[Federal Register Volume 86, Number 66 (Thursday, April 8, 2021)]
[Rules and Regulations]
[Pages 18189-18215]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-06736]



[[Page 18189]]

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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-R4-ES-2018-0094; FF09E21000 FXES11110900000 212]
RIN 1018-BD08


Endangered and Threatened Wildlife and Plants; Designation of 
Critical Habitat for Yellow Lance

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), designate 
critical habitat for the yellow lance (Elliptio lanceolata) under the 
Endangered Species Act of 1973 (Act), as amended. In total, 
approximately 319 river miles (mi) (514 kilometers (km)) fall within 11 
units of critical habitat in Franklin, Granville, Halifax, Johnston, 
Nash, Vance, Wake, and Warren Counties, North Carolina; Brunswick, 
Craig, Culpeper, Dinwiddie, Fauquier, Louisa, Lunenburg, Madison, 
Nottoway, Orange, and Rappahannock Counties, Virginia; and Howard and 
Montgomery Counties, Maryland. This rule extends the Act's protections 
to the yellow lance's designated critical habitat.

DATES: This rule is effective May 10, 2021.

ADDRESSES: This final rule is available on the internet at http://www.regulations.gov. Comments and materials we received, as well as 
some supporting documentation we used in preparing this rule, are 
available for public inspection at http://www.regulations.gov.
    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.regulations.gov at 
Docket No. FWS-R4-ES-2018-0094, or from the Raleigh Ecological Services 
Field Office (https://www.fws.gov/raleigh) (see FOR FURTHER INFORMATION 
CONTACT). Any additional tools or supporting information developed will 
also be available at the Fish and Wildlife Service website and Field 
Office identified below and at http://www.regulations.gov.

FOR FURTHER INFORMATION CONTACT: Pete Benjamin, Field Supervisor, U.S. 
Fish and Wildlife Service, Raleigh Ecological Services Field Office, 
551F Pylon Drive, Raleigh, NC 27606; telephone 919-856-4520. 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. Under section 4(a)(3) of the 
Endangered Species Act of 1973 (Act), as amended, if we determine that 
a species is an endangered or threatened species, we must designate 
critical habitat to the maximum extent prudent and determinable. We 
published a final rule to list the yellow lance as a threatened species 
on April 3, 2018 (83 FR 14189). Designations of critical habitat can be 
completed only by issuing a rule.
    Basis for our action. Section 3(5)(A) of the Act defines critical 
habitat as (i) the specific areas within the geographical area occupied 
by the species, at the time it is listed, on which are found those 
physical or biological features (I) essential to the conservation of 
the species and (II) which may require special management 
considerations or protections; and (ii) specific areas outside the 
geographical area occupied by the species at the time it is listed, 
upon a determination by the Secretary that such areas are essential for 
the conservation of the species. Section 4(b)(2) of the Act states that 
the Secretary must make the designation on the basis of the best 
scientific data available and after taking into consideration the 
economic impact, the impact on national security, and any other 
relevant impacts of specifying any particular area as critical habitat. 
The critical habitat we are designating in this rule, consisting of 11 
units comprising approximately 319 miles (514 kilometers) of streams 
and rivers, constitutes our current best assessment of the areas that 
meet the definition of critical habitat for the yellow lance.
    Economic analysis. In accordance with section 4(b)(2) of the Act, 
we prepared an economic analysis of the impacts of designating critical 
habitat for the yellow lance. We published the announcement of, and 
solicited public comments on, the draft economic analysis (DEA; 85 FR 
6856, February 6, 2020). Because we received no comments or new 
information on the DEA, we adopted the DEA as a final version.
    Public comments. We considered all comments and information we 
received from the public during the comment period on the proposed 
designation of critical habitat for the yellow lance and the associated 
DEA (85 FR 6856; February 6, 2020).

Supporting Documents

    As part of the process of listing the yellow lance, a species 
status assessment (SSA) team prepared an SSA report for the species. 
The SSA team was composed of Service biologists, in consultation with 
other species experts. The SSA report represents a compilation of the 
best scientific and commercial data available concerning the status of 
the species, including the impacts of past, present, and future factors 
(both negative and beneficial) affecting the species. The SSA report 
underwent independent peer review by scientists with expertise in 
mussel biology, habitat management, and stressors (factors negatively 
affecting the species) to the species. Along with other information 
submitted during the process of listing the species, the SSA report is 
the primary source of information for this final designation. The SSA 
report and other materials relating to this rule can be found on the 
Service's Southeast Region website at https://www.fws.gov/southeast/ 
and at http://www.regulations.gov under Docket No. FWS-R4-ES-2018-0094.

Previous Federal Actions

    On April 20, 2010, we were petitioned to list 404 aquatic species 
in the southeastern United States, including yellow lance. In response 
to the petition, we completed a 90-day finding on September 27, 2011 
(76 FR 59836), in which we announced our finding that the petition 
contained substantial information that listing may be warranted for the 
yellow lance. On April 5, 2017, we published a proposed rule to list 
the yellow lance as a threatened species (82 FR 16559). On April 3, 
2018, we published the final rule to list the species as a threatened 
species (83 FR 14189). On February 6, 2020, we published a proposed 
rule to designate critical habitat for the yellow lance (85 FR 6856). 
Please refer to the April 5, 2017, proposed listing rule for a 
discussion of earlier Federal actions regarding the yellow lance.

Summary of Comments and Recommendations

    On February 6, 2020, we published in the Federal Register (85 FR 
6856) a proposed rule to designate critical habitat for the yellow 
lance and to make available the associated DEA; the public comment 
period for that proposed rule was open for 60 days, ending April 6, 
2020. During the open comment period, we received 23 public comments on 
the proposed rule; a majority of the comments supported the 
designation, none opposed the designation, and

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some included suggestions on how we could refine or improve the 
designation. All substantive information provided to us during the 
comment period has been incorporated directly into this final rule or 
is addressed below.
    (1) Comment: Two commenters recommended adding to the critical 
habitat designation. One commenter suggested that whole watersheds be 
considered for designation, indicating that protecting entire 
watersheds would improve genetic diversity and resiliency of yellow 
lance populations. Another commenter recommended including vegetative 
buffers in the designation, citing a study on the functions and 
recommended widths of riparian buffer zones: For erosion and sediment 
control, a width of 30 to 98 feet is recommended, and in the case of 
absorbing biocontaminants, nutrients, and pesticides, the width ranges 
are 30 or more feet, 49 to 164 feet, and 49 to 328 feet, respectively.
    Our Response: Designation of an entire watershed, which we 
interpret to mean all streams and waterbodies within a watershed, would 
include areas that are not occupied by yellow lance, and areas that are 
not suitable habitat for the yellow lance. The Service has determined 
that unoccupied habitat is not essential for the conservation of the 
species. Further, many areas within a watershed are not suitable 
habitat, and therefore do not contain one or more of the physical or 
biological features essential to yellow lance conservation. In other 
words, these areas do not meet the definition of critical habitat. 
Similarly, while the Service recognizes in the SSA report the important 
contribution of riparian buffers to yellow lance habitat, these land 
areas surrounding streams do not meet the definition of critical 
habitat in that they are not specific areas occupied by the species 
that have one or more of the physical and biological features essential 
to yellow lance conservation. As an obligate aquatic species, 
freshwater mussels such as the yellow lance cannot survive in 
terrestrial riparian areas. Therefore, such areas are not considered in 
the designation of critical habitat.
    (2) Comment: One commenter recommended that exclusion of human-made 
structures should be construed as narrowly as possible and should not 
allow the exclusion of undeveloped land because that land may share a 
parcel with otherwise-excluded pavement or human structures.
    Our Response: The exclusion of human-made structures from the 
boundaries of the designated critical habitat was intended to apply 
only to the structures included in the Geographic Information Systems 
(GIS) shapefiles of the critical habitat and not to undeveloped land.
    (3) Comment: One commenter suggested that the Service include in 
the economic analysis consideration of economic benefits of protecting 
yellow lance habitat, including ecosystem services, the protection of 
clean water, the reduced cost of water treatment for drinking water 
supplies, as well as public health benefits.
    Our Response: As noted in the DEA, the primary intended benefit of 
critical habitat is to support the conservation of endangered and 
threatened species, such as the yellow lance. In order to quantify and 
monetize direct benefits of the designation, information would be 
needed to determine (1) the incremental change in the probability of 
yellow lance conservation expected to result from the critical habitat 
designation, and (2) the public's willingness to pay for such 
beneficial changes. The conclusion was that additional project 
modifications to avoid adverse modification of critical habitat for the 
yellow lance are not anticipated. Because of the uncertainties 
associated with monetary quantification of these benefits, we were not 
able to estimate the economic benefits of ecosystem services, such as 
clean water via mussel-based biofiltration treatment, or broad benefits 
of ecosystem services that flow from protected areas to human 
populations.
    (4) Comment: One commenter noted that according to the SSA report, 
the yellow lance is dependent on attaching itself to minnows to 
successfully reach its adult stage. The commenter further noted that 
although it is likely true that the yellow lance is mostly being 
hindered by abiotic factors such as pollution and sedimentation, 
establishing a critical habitat for this mussel species should also 
address conditions necessary for the survival of its host species to 
ensure proper development of the yellow lance. The commenter stated 
that yellow lance's glochidia stage coincides with the spawning period 
of minnows--from late spring to mid-summer--and that minnows are 
obligate hosts for this species and require conservation consideration 
in order to ensure proper development of the yellow lance. The 
commenter then asked how this critical habitat can be tailored to also 
meet the needs of the yellow lance's obligate hosts.
    Our Response: In this critical habitat designation, we identify the 
physical or biological features essential to yellow lance conservation, 
and, of those, we include two physical or biological factors that 
specifically mention the yellow lance's fish hosts: (1) Adequate flows, 
or a hydrologic flow regime (which includes the severity, frequency, 
duration, and seasonality of discharge over time), necessary to 
maintain benthic habitats where the yellow lance is found and to 
maintain connectivity of streams with the floodplain, allowing the 
exchange of nutrients and sediment for maintenance of the mussel's and 
fish host's habitat, food availability, spawning habitat for native 
fishes, and the ability for newly transformed juveniles to settle and 
become established in their habitats; and (2) the presence and 
abundance of fish hosts necessary for yellow lance recruitment. In 
addition, we identify another physical or biological feature essential 
to yellow lance conservation consisting of certain suitable substrates 
and connected instream habitats ``that support a diversity of 
freshwater mussels and native fish.'' Therefore, this critical habitat 
designation does address, in the context of the physical or biological 
features essential to yellow lance conservation, conditions necessary 
for the yellow lance's fish hosts.
    (5) Comment: One commenter noted that compliance with the existing 
15 federally enacted best management practices (BMPs) for Clean Water 
Act section 404(f)(1) exemption for established silviculture activities 
like crossing a water of the United States, as well as compliance with 
the North Carolina forestry practice guidelines (FPGs), and with any 
other applicable State-enacted riparian buffer rules, should be deemed 
as concurrent protection of critical habitat under the Act (16 U.S.C. 
1531 et seq.).
    Our Response: The Federal BMP under consideration states, ``The 
discharge shall not take, or jeopardize the continued existence of, a 
threatened or endangered species as defined under the Endangered 
Species Act, or adversely modify or destroy the critical habitat of 
such species.'' Therefore, this Federal BMP restates existing 
requirements of the Act. The North Carolina FPGs are Statewide, 
``mandatory narrative rule standards that were developed to assure that 
forestry activities are conducted in a manner that protects water 
quality'' (NCFS 2018, p. 1). The Service recognizes that adherence to 
the FPG performance standards described under title 2 of the North 
Carolina Administrative Code at chapter 60, subchapter C, are 
considered by the North Carolina Forest Service to be compliance with 
the Federal BMP

