Federal Register, Volume 88 Issue 81 (Thursday, April 27, 2023)

[Federal Register Volume 88, Number 81 (Thursday, April 27, 2023)]
[Rules and Regulations]
[Pages 25543-25557]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-08846]

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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-R2-ES-2020-0015; FF09E21000 FXES1111090FEDR 234]
RIN 1018-BD20

Endangered and Threatened Wildlife and Plants; Endangered Species
Status for South Llano Springs Moss

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), determine
endangered species status under the Endangered Species Act of 1973
(Act), as amended, for the South Llano springs moss (Donrichardsia
macroneuron), an aquatic moss species from Edwards County, Texas. We
are excluding the single unit of proposed critical habitat, and,
therefore, no critical habitat is being designated for the South Llano
springs moss. This rule adds the species to the List of Endangered and
Threatened Plants and applies the protections of the Act to the
species.

DATES: This rule is effective May 30, 2023.

ADDRESSES: This final rule is available on the internet at https://www.regulations.gov. Comments and materials we received, as well as
supporting documentation we used in preparing this rule, are available
for public inspection at https://www.regulations.gov at Docket No. FWS-
R2-ES-2020-0015.

FOR FURTHER INFORMATION CONTACT: Karen Myers, Field Supervisor, U.S.
Fish and Wildlife Service, Austin Ecological Services Field Office,
1505 Ferguson Lane, Austin, Texas; telephone 512-937-7371. Individuals
in the United States who are deaf, deafblind, hard of hearing, or have
a speech disability may dial 711 (TTY, TDD, or TeleBraille) to access
telecommunications relay services. Individuals outside the United
States should use the relay services offered within their country to
make international calls to the point-of-contact in the United States.

SUPPLEMENTARY INFORMATION:

Executive Summary

Why we need to publish a rule. Under the Act, a species warrants
listing if it meets the definition of an endangered species (in danger
of extinction throughout all or a significant portion of its range) or
a threatened species (likely to become endangered within the
foreseeable future throughout all or a significant portion of its
range). If we determine that a species warrants listing, we must list
the species promptly and designate the species' critical habitat to the
maximum extent prudent and determinable. We have determined that the
South Llano springs moss meets the definition of an endangered species;
therefore, we are listing it as such. Both listing a species as an
endangered or threatened species and designating critical habitat can
be completed only by issuing a rule through the Administrative
Procedure Act rulemaking process.
What this document does. This rule lists the South Llano springs
moss (Donrichardsia macroneuron) as an endangered species under the
Act. We are excluding the single proposed critical habitat unit for the
species.
The basis for our action. Under the Act, we may determine that a
species is an endangered or threatened species because of any of five
factors: (A) The present or threatened destruction, modification, or
curtailment of its habitat or range; (B) overutilization for
commercial, recreational, scientific, or educational purposes; (C)
disease or predation; (D) the inadequacy of existing regulatory
mechanisms; or (E) other natural or manmade factors affecting its
continued existence. We have determined that increased groundwater
pumping from the Edwards-Trinity aquifer that supplies water for the
springs that the South Llano springs moss is dependent on, as well as
flash floods, sedimentation, invasive plant species, a single
population, small population size, and lack of genetic diversity, and
cumulative impacts from these threats, pose threats to this plant
species to the degree that listing it as an endangered species under
the Act is warranted.
Section 4(a)(3) of the Act requires the Secretary of the Interior
(Secretary) to designate critical habitat concurrent with listing to
the maximum extent prudent and determinable. Section 3(5)(A) of the Act
defines critical habitat as (i) the specific areas within the
geographical area occupied by the species, at the time it is listed, on
which are found those physical or biological features (I) essential to
the conservation of the species and (II) which may require special
management considerations or protections; and (ii) specific areas
outside the geographical area occupied by the species at the time 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.

Previous Federal Actions

Please refer to the proposed listing and critical habitat rule (86
FR 53609; September 28, 2021) for a detailed description of previous
Federal actions concerning this species.

Summary of Changes From the Proposed Rule

We reviewed the comments related to our proposed listing
determination and critical habitat for the South Llano springs moss
(see Summary of Comments and Recommendations, below) and completed our
analysis of areas considered for exclusion under section 4(b)(2) of the
Act. This final rule incorporates changes from our proposed listing and
critical habitat rule (86 FR 53609; September 28, 2021) based on the
exclusion analysis described in Exclusions Based on Other Relevant
Impacts, below.
Specifically, we have determined that the benefits of excluding
critical habitat outweigh the benefits of inclusion. For a complete
description of our exclusion analysis, see Consideration of Impacts
under Section 4(b)(2) of the Act, below. Based on our analysis, we are
excluding the Upper South Llano River Unit (0.48 acre (ac) (0.19
hectares (ha))) of proposed critical habitat. As this was the only unit
proposed for designation as critical habitat, no critical habitat is
designated for this species in this rule.
Because we are not designating critical habitat for this species,
we present an abbreviated list of determinations under Required
Determinations in this rule (see below). In that portion of this rule,
we present only those determinations that apply to listing actions due
to the Act's requirement that listing decisions be made ``solely on the
basis of the best scientific and commercial data available'' (16 U.S.C.
1533(b)(1)(A)), instead of the longer list of determinations that apply
to critical habitat designations.

Supporting Documents

A species status assessment (SSA) team prepared an SSA report for
the South Llano springs moss. The SSA team was composed of Service
biologists, in consultation with other species experts. The SSA report
represents a compilation of the best

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scientific and commercial data available concerning the status of the
species, including the impacts of past, present, and future factors
(both negative and beneficial) affecting the species.
In accordance with our joint policy on peer review published in the
Federal Register on July 1, 1994 (59 FR 34270), and our August 22,
2016, memorandum updating and clarifying the role of peer review of
listing actions under the Act, we sought the expert opinions of four
appropriate specialists regarding the SSA. We received one response. We
also sent the SSA report to partners, including scientists with
expertise regarding this species, for review. We received review from
one partner (Texas Parks and Wildlife Department).

I. Final Listing Determination

Background

The South Llano springs moss is an aquatic moss that grows on
submerged or partially submerged rocks. The deep, loosely interwoven
mats are blue-green to blackish-brown when shaded and yellow-green when
exposed to full sun. Like all mosses, the South Llano springs moss
forms clonal colonies of leaf-bearing stems.
The South Llano springs moss has an extremely limited range: it has
only been documented in two locations and is thought to be extirpated
from one of those. The remaining extant site is from Seven Hundred
Springs, on the South Llano River in Edwards County, Texas. The
extirpated site, referred to as the Redfearn site, was about 5
kilometers (km) (3.1 miles (mi)) downstream from Seven Hundred Springs
in Kimble County, Texas, although the exact location is unknown. Both
sites occur within the Edwards Plateau. Researchers visited 10 other
springs in the Llano and South Llano River watersheds in 1978 and 1979
but found no additional populations (Wyatt and Stoneburner 1980, pp.
514, 516).
The South Llano springs moss was discovered at Seven Hundred
Springs in 1932 and was most recently confirmed there in 1979 (Wyatt
and Stoneburner 1980, entire). When last observed in 1979, the South
Llano springs moss was abundantly dispersed in the spring outflow,
partially submerged in shaded areas within an area of about 10 by 100
meters (m) (33 by 328 feet (ft)) between the springs and the river
below on privately owned land (Wyatt and Stoneburner 1980, p. 516).
Observation of the habitat from the opposite side of the river in 2017
indicated that the habitat appears to be in excellent condition
(Service 2017, entire). This is the best available information we have
for this site; consequently, we consider the Seven Hundred Springs
population to be extant. The South Llano springs moss was last
documented at the Redfearn site in 1971. The two specimen labels from
these collections state that they were collected ``1 mile south of
Telegraph'' with one specimen collected on a dam and the other from
limestone at the edge of the creek. On topographic maps, Telegraph is a
location consisting of a single store that is not directly along the
river; however, there is a road connecting Telegraph to the South Llano
River with a bridge, and this may be the location from which Redfearn
was measuring. Due to the vague location description, there is
uncertainty around the exact location of the Redfearn site. In 2017, we
conducted surveys along 5.7 km of the South Llano River, including the
2.25 km in which we believe Redfearn collected his specimens. All
aquatic moss species encountered were collected and a sample of each of
the four species encountered was sent to a bryologist at the Missouri
Botanical Garden for identification. None of the species collected were
found to be the South Llano springs moss. This is the best available
information we have for this site; consequently, we consider the
Redfearn population to be extirpated. It is possible that the species
does not occur anywhere else. However, few surveys for this species
have been conducted. Consequently, it is possible that this species
occurs elsewhere along Paint Creek or the South Llano River. The best
available data indicate that only the Seven Hundred Springs population
persists.
A thorough review of the taxonomy, life history, and ecology of the
South Llano springs moss is presented in the SSA report (version 1.1;
Service 2023, entire).

