# Endangered and Threatened Wildlife and Plants; Threatened Species Status With Section 4(d) Rule for Panama City Crayfish and Designation of Critical Habitat

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URL: https://www.frixlaw.com/law-library/documents/fr%3A2021-27519

## Record

- **Collection:** Federal Register
- **Document type:** Rule
- **Published:** January 5, 2022
- **Citation:** 87 FR 546

## Text

DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
[Docket Nos. FWS-R4-ES-2017-0061 and FWS-R4-ES-2020-0137; FF09E2100 FXES1111090FEDR 223]
RIN 1018-BC14; 1018-BD50
Endangered and Threatened Wildlife and Plants; Threatened Species Status With Section 4(d) Rule for Panama City Crayfish and Designation of Critical Habitat

AGENCY:

Fish and Wildlife Service, Interior.

ACTION:

Final rule.

SUMMARY:

We, the U.S. Fish and Wildlife Service (Service), list the Panama City crayfish (
Procambarus econfinae
), a terrestrial crayfish species native to Bay County, Florida, as a threatened species with a rule issued under section 4(d) of the Endangered Species Act of 1973 (Act), as amended. We also designate critical habitat for the species under the Act. In total, approximately 4,138 acres (1,675 hectares (ha)) in Bay County, Florida, fall within eight units of critical habitat. This rule extends the Act's protections to the species and its designated critical habitat.

DATES:

This rule is effective February 4, 2022.

ADDRESSES:

This final rule is available on the internet at
https://www.regulations.gov.
Comments and materials we received, as well as supporting documentation we used in preparing this rule, are available for public inspection at
https://www.regulations.gov at
Docket Nos. FWS-R4-ES-2017-0061 and FWS-R4-ES-2020-0137.

The coordinates or plot points or both from which the maps are generated are included in the decision file for this critical habitat designation and are available at
https://www.regulations.gov
at Docket No. FWS-R4-ES-2020-0137 and at the Florida Ecological Services Field Office (see
FOR FURTHER INFORMATION CONTACT
, below). The critical habitat shapefile is available on the Service's Environmental Conservation Online System (ECOS) portal at
https://www.ecos.fws.gov.

FOR FURTHER INFORMATION CONTACT:

Lourdes Mena, Classification and Recovery Division Manager, Florida Ecological Services Field Office, U.S. Fish and Wildlife Service, 7915 Baymeadows Way, Suite 200, Jacksonville, FL 32256; telephone 904-731-3134. 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 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 in 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 Panama City crayfish meets the definition of a threatened species; therefore, we are listing it as such and finalizing a designation of its critical habitat. Listing a species as an endangered or threatened species and designation of critical habitat can be completed only by issuing a rule.

What this document does.
This rule lists the Panama City crayfish (
Procambarus econfinae
) as a threatened species with a rule issued under section 4(d) of the Act (a “4(d) rule”) and designates critical habitat in eight units totaling approximately 4,138 acres (1,675 ha) in Bay County, Florida.

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 habitat loss and fragmentation from development (Factor A) is the primary threat to the Panama City crayfish.

Section 4(a)(3) of the Act requires the Secretary of the Interior (Secretary) to designate critical habitat concurrent with listing to the maximum extent prudent and determinable. 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.

Economic analysis.
In accordance with section 4(b)(2) of the Act, we prepared an economic analysis of the impacts of designating critical habitat. On April 15, 2021, we published an announcement of, and solicited public comments on, the draft economic analysis (86 FR 19838). We received general comments that the designation would harm the local economy, but we received no specific or substantial information that would require altering the draft economic analysis. Therefore, we have adopted the draft economic analysis as final. As noted below in Summary of Changes from Proposed Rule, we revised the critical habitat designation and removed 3,039 acres (1,230 hectares (ha)) from the proposed designation. Accordingly, the estimated costs presented in the draft economic analysis will likely be reduced as a result of a smaller final designation of critical habitat.

Peer review and public comment.
Prior to our development of our January 3, 2018, and April 15, 2021, proposed rules (83 FR 330 and 86 FR 19838, respectively), we received peer reviews of the Species Status Assessment (SSA) report from eight experts, which informed our assessment that we used for this rulemaking. We also considered all comments and information we received from the public during the two public comment periods for the proposed rules.

Previous Federal Actions

Please refer to the Panama City crayfish proposed listing rule (83 FR 330) published on January 3, 2018, and the reopening of the comment period for the proposed listing rule with a proposed 4(d) rule and critical habitat designation (86 FR 19838) published on April 15, 2021, for detailed descriptions of previous Federal actions concerning this species.

Supporting Documents

A species status assessment (SSA) team prepared an SSA report for the Panama City crayfish. 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.

Summary of Changes From the Proposed Rule

This final rule incorporates several changes to our proposed 4(d) rule and critical habitat designation (86 FR 19838; April 15, 2021).

For the 4(d) rule, we removed the incidental take exception for conservation and restoration efforts by the Service or State wildlife agencies because the provisions of 50 CFR 17.31(b), which amount to the same or similar allowances, apply to the Panama City crayfish. In addition, based on comments we received, we clarified the incidental take exception for maintenance activities associated with rights-of-way to include mowing, use of herbicides, and mechanical side trimming, and we added the replacement of critical structural components, such as crossarms, insulators, conductors, etc., to this take exception in the 4(d) rule.

For the critical habitat designation, we made changes based on updated aerial photography, new information about permitted developments, and more recent information about Panama City crayfish habitat use in secondary soils. By using 2020 aerial photography (Bay County Property Appraiser 2020, unpaginated), we removed unsuitable or developed parcels, resulting in removal of approximately 473 acres (191 ha) from the critical habitat designation. The new aerial photography also revealed an additional 1.9 acres (0.8 ha) of habitat, confirmed by the occurrence of hydric soils, suitable grasses, and a high concentration of Panama City crayfish, which we added to Unit 1 (19th Street). We also revised our critical habitat delineation protocol based on new information with respect to how Panama City crayfish uses secondary soils. In the April 15, 2021, proposed rule, we used a 100-meter (m) (328-foot) buffer from the core soils into the secondary soils, but our more recent analysis uses a 15-m (50-foot) buffer from the core soils into the secondary soils, capturing 71 percent of all Panama City crayfish occurrences, and reducing the amount of designated critical habitat by 2,566 acres (1,038 ha). We have determined that the 50-foot buffer provides a better method to focus protection on lands that are likely occupied more consistently than those that may be occupied only during seasons or years with high rainfall events. Therefore, in this rule, we use the refined 50-foot buffer boundary to capture lands likely used by the Panama City crayfish all of the time versus land used only during a shorter portion of the crayfish's life cycle when rainfall is high. This approach better represents the habitat containing the primary biological features and supporting the Panama City crayfish a majority of the time. Given current information, Panama City crayfish are not likely to persist during drought years. Activities authorized, funded, or carried out by a Federal agency that may affect areas occupied by the species for part of its life cycle will still be subject to section 7 of the Act. As a result of these modifications, the final amount of designated critical habitat is 4,138 acres (1,675 ha), a decrease of 3,039 acres (1,230 ha) from the proposed designation.

I. Final Listing Determination

Background

A thorough review of the taxonomy, life history, and ecology of the Panama City crayfish is presented in the SSA report, version 2.0 (Service 2019). The full SSA report can be found on the Service's Environmental Conservation Online System (ECOS) portal at
https://ecos.fws.gov/ecp/species/8915
and at
http://www.regulations.gov
under Docket Nos. FWS-R4-ES-2017-0061 and FWS-R4-ES-2020-0137.

Species Description

The Panama City crayfish is a small, semi-terrestrial crayfish that grows to about 2 inches (in) (50.8 millimeters (mm)) in length (minus claws), and is found in south-central Bay County, Florida. The species' color pattern consists of a medium dark-brown background color, lighter brown mid-dorsal stripe, and darker brown dorsolateral stripes (Florida Fish and Wildlife Conservation Commission (FWC) 2016, p. 1). The Panama City crayfish was first described by Hobbs in 1942, from Bay County, Panama City, Florida. The Panama City crayfish is classified in the family Cambaridae and is a recognized taxon by the scientific community (Taylor et al. 2007; Integrated Taxonomic Information System 2017).

The life history of the Panama City crayfish specifically is not well known. Cambarid crayfish may live about 2.5 to 3 years (Hobbs 2001, p. 977), with a generation period of 2 years. For this family of crayfish, the majority breed more than once, with mating among mature yearlings frequent; however, many individuals do not become sexually active until late summer or fall. Females may produce between 30 and 160 eggs and have been found with eggs and/or young from March through September. Juveniles are most frequently found in the summer and have been observed through December, so juveniles appear to be produced from at least March through December. Juveniles can be carried overland by moving water during rainy periods, which aids in dispersal (Keppner and Keppner 2002, p. 11).

Eight crayfish species occur within the range of the Panama City crayfish, although only the hatchet crayfish and the jackknife crayfish are found in the same habitat as the Panama City crayfish and may co-occur with it (FWC 2017, p. 1). The Panama City crayfish is not known to hybridize with other species of crayfish.

Historically, the species inhabited natural and often temporary bodies of shallow fresh water within open pine flatwoods and wet prairie-marsh communities. However, most of these communities have been cleared for residential or commercial development or replaced with slash pine plantations. The Panama City crayfish currently inhabits the waters of grassy, gently sloped ditches and swales, slash pine plantations, utility rights-of-way, and a few remnant parcels protected under wetland and private easements (FWC 2016, p. 2).

The highest densities of Panama City crayfish have been recorded in areas with little to no shrub or tree cover (FWC 2016, p. 2). Suitable habitat is normally dominated by herbaceous vegetation. Lowest population densities have occurred in small, open sites where shrubs or trees were present, or in the furrows between bedding rows in some pine plantations (Keppner and Keppner 2005). When encountered in dense titi (
Cyrilla racemiflora
and
Cliftonia monophylla
) swamps, the species was associated with temporarily inundated areas open to the sun with some herbaceous vegetation. Such sites may be considered secondary or suboptimal habitat for the species. On sites where mixed habitat features are present (
e.g.,
partially wooded sites or sites with permanent, deep-water ponds), the Panama City crayfish appears to select favorable areas dominated by herbaceous vegetation, with shallow or fluctuating water levels (FWC 2016, p. 3; Keppner and Keppner 2005, p. 2).

The Panama City crayfish relies on particular soil types for burrow construction and supporting herbaceous vegetation; these soil types are categorized as core or secondary soils.

