[Federal Register Volume 86, Number 71 (Thursday, April 15, 2021)]
[Proposed Rules]
[Pages 19838-19863]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-07243]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
[Docket Nos. FWS-R4-ES-2017-0061 and FWS-R4-ES-2020-0137; FF09E2100
FXES11110900000 212]
RIN 1018-BC14; 1018-BD50
Endangered and Threatened Wildlife and Plants; Threatened Species
Status, Section 4(d) Rule, and Designation of Critical Habitat for
Panama City Crayfish
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Proposed rule; reopening of comment period and announcement of
public hearing.
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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), reopen the
public comment period on the proposed rule to list the Panama City
crayfish (Procambarus econfinae) as a threatened species under the
Endangered Species Act of 1973, as amended (Act); propose a rule issued
under section 4(d) of the Act (``4(d) rule'') for the species; and
propose to designate critical habitat for the Panama City crayfish
under the Act. In total, approximately 7,177 acres (2,904 hectares) in
Bay County, Florida, fall within the boundaries of the proposed
critical habitat designation, all of which are currently occupied by
the species. We also announce the availability of a draft economic
analysis (DEA) for the proposed designation of critical habitat for the
Panama City crayfish. We will accept comments on the proposed listing,
4(d) rule, and critical habitat designation, as well as the draft
economic analysis, during the open comment period. Finally, we announce
a public informational meeting and public hearing on the proposed
listing rule and this proposed rule.
DATES:
Written comments: The comment period on the proposed rule that
published January 3, 2018 (83 FR 330), is reopened. We will accept
comments on that proposed rule, as well as the new proposals described
in this document, that are received or postmarked on or before June 14,
2021. Comments submitted electronically using the Federal eRulemaking
Portal (see ADDRESSES, below) must be received by 11:59 p.m. Eastern
Time on the closing date.
Public informational meeting and public hearing: We will hold a
public informational meeting on May 4, 2021, from 6 p.m. to 7:30 p.m.,
Central Time, followed by a public hearing from 7:30 p.m. to 8:30 p.m.,
Central Time.
ADDRESSES: You may submit comments on the proposed rules or draft
economic analysis by one of the following methods:
(1) Electronically: Go to the Federal eRulemaking Portal: http://www.regulations.gov. In the Search box, enter Docket No. FWS-R4-ES-
2017-0061 for the proposed listing, or FWS-R4-ES-2020-0137 for the
proposed 4(d) rule and critical habitat designation (including the
associated draft economic analysis), which are the docket numbers for
the rulemakings. Then, click on the Search button. On the resulting
page, in the Search panel on the left side of the screen, under the
Document Type heading, check the Proposed Rule box to locate the
correct document. You may submit a comment by clicking on ``Comment
Now!''
(2) By hard copy: Submit by U.S. mail to: Public Comments
Processing, Attn: [Docket No. FWS-R4-ES-2017-0061 for the proposed
listing, or FWS-R4-ES-2020-0137 for the proposed 4(d) rule and critical
habitat designation (including the associated draft economic
analysis)], U.S. Fish and Wildlife Service, MS: PRB/3W, 5275 Leesburg
Pike, Falls Church, VA 22041-3803.
We request that you send comments only by the methods described
above. We will post all comments on http://www.regulations.gov. This
generally means that we will post any personal information you provide
us (see Information Requested, below, for more information).
Public informational meeting and public hearing: The public
informational meeting and the public hearing will be held virtually
using the Zoom platform. See Public Hearing, below, for more
information.
Availability of supporting materials: For the proposed critical
habitat designation, the shapefiles from which the maps are generated
are included in the administrative record and are available at http://www.regulations.gov under Docket No. FWS-R4-ES-2020-0137. Any
additional tools or supporting information that we may develop for the
critical habitat designation may also be included in the preamble and/
or at http://www.regulations.gov.
FOR FURTHER INFORMATION CONTACT: Jay Herrington, Field Supervisor, U.S.
Fish and Wildlife Service, Florida Ecological Services Field Office,
1601 Balboa Avenue, Panama City, FL 32405; telephone 904-731-3191;
facsimile 904-731-3045. If you use a telecommunications device for the
deaf (TDD), call the Federal Relay Service at 800-877-8339.
SUPPLEMENTARY INFORMATION:
Executive Summary
Why we need to publish a rule. Under section 4(d) of the Act,
whenever any species is listed as a threatened species, we are required
to issue any regulations deemed necessary and advisable to provide for
the conservation of such species. Also, any species that is determined
to be endangered or threatened under the Act requires critical habitat
to be designated, to the maximum extent prudent and determinable. The
Panama City crayfish is proposed as a threatened species under the Act,
and this document proposes regulations we deem necessary and advisable
under section 4(d) of the Act, and also proposes to designate critical
habitat. Designations and revisions of critical habitat can only be
completed by issuing a rule. In light of the time that has passed since
the publication of the proposed listing rule and the receipt of new
scientific information, we are also reopening the comment period for
the proposed listing rule.
What this document does. We are concurrently reopening the comment
period for the proposed listing rule, proposing a 4(d) rule, and
proposing to designate critical habitat for the Panama City crayfish. A
draft economic analysis on impacts expected from the critical habitat
proposal is also available.
The basis for our action. Under the Act, we may determine that a
species is an endangered or threatened species because of any of five
factors: (A) The present or threatened destruction, modification, or
curtailment of its
[[Page 19839]]
habitat or range; (B) overutilization for commercial, recreational,
scientific, or educational purposes; (C) disease or predation; (D) the
inadequacy of existing regulatory mechanisms; or (E) other natural or
manmade factors affecting its continued existence. Our proposed rule
identified habitat loss and fragmentation from development (Factor A)
as a primary threat to the Panama City crayfish, making the species
warranted for protection as a threatened species under the Act.
The Act provides a specific list of prohibitions for endangered
species under section 9, but the Act does not automatically extend
these same prohibitions to threatened species. Under section 4(d), the
Act instructs the Secretary of the Interior (Secretary) to issue any
protective regulations deemed necessary and advisable for the
conservation of threatened species. It also indicates the Secretary may
extend some or all of the prohibitions in section 9 to threatened
species. We are proposing a 4(d) rule that specifically tailors
measures that provide for the conservation of the Panama City crayfish.
Section 4(a)(3) of the Act requires the Secretary to designate
critical habitat concurrent with listing to the maximum extent prudent
and determinable. Section 3(5)(A) of the Act defines critical habitat
as (i) the specific areas within the geographical area occupied by the
species, at the time it is listed, on which are found those physical or
biological features (I) essential to the conservation of the species
and (II) which may require special management considerations or
protections; and (ii) specific areas outside the geographical area
occupied by the species at the time it is listed, upon a determination
by the Secretary that such areas are essential for the conservation of
the species. Section 4(b)(2) of the Act states that the Secretary must
make the designation on the basis of the best scientific data available
and after taking into consideration the economic impact, the impact on
national security, and any other relevant impacts of specifying any
particular area as critical habitat.
We prepared an economic analysis of the proposed designation of
critical habitat. In order to consider economic impacts, we prepared an
analysis of the economic impacts of the proposed critical habitat
designation. We hereby announce the availability of the draft economic
analysis and seek public review and comment.
Peer review. In accordance with our joint policy on peer review
published in the Federal Register on July 1, 1994 (59 FR 34270), and
our August 22, 2016, memorandum updating and clarifying the role of
peer review of listing actions under the Act, we sought the expert
opinions of nine appropriate specialists regarding version 1.1 of the
species status assessment (SSA) report, and four appropriate
specialists regarding version 2.0 of the SSA report. We received
responses from four specialists for each version (total of eight peer
reviews), which informed this proposed rule. The purpose of peer review
is to ensure that our listing determinations, critical habitat
designations, and 4(d) rules are based on scientifically sound data,
assumptions, and analyses. The peer reviewers have expertise in the
species' biology, habitat, and response to threats.
Information Requested
We intend that any final action resulting from this proposed rule
will be based on the best scientific and commercial data available and
be as accurate and as effective as possible. Therefore, we request
comments or information from other government agencies, Native American
Tribes, the scientific community, industry, or any other interested
party concerning this proposed rule. We particularly seek comments
concerning:
(1) The historical and current status and distribution of the
Panama City crayfish, its biology and ecology, specific threats (or
lack thereof) and regulations that may be addressing those threats and
ongoing conservation measures for the species and its habitat.
(2) Information relevant to the factors that are the basis for
making a listing determination for a species under section 4(a) of the
Act, which are:
(a) The present or threatened destruction, modification, or
curtailment of the species' habitat or range;
(b) Overutilization for commercial, recreational, scientific, or
educational purposes;
(c) Disease or predation;
(d) The inadequacy of existing regulatory mechanisms; or
(e) Other natural or manmade factors affecting its continued
existence and threats to the species or its habitat.
(3) The reasons why we should or should not designate habitat as
``critical habitat'' under section 4 of the Act (16 U.S.C. 1531 et
seq.), including information to inform the following factors that the
regulations identify as reasons why designation of critical habitat may
be not prudent:
(a) The species is threatened by taking or other human activity and
identification of critical habitat can be expected to increase the
degree of such threat to the species;
(b) The present or threatened destruction, modification, or
curtailment of a species' habitat or range is not a threat to the
species, or threats to the species' habitat stem solely from causes
that cannot be addressed through management actions resulting from
consultations under section 7(a)(2) of the Act;
(c) Areas within the jurisdiction of the United States provide no
more than negligible conservation value, if any, for a species
occurring primarily outside the jurisdiction of the United States; or
(d) No areas meet the definition of critical habitat.
(4) Specific information on:
(a) The amount and distribution of Panama City crayfish habitat;
(b) What areas, that are occupied at the time of listing and that
contain the physical or biological features essential to the
conservation of the species, should be included in the designation and
why;
(c) Special management considerations or protection that may be
needed in critical habitat areas we are proposing, including managing
for the potential effects of climate change;
(d) What areas not occupied at the time of listing are essential
for the conservation of the species and why;
(e) Information about conservation efforts that may affect proposed
critical habitat areas; and
(f) Information about the proposed 100-meter (328-foot) buffer
within secondary soils, and whether we should consider increasing or
decreasing that buffer.
(5) Land use designations and current or planned activities in the
subject areas and their possible impacts on proposed critical habitat.
(6) Information on the projected and reasonably likely impacts of
climate change on the Panama City crayfish and proposed critical
habitat.
(7) Any probable economic, national security, or other relevant
impacts of designating any area that may be included in the final
designation, and the benefits of including or excluding specific areas.
(8) Information on the extent to which the description of probable
economic impacts in the draft economic analysis is a reasonable
estimate of the likely economic impacts and the description of the
environmental impacts in the draft environmental assessment is complete
and accurate, especially in light of impacts from Hurricane Michael in
October 2018.
(9) Whether any specific areas we are proposing for critical
habitat designation should be considered for exclusion under section
4(b)(2) of the
[[Page 19840]]
Act, and whether the benefits of potentially excluding any specific
area outweigh the benefits of including that area under section 4(b)(2)
of the Act.
(10) Whether we could improve or modify our approach to designating
critical habitat in any way to provide for greater public participation
and understanding, or to better accommodate public concerns and
comments.
(11) Information on regulations that are necessary and advisable to
provide for the conservation of the Panama City crayfish and that the
Service can consider in developing a 4(d) rule for the species. In
particular, information concerning the extent to which we should
include any of the section 9 prohibitions in the 4(d) rule or whether
any other forms of take should be excepted from the prohibitions in the
4(d) rule.
Please include sufficient information with your submission (such as
scientific journal articles or other publications) to allow us to
verify any scientific or commercial information you include.
Please note that submissions merely stating support for, or
opposition to, the action under consideration without providing
supporting information, although noted, will not be considered in
making a determination, as section 4(b)(1)(A) of the Act directs that
determinations as to whether any species is an endangered or a
threatened species must be made ``solely on the basis of the best
scientific and commercial data available.'' Comments previously
submitted need not be resubmitted, as they will be fully considered in
preparation of the final rule.
You may submit your comments and materials concerning this proposed
rule by one of the methods listed in ADDRESSES. We request that you
send comments only by the methods described in the ADDRESSES.
If you submit information via http://www.regulations.gov, your
entire submission--including any personal identifying information--will
be posted on the website. If your submission is made via a hardcopy
that includes personal identifying information, you may request at the
top of your document that we withhold this information from public
review. However, we cannot guarantee that we will be able to do so. We
will post all hardcopy submissions on http://www.regulations.gov.
Comments and materials we receive, as well as supporting
documentation we used in preparing this proposed rule, will be
available for public inspection on http://www.regulations.gov.
Because we will consider all comments and information we receive
during the comment period, our final determinations may differ from
this proposal. Based on the new information we receive (and any
comments on that new information), we may conclude that the species is
endangered instead of threatened, or we may conclude that the species
does not warrant listing as either an endangered species or a
threatened species. In addition, we may change the parameters of the
prohibitions or the exceptions to those prohibitions if we conclude it
is appropriate in light of comments and new information received. For
example, we may expand the incidental-take prohibitions to include
prohibiting additional activities if we conclude that those additional
activities are not compatible with conservation of the species.
Conversely, we may establish additional exceptions to the incidental-
take prohibitions in the final rule if we conclude that the activities
would facilitate or are compatible with the conservation and recovery
of the species. For critical habitat, our final designation may not
include all areas proposed, may include some additional areas, and may
exclude some areas if we find the benefits of exclusion outweigh the
benefits of inclusion.
Public Hearing
We are holding a public informational meeting followed by a public
hearing on the date and at the time listed in DATES. We are holding the
public informational meeting and public hearing via the Zoom online
video platform and via teleconference so that participants can attend
remotely. For security purposes, registration is required. To listen
and view the meeting and hearing via Zoom, listen to the meeting and
hearing by telephone, or provide oral public comments at the public
hearing by Zoom or telephone, you must register. For information on how
to register, or if you encounter problems joining Zoom the day of the
meeting, visit http://www.fws.gov/panamacity. Registrants will receive
the Zoom link and the telephone number for the public informational
meeting and public hearing. If applicable, interested members of the
public not familiar with the Zoom platform should view the Zoom video
tutorials (https://support.zoom.us/hc/en-us/articles/206618765-Zoom-video-tutorials) prior to the public informational meeting and public
hearing.