Regulatory and Analytical Framework

Regulatory Framework

Section 4 of the Act (16 U.S.C. 1533) and the implementing
regulations in title 50 of the Code of Federal Regulations set forth
the procedures for determining whether a species is an endangered
species or a threatened species, issuing protective regulations for
threatened species, and designating critical habitat for endangered and
threatened species. In 2019, jointly with the National Marine Fisheries
Service, the Service issued a final rule that revised the regulations
in 50 CFR part 424 regarding how we add, remove, and reclassify
endangered and threatened species and the criteria for designating
listed species' critical habitat (84 FR 45020; August 27, 2019). On the
same day, the Service also issued final regulations that, for species
listed as threatened species after September 26, 2019, eliminated the
Service's general protective regulations automatically applying to
threatened species the prohibitions that section 9 of the Act applies
to endangered species (84 FR 44753; August 27, 2019).
The Act defines an ``endangered species'' as a species that is in
danger of extinction throughout all or a significant portion of its
range, and a ``threatened species'' as a species that is likely to
become an endangered species within the foreseeable future throughout
all or a significant portion of its range. The Act requires that we
determine whether any species is an endangered species or a threatened
species because of any of the following factors:
(A) The present or threatened destruction, modification, or
curtailment of its habitat or range;
(B) Overutilization for commercial, recreational, scientific, or
educational purposes;
(C) Disease or predation;
(D) The inadequacy of existing regulatory mechanisms; or
(E) Other natural or manmade factors affecting its continued
existence.
These factors represent broad categories of natural or human-caused
actions or conditions that could have an effect on a species' continued
existence. In evaluating these actions and conditions, we look for
those that may have a negative effect on individuals of the species, as
well as other actions or conditions that may ameliorate any negative
effects or may have positive effects.
We use the term ``threat'' to refer in general to actions or
conditions that are known to or are reasonably likely to negatively
affect individuals of a species. The term ``threat'' includes actions
or conditions that have a direct impact on individuals (direct
impacts), as well as those that affect individuals through alteration
of their habitat or required resources (stressors). The term ``threat''
may encompass--either together or separately--the source of the action
or condition or the action or condition itself.
However, the mere identification of any threat(s) does not
necessarily mean that the species meets the statutory definition of an
``endangered species'' or a ``threatened species.'' In determining
whether a species meets either definition, we must evaluate all
identified threats by considering the expected response by the species
and the effects of the threats--in light of those actions and
conditions that will

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ameliorate the threats--on an individual, population, and species
level. We evaluate each threat and its expected effects on the species,
then analyze the cumulative effect of all of the threats on the species
as a whole. We also consider the cumulative effect of the threats in
light of those actions and conditions that will have positive effects
on the species, such as any existing regulatory mechanisms or
conservation efforts. The Secretary determines whether the species
meets the definition of an ``endangered species'' or a ``threatened
species'' only after conducting this cumulative analysis and describing
the expected effect on the species now and in the foreseeable future.
The Act does not define the term ``foreseeable future,'' which
appears in the statutory definition of ``threatened species.'' Our
implementing regulations at 50 CFR 424.11(d) set forth a framework for
evaluating the foreseeable future on a case-by-case basis. The term
``foreseeable future'' extends only so far into the future as the
Services can reasonably determine that both the future threats and the
species' responses to those threats are likely. In other words, the
foreseeable future is the period of time in which we can make reliable
predictions. ``Reliable'' does not mean ``certain''; it means
sufficient to provide a reasonable degree of confidence in the
prediction. Thus, a prediction is reliable if it is reasonable to
depend on it when making decisions.
It is not always possible or necessary to define the foreseeable
future as a particular number of years. Analysis of the foreseeable
future uses the best scientific and commercial data available and
should consider the timeframes applicable to the relevant threats and
to the species' likely responses to those threats in view of its life-
history characteristics. Data that are typically relevant to assessing
the species' biological response include species-specific factors such
as lifespan, reproductive rates or productivity, certain behaviors, and
other demographic factors.

Analytical Framework

The SSA report documents the results of our comprehensive
biological review of the best scientific and commercial data regarding
the status of the species, including an assessment of the potential
threats to the species. The SSA report does not represent our decision
on whether the species should be listed as an endangered or threatened
species under the Act. However, it does provide the scientific basis
that informs our regulatory decisions, which involve the further
application of standards within the Act and its implementing
regulations and policies. The following is a summary of the key results
and conclusions from the SSA report; the full SSA report can be found
at Docket FWS-R2-ES-2020-0015 on https://www.regulations.gov.
To assess South Llano springs moss' viability, we used the three
conservation biology principles of resiliency, redundancy, and
representation (Shaffer and Stein 2000, pp. 306-310). Briefly,
resiliency supports the ability of the species to withstand
environmental and demographic stochasticity (for example, wet or dry,
warm or cold years), redundancy supports the ability of the species to
withstand catastrophic events (for example, droughts, large pollution
events), and representation supports the ability of the species to
adapt over time to long-term changes in the environment (for example,
climate changes). In general, the more resilient and redundant a
species is and the more representation it has, the more likely it is to
sustain populations over time, even under changing environmental
conditions. Using these principles, we identified the species'
ecological requirements for survival and reproduction at the
individual, population, and species levels, and described the
beneficial and risk factors influencing the species' viability.
The SSA process can be categorized into three sequential stages.
During the first stage, we evaluated the individual species' life-
history needs. The next stage involved an assessment of the historical
and current condition of the species' demographics and habitat
characteristics, including an explanation of how the species arrived at
its current condition. The final stage of the SSA involved making
predictions about the species' responses to positive and negative
environmental and anthropogenic influences. Throughout all of these
stages, we used the best available information to characterize
viability as the ability of a species to sustain populations in the
wild over time. We use this information to inform our regulatory
decision.

Summary of Biological Status and Threats

In this discussion, we review the biological condition of the
species and its resources, and the threats that influence the species'
current and future condition, in order to assess the species' overall
viability and the risks to that viability.
Based on the conditions of the only known current and historical
populations, the South Llano springs moss requires a constant flow of
mineral-rich spring water or spring-fed river water over shallow
limestone rocks. Seven Hundred Springs and the areas thought to contain
the Redfearn sites are supported by spring flows within the Edwards-
Trinity aquifer and the South Llano River watershed (Seven Hundred
Springs and Big Paint Springs). These springs have never ceased flowing
in recorded history. Water from these springs emerges at a very
consistent temperature and is rich in travertine minerals. Rocks and
plants immersed in the upper South Llano River quickly become encrusted
with travertine- or tufa-like mineral deposits, to an unusual degree
not seen in most springs in the Edwards-Trinity aquifer (Service 2017,
p. 2). Thus, it is possible that high mineral concentrations, or the
precipitation of minerals from solution, could be requirements for the
establishment and growth of South Llano springs moss individuals.
The water temperature of Seven Hundred Springs was consistently
21.5 degrees Celsius ([deg]C) (70.7 degrees Fahrenheit ([deg]F)) in
June, and the pH ranged from 7.0 to 7.2 (Wyatt and Stoneburner 1980, p.
516). The species occurred in both shaded and exposed niches at Seven
Hundred Springs (Wyatt and Stoneburner 1980, p. 516). Associated
vascular plant species included maidenhair fern (Adiantum capillus-
veneris), southern shield fern (Thelypteris kunthii), watercress
(Nasturtium officinale), and members of the mint family (Lamiaceae) and
composite family (Asteraceae) (Wyatt and Stoneburner 1980, p. 516).
Associated moss species included Hygroamblystegium tenax and Eucladium
verticillatum (Wyatt and Stoneburner 1980, p. 517).
Mosses closely related to the South Llano springs moss reproduce
both sexually and asexually. However, there is no evidence that sexual
reproduction is occurring in the single remaining known site of
occurrence, as no plants with female reproductive structures were
observed in the wild population or during a 16-month propagation study
in 1978 and 1979 (Wyatt and Stoneburner 1980, p. 517). The plants
cultivated in captivity produced only male reproductive structures. It
is possible that the known population may be a clone of a single or a
few male individuals and that sexual reproduction is no longer possible
for the species. Therefore, the South Llano springs moss has extremely
low representation with one or just a few genetically identical
individuals.
In addition to the habitat requirements described above,