Core soils, or those that sustain long hydropattern wetlands, provide the best substrate to support the species; secondary soils, or those that support short hydropattern wetlands, are less ideal but still used (Service 2019, p. 23). Because they must have wet conditions for survival, Panama City crayfish rely on the dynamics of the flow of water and wetness of the soils for dispersal. These habitat restrictions and limited dispersal ability make the crayfish have low adaptive ability. The core and secondary soil types that support Panama City crayfish within the species' known range are described in more detail in the SSA report (Service 2019, pp. 23-24).

Panama City crayfish build burrows for shelter, which are normally in or adjacent to surface water when it is present in the hydric soils they inhabit (Hobbs 1981, entire). They construct burrows that contact the water table as the surface water of their habitat recedes, and they occupy burrows when surface water is absent or during periods of extreme water temperatures. They emerge from the burrows when surface water is present again or water temperatures are favorable. It appears that they can survive significant periods of drought in their burrows when they can maintain contact with the water table. During these dry periods, the Panama City crayfish excavates and lives in unbranched burrows up to 3 feet long that extend down to the water table, thereby enabling the species to remain adequately hydrated to survive (FWC 2016, p. 3).

Little is known about the specific feeding habits of the Panama City crayfish. Observations of Panama City crayfish that were held in aquaria spanning 1.5 plus years (Keppner and Keppner 2014, entire) indicate that they are detritivores and herbivores. Specimens were offered dead animal material, but they avoided it in favor of processing the substrate for particles of prepared fish food and the fresh aquatic vegetation that were provided as primary food sources. Herbaceous vegetation likely serves as a food source for the Panama City crayfish.

The Panama City crayfish historically ranged throughout south-central Bay County, Florida, within a 56-square-mile area (14,504 ha; see figure, below). The historical range likely created one population connected by core and secondary soils. As urban growth came to Panama City, the range of the Panama City crayfish became fragmented into isolated patches. Today, the species has 12 localized (
i.e.,
isolated) populations that can be divided into two groups, based on patterns in fragmentation from urban development: The western group and eastern group, using Transmitter Road as the primary division. Localized populations were delineated using a landscape genetic analysis based on a pattern of isolation-by-distance, where increasing geographic separation tends to reflect increasing genetic differentiation (Duncan et al. 2017, entire). A genetic analysis describes eight localized populations occurring in a western grouping and four localized populations occurring in an eastern grouping (Duncan et al. 2017, entire). The 12 populations are described in more detail in the SSA report (Service 2019, pp. 32-52), and are referred to as 19th Street, Old Airport, 390 West, Talkington, Minnesota, Edwards, Transmitter West, College Point, Deer Point, High Point, Star, and Transmitter East. Three of the populations are considered functionally extirpated (Old Airport, Minnesota, and College Point).

ER05JA22.000

Regulatory and Analytical Framework

Regulatory Framework

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 is an “endangered species” or a “threatened species.” The Act defines an “endangered species” as a species that is in danger of extinction throughout all or a significant portion of its range, and a “threatened species” as a species that is 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 any species is an “endangered species” or a “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.

These factors represent broad categories of natural or human-caused actions or conditions that could have an effect on a species' continued existence. In evaluating these actions and conditions, we look for those that may have a negative effect on individuals of the species, as well as other actions or conditions that may ameliorate any negative effects or may have positive effects.

We use the term “threat” to refer in general to actions or conditions that are known to or are reasonably likely to negatively affect individuals of a species. The term “threat” includes actions or conditions that have a direct impact on individuals (direct impacts), as well as those that affect individuals through alteration of their habitat or required resources (stressors). The term “threat” may encompass—either together or separately—the source of the action or condition or the action or condition itself.

However, the mere identification of any threat(s) does not necessarily mean that the species meets the statutory definition of an “endangered species” or a “threatened species.” In determining whether a species meets either definition, we must evaluate all identified threats by considering the expected response by the species, and the effects of the threats—in light of those actions and conditions that will ameliorate the threats—on an individual, population, and species level. We evaluate each threat and its expected effects on the species, then analyze the cumulative effect of all of the threats on the species as a whole. We also consider the cumulative effect of the threats in light of those actions and conditions that will have positive effects on the species, such as any existing regulatory mechanisms or conservation efforts. The Secretary determines whether the species meets the definition of an “endangered species” or a “threatened species” only after conducting this cumulative analysis and describing the expected effect on the species now and in the foreseeable future.

The Act does not define the term “foreseeable future,” which appears in the statutory definition of “threatened species.” Our January 3, 2018, proposed rule (83 FR 330) described “foreseeable future” for the Panama City crayfish as 20 to 30 years, which encompasses 10 to 15 generations, which we stated in that proposal is more than sufficient time to determine the species' response to stressors. On August 27, 2019, the Service published a final rule (84 FR 45020) codifying its understanding of “foreseeable future” at 50 CFR 424.11(d). Our implementing regulations at 50 CFR 424.11(d) set forth a framework for evaluating the foreseeable future on a case-by-case basis. The term “foreseeable future” extends only so far into the future as the Service can reasonably determine that both the future threats and the species' responses to those threats are likely. In other words, the foreseeable future is the period of time in which we can make reliable predictions. “Reliable” does not mean “certain”; it means sufficient to provide a reasonable degree of confidence in the prediction. Thus, a prediction is reliable if it is reasonable to depend on it when making decisions.

It is not always possible or necessary to define foreseeable future as a particular number of years. Analysis of the foreseeable future uses the best scientific and commercial data available and should consider the timeframes applicable to the relevant threats and to the species' likely responses to those threats in view of its life-history characteristics. Data that are typically relevant to assessing the species' biological response include species-specific factors such as lifespan, reproductive rates or productivity, certain behaviors, and other demographic factors.

The regulations at 50 CFR 424.11(d) did not significantly modify the Service's interpretation; rather, they codified a framework that sets forth how the Service will determine what constitutes the foreseeable future based on our long-standing practice. Accordingly, although the regulations at 50 CFR 424.11(d) do not apply to this final rule for the Panama City crayfish because the crayfish's listing was proposed prior to the effective date of the August 27, 2019, final rule, application of the regulations at 50 CFR 424.11(d) would not change the Service's assessment of foreseeable future for the Panama City crayfish as contained in our January 3, 2018, proposed rule and in this final rule.

Analytical Framework

The SSA report documents the results of our comprehensive biological review of the best scientific and commercial data regarding the status of the species, including an assessment of the potential threats to the species. The SSA report does not represent a decision by the Service on whether the species should be listed as an endangered or threatened species under the Act. It does, however, provide the scientific basis that informs our regulatory decisions, which involve the further application of standards within the Act and its implementing regulations and policies. The following is a summary of the key results and conclusions from the SSA report.

To assess Panama City crayfish viability, we used the three conservation biology principles of resiliency, redundancy, and representation (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 SSA process can be categorized into three sequential stages. During the first stage, we evaluated the individual species' life-history needs. The next stage involved an assessment of the historical and current condition of the species' demographics and habitat characteristics, including an explanation of how the species arrived at its current condition. The final stage of the SSA involved making predictions about the species' responses to positive and negative environmental and anthropogenic influences. Throughout all of these stages, we used the best available information to characterize viability as the ability of a species to sustain populations in the wild over time. We use this information to inform our regulatory decision.

Summary of Biological Status and Threats

In this discussion, we review the biological condition of the species and its resources, and the threats that influence the species' current and future condition, in order to assess the species' overall viability and the risks to that viability.

The Panama City crayfish needs freshwater wetlands that support herbaceous vegetation, which is important to the Panama City crayfish for food, shelter, and detritus formation. The species needs core or secondary soils to provide the proper sediment structure for burrow construction and to support the herbaceous vegetation. The Panama City crayfish needs access to groundwater (through burrowing) or surface water to prevent desiccation of individuals and populations. The species needs both adequate water quality and quantity to fulfill its life history.

To evaluate the current and future viability of the Panama City crayfish, we assessed a range of conditions to allow us to consider the species' resiliency, representation, and redundancy. For the Panama City crayfish to maintain viability, its populations or some portion thereof must be adequately resilient. To assess resiliency, we analyzed data related to two population factors (inbreeding rate and isolation) and three habitat factors (urbanization, protection/management, and suitable area) (see Table 1, below). Population condition rankings and habitat condition rankings were determined by combining these five factors, and then overall condition rankings were

categorized as high, medium, or low condition. High condition equates to a healthy condition with a high likelihood of persistence in the near term, low is declining condition with a low likelihood of persistence in the near term, and moderate condition is in between high and low (Service 2019, p. 60).

Table 1—Population and Habitat Factors for Panama City Crayfish (PCC)
[Service 2019, p. 60]

PCC
condition
rankings

Population factors

Inbreeding rate
1

Population isolation
Habitat factors

Urbanization
2

Protection and management
3

Suitable area
4

High
15 acres in suitable habitat
>1,000 acres.

Moderate
0-0.1
Small or moderately sized site that shares a border with another habitat unit
33-66% developed and unsuitable
Easements or ROWs with ≤15 acres in suitable habitat
100-1,000 acres.

Low
>0.1
Small or moderately sized site that is not connected to another
>66% developed and unsuitable
No habitat protections
0.1.

2
“Urbanization” is the percentage of developed and unsuitable acres within the area supporting each population.

3
“Protection and Management” considers whether the site has had any easements or rights-of-way (ROWs) in suitable habitat that are protected against development, and then the easements and ROWs are ranked by size.

4
“Suitable Area” means the acres of undeveloped core and secondary soils within the habitat unit.

We described representation for the Panama City crayfish in terms of a single meta-population with low adaptive ability that was once connected through core and secondary soils but is currently inhabiting “islands” of habitat due to fragmentation of habitat from urbanization, resulting in limited dispersal and low adaptive ability. We assessed Panama City crayfish redundancy in the context of the species' historical range compared to its current range, and the relative risk of the distribution throughout the range to catastrophic events.

Factors Influencing Panama City Crayfish Viability

Freshwater aquatic systems face a multitude of natural and anthropogenic threats and stressors (Neves et al. 1997, p. 44). The FWC has identified multiple factors that have impacts on Panama City crayfish populations and habitats, most of which are related to human activities (FWC 2016, entire). Due to its persistence within a rapidly urbanizing landscape, the Panama City crayfish has adapted and is presently found in or near habitats that have been altered to varying degrees, which are no longer considered natural or wild. These include roadside ditches, rights-of-way, clearings in silvicultural land, and residential property. Potential threats to Panama City crayfish include further habitat loss and degradation, habitat fragmentation, and isolation. Other possible factors affecting survival include direct mortality related to construction activities, incompatible applications of chemicals or spills, off-road vehicle use, illegal harvest, and direct competition with indigenous and/or nonindigenous species.

