the Act and E.O. 
12866.
    As discussed above, this draft economic analysis will provide the 
required factual basis for the RFA finding. Upon its completion, we 
will announce availability of the draft economic analysis of the 
proposed designation in the Federal Register, receive comments on it, 
and also reopen the public comment period for the proposed designation. 
We will include with this announcement, as appropriate, an initial 
regulatory flexibility analysis or a certification that the rule will 
not have a significant economic impact on a substantial number of small 
entities accompanied by the factual basis for that determination. We 
have concluded that deferring the RFA finding until completion of the 
draft economic analysis is necessary to meet the purposes and 
requirements of the RFA. Deferring the RFA finding in this manner will 
ensure that we make a sufficiently informed determination based on 
adequate economic information and provide the necessary opportunity for 
public comment.

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 findings:
    (a) This 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; AFDC 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 jeopardize the continued existence of 
the species, or destroy or adversely modify critical habitat under 
section 7 of the Act. 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 listing 
these species or designating critical habitat shift the costs of the 
large entitlement programs listed above on to State governments.
    (b) We do not believe that this rule would significantly or 
uniquely affect small governments because the Tumbling Creek cavesnail 
primarily occurs in a privately owned cave stream. As such, a Small 
Government Agency Plan is not required. However, we will further 
evaluate this issue as we conduct our economic analysis and review and 
revise this assessment as warranted.

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 Tumbling Creek cavesnail in a 
takings implications assessment. The takings implications assessment 
concludes that this designation of critical habitat for the Tumbling 
Creek cavesnail 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), the rule does not have 
significant Federalism effects. A Federalism assessment is not 
required. In keeping with Department of the

[[Page 35761]]

Interior and Department of Commerce policy, we requested information 
from, and coordinated development of this proposed critical habitat 
designation with, appropriate State resource agencies in Missouri. The 
critical habitat designation may have some benefit to this government 
in that the areas that contain the features essential to the 
conservation of the species are more clearly defined, and the habitat 
features essential to the conservation of the species are specifically 
identified. While the identification of the specific areas as critical 
habitat does not alter where and what federally sponsored activities 
may occur, it may assist these local governments in long-range planning 
(rather than waiting for case-by-case section 7 consultations to 
occur).
    Where State and local governments require approval or authorization 
from a Federal agency for actions that may affect critical habitat, 
consultation under section 7(a)(2) of the Act would be required. While 
non-Federal entities that receive Federal funding, assistance, or 
permits, or that otherwise require approval or authorization from a 
Federal agency for an action, may be indirectly impacted by the 
designation of critical habitat, the legally binding duty to avoid 
destruction or adverse modification of critical habitat rests squarely 
on the Federal agency.

Civil Justice Reform--Executive Order 12988

    In accordance with E.O. 12988 (Civil Justice Reform), the Office of 
the Solicitor has determined that the rule does not unduly burden the 
judicial system and that it meets the requirements of sections 3(a) and 
3(b)(2) of the Order. We have proposed designating critical habitat in 
accordance with the provisions of the Act. This proposed rule uses 
standard property descriptions and identifies the PCEs within the 
designated areas to assist the public in understanding the habitat 
needs of the Tumbling Creek cavesnail.

Paperwork Reduction Act of 1995

    This rule does not contain any new collections of information that 
require approval by OMB under the Paperwork Reduction Act of 1995 (44 
U.S.C. 3501 et seq.). This rule will not impose recordkeeping or 
reporting requirements on State or local governments, individuals, 
businesses, or organizations. An agency may not conduct or sponsor, and 
a person is not required to respond to, a collection of information 
unless it displays a currently valid OMB control number.

National Environmental Policy Act (NEPA)

    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 as defined by 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)).

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:
    (a) Be logically organized;
    (b) Use the active voice to address readers directly;
    (c) Use clear language rather than jargon;
    (d) Be divided into short sections and sentences; and
    (e) Use lists and tables wherever possible.
    If you believe that we have not met these requirements, send us 
comments by one of the methods listed in the ADDRESSES section. 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.

Government-to-Government Relationship with Tribes

    In accordance with the President's memorandum of April 29, 1994, 
``Government-to-Government Relations with Native American Tribal 
Governments'' (59 FR 22951), E. O. 13175, 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 there are no tribal lands occupied at the 
time of listing that contain the features essential for the 
conservation of the Tumbling Creek cavesnail, and no tribal lands that 
are unoccupied areas that are essential for the conservation of the 
species. Therefore, we have not proposed designation of critical 
habitat for the Tumbling Creek cavesnail on Tribal lands.