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sufficiently resilient populations of South Llano springs moss need to
be large enough that local stochastic events do not eliminate all
individuals, allowing the overall population to recover from any one
event. The larger a population is, the greater the chances that a
portion of the population will survive. The minimum viable population
size is not known for this species. However, the geographic extent is
provided from the observations of Wyatt and Stoneburner (1980, p. 516).
When last observed, the South Llano springs moss grew in the spring
outflow partially submerged in shaded areas within a 10-m (33-ft) zone
between the springs and the river below (Wyatt and Stoneburner 1980, p.
516). We assume that the population could be as large as the spring
flow and substrate allow in this zone. The area occupied by a moss
population is a practical surrogate for abundance, provided that it is
understood that this does not address the number of genetically unique
individuals. Since the South Llano springs moss occupies only a small
area at one location, this species has no redundancy and would be
unable to recolonize following a catastrophic event.
Recruitment is also needed for populations to be adequately
resilient. The colony at Seven Hundred Springs may be a clone of a
single individual, or only male individuals, and is presumed incapable
of sexual reproduction (Wyatt and Stoneburner 1980, p. 520). Unless
female individuals are present, the colony of South Llano springs moss
at Seven Hundred Springs can persist and grow only through vegetative
budding or through the establishment of fragments that happen to lodge
in suitable niches. These mats can expand to occupy new habitats while
the portion that established earlier dies. An individual remains alive
as long as old stems die no faster than new stems develop. The same
individual could migrate back and forth through available habitats for
an unlimited period of time, and it is not inconceivable that the
individuals we see today arose from spores that germinated many
thousands of years ago. For the species to persist, the recruitment of
new individuals must equal or exceed mortality.
The species' range may have been more extensive 10,000 years ago,
and subsequently became restricted to this single location as the
climate warmed and other springs periodically stopped flowing (Wyatt
and Stoneburner 1980, pp. 519-520). To assess the climate changes that
could affect this species into the future, we examined the climate
parameters using both the representative concentration pathway (RCP)
4.5 and RCP 8.5 scenarios to provide a range of projected values. These
models predict that by 2074, climate changes could result in a
reduction of aquifer recharge and an increased duration and severity of
droughts and heavy rainfall, thereby increasing the threats of
interrupted spring flows and flash floods. Annual precipitation is
highly variable in central Texas, and severe, multi-year droughts
occurred during the 1950s and from 2006 through 2012. During these
historical periods of drought, only the largest springs along the South
Llano River, including Seven Hundred Springs, continued flowing, but at
lower rates. Prolonged drought in combination with increased pumping
from the Edwards-Trinity aquifer could increase the probability of
interrupted flows of these springs and, consequently, the extirpation
or extinction of the South Llano springs moss. Despite the frequency of
prolonged drought, the region is also subject to extremely heavy
rainfall, often resulting from tropical storms in the Gulf of Mexico as
well as the Pacific Ocean. All of these factors contribute to flash
floods (high intensity, low duration floods) that can drastically
change stream beds and the surrounding vegetation, potentially scouring
the South Llano springs moss from its rock substrate along the edge of
the stream, or burying it beneath deposits of silt, sand, and gravel.
The amount of pumping from the Edwards-Trinity aquifer is one of
the most important factors influencing storage in the aquifer and
spring flows. Aquifer water levels are stable or have declined slightly
over most of the Edwards-Trinity aquifer, but in some areas, heavy
pumping has led to long-term declines in aquifer levels and diminished
or interrupted spring flows (George et al. 2011, p. 35; Region F Water
Planning Group 2015, pp. 1-34, 3-15; Plateau Region Water Planning
Group 2016, pp. 7-11). These sources project relatively little growth
in the human population in Edwards and Kimble Counties during the next
50 years. Conversely, population growth is projected to increase for
five central Texas counties, which include the metropolitan areas of
San Antonio, New Braunfels, San Marcos, Austin, Round Rock, and
Georgetown, by 32 percent between 2017 and 2037, and by 53 percent
between 2017 and 2050 (Texas Demographic Center 2017, p. 1). It is
reasonably foreseeable that increased pumping may occur from the
Edwards-Trinity aquifer for transfer to other regions to supply
increased municipal water demands. This increased pumping could reduce
water storage in the Edwards-Trinity aquifer and spring flows in the
South Llano River. Loss of spring flows, even for a short time, would
likely reduce or extirpate the only known remaining population of the
South Llano springs moss because the species requires constant
immersion in flowing spring water to persist.
The Upper Llano River Watershed Protection Plan (Broad et al. 2016,
pp. 51, 64-66, 86) identifies increased runoff, evapotranspiration, and
sediment loading as impacts to the upper Llano River watersheds due to
the encroachment of woody species. Recharge into the Edwards-Trinity
aquifer in Edwards County has been reduced during prior periods of
vegetation loss from overgrazing, resulting in increased runoff and the
drying of some smaller springs (Brune 1981, p. 173). Aquifer recharge
may also have been reduced by the encroachment of brush into formerly
grass-dominated uplands (South Llano Watershed Alliance 2012, p. 9;
Broad et al. 2016, pp. 40-41, 51). Aquifer recharge would also be
reduced by an increase in evapotranspiration, due to increased
temperatures.
Small populations are less able to recover from losses caused by
random fluctuations in recruitment (demographic stochasticity) or
variations in spring outflow (environmental stochasticity) (Service
2015, p. 12). In addition to population size, it is likely that
population density also influences population viability, as sexual
reproduction, if it occurs at all in the species' current situation,
requires male and female mosses to be in close proximity. Small,
reproductively isolated populations are also susceptible to the loss of
genetic diversity, to genetic drift, and to inbreeding (Barrett and
Kohn 1991, pp. 3-30). The loss of genetic diversity may reduce the
ability of a species or population to resist pathogens and parasites,
to adapt to changing environmental conditions, or to colonize new
habitats. The combined demographic and genetic consequences of small
population sizes may reduce population recruitment, leading to even
smaller populations and greater isolation, and further decreasing the
viability of the species. These factors may already have contributed to
the decline of the South Llano springs moss to its current state of
extreme endemism in the upper South Llano River. All of the above
stressors are exacerbated by the fact that the South Llano springs moss
likely consists of only one small population. This species has an
extremely low level of representation,

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no redundancy, and limited resiliency making it vulnerable to
catastrophic events such as flash floods and droughts.
We note that, by using the SSA framework to guide our analysis of
the scientific information documented in the SSA report, we have not
only analyzed individual effects on the species, but we have also
analyzed their potential cumulative effects. We have considered the
cumulative effects from climate change, aquifer recharge, population
growth, and groundwater pumping on the spring flows on which the South
Llano springs moss is dependent. We have also considered the risk of
prolonged drought and increased flash floods due to climate change. We
incorporate the cumulative effects into our SSA analysis when we
characterize the current and future condition of the species. To assess
the current and future condition of the species, we undertake an
iterative analysis that encompasses and incorporates the threats
individually and then accumulates and evaluates the effects of all the
factors that may be influencing the species, including threats and
conservation efforts. Because the SSA framework considers not just the
presence of the factors, but to what degree they collectively influence
risk to the entire species, our assessment integrates the cumulative
effects of the factors and replaces a standalone cumulative effects
analysis.

Conservation Efforts and Regulatory Mechanisms

We are not aware of any projects specifically dedicated to the
conservation of the South Llano springs moss. However, all efforts to
improve rangeland and vegetation management within the Edwards-Trinity
Aquifer recharge zone, and within the upper South Llano River
watershed, and all efforts to manage and conserve the Edwards-Trinity
Aquifer itself, contribute to the uninterrupted flow of spring water
and protection of this species' habitat. The Partners for Fish and
Wildlife program has assisted several local landowners with conducting
upland habitat restoration and management. The landowner of the Seven
Hundred Springs property has worked with the Partners for Fish and
Wildlife Program to conduct prescribed burning and restore 1,600 acres
of upland native grassland habitat for migratory monarch butterflies.
Regulatory Mechanisms
The continued existence of the South Llano springs moss requires
the uninterrupted flow of groundwater from the Edwards-Trinity Aquifer
at Seven Hundred Springs. In Texas, the use of groundwater is managed
through the overlapping authorities of Regional Water Planning groups
and Groundwater Management Areas established by the Texas Water
Development Board and by Groundwater Conservation Districts established
by either the Texas Legislature or the Texas Commission on
Environmental Quality. The hydrologic basin that supplies the springs
of the South Llano River lies within Regional Water Planning regions F
(32 counties, including Kimble) and J Plateau (6 counties, including
Edwards). The Hydrologic Unit Code (HUC)-12 watersheds (sub-watersheds)
of the upper South Llano River occur in four Groundwater Conservation
Districts: Real-Edwards Conservation and Reclamation District, Kimble
County Groundwater Conservation District, Sutton County Underground
Water Conservation District, and Headwaters Underground Water
Conservation District. These districts lie within Groundwater
Management Area 7, which has established a desired future condition
limiting average drawdown of the Edwards-Trinity aquifer to 2.1 m (7
ft). Therefore, if this limit on aquifer drawdown is not exceeded, we
do not expect any interruptions to the flow of water at Seven Hundred
Springs.

Summary of Comments and Recommendations

In the proposed rule published on September 28, 2021 (86 FR 53609),
we requested that all interested parties submit written comments on the
proposal by November 29, 2021. We also contacted appropriate Federal
and State agencies, scientific experts and organizations, and other
interested parties and invited them to comment on the proposal. A
newspaper notice inviting general public comment was published in the
Junction Eagle. We did not receive any requests for a public hearing.
All substantive information received during comment periods has either
been incorporated directly into this final determination or is
addressed below.

Peer Reviewer Comments

As discussed in Supporting Documents, above, we received comments
from one peer reviewer. We reviewed the comments we received from the
peer reviewer for substantive issues and new information regarding the
information contained in the SSA report (version 1.1; Service 2023,
entire). The peer reviewer generally concurred with our methods and
conclusions and did not provide any additional information or
substantive comments.

Comments From States

(1) Comment: We received a comment from the State of Texas stating
that the Service lacks sufficient data on status, trends, and threats
to warrant listing the South Llano springs moss as an endangered
species or to designate critical habitat.
Our Response: We are required to make listing determinations based
on the best scientific and commercial data available at the time of our
rulemaking. In our September 28, 2021, proposed rule (86 FR 53609) and
in this final rule, we considered the best scientific and commercial
data available regarding the South Llano springs moss to evaluate the
species' potential status under the Act. Even though the species was
last confirmed to be present in 1979, the best available information
indicates the species is extant because the habitat remains intact and
there has been no interruption to spring flow since that time. In our
SSA, we document ongoing threats to the only known location of the
species. We solicited peer review of our evaluation of the available
data, and the peer reviewer who responded supports our analysis. In
making a listing decision, we are not required to document a decline in
species abundance, but rather document threats to the species and the
risks these threats pose to the survival of the species. To date, we
have been unable to access this location to conduct surveys, but we
would welcome the opportunity to do so. Science is a cumulative
process, and the body of knowledge is ever-growing. In light of this,
we will always take new research into consideration.
Based on the best scientific and commercial data available, in this
rule, we list the South Llano springs moss as an endangered species
under the Act. We are excluding the single proposed critical habitat
unit for the species (for more information, see our exclusion analysis
under Exclusions Based on Other Relevant Impacts, below).