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mentioned above. Thus, compliance with FPGs will also protect critical 
habitat.
    (6) Comment: One commenter recommended we provide Federal funds to 
support cooperative improvements to forest access infrastructure and 
other conservation management measures within the designated critical 
habitat watersheds. The commenter suggested that robust, recurring 
funding could go towards the following activities: (1) Increase the 
availability of portable, temporary bridgemats for loggers to use on 
stream crossings; (2) enhance cost-sharing of prompt and effective 
reforestation after timber harvests; (3) provide cost-shared assistance 
for landowners to remove/renovate/replace substandard, existing forest 
road stream crossings; (4) develop pre-harvest plans for landowners 
through technical assistance provided by a forester; (5) compensate 
landowners in exchange for installing legal protections of critical 
habitat riparian zones; and (6) provide targeted in-woods research, 
study, and/or monitoring.
    Our Response: The Service is working with forestry partners to 
consider funding opportunities to advance the ideas suggested by the 
commenter.
    (7) Comment: One commenter offered information about the 
conservation benefits provided to aquatic species on private, working 
forests and requested that the Service include several references for 
our consideration.
    Our Response: We made several revisions to include new, relevant 
reference materials in the forestry discussion in the SSA report, where 
appropriate, in response to this comment. However, several of the 
references provided by the commenter were not specific to studies of 
the impacts or benefits of forestry management to freshwater mussels 
and, therefore, were not included in the SSA report.
    (8) Comment: One commenter noted that silvicultural practices 
implemented with BMPs protect aquatic species and, because they are 
widely implemented, should not be viewed as ``special management''; the 
commenter recommended the Service instead recognize BMPs as routine 
practices. They also note that although there are limited data 
documenting relationships between BMPs and some individual aquatic and 
riparian species, there is a significant body of research confirming 
that BMPs contribute to water quality and riparian forest structure and 
provided many references to this effect.
    Our Response: BMPs are ``management practices'' that are used to 
protect water quality during timber harvests and other forest 
management activities (National Association of State Foresters 2020, 
unpaginated). Because there are a variety of BMPs that may be 
implemented depending on the project in consideration, and because 
there can be a forestry management or harvest plan that details which 
BMPs will be implemented for that particular project, the use of them 
is considered ``management.'' The Act defines ``critical habitat'' as, 
in part, the specific areas within the geographical area occupied by 
the species which may require special management considerations. 
Forestry best ``management practices'' are considered to be management 
considerations needed for the habitat occupied by the yellow lance. 
Whether they are routine or not, there is a management strategy used 
when implementing BMPs; therefore, they can be considered ``special 
management considerations'' under the Act. The SSA report (Service 
2019, p. 49) and the February 6, 2020, proposed rule (85 FR 6861) 
recognize that BMPs can protect water quality and habitat for aquatic 
species. However, as noted by the commenter, there are some species for 
which there are limited data documenting the relationships with BMPs, 
and even with the 43 references provided in the comment letter, there 
are no data presented that consider temporary or long-term effects of 
sedimentation on long-lived, sedentary freshwater mussel species such 
as the yellow lance.
    (9) Comment: One commenter encourages the Service to modify the 
proposed rule's language to acknowledge that removing large areas of 
forested wetlands and riparian systems is not part of ongoing forest 
management, nor is it compatible with BMP guidelines. The commenter 
states that in making the above statements, the Service appears to rely 
on older sources of information that do not reflect contemporary forest 
management, or possibly sources describing practices in regions other 
than the eastern United States.
    Our Response: The section of the proposed rule that the commenter 
refers to is Special Management Considerations or Protections (85 FR 
6856, February 6, 2020, p. 85 FR 6861), which states that the features 
essential to the conservation of the yellow lance may require special 
management considerations or protections to reduce threats including 
``improper forest management or silviculture activities that remove 
large areas of forested wetlands and riparian systems.'' The comment 
implies that the Service improperly characterized this as one of the 
threats against which the special considerations or protections are 
needed; therefore, in this rule, we have clarified that language. After 
reviewing studies within the range of yellow lance in Virginia noted by 
the commenter (Lakel et al. 2010, p. 541) and frequently asked 
questions on the North Carolina State Forest Service's website (NCFS 
2020, unpaginated), the Service notes that clearcutting, or entirely 
removing all trees in a forested area (U.S. Forest Service 2020, 
unpaginated), is a preferred method of harvesting timber. To harvest 
sites, they are often clearcut, burned, and then replanted (Lakel et 
al. 2010, p. 541). The threat to yellow lance from this harvest 
practice is sedimentation from clearcuts near streams. Many of the 
watersheds occupied by yellow lance do not have mandatory buffer 
requirements to eliminate sedimentation, and, as noted above, there are 
no data for the temporary or long-term effects of residual 
sedimentation post-BMP implementation on freshwater mussels. As stated 
above, in response to this comment, we have revised relevant language 
in this rule to clarify that the threat is due to ``improper forest 
management or clearcuts within riparian areas.''

Summary of Changes From the Proposed Rule

    This final rule incorporates one minor substantive change to our 
proposed rule (85 FR 6856; February 6, 2020) based on the comments we 
received and that are summarized above under Summary of Comments and 
Recommendations. We revised the language under Special Management 
Considerations or Protections to clarify that the features essential to 
the conservation of the yellow lance may require special management 
considerations or protections to reduce ``improper forest management or 
clearcuts within riparian areas.'' We made no other substantive changes 
from the proposed rule to this final rule.

