30888 Federal Register / Vol. 86, No. 110 / Thursday, June 10, 2021 / Proposed Rules

DEPARTMENT OF THE INTERIOR (2) By hard copy: Submit by U.S. mail Code of Federal Regulations (CFR) in to: Public Comments Processing, Attn: part 17 (50 CFR 17.11(h) for wildlife and Fish and Wildlife Service FWS–R2–ES–2018–0021; U.S. Fish and 50 CFR 17.12(h) for plants). Wildlife Service Headquarters, MS: Designations and revisions of critical 50 CFR Part 17 BPHC, 5275 Leesburg Pike, Falls habitat can only be completed by [Docket No. FWS–R2–ES–2018–0021; Church, VA 22041–3803. issuing a rule. FF09E21000 FXES11110900000 212] We request that you send comments What this document does. This only by the methods described above. document proposes the designation of RIN 1018–BD55 We will post all comments on http:// critical habitat for the Texas hornshell and announces the availability of the Endangered and Threatened Wildlife www.regulations.gov. This generally draft economic analysis. The Texas and Plants; Designating Texas means that we will post any personal hornshell has been listed as an Hornshell Critical Habitat information you provide us (see the Information Requested section below for endangered species under the Act. This AGENCY: Fish and Wildlife Service, more information). rule proposes designation of critical Interior. Public informational meeting and habitat necessary for the conservation of ACTION: Proposed rule. public hearing: The public the species. informational meeting and the public The basis for our action. Under the SUMMARY: We, the U.S. Fish and hearing will be held virtually using the Endangered Species Act, any species Wildlife Service (Service), propose to Zoom platform. See Public Hearing, that is determined to be a threatened or designate critical habitat for the Texas below, for more information. endangered species shall, to the hornshell (Popenaias popeii), a Document availability: The draft maximum extent prudent and freshwater mussel, under the economic analysis is available at https:// determinable, have habitat designated Endangered Species Act (Act). In total, www.fws.gov/southwest/es/ that is considered to be critical habitat. the proposed critical habitat designation TexasCoastal/, at http:// Section 4(b)(2) of the Endangered includes approximately 463.6 river www.regulations.gov in Docket No. Species Act states that the Secretary miles (745.9 kilometers) in Eddy FWS–R2–ES–2018–0021, and at the shall designate and make revisions to County, New Mexico, and in Culberson, Texas Coastal Ecological Services Field critical habitat on the basis of the best Brewster, Terrell, Val Verde, Kinney, Office (see FOR FURTHER INFORMATION available scientific data after taking into Maverick, and Webb Counties, Texas. If CONTACT). consideration the economic impact, the we finalize this rule as proposed, it The coordinates or plot points or both impact on national security, and any would extend the Act’s protections to from which the maps are generated are other relevant impact of specifying any this species’ critical habitat. The effect included in the administrative record particular area as critical habitat. The of this regulation is to designate critical for this critical habitat designation and Secretary may exclude an area from habitat for the Texas hornshell under are available at https://www.fws.gov/ critical habitat if he determines that the the Act. We also announce the southwest/es/TexasCoastal/, at http:// benefits of such exclusion outweigh the availability of a draft economic analysis www.regulations.gov in Docket No. benefits of specifying such area as part of the proposed designation of critical FWS–R2–ES–2018–0021, and at the of the critical habitat, unless he habitat. We also are notifying the public Texas Coastal Ecological Services Field determines, based on the best scientific that we have scheduled an data available, that the failure to Office (see FOR FURTHER INFORMATION informational meeting followed by a designate such area as critical habitat CONTACT). Any additional tools or public hearing on the proposed rule. will result in the extinction of the supporting information that we may species. DATES: develop for this critical habitat Comment submission: We will accept Supporting analyses. We prepared an designation will also be available at the comments on this proposed rule or draft analysis of the economic impacts of the Service website and field office set out economic analysis that are received or proposed critical habitat designation above, and may also be included in the postmarked on or before August 9, 2021. and hereby announce the availability of preamble of the final rule and/or at Comments submitted electronically the draft economic analysis for public http://www.regulations.gov. using the Federal eRulemaking Portal review and comment. (see ADDRESSES below) must be received FOR FURTHER INFORMATION CONTACT: Our species status assessment report by 11:59 p.m. Eastern Time on the Chuck Ardizzone, U.S. Fish and (SSA report) documents the results of closing date. Wildlife Service, Texas Coastal the comprehensive biological status Public informational meeting and Ecological Services Field Office, 17629 review for the Texas hornshell and public hearing: We will hold a public El Camino Real #211, Houston, TX provides an account of the species’ informational session from 5:00 p.m. to 77058; by telephone 281–286–8282; or overall viability through forecasting of 6:00 p.m., Mountain Time, followed by by facsimile 281–488–5882. Persons the species’ condition in the future a public hearing from 6:30 p.m. to 8:30 who use a telecommunications device (Service 2018, entire). Additionally, the p.m., Mountain Time, on June 29, 2021. for the deaf (TDD) may call the Federal SSA report contains our analysis of ADDRESSES: Relay Service at 800–877–8339. required habitat and the existing Comment submission: You may SUPPLEMENTARY INFORMATION: conditions of that habitat. submit comments on the proposed rule Peer review. We sought comments Executive Summary or draft economic analysis by one of the from independent specialists on the following methods: Why we need to publish a rule. Under SSA report to ensure that our critical (1) Electronically: Go to the Federal the Endangered Species Act, critical habitat proposal is based on eRulemaking Portal: http:// habitat must be designated, to the scientifically sound data and analyses. www.regulations.gov. In the Search box, maximum extent prudent and We received feedback from four enter FWS–R2–ES–2018–0021 to find determinable, for all species determined scientists with expertise in freshwater this proposed rule. You may submit a to be endangered or threatened. The mussel biology, ecology, and genetics as comment by clicking on ‘‘Comment Lists of Endangered and Threatened peer review of the SSA report. The Now!’’ Wildlife and Plants are in title 50 of the reviewers were generally supportive of

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our approach and made suggestions and (d) What areas not occupied at the analysis, and how the consequences of comments that strengthened our time of listing are essential for the such reactions, if likely to occur, would analysis. We incorporated these conservation of the species. We relate to the conservation and regulatory comments into the SSA report, which particularly seek comments regarding: benefits of the proposed critical habitat can be found at http:// (i) Whether occupied areas are designation. www.regulations.gov under Docket No. inadequate for the conservation of the (11) Whether we could improve or FWS–R2–ES–2018–0021. species; and, modify our approach to designating (ii) Specific information that supports critical habitat in any way to provide for Information Requested the determination that unoccupied areas greater public participation and We intend that any final action will, with reasonable certainty, understanding, or to better resulting from this proposed rule will be contribute to the conservation of the accommodate public concerns and based on the best scientific data species and, contain at least one comments. available and be as accurate and as physical or biological feature essential You may submit your comments and effective as possible. Therefore, we to the conservation of the species. materials concerning this proposed rule request comments or information from (3) Land use designations and current by one of the methods listed in other concerned government agencies, or planned activities in the subject areas ADDRESSES. We request that you send the scientific community, industry, or and their possible impacts on proposed comments only by the methods any other interested party concerning critical habitat. described in ADDRESSES. this proposed rule. Because we will (4) Information on the projected and All comments submitted consider all comments and information reasonably likely impacts of climate electronically via http:// received during the comment period, change on the Texas hornshell and www.regulations.gov will be presented our final determinations may differ from proposed critical habitat. on the website in their entirety as this proposal. (5) Any probable economic, national submitted. For comments submitted via We particularly seek comments security, or other relevant impacts of hard copy, we will post your entire concerning: designating any area that may be comment—including your personal (1) The reasons why we should or included in the final designation, and identifying information—on http:// should not designate habitat as ‘‘critical the benefits of including or excluding www.regulations.gov. You may request habitat’’ under section 4 of the Act (16 areas that may be impacted. at the top of your document that we (6) Information on the extent to which U.S.C. 1531 et seq.) including withhold personal information such as the description of probable economic information to inform the following your street address, phone number, or impacts in the draft economic analysis factors such that a designation of critical email address from public review; is a reasonable estimate of the likely habitat may be determined to be not however, we cannot guarantee that we economic impacts. will be able to do so. prudent: (7) Whether any specific areas we are Comments and materials we receive, (a) The species is threatened by taking proposing for critical habitat as well as supporting documentation we or other human activity and designation should be considered for used in preparing this proposed rule, identification of critical habitat can be exclusion under section 4(b)(2) of the will be available for public inspection expected to increase the degree of such Act, and whether the benefits of on http://www.regulations.gov. threat to the species; potentially excluding any specific area (b) The present or threatened outweigh the benefits of including that Previous Federal Actions destruction, modification, or area under section 4(b)(2) of the Act, in curtailment of a species’ habitat or range All previous Federal actions are particular for those covered by the described in the final rule listing the is not a threat to the species, or threats Candidate Conservation Agreement to the species’ habitat stem solely from Texas hornshell as an endangered (CCA) and Candidate Conservation species under the Act published in the causes that cannot be addressed through Agreement with Assurances (CCAA) for management actions resulting from Federal Register on February 9, 2018 the Texas hornshell in the Black and (83 FR 5720). consultations under section 7(a)(2) of Delaware Rivers in New Mexico and the Act; Texas. Critical Habitat (c) Areas within the jurisdiction of the (8) Whether any lands should be Background United States provide no more than considered for exclusion under section negligible conservation value, if any, for 4(b)(2) of the Act for national security Critical habitat is defined in section 3 a species occurring primarily outside reasons, whether such exclusion is or is of the Act as: the jurisdiction of the United States; not appropriate, and whether the (1) The specific areas within the (d) No areas meet the definition of benefits of excluding any specific area geographical area occupied by the critical habitat. outweigh the benefits of including that species, at the time it is listed in (2) Specific information on: area as critical habitat and why. accordance with the Act, on which are (a) The amount and distribution of (9) Whether lands owned by the found those physical or biological Texas hornshell habitat; Kickapoo Indian Reservation of Texas features (b) What areas that were occupied at should be considered for exclusion (a) Essential to the conservation of the the time of listing and that contain the under section 4(b)(2) of the Act, whether species, and physical or biological features essential such exclusion is or is not appropriate, (b) Which may require special to the conservation of the species and whether the benefits of excluding management considerations or should be included in the designation any specific area outweigh the benefits protection; and and why; of including that area as critical habitat (2) Specific areas outside the (c) Special management and why. geographical area occupied by the considerations or protection that may be (10) The likelihood of adverse social species at the time it is listed, upon a needed in critical habitat areas we are reactions to the designation of critical determination that such areas are proposing, including managing for the habitat, as discussed in the associated essential for the conservation of the potential effects of climate change; and documents of the draft economic species.