We are holding the public informational meeting to present
information about the January 3, 2018, proposed rule to list the Panama
City crayfish as a threatened species (83 FR 330) and to provide
interested parties an opportunity to ask questions about the proposed
4(d) rule and proposed designation of critical habitat. The public
hearing will provide interested parties an opportunity to present
verbal testimony (formal, oral comments) regarding the January 3, 2018,
proposed rule to list the Panama City crayfish as a threatened species
(83 FR 330), the proposed 4(d) rule, and the proposed designation of
critical habitat. While the public informational meeting will be an
opportunity for dialogue with the Service, the public hearing is not:
It is a forum for accepting formal verbal testimony. In the event there
is a large attendance, the time allotted for oral statements may be
limited. Therefore, anyone wishing to make an oral statement at the
public hearing for the record is encouraged to provide a prepared
written copy of their statement to us through the Federal eRulemaking
Portal, or U.S. mail (see ADDRESSES, above). There are no limits on the
length of written comments submitted to us. Anyone wishing to make an
oral statement at the public hearing must register before the hearing
(http://www.fws.gov/panamacity). The use of a virtual public hearing is
consistent with our regulations at 50 CFR 424.16(c)(3).
Reasonable Accommodation
The Service is committed to providing access to the public
informational meeting and public hearing for all participants. Closed
captioning will be available during the public informational meeting
and public hearing. Further, a full audio and video recording and
transcript of the public hearing will be posted online at http://www.fws.gov/panamacity after the hearing. Participants will also have
access to live audio during the public informational meeting and public
hearing via their telephone or computer speakers. Persons with
disabilities requiring reasonable accommodations to participate in the
meeting and/or hearing should contact the person listed under FOR
FURTHER INFORMATION CONTACT at least 5 business days prior to the date
of the meeting and hearing to help ensure availability. An accessible
version of the Service's public informational meeting presentation will
also be posted online at http://www.fws.gov/panamacity prior to the
meeting and hearing (see DATES, above). See http://www.fws.gov/panamacity for more information about reasonable accommodation.
[[Page 19841]]
Previous Federal Actions
All previous Federal actions are described in the proposal to list
the Panama City crayfish as a threatened species under the Act
published in the Federal Register on January 3, 2018 (83 FR 330).
Supporting Documents
A species status assessment (SSA) team prepared an SSA report for
the Panama City crayfish. The SSA team was composed of Service
biologists, in consultation with other species experts. The SSA report
represents a compilation of the best scientific and commercial data
available concerning the status of the species, including the impacts
of past, present, and future factors (both negative and beneficial)
affecting the species. The Service sent version 1.1 of the SSA report
to nine independent peer reviewers and received four responses. The
Service also sent the SSA report to two academic partners for review,
and we received review from both partners. The Service sent version 2.0
of the SSA report to four peer reviewers and received four responses.
Background
It is our intent to discuss in this document only those topics
directly relevant to the new scientific information procured and
analyzed since the proposed listing rule's publication, in addition to
discussing the proposed section 4(d) rule and designation of critical
habitat for the Panama City crayfish. For more information on the
Panama City crayfish generally, refer to the proposed listing rule
published in the Federal Register on January 3, 2018 (83 FR 330). A
thorough review of the taxonomy, life history, and ecology of the
Panama City crayfish (Procambarus econfinae) is presented in the
revised SSA report, version 2.0 (Service 2019).
Species Description
The Panama City crayfish is a small, semi-terrestrial crayfish that
grows to about 2 inches (in) (50.8 millimeters (mm)) in length (minus
claws), and is found in south-central Bay County, Florida. The species'
color pattern consists of a medium dark-brown background color, lighter
brown mid-dorsal stripe, and darker brown dorsolateral stripes (FWC
2016, p. 1). The Panama City crayfish was first described by Hobbs in
1942 from Bay County, Panama City, Florida. Currently, the Panama City
crayfish is classified in the family Cambaridae and is considered a
valid taxon by the scientific community (Taylor et al. 1996, 2007;
Integrated Taxonomic Information System 2017).
The life history of the Panama City crayfish specifically is not
well known. Cambarid crayfish may live about 2.5 to 3 years (Hobbs
2001, p. 977), with a generation period of 2 years. For this family of
crayfish, the majority breed more than once, with mating among mature
yearlings frequent; however, many individuals do not become sexually
active until late summer or fall. Females may produce between 30 and
160 eggs and have been found with eggs and/or young from March through
September. Juveniles are most frequently found in the summer and have
been observed through December, so young appear to be produced from at
least March through December. Juveniles can be carried overland by
moving water during rainy periods, which aids in dispersal (Keppner and
Keppner 2002, p. 11).
Eight crayfish species occur within the range of the Panama City
crayfish, although only the hatchet crayfish, Procambarus kilbyi, and
the jackknife crayfish, Procambarus hubbelli, are found in the same
habitat as the Panama City crayfish and may co-occur with it (FWC
2017). The Panama City crayfish is not known to hybridize with other
species of crayfish.
Historically, the species inhabited natural and often temporary
bodies of shallow fresh water within open pine flatwoods and wet
prairie-marsh communities. However, most of these communities have been
cleared for residential or commercial development or replaced with
slash pine plantations. The Panama City crayfish currently inhabits the
waters of grassy, gently sloped ditches and swales, slash pine
plantations, utility rights-of-way, and a few remnant parcels protected
under wetland and private easements (FWC 2016, p. 2).
The highest densities of Panama City crayfish have been recorded in
areas with little to no shrub or tree cover (FWC 2016, p. 2). Suitable
habitat is normally dominated by herbaceous vegetation. Lowest
population densities have occurred in small, open sites where shrubs or
trees were present, or in the furrows between bedding rows in some pine
plantations (Keppner and Keppner 2005). When encountered in dense titi
(Cyrilla racemiflora and Cliftonia monophylla) swamps, the species was
associated with temporarily inundated areas open to the sun with some
herbaceous vegetation. Such sites may be considered secondary or
suboptimal habitat for the species. On sites where mixed habitat
features are present (e.g., partially wooded sites or sites with
permanent, deep-water ponds), the Panama City crayfish appears to
select favorable areas dominated by herbaceous vegetation, with shallow
or fluctuating water levels (FWC 2016, p. 3; Keppner and Keppner 2005).
The Panama City crayfish relies on particular soil types for burrow
construction and supporting the herbaceous vegetation; these soil types
are categorized as core or secondary soils. Core soils provide the best
substrate to support the species; secondary soils are less ideal but
still used. The core and secondary soil types that support Panama City
crayfish within the species' known range are described in more detail
in the SSA report (Service 2019, pp. 23-24).
Panama City crayfish build burrows for shelter, which are normally
in or adjacent to surface water when it is present on the hydric soils
they inhabit (Hobbs 1981). They construct burrows that contact the
water table as the surface water of their habitat recedes, and they
occupy burrows when surface water is absent or during periods of
extreme water temperatures. They emerge from the burrows when surface
water is present again or water temperatures are favorable. It appears
that they can survive significant periods of drought in their burrows
when they can maintain contact with the water table. During these dry
periods, the Panama City crayfish excavates and lives in unbranched
burrows up to 3 feet long that extend down to the water table, thereby
enabling the species to remain adequately hydrated and survive (FWC
2016, p. 3).
Little is known about the specific feeding habits of the Panama
City crayfish. Observations on Panama City crayfish that were held in
aquaria spanning 1.5 plus years (Keppner 2014, entire) indicate that
they are detritivores and herbivores. Specimens were offered dead
animal material, but they avoided it in favor of processing the
substrate for particles of prepared fish food and the fresh aquatic
vegetation that were provided as primary food sources. Herbaceous
vegetation likely serves as a food source for the Panama City crayfish.
The Panama City crayfish historically ranged throughout south-
central Bay County, Florida, within a 56-square-mile area (see figure,
below). The historical range likely created one population connected by
core and secondary soils. As urban growth came to Panama City, the
range became fragmented and isolated patches. Today, the species has 12
localized populations that can be divided into two distinct
[[Page 19842]]
groups: The western and eastern group. The western group includes eight
populations, and the eastern group includes four populations. The 12
populations are described in more detail in the SSA report (Service
2019, pp. 37-52), and are referred to as 19th Street, Old Airport, 390
West, Talkington, Minnesota, Edwards, Transmitter West, College Point,
Deer Point, High Point, Star, and Transmitter East.
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Conservation Strategy
We developed a conservation strategy for Panama City crayfish to
identify critical conservation needs (Service 2017, entire). In this
conservation strategy, we rely on the known persistence over time of
small populations and published meta-analysis (Traill 2007, entire) to
estimate that 2,200 acres of actively managed habitat permanently
protected and managed within at least seven population units should
ensure the Panama City crayfish remains viable for the foreseeable
future. This acreage amount is based on a minimum viable population
size (MVP) for Panama City crayfish of 5,137 individuals.
Applying the MVP of 5,137 individuals to an estimate of Panama City
crayfish population density gives us an estimate of the minimum viable
habitat area required to support highly resilient crayfish populations.
Thus far, our estimated population sizes at three sites (19th Street,
Transmitter West, Talkington) have ranged from 34 to 623 Panama City
crayfish in overall habitat areas ranging from 3 to 232 acres (1.2 to
93.9 hectares). Population estimates ranged from 3 to 9 crayfish per
acre, which would equate to 6,600 to 19,800 Panama City crayfish if
applied across the currently occupied range of the species.
The Panama City crayfish needs multiple resilient populations
spread
[[Page 19843]]
across its range to avoid extinction, although how much redundancy
among populations is often uncertain. We currently estimate that 2,200
acres (890 hectares) of permanently protected Panama City crayfish
habitat would sustain the viability of multiple (up to 7) populations
depending on habitat quality. We estimate that protecting at least four
large core populations with between 200 and 800 acres (81 and 324
hectares) within each population, in addition to three smaller
populations (less than 200 acres (81 hectares) in size), to be managed
with fire or mowing every 2 to 3 years, along with a plan to restore
existing conservation easements that have suitable soils for the
crayfish will sustain the crayfish into the future (Service 2017,
entire). While additional field studies should help to refine this
estimate, we determined the conservation goal of 2,200 acres that are
permanently protected (890 hectares) would support Panama City crayfish
for the foreseeable future. However, at this time, agreements are not
in place to ensure the necessary protections, and we do not have
certainty about whether and where, or in what configuration, those
protections may occur on the landscape.
New Information Regarding Species Status Assessment
On January 3, 2018, we proposed to list the Panama City crayfish as
a threatened species (83 FR 330). We accepted comments on the proposal
for 60 days, ending on March 5, 2018. Based on information we received
during the public comment period, we revised the analysis in our SSA
report (version 2.0, Service 2019, entire). See Appendix IV of the
report for details regarding the changes made from version 1.1 to
version 2.0 (Service 2019, p. 114). Notably, new genetic information
was incorporated into the analysis resulting in the 231-north
population being combined with the Star population because they were
found to be not genetically distinct; that combined population is now
referred to as the Star Avenue population (Duncan et al. 2017, entire).
In addition, several of the names of the populations were modified to
better reflect location information.
Based on comments received, the current condition analysis was
revised to adjust population factors and add information on mark-
recapture population estimates. Additionally, the habitat ranking
analysis was revised based on information provided during peer review,
resulting in revised current habitat conditions for several of the
populations (Service 2019, pp. 61-62).
Subsequent to the proposed listing, Hurricane Michael made landfall
in Panama City, Florida, on October 10, 2018. A quick assessment was
conducted a few weeks post-storm by the Florida Fish and Wildlife
Commission (FWC) (FWC 2018, entire), noting downed trees and difficulty
for mowing maintenance activities in Panama City crayfish habitats.
Power outages from the storm necessitated use of heavy equipment in
powerline habitat areas, resulting in extensive rutting and soil
compaction in Panama City crayfish habitat. Despite widespread impacts
to many areas post-storm, preliminary mark-recapture survey efforts did
not show any reduction in Panama City crayfish population size
estimates compared to pre-storm estimates.
The future condition tables and subsequent interpretations were
revised based on new analysis (Service 2019, pp. 79-93). In summary,
the overall estimate of the Panama City crayfish's resiliency remains
low across the majority of its geographic range, particularly in the
urbanized western portion. As a result, Panama City crayfish may become
extirpated from the vast majority of its range. Future development will
likely result in low resiliency, redundancy, and representation across
70 percent of the species' range by 2030. However, as described below,
if the remainder (i.e., eastern portion) is protected from development
and conservation efforts are focused in the less developed habitat
areas, the species is predicted to sustain populations in the wild for
the foreseeable future. The most notable revision to the SSA report is
the inclusion of a new conservation scenario for our analysis of future
conditions (Service 2019, pp. 93-98). This conservation scenario is
based on the conservation strategy that includes permanent protection
and management of approximately 2,200 acres (890 hectares) of habitat
across seven populations (Service 2017, entire). The predicted outcomes
of the conservation scenario are straightforward, with populations with
higher resiliency continuing to maintain or have improved resiliency in
the future as land management efforts improve. Although anticipated
habitat protection and habitat management will not immediately change
any of the overall current condition ranks, it should, when coupled
with the population management measures agreed to by FWC and the
Service, ensure that populations with high resiliency will remain so
regardless of future development, which is the primary threat to the
Panama City crayfish. Additionally, population management measures
(e.g., translocation) detailed in this scenario should improve the
genetic health and population size of several managed populations.
Finally, improved monitoring and applied research agreed to by the
Service and FWC should also improve our knowledge of the status of each
population to better adjust management actions as needed in the future.
Bay County staff and staff with the Florida Department of
Transportation (FDOT) have taken the initiative to expedite
conservation of the Panama City crayfish. These efforts, when merged
with a longstanding partnership between the FWC and the Service,
provide the potential for a significant change in the outlook on the
future status of the Panama City crayfish. The prospect of a large
acquisition of land to protect the species from its primary threat of
habitat loss through development is being considered by those who have
a stake in the conservation of the Panama City crayfish. Along with a
variety of habitat management commitments to be implemented by, or with
the oversight of, FWC, the Service, and local partners, this could
provide a substantial and immediate benefit to a species that is
experiencing rapid declines in its small remaining habitat areas.
We have carefully assessed this new scientific and commercial
information in light of the past, present, and future threats to the
Panama City crayfish. Our analysis of this information indicates that,
at the species level, habitat development continues to be the primary
factor affecting the Panama City crayfish now and into the future.
Based on our analysis of the species' current and future
conditions, we conclude that the population and habitat factors used to
determine the resiliency, representation, and redundancy for Panama
City crayfish will continue to decline so that it is likely that the
species will become in danger of extinction within the foreseeable
future throughout its range. Therefore, on the basis of the best
available scientific and commercial information, we affirm our proposed
listing of the Panama City crayfish as a threatened species in
accordance with sections 3(20) and 4(a)(1) of the Act.
[[Page 19844]]
Proposed Rule Issued Under Section 4(d) of the Act for the Panama City
Crayfish
Background
Section 4(d) of the Act contains two sentences. The first sentence
states that the Secretary shall issue such regulations as he deems
necessary and advisable to provide for the conservation of species
listed as threatened. The U.S. Supreme Court has noted that statutory
language like ``necessary and advisable'' demonstrates a large degree
of deference to the agency (see Webster v. Doe, 486 U.S. 592 (1988)).