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

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    (2) Specific areas outside the geographical area occupied by the 
species at the time it is listed, upon a determination that such areas 
are essential for the conservation of the species.
    Our regulations at 50 CFR 424.02 define the geographical area 
occupied by the species as an area that may generally be delineated 
around species' occurrences, as determined by the Secretary (i.e., 
range). Such areas may include those areas used throughout all or part 
of the species' life cycle, even if not used on a regular basis (e.g., 
migratory corridors, seasonal habitats, and habitats used periodically, 
but not solely by vagrant individuals).
    Conservation, as defined under section 3 of the Act, means to use 
and the use of all methods and procedures that are necessary to bring 
an endangered or threatened species to the point at which the measures 
provided pursuant to the Act are no longer necessary. Such methods and 
procedures include, but are not limited to, all activities associated 
with scientific resources management such as research, census, law 
enforcement, habitat acquisition and maintenance, propagation, live 
trapping, and transplantation, and, in the extraordinary case where 
population pressures within a given ecosystem cannot be otherwise 
relieved, may include regulated taking.
    Critical habitat receives protection under section 7 of the Act 
through the requirement that Federal agencies ensure, in consultation 
with the Service, that any action they authorize, fund, or carry out is 
not likely to result in the destruction or adverse modification of 
critical habitat. The designation of critical habitat does not affect 
land ownership or establish a refuge, wilderness, reserve, preserve, or 
other conservation area. Such designation does not allow the government 
or public to access private lands. Such designation does not require 
implementation of restoration, recovery, or enhancement measures by 
non-Federal landowners. Where a landowner requests Federal agency 
funding or authorization for an action that may affect a listed species 
or critical habitat, the Federal agency would be required to consult 
with the Service under section 7(a)(2) of the Act. However, even if the 
Service were to conclude that the proposed activity would result in 
destruction or adverse modification of the critical habitat, the 
Federal action agency and the landowner are not required to abandon the 
proposed activity, or to restore or recover the species; instead, they 
must implement ``reasonable and prudent alternatives'' to avoid 
destruction or adverse modification of critical habitat.
    Under the first prong of the Act's definition of critical habitat, 
areas within the geographical area occupied by the species at the time 
it was listed are included in a critical habitat designation if they 
contain physical or biological features (1) which are essential to the 
conservation of the species and (2) which may require special 
management considerations or protection. For these areas, critical 
habitat designations identify, to the extent known using the best 
scientific and commercial data available, those physical or biological 
features that are essential to the conservation of the species (such as 
space, food, cover, and protected habitat). In identifying those 
physical or biological features within an area, we focus on the 
specific features that support the life-history needs of the species, 
including, but not limited to, water characteristics, soil type, 
geological features, 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 from the SSA report and other 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

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information at the time of designation will not control the direction 
and substance of future recovery plans, habitat conservation plans 
(HCPs), or other species conservation planning efforts if new 
information available at the time of these planning efforts calls for a 
different outcome.

Physical or Biological Features Essential to the Conservation of the 
Species

    In accordance with section 3(5)(A)(i) of the Act and regulations at 
50 CFR 424.12(b), in determining which areas we will designate as 
critical habitat from within the geographical area occupied by the 
species at the time of listing, we consider the physical or biological 
features that are essential to the conservation of the species and that 
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, alkali 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.
    The yellow lance is a sand-loving species (Alderman 2003, p. 6) 
often found buried deep in clean, coarse to medium sand and sometimes 
migrating with shifting sands (NatureServe 2015, p. 6), although it has 
also been found in gravel substrates. Yellow lance adults require 
clear, flowing water with a temperature less than 35 degrees Celsius 
([deg]C) (95 degrees Fahrenheit ([deg]F)) and a dissolved oxygen 
greater than 3 milligrams per liter (mg/L). Juveniles require very 
specific interstitial chemistry to complete that life stage: Low 
salinity (similar to 0.9 parts per thousand (ppt)), low ammonia 
(similar to 0.7 mg/L), low levels of copper and other contaminants, and 
dissolved oxygen greater than 1.3 mg/L. Most freshwater mussels, 
including the yellow lance, are found in aggregations (mussel beds) 
that vary in size and are often separated by stream reaches in which 
mussels are absent or rare (Vaughn 2012, p. 983). Genetic exchange 
occurs between and among mussel beds via sperm drift, host fish 
movement, and movement of mussels during high flow events.
    The yellow lance is an omnivore that primarily filter feeds on a 
wide variety of microscopic particulate matter suspended in the water 
column, including phytoplankton, zooplankton, bacteria, detritus, and 
dissolved organic matter, and these food resources are closely tied to 
riparian area inputs to the stream (Haag 2012, p. 26). Like most 
freshwater mussels, they have a unique life cycle that relies on fish 
hosts for successful reproduction. Yellow lance larvae (glochidia) are 
obligate parasites of the gills, heads, or fins of fish; primary host 
species are members of the Cyprinidae family, including the white 
shiner (Luxilus albeolus) and pinewoods shiner (Lythrurus matutinus).
    A thorough review of the life history and ecology of yellow lance 
is presented in the SSA report (Service 2019, entire), available on 
http://www.regulations.gov at Docket No. FWS-R4-ES-2018-0094.

Summary of Essential Physical or Biological Features

    We derive the specific physical or biological features essential to 
yellow lance conservation from studies of the species' habitat, 
ecology, and life history as described above, and in the SSA report. We 
have determined that the following physical or biological features are 
essential to yellow lance conservation:
    (1) Suitable substrates and connected instream habitats, 
characterized by geomorphically stable stream channels and banks (i.e., 
channels that maintain lateral dimensions, longitudinal profiles, and 
sinuosity patterns over time without an aggrading or degrading bed 
elevation) with habitats that support a diversity of freshwater mussels 
and native fish (such as stable riffle-run-pool habitats that provide 
flow refuges consisting of silt-free gravel and coarse sand 
substrates).
    (2) Adequate flows, or a hydrologic flow regime (which includes the 
severity, frequency, duration, and seasonality of discharge over time), 
necessary to maintain benthic habitats where the species is found and 
to maintain connectivity of streams with the floodplain, allowing the 
exchange of nutrients and sediment for maintenance of the mussel's and 
fish host's habitat, food availability, spawning habitat for native 
fishes, and the ability of newly transformed juveniles to settle and 
become established in their habitats.
    (3) Water and sediment quality (including, but not limited to, 
conductivity, hardness, turbidity, temperature, pH, ammonia, heavy 
metals, and chemical constituents) necessary to sustain natural 
physiological processes for normal behavior, growth, and viability of 
all life stages.
    (4) The presence and abundance of fish hosts necessary for yellow 
lance recruitment.

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. Activities on the surrounding landscape and in riparian 
areas are closely tied to instream habitat, therefore special 
management considerations can be linked to activities on land that 
influence the stream and instream habitat. The features essential to 
yellow lance conservation may require special management considerations 
or protections to reduce the following threats: (1) Reduction in water 
quality, quantity, and resulting sedimentation as

[[Page 18194]]

a result of urbanization of the landscape, including (but not limited 
to) land conversion for urban and commercial use, infrastructure 
(roads, bridges, utilities), and urban water uses (water supply 
reservoirs, wastewater treatment, etc.); (2) nutrient pollution from 
agricultural activities that impact water quantity and quality; (3) 
significant alteration of water quality; (4) sedimentation from 
incompatible forest management or clearcuts in riparian areas; (5) 
culvert and pipe installations that create barriers to instream 
movement; (6) impacts from invasive species; (7) changes and shifts in 
seasonal precipitation patterns as a result of climate change; and (8) 
other watershed and floodplain disturbances that release sediments or 
nutrients into the water.
    Management activities that could ameliorate these threats include, 
but are not limited to: Use of BMPs designed to reduce sedimentation, 
erosion, and bank side destruction; protection of riparian corridors 
and retention of sufficient canopy cover along banks; moderation of 
surface and ground water withdrawals to maintain natural flow regimes; 
increased use of stormwater management and reduction of stormwater 
flows into the systems; and reduction of other watershed and floodplain 
disturbances that release sediments, pollutants, or nutrients into the 
water.

Criteria Used To Identify Critical Habitat

    As required by section 4(b)(2) of the Act, we use the best 
scientific data available to designate critical habitat. In accordance 
with the Act and our implementing regulations at 50 CFR 424.12(b), we 
review available information pertaining to the habitat requirements of 
the species and identify specific areas within the geographical area 
occupied by the species at the time of listing and any specific areas 
outside the geographical area occupied by the species to be considered 
for designation as critical habitat. As discussed in more detail below, 
we are not designating any areas outside the geographical area occupied 
by the species at the time of listing because we have not identified 
any unoccupied areas that are essential for the conservation of the 
species.
    The current distribution of the yellow lance is reduced from its 
historical distribution. We anticipate that recovery will require 
continued protection of existing populations and habitat, as well as 
ensuring there are adequate numbers of mussels in stable populations 
and that these populations occur over a wide geographic area. This 
strategy will help to ensure that catastrophic events, such as floods, 
which can cause excessive sedimentation, nutrients, and debris to 
disrupt stream ecology, cannot simultaneously affect all known 
populations. Rangewide recovery considerations, such as maintaining 
existing genetic diversity and striving for representation of all major 
portions of the species' current range, were considered in formulating 
this final critical habitat designation.
    Sources of data for this final critical habitat include multiple 
databases maintained by universities and State agencies for North 
Carolina, Virginia, and Maryland, and numerous survey reports on 
streams throughout the species' range. Other sources of available 
information on habitat requirements for this species include studies 
conducted at occupied sites and published in peer-reviewed articles, 
agency reports, and data collected during monitoring efforts (Service 
2019, entire).