Public Comments

(2) Comment: One commenter stated that the listing of the South
Llano springs moss would affect the ability of the landowner to use
their private property and would require the landowner to bear costs
associated with the protection of the species.
Our Response: When a plant species is listed, owners of private
property where the species occurs are not obligated to incur any costs
related to the species' conservation or alter current

[[Page 25548]]

land management. The presence of a listed species on privately owned
property does not affect land ownership, establish any restrictions on
use of or access to the designated areas, or establish specific land
management standards or prescriptions. Additionally, the presence of a
listed species does not allow the government or public to access
private lands.
The Act's section 9 prohibitions apply to the import and export,
removal and reduction to possession, interstate or foreign commerce,
and sale or offer for sale in interstate or foreign commerce of
endangered plants. The prohibition on removal and reduction to
possession of endangered plants applies to removing and reducing to
possession, and maliciously damaging or destroying, the species on
areas under Federal jurisdiction, not on private lands. That
prohibition also applies to removing, cutting, digging up, or damaging
or destroying the species on any other area in knowing violation of any
State (in this case, Texas) law or regulation or in the course of any
violation of a State criminal trespass law.
Section 7 of the Act does require Federal agencies to review the
projects they fund, regulate, or carry out, such as federally funded
highways and federally regulated pipelines and powerlines, to assess
their effects on listed plants that occur on private lands. Through
consultation with the Service, such projects may be modified to avoid
or reduce effects to listed plants. Programs are available to aid
interested landowners in the voluntary conservation of listed species.
These programs may provide technical or financial assistance and may be
requested from a local Service field office.
(3) Comment: One commenter stated that the Service lacks the
authority to regulate intrastate species.
Our Response: We have the legal authority to regulate intrastate
species. Numerous Federal appellate courts have held that regulation of
purely intrastate species is an essential part of the Act's regulatory
scheme. See San Luis & Delta-Mendota Water Authority v. Salazar, 638
F.3d 1163 (9th Cir. 2011); Alabama-Tombigbee Rivers Coalition v.
Kempthorne, 477 F.3d 1250 (11th Cir. 2007); GDF Realty Investments,
LTD. v. Norton, 326 F.3d 622 (5th Cir. 2003); Gibbs v. Babbitt, 214
F.3d 483 (4th Cir 2000); and Nat'l Ass'n of Home Builders v. Babbitt,
130 F.3d 1041 (D.C.Cir. 1997). In particular, the Fifth Circuit Court
of Appeals (the Fifth Circuit includes Texas) has held that regulation
of purely intrastate species ``is an essential part of'' the Act's
larger regulatory scheme (GDF Realty, 326 F.3d at 640).
(4) Comment: One commenter stated that the proposed rule would
designate much of the Edwards Aquifer as critical habitat.
Our Response: We proposed a critical habitat designation only in
the immediate vicinity of Seven Hundred Springs, an area of 0.48 ac
(0.19 ha). We have determined that the benefits of excluding this
single unit of critical habitat outweigh the benefits of including it,
so we are excluding this single 0.48-ac area from critical habitat
designation (for more information, see our exclusion analysis under
Exclusions Based on Other Relevant Impacts, below). As a result, no
critical habitat is being designated for the South Llano springs moss
in this rule.
(5) Comment: Two commenters expressed concerns that the listing of
the South Llano springs moss would stop or reduce groundwater pumping
from the Edwards aquifer.
Our Response: Nothing in this rule requires a reduction or stoppage
of groundwater pumping from the Edwards aquifer. See our response to
(2) Comment, above. As we state there, section 7 of the Act requires
Federal agencies to review the projects they fund, regulate, or carry
out, such as federally funded highways and federally regulated
pipelines and powerlines, to assess their effects on listed plants.
Although increased pumping from the Edwards-Trinity aquifer could
potentially pose a threat to the species' survival, especially if
combined with prolonged drought, pumping from this aquifer is not
regulated by the Federal Government and is unlikely to have a Federal
nexus.
(6) Comment: One commenter stated that the economic and societal
costs from listing the South Llano springs moss outweigh the extinction
of this species.
Our Response: Although we may consider economic impacts from a
critical habitat designation, the decision on whether or not to list a
species under the Act must rely solely on the best available scientific
and commercial data (see 16 U.S.C. 1533(b)(1)(A)), without
consideration of economic or societal costs.
(7) Comment: One comment stated that the proposed rule did not
provide adequate alternatives through a National Environmental Policy
Act (NEPA; 42 U.S.C. 4321 et seq.) analysis.
Our Response: 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 NEPA 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)).
(8) Comment: One commenter stated that the Service should specify
conservation measures for the species.
Our Response: The Act does not require this rule to specify
conservation measures for the species. When we list a species as
endangered or threatened under the Act, we first propose it as such,
then we evaluate new information received through the public comment
process, then we make a final determination through a final rule. For
the South Llano springs moss, we have determined the species is in
danger of extinction. During the rulemaking process, we developed a
recovery outline that will be used as the foundation of a recovery plan
following listing. The recovery outline will be posted to our
Environmental Conservation Online System (ECOS) website (https://ecos.fws.gov/ecp/) within 30 days after this final listing rule is
published. The recovery outline presents a preliminary conservation
strategy that will guide recovery actions until the full recovery plan
is available. We then prepare a draft recovery plan, with the goal of
completing it within 18 months of the publication of the final listing
rule. We will post the draft recovery plan to ECOS when it is ready and
provide a 60-day public review and comment period. The draft recovery
plan will contain site-specific management actions needed for recovery,
objective and measurable recovery criteria, and estimates of time and
cost needed for recovery. Based on public and peer review comments, we
will then prepare a final recovery plan, with a goal of completing it
within 1 year after completing the draft recovery plan. We will also
prepare a recovery implementation strategy, which will contain step-
down activities or projects needed to implement the recovery actions
described in the recovery plan.
(9) Comment: One commenter recommended that we designate additional
unoccupied critical habitat downstream from Seven Hundred Springs.
Our Response: We have the ability to designate areas that are not
occupied by the species (i.e., unoccupied areas) as critical habitat if
they possess one or more of the physical and biological features that
are essential for the

[[Page 25549]]

conservation of the species. While we find that the species needs
additional populations in more locations in order to recover to the
point of no longer needing the protections of the Act, we do not
possess sufficient data to demonstrate that any other areas exist that
possess habitat essential for the conservation of South Llano springs
moss.

Determination of South Llano Springs Moss's Status

Section 4 of the Act (16 U.S.C. 1533) and its implementing
regulations (50 CFR part 424) set forth the procedures for determining
whether a species meets the definition of an endangered species or a
threatened species. The Act defines an ``endangered species'' as a
species in danger of extinction throughout all or a significant portion
of its range, and a ``threatened species'' as a species likely to
become an endangered species within the foreseeable future throughout
all or a significant portion of its range. The Act requires that we
determine whether a species meets the definition of endangered species
or threatened species because of any of the following factors: (A) The
present or threatened destruction, modification, or curtailment of its
habitat or range; (B) overutilization for commercial, recreational,
scientific, or educational purposes; (C) disease or predation; (D) the
inadequacy of existing regulatory mechanisms; or (E) other natural or
manmade factors affecting its continued existence.

Status Throughout All of Its Range

After evaluating threats to the species and assessing the
cumulative effect of the threats under the Act's section 4(a)(1)
factors, we are listing the South Llano springs moss as an endangered
species throughout all of its range. Only two very small populations of
South Llano springs moss have been documented, which were last observed
in 1971 and 1979. One is now extirpated, and the other is restricted to
a 10-by-100-m (33-by-328-ft) zone between Seven Hundred Springs and the
South Llano River (Wyatt and Stoneburner 1980, p. 516). Therefore, the
species has an extremely low level of representation, and no
redundancy, making it vulnerable to catastrophic events such as flash
floods and droughts. During historical droughts, such as in the 1950s
and 2006-2012, many regional springs ceased flowing, and the flow of
Seven Hundred Springs was greatly reduced. Projected climate changes
include an increased frequency, duration, and severity of droughts
(Factor E), thereby increasing the risk of interrupting the flow of
Seven Hundred Springs and the desiccation and mortality of this
obligately aquatic moss (Factor A). The amount of pumping from the
Edwards-Trinity aquifer is one of the most important factors
influencing storage in the aquifer and the spring flows on which the
South Llano springs moss relies. Groundwater pumping is likely to
increase as the human population grows and as the severity and duration
of droughts increases. Prolonged drought (Factor E), in combination
with increased pumping from the Edwards-Trinity aquifer (Factor E),
further increase the probability of interrupting the flow of Seven
Hundred Springs (Factor A) and, consequently, the probability of
extinction of the South Llano springs moss.
The South Llano springs moss has little or no genetic diversity
(Factor E) because this species likely consists of clones of one or a
few male individuals and is no longer capable of sexual reproduction
(Factor E). Consequently, the species has very low representation and
likely has very little ability to adapt to environmental changes. In
addition, the South Llano springs moss has poor redundancy because
there is only one small population remaining. One future drought event
that reduces the flow of Seven Hundred Springs could result in the
extirpation of this species.
We find that the South Llano springs moss is presently in danger of
extinction throughout its entire range based on the one small
population that is likely genetically compromised. This status puts the
species on the brink of extinction where normal stochastic events, such
as drought, flooding, or a human-caused drop in the aquifer level,
could lead to further decline or loss of the species entirely. The only
other known population has not been observed since 1971 and is
considered likely extirpated. This one remaining population could be
affected by a variety of threats acting in combination to reduce the
overall viability of the species. The risk of extinction is high
because the remaining population is small, with no known potential for
natural recolonization. We find that a threatened species status is not
appropriate for the South Llano springs moss because of the species'
current precarious condition due to its contracted range, small
population size, and likely compromised genetics, and because these
stressors are severe, ongoing, and expected to continue into the
future.
Therefore, after assessing the best available information, we
determine that the South Llano springs moss is in danger of extinction
throughout all of its range.

Status Throughout a Significant Portion of Its Range

Under the Act and our implementing regulations, a species may
warrant listing if it is in danger of extinction or likely to become so
in the foreseeable future throughout all or a significant portion of
its range. We have determined that the South Llano springs moss is in
danger of extinction throughout all of its range and accordingly did
not undertake an analysis of any significant portions of its range.
Because the South Llano springs moss warrants listing as endangered
throughout all of its range, our determination does not conflict with
the decision in Center for Biological Diversity v. Everson, 435 F.
Supp. 3d 69 (D.D.C. 2020), because that decision related to significant
portion of the range analyses for species that warrant listing as
threatened, not endangered, throughout all of their range.