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Our regulations at 50 CFR 424.02 essential to the conservation of the are based on the best scientific data define the geographical area occupied species and (2) which may require available. They require our biologists, to by the species as: An area that may special management considerations or the extent consistent with the Act and generally be delineated around species’ protection. For these areas, critical with the use of the best scientific data occurrences, as determined by the habitat designations identify, to the available, to use primary and original Secretary (i.e., range). Such areas may extent known using the best scientific sources of information as the basis for include those areas used throughout all and commercial data available, those recommendations to designate critical or part of the species’ life cycle, even if physical or biological features that are habitat. not used on a regular basis (e.g., essential to the conservation of the When we are determining which areas migratory corridors, seasonal habitats, species (such as space, food, cover, and should be designated as critical habitat, and habitats used periodically, but not protected habitat). In identifying those our primary source of information is solely by vagrant individuals). physical or biological features that occur generally the information from the SSA Conservation, as defined under in specific areas, we focus on the report and information developed section 3 of the Act, means to use and specific features that are essential to during the listing process for the the use of all methods and procedures support the life-history needs of the species. Additional information sources that are necessary to bring an species, including but not limited to, may include any generalized endangered or threatened species to the water characteristics, soil type, conservation strategy, criteria, or outline point at which the measures provided geological features, prey, vegetation, that may have been developed for the pursuant to the Act are no longer symbiotic species, or other features. A species, the recovery plan for the necessary. Such methods and feature may be a single habitat species, articles in peer-reviewed procedures include, but are not limited characteristic, or a more complex journals, conservation plans developed to, all activities associated with combination of habitat characteristics. by States and counties, scientific status scientific resources management such as Features may include habitat surveys and studies, biological research, census, law enforcement, characteristics that support ephemeral assessments, other unpublished habitat acquisition and maintenance, or dynamic habitat conditions. Features materials, or experts’ opinions or propagation, live trapping, and may also be expressed in terms relating personal knowledge. transplantation, and, in the to principles of conservation biology, Habitat is dynamic, and species may extraordinary case where population such as patch size, distribution move from one area to another over pressures within a given ecosystem distances, and connectivity. time. We recognize that critical habitat cannot be otherwise relieved, may Under the second prong of the Act’s designated at a particular point in time include regulated taking. definition of critical habitat, we can may not include all of the habitat areas Critical habitat receives protection designate critical habitat in areas that we may later determine are under section 7 of the Act through the outside the geographical area occupied necessary for the recovery of the requirement that Federal agencies by the species at the time it is listed, species. For these reasons, a critical ensure, in consultation with the Service, upon a determination that such areas habitat designation does not signal that that any action they authorize, fund, or are essential for the conservation of the habitat outside the designated area is carry out is not likely to result in the species. When designating critical unimportant or may not be needed for destruction or adverse modification of habitat, the Secretary will first evaluate recovery of the species. Areas that are critical habitat. The designation of areas occupied by the species. The important to the conservation of the critical habitat does not affect land Secretary will only consider unoccupied species, both inside and outside the ownership or establish a refuge, areas to be essential where a critical critical habitat designation, will wilderness, reserve, preserve, or other habitat designation limited to continue to be subject to: (1) conservation area. Such designation geographical areas occupied by the Conservation actions implemented does not allow the government or public species would be inadequate to ensure under section 7(a)(1) of the Act, (2) to access private lands. Such the conservation of the species. In regulatory protections afforded by the designation does not require addition, for an unoccupied area to be requirement in section 7(a)(2) of the Act implementation of restoration, recovery, considered essential, the Secretary must for Federal agencies to ensure their or enhancement measures by non- determine that there is a reasonable actions are not likely to jeopardize the Federal landowners. Where a landowner certainty both that the area will continued existence of any endangered requests Federal agency funding or contribute to the conservation of the or threatened species, and (3) section 9 authorization for an action that may species and that the area contains one of the Act’s prohibitions on taking any affect a listed species or critical habitat, or more of those physical or biological individual of the species, including the consultation requirements of section features essential to the conservation of taking caused by actions that affect 7(a)(2) of the Act would apply, but even the species. habitat. Federally funded or permitted in the event of a destruction or adverse Section 4 of the Act requires that we projects affecting listed species outside modification finding, the obligation of designate critical habitat on the basis of their designated critical habitat areas the Federal action agency and the the best scientific data available. may still result in findings that the landowner is not to restore or recover Further, our Policy on Information action jeopardizes the continued the species, but to implement Standards Under the Endangered existence of the species in some cases. reasonable and prudent alternatives to Species Act (published in the Federal These protections and conservation avoid destruction or adverse Register on July 1, 1994 (59 FR 34271)), tools will continue to contribute to modification of critical habitat. the Information Quality Act (section 515 recovery of this species. Similarly, Under the first prong of the Act’s of the Treasury and General critical habitat designations made on the definition of critical habitat, areas Government Appropriations Act for basis of the best available information at within the geographical area occupied Fiscal Year 2001 (Pub. L. 106–554; H.R. the time of designation will not control by the species at the time it was listed 5658)), and our associated Information the direction and substance of future are included in a critical habitat Quality Guidelines, provide criteria, recovery plans, habitat conservation designation if they contain physical or establish procedures, and provide plans, or other species conservation biological features (1) Which are guidance to ensure that our decisions planning efforts if new information

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available at the time of these planning Critical Habitat Determinability characteristics. Features may include efforts calls for a different outcome. Having determined that designation is habitat characteristics that support ephemeral or dynamic habitat Habitat Outside the United States prudent, under section 4(a)(3) of the Act we must find whether critical habitat for conditions. Features may also be Within the identified geographical the Texas hornshell is determinable. expressed in terms relating to principles area occupied at the time of listing (see Our regulations at 50 CFR 424.12(a)(2) of conservation biology, such as patch below, Areas Occupied at the Time of state that critical habitat is not size, distribution distances, and connectivity. For example, physical Listing), the habitat areas used by the determinable when one or both of the features might include gravel of a species are in Texas, New Mexico, and following situations exist: particular size required for spawning, Mexico. Because we do not designate as (i) Data sufficient to perform required alkaline soil for seed germination, critical habitat areas outside the United analyses are lacking, or protective cover for migration, or States (50 CFR 424.12(g)), we did not (ii) The biological needs of the species susceptibility to flooding or fire that examine areas on the Mexican side of are not sufficiently well known to maintains necessary early-successional the Rio Grande; the critical habitat identify any area that meets the habitat characteristics. Biological extends only as far into the river as the definition of ‘‘critical habitat.’’ features might include prey species, United States’ jurisdictional boundary, When critical habitat is not forage grasses, specific kinds or ages of i.e., to the middle of the river. However, determinable, the Act allows the Service trees for roosting or nesting, symbiotic conservation of habitat that meets the an additional year to publish a critical fungi, or a particular level of nonnative conditions described in this designation habitat designation (16 U.S.C. species consistent with conservation in Mexico may be important to recovery 1533(b)(6)(C)(ii)). of the species. needs of the listed species. At the time of our August 10, 2016, The features may also be Prudency Determination proposed rule to list the species, we combinations of habitat characteristics found that critical habitat was not and may encompass the relationship Section 4(a)(3) of the Act, as determinable due to insufficient between characteristics or the necessary amended, and implementing regulations knowledge of the biological needs of the amount of a characteristic needed to (50 CFR 424.12), require that, to the species. We have continued to review support the life history of the species. In maximum extent prudent and the available information related to the considering whether features are determinable, the Secretary shall Texas hornshell and newly acquired essential to the conservation of the designate critical habitat at the time the information necessary to perform this species, the Service may consider an species is determined to be an assessment, and we reviewed the appropriate quality, quantity, and endangered or threatened species. Our available information pertaining to the spatial and temporal arrangement of regulations (50 CFR 424.12(a)(1)) state biological needs of the species and habitat characteristics in the context of that the Secretary may, but is not habitat characteristics where this the life-history needs, condition, and required to, determine that a species is located. We examined status of the species. These designation would not be prudent in the collection reports and occupancy characteristics include, but are not following circumstances: models for the Texas hornshell limited to space for individual and (i) The species is threatened by taking (Randklev et al. 2017, entire). population growth and for normal or other human activity and Additionally, we prepared a draft behavior; food, water, air, light, identification of critical habitat can be economic analysis. This and other minerals, or other nutritional or expected to increase the degree of such information represent the best scientific physiological requirements; cover or threat to the species; data available and led us to conclude shelter; sites for breeding, reproduction, that the designation of critical habitat is or rearing (or development) of offspring; (ii) The present or threatened determinable for the Texas hornshell. and habitats that are protected from destruction, modification, or disturbance. curtailment of a species’ habitat or range Physical or Biological Features is not a threat to the species, or threats In accordance with section 3(5)(A)(i) Space for Individual and Population to the species’ habitat stem solely from of the Act and regulations at 50 CFR Growth and for Normal Behavior causes that cannot be addressed through 424.12(b), in determining which areas Most freshwater mussels, including management actions resulting from within the geographical area occupied Texas hornshell, are found in consultations under section 7(a)(2) of by the species at the time of listing to aggregations, called mussel beds, that the Act; designate as critical habitat, we consider vary in size from about 50 to greater (iii) Areas within the jurisdiction of the physical or biological features that than 5,000 square meters (m2), separated the United States provide no more than are essential to the conservation of the by stream reaches in which mussels are negligible conservation value, if any, for species and which may require special absent or rare (Vaughn 2012, p. 983). a species occurring primarily outside management considerations or Texas hornshell larvae (called glochidia) the jurisdiction of the United States; protection. The regulations at 50 CFR are parasites that must attach to a host (iv) No areas meet the definition of 424.02 define ‘‘physical or biological fish (generally river carpsucker critical habitat; or features essential to the conservation of (Carpiodes carpio), grey redhorse the species’’ as the features that occur in (Moxostoma congestum), and red shiner (v) The Secretary otherwise specific areas and that are essential to (Cyprinella lutrensis)). A population of determines that designation of critical support the life-history needs of the Texas hornshell incorporates more than habitat would not be prudent based on species, including but not limited to, one mussel bed; it is the collection of the best scientific data available. water characteristics, soil type, mussel beds within a stream reach We did not identify any of the factors geological features, sites, prey, between which infested host fish may above to apply to the Texas hornshell. vegetation, symbiotic species, or other travel, allowing for ebbs and flows in Therefore, we find designation of features. A feature may be a single mussel bed density and abundance over critical habitat is prudent for the habitat characteristic, or a more time throughout the population’s species. complex combination of habitat occupied reach. Therefore, resilient

