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Federal Register / Vol. 86, No. 185 / Tuesday, September 28, 2021 / Proposed Rules Section 4b8 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 7a2 of the Act by destroying or adversely modifying such habitat, or that may be affected by such designation.
Activities that the Services may, during a consultation under section 7a2 of the Act, find are likely to destroy or adversely modify critical habitat include, but are not limited to, actions that would impact the EdwardsTrinity aquifer and the springs and streams within the Hydrologic Unit Code HUC-12 watersheds of Paint Creek, Bluff Creek, and Little Paint Creek or within the upper South Llano River HUC8 watershed. Depending on the activity and location, these actions could include, but are not limited to, groundwater pumping; discharge of contaminants; discharge of dredge or fill material; construction and maintenance of roads, railroads, and pipelines; and conservation and habitat management, which may include thinning of ashe juniper Juniperus ashei, prescribed burning, and control of invasive aquatic plants, such as elephant ear Colocassia esculenta. Potential effects of these activities include reduced spring flow at Seven Hundred Springs, increased runoff, flash flooding and scouring along the South Llano River, and contamination of the aquifer with toxic substances or excessive nutrient levels.
Exemptions Application of Section 4a3 of the Act Section 4a3Bi of the Act 16
U.S.C. 1533a3Bi 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 DoD lands with a completed INRMP
within the proposed critical habitat designation.
Consideration of Impacts Under Section 4b2 of the Act Section 4b2 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
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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 he determines that the benefits of such exclusion outweigh the benefits of specifying such area as part of the critical habitat, unless he 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 the determination to exclude a particular area, the statute on its face, as well as the legislative history, are clear that the Secretary has broad discretion regarding which factors to use and how much weight to give to any factor.
The first sentence in section 4b2 of the Act requires that we take into consideration the economic, national security, or other relevant impacts of designating any particular area as critical habitat. We describe below the process that we undertook for taking into consideration each category of impacts and our analyses of the relevant impacts.
Consideration of Economic Impacts Section 4b2 of the Act and its implementing regulations require that we consider the economic impact that may result from a designation of critical habitat. Accordingly, we have prepared a draft economic analysis concerning the proposed critical habitat designation, which is available for review and comment see ADDRESSES, above. To assess the probable economic impacts of a designation, we must first evaluate specific land uses or activities and projects that may occur in the area of the critical habitat. We then must evaluate the impacts that a specific critical habitat designation may have on restricting or modifying specific land uses or activities for the benefit of the species and its habitat within the areas proposed. We then identify which conservation efforts may be the result of the species being listed under the Act versus those attributed solely to the designation of critical habitat for this particular species. The probable economic impact of a proposed critical habitat designation is analyzed by comparing scenarios both with critical habitat and without critical habitat.
The without critical habitat scenario represents the baseline for the analysis, which includes the existing regulatory and socio-economic burden imposed on landowners, managers, or other resource users potentially affected by the designation of critical habitat e.g., under the Federal listing as well as other Federal, State, and local
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regulations. The baseline, therefore, represents the costs of all efforts attributable to the listing of the species under the Act i.e., conservation of the species and its habitat incurred regardless of whether critical habitat is designated. The with critical habitat scenario describes the incremental impacts associated specifically with the designation of critical habitat for the species. The incremental conservation efforts and associated impacts would not be expected without the designation of critical habitat for the species. In other words, the incremental costs are those attributable solely to the designation of critical habitat, above and beyond the baseline costs. These are the costs we use when evaluating the benefits of inclusion and exclusion of particular areas from the final designation of critical habitat should we choose to conduct a discretionary 4b2 exclusion analysis.
For this particular designation, we developed an incremental effects memorandum IEM considering the probable incremental economic impacts that may result from this proposed designation of critical habitat. The information contained in our IEM was then used to develop a screening analysis of the probable effects of the designation of critical habitat for the South Llano Springs moss IEc. 2020, entire.
We began by conducting a screening analysis of the proposed designation of critical habitat in order to focus our analysis on the key factors that are likely to result in incremental economic impacts. The purpose of the screening analysis is to filter out particular geographic areas of critical habitat that are already subject to such protections and are, therefore, unlikely to incur incremental economic impacts. In particular, the screening analysis considers baseline costs i.e., absent critical habitat designation and includes probable economic impacts where land and water use may be subject to conservation plans, land management plans, best management practices, or regulations that protect the habitat area as a result of the Federal listing status of the species. Ultimately, the screening analysis allows us to focus our analysis on evaluating the specific areas or sectors that may incur probable incremental economic impacts as a result of the designation. The screening analysis also assesses whether units are unoccupied by the species and may require additional management or conservation efforts as a result of the critical habitat designation for the species; these additional efforts may incur incremental economic impacts.

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