[Federal Register Volume 88, Number 209 (Tuesday, October 31, 2023)]
[Proposed Rules]
[Pages 74390-74400]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-23994]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-R4-ES-2023-0171; FF09E21000 FXES1111090FEDR 234]
RIN 1018-BE88


Endangered and Threatened Wildlife and Plants; Endangered Species 
Status for Oblong Rocksnail (Leptoxis compacta)

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), propose to 
list the oblong rocksnail (Leptoxis compacta), a freshwater snail 
native to the Cahaba River in Alabama, as an endangered species under 
the Endangered Species Act of 1973, as amended (Act). This 
determination also serves as our 12-month finding on a petition to list 
the oblong rocksnail. After a review of the best available scientific 
and commercial information, we find that listing the species is 
warranted. If we finalize this rule as proposed, it will add this 
species to the List of Endangered and Threatened Wildlife and extend 
the Act's protections to the species.

DATES: We will accept comments received or postmarked on or before 
January 2, 2024. Comments submitted electronically using the Federal 
eRulemaking Portal (see ADDRESSES, below) must be received by 11:59 
p.m. eastern time on the closing date. We must receive requests for a 
public hearing, in writing, at the address shown in FOR FURTHER 
INFORMATION CONTACT by December 15, 2023.

ADDRESSES: Written comments: You may submit comments by one of the 
following methods:
    (1) Electronically: Go to the Federal eRulemaking Portal: https://www.regulations.gov. In the Search box, enter FWS-R4-ES-2023-0171, 
which is the docket number for this rulemaking. Then, click on the 
Search button. On the resulting page, in the panel on the left side of 
the screen, under the Document Type heading, check the Proposed Rule 
box to locate this document. You may submit a comment by clicking on 
``Comment.''
    (2) By hard copy: Submit by U.S. mail to: Public Comments 
Processing, Attn: FWS-R4-ES-2023-0171, U.S. Fish and Wildlife Service, 
MS: PRB/3W, 5275 Leesburg Pike, Falls Church, VA 22041-3803.
    We request that you send comments only by the methods described 
above. We will post all comments on https://www.regulations.gov. This 
generally means that we will post any personal information you provide 
us (see Information Requested, below, for more information).
    Availability of supporting materials: Supporting materials, such as 
the species status assessment report, are available at https://www.fws.gov/office/alabama-ecological-services, at https://ecos.fws.gov/ecp/species/2809, and at https://www.regulations.gov under 
Docket No. FWS-R4-ES-2023-0171.

FOR FURTHER INFORMATION CONTACT: Bill Pearson, Field Supervisor, 
Alabama Ecological Services Field Office, 1208 Main Street, Daphne, AL 
36526; telephone 251-441-5870. 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. In compliance with the 
Providing Accountability Through Transparency Act of 2023, please see 
Docket No. FWS-R4-ES-2023-0171 on https://

[[Page 74391]]

www.regulations.gov for a document that summarizes this proposed rule.

SUPPLEMENTARY INFORMATION: 

Information Requested

    We intend that any final action resulting from this proposed rule 
will be based on the best scientific and commercial data available and 
be as accurate and as effective as possible. Therefore, we request 
comments or information from other governmental agencies, Native 
American Tribes, the scientific community, industry, or any other 
interested parties concerning this proposed rule. We particularly seek 
comments concerning:
    (1) The species' biology, range, and population trends, including:
    (a) Biological or ecological requirements of the species, including 
habitat requirements for feeding, breeding, and sheltering;
    (b) Genetics and taxonomy;
    (c) Historical and current range, including distribution patterns, 
and the locations of any additional populations of this species; and
    (d) Historical and current population levels, and current and 
projected trends.
    (2) Threats and conservation actions affecting the species, 
including:
    (a) Factors that may affect the continued existence of the species, 
which may include habitat modification or destruction, overutilization, 
disease, predation, the inadequacy of existing regulatory mechanisms, 
or other natural or manmade factors.
    (b) Biological, commercial trade, or other relevant data concerning 
any threats (or lack thereof) to this species.
    (c) Existing regulations or conservation actions that may be 
addressing threats to the species.
    (d) Past and ongoing conservation measures for the species, its 
habitat, or both.
    (3) Additional information concerning the historical and current 
status of this species.
    (4) Specific information on:
    (a) The amount and distribution of oblong rocksnail habitat;
    (b) Any areas occurring within the range of the species in the 
Cahaba River watershed that should be included in a critical habitat 
designation because they (i) are occupied at the time of listing and 
contain the physical or biological features that are essential to the 
conservation of the species and that may require special management 
considerations or protection, or (ii) are unoccupied at the time of 
listing and are essential for the conservation of the species.
    Please include sufficient information with your submission (such as 
scientific journal articles or other publications) to allow us to 
verify any scientific or commercial information you include.
    Please note that submissions merely stating support for, or 
opposition to, the action under consideration without providing 
supporting information, although noted, do not provide substantial 
information necessary to support a determination. Section 4(b)(1)(A) of 
the Act (16 U.S.C. 1533(b)(1)(A)) directs that determinations as to 
whether any species is an endangered or a threatened species must be 
made solely on the basis of the best scientific and commercial data 
available, and section 4(b)(2) of the Act (16 U.S.C. 1533(b)(2)) 
directs that the Secretary shall designate critical habitat on the 
basis of the best scientific information available.
    You may submit your comments and materials concerning this proposed 
rule by one of the methods listed in ADDRESSES. We request that you 
send comments only by the methods described in ADDRESSES.
    If you submit information via https://www.regulations.gov, your 
entire submission--including any personal identifying information--will 
be posted on the website. If your submission is made via a hardcopy 
that includes personal identifying information, you may request at the 
top of your document that we withhold this information from public 
review. However, we cannot guarantee that we will be able to do so. We 
will post all hardcopy submissions on https://www.regulations.gov.
    Comments and materials we receive, as well as supporting 
documentation we used in preparing this proposed rule, will be 
available for public inspection on https://www.regulations.gov.
    Our final determination may differ from this proposal because we 
will consider all comments we receive during the comment period as well 
as any new information that may become available after this proposal 
publishes. Based on the new information we receive (and, if relevant, 
any comments on that new information), we may conclude that the species 
is threatened instead of endangered, or we may conclude that the 
species does not warrant listing as either an endangered species or a 
threatened species. In our final rule, we will clearly explain our 
rationale and the basis for our final decision, including why we made 
changes, if any, that differ from this proposal.