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Texas hornshell populations must salinity levels greater than 4 ppt (a) Flowing water at rates high enough occupy stream reaches long enough so (Blakeslee et al. 2013, p. 2851) to support clean-swept substrate but not that stochastic events that affect The release of pollutants into streams so high as to dislodge individuals; individual mussel beds do not eliminate from point and nonpoint sources have (b) Crevices beneath boulders, the entire population. Repopulation by immediate impacts on water quality shelves, and within undercut banks infested host fish from other mussel conditions and may make environments with seams of fine sediment; beds within the reach can allow the unsuitable for habitation by mussels. (c) River carpsucker, red shiner, and population to recover from these events. Early life stages of freshwater mussels gray redhorse present; and Longer stream reaches are more likely to are some of the most sensitive (d) Water quality parameters within support populations of Texas hornshell organisms of all species to ammonia and the following ranges: into the future than shorter stream copper (Naimo 1995, pp. 351–352; (i) Salinity below 0.9 ppt; (ii) Ammonia below 0.7 mg/L; reaches. Therefore, we determine that Augsperger et al. 2007, p. 2025). (iii) Low levels of contaminants; and long stream reaches are an important Additionally, sublethal effects of component of a riverine system with (iv) Dissolved oxygen levels within contaminants over time can result in substrate greater than 1.3mg/L. habitat to support all life stages of Texas reduced feeding efficiency, reduced hornshell. growth, decreased reproduction, Special Management Considerations or Texas hornshell need flowing water changes in enzyme activity, and Protection for survival. They are not found in lakes behavioral changes to all mussel life When designating critical habitat, we or in pools without flow, or in areas that stages. Even wastewater discharges with assess whether the specific areas within are regularly dewatered. River reaches low ammonia levels have been shown to the geographical area occupied by the with continuous flow support all life negatively affect mussel populations. species at the time of listing contain stages of Texas hornshell, while those Therefore, we determine that stream features that are essential to the with little or no flow do not. Flow rates reaches with the following water quality conservation of the species and which needed by the species will vary parameters are suitable for Texas may require special management depending on river size, location, and hornshell: considerations or protection. The substrate type. • Low salinity (less than 0.9 ppt) features essential to the conservation of Additionally, Texas hornshell occur • Low ammonia (less than 0.7 mg/L) this species may require special in flow refuges such as crevices, • Low levels of contaminants management considerations or undercut riverbanks, travertine shelves, protection to reduce the following • Dissolved oxygen levels within and large boulders. These refuges must threats: Increased fine sediment, water substrate greater than 1.3 mg/L. have seams of clay or other fine quality impairment, loss of flowing sediments within which the mussels Sites for Development of Offspring water, and barriers to fish movement. may anchor, but not so much excess Management activities that could sediment that the mussels are As discussed above, Texas hornshell ameliorate these threats and protect the smothered. Those areas with clean- larvae are parasites that must attach to integrity of the stream ecosystem swept substrate (substrate not covered a host fish to develop into juvenile include restoring or maintaining the in sediment) with seams of fine mussels. Texas hornshell primarily use natural hydrology of the stream, sediments in crevices are suitable Texas river carpsucker, gray redhorse, and red removing livestock from Texas hornshell habitat, as well as habitat for shiner as hosts. The river carpsucker hornshell habitats, preventing chemical their host fish. and red shiner are widespread spills, and appropriately maintaining throughout the Texas hornshell’s Physiological Requirements: Water bridges and other stream crossings to occupied range (Hubbs 1990, pp. 90–91; limit sediment input. Quality Requirements Levine et al. 2012, p. 1857). The Freshwater mussels, as a group, are presence of these fish species, either Criteria Used To Identify Critical sensitive to changes in water quality singly or in combination, supports the Habitat parameters such as dissolved oxygen, life-history needs of the Texas As required by section 4(b)(2) of the salinity, ammonia, and pollutants. hornshell. Act, we use the best scientific data Habitats with appropriate levels of these Summary of Essential Physical or available to designate critical habitat. In parameters are considered suitable, Biological Features accordance with the Act and our while those habitats with levels outside implementing regulations at 50 CFR of the appropriate ranges are considered We derive the specific physical or 424.12(b), we review available less suitable. We have used information biological features essential to the information pertaining to the habitat available for other species of freshwater conservation of the Texas hornshell requirements of the species and identify mussels to inform the needs of Texas from studies of this species’ habitat, specific areas within the geographical hornshell. Juvenile freshwater mussels ecology, and life history as described area occupied by the species at the time are particularly susceptible to low below. Additional information can be of listing and any specific areas outside dissolved oxygen levels. Juveniles will found in the final listing rule published the geographical area occupied by the reduce feeding behavior when dissolved in the Federal Register on February 9, species to be considered for designation oxygen is between 2–4 milligrams per 2018 (83 FR 5720), and the Species as critical habitat. We are not currently liter (mg/L), and mortality has been Status Assessment for the Texas proposing to designate any areas outside shown to occur at dissolved oxygen Hornshell (Service 2018, entire). We the geographical area occupied by the levels below 1.3 mg/L. Additionally, have determined that the following species at the time of listing in February Texas hornshell will die at salinity physical or biological features are 2018. levels of 7 parts per thousand (ppt) for essential to the conservation of the The SSA report contains much of the more than several weeks (Lang 2001, pp. Texas hornshell: information used to identify critical 10–11). Juvenile mussels of other A riverine system with habitat to habitat for Texas hornshell, which species have been shown to experience support all life stages of the Texas includes existing State recovery plans, complete mortality after 7 days at hornshell, which includes: numerous survey reports on streams

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throughout the species’ range, and was a change to unsuitable parameters the physical or biological features in the museum records of historical locations (e.g., water quality, bedrock substrate) adjacent critical habitat. (Service 2018). were used to mark the start or endpoint We are proposing for designation of of a stream segment proposed for Areas Occupied at the Time of Listing critical habitat river miles that we have designation. Critical habitat stream determined were occupied at the time of The proposed critical habitat segments were then mapped using listing and contain one or more of the designation does not include all streams ArcMap version 10 (Environmental physical or biological features that are known to have been occupied by the Systems Research Institute, Inc.), a essential to support life-history species historically; instead, it focuses Geographic Information Systems processes of the species. on occupied streams within the program. historical range that have retained the The areas proposed for designation as The critical habitat designation is necessary physical and biological critical habitat provide sufficient stream defined by the maps, as modified by any features (PBFs) that will allow for the habitat for adult Texas hornshell, as accompanying regulatory text, presented maintenance and expansion of existing well as for the habitat needs for at the end of this document in the rule populations. The following streams juveniles and the fish species that serve portion. We include more detailed meet the definition of areas occupied by as hosts for the Texas hornshell’s information on the boundaries of the the species at the time of listing: Black parasitic larvae. In general, the PBFs of critical habitat designation in the River, Delaware River, Pecos River, critical habitat are contained within the preamble of this document. We will Devils River, and Rio Grande. No riverine ecosystem formed by the make the coordinates or plot points or developed areas occur within the channel at bankfull stage. Texas both on which each map is based proposed designation except for road hornshell use the riverine ecosystem for available to the public on http:// crossings of streams, which do not feeding, breeding, and sheltering. www.regulations.gov at Docket No. remove the suitability of these areas for When determining proposed critical FWS–R2–ES–2017–0030, on our this species, because habitat is still habitat boundaries, we made every internet site (https://www.fws.gov/ present. effort to avoid including developed southwest/es/TexasCoastal/), and at the In summary, for areas proposed as areas such as lands covered by field office responsible for the critical habitat, we delineated critical buildings, pavement, and other designation (see FOR FURTHER habitat unit boundaries using the structures because such lands lack INFORMATION CONTACT above). following criterion: Evaluate habitat physical or biological features necessary Proposed Critical Habitat Designation suitability of stream segments within for the Texas hornshell. The scale of the the geographic area occupied at the time maps we prepared under the parameters We are proposing to designate 463.6 of listing, and delineate those segments for publication within the Code of mi (745.9 km) in five units as critical that contain some or all of the PBFs to Federal Regulations may not reflect the habitat for Texas hornshell. The critical support life-history functions essential exclusion of such developed lands. Any habitat areas we describe below for conservation of the species. such lands inadvertently left inside constitute our current best assessment of As a final step, we evaluated those critical habitat boundaries shown on the areas that meet the definition of critical occupied stream segments identified maps of this proposed rule have been habitat for Texas hornshell. The five through the above analysis and refined excluded by text in the proposed rule areas we propose as critical habitat are: the starting and ending points by and are not proposed for designation as (1) Pecos Tributary Unit; (2) Pecos River evaluating the presence or absence of critical habitat. Therefore, if the critical Unit; (3) Devils River Unit; (4) Rio appropriate PBFs. We selected upstream habitat is finalized as proposed, a Grande—Lower Canyons Unit; and (5) and downstream cutoff points to omit Federal action involving these lands Rio Grande—Laredo Unit. Table 1 areas that are highly degraded and are would not trigger section 7 consultation shows the occupancy of the units, the not likely to support the Texas with respect to critical habitat and the land ownership, and approximate areas hornshell. For example, permanently requirement of no adverse modification of the proposed designated areas for the dewatered areas or areas in which there unless the specific action would affect Texas hornshell.

TABLE 1—OCCUPANCY, LAND OWNERSHIP, AND SIZE OF TEXAS HORNSHELL PROPOSED CRITICAL HABITAT UNITS AND SUBUNITS [BLM = Bureau of Land Management; NGO = non-governmental organization]

Occupancy at time of Unit Subunit listing Current occupancy Riparian ownership Area

1—Pecos Tributary .... 1a—Black River ...... Occupied ...... Occupied ...... Private ...... 9.7 mi (15.6 km). 1b—Delaware River .. Occupied ...... Occupied ...... BLM, Private ...... 31.1 mi (50.0 km). 2—Pecos River ...... Occupied ...... Occupied ...... Private, Federal, 85.7 mi (137.9 km). NGO. 3—Devils River ...... Occupied ...... Occupied ...... Federal, Private, 33.0 mi (53.1 km). NGO, State. 4—Rio Grande— 4a—Lower Canyons Occupied ...... Occupied ...... Federal, State ...... 66.7 mi (107.3 km). Lower Canyons. Reach. 4b—Langtry Reach ... Occupied ...... Occupied ...... Private, Federal ...... 46.5 mi (74.8 km). 5—Rio Grande—La- 5a—Eagle Pass Occupied ...... Occupied ...... Private, City, Tribal ... 138.7 mi (223.2 km). redo. Reach. 5b—Laredo Reach .... Occupied ...... Occupied ...... Private, City ...... 52.2 mi (84.0 km).

