Endangered and Threatened Wildlife and Plants; Endangered Species Status for Ocmulgee Skullcap and Designation of Critical Habitat

SUPPLEMENTARY INFORMATION:

Executive Summary

Why we need to publish a rule. Under the Act, a species warrants listing if it meets the definition of an endangered species (in danger of extinction throughout all or a significant portion of its range) or a threatened species (likely to become endangered within the foreseeable future throughout all or a significant portion of its range). If we determine that a species warrants listing, we must list the species promptly and designate the species' critical habitat to the maximum extent prudent and determinable. We have determined that the Ocmulgee skullcap meets the Act's definition of an endangered species; therefore, we are listing it as such and finalizing a designation of its critical habitat. Both listing a species as an endangered or threatened species and designating critical habitat can be completed only by issuing a rule through the Administrative Procedure Act rulemaking process (5 U.S.C. 551 et seq.).

What this document does. This rule lists the Ocmulgee skullcap as an endangered species and designates critical habitat for the species in 18 units totaling approximately 6,661 acres (ac) (2,696 hectares (ha)) within portions of 10 counties in Georgia and 2 counties in South Carolina.

The basis for our action. Under the Act, we may determine that a species is an endangered or threatened species because of any of five factors: (A) The present or threatened destruction, modification, or curtailment of its habitat or range; (B) overutilization for commercial, recreational, scientific, or educational purposes; (C) disease or predation; (D) the inadequacy of existing regulatory mechanisms; or (E) other natural or manmade factors affecting its continued existence. We have determined that the Ocmulgee skullcap is an endangered species due to the following threats: habitat loss and fragmentation due to development and urbanization (Factor A); competition and encroachment from nonnative, invasive species (Factors A and E); and herbivory from white-tailed deer ( Odocoileus virginianus) (Factor C).

Section 4(a)(3) of the Act requires that the Secretary of the Interior (Secretary) to the maximum extent prudent and determinable, concurrently with listing designate critical habitat for the species. Section 3(5)(A) of the Act defines critical habitat as (i) the specific areas within the geographical area occupied by the species, at the time it is listed, on which are found those physical or biological features (I) essential to the conservation of the species and (II) which may require special management considerations or protections; and (ii) specific areas outside the geographical area occupied by the species at the time it is listed, upon a determination by the Secretary that such areas are essential for the conservation of the species. Section 4(b)(2) of the Act states that the Secretary must make the designation on the basis of the best scientific data available and after taking into consideration the economic impact, the impact on national security, and any other relevant impacts of specifying any particular area as critical habitat.

Previous Federal Actions

Please refer to the proposed listing and critical habitat rule (87 FR 37378) for the Ocmulgee skullcap published on June 22, 2022, for a detailed description of previous Federal actions concerning this species.

Peer Review

A species status assessment (SSA) team prepared an SSA report for the Ocmulgee skullcap. The SSA team was composed of Service biologists, in consultation with other species experts. The SSA report represents a compilation of the best scientific and commercial data available concerning the status of the species, including the impacts of past, present, and future factors (both negative and beneficial) affecting the species.

In accordance with our joint policy on peer review published in the Federal Register on July 1, 1994 (59 FR 34270), and our August 22, 2016, memorandum updating and clarifying the role of peer review of listing actions under the Act, we solicited independent scientific review of the information contained in the Ocmulgee skullcap SSA report. As discussed in the June 22, 2022, proposed rule (87 FR 37378), we sent the SSA report to three independent peer reviewers and received one response. The peer review can be found at the docket on https://www.regulations.gov. In preparing the proposed rule, we incorporated the results of the review, as appropriate, into the SSA report, which was the foundation for the proposed rule and this final rule. A summary of the peer review comments and our responses can be found under Summary of Comments and Recommendations, below.

Summary of Changes From the Proposed Rule

This final rule incorporates changes from our June 22, 2022, proposed rule (87 FR 37378) based on the comments that we received and respond to in this document as discussed in the Summary of Comments and Recommendations. Based on the comments and new information received (as described below) and our further consideration of the threats to the species, we determined the current risk of extinction is higher (see Determination of Ocmulgee Skullcap's Status, below) than we characterized in the proposal to list the Ocmulgee skullcap as a threatened species (87 FR 37378; June 22, 2022). We reassessed our analysis and found that habitat conditions in some areas, along with the low resiliency condition of most of the known Ocmulgee skullcap populations, places the species at a currently high risk of extinction throughout its range. Thus, after evaluating the best available information and the Act's regulations and policies, we determined that the Ocmulgee skullcap 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 Ocmulgee skullcap meets the definition of an endangered species, a 4(d) rule is inapplicable; consequently, we have removed that portion of the proposed rule issued under the authority of section 4(d) of the Act from this final rule.