Public Hearing

    Section 4(b)(5) (16 U.S.C. 1533(b)(5)) of the Act provides for a 
public hearing on this proposal, if requested. Requests must be 
received by the date specified in DATES. Such requests must be sent to 
the address shown in FOR FURTHER INFORMATION CONTACT. We will schedule 
a public hearing on this proposal, if requested, and announce the date, 
time, and place of the hearing, as well as how to obtain reasonable 
accommodations, in the Federal Register and local newspapers at least 
15 days before the hearing. We may hold the public hearing in person or 
virtually via webinar. We will announce any public hearing on our 
website, in addition to the Federal Register. The use of virtual public 
hearings is consistent with our regulations at 50 CFR 424.16(c)(3).

Previous Federal Actions

    On June 21, 2016, we were petitioned by the Center for Biological 
Diversity and The Cahaba Riverkeeper to list the oblong rocksnail. On 
December 20, 2017, we published in the Federal Register (82 FR 60362) 
our determination that the petition presented substantial information 
indicating that listing may be warranted. This proposed rule 
constitutes our 12-month finding on that petition.

Peer Review

    A species status assessment (SSA) team prepared an SSA report for 
the oblong rocksnail (Service 2022, entire). The SSA team was composed 
of Service biologists, and the report was prepared in consultation with 
species experts. The SSA report represents a compilation of the best 
scientific and commercial data available concerning the status of the 
species, including the impacts of past, present, and future factors 
(both negative and beneficial) affecting the species.
    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 (16 U.S.C. 1531 et seq.), we solicited 
independent scientific review of the information contained in the 
oblong rocksnail SSA report. We sent the SSA report to six independent 
peer reviewers and received two responses. Results of this structured 
peer review process can be found at https://www.regulations.gov. In 
preparing this proposed rule, we incorporated the results of these 
reviews, as appropriate, into the SSA report, which is the foundation 
for this proposed rule.

Summary of Peer Reviewer Comments

    As discussed in Peer Review above, we received comments from two 
peer reviewers on the draft SSA report. We

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reviewed all comments received from the peer reviewers for substantive 
issues and new information regarding the contents of the SSA report. 
The peer reviewers generally concurred with our methods and 
conclusions, and provided additional information, clarifications, and 
suggestions, including clarifications in terminology and other 
editorial suggestions. We revised the SSA report to include information 
provided by reviewers about recent oil spill occurrences within the 
oblong rocksnail's range. Otherwise, no substantive changes to our 
analysis and conclusions within the SSA report were deemed necessary, 
and peer reviewer comments are addressed in version 1.0 of the SSA 
report.

I. Proposed Listing Determination

Background

    A thorough review of the taxonomy, life history, and ecology of the 
oblong rocksnail (Leptoxis compacta) is presented in the SSA report 
(version 1.0; Service 2022, pp. 1-4).
    The oblong rocksnail is a non-air-breathing, freshwater pleurocerid 
snail native to the Cahaba River, near Birmingham, Alabama. Oblong 
rocksnails are grazers and occur on large slabs and bedrock, typically 
toward the middle of the river. These large flat rocks provide the 
substrate on which periphyton (algae attached to hard surfaces), which 
the rocksnail uses for food, can grow (Miller-Way and Way 1989, p. 193; 
Johnson et al. 2013, p. 248). In general, periphyton availability, 
substrate composition, and water velocity are important components in 
determining habitat suitability of pleurocerid snails (Stewart and 
Garcia 2002, p. 178). Periphyton, which contains higher concentrations 
of limiting nutrients like nitrogen than other food sources, is more 
easily scraped from hard substrates by rocksnails (White 1978, pp. 73-
74; McMahon et al. 1974, p. 392; Brown 2001, p. 305).
    Pleurocerid snails are dioecious (i.e., have separate sexes) and 
generally reach sexual maturity in the wild after 1 or 2 years 
(Aldridge 1982, p. 197; Whelan 2013, p. 73). Observations of wild 
Leptoxis snails indicate that eggs are often laid on vertical surfaces 
or undersides of rocks without siltation or much vegetation (Whelan et 
al. 2015, p. 88). Warming temperatures in spring (April-May) appear to 
serve as a cue to begin and end egg laying; oviposition in laboratory 
conditions ceased when the daily maximum water temperature reached 29 
degrees Celsius (84 degrees Fahrenheit) (Whelan et al. 2012, p. 3). 
Pleurocerid snails live between 2 and 6 years, depending on the 
species, but the specific lifespan is not known for the oblong 
rocksnail (Whelan 2013, p. 73).
    The species was declared extinct in 2000 (Neves et al. 1997, p. 62; 
Turgeon et al. 1998, p. 65; Bogan 2000, entire), as it had not been 
seen in more than 70 years despite repeated surveys (Whelan et al. 
2012, p. 1), but was rediscovered in 2011 (Whelan et al. 2012, entire). 
The best available information indicates that the oblong rocksnail 
currently occupies approximately 11 percent of its known historical 
range in the Cahaba River. The species has been extirpated from 44.4 
river miles (71.5 kilometers (km)) and is currently found at only a few 
sites along 5.6 river miles (9 km) of the Cahaba River from Old Marvel 
Slab upstream to Booth's Ford (Wright et al. 2020, p. 6). Additional 
survey efforts have failed to locate the species at other sites within 
the historical range. The sites where the species is currently found 
are all above the Fall Line, which divides the Piedmont from the 
Coastal Plain. Due to higher gradients, streams above the Fall Line are 
generally swift and have rock substrates, while streams below the Fall 
Line are generally slower, have soft substrates, and have lower 
gradients (Cahaba River Basin Clean Water Partnership (CRBCWP) 2013, p. 
11). The oblong rocksnail's currently occupied range is restricted to 
the lower range of suitable habitat before the habitat changes at the 
Fall Line.