Areas Occupied at the Time of Listing

    This critical habitat designation does not include all streams 
known to have been occupied by the species historically; instead, it 
focuses on streams and rivers within the historical range that have 
also retained the necessary physical or biological features that will 
allow for the maintenance and expansion of existing populations and 
that were occupied at the time of listing. First, we identified stream 
channels that currently support yellow lance populations. In the SSA 
report, we define ``currently support'' as stream channels with 
observations of the species from 2005 to present. Due to the breadth 
and intensity of survey effort done for freshwater mussels throughout 
the known range of the species, it is reasonable to assume that streams 
with no positive surveys since 2005 should not be considered occupied 
for the purpose of our analysis.
    Specific habitat areas were delineated based on Natural Heritage 
Element Occurrences (EOs) following NatureServe's occurrence 
delineation protocol for freshwater mussels (NatureServe 2018, 
unpaginated). These EOs provide habitat for yellow lance subpopulations 
and are large enough to be self-sustaining over time, despite 
fluctuations in local conditions. The EOs contain stream reaches with 
interconnected waters so that host fish containing yellow lance 
glochidia can move between areas, at least during certain flows or 
seasons. Based on this information, we consider the following streams 
in Maryland, Virginia, and North Carolina to have been occupied by the 
species at the time of listing: Patuxent River, Rappahannock Subbasin 
(including the Rappahannock River, South Run, Carter Run, Thumb Run, 
Hungry Run, and Great Run), Rapidan Subbasin (including the Rapidan 
River, Blue Run, and Marsh Run), South Anna River, Johns Creek, 
Nottoway Subbasin (including the Nottoway River, Crooked Creek, and 
Sturgeon Creek), Tar River, Sandy/Swift Creek, Fishing Creek Subbasin 
(including Fishing Creek, Shocco Creek, and Richneck Creek), Swift 
Creek, and Little River.

Areas Outside the Geographic Area Occupied at the Time of Listing

    We are not designating any areas outside the geographical area 
occupied by the species at the time of listing because we did not find 
any unoccupied areas that are essential for the conservation of the 
species. The protection of stream segments within the seven currently 
existing populations (Patuxent, Rappahannock, York, James, Chowan, Tar, 
and Neuse), which are located across the physiographic representation 
of the range, would sufficiently reduce the risk of extinction. 
Improving the resiliency of populations in the currently occupied 
streams will increase viability to the point that the protections of 
the Act are no longer necessary.

Critical Habitat Maps

    When determining 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 yellow lance. The scale of the maps 
we prepared under the parameters for publication within the Code of 
Federal Regulations may not reflect the exclusion of such developed 
lands. Any such lands inadvertently left inside critical habitat 
boundaries shown on the maps of this rule have been excluded by text in 
the rule and are not included for designation as critical habitat. 
Therefore, a Federal action involving these lands would not trigger 
section 7 consultation under the Act 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 critical habitat designation is defined by the maps, as 
modified by any accompanying regulatory text, presented at the end of 
this document under Regulation Promulgation. We include more detailed 
information on the boundaries of the critical habitat designation in 
the discussion of

[[Page 18195]]

individual units below. We will make the GIS shapefiles on which each 
map is based available to the public at http://www.regulations.gov 
under Docket No. FWS-R4-ES-2018-0094, at http://www.fws.gov/southeast.

Final Critical Habitat Designation

    We are designating approximately 319 river mi (514 km) in 11 units 
in North Carolina, Virginia, and Maryland as critical habitat for the 
yellow lance. All of the units were occupied by the species at the time 
of listing and contain some or all of the physical and biological 
features that are essential to support life-history processes of the 
species. These critical habitat areas, described below, constitute our 
current best assessment of areas that meet the definition of critical 
habitat for yellow lance. The table below shows the name, land 
ownership of the riparian areas surrounding the units, and approximate 
river miles of the designated units for yellow lance. Because all 
streambeds are navigable waters, the actual critical habitat units are 
all owned by the State where they occur. The riparian land adjacent to 
the critical habitat is 83 percent private lands, 11 percent 
conservation lands and easements, and 6 percent State lands.

          Table of Critical Habitat Units for the Yellow Lance
------------------------------------------------------------------------
                                    Riparian ownership      River miles
     Critical habitat unit          surrounding units      (kilometers)
------------------------------------------------------------------------
1. PR1--Patuxent River.........  State; Private.........         10 (16)
2. RR1--Rappahannock Subbasin..  Private; Easements.....         44 (71)
3. RR2--Rapidan Subbasin.......  Private; Easements.....          9 (14)
4. YR1--South Anna River.......  Private; Easements.....          8 (13)
5. JR1--Johns Creek............  Private; George                 14 (23)
                                  Washington and
                                  Jefferson National
                                  Forest.
6. CR1--Nottoway Subbasin......  Private; Easements.....         41 (66)
7. TR1--Tar River..............  Private; Easements.....        91 (146)
8. TR2--Sandy/Swift Creek......  Private; State;                 31 (50)
                                  Easements.
9. TR3--Fishing Creek Subbasin.  Private; State;                 37 (60)
                                  Easements.
10. NR1--Swift Creek...........  Private; Easements.....         24 (39)
11. NR2--Little River..........  Private; Easements.....         10 (16)
                                                         ---------------
    Total......................  .......................       319 (514)
------------------------------------------------------------------------
Note: Area sizes may not sum due to rounding.

    We present brief descriptions of all units, and reasons why they 
meet the definition of critical habitat for yellow lance, below.

Patuxent Population

Unit 1: PR1--Patuxent River
    Unit 1 consists of approximately 10 river mi (16.1 km), including 3 
mi (4.8 km) of the Patuxent River and 7 mi (11.3 km) of the Hawlings 
River, in Montgomery and Howard Counties, Maryland. The riparian land 
adjacent to Patuxent River is primarily located in Patuxent River State 
Park (90 percent), with some parcels privately owned (10 percent); the 
riparian land surrounding the Hawlings River is predominantly 
conservation parcels (97 percent) including State, county, and Maryland 
National Capital Parks Planning (MD NCPP) park land, and some privately 
owned parcels (3 percent).
    Special management considerations or protection may be required to 
address excess nutrients, sediment, and pollutants that enter the 
rivers and serve as indicators of other forms of pollution such as 
bacteria and toxins, all of which reduce water quality for the species. 
Primary sources of these types of pollution result from urbanization 
and include wastewater, stormwater runoff, and fertilizers. Portions of 
the upper Patuxent River watershed were listed in 2011 as impaired for 
aquatic life and wildlife due to total suspended solids, and in 2014 
due to chlorides and sulfates (MDE 2016, unpaginated). There are 146 
non-major National Pollutant Discharge Elimination System (NPDES) 
discharges and three major (including Maryland City Water Reclamation 
Facility (WRF) and Bowie Wastewater Treatment Plant (WWTP)) NPDES 
discharges in the management unit. The Patuxent River is also 
fragmented by two water supply reservoirs, one with dual use as a 
hydroelectric facility. Given the urban stormwater and nonpoint source 
pollution identified as contributing to water quality issues in this 
unit, special management considerations related to developed areas 
including riparian buffer restoration, reduced surface and groundwater 
withdrawals, stormwater retrofits, eliminating direct stormwater 
discharges, increasing open space in the watershed, and implementing 
highest levels of wastewater treatment practicable will benefit the 
species' habitat in this unit.

Rappahannock Population

Unit 2: RR1--Rappahannock Subbasin
    Unit 2 consists of approximately 44 river mi (70.8 km) of 
Rappahannock Subbasin, including 1.7 mi (2.7 km) in Hungry Run, 7.9 mi 
(12.7 km) in Thumb Run, 5.9 mi (9.5 km) in South Run/Carter Run, 2.7 mi 
(4.3 km) in Great Run, and 25.8 mi (41.6 km) in Rappahannock River in 
Rappahannock, Fauquier, and Culpeper Counties, Virginia. The riparian 
land adjacent to this unit is primarily privately owned (72 percent), 
with some conservation parcels (28 percent).
    Special management considerations or protection may be required to 
address excess nutrients, sediment, and pollutants that enter the river 
and serve as indicators of other forms of pollution such as bacteria 
and toxins, all of which impact water quality for the species. Sources 
of these types of pollution include wastewater, agricultural runoff, 
stormwater runoff, and septic systems. Approximately 77 miles (123.9 
km) of the Rappahannock River watershed are impaired for aquatic life. 
Impairment is indicated by low benthic-macroinvertebrate bioassessment 
scores, pH and temperature issues, and Escherichia coli (E. coli); 
several of these can be attributed to septic systems or nonpoint source 
runoff into streams. There are 93 non-major NPDES discharges and 11 
major NPDES discharges, including several city and package WWTPs, 
within this unit. Special management considerations for riparian buffer 
restoration, agricultural BMPs, stormwater retrofits, maintenance of 
forested buffers, and implementing highest levels of wastewater 
treatment practicable will benefit the habitat for the species in this 
unit.