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We present brief descriptions of all in Culberson County, Texas, and Eddy hornshell in the Pecos River as recently units, and reasons why they meet the County, New Mexico. Texas hornshell as 2016, along with the conclusion that definition of critical habitat for Texas were historically known from dead other members of the species were hornshell, below. shells found within this subunit; the likely present at that time, allows us to species was likely extirpated due to lack conclude that the Pecos River Unit was Unit 1: Pecos Tributary Unit of water. Habitat improvements occupied at the time of listing. This unit Subunit 1a: Black River: Subunit 1a undertaken by the Bureau of Land contains some of the PBFs essential to consists of 15.6 km (9.7 mi) in private Management (BLM) resulted in the conservation of Texas hornshell, ownership in Eddy County, New perennial flow through the rehabilitated such as flowing water and adequate Mexico. The Texas hornshell occupies section of the Delaware River (BLM crevices, but salinity is relatively high the entire stream in this subunit, and 2005, p. 1). A total of 126 adult Texas in this unit, compromising water the subunit contains all of the PBFs hornshell were reintroduced to the river quality. Special management may be essential to the conservation of Texas in New Mexico in 2014 and 2015. The necessary to improve water quality in hornshell. The watershed of the Black reintroduced adults were recaptured this reach. River is characterized by rural ranching alive and the females were gravid Unit 3: Devils River Unit and farming, as well as oil and gas (brooding larvae) in 2016, indicating development. Diverted river water and preliminary success. A spill of 11 This unit consists of 53.1 km (33.0 mi) groundwater are used for irrigation of barrels of oil and 18,000 barrels of water of the Devils River in Val Verde County, farms and ranches as well as hydraulic that has been collected as a byproduct Texas. Riparian lands are primarily in fracturing by oil and gas development of oil and gas production occurred private ownership, including The operations (Bren School of upstream of the reintroduced Nature Conservancy (TNC), and both the Environmental Management 2014, pp. individuals in August 2017; the effects Texas Parks and Wildlife Department 32, 130). Additionally, only a few roads of this spill and the subsequent flooding (TPWD) and the Federal Government cross the Black River at low-water has resulted in only two of the owns portions of these lands. Texas crossings; therefore, traffic, including reintroduced individuals still remaining hornshell are historically known from local and industrial, is concentrated in in the Delaware River. The New Mexico the Devils River and currently occupy these areas. The relatively short length Department of Game and Fish plan to the unit. The Devils River represents a of this reach renders the population continue their reintroduction efforts to relatively intact watershed, with no more susceptible to stochastic events. ensure a diverse, reproducing dams, little development, and much of Consequently, special management may population persists in the river; it under conservation management. be necessary to ensure perennial flow in successful freshwater mussel Texas hornshell sites are located on the river, prevent contaminant spills, reintroductions typically require Dolan Falls Preserve, which is 4,800 and reduce livestock access to the river. multiple years of effort. Riparian acres (ac) (1,943 hectares (ha)) owned by The Service has collaborated with ownership consists of the BLM and TNC, as well as an additional 13,722 ac water users, oil and gas developers, private landowners. The BLM helped (5,553 ha) managed under a landowners, and other partners to restore perennial flow to the river conservation easement. TNC also owns develop a Candidate Conservation through riparian management, and now Nix 2 Ranch (87,000 ac (35,209 ha)), and Agreement (CCA) and Candidate the reach contains all of the PBFs TPWD owns the Devils River State Conservation Agreements with essential to the conservation of Texas Natural Area (37,000 ac (15,000 ha)), Assurances (CCAAs) for the species on hornshell. resulting in conservation management State, Federal, and private lands. The The Delaware River is included in the of much of the land along the river (TNC purpose of these agreements is to CCA/CCAA described in Subunit 1a; 2004, p. 9; TPWD 2016, p. 1). The PBFs provide voluntary conservation that therefore, we are considering it for essential to the conservation of Texas would reduce threats to the species exclusion under section 4(b)(2) of the hornshell are present in the Devils while improving physical habitat and Act. River. Special management may be water quality. The key conservation necessary to maintain instream flows in measures in the agreements are Unit 2: Pecos River Unit the river. designed to limit oil and gas This unit consists of 137.9 km (85.7 development to areas outside of the mi) in private, non-governmental Unit 4: Rio Grande—Lower Canyons Black and Delaware River floodplains, organization (NGO), and Federal Subunit 4a: Lower Canyons Reach: minimize erosion, and maintain ownership of the Pecos River in Val This subunit consists of 107.3 km (66.7 minimum water flows in the rivers. Verde and Terrell Counties, Texas. This mi) of occupied habitat on the U.S. side Along with these measures, the partners unit is occupied. Three live Texas of the Rio Grande in Terrell and to the agreement are evaluating hornshell were collected from the Pecos Brewster Counties, Texas. Most of this alternatives to the multiple low water River Unit in 2016, which, based on reach is part of the Rio Grande Wild and crossings on the Black River. Partners species survey efforts, indicates several Scenic River, owned by the United are considering alternate crossing other living Texas hornshell were likely States and managed by the National locations that could include bridges in the unit at that time. In addition, the Park Service. A small portion of the designed to allow host fishes to pass 2016 collection resulted in numerous subunit is owned by the State of Texas. through in addition to decreasing shells of the Texas hornshell (Bosman et The PBFs essential to the conservation potential contamination events. We are al. 2016, p. 6; Randklev et al. 2016, p. of Texas hornshell are present in this considering excluding the subunit 9), which is further evidence that subunit. It was designated a National under section 4(b)(2) of the Act if these additional members of the species were Wild and Scenic River in 1978 (Garrett agreements are implemented in a in the Pecos River. The live specimens and Edwards 2004, p. 396), which manner sufficient to defray the need for collected in 2016 were very old, but we affords some protection from Federal additional special management. have no indication that they were no development projects, but does not limit Subunit 1b: Delaware River: Subunit longer occupying the Pecos River at the State, local, or private development 1b consists of 50.0 km (31.1 mi) of time of listing. The direct evidence of (National Wild and Scenic Rivers occupied habitat in the Delaware River multiple living specimens of Texas System 2016, p. 1). Special management

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may be necessary to maintain instream area at the time of listing. This reach species or result in the destruction or flows in the river. includes all of the PBFs necessary to adverse modification of designated Subunit 4b: Langtry Reach: This support the continued existence of the critical habitat of such species. In subunit consists of 74.8 km (46.5 mi) of species. Additionally, the hydrological addition, section 7(a)(4) of the Act the U.S. side of the Rio Grande in connection with Subunit 5b, which requires Federal agencies to confer with Terrell and Val Verde Counties, Texas, contains the largest known population the Service on any agency action that is most of which is also owned and of Texas hornshell, allows for host fish likely to jeopardize the continued managed by the National Park Service. movement between the subunits. existence of any species proposed to be A small portion of this subunit is in However, due to the lack of recent listed under the Act or result in the private ownership. This unit contains records, we are analyzing this subunit destruction or adverse modification of all of the PBFs and is connected to the against the second prong of the proposed critical habitat. known population of Texas hornshell in definition of critical habitat for We published a final regulation with Subunit 4a, but the remote nature of this unoccupied habitat out of an abundance a revised definition of destruction or reach has prevented surveys. There are of caution. If Subunit 5a is not adverse modification on August 27, no instream structures in Subunit 4b occupied, it would provide for needed 2019 (84 FR 44976). Destruction or that would impede water flow; the flow growth and expansion of the species in adverse modification means a direct or regime is the same as in Subunit 4a; and this portion of its historical range. The indirect alteration that appreciably the host fish may move between the longer the occupied reach, the more diminishes the value of critical habitat subunits freely. Based on this likely it is that the Texas hornshell as a whole for the conservation of a information, it is reasonable to conclude population can withstand stochastic listed species. that that the population in Subunit 4a events such as extreme flooding, If a Federal action may affect a listed is unlikely to stop at the most dewatering, or water contamination. species or its critical habitat, the downstream survey location; therefore, Therefore, Subunit 5a is essential for the responsible Federal agency (action we conclude this subunit is occupied. conservation of the species. agency) must enter into consultation However, due to the lack of recent The Rio Grande in this subunit is with us. Examples of actions that are surveys, we are analyzing this subunit heavily influenced by development subject to the section 7 consultation against the second prong of the along the Texas-Mexico border, and the process are actions on State, tribal, definition of critical habitat for river has a high sediment load in this local, or private lands that require a unoccupied habitat out of an abundance reach (Texas Clean Rivers Program Federal permit (such as a permit from of caution. If Subunit 4b is not, in fact, 2013, p. 9). Flows are regulated by the U.S. Army Corps of Engineers under occupied, it would provide for needed releases from Amistad Reservoir based section 404 of the Clean Water Act (33 growth and expansion of the species in on hydropower generation and water U.S.C. 1251 et seq.) or a permit from the this portion of its historical range. The deliveries for downstream irrigation Service under section 10 of the Act) or longer the occupied reach, the more needs (Texas Water Development Board that involve some other Federal action likely it is that the Texas hornshell 2016, p. 1). Special management may be (such as funding from the Federal population can withstand stochastic necessary to improve water quality and Highway Administration, Federal events such as extreme flooding, reduce sedimentation. Aviation Administration, or the Federal dewatering, or water contamination. Subunit 5b: Laredo Reach: This Emergency Management Agency). Therefore, Subunit 4b is essential for the subunit consists of 84.0 km (52.2 mi) of Federal actions not affecting listed conservation of the species. the U.S. side of the Rio Grande species or critical habitat, and actions Like Subunit 4a, this subunit is part upstream of Laredo in Webb County, on State, tribal, local, or private lands of the Rio Grande Wild and Scenic Texas, in private and city ownership. that are not federally funded, River, which affords some protection This subunit is occupied and contains authorized, or carried out by a Federal from Federal development projects, but the largest known Texas hornshell agency, do not require section 7 does not limit State, local, or private population (Randklev et al. 2015, p. 7). consultation. development (National Wild and Scenic Like subunit 5a, this subunit is heavily As a result of section 7 consultation, Rivers System 2016, p. 1). Special influenced by development along the we document compliance with the management may be necessary to Texas-Mexico border, and rapid human requirements of section 7(a)(2) through maintain instream flows in the river. population growth as well as our issuance of: (1) A concurrence letter for Federal Unit 5: Rio Grande—Laredo industrialization on the Mexican side of actions that may affect, but are not the river has stressed the existing Subunit 5a: Eagle Pass Reach: This likely to adversely affect, listed species wastewater treatment facilities, and Rio subunit consists of 223.2 km (138.7 mi) or critical habitat; or of the U.S. side of the Rio Grande from Grande water quality is impaired as a (2) A biological opinion for Federal Del Rio, Texas, to upstream of the result (Texas Clean Rivers Program actions that may affect and are likely to Laredo population of Texas hornshell in 2013, p. 7). All of the PBFs essential to adversely affect, listed species or critical Kinney and Maverick Counties, Texas. the conservation of Texas hornshell are habitat. This subunit is primarily privately found in this reach, although special When we issue a biological opinion owned, with small portions owned by management to improve water quality concluding that a project is likely to the City of Eagle Pass and the Kickapoo may be necessary. jeopardize the continued existence of a Tribe of Texas. We conclude that this Effects of Critical Habitat Designation listed species and/or destroy or reach was occupied at the time of adversely modify critical habitat, we listing. This conclusion is based on the Section 7 Consultation provide reasonable and prudent collection of two live individuals near Section 7(a)(2) of the Act requires alternatives to the project, if any are Del Rio between 2008 and 2011 Federal agencies, including the Service, identifiable, that would avoid the (Karatayev et al. 2015, p. 8). The to ensure that any action they fund, likelihood of jeopardy and/or immobility of Texas hornshell and the authorize, or carry out is not likely to destruction or adverse modification of continued presence of suitable habitat jeopardize the continued existence of critical habitat. We define ‘‘reasonable indicates the species remained in the any endangered species or threatened and prudent alternatives’’ (at 50 CFR