Conservation is defined in the Act to mean the use of all methods and
procedures which are necessary to bring any endangered species or
threatened species to the point at which the measures provided pursuant
to the Act are no longer necessary. Additionally, the second sentence
of section 4(d) of the Act states that the Secretary may by regulation
prohibit with respect to any threatened species any act prohibited
under section 9(a)(1), in the case of fish or wildlife, or section
9(a)(2), in the case of plants. Thus, the combination of the two
sentences of section 4(d) provides the Secretary with wide latitude of
discretion to select and promulgate appropriate regulations tailored to
the specific conservation needs of the threatened species. The second
sentence grants particularly broad discretion to the Service when
adopting the prohibitions under section 9.
The courts have recognized the extent of the Secretary's discretion
under this standard to develop rules that are appropriate for the
conservation of a species. For example, courts have upheld rules
developed under section 4(d) as a valid exercise of agency authority
where they prohibited take of threatened wildlife or include a limited
taking prohibition (see Alsea Valley Alliance v. Lautenbacher, 2007
U.S. Dist. Lexis 60203 (D. Or. 2007); Washington Environmental Council
v. National Marine Fisheries Service, 2002 U.S. Dist. Lexis 5432 (W.D.
Wash. 2002)). Courts have also upheld 4(d) rules that do not address
all of the threats a species faces (see State of Louisiana v. Verity,
853 F.2d 322 (5th Cir. 1988)). As noted in the legislative history when
the Act was initially enacted, ``once an animal is on the threatened
list, the Secretary has an almost infinite number of options available
to him with regard to the permitted activities for those species. He
may, for example, permit taking, but not importation of such species,
or he may choose to forbid both taking and importation but allow the
transportation of such species'' (H.R. Rep. No. 412, 93rd Cong., 1st
Sess. 1973).
Exercising this authority under the Act's section 4(d), we have
developed a proposed rule that is designed to address the Panama City
crayfish's specific threats and conservation needs. Although the
statute does not require us to make a ``necessary and advisable''
finding with respect to the adoption of specific prohibitions under
section 9, we find that this rule as a whole satisfies the requirement
in section 4(d) of the Act to issue regulations deemed necessary and
advisable to provide for the conservation of the Panama City crayfish.
As described in the Summary of Biological Status and Threats section of
the proposed listing rule (83 FR 330; January 3, 2018), we concluded
that the Panama City crayfish is likely to become in danger of
extinction within the foreseeable future primarily due to habitat loss
and degradation, habitat fragmentation, and subpopulation isolation due
to development.
The provisions of this proposed 4(d) rule would promote
conservation of the Panama City crayfish by encouraging management of
the landscape in ways that meet the conservation needs of the Panama
City crayfish and are consistent with land management considerations.
The provisions of this proposed rule are one of many tools that we
would use to promote the conservation of the Panama City crayfish. This
proposed 4(d) rule would apply only if and when we finalize the listing
of the Panama City crayfish as a threatened species.
Provisions of the Proposed 4(d) Rule
This proposed 4(d) rule would provide for the conservation of the
Panama City crayfish by prohibiting the following activities, except as
otherwise authorized or permitted: Importing or exporting; take;
possession and other acts with unlawfully taken specimens; delivering,
receiving, transporting, or shipping in interstate or foreign commerce
in the course of commercial activity; or selling or offering for sale
in interstate or foreign commerce.
Multiple factors are affecting the status of the Panama City
crayfish, with the primary threats resulting in habitat loss and
degradation, habitat fragmentation, and population isolation. A range
of activities have the potential to affect these species, including
farming and grazing practices, improper silvicultural practices,
creation of roadside ditches, rights-of-way, development of residential
or commercial properties, and collection for bait (Service 2019, pp.
65-66). These threats, which are expected to be exacerbated by
continued development along with the effects of climate change, were
central to our assessment of the future viability of the Panama City
crayfish.
Under the Act, ``take'' means to harass, harm, pursue, hunt, shoot,
wound, kill, trap, capture, or collect, or to attempt to engage in any
such conduct. Some of these provisions have been further defined in
regulations at 50 CFR 17.3. Take can result knowingly or otherwise, by
direct and indirect impacts, intentionally or incidentally. Regulating
incidental and intentional take would help preserve the species'
remaining populations, slow their rate of decline, and decrease
synergistic, negative effects from other stressors. Therefore, we
propose to prohibit intentional and incidental take of the Panama City
crayfish, except for those actions and activities specifically excepted
by the 4(d) rule.
We may issue permits to carry out otherwise prohibited activities,
including those described above, involving threatened wildlife under
certain circumstances. Regulations governing permits for threatened
wildlife are codified at 50 CFR 17.32. With regard to threatened
wildlife, a permit may be issued for the following purposes: For
scientific purposes, to enhance the propagation or survival of the
species, for economic hardship, for zoological exhibition, for
educational purposes, for incidental taking, or for special purposes
consistent with the purposes of the Act. There are also certain
statutory exemptions from the prohibitions, which are found in sections
9 and 10 of the Act.
The proposed 4(d) rule would also provide for the conservation of
the species by allowing exceptions to actions and activities that,
while they may have some minimal level of disturbance or take to the
Panama City crayfish, are not expected to rise to the level that would
negatively impact the species' conservation and recovery efforts. The
proposed exceptions to these prohibitions include conservation efforts
by the Service or State wildlife agencies, and certain development
practices, select land management activities, and some utility actions
(described below) that are expected to have negligible impacts to the
Panama City crayfish and its habitat.
The first exception is for conservation and restoration efforts for
listed species by the Service or State wildlife agencies, including,
but not limited to, collection of broodstock, tissue collection for
genetic analysis, captive propagation, and subsequent stocking into
unoccupied areas within the historical range of the species, and
follow-up
[[Page 19845]]
monitoring. The proposed 4(d) rule would allow take of the Panama City
crayfish without a permit by any employee or agent of the Service or a
State conservation agency designated by the agency for such purposes
and when acting in the course of their official duties if such action
is necessary to aid a sick, injured, or orphaned specimen; to dispose
of a dead specimen; or to salvage a dead specimen which may be useful
for scientific study.
We recognize our special and unique relationship with our State
natural resource agency partners in contributing to conservation of
listed species. State agencies often possess scientific data and
valuable expertise on the status and distribution of endangered,
threatened, and candidate species of wildlife and plants. State
agencies, because of their authorities and their close working
relationships with local governments and landowners, are in a unique
position to assist the Services in implementing all aspects of the Act.
In this regard, section 6 of the Act provides that the Services shall
cooperate to the maximum extent practicable with the States in carrying
out programs authorized by the Act. Therefore, any qualified employee
or agent of a State conservation agency that is a party to a
cooperative agreement with the Service in accordance with section 6(c)
of the Act, who is designated by his or her agency for such purposes,
would be able to conduct activities designed to conserve the Panama
City crayfish that may result in otherwise prohibited take without
additional authorization. In addition, Federal and State wildlife law
enforcement officers, working in coordination with Service field office
personnel, may possess, deliver, carry, transport, or ship Panama City
crayfish taken in violation of the Act as necessary.
The second exception is for certain development activities that
will have negligible or beneficial effects on the Panama City crayfish
and its habitat, including: Maintenance of existing structures and
construction or reconstruction activities that occur within the
existing footprint of previously developed areas; new structures that
occur within 100 feet of existing structures on an individual private
landowner's property and with a new footprint less than 1,000 square
feet (ft\2\), such as a pool or shed associated with an existing house;
culvert installations for individual landowners not associated with
larger developments; installation of platforms or boardwalks for
recreational purposes on conservation lands that allow sunlight of
sufficient levels to maintain herbaceous groundcover; and paths used
for nonmotorized activities as long as the project footprint, including
construction impacts, impacts no more than 5 percent of the acreage in
core or secondary soils within properties under a conservation
easement.
The third exception is for select land management activities
related to silvicultural (forestry) activities and invasive species
control that help maintain habitat for Panama City crayfish and
agricultural maintenance activities, that have de minimus effects.
Silviculture activities within secondary soils including tree thinning,
harvest (including clearcutting), site preparation, planting, and
replanting following state best management practices (BMPs) (FDACS
2008, entire) are excepted as the species has persisted in lands under
timber management where native groundcover species recolonize
naturally. Prescribed burning, wildfire control efforts, herbicide
applications targeting exotic plants or shrub species are excepted when
following all other state and federal BMPs or permits associated with
these actions. Finally, agricultural maintenance activities in pasture
and rangelands (including cattle operations) that were established
prior to publication of the proposed listing rule (January 3, 2018)
that do not have indirect impacts to adjacent Panama City crayfish
habitat will be excepted.
The fourth exception is for some utility actions that are expected
to have minimal impacts to the Panama City crayfish or its habitat.
These include ditch mowing and maintenance activities outside of
critical habitat units, or ditch mowing and maintenance within critical
habitat units after coordination with the local FWS office. Culvert
replacements or maintenance that do not adversely affect, but improve
or restore, the natural hydrology are excepted. In coordination with
the local FWS office, the following are excepted: Maintenance of
rights-of-way, powerline and pole placements and replacements, and
directional boring by utility owners.
We reiterate that these actions and activities may have some
minimal level of take of the Panama City crayfish, but any such take is
expected to be rare and insignificant, and is not expected to
negatively impact the species' conservation and recovery efforts. We
expect the restoration activities to have a net beneficial effect on
the species. Across the species' range, habitat has been degraded and
fragmented by development and land use changes. The habitat restoration
activities in the proposed 4(d) rule are intended to improve habitat
conditions for the species in the long term.
Nothing in this proposed 4(d) rule would change in any way the
recovery planning provisions of section 4(f) of the Act, the
consultation requirements under section 7 of the Act, or the ability of
the Service to enter into partnerships for the management and
protection of the Panama City crayfish. However, interagency
cooperation may be further streamlined through planned programmatic
consultations for the species between Federal agencies and the Service,
where appropriate. We ask the public, particularly State agencies and
other interested stakeholders that may be affected by the proposed 4(d)
rule, to provide comments and suggestions regarding additional guidance
and methods that the Service could provide or use, respectively, to
streamline the implementation of this proposed 4(d) rule (see
Information Requested, above).
Proposed Critical Habitat Determination
Background
Critical habitat is defined in section 3 of the Act as:
(1) The specific areas within the geographical area occupied by the
species, at the time it is listed in accordance with the Act, on which
are found those physical or biological features.
(a) Essential to the conservation of the species, and
(b) Which may require special management considerations or
protection; and
(2) Specific areas outside the geographical area occupied by the
species at the time it is listed, upon a determination that such areas
are essential for the conservation of the species.
Our regulations at 50 CFR 424.02 define the geographical area
occupied by the species as an area that may generally be delineated
around species' occurrences, as determined by the Secretary (i.e.,
range). Such areas may include those areas used throughout all or part
of the species' life cycle, even if not used on a regular basis (e.g.,
migratory corridors, seasonal habitats, and habitats used periodically,
but not solely by vagrant individuals).
Conservation, as defined under section 3 of the Act, means to use
and the use of all methods and procedures that are necessary to bring
an endangered or threatened species to the point at which the measures
provided pursuant to the Act are no longer necessary. Such methods and
[[Page 19846]]
procedures include, but are not limited to, all activities associated
with scientific resources management such as research, census, law
enforcement, habitat acquisition and maintenance, propagation, live
trapping, and transplantation, and, in the extraordinary case where
population pressures within a given ecosystem cannot be otherwise
relieved, may include regulated taking.
Critical habitat receives protection under section 7 of the Act
through the requirement that Federal agencies ensure, in consultation
with the Service, that any action they authorize, fund, or carry out is
not likely to result in the destruction or adverse modification of
critical habitat. The designation of critical habitat does not affect
land ownership or establish a refuge, wilderness, reserve, preserve, or
other conservation area. Designation also does not allow the government
or public to access private lands, nor does designation 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 that occur in specific occupied areas,
we focus on the specific features that are essential to support the
life-history needs of the species, including, but not limited to, water
characteristics, soil type, geological features, 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 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, and where the species may be present, will
continue to be subject to: (1) Conservation actions implemented under
section 7(a)(1) of the Act; (2) regulatory protections afforded by the
requirement in section 7(a)(2) of the Act for Federal agencies to
ensure their actions are not likely to jeopardize the continued
existence of any endangered or threatened species; and (3) the
prohibitions found in section 9 of the Act. Federally funded or
permitted projects affecting listed species outside their designated
critical habitat areas may still result in jeopardy findings in some
cases. These protections and conservation tools will continue to
contribute to recovery of this species. Similarly, critical habitat
designations made on the basis of the best available information at the
time of designation will not control the direction and substance of
future recovery plans, habitat conservation plans (HCPs), or other
species conservation planning efforts if new information available at
the time of these planning efforts calls for a different outcome.
Prudency Determination
Section 4(a)(3) of the Act, as amended, and implementing
regulations (50 CFR 424.12) require that, to the maximum extent prudent
and determinable, the Secretary shall designate critical habitat at the
time the species is determined to be an endangered or threatened
species. Our regulations (50 CFR 424.12(a)(1)) state that the Secretary
may, but is not required to, determine that a designation would not be
prudent in the following circumstances:
(i) The species is threatened by taking or other human activity and
[[Page 19847]]
identification of critical habitat can be expected to increase the
degree of such threat to the species;
(ii) The present or threatened destruction, modification, or
curtailment of a species' habitat or range is not a threat to the
species, or threats to the species' habitat stem solely from causes
that cannot be addressed through management actions resulting from
consultations under section 7(a)(2) of the Act;
(iii) Areas within the jurisdiction of the United States provide no
more than negligible conservation value, if any, for a species
occurring primarily outside the jurisdiction of the United States;
(iv) No areas meet the definition of critical habitat; or
(v) The Secretary otherwise determines that designation of critical
habitat would not be prudent based on the best scientific data
available.
As discussed in the January 3, 2018, proposed listing rule (83 FR
330), there is currently no imminent threat of take attributed to
collection or vandalism identified under Factor B for this species, and
identification and mapping of critical habitat is not expected to
initiate any such threat. In our SSA and proposed listing determination
for the Panama City crayfish, we determined that the present or
threatened destruction, modification, or curtailment of habitat or
range is a threat to the Panama City crayfish and that those threats in
some way can be addressed by section 7(a)(2) consultation measures. The
species occurs wholly in the jurisdiction of the United States, and we
are able to identify areas that meet the definition of critical
habitat. Therefore, because none of the circumstances enumerated in our
regulations at 50 CFR 424.12(a)(1) apply and because there are no other
circumstances the Secretary has identified for which this designation
of critical habitat would be not prudent, we have determined that the
designation of critical habitat is prudent for the Panama City
crayfish.