[[Page 18196]]

Unit 3: RR2--Rapidan Subbasin
    Unit 3 consists of approximately 9 river mi (14.5 km) of Rapidan 
Subbasin, including 1.2 mi (1.9 km) in Marsh Run, 3.1 mi (5.0 km) in 
Blue Run, and 4.7 mi (7.6 km) in the Rapidan River in Madison and 
Orange Counties, Virginia. The riparian land adjacent to this unit is 
privately owned (57 percent) and conservation parcels (43 percent).
    Special management considerations or protection may be required to 
address excess nutrients, sediment, and pollutants that enter the river 
and serve as indicators of other forms of pollution such as bacteria 
and toxins, all of which reduce water quality for the species (see 
discussion for Unit 2, above). Special management considerations for 
riparian buffer restoration, agricultural BMPs, stormwater retrofits, 
maintenance of forested buffers, and implementing highest levels of 
wastewater treatment practicable will benefit the habitat for the 
species in this unit.

York Population

Unit 4: YR1--South Anna River
    Unit 4 consists of approximately 8 river mi (12.9 km) of the South 
Anna River in Louisa County, Virginia. The riparian land adjacent to 
this unit is primarily privately owned (92 percent), with some 
conservation parcels (8 percent).
    Special management considerations or protection may be required to 
address excess nutrients, sediment, and pollutants that enter the river 
and serve as indicators of other forms of pollution such as bacteria 
and toxins, all of which impact water quality for the species. Sources 
of these types of pollution include wastewater, agricultural runoff, 
stormwater runoff, and septic systems. Based on 2012 data, 13 stream 
reaches, totaling approximately 44 miles (70.8 km), are impaired for 
aquatic life in the Po River and South Anna River watersheds. 
Impairment is indicated by low benthic-macroinvertebrate bioassessment 
scores, low dissolved oxygen, pH, and E. coli. There are 50 non-major 
NPDES discharges in the basin, and one major discharge, the Ashland 
WWTP. Special management considerations for riparian buffer 
restoration, agricultural BMPs, stormwater retrofits, maintenance of 
forested buffers, and implementing highest levels of wastewater 
treatment practicable will benefit the habitat for the species in this 
unit.

James Population

Unit 5: JR1--Johns Creek
    Unit 5 consists of approximately 14 river mi (22.5 km) of the Johns 
Creek in Craig County, Virginia. The riparian land adjacent to this 
unit is primarily private, with some federally owned land as part of 
George Washington and Jefferson National Forest.
    Special management considerations or protection may be required to 
address excess nutrients, sediment, and pollutants, which enter the 
creek and serve as indicators of other forms of pollution such as 
bacteria and toxins, all of which impact water quality for the species. 
Sources of these types of pollution are wastewater, agricultural 
runoff, and urban stormwater runoff. National Forest lands surround 
most of the Johns Creek watershed; protections and management of these 
lands will likely enable habitat conditions (water quality, water 
quantity/flow, instream substrate, and connectivity) to remain high 
into the future (Service 2019, entire). Targeted species restoration in 
conjunction with current associated-species restoration efforts in 
Johns, Dicks, and Little Oregon Creeks within the Craig Creek Subbasin 
will likely improve the yellow lance's resiliency in these areas. 
Maintenance of forested buffer conditions is essential to retaining 
high-quality instream habitat in this unit.

Chowan Population

Unit 6: CR1--Nottoway Subbasin
    Unit 6 consists of approximately 41 river mi (66 km) of Nottoway 
Subbasin, including 1.4 mi (2.3 km) in Crooked Creek, 3.3 mi (5.3 km) 
in Sturgeon Creek, and 36.3 mi (58.4 km) in the Nottoway River in 
Nottoway, Lunenburg, Brunswick, and Dinwiddie Counties, Virginia. The 
designation begins upstream of VA49 and ends at its confluence with 
Sturgeon Creek. The riparian land adjacent to this unit is primarily 
privately owned (64 percent), although Fort Pickett Military 
Reservation, which is exempted from this critical habitat designation, 
also has frontage on the Nottoway River (33 percent; see Exemptions, 
below), and there are some conservation parcels (3 percent).
    Special management considerations or protection may be required 
within this unit to address a variety of threats. In the past decade, 
the Nottoway River suffered from several seasonal drought events, which 
not only caused low dissolved oxygen conditions but also decreased food 
delivery because of minimal flows. In addition, these conditions led to 
increased predation rates on potential host fishes that were 
concentrated into low-flow refugia (e.g., pools). Urban stormwater and 
nonpoint source pollution have been identified as contributing to water 
quality issues in this unit. Additional threats to this unit include 
oil and gas pipeline projects that propose to cross streams at 
locations where the species occurs, with special management 
recommendations of alternate routes for oil and gas pipelines, or 
directional boring for those projects. Special management 
considerations for riparian buffer restoration, reduced surface and 
groundwater withdrawals, and stormwater retrofits will benefit the 
habitat in this unit. Additional special management considerations or 
protection may be required within this unit to address low water levels 
as a result of water withdrawals and drought.

Tar Population

Unit 7: TR1--Tar River
    Unit 7 consists of approximately 91 river mi (146.5 km) of the Tar 
River, including 4.4 mi (7.1 km) in Ruin Creek, 11.9 mi (19.2 km) in 
Tabbs Creek, 6.8 mi (10.9 km) in Crooked Creek, and 67.9 mi (109.3 km) 
in the Tar River in Granville, Vance, Franklin, and Nash Counties, 
North Carolina. The riparian land adjacent to this unit is almost all 
privately owned (98 percent), with a few conservation parcels (2 
percent).
    Special management considerations or protection may be required 
within this unit to address a variety of threats. Excessive amounts of 
nitrogen and phosphorus run off the land, or are discharged, into the 
waters, causing excessive growth of vegetation and leading to extremely 
low levels of dissolved oxygen. Based on 2014 data, seven stream 
reaches totaling approximately 38 miles (61.1 km) are impaired in this 
basin. Indicators of impairment are low dissolved oxygen and low 
benthic-macroinvertebrate assessment scores, and the entire basin is 
classified as Nutrient Sensitive Waters (NCDEQ 2016, pp. 115-117). 
There are 102 non-major NPDES discharges, including several package 
WWTPs and biosolids facilities, and 3 major NPDES discharges (Oxford 
WWTP, Louisburg WWTP, and Franklin County WWTP) in this unit; with 
expansion of these facilities, or addition of new wastewater 
discharges, an additional threat to habitat exists in this unit. 
Special management focused on agricultural BMPs, implementing highest 
levels of wastewater treatment practicable, maintenance of forested 
buffers, and connection of protected riparian corridors will benefit 
habitat for the species in this unit.

[[Page 18197]]

Unit 8: TR2--Sandy/Swift Creek
    Unit 8 consists of approximately 31 river mi (50 km) of Sandy/Swift 
Creek in Vance, Warren, Halifax, Franklin, and Nash Counties, North 
Carolina. The riparian land adjacent to this unit is primarily 
privately owned (92 percent), with the rest in either conservation 
easements (2.5 percent) or State Game Land parcels (4.6 percent).
    Special management considerations or protection may be required 
within this unit to address a variety of threats. Excessive amounts of 
nitrogen and phosphorus run off the land, or are discharged, into the 
waters, causing excessive growth of vegetation and leading to extremely 
low levels of dissolved oxygen; one stream reach totaling approximately 
5 miles (8 km) is impaired in this unit. Special management focused on 
agricultural BMPs, maintenance of forested buffers, and connection of 
protected riparian corridors will benefit habitat for the species in 
this unit.
Unit 9: TR3--Fishing Creek Subbasin
    Unit 9 consists of approximately 37 river mi (59.5 km) of Fishing 
Creek Subbasin, including 1.6 mi (2.6 km) in Richneck Creek, 8.0 mi 
(12.9 km) in Shocco Creek, and 27.4 mi (44 km) in Fishing Creek in 
Vance, Warren, Halifax, Franklin, and Nash Counties, North Carolina. 
The riparian land adjacent to this unit is primarily in private 
ownership (85 percent), with some State Game Land parcels (12 percent) 
and conservation easements (3 percent).
    Special management considerations or protection may be required 
within this unit to address a variety of threats. Excessive amounts of 
nitrogen and phosphorus run off the land, or are discharged, into the 
waters, causing excessive growth of vegetation and leading to extremely 
low levels of dissolved oxygen. Special management focused on 
agricultural BMPs, maintenance of forested buffers, and connection of 
protected riparian corridors will benefit habitat for the species in 
this unit.