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402.02) as alternative actions identified regulation that designates critical Consideration of Impacts Under Section during consultation that: habitat, activities involving a Federal 4(b)(2) of the Act (1) Can be implemented in a manner action that may violate 7(a)(2) of the Act Section 4(b)(2) of the Act states that consistent with the intended purpose of by destroying or adversely modifying the Secretary shall designate and make the action, such designation. revisions to critical habitat on the basis (2) Can be implemented consistent Activities that the Services may, of the best available scientific data after with the scope of the Federal agency’s during a consultation under section taking into consideration the economic legal authority and jurisdiction, 7(a)(2) of the Act, find are likely to impact, national security impact, and (3) Are economically and destroy or adversely modify critical technologically feasible, and any other relevant impact of specifying habitat include, but are not limited to: (4) Would, in the Director’s opinion, any particular area as critical habitat. avoid the likelihood of jeopardizing the (1) Actions that would alter the The Secretary may exclude an area from continued existence of the listed species existing flow regime. Such activities critical habitat if he determines that the and/or avoid the likelihood of could include, but are not limited to, benefits of such exclusion outweigh the destroying or adversely modifying impoundment, water diversion, and benefits of specifying such area as part critical habitat. water withdrawal. These activities of the critical habitat, unless he Reasonable and prudent alternatives could eliminate or reduce the habitat determines, based on the best scientific can vary from slight project necessary for the growth and data available, that the failure to modifications to extensive redesign or reproduction of these mussels. designate such area as critical habitat relocation of the project. Costs (2) Actions that would significantly will result in the extinction of the associated with implementing a alter water chemistry or temperature. species. In making that determination, reasonable and prudent alternative are Such activities could include, but are the statute on its face, as well as the similarly variable. not limited to, release of chemicals, legislative history, are clear that the Regulations at 50 CFR 402.16 require biological pollutants, or heated effluents Secretary has broad discretion regarding Federal agencies to reinitiate formal into the surface water or connected which factor(s) to use and how much consultation on previously reviewed groundwater at a point source or by weight to give to any factor. actions. These requirements apply when dispersed release (non-point source). When identifying the benefits of the Federal agency has retained These activities could alter water inclusion for an area, we consider the discretionary involvement or control conditions to levels that are beyond the additional regulatory benefits that area over the action (or the agency’s tolerances of the mussels or their fish would receive due to the protection discretionary involvement or control is host and result in direct or cumulative from destruction of adverse authorized by law) and, subsequent to adverse effects to these individuals and modification as a result of actions with the previous consultation, we have their life cycles. a Federal nexus; the educational listed a new species or designated (3) Actions that would significantly benefits of mapping essential habitat for critical habitat that may be affected by increase sediment deposition within the recovery of the listed species; and any the Federal action, or the action has stream channel. Such activities could benefits that may result from a been modified in a manner that affects include, but are not limited to, excessive designation due to State or Federal laws the species or critical habitat in a way sedimentation from livestock grazing, that may apply to critical habitat. In the not considered in the previous road construction, channel alteration, case of the Texas hornshell, the benefits consultation. In such situations, Federal and other watershed and floodplain of critical habitat include public agencies sometimes may need to request disturbances. These activities could awareness of the presence of the Texas reinitiation of consultation with us, but eliminate or reduce the habitat hornshell and the importance of habitat the regulations also specify some necessary for the growth and protection, and, where a Federal nexus exceptions to the requirement to reproduction of these mussels and their exists, increased habitat protection for reinitiate consultation on specific land fish host by increasing the sediment the Texas hornshell due to protection management plans after subsequently deposition to levels that would from destruction or adverse listing a new species or designating new adversely affect their ability to complete modification of critical habitat. critical habitat. See the regulations for a their life cycles. When considering the benefits of description of those exceptions. exclusion, we consider, among other Exemptions things, whether exclusion of a specific Application of the ‘‘Adverse Application of Section 4(a)(3) of the Act area is likely to result in conservation or Modification’’ Standard the continuation, strengthening, or The key factor related to the Section 4(a)(3)(B)(i) of the Act (16 encouragement of partnerships. destruction or adverse modification U.S.C. 1533(a)(3)(B)(i)) provides that: Continued implementation of an determination is whether ‘‘The Secretary shall not designate as ongoing management plan that provides implementation of the proposed Federal critical habitat any lands or other equal to or more conservation than a action directly or indirectly alters the geographic areas owned or controlled by critical habitat designation would designated critical habitat in a way that the Department of Defense, or reduce the benefits of including that appreciably diminishes the value of the designated for its use, that are subject to specific area in the critical habitat critical habitat as a whole for the an integrated natural resources designation. conservation of the listed species. As management plan (INRMP) prepared We evaluate the existence of a discussed above, the role of critical under section 101 of the Sikes Act (16 conservation plan when considering the habitat is to support physical or U.S.C. 670a), if the Secretary determines benefits of inclusion. We consider a biological features essential to the in writing that such plan provides a variety of factors, including but not conservation of a listed species and benefit to the species for which critical limited to, whether the plan is finalized; provide for the conservation of the habitat is proposed for designation.’’ how it provides for the conservation of species. Section 4(b)(8) of the Act There are no Department of Defense the essential physical or biological requires us to briefly evaluate and lands within the proposed critical features; whether there is a reasonable describe, in any proposed or final habitat designation. expectation that the conservation

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management strategies and actions Federal listing as well as other Federal, are unoccupied by the species may contained in a management plan will be State, and local regulations). The require additional management or implemented into the future; whether baseline, therefore, represents the costs conservation efforts as a result of the the conservation strategies in the plan of all efforts attributable to the listing of critical habitat designation, thereby are likely to be effective; and whether the species under the Act (i.e., possibly incurring incremental the plan contains a monitoring program conservation of the species and its economic impacts. This screening or adaptive management to ensure that habitat incurred regardless of whether analysis combined with the information the conservation measures are effective critical habitat is designated). The ‘‘with contained in our IEM are what we and can be adapted in the future in critical habitat’’ scenario describes the consider our draft economic analysis of response to new information. incremental impacts associated the proposed critical habitat designation After identifying the benefits of specifically with the designation of for the Texas hornshell, and this inclusion and the benefits of exclusion, critical habitat for the species. The analysis is summarized in the narrative we carefully weigh the two sides to incremental conservation efforts and below. evaluate whether the benefits of associated impacts would not be Executive Orders 12866 and 13563 exclusion outweigh those of inclusion. expected without the designation of direct Federal agencies to assess the If our analysis indicates that the benefits critical habitat for the species. In other costs and benefits of available regulatory of exclusion outweigh the benefits of words, the incremental costs are those alternatives in quantitative (to the extent inclusion, we then determine whether attributable solely to the designation of feasible) and qualitative terms. exclusion would result in extinction of critical habitat, above and beyond the Consistent with the E.O. regulatory the species. If exclusion of an area from baseline costs. These are the costs we analysis requirements, our effects critical habitat will result in extinction, use when evaluating the benefits of analysis under the Act may take into we will not exclude it from the inclusion and exclusion of particular consideration impacts to both directly designation. areas from the final designation of and indirectly affected entities, where The final decision on whether to critical habitat should we choose to practicable and reasonable. If sufficient exclude any areas will be based on the conduct a discretionary section 4(b)(2) data are available, we assess to the best scientific data available at the time exclusion analysis. extent practicable the probable impacts of the final designation, including For this particular designation, we to both directly and indirectly affected information obtained during the developed an Incremental Effects entities. As part of our screening comment period and information about Memorandum (IEM) considering the analysis, we considered the types of the economic impact of designation. probable incremental economic impacts economic activities that are likely to Accordingly, we have prepared a draft that may result from this proposed occur within the areas likely affected by economic analysis concerning the designation of critical habitat. The the critical habitat designation. proposed critical habitat designation, information contained in our IEM was In our evaluation of the probable which is available for review and then used to develop a screening incremental economic impacts that may comment (see ADDRESSES). analysis of the probable effects of the result from the proposed designation of critical habitat for the Texas hornshell, Consideration of Economic Impacts designation of critical habitat for the Texas hornshell (Industrial Economics, first we identified, in the IEM dated Section 4(b)(2) of the Act and its Inc. 2019). December 5, 2016, probable incremental implementing regulations require that We began by conducting a screening economic impacts associated with the we consider the economic impact that analysis of the proposed designation of following categories of activities: (1) may result from a designation of critical critical habitat in order to focus our Federal lands management (National habitat. To assess the probable analysis on the key factors that are Park Service, Bureau of Land economic impacts of a designation, we likely to result in incremental economic Management); (2) roadway and bridge must first evaluate specific land uses or impacts. The purpose of the screening construction; (3) agriculture; (4) grazing; activities and projects that may occur in analysis is to filter out the geographic (5) groundwater pumping; (6) in-stream the area of the critical habitat. We then areas in which the critical habitat dams and diversions; (7) oil and gas must evaluate the impacts that a specific designation is unlikely to result in production; and (8) border protection. critical habitat designation may have on probable incremental economic impacts. We considered each industry or restricting or modifying specific land In particular, the screening analysis category individually. Additionally, we uses or activities for the benefit of the considers baseline costs (i.e., absent considered whether their activities have species and its habitat within the areas critical habitat designation) and any Federal involvement. Critical proposed. We then identify which includes probable economic impacts habitat designation generally will not conservation efforts may be the result of where land and water use may be affect activities that do not have any the species being listed under the Act subject to conservation plans, land Federal involvement; under the ESA, versus those attributed solely to the management plans, best management designation of critical habitat affects designation of critical habitat for this practices, or regulations that protect the only activities conducted, funded, particular species. habitat area as a result of the Federal permitted, or authorized by Federal The probable economic impact of a listing status of the species. The agencies. In areas where the Texas proposed critical habitat designation is screening analysis filters out particular hornshell is present, Federal agencies analyzed by comparing scenarios both areas of critical habitat that are already already are required to consult with the ‘‘with critical habitat’’ and ‘‘without subject to such protections and are, Service under section 7 of the Act on critical habitat.’’ The ‘‘without critical therefore, unlikely to incur incremental activities they fund, permit, or habitat’’ scenario represents the baseline economic impacts. Ultimately, the implement that may affect the species. for the analysis, which includes the screening analysis allows us to focus If we finalize this proposed critical existing regulatory and socio-economic our analysis on evaluating the specific habitat designation, consultations to burden imposed on landowners, areas or sectors that may incur probable avoid the destruction or adverse managers, or other resource users incremental economic impacts as a modification of critical habitat would be potentially affected by the designation result of the designation. The screening incorporated into the existing of critical habitat (e.g., under the analysis also assesses whether units that consultation process.