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 species' expected response and 
the effects of the threats--in light of those actions and conditions 
that will 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

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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 we 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 proposed for listing 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.
    To assess oblong rocksnail viability, we used the three 
conservation biology principles of resiliency, redundancy, and 
representation (Shaffer and Stein 2000, pp. 306-310). Briefly, 
resiliency is the ability of the species to withstand environmental and 
demographic stochasticity (for example, wet or dry, warm or cold 
years); redundancy is the ability of the species to withstand 
catastrophic events (for example, droughts, large pollution events); 
and representation is the ability of the species to adapt to both near-
term and long-term changes in its physical and biological environment 
(for example, climate conditions, pathogens). In general, species 
viability will increase with increases in resiliency, redundancy, and 
representation (Smith et al. 2018, p. 306). 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 then used this information to inform our regulatory 
decision.
    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-R4-ES-
2023-0171 on https://www.regulations.gov.

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. We analyze these factors 
both individually and cumulatively to determine the current condition 
of the species and project the future condition of the species under 
several plausible future scenarios.
Species Needs
    Oblong rocksnails need large, flat boulders and bedrock for feeding 
and reproduction. The river channel should be relatively free of fine 
sediment and with flows sufficient to maintain clean-swept rock 
surfaces for attachment, egg-laying, and periphyton growth. Pleurocerid 
snails, as a group, are sensitive to changes in water quality 
parameters such as sodium chloride (salt), potassium, nickel, zinc, and 
pollutants. Streams that have minimal levels of these constituents are 
considered suitable, while those habitats with levels outside of the 
appropriate ranges are considered less suitable. Further, nutrient 
enrichment needs to remain low enough not to result in algal blooms, 
which can create a toxic cycle that decreases oxygen and food resources 
for snails. For further information about life stages and resource 
needs, see chapter 2 of the SSA report (Service 2022, pp. 3-4).
    For the oblong rocksnail to maintain viability, it must be able to 
withstand and bounce back from both stochastic events (resiliency) and 
catastrophic events (redundancy), as well as adapt to changing 
environmental conditions (representation). Snail abundance must be 
sufficient for genetic diversity to be maintained and for the overall 
population in the stream reach to recover from stochastic events. 
Abundance should be stable or increasing for populations to be 
resilient. Surveys to date have not estimated numbers of oblong 
rocksnails; however, the species appears to be abundant within the 
presently occupied reach within the Cahaba River mainstem, except at 
the northernmost site where numbers are low (Wright et al. 2020, 
entire). A resilient population of oblong rocksnails must be 
reproducing and recruiting young individuals into the population. We 
have no data on reproduction or recruitment of the extant population 
but based on the short (approximately 2-6 years) probable lifespan of 
rocksnails, we assume that presence of snails at locations where it has 
been detected in the recent past indicates recruitment is occurring 
within the population.
    For redundancy, the oblong rocksnail needs to occupy sufficient 
stream length and in enough tributaries such that stochastic and 
catastrophic events that could affect the population in the mainstem do 
not eliminate the entire population of the species. Occupying branches 
of a river network (dendritic networking) increases habitat diversity 
and allows the species to repopulate from those tributaries should a 
spill, flood, drought, or other catastrophic event create unsuitable 
habitat conditions in the Cahaba mainstem. Because the currently 
occupied reach is relatively short and only within the mainstem, 
increasing the complexity of the occupied area will increase redundancy 
by preventing the oblong