Neuse Population

Unit 10: NR1--Swift Creek
    Unit 10 consists of approximately 24 river mi (38.6 km) of the 
Swift Creek in Wake and Johnston Counties, North Carolina. The riparian 
land adjacent to this unit is almost entirely privately owned (99.5 
percent), with one conservation parcel (0.5 percent).
    Special management considerations or protection may be required 
within this unit to address a variety of threats. Large quantities of 
nutrients (especially nitrogen) contributed by fertilizers and animal 
waste washed from lawns, urban developed areas, and farm fields are 
impacting aquatic ecosystems in this unit. There are several permitted 
point source discharges of wastewater. Development is also impacting 
several areas along Swift Creek.
    All of Swift Creek is rated ``impaired'' by the North Carolina 
Division of Water Resources. Many factors contribute to this 
designation, including low benthic-macroinvertebrate assessment scores, 
low pH, poor fish community scores, low dissolved oxygen, 
polychlorinated biphenyls, copper, and zinc. Many non-major and one 
major (Dempsey Benton Water Treatment Plant) permitted discharges occur 
in this unit. Special management related to developed areas, including 
using the best available wastewater treatment technologies, 
retrofitting stormwater systems, eliminating direct stormwater 
discharges, increasing open space in the watershed, and maintaining 
connected riparian corridors, will be important to maintain habitat in 
this unit.
Unit 11: NR2--Little River
    Unit 11 consists of approximately 10 river mi (16.1 km) of the 
Little River in Johnston County, North Carolina. The riparian land 
adjacent to this unit is almost entirely privately owned (99.5 
percent), with one conservation parcel (0.5 percent).
    Special management considerations or protection may be required 
within this unit to address a variety of threats. Four stream reaches 
totaling approximately 17 miles are impaired in the Little River. The 
designation of impairment is based primarily on low benthic-
macroinvertebrate assessment scores, low pH, and low dissolved oxygen. 
There are 32 non-major and no major NPDES discharges in this unit. 
Special management considerations in this unit include retrofitting 
stormwater systems, eliminating direct stormwater discharges, 
increasing and protecting existing open space, and maintaining 
connected riparian corridors.

Effects of Critical Habitat Designation

Section 7 Consultation

    Section 7(a) of the Act requires Federal agencies to evaluate their 
actions with respect to any species that is proposed or listed as an 
endangered or threatened species and with respect to its critical 
habitat, if any is designated. 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 listed 
under the Act or result in the destruction or adverse modification of 
critical habitat.
    We published a final regulation with a revised 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 
agency actions within the species' habitat that may require conference 
or consultation or both include management and any other landscape-
altering activities on Federal lands administered by the Service, Army 
National Guard, U.S. Forest Service, and National Park Service; 
issuance of section 404 Clean Water Act permits by the U.S. Army Corps 
of Engineers; and construction and maintenance of roads or highways by 
the Federal Highway Administration. 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

[[Page 18198]]

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 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 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 7(a)(2) 
of the Act by destroying or adversely modifying such designation, 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 alter the minimum flow or the existing flow 
regime. Such activities could include, but are not limited to, 
impoundment, channelization, water diversion, water withdrawal, and 
hydropower generation. These activities could eliminate or reduce the 
habitat necessary for the growth and reproduction of yellow lance and/
or its fish host by decreasing or altering flows to levels that would 
adversely affect their ability to complete their life cycles.
    (2) Actions that would significantly alter water chemistry or 
temperature. Such activities could include, but are not limited to, 
release of chemicals (including pharmaceuticals, metals, and salts), 
biological pollutants, or heated effluents into the surface water or 
connected groundwater at a point source or by dispersed release (non-
point source). These activities could alter water conditions to levels 
that are beyond the tolerances of yellow lance and/or its fish host and 
result in direct or cumulative adverse effects to these individuals and 
their life cycles.
    (3) Actions that would significantly increase sediment deposition 
within the stream channel. Such activities could include, but are not 
limited to, excessive sedimentation from livestock grazing, road 
construction, channel alteration, timber harvest, off-road vehicle use, 
and other watershed and floodplain disturbances. These activities could 
eliminate or reduce the habitat necessary for the growth and 
reproduction of yellow lance and/or its fish host by increasing the 
sediment deposition to levels that would adversely affect their ability 
to complete their life cycles.
    (4) Actions that would significantly increase the filamentous algal 
community within the stream channel. Such activities could include, but 
are not limited to, release of nutrients into the surface water or 
connected groundwater at a point source or by dispersed release (non-
point source). These activities can result in excessive filamentous 
algae filling streams and reducing habitat for the yellow lance and/or 
its fish host, degrading water quality during algal decay, and 
decreasing oxygen levels at night from algal respiration to levels 
below the tolerances of the mussel and/or its fish host. Algae can also 
directly compete with mussel offspring by covering the sediment, which 
prevents the glochidia from settling into the sediment.
    (5) Actions that would significantly alter channel morphology or 
geometry. Such activities could include, but are not limited to, 
channelization, impoundment, road and bridge construction, mining, 
dredging, oil and gas pipeline crossings, and destruction of riparian 
vegetation. These activities may lead to changes in water flows and 
levels that would degrade or eliminate the mussel, its fish host, and/
or their habitats. These actions can also lead to increased 
sedimentation and degradation in water quality to levels that are 
beyond the tolerances of yellow lance and/or its fish host.
    (6) Actions that 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 introduction of other species that compete with or prey on the 
yellow lance. Possible actions could include, but are not limited to, 
stocking of nonnative fishes, stocking of sport fish, or other related 
actions. These activities can introduce parasites or disease to fish 
hosts; result in direct predation; or affect the growth, reproduction, 
and survival of yellow lance.

Exemptions

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

    The Sikes Act Improvement Act of 1997 (Sikes Act) (16 U.S.C. 670a) 
required each military installation that includes land and water 
suitable for the conservation and management of natural resources to 
complete an integrated natural resources management plan (INRMP) by 
November 17, 2001. An INRMP integrates implementation of the

[[Page 18199]]

military mission of the installation with stewardship of the natural 
resources found on the base. Each INRMP includes:
    (1) An assessment of the ecological needs on the installation, 
including the need to provide for the conservation of listed species;
    (2) A statement of goals and priorities;
    (3) A detailed description of management actions to be implemented 
to provide for these ecological needs; and
    (4) A monitoring and adaptive management plan.
    Among other things, each INRMP must, to the extent appropriate and 
applicable, provide for fish and wildlife management; fish and wildlife 
habitat enhancement or modification; wetland protection, enhancement, 
and restoration where necessary to support fish and wildlife; and 
enforcement of applicable natural resource laws.
    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)) provides that 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.
    We consult with the military on the development and implementation 
of INRMPs for installations with listed species. We analyzed INRMPs 
developed by military installations located within the range of the 
critical habitat designation for yellow lance to determine if they meet 
the criteria for exemption from critical habitat under section 4(a)(3) 
of the Act.
    We have identified one area within the critical habitat designation 
that consists of Department of Defense lands with a completed, Service-
approved INRMP. The Army National Guard--Maneuver Training Center Fort 
Pickett (Fort Pickett) is located on 41,000 acres in three counties in 
southeastern Virginia: Nottoway, Brunswick, and Dinwiddie. Fort Pickett 
is on federally owned land, is managed by the Virginia Army National 
Guard, and is subject to all Federal laws and regulations. The Fort 
Pickett INRMP covers fiscal years 2017-2021, updated every five years, 
and serves as the principal management plan governing all natural 
resource activities on the installation. Among the goals and objectives 
listed in the INRMP is habitat management for rare, threatened, and 
endangered species, and the yellow lance is included in this plan. 
Management actions and elements that will benefit the yellow lance and 
its habitat include managing soil erosion and sedimentation; 
maintaining and improving riparian, forest, and stream habitats; 
enforcing stream and wetland protection zones; improving water quality; 
and conducting public outreach and education.
    Fourteen miles (22.5 km) of Unit 6 (CR1--Nottoway Subbasin) are 
located within the area covered by this INRMP. Based on the above 
considerations, and in accordance with section 4(a)(3)(B)(i) of the 
Act, we have determined that the identified streams are subject to the 
INRMP and that conservation efforts identified in the INRMP will 
provide a benefit to the yellow lance. Therefore, streams within this 
installation are exempt from critical habitat designation under section 
4(a)(3) of the Act. We are not including approximately 14 river miles 
(22.5 km) of habitat in this critical habitat designation because of 
this exemption.

