[Federal Register Volume 86, Number 171 (Wednesday, September 8, 2021)]
[Rules and Regulations]
[Pages 50264-50287]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-19093]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-R4-ES-2018-0069; FF09E21000 FXES11110900000 212]
RIN 1018-BD36


Endangered and Threatened Wildlife and Plants; Endangered Species 
Status for Slenderclaw Crayfish and Designation of Critical Habitat

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), determine 
endangered species status under the Endangered Species Act of 1973, as 
amended (Act), for the slenderclaw crayfish (Cambarus cracens), a 
cryptic freshwater crustacean that is endemic to streams on Sand 
Mountain within the Tennessee River Basin in DeKalb and Marshall 
Counties, Alabama. This rule adds this species to the Federal List of 
Endangered and Threatened Wildlife. In addition, we designate 
approximately 78 river miles (126 river kilometers) in DeKalb and 
Marshall Counties, Alabama, as critical habitat for the species under 
the Act.

DATES: This rule is effective October 8, 2021.

ADDRESSES: This final rule is available on the internet at http://www.regulations.gov under Docket No. FWS-R4-ES-2018-0069 and at https://www.fws.gov/southeast/. Comments and materials we received, as well as 
supporting documentation we used in preparing this rule, are available 
for public inspection at http://www.regulations.gov under Docket No. 
FWS-R4-ES-2018-0069. Comments, materials, and documentation that we 
considered in this rulemaking will be available by appointment, during 
normal business hours at: U.S. Fish and Wildlife Service, Alabama 
Ecological Services Field Office (see For Further Information Contact).
    The coordinates or plot points or both from which the maps are 
generated are included in the administrative record for this critical 
habitat designation and are available at http://www.regulations.gov 
under Docket No. FWS-R4-ES-2018-0069, at https://www.fws.gov/southeast/
, and at the Alabama Ecological Services Field Office (see For Further 
Information Contact). Any additional tools or supporting information 
that we developed for this critical habitat designation will also be 
available at the Service website and Field Office set out above, and 
may also be included in the preamble and/or at http://www.regulations.gov.

FOR FURTHER INFORMATION CONTACT: William Pearson, Field Supervisor, 
U.S. Fish and Wildlife Service, Alabama Ecological Services Field 
Office, 1208-B Main Street, Daphne, AL 36526; telephone 251-441-5870. 
Persons who use a telecommunications device for the deaf (TDD) may call 
the Federal Relay Service at 800-877-8339.

SUPPLEMENTARY INFORMATION:

Executive Summary

    Why we need to publish a rule. Under the Act, a species may warrant 
protection through listing if it is endangered or threatened throughout 
all or a significant portion of its range. In addition, to the maximum 
extent prudent and determinable, we must designate critical habitat for 
any species that we determine to be an endangered or threatened species 
under the Act. Listing a species as an endangered or threatened species 
and designation of critical habitat can only be completed by issuing a 
rule.
    What this rule does. This rule will list the slenderclaw crayfish 
(Cambarus cracens) as an endangered species and will finalize the 
designation of critical habitat for the species under the Act. 
Accordingly, this rule revises part 17 of title 50 of the Code of 
Federal Regulations at 50 CFR 17.11 and 17.95.
    The basis for our action. Under the Act, we may determine that a 
species is an endangered or threatened species based on any of five 
factors: (A) The present or threatened destruction, modification, or 
curtailment of its habitat or range; (B) overutilization for 
commercial, recreational, scientific, or educational purposes; (C) 
disease or predation; (D) the inadequacy of existing regulatory 
mechanisms; or (E) other natural or manmade factors affecting its 
continued existence. We have determined that the slenderclaw crayfish 
is threatened by competition from a nonnative species (Factors A and E) 
and habitat degradation resulting from poor water quality (Factor A).
    Under section 4(a)(3) of the Act, if we determine that any species 
is an endangered or threatened species we must, to the maximum extent 
prudent and determinable, designate critical habitat. Under section 
4(b)(2) of the Act, the Secretary shall designate critical habitat on 
the basis of the best available scientific data after taking into 
consideration the economic impact, national security impact, and any 
other

[[Page 50265]]

relevant impact of specifying any particular area as critical habitat. 
Section 3(5)(A) of the Act defines critical habitat as (i) the specific 
areas within the geographical area occupied by the species, at the time 
it is listed, on which are found those physical or biological features 
(I) essential to the conservation of the species and (II) which may 
require special management considerations or protections; and (ii) 
specific areas outside the geographical area occupied by the species at 
the time it is listed, upon a determination by the Secretary that such 
areas are essential for the conservation of the species.
    Economic analysis. In accordance with section 4(b)(2) of the Act, 
we prepared a draft economic analysis of the impacts of designating 
critical habitat. We published an announcement of the completion of the 
draft and solicited public comments (83 FR 50582; October 9, 2018). We 
received no comments on the draft economic analysis. We adopt the draft 
economic analysis as final.
    Peer review and public comment. We sought comments from independent 
specialists to ensure that our designation is based on scientifically 
sound data, assumptions, and analyses. We invited these peer reviewers 
to comment on our species status assessment (SSA) report, which 
informed both the proposed rule and this final rule. We also considered 
all comments and information received from the public and peer 
reviewers during the comment period.

Supporting Documents

    We prepared an SSA report for the slenderclaw crayfish. Written in 
consultation with species experts, the SSA report represents the best 
scientific and commercial data available concerning the status of the 
slenderclaw crayfish, including the impacts of past, present, and 
future factors (both adverse and beneficial) affecting the species 
(Service 2019, entire). The SSA report underwent independent peer 
review by scientists with expertise in crayfish biology, habitat 
management, and stressors (factors negatively affecting the species) to 
the slenderclaw crayfish. The SSA report, the proposed rule, this final 
rule, and other materials relating to this rulemaking can be found on 
the Service's Southeast Region website at https://www.fws.gov/southeast/ and at http://www.regulations.gov under Docket No. FWS-R4-
ES-2018-0069.

Previous Federal Actions

    On October 9, 2018, we published in the Federal Register a proposed 
rule (83 FR 50582) to list the slenderclaw crayfish as a threatened 
species with provisions under section 4(d) of the Endangered Species 
Act of 1973, as amended (16 U.S.C. 1531 et seq.) and to designate 
critical habitat. Please refer to that proposed rule for a detailed 
description of all previous Federal actions concerning this species.

Background

    The slenderclaw crayfish is a relatively small, cryptic freshwater 
crustacean, with an average lifespan of 2 to 3 years, that is endemic 
to streams on Sand Mountain within the Tennessee River Basin in DeKalb 
and Marshall Counties, Alabama. Primarily due to the invasion of 
nonnative virile crayfish (Faxonius virilis) that prey upon and compete 
with the slenderclaw crayfish, in addition to habitat degradation 
resulting in poor water quality, the species' range is reduced with 
extirpation at some sites and low condition in both populations 
currently.
    Please refer to the October 9, 2018, proposed listing and 
designation of critical habitat rule for the slenderclaw crayfish (83 
FR 50582) and the SSA report for a full summary of species information. 
Both are available on the Service's Southeast Region website at https://www.fws.gov/southeast/ and at http://www.regulations.gov under Docket 
No. FWS-R4-ES-2018-0069.

Summary of Comments and Recommendations

    In the October 9, 2018, proposed listing and critical habitat rule 
(83 FR 50582), we requested that all interested parties submit written 
comments on the proposal by December 10, 2018. We also contacted 
appropriate Federal and State agencies, scientific experts and 
organizations, and other interested parties and invited them to comment 
on the proposal. A newspaper notice inviting general public comment was 
published in the Guntersville (Alabama) Advertiser Gleam on October 17, 
2018. We did not receive any requests for a public hearing. All 
substantive information provided during the comment period has either 
been incorporated directly into the SSA report or this final 
determination or is addressed below, as appropriate.

Peer Reviewer Comments

    In accordance with our joint policy on peer review published on 
July 1, 1994 (59 FR 34270), and our August 22, 2016, memorandum 
updating and clarifying the role of peer review of listing actions 
under the Act, we solicited the expert opinions from six knowledgeable 
individuals with scientific expertise that included familiarity with 
slenderclaw crayfish and its habitat, biological needs, and threats. We 
received responses from two peer reviewers.
    We reviewed all comments received from the peer reviewers for 
substantive issues and new information regarding the slenderclaw 
crayfish, and we updated the SSA report prior to the proposed rule. The 
peer reviewers generally concurred with our methods and conclusions and 
provided additional information, clarifications, and suggestions to 
improve the final SSA report. Peer reviewer comments were incorporated 
into the SSA report and this final rule as appropriate. In our response 
to peer reviewer comments, we only address issues that were not 
reflected in changes to the SSA report or this final rule.
    Comment: One peer reviewer suggested that we project increased 
variability in rainfall instead of change in annual mean precipitation 
in our future condition projections. The reviewer noted that one 
historic drought could potentially eliminate one of these populations, 
and we do not understand the effects of flooding on the slenderclaw 
crayfish. In addition, the reviewer noted that considering climate-
induced variability with urbanization could lead to a higher 
probability of occasional stream drying.
    Our response: Although we did not use a model to project increased 
variability in rainfall as the commenter suggested, in the SSA, we did 
account for increased variability in rainfall and the hydrological 
impacts from precipitation change in our future-scenario projections 
and predictions of the slenderclaw crayfish. To assess the future 
condition of slenderclaw crayfish, we projected how precipitation can 
change in order to understand potential future hydrologic impacts 
within the system. Based on this information, we developed future 
scenarios on the plausible range in the hydrologic impacts from 
precipitation change as well as other factors influencing the viability 
of the slenderclaw crayfish.

Public Comments

    We received 10 public comments on the proposed listing rule and 
critical habitat rule. Where commenters provided substantive comments 
or new information concerning the proposed listing and species-specific 
section 4(d) rule for the slenderclaw crayfish, we incorporated this 
information into the final SSA report and this final rule as 
appropriate.
    (1) Comment: One commenter expressed concern about the presence of 
the virile crayfish in slenderclaw

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crayfish habitat and provided additional information and references on 
research of the effects of virile crayfish on other crayfish species. 
The commenter noted the virile crayfish has been attributed to decline 
of other native crayfish species in rivers and streams in West 
Virginia, Idaho, Wyoming, and Utah.
    Our response: We appreciate the additional information and 
references provided regarding the virile crayfish effects to other 
native crayfish species. We incorporated the information from the 
additional studies of virile crayfish into the appropriate section of 
the SSA report (Service 2019, pp. 16-17). We further considered the 
additional information about the invasion of virile crayfish and what 
the impact is to the current condition of the slenderclaw crayfish. 
After further consideration of the invasion of virile crayfish, coupled 
with the low abundance of slenderclaw crayfish, we determined the risk 
of extinction for the slenderclaw crayfish is higher (see Determination 
of Slenderclaw Status, below) than we characterized in the proposal to 
list the slenderclaw crayfish as a threatened species. Based on the 
documented past expansion of the virile crayfish, current invasion and 
expansion into the slenderclaw crayfish's range in both populations 
will occur. Therefore, the slenderclaw crayfish is currently at risk of 
extinction as a result of the virile crayfish expansion. We reassessed 
the best available scientific and commercial data available regarding 
the slenderclaw crayfish to evaluate its status under the Act (see 
Determination of Slenderclaw Crayfish Status, below).
    (2) Comment: Several other commenters expressed their opinion that 
the Service should list the species as endangered, rather than 
threatened, and stated reasons including degradation of its habitat, 
inadequacy of existing regulatory mechanisms, small population size, 
competition with virile crayfish, and climate change. One commenter 
specifically identified kudzu (Pueraria montana), an invasive plant, as 
a current and future threat to the riparian habitat in the range of the 
slenderclaw crayfish. In addition, the commenter noted that degradation 
of habitat for the slenderclaw crayfish is ongoing despite existing 
regulatory mechanisms.
    Our response: When we evaluated the best available information, we 
concluded that kudzu was not a threat to the slenderclaw crayfish. 
Although we recognize that kudzu can alter habitat, this plant has not 
been documented to impact the slenderclaw crayfish. As to habitat 
degradation, as discussed under the Summary of Biological Status and 
Threats and Determination sections of the preamble of this final 
listing rule, we determined that existing regulatory mechanisms 
currently address the threat of habitat degradation. Other than 
identifying kudzu as a potential threat, the commenters did not provide 
any new information regarding current threats to the slenderclaw 
crayfish or its current status that was not already considered in the 
SSA report or proposed rule. However, as stated above under Our 
Response to (1) Comment, based on new information about the invasive 
virile crayfish, coupled with known information about slenderclaw 
crayfish abundance, we determined the slenderclaw crayfish meets the 
definition of an endangered species (see Determination of Slenderclaw 
Crayfish Status, below).
    (3) Comment: Two commenters stated that the slenderclaw crayfish 
has been extirpated from 80 percent of its historical range, citing 
information from a status survey for three rare crayfishes, including 
the slenderclaw crayfish (Kilburn et al. 2012, entire).
    Our response: As discussed in Kilburn et al. (2012, entire), the 
slenderclaw crayfish was only ever known to occur at five historical 
sites within two watersheds, Short and Town Creeks, and the authors did 
not find the slenderclaw crayfish outside these two watersheds. Since 
the publication of Kilburn et al. (2012, entire), recent surveys 
conducted in 2015 through 2017 identified the slenderclaw crayfish 
occurring at three new sites within this historical range. Although 
there is evidence of reduced abundance and presumed extirpation at four 
historical sites within this range, there are currently two populations 
of slenderclaw crayfish occurring across the range in Alabama, and the 
slenderclaw crayfish occurs within the two watersheds where it 
historically was known to occur. In short, at this time, the 
slenderclaw crayfish has not been extirpated from 80 percent of its 
historical range. Please refer to section 2.5 Range and Distribution in 
the SSA report for additional information on the historical and current 
range of the species.
    (4) Comment: The Tennessee Valley Authority (TVA) recommended that 
the planting of bare-root seedlings as a method to revegetate and 
stabilize streambanks be included in the 4(d) rule. TVA has found this 
method to be successful for establishing a diversity of vegetation 
within riparian zones.
    Our response: We agree that the planting of bare-root seedlings as 
a method to revegetate and stabilize streambanks would be beneficial to 
slenderclaw crayfish. However, in this final rule, the Service has 
determined that the slenderclaw crayfish meets the definition of an 
endangered species, and the Act does not allow issuance of a 4(d) rule 
for a species listed as endangered.