New information ( i.e., updated surveys and habitat condition in areas considered extirpated or containing no suitable habitat, including updates regarding the Savannah River Bluffs Natural Heritage Preserve and Horse Creek sites) was submitted to us during the proposed rule's comment period. This new information and the comments we received during the comment period prompted us to reevaluate the best available information around the inclusion of sites previously considered extirpated in the SSA report, which is reflected in a new version of the SSA report (version 1.3) (Service 2023, pp. 21-22; 20-28). Applying the methodology to designate critical habitat (see Criteria Used to Identify Critical Habitat, below) to the new information, we determined that it is appropriate to add an occupied subunit to the critical habitat designation. The results of this updated analysis have been incorporated into this final rule and revises Unit 1 to add a new Subunit 1d, based on the area that we found to meet the definition of critical habitat, as described in this rule. The addition of Subunit 1d increases the total critical habitat designation by 84 ac (34 ha) from the proposed critical habitat designation. The full descriptions of the designated units and subunits follow in III. Critical Habitat, below.

We changed the name of critical habitat Unit 9 from Robins Air Force Base to Adjoins Robins Air Force Base, to clarify the unit does not extend onto Robins Air Force Base but is immediately adjacent to the installation. In addition, we erroneously stated that Unit 9 consisted of 455 ac (184 ha) and that it included 231 ac (93 ha) of privately owned land and 224 ac (91 ha) of Department of Defense owned lands, even though the Robins Air Force Base was exempted. We changed the unit description to accurately reflect the exemption of the Robins Air Force Base, leaving 231 ac (93 ha) of privately owned land in Unit 9.

In the Summary of Biological Status and Threats, we clarified the significance of silvicultural and agricultural land uses on Ocmulgee skullcap populations.

Further, we have made minor editorial or stylistic changes and corrections to the June 22, 2022, proposed rule (87 FR 37378) in this final rule.

Summary of Comments and Recommendations

In the proposed rule published on June 22, 2022 (87 FR 37378), we requested that all interested parties submit written comments on the proposal by August 22, 2022. We also contacted appropriate Federal and State agencies, scientific experts, organizations, and other interested parties and invited them to comment on the proposal. Newspaper notices inviting general public comment were published in the Aiken Standard, Augusta Chronicle, and Macon Telegraph newspapers on June 23, 2022. We did not receive any requests for a public hearing. All substantive information we received during comment periods has either been incorporated directly into this final determination or is addressed below.

Peer Reviewer Comments

As discussed in Peer Review above, we received comments from one peer reviewer on the draft SSA report. We reviewed the comments we received from the peer reviewer for substantive issues and new information regarding the contents of the SSA report. Peer reviewer comments are addressed in the following summary. As discussed above, because we conducted this peer review prior to the publication of our proposed rule, we had already incorporated all applicable peer review comments into version 1.2 of the SSA report, which was the foundation for the proposed rule and this final rule.

The peer reviewer generally concurred with our methods and conclusions and provided support for thorough and descriptive narratives of assessed issues, additional information, clarifications, and suggestions to improve the final SSA report (version 1.2, Service 2020, entire). No substantive changes to our analysis and conclusions within the SSA report were deemed necessary, and the peer reviewer comments are addressed in versions 1.2 (Service 2020, entire) of the SSA report, which is available for public review at https://www.regulations.gov under Docket No. FWS-R4-ES-2021-0059.

(1) Comment: The peer reviewer suggested that the threat of land conversion to industrial silviculture or agriculture should be included in the future condition scenarios.

Our response: Our SSA report identifies urbanization and deer herbivory as the primary threats to the species. Although industrial silviculture or agriculture land uses may occur near the species' occurrences, the species typically occurs on steep slopes and bluffs that are less suitable for conversion to silviculture and agriculture. Thus, silviculture and agriculture activities that do not implement State-approved best management practices (BMPs) to buffer slopes ( i.e., Ocmulgee skullcap habitat) from erosion may impact populations. At least one occurrence, Boggy Gut Creek, has been affected by land use change associated with silviculture. The Boggy Gut Creek occurrence was last observed in 1999, but the entire site was clearcut in 2005, planted in loblolly pine ( Pinus taeda), and subsequently cut in 2014 and 2017. In the most recent rangewide survey, Ocmulgee skullcap was not observed on the site and is categorized as “possibly extirpated” (Bradley 2019, p. 30).

At this time, the best available information is not sufficiently detailed to determine the level of BMP implementation in sites with Ocmulgee skullcap occurrences. However, implementation of State-approved BMPs for forestry activities are reportedly high for streamside management zones (SMZs) across Georgia and South Carolina, 91 and 99 percent, respectively (South Carolina Forestry Commission 2020, p. 6; Georgia Forestry Commission 2021, p. 3). Further, given the steep slopes associated with most Ocmulgee skullcap occurrences, if BMP implementation is high in these areas, forestry activities are less likely to impact the species. Finally, in our future scenarios analysis in the SSA report, we describe how populations that occur on protected lands would not only be protected from urbanization but would also be protected from direct impacts from silviculture and agriculture (Service 2023, pp. 38-41).

Public Comments

(2) Comment: Several commenters stated their view that the Ocmulgee skullcap warrants listing as an endangered species rather than a threatened species. In support of this assertion, these commenters point to: (a) the current low or very low resiliency exhibited by 16 of 19 delineated populations, (b) 11 of 19 populations occurring on lands not categorized as protected lands, and (c) the effects of climate change, in addition to the effects of other threats, on the species.