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rocksnail from being eliminated by a single catastrophic event.
Influences on Viability
Water Quality Impairment
    Water quality impairment for the oblong rocksnail occurs when there 
are adverse changes in water quality parameters, as well as impacts 
from contaminants and sedimentation, and catastrophic spills. Water 
quality in the Cahaba River has been and is currently affected by point 
and nonpoint sources, and these sources may be chronic or catastrophic 
in nature. Nonpoint sources of water quality impairment for the Cahaba 
River include urban runoff from the metropolitan area of Birmingham and 
stormwater runoff from roads and agricultural activities. Point sources 
include industrial sources and municipal effluents. Point source 
discharges and land surface runoff (nonpoint pollution) can cause 
nutrification, decreased dissolved oxygen (DO) concentrations, 
increased acidity and conductivity, and other changes in water 
chemistry that are known to impact aquatic snails such as the oblong 
rocksnail (Gibson et al. 2016, pp. 1, 32-34; Gibson et al. 2018, pp. 
239, 247, 249). Oblong rocksnails are sensitive to water quality 
impairment as they breathe via gills, which may allow toxicants in the 
water to be readily absorbed (Gibson et al. 2018, p. 251). They also 
need high oxygen in the water to breathe, so reduced DO levels will 
affect respiration and overall snail condition. Increased acidity and 
conductivity can affect shell production and maintenance. It is 
difficult for the oblong rocksnail to move large distances; thus, the 
species is not able to survive stochastic or catastrophic water quality 
events by moving to an unimpaired location.
Contaminants
    The upper Cahaba River is home to municipal wastewater facilities, 
industrial facilities, and coal mines which contribute contaminants, 
including metals, hydrocarbons, pesticides, and other potentially 
harmful organic and inorganic compounds to the stream. These chemical 
contaminants contribute significantly to the current declining status 
of freshwater mollusk (like the oblong rocksnail) species nationwide 
(Augspurger et al. 2007, p. 2025), and within the Cahaba River (Wright 
et al. 2020, p. 2).
    In Alabama, chloride is a common chemical used in oil and gas 
production, pesticide application, wastewater treatment plant effluent, 
urban runoff, and mining (Gibson et al. 2018, p. 240). Studies of the 
toxicity of chloride revealed that a sister species of the oblong 
rocksnail, the round rocksnail (Leptoxis ampla), exhibited sensitivity 
to chloride at concentrations 250 times less than current criteria set 
by the U.S. Environmental Protection Agency (EPA), and at lower-than-
average background levels in almost all watersheds in Alabama, 
including the Cahaba River watershed (Gibson et al. 2018, p. 247). 
Thus, the current EPA water quality criterion for chloride may not be 
sufficient for the survival of the oblong rocksnail. Further, the round 
rocksnail was the most sensitive mollusk species tested, likely 
indicating species in the genus Leptoxis are more sensitive overall to 
contaminants. Rocksnails are also sensitive to potassium, nickel, zinc, 
and sodium dodecyl sulfate (a common surfactant in household 
detergents), and several of these chemicals do not have regulated 
standards (Wang et al. 2013, entire; Gibson et al. 2016, p. 30; Wang et 
al. 2017, p. 786; Gibson et al. 2018, pp. 249-250).
    There are six large municipal wastewater treatment plants in the 
upper Cahaba River drainage, several with documented elevated ammonia 
levels (EPA 2002, p. 35). Mollusks are also highly sensitive to ammonia 
(Augspurger et al. 2003, p. 2569), and non-pulmonate snails, like the 
oblong rocksnail, have been shown to be extremely sensitive to ammonia 
because they readily absorb it from the water via their gills (EPA 
2013, p. 56; Besser et al. 2016, p. 33). The State of Alabama has not 
yet adopted EPA's ammonia criteria that are protective of the needs of 
these mollusks (EPA 2013, p. 67; Haslbauer 2020, pers. comm.).
Sedimentation
    The upper Cahaba River watershed, which drains a large part of 
Birmingham, is rapidly urbanizing; between 1992 and 2011, urban cover 
has increased from 9.4 percent to 35.7 percent due to expansion of the 
metropolitan area (Dosdogru et al. 2020, p. 2). Sources of 
sedimentation include, but are not limited to, several aspects of 
urbanization: deforestation, road maintenance, impoundments, and 
impervious surfaces (EPA 2021, unpaginated).
    Excessive sediments are believed to impact riverine snails 
requiring clean, hard shoal stream and river bottoms by making the 
habitat unsuitable for feeding or reproduction. In 2002, the EPA 
reported on the Cahaba River: ``Because of excessive sedimentation, 
habitat evaluation scores in the middle reach were affected and fell 
into the suboptimal to marginal range. Quite apparent is the filling of 
crevices or spaces between the natural rock substrates by sediments 
thus affecting both fish and benthic macroinvertebrates'' (EPA 2002, p. 
31). The middle reach of the Cahaba River is also where snails were 
most abundant when the EPA (2002, pp. 19-20) conducted eight different 
studies in the Cahaba River in spring 2002. Impacts from decades of 
excessive sedimentation deteriorated oblong rocksnail habitat such that 
it is currently confined to only a small portion of the Cahaba River. 
These impacts from sedimentation affect oblong rocksnail food sources 
by abrading or suffocating periphyton attached to underwater surfaces. 
Sedimentation also affects snail respiration, growth, reproductive 
success, and survival (Waters 1995, pp. 5-7, 74-78, 79-118).
Catastrophic Spills
    Coalbed methane extraction in the watershed results in saline 
production-water that historically was discharged directly to receiving 
channels of the Cahaba River. Saline waters are toxic to snails, 
including the oblong rocksnail. While coalbed methane wells are common 
in the Cahaba River basin, there were approximately 400 wells in 2008 
(EPA 2011, pp. 3-22), at present no discharges of this type go directly 
to the Cahaba (O'Neil 2021, pers. comm.). It is anticipated that future 
discharges of this type would require a permit to ensure integrity of 
the Cahaba. It is still possible a spill could occur from these 
sources; however, the probability of such an event, and its volume and 
nature, are unknown at this time. Pipelines remain one of the safest 
ways to transport fuel in the United States with a very low failure 
rate (Belvederesi et al. 2018, p. 1), and the majority of spills are 
small (National Oceanic and Atmospheric Administration (NOAA) 2020, 
entire). Despite all of this, spills do occur along pipelines and can 
have significant environmental consequences to waterways, wildlife, and 
people (Belvederesi et al. 2018, p. 1).
    Two major oil and gas transmission lines cross the Cahaba River and 
its tributaries at several points ranging from 2.2 to 11 miles (3.7 to 
18 km) above known oblong rocksnail locations. The area around the 
Cahaba River is considered a high consequence area (HCA) (Pipeline and 
Hazardous Material Safety Administration (PHMSA) 2021b, p. 5). These 
HCAs are designated areas where a release could have significant 
adverse consequences, in this case to highly sensitive ecological areas

[[Page 74395]]