Critical Habitat Determinability
Having determined that designation is prudent, under section
4(a)(3) of the Act we must find whether critical habitat for the Panama
City crayfish is determinable. Our regulations at 50 CFR 424.12(a)(2)
state that critical habitat is not determinable when one or both of the
following situations exist:
(i) Data sufficient to perform required analyses are lacking, or
(ii) The biological needs of the species are not sufficiently well
known to identify any area that meets the definition of ``critical
habitat.''
When critical habitat is not determinable, the Act allows the
Service an additional year to publish a critical habitat designation
(16 U.S.C. 1533(b)(6)(C)(ii)).
We reviewed the available information pertaining to the biological
needs of the species and habitat characteristics where this species is
located. This and other information represent the best scientific data
available and led us to conclude that the designation of critical
habitat is determinable for the Panama City crayfish.
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, alkaline
soil for seed germination, protective cover for migration, or
susceptibility to flooding or fire that maintains necessary early-
successional habitat characteristics. Biological features might include
prey species, forage grasses, specific kinds or ages of trees for
roosting or nesting, symbiotic fungi, or a particular level of
nonnative species consistent with conservation needs of the listed
species. The features may also be combinations of habitat
characteristics and may encompass the relationship between
characteristics or the necessary amount of a characteristic essential
to support the life history of the species.
In considering whether features are essential to the conservation
of the species, we may consider an appropriate quality, quantity, and
spatial and temporal arrangement of habitat characteristics in the
context of the life-history needs, condition, and status of the
species. These characteristics include, but are not limited to, space
for individual and population growth and for normal behavior; food,
water, air, light, minerals, or other nutritional or physiological
requirements; cover or shelter; sites for breeding, reproduction, or
rearing (or development) of offspring; and habitats that are protected
from disturbance. These characteristics are described below for the
Panama City crayfish:
(1) Space for individual and population growth and for normal
behavior: The Panama City crayfish naturally inhabits shallow,
ephemeral, freshwater wetlands that are associated with early
successional wet prairie-marsh and wet pine flatwoods and their
associated communities. These locations historically supported a native
herbaceous plant community dominated by native wetland grasses and
sedges with an accompanying overstory of no to low-density pines and
were naturally maintained by periodic wildfire.
(2) Food, water, air, light, minerals, or other nutritional or
physiological requirements: Native herbaceous vegetation is important
to the Panama City crayfish for food, detritus formation, and cover.
Absence of vegetation increases exposure of this small crayfish to
predation and reduced availability of food. Although Panama City
crayfish are facultative air breathers, moisture is required to
facilitate the respiratory process. Burrowing to groundwater or access
to surface water are both important habitat features needed to prevent
desiccation of individuals and populations. The Panama City crayfish
cannot burrow much deeper than 3 feet below the surface and prefer
surface waters less than 1 foot deep (E.Keppner 2003, pers. comm.).
(3) Cover or shelter: The Panama City crayfish relies mostly on
herbaceous vegetation that grows on core and secondary soils, which
allow them to burrow for shelter and to rear young. The ability to
burrow to the water table during times of drought is essential to the
persistence of the species. Core soils have depth to water tables that
meet the depth threshold that is important for long-term Panama City
crayfish population persistence. These core soils provide the sediment
structure needed for burrow construction to the water table and also
support the herbaceous
[[Page 19848]]
vegetation upon which the species relies for food and cover. Young
crayfish are often captured clinging to vegetation in emergent, yet
shallow, water bodies.
Secondary soil types are drier, and it is believed the species
cannot persist when only secondary soils are available with below-
average water tables. They are mentioned here because they may support
Panama City crayfish after recent rainfalls and longer periods of time
after above-average rainfall that influences water table depths, and
they may provide connectivity between two patches of core soils.
Ninety-six percent of known occurrences of Panama City crayfish occur
within either core soils or within secondary soils that are within 100
meters (328 feet) of core soils. These secondary soils also provide the
sediment structure needed for burrow construction to the water table
and also support the herbaceous vegetation upon which the species
relies for food and cover except during times of drought.
(4) Sites for breeding, reproduction, or rearing (or development)
of offspring: Shelters, such as burrows, are an important resource for
crayfish as they provide for protection from predation and space for
mating and for rearing hatchlings. Burrows also help to maintain
hydration and preferred body temperatures. Surface waters provide
shelter for juveniles to grow prior to being large enough to burrow.
These surface water locations also provide for breeding and feeding
grounds. Surface water must be sufficiently deep, but usually less than
1 foot (0.3 meters) deep, to support the species but shallow enough to
sustain herbaceous vegetation. Waters greater than 1 foot (0.3 meters)
deep sustain other crayfish species that may outcompete the Panama City
crayfish.
(5) Habitats that are protected from disturbance or are
representative of the historical, geographical, and ecological
distributions of a species: The Panama City crayfish's historical range
is estimated to cover a 56-square-mile area (Service 2019, entire).
Hardwood swamps fall within the core soil category but are not actually
suitable for the Panama City crayfish (except the transition edge
habitat). Land acreages within the Panama City crayfish's range total
35,658 acres, with a composition of the following soils: (1) Core with
14,880 acres (6,022 hectares; 42 percent of the land area); (2)
secondary with 12,379 acres (5,010 hectares; 35 percent of the land
area), and (3) unsuitable soils with 8,399 acres (3,399 hectares; 23
percent of the land area). We estimate that approximately 9,180 acres
(3,715 hectares) of core and 5,647 acres (2,285 hectares) of secondary
soils remain undeveloped (using 2016 data) and are therefore suitable
for the Panama City crayfish. We estimate that 3,606 acres (1,459
hectares) of the core (3,242 acres (1,312 hectares, or 22 percent)) and
secondary (364 acres (147 hectares, or 3 percent)) soils are hardwood
swamp, which are not directly used by the Panama City crayfish but are
included within acreage totals because they provide transition habitat.
Summary of Essential Physical or Biological Features
We derive the specific physical or biological features essential to
the conservation of the Panama City crayfish from studies of this
species' habitat, ecology, and life history as described above.
Additional information can be found in the proposed listing rule
published in the Federal Register on January 3, 2018 (83 FR 330), and
the Panama City Crayfish SSA report (version 2.0; Service 2019,
entire). We have determined that the following physical or biological
features are essential to the conservation of the Panama City crayfish:
(1) Undeveloped lands, including cropland, utilities rights-of-way,
timberlands, or grazing lands, that support open wet pine flatwoods and
wet prairie habitats that contain the following:
(a) Appropriate herbaceous groundcover vegetation;
(b) Permanent or temporary pools of shallow (usually less than 1
foot) freshwater locations; and
(c) Gently-sloped ground level swales with a 3:1 or shallower slope
ratio along ecotonal or transitional areas.
(2) Soil types within undeveloped lands that provide sediment
structure needed for burrow construction and that support some native
herbaceous vegetation and the likelihood of native seed bank that with
management will provide vegetation needed for additional food and
cover, and where the ground water is always within 3 feet of the ground
surface and surface waters occur on occasion. These soil types include:
(a) Core soils for Panama City crayfish, including (note: prefix
numbers refer to map units in the Soil Survey for Bay County, Florida
(USDA 1984, entire)): (22) Pamlico-Dorovan Complex, (29) Rutlege Sand,
(32) Plummer Sand, (33) Pelham Sand, (39) Pantego Sandy Loam, and (51)
Rutledge- Pamlico Complex;
(b) Secondary soils within 100 meters (328 feet) of core soils: (1)
Albany Sand, (12) Leefield Sand, (13) Leon Fine Sand, (31) Osier Fine
Sand, and (36) Alapaha Loamy Sand; and
(c) Soils that support native herbaceous vegetation such as, but
not limited to, wiregrass (Aristida beyrichiana), redroot (Lachnanthes
caroliniana), beakrushes (Rhynchospora spp.), pitcher plants
(Sarracenia spp.), sundews (Drosera spp.), butterworts (Pinguicula
spp.), and lilies (Hymenocallis spp.).
(3) Undeveloped lands that contain surface and groundwater of
sufficient quality to support all life stages of the Panama City
crayfish and the herbaceous vegetation on which they rely. This
includes surface waters with:
(a) Oxygen levels that range between 2 and 9 milligrams per liter;
(b) pH levels between 4.1 and 9.2; and
(c) Temperatures between 42 and 94 degrees Fahrenheit ([deg]F) (5
and 34.4 degrees Celsius ([deg]C)), although optimum temperatures are
thought to be in the range of 68 to 79 [deg]F (20 to 26 [deg]C) (Butler
et al. 2003).
Special Management Considerations or Protection
When designating critical habitat, we assess whether the specific
areas within the geographical area occupied by the species at the time
of listing contain features which are essential to the conservation of
the species and which may require special management considerations or
protection. The features essential to the conservation of this species
may require special management considerations or protection to reduce
the following threats: Habitat loss and destruction due to residential
and commercial development, as well as habitat loss due to changes in
the natural disturbance and hydrological regimes that maintain the wet
prairie and flatwoods that Panama City crayfish originally inhabited.
Historically, the Panama City crayfish inhabited natural and often
temporary bodies of shallow fresh water within open pine flatwoods and
prairie-marsh communities (as described in the SSA report (version 2.0;
Service 2019, p. 56)). However, most of these communities have been
cleared for residential or commercial development or replaced with
slash pine (Pinus elliottii) plantations. Thus, the Panama City
crayfish currently is known to inhabit the waters of grassy, gently-
sloped ditches and swales; furrows within slash pine plantations; and
utility rights-of-way.
Special management considerations or protections are required
within critical habitat areas to address these habitat loss and
destruction threats. The occupied units we are proposing to designate
as critical habitat for Panama City crayfish will require some level of
[[Page 19849]]
management to address the current and future threats to the physical or
biological features. Management activities that could ameliorate these
threats include (but are not limited to): (1) Protection of lands from
development through purchase, easement, or other conservation
agreements that will prevent permanent conversion of Panama City
crayfish habitat to other land uses; and (2) restoration and management
of habitat to maintain the appropriate vegetative and hydrological
characteristics for the Panama City crayfish.
These management activities will protect the physical or biological
features for the species by protecting currently suitable habitat from
being converted to other land uses and by promoting the appropriate
vegetative and hydrological characteristics that the Panama City
crayfish needs for survival. Additionally, management of habitat to
protect the physical or biological features on occupied critical
habitat will help achieve recovery of the Panama City crayfish.
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), 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 would be inadequate to ensure the
conservation of the species. We are not currently proposing to
designate any areas outside the geographical area occupied by the
species because we have not identified any unoccupied areas that meet
the definition of critical habitat and because occupied areas are
sufficient to ensure the conservation of the species.
We reviewed available information that pertains to the habitat
requirements of this species using information that was cited within
the SSA report (Service 2019, entire) and information presented in the
Service's conservation strategy for Panama City crayfish critical
conservation needs (Service 2017, entire); sources of information on
habitat requirements include existing State management plans,
endangered species reports, studies conducted at occupied sites and
published in peer-reviewed articles, agency reports, and data collected
during monitoring efforts (Service 2019, entire). Based on known
occurrences and habitat requirements, critical habitat units were
mapped in ArcMap (ESRI, Inc.) using the U.S. Department of Agriculture,
Natural Resources Conservation Service, Soil Survey Geographic Database
(USDA 2019, unpaginated). ArcGIS software was used to calculate the
acreage of core and secondary soils within the historical range of the
Panama City crayfish prior to anthropogenic habitat disturbances. Core
soil types (as described in Species Description in the proposed listing
rule (83 FR 330, January 3, 2018, pp. 332-333) and in Physical or
Biological Features Essential to the Conservation of the Species,
above) were buffered by 100 meters. We used 100 meters as our buffer
because we found that 96 percent of known occurrences of Panama City
crayfish occur within 100 meters of core soils and this buffer
encompasses the secondary soil types (as described in Species
Description in the proposed listing rule (83 FR 330, January 3, 2018,
pp. 332-333) and in Physical or Biological Features Essential to the
Conservation of the Species, above). In geographic information systems
(GIS) mapping, the buffered soils were spatially processed by clipping
to the population buffer of one-quarter mile, and developed areas were
excluded based on 2016 Florida Department of Transportation aerial
imagery (FDOT 2016, unpaginated).
In summary, for areas within the geographic area occupied by the
species at the time of listing and with sufficient availability of
land, we delineate critical habitat unit boundaries using the following
criteria:
(1) Suitable habitat surrounding each of 10 known populations of
Panama City crayfish, delineated by polygons using one-quarter mile
(0.4 kilometer (km)) circles around sample points with known species
occurrences, based on the movement patterns of small crayfishes (Note:
Habitat surrounding two populations was not included for critical
habitat designation, as explained below);
(2) Core and secondary soils within 100 meters (328 feet) of core
soils that contain one or more of the physical or biological features
to support life-history functions essential for conservation of the
Panama City crayfish.
Hardwood swamps found within core soils are considered unsuitable
for the crayfish, and this habitat type was removed to the maximum
extent possible.
The total acreage calculated for critical habitat based upon the
above criteria amounted to 7,177 acres (2,904 hectares). Accordingly,
we propose to designate as critical habitat those areas that contain
the physical and biological features essential to the Panama City
crayfish and that are currently occupied by the species.
For the purposes of critical habitat designation, we determined a
unit to be occupied if it contains recent (i.e., observed since 2015)
observations of Panama City crayfish. The proposed critical habitat
designation does not include all lands known to have been occupied by
the species historically; instead, it focuses on currently occupied
lands that have retained the necessary physical or biological features
that will allow for the maintenance and expansion of existing
populations. The following locations (i.e., populations as defined in
the SSA) meet the definition of areas occupied by the species at the
time of listing and that present sufficient availability of lands to
support a population: 19th Street, Talkington, Minnesota, Transmitter
West, Deer Point, High Point, Star, and Transmitter East. College Point
and Old Airport populations were not consistently occupied, nor was
there sufficient suitable habitat within the one-quarter-mile (0.4-km)
polygon to support recovery, and these populations, therefore, are not
included in the proposed designation. We also do not include Edwards, a
population representing an original collection site from 1942, nor 390
West given the fragmentation of that population by the industrial park
resulted in too little remaining habitat to support a viable population
over time. While both areas are still occupied by Panama City crayfish,
Edwards is surrounded by industrial buildings and bordered by U.S.
Route 231 on its west edge, and 390 West will soon be bisected by a
four-lane highway as it is currently under construction. Potential
habitat for recovery in either of these locations is limited and
potentially fragmented. Long-term management will be challenging given
proximity to major roadways and industrial development. As mentioned
above, we exclude developed areas within the proposed designation to
the extent possible in the mapping exercise and in the text of the
rule, as explained below. Designating critical habitat in these eight
occupied areas of the Panama City crayfish would sufficiently conserve
the species, leading to its recovery.