Summary of Changes From the Proposed Rule

    The final rule incorporates changes to our proposed listing rule 
and SSA Report based on the comments we received, as discussed in the 
Summary of Comments and Recommendations. Based on comments received and 
our further consideration of the invasion of virile crayfish coupled 
with low abundance of slenderclaw crayfish, we determined the risk of 
extinction is higher (see Determination, below) than we characterized 
in the proposal to list the slenderclaw crayfish as a threatened 
species (83 FR 50582; October 9, 2018). We reassessed our analysis and 
found that the documented expansion and invasion of the virile crayfish 
in the slenderclaw crayfish's range, along with additional information 
regarding impacts to other native crayfish species and known low 
abundance in both populations of the slenderclaw crayfish, places the 
slenderclaw crayfish at a high risk for extinction throughout its 
range. Thus, after evaluating the best available information and the 
Act's regulation and policies, we determined that the slenderclaw 
crayfish meets the definition of an endangered species, and such status 
is more appropriate than that of a threatened species as originally 
proposed. Because we determined that the slenderclaw crayfish meets the 
definition of an endangered species, a 4(d) rule is inapplicable; 
consequently, the proposed special rule under the authority of section 
4(d) of the Act was removed from the final rule. We received no 
substantive comments on the proposed critical habitat designation; 
accordingly, there are no changes in the final designation. Lastly, we 
made minor editorial and nonsubstantive corrections throughout the SSA 
report and this final rule.

Summary of Biological Status and Threats

    We completed a comprehensive assessment of the biological status of 
the slenderclaw crayfish and prepared an SSA report (Service 2019, 
entire), which provides a thorough account of the species' overall 
viability. Below, we summarize the key results and conclusions of the 
SSA report.
    To evaluate the current and future viability of the slenderclaw 
crayfish, we assessed the three conservation biology

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principles of resiliency, redundancy, and representation (the ``3 Rs'' 
described in detail in the SSA report) (Shaffer and Stein 2000, pp. 
306-310). Briefly, resiliency supports the ability of the species to 
withstand environmental and demographic stochasticity (for example, wet 
or dry, warm or cold years), redundancy supports the ability of the 
species to withstand catastrophic events (for example, droughts, large 
pollution events), and representation supports the ability of the 
species to adapt over time to long-term changes in the environment (for 
example, climate changes). In general, the more resilient and redundant 
a species is and the more representation it has, the more likely it is 
to sustain populations over time, even under changing environmental 
conditions. Using these principles, we identified the species' 
ecological requirements for survival and reproduction at the 
individual, population, and species levels, and described the 
beneficial and risk factors influencing the species' viability.
    The historical range of the slenderclaw crayfish included two known 
populations, Short and Town Creeks, in watersheds leading into the 
Tennessee River in Alabama. Within the Short Creek population, a total 
of 90 slenderclaw crayfish, with 56 of those being juveniles, were 
collected during the period 1970-1974 (Bouchard and Hobbs 1976, entire; 
Schuster 2017, unpublished data). Historically, only one crayfish was 
collected in the Town Creek population in the period 1970-1974 
(Bouchard and Hobbs 1976, entire; Schuster 2017, unpublished data). 
Surveys conducted from 2009 through 2017 have documented the 
slenderclaw crayfish within the same two populations, Short Creek 
(three sites in Shoal Creek) and Town Creek (one site in Bengis Creek 
and one site in Town Creek) (Kilburn et al. 2014, pp. 116-117; Bearden 
et al. 2017, pp. 17-18; Schuster 2017, unpublished data; Taylor 2017, 
unpublished data).
    Of the five historical sites, the slenderclaw crayfish is no longer 
found and is presumed extirpated at three sites in the Short Creek 
population (one site in Short Creek and two sites in Scarham Creek) and 
one site in the Town Creek population (one site in Bengis Creek) 
despite repeated survey efforts (Kilburn et al. 2014, pp. 116-117; 
Bearden et al. 2017, pp. 17-18; Schuster 2017, unpublished data; Taylor 
2017, unpublished data). Across current survey efforts from 2009 
through 2017, researchers collected 28 slenderclaw crayfish, including 
2 juveniles, within the Short Creek population, and 2 adults and 2 
juveniles from the Town Creek population. There are no actual 
historical or current population estimates for slenderclaw crayfish, 
and the abundance numbers (total number collected) reported are not 
population estimates.
    At the population level, the overall current condition in terms of 
resiliency was determined to be low for both Short Creek and Town Creek 
populations. We estimate that the slenderclaw crayfish currently has 
some adaptive potential (i.e., representation) due to the habitat 
variability features occurring in the Short Creek and Town Creek 
populations. The Short Creek population occurs in streams with 
predominantly large boulders and fractured bedrock, broader stream 
widths, and greater depths, and the Town Creek population occurs in 
streams with larger amounts of gravel and cobble, narrower stream 
widths, and shallower depths (Bearden 2017, pers. comm.). At present, 
the slenderclaw crayfish has two populations in low condition 
(resiliency) with habitat types that vary between populations. 
Therefore, given the variable habitat in which the slenderclaw crayfish 
occurs, the species may have some level of adaptive capacity. Given the 
low resiliency of both populations of the slenderclaw crayfish, current 
representation is reduced.
    The slenderclaw crayfish exhibits limited redundancy given its 
narrow range and that four out of five sites within the species' 
historical range are presumed extirpated. In addition, connectivity 
between the Short Creek and Town Creek populations is likely low, 
because both Short and Town Creek streams flow downstream into, and 
thus are separated by, Guntersville Lake. To date, no slenderclaw 
crayfish have been documented in impounded areas including Guntersville 
Lake. Multiple sites in the same population could allow recolonization 
following a catastrophic event (e.g., chemical spill) that may affect a 
large proportion of a population; however, given the species' limited 
redundancy and current low resiliency of both populations, it might be 
difficult to reestablish an entire population affected by a 
catastrophic event, as the connectivity between the two populations is 
low. Further, the currently occupied sites in the Short Creek 
population are in a single tributary, and one catastrophic event could 
impact this entire population.

Risk Factors for Slenderclaw Crayfish

    The Act directs us to determine whether any species is an 
endangered species or a threatened species because of any factors 
affecting its continued existence. Under section 4(a)(1) of the Act, we 
may list a species based on (A) The present or threatened destruction, 
modification, or curtailment of its habitat or range; (B) 
overutilization for commercial, recreational, scientific, or 
educational purposes; (C) disease or predation; (D) the inadequacy of 
existing regulatory mechanisms; or (E) other natural or manmade factors 
affecting its continued existence.
    We reviewed the potential risk factors (i.e., threats or stressors) 
that are affecting the slenderclaw crayfish now and are expected to 
affect it into the future. Because we have determined that the species 
is currently in danger of extinction throughout its range, in this 
final rule we will discuss in detail only those threats that we 
conclude are driving the current status and viability of the species. 
We have determined that competition from a nonnative species (Factors A 
and E), habitat degradation resulting from poor water quality (Factor 
A), and low abundance (Factor E) pose the largest risk to the current 
viability of the slenderclaw crayfish. Other potential stressors to the 
species--hydrological variation and alteration (Factors A and E), land 
use (Factor A), and scientific collection (Factor B)--are discussed in 
the SSA report and proposed rule. Currently existing regulatory 
mechanisms, such as regulations implemented under the Clean Water Act 
to protect water quality and instream habitat, address the habitat 
degradation threat to the slenderclaw crayfish. However, we also found 
that existing regulatory mechanisms do not address, nor do they 
contribute to, the threat of the nonnative virile crayfish, which is 
the primary threat to the slenderclaw crayfish. We find the species 
does not face significant threats from disease or predation (Factor C). 
We also reviewed the conservation efforts being undertaken for the 
habitat in which the slenderclaw crayfish occurs.
Nonnative Species
    The virile crayfish (Faxonius virilis), previously recognized as 
Orconectes virilis (Crandall and De Grave 2017, p. 5), is a crayfish 
native to the Missouri, upper Mississippi, lower Ohio, and the Great 
Lakes drainages (Service 2015, p. 1). The species has spread from its 
native range through dispersal as fishing bait, as pets, and through 
commercial (human) consumption (Schwartz et al. 1963, p. 267; Service 
2015, p. 4). Virile crayfish inhabit a variety of watersheds in the 
United States, including those with very few to no native crayfish 
species, and have been found in lake, wetland, and stream environments

[[Page 50268]]

(Larson et al. 2010, p. 2; Loughman and Simon 2011, p. 50). Virile 
crayfish are generalists, able to withstand various conditions, and 
have the natural tendency to migrate (Loughman and Simon 2011, p. 50). 
This species has been documented to spread approximately 124 mi (200 
km) over 15 years (B. Williams 2018, pers. comm.; Williams et al. 2011, 
entire).
    Based on comparison of body size, average claw size, aggression 
levels, and growth rates, it appears that the virile crayfish has an 
ecological advantage over several native crayfish species, including 
those in the Cambarus and Procambarus genera (Hale et al. 2016, p. 6). 
In addition, virile crayfish have been documented to displace native 
crayfish (Hubert 2010, p. 5; Loughman and Welsh 2010, pp. 70 and 72).
    Virile crayfish were first collected near the range of slenderclaw 
crayfish in 1967 (Schuster 2017, unpublished data). Since then, the 
virile crayfish has been documented in Guntersville Lake (a Tennessee 
Valley Authority reservoir constructed in 1939, on the Tennessee River 
mainstem) (Schuster 2017, unpublished data; Taylor 2017, unpublished 
data). In addition, the virile crayfish was found in 2015 at the type 
locality (location where the species was first described) for the 
slenderclaw crayfish in Short Creek (Short Creek population), in which 
the slenderclaw crayfish no longer occurs (Schuster 2017, unpublished 
data; Taylor 2017, unpublished data). In 2016, the virile crayfish was 
found at two sites in Drum Creek within the Short Creek population 
boundary and at the confluence of Short Creek and Guntersville Lake 
(Schuster 2017, unpublished data; Taylor 2017, unpublished data). 
During 2017, 20 virile crayfish were again found at the location where 
slenderclaw crayfish was first described in Short Creek (Taylor 2017, 
unpublished data). Also during 2017, this nonnative crayfish was 
documented at four new sites in adjacent watersheds outside of the 
Short Creek population boundary. Juvenile virile crayfish have been 
collected in the Short Creek population, indicating that the species is 
established there (Taylor 2017, unpublished data). To date, no virile 
crayfish have been documented within the Town Creek population boundary 
(Schuster 2017, unpublished data; Taylor 2017, unpublished data).
    The adaptive nature of the virile crayfish, the effects of this 
nonnative species on other crayfish species in their native ranges, and 
records of the virile crayfish's presence in the slenderclaw crayfish's 
historical and current range indicate that the virile crayfish is a 
factor that negatively influences the viability of the slenderclaw 
crayfish in the near term and future. Also, considering that the virile 
crayfish is a larger crayfish, is a strong competitor, and tends to 
migrate, while the slenderclaw crayfish has low abundance and is a 
smaller bodied crayfish, it is reasonable to conclude that once the 
virile crayfish is established at a site, it will out-compete 
slenderclaw crayfish.
Water Quality
    Direct impacts of poor water quality on the slenderclaw crayfish 
are unknown; however, aquatic macroinvertebrates (i.e., mayflies, 
caddisflies, stoneflies) are negatively affected by poor water quality, 
and this may indirectly impact the slenderclaw crayfish, which likely 
feeds on them. Degradation of water quality impacts aquatic 
macroinvertebrates and may even cause stress to individual crayfish 
(Arthur et al. 1987, p. 328; Devi and Fingerman 1995, p. 749; Rosewarne 
et al. 2014, p. 69). Although crayfish generally have a higher 
tolerance to ammonia than some aquatic species (i.e., mussels), their 
food source, larval insects, is impacted by ammonia at lower 
concentrations (Arthur et al. 1987, p. 328). Juvenile slenderclaw 
crayfish likely feed exclusively on aquatic macroinvertebrates, which 
are impacted by elevated ammonia and poor water quality.
    Within the range of the slenderclaw crayfish, Scarham Creek and 
Town Creek were identified as impaired waters by the Alabama Department 
of Environmental Management (ADEM). These creeks were listed in 1996 
and 1998, respectively, on Alabama's list of impaired water bodies 
(list of waterbodies that do not meet established State water quality 
standards) under section 303(d) of the Clean Water Act (hereafter, 
``the 303(d) list'') (ADEM 1996, p. 1; ADEM 2001, p. 11). Scarham Creek 
was placed on the 303(d) list for impacts from pesticides, siltation, 
ammonia, low dissolved oxygen/organic enrichment, and pathogens from 
agricultural sources; this section of Scarham Creek stretched 24 mi (39 
km) upstream from its confluence with Short Creek to its source (ADEM 
2013, p. 1). However, Scarham Creek was removed from Alabama's 303(d) 
list of impaired waters in 2004, after the total maximum daily loads 
(TMDLs; maximum amount of a pollutant or pollutants allowed in a water 
body while still meeting water quality standards) were developed in 
2002 (ADEM 2002, p. 5; ADEM 2006, entire). Town Creek was previously 
listed on the 303(d) list for ammonia and organic enrichment/dissolved 
oxygen impairments. Although TMDLs have been in development for these 
issues (ADEM 1996, entire), all of Town Creek is currently on the 
303(d) list for mercury contamination due to atmospheric deposition 
(ADEM 2016a, appendix C). One identified source of wastewater discharge 
to Town Creek is Hudson Foods near Geraldine, Alabama (ADEM 1996, p. 
1).
    Pollution from nonpoint sources stemming from agriculture, animal 
production, and unimproved roads has been documented within the range 
of the slenderclaw crayfish (Bearden et al. 2017, p. 18). Alabama is 
ranked third in the United States for broiler (chicken) production 
(Alabama Poultry Producers 2017, unpaginated), and DeKalb and Marshall 
Counties are two of the four most active counties in Alabama for 
poultry farming (Conner 2008, unpaginated). Poultry farms and poultry 
litter (a mixture of chicken manure, feathers, spilled food, and 
bedding material that frequently is used to fertilize pastureland or 
row crops) have been documented to contain nutrients, pesticides, 
bacteria, heavy metals, and other pathogens (Bolan et al. 2010, pp. 
676-683; Stolz et al. 2007, p. 821). A broiler house containing 20,000 
birds will produce approximately 150 tons of litter a year (Ritz and 
Merka 2013, p. 2). Surface-spreading of litter allows runoff from heavy 
rains to carry nutrients from manure into nearby streams. Poultry 
litter spreading is a practice that occurs within the Short Creek 
watershed (Short Creek population of slenderclaw crayfish) (Top of 
Alabama Regional Council of Governments 2015, p. 8).
    During recent survey efforts, water quality was impaired due to 
nutrients and bacteria within the Short Creek population, and levels of 
atrazine may be of concern in the watershed (Bearden et al. 2017, p. 
32). In Bengis Creek (Town Creek population), lead measurements 
exceeded the acute and chronic aquatic life criteria set by the U.S. 
Environmental Protection Agency (EPA) and ADEM (Bearden et al. 2017, p. 
32; ADEM 2017, p. 10-7). These criteria are based on levels developed 
by the EPA and ADEM to protect fish and wildlife (ADEM 2017, entire), 
and exceedance of these values is likely to harm animal or plant life 
(EPA 2018b, unpaginated). Elevated ammonia concentrations in Town Creek 
were also documented and reflected nonpoint source pollution at low-
flow and high-flow measurements (Bearden et al. 2017, p. 21). In late 
summer and fall surveys, potential eutrophication likely stemming from 
low-water conditions, elevated nutrients, and low dissolved oxygen was 
documented within both