(Belvederesi et al. 2018, p. 6), and the HCA designation confers 
additional oversight by the U.S. Department of Transportation's PHMSA 
to ensure integrity of pipelines in these areas.
    Of the 11 counties crossed by these major pipelines in the State of 
Alabama, 5 counties have experienced oil spills associated with these 
pipelines or their infrastructure since 2005; these spills ranged in 
size from 3 to upwards of 7,000 barrels (125 to 293,999 gallons). The 
largest spill in Shelby County occurred in 2016 within a mile (<=1.6 
km) of the Cahaba River upstream of the occupied area. Fortunately for 
the oblong rocksnail and the Cahaba River ecosystem, the spill was 
diverted to a retention pond and did not reach the portion of the river 
where the oblong rocksnail occurs (Birmingham Watch 2016, p. 1).
Climate Change
    We examined climate change on the Cahaba River through 2050, as 
detailed by Dosdogru et al. (2020, entire). Overall, the study 
projected more potential for flood and drought events (extreme weather 
events). Increasing summer temperatures lead to high stream 
evapotranspiration rates and thus lower overall flows, which reduce 
dissolved oxygen needed for oblong rocksnail respiration and metabolic 
activity. High flows during storm events increase soil erosion and 
muddy stream flows (Dosdogru et al. 2020, p. 14), increasing 
sedimentation and associated impacts to rocksnails. During droughts, 
nearly all the flow of the Cahaba River can disappear, leaving snails 
exposed. During drought events, nearly all the flow of the Cahaba River 
is removed at the Birmingham water intake and only a portion is 
returned downstream as treated wastewater (Service 2013, p. 2), 
exposing oblong rocksnails to higher concentrations of potentially 
harmful chemicals (see ``Contaminants,'' above). Furthermore, 
developmental cues, rates of egg development, and juvenile growth are 
all strongly impacted by temperature regimes (Olden and Naiman 2010, p. 
90), and projected increases in temperature can impact successful 
oblong rocksnail reproduction.
    Based on adaptive capacity attributes identified using the approach 
described by Thurman et al. (2020, entire), oblong rocksnail cannot 
move large distances when conditions become unfavorable (e.g., when 
water quality deteriorates, or the system experiences drought or 
flooding), given its limited dispersal ability and reliance on chance 
events to carry dispersers downstream. Flashy flows from flooding storm 
events may present opportunities that carry individuals to other 
downstream sites, but they could also carry them beyond the small reach 
of currently suitable habitat to unsuitable habitat below the Fall 
Line. Prolonged droughts can lower the water levels such that wetted 
habitat becomes limited or disappears, leaving the non-air-breathing 
oblong rocksnail unable to escape these conditions and prone to 
exposure to contaminants or desiccation.

Current Condition

    We note that, by using the SSA framework to guide our analysis of 
the scientific information documented in the SSA report, we have 
analyzed the cumulative effect of identified threats and conservation 
actions on the species. To assess the current and future condition of 
the species, we evaluated the effects of all the relevant 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 effect of the 
factors and replaces a standalone cumulative-effects analysis. Below, 
we describe the 3Rs--resiliency, representation, and redundancy--as 
they relate to oblong rocksnail viability.
Resiliency
    The resiliency, or ability of the extant oblong rocksnail 
population to withstand stochastic events, was determined by analyzing 
three population factors (abundance, reproduction/recruitment, and 
occupied stream length/complexity) and two habitat factors (substrate 
and flowing water, and water quality). These factors are described 
below.
Abundance
    While there are no numeric abundance estimates for the oblong 
rocksnail, we assume that because the population is detectable at 
multiple sites along 5.6 miles (approximately 9 km) of the Cahaba 
River, we consider the species locally abundant wherever it occurs.
Reproduction and Recruitment
    We assume that the recent detections of oblong rocksnail at 
occupied sites indicates recruitment is currently occurring within the 
population.
Occupied Stream Length/Stream Complexity
    The oblong rocksnail currently occupies 5.6 miles (approximately 9 
km) of the historical 44.4 miles (71.5 km) of the Cahaba River and is 
not known to occupy any tributaries. This limited occupied area and 
lack of stream complexity could make the species more susceptible to 
stochastic and catastrophic events.
Substrate and Flowing Water
    The oblong rocksnail occupies a reach of the Cahaba River that is 
downstream of the confluence with several large tributaries. Currently, 
the volume and flow of water in this reach is sufficient to maintain 
clean-swept hard surfaces in the main channel of the Cahaba River and 
support periphyton, such that the oblong rocksnail can attach, feed, 
and lay eggs, thus supporting oblong rocksnail persistence.
Water Quality
    Past water quality issues affected oblong rocksnail habitat such 
that it was once thought extinct. However, over the past 30 years, the 
Cahaba River's water quality has improved in the range of the oblong 
rocksnail. The Clean Water Act (33 U.S.C. 1251 et seq.) imposed water 
quality standards and reduced contaminants from urban runoff, 
industrial facilities, and municipal wastewater, which has resulted in 
suitable water quality in the currently occupied reach. At present, the 
Cahaba River's water quality appears sufficient to support known sites.
Representation
    The oblong rocksnail has limited representation, as it is only 
found in one population with limited overall genetic diversity. The 
loss of genetic variation due to its range contraction may have 
negatively impacted its long-term survival and overall adaptive 
capacity (Wright et al. 2020, p. 10). Evidence suggests the oblong 
rocksnail has lost genetic diversity through both bottleneck and 
genetic drift (Wright et al. 2020, p. 12). Genetic diversity is 
increased at downstream sites (Whelan et al. 2019, p. 1593), 
facilitated by much greater downstream movement than upstream movement 
(Redak et al. 2021, p. 643). This downstream-biased movement, coupled 
with a lack of suitable habitat upstream, has resulted in a decline of 
genetic diversity at upstream sites despite the recent discovery of the 
species at multiple sites and a slightly expanded known distribution 
for the species.
Redundancy
    The oblong rocksnail has limited to no redundancy. While the 
species is represented by only one population in one small river reach, 
oblong rocksnail

[[Page 74396]]

can be found at multiple sites within the singular population. These 
sites serve as ``internal redundancy'' within a singular population 
that could provide some ability to respond to stochastic events; 
however, because all sites occupied are linear in one stretch of the 
Cahaba River, it is possible that a catastrophic event could impact the 
entire population.