We are not proposing to designate any areas outside the
geographical area occupied by the species because we have not
identified any unoccupied areas that are essential to the conservation
of the species. In addition, based on our conservation strategy, the
[[Page 19850]]
protection of the eight occupied units (as further described below) are
sufficient for the conservation of the species.
When determining proposed critical habitat boundaries, we made
every effort to avoid including developed areas such as lands covered
by buildings, pavement, and other structures because such lands lack
physical or biological features necessary for the Panama City crayfish.
The scale of the maps we prepared under the parameters for publication
within the Code of Federal Regulations may not reflect the exclusion of
such developed lands. Any such lands inadvertently left inside critical
habitat boundaries shown on the maps of this proposed rule have been
excluded by text in the proposed rule and are not proposed for
designation as critical habitat. Therefore, if the critical habitat is
finalized as proposed, a Federal action involving these lands would not
trigger section 7 consultation with respect to critical habitat and the
requirement of no adverse modification unless the specific action would
affect the physical or biological features in the adjacent critical
habitat.
We propose to designate as critical habitat lands that we have
determined are occupied at the time of listing (i.e., currently
occupied) and that contain one or more of the physical or biological
features that are essential to support life-history processes of the
species.
Units are proposed for designation based on one or more of the
physical or biological features being present to support Panama City
crayfish's life-history processes. All units contain all of the
identified physical or biological features and support multiple life-
history processes.
The critical habitat designation is defined by the map or maps, as
modified by any accompanying regulatory text, presented at the end of
this document under Proposed Regulation Promulgation. We include more
detailed information on the boundaries of the critical habitat
designation in the preamble of this document. We will make the
shapefiles on which each map is based available to the public on http://www.regulations.gov at Docket No. FWS-R4-ES-2020-0137, on our internet
site http://ecos.fws.gov, and at the Florida Ecological Services Field
Office (see FOR FURTHER INFORMATION CONTACT).
Proposed Critical Habitat Designation
We are proposing eight units as critical habitat for the Panama
City crayfish. The critical habitat units we describe below constitute
our assessment based on the best available science of areas that meet
the definition of critical habitat for the Panama City crayfish. In
total, they comprise 7,177 acres (2,904 hectares) of land, entirely
within Bay County, Florida. The table below summarizes the approximate
area and ownership of the units, which are described in detail below.
Table of Proposed Critical Habitat Units for the Panama City Crayfish
--------------------------------------------------------------------------------------------------------------------------------------------------------
Land ownership (AC.) Total
-------------------------- proposed
Group Unit Unit name Occupied critical Percent of
Private State/Local habitat area total (%)
(AC.)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Western.......................... 1................... 19th Street......... Yes............... 20.6 3.7 24.3 0
2................... Talkington.......... Yes............... 53.1 0.0 53.1 1
3................... Minnesota........... Yes............... 27.9 37.2 65.0 1
4................... Transmitter West.... Yes............... 243.7 4.7 248.4 3
Eastern.......................... 5................... Deer Point.......... Yes............... 413.8 0.9 414.6 6
6................... High Point.......... Yes............... 37.9 0.5 38.4 1
7................... Star................ Yes............... 2,751.6 9.7 2,761.4 38
8................... Transmitter East.... Yes............... 3,489.0 82.5 3,571.5 50
------------------------------------------------------
Total........................ .................... .................... .................. 7,037.6 139.2 7,176.8 100
------------------------------------------------------
Percent of total............. .................... .................... .................. 98% 2% 100% ...........
--------------------------------------------------------------------------------------------------------------------------------------------------------
Note: Area estimates reflect all land within critical habitat unit boundaries; Area sizes may not sum due to rounding.
The eight units we propose as critical habitat are broken into two
groups, based on the western (Units 1 through 4) and eastern (Units 5
through 8) groups described in the SSA report (Service 2019, pp. 37-
52). These two groups are distinguished by east-west genetic
differentiation based on proximity to other populations and amounts of
fragmentation within a population polygon. Below we describe each unit,
and reasons why they meet the definition of critical habitat for the
Panama City crayfish.
Western Group
The western group is comprised of four units supporting
geographically isolated populations scattered throughout the species'
range primarily in the cities of Panama City and Lynn Haven in Bay
County, Florida. The Service proposes designation of 390.8 acres (158.2
hectares) in total for the western group. These populations have been
isolated by residential and commercial development, which resulted in
habitat loss and fragmentation. These populations are currently
supported by an average of 83.4 acres (33.8 hectares) of habitat (range
24.3-248.4 acres (9.8-100.5 hectares)). However, the Transmitter West
population is by far the largest at 248.4 acres (100.5 hectares), and
this population may have historically been a critical link both
genetically and geographically between the western and eastern
representative groups. The remaining three populations are supported by
an average of 50.3 acres (20.4 hectares) (range 24.3-65.0 acres (9.8-
26.3 hectares)). Limited habitat area needed to support each population
and lack of habitat connectivity to other populations in this group are
the greatest management challenges.
Unit 1: 19th Street
The 19th Street population is the southwestern-most population
located off 19th Street in Panama City, Florida. It is located on both
sides of an active railroad track with habitat totaling 24.3 acres (9.8
hectares). Land ownership is mostly private, but some is in public
ownership with 3.7 acres (1.5 hectares) owned by Bay County. Only
secondary soils remain undeveloped, but the elevated railroad track has
artificially provided a water barrier, often keeping the site ponded
when all others have dried up. Maintenance (i.e., mowing and woody
vegetation removal) for the railroad has kept the adjacent right-of-way
covered in dense, herbaceous
[[Page 19851]]
vegetation that is ideal for the Panama City crayfish. Adjacent
unmanaged slash pine stands, where burrows have been documented, and a
mowed grass field also provide habitat.
Panama City crayfish occurrence was documented in 2001, 2012-2014,
and 2016-2018. All of the essential physical or biological features are
found within the unit. The essential features (e.g., appropriate
herbaceous groundcover vegetation and permanent or temporary pools of
shallow fresh water) for this unit may require special management,
particularly mowing, to ensure maintenance or improvement of the
existing habitat.
Unit 2: Talkington
The Talkington population is located off of Jenks Avenue in Panama
City, Florida, with habitat totaling 53.1 acres (21.5 hectares). Land
ownership is entirely private, although 10 acres (4 hectares) is under
easement for conservation. The Talkington Family Nature Preserve forms
the centerpiece of this population, with land ownership held by the Bay
County Conservancy (BCC), and the associated conservation easement held
by Florida Department of Environmental Protection (FDEP). The preserve
is primarily pine flatwoods with a cluster of pond pine trees in the
center portion. The Service and FWC have a management agreement in
place with BCC that allows for mowing to manage the habitat on a 2- to
3-year interval, to mimic the natural fire regime and maintain ideal
conditions for the Panama City crayfish. The remaining 43.1 acres (17.4
hectares) of core and secondary soils in the vicinity provide
opportunity for additional land protections and management, although
much of this area would require restoration of vegetation.
Panama City crayfish occurrence was documented in 2000, 2001, 2003,
2006, 2012, 2013, and 2016-2018. All essential physical and biological
features are found within the unit. The essential features, especially
appropriate herbaceous groundcover vegetation and permanent or
temporary pools of shallow fresh water, for this unit may require
special management; establishment of sloped swales and removal of dense
shrub thickets would improve conditions for the Panama City crayfish in
this unit.
Unit 3: Minnesota
The Minnesota population is located off Minnesota Avenue in Lynn
Haven, Florida, with undeveloped habitat totaling 65.0 acres (26.3
hectares). Land ownership is a mix of private and public, and some area
is under easement for conservation. This site is largely hardwood-
cypress swamp with some possibilities for improving the habitat along 6
acres (2.4 hectares) near and adjacent to the swamp ecotone. The City
of Lynn Haven owns 37.2 acres (15.1 hectares), which is under a
conservation easement held by FDEP.
The Service and FWC have a management agreement with the City of
Lynn Haven that allows the agencies to manage the property when funding
is available. Minimal actions have occurred to date to remove some of
the pine canopy layer. Other core and secondary soils surrounding the
easement consist of dense slash pine plantations. The property has deep
rutting from off-road vehicles, horses, and heavy equipment, which may
affect the hydrology of the habitat.
Panama City crayfish occurrence was documented in 2015 and 2016.
All essential physical and biological features are found within the
unit. Achieving the right mosaic of water and grasses requires special
management.
Unit 4: Transmitter West
The Transmitter West population is located off Transmitter Road in
Lynn Haven and Panama City, Florida, with habitat totaling 248.4 acres
(100.5 hectares). Land ownership is a mix of private and public, with
approximately 40 percent under easement for conservation. The FDEP
holds multiple conservation easements for private landowners with a
total 100.5 acres (40.7 hectares) of pine flatwoods. The easements are
managed as required by permit with either mowing or burning, and are in
good condition for the Panama City crayfish. The remaining habitats,
including the 4.7 acres (1.9 hectares) in public ownership owned by the
City of Lynn Haven and Bay County, are in mixed condition and in need
of regular management (e.g., prescribed fire or mowing).
Panama City crayfish occurrence was documented in 2004, 2013, and
2016. All essential physical and biological features are found within
the unit, with grasses maintained by fire in the past and mowing more
recently. Different depths of water bodies occur that provide a mosaic
of water features with herbaceous grasses to make this a good area for
the Panama City crayfish. Management is required to reduce encroaching
shrubs and to remove tree debris caused by Hurricane Michael in October
2018.
Eastern Group
The eastern group is comprised of four units supporting populations
scattered throughout the species' range primarily in the unincorporated
portions of Bay County, Florida. The Service proposes designation of
6,785.9 acres (2,746.2 hectares) in total for the eastern group. These
populations are currently supported by an average of 1,696.5 acres
(686.5 hectares) of habitat (range 38.4-3,571.5 acres (15.5-1,445.3
hectares)). However, the Star and Transmitter East populations are the
largest at 2,761.4 and 3,571.5 acres (1,117.5 and 1,445.3 hectares),
respectively. These two populations represent the largest connected
blocks of core and secondary soils with appropriate vegetation.
Although the vegetation and hydrology have been altered from native wet
prairie and pine flatwoods habitats by silvicultural and agricultural
uses, the geographic extent of these two populations forms the basis
for the species' long-term resilience.
Unit 5: Deer Point
The Deer Point population occurs on a peninsula located near Bay
County Road 2321 in Lynn Haven and Panama City, Florida, and is
supported by 414.6 acres (167.8 hectares) of habitat. The land is
bordered by Willams Bayou on the northeast, Mill Bayou on the
southwest, and North Bay to the north. Land ownership is almost
entirely private, although some areas under easement for conservation.
Only 0.9 acres (0.4 hectares) is in public ownership by Bay County.
Four privately owned easements lie within or are adjacent to areas
included in this unit. These easements protect 95.0 acres (38.4
hectares) of core and secondary soil habitat, although some of the
secondary soil habitats do not meet the criteria for inclusion within
critical habitat due to distance from core soils. The Trust for Public
Lands holds 90.0 acres (36.4 hectares) under easement, but that
easement is to be transferred to the City of Lynn Haven in the near
future. FDEP holds three easements totaling 35.0 acres (14.2 hectares)
that are still owned by a private landowner (D&H Properties, LLC). The
Service and FWC hold a management agreement with D&H Properties, LLC,
and have mowed and burned 24.0 acres (9.7 hectares) of this 35.0-acre
(14.2-hectare) property that are held in easements by FDEP. The
remaining habitat is on lands that are heavily timbered and unmanaged,
resulting in dense overgrowth of titi and slash pine, and hydrology may
be affected by these activities as well as borrow pits and dirt roads
that traverse the unit. Only the portions of these easements that meet
the criteria are included as critical habitat. All need regular
management,
[[Page 19852]]
especially the lands with dense vegetation, for the crayfish to thrive.
Panama City crayfish occurrence was documented on easement lands in
2012 and 2014-2018. All of the essential physical or biological
features are found within the unit. Herbaceous groundcover is spotty,
and shallow pools of water are small and unreliable, often caused by
vehicle tracks, and too deep for Panama City crayfish. Management is
required to remove Hurricane Michael tree debris. Considerations on
whether there are ways to improve the hydrology are also warranted.
Unit 6: High Point
The High Point population is the northern-most population and is
located off Bay County Road 2311 in Bay County, Florida. The population
is supported by habitat totaling 38.4 acres (15.5 hectares), and land
ownership is almost entirely private, with some acreage under easement
for conservation. Only 0.5 acres (0.2 hectares) is in public ownership
by Bay County. The 11-acre (4.5 hectare) Marjorie's Magical Marsh-
Symone's Sanctimonious Swamp conservation easement owned by BCC
contains most of the known Panama City crayfish population.
Panama City crayfish occupy 6.0 (2.4 hectares) of the 11-acre (4.5
hectare) easement, which is in the process of being restored by the
Service and FWC under a management agreement with BCC. These six acres
are being restored to primarily herbaceous vegetation from a more
recent dense mixture of titi shrub thicket in the under- and mid-story
and slash pines in the overstory, which has lacked fire management. The
remaining core and secondary soil habitat surrounding the easement was
historically managed for timber but currently contains dense titi with
an intermittent slash pine overstory.
Panama City crayfish occurrence was documented in 2010, 2012-2014,
and 2015-2017. All essential physical and biological features are found
within the unit. This population, albeit small, has herbaceous ground
cover vegetation, pools of shallow water, and appropriate slope ratios,
but the unit will require management to maintain the groundcover and
keep shrubs from encroaching.
Unit 7: Star
A portion of this unit is located north of the intersection of Bay
County Road 2321 and U.S. Highway 231 in Bay County, Florida. Land
ownership is a mix of private and public. There are no conservation
easements in place, but one 1.4-acre (0.6-hectare) parcel is owned by
the State of Florida and used by the Florida Highway Patrol. Although
the appropriate core and secondary soil habitat exists, the lands that
run parallel to the county road are mostly in dense slash pine
plantations for timber production with overgrown groundcover. The
plantations east of the county road have been harvested recently. This
management is sub-optimal for the Panama City crayfish because of the
dense overstory canopy, lack of herbaceous ground cover, infrequent (<3
year) fire management, and bedding that may additionally affect the
hydrology of the unit.
The remainder of this habitat unit is adjacent and south of U.S.