[[Page 50269]]

Short and Town Creek watersheds (Bearden et al. 2017, p. 31).
Low Abundance
    The number of slenderclaw crayfish is currently low, with only two 
populations and few individuals within each population, which is 
reflected in the species' low resiliency, redundancy, and 
representation. The current estimated low abundance (n=32) and genetic 
drift may negatively affect populations of the slenderclaw crayfish. In 
general, the fewer populations a species has or the smaller the sizes 
of those populations, the greater the likelihood of extinction by 
chance alone (Shaffer and Stein 2000, p. 307). Genetic drift occurs in 
all species but is more likely to negatively affect populations that 
have a smaller effective population size (Caughley 1994, pp. 219-220; 
Huey et al. 2013, p. 10). There are only two populations of the 
slenderclaw crayfish with limited connectivity between those 
populations, which may have reduced genetic diversity. However, no 
testing for genetic drift has been conducted for the slenderclaw 
crayfish.
Synergistic Effects
    In addition to impacting the species individually, it is likely 
that several of the risk factors are acting synergistically or 
additively on the species. The combined impact of multiple stressors is 
likely more harmful than a single stressor acting alone. For example, 
in the Town Creek watershed, Town Creek was previously listed as an 
impaired stream due to ammonia and organic enrichment/dissolved oxygen 
impairments, and recent surveys documented eutrophic conditions of 
elevated nutrients and low dissolved oxygen. In addition, hydrologic 
variation and alteration has occurred within the Town Creek watershed 
as discussed further in the SSA report. Low-water conditions naturally 
occur in streams where the slenderclaw crayfish occurs, and alteration 
causing prolonged low-water periods could have a negative impact on the 
reproductive success of the slenderclaw crayfish. Further, connectivity 
between Town Creek and Short Creek watersheds is likely low due to 
Guntersville Lake. The combination of all of these stressors on the 
sensitive aquatic species in this habitat has probably impacted 
slenderclaw crayfish, in that only four individuals have been recorded 
there since 2009.
Conservation Actions
    TMDLs have been developed in Scarham Creek for siltation, ammonia, 
pathogens, organic enrichment/low dissolved oxygen, and pesticides 
(ADEM 2002, p. 5). Town Creek is currently on the 303(d) list for 
mercury contamination due to atmospheric deposition (ADEM 2016a, 
appendix C). However, a TMDL for organic enrichment/dissolved oxygen 
has been developed for Town Creek (ADEM 1996, entire). Through the 
303(d) program, ADEM provides funding derived under section 319 of the 
Clean Water Act to improve water quality in the watersheds. In 2014, 
the Upper Scarham Creek Watershed was selected as a priority by ADEM 
for the development of a watershed management plan. In Fiscal Year 
2016, the DeKalb County Soil and Water Conservation District contracted 
with ADEM to implement the Upper Scarham Creek Watershed Project using 
section 319 funding (ADEM 2016b, p. 39).
    The U.S. Department of Agriculture's Natural Resources Conservation 
Service (NRCS) National Water Quality Initiative program identified the 
Guntersville Lake/Upper Scarham Creek in DeKalb County as an Alabama 
Priority Watershed in 2015 (NRCS 2017, unpaginated). This watershed is 
within the historical range of the slenderclaw crayfish. It is 
recognized as in need of conservation practices, as it was listed on 
the Alabama 303(d) list as impaired due to organic enrichment/low 
dissolved oxygen and ammonia as nitrogen (ADEM 2002, p. 4). The 
National Water Quality Initiative helps farmers, ranchers, and forest 
landowners improve water quality and aquatic habitats in impaired 
streams through conservation and management practices. Such practices 
include controlling and trapping nutrient and manure runoff, and 
installation of cover crops, filter strips, and terraces.

Future Condition of the Slenderclaw Crayfish

    For the purpose of this assessment, we define viability as the 
ability of the species to sustain populations in the wild over time. As 
part of the SSA, to help address uncertainty associated with the degree 
and extent of potential future stressors and their impacts on the needs 
of the species, the concepts of resiliency, redundancy, and 
representation were applied using three plausible future scenarios. We 
devised these scenarios by identifying information on the following 
primary stressors that are anticipated to affect the species in the 
future: Nonnative virile crayfish, hydrological variation 
(precipitation and water quantity), land-use change, and water quality. 
However, having determined that the current condition of the 
slenderclaw crayfish is consistent with that of an endangered species 
(see Determination of Slenderclaw Crayfish Status, below), the results 
of the future scenarios are not material to our decision, and 
therefore, we are not presenting the results in this final rule. Please 
refer to the proposed listing and designation of critical habitat rule 
for the slenderclaw crayfish (83 FR 50582; October 9, 2018) and the SSA 
report (Service 2018, entire) for the full analysis of future 
conditions and descriptions of the associated scenarios.

Determination of Slenderclaw Crayfish Status

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

Status Throughout All of Its Range

    After evaluating threats to the species and assessing the 
cumulative effect of the threats under the section 4(a)(1) factors, we 
have determined the slenderclaw crayfish to be endangered throughout 
all of its range. Our review of the best available information 
indicates that there are currently two populations of slenderclaw 
crayfish in low condition occurring across the species' historical 
range in Alabama. Despite the species being identified at three new 
sites as reflected by recent increased survey efforts, there is 
substantial evidence of reduced abundance (current estimate of n=32) 
and presumed extirpation at four historical sites. In the Short Creek 
population, 28 slenderclaw crayfish

[[Page 50270]]

were collected during surveys from 2009 through 2017; in the Town Creek 
population, only 4 slenderclaw crayfish were collected during this same 
time period. Further, there is evidence of limited reproduction with 
only 3 juveniles collected from both populations since 2016. The 
slenderclaw crayfish exhibits low natural redundancy given its narrow 
range, but given presumed extirpation of sites within both populations, 
the species' redundancy is further limited.
    Several sources of indirect water quality impacts on both 
populations have been identified. However, no direct water quality-
related impacts are known at this time, and crayfish generally have a 
higher tolerance to poor water quality conditions than other aquatic 
species. In addition, currently existing regulatory mechanisms, such as 
establishing TMDLs, are addressing the effects of poor water quality on 
the slenderclaw crayfish.
    Currently, one of the primary threats to the slenderclaw crayfish 
is the nonnative virile crayfish. The virile crayfish is a larger 
crayfish, a strong competitor, and tends to migrate, and has been 
attributed to declines of other native crayfish species. Considering 
these characteristics of the virile crayfish and the size (small-
bodied) of the slenderclaw crayfish, it is reasonable to infer that 
once virile crayfish is established at a site it will out-compete 
slenderclaw crayfish. This may already be the case at the slenderclaw 
crayfish type locality where virile crayfish were found in recent 
surveys. At present, the virile crayfish has been reported as occurring 
at only one site, the type locality, where the slenderclaw crayfish was 
known to occur. Specifically, the virile crayfish occupies 
approximately 12.5 river miles (mi) (20.1 river kilometers (km)) at a 
few sites approximately 7 river mi (11 river km) downstream of current 
slenderclaw crayfish sites in the Short Creek population (233.6 river 
mi (375.9 river km)), and, therefore, the virile crayfish is an 
imminent threat to slenderclaw crayfish in the Short Creek population. 
Although there are currently no records of the virile crayfish in the 
Town Creek population (281.7 river mi (453.4 river km)), the virile 
crayfish is documented in Guntersville Lake, which leads directly into 
the Town Creek population. Based on the documented past expansion of 
the virile crayfish (despite some uncertainty and variation in the rate 
at which it will expand), and documented impacts and declines to other 
native crayfish species, current invasion and expansion into the 
slenderclaw crayfish's range in the Town Creek population will occur. 
Coupled with the current low abundance (n=4) of slenderclaw crayfish in 
the Town Creek population, the invasion of virile crayfish makes the 
slenderclaw crayfish at high risk of extirpation in this watershed.
    Overall, given the current low resiliency in both populations and 
the species' limited redundancy, it will be difficult to reestablish an 
entire population, should it be affected by a catastrophic event, 
without human intervention, as the connectivity between the two 
populations is low.
    Therefore, the slenderclaw crayfish is currently at risk of 
extirpation in both populations. Thus, we have determined that the 
slenderclaw crayfish is currently in danger of extinction throughout 
all of its range.

Status Throughout a Significant Portion of Its Range

    Under the Act and our implementing regulations, a species may 
warrant listing if it is in danger of extinction or likely to become so 
in the foreseeable future throughout all or a significant portion of 
its range. We have determined that the slenderclaw crayfish is in 
danger of extinction throughout all of its range, warranting listing as 
endangered throughout its range. Accordingly, we did not undertake an 
analysis of any significant portion of its range. Our determination is 
consistent with the decision in Center for Biological Diversity v. 
Everson, 2020 WL 437289 (D.D.C. Jan. 28, 2020).

Determination of Status

    Our review of the best available scientific and commercial 
information indicates that the slenderclaw crayfish meets the 
definition of an endangered species. Therefore, in accordance with 
sections 3(20) and 4(a)(1) of the Act, we add the slenderclaw crayfish 
as an endangered species to the List of Endangered and Threatened 
Wildlife at 50 CFR 17.11(h).