Determination of Status

Our review of the best available scientific and commercial
information indicates that the South Llano springs moss meets the Act's
definition of an endangered species. Therefore, we are listing the
South Llano springs moss as an endangered species in accordance with
sections 3(6) and 4(a)(1) of the Act.

Available Conservation Measures

Conservation measures provided to species listed as endangered or
threatened species under the Act include recognition as a listed
species, planning and implementation of recovery actions, requirements
for Federal protection, and prohibitions against certain practices.
Recognition through listing results in public awareness, and
conservation by Federal, State, Tribal, and local agencies, private
organizations, and individuals. The Act encourages cooperation with the
States and other countries and calls for recovery actions to be carried
out for listed species. The protection required by Federal agencies,
including the Service, and the prohibitions against certain activities
are discussed, in part, below.
The primary purpose of the Act is the conservation of endangered
and threatened species and the ecosystems upon which they depend. The
ultimate goal of such conservation efforts is the recovery of these
listed species, so that they no longer need the protective measures of
the Act. Section 4(f) of the Act calls for the Service to develop and
implement recovery plans for the

[[Page 25550]]

conservation of endangered and threatened species. The goal of this
process is to restore listed species to a point where they are secure,
self-sustaining, and functioning components of their ecosystems.
The recovery planning process begins with development of a recovery
outline made available to the public soon after a final listing
determination. The recovery outline guides the immediate implementation
of urgent recovery actions while a recovery plan is being developed.
Recovery teams (composed of species experts, Federal and State
agencies, nongovernmental organizations, and stakeholders) may be
established to develop and implement recovery plans. The recovery
planning process involves the identification of actions that are
necessary to halt and reverse the species' decline by addressing the
threats to its survival and recovery. The recovery plan identifies
recovery criteria for review of when a species may be ready for
reclassification from endangered to threatened (``downlisting'') or
removal from protected status (``delisting''), and methods for
monitoring recovery progress. Recovery plans also establish a framework
for agencies to coordinate their recovery efforts and provide estimates
of the cost of implementing recovery tasks. Revisions of the plan may
be done to address continuing or new threats to the species, as new
substantive information becomes available. The recovery outline, draft
recovery plan, final recovery plan, and any revisions will be available
on ECOS as they are completed (https://ecos.fws.gov/ecp/), or from our
Austin Ecological Services Field Office (see FOR FURTHER INFORMATION
CONTACT).
Implementation of recovery actions generally requires the
participation of a broad range of partners, including other Federal
agencies, States, Tribes, nongovernmental organizations, businesses,
and private landowners. Examples of recovery actions include habitat
restoration (e.g., restoration of native vegetation), research, captive
propagation and reintroduction, and outreach and education. The
recovery of many listed species cannot be accomplished solely on
Federal lands because their range may occur primarily or solely on non-
Federal lands. To achieve recovery of these species requires
cooperative conservation efforts on private, State, and Tribal lands.
Once this species is listed (see DATES, above), funding for
recovery actions may be available from a variety of sources, including
Federal budgets, State programs, and cost-share grants for non-Federal
landowners, the academic community, and nongovernmental organizations.
In addition, pursuant to section 6 of the Act, the State of Texas will
be eligible for Federal funds to implement management actions that
promote the protection or recovery of the South Llano springs moss.
Information on our grant programs that are available to aid species
recovery can be found at: https://www.fws.gov/service/financial-assistance.
Please let us know if you are interested in participating in
recovery efforts for the South Llano springs moss. Additionally, we
invite you to submit any new information on this species whenever it
becomes available and any information you may have for recovery
planning purposes (see FOR FURTHER INFORMATION CONTACT).
Section 7(a) of the Act requires Federal agencies to evaluate their
actions with respect to any species that is listed as an endangered or
threatened species and with respect to its critical habitat, if any is
designated. Regulations implementing this interagency cooperation
provision of the Act are codified at 50 CFR part 402. Section 7(a)(2)
of the Act requires Federal agencies to ensure that activities they
authorize, fund, or carry out are not likely to jeopardize the
continued existence of any endangered or threatened species or destroy
or adversely modify its critical habitat. If a Federal action may
affect a listed species or its critical habitat, the responsible
Federal agency must enter into consultation with us.
Federal agency actions within the species' habitat that may require
conference, consultation, or both as described in the preceding
paragraph include management and conservation projects conducted on
private lands with support from the Service's Partners for Fish and
Wildlife Program; issuance of section 404 Clean Water Act (33 U.S.C.
1251 et seq.) permits by the U.S. Army Corps of Engineers; construction
and maintenance of roads or highways by the Federal Highway
Administration; construction and maintenance of railways by the Federal
Railroad Administration; and discharge permits from the Environmental
Protection Agency.
The Act and its implementing regulations set forth a series of
general prohibitions and exceptions that apply to endangered plants.
The prohibitions of section 9(a)(2) of the Act, codified at 50 CFR
17.61, make it illegal for any person subject to the jurisdiction of
the United States to: Import or export; remove and reduce to possession
from areas under Federal jurisdiction; maliciously damage or destroy on
any such area; remove, cut, dig up, or damage or destroy on any other
area in knowing violation of any law or regulation of any State or in
the course of any violation of a State criminal trespass law; deliver,
receive, carry, transport, or ship in interstate or foreign commerce,
by any means whatsoever and in the course of a commercial activity; or
sell or offer for sale in interstate or foreign commerce an endangered
plant. Certain exceptions apply to employees of the Service, other
Federal land management agencies, and State conservation agencies.
We may issue permits to carry out otherwise prohibited activities
involving endangered plants under certain circumstances. Regulations
governing permits are codified at 50 CFR 17.62. With regard to
endangered plants, a permit may be issued for scientific purposes or
for enhancing the propagation or survival of the species. The statute
also contains certain exemptions from the prohibitions, which are found
in sections 9 and 10 of the Act.
It is our policy, as published in the Federal Register on July 1,
1994 (59 FR 34272), to identify to the maximum extent practicable at
the time a species is listed those activities that would or would not
constitute a violation of section 9 of the Act. The intent of this
policy is to increase public awareness of the effect of a final listing
on proposed and ongoing activities within the range of a listed
species. Based on the best available information, the following actions
are unlikely to result in a violation of section 9, if these activities
are carried out in accordance with existing regulations and permit
requirements; this list is not comprehensive:
(1) Recreational use of the streams, such as fishing, swimming, and
canoeing, as these activities normally take place in the river or on
the river bank and not in the spring itself; and
(2) Normal residential landscaping activities, as these activities
do not take place in the spring, nor do they affect the quantity or
quality of water in the spring.
Based on the best available information, the following activities
may potentially result in a violation of section 9 of the Act if they
are not authorized in accordance with applicable law; this list is not
comprehensive:
(1) Removing, cutting, digging up, or damaging or destroying the
South Llano springs moss in knowing violation of any law or regulation
of the State of Texas or in the course of any violation of a State
criminal trespass law;

[[Page 25551]]

(2) Importing the South Llano springs moss into, or exporting it
from, the United States;
(3) Delivering, receiving, carrying, transporting, or shipping the
South Llano springs moss in interstate or foreign commerce, by any
means and in the course of a commercial activity; and
(4) Selling or offering the South Llano springs moss for sale in
interstate or foreign commerce.
Questions regarding whether specific activities would constitute a
violation of section 9 of the Act should be directed to the Austin
Ecological Services Field Office (see FOR FURTHER INFORMATION CONTACT).

II. Critical Habitat

Background

Section 4(a)(3) of the Act requires that, to the maximum extent
prudent and determinable, we designate a species' critical habitat
concurrently with listing the species. 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).
This critical habitat designation was proposed when the regulations
defining ``habitat'' (85 FR 81411; December 16, 2020) and governing the
4(b)(2) exclusion process for the Service (85 FR 82376; December 18,
2020) were in place and in effect. However, those two regulations have
been rescinded (87 FR 37757; June 24, 2022, and 87 FR 43433; July 21,
2022) and no longer apply to any designations of critical habitat.
Therefore, for this final rule designating critical habitat for the
South Llano springs moss, we apply the regulations at 424.19 and the
2016 Joint Policy on 4(b)(2) exclusions (81 FR 7226; February 11,
2016).
Conservation, as defined under section 3 of the Act, means to use
and the use of all methods and procedures that are necessary to bring
an endangered or threatened species to the point at which the measures
provided pursuant to the Act are no longer necessary. Such methods and
procedures include, but are not limited to, all activities associated
with scientific resources management such as research, census, law
enforcement, habitat acquisition and maintenance, propagation, live
trapping, and transplantation, and, in the extraordinary case where
population pressures within a given ecosystem cannot be otherwise
relieved, may include regulated taking.
Critical habitat receives protection under section 7 of the Act
through the requirement that Federal agencies ensure, in consultation
with the Service, that any action they authorize, fund, or carry out is
not likely to result in the destruction or adverse modification of
critical habitat. The designation of critical habitat does not affect
land ownership or establish a refuge, wilderness, reserve, preserve, or
other conservation area. Such designation also does not allow the
government or public to access private lands. Such designation does not
require implementation of restoration, recovery, or enhancement
measures by non-Federal landowners. Where a landowner requests Federal
agency funding or authorization for an action that may affect a listed
species or critical habitat, the Federal agency would be required to
consult with the Service under section 7(a)(2) of the Act. However,
even if the Service were to conclude that the proposed activity would
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).
Under the second prong of the Act's definition of critical habitat,
we can designate critical habitat in areas outside the geographical
area occupied by the species at the time it is listed, upon a
determination that such areas are essential for the conservation of the
species.
Section 4 of the Act requires that we designate critical habitat on
the basis of the best scientific data available. Further, our Policy on
Information Standards Under the Endangered Species Act (published in
the Federal Register on July 1, 1994 (59 FR 34271)), the Information
Quality Act (section 515 of the Treasury and General Government
Appropriations Act for Fiscal Year 2001 (Pub. L. 106-554; H.R. 5658)),
and our associated Information Quality Guidelines provide criteria,
establish procedures, and provide guidance to ensure that our decisions
are based on the best scientific data available. They require our
biologists, to the extent consistent with the Act and with the use of
the best scientific data available, to use primary and original sources
of information as the basis for recommendations to designate critical
habitat.
When we are determining which areas should be designated as
critical habitat, our primary source of information is generally the
information from the SSA report and information developed during the
listing process for the species. Additional information sources may
include any generalized conservation strategy, criteria, or outline
that may have been developed for the species; the recovery plan for the
species; articles in peer-reviewed journals; conservation plans
developed by States and counties; scientific status surveys and
studies; biological assessments; other unpublished materials; or
experts' opinions or personal knowledge.
Habitat is dynamic, and species may move from one area to another
over time. We recognize that critical habitat designated at a
particular point in time may not include all of the habitat areas that
we may later determine are necessary for the recovery of the species.
For these reasons, a critical habitat designation does not signal that
habitat outside the designated area is unimportant or may not be needed
for recovery of the species. Areas that are important to the
conservation of the