Highway 231. It forms the farthest east-northeast boundary of the
species' geographic range in Bay County, Florida. The population is
bordered on the west by U.S. Highway 231, the north by Bayou George
Creek, and the south by an unnamed tributary of Mill Bayou. These lands
are mostly under timber management since the mid-1980s and in various
stages of management from recent harvest to dense slash pines with
dense titi shrub layers. The current timber management is sub-optimal
for Panama City crayfish because of the dense overstory canopy, lack of
herbaceous ground cover, infrequent (<3 year) fire management, and
bedding that may additionally affect the hydrology of the unit. Land
ownership is predominantly private, with only 9.7 acres (3.9 hectares)
in public ownership by Bay County. Gulf Power Company manages rights-
of-way along 86 acres (34.8 hectares). The Service and FWC have a
management agreement with Gulf Power Company incorporating best
management practices, primarily regular mowing, that have stimulated
herbaceous vegetation as the primary groundcover. Currently a two-lane
road, Star Avenue, bisects this population.
The population in the unit is supported by 2,761.4 acres (1,117.5
hectares). Panama City crayfish occurrence was documented in 2001,
2003-2004, 2006, 2012-2013, and 2016. All essential physical and
biological features are found within the unit. Intermittent herbaceous
groundcover vegetation and temporary pools of shallow water with
hardwood swamp ecotone areas do occur, but much management is required
to maintain and improve these biological features needed for increased
or more connected populations. Much tree debris remains throughout the
unit as a result of Hurricane Michael's 2018 impact to the landscape.
It is assumed that some debris will be removed from timber company land
and on other small tracts of land, but it is unknown at this time what
impacts are likely to occur to Panama City crayfish populations as
lands are cleared at large-scale levels.
Unit 8: Transmitter East
The Transmitter East population forms the farthest south-southeast
boundary of the species' geographic range in Bay County, Florida. The
population is bordered on the west by Transmitter Road, the south by
U.S. Highway 98 and State Highway 22, the east by Callaway Creek, and
the north by an unnamed tributary of Mill Bayou. The population in this
unit is supported by 3,571.5 acres (1,445.3 hectares) of habitat, which
has been primarily under timber management since the mid-1980s and in
various stages of management from recent harvest to dense slash pines
with dense titi shrub layers.
The current management regime is sub-optimal for Panama City
crayfish because of the dense overstory canopy, lack of herbaceous
ground cover, infrequent (<3 year) fire management, and bedding that
may additionally affect the hydrology of the unit. Land ownership is
predominantly private, with only 82.5 acres (33.4 hectares) in public
ownership by the City of Springfield, Bay County, and the State of
Florida. Gulf Power Company manages rights-of-way along approximately
114 acres (46.1 hectares) of land that is populated with the Panama
City crayfish. The Service and FWC have a management agreement with
Gulf Power incorporating best management practices, primarily regular
mowing, that have stimulated herbaceous vegetation as the primary
groundcover.
Two conservation easements, 11.3 and 7.3 acres (4.6 and 3.0
hectares) in size, are held by FDEP for two separate landowners.
Currently, a two-lane road, Star Avenue, bisects this population. Tram
Road also bisects the lower third of the area. It is currently a dirt
road and there are plans for converting it to a four-lane asphalt road.
Panama City crayfish occurrence was confirmed in 2001, 2002, and
2006, and extensive efforts documented the species in 2003-2004, 2012-
2013, and 2016. All essential physical and biological features are
found within the unit. Much tree debris, which will require management,
remains throughout as a result of Hurricane Michael's 2018 impact to
the landscape. It is assumed that some debris will be removed from
timber company land and on other small tracts of land, but it is
unknown at this time what impacts are likely to occur on the Panama
City
[[Page 19853]]
crayfish populations as lands are cleared at large-scale levels.
Effects of Critical Habitat Designation
Section 7 Consultation
Section 7(a)(2) of the Act requires Federal agencies, including the
Service, to ensure that any action they fund, authorize, or carry out
is not likely to jeopardize the continued existence of any endangered
species or threatened species or result in the destruction or adverse
modification of designated critical habitat of such species. In
addition, section 7(a)(4) of the Act requires Federal agencies to
confer with the Service on any agency action which is likely to
jeopardize the continued existence of any species proposed to be listed
under the Act or result in the destruction or adverse modification of
proposed critical habitat.
We published a final rule revising the definition of destruction or
adverse modification on August 27, 2019 (84 FR 44976). Destruction or
adverse modification means a direct or indirect alteration that
appreciably diminishes the value of critical habitat as a whole for the
conservation of a listed species.
If a Federal action may affect a listed species or its critical
habitat, the responsible Federal agency (action agency) must enter into
consultation with us. Examples of actions that are subject to the
section 7 consultation process are actions on State, Tribal, local, or
private lands that require a Federal permit (such as a permit from the
U.S. Army Corps of Engineers under section 404 of the Clean Water Act
(33 U.S.C. 1251 et seq.) or a permit from the Service under section 10
of the Act) or that involve some other Federal action (such as funding
from the Federal Highway Administration, Federal Aviation
Administration, or the Federal Emergency Management Agency). Federal
actions not affecting listed species or critical habitat and actions on
State, Tribal, local, or private lands that are not federally funded,
authorized, or carried out by a Federal agency do not require section 7
consultation. Compliance with the requirements of section 7(a)(2) is
documented through our issuance of:
(1) A concurrence letter for Federal actions that may affect, but
are not likely to adversely affect, listed species or critical habitat;
or
(2) A biological opinion for Federal actions that may affect, and
are likely to adversely affect, listed species or critical habitat.
When we issue a biological opinion concluding that a project is
likely to jeopardize the continued existence of a listed species and/or
destroy or adversely modify critical habitat, we provide reasonable and
prudent alternatives to the project, if any are identifiable, that
would avoid the likelihood of jeopardy and/or destruction or adverse
modification of critical habitat. We define ``reasonable and prudent
alternatives'' (at 50 CFR 402.02) as alternative actions identified
during consultation that:
(1) Can be implemented in a manner consistent with the intended
purpose of the action,
(2) Can be implemented consistent with the scope of the Federal
agency's legal authority and jurisdiction,
(3) Are economically and technologically feasible, and
(4) Would, in the Service Director's opinion, avoid the likelihood
of jeopardizing the continued existence of the listed species and/or
avoid the likelihood of destroying or adversely modifying critical
habitat.
Reasonable and prudent alternatives can vary from slight project
modifications to extensive redesign or relocation of the project. Costs
associated with implementing a reasonable and prudent alternative are
similarly variable.
Regulations at 50 CFR 402.16 set forth requirements for Federal
agencies to reinitiate formal consultation on previously reviewed
actions. These requirements apply when the Federal agency has retained
discretionary involvement or control over the action (or the agency's
discretionary involvement or control is authorized by law) and,
subsequent to the previous consultation, we have listed a new species
or designated critical habitat that may be affected by the Federal
action, the action has been modified in a manner that affects the
species or critical habitat in a way not considered in the previous
consultation, new information reveals effects of the action may affect
the species or critical habitat in a way not previously considered, or
incidental take is exceeded. 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 section
7(a)(2) of the Act by destroying or adversely modifying such habitat,
or that may be affected by such designation.
Activities that the Services may, during a consultation under
section 7(a)(2) of the Act, find are likely to destroy or adversely
modify critical habitat include, but are not limited to:
(1) Actions that would significantly alter hydrological and soil
characteristics. Such activities could include, but are not limited to,
those that result in wetland fill or draining or, conversely, provide
additional waters to the wetland. Activities drying the wetland (via
fill or draining) can result in changes in depth to water tables that
are less than the depth threshold that is important for long-term
Panama City crayfish population persistence. These activities can also
alter soils from those that provide the sediment structure needed to
allow for burrow construction down to the water table and also support
the herbaceous vegetation upon which the species relies for food and
cover. Activities providing additional water can allow other crayfish
species that persist in deeper waters to outcompete the Panama City
crayfish.
(2) Actions that would significantly alter water quality parameters
including oxygen content, temperature, and chemical composition. Such
activities could include, but are not limited to, release of chemicals,
excess nutrients, pesticides, and biological or other pollutants into
the surface water or connected groundwater at a point source or by
dispersed release (non-point source). These activities could alter
water conditions to levels that are beyond the tolerances of the
crayfish and result in direct or cumulative adverse effects to these
individuals and their life cycles.
(3) Actions that would significantly and permanently alter
vegetative characteristics. Such activities could include, but are not
limited to, residential and commercial
[[Page 19854]]
construction; road construction; and draining, filling or otherwise
destroying or altering wetlands. These activities may lead to changes
in hydrology and soil characteristics that prevent the appropriate
vegetation from growing. These activities can result in an absence or
reduced levels of herbaceous vegetation that is important to the Panama
City crayfish for food, detritus formation, and cover.
Exemptions
Application of Section 4(a)(3) of the Act
Section 4(a)(3)(B)(i) of the Act (16 U.S.C. 1533(a)(3)(B)(i))
provides that the Secretary shall not designate as critical habitat any
lands or other geographical areas owned or controlled by the Department
of Defense (DoD), or designated for its use, that are subject to an
integrated natural resources management plan (INRMP) prepared under
section 101 of the Sikes Act (16 U.S.C. 670a), if the Secretary
determines in writing that such plan provides a benefit to the species
for which critical habitat is proposed for designation. There are no
DoD lands with a completed INRMP within the proposed critical habitat
designation.
Consideration of Exclusions 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
plain language of the statute, as well as the legislative history, make
clear that the Secretary has broad discretion regarding which factor(s)
to use and how much weight to give to any factor.
We describe below the process that we undertook for taking into
consideration each category of impacts and our analyses of the relevant
impacts.
Consideration of Economic Impacts
Section 4(b)(2) of the Act and its implementing regulations require
that we consider the economic impact that may result from a designation
of critical habitat. To assess the probable economic impacts of a
designation, we must first evaluate specific land uses or activities
and projects that may occur in the area of the critical habitat. We
then must evaluate the impacts that a specific critical habitat
designation may have on restricting or modifying specific land uses or
activities for the benefit of the species and its habitat within the
areas proposed. We then identify which conservation efforts may be the
result of the species being listed under the Act versus those
attributed solely to the designation of critical habitat for this
particular species. The probable economic impact of a proposed critical
habitat designation is analyzed by comparing scenarios both ``with
critical habitat'' and ``without critical habitat.''
The ``without critical habitat'' scenario represents the baseline
for the analysis, which includes the existing regulatory and socio-
economic burden imposed on landowners, managers, or other resource
users potentially affected by the designation of critical habitat
(e.g., under the Federal listing as well as other Federal, State, and
local regulations). The baseline, therefore, represents the costs of
all efforts attributable to the listing of the species under the Act
(i.e., conservation of the species and its habitat incurred regardless
of whether critical habitat is designated). The ``with critical
habitat'' scenario describes the incremental impacts associated
specifically with the designation of critical habitat for the species.
The incremental conservation efforts and associated impacts would not
be expected without the designation of critical habitat for the
species. In other words, the incremental costs are those attributable
solely to the designation of critical habitat, above and beyond the
baseline costs. These are the costs we use when evaluating the benefits
of inclusion and exclusion of particular areas from the final
designation of critical habitat should we choose to conduct a
discretionary 4(b)(2) exclusion analysis.
For this particular designation, we developed an incremental
effects memorandum (IEM) considering the probable incremental economic
impacts that may result from this proposed designation of critical
habitat. The information contained in our IEM was then used to develop
a screening analysis of the probable effects of the designation of
critical habitat for the Panama City crayfish (IEC 2018). We began by
conducting a screening analysis of the proposed designation of critical
habitat in order to focus our analysis on the key factors that are
likely to result in incremental economic impacts. The purpose of the
screening analysis is to filter out particular geographic areas of
critical habitat that are already subject to such protections and are,
therefore, unlikely to incur incremental economic impacts. In
particular, the screening analysis considers baseline costs (i.e.,
absent critical habitat designation) and includes probable economic
impacts where land and water use may be subject to conservation plans,
land management plans, best management practices, or regulations that
protect the habitat area as a result of the Federal listing status of
the species. Ultimately, the screening analysis allows us to focus our
analysis on evaluating the specific areas or sectors that may incur
probable incremental economic impacts as a result of the designation.
If there are any unoccupied units in the proposed critical habitat
designation, the screening analysis assesses whether any additional
management or conservation efforts may incur incremental economic
impacts. This screening analysis combined with the information
contained in our IEM are what we consider our draft economic analysis
(DEA) of the proposed critical habitat designation for the Panama City
crayfish; our DEA is summarized in the narrative below.
Executive Orders (E.O.s) 12866 and 13563 direct Federal agencies to
assess the costs and benefits of available regulatory alternatives in
quantitative (to the extent feasible) and qualitative terms. Consistent
with the E.O. regulatory analysis requirements, our effects analysis
under the Act may take into consideration impacts to both directly and
indirectly affected entities, where practicable and reasonable. If
sufficient data are available, we assess to the extent practicable the
probable impacts to both directly and indirectly affected entities. As
part of our screening analysis, we considered the types of economic
activities that are likely to occur within the areas likely affected by
the critical habitat designation. In our evaluation of the probable
incremental economic impacts that may result from the proposed
designation of critical habitat for the Panama City crayfish, first we
identified, in the IEM dated July 13, 2018, probable incremental
economic impacts associated with the following categories of
activities: Agriculture, forest management (silviculture, timber),
development, recreation, restoration and conservation management
activities, transportation, and utilities. We considered each
[[Page 19855]]
industry or category individually. Additionally, we considered whether
their activities have any Federal involvement. Critical habitat
designation generally will not affect activities that do not have any
Federal involvement; under the Act, designation of critical habitat
only affects activities conducted, funded, permitted, or authorized by
Federal agencies. If we finalize our proposal to list the species, in
areas where the Panama City crayfish is present, Federal agencies would
be required to consult with the Service under section 7 of the Act on
activities they fund, permit, or implement that may affect the species.
If we finalize this proposed critical habitat designation,
consultations to avoid the destruction or adverse modification of
critical habitat would be incorporated into the existing consultation
process.
In our IEM, we attempted to clarify the distinction between the
effects that would result from the species being listed and those
attributable to the critical habitat designation (i.e., difference
between the jeopardy and adverse modification standards) for the Panama
City crayfish's critical habitat. Because the proposed critical habitat
for the Panama City crayfish coincides with currently occupied areas by
the species, it has been our experience that it is more difficult to
discern which conservation efforts are attributable to the species
being listed and those which will result solely from the designation of
critical habitat. However, the following specific circumstances in this
case help to inform our evaluation: (1) The essential physical or
biological features identified for critical habitat are the same
features essential for the life requisites of the species, and (2) any
actions that would result in sufficient harm or harassment to
constitute jeopardy to the Panama City crayfish would also likely
adversely affect the essential physical or biological features of
critical habitat. The IEM outlines our rationale concerning this
limited distinction between baseline conservation efforts and
incremental impacts of the designation of critical habitat for this
species. This evaluation of the incremental effects has been used as
the basis to evaluate the probable incremental economic impacts of this
proposed designation of critical habitat.