Available Conservation Measures

    The primary purpose of the Act is the conservation of endangered 
and threatened species and the ecosystems upon which they depend. The 
ultimate goal of such conservation efforts is the recovery of these 
listed species, so that they no longer need the protective measures of 
the Act. Conservation measures provided to species listed as endangered 
or threatened species under the Act include recognition, recovery 
actions, requirements for Federal protection, and prohibitions against 
certain practices. Recognition through listing results in public 
awareness and conservation by Federal, State, Tribal, and local 
agencies, private organizations, and individuals. The Act encourages 
cooperation with the States and calls for recovery actions to be 
carried out for all listed species. The protection required by Federal 
agencies and the prohibitions against certain activities are discussed, 
in part, below.
    Subsection 4(f) of the Act requires the Service to develop and 
implement recovery plans for the conservation of endangered and 
threatened species. The recovery planning process involves the 
identification of actions that are necessary to halt or reverse the 
species' decline by addressing the threats to its survival and 
recovery. The goal of this process is to restore listed species to a 
point where they are secure, self-sustaining, and functioning 
components of their ecosystems.
    Recovery planning consists of preparing draft and final recovery 
plans, beginning with the development of a recovery outline and making 
it available to the public within 30 days of a final listing 
determination. The recovery outline guides the immediate implementation 
of urgent recovery actions and describes the process to be used to 
develop a recovery plan. Revisions of the plan may be done to address 
continuing or new threats to the species, as new substantive 
information becomes available. The recovery plan also identifies 
recovery criteria for review of when a species may be ready for 
reclassification from endangered to threatened (``downlisting'') or 
removal from protected status (``delisting''), and methods for 
monitoring recovery progress. Recovery plans also establish a framework 
for agencies to coordinate their recovery efforts and provide estimates 
of the cost of implementing recovery tasks. Recovery teams (composed of 
species experts, Federal and State agencies, nongovernmental 
organizations, and stakeholders) are often established to develop 
recovery plans. When completed, the recovery outline, draft recovery 
plan, and the final recovery plan will be available on our website 
(http://www.fws.gov/endangered) or from our Alabama Ecological Services 
Field Office (see FOR FURTHER INFORMATION CONTACT).
    Implementation of recovery actions generally requires the 
participation of a broad range of partners, including other Federal 
agencies, States, Tribes, nongovernmental organizations, businesses, 
and private landowners. Examples of recovery actions include habitat 
restoration (e.g., restoration of native vegetation), research, captive 
propagation and reintroduction, and outreach and education. The 
recovery of

[[Page 50271]]

many listed species cannot be accomplished solely on Federal lands 
because their range may occur primarily or solely on non-Federal lands. 
To achieve recovery of these species requires cooperative conservation 
efforts on private, State, and Tribal lands.
    Following publication of this final listing rule, funding for 
recovery actions will be available from a variety of sources, including 
Federal budgets, State programs, and cost share grants for non-Federal 
landowners, the academic community, and nongovernmental organizations. 
In addition, pursuant to section 6 of the Act, the State of Alabama 
will be eligible for Federal funds to implement management actions that 
promote the protection or recovery of the slenderclaw crayfish. 
Information on our grant programs that are available to aid species 
recovery can be found at: http://www.fws.gov/grants.
    Please let us know if you are interested in participating in 
recovery efforts for the slenderclaw crayfish. Additionally, we invite 
you to submit any new information on this species whenever it becomes 
available and any information you may have for recovery planning 
purposes (see FOR FURTHER INFORMATION CONTACT).
    Section 7(a) of the Act requires Federal agencies to evaluate their 
actions with respect to any species that is listed as an endangered or 
threatened species and with respect to its critical habitat. 
Regulations implementing this interagency cooperation provision of the 
Act are codified at 50 CFR part 402. Section 7(a)(2) of the Act 
requires Federal agencies to ensure that activities they authorize, 
fund, or carry out are not likely to jeopardize the continued existence 
of any endangered or threatened species or destroy or adversely modify 
its critical habitat. If a Federal action may affect a listed species 
or its critical habitat, the responsible Federal agency must enter into 
consultation with the Service.
    Federal agency actions within the slenderclaw crayfish's habitat 
that may require conference or consultation or both as described in the 
preceding paragraph include management and any other landscape-altering 
activities on Federal lands administered by the U.S. Fish and Wildlife 
Service and U.S. Forest Service; technical assistance and projects 
funded through the U.S. Department of Agriculture's NRCS; issuance of 
permits by the Tennessee Valley Authority for right-of-way stream 
crossings; issuance of section 404 Clean Water Act (33 U.S.C. 1251 et 
seq.) permits by the U.S. Army Corps of Engineers; and construction and 
maintenance of roads or highways by the Federal Highway Administration.
    The Act and its implementing regulations set forth a series of 
general prohibitions and exceptions that apply to endangered wildlife. 
The prohibitions of section 9(a)(1) of the Act, codified at 50 CFR 
17.21, make it illegal for any person subject to the jurisdiction of 
the United States to take (which includes harass, harm, pursue, hunt, 
shoot, wound, kill, trap, capture, or collect; or to attempt any of 
these) endangered wildlife within the United States or on the high 
seas. In addition, it is unlawful to import; export; deliver, receive, 
carry, transport, or ship in interstate or foreign commerce in the 
course of commercial activity; or sell or offer for sale in interstate 
or foreign commerce any species listed as an endangered species. It is 
also illegal to possess, sell, deliver, carry, transport, or ship any 
such wildlife that has been taken illegally. Certain exceptions apply 
to employees of the Service, the National Marine Fisheries Service, 
other Federal land management agencies, and State conservation 
agencies.
    We may issue permits to carry out otherwise prohibited activities 
involving endangered wildlife under certain circumstances. Regulations 
governing permits are codified at 50 CFR 17.22. With regard to 
endangered wildlife, a permit may be issued for the following purposes: 
For scientific purposes, to enhance the propagation or survival of the 
species, and for incidental take in connection with otherwise lawful 
activities. There are also certain statutory exemptions from the 
prohibitions, which are found in sections 9 and 10 of the Act.
    It is our policy, as published in the Federal Register on July 1, 
1994 (59 FR 34272), to identify, to the maximum extent practicable at 
the time a species is listed, those activities that would or would not 
constitute a violation of section 9 of the Act. The intent of this 
policy is to increase public awareness of the effect of a final listing 
on proposed and ongoing activities within the range of a listed 
species. Based on the best available information, at this time, we are 
unable to identify specific activities that would not be considered to 
result in a violation of section 9 of the Act, because it is likely 
that site-specific conservation measures may be needed for activities 
that may directly or indirectly affect the slenderclaw crayfish. Based 
on the best available information, the following actions may 
potentially result in a violation of section 9 of the Act or this final 
rule; this list is not comprehensive:
    (1) Unauthorized handling, collecting, possessing, selling, 
delivering, carrying, or transporting of the slenderclaw crayfish, 
including interstate transportation across State lines and import or 
export across international boundaries.
    (2) Destruction/alteration of the species' habitat by discharge of 
fill material, draining, ditching, tiling, pond construction, stream 
channelization or diversion, or diversion or alteration of surface or 
ground water flow into or out of the stream (i.e., due to roads, 
impoundments, discharge pipes, stormwater detention basins, etc.).
    (3) Introduction of nonnative species that compete with or prey 
upon the slenderclaw crayfish, such as the introduction of nonnative 
virile crayfish in Alabama.
    (4) Modification of the channel or water flow of any stream in 
which the slenderclaw crayfish is known to occur.
    (5) Discharge of chemicals or fill material into any waters in 
which the slenderclaw crayfish is known to occur.
    Questions regarding whether specific activities would constitute a 
violation of section 9 of the Act should be directed to the Alabama 
Ecological Services Field Office (see FOR FURTHER INFORMATION CONTACT).

Critical Habitat Designation

Background

    Critical habitat is defined in section 3 of the Act as:
    (1) The specific areas within the geographical area occupied by the 
species, at the time it is listed in accordance with the Act, on which 
are found those physical or biological features
    (a) Essential to the conservation of the species, and
    (b) Which may require special management considerations or 
protection; and
    (2) Specific areas outside the geographical area occupied by the 
species at the time it is listed, upon a determination that such areas 
are essential for the conservation of the species.
    Our regulations at 50 CFR 424.02 define the geographical area 
occupied by the species as an area that may generally be delineated 
around species' occurrences, as determined by the Secretary (i.e., 
range). Such areas may include those areas used throughout all or part 
of the species' life cycle, even if not used on a regular basis (e.g., 
migratory corridors, seasonal habitats, and habitats used periodically, 
but not solely by vagrant individuals).
    Conservation, as defined under section 3 of the Act, means to use 
and

[[Page 50272]]

the use of all methods and procedures that are necessary to bring an 
endangered or threatened species to the point at which the measures 
provided pursuant to the Act are no longer necessary. Such methods and 
procedures include, but are not limited to, all activities associated 
with scientific resources management such as research, census, law 
enforcement, habitat acquisition and maintenance, propagation, live 
trapping, and transplantation, and, in the extraordinary case where 
population pressures within a given ecosystem cannot be otherwise 
relieved, may include regulated taking.
    Critical habitat receives protection under section 7 of the Act 
through the requirement that Federal agencies ensure, in consultation 
with the Service, that any action they authorize, fund, or carry out is 
not likely to result in the destruction or adverse modification of 
critical habitat. The designation of critical habitat does not affect 
land ownership or establish a refuge, wilderness, reserve, preserve, or 
other conservation area. Designation also does not allow the government 
or public to access private lands, nor does designation require 
implementation of restoration, recovery, or enhancement measures by 
non-Federal landowners. Where a landowner requests Federal agency 
funding or authorization for an action that may affect a listed species 
or critical habitat, the Federal agency would be required to consult 
with the Service under section 7(a)(2) of the Act. However, even if the 
Service were to conclude that the proposed activity would result in 
destruction or adverse modification of the critical habitat, the 
Federal action agency and the landowner are not required to abandon the 
proposed activity, or to restore or recover the species; instead, they 
must implement ``reasonable and prudent alternatives'' to avoid 
destruction or adverse modification of critical habitat.
    Under the first prong of the Act's definition of critical habitat, 
areas within the geographical area occupied by the species at the time 
it was listed are included in a critical habitat designation if they 
contain physical or biological features (1) which are essential to the 
conservation of the species and (2) which may require special 
management considerations or protection. For these areas, critical 
habitat designations identify, to the extent known using the best 
scientific and commercial data available, those physical or biological 
features that are essential to the conservation of the species (such as 
space, food, cover, and protected habitat). In identifying those 
physical or biological features within an area, we focus on the 
specific features that support the life-history needs of the species, 
including but not limited to, water characteristics, soil type, 
geological features, prey, vegetation, symbiotic species, or other 
features. A feature may be a single habitat characteristic, or a more 
complex combination of habitat characteristics. Features may include 
habitat characteristics that support ephemeral or dynamic habitat 
conditions. Features may also be expressed in terms relating to 
principles of conservation biology, such as patch size, distribution 
distances, and connectivity.
    Under the second prong of the Act's definition of critical habitat, 
we may designate critical habitat in areas outside the geographical 
area occupied by the species at the time it is listed, upon a 
determination that such areas are essential for the conservation of the 
species. We will determine whether unoccupied areas are essential for 
the conservation of the species by considering the life-history, 
status, and conservation needs of the species. This consideration will 
be further informed by any generalized conservation strategy, criteria, 
or outline that may have been developed for the species to provide a 
substantive foundation for identifying which features and specific 
areas are essential to the conservation of the species and, as a 
result, the development of the critical habitat designation. For 
example, an area currently occupied by the species but that was not 
occupied at the time of listing may be essential to the conservation of 
the species and may be included in the critical habitat designation.
    Section 4 of the Act requires that we designate critical habitat on 
the basis of the best scientific data available. Further, our Policy on 
Information Standards under the Endangered Species Act (published in 
the Federal Register on July 1, 1994 (59 FR 34271)), the Information 
Quality Act (section 515 of the Treasury and General Government 
Appropriations Act for Fiscal Year 2001 (Pub. L. 106-554; H.R. 5658)), 
and our associated Information Quality Guidelines, provide criteria, 
establish procedures, and provide guidance to ensure that our decisions 
are based on the best scientific data available. They require our 
biologists, to the extent consistent with the Act and with the use of 
the best scientific data available, to use primary and original sources 
of information as the basis for recommendations to designate critical 
habitat.
    When we are determining which areas should be designated as 
critical habitat, our primary source of information is generally the 
information from the SSA report and information developed during the 
listing process for the species. Additional information sources may 
include any generalized conservation strategy, criteria, or outline 
that may have been developed for the species; the recovery plan for the 
species; articles in peer-reviewed journals; conservation plans 
developed by States and counties; scientific status surveys and 
studies; biological assessments; other unpublished materials; or 
experts' opinions or personal knowledge.
    Habitat is dynamic, and species may move from one area to another 
over time. We recognize that critical habitat designated at a 
particular point in time may not include all of the habitat areas that 
we may later determine are necessary for the recovery of the species. 
For these reasons, a critical habitat designation does not signal that 
habitat outside the designated area is unimportant or may not be needed 
for recovery of the species. Areas that are important to the 
conservation of the species, both inside and outside the critical 
habitat designation, will continue to be subject to: (1) Conservation 
actions implemented under section 7(a)(1) of the Act; (2) regulatory 
protections afforded by the requirement in section 7(a)(2) of the Act 
for Federal agencies to ensure their actions are not likely to 
jeopardize the continued existence of any endangered or threatened 
species; and (3) section 9 of the Act's prohibitions on taking any 
individual of the species, including taking caused by actions that 
affect habitat. Federally funded or permitted projects affecting listed 
species outside their designated critical habitat areas may still 
result in jeopardy findings in some cases. These protections and 
conservation tools will continue to contribute to recovery of this 
species. Similarly, critical habitat designations made on the basis of 
the best available information at the time of designation will not 
control the direction and substance of future recovery plans, habitat 
conservation plans, or other species conservation planning efforts if 
new information available at the time of these planning efforts calls 
for a different outcome.
    On August 27, 2019, we published a final rule in the Federal 
Register (84 FR 45020) to amend our regulations concerning the 
procedures and criteria we use to designate and revise critical 
habitat. That rule became effective on September 26, 2019, but, as 
stated in

[[Page 50273]]

that rule, the amendments it sets forth apply to ``rules for which a 
proposed rule was published after September 26, 2019.'' We published 
our proposed critical habitat designation for the slenderclaw crayfish 
on October 9, 2018 (83 FR 50582); therefore, the amendments set forth 
in the August 27, 2019, final rule (84 FR 45020) do not apply to this 
final designation of critical habitat for the slenderclaw crayfish.