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In our IEM, we attempted to clarify modeled as occupied in the economic or municipalities. Activities we expect the distinction between the effects that analysis. In these areas, any actions that will be subject to consultations that may will result from the species being listed may affect the species or its habitat involve private entities as third parties and those attributable to the critical would also affect designated critical are residential and commercial habitat designation (i.e., difference habitat and it is unlikely that any development that may occur on private between the jeopardy and adverse additional conservation efforts would be lands. However, based on coordination modification standards) for the Texas recommended to address the adverse efforts with State and local agencies, the hornshell’s critical habitat. The Texas modification standard over and above cost to private entities within these hornshell has not been listed long those recommended as necessary to sectors is expected to be relatively enough for us to have conducted any avoid jeopardizing the continued minor (administrative costs of less than section 7 consultations. It has been our existence of the Texas hornshell. $10,000 per consultation effort) and experience that, for such species, it is Therefore, only administrative costs are would not be significant (exceed $100 more difficult to discern which expected in approximately 60 percent of million in a single year). conservation efforts are attributable to the proposed critical habitat The probable incremental economic the species being listed and which will designation. While this additional impacts of the Texas hornshell critical result solely from the designation of analysis will require time and resources habitat designation are expected to be critical habitat. However, the following by both the Federal action agency and limited to additional administrative specific circumstances in this case help the Service, we believe that in most effort as well as minor costs of to inform our evaluation: (1) The circumstances these costs would conservation efforts resulting from a essential physical or biological features predominantly be administrative in small number of future section 7 identified for critical habitat are the nature and would not exceed $89,000 in consultations. This is due to two factors: same features essential for the life a single year. (1) In proposed critical habitat stream requisites of the species and (2) any The remaining subunits (185.2 mi reaches that were analyzed as occupied actions that would result in sufficient (298.0) km, or 40 percent of the total by the species (60 percent), incremental harm or harassment to constitute proposed critical habitat designation) economic impacts of critical habitat jeopardy to the Texas hornshell would that were analyzed as unoccupied by designation, other than administrative also likely adversely affect the essential the species for the purposes of the costs, are unlikely; and (2) in proposed physical or biological features of critical economic analysis are essential for the areas that were analyzed as if they were habitat. The IEM outlines our rationale conservation of the species. In these unoccupied by the Texas hornshell (40 concerning this limited distinction areas, any conservation efforts or percent), few actions are anticipated between baseline conservation efforts associated probable impacts would be that will result in section 7 consultation and incremental impacts of the considered incremental effects or associated project modifications. At designation of critical habitat for this attributed to the critical habitat approximately $10,000 or less per species. This evaluation of the designation. Subunit 4b (Rio Grande– consultation, in order to reach the incremental effects has been used as the Lower Canyons, Langtry Reach) is very threshold of $100 million of incremental basis to evaluate the probable remote with little to no development, administrative impacts in a single year, incremental economic impacts of this and activities that could affect the Texas critical habitat designation would have proposed designation of critical habitat. hornshell or its habitat are not expected to result in more than 11,000 The proposed critical habitat to occur in these areas. We do not consultations in a single year. Thus, the designation for the Texas hornshell anticipate any projects because of how annual administrative burden is totals 463.6 mi (745.9 km) in five units, remote Subunit 4b is, as well as the lack unlikely to reach $100 million. all of which were occupied at the time of historical, current, or planned As we stated earlier, we are soliciting of listing. However, two subunits—4b activities in this area. Subunit 5a (Rio data and comments from the public on and 5a (comprising 40 percent of the Grande–Laredo, Eagle Pass Reach) has the draft economic analysis, as well as proposed critical habitat designation)— potential for projects to occur; however, all aspects of the proposed rule and our have few records of Texas hornshell and because this reach is upstream of amended required determinations. We are so remote that we do not believe occupied habitat, for large projects, may revise the proposed rule or listing the species made the public project modifications requested to avoid supporting documents to incorporate or aware of its presence in these areas. As adverse modification are likely to be the address information we receive during a result, we do not expect section 7 same as those that would be needed to the public comment period. In consultations to be initiated in these avoid jeopardizing the species in particular, we may exclude an area from areas until additional awareness is downstream, occupied critical habitat. critical habitat if we determine that the brought to these areas when they are For small projects that may affect benefits of excluding the area outweigh designated as critical habitat. Therefore, critical habitat in this reach, project the benefits of including the area, while all units of the proposed critical modifications would be the same as provided the exclusion will not result in habitat were occupied at the time of conservation measures currently the extinction of this species. listing, we conducted an economic included in best management practices Exclusions analysis that modeled Subunits 4b and under Clean Water Act section 404 5a as unoccupied so that we could more permits issued by the U.S. Army Corps Based on the information provided by accurately represent the anticipated of Engineers. Therefore, costs are entities seeking exclusion, as well as increase in public awareness and cost of unlikely to exceed $100 million in any any additional public comments project modifications when these areas single year and would not be significant, received, we will evaluate whether are designated as critical habitat. As a based on the definition of significance certain lands are appropriate for result, our economic effects analysis in E.O. 12866. exclusion from the final designation demonstrates the maximum economic The entities most likely to incur under section 4(b)(2) of the Act. If the effects of the critical habitat designation. incremental costs are parties to section analysis indicates that the benefits of All other subunits (besides the two 7 consultations, including Federal excluding lands from the final modeled as unoccupied) comprise 60 action agencies and, in some cases, third designation outweigh the benefits of percent of the designation and were parties, most frequently State agencies designating those lands as critical

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habitat, then the Secretary may exercise factors. Potential land use sectors that the probable incremental impact that his discretion to exclude the lands from may be affected by the Texas hornshell could result from the designation. If the the final designation. critical habitat designation include agency provides a reasonably specific We are considering whether to water diversion, impoundment repairs, justification, we will defer to the expert exclude Unit 1: Pecos Tributary Unit bridge and highway maintenance, oil judgment of DoD, DHS, or another under section 4(b)(2) of the Act from the and gas development, border protection, Federal agency as to: (1) Whether final critical habitat designation for the grazing, groundwater withdrawals, and activities on its lands or waters, or its Texas hornshell because of the agriculture. activities on other lands or waters, have conservation agreements discussed During the development of a final national-security or homeland-security earlier in this document. The Service designation, we will consider any implications; (2) the importance of those has collaborated with water users, oil additional economic impact information implications; and (3) the degree to and gas developers, landowners, and received through the public comment which the cited implications would be other partners to implement a CCA and period, and as such areas may be adversely affected in the absence of an CCAA for the Texas hornshell on State, excluded from the final critical habitat exclusion. In that circumstance, in Federal, and private lands in the Black designation under section 4(b)(2) of the conducting a discretionary section and Delaware River watersheds. The key Act and our implementing regulations at 4(b)(2) exclusion analysis, we will give conservation measures in the 50 CFR 424.19. great weight to national-security and agreements are designed to limit oil and Impacts on National Security and homeland-security concerns in gas development to areas outside of the Homeland Security analyzing the benefits of exclusion. Black and Delaware River floodplains, We are not considering or proposing minimize erosion in order to maintain Section 4(a)(3)(B)(i) of the Act may any lands for exclusions based on suitable substrate, and maintain not cover all Department of Defense national security impacts under section minimum water flows in the rivers. (DoD) lands or areas that pose potential 4(b)(2) of the Act in this proposed Along with these measures, the partners national-security concerns (e.g., a DoD critical habitat rule. We have to the agreement are evaluating installation that is in the process of coordinated with the DHS and will alternatives to the multiple low water revising its INRMP for a newly listed continue to do so during the crossings on the Black River to reduce species or a species previously not development of the final rule. U.S. the potential for river contamination. covered). If a particular area is not Customs and Border Protection Partners are considering alternate covered under section 4(a)(3)(B)(i), indicated that construction and crossing locations that could include national-security or homeland-security maintenance of boat ramps, sediment bridges designed to allow host fishes to concerns are not a factor in the process removal, and dam construction may be pass through in addition to decreasing of determining what areas meet the affected by the designation of critical the risk of contamination events. definition of ‘‘critical habitat.’’ The Pecos Tributary Unit consists of Nevertheless, when designating critical habitat for the Texas hornshell. We note two subunits, the Black River Subunit habitat under section 4(b)(2), the Service that Congress has provided to the (9.7 mi (15.6 km)) and the Delaware must consider impacts on national Secretary of Homeland Security a River Subunit (31.1 mi (50.0 km)). A security, including homeland security, number of authorities necessary to carry CCA and CCAA between the Service, on lands or areas not covered by section out the Department’s border security BLM, New Mexico State Land Office, 4(a)(3)(B)(i). Accordingly, we will mission. One of those authorities is and Center of Excellence has been always consider for exclusion from the found at section 102 of the Illegal completed for the Black and Delaware designation areas for which DoD, Immigration Reform and Immigrant Rivers in New Mexico and Texas. We Department of Homeland Security Responsibility Act of 1996, as amended are considering the exclusion of non- (DHS), or another Federal agency has (‘‘IIRIRA’’). In section 102(a) of IIRIRA, Federal lands covered by this plan that requested exclusion based on an Congress provided that the Secretary of provide for the conservation of the assertion of national-security or Homeland Security shall take such Texas hornshell. We are requesting homeland-security concerns. actions as may be necessary to install comments on the benefit to the Texas We cannot, however, automatically additional physical barriers and roads hornshell from the CCA/CCAA; exclude requested areas. When DoD, (including the removal of obstacles to however, at this time, we are not DHS, or another Federal agency requests detection of illegal entrants) in the proposing to exclude any area within exclusion from critical habitat on the vicinity of the United States border to the proposed critical habitat for the basis of national-security or homeland- deter illegal crossings in areas of high Texas hornshell. security impacts, it must provide a illegal entry into the United States. In However, we specifically solicit reasonably specific justification of an section 102(b) of IIRIRA, Congress comments on the inclusion or exclusion incremental impact on national security mandated the installation of additional of the Pecos Tributary Unit. that would result from the designation fencing, barriers, roads, lighting, Any other plans in development that of that specific area as critical habitat. cameras, and sensors on the southwest are submitted to us will be evaluated That justification could include border. Finally, in section 102(c) of and could result in the exclusion of demonstration of probable impacts, IIRIRA, Congress granted to the additional proposed critical habitat such as impacts to ongoing border- Secretary of Homeland Security the units from the final designation. security patrols and surveillance authority to waive all legal requirements activities, or a delay in training or that he determines are necessary to Exclusions Based on Economic Impacts facility construction, as a result of ensure the expeditious construction of Under section 4(b)(2) of the Act, we compliance with section 7(a)(2) of the barriers and roads authorized by section consider the economic impacts of Act. If the agency requesting the 102 of IIRIRA. On February 20, 2020, specifying any particular area as critical exclusion does not provide us with a the Secretary of Homeland Security habitat. In order to consider economic reasonably specific justification, we will issued waivers for legal requirements impacts, we prepared an analysis of the contact the agency to recommend that it covering border barrier activities economic impacts of the proposed provide a specific justification or directly in the vicinity of the Texas critical habitat designation and related clarification of its concerns relative to hornshell’s known range (85 FR 9794).