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 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 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. On December 18, 2020, we 
published a final rule in the Federal Register (85 FR 82376) revising 
portions of our regulations pertaining to exclusions of critical 
habitat. These final regulations became effective on January 19, 2021 
and apply to critical habitat rules for which a proposed rule was 
published after January 19, 2021. Consequently, these new regulations 
do not apply to this final rule.
    The first sentence in section 4(b)(2) of the Act requires that we 
take into consideration the economic, national security, or other 
relevant impacts of designating any particular area as critical 
habitat. 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. In order to consider economic impacts of a 
designation, we prepared an incremental effects memorandum (IEM) and 
screening analysis which, together with our narrative and 
interpretation of effects, constitute our final economic analysis (FEA) 
of the critical habitat designation and related factors (IEc 2018, 
entire). We made the analysis, dated September 28, 2018, available for 
public review from February 6, 2020, through April 6, 2020. The DEA 
addressed probable economic impacts of critical habitat for the yellow 
lance. Following the close of the comment period, we reviewed and 
evaluated all information submitted during the comment period that may 
pertain to our consideration of the probable incremental economic 
impacts of this critical habitat designation. Additional information 
relevant to the probable incremental economic impacts of critical 
habitat designation for the yellow lance is summarized below and 
available in the screening analysis for the yellow lance (IEc 2018, 
entire), available at http://www.regulations.gov.
    The final critical habitat designation for yellow lance totals 
approximately 319 river mi (514 km) in 11 units as critical habitat in 
North Carolina, Virginia, and Maryland, all occupied at the time of 
listing. In these areas, any actions that may affect critical habitat 
would also affect the species, 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 yellow lance. Therefore, 
even though some analysis of the impacts of the action of critical 
habitat may be necessary, and this additional analysis will require 
costs in time and resources by both the Federal action agency and the 
Service, it is believed that, in most circumstances, these costs would 
predominantly be administrative in nature and would not be significant.

[[Page 18200]]

    The probable incremental economic impacts of the yellow lance 
critical habitat designation are expected to be limited to additional 
administrative effort, as well as minor costs of conservation efforts 
resulting from a small number of future section 7 consultations. This 
low level of impacts is anticipated because, given that the critical 
habitat is occupied by the species, actions that may adversely modify 
the critical habitat would also likely jeopardize the continued 
existence of the species; as a result, other than administrative costs, 
incremental economic impacts of critical habitat designation over and 
above impacts from consulting for jeopardy are unlikely.
    We do not expect any additional consultations resulting from the 
designation of critical habitat. The total annual incremental costs of 
critical habitat designation are anticipated to be the additional 
resources expended in a maximum of 102 section 7 consultations annually 
at a cost of less than $240,000 per year. Accordingly, we conclude that 
this final designation does not reach the threshold of ``significant'' 
under E.O. 12866.

Exclusions Based on Economic Impacts

    As discussed above, we considered the economic impacts of the 
critical habitat designation, and the Secretary is not exercising their 
discretion to exclude any areas from this designation of critical 
habitat for the yellow lance based on economic impacts. A copy of the 
IEM and screening analysis with supporting documents may be obtained by 
contacting the Raleigh Ecological Services Field Office (see ADDRESSES) 
or by downloading from the internet at http://www.regulations.gov.

Exclusions Based on Impacts on National Security and Homeland Security

    Section 4(a)(3)(B)(i) of the Act (see Exemptions, above) may not 
cover all Department of Defense (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 have determined that, other than the 
land exempted under section 4(a)(3)(B)(i) of the Act based upon the 
existence of an approved INRMP (see Exemptions, above), the lands 
within the designation of critical habitat for yellow lance are not 
owned or managed by DoD or DHS, and, therefore, we anticipate no impact 
on national security. Consequently, we did not exclude any areas from 
the final designation based on impacts on national security.

Exclusions Based on Other Relevant Impacts

    Under section 4(b)(2) of the Act, we consider any other relevant 
impacts, in addition to economic impacts and impacts on national 
security. We consider a number of factors including whether there are 
permitted conservation plans covering the species in the area such as 
habitat conservation plans (HCPs), safe harbor agreements, or candidate 
conservation agreements with assurances, or whether there are 
nonpermitted 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 final rule, we determined that there are 
currently no permitted conservation plans or other nonpermitted 
conservation agreements or partnerships for the yellow lance, and the 
final critical habitat designation does not include any Tribal lands or 
trust resources. We anticipate no impact on Tribal lands, partnerships, 
or permitted or nonpermitted plans or agreements from this critical 
habitat designation. Accordingly, we did not exclude any areas from the 
final designation based on other relevant impacts.

Required Determinations

Regulatory Planning and Review (Executive Orders 12866 and 13563)

    Executive Order 12866 provides that the Office of Information and 
Regulatory Affairs in the Office of Management and Budget (OMB) will 
review all significant rules. The Office of Information and Regulatory 
Affairs has determined that this rule is not significant.
    Executive Order (E.O.) 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 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,

[[Page 18201]]

special trade contractors doing less than $11.5 million in annual 
business, and agricultural businesses with annual sales less than 
$750,000. To determine whether potential economic impacts to these 
small entities are significant, we considered the types of activities 
that might trigger regulatory impacts under this designation as well as 
types of project modifications that may result. In general, the term 
``significant economic impact'' is meant to apply to a typical small 
business firm's business operations.
    Under the RFA, as amended, and as understood in light of recent 
court decisions, Federal agencies are only required to evaluate the 
potential incremental impacts of rulemaking on those entities directly 
regulated by the rulemaking itself and, therefore, are not required 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 will be directly regulated by this 
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 
will be directly regulated by this rulemaking, the Service certifies 
that this critical habitat designation will not have a significant 
economic impact on a substantial number of small entities and a 
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. OMB has provided guidance for implementing this E.O. 
that outlines nine outcomes that may constitute ``a significant adverse 
effect'' when compared to not taking the regulatory action under 
consideration. The economic analysis finds that none of these criteria 
is relevant to this analysis. Thus, based on information in the 
economic analysis, energy-related impacts associated with yellow lance 
conservation activities within critical habitat are not expected. As 
such, the designation of critical habitat is not expected to 
significantly affect energy supplies, distribution, or use. Therefore, 
this action is not a significant energy action, and no Statement of 
Energy Effects is required.

Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.)

    In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501 
et seq.), we make the following findings:
    (1) This rule will 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 will significantly or uniquely 
affect small governments because most of the lands adjacent to the 
streams being designated as critical habitat are owned by private 
landowners. These entities do not fit the definition of ``small 
governmental jurisdiction.'' The riparian habitat owned by Federal, 
State, or local governments that we are designating as critical habitat 
in this rule are either lands managed for conservation or lands already 
developed. Consequently, we do not believe that the critical habitat 
designation will significantly or uniquely affect small government 
entities. 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 yellow lance 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

[[Page 18202]]

would destroy or adversely modify critical habitat. A takings 
implications assessment has been completed and concludes that this 
designation of critical habitat for yellow lance 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 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 the critical habitat designation with, the 
appropriate State resource agencies. We did not receive comments from 
the States. 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 rule does not have substantial direct effects either on the 
State, or on the relationship between the Federal Government and the 
State, or on the distribution of powers and responsibilities among the 
various levels of government. The 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 to 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 these local governments in 
long-range planning (because these local governments 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) will 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 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 are designating critical 
habitat in accordance with the provisions of the Act. To assist the 
public in understanding the habitat needs of the species, this rule 
identifies the elements of physical or biological features essential to 
the conservation of the species. The designated areas of critical 
habitat are presented on maps, and the 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 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 identified no Tribal interests 
that will be affected by this rule.

References Cited

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

Authors

    The primary authors of this rule are the staff members of the U.S. 
Fish and Wildlife Service Species Assessment Team and Raleigh 
Ecological Services Field Office.

List of Subjects in 50 CFR Part 17

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

Regulation Promulgation

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

PART 17--ENDANGERED AND THREATENED WILDLIFE AND PLANTS

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

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


0
2. Amend Sec.  17.11(h) by revising the entry for ``Lance, yellow'' 
under Clams in the List of Endangered and Threatened Wildlife to read 
as follows:


Sec.  17.11  Endangered and threatened wildlife.

* * * * *
    (h) * * *

[[Page 18203]]



----------------------------------------------------------------------------------------------------------------
                                                                                          Listing citations and
           Common name              Scientific name      Where listed         Status         applicable rules
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
              Clams
 
                                                  * * * * * * *
Lance, yellow...................  Elliptio            Wherever found....  T              83 FR 14189, 4/3/2018;
                                   lanceolata.                                            50 CFR 17.95(f).\CH\
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------


0
3. Amend Sec.  17.95(f) by adding, immediately following the entry for 
``Rabbitsfoot (Quadrula cylindrica cylindrica),'' an entry for ``Yellow 
Lance (Elliptio lanceolata)'' to read as set forth below:


Sec.  17.95  Critical habitat--fish and wildlife.