Generally, these factors can fall into two categories: population-scale (localized) threats and rangewide stressors or systematic changes. Current and potential future effects, along with current distribution and abundance, help inform viability and, therefore, vulnerability to extinction. Below, we describe the primary stressors to the Panama City crayfish, which are habitat degradation, loss, and fragmentation; water quality; bait collection; climate change; and sea level rise. Other factors, such as direct mortality, disease, predation, competition, or impacts from off-road vehicle use, were not considered to have species-level impacts (see 83 FR 330, January 3, 2018), and therefore are not discussed further here.

Threats and Environmental Stressors

Habitat Degradation, Loss, and Fragmentation:
Development projects and land conversion can result in direct loss of habitat, leading to fragmentation and isolation of populations. Historically, the Panama City crayfish inhabited natural and often temporary bodies of shallow fresh water within open pine flatwoods and wet prairie-marsh communities. The Panama City crayfish's natural habitat (wet pine flatwoods) has been lost or degraded through residential, commercial, and industrial development, as well as conversion to intensive pine silviculture, and for ranching and farming uses. No unaltered natural pine flatwoods remain within the Panama City crayfish's current range. Most known Panama City crayfish current occurrences are in human-altered habitats and are vulnerable to further loss or alteration. Although artificial habitats such as roadside ditches and rights-of-way have allowed the Panama City crayfish to survive in areas from which they would otherwise likely have been extirpated, human activities can alter the hydrology and configuration of these sites, making them unsuitable for long-term Panama City crayfish survival. For example, roadside ditch maintenance and construction activities have resulted in the destruction of several crayfish sites.

Infrastructure development has impacted, or is anticipated to impact, several known crayfish sites. For example, several road construction or expansion projects, such as the widening of Star Avenue and Kern Avenue and the widening and hardening of Tram Road, may impact Panama City crayfish habitat in the future. Infrastructure development can eliminate suitable Panama City crayfish habitat by removing the required herbaceous vegetation and digging up the surrounding soils.

Silvicultural practices such as ditching and bedding, roller chopping, installing fire breaks, and constructing roads can alter the hydrology of Panama City crayfish sites, create physical barriers to crayfish movement, and destroy underground burrows. These activities may contribute to the isolation of Panama City crayfish populations. Fire suppression and high tree density on silvicultural sites can reduce herbaceous groundcover necessary for suitable crayfish habitat. Similarly, removal of tree canopy cover, changes in ground cover vegetation, and associated changes in water quality and surface water availability are all possible changes associated with the effects of conversion to farming and ranching practices, such as cattle grazing. These activities reduce the

suitability of the habitat for the Panama City crayfish. Although minimal changes to habitat in the future are expected to occur from farming and ranching practices, conversion from silviculture to grazing use has historically occurred on lands adjacent the crayfish's range.

Ditching and draining urban areas is a common practice in efforts to control local flooding events and reduce mosquito outbreaks but could have accidental impacts, especially to populations with small amounts of available habitat, by artificially draining or decreasing the amount of time that surface waters are available. The majority of known Panama City crayfish occurrences, particularly in the western part of the range, are in roadside ditches and swales and thus are vulnerable to impacts from ditching and draining activities. Additionally, nearly all populations are isolated from other Panama City crayfish populations by roads and development. Fragmentation and isolation can increase vulnerability to local extirpation due to adverse genetic, demographic, and environmental events. Further, when Panama City crayfish are extirpated from an area, lack of habitat connections between sites can prevent Panama City crayfish from recolonizing (FWC 2016, p. 10). Recent genetic work indicates the isolation throughout the range has resulted in inbreeding and drift (Duncan et al. 2017, p. 17).

Water Quality:
Freshwater crayfish may be sensitive to declines in water quality, and these water quality declines have been identified as a threat to the Panama City crayfish. Water quality declines can range from oxygen-deficient conditions resulting from algal blooms or sewage spills to pollution originating from roadway runoff, pesticide applications, or chemical spills. Given the level of development throughout the range of the Panama City crayfish and the occurrences of Panama City crayfish adjacent to private properties, runoff from roads or incompatible application of chemicals, such as pesticides or fertilizers, negatively impacts water quality and has direct impacts on the species.

Mosquitocides are used within the range of the Panama City crayfish to treat both larval and adult mosquitos. The mosquitocides registered for use within the range of the Panama City crayfish do not pose known threats to water quality if applied per label directions (FWC 2016, p. 10). If incorrectly applied, however, the consequences to the Panama City crayfish can be fatal. Similarly, fertilizers, insecticides, and herbicides may pose a risk to Panama City crayfish if applied inappropriately. Many substances commonly used around the home or business can be toxic to Panama City crayfish and other wildlife if used or disposed of improperly. Since Panama City crayfish often inhabit ditches and swales close or adjacent to private properties, they are at risk if landowners do not ensure that fertilizers, insecticides, and herbicides are applied and disposed of properly per label directions. Potentially toxic substances such as petroleum products and paint should be properly disposed of at hazardous waste disposal facilities. Accidental spills of large volumes of toxic substances such as petroleum products and acids occasionally occur in urban areas. If spills overflow into ditches, swales, or other areas inhabited by Panama City crayfish, substantial localized impacts to the population are possible.

Bait Collection:
Collecting Panama City crayfish for fish bait or other uses may have long-term effects on populations if large numbers of adults are taken from a population. Several lines of evidence indicate that current occupied sites are used as sources for catching crayfish for fish bait. Although this activity is occurring, the magnitude of the impact of recreational harvest on the Panama City crayfish is unknown (Keppner and Keppner 2001, p. 14; Keppner and Keppner 2005, p. 11).

Systematic Changes

Climate Change and Sea Level Rise:
The Panama City crayfish was included in a Statewide vulnerability assessment for approximately 1,000 species in Florida (Reece et al. 2013, entire; Hocter et al. 2014, entire) using a Standardized Index of Vulnerability and Value Assessment (SIVVA; Reece and Noss 2014, entire). Based on the data used in this assessment, little suitable habitat for Panama City crayfish will be affected by sea level rise under the A1B scenario (Hocter et al. 2014, p. 10). To further evaluate potential impacts from sea level rise, we used two products to map predicted future changes due to sea level rise in 2025, 2050, and 2075 under a low scenario (0.5 meter) and high scenario (2.0 meters) (Service 2019, pp. 71-74). We used the University of Florida digital elevation sea level rise model to predict habitat loss (Hocter et al. 2014, entire). This model predicts inundation changes based on elevation. We also used the Sea Level Rise Affecting Marshes Model (SLAMM) to predict changes in sea level rise that would affect habitat suitability inland from inundated areas (Clough et al. 2010, entire). Using a 5-30 meter pixel size, SLAMM simulates the dominant process involved in wetland conversions and shoreline modifications during long-term sea level rise. We assumed these vegetation changes would adequately represent the water quality changes from saltwater intrusion that would affect crayfish survival in affected areas. We looked at overall changes in habitat rangewide as well as within the suitable habitat supporting each individual population.

Overall, little suitable habitat for Panama City crayfish will be directly affected by sea level rise, which confirms prior analyses (Hocter et al. 2014, p. 10). By the year 2075, suitable habitat (in terms of suitable acres of core and secondary soils) within the range of the Panama City crayfish is predicted to be reduced by 1.28 acres (0.01 percent) with 0.5-meter sea level rise and by 40.2 acres (0.26 percent) with 2.0-meter sea level rise (see table 4.1 in Service 2019, p. 73). However, two populations were affected by sea level rise, Deer Point and Old Airport, which respectively sustained loss of 21.02 and 5.89 acres of suitable habitat by the year 2075 with 2.0-meter sea level rise. Indirect effects of sea level rise on Panama City crayfish could be substantial, however. Saltwater intrusion into freshwater habitats will occur far beyond areas that are completely inundated, potentially changing the hydrology and vegetation in Panama City crayfish habitats that are outside the predicted direct sea level rise impact areas. Crayfish spend their entire life in fresh water. Research on crayfish report some levels of saltwater tolerance, but it is believed that their abilities to colonize in the estuarine environment may be restricted to areas of low salinity due to adverse effects of sea water on egg development and hatching (Susanto and Charmantier, 2000, in Yildiz et al. 2004, p. 1271).

Synergistic and Cumulative Effects

Synergistic interactions are possible between the effects of climate change and the effects of other potential threats, such as development. Increases in temperature and changes in precipitation are likely to affect water quality and vegetation, and the Panama City crayfish needs good water quality to survive and is closely associated with the presence of herbaceous vegetation. However, it is difficult to project how climate change will affect herbaceous vegetation because certain plant species may increase in cover, while other species may decrease. Uncertainty about how different plant species will respond to climate change, combined with uncertainty about how changes in plant species composition would affect

suitability of Panama City crayfish habitat, make projecting possible synergistic effects of climate change on the Panama City crayfish highly speculative.

We note that, by using the SSA framework to guide our analysis of the scientific information documented in the SSA report, we have not only analyzed individual effects on the species, but we have also analyzed their potential cumulative effects. We incorporate the cumulative effects into our SSA analysis when we characterize the current and future condition of the species. To assess the current and future condition of the species, we undertake an iterative analysis that encompasses and incorporates the threats individually and then accumulates and evaluates the effects of all the factors that may be influencing the species, including threats and conservation efforts. Because the SSA framework considers not just the presence of the factors, but to what degree they collectively influence risk to the entire species, our assessment integrates the cumulative effects of the factors and replaces a standalone cumulative effects analysis.

Conservation Strategy

We developed a conservation strategy for Panama City crayfish to identify critical conservation needs (Service 2017b, entire). In this conservation strategy, we rely on the known survival over time of small populations and a published meta-analysis (Traill 2007, entire) to estimate the amount of habitat needed to support population viability. The results of the analysis indicate that a minimum viable population size (MVP) for Panama City crayfish of 5,137 individuals and 2,200 acres of actively managed habitat across the range that is permanently protected and managed across at least seven population units should ensure the Panama City crayfish maintains viability for the foreseeable future. Currently, we have estimated population sizes at three sites (19th Street, Transmitter West, Talkington). Abundance ranges from 34 to 623 Panama City crayfish and 3 to 232 acres (1.2 to 93.9 ha) of suitable habitat, yielding 3 to 9 crayfish per acre. Applying these density values across the currently occupied range yields a rangewide population of 6,600 to 19,800 Panama City crayfish.