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Exclusions Based on Other Relevant comments) regarding this proposed rule. entities (i.e., small businesses, small Impacts While the public informational meeting organizations, and small government Under section 4(b)(2) of the Act, we will be an opportunity for dialogue with jurisdictions). However, no regulatory consider any other relevant impacts, in the Service, the public hearing is not: It flexibility analysis is required if the addition to economic impacts and is a forum for accepting formal verbal head of the agency certifies the rule will impacts on national security. We testimony. In the event there is a large not have a significant economic impact consider a number of factors including attendance, the time allotted for oral on a substantial number of small whether there are permitted statements may be limited. Therefore, entities. The SBREFA amended the RFA conservation plans covering the species anyone wishing to make an oral to require Federal agencies to provide a certification statement of the factual in the area such as habitat conservation statement at the public hearing for the basis for certifying that the rule will not plans, safe harbor agreements, or record is encouraged to provide a have a significant economic impact on CCAAs, or whether there are non- prepared written copy of their statement a substantial number of small entities. permitted conservation agreements and to us through the Federal eRulemaking Portal, or U.S. mail (see ADDRESSES, According to the Small Business partnerships that would be encouraged Administration, small entities include by designation of, or exclusion from, above). There are no limits on the length of written comments submitted to us. small organizations such as critical habitat. In addition, we look at independent nonprofit organizations; the existence of tribal conservation Anyone wishing to make an oral statement at the public hearing must small governmental jurisdictions, plans and partnerships and consider the including school boards and city and government-to-government relationship register before the hearing (https:// www.fws.gov/southwest/). The use of a town governments that serve fewer than of the United States with tribal entities. 50,000 residents; and small businesses We have been in contact with the virtual public hearing is consistent with our regulations at 50 CFR 424.16(c)(3). (13 CFR 121.201). Small businesses Kickapoo Traditional Tribe of Texas include manufacturing and mining during the development of this Required Determinations concerns with fewer than 500 proposed rule and will continue to do employees, wholesale trade entities so during the development of final Regulatory Planning and Review (Executive Orders 12866 and 13563) with fewer than 100 employees, retail critical habitat. We also consider any and service businesses with less than $5 social impacts that might occur because Executive Order 12866 provides that million in annual sales, general and of the designation. the Office of Information and Regulatory heavy construction businesses with less Affairs (OIRA) in the Office of Public Hearings than $27.5 million in annual business, Management and Budget will review all special trade contractors doing less than We have scheduled a public significant rules. OIRA has determined $11.5 million in annual business, and informational meeting and public that this rule is not significant. agricultural businesses with annual hearing on this proposed rule to Executive Order 13563 reaffirms the sales less than $750,000. To determine designate critical habitat for the Texas principles of E.O. 12866 while calling if potential economic impacts to these hornshell. We will hold the public for improvements in the nation’s small entities are significant, we informational meeting and public regulatory system to promote considered the types of activities that hearing on the date and at the times predictability, to reduce uncertainty, might trigger regulatory impacts under listed above under Public informational and to use the best, most innovative, this designation as well as types of meeting and public hearing in DATES. and least burdensome tools for project modifications that may result. In We are holding the public informational achieving regulatory ends. The general, the term ‘‘significant economic meeting and public hearing via the executive order directs agencies to impact’’ is meant to apply to a typical Zoom online video platform and via consider regulatory approaches that small business firm’s business teleconference so that participants can reduce burdens and maintain flexibility operations. attend remotely. For security purposes, and freedom of choice for the public The Service’s current understanding registration is required. To listen and where these approaches are relevant, of the requirements under the RFA, as view the meeting and hearing via Zoom, feasible, and consistent with regulatory amended, and following recent court listen to the meeting and hearing by objectives. E.O. 13563 emphasizes decisions, is that Federal agencies are telephone, or provide oral public further that regulations must be based required to evaluate the potential comments at the public hearing by on the best available science and that incremental impacts of rulemaking only Zoom or telephone, you must register. the rulemaking process must allow for on those entities directly regulated by For information on how to register, or if public participation and an open the rulemaking itself, and therefore, not you encounter problems joining Zoom exchange of ideas. We have developed required to evaluate the potential the day of the meeting, visit https:// this rule in a manner consistent with impacts to indirectly regulated entities. www.fws.gov/southwest/. Registrants these requirements. The regulatory mechanism through will receive the Zoom link and the which critical habitat protections are Regulatory Flexibility Act (5 U.S.C. 601 telephone number for the public realized is section 7 of the Act, which et seq.) informational meeting and public requires Federal agencies, in hearing. If applicable, interested Under the Regulatory Flexibility Act consultation with the Service, to ensure members of the public not familiar with (RFA; 5 U.S.C. 601 et seq.), as amended that any action authorized, funded, or the Zoom platform should view the by the Small Business Regulatory carried out by the Agency is not likely Zoom video tutorials (https:// Enforcement Fairness Act of 1996 to destroy or adversely modify critical support.zoom.us/hc/en-us/articles/ (SBREFA; 5 U.S.C. 801 et seq.), habitat. Therefore, under section 7, only 206618765-Zoom-video-tutorials) prior whenever an agency is required to Federal action agencies are directly to the public informational meeting and publish a notice of rulemaking for any subject to the specific regulatory public hearing. proposed or final rule, it must prepare requirement (avoiding destruction and The public hearing will provide and make available for public comment adverse modification) imposed by interested parties an opportunity to a regulatory flexibility analysis that critical habitat designation. present verbal testimony (formal, oral describes the effects of the rule on small Consequently, it is our position that

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only Federal action agencies will be mandate’’ includes a regulation that activities must ensure that their actions directly regulated by this designation. ‘‘would impose an enforceable duty will not adversely affect the critical There is no requirement under the RFA upon State, local, or tribal governments’’ habitat. Therefore, a Small Government to evaluate the potential impacts to with two exceptions. It excludes ‘‘a Agency Plan is not required. entities not directly regulated. condition of Federal assistance.’’ It also Takings—Executive Order 12630 Moreover, Federal agencies are not excludes ‘‘a duty arising from small entities. Therefore, because no participation in a voluntary Federal In accordance with E.O. 12630 small entities are directly regulated by program,’’ unless the regulation ‘‘relates (Government Actions and Interference this rulemaking, the Service certifies to a then-existing Federal program with Constitutionally Protected Private that, if promulgated, the proposed under which $500,000,000 or more is Property Rights), we have analyzed the critical habitat designation will not have provided annually to State, local, and potential takings implications of a significant economic impact on a tribal governments under entitlement designating critical habitat for the Texas substantial number of small entities. authority,’’ if the provision would hornshell in a takings implications In summary, we have considered ‘‘increase the stringency of conditions of assessment. The Act does not authorize whether the proposed designation assistance’’ or ‘‘place caps upon, or the Service to regulate private actions would result in a significant economic otherwise decrease, the Federal on private lands or confiscate private impact on a substantial number of small Government’s responsibility to provide property as a result of critical habitat entities. For the above reasons and funding,’’ and the State, local, or tribal designation. Designation of critical based on currently available governments ‘‘lack authority’’ to adjust habitat does not affect land ownership, information, we certify that, if accordingly. At the time of enactment, or establish any closures, or restrictions promulgated, the proposed critical these entitlement programs were: on use of or access to the designated habitat designation would not have a Medicaid; Aid to Families with areas. Furthermore, the designation of significant economic impact on a Dependent Children work programs; critical habitat does not affect substantial number of small business Child Nutrition; Food Stamps; Social landowner actions that do not require entities. Therefore, an initial regulatory Services Block Grants; Vocational Federal funding or permits, nor does it flexibility analysis is not required. Rehabilitation State Grants; Foster Care, preclude development of habitat Adoption Assistance, and Independent conservation programs or issuance of Energy Supply, Distribution, or Use— incidental take permits to permit actions Executive Order 13211 Living; Family Support Welfare Services; and Child Support that do require Federal funding or Executive Order 13211 (Actions Enforcement. ‘‘Federal private sector permits to go forward. However, Federal Concerning Regulations That mandate’’ includes a regulation that agencies are prohibited from carrying Significantly Affect Energy Supply, ‘‘would impose an enforceable duty out, funding, or authorizing actions that Distribution, or Use) requires agencies upon the private sector, except (i) a would destroy or adversely modify to prepare Statements of Energy Effects condition of Federal assistance or (ii) a critical habitat. A takings implications when undertaking certain actions. Oil duty arising from participation in a assessment has been completed and and gas leases occur within the voluntary Federal program.’’ concludes that this designation of watershed of both subunits in Unit 1: The designation of critical habitat critical habitat for Texas hornshell does Pecos Tributary Unit. We do not expect does not impose a legally binding duty not pose significant takings implications designation of critical habitat for the on non-Federal government entities or for lands within or affected by the Texas hornshell to significantly affect private parties. Under the Act, the only designation. the production under these leases regulatory effect is that Federal agencies Federalism—Executive Order 13132 because we anticipate most companies must ensure that their actions do not will participate in the voluntary destroy or adversely modify critical In accordance with E.O. 13132 conservation measures provided in the habitat under section 7. While non- (Federalism), this proposed rule does CCAA. Further, in our economic Federal entities that receive Federal not have significant Federalism effects. analysis, we did not find that the funding, assistance, or permits, or that A Federalism assessment is not designation of this proposed critical otherwise require approval or required. In keeping with Department of habitat will significantly affect energy authorization from a Federal agency for the Interior and Department of supplies, distribution, or use. Therefore, an action, may be indirectly impacted Commerce policy, we request this action is not a significant energy by the designation of critical habitat, the information from, and coordinated action, and no Statement of Energy legally binding duty to avoid development of this proposed critical Effects is required. destruction or adverse modification of habitat designation with, appropriate critical habitat rests squarely on the State resource agencies in New Mexico Unfunded Mandates Reform Act (2 Federal agency. Furthermore, to the and Texas. From a federalism U.S.C. 1501 et seq.) extent that non-Federal entities are perspective, the designation of critical In accordance with the Unfunded indirectly impacted because they habitat directly affects only the Mandates Reform Act (2 U.S.C. 1501 et receive Federal assistance or participate responsibilities of Federal agencies. The seq.), we make the following findings: in a voluntary Federal aid program, the Act imposes no other duties with (1) This rule will not produce a Unfunded Mandates Reform Act would respect to critical habitat, either for Federal mandate. In general, a Federal not apply, nor would critical habitat States and local governments, or for mandate is a provision in legislation, shift the costs of the large entitlement anyone else. As a result, the rule does statute, or regulation that would impose programs listed above onto State not have substantial direct effects either an enforceable duty upon State, local, or governments. on the States, or on the relationship tribal governments, or the private sector, (2) We do not believe that this rule between the national government and and includes both ‘‘Federal will significantly or uniquely affect the States, or on the distribution of intergovernmental mandates’’ and small governments because small powers and responsibilities among the ‘‘Federal private sector mandates.’’ governments will be affected only to the various levels of government. The These terms are defined in 2 U.S.C. extent that any programs having Federal designation may have some benefit to 658(5)–(7). ‘‘Federal intergovernmental funds, permits, or other authorized these governments because the areas