Physical or Biological Features

    In accordance with section 3(5)(A)(i) of the Act and regulations at 
50 CFR 424.12(b), in determining which areas within the geographical 
area occupied by the species at the time of listing to designate as 
critical habitat, we consider the physical or biological features that 
are essential to the conservation of the species and which may require 
special management considerations or protection. The regulations at 50 
CFR 424.02 define ``physical or biological features essential to the 
conservation of the species'' as the features that occur in specific 
areas and that are essential to support the life-history needs of the 
species, including, but not limited to, water characteristics, soil 
type, geological features, sites, prey, vegetation, symbiotic species, 
or other features. A feature may be a single habitat characteristic or 
a more complex combination of habitat characteristics. Features may 
include habitat characteristics that support ephemeral or dynamic 
habitat conditions. Features may also be expressed in terms relating to 
principles of conservation biology, such as patch size, distribution 
distances, and connectivity. For example, physical features might 
include gravel of a particular size required for spawning, alkali soil 
for seed germination, protective cover for migration, or susceptibility 
to flooding or fire that maintains necessary early-successional habitat 
characteristics. Biological features might include prey species, forage 
grasses, specific kinds or ages of trees for roosting or nesting, 
symbiotic fungi, or a particular level of nonnative species consistent 
with conservation needs of the listed species. The features may also be 
combinations of habitat characteristics and may encompass the 
relationship between characteristics or the necessary amount of a 
characteristic needed to support the life history of the species. In 
considering whether features are essential to the conservation of the 
species, the Service may consider an appropriate quality, quantity, and 
spatial and temporal arrangement of habitat characteristics in the 
context of the life-history needs, condition, and status of the 
species. These include, but are not limited to:
    (1) Space for individual and population growth and for normal 
behavior;
    (2) Food, water, air, light, minerals, or other nutritional or 
physiological requirements;
    (3) Cover or shelter;
    (4) Sites for breeding, reproduction, or rearing (or development) 
of offspring; and
    (5) Habitats that are protected from disturbance or are 
representative of the historical, geographical, and ecological 
distributions of a species.
    We derive the specific physical or biological features essential 
for slenderclaw crayfish from studies of this species' and similar 
crayfish species' habitat, ecology, and life history. The primary 
habitat elements that influence resiliency of the slenderclaw crayfish 
include water quantity, water quality, substrate, interstitial space, 
and habitat connectivity. More detail of the habitat and resource needs 
are summarized in the Habitat section of the proposed listing 
designation of critical habitat rule for the slenderclaw crayfish (83 
FR 50582; October 9, 2018) and the SSA report. We use the ADEM water 
quality standards for fish and wildlife criteria to determine the 
minimum standards of water quality necessary for the slenderclaw 
crayfish. A full description of the needs of individuals, populations, 
and the species is available from the SSA report; the resource needs of 
individuals are summarized below in Table 1.

 Table 1--Resource Needs for Slenderclaw Crayfish To Complete Each Life
                                  Stage
------------------------------------------------------------------------
            Life stage                        Resources needed
------------------------------------------------------------------------
Fertilized Eggs...................  <bullet> Female to carry eggs.
                                    <bullet> Water to oxygenate eggs.
                                    <bullet> Female to fan eggs to
                                     prevent sediment buildup and
                                     oxygenate water as needed.
                                    <bullet> Female to shelter in
                                     boulder/cobble substrate and
                                     available interstitial space.
Juveniles.........................  <bullet> Female to carry juveniles
                                     in early stage.
                                    <bullet> Water.
                                    <bullet> Food (likely aquatic
                                     macroinvertebrates).
                                    <bullet> Boulder/cobble substrate
                                     and available interstitial space
                                     for shelter.
Adults............................  <bullet> Water.
                                    <bullet> Food (likely omnivorous,
                                     opportunistic, and generalist
                                     feeders).
                                    <bullet> Boulder/cobble substrate
                                     and available interstitial space
                                     for shelter.
------------------------------------------------------------------------

Summary of Essential Physical or Biological Features

    In summary, we derive the specific physical or biological features 
essential to the conservation of the slenderclaw crayfish from studies 
of this species' and similar crayfish species' habitat, ecology, and 
life history, as described above. Additional information can be found 
in the SSA report (Service 2019, entire) available on http://www.regulations.gov under Docket No. FWS-R4-ES-2018-0069. We have 
determined that the following physical or biological features are 
essential to the conservation of the slenderclaw crayfish:
    (1) Geomorphically stable, small to medium, flowing streams:
    (a) That are typically 19.8 feet (ft) (6 meters (m)) wide or 
smaller;
    (b) With attributes ranging from:
    (i) Streams with predominantly large boulders and fractured 
bedrock, with widths from 16.4 to 19.7 ft (5 to 6 m), low to no 
turbidity, and depths up to 2.3 ft (0.7 m), to
    (ii) Streams dominated by small substrate types with a mix of 
cobble, gravel, and sand, with widths of approximately 9.8 feet (3 m), 
low to no turbidity, and depths up to 0.5 feet (0.15 m);
    (c) With substrate consisting of boulder and cobble containing 
abundant interstitial spaces for sheltering and breeding; and
    (d) With intact riparian cover to maintain stream morphology and to 
reduce erosion and sediment inputs.
    (2) Seasonal water flows, or a hydrologic flow regime (which 
includes the severity, frequency, duration, and seasonality of 
discharge over time),

[[Page 50274]]

necessary to maintain benthic habitats where the species is found and 
to maintain connectivity of streams with the floodplain, allowing the 
exchange of nutrients and sediment for maintenance of the crayfish's 
habitat and food availability.
    (3) Appropriate water and sediment quality (including, but not 
limited to, conductivity; hardness; turbidity; temperature; pH; and 
minimal levels of ammonia, heavy metals, pesticides, animal waste 
products, and nitrogen, phosphorus, and potassium fertilizers) 
necessary to sustain natural physiological processes for normal 
behavior, growth, and viability of all life stages.
    (4) Prey base of aquatic macroinvertebrates and detritus. Prey 
items may include, but are not limited to, insect larvae, snails and 
their eggs, fish and their eggs, and plant and animal detritus.

Special Management Considerations or Protection

    When designating critical habitat, we assess whether the specific 
areas within the geographical area occupied by the species at the time 
of listing contain features that are essential to the conservation of 
the species and which may require special management considerations or 
protection. The features essential to the conservation of the 
slenderclaw crayfish may require special management considerations or 
protections to reduce the following threats: (1) Impacts from invasive 
species, including the nonnative virile crayfish; (2) nutrient 
pollution from agricultural activities that impact water quantity and 
quality; (3) significant alteration of water quality and water 
quantity, including conversion of streams to impounded areas; (4) 
culvert and pipe installation that creates barriers to movement; and 
(5) other watershed and floodplain disturbances that release sediments 
or nutrients into the water.
    Management activities that could ameliorate these threats include, 
but are not limited to: Control and removal of introduced invasive 
species; limiting the spreading of poultry litter to time periods of 
dry, stable weather conditions; use of best management practices 
designed to reduce sedimentation, erosion, and bank side destruction; 
protection of riparian corridors and retention of sufficient canopy 
cover along banks; moderation of surface and ground water withdrawals 
to maintain natural flow regimes; and reduction of other watershed and 
floodplain disturbances that release sediments, pollutants, or 
nutrients into the water.

Criteria Used To Identify Critical Habitat

    As required by section 4(b)(2) of the Act, we use the best 
scientific data available to designate critical habitat. In accordance 
with the Act and our implementing regulations at 50 CFR 424.12(b), we 
review available information pertaining to the habitat requirements of 
the species and identify specific areas within the geographical area 
occupied by the species at the time of listing and any specific areas 
outside the geographical area occupied by the species to be considered 
for designation as critical habitat.
    The current distribution of the slenderclaw crayfish is much 
reduced from its historical distribution in one (Short Creek watershed) 
of the two populations. The currently occupied sites in the Short Creek 
watershed occur in a single tributary (Shoal Creek), and one 
catastrophic event could impact this entire population. In addition, 
the nonnative virile crayfish occupies sites within the Short Creek 
watershed, including the type locality for the slenderclaw crayfish in 
Short Creek in which the slenderclaw crayfish no longer occurs. We 
anticipate that recovery will require continued protection of existing 
populations and habitat, as well as establishing sites in additional 
streams that more closely approximate its historical distribution in 
order to ensure there are adequate numbers of crayfish in stable 
populations and that these populations have multiple sites occurring in 
at least two streams within each watershed. This goal will help ensure 
that catastrophic events, such as a chemical spill, cannot 
simultaneously affect all known populations.
    Sources of data for this critical habitat designation include 
numerous survey reports on streams throughout the species' range and 
databases maintained by crayfish experts and universities (Bouchard and 
Hobbs 1976, entire; Bearden 2017, unpublished data; Schuster 2017, 
unpublished data; Taylor 2017, unpublished data; Service 2018, entire). 
We have also reviewed available information that pertains to the 
habitat requirements of this species. Sources of information on habitat 
requirements include surveys conducted at occupied sites and published 
in agency reports, and data collected during monitoring efforts.

Areas Occupied at the Time of Listing

    For locations within the geographic area occupied by the species at 
the time of listing, we identified stream channels that currently 
support populations of the slenderclaw crayfish. We defined ``current'' 
as stream channels with observations of the species from 2009 to the 
present. Due to the recent breadth and intensity of survey efforts for 
the slenderclaw crayfish throughout the historical range of the 
species, it is reasonable to assume that streams with no positive 
surveys since 2009 should not be considered occupied for the purpose of 
our analysis. Within these areas, we delineated critical habitat unit 
boundaries using the following process:
    We evaluated habitat suitability of stream channels within the 
geographical area occupied at the time of listing, and retained for 
further consideration those streams that contain one or more of the 
physical or biological features to support life-history functions 
essential to conservation of the species. We refined the starting and 
ending points of units by evaluating the presence or absence of 
appropriate physical or biological features. We selected the headwaters 
as upstream cutoff points for each stream and downstream cutoff points 
that omit areas that are not suitable habitat. For example, the 
Guntersville Lake Tennessee Valley Authority project boundary was 
selected as an endpoint for one unit, as there was a change to 
unsuitable parameters (e.g., impounded waters).
    Based on this analysis, the following streams meet criteria for 
areas occupied by the species at the time of listing: Bengis Creek, 
Scarham Creek, Shoal Creek, Short Creek, Town Creek, and Whippoorwill 
Creek (see Unit Descriptions, below). This list does not include all 
stream segments known to have been occupied by the species 
historically; rather, it includes only the occupied stream segments 
within the historical range that have also retained one or more of the 
physical or biological features that will allow for the maintenance and 
expansion of existing populations.

Areas Outside the Geographical Area Occupied at the Time of Listing

    To consider for designation areas not occupied by the species at 
the time of listing, we must demonstrate that these areas are essential 
for the conservation of the species. To determine if these areas are 
essential for the conservation of the slenderclaw crayfish, we 
considered the life history, status, habitat elements, and conservation 
needs of the species such as:
    (1) The importance of the stream to the overall status of the 
species, the importance of the stream to the prevention of extinction, 
and the

[[Page 50275]]

stream's contribution to future recovery of the slenderclaw crayfish;
    (2) whether the area is and could be maintained or restored to 
contain the necessary habitat (water quantity, substrate, interstitial 
space, and connectivity) to support the slenderclaw crayfish;
    (3) whether the site provides connectivity between occupied sites 
for genetic exchange;
    (4) whether a population of the species could be reestablished in 
the location; and
    (5) whether the virile crayfish is currently present in the stream.
    For the one subunit containing areas outside the geographical area 
occupied by the species at the time of listing, we delineated critical 
habitat unit boundaries by evaluating stream segments not known to have 
been occupied at listing (i.e., outside of the geographical area 
occupied by the species) but that are within the historical range of 
the species to determine if they are essential for the survival and 
recovery of the species. Essential areas are those that:
    (a) Expand the geographical distribution within areas not occupied 
at the time of listing across the historical range of the species;
    (b) Were determined to be of suitable habitat and contain the 
primary habitat elements (water quantity, substrate, interstitial 
space, and connectivity) that support the viability of the slenderclaw 
crayfish; and
    (c) Are connected to other occupied areas, which will enhance 
genetic exchange between populations.
    Based on this analysis, Scarham-Laurel Creek was identified as 
meeting the criteria for areas outside the geographical area occupied 
at the time of listing that are essential for the conservation of the 
species (see Subunit 2b unit description below).

General Information on the Maps of the Critical Habitat Designation

    When determining critical habitat boundaries, we made every effort 
to avoid including developed areas such as lands covered by buildings, 
pavement, and other structures because such lands lack physical or 
biological features necessary for slenderclaw crayfish. The scale of 
the maps we prepared under the parameters for publication within the 
Code of Federal Regulations may not reflect the exclusion of such 
developed lands. Any such lands inadvertently left inside critical 
habitat boundaries shown on the maps of this final rule have been 
excluded by text in the rule and are not included for designation as 
critical habitat. Therefore, a Federal action involving these lands 
would not trigger section 7 consultation under the Act with respect to 
critical habitat and the requirement of no adverse modification unless 
the specific action would affect the physical or biological features in 
the adjacent critical habitat.
    We are designating critical habitat in areas within the 
geographical area occupied by the species at the time of listing. We 
also are designating areas outside the geographical area occupied by 
the species at the time of listing that were historically occupied but 
are presently unoccupied, because we have determined that such areas 
are essential for the conservation of the species (see description of 
Subunit 2b below for explanation).
    The two occupied units were designated based on one or more of the 
elements of physical or biological features being present to support 
slenderclaw crayfish life processes. Some stream segments within the 
units contained all of the identified elements of physical or 
biological features and supported multiple life processes. Some stream 
segments contained only some elements of the physical or biological 
features necessary to support the slenderclaw crayfish's particular use 
of that habitat.
    The critical habitat designation is defined by the map or maps, as 
modified by any accompanying regulatory text, presented at the end of 
this document in the rule portion. We include more detailed information 
on the boundaries of the critical habitat designation in the discussion 
of individual units below. We will make the coordinates or plot points 
or both on which each map is based available to the public on http://www.regulations.gov under Docket No. FWS-R4-ES-2018-0069, and at the 
field office responsible for the designation (see FOR FURTHER 
INFORMATION CONTACT, above).

Final Critical Habitat Designation

    We are designating approximately 78 river mi (126 river km) in two 
units as critical habitat for the slenderclaw crayfish. The critical 
habitat areas, described below, constitute our current best assessment 
of areas that meet the definition of critical habitat for the 
slenderclaw crayfish. The two units are: (1) Town Creek Unit, and (2) 
Short Creek Unit. Unit 2 is subdivided into two subunits: (2a) Shoal 
Creek and Short Creek subunit, and (2b) Scarham-Laurel Creek subunit. 
Table 2 shows the name, occupancy of the unit, land ownership of the 
riparian areas surrounding the units, and approximate river miles of 
the designated critical habitat units for the slenderclaw crayfish.

