Endangered and Threatened Wildlife and Plants; Designation of Critical Habitat for the Spring Pygmy Sunfish

AGENCY:

Fish and Wildlife Service, Interior.

ACTION:

Proposed rule; reopening of comment period.

SUMMARY:

We, the U.S. Fish and Wildlife Service (Service), announce the reopening of the public comment period on our October 2, 2012, proposed designation of critical habitat for the spring pygmy sunfish (Elassoma alabamae) under the Endangered Species Act of 1973, as amended (Act). In accordance with section 4(b)(2) of the Act, we are considering excluding from the final designation of critical habitat lands covered by three candidate conservation agreements with assurances (CCAAs), based on the conservation benefit these agreements provide the species, the positive relationship we have with these landowners, and the potential that this action would provide an incentive for the establishment of additional CCAAs in the future. This comment period will allow all interested parties an opportunity to comment on the benefits of the exclusion or inclusion of lands covered by these existing CCAAs, particularly those lands under two recently established CCAAs. We will also accept comments on any other aspect of the proposed critical habitat rule. Comments previously submitted need not be resubmitted, as they will be fully considered in preparation of the final rule.

DATES:

We will consider comments received or postmarked on or before March 7, 2014. Comments submitted electronically using the Federal eRulemaking Portal (see ADDRESSES section, below) must be received by 11:59 p.m. Eastern Time on the closing date.

ADDRESSES:

Document availability: You may obtain copies of the October 2, 2012, proposed rule and the April 29, 2013, publication on the Internet at http://www.regulations.gov at Docket Number FWS-R4-ES-2013-0010. Copies of established CCAAs within proposed critical habitat can be found at http://www.fws.gov/mississippiES/. Documents may also be obtained by mail from the Mississippi Ecological Services Field Office (see FOR FURTHER INFORMATION CONTACT).

Written comments: You may submit written comments by one of the following methods:

(1) Electronically: Go to the Federal eRulemaking Portal: http://www.regulations.gov. In the Search box, enter FWS-R4-ES-2013-0010, which is the docket number for the critical habitat portion of the proposed rulemaking. You may submit a comment by clicking on “Comment Now!”

(2) By hard copy: Submit by U.S. mail or hand-delivery to: Public Comments Processing, Attn: FWS-R4-ES-2013-0010; Division of Policy and Directives Management; U.S. Fish and Wildlife Service; 4401 N. Fairfax Drive, MS 2042-PDM; Arlington, VA 22203.

We request that you send comments only by the methods described above. We will post all comments on http://www.regulations.gov. This generally means that we will post any personal information you provide us (see the Public Comments section below for more details).

FOR FURTHER INFORMATION CONTACT:

Stephen Ricks, Field Supervisor, Mississippi Ecological Services Field Office, 6578 Dogwood View Parkway, Jackson, MS 39213; by telephone (601-321-1122); or by facsimile (601-965-4340). If you use a telecommunications device for the deaf (TDD), please call the Federal Information Relay Service (FIRS) at 800-877-8339.

SUPPLEMENTARY INFORMATION:

Public Comments

We will accept written comments and information during this reopened comment period on our proposed designation of critical habitat for the spring pygmy sunfish that was published in the Federal Register on October 2, 2012 (77 FR 60180), and the revision to the proposed boundaries of Unit 1 described in our April 29, 2013, publication (78 FR 25033). We will consider information and recommendations we receive from all interested parties. We intend that any final action resulting from this proposal will be based on the best scientific and commercial data available and be as accurate and as effective as possible.

We request comments or information from the public or from any interested party on any aspect of the proposed designation of critical habitat. However, we particularly seek comments concerning:

(1) The reasons why we should or should not designate habitat as “critical habitat” under section 4 of the Act (16 U.S.C. 1531 et seq.), including whether there are threats to the species from human activity, the degree of which can be expected to increase due to the designation, and whether that increase in threat outweighs the benefit of designation such that the designation of critical habitat is not prudent.