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that contain the features essential to the National Environmental Policy Act (42 mi) adjacent to the Rio Grande in the conservation of the species are more U.S.C. 4321 et seq.) Rio Grande–Eagle Pass Reach subunit. clearly defined, and the physical or It is our position that, outside the Using the criteria found in the Criteria biological features of the habitat jurisdiction of the U.S. Court of Appeals Used To Identify Critical Habitat necessary to the conservation of the for the Tenth Circuit, we do not need to section, we have determined that all of species are specifically identified. This prepare environmental analyses the areas proposed for designation on information does not alter where and pursuant to the National Environmental tribal lands are essential to the what federally sponsored activities may Policy Act (NEPA; 42 U.S.C. 4321 et conservation of the species. We will occur. However, it may assist these local seq.) in connection with designating seek government-to-government governments in long-range planning critical habitat under the Act. We consultation with these tribes (because these local governments no published a notice outlining our reasons throughout the proposal and longer have to wait for case-by-case for this determination in the Federal development of the final designation of section 7 consultations to occur). Register on October 25, 1983 (48 FR Texas hornshell critical habitat. Where State and local governments 49244). This position was upheld by the Clarity of the Rule require approval or authorization from a U.S. Court of Appeals for the Ninth Circuit (Douglas County v. Babbitt, 48 We are required by Executive Orders Federal agency for actions that may 12866 and 12988 and by the affect critical habitat, consultation F.3d 1495 (9th Cir. 1995), cert. denied 516 U.S. 1042 (1996)).] However, when Presidential Memorandum of June 1, under section 7(a)(2) would be required. 1998, to write all rules in plain While non-Federal entities that receive the range of the species includes States within the Tenth Circuit, such as that of language. This means that each rule we Federal funding, assistance, or permits, the Texas hornshell, under the Tenth publish must: or that otherwise require approval or Circuit ruling in Catron County Board of (1) Be logically organized; authorization from a Federal agency for Commissioners v. U.S. Fish and Wildlife (2) Use the active voice to address an action, may be indirectly impacted Service, 75 F.3d 1429 (10th Cir. 1996), readers directly; by the designation of critical habitat, the we undertake a NEPA analysis for legally binding duty to avoid (3) Use clear language rather than critical habitat designation. We invite jargon; destruction or adverse modification of the public to comment on the extent to critical habitat rests squarely on the (4) Be divided into short sections and which this proposed regulation may sentences; and Federal agency. have a significant impact on the human (5) Use lists and tables wherever environment, or fall within one of the Civil Justice Reform—Executive Order possible. 12988 categorical exclusions for actions that have no individual or cumulative effect If you feel that we have not met these In accordance with Executive Order on the quality of the human requirements, send us comments by one 12988 (Civil Justice Reform), the Office environment. We will complete our of the methods listed in ADDRESSES. To of the Solicitor has determined that the analysis, in compliance with NEPA, better help us revise the rule, your rule does not unduly burden the judicial before finalizing this proposed rule. comments should be as specific as system and that it meets the possible. For example, you should tell Government-to-Government requirements of sections 3(a) and 3(b)(2) us the numbers of the sections or Relationship With Tribes of the Order. We have proposed paragraphs that are unclearly written, designating critical habitat in In accordance with the President’s which sections or sentences are too accordance with the provisions of the memorandum of April 29, 1994 long, the sections where you feel lists or Act. To assist the public in (Government-to-Government Relations tables would be useful, etc. understanding the habitat needs of the with Native American Tribal References Cited species, the rule identifies the elements Governments; 59 FR 22951), Executive A complete list of references cited in of physical or biological features Order 13175 (Consultation and this rulemaking is available on the essential to the conservation of the Coordination With Indian Tribal internet at http://www.regulations.gov species. The designated areas of critical Governments), and the Department of and upon request from the Texas habitat are presented on maps, and the the Interior’s manual at 512 DM 2, we Coastal Ecological Services Field Office rule provides several options for the readily acknowledge our responsibility (see FOR FURTHER INFORMATION CONTACT). interested public to obtain more to communicate meaningfully with detailed location information, if desired. recognized Federal Tribes on a Authors government-to-government basis. In Paperwork Reduction Act of 1995 (44 accordance with Secretarial Order 3206 The primary authors of this proposed U.S.C. 3501 et seq.) of June 5, 1997 (American Indian Tribal rulemaking are the staff members of the Rights, Federal-Tribal Trust Texas Coastal Ecological Services Field This rule does not contain any new Responsibilities, and the Endangered Office. collections of information that require Species Act), we readily acknowledge List of Subjects in 50 CFR Part 17 approval by OMB under the Paperwork our responsibilities to work directly Reduction Act of 1995 (44 U.S.C. 3501 with tribes in developing programs for Endangered and threatened species, et seq.). This rule will not impose healthy ecosystems, to acknowledge that Exports, Imports, Reporting and recordkeeping or reporting requirements tribal lands are not subject to the same recordkeeping requirements, on State or local governments, controls as Federal public lands, to Transportation. individuals, businesses, or remain sensitive to Indian culture, and Proposed Regulation Promulgation organizations. An agency may not to make information available to tribes. conduct or sponsor, and a person is not There are tribal lands in Texas Accordingly, we propose to amend required to respond to, a collection of included in this proposed designation of part 17, subchapter B of chapter I, title information unless it displays a critical habitat. The Kickapoo Indian 50 of the Code of Federal Regulations, currently valid OMB control number. Reservation of Texas owns 1.3 km (0.8 as set forth below:

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PART 17—ENDANGERED AND Authority: 16 U.S.C. 1361–1407; 1531– Texas’’ under CLAMS to read as THREATENED WILDLIFE AND PLANTS 1544; and 4201–4245; unless otherwise follows: noted. § 17.11 Endangered and threatened ■ 1. The authority citation for part 17 ■ 2. Amend § 17.11(h), the List of wildlife. continues to read as follows: Endangered and Threatened Wildlife, by * * * * * revising the entry for ‘‘Hornshell, (h) * * *

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

******* Clams

******* Hornshell, Texas ...... Popenaias popeii ...... Wherever found ...... E 83 FR 5720, 2/9/2018; 50 CFR 17.95(f).CH

*******

* * * * * (i) Flowing water at rates high enough (4) Data layers defining map units ■ 3. In § 17.95, amend paragraph (f) by to support clean-swept substrate but not were created using U.S. Geological adding an entry for ‘‘Texas Hornshell so high as to dislodge individuals; Survey digital ortho-photo quarter- quadrangles, and critical habitat units Popenaias popeii),’’ after the entry for (ii) Crevices beneath boulders, were then mapped using Universal ‘‘Carolina Heelsplitter (Lasmigona shelves, and within undercut banks Transverse Mercator (UTM) Zone 15N decorata)’’, to read as follows: with seams of fine sediment; (iii) River carpsucker (Carpiodes coordinates. The maps in this entry, as § 17.95 Critical habitat—fish and wildlife. carpio), red shiner (Cyprinella modified by any accompanying regulatory text, establish the boundaries * * * * * lutrensis), and gray redhorse (Moxostoma congestum) present; and of the critical habitat designation. The (f) Clams and snails. coordinates or plot points or both on (iv) Water quality parameters within which each map is based are available * * * * * the following ranges: to the public at the Service’s internet Texas Hornshell (Popenaias popeii) (A) Salinity below 0.9 ppt; site, https://www.fws.gov/southwest/es/ (B) Ammonia below 0.7 mg/L; TexasCoastal/, at http:// (1) Critical habitat units are depicted (C) Low levels of contaminants; and www.regulations.gov in Docket No. for Eddy County, New Mexico, and in (D) Dissolved oxygen levels within FWS–R2–ES–2018–0021, and at the Brewster, Culberson, Kinney, Maverick, substrate >1.3mg/L. field office responsible for this Terrell, Val Verde, and Webb Counties, (3) Critical habitat does not include designation. You may obtain field office Texas, on the maps in this entry. manmade structures (such as buildings, location information by contacting one (2) Within these areas, the physical or aqueducts, runways, roads, and other of the Service regional offices, the biological features essential to the paved areas) and the land on which they addresses of which are listed at 50 CFR conservation of the Texas hornshell are located existing within the legal 2.2. consist of a riverine system that boundaries on [EFFECTIVE DATE OF (5) Note: Index map follows: includes: THE FINAL RULE]. BILLING CODE 4333–15–P

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Critical Habitat -c::::::, 0 25 50 75 Miles CJ State Boundaries Counties I I I I 0 25 50 75 l

(6) Unit 1: Pecos Tributary Unit, Eddy County, New Mexico, and is composed (13.2 km (8.2 mi)) and private (36.8 km County, New Mexico, and Culberson of lands in private ownership; Subunit (22.9 mi)) ownership. County, Texas. 1b (Delaware River Subunit) contains (ii) Map of Unit 1, Pecos Tributary (i) Unit 1 consists of two subunits: 50.0 km (31.1 mi) in Eddy County, New Unit, Eddy County, New Mexico, and Subunit 1a (Black River Subunit) Mexico, and Culberson County, Texas, Culberson County, Texas, follows: contains 15.6 km (9.7 mi) in Eddy and is composed of lands in Federal

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Texas Homshell Cnt1cal Habitat Unit 1 - Pecos Tributa1·y

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- Critical Habitat ---- Rivera ml..akes 0 4 8 12 Miles = Selected Roads I I I I County Boundaries 0 4 8 12 Koometers CJ CJ Slate Boundaries.

(7) Unit 2: Pecos River Unit, Val Federal (2.7 km (1.7 mi)), non- (ii) Map of Unit 2, Pecos River Unit, Verde and Terrell Counties, Texas. governmental organization (7.6 km (4.7 Val Verde and Terrell Counties, Texas, (i) Unit 2 consists of 137.9 km (85.7 mi)), and private (127.6 km (79.3 mi)) follows: mi) in Val Verde and Terrell Counties, ownership. Texas, and is composed of lands in

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' Crockett I' ,I I ' , $>-+-,: \ Terrell v~' 'I ~?~' , #:' t I , I I ,_' .. , ...... , , ) I l ,. J ~, J l I ' ' ' I' I I

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- Critical Habitat - - - - Rivers

0 6 9.Miles = Roads County Boundaries I I I I D 0 3.5 1 10.5 Kilometers c:J State Boundaries

(8) Unit 3: Devils River Unit, Val composed of lands in Federal (2.6 km (10.4 mi)), and private (32.2 km (20.0 Verde County, Texas. (1.6 mi)), State (1.6 km (1.0 mi)), non- mi)) ownership. (i) Unit 3 consists of 53.1 km (33.0 mi) governmental organization (16.7 km (ii) Map of Unit 3, Devils River Unit, in Val Verde County, Texas, and is Val Verde County, Texas, follows:

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Texas Homshell Critical Habitat Unit 3 - Devils River

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I I I I ' \ jTexasl Val Verde

- Critical Habitat ---- Rivecs ~lakes 2.5 5 7.5 Miles = Roads I I I I County Boundaries O 2.5 5 7.5 Kilometers CJ state Boundaries

(9) Unit 4: Rio Grande—Lower Terrell and Brewster Counties, Texas, Counties, Texas, and is composed of Canyons Unit, Terrell, Brewster, and Val and is composed of lands in State (7.1 lands in Federal (69.8 km (43.4 mi)) and Verde Counties, Texas. km (4.4 mi)), and Federal (100.3 km private (5.0 km (3.1 mi)) ownership. (i) Unit 4 consists of two subunits: (62.3 mi)) ownership; Subunit 4b (ii) Map of Unit 4, Rio Grande—Lower Subunit 4a (Lower Canyons Reach (Langtry Reach Subunit) contains 74.8 Canyons Unit, Terrell, Brewster, and Val Subunit) contains 107.3 km (66.7 mi) in km (46.5 mi) in Brewster and Val Verde Verde Counties, Texas, follows:

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Subunit4a: Subunit4b: Lower Canyons Reach Langtry Reach

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- CrilicatHabitat c:::t ---- Rivets = Roads 0 5: 10 15 Miles J;ig· Cities I I I I D County Boundaries 0 5 'ffi 15 Kilom&t&m c::J State Boundaries

(10) Unit 5: Rio Grande—Laredo Unit, and Maverick Counties, Texas, and is County, Texas, and is composed of Kinney, Maverick, and Webb Counties, composed of lands in city (0.8 km (0.5 lands in city (0.5 km (0.3 mi)) and Texas. mi)), Tribal (1.3 km (0.8 mi), and private private (83.5 km (51.9 mi)) ownership. (i) Unit 5 consists of two subunits: (221.1 km (137.4 mi)) ownership; (ii) Map of Unit 5, Rio Grande–Laredo Subunit 5a (Eagle Pass Reach Subunit) Subunit 5b (Laredo Reach Subunit) Unit, Kinney, Maverick, and Webb contains 223.2 km (138.7 mi) in Kinney contains 84.0 km (52.2 mi) in Webb Counties, Texas, follows:

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Maverick

Subunit Sa: Eagle Pass Reach Dimmit

!Nuevo Leon j MEXIC

Critical Habitat -Ii:=:) e = Roads 0 10 20 30 Miles 181 Cities I I I I D County Boundaries 0 10 20 30 Kilometers t::] State Boundaries

* * * * * Martha Williams, Principal Deputy Director, Exercising the Delegated Authority of the Director, U.S. Fish and Wildlife Service. [FR Doc. 2021–11966 Filed 6–9–21; 8:45 am] BILLING CODE 4333–15–C

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