The Panama City crayfish needs multiple, adequately resilient populations spread across its range to avoid extinction. We currently estimate that 2,200 acres (890 ha) of permanently protected Panama City crayfish habitat would sustain the viability of multiple (two to four) populations depending on habitat quality. We estimate that protecting 3 to 4 large core habitat units with between 200 and 800 acres (81 and 324 ha), in addition to 3 smaller habitat units (less than 200 acres (81 ha) in size), to be managed with fire or mowing every 2 to 3 years, along with a plan to restore existing conservation easements that have suitable soils for the crayfish will sustain the crayfish into the future (Service 2017b, entire). We determined the conservation goal of 2,200 acres (890 ha) secured with conservation easements or under public ownership would support Panama City crayfish for the foreseeable future. However, at this time, agreements are not in place to ensure the necessary protections.

Current Conditions of the Panama City Crayfish

The Panama City crayfish historically ranged throughout south-central Bay County, Florida, as one population connected by core and secondary soils. Today, the species has 12 localized populations divided into a western group with 8 populations and an eastern group with 4 populations. While the Panama City crayfish continues to occur within its historical range, only 42 percent of core soils and 43 percent of secondary soils remain undeveloped from historical levels, indicating a loss of 57 percent of historical habitat (Service 2019, p. 58). Population resiliency was estimated as high for 2 populations, moderate for 2 populations, low for 5 populations, and functionally extirpated for three populations (see Table 2).

Table 2—Summary of Current Resiliency Condition for 12 Populations of Panama City Crayfish
[Service 2019, p. 61]

Habitat area
Inbreeding rate condition

Population
isolation

Urbanization

Habitat
protection

Suitable
habitat area

Overall current
resiliency
condition

19th Street
Low
Low
Moderate
Moderate
Low
Low.

Old Airport
Low
Low
Moderate
Moderate
Low
Extirpated.

390 West
Low
Low
Low
Moderate
Low
Low.

Talkington
Low
Low
Moderate
Moderate
Low
Low.

Minnesota
Low
Low
High
Moderate
Low
Extirpated.

Edwards
Low
Low
Low
Low
Low
Low.

Transmitter West
Low
Low
High
High
Moderate
Moderate.

College Point
Low
Low
Low
Low
Low
Extirpated.

High Point
Low
Low
High
Moderate
Low
Low.

Deer Point
Low
Low
High
High
Moderate
Moderate.

Star
Low
High
High
High
High
High.

Transmitter East
Low
High
High
High
High
High.

The representation, or adaptive capacity, of the Panama City crayfish has been diminished. Historically, it was one population and now has been fragmented and genetically isolated into 9 extant localized populations (and 3 functionally extirpated populations). The genetic differences across the range correspond to patterns in fragmentation from urban development, resulting in small crayfish population sizes and poor dispersal ability. Consequently, genetic variation is low, gene flow is limited, and inbreeding is high across the range. Additionally, genetic isolation coupled with presumably low abundance poses risk of further reductions in genetic diversity through genetic drift (random chance by removing rare genotypes completely when some individuals die without reproducing). Without intervention, the combined effects of prolonged inbreeding and genetic drift can consign a population to a genetic “extinction vortex,” in which lethal mutations and infertility occur in a positive feedback loop, potentially resulting in localized extirpation regardless of other factors.

Redundancy for the Panama City crayfish is low. The current fragmented landscape poses a vulnerability to potential catastrophic hurricanes, sea level rise, salt water intrusion, and large-scale droughts. Panama City crayfish populations are now isolated; thus, recolonization or demographic rescue is unlikely following population-level disturbances. Additionally, the Panama City crayfish occupies an increasing smaller area, thereby increasing the risk of a single event, or series of events, affecting a large portion of extant populations.

Future Conditions of Panama City Crayfish

For the purpose of this assessment, we define viability as the ability of the species to sustain populations in the wild over time. This discussion explains how the stressors associated with habitat loss, fragmentation, and degradation from residential and commercial development will influence resiliency, redundancy, and representation for the Panama City crayfish throughout its current known range using a series of plausible scenarios out to 2030, 2050, and 2070. We predicted both future population factors (inbreeding and population isolation) and habitat factors (urbanization, protections from development, and suitable habitat) and evaluated these to inform our future conditions.

To predict potential future changes related to urban growth, we used layers from the Southeast Regional Assessment Project (SERAP, from the Biodiversity and Spatial Analysis Center at North Carolina State University; 60m resolution), a modification of the SLEUTH Projected Urban Growth model (Jantz et al. 2010, entire; Terando et al. 2014, entire). SERAP identifies the parameters in global and regional models that are most likely to affect the Southeast region's climate and local landscape dynamics, with the goal of providing decision makers with information about low-probability, high-impact climate extremes through downscaled models and threats analysis. This tool helps inform where the biggest threats from climate change will be on the landscape and, accordingly, identifies high-risk areas for conservation lands and development. We then used these products to map future predicted changes in urbanization in 2030, 2050, and 2070. The uncertainty associated with the SLEUTH model increases over time, and as a result, the species' response to the dynamic nature of the variables becomes less predictive. There is a greater confidence in predicting potential development and the species' response to changes in the landscape in the near future rather than the distant future.

To adequately capture uncertainty associated with the degree and extent of potential future stressors and their impacts on species' requisites, resiliency, redundancy, and representation were assessed using three scenarios: Status quo development (
i.e.,
minimum degree of urbanization that has a high probability of occurring), intermediate development (
i.e.,
moderate degree of urbanization that has a low probability of occurring), and high development (
i.e.,
high degree of urbanization that has a very low probability of occurring). The scenarios included projecting possible future development using the SERAP model (Jantz et al. 2010, entire; Terando et al. 2014, entire). They also describe the predicted effects of the development on loss and fragmentation of suitable habitat rangewide and on each of 12 known populations, and draw inferences about population health (Duncan et al. 2017, entire). We excluded three populations (College Point, Old Airport, and Minnesota) from our scenario analysis because Panama City crayfish are currently extirpated at these sites and they will not be able to maintain viability in these locations in the future without deliberate introduction or translocation efforts. Although we provide all three scenarios, initial changes in patterns of development following Hurricane Michael (2018) indicate that the high development scenario is more likely than we previously thought because of the housing damage and subsequent shortage caused by this Category 5 storm. Please refer to the SSA report for the full analysis of the future scenarios (Service 2019, pp. 79-92).

Under the range of plausible future development scenarios, habitat loss ranges from 1,401 to 6,130 acres of habitat rangewide as developed land increases from 20,221 to 28,899 acres between 2030 and 2070. Under all three scenarios, the loss and degradation (fragmentation) of habitat reduce the number of sufficiently resilient populations in high or moderate condition from four to three by 2030. This loss of resiliency comes from both a reduction in habitat elements as well as the effects of isolation and genetic drift for all 12 populations. Under each of the three future scenarios, all western populations are categorized as low condition by 2030 (see Table 3, below), resulting in a near total loss of redundancy and representation. In the eastern group, three of four populations are projected to maintain moderate or high resiliency through 2070.

Table 3—Future Condition Summary of Panama City Crayfish
[Populations above the double line are in the western group; populations below the double line are in the eastern group.]

Population name
Current
Year
Status quo

Intermediate
development

High
development

19th Street
Low
2030
Low
Low
Low.

2050
Low
Low
Low.

2070
Low
Low
Low.

Old Airport
Extirpated
2030
Extirpated
Extirpated
Extirpated.

2050
Extirpated
Extirpated
Extirpated.

2070
Extirpated
Extirpated
Extirpated.

390 West
Low
2030
Low
Low
Low.

2050
Low
Low
Low.

2070
Low
Low
Low.

Talkington
Low
2030
Low
Low
Low.

2050
Low
Low
Low.

2070
Low
Low
Low.

Minnesota
Extirpated
2030
Extirpated
Extirpated
Extirpated.

2050
Extirpated
Extirpated
Extirpated.

2070
Extirpated
Extirpated
Extirpated.

Edwards
Low
2030
Low
Low
Low.

2050
Low
Low
Low.

2070
Low
Low
Low.

Transmitter West
Moderate
2030
Low
Low
Low.

2050
Low
Low
Low.

2070
Low
Low
Low.

College Point
Extirpated
2030
Extirpated
Extirpated
Extirpated.

2050
Extirpated
Extirpated
Extirpated.

2070
Extirpated
Extirpated
Extirpated.

High Point
Low
2030
Low
Low
Low.

2050
Low
Low
Low.

2070
Low
Low
Low.

Deer Point
Moderate
2030
Moderate
Moderate
Moderate.

2050
Moderate
Moderate
Moderate.

2070
Moderate
Moderate
Moderate.

Star
High
2030
High
High
High.

2050
High
High
High.

2070
High
High
High.

Transmitter East
High
2030
High
High
High.

2050
High
High
High.

2070
High
High
High.

We also evaluated a “conservation scenario,” which is based on a conservation strategy that includes permanent protection and management of approximately 2,200 acres (890 ha) of habitat across seven populations (Service 2017b, entire). The predicted outcomes of the conservation scenario are straightforward, with populations with higher resiliency continuing to maintain or have improved resiliency in the future as land management efforts improve. Although anticipated habitat protection and habitat management will not immediately change any of the overall current condition ranks, it should, when coupled with the population management measures agreed to by FWC and the Service, ensure that populations with high resiliency will remain so regardless of future development, which is the primary threat to the Panama City crayfish. Additionally, population management measures (
e.g.,
translocation) detailed in this scenario should improve the genetic health and population size of several managed populations. Finally, improved monitoring and applied research agreed to by the Service and FWC should also improve our knowledge of the status of each population to better adjust management actions as needed in the future. However, at this time, agreements are not in place to ensure the necessary protections, and we do not have certainty about whether and where, or in what configuration, those protections may occur on the landscape.

All plausible future scenarios had similar outcomes for the species. Our overall estimate of the Panama City crayfish's current viability is low across the majority of its geographic range, particularly in the urbanized western portion. Ongoing and future development will likely result in low resiliency across 70 percent of the species' range by as soon as 2030. If the remainder (30 percent) of its range is protected from development and conservation efforts are focused in this less developed area, we project the species will maintain resiliency in three populations for the foreseeable future.

As Panama City crayfish are endemic to a small area with limited variation in local conditions prior to modern urbanization, a large-scale disturbance will impact all habitats and populations similarly, putting the species at risk of extinction due to a single event larger than the 10 linear miles its range covers. As such, its redundancy will never be high relative to more widely distributed species. Historical trends in the area have further reduced redundancy for Panama City crayfish, as its geographic extent and habitat area have both been shrunk by development, further decreasing the likelihood that a single population of Panama City crayfish will find refuge during a catastrophe and survive.