Future Conditions

    As part of the SSA analysis, we developed three future-condition 
scenarios to capture the range of uncertainties regarding future 
threats and the projected responses by the oblong rocksnail. Our 
scenarios examined changes in urbanization and climate change, 
potential mitigation of urbanization and climate impacts by an existing 
management program, and the potential of a catastrophic oil spill to 
the species. Because we determined that the current condition of the 
oblong rocksnail is consistent with an endangered species (see 
Determination of Oblong Rocksnail's Status, below), we are not 
presenting the results of the future scenarios in this proposed rule. 
Please refer to the SSA report (Service 2021, pp. 28-34) for the full 
analysis of future scenarios.
Conservation Efforts and Regulatory Mechanisms
    Reintroduction efforts for the oblong rocksnail are underway with 
the Alabama Department of Conservation and Natural Resources (ADCNR) 
(ADCNR 2021, entire). During a survey in the historical Belle Ellen 
shoal complex in May 2019, several federally listed species were 
located, but the oblong rocksnail was not (ADCNR 2021, p. 2). Although 
a targeted survey in October 2020 again did not locate the oblong 
rocksnail, ADCNR and Service personnel agreed to consider the site for 
future reintroduction efforts (ADCNR 2021, p. 2). Culture efforts, as a 
part of reintroduction efforts, began in 2020 (ADCNR 2021, p. 3). A 
total of 220 oblong rocksnail brood stock were collected from a shoal 
adjacent to the Living River complex on the Cahaba River and brought 
back to the Alabama Aquatic Biodiversity Center (ADCNR 2021, p. 3). 
After an 11-month effort, a total of 544 juvenile and 201 brood stock 
snails were released adjacent to the right-descending bank at the Belle 
Ellen shoal (ADCNR 2021, p. 3). Future plans also include the 
collection of more brood stock for additional culturing, evaluation of 
additional oblong rocksnail reintroduction sites in lower Buck Creek 
and lower Little Cahaba River, and a comprehensive reintroduction plan 
encompassing all approved reintroduction sites for the oblong rocksnail 
(ADCNR 2021, p. 3).

Determination of Oblong Rocksnail'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 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.
Status Throughout All of Its Range
    The oblong rocksnail is a local endemic in the Cahaba River system 
of Alabama. The species once occupied approximately 50 miles of the 
river and was thought extinct before it was rediscovered in 2011. The 
species currently occupies only a 5.6-mile (approximately 9-km) reach 
in the Cahaba River. There are no abundance estimates, but the oblong 
rocksnail is considered locally abundant where it occurs. Recruitment 
is presumed to be occurring in the occupied habitat. Current threats to 
the species include typical threats to aquatic species: water quality 
impairment, including sedimentation and contaminants from urbanization 
and habitat alteration (Factor A). The species' current distribution 
lacks dendritic networking; it is in a single reach of the mainstem 
river, and there is no ability for natural rescue if the main channel 
populations are lost when faced with a catastrophic event, such as a 
toxic spill or extreme weather event (flood or drought) (Factor E).
    After evaluating threats to the species and assessing the 
cumulative effect of the threats under the Act's section 4(a)(1) 
factors, we determine that the oblong rocksnail is affected by water 
quality impairment, including sedimentation, and potential catastrophic 
spills. The current threats to the oblong rocksnail present a high risk 
of extinction to the species, which occupies only about 11 percent of 
its historical range. This species has low resiliency; it is located in 
one stream reach, although it is locally abundant there. It has limited 
to no redundancy, with occupied sites in one linear population offering 
little ability to rebound from a catastrophic event, and it has low 
representation due to lost genetic diversity through bottleneck and 
subsequent genetic drift. Thus, after assessing the best available 
information, we determine that oblong rocksnail 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 
within the foreseeable future throughout all or a significant portion 
of its range. We have determined that the oblong rocksnail is in danger 
of extinction throughout all of its range and accordingly did not 
undertake an analysis of any significant portion of its range. Because 
the oblong rocksnail warrants listing as endangered throughout all of 
its range, our determination is consistent with the decision in Center 
for Biological Diversity v. Everson, 2020 WL 437289 (D.D.C. Jan. 28, 
2020), in which the court vacated the aspect of the Final Policy on 
Interpretation of the Phrase ``Significant Portion of Its Range'' in 
the Endangered Species Act's Definitions of ``Endangered Species'' and 
``Threatened Species'' (79 FR 37578; July 1, 2014) that provided the 
Service does not undertake an analysis of significant portions of a 
species' range if the species warrants listing as threatened throughout 
all of its range.
Determination of Status
    Our review of the best available scientific and commercial 
information indicates that the oblong rocksnail meets the Act's 
definition of an endangered species. Therefore, we propose to list the 
oblong rocksnail 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

[[Page 74397]]