Our response: We further considered our analysis and the impacts of individual and cumulative threats to the current condition of the Ocmulgee skullcap. After further consideration of current threats to the species, the low resiliency condition of most of the known Ocmulgee skullcap populations, and new information on habitat condition in some areas, we determined the current risk of extinction for the Ocmulgee skullcap is higher (see Determination of Ocmulgee Skullcap's Status, below), than we characterized in the proposal to list the species as a threatened species. Therefore, we have determined the Ocmulgee skullcap is currently at risk of extinction as a result of the threats of habitat degradation and loss from development, competition and encroachment from nonnative and invasive (plant) species, and herbivory by white-tailed deer.

However, the best available information does not indicate that the effects of climate change have negatively impacted or are currently negatively impacting the Ocmulgee skullcap's viability. In the future, projected changes due to climate change, including the frequency and severity of drought and changes in rainfall patterns, may negatively impact the species in the future as the effects of climate change increase or may exacerbate the effects of other threats.

(3) Comment: One commenter suggested our determination that the threats are not concentrated in any portion of the Ocmulgee skullcap's range at a biologically meaningful scale is not appropriate. The commenter recommended we revise our significant portion of the range analysis to evaluate the 16 of 19 populations that the commenter notes are impacted by small population size and isolation, as well as the threats to 11 populations that do not occur on protected lands.

Our response: 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. As stated above under Our Response to (2) Comment, we have determined that the Ocmulgee skullcap meets the definition of an endangered species (see Determination of Ocmulgee Skullcap's Status, below), and we accordingly did not undertake or revise an analysis of any significant portions of its range.

(4) Comment: One commenter recommended we include areas surrounding existing Ocmulgee skullcap populations in the critical habitat designation.

Our response: For Ocmulgee skullcap populations to be sufficiently resilient, life-history requirements must be met, including areas of suitable habitat large enough to support pollinators needed for Ocmulgee skullcap reproduction. These areas of suitable habitat include habitat that acts to prevent or delay encroachment by nonnative, invasive species. To address this life-history requirement, we:

(a) Address the species' requirement of intact hardwood forest to provide the appropriate canopy conditions in large enough areas to prevent or delay encroachment of nonnative, invasive species. We recognize the life-history requirement for habitat conditions to reduce encroachment and competition, and we include that habitat as a physical or biological feature essential to the conservation of the species (see Summary of Essential Physical or Biological Features, below) to impede the invasion of competitors.

(b) Address the need for critical habitat areas to include habitat surrounding Ocmulgee skullcap occurrences that support the life-history requirements for pollinators. We delineated populations of Ocmulgee skullcap using a 2-kilometer (km) (1.24-mile (mi)) radius circle around species' occurrences, with overlapping areas determined to be within the same population based on the need for sufficient space and resources for required pollinators (NatureServe 2020, entire; Service 2023, p. 21). The SSA report contains the best available information used to identify critical habitat for the Ocmulgee skullcap, which includes existing monitoring data, population status surveys, and maps using the best available Geographic Information Systems (GIS) layers (Service 2023, pp. 21, 37-38, appendix A).

(5) Comment: A commenter requested that we include areas with historical and current Ocmulgee skullcap occurrences, including the Horse Creek occurrence and 15 other sites (as described in Morris 1999), in the final critical habitat designation.

Our response: In our delineation of critical habitat for the Ocmulgee skullcap, we relied on the best available scientific and commercial information, including Morris (1999). We also incorporated occurrence data (1961 to present) obtained from peer-reviewed articles, unpublished survey reports, and survey records contained in agency and partner databases ( i.e., Georgia and South Carolina Natural Heritage databases), including the most recent rangewide species survey (Bradley 2019, entire; Service 2022, entire).

Of the 16 sites described by the commenter, 13 are included in the final critical habitat designation (see table 1, below). As noted below in table 1, two occurrences described by the commenter were misidentified as Ocmulgee skullcap until 2018, when the sites were resurveyed and the occurrences correctly identified as the congeneric Mellichamp's skullcap ( Scutellaria mellichampii) (Bradley 2019, pp. 42-45; Service 2023, pp. 6-7; 87 FR 37378, June 22, 2022, p. 37380). In table 1, below, we list the 16 sites recommended for inclusion by the commenter, the county and State where the site is located, the corresponding site name in Bradley (2019), and the proposed and final critical habitat unit where the site occurs, or the correct identification of the species.

Ocmulgee skullcap was last observed in 1961 on the remaining site, Horse Creek. In a recent survey, some Ocmulgee skullcap habitat characteristics were documented but no Ocmulgee skullcap were found in the area of the 1961 Horse Creek occurrence (Service 2022, entire). Given that Ocmulgee skullcap has not been observed in the Horse Creek area for more than 60 years and there is limited suitable habitat, it is unlikely this area would support the conservation of the species. Therefore, we did not include the Horse Creek occurrence in our delineation of critical habitat.