Due to small, isolated populations with low genetic diversity and high rates of inbreeding, we estimate that the Panama City crayfish currently has low adaptive potential across its small range. As inbreeding can drive a population to extinction regardless of other variables, we should consider the possibility that some Panama City crayfish populations are already in an extinction vortex due to an ongoing loss of genetic diversity.

Summary of Comments and Recommendations

In the January 3, 2018, and April 15, 2021, proposed rules (83 FR 330 and 86 FR 19838, respectively), we requested that all interested parties submit written comments. We also contacted appropriate Federal and State agencies, scientific experts and organizations, and other interested parties and invited them to comment on the proposed rules. Newspaper notices inviting general public comment were published in the legal notice section of The News Herald on December 31, 2017, and April 24, 2021. On February 22, 2018, we held a public meeting for the proposed listing, and on May 4, 2021, we held a virtual public informational meeting and public hearing for the reopening of the comment period on the January 3, 2018, proposed listing, as well as the proposed 4(d) rule and critical habitat designation. All substantive information received during both comment periods has either been incorporated directly into this final determination or is addressed below.

Peer Reviewer Comments

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 sought review from nine experts regarding version 1.1 of the SSA report, and four experts regarding version 2.0 of

the SSA report. We received responses from four experts for each version (total of eight peer reviews).

We reviewed all comments we received from the peer reviewers for substantive issues and new information regarding the information contained in the SSA report. The peer reviewers generally concurred with our methods and conclusions, and they provided additional information, clarifications, and suggestions to improve the SSA report. Peer reviewer comments are addressed in the following summary and were incorporated into the SSA report as appropriate.

(1) Comment:
Peer reviewers of version 1.1 of the SSA report recommended modifications to the habitat ranking analysis, suggested dropping the use of crayfish counts as a proxy for relative abundance, and suggested adding genetics information.

Our response:
Version 2.0 of the SSA report reflects changes suggested by peer reviewers (summarized in Appendix IV of the SSA report (Service 2019, p. 112)). We replaced abundance as a population factor with a principal components analysis (
i.e.,
an exploratory data analysis used for making predictive models) from the genetics study (Duncan et al. 2017, entire; Service 2019, p. 63).

Comments From States

(2) Comment:
The Florida Fish and Wildlife Conservation Commission (FWC) provided several comments, suggesting revisions to version 1.0 of the SSA report. Specifically, similar to the peer review comment about crayfish counts as proxy for relative abundance, FWC emphasized that the surveys conducted by FWC were intended to determine Panama City crayfish presence at a site and not a population size, and suggested that catch per unit of survey effort would yield better comparative information between populations. In addition, FWC recommended the Service clarify that, with the exception of the infiltration into a small portion of the Panama City crayfish's range by the hatchet crayfish (
Procambarus kilbyi
) and the jackknife crayfish (
P. hubbelli
), the most frequent crayfish species found co-occurring in the same habitat (and within the water column) with the Panama City crayfish is the stud crayfish (
P. pycnogonopodus
). FWC also pointed out some minor errors regarding generation time calculations and suggested edits to the presentation of the 2030 scenario in Tables 5.3, 5.4, and 5.5 (Service 2017a, pp. 87-94).

Our response:
The SSA report was revised (Service 2019, version 2.0) to reflect these suggested changes. We did not intend to confuse population presence with that of relative abundance but believed that abundance numbers could be used as an indicator of the resiliency of populations. In the revised SSA report (Service 2019, version 2.0), we removed abundance as a criterion used to rank resiliency of the crayfish populations. Further, using the Act's section 6 funds and a staff position provided by FWC, we have attempted to gather mark-recapture data in the field to estimate population size and the factors that affect detection probability. We continue to work with FWC biologists to develop a monitoring plan that accurately assesses population trends or estimates.

(3) Comment:
FWC staff concurred with the proposed take exceptions described in our proposed 4(d) rule, but they also recommended that we consider an exception to the take prohibitions for emergency actions to relieve flooding.

Our response:
The 4(d) rule for the Panama City crayfish that we are adopting in this final rule excepts incidental take associated with ditch mowing and maintenance actions that may be necessary to relieve flooding when following best management practices (BMPs) that have been coordinated with the Service.

Public Comments

(4) Comment:
Several commenters state that listing the Panama City crayfish will hurt the local economy by delaying the growth and development of infrastructure that is needed for the community. These commenters are therefore opposed to listing the Panama City crayfish. They stated we have not adequately addressed the economic impacts of listing the Panama City crayfish as required by Florida law.

Our response:
Determinations of whether a species is placed on the Federal List of Endangered and Threatened Wildlife and Plants are based on whether the species meets the definition of “endangered species” or of “threatened species” in the Act (16 U.S.C. 1531
et seq.
). The Act directs the Service to make these determinations solely on the basis of the best scientific and commercial data available. Therefore, we may not consider economic impacts when determining the status of a species. We do consider economic impacts when designating critical habitat (see
Consideration of Economic Impacts,
below).

Additionally, infrastructure and growth are not prohibited by this rule. The Service developed a 4(d) rule for the Panama City crayfish to streamline the permitting process by excepting certain actions from the take prohibitions. For example, residents who want to install sheds, driveways, or pools likely will not need a permit from the Service. The 4(d) rule allows streamlining of project reviews to focus on those activities that are expected to have the most potential impact to the Panama City crayfish or its habitat, thus reducing staff workload by eliminating the need to review
de minimus
impact projects and enabling more focus on targeted conservation efforts that are expected to have the most benefit to the species.

(5) Comment:
One commenter suggested that protecting and managing 2,200 acres in perpetuity, with 3-year rotational prescribed burns and other management activities, will cost approximately $20 million and is not feasible. They questioned the overall conservation strategy and expressed concern about whether perpetual maintenance would be required in conservation areas and how that maintenance would be funded.

Our response:
The conservation strategy identifies goals that may need to be met in order to ensure recovery of the Panama City crayfish and states that a minimum viable population size (MVP) for Panama City crayfish of 5,137 individuals and 2,200 acres of actively managed habitat across the range that is permanently protected and managed across at least seven population units should ensure the Panama City crayfish maintains viability for the future. In order to accomplish this goal, Bay County staff worked with the Florida Department of Environmental Protection (FDEP) to place optimal lands on the Florida Forever Land acquisition list. Placement on the Florida Forever list will allow future expenditures of State funds to purchase lands important for the protection of the Panama City crayfish when funds and ranking priorities are aligned, and will place them in permanent conservation or into State of Florida ownership to enable perpetual maintenance for the species. Federal grants are also available via the Recovery and Land Acquisition grants program. Lastly, minimization and mitigation through the Act's section 7 process provide another mechanism to achieve conservation actions such as habitat protection.

(6) Comment:
On commenter expressed concerns that all known techniques to measure Panama City crayfish populations are harmful to the crayfish and will invariably lead to population extirpations. Another commenter stated that the crayfish

cannot be positively identified without a postmortem examination.

Our response:
The FWC and Service biologists regularly collect samples of the Panama City crayfish to confirm presence and for genetic testing. We conduct crayfish captures by use of a dip net or by placement of funnel traps. Each time, crayfish are captured, they are counted, measured, and released alive. Rarely are they injured, and more rarely are they killed with either trapping method used. Crayfish can easily be identified by trained biologists from their physical characteristics and location of collection. At newly discovered sites, a voucher specimen of a male in breeding phase is confirmed by a species expert and preserved for future reference.

(7) Comment:
One commenter requested that any final rule promulgated by the Service clarify that the total habitat available to the Panama City crayfish is the 56 square-mile area identified in Figure 1 of the January 3, 2018, proposed rule (see 83 FR 333) and that Callaway Creek and Bayou George Creek form an absolute barrier to any eastward expansion by the crayfish.

Our response:
The Service has taken the range description from the SSA report and used it in this final rule. We, with assistance from the FWC, have projected boundaries based on existing survey data. To our knowledge, Callaway Creek and Bayou George Creek form barriers and restrict access by the Panama City crayfish on opposite creek or stream banks. However, the northeastern portion of the species' range is not bordered by any well-defined water body, and the current delineator is only defined by the locations of the Panama City crayfish identified during surveys where access was allowed by the landowner. Thus, some uncertainty remains with respect to the boundaries in the northeastern-most habitats. Accordingly, we cannot state Callaway Creek and Bayou George are absolute barriers to eastward expansion.

(8) Comment:
One commenter claimed that the eastern side of the Panama City crayfish's range has been surveyed more than the western side of the range. Another commenter stated that we have insufficient data regarding the Panama City crayfish to prove a decline in the species. Both commenters encouraged the Service to conduct more surveys within the western portion of the range.

Our response:
Survey effort varies across the species' range. Survey access is limited by landowner permission, so the majority of surveys occur only where we received landowner permission to access their land or along public rights-of-way. We agree that additional surveys within the western range of the species would assist with our understanding of the species' distribution. As access is allowed, we will continue to fill in survey gaps. Despite these potential survey gaps, the Act requires us to make a listing determination based on the best available information. Using current data and our knowledge of the Panama City crayfish's habitat use, we are able to define where populations of the species may occur. Overlaying these areas with land use layers, we used Geographic Information System (GIS) mapping to refine areas that remain suitable for the species and compared it to past habitat availability. From this analysis, we found that approximately 50 percent of the remaining habitat is potentially suitable for the species. Because of the known relationship between the crayfish and its habitat, we can make inferences that declines of the crayfish have occurred based on loss of habitat to development.

(9) Comment:
One commenter expressed concern that the Service may allow destruction of mature hardwood swamp vegetation and mature baygall communities as a method to create new habitat for the Panama City crayfish.

Our response:
On lands that may be secured for Panama City crayfish protection, we do not intend to alter natural communities such as mature hardwood swamps or baygall communities to benefit the Panama City crayfish. Fire historically sculpted the ecosystem boundaries of the species, but with limitations in developing city boundaries on where prescribed fires may be implemented, the ecotones between differing habitat types may not be as clear as they were historically when wildfires burned unimpeded. There are often differing viewpoints among ecologists on what habitat type a specific area historically was intended to function as; however, we consult with habitat experts and review literature before removal of certain plant species to encourage growth of other plant species.

(10) Comment:
One commenter stated that it has yet to be determined whether Panama City crayfish is a native species.

Our response:
Based on the best available data, the species is considered to be a valid species native to Bay County, Florida (Taylor et al. 2007; Integrated Taxonomic Information System 2017; Service 2019, p. 12).

(11) Comment:
One commenter questioned whether critical habitat should be extended to the remaining 30 percent of the lands that do not contain the preferred hydric soils, because there is evidence that juvenile crayfish are transported overland by sheet flow rains. Any alteration in the upland landscape (driveway, building) could create an impediment to this sheet flow and therefore create an impediment to crayfish survival.