The proposed critical habitat designation for the Panama City
crayfish includes eight units, each of which contains one
geographically and/or genetically distinct population of the Panama
City crayfish. All of these units are in Bay County, Florida, and none
occur on Federal lands. For the purposes of critical habitat
designation, we determined a unit to be occupied if it contains recent
(i.e., observed since 2015) observations of Panama City crayfish. All
units are occupied because they contain populations of Panama City
crayfish at the time of proposed listing, and each unit is considered
essential to the conservation of the species. In total, we are
proposing 7,177 acres (2,904 hectares) for designation as critical
habitat for the Panama City crayfish. In occupied areas, any actions
that may affect the species or its habitat would also affect critical
habitat, and it is unlikely that any additional conservation efforts
would be recommended to address the adverse modification standard over
and above those recommended as necessary to avoid jeopardizing the
continued existence of the Panama City crayfish. Incremental costs of
the proposed critical habitat designation for the Panama City crayfish
are likely to be limited to additional administrative costs to consider
adverse modification in consultations in all units. The incremental
administrative burden resulting from the designation of critical
habitat for the Panama City crayfish is not anticipated to reach an
annual effect of $100 million (which is the economic threshold for a
``significant regulatory action'' (see section 3(f)(1) of Executive
Order 12866)) based on the anticipated annual number of consultations
and associated consultation costs, which are not expected to exceed
$60,000 in any year. The designation is unlikely to trigger additional
requirements under State or local regulations and is not expected to
have perceptional effects.
We are soliciting data and comments from the public on the DEA
discussed above, as well as all aspects of this proposed rule and our
required determinations. During the development of a final designation,
we will consider the information presented in the DEA and any
additional information on economic impacts we receive during the public
comment period to determine whether any specific areas should be
excluded from the final critical habitat designation under authority of
section 4(b)(2) of the Act and our implementing regulations at 50 CFR
424.19. In particular, we may exclude an area from critical habitat if
we determine that the benefits of excluding the area outweigh the
benefits of including the area, provided the exclusion will not result
in the extinction of this species.
Consideration of National Security Impacts
Section 4(a)(3)(B)(i) of the Act may not cover all DoD lands or
areas that pose potential national-security concerns (e.g., a DoD
installation that is in the process of revising its INRMP for a newly
listed species or a species previously not covered). If a particular
area is not covered under section 4(a)(3)(B)(i), national-security or
homeland-security concerns are not a factor in the process of
determining what areas meet the definition of ``critical habitat.''
Nevertheless, when designating critical habitat under section 4(b)(2),
the Service must consider impacts on national security, including
homeland security, on lands or areas not covered by section
4(a)(3)(B)(i). Accordingly, we will always consider for exclusion from
the designation areas for which DoD, Department of Homeland Security
(DHS), or another Federal agency has requested exclusion based on an
assertion of national-security or homeland-security concerns.
We cannot, however, automatically exclude requested areas. When
DoD, DHS, or another Federal agency requests exclusion from critical
habitat on the basis of national-security or homeland-security impacts,
it must provide a reasonably specific justification of an incremental
impact on national security that would result from the designation of
that specific area as critical habitat. That justification could
include demonstration of probable impacts, such as impacts to ongoing
border-security patrols and surveillance activities, or a delay in
training or facility construction, as a result of compliance with
section 7(a)(2) of the Act. If the agency requesting the exclusion does
not provide us with a reasonably specific justification, we will
contact the agency to recommend that it provide a specific
justification or clarification of its concerns relative to the probable
incremental impact that could result from the designation. If the
agency provides a reasonably specific justification, we will defer to
the expert judgment of DoD, DHS, or another Federal agency as to: (1)
Whether activities on its lands or waters, or its activities on other
lands or waters, have national-security or homeland-security
implications; (2) the importance of those implications; and (3) the
degree to which the cited implications would be adversely affected in
the absence of an exclusion. In that circumstance, in conducting a
discretionary section 4(b)(2) exclusion analysis, we will give great
weight to national-security and homeland-security concerns in analyzing
the benefits of exclusion.
In preparing this proposal, we have determined that the lands
within the proposed designation of critical habitat for Panama City
crayfish are not owned,
[[Page 19856]]
managed, or used by the DoD or DHS, and, therefore, we anticipate no
impact on national security or homeland security. However, during the
development of a final designation, we will consider any additional
information received through the public comment period on the impacts
of the proposed designation on national security or homeland security
to determine whether any specific areas should be excluded from the
final critical habitat designation under authority of section 4(b)(2)
and our implementing regulations at 50 CFR 424.19.
Consideration of Other Relevant Impacts
Under section 4(b)(2) of the Act, we consider any other relevant
impacts, in addition to economic impacts and impacts on national
security discussed above. We consider a number of factors, including
whether there are permitted conservation plans covering the species in
the area such as HCPs, safe harbor agreements (SHAs), or candidate
conservation agreements with assurances (CCAAs), or whether there are
non-permitted conservation agreements and partnerships that would be
encouraged by designation of, or exclusion from, critical habitat. In
addition, we look at the existence of Tribal conservation plans and
partnerships and consider the government-to-government relationship of
the United States with Tribal entities. We also consider any social
impacts that might occur because of the designation.
In preparing this proposal, we have determined that there are
currently no HCPs or other management plans for the Panama City
crayfish, and the proposed designation does not include any Tribal
lands or trust resources. We anticipate no impact on Tribal lands,
partnerships, or HCPs from this proposed critical habitat designation.
Additionally, as described above, we are not considering excluding any
particular areas from critical habitat on the basis of impacts to
national security or economic impacts. However, during the development
of a final designation, we will consider any additional information we
receive through the public comment period regarding other relevant
impacts of the proposed designation and will determine whether any
specific areas should be excluded from the final critical habitat
designation under authority of section 4(b)(2) and our implementing
regulations at 50 CFR 424.19.
Required Determinations
Clarity of the Rule
We are required by Executive Orders 12866 and 12988 and by the
Presidential Memorandum of June 1, 1998, to write all rules in plain
language. This means that each rule we publish must:
(1) Be logically organized;
(2) Use the active voice to address readers directly;
(3) Use clear language rather than jargon;
(4) Be divided into short sections and sentences; and
(5) Use lists and tables wherever possible.
If you feel that we have not met these requirements, send us
comments by one of the methods listed in ADDRESSES. To better help us
revise the rule, your comments should be as specific as possible. For
example, you should tell us the numbers of the sections or paragraphs
that are unclearly written, which sections or sentences are too long,
the sections where you feel lists or tables would be useful, etc.
Regulatory Planning and Review (Executive Orders 12866 and 13563)
Executive Order 12866 provides that the Office of Information and
Regulatory Affairs (OIRA) will review all significant rules. OIRA has
determined that this rule is not significant.
Executive Order 13563 reaffirms the principles of E.O. 12866 while
calling for improvements in the nation's regulatory system to promote
predictability, to reduce uncertainty, and to use the best, most
innovative, and least burdensome tools for achieving regulatory ends.
The executive order directs agencies to consider regulatory approaches
that reduce burdens and maintain flexibility and freedom of choice for
the public where these approaches are relevant, feasible, and
consistent with regulatory objectives. E.O. 13563 emphasizes further
that regulations must be based on the best available science and that
the rulemaking process must allow for public participation and an open
exchange of ideas. We have developed this rule in a manner consistent
with these requirements.
Regulatory Flexibility Act (5 U.S.C. 601 et seq.)
Under the Regulatory Flexibility Act (RFA; 5 U.S.C. 601 et seq.),
as amended by the Small Business Regulatory Enforcement Fairness Act of
1996 (SBREFA; 5 U.S.C. 801 et seq.), whenever an agency is required to
publish a notice of rulemaking for any proposed or final rule, it must
prepare and make available for public comment a regulatory flexibility
analysis that describes the effects of the rule on small entities
(i.e., small businesses, small organizations, and small government
jurisdictions). However, no regulatory flexibility analysis is required
if the head of the agency certifies the rule will not have a
significant economic impact on a substantial number of small entities.
The SBREFA amended the RFA to require Federal agencies to provide a
certification statement of the factual basis for certifying that the
rule will not have a significant economic impact on a substantial
number of small entities.
According to the Small Business Administration, small entities
include small organizations such as independent nonprofit
organizations; small governmental jurisdictions, including school
boards and city and town governments that serve fewer than 50,000
residents; and small businesses (13 CFR 121.201). Small businesses
include manufacturing and mining concerns with fewer than 500
employees, wholesale trade entities with fewer than 100 employees,
retail and service businesses with less than $5 million in annual
sales, general and heavy construction businesses with less than $27.5
million in annual business, special trade contractors doing less than
$11.5 million in annual business, and agricultural businesses with
annual sales less than $750,000. To determine if potential economic
impacts to these small entities are significant, we considered the
types of activities that might trigger regulatory impacts under this
designation as well as types of project modifications that may result.
In general, the term ``significant economic impact'' is meant to apply
to a typical small business firm's business operations.
Under the RFA, as amended, and as understood in light of recent
court decisions, Federal agencies are required to evaluate the
potential incremental impacts of rulemaking on those entities directly
regulated by the rulemaking itself; in other words, the RFA does not
require agencies to evaluate the potential impacts to indirectly
regulated entities. The regulatory mechanism through which critical
habitat protections are realized is section 7 of the Act, which
requires Federal agencies, in consultation with the Service, to ensure
that any action authorized, funded, or carried out by the agency is not
likely to destroy or adversely modify critical habitat. Therefore,
under section 7, only Federal action agencies are directly subject to
the specific regulatory requirement
[[Page 19857]]
(avoiding destruction and adverse modification) imposed by critical
habitat designation. Consequently, it is our position that only Federal
action agencies would be directly regulated if we adopt the proposed
critical habitat designation. There is no requirement under the RFA to
evaluate the potential impacts to entities not directly regulated.
Moreover, Federal agencies are not small entities. Therefore, because
no small entities would be directly regulated by this rulemaking, the
Service certifies that, if made final as proposed, the proposed
critical habitat designation will not have a significant economic
impact on a substantial number of small entities.
In summary, we have considered whether the proposed designation
would result in a significant economic impact on a substantial number
of small entities. For the above reasons and based on currently
available information, we certify that, if made final, the proposed
critical habitat designation would not have a significant economic
impact on a substantial number of small business entities. Therefore,
an initial regulatory flexibility analysis is not required.
Energy Supply, Distribution, or Use--Executive Order 13211
Executive Order 13211 (Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use) requires
agencies to prepare Statements of Energy Effects when undertaking
certain actions. In our economic analysis, we did not find that the
designation of this proposed critical habitat would significantly
affect energy supplies, distribution, or use because these were not
identified as land use sectors within the critical habitat areas.
Therefore, this action is not a significant energy action, and no
Statement of Energy Effects is required.
Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.)
In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501
et seq.), we make the following finding:
(1) This proposed rule would not produce a Federal mandate. In
general, a Federal mandate is a provision in legislation, statute, or
regulation that would impose an enforceable duty upon State, local, or
tribal governments, or the private sector, and includes both ``Federal
intergovernmental mandates'' and ``Federal private sector mandates.''
These terms are defined in 2 U.S.C. 658(5)-(7). ``Federal
intergovernmental mandate'' includes a regulation that ``would impose
an enforceable duty upon State, local, or tribal governments'' with two
exceptions. It excludes ``a condition of Federal assistance.'' It also
excludes ``a duty arising from participation in a voluntary Federal
program,'' unless the regulation ``relates to a then-existing Federal
program under which $500,000,000 or more is provided annually to State,
local, and tribal governments under entitlement authority,'' if the
provision would ``increase the stringency of conditions of assistance''
or ``place caps upon, or otherwise decrease, the Federal Government's
responsibility to provide funding,'' and the State, local, or tribal
governments ``lack authority'' to adjust accordingly. At the time of
enactment, these entitlement programs were: Medicaid; Aid to Families
with Dependent Children work programs; Child Nutrition; Food Stamps;
Social Services Block Grants; Vocational Rehabilitation State Grants;
Foster Care, Adoption Assistance, and Independent Living; Family
Support Welfare Services; and Child Support Enforcement. ``Federal
private sector mandate'' includes a regulation that ``would impose an
enforceable duty upon the private sector, except (i) a condition of
Federal assistance or (ii) a duty arising from participation in a
voluntary Federal program.''
The designation of critical habitat does not impose a legally
binding duty on non-Federal Government entities or private parties.
Under the Act, the only regulatory effect is that Federal agencies must
ensure that their actions do not destroy or adversely modify critical
habitat under section 7. While non-Federal entities that receive
Federal funding, assistance, or permits, or that otherwise require
approval or authorization from a Federal agency for an action, may be
indirectly impacted by the designation of critical habitat, the legally
binding duty to avoid destruction or adverse modification of critical
habitat rests squarely on the Federal agency. Furthermore, to the
extent that non-Federal entities are indirectly impacted because they
receive Federal assistance or participate in a voluntary Federal aid
program, the Unfunded Mandates Reform Act would not apply, nor would
critical habitat shift the costs of the large entitlement programs
listed above onto State governments.
(2) We do not believe that this rule would significantly or
uniquely affect small governments. Small governments will be affected
only to the extent that any programs having Federal funds, permits, or
other authorized activities must ensure that their actions will not
adversely affect the critical habitat. Therefore, a Small Government
Agency Plan is not required.
Takings--Executive Order 12630
In accordance with E.O. 12630 (Government Actions and Interference
with Constitutionally Protected Private Property Rights), we have
analyzed the potential takings implications of designating critical
habitat for the Panama City crayfish in a takings implications
assessment. The Act does not authorize the Service to regulate private
actions on private lands or confiscate private property as a result of
critical habitat designation. Designation of critical habitat does not
affect land ownership, or establish any closures, or restrictions on
use of or access to the designated areas. Furthermore, the designation
of critical habitat does not affect landowner actions that do not
require Federal funding or permits, nor does it preclude development of
habitat conservation programs or issuance of incidental take permits to
permit actions that do require Federal funding or permits to go
forward. However, Federal agencies are prohibited from carrying out,
funding, or authorizing actions that would destroy or adversely modify
critical habitat. A takings implications assessment has been completed
for the proposed designation of critical habitat for the Panama City
crayfish, and it concludes that, if adopted, this designation of
critical habitat does not pose significant takings implications for
lands within or affected by the designation.