                     Table 2--Designated Critical Habitat Units for the Slenderclaw Crayfish
----------------------------------------------------------------------------------------------------------------
                                                                                                  Length of unit
                Stream(s)                   Occupied at the time of            Ownership          in river miles
                                                    listing                                        (kilometers)
----------------------------------------------------------------------------------------------------------------
                                               Unit 1--Town Creek
----------------------------------------------------------------------------------------------------------------
Bengis and Town Creeks..................  Yes.......................  Private...................         42 (67)
----------------------------------------------------------------------------------------------------------------
                                               Unit 2--Short Creek
----------------------------------------------------------------------------------------------------------------
Subunit 2a--Shoal Creek and Short Creek:
    Scarham, Shoal, Short, and            Yes.......................  Private...................         10 (17)
     Whippoorwill Creeks.
Subunit 2b--Scarham-Laurel Creek:
    Scarham-Laurel Creek................  No........................  Private...................         26 (42)
        Total...........................  ..........................  ..........................        78 (126)
----------------------------------------------------------------------------------------------------------------
Note: Area sizes may not sum due to rounding.


[[Page 50276]]

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

Unit 1: Town Creek

    Unit 1 consists of 41.8 river mi (67.2 river km) of Bengis and Town 
creeks in DeKalb County, Alabama. Unit 1 includes stream habitat up to 
bank full height, consisting of the headwaters of Bengis Creek to its 
confluence with Town Creek and upstream to the headwaters of Town 
Creek. Stream channels in and lands adjacent to Unit 1 are privately 
owned except for bridge crossings and road easements, which are owned 
by the State and County. The slenderclaw crayfish occupies all stream 
reaches in this unit, and the unit currently supports all breeding, 
feeding, and sheltering needs essential to the conservation of the 
slenderclaw crayfish.
    Special management considerations or protection may be required for 
control and removal of introduced invasive species, including the 
nonnative virile crayfish, which occupies the boulder and cobble 
habitats and interstitial spaces within these habitats that the 
slenderclaw crayfish needs. At present, the virile crayfish is not 
present in this unit, although it has been documented just outside the 
watershed boundary. However, based on future projections in the SSA 
report, the virile crayfish is expected to be present in the Town Creek 
watershed within the next 2 years.
    In addition, special management considerations or protection may be 
required to address water withdrawals and drought as well as excess 
nutrients, sediment, and pollutants that enter the streams and serve as 
indicators of other forms of pollution, such as bacteria and toxins. A 
primary source of these types of pollution is agricultural runoff. 
However, during recent survey efforts for the slenderclaw crayfish, 
water quality analysis found lead measurements in Bengis Creek that 
exceeded the acute and chronic aquatic life criteria set by EPA and 
ADEM, and elevated ammonia concentrations in Town Creek. Special 
management or protection may include moderating surface and ground 
water withdrawals, using best management practices to reduce 
sedimentation, and reducing watershed and floodplain disturbances that 
release pollutants and nutrients into the water.

Unit 2: Short Creek

    Subunit 2a--Shoal Creek and Short Creek: Subunit 2a consists of 
10.3 river mi (16.6 river km) of Scarham, Shoal, Short, and 
Whippoorwill Creeks in DeKalb and Marshall Counties, Alabama. Subunit 
2a includes stream habitat up to bank full height, consisting of the 
headwaters of Shoal Creek to its confluence with Whippoorwill Creek, 
Whippoorwill Creek to its confluence with Scarham Creek, Scarham Creek 
to its confluence with Short Creek, and Short Creek downstream to the 
Guntersville Lake Tennessee Valley Authority project boundary. Stream 
channels in and lands adjacent to subunit 2a are privately owned except 
for bridge crossings and road easements, which are owned by the State 
and Counties. The slenderclaw crayfish occupies all stream reaches in 
this unit, and the unit currently supports all breeding, feeding, and 
sheltering needs essential to the conservation of the slenderclaw 
crayfish.
    Special management considerations or protection may be required for 
control and removal of introduced invasive species, including the 
virile crayfish (see Unit 1 discussion, above). At present, the virile 
crayfish is present at sites in Short Creek and Drum Creek within the 
Short Creek watershed and just outside of the unit boundary in 
Guntersville Lake. Based on future projections in the SSA report, the 
virile crayfish is expected to be present in more tributaries within 
the Short Creek watershed within the next 2 to 5 years.
    In addition, special management considerations or protection may be 
required to address water withdrawals and drought as well as excess 
nutrients, sediment, and pollutants that enter the streams and serve as 
indicators of other forms of pollution such as bacteria and toxins. A 
primary source of these types of pollution is agricultural runoff. 
During recent survey efforts for the slenderclaw crayfish, water 
quality analysis indicated that impaired water quality due to 
nutrients, bacteria, and levels of atrazine may be of concern in the 
Short Creek watershed. Special management or protection may include 
moderating surface and ground water withdrawals, using best management 
practices to reduce sedimentation, and reducing watershed and 
floodplain disturbances that release pollutants and nutrients into the 
water.
    Subunit 2b--Scarham-Laurel Creek: Subunit 2b consists of 25.9 river 
mi (41.7 river km) of Scarham-Laurel Creek in DeKalb and Marshall 
Counties, Alabama. Subunit 2b includes stream habitat up to bank full 
height, consisting of the headwaters of Scarham-Laurel Creek to its 
confluence with Short Creek. Stream channels in and lands adjacent to 
Subunit 2b are privately owned except for bridge crossings and road 
easements, which are owned by the State and Counties. The subunit is 
connected to Subunit 2a.
    This subunit is unoccupied by the species but is considered to be 
essential for the conservation of the species. Scarham-Laurel Creek is 
within the historical range of the slenderclaw crayfish but is not 
within the geographical range occupied by the species at the time of 
listing. The slenderclaw crayfish has not been documented at sites in 
Scarham-Laurel Creek in over 40 years, and we presume those 
historically occupied sites to be extirpated. Scarham-Laurel Creek is a 
small to medium, flowing stream with substrate consisting of boulder 
and cobble containing interstitial spaces for sheltering and breeding. 
Although it is currently unoccupied, this subunit contains some or all 
of the physical or biological features necessary for the conservation 
of the slenderclaw crayfish. This subunit possesses characteristics as 
described by physical or biological feature 1 (geomorphically stable, 
small to medium, flowing streams with substrate consisting of boulder 
and cobble and intact riparian cover); physical or biological feature 2 
(seasonal water flows, or a hydrologic flow regime, necessary to 
maintain benthic habitats where the species is found and to maintain 
connectivity of streams); and physical or biological feature 4 (prey 
base of aquatic macroinvertebrates and detritus). Physical or 
biological feature 3 (appropriate water and sediment quality) is 
degraded in this subunit, and with appropriate management and 
restoration actions, this feature can be restored.
    In terms of water quality, Scarham-Laurel Creek is in restorable 
condition, and is currently devoid of the virile crayfish. Water 
quality concerns have been documented within Scarham-Laurel Creek, 
causing it to be listed on Alabama's 303(d) list of impaired waters for 
impacts from pesticides, siltation, ammonia, low dissolved oxygen/
organic enrichment, and pathogens from agricultural sources in 1998 
(ADEM 1996, p. 1). In 2004, Scarham Creek was removed from the 303(d) 
list after TMDLs were established (ADEM 2002, p. 5); however, recent 
water quality analysis indicated that water quality was impaired within 
the Short Creek watershed in which Scarham-Laurel Creek is located 
(Bearden et al. 2017, p. 32). When the water quality of Scarham-Laurel 
Creek is restored, the stream could be an area for population expansion 
within the Short Creek watershed, in that this subunit is

[[Page 50277]]

connected to the occupied Shoal Creek and Short Creek subunit, and 
thereby provide redundancy needed to support the species' recovery. 
Therefore, we conclude that this stream is essential for the 
conservation of the slenderclaw crayfish, because it will provide 
habitat for population expansion in known historical habitat that is 
necessary to increase viability of the species by increasing its 
resiliency, redundancy, and representation.

Exemptions

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

    Section 4(a)(3)(B)(i) of the Act (16 U.S.C. 1533(a)(3)(B)(i)) 
provides that the Secretary shall not designate as critical habitat any 
lands or other geographical areas owned or controlled by the Department 
of Defense, or designated for its use, that are subject to an 
integrated natural resources management plan (INRMP) prepared under 
section 101 of the Sikes Act (16 U.S.C. 670a), if the Secretary 
determines in writing that such plan provides a benefit to the species 
for which critical habitat is proposed for designation. There are no 
Department of Defense lands with a completed INRMP within the final 
critical habitat designation.

Exclusions

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

    Section 4(b)(2) of the Act states that the Secretary shall 
designate and make revisions to critical habitat on the basis of the 
best available scientific data after taking into consideration the 
economic impact, national security impact, and any other relevant 
impact of specifying any particular area as critical habitat. The 
Secretary may exclude an area from critical habitat if she determines 
that the benefits of such exclusion outweigh the benefits of specifying 
such area as part of the critical habitat, unless she determines, based 
on the best scientific data available, that the failure to designate 
such area as critical habitat will result in the extinction of the 
species. In making that determination, the statute on its face, as well 
as the legislative history, are clear that the Secretary has broad 
discretion regarding which factor(s) to use and how much weight to give 
to any factor.

Consideration of Economic Impacts

    Section 4(b)(2) of the Act and its implementing regulations require 
that we consider the economic impact that may result from a designation 
of critical habitat. In order to consider economic impacts, we prepared 
an incremental effects memorandum (IEM) and screening analysis which 
together with our narrative and interpretation of effects we consider 
our draft economic analysis (DEA) of the proposed critical habitat 
designation and related factors (IEc 2018, entire). The analysis, dated 
June 29, 2018, addressed probable economic impacts of critical habitat 
designation for the slenderclaw crayfish. The DEA was made available 
for public review from October 9, 2018, through December 10, 2018 
(Industrial Economics, Inc. (IEc) 2018, entire), but we did not receive 
any comments on the draft DEA. Additional information relevant to the 
probable incremental economic impacts of critical habitat designation 
for the slenderclaw crayfish is summarized below and available in the 
screening analysis for the slenderclaw crayfish (IEc 2018, entire), 
available at http://www.regulations.gov.
    The final critical habitat designation for the slenderclaw crayfish 
totals approximately 78 river mi (126 river km), which includes both 
occupied and unoccupied streams. This final critical habitat 
designation is likely to result, annually, in a maximum of three 
informal section 7 consultations and five technical assistance efforts 
at a total incremental cost of less than $10,000 per year. Within the 
occupied streams, any actions that may affect the species would likely 
also affect critical habitat, and it is unlikely that any additional 
conservation efforts would be required to address the adverse 
modification standard over and above those recommended as necessary to 
avoid jeopardizing the continued existence of the species. Within all 
unoccupied critical habitat, the Service will consult with Federal 
agencies on any projects that occur within the hydrologic unit code 
(HUC) 12-digit watershed boundaries, due to overlap with the ranges of 
other listed species such as Indiana bat (Myotis sodalis), gray bat 
(Myotis grisescens), northern long-eared bat (Myotis septentrionalis), 
harperella (Ptilimnium nodosum), and green pitcher-plant (Sarracenia 
oreophila) in these HUCs. In addition, all of the HUC 12-digit 
watershed boundaries containing unoccupied habitat are within the HUC 
12-digit range of watersheds occupied by slenderclaw crayfish. Thus, no 
incremental project modifications resulting solely from the presence of 
unoccupied critical habitat are anticipated. Therefore, the only 
additional costs that are expected in all of the critical habitat 
designation are administrative costs, due to the fact that this 
additional analysis will require time and resources by both the Federal 
action agency and the Service.

Exclusions Based on Economic Impacts

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

Exclusions Based on Impacts on National Security and Homeland Security

    Section 4(a)(3)(B)(i) of the Act may not cover all Department of 
Defense (DoD) lands or areas that pose potential national-security 
concerns (e.g., a DoD installation that is in the process of revising 
its INRMP for a newly listed species or a species previously not 
covered). If a particular area is not covered under section 
4(a)(3)(B)(i), national-security or homeland-security concerns are not 
a factor in the process of determining what areas meet the definition 
of ``critical habitat.'' Nevertheless, when designating critical 
habitat under section 4(b)(2) of the Act, the Service must consider 
impacts on national security, including homeland security, on lands or 
areas not covered by section 4(a)(3)(B)(i) of the Act. Accordingly, we 
will always consider for exclusion from the designation areas for which 
DoD, Department of Homeland Security (DHS), or another Federal agency 
has requested exclusion based on an assertion of national-security or 
homeland-security concerns. However, no lands within the designation of 
critical habitat for slenderclaw crayfish are owned or managed by DoD 
or DHS. Consequently, the Secretary is not exercising her discretion to 
exclude any areas from the final designation based on impacts on 
national security.

Exclusions Based on Other Relevant Impacts

    Under section 4(b)(2) of the Act, we consider any other relevant 
impacts, in addition to economic impacts and impacts on national 
security. We consider a number of factors including whether there are 
permitted conservation plans covering the species in the area, such as 
habitat conservation plans, safe harbor agreements, or candidate 
conservation agreements with assurances, or whether there are non-
permitted conservation agreements and

[[Page 50278]]

partnerships that would be encouraged by designation of, or exclusion 
from, critical habitat. In addition, we look at the existence of Tribal 
conservation plans and partnerships and consider the government-to-
government relationship of the United States with Tribal entities. We 
also consider any social impacts that might occur because of the 
designation.
    In preparing this final rule, we have determined that there are 
currently no permitted conservation plans or other non-permitted 
conservation agreements or partnerships for the slenderclaw crayfish, 
and the final critical habitat designation does not include any Tribal 
lands or trust resources. We anticipate no impact on Tribal lands, 
partnerships, permitted or non-permitted plans, or agreements from this 
critical habitat designation. Accordingly, the Secretary is not 
exercising her discretion to exclude any areas from the final 
designation based on other relevant impacts.