Energy Supply, Distribution, or Use

    On May 18, 2001, the President issued an Executive Order (E.O. 
13211; Actions Concerning Regulations That Significantly Affect Energy 
Supply, Distribution, or Use) on regulations that significantly affect 
energy supply, distribution, and use. E.O. 13211 requires agencies to 
prepare Statements of Energy Effects when undertaking certain actions. 
We do not expect this rule to significantly affect energy supplies, 
distribution, or use. The proposed unit is remote from energy supply, 
distribution, or use activities. Therefore, this action is not a 
significant energy action, and no Statement of Energy Effects is 
required. However, we will further evaluate this issue as we conduct 
our economic analysis, and review and revise this assessment as 
warranted.

References Cited

    A complete list of all references cited in this proposed rulemaking 
is available on the Internet at http://www.regulations.gov and upon 
request from the Field Supervisor, Columbia Fish and Wildlife Office 
(see FOR FURTHER INFORMATION CONTACT section).

Authors

    The primary authors of this document are the staff members of the 
Columbia Fish and Wildlife Office.

List of Subjects in 50 CFR Part 17

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

Proposed Regulation Promulgation

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

PART 17--[AMENDED]

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


[[Page 35762]]


    Authority: 16 U.S.C. 1361-1407; 16 U.S.C. 1531-1544; 16 U.S.C. 
4201-4245; Pub. L. 99-625, 100 Stat. 3500; unless otherwise noted.

    2. In Sec.  17.11(h), revise the entry for ``Cavesnail, Tumbling 
Creek'' under ``SNAILS'' in the List of Endangered and Threatened 
Wildlife to read as follows:


Sec.  17.11  Endangered and threatened wildlife.

    * * * * *
    (h) * * *

--------------------------------------------------------------------------------------------------------------------------------------------------------
                    Species                                           Vertebrate
------------------------------------------------                   population where                                         Critical
                                                  Historic range     endangered or        Status         When listed        habitat       Special rules
         Common name            Scientific name                       threatened
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                      * * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                         SNAILS
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                      * * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
Cavesnail, Tumbling Creek      Antrobia culveri  U.S.A. (MO)       NA                E                 731              17.95(f)         NA
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                      * * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------

    3. In Sec.  17.95(f), add an entry for ``Tumbling Creek cavesnail 
(Antrobia culveri)'' in the same alphabetical order as the species 
appears in the table at Sec.  17.11(h), to read as follows:


Sec.  17.95  Critical habitat--fish and wildlife.

    * * * * *
    (f) Clams and Snails.

    * * * * *
Tumbling Creek cavesnail (Antrobia culveri)
    (1) The critical habitat unit is depicted for Taney County, 
Missouri, on the map below.
    (2) The primary constituent elements of critical habitat for the 
Tumbling Creek cavesnail are:
    (i) Geomorphically stable stream bottoms and banks (stable 
horizontal dimension and vertical profile) in order to maintain bottom 
features (riffles, runs, and pools) and transition zones between bottom 
features; to continue appropriate habitat to maintain essential 
riffles, runs, and pools; to promote connectivity between Tumbling 
Creek and its tributaries and associated springs; and to maintain gene 
flow throughout the population;
    (ii) Instream flow regime with an average daily discharge between 
0.07 and 150 cubic feet per second (cfs), inclusive of both surface 
runoff and groundwater sources (springs and seepages);
    (iii) Water quality with temperature between 55-62 [deg]F (12.78-
16.67[deg]C), dissolved oxygen 4.5 milligrams or greater per liter, and 
turbidity of an average monthly reading of no more than 200 
Nephelometric Turbidity Units (NTU; units used to measure sediment 
discharge) for a duration not to exceed 4 hours;
    (iv) Bottom substrates consisting of fine gravel with coarse gravel 
or cobble, or bedrock with sand and gravel, with low amounts of fine 
sand and sediments within the interstitial spaces of the substrates; 
and
    (v) Energy input from guano that originates mainly from gray bats 
that roost in the cave; guano is essential in the development of 
biofilm (the organic coating and bacterial layer that covers rocks in 
the cave stream) that cavesnails use for food.
    (3) Critical habitat does not include manmade structures (such as 
buildings, aqueducts, runways, roads, and other paved areas) and the 
land on which they are located existing within the legal boundaries on 
the effective date of this rule.
    (4) Critical habitat map unit. Data layers defining the map unit 
were created using 7.5' topographic quadrangle maps and ArcGIS (version 
9.3.1) mapping software.
    (5) Tumbling Creek Cavesnail Critical Habitat Unit: Tumbling Creek, 
Taney County, Missouri.
    (i) [Reserved for textual description of Tumbling Creek Cavesnail 
Critical Habitat Unit]
    (ii) Note: Map of Tumbling Creek Cavesnail Critical Habitat Unit 
follows:

[insert Map: Tumbling Creek Cavesnail Critical Habitat Unit]

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[[Page 35763]]

[GRAPHIC] [TIFF OMITTED] TP23JN10.005

    * * * * *

    Dated: June 15, 2010
Thomas L. Strickland,
Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 2010-15252 Filed 6-22-10; 8:45 am]
BILLING CODE 4310-55-C