Our response:
We agree that crayfish are likely dispersed via sheet flow during heavy rain events. However, because these areas are not used consistently either on a per-event basis or by a specific lifestage, and do not provide features (such as core, hydric soils) that are essential to the species' conservation, we have not included these soil types in our critical habitat designation. Connectivity of conservation parcels that have been designated as critical habitat and are consistent with our conservation strategy will further allow for natural dispersal events via sheet flow.

(12) Comment:
Commenters noted that the Panama City crayfish is already protected by the State of Florida and expressed concern about the potential for unnecessary regulatory duplication should the Service finalize the listing of the Panama City crayfish. They requested that entities only need to coordinate with one agency.

Our response:
We have determined that the Panama City crayfish warrants listing as a threatened species, despite existing State protections. With the intent to streamline the regulatory process, in January 2020, FDEP assumed permitting authority under section 404 of the Clean Water Act (33 U.S.C. 1251
et seq.
) for dredge and fill activities throughout Florida, including within the range of the Panama City crayfish. FDEP is required to coordinate with us prior to authorizing permits for species listed under the Act, species proposed for listing under the Act, candidate species, and species petitioned for listing under the Act. We support minimizing the regulatory burden on the public, while also ensuring the conservation of the species. Through the FDEP assumption of permitting authorities, entities will deal directly with one process that will cover all permits, thereby simplifying the consultation process for applicants.

(13) Comment:
One commenter expressed concern with the continuing status quo for development projects that do not require Federal permits, citing that State and local protections for the species are inadequate as demonstrated by the species' continuing decline.

Our response:
Our 4(d) rule extends the prohibitions of section 9 of the Act to the Panama City crayfish, with certain exceptions. Projects or actions

that are likely to cause take of the Panama City crayfish but that are not subject to section 7 review under the Act will require a permit and habitat conservation plan (HCP) under section 10 of the Act, unless they otherwise qualify for an exception in the 4(d) rule.

(14) Comment:
One commenter expressed concern that spraying for mosquitos will be prohibited to prevent pesticide drift into protected habitat, and, therefore, Panama City crayfish will be prioritized over the health of Bay County residents with respect to mosquito-borne illnesses.

Our response:
We encourage the use of mosquito control methods that do not result in take of the species. Mosquito control often uses pyrethroid insecticide, which has been shown to be toxic to aquatic wildlife (Paul and Simonin 2006, p. 614). There are alternative methods to control mosquitos other than through the use of aerial pesticide applications, such as donut blocks placed directly into neighborhood ditches that prevent the larvae from maturing to adult mosquitos. We encourage alternative applications that are not detrimental to the Panama City crayfish.

(15) Comment:
One commenter noted that Panama City crayfish habitat will create additional mosquito breeding areas.

Our response:
We do not agree; protecting habitat for the Panama City crayfish will not alter the amount of standing water that exists in the environment today. Restoration actions may reduce the amount of water standing in furrowed habitats and normalize the water table. The Panama City crayfish prefers ephemeral pools of water less than a foot deep. The Panama City crayfish feeds mostly on decaying vegetation, but as generalist feeders, they are likely to feed on mosquito larvae, too.

(16) Comment:
One commenter requested that the Service list the Panama City crayfish as endangered instead of threatened. They cite endangered ranks from the International Union for the Conservation of Nature (IUCN) and the American Fisheries Society (AFS).

Our response:
The definitions, criteria, and analyses under the Act are not equivalent to those used by IUCN and other organizations. The Act defines “endangered species” and “threatened species” and mandates five factors for consideration when determining a species' status under the Act. The definitions and analysis conducted under the Act do not necessarily equate with those used by other organizations who have different ranking systems, and, accordingly, a species' status may vary depending on the source. As noted, we are required to apply the definitions of the Act and consider the factors the Act identifies. We have determined that endangered species status under the Act is not appropriate for the Panama City crayfish because the species maintains multiple, moderate or high resiliency populations across its historical range, with low risk of significantly declining in the near term. Further, given its distribution and health of populations, the Panama City crayfish has sufficient redundancy and representation to withstand catastrophic events and novel changes in its environment in the near term. For these reasons, Panama City crayfish is not currently in danger of extinction. See Determination of Panama City Crayfish's Status, below.

(17) Comment:
Several commenters had questions about the buffer width used to delineate critical habitat. One commenter questioned the percentage of Panama City crayfish documented on core soils. One commenter asserted existing forestry BMPs in Florida and biodiversity standards in forest certification programs are effective for protecting at-risk species, regardless of buffer width.

Our Response:
As described in the Summary of Changes from the Proposed Rule and the Criteria Used to Identify Critical Habitat sections of this rule, we have modified the buffer width based on additional analysis of Panama City crayfish occupancy of secondary soils. We reduced the buffer to 50 feet rather than the proposed 328 feet. Our original analysis conducted for the April 15, 2021, proposed rule (86 FR 19838) used a 328-foot buffer from core soils into secondary soils, which captured 96 percent of known occurrence records. Later in 2021, we looked at varying scales relative to presence points. Using a 50-foot buffer from the core soils' boundary line into secondary soils, we capture close to 71 percent of known occurrence records. Based on our knowledge of how the crayfish moves across the landscape, it is likely that the additional occurrence records may have been from points in time where there was high rainfall, however we lack recorded rainfall amounts or ground water levels to confirm this assumption. We have determined that the 50-foot buffer provides a better method to focus protection on lands that are likely occupied more consistently, rather than those that may only be temporarily occupied during months or years with high rainfall events. Therefore, this final rule includes the refined 50-foot buffer boundary to capture lands used most consistently versus lands that may be used only during a small portion of the crayfish's life cycle when there is high rainfall. We include an exception for forestry BMPs in secondary soils as part of our 4(d) rule because forestry practices that follow BMPs in secondary soils will have
de minimus
impacts on the species.

(18) Comment:
Several commenters focused on concerns that private landowners will need to hire consultants and pay for mitigation for activities on their properties. Concerns were expressed over the potential loss of use or value of their property, and these commenters requested that all landowners in the proposed critical habitat units be notified about the proposed listing and critical habitat rule.

Our response:
As described under
Takings—Executive Order 12630,
below, the Act does not authorize the Service to regulate private actions on private lands 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. Accordingly, any potential impact to land value results from perceptions and is expected to be small.

We placed notifications in the local newspaper informing the public of the proposed rule, and we held two public informational meetings and one public hearing. In general, a 4(d) rule allows the Service to target the take prohibitions to those that provide conservation benefits for a threatened species; we may choose to except take for certain activities (
i.e.,
allow incidental take without a permit for certain activities) if we conclude the exceptions are necessary and advisable to provide for the conservation of the species. For this species' 4(d) rule, one exception removes permit requirements with respect to the following activities for individual homeowners: Maintenance of existing structures and construction or reconstruction activities that occur within the existing footprint of previously developed areas; construction of new structures that occur within 100 feet of existing structures on an individual private landowner's property and with a new footprint less than 1,000 square feet (ft
2
), such as a pool or shed associated

with an existing house; and culvert installations for individual landowners not associated with larger developments. Therefore, small (
i.e.,
individual home) landowners will not need to hire consultants or pay for mitigation for activities on their properties.

(19) Comment:
One commenter expressed concern that only occupied habitat is included in the critical habitat designation and indicated that more areas are needed in the designation to meet the resilience, redundancy, and representation under which the Service evaluates requirements of the Act.

Our response:
It appears that the commenter may be confusing our use of the conservation biology principles of resiliency, redundancy, and representation (
i.e.,
the 3Rs) in the SSA report and how we identify areas that meet the definition of critical habitat under section 3(5)(A) of the Act. We are designating more than 4,000 acres of land, all considered occupied, as critical habitat. In addition, our analysis of land needed to recover the species is a subset of the currently occupied habitat rather than all, as reflected in this final designation. We did not find that unoccupied habitat should be designated, as no other habitat was deemed essential to the conservation of the species. Based on occupied critical habitat, the species maintains multiple, adequately resilient populations across its historical range, with low risk of significantly declining in the near term. Further, given its distribution and the health of its populations, the Panama City crayfish has sufficient redundancy and representation to withstand catastrophic events and novel changes in its environment in the near term. Accordingly, we determined occupied critical habitat is sufficient to conserve the species.

(20) Comment:
Two commenters expressed concerns with proposing a 4(d) rule that would allow activities, such as sustainable silvicultural practices, that do not have positive effects on the Panama City crayfish.

Our response:
Section 4(d) of the Act provides the Secretary with wide latitude of discretion to select and promulgate appropriate regulations tailored to the specific conservation needs of a threatened species. Under section 4(d) of the Act, we may extend some or all of the prohibitions of section 9(a)(1) of the Act to threatened wildlife species. In considering whether to extend the section 9(a)(1) prohibitions, we may consider whether the benefits of allowing certain activities, including habitat management activities and some silvicultural practices when implemented with conservation measures to reduce impacts, are expected to have overall
de minimus
impacts or be beneficial to the species such that prohibiting those activities or take associated with those activities may be unnecessary. One example is reduced bedding depths used during silvicultural activities. Silvicultural row thinning increases groundcover that is beneficial to the Panama City crayfish. The 4(d) rule exceptions will allow us to streamline routine actions that have minimal impacts or benefits to the crayfish, especially when implemented with conservation measures, by excepting the take associated with them.

(21) Comment:
One commenter stated that they are unaware of any ranching or farming uses that have resulted in the loss or degradation of the Panama City crayfish's natural habitat. They disagreed with the statement, “conversion from silviculture to grazing use has occurred on lands adjacent the crayfish's range.” They are also unaware of any plans to convert any land to ranching or farming uses in the crayfish's range. The commenter stated that land conversion to ranching and or farming is simply not an issue, and that these activities may provide an overall benefit to the crayfish through the creation of artificial habitat. The commenter, therefore, requested that the Service remove the statements associated with the potential for ranching and farming uses to impact the Panama City crayfish's habitat. This commenter also supported use of the 4(d) rule for all activities, such as agriculture, if water quality BMPs are followed.

Our response:
On the few individual family farms and ranches that occur within the range of the crayfish, little habitat remains that is suitable for the crayfish. These properties lack sufficient herbaceous vegetation and have muddied and compacted soils. The 4(d) rule includes an incidental take exception for agricultural maintenance activities in pasture and rangelands (including cattle operations) that were established prior to January 3, 2018, and that implement State and Federal BMPs for existing farms and ranches if they have no indirect impacts to adjacent Panama City crayfish habitat. The Service agrees that no corporate-scale ranching or farming of lands currently occurs within the Panama City crayfish's range. We clarify that currently the closest large-scale ranching is more than 5 miles from the eastern border of the species' range. However, we have concerns with future corporate-scale ranching or farming of lands that might occur within the range of the Panama City crayfish. Current practices for these operations often include conversion of the groundcover to a nonnative grass cover, which is not suitable for the crayfish.