[[Page 25552]]

species, both inside and outside the critical habitat designation, will
continue to be subject to: (1) Conservation actions implemented under
section 7(a)(1) of the Act; (2) regulatory protections afforded by the
requirement in section 7(a)(2) of the Act for Federal agencies to
ensure their actions are not likely to jeopardize the continued
existence of any endangered or threatened species; and (3) the
prohibitions found in section 9 of the Act. Federally funded or
permitted projects affecting listed species outside their designated
critical habitat areas may still result in jeopardy findings in some
cases. These protections and conservation tools will continue to
contribute to recovery of this species. Similarly, critical habitat
designations made on the basis of the best available information at the
time of designation will not control the direction and substance of
future recovery plans, habitat conservation plans (HCPs), or other
species conservation planning efforts if new information available at
the time of these planning efforts calls for a different outcome.

Physical or Biological Features Essential to the Conservation of the
Species

In accordance with section 3(5)(A)(i) of the Act and regulations at
50 CFR 424.12(b), in determining which areas we will designate as
critical habitat from within the geographical area occupied by the
species at the time of listing, we consider the physical or biological
features that are essential to the conservation of the species and
which may require special management considerations or protection. The
regulations at 50 CFR 424.02 define ``physical or biological features
essential to the conservation of the species'' as the features that
occur in specific areas and that are essential to support the life-
history needs of the species, including, but not limited to, water
characteristics, soil type, geological features, sites, prey,
vegetation, symbiotic species, or other features. A feature may be a
single habitat characteristic or a more complex combination of habitat
characteristics. Features may include habitat characteristics that
support ephemeral or dynamic habitat conditions. Features may also be
expressed in terms relating to principles of conservation biology, such
as patch size, distribution distances, and connectivity. For example,
physical features essential to the conservation of the species might
include gravel of a particular size required for spawning, alkaline
soil for seed germination, protective cover for migration, or
susceptibility to flooding or fire that maintains necessary early-
successional habitat characteristics. Biological features might include
prey species, forage grasses, specific kinds or ages of trees for
roosting or nesting, symbiotic fungi, or absence of a particular level
of nonnative species consistent with conservation needs of the listed
species. The features may also be combinations of habitat
characteristics and may encompass the relationship between
characteristics or the necessary amount of a characteristic essential
to support the life history of the species.
In considering whether features are essential to the conservation
of the species, we may consider an appropriate quality, quantity, and
spatial and temporal arrangement of habitat characteristics in the
context of the life-history needs, condition, and status of the
species. These characteristics include, but are not limited to, space
for individual and population growth and for normal behavior; food,
water, air, light, minerals, or other nutritional or physiological
requirements; cover or shelter; sites for breeding, reproduction, or
rearing (or development) of offspring; and habitats that are protected
from disturbance.

Summary of Essential Physical or Biological Features

We derive the specific physical or biological features essential to
the conservation of South Llano springs moss from studies of the
species' habitat, ecology, and life history as described below.
Additional information can be found in the SSA report (Service 2023,
entire; available at https://www.regulations.gov under Docket No. FWS-
R2-ES-2020-0015). We have determined that the following physical or
biological features are essential to the conservation of South Llano
springs moss:
(1) The uninterrupted flow of spring water supplied by the Edwards-
Trinity aquifer within the South Llano watershed.
(2) Relatively constant water temperature due to proximity to the
point of spring outflow.
(3) A substrate of calcareous or travertine rock not more than 15
centimeters (cm) (6 inches (in)) below the surface of the water.
(4) Contaminant and sediment levels that do not exceed the
tolerance limits of South Llano springs moss and associated plant and
animal species.

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 stressors: reduction or loss of spring flow, erosion, and
sedimentation. Management activities that could ameliorate these
stressors include (but are not limited to): prescribed fire, brush
management, and grazing management to increase infiltration into the
Edwards-Trinity aquifer and reduce runoff and subsequent flooding.

Criteria Used To Identify Critical Habitat

As required by section 4(b)(2) of the Act, we use the best
scientific data available to designate critical habitat. In accordance
with the Act and our implementing regulations at 50 CFR 424.12(b), we
review available information pertaining to the habitat requirements of
the species and identify specific areas within the geographical area
occupied by the species at the time of listing and any specific areas
outside the geographical area occupied by the species to be considered
for designation as critical habitat. We are not designating 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. While we acknowledge that the conservation of the
species will depend on increasing the number of sites, we are not aware
of any other area that has habitat suitable to support the species.
Therefore, we are unable at this time to identify any specific
unoccupied areas that are essential to the species' conservation. For
an area to be considered essential unoccupied habitat, we must have
reasonable certainty both that the area will contribute to the
conservation of the species and that the area contains one or more of
the physical or biological features essential to the conservation of
the species. The exact location of the Redfearn site is unknown, and,
although there are a number of other large springs emerging from the
Edwards-Trinity aquifer, it is unknown if these sites would be
biologically suitable for the species. In addition, there is
uncertainty that the species could be transplanted successfully if
suitable sites existed for reintroduction.
In summary, for areas within the geographic area occupied by the
species at the time of listing, we delineated

[[Page 25553]]

critical habitat unit boundaries by evaluating the area of spring flow
and submerged limestone within the geographic area occupied at the time
of listing. We delineated one critical habitat unit that we determined
to be occupied at the time of listing (i.e., currently occupied) and
that contains one or more of the physical or biological features that
are essential to support life-history processes of the species.
As a result of our exclusion analysis (see Exclusions Based on
Other Relevant Impacts, below), we are not designating critical habitat
for this species.

Final Critical Habitat Designation

We are not designating critical habitat for South Llano springs
moss (see Exclusions Based on Other Relevant Impacts, below).

Exemptions

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

Section 4(a)(3)(B)(i) of the Act (16 U.S.C. 1533(a)(3)(B)(i))
provides that the Secretary shall not designate as critical habitat any
lands or other geographical areas owned or controlled by the Department
of Defense (DoD), or designated for its use, that are subject to an
integrated natural resources management plan (INRMP) prepared under
section 101 of the Sikes Act Improvement Act of 1997 (16 U.S.C. 670a),
if the Secretary determines in writing that such plan provides a
benefit to the species for which critical habitat is proposed for
designation. In preparing this final rule, we have determined that the
lands within the unit proposed as critical habitat for South Llano
springs moss are not owned or managed by the DoD.

Consideration of Impacts Under Section 4(b)(2) of the Act

Section 4(b)(2) of the Act states that the Secretary shall
designate and make revisions to critical habitat on the basis of the
best available scientific data after taking into consideration the
economic impact, national security impact, and any other relevant
impact of specifying any particular area as critical habitat. The
Secretary may exclude an area from designated critical habitat based on
economic impacts, impacts on national security, or any other relevant
impacts. Exclusion decisions are governed by the regulations at 50 CFR
424.19 and the Policy Regarding Implementation of Section 4(b)(2) of
the Endangered Species Act (hereafter, the ``2016 Policy''; 81 FR 7226,
February 11, 2016), both of which were developed jointly with the
National Marine Fisheries Service (NMFS). We also refer to a 2008
Department of the Interior Solicitor's opinion entitled, ``The
Secretary's Authority to Exclude Areas from a Critical Habitat
Designation under Section 4(b)(2) of the Endangered Species Act'' (M-
37016). We explain each decision to exclude areas, as well as decisions
not to exclude, to demonstrate that the decision is reasonable.
In considering whether to exclude a particular area from the
designation, we identify the benefits of including the area in the
designation, identify the benefits of excluding the area from the
designation, and evaluate whether the benefits of exclusion outweigh
the benefits of inclusion. If the analysis indicates that the benefits
of exclusion outweigh the benefits of inclusion, the Secretary may
exercise discretion to exclude the area only if such exclusion would
not result in the extinction of the species. In making the
determination to exclude a particular area, the statute on its face, as
well as the legislative history, are clear that the Secretary has broad
discretion regarding which factor(s) to use and how much weight to give
to any factor. We describe below the process that we undertook for
taking into consideration each category of impacts and our analyses of
the relevant impacts.