Effects of Critical Habitat Designation

Section 7 Consultation

    Section 7(a) of the Act requires Federal agencies to evaluate their 
actions with respect to critical habitat of any species that is listed 
as an endangered or threatened species. Regulations implementing this 
interagency cooperation provision of the Act are codified at 50 CFR 
part 402. Section 7(a)(2) of the Act requires Federal agencies, 
including the Service, to ensure that any action they fund, authorize, 
or carry out is not likely to result in the destruction or adverse 
modification of designated critical habitat of any listed species. In 
addition, section 7(a)(4) of the Act requires Federal agencies to 
confer with the Service on any agency action that is likely to result 
in the destruction or adverse modification of proposed critical 
habitat.
    We published a final regulation with a revised definition of 
destruction or adverse modification on August 27, 2019 (84 FR 45020). 
Destruction or adverse modification means a direct or indirect 
alteration that appreciably diminishes the value of critical habitat as 
a whole for the conservation of a listed species. If a Federal action 
may affect a listed species' critical habitat, the responsible Federal 
agency (action agency) must enter into consultation with us. Examples 
of actions that are subject to the section 7 consultation process are 
actions on State, Tribal, local, or private lands that require a 
Federal permit (such as a permit from the U.S. Army Corps of Engineers 
under section 404 of the Clean Water Act (33 U.S.C. 1251 et seq.) or a 
permit from the Service under section 10 of the Act) or that involve 
some other Federal action (such as funding from the Federal Highway 
Administration, Federal Aviation Administration, or the Federal 
Emergency Management Agency). Federal actions not affecting listed 
species or critical habitat--and actions on State, Tribal, local, or 
private lands that are not federally funded, authorized, or carried out 
by a Federal agency--do not require section 7 consultation.
    Compliance with the requirements of section 7(a)(2) of the Act is 
documented through our issuance of:
    (1) A concurrence letter for Federal actions that may affect, but 
are not likely to adversely affect, critical habitat; or
    (2) A biological opinion for Federal actions that may affect, and 
are likely to adversely affect, critical habitat.
    When we issue a biological opinion concluding that a project is 
likely to destroy or adversely modify critical habitat, we provide 
reasonable and prudent alternatives to the project, if any are 
identifiable, that would avoid the likelihood of destruction or adverse 
modification of critical habitat. We define ``reasonable and prudent 
alternatives'' (50 CFR 402.02) as alternative actions identified during 
consultation that:
    (1) Can be implemented in a manner consistent with the intended 
purpose of the action,
    (2) Can be implemented consistent with the scope of the Federal 
agency's legal authority and jurisdiction,
    (3) Are economically and technologically feasible, and
    (4) Would, in the Service Director's opinion, avoid the likelihood 
of destroying or adversely modifying critical habitat.
    Reasonable and prudent alternatives can vary from slight project 
modifications to extensive redesign or relocation of the project. Costs 
associated with implementing a reasonable and prudent alternative are 
similarly variable.
    Regulations at 50 CFR 402.16 set forth requirements for Federal 
agencies to reinitiate formal consultation on previously reviewed 
actions. These requirements apply when the Federal agency has retained 
discretionary involvement or control over the action (or the agency's 
discretionary involvement or control is authorized by law) and, 
subsequent to the previous consultation, we have listed a new species 
or designated critical habitat that may be affected by the Federal 
action, or the action has been modified in a manner that affects the 
species or critical habitat in a way not considered in the previous 
consultation. In such situations, Federal agencies sometimes may need 
to request reinitiation of consultation with us, but the regulations 
also specify some exceptions to the requirement to reinitiate 
consultation on specific land management plans after subsequently 
listing a new species or designating new critical habitat. See the 
regulations for a description of those exceptions.

Application of the ``Adverse Modification'' Standard

    The key factor related to the destruction or adverse modification 
determination is whether implementation of the proposed Federal action 
directly or indirectly alters the designated critical habitat in a way 
that appreciably diminishes the value of the critical habitat as a 
whole for the conservation of the listed species. As discussed above, 
the role of critical habitat is to support physical or biological 
features essential to the conservation of a listed species and provide 
for the conservation of the species.
    Section 4(b)(8) of the Act requires us to briefly evaluate and 
describe, in any proposed or final regulation that designates critical 
habitat, activities involving a Federal action that may violate section 
7(a)(2) of the Act by destroying or adversely modifying such habitat, 
or that may be affected by such designation.
    Activities that the Services may find are likely to destroy or 
adversely modify critical habitat, during a consultation under section 
7(a)(2) of the Act, include, but are not limited to:
    (1) Actions that would alter the minimum flow or the existing flow 
regime. Such activities could include, but are not limited to, 
impoundment, channelization, water diversion, and water withdrawal. 
These activities could eliminate or reduce the habitat necessary for 
the growth and reproduction of the slenderclaw crayfish by decreasing 
or altering seasonal flows to levels that would adversely affect the 
species' ability to complete its life cycle.
    (2) Actions that would significantly alter water chemistry or 
quality. Such activities could include, but are not limited to, release 
of chemicals (including pharmaceuticals, metals, and salts) or 
biological pollutants into the surface water or connected groundwater 
at a point source or by dispersed release (non-point source). These 
activities could alter water conditions to levels that are beyond the 
tolerances of the slenderclaw crayfish and result in direct

[[Page 50279]]

or cumulative adverse effects to these individuals and their life 
cycles.
    (3) Actions that would significantly increase sediment deposition 
within the stream channel. Such activities could include, but are not 
limited to, excessive sedimentation from livestock grazing, road 
construction, channel alteration, poor forestry management, off-road 
vehicle use, and other watershed and floodplain disturbances. These 
activities could eliminate or reduce the habitat necessary for the 
growth and reproduction of the slenderclaw crayfish by increasing the 
sediment deposition to levels that would adversely affect the species' 
ability to complete its life cycle.
    (4) Actions that would significantly increase eutrophic conditions. 
Such activities could include, but are not limited to, release of 
nutrients into the surface water or connected groundwater at a point 
source or by dispersed release (non-point source). These activities can 
result in excessive nutrients and algae filling streams and reducing 
habitat for the slenderclaw crayfish, degrading water quality from 
excessive nutrients and during algae decay, and decreasing oxygen 
levels to levels below the tolerances of the slenderclaw crayfish.
    (5) Actions that would significantly alter channel morphology or 
geometry or decrease connectivity. Such activities could include, but 
are not limited to, channelization, impoundment, road and bridge 
construction, mining, dredging, and destruction of riparian vegetation. 
These activities may lead to changes in water flows and levels that 
would degrade or eliminate the slenderclaw crayfish and its habitats. 
These actions can also lead to increased sedimentation and degradation 
in water quality to levels that are beyond the tolerances of the 
slenderclaw crayfish.
    (6) Actions that result in the introduction, spread, or 
augmentation of nonnative aquatic species in occupied stream segments, 
or in stream segments that are hydrologically connected to occupied 
stream segments, or introduction of other species that compete with or 
prey on the slenderclaw crayfish. Possible actions could include, but 
are not limited to, stocking of nonnative crayfishes and fishes, 
stocking of sport fish, or other related actions. These activities can 
introduce parasites or disease; result in direct predation or direct 
competition; or affect the growth, reproduction, and survival of the 
slenderclaw crayfish.

Required Determinations

Regulatory Planning and Review (Executive Orders 12866 and 13563)

    Executive Order 12866 provides that the Office of Information and 
Regulatory Affairs in the Office of Management and Budget (OMB) will 
review all significant rules. The Office of Information and Regulatory 
Affairs has determined that this rule is not significant.
    Executive Order 13563 reaffirms the principles of E.O. 12866 while 
calling for improvements in the nation's regulatory system to promote 
predictability, to reduce uncertainty, and to use the best, most 
innovative, and least burdensome tools for achieving regulatory ends. 
The executive order directs agencies to consider regulatory approaches 
that reduce burdens and maintain flexibility and freedom of choice for 
the public where these approaches are relevant, feasible, and 
consistent with regulatory objectives. E.O. 13563 emphasizes further 
that regulations must be based on the best available science and that 
the rulemaking process must allow for public participation and an open 
exchange of ideas. We have developed this rule in a manner consistent 
with these requirements.

Regulatory Flexibility Act (5 U.S.C. 601 et seq.)

    Under the Regulatory Flexibility Act (RFA; 5 U.S.C. 601 et seq.), 
as amended by the Small Business Regulatory Enforcement Fairness Act of 
1996 (SBREFA; 5 U.S.C. 801 et seq.), whenever an agency is required to 
publish a notice of rulemaking for any proposed or final rule, it must 
prepare and make available for public comment a regulatory flexibility 
analysis that describes the effects of the rule on small entities 
(i.e., small businesses, small organizations, and small government 
jurisdictions). However, no regulatory flexibility analysis is required 
if the head of the agency certifies the rule will not have a 
significant economic impact on a substantial number of small entities. 
The SBREFA amended the RFA to require Federal agencies to provide a 
certification statement of the factual basis for certifying that the 
rule will not have a significant economic impact on a substantial 
number of small entities.
    According to the Small Business Administration, small entities 
include small organizations such as independent nonprofit 
organizations; small governmental jurisdictions, including school 
boards and city and town governments that serve fewer than 50,000 
residents; and small businesses (13 CFR 121.201). Small businesses 
include manufacturing and mining concerns with fewer than 500 
employees, wholesale trade entities with fewer than 100 employees, 
retail and service businesses with less than $5 million in annual 
sales, general and heavy construction businesses with less than $27.5 
million in annual business, special trade contractors doing less than 
$11.5 million in annual business, and agricultural businesses with 
annual sales less than $750,000. To determine if potential economic 
impacts to these small entities are significant, we considered the 
types of activities that might trigger regulatory impacts under this 
designation as well as types of project modifications that may result. 
In general, the term ``significant economic impact'' is meant to apply 
to a typical small business firm's business operations.
    The Service's current understanding of the requirements under the 
RFA, as amended, and following recent court decisions, is that Federal 
agencies are only required to evaluate the potential incremental 
impacts of rulemaking on those entities directly regulated by the 
rulemaking itself, and, therefore, are not required to evaluate the 
potential impacts to indirectly regulated entities. The regulatory 
mechanism through which critical habitat protections are realized is 
section 7 of the Act, which requires Federal agencies, in consultation 
with the Service, to ensure that any action authorized, funded, or 
carried out by the agency is not likely to destroy or adversely modify 
critical habitat. Therefore, under section 7, only Federal action 
agencies are directly subject to the specific regulatory requirement 
(avoiding destruction and adverse modification) imposed by critical 
habitat designation. Consequently, it is our position that only Federal 
action agencies would be directly regulated by this designation. There 
is no requirement under RFA to evaluate the potential impacts to 
entities not directly regulated. Moreover, Federal agencies are not 
small entities. Therefore, because no small entities would be directly 
regulated by this rulemaking, the Service certifies that the final 
critical habitat designation will not have a significant economic 
impact on a substantial number of small entities.
    During the development of this final rule we reviewed and evaluated 
all information submitted during the comment period that may pertain to 
our consideration of the probable incremental economic impacts of this 
critical habitat designation. Based on this information, we affirm our 
certification that this final critical habitat designation will not 
have a

[[Page 50280]]

significant economic impact on a substantial number of small entities, 
and a regulatory flexibility analysis is not required.

Energy Supply, Distribution, or Use--Executive Order 13211

    Executive Order 13211 (Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use) requires 
agencies to prepare Statements of Energy Effects when undertaking 
certain actions. OMB has provided guidance for implementing this 
Executive Order that outlines nine outcomes that may constitute ``a 
significant adverse effect'' when compared to not taking the regulatory 
action under consideration. The economic analysis finds that none of 
these criteria are relevant to this analysis. Thus, based on 
information in the economic analysis, energy-related impacts associated 
with slenderclaw crayfish conservation activities within critical 
habitat are not expected. As such, the designation of critical habitat 
is not expected to significantly affect energy supplies, distribution, 
or use. Therefore, this action is not a significant energy action, and 
no Statement of Energy Effects is required.