(22) Comment:
One commenter stated that the 4(d) rule should include exceptions for take associated with conservation management practices for a suite of activities that occur in Panama City crayfish habitat, including maintenance of ditches, roads, and utility and transmission line rights-of-way, and an exception for entities using water quality BMPs for silviculture and agriculture.

Our response:
As described under Provisions of the 4(d) Rule, below, we provide exceptions for take associated with certain development practices, select land management activities, and some utility actions that are expected to have negligible impacts to the Panama City crayfish and its habitat.

(23) Comment:
One commenter requested revising the 4(d) rule to remove the limitation of excepting take only if it is associated with forestry activities “located in secondary soils.”

Our response:
Because of the close association of the Panama City crayfish to core soils, and the species' need for intact, unaltered core soils, we are not excepting take associated with forestry practices in core soils. As indicated in the SSA report, silvicultural practices such as ditching and bedding, roller chopping, installing fire breaks, and constructing roads can alter the hydrology of Panama City crayfish sites, create physical barriers to Panama City crayfish movement, and destroy underground burrows (Service 2019, p. 67). Fire suppression and high tree-density on silvicultural sites reduce or eliminate herbaceous groundcover necessary for suitable crayfish habitat (Service 2019, p. 67). For these reasons, we are not excepting incidental take associated with activities employing forestry BMPs on core soils; however, we do provide the exception for incidental take associated with these activities on secondary soils because the soils are less hydric, so ditching and bedding is greatly reduced thereby likely reducing the effects to a
de minimus
level for the Panama City crayfish.

(24) Comment:
One commenter stated that any level of take allowed by the 4(d) rule will lead to the extinction of the Panama City crayfish and requested that all incidental take exceptions be removed from the 4(d) rule.

Our response:
Small, isolated pockets of Panama City crayfish occurrences located within individual homeowners' backyards do not contribute

significantly to the overall recovery of the species, therefore incidental take for specified activities in these small pockets of habitat is warranted. The exceptions detailed in the 4(d) rule target activities that will have minimal impacts on populations of Panama City crayfish and the species' recovery; therefore, we found that the exceptions are necessary and advisable for the conservation of the crayfish.

Determination of Panama City Crayfish's Status

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 “endangered species” or “threatened species.” The Act defines an “endangered species” as a species that is in danger of extinction throughout all or a significant portion of its range, and a “threatened species” as a species that is 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

We have carefully assessed the best scientific and commercial information available regarding the past, present, and future threats to the Panama City crayfish. Our analysis of this information indicates that, at the species level, habitat loss, degradation, and fragmentation due to human development (Factor A) is the primary factor affecting the Panama City crayfish now and into the future. There may be additional infrastructure projects (
e.g.,
roads and ditches) that affect the hydrology within the range of the Panama City crayfish as a result of forest clearing for permanent rights-of-way or silviculture. Additionally, the current level of habitat fragmentation (Factor A) further isolates populations, which reduces gene flow and limits the potential for the species to disperse. The existing regulatory mechanisms (Factor D) do not address these threats to the level that the species is not warranted for listing. We have no evidence that off-road vehicle use (Factor A), overutilization (Factor B), or disease (Factor C) are affecting populations of Panama City crayfish.

We find that an endangered species status is not appropriate for the Panama City crayfish because despite its narrow and isolated distribution making it susceptible to catastrophic events and having low adaptive ability, the species maintains multiple resilient populations across its historical range and the risk of extinction is low in the near term. While only 43 percent of the original lands historically available to the Panama City crayfish remain suitable for use by the Panama City crayfish, the species currently has four highly or moderately resilient populations. Further, despite changes to the crayfish's natural habitat of wet pine flatwoods, the species currently uses artificial habitats such as roadside ditches and rights-of-way, although these sites may become unsuitable in the long term due to anthropogenic activities that can alter their hydrology or configuration. Therefore, we conclude that the current risk of extinction of the Panama City crayfish is sufficiently low that it does not meet the Act's definition of an endangered species.

In determining whether Panama City crayfish is likely to become endangered in the foreseeable future, we assessed the plausible scenarios, including the scope and magnitude of threats and the expected species' response to these changes. The foreseeable future is the period of time for which we determined we could make reliable predictions about the threats to the species and the species' response to those threats. Based on the biology of the species and the threats acting on it, the foreseeable future timeframe used in the determination is approximately 30 years. The generation time for the species is 2 years with a lifespan up to 3.5 years; the period to 30 years encompasses up to 15 generations, which is sufficient time to determine the species' response to the stressors. During this timeframe, we determined we can make reliable predictions about the threats to the species and the species' response to those threats. Although the future scenarios extend through 2070, the uncertainty regarding the species' response to the stressors becomes so great as to render the scenarios too unreliable beyond 2050.

While the Panama City crayfish faces a variety of threats, only one threat, habitat loss and degradation due to urban development causing habitat fragmentation and subpopulation isolation, was considered an important factor in our assessment of the future viability of the Panama City crayfish. Based on our future scenarios for urban development, we projected losses of resiliency, representation, and redundancy for Panama City crayfish in the foreseeable future. Especially problematic is the projected complete loss of resiliency and redundancy in the western group of populations. Losses of western Panama City crayfish populations substantially reduce the range and genetic diversity of the species, as well as increasing vulnerability to catastrophic events such as hurricanes. The current circumstances are already precarious, and the loss of any more adequately resilient populations would put the species in danger of extinction.

We have carefully assessed the best scientific and commercial information available regarding the past, present, and future threats to the Panama City crayfish. Habitat loss from development is occurring rangewide and has resulted in the fragmentation of the landscape. The fragmentation of suitable habitat has caused the isolation of existing populations, limiting them to ditches, swales, slash pine plantations, and utility rights-of-way. The Panama City crayfish has been fragmented into 12 smaller populations. In the future, two populations are projected to maintain high resiliency, one moderate resiliency, and six low resiliency, while three will be considered functionally extirpated.

Of the eight western populations, six populations are projected to be in low condition and three are functionally extirpated in the future. These three functionally extirpated populations represent 25 percent of the known populations overall and 38 percent of the western group, and, although still in existence, they are not expected to contribute to the future redundancy of Panama City crayfish because they are already experiencing genetic drift and the habitat that supports them is susceptible to future development.

All future scenarios project a similar negative impact on the redundancy and representation of Panama City crayfish, with three populations projected to be extirpated, and of the remaining nine populations, six will be in low condition by 2030 under all scenarios. The greatest loss of redundancy for the Panama City crayfish is projected to occur in the western group. In this group, all of the populations are predicted to be extirpated or in low condition by 2030, including the Transmitter West population, which is the largest population in this group. Loss of viability within this population is significant for the species. In the eastern group, three populations are

projected to remain strongholds for Panama City crayfish. These three eastern populations will maintain resiliency and constitute only 33 percent of the remaining populations.

The Panama City crayfish currently has low adaptive potential across its range, and all of the future scenarios project an impact on the species' representation during the 30-year foreseeable future time horizon. The species has very low resiliency in the western portion of its range, with only one of the eight populations currently in moderate condition. None of the western populations are projected to maintain adequate resiliency in the future; thus, adaptive capacity is projected to be completely lost in the western portion. Furthermore, a population (High Point) in the eastern portion contains unique genetic diversity not found in other populations (Duncan et al. 2017a, p. 19), but it is expected to remain in low condition and thus has a low likelihood of persistence, thereby further reducing the species' ability to adapt to changes in its environment.

Thus, after assessing the best available information, and based on analysis of the species' current and future conditions, we conclude that the resiliency, representation, and redundancy for the Panama City crayfish will continue to decline such that it is likely to become in danger of extinction within the foreseeable future throughout its range.

Panama City Crayfish's 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. The court in
Center for Biological Diversity
v.
Everson,
2020 WL 437289 (D.D.C. Jan. 28, 2020) (
Center for Biological Diversity
), vacated the aspect of the Final Policy on Interpretation of the Phrase “Significant Portion of Its Range” in the Endangered Species Act's Definitions of “Endangered Species” and “Threatened Species” (79 FR 37578; July 1, 2014) that provided that the Service does not undertake an analysis of significant portions of a species' range if the species warrants listing as threatened throughout all of its range. Therefore, we proceed to evaluating whether the species is endangered in a significant portion of its range—that is, whether there is any portion of the species' range for which both (1) the portion is significant, and (2) the species is in danger of extinction in that portion. Depending on the case, it might be more efficient for us to address the “significance” question or the “status” question first. We can choose to address either question first. Regardless of which question we address first, if we reach a negative answer with respect to the first question that we address, we do not need to evaluate the other question for that portion of the species' range.

Following the court's holding in
Center for Biological Diversity,
we now consider whether there are any significant portions of the species' range where the species is in danger of extinction now (
i.e.,
endangered). In undertaking this analysis for the Panama City crayfish, we choose to address the status question first—we consider information pertaining to the geographic distribution of both the species and the threats that the species faces to identify any portions of the range where the species is endangered.

For the Panama City crayfish, we considered whether the threats are geographically concentrated in any portion of the species' range at a biologically meaningful scale. We examined the following threats: Habitat loss and degradation from development, including cumulative effects. The threat from development and future urbanization of the landscape in Bay County, Florida, affects the species throughout its entire narrow range. The species is a narrow endemic that historically functioned as a single population occurring in a very small area, and has since been fragmented into multiple small populations divided into western and eastern groupings based on a road. While we can separate the species' range into western and eastern portions, the threats that the species faces, particularly development and subsequent isolation and lack of connectivity, affect the species throughout its entire narrow range. Therefore, there is no concentration of threats in any portion of the Panama City crayfish's range at a biologically meaningful scale, and accordingly, there are no portions of the species' range where the species is likely to have a different status from its rangewide status. Thus, no portion of the species' range provides a basis for determining that the species is in danger of extinction in a significant portion of its range, and we determine that the species is likely to become in danger of extinction within the foreseeable future throughout all of its range. This is consistent with the courts' holdings in
Desert Survivors
v.
Department of the Interior,
No. 16-cv-01165-JCS, 2018 WL 4053447 (N.D. Cal. Aug. 24, 2018), and
Center for Biological Diversity
v.
Jewell,
248 F. Supp. 3d, 946, 959 (D. Ariz. 2017).