Exclusions Based on Economic Impacts

Section 4(b)(2) of the Act and its implementing regulations require
that we consider the economic impact that may result from a designation
of critical habitat. In order to consider economic impacts, we prepared
an incremental effects memorandum (IEM) and screening analysis which,
together with our narrative and interpretation of effects, we consider
our economic analysis of the critical habitat designation and related
factors (IEc 2019, entire). The analysis, dated December 20, 2019, was
made available for public review from September 28, 2021, through
November 29, 2021 (see 86 FR 53609). The economic analysis addressed
probable economic impacts of critical habitat designation for South
Llano springs moss. Following the close of the comment period, we
reviewed and evaluated all information submitted during the comment
period that may pertain to our consideration of the probable
incremental economic impacts of this critical habitat designation.
Additional information relevant to the probable incremental economic
impacts of critical habitat designation for the South Llano springs
moss is summarized below and available in the screening analysis for
the South Llano springs moss (IEc 2019, entire), available at https://www.regulations.gov.
The screening analysis found that the critical habitat designation
for the South Llano springs moss would be likely to result in annual
incremental costs of approximately $8,100 per year above those incurred
due to the species listing alone. These costs would occur as a result
of additional administrative efforts to consider adverse modification
of critical habitat during section 7 consultations. The designation of
critical habitat is not expected to trigger additional requirements
under State or local regulations, nor is the designation expected to
have perceptional effects on markets.
We considered the economic impacts of the critical habitat
designation. The Secretary is not exercising her discretion to exclude
any areas from this designation of critical habitat for the South Llano
springs moss based on economic impacts.

Exclusions Based on Impacts on National Security and Homeland Security

In preparing this rule, we have determined that the lands within
the proposed designation of critical habitat for South Llano springs
moss are not owned or managed by the DoD or Department of Homeland
Security (DHS), and, therefore, we anticipate no impact on national
security or homeland security. We also received no requests for
exclusion from DoD or DHS. We did not receive any additional
information during the public comment period for the proposed
designation regarding impacts of the designation on national security
or homeland security that would support excluding any specific areas
from the final critical habitat designation under authority of section
4(b)(2) and our implementing regulations at 50 CFR 424.19. Based on
this information, the Secretary has determined not to exercise her
discretion to exclude any areas from this designation of critical
habitat based on impacts on national security or homeland security.

Exclusions Based on Other Relevant Impacts

Under section 4(b)(2) of the Act, we consider any other relevant
impacts, in addition to economic impacts and impacts on national
security 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

[[Page 25554]]

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.
When identifying the benefits of inclusion for an area, we consider
the additional regulatory benefits that the area would receive due to
the protection from destruction or adverse modification as a result of
actions with a Federal nexus, the educational benefits of mapping
essential habitat for recovery of the listed species, and any benefits
that may result from a designation due to State or Federal laws that
may apply to critical habitat.
In the case of the South Llano springs moss, the benefits of
critical habitat include public awareness of the presence of the
species and the importance of habitat protection, and, where a Federal
nexus exists, increased habitat protection for the South Llano springs
moss due to protection from destruction or adverse modification of
critical habitat.
When identifying the benefits of exclusion, we consider, among
other things, whether exclusion of a specific area is likely to result
in conservation, or in the continuation, strengthening, or
encouragement of partnerships. Additionally, continued implementation
of an ongoing management plan that provides equal to or more
conservation than a critical habitat designation would reduce the
benefits of including that specific area in the critical habitat
designation.
We evaluate the existence of a conservation plan when considering
the benefits of inclusion. We consider a variety of factors, including,
but not limited to, whether the plan is finalized; how it provides for
the conservation of the essential physical or biological features;
whether there is a reasonable expectation that the conservation
management strategies and actions contained in a management plan will
be implemented into the future; whether the conservation strategies in
the plan are likely to be effective; and whether the plan contains a
monitoring program or adaptive management to ensure that the
conservation measures are effective and can be adapted in the future in
response to new information.
After identifying the benefits of inclusion and the benefits of
exclusion, we carefully weigh the two sides to evaluate whether the
benefits of exclusion outweigh those of inclusion. If our analysis
indicates that the benefits of exclusion outweigh the benefits of
inclusion, we then determine whether exclusion would result in
extinction of the species. If exclusion of an area from critical
habitat will result in extinction, we will not exclude it from the
designation.
Based on the public comments we received, and the best scientific
data available, we evaluated whether lands in the critical habitat unit
identified in the proposed rule were appropriate for exclusion from the
final designation under section 4(b)(2) of the Act. If the analysis
indicates that the benefits of excluding lands from the final
designation outweigh the benefits of designating those lands as
critical habitat, then the Secretary may exercise her discretion to
exclude the lands from the final designation. In the paragraphs below,
we provide a detailed balancing analysis of the critical habitat being
excluded under section 4(b)(2) of the Act.
Non-Permitted Conservation Plans, Agreements, or Partnerships
We sometimes exclude specific areas from critical habitat
designations based in part on the existence of private or other non-
Federal conservation plans or agreements and their attendant
partnerships. A conservation plan or agreement describes actions that
are designed to provide for the conservation needs of a species and its
habitat, and may include actions to reduce or mitigate negative effects
on the species caused by activities on or adjacent to the area covered
by the plan. Conservation plans or agreements can be developed by
private entities with no Service involvement, or in partnership with
the Service, sometimes through the permitting process under Section 10
of the Act.
When we undertake a discretionary section 4(b)(2) analysis, we
evaluate a variety of factors to determine how the benefits of any
exclusion and the benefits of inclusion are affected by the existence
of private or other non-Federal conservation plans or agreements and
their attendant partnerships. Shown below is a non-exhaustive list of
factors that we consider in evaluating how non-permitted plans or
agreements affect the benefits of inclusion or exclusion. These are not
required elements of plans or agreements. Rather, they are some of the
factors we may consider, and not all of these factors apply to every
plan or agreement.
(i) The degree to which the record of the plan, or information
provided by proponents of an exclusion, supports a conclusion that a
critical habitat designation would impair the realization of the
benefits expected from the plan, agreement, or partnership.
(ii) The extent of public participation in the development of the
conservation plan.
(iii) The degree to which agency review and required determinations
(e.g., State regulatory requirements) have been completed, as necessary
and appropriate.
(iv) Whether NEPA reviews or similar reviews occurred, and the
nature of any such reviews.
(v) The demonstrated implementation and success of the chosen
mechanism.
(vi) The degree to which the plan or agreement provides for the
conservation of the physical or biological features that are essential
to the conservation of the species.
(vii) Whether there is a reasonable expectation that the
conservation management strategies and actions contained in a
management plan or agreement will be implemented.
(viii) Whether the plan or agreement contains a monitoring program
and adaptive management to ensure that the conservation measures are
effective and can be modified in the future in response to new
information.
Upper South Llano River Unit (also known as Seven Hundred
Springs)--We proposed to designate critical habitat identified as the
``Upper South Llano River Unit'' (0.48 ac (0.19 ha)) on privately owned
lands where the South Llano springs moss occurs.
Our Partners for Fish and Wildlife Program has a history of working
with the private landowner on whose property Seven Hundred Springs
occurs and where critical habitat was proposed. Since 2013, we have
completed five habitat improvement projects in partnership with the
private landowner. These projects included prescribed burning on over
1,000 ac plus mechanical restoration on 1,126 ac of upland native
grassland habitat that benefit the South Llano springs moss by reducing
runoff, flash flooding, and soil erosion, and increasing infiltration
of rainwater into the aquifer that supplies Seven Hundred Springs.
These benefits to the springs help ensure the physical and biological
features necessary for the persistence of the species, including
uninterrupted flow of spring water and sediment levels that do not
exceed the tolerance limits of the South Llano springs moss.

Benefits of Inclusion

The benefits of including lands in critical habitat can be
regulatory, can be educational, or can aid in recovery of

[[Page 25555]]

species as generally discussed above. We expect only minimal regulatory
benefits from the designation of critical habitat for the South Llano
springs moss. 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.
The difference in the outcomes of the jeopardy analysis and the adverse
modification analysis represents the regulatory benefits and costs of
critical habitat. A critical habitat designation requires Federal
agencies to consult on whether their activity would destroy or
adversely modify critical habitat to the point where recovery could not
be achieved. However, all proposed critical habitat is occupied by the
species, and thus would require section 7 consultation for any project
with a Federal nexus that may affect the South Llano springs moss. Any
project that would destroy or adversely modify critical habitat would
also jeopardize the continued existence of the species, since the
species is entirely dependent upon Seven Hundred Springs for its
survival. Additionally, as the proposed critical habitat is located
entirely on private property, we foresee very few section 7
consultations due to a lack of a Federal nexus. Any additional projects
conducted by the Partners for Fish and Wildlife Program would be
covered by a section 7 consultation. The rarity of section 7
consultations results in very limited regulatory benefits for the
designation of critical habitat in the proposed Upper South Llano River
Unit. Given the anticipated rarity of section 7 consultation, the
dependence on private conservation actions is more important.
Another important benefit of including lands in a critical habitat
designation is that it can serve to educate landowners, agencies,
Tribes, and the public regarding the potential conservation value of an
area, and this may focus and contribute to conservation efforts by
other parties by clearly delineating areas of high conservation value
for certain species. Any information about the South Llano springs moss
and its habitat that reaches a wide audience, including other parties
engaged in conservation activities, would be considered valuable. We
expect the educational benefits to be especially limited in the
proposed Upper South Llano River Unit, because it occurs entirely on
private lands that are not open to the public. With limited regulatory
and educational benefits likely as a result of designating critical
habitat, we foresee no other tangible benefits to further recovery of
the species, and so the benefits of inclusion are outweighed by the
benefits of exclusion as further explained below.