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

    In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501 
et seq.), we make the following findings:
    (1) This rule would not produce a Federal mandate. In general, a 
Federal mandate is a provision in legislation, statute, or regulation 
that would impose an enforceable duty upon State, local, or tribal 
governments, or the private sector, and includes both ``Federal 
intergovernmental mandates'' and ``Federal private sector mandates.'' 
These terms are defined in 2 U.S.C. 658(5)-(7). ``Federal 
intergovernmental mandate'' includes a regulation that ``would impose 
an enforceable duty upon State, local, or tribal governments'' with two 
exceptions. It excludes ``a condition of Federal assistance.'' It also 
excludes ``a duty arising from participation in a voluntary Federal 
program,'' unless the regulation ``relates to a then-existing Federal 
program under which $500,000,000 or more is provided annually to State, 
local, and Tribal governments under entitlement authority,'' if the 
provision would ``increase the stringency of conditions of assistance'' 
or ``place caps upon, or otherwise decrease, the Federal Government's 
responsibility to provide funding,'' and the State, local, or Tribal 
governments ``lack authority'' to adjust accordingly. At the time of 
enactment, these entitlement programs were: Medicaid; Aid to Families 
with Dependent Children work programs; Child Nutrition; Food Stamps; 
Social Services Block Grants; Vocational Rehabilitation State Grants; 
Foster Care, Adoption Assistance, and Independent Living; Family 
Support Welfare Services; and Child Support Enforcement. ``Federal 
private sector mandate'' includes a regulation that ``would impose an 
enforceable duty upon the private sector, except (i) a condition of 
Federal assistance or (ii) a duty arising from participation in a 
voluntary Federal program.''
    The designation of critical habitat does not impose a legally 
binding duty on non-Federal Government entities or private parties. 
Under the Act, the only regulatory effect is that Federal agencies must 
ensure that their actions do not destroy or adversely modify critical 
habitat under section 7. While non-Federal entities that receive 
Federal funding, assistance, or permits, or that otherwise require 
approval or authorization from a Federal agency for an action may be 
indirectly impacted by the designation of critical habitat, the legally 
binding duty to avoid destruction or adverse modification of critical 
habitat rests squarely on the Federal agency. Furthermore, to the 
extent that non-Federal entities are indirectly impacted because they 
receive Federal assistance or participate in a voluntary Federal aid 
program, the Unfunded Mandates Reform Act would not apply, nor would 
critical habitat shift the costs of the large entitlement programs 
listed above onto State governments.
    (2) We conclude that this rule would not significantly or uniquely 
affect small governments because the lands within and adjacent to the 
streams being designated as critical habitat are owned by private 
landowners. These government entities do not fit the definition of 
``small governmental jurisdiction.'' Consequently, we conclude that the 
critical habitat designation would not significantly or uniquely affect 
small government entities. As such, a Small Government Agency Plan is 
not required.

Takings--Executive Order 12630

    In accordance with E.O. 12630 (Government Actions and Interference 
with Constitutionally Protected Private Property Rights), we have 
analyzed the potential takings implications of designating critical 
habitat for slenderclaw crayfish in a takings implications assessment. 
The Act does not authorize the Service to regulate private actions on 
private lands or confiscate private property as a result of critical 
habitat designation. Designation of critical habitat does not affect 
land ownership, or establish any closures, or restrictions on use of or 
access to the designated areas. Furthermore, the designation of 
critical habitat does not affect landowner actions that do not require 
Federal funding or permits, nor does it preclude development of habitat 
conservation programs or issuance of incidental take permits to permit 
actions that do require Federal funding or permits to go forward. 
However, Federal agencies are prohibited from carrying out, funding, or 
authorizing actions that would destroy or adversely modify critical 
habitat. A takings implications assessment has been completed and 
concludes that this designation of critical habitat for slenderclaw 
crayfish does not pose significant takings implications for lands 
within or affected by the designation.

Federalism--Executive Order 13132

    In accordance with E.O. 13132 (Federalism), this rule does not have 
significant federalism effects. A federalism summary impact statement 
is not required. In keeping with Department of the Interior and 
Department of Commerce policy, we requested information from, and 
coordinated development of the proposed critical habitat designation 
with, the appropriate State resource agency in Alabama. We did not 
receive comments from Alabama. From a federalism perspective, the 
designation of critical habitat directly affects only the 
responsibilities of Federal agencies. The Act imposes no other duties 
with respect to critical habitat, either for States and local 
governments, or for anyone else. As a result, the rule does not have 
substantial direct effects either on the State, or on the relationship 
between the National Government and the State, or on the distribution 
of powers and responsibilities among the various levels of government. 
The designation may have some benefit to these governments because the 
areas that contain the features essential to the conservation of the 
species are more clearly defined, and the physical or biological 
features of the habitat necessary to the conservation of the species 
are specifically identified. This information does not alter where and 
what federally sponsored activities may occur. However, it may assist 
these local governments in long-range planning (because these local 
governments no longer have to wait for case-by-case section 7 
consultations to occur).
    Where State and local governments require approval or authorization 
from a

[[Page 50281]]

Federal agency for actions that may affect critical habitat, 
consultation under section 7(a)(2) of the Act would be required. While 
non-Federal entities that receive Federal funding, assistance, or 
permits, or that otherwise require approval or authorization from a 
Federal agency for an action, may be indirectly impacted by the 
designation of critical habitat, the legally binding duty to avoid 
destruction or adverse modification of critical habitat rests squarely 
on the Federal agency.

Civil Justice Reform--Executive Order 12988

    In accordance with Executive Order 12988 (Civil Justice Reform), 
the Office of the Solicitor has determined that the rule does not 
unduly burden the judicial system and that it meets the requirements of 
sections 3(a) and 3(b)(2) of the order. We are designating critical 
habitat in accordance with the provisions of the Act. To assist the 
public in understanding the habitat needs of the species, this rule 
identifies the elements of physical or biological features essential to 
the conservation of the species. The designated areas of critical 
habitat are presented on maps, and the rule provides several options 
for the interested public to obtain more detailed location information, 
if desired.

Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.)

    This rule does not contain any new collections of information that 
require approval by the Office of Management and Budget under the 
Paperwork Reduction Act of 1995. An agency may not conduct or sponsor, 
and a person is not required to respond to, a collection of information 
unless it displays a currently valid OMB control number.

National Environmental Policy Act (42 U.S.C. 4321 et seq.)

    We have determined that environmental assessments and environmental 
impact statements, as defined under the authority of the National 
Environmental Policy Act (NEPA), need not be prepared in connection 
with listing a species as an endangered or threatened species under the 
Act. We published a notice outlining our reasons for this determination 
in the Federal Register on October 25, 1983 (48 FR 49244).
    It is our position that, outside the jurisdiction of the U.S. Court 
of Appeals for the Tenth Circuit, we do not need to prepare 
environmental analyses pursuant to NEPA in connection with designating 
critical habitat under the Act. We published a notice outlining our 
reasons for this determination in the Federal Register on October 25, 
1983 (48 FR 49244). This position was upheld by the U.S. Court of 
Appeals for the Ninth Circuit (Douglas County v. Babbitt, 48 F.3d 1495 
(9th Cir. 1995), cert. denied 516 U.S. 1042 (1996)).

Government-to-Government Relationship With Tribes

    In accordance with the President's memorandum of April 29, 1994 
(Government-to-Government Relations with Native American Tribal 
Governments; 59 FR 22951), Executive Order 13175 (Consultation and 
Coordination With Indian Tribal Governments), and the Department of the 
Interior's manual at 512 DM 2, we readily acknowledge our 
responsibility to communicate meaningfully with recognized Federal 
Tribes on a government-to-government basis. In accordance with 
Secretarial Order 3206 of June 5, 1997 (American Indian Tribal Rights, 
Federal-Tribal Trust Responsibilities, and the Endangered Species Act), 
we readily acknowledge our responsibilities to work directly with 
Tribes in developing programs for healthy ecosystems, to acknowledge 
that Tribal lands are not subject to the same controls as Federal 
public lands, to remain sensitive to Indian culture, and to make 
information available to Tribes. We have identified no Tribal interests 
that will be affected by this final rulemaking.

References Cited

    A complete list of references cited in the SSA report and this 
rulemaking is available on the internet at http://www.regulations.gov 
under Docket No. FWS-R4-ES-2018-0069 and upon request from the Alabama 
Ecological Services Field Office (see FOR FURTHER INFORMATION CONTACT).

Authors

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

List of Subjects in 50 CFR Part 17

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

Regulation Promulgation

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

PART 17--ENDANGERED AND THREATENED WILDLIFE AND PLANTS

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

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


0
2. Amend Sec.  17.11(h) by adding an entry for ``Crayfish, 
slenderclaw'' to the List of Endangered and Threatened Wildlife in 
alphabetical order under Crustaceans to read as follows:


Sec.  17.11  Endangered and threatened wildlife.

* * * * *
    (h) * * *

----------------------------------------------------------------------------------------------------------------
                                                                                          Listing citations and
           Common name              Scientific name      Where listed         Status         applicable rules
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
           Crustaceans
 
                                                  * * * * * * *
Crayfish, slenderclaw...........  Cambarus cracens..  Wherever found....  E              86 FR [INSERT FEDERAL
                                                                                          REGISTER PAGE WHERE
                                                                                          THE DOCUMENT BEGINS],
                                                                                          9/8/21; 50 CFR
                                                                                          17.95(h)\CH\.
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------



0
3. Amend Sec.  17.95(h) by adding an entry for ``Slenderclaw Crayfish 
(Cambarus cracens)'' after the entry for ``Pecos Amphipod (Gammarus 
pecos)'' to read as follows:


Sec.  17.95  Critical habitat--fish and wildlife.

* * * * *
    (h) * * *

[[Page 50282]]

Slenderclaw Crayfish (Cambarus cracens)
    (1) Critical habitat units are depicted for DeKalb and Marshall 
Counties, Alabama, on the maps in this entry.
    (2) Within these areas, the physical or biological features 
essential to the conservation of the slenderclaw crayfish consist of 
the following components:
    (i) Geomorphically stable, small to medium, flowing streams:
    (A) That are typically 19.8 feet (ft) (6 meters (m)) wide or 
smaller;
    (B) With attributes ranging from:
    (1) Streams with predominantly large boulders and fractured 
bedrock, with widths from 16.4 to 19.7 ft (5 to 6 m), low to no 
turbidity, and depths up to 2.3 ft (0.7 m); to
    (2) Streams dominated by small substrate types with a mix of 
cobble, gravel, and sand, with widths of approximately 9.8 feet (3 m), 
low to no turbidity, and depths up to 0.5 feet (0.15 m);
    (C) With substrate consisting of boulder and cobble containing 
abundant interstitial spaces for sheltering and breeding; and
    (D) With intact riparian cover to maintain stream morphology and to 
reduce erosion and sediment inputs.
    (ii) Seasonal water flows, or a hydrologic flow regime (which 
includes the severity, frequency, duration, and seasonality of 
discharge over time), necessary to maintain benthic habitats where the 
species is found and to maintain connectivity of streams with the 
floodplain, allowing the exchange of nutrients and sediment for 
maintenance of the crayfish's habitat and food availability.
    (iii) Appropriate water and sediment quality (including, but not 
limited to, conductivity; hardness; turbidity; temperature; pH; and 
minimal levels of ammonia, heavy metals, pesticides, animal waste 
products, and nitrogen, phosphorus, and potassium fertilizers) 
necessary to sustain natural physiological processes for normal 
behavior, growth, and viability of all life stages.
    (iv) Prey base of aquatic macroinvertebrates and detritus. Prey 
items may include, but are not limited to, insect larvae, snails and 
their eggs, fish and their eggs, and plant and animal detritus.
    (3) Critical habitat does not include manmade structures (such as 
buildings, aqueducts, runways, roads, and other paved areas) and the 
land on which they are located existing within the legal boundaries on 
October 8, 2021.
    (4) Data layers defining map units were created using Universal 
Transverse Mercator (UTM) Zone 16N coordinates and species' occurrence 
data. The hydrologic data used in the maps were extracted from U.S. 
Geological Survey National Hydrography Dataset High Resolution 
(1:24,000 scale) using Geographic Coordinate System North American 1983 
coordinates. The maps in this entry, as modified by any accompanying 
regulatory text, establish the boundaries of the critical habitat 
designation. The coordinates or plot points or both on which each map 
is based are available to the public at http://www.regulations.gov 
under Docket No. FWS-R4-ES-2018-0069 and at the field office 
responsible for this designation. You may obtain field office location 
information by contacting one of the Service regional offices, the 
addresses of which are listed at 50 CFR 2.2.
    (5) Note: Index map follows:
BILLING CODE 4333-15-P

[[Page 50283]]

[GRAPHIC] [TIFF OMITTED] TR08SE21.000

    (6) Unit 1: Town Creek, DeKalb County, Alabama.
    (i) This unit consists of 41.8 river miles (67.2 river kilometers) 
of occupied habitat in Bengis and Town Creeks. Unit 1 includes stream 
habitat up to bank full height consisting of the headwaters of Bengis 
Creek to its confluence with Town Creek and upstream to the headwaters 
of Town Creek.
    (ii) Map of Unit 1 follows:

[[Page 50284]]

[GRAPHIC] [TIFF OMITTED] TR08SE21.001

    (7) Unit 2: Short Creek, DeKalb and Marshall Counties, Alabama.
    (i) Subunit 2a: Shoal Creek and Short Creek, DeKalb and Marshall 
Counties, Alabama.
    (A) This subunit consists of 10.3 river miles (16.6 river 
kilometers) of occupied habitat in Scarham, Shoal, Short, and 
Whippoorwill Creeks. Subunit 2a includes stream habitat up to bank full 
height consisting of the headwaters of Shoal Creek to its confluence 
with Whippoorwill Creek, Whippoorwill Creek to its confluence with 
Scarham Creek, Scarham Creek to its confluence with Short Creek, and 
Short Creek to its downstream extent to the Guntersville Lake Tennessee 
Valley Authority project boundary.
    (B) Map of Subunit 2a follows:

[[Page 50285]]

[GRAPHIC] [TIFF OMITTED] TR08SE21.002

    (ii) Subunit 2b: Scarham-Laurel Creek, DeKalb and Marshall 
Counties, Alabama.
    (A) This subunit consists of 25.9 river miles (41.7 river 
kilometers) of unoccupied habitat in Scarham-Laurel Creek. Subunit 2b 
includes stream habitat up to bank full height consisting of the 
headwaters of Scarham-Laurel Creek to its confluence with Whippoorwill 
Creek. This subunit is a small to medium, flowing stream with substrate 
consisting of boulder and cobble containing interstitial spaces for 
sheltering and breeding and connected to the occupied subunit 2a.
    (B) Map of Subunit 2b follows:

[[Page 50286]]

[GRAPHIC] [TIFF OMITTED] TR08SE21.003


[[Page 50287]]


* * * * *

Martha Williams,
Principal Deputy Director, Exercising the Delegated Authority of the 
Director, U.S. Fish and Wildlife Service.
[FR Doc. 2021-19093 Filed 9-7-21; 8:45 am]
BILLING CODE 4333-15-C