* * * * *
    (f) Clams and Snails.
* * * * *
Yellow Lance (Elliptio lanceolata)
    (1) Critical habitat units are depicted for Franklin, Granville, 
Halifax, Johnston, Nash, Vance, Wake, and Warren Counties, North 
Carolina; Brunswick, Craig, Culpeper, Dinwiddie, Fauquier, Louisa, 
Lunenburg, Madison, Nottoway, Orange, and Rappahannock Counties, 
Virginia; and Howard and Montgomery Counties, Maryland, on the maps in 
this entry.
    (2) Within these areas, the physical or biological features 
essential to yellow lance conservation consist of the following 
components:
    (i) Suitable substrates and connected instream habitats, 
characterized by geomorphically stable stream channels and banks (i.e., 
channels that maintain lateral dimensions, longitudinal profiles, and 
sinuosity patterns over time without an aggrading or degrading bed 
elevation) with habitats that support a diversity of freshwater mussel 
and native fish (such as stable riffle-run-pool habitats that provide 
flow refuges consisting of silt-free gravel and coarse sand 
substrates).
    (ii) Adequate flows, or a hydrologic flow regime (which includes 
the severity, frequency, duration, and seasonality of discharge over 
time), necessary to maintain benthic habitats where the species is 
found and to maintain connectivity of streams with the floodplain, 
allowing the exchange of nutrients and sediment for maintenance of the 
mussel's and fish host's habitat, food availability, spawning habitat 
for native fishes, and the ability for newly transformed juveniles to 
settle and become established in their habitats.
    (iii) Water and sediment quality (including, but not limited to, 
conductivity, hardness, turbidity, temperature, pH, ammonia, heavy 
metals, and chemical constituents) necessary to sustain natural 
physiological processes for normal behavior, growth, and viability of 
all life stages.
    (iv) The presence and abundance of fish hosts necessary for yellow 
lance recruitment.
    (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 
May 10, 2021.
    (4) Critical habitat map units. Data layers defining map units were 
created by overlaying Natural Heritage Element Occurrence data and U.S. 
Geological Survey (USGS) hydrologic data for stream reaches. The 
hydrologic data used in the critical habitat maps were extracted from 
the USGS 1:1M scale nationwide hydrologic layer (https://nationalmap.gov/small_scale/mld/1nethyd.html) with a projection of 
EPSG:4269-NAD83 Geographic. The North Carolina, Virginia, and Maryland 
Natural Heritage program species presence data were used to select 
specific stream segments for inclusion in the critical habitat layer. 
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 http://www.regulations.gov under Docket No. 
FWS-R4-ES-2018-0094 and at the Raleigh Ecological Services Field 
Office. 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.

[[Page 18204]]

    (5) Note: Index map follows:
BILLING CODE 4333-15-P
[GRAPHIC] [TIFF OMITTED] TR08AP21.000


[[Page 18205]]


    (6) Unit 1: PR1--Patuxent River, Montgomery and Howard Counties, 
Maryland.
    (i) This unit consists of approximately 10 river miles (16.1 
kilometers (km)) of occupied habitat, including 3 miles (4.8 km) of the 
Patuxent River and 7 miles (11.3 km) of the Hawlings River. Unit 1 
includes stream habitat up to bank full height.
    (ii) Map of Unit 1 follows:
    [GRAPHIC] [TIFF OMITTED] TR08AP21.001
    

[[Page 18206]]


    (7) Unit 2: RR1--Rappahannock Subbasin, Rappahannock, Fauquier, and 
Culpeper Counties, Virginia.
    (i) This unit consists of approximately 44 river miles (70.8 km) of 
occupied habitat in the Rappahannock Subbasin, including 1.7 miles (2.7 
km) in Hungry Run, 7.9 miles (12.7 km) in Thumb Run, 5.9 miles (9.5 km) 
in South Run/Carter Run, 2.7 miles (4.3 km) in Great Run, and 25.8 
miles (41.6 km) in Rappahannock River. Unit 2 includes stream habitat 
up to bank full height.
    (ii) Map of Unit 2 follows:
    [GRAPHIC] [TIFF OMITTED] TR08AP21.002
    

[[Page 18207]]


    (8) Unit 3: RR2--Rapidan Subbasin, Madison and Orange Counties, 
Virginia.
    (i) This unit consists of 9 river miles (14.5 km) of occupied 
habitat in the Rapidan Subbasin, including 1.2 miles (1.9 km) in Marsh 
Run, 3.1 miles (5.0 km) in Blue Run, and 4.7 miles (7.6 km) in the 
Rapidan River. Unit 3 includes stream habitat up to bank full height.
    (ii) Map of Unit 3 follows:
    [GRAPHIC] [TIFF OMITTED] TR08AP21.003
    

[[Page 18208]]


    (9) Unit 4: YR1--South Anna River, Louisa County, Virginia.
    (i) This unit consists of approximately 8 river miles (12.9 km) of 
occupied habitat in the South Anna River. Unit 4 includes stream 
habitat up to bank full height.
    (ii) Map of Unit 4 follows:
    [GRAPHIC] [TIFF OMITTED] TR08AP21.004
    

[[Page 18209]]


    (10) Unit 5: JR1--Johns Creek, Craig County, Virginia.
    (i) This unit consists of approximately 14 river miles (22.5 km) of 
occupied habitat in the Johns Creek. Unit 5 includes stream habitat up 
to bank full height.
    (ii) Map of Unit 5 follows:
    [GRAPHIC] [TIFF OMITTED] TR08AP21.005
    

[[Page 18210]]


    (11) Unit 6: CR1--Nottoway Subbasin, Nottoway, Lunenburg, 
Brunswick, and Dinwiddie Counties, Virginia.
    (i) This unit consists of approximately 41 river miles (66 km) of 
occupied habitat in the Nottoway Subbasin, including 1.4 miles (2.3 km) 
in Crooked Creek, 3.3 miles (5.3 km) in Sturgeon Creek, and 36.3 miles 
(58.4 km) in the Nottoway River. Unit 6 includes stream habitat up to 
bank full height.
    (ii) Map of Unit 6 follows:
    [GRAPHIC] [TIFF OMITTED] TR08AP21.006
    

[[Page 18211]]


    (12) Unit 7: TR1--Tar River, Granville, Vance, Franklin, and Nash 
Counties, North Carolina.
    (i) This unit consists of approximately 91 river miles (146.5 km) 
of occupied habitat in the Tar River, including 4.4 miles (7.1 km) in 
Ruin Creek, 11.9 miles (19.2 km) in Tabbs Creek, 6.8 miles (10.9 km) in 
Crooked Creek, and 67.9 miles (109.3 km) in the Tar River. Unit 7 
includes stream habitat up to bank full height.
    (ii) Map of Unit 7 follows:
    [GRAPHIC] [TIFF OMITTED] TR08AP21.007
    

[[Page 18212]]


    (13) Unit 8: TR2--Sandy/Swift Creek, Vance, Warren, Halifax, 
Franklin, and Nash Counties, North Carolina.
    (i) This unit consists of 31 river miles (50 km) of occupied 
habitat in the Sandy and Swift Creeks. Unit 8 includes stream habitat 
up to bank full height.
    (ii) Map of Unit 8 follows:
    [GRAPHIC] [TIFF OMITTED] TR08AP21.008
    

[[Page 18213]]


    (14) Unit 9: TR3--Fishing Creek Subbasin, Vance, Warren, Halifax, 
Franklin, and Nash Counties, North Carolina.
    (i) This unit consists of approximately 37 river miles (59.5 km) of 
occupied habitat in the Fishing Creek Subbasin, including 1.6 miles 
(2.6 km) in Richneck Creek, 8.0 miles (12.9 km) in Shocco Creek, and 
27.4 miles (44 km) in Fishing Creek. Unit 9 includes stream habitat up 
to bank full height.
    (ii) Map of Unit 9 follows:
    [GRAPHIC] [TIFF OMITTED] TR08AP21.009
    

[[Page 18214]]


    (15) Unit 10: NR1--Swift Creek, Wake and Johnston Counties, North 
Carolina.
    (i) This unit consists of approximately 24 river miles (38.6 km) of 
occupied habitat in the Swift Creek. Unit 10 includes stream habitat up 
to bank full height.
    (ii) Map of Unit 10 follows:
    [GRAPHIC] [TIFF OMITTED] TR08AP21.010
    

[[Page 18215]]


    (16) Unit 11: NR2--Little River, Johnston County, North Carolina.
    (i) This unit consists of approximately 10 river miles (16.1 km) of 
occupied habitat in the Little River. Unit 11 includes stream habitat 
up to bank full height.
    (ii) Map of Unit 11 follows:
    [GRAPHIC] [TIFF OMITTED] TR08AP21.011
    
* * * * *

Martha Williams,
Principal Deputy Director, Exercising the Delegated Authority of the 
Director, U.S. Fish and Wildlife Service.
[FR Doc. 2021-06736 Filed 4-7-21; 8:45 am]
BILLING CODE 4333-15-C