Benefits of Exclusion

The only known population of the South Llano springs moss is fully
within private ownership, and, therefore, Federal agencies have no
jurisdiction to manage its habitat. As a result, partnerships with and
among private individuals, like the landowner of the proposed Upper
South Llano River Unit, are the key to conserving the species through
habitat conservation projects such as the Partners for Fish and
Wildlife projects that have been completed near Seven Hundred Springs.
Therefore, we find it is important to consider the potential benefits
that will be realized by fostering positive relationships with the
landowner if we exclude the area from critical habitat designation.
Excluding the entirety of the proposed critical habitat, known as
the Upper South Llano River Unit, would provide benefits through the
continuance and strengthening of our effective cooperative relationship
with the landowner to promote the conservation of the South Llano
springs moss and its habitat. Since the South Llano springs moss occurs
only in the privately owned Upper South Llano River Unit, continued
conservation and recovery of this species is entirely dependent upon
cooperation and coordination with the landowner. This landowner has
worked with our Partners for Fish and Wildlife program in the past, and
the aforementioned five habitat improvement projects accomplished in
partnership with the private landowner since 2013 have benefited the
South Llano springs moss and its habitat. The designation of critical
habitat is anticipated to harm the previously cooperative working
relationship that we have established with the landowner. We anticipate
that continuing our cooperative relationship with the landowner will
allow voluntary conservation work to continue, which will benefit the
South Llano springs moss and its recovery.
The South Llano springs moss and its habitat are expected to
benefit substantially from voluntary landowner management actions that
implement appropriate and effective conservation strategies. Where
consistent with the discretion provided by the Act, it is beneficial to
implement policies that provide positive incentives to private
landowners to voluntarily conserve natural resources and that remove or
reduce disincentives to conservation (Wilcove et al. 1998, entire; Bean
2002, pp. 1-7). Thus, it is important for the South Llano springs
moss's recovery to build on continued conservation activities such as
these with a proven partner, and to provide positive incentives to the
private landowner to implement voluntary conservation activities. These
conservation actions help ensure the uninterrupted flow of spring water
and sediment levels that do not exceed the tolerance limits of the
South Llano springs moss, aiding the recovery of the species.
The benefits of excluding this area from critical habitat will
encourage the continued conservation, land management, and coordination
between the landowner and the Service. Excluding the proposed Upper
South Llano River Unit from critical habitat helps ensure the future
conservation, research, and information sharing for the recovery of the
South Llano springs moss.

Benefits of Exclusion Outweigh the Benefits of Inclusion

We have determined that the benefits of exclusion of the proposed
Upper South Llano River Unit from critical habitat designation outweigh
the benefits of inclusion of the unit because maintaining a positive
working relationship and partnership with the landowner is vital to the
conservation and recovery of the species. The benefits of designating
critical habitat for the moss are few since these lands are privately
owned and thus lack a trigger for section 7 consultation for adverse
modification of critical habitat unless a project with a Federal nexus
is proposed. Additionally, all habitat within the proposed critical
habitat unit is occupied, so any project with a Federal nexus would
require consultation with us due to the listing of the species. Section
9 of the Act provides few protections to listed plants, and protections
to listed plants on private lands pertain only to prohibited actions
conducted in knowing violation of any State law or regulation, or in
violation of a State criminal trespass law. Without the presence of a
Federal nexus which would require a consultation under section 7, the
South Llano springs moss would have little to no protections. Since the
only known population of this species occurs on this private land, the
maintenance of a working relationship with the landowner is vital to
the recovery and conservation of the species. Therefore, the benefits
of

[[Page 25556]]

excluding this area from designation as critical habitat for the South
Llano springs moss outweigh the benefits of inclusion.

Exclusion Will Not Result in Extinction of the Species

We have determined that excluding all proposed critical habitat
from designation will not result in the extinction of the species, nor
hinder its recovery. If a Federal action or Federal permitting occurs
that may affect the moss, the listing of South Llano springs moss will
require evaluation under the jeopardy standard of section 7 of the Act,
even absent the designation of critical habitat, and thus will protect
the species against extinction. Accordingly, based on the above
discussion, the Secretary is exercising her discretion to exclude the
entirety of the proposed Upper South Llano River Unit (approximately
0.48 ac (0.19 ha) of land) and, therefore, critical habitat for the
moss will not be designated under section 4(b)(2) of the Act because
the benefits of exclusion outweigh the benefits of inclusion and will
not cause the extinction of the species.

Tribal Lands

Several Executive Orders, Secretary's Orders, and policies concern
working with Tribes. These guidance documents generally confirm our
trust responsibilities to Tribes, recognize that Tribes have sovereign
authority to control Tribal lands, emphasize the importance of
developing partnerships with Tribal governments, and direct the Service
to consult with Tribes on a government-to-government basis.
A joint Secretary's Order that applies to both the Service and the
National Marine Fisheries Service (NMFS)--Secretary's Order 3206,
American Indian Tribal Rights, Federal-Tribal Trust Responsibilities,
and the Endangered Species Act (June 5, 1997) (S.O. 3206)--is the most
comprehensive of the various guidance documents related to Tribal
relationships and Act implementation, and it provides the most detail
directly relevant to the designation of critical habitat. In addition
to the general direction discussed above, the appendix to S.O. 3206
explicitly recognizes the right of Tribes to participate fully in any
listing process that may affect Tribal rights or Tribal trust
resources; this includes the designation of critical habitat. Section
3(B)(4) of the appendix requires us to consult with affected Tribes
when considering the designation of critical habitat in an area that
may impact Tribal trust resources, Tribally owned fee lands, or the
exercise of Tribal rights. That provision also instructs us to avoid
including Tribal lands within a critical habitat designation unless the
area is essential to conserve a listed species, and it requires us to
evaluate and document the extent to which the conservation needs of the
listed species can be achieved by limiting the designation to other
lands.
Our implementing regulations at 50 CFR 424.19 and the 2016 Policy
are consistent with S.O. 3206. When we undertake a discretionary
exclusion analysis under section 4(b)(2) of the Act, in accordance with
S.O. 3206 we consult with any Tribe whose Tribal trust resources,
tribally owned fee lands, or Tribal rights may be affected by including
any particular areas in the designation. We evaluate the extent to
which the conservation needs of the species can be achieved by limiting
the designation to other areas and give great weight to Tribal concerns
in analyzing the benefits of exclusion.
However, S.O. 3206 does not override the Act's statutory
requirement of designation of critical habitat. As stated above, we
must consult with any Tribe when a designation of critical habitat may
affect Tribal lands or resources. The Act requires us to identify areas
that meet the definition of ``critical habitat'' (i.e., areas occupied
at the time of listing that contain the essential physical or
biological features that may require special management or protection
and unoccupied areas that are essential to the conservation of a
species), without regard to land ownership. While S.O. 3206 provides
important direction, it expressly states that it does not modify the
Secretary's statutory authority under the Act or other statutes.
There are no Tribal lands or Tribal trust resources within the
range of the South Llano springs moss.

Summary of Exclusions

As discussed above, based on the information provided by entities
seeking exclusion, as well as any additional public comments we
received, we evaluated whether certain lands in the proposed critical
habitat were appropriate for exclusion from final designation pursuant
to section 4(b)(2) of the Act. We are not designating critical habitat
for the South Llano springs moss; the area we proposed for critical
habitat designation but that we are excluding in this rule is described
in the table below.

Table of Area Excluded From Critical Habitat Designation by Proposed Critical Habitat Unit
----------------------------------------------------------------------------------------------------------------
Areas meeting the
definition of critical Areas excluded from
Proposed unit Specific area habitat, in acres critical habitat, in
(hectares) acres (hectares)
----------------------------------------------------------------------------------------------------------------
1: Upper South Llano River........... Seven Hundred Springs.. 0.48 (0.19) 0.48 (0.19)
----------------------------------------------------------------------------------------------------------------

Required Determinations

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) in connection with regulations adopted pursuant to section
4(a) of the Act. We have determined that environmental assessments and
environmental impact statements, as defined under the authority of the
National Environmental Policy Act (NEPA; 42 U.S.C. 4321 et seq.), need
not be prepared in connection with listing a species as an endangered
or threatened species under the Act. We published a notice outlining
our reasons for this determination in the Federal Register on October
25, 1983 (48 FR 49244). This position was upheld by the U.S. Court of
Appeals for the Ninth Circuit (Douglas County v. Babbitt, 48 F.3d 1495
(9th Cir. 1995), cert. denied 516 U.S. 1042 (1996)).

Government-to-Government Relationship With Tribes

In accordance with the President's memorandum of April 29, 1994
(Government-to-Government Relations with Native American Tribal
Governments; 59 FR 22951), Executive Order 13175 (Consultation and
Coordination with Indian Tribal Governments), and the Department of the
Interior's manual at 512 DM 2, we

[[Page 25557]]

readily acknowledge our responsibility to communicate meaningfully with
Federally recognized Tribes on a government-to-government basis. In
accordance with Secretary's 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. No Tribal lands
or Tribal trust resources will be affected by this rule.

References Cited

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

Authors

The primary authors of this final rule are the staff members of the
Fish and Wildlife Service's Species Assessment Team and the Austin
Ecological Services Field Office.

List of Subjects in 50 CFR Part 17

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

Regulation Promulgation

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

PART 17--ENDANGERED AND THREATENED WILDLIFE AND PLANTS

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

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

0
2. Amend Sec. 17.12, in paragraph (h), the List of Endangered and
Threatened Plants, by:
0
a. Adding the heading ``MOSSES'' to the end of the table; and
0
b. Adding an entry for ``Donrichardsia macroneuron'' under the new
heading ``MOSSES''.
The additions read as follows:

Sec. 17.12 Endangered and threatened plants.

* * * * *
(h) * * *

----------------------------------------------------------------------------------------------------------------
Listing citations and
Scientific name Common name Where listed Status applicable rules
----------------------------------------------------------------------------------------------------------------

* * * * * * *
Mosses

Donrichardsia macroneuron....... South Llano Wherever found.... E 88 FR [insert Federal
springs moss. Register page where
the document begins],
4/27/2023.
----------------------------------------------------------------------------------------------------------------

Wendi Weber,
Acting Director, U.S. Fish and Wildlife Service.
[FR Doc. 2023-08846 Filed 4-26-23; 8:45 am]
BILLING CODE 4333-15-P