Determination of Status

Our review of the best available scientific and commercial information indicates that the Panama City crayfish meets the Act's definition of a threatened species. Therefore, we are listing the Panama City crayfish as a threatened species in accordance with sections 3(20) and 4(a)(1) of the Act.

Available Conservation Measures

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 other countries and calls for recovery actions to be carried out for listed species. The protection required by Federal agencies and the prohibitions against certain activities are discussed, in part, below.

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. Section 4(f) of the Act calls for 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 includes the development of a recovery outline shortly after a species is listed and preparation of a draft and final recovery plan. 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 ECOS portal (
https://www.fws.gov/ecos
), or from our Florida 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 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 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 Florida will be eligible for Federal funds to implement management actions that promote the protection or recovery of the Panama City crayfish. Information on our grant programs that are available to aid species recovery can be found at:
https://www.fws.gov/grants.

Please let us know if you are interested in participating in recovery efforts for the Panama City 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, if any is designated. 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 species' 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; issuance of section 404 Clean Water Act permits by the U.S. Army Corps of Engineers; and construction and maintenance of roads or highways by the Federal Highway Administration.

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. The discussion below regarding protective regulations under section 4(d) of the Act complies with our policy.

II. Final Rule Issued Under Section 4(d) of the Act

Background

Section 4(d) of the Act contains two sentences. The first sentence states that the Secretary shall issue such regulations as she deems necessary and advisable to provide for the conservation of species listed as threatened. The U.S. Supreme Court has noted that statutory language like “necessary and advisable” demonstrates a large degree of deference to the agency (see
Webster
v.
Doe,
486 U.S. 592 (1988)). Conservation is defined in the Act to mean the use of all methods and procedures which are necessary to bring any endangered species or threatened species to the point at which the measures provided pursuant to the Act are no longer necessary. Additionally, the second sentence of section 4(d) of the Act states that the Secretary may by regulation prohibit with respect to any threatened species any act prohibited under section 9(a)(1), in the case of fish or wildlife, or section 9(a)(2), in the case of plants. Thus, the combination of the two sentences of section 4(d) provides the Secretary with wide latitude of discretion to select and promulgate appropriate regulations tailored to the specific conservation needs of the threatened species. The second sentence grants particularly broad discretion to the Service when adopting the prohibitions under section 9.

The courts have recognized the extent of the Secretary's discretion under this standard to develop rules that are appropriate for the conservation of a species. For example, courts have upheld rules developed under section 4(d) as a valid exercise of agency authority where they prohibited take of threatened wildlife, or include a limited taking prohibition (see
Alsea Valley Alliance
v.
Lautenbacher,
2007 U.S. Dist. Lexis 60203 (D. Or. 2007);
Washington Environmental Council
v.
National Marine Fisheries Service,
2002 U.S. Dist. Lexis 5432 (W.D. Wash. 2002)). Courts have also upheld 4(d) rules that do not address all of the threats a species faces (see
State of Louisiana
v.
Verity,
853 F.2d 322 (5th Cir. 1988)). As noted in the legislative history when the Act was initially enacted, “once an animal is on the threatened list, the Secretary has an almost infinite number of options available to him [or her] with regard to the permitted activities for those species. He [or she] may, for example, permit taking, but not importation of such species, or he [or she] may choose to forbid both taking and importation but allow the transportation of such species” (H.R. Rep. No. 412, 93rd Cong., 1st Sess. 1973).

Exercising the authority under section 4(d), we have developed a rule that is designed to address the Panama City crayfish's specific threats and conservation needs. Although the statute does not require us to make a “necessary and advisable” finding with respect to the adoption of specific prohibitions under section 9, we find that this rule as a whole satisfies the requirement in section 4(d) of the Act to issue regulations deemed necessary and advisable to provide for the conservation of the Panama City crayfish. As discussed above under Summary of Biological Status and Threats, we have concluded that the Panama City crayfish is likely to become in danger of extinction within the foreseeable future primarily due to habitat loss and degradation, habitat fragmentation, and subpopulation isolation due to development.

The provisions of this 4(d) rule will promote conservation of the Panama City crayfish by encouraging management of the landscape in ways that meet the conservation needs of the

Panama City crayfish and are consistent with land management considerations. The provisions of this rule are one of many tools that the Service will use to promote the conservation of the Panama City crayfish.

Provisions of the 4(d) Rule

This 4(d) rule will provide for the conservation of the Panama City crayfish by prohibiting the following activities, except as otherwise authorized or permitted: Importing or exporting; take; possession and other acts with unlawfully taken specimens; delivering, receiving, transporting, or shipping in interstate or foreign commerce in the course of commercial activity; or selling or offering for sale in interstate or foreign commerce.

Multiple factors are affecting the status of the Panama City crayfish, with the primary threats resulting in habitat loss and degradation, habitat fragmentation, and population isolation. A range of activities have the potential to affect these species, including farming and grazing practices, some silvicultural practices, creation and maintenance of roadside ditches and rights-of-way, development of residential or commercial properties, and collection for bait (Service 2019, pp. 65-66). These threats, which are expected to be exacerbated by continued development along with the effects of climate change, were central to our assessment of the future viability of the Panama City crayfish. As a result, we are prohibiting take associated with these threats to conserve the species unless they are managed in such a way that results in minor take. Further, import or export, sale, and possession are all activities that could be associated with bait collection and, therefore, are prohibited.

Under the Act, “take” means to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct. Some of these provisions have been further defined in regulation at 50 CFR 17.3. Take can result knowingly or otherwise, by direct and indirect impacts, intentionally or incidentally. Regulating incidental and intentional take will help preserve the species' remaining populations, slow their rate of decline, and decrease synergistic, negative effects from other stressors. Therefore, we prohibit intentional and incidental take of the Panama City crayfish, except that take associated with those actions and activities discussed below is specifically excepted by the 4(d) rule.

We may issue permits to carry out otherwise prohibited activities, including those described above, involving threatened wildlife under certain circumstances. Regulations governing permits are codified at 50 CFR 17.32. With regard to threatened wildlife, a permit may be issued for the following purposes: For scientific purposes, to enhance propagation or survival, for economic hardship, for zoological exhibition, for educational purposes, for incidental taking, or for special purposes consistent with the purposes of the Act. The statute also contains certain exemptions from the prohibitions, which are found in sections 9 and 10 of the Act.

The 4(d) rule will also provide for the conservation of the species by allowing exceptions to actions and activities that, while they may have some minimal level of disturbance or take to the Panama City crayfish, are not expected to rise to the level that would negatively impact the species' conservation and recovery efforts. The exceptions to these prohibitions include conservation efforts by the Service or State wildlife agencies; certain other general exceptions allowed for take of endangered wildlife as set forth in 50 CFR 17.21 (see the rule portion of this document); and certain development practices, select land management activities, and some utility actions (described below) that are expected to have negligible impacts to the Panama City crayfish and its habitat.

The first exception is for take associated with certain development activities that will have negligible or beneficial effects on the Panama City crayfish and its habitat, including: Maintenance of existing structures and construction or reconstruction activities that occur within the existing footprint of previously developed areas; construction of new structures that occur within 100 feet of existing structures on an individual private landowner's property and have a new footprint less than 1,000 square feet (ft
2
), such as a pool or shed associated with an existing house; installation of culverts for individual landowners not associated with larger developments; installation of platforms or boardwalks for recreational purposes on conservation lands that allow sunlight of sufficient levels to maintain herbaceous groundcover; and construction of paths used for nonmotorized activities as long as the project footprint, including construction impacts, impacts no more than 5 percent of the acreage in core or secondary soils within properties under a conservation easement.

The second exception is for take associated with select land management activities related to silvicultural (forestry) activities and invasive species control that help maintain habitat for the Panama City crayfish and to agricultural maintenance activities, and that have
de minimus
effects. Silviculture activities within secondary soils including tree thinning, harvest (including clearcutting), site preparation, planting, and replanting following State BMPs (Florida Department of Agriculture and Consumer Services (FDACS) 2008, entire) are excepted as the species has remained viable in lands under timber management where native groundcover species recolonize naturally. As a practice, ditching and bedding from forestry occurs less often in secondary soils than in primary soils, and therefore is considered to have
de minimus
effects. Take associated with prescribed burning and wildfire control efforts is excepted when following all State BMPs, guidelines, or permit conditions, and take associated with herbicide applications targeting exotic plants or shrub species is excepted when following all other State and Federal BMPs, guidelines, or permit conditions, associated with these actions. Finally, take associated with agricultural maintenance activities in pasture and rangelands (including cattle operations) that were established prior to publication of the proposed listing rule (January 3, 2018) and that implement State and Federal BMPs will be excepted.

The third exception is for take associated with some utility actions that are expected to have minimal impacts to the Panama City crayfish or its habitat. These include ditch mowing and maintenance activities outside of critical habitat units, or ditch mowing and maintenance within critical habitat units after development of BMPs in coordination with the local Service office. Take associated with culvert replacements or maintenance that do not adversely affect, but improve or restore, the natural hydrology is excepted. In coordination with the local Service office, take associated with the following activities is also excepted: Maintenance associated with rights-of-way (including mowing, use of herbicides, and mechanical side trimming); powerline and pole placements and replacements; replacement of critical structural components, such as crossarms, insulators, conductors, etc.; and directional boring by utility owners.

We reiterate that these actions and activities may have some minimal level of take of the Panama City crayfish, but any such take is expected to be rare and

insignificant, and is not expected to negatively impact the species' conservation and recovery efforts. We expect the restoration activities to have a net beneficial effect on the species. Across the species' range, habitat has been degraded and fragmented by development and land use changes. The habitat restoration activities in the 4(d) rule are intended to improve habitat conditions for the species in the long term.

We recognize our special and unique relationship with our State natural resource agency partners in contributing to conservation of listed species. State agencies often possess scientific data and valuable expertise on the status and distribution of endangered, threatened, and candidate species of wildlife and plants. State agencies, because of their authorities and their close working relationships with local governments and landowners, are in a unique position to assist the Services in implementing all aspects of the Act. In this regard, section 6 of the Act provides that the Services shall cooperate to the maximum extent practicable with the States in carrying out programs authorized by the Act. Therefore, any qualified employee or agent of a State conservation agency that is a party to a cooperative agreement with the Service in accordance with section 6(c) of the Act, who is designated by his or her agency for such purposes, will be able to conduct activities designed to conserve the Panama City crayfish that may result in otherwise prohibited take without additional authorization. In addition, Federal and State wildlife law enforcement officers, working in coordination with Service field office pers

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3A2021-27519. Public record. Not legal advice.