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 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 our website as they are completed (https://www.fws.gov/program/endangered-species), or from our Alabama 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.
    If this species is listed, funding for recovery actions will 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 Alabama would be 
eligible for Federal funds to implement management actions that promote 
the protection or recovery of the oblong rocksnail. Information on our 
grant programs that are available to aid species recovery can be found 
at: https://www.fws.gov/service/financial-assistance.
    Although the oblong rocksnail is only proposed for listing under 
the Act at this time, please let us know if you are interested in 
participating in recovery efforts for this species. 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 of the Act is titled, ``Interagency Cooperation'' and 
mandates all Federal action agencies to use their existing authorities 
to further the conservation purposes of the Act and to ensure that 
their actions are not likely to jeopardize the continued existence of 
listed species or adversely modify critical habitat. Regulations 
implementing section 7 are codified at 50 CFR part 402.
    Section 7(a)(2) states that each Federal action agency shall, in 
consultation with the Secretary, ensure that any action they authorize, 
fund, or carry out is not likely to jeopardize the continued existence 
of a listed species or result in the destruction or adverse 
modification of designated critical habitat. Each Federal agency shall 
review its action at the earliest possible time to determine whether it 
may affect listed species or critical habitat. If a determination is 
made that the action may affect listed species or critical habitat, 
formal consultation is required (50 CFR 402.14(a)), unless the Service 
concurs in writing that the action is not likely to adversely affect 
listed species or critical habitat. At the end of a formal 
consultation, the Service issues a biological opinion, containing its 
determination of whether the Federal action is likely to result in 
jeopardy or adverse modification.
    In contrast, section 7(a)(4) of the Act requires Federal agencies 
to confer with the Service on any action which is likely to jeopardize 
the continued existence of any species proposed to be listed under the 
Act or result in the destruction or adverse modification of critical 
habitat proposed to be designated for such species. Although the 
conference procedures are required only when an action is likely to 
result in jeopardy or adverse modification, action agencies may 
voluntarily confer with the Service on actions that may affect species 
proposed for listing or critical habitat proposed to be designated. In 
the event that the subject species is listed or the relevant critical 
habitat is designated, a conference opinion may be adopted as a 
biological opinion and serve as compliance with section 7(a)(2) of the 
Act.
    Examples of discretionary actions for the oblong rocksnail that may 
be subject to conference and consultation procedures under section 7 
are actions on State, Tribal, local, or private lands that require a 
Federal permit (such as a permit from the U.S. Army Corps of Engineers 
under section 404 of the Clean Water Act (33 U.S.C. 1251 et seq.) or a 
permit from the Service under section 10 of the Act) or that involve 
some other Federal action (such as funding from the Federal Highway 
Administration, Federal Aviation Administration, or the Federal 
Emergency Management Agency). Federal actions not affecting listed 
species or critical habitat--and actions on State, Tribal, local, or 
private lands that are not federally funded, authorized, or carried out 
by a Federal agency--do not require section 7 consultation. Federal 
agencies should coordinate with the local Service Field Office (see FOR 
FURTHER INFORMATION CONTACT) with any specific questions on section 7 
consultation and conference requirements.
    The Act and its implementing regulations set forth a series of 
general prohibitions and exceptions that apply to endangered wildlife. 
The prohibitions of section 9(a)(1) of the Act, codified at 50 CFR 
17.21, make it illegal for any person subject to the jurisdiction of 
the

[[Page 74398]]

United States to commit, to attempt to commit, to solicit another to 
commit or to cause to be committed any of the following: (1) import 
endangered wildlife into, or export such wildlife from, the United 
States; (2) take (which includes harass, harm, pursue, hunt, shoot, 
wound, kill, trap, capture, or collect, or to attempt to engage in any 
such conduct) endangered wildlife within the United States or on the 
high seas; (3) possess, sell, deliver, carry, transport, or ship, by 
any means whatsoever, any such wildlife that has been taken illegally; 
(4) deliver, receive, carry, transport, or ship in interstate or 
foreign commerce in the course of commercial activity; or (5) sell or 
offer for sale in interstate or foreign commerce. Certain exceptions to 
these prohibitions apply to employees or agents of the Service, the 
National Marine Fisheries Service, other Federal land management 
agencies, and State conservation agencies.
    We may issue permits to carry out otherwise prohibited activities 
involving endangered wildlife under certain circumstances. Regulations 
governing permits for endangered wildlife are codified at 50 CFR 17.22. 
With regard to endangered wildlife, a permit may be issued for 
scientific purposes, for enhancing the propagation or survival of the 
species, or for take incidental to otherwise lawful activities. The 
statute also contains certain exemptions from the prohibitions, which 
are found in sections 9 and 10 of the Act.
    It is the policy of the Service, as published in the Federal 
Register on July 1, 1994 (59 FR 34272), to identify, to the extent 
known at the time a species is listed, specific activities that will 
not be considered likely to result in violation of section 9 of the 
Act. To the extent possible, activities that will be considered likely 
to result in violation will also be identified in as specific a manner 
as possible. The intent of this policy is to increase public awareness 
of the effect of a proposed listing on proposed and ongoing activities 
within the range of the species proposed for listing.
    At this time, we are unable to identify specific activities that 
will be considered likely to result in a violation of section 9 of the 
Act beyond what is already clear from the descriptions of the 
prohibitions at 50 CFR 17.21 and general Service permitting regulations 
codified at 50 CFR part 13. Questions regarding whether specific 
activities would constitute violation of section 9 of the Act should be 
directed to the Alabama Ecological Services Field Office (see FOR 
FURTHER INFORMATION CONTACT).

II. Critical Habitat

Background

    Critical habitat is defined in section 3 of the Act as:
    (1) The specific areas within the geographical area occupied by the 
species, at the time it is listed in accordance with the Act, on which 
are found those physical or biological features
    (a) Essential to the conservation of the species, and
    (b) Which may require special management considerations or 
protection; and
    (2) Specific areas outside the geographical area occupied by the 
species at the time it is listed, upon a determination that such areas 
are essential for the conservation of the species.
    Our regulations at 50 CFR 424.02 define the geographical area 
occupied by the species as an area that may generally be delineated 
around species' occurrences, as determined by the Secretary (i.e., 
range). Such areas may include those areas used throughout all or part 
of the species' life cycle, even if not used on a regular basis (e.g., 
migratory corridors, seasonal habitats, and habitats used periodically, 
but not solely by vagrant individuals).
    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 each Federal action agency 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 designated 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. Rather, designation requires that, where a landowner 
requests Federal agency funding or authorization for an action that may 
affect an area designated as critical habitat, the Federal agency 
consult with the Service under section 7(a)(2) of the Act. If the 
action may affect the listed species itself (such as for occupied 
critical habitat), the Federal agency would have already been required 
to consult with the Service even absent the designation because of the 
requirement to ensure that the action is not likely to jeopardize the 
continued existence of the species. Even if the Service were to 
conclude after consultation that the proposed activity is likely to 
result in destruction or adverse modification of the critical habitat, 
the Federal action agency and the landowner are not required to abandon 
the proposed activity, or to restore or recover the species; instead, 
they must implement ``reasonable and prudent alternatives'' to avoid 
destruction or adverse modification of critical habitat.
    Under the first prong of the Act's definition of critical habitat, 
areas within the geographical area occupied by the species at the time 
it was listed are included in a critical habitat designation if they 
contain physical or biological features (1) which are essential to the 
conservation of the species and (2) which may require special 
management considerations or protection. For these areas, critical 
habitat designations identify, to the extent known using the best 
scientific data available, those physical or biological features that 
are essential to the conservation of the species (such as space, food, 
cover, and protected habitat).
    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.