Federalism--Executive Order 13132
In accordance with E.O. 13132 (Federalism), this proposed rule does
not have significant Federalism effects. A federalism summary impact
statement is not required. In keeping with Department of the Interior
and Department of Commerce policy, we requested information from, and
coordinated development of this proposed critical habitat designation
with, appropriate State resource agencies. From a federalism
perspective, the designation of critical habitat directly affects only
the responsibilities of Federal agencies. The Act imposes no other
duties with respect to critical habitat, either for States and local
governments, or for anyone else. As a result, the proposed rule does
not have substantial direct effects either on the States, or on the
relationship between the national government and the States, or on the
distribution of powers and responsibilities among the various levels of
government. The proposed designation may have some benefit to these
governments because the areas
[[Page 19858]]
that contain the features essential to the conservation of the species
are more clearly defined, and the physical or biological features of
the habitat necessary for the conservation of the species are
specifically identified. This information does not alter where and what
federally sponsored activities may occur. However, it may assist State
and local governments in long-range planning because they no longer
have to wait for case-by-case section 7 consultations to occur.
Where State and local governments require approval or authorization
from a Federal agency for actions that may affect critical habitat,
consultation under section 7(a)(2) of the Act would be required. While
non-Federal entities that receive Federal funding, assistance, or
permits, or that otherwise require approval or authorization from a
Federal agency for an action, may be indirectly impacted by the
designation of critical habitat, the legally binding duty to avoid
destruction or adverse modification of critical habitat rests squarely
on the Federal agency.
Civil Justice Reform--Executive Order 12988
In accordance with Executive Order 12988 (Civil Justice Reform),
the Office of the Solicitor has determined that the rule does not
unduly burden the judicial system and that it meets the requirements of
sections 3(a) and 3(b)(2) of the Order. We have proposed designating
critical habitat in accordance with the provisions of the Act. To
assist the public in understanding the habitat needs of the species,
this proposed rule identifies the elements of physical or biological
features essential to the conservation of the species. The proposed
areas of critical habitat are presented on maps, and the proposed rule
provides several options for the interested public to obtain more
detailed location information, if desired.
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.)
This rule does not contain information collection requirements, and
a submission to the Office of Management and Budget (OMB) under the
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.) is not
required. We may not conduct or sponsor and you are not required to
respond to a collection of information unless it displays a currently
valid OMB control number.
National Environmental Policy Act (42 U.S.C. 4321 et seq.)
It is our position that, outside the jurisdiction of the U.S. Court
of Appeals for the Tenth Circuit, we do not need to prepare
environmental analyses pursuant to the National Environmental Policy
Act (NEPA; 42 U.S.C. 4321 et seq.) in connection with regulations
adopted pursuant to section 4(a) of the Act. We published a notice
outlining our reasons for this determination in the Federal Register on
October 25, 1983 (48 FR 49244). This position was upheld by the U.S.
Court of Appeals for the Ninth Circuit (Douglas County v. Babbitt, 48
F.3d 1495 (9th Cir. 1995), cert. denied 516 U.S. 1042 (1996)).
Government-to-Government Relationship With Tribes
In accordance with the President's memorandum of April 29, 1994
(Government-to-Government Relations with Native American Tribal
Governments; 59 FR 22951), Executive Order 13175 (Consultation and
Coordination with Indian Tribal Governments), and the Department of the
Interior's manual at 512 DM 2, we readily acknowledge our
responsibility to communicate meaningfully with recognized Federal
Tribes on a government-to-government basis. In accordance with
Secretarial Order 3206 of June 5, 1997 (American Indian Tribal Rights,
Federal-Tribal Trust Responsibilities, and the Endangered Species Act),
we readily acknowledge our responsibilities to work directly with
Tribes in developing programs for healthy ecosystems, to acknowledge
that Tribal lands are not subject to the same controls as Federal
public lands, to remain sensitive to Indian culture, and to make
information available to Tribes. We have determined that no Tribal
lands fall within the boundaries of the proposed critical habitat for
the Panama City crayfish, so no Tribal lands would be affected by the
proposed designation.
References Cited
A complete list of references cited in this rulemaking is available
on the internet at http://www.regulations.gov and upon request from the
Panama City Field Office (see FOR FURTHER INFORMATION CONTACT).
Authors
The primary authors of this proposed rulemaking are the staff
members of the Fish and Wildlife Service's Species Assessment Team and
the Florida Ecological Services Field Office.
List of Subjects in 50 CFR Part 17
Endangered and threatened species, Exports, Imports, Reporting and
recordkeeping requirements, Transportation.
Proposed Regulation Promulgation
Accordingly, we propose to amend part 17, subchapter B of chapter
I, title 50 of the Code of Federal Regulations, as set forth below:
PART 17--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. 17.46 by adding paragraph (d) to read as follows:
Sec. 17.46 Special rules--crustaceans.
* * * * *
(d) Panama City Crayfish (Procambarus econfinae)--(1) Prohibitions.
The following prohibitions that apply to endangered wildlife also apply
to the Panama City crayfish. Except as provided under paragraph (d)(2)
of this section and Sec. Sec. 17.4 and 17.5, it is unlawful for any
person subject to the jurisdiction of the United States to commit, to
attempt to commit, to solicit another to commit, or cause to be
committed, any of the following acts in regard to these species:
(i) Import or export, as set forth at Sec. 17.21(b) for endangered
wildlife.
(ii) Take, as set forth at Sec. 17.21(c)(1) for endangered
wildlife.
(iii) Possession and other acts with unlawfully taken specimens, as
set forth at Sec. 17.21(d)(1) for endangered wildlife.
(iv) Interstate or foreign commerce in the course of a commercial
activity, as set forth at Sec. 17.21(e) for endangered wildlife.
(v) Sale or offer for sale, as set forth at Sec. 17.21(f) for
endangered wildlife.
(2) Exceptions from prohibitions. In regard to this species, you
may:
(i) Conduct activities as authorized by a permit under Sec. 17.32.
(ii) Take, as set forth at Sec. 17.21(c)(2) through (c)(4) for
endangered wildlife.
(iii) Take as set forth at Sec. 17.31(b).
(iv) Take incidental to an otherwise lawful activity caused by:
(A) Conservation and restoration efforts by the Service or State
wildlife agencies, including, but not limited to, collection of
broodstock, tissue collection for genetic analysis, captive
propagation, subsequent stocking into unoccupied areas within the
historical range of the species and follow-up
[[Page 19859]]
monitoring, and actions necessary to aid a sick, injured, or orphaned
specimen, to dispose of a dead specimen, or to salvage a dead specimen
which may be useful for scientific study.
(B) Development practices that:
(1) Maintain existing structures and construction or reconstruction
activities that occur within the existing footprint of previously
developed areas;
(2) Build new structures that occur within 100 feet of existing
structures on an individual private landowner's property and with a new
footprint less than 1,000 square feet, such as a pool or shed
associated with an existing house;
(3) Install culverts for individual landowners not associated with
housing developments on lands greater than one acre;
(4) Build platforms or boardwalks for recreational purposes on
conservation lands that allow sunlight of sufficient levels to maintain
herbaceous groundcover;
(5) Build paths used for nonmotorized activities as long as the
project footprint, including construction impacts, alter no more than 5
percent of the acreage in core or secondary soils within lands under a
conservation easement.
(C) Certain land management activities, including:
(1) Silvicultural (forestry) activities located in secondary soils
that follow state best management practices (BMPs);
(2) Prescribed burning and wildfire control efforts when following
state BMPs, guidelines, or permit conditions;
(3) Herbicide application activities targeting exotic plants or
shrub species when following all other state and federal BMPs,
guidelines, or permit conditions;
(4) Agricultural maintenance activities in pasture and rangelands
(including cattle operations) that were established prior to January 3,
2018, that do not have indirect impacts to adjacent Panama City
crayfish habitat.
(D) Utility actions, including:
(1) Ditch mowing and maintenance outside of critical habitat units;
(2) Ditch mowing or maintenance within critical habitat units after
coordination with the local FWS office;
(3) Culvert replacements or maintenance on individual landowner
properties that do not adversely affect, but improve or restore, the
natural hydrology;
(4) After coordination with the local FWS office the following:
Maintenance associated with rights-of-way or powerlines, powerline and
pole placements and replacements, and directional boring.
(v) Possess and engage in other acts with unlawfully taken
wildlife, as set forth at Sec. 17.21(d)(2) for endangered wildlife.
0
3. Amend Sec. 17.95(h) by adding an entry for ``Panama City Crayfish
(Procambarus econfinae)'', in the same alphabetical order that it
appears in the table at Sec. 17.11(h), to read as follows:
Sec. 17.95 Critical habitat--fish and wildlife.
* * * * *
(h) * * *
Panama City Crayfish (Procambarus econfinae)
(1) Critical habitat units are depicted for Bay County, Florida, on
the maps below.
(2) Within these areas, the physical or biological features
essential to the conservation of Panama City crayfish consist of the
following components:
(i) Undeveloped lands, including cropland, utilities rights-of-way,
timberlands, and grazing lands, that support open wet pine flatwoods
and wet prairie habitats that contain the following:
(A) Appropriate herbaceous groundcover vegetation;
(B) Permanent or temporary pools of shallow (usually less than 1
foot) freshwater locations; and
(C) Gently-sloped ground level swales with a 3:1 or shallower slope
ratio along ecotonal areas.
(ii) Soil types within undeveloped lands that provide sediment
structure needed for burrow construction and that support mostly native
herbaceous vegetation needed for food and cover, and where the ground
water is always within 3 feet of the ground surface and surface waters
occur on occasion. These soil types include:
(A) Core soils for Panama City crayfish, including Pamlico-Dorovan
Complex, Rutlege Sand, Plummer Sand, Pelham Sand, Pantego Sandy Loam,
and Rutledge-Pamlico Complex;
(B) Secondary soils within 100 meters (328 feet) of core soils:
Albany Sand, Leefield Sand, Leon Fine Sand, Osier Fine Sand, and
Alapaha Loamy Sand; and
(C) Currently, or can eventually, support native herbaceous
vegetation such as, but not limited to, wiregrass (Aristida
beyrichiana), redroot (Lachnanthes caroliniana), beakrushes
(Rhynchospora spp.), pitcher plants (Sarracenia spp.), sundews (Drosera
spp.), butterworts (Pinguicula spp.), and lilies (Hymenocallis spp.).
(iii) Undeveloped lands that contain surface and groundwater of
sufficient quality to support all life stages of the Panama City
crayfish and the herbaceous vegetation on which they rely, specifically
surface waters with:
(A) Oxygen levels that range between 2 and 9 milligrams per liter;
(B) pH levels between 4.1 and 9.2; and
(C) temperatures between 42 and 94 degrees Fahrenheit ([deg]F) (5
and 34.4 degrees Celsius ([deg]C)), although optimum temperatures are
thought to be in the range of 68 to 79 [deg]F (20 to 26 [deg]C).
(3) Critical habitat does not include manmade structures (such as
buildings, aqueducts, runways, roads, and other paved areas) and the
land on which they are located existing within the legal boundaries on
the effective date of the final rule.
(4) Critical habitat map units. Data layers defining map units were
created based on known occurrences and habitat requirements. Critical
habitat units were mapped in ArcMap (ESRI, Inc.) using the U.S.
Department of Agriculture, Natural Resources Conservation Service, Soil
Survey Geographic Database dataset. The maps in this entry, as modified
by any accompanying regulatory text, establish the boundaries of the
critical habitat designation. The shapefiles on which each map is based
are available to the public at http://www.regulations.gov at Docket No.
FWS-R4-ES-2020-0137 and at the field office responsible for this
designation. You may obtain field office location information by
contacting one of the Service regional offices, the addresses of which
are listed at 50 CFR 2.2.
(5) Note: Index map follows:
[[Page 19860]]
[GRAPHIC] [TIFF OMITTED] TP15AP21.001
(6) Unit 1: 19th Street, Bay County, Florida.
(i) General description: Unit 1 consists of 24.3 acres (9.8
hectares) and is composed of lands in State, county, or city ownership
(3.7 ac (1.5 ha)), and private ownership (20.6 ac (8.3 ha)).
(ii) Map of Units 1, 2, 3, and 4 follows:
[[Page 19861]]
[GRAPHIC] [TIFF OMITTED] TP15AP21.002
(7) Unit 2: Talkington, Bay County, Florida.
(i) General description: Unit 2 consists of 53.1 acres (21.5
hectares) and is composed of lands entirely in private ownership.
(ii) Map of Unit 2 is provided at paragraph (6)(ii) of this entry.
(8) Unit 3: Minnesota, Bay County, Florida.
(i) General description: Unit 3 consists of 65.0 acres (26.3
hectares) and is composed of lands in State, county, or city ownership
(37.2 ac (15.0 ha)), and private ownership (27.9 ac (11.3 ha)).
(ii) Map of Unit 3 is provided at paragraph (6)(ii) of this entry.
(9) Unit 4: Transmitter West, Bay County, Florida.
(i) General description: Unit 4 consists of 248.4 acres (100.5
hectares) and is composed of lands in State, county, or city ownership
(4.7 ac (1.9 ha)), and private ownership (243.7 ac (98.6 ha)).
(ii) Map of Unit 4 is provided at paragraph (6)(ii) of this entry.
(10) Unit 5: Deer Point, Bay County, Florida.
(i) General description: Unit 5 consists of 414.6 ac (167.8 ha) and
is composed of lands in State, county, or city ownership (0.9 ac (0.4
ha)), and private ownership (413.8 ac (167.5 ha)).
(ii) Map of Units 5 and 6 follows:
BILLING CODE 4333-15-P
[[Page 19862]]
[GRAPHIC] [TIFF OMITTED] TP15AP21.003
(11) Unit 6: High Point, Bay County, Florida.
(i) General description: Unit 6 consists of 38.4 ac (15.5 ha) and
is composed of lands in State, county, or city ownership (0.5 ac (0.2
ha)), and private ownership (37.9 ac (15.3 ha)).
(ii) Map of Unit 6 is provided at paragraph (10)(ii) of this entry.
(12) Unit 7: Star, Bay County, Florida.
(i) General description: Unit 7 consists of 2,761.4 ac (1,117.5 ha)
and is composed of lands in State, county, or city ownership (9.7 ac
(4.0 ha)), and private ownership (2,751.6 ac (1,113.5 ha)).
(ii) Map of Units 7 and 8 follows:
[[Page 19863]]
[GRAPHIC] [TIFF OMITTED] TP15AP21.004
(13) Unit 8: Transmitter East, Bay County, Florida.
(i) General description: Unit 8 consists of 3,571.5 ac (1,445.4 ha)
and is composed of lands in State, county, or city ownership (82.5 ac
(33.4 ha)), and private ownership (3,489.0 ac (1,412.0 ha)).
(ii) Map of Unit 8 is provided at paragraph (12)(ii) of this entry.
* * * * *
Martha Williams,
Principal Deputy Director, Exercising the Delegated Authority of the
Director, U.S. Fish and Wildlife Service.
[FR Doc. 2021-07243 Filed 4-14-21; 8:45 am]
BILLING CODE 4333-15-C