(2) Information on whether the benefits of the exclusion of lands covered by existing CCAAs (Belle Mina Farms Ltd., McDonald Farm, Horton Farm), or any other particular area, outweigh the benefits of inclusion under section 4(b)(2) of the Act.

(3) Land use designations and current or planned activities in the subject areas and their possible impacts on proposed critical habitat.

If you submitted comments or information on the proposed rule (77 FR 60180) during the initial comment period from October 2, 2012, to December 3, 2012, or during the second comment period from April 29, 2013, to May 29, 2013 (78 FR 25033), please do not resubmit them. We have incorporated them into the public record as part of the previous two comment periods, and we will fully consider them in the preparation of our final determination.

You may submit your comments and materials concerning the proposed critical habitat rule by one of the methods listed in the ADDRESSES section. We request that you send comments only by the methods described in the ADDRESSES section.

If you submit a comment via http://www.regulations.gov,, your entire comment—including any personal identifying information—will be posted on the Web site. We will post all hardcopy comments on http://www.regulations.gov as well. If you submit a hardcopy comment that includes personal identifying information, you may request at the top of your document that we withhold this information from public review. However, we cannot guarantee that we will be able to do so.

Comments and materials we receive, as well as supporting documentation we used in preparing the proposed rule, are available for public inspection on http://www.regulations.gov at Docket No. FWS-R4-ES-2013-0010, or by appointment, during normal business hours, at the U.S. Fish and Wildlife Service, Mississippi Ecological Services Field Office (see FOR FURTHER INFORMATION CONTACT).

Background

It is our intent to discuss only those topics directly relevant to the designation of critical habitat for the spring pygmy sunfish in this document. For more information on previous Federal actions concerning the spring pygmy sunfish, or information regarding its biology, status, distribution, and habitat, refer to the proposed rule published in the Federal Register on October 2, 2012 (77 FR 60180), and the April 29, 2013, publication reopening the comment period and announcing the availability of a draft economic analysis (78 FR 25033), both of which are available online at http://www.regulations.gov at Docket No. FWS-R4-ES-2013-0010 or by mail from the Mississippi Ecological Services Field Office (see FOR FURTHER INFORMATION CONTACT).

In our October 2, 2012, proposed rule (77 FR 60180), we proposed to list the spring pygmy sunfish as threatened and to designate two critical habitat units, totaling approximately 8 stream miles (mi) (12.9 kilometers (km)) and 1,617 acres (ac) (654.4 hectares (ha)) spring system habitat and adjacent upland buffer in Limestone County, Alabama. On April 29, 2013 (78 FR 25033), we re-opened the comment period on our proposal for 30 days to allow public comment on the amended required determinations section of the proposal, the draft economic analysis, and a proposed size reduction in critical habitat based on information we received during the original public comment period. Specifically, we proposed to reduce the size of Unit 1 by 67.6 ac (27.6 ha), resulting in a revised proposed critical habitat designation totaling approximately 8 stream mi (12.9 km) and 1,549.4 ac (627.02 ha). In that document, we also announced that we would prepare separate final rules for the proposed listing and the proposed critical habitat designation. On October 2, 2013, we published a final rule designating the spring pygmy sunfish as a threatened species under the Act (78 FR 60766).

Candidate Conservation Agreements With Assurances (CCAAs)

We have worked with key landowners over the years on the conservation of this species and its habitat on their lands. In June 2012, we entered into a CCAA with Belle Mina Farms Ltd. The CCAA provides conservation benefits to the sunfish in 24 percent of the habitat occupied by the species. On October 1, 2013, we published a notice of availability in the Federal Register (78 FR 60307) and requested comments on issuance of enhancement of survival permits and associated CCAAs for the spring pygmy sunfish for two additional landowners: Mr. Albert C. McDonald of Greenbriar Enterprises LLC (applicant McDonald Farm) and Ms. Katherine H. Garrett of Greenbrier Enterprises LLC (applicant Horton Farm). In November 2013, following the close of the comment period on October 31, 2013, and after review by the Service of all comments, the Service and the landowners signed the CCAAs. Conservation measures set forth in these CCAAs are similar to those in the Belle Mina Farms Ltd. CCAA and provide protection for 19 percent of the species' habitat within the middle reach of the Beaverdam Spring/Creek system. Specific information on the contents of the McDonald and Horton Farms CCAAs can be found in our October 1, 2013 (78 FR 60307), notice of availability and at http://www.fws.gov/mississippiES/.