[[Page 74399]]

5658)), and our associated Information Quality Guidelines provide 
criteria, establish procedures, and provide guidance to ensure that our 
decisions are based on the best scientific data available. They require 
our biologists, to the extent consistent with the Act and with the use 
of the best scientific data available, to use primary and original 
sources of information as the basis for recommendations to designate 
critical habitat.
    When we are determining which areas should be designated as 
critical habitat, our primary source of information is generally the 
information from the SSA report and information developed during the 
listing process for the species. Additional information sources may 
include any generalized conservation strategy, criteria, or outline 
that may have been developed for the species; the recovery plan for the 
species; articles in peer-reviewed journals; conservation plans 
developed by States and counties; scientific status surveys and 
studies; biological assessments; other unpublished materials; or 
experts' opinions or personal knowledge.
    Habitat is dynamic, and species may move from one area to another 
over time. We recognize that critical habitat designated at a 
particular point in time may not include all of the habitat areas that 
we may later determine are necessary for the recovery of the species. 
For these reasons, a critical habitat designation does not signal that 
habitat outside the designated area is unimportant or may not be needed 
for recovery of the species. Areas that are important to the 
conservation of the species, both inside and outside the critical 
habitat designation, 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 the 4(d) rule if one has 
been issued for the listed species. 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 the 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, or other species 
conservation planning efforts if new information available at the time 
of those planning efforts calls for a different outcome.
Critical Habitat Determinability
    Our regulations at 50 CFR 424.12(a)(2) state that critical habitat 
is not determinable when one or both of the following situations exist:
    (i) Data sufficient to perform required analyses are lacking, or
    (ii) The biological needs of the species are not sufficiently well 
known to identify any area that meets the definition of ``critical 
habitat.''
    When critical habitat is not determinable, the Act allows the 
Service an additional year to publish a critical habitat designation 
(16 U.S.C. 1533(b)(6)(C)(ii)).
    We reviewed the available information pertaining to the biological 
needs of the species and habitat characteristics where this species is 
located. The species' needs are sufficiently well known, but a careful 
assessment of the economic impacts that may occur due to a critical 
habitat designation is ongoing. Until these efforts are complete, 
information sufficient to perform a required analysis of the impacts of 
the designation is lacking; therefore, we find designation of critical 
habitat for the oblong rocksnail is prudent but not determinable at 
this time. We plan to publish a proposed rule to designate critical 
habitat for the oblong rocksnail concurrent with the availability of a 
draft economic analysis of the proposed designation. The Act allows the 
Service an additional year to publish a critical habitat designation 
that is not determinable at the time of listing (16 U.S.C. 
1533(b)(6)(C)(ii)).

Required Determinations

Clarity of the Rule
    We are required by Executive Orders 12866 and 12988 and by the 
Presidential Memorandum of June 1, 1998, to write all rules in plain 
language. This means that each rule we publish must:
    (1) Be logically organized;
    (2) Use the active voice to address readers directly;
    (3) Use clear language rather than jargon;
    (4) Be divided into short sections and sentences; and
    (5) Use lists and tables wherever possible.
    If you feel that we have not met these requirements, send us 
comments by one of the methods listed in ADDRESSES. To better help us 
revise the rule, your comments should be as specific as possible. For 
example, you should tell us the numbers of the sections or paragraphs 
that are unclearly written, which sections or sentences are too long, 
the sections where you feel lists or tables would be useful, etc.
Government-to-Government Relationship With Tribes
    In accordance with the President's memorandum of April 29, 1994 
(Government-to-Government Relations with Native American Tribal 
Governments; 59 FR 22951), Executive Order 13175 (Consultation and 
Coordination with Indian Tribal Governments), and the Department of the 
Interior's manual at 512 DM 2, we readily acknowledge our 
responsibility to communicate meaningfully with recognized Federal 
Tribes on a government-to-government basis. In accordance with 
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. We have determined that the oblong 
rocksnail does not occupy any Tribal lands, so this proposed rule 
should not affect any Tribes or Tribal lands.

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 Alabama Ecological Services Field Office (see FOR FURTHER 
INFORMATION CONTACT).

Authors

    The primary authors of this proposed rule are the staff members of 
the Fish and Wildlife Service's Species Assessment Team and the Alabama 
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.

Proposed Regulation Promulgation

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

[[Page 74400]]

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. In Sec.  17.11, in paragraph (h), amend the List of Endangered and 
Threatened Wildlife by adding an entry for ``Rocksnail, oblong'' in 
alphabetical order under SNAILS to read as follows:


Sec.  17.11  Endangered and threatened wildlife.

* * * * *
    (h) * * *

----------------------------------------------------------------------------------------------------------------
                                                                                       Listing citations and
         Common name           Scientific name    Where listed        Status             applicable rules
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------
                                                     Snails
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
Rocksnail, oblong............  Leptoxis         Wherever found.  E..............  [Federal Register citation
                                compacta.                                          when published as a final
                                                                                   rule].
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------


Stephen Guertin,
Acting Director, U.S. Fish and Wildlife Service.
[FR Doc. 2023-23994 Filed 10-30-23; 8:45 am]
BILLING CODE 4333-15-P