In our October 2, 2012, proposed rule, we presented information on the Belle Mina Farms Ltd. CCAA, and specifically requested comments on the benefits of including or excluding these lands from critical habitat designation. Since the McDonald and Horton Farms CCAAs were executed after the close of both earlier comment periods on the proposed critical habitat designation, we are again reopening the comment period to ensure that the public has an adequate opportunity to review and comment on the benefits of including or excluding the lands covered by the McDonald and Horton Farms CCAAs from the designation of critical habitat for this species. As a reference, we have included a map below showing the location of lands covered by all three CCAAs in relation to the proposed critical habitat boundaries for Unit 1. Except for the overlay with the CCAA areas, the boundaries of Unit 1 shown in the map below are not changed from what we proposed in the April 29, 2013, publication (78 FR 25033). We intend to issue a final critical habitat determination in 2014.

Critical Habitat

Section 3 of the Act defines critical habitat as the specific areas within the geographical area occupied by a species, at the time it is listed in accordance with the Act, on which are found those physical or biological features essential to the conservation of the species and that may require special management considerations or protection, and specific areas outside the geographical area occupied by a species at the time it is listed, upon a determination that such areas are essential for the conservation of the species. If the proposed rule is made final, section 7 of the Act will prohibit destruction or adverse modification of critical habitat by any activity funded, authorized, or carried out by any Federal agency. Federal agencies proposing actions affecting critical habitat must consult with us on the effects of their proposed actions, under section 7(a)(2) of the Act.

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

Section 4(b)(2) of the Act requires that we designate or revise critical habitat based upon the best scientific data available, after taking into consideration the economic impact, impact on national security, or any other relevant impact of specifying any particular area as critical habitat. We may exclude an area from critical habitat if we determine that the benefits of excluding the area outweigh the benefits of including the area as critical habitat, provided such exclusion will not result in the extinction of the species.

When considering the benefits of inclusion for an area, we consider the additional regulatory benefits that area would receive from the protection from adverse modification or destruction as a result of actions with a Federal nexus (activities conducted, funded, permitted, or authorized by Federal agencies), the educational benefits of mapping areas containing essential features that aid in the recovery of the listed species, and any benefits that may result from designation due to State or Federal laws that may apply to critical habitat.

When considering the benefits of exclusion, we consider, among other things, whether exclusion of a specific area is likely to result in conservation; the continuation, strengthening, or encouragement of partnerships; or implementation of a management plan. In the case of the spring pygmy sunfish, the benefits of critical habitat include public awareness of the presence of the species and the importance of habitat protection, and, where a Federal nexus exists, increased habitat protection for this species due to protection from adverse modification or destruction of critical habitat. In practice, situations with a Federal nexus exist primarily on Federal lands or for projects undertaken by Federal agencies.

We are considering excluding all areas covered by the Belle Mina Farms Ltd., McDonald Farm, and Horton Farm CCAAs based on our partnerships with the landowners and the conservation benefits that these agreements afford the sunfish. However, the final decision on whether to exclude any areas will be based on the best scientific and commercial data available at the time of the final designation, including information obtained during the comment periods and information about the economic impact of designation.

Authors

The primary authors of this notice are the staff members of the Mississippi Ecological Services Field Office and the Regional Office-Ecological Services Program, Southeast Region, U.S. Fish and Wildlife Service.

Authority

The authority for this action is the Endangered Species Act of 1973, as amended (16 U.S.C. 1531 et seq.).