# Endangered and Threatened Wildlife and Plants; Designation of Critical Habitat for Endangered Florida Bonneted Bat

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/fr%3A2024-04053

## Record

- **Collection:** Federal Register
- **Document type:** Rule
- **Published:** March 7, 2024
- **Citation:** 89 FR 16624

## Text

DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
[Docket No. FWS-R4-ES-2019-0106; FXES1111090FEDR-245-FF09E21000]
RIN 1018-BE10
Endangered and Threatened Wildlife and Plants; Designation of Critical Habitat for Endangered Florida Bonneted Bat

AGENCY:

Fish and Wildlife Service, Interior.

ACTION:

Final rule.

SUMMARY:

We, the U.S. Fish and Wildlife Service (Service), designate critical habitat for the Florida bonneted bat (
Eumops floridanus
) under the Endangered Species Act of 1973 (Act), as amended. In total, approximately 1,160,625 acres (469,688 hectares) in 13 Florida counties fall within the boundaries of the critical habitat designation. This rule extends the Act's protections to this species' critical habitat.

DATES:

This rule is effective April 8, 2024.

ADDRESSES:

This final rule is available on the internet at
https://www.regulations.gov
and
https://www.fws.gov/species/florida-bonneted-bat-eumops-floridanus.
Comments and materials we received are available for public inspection at
https://www.regulations.gov
at Docket No. FWS-R4-ES-2019-0106.

Availability of supporting materials:
Supporting materials we used in preparing this rule are available at
https://www.regulations.gov
at Docket No. FWS-R4-ES-2019-0106. 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-2019-0106, at
https://www.fws.gov/species/florida-bonneted-bat-eumops-floridanus,
and at the Florida Ecological Services Field Office (see
FOR FURTHER INFORMATION CONTACT
, below).

FOR FURTHER INFORMATION CONTACT:

Lourdes Mena, Classification and Recovery Division Manager, U.S. Fish and Wildlife Service, Florida Ecological Services Field Office, 7915 Baymeadows Way, Suite 200, Jacksonville, FL 32256; telephone (352) 749-2462. Individuals in the United States who are deaf, deafblind, hard of hearing, or have a speech disability may dial 711 (TTY, TDD, or TeleBraille) to access telecommunications relay services. Individuals outside the United States should use the relay services offered within their country to make international calls to the point-of-contact in the United States.

SUPPLEMENTARY INFORMATION:

Executive Summary

Why we need to publish a rule.
Under the Act, when we determine that any species is an endangered or threatened species, we are required to designate critical habitat, to the maximum extent prudent and determinable. Designations of critical habitat can only be completed by issuing a rule through the Administrative Procedure Act rulemaking process (5 U.S.C. 551
et seq.
).

What this document does.
This rule designates critical habitat for the Florida bonneted bat. The designation includes approximately 1,160,625 acres (ac) (469,688 hectares (ha)) in portions of 13 Florida counties.

The basis for our action.
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 protection; and (ii) specific areas outside the geographical area occupied by the species at the time it is listed, upon a determination by the Secretary that such areas are essential for the conservation of the species. Section 4(b)(2) of the Act states that the Secretary must make the designation on the basis of the best scientific data available and after taking into consideration the economic impact, the impact on national security, and any other relevant impacts of specifying any particular area as critical habitat.

Previous Federal Actions

Please refer to the Florida bonneted bat's final listing rule (78 FR 61004; October 2, 2013), proposed critical habitat rule (85 FR 35510; June 10, 2020), and revised proposed critical habitat rule (87 FR 71466; November 22, 2022) for a detailed description of previous Federal actions concerning this species.

Peer Review

In accordance with our joint policy on peer review published in the
Federal Register
on July 1, 1994 (59 FR 34270), and our August 22, 2016, memorandum updating and clarifying the role of peer review of listing actions under the Act, we solicited independent scientific review of the information contained in the proposed critical habitat rule (85 FR 35510; June 10, 2020). We sent the proposed rule to six independent peer reviewers and received two responses. Following the public comment period for the revised proposed rule (87 FR 71466; November 22, 2022), we sent the revised proposed rule to five independent peer reviewers and received one response. The peer reviews can be found at
https://www.regulations.gov.
We incorporated the results of these reviews, as appropriate, into this final rule. A summary of the peer review comments and our responses can be found under Summary of Comments and Recommendations, below.

Summary of Changes From the Proposed Rule

After considering the comments we received during the public comment period (refer to Summary of Comments and Recommendations, below) and new information published or obtained since the revised proposed rule was published (87 FR 71466; November 22, 2022), we made changes to this final critical habitat designation, as described below. No changes were made to our economic analysis after considering public comments on the draft document; thus, we finalized the economic analysis of the designation. We added the following supporting documents at
https://www.regulations.gov
under Docket No. FWS-R4-ES-2019-0106: (1) A table entitled, “Conservation Lands Within Florida Bonneted Bat Final Critical Habitat Designation,” (2) coordinates from which the final critical habitat maps are generated, (3) a list of literature cited in this final rule, (4) the peer reviews of the revised proposed rule and the accompanying conflict of interest forms, and (5) a table of requested additions to the proposed and revised proposed critical habitat designations and the outcome of our evaluation for each area.

In this rule, we make many small, nonsubstantive changes and corrections (
e.g.,
updating the discussion under Background, below, in response to comments and making minor clarifications) that do not affect the designation. We also make several minor updates to the biological information for and habitat use by the Florida bonneted bat based on new and updated information. Specifically, we update measurements of roost characteristics, add detail on foraging areas and insects associated with agricultural crops, add information about the Florida bonneted bat's use of

seasonally inundated forested wetlands, and add new information about the species' breeding and resource defense. In addition, we update citations supporting existing statements as needed. The following items describe changes made between the revised proposed rule (87 FR 71466; November 22, 2022) and this final rule:

(1) In
Cover or Shelter,
under Physical or Biological Features Essential to the Conservation of the Species, below, we update roost habitat characteristics and roost measurements, including both averages and ranges in our description, and we clarify the role of artificial roosts in Florida bonneted bat habitat.

(2) In
Food, Water, Air, Light, Minerals, or Other Nutritional or Physiological Requirements,
under Physical or Biological Features Essential to the Conservation of the Species, below, we add information on the influence of artificial lighting on Florida bonneted bat habitat.

(3) In both the
Summary of Essential Physical or Biological Features,
under Physical or Biological Features Essential to the Conservation of the Species, and in the rule portion of this document, below, we modified the first and second physical or biological features essential to the conservation of the Florida bonneted bat to include sufficient darkness as a habitat feature, and we modified the first physical or biological feature to qualitatively characterize roosting habitat.

(4) Under Special Management Considerations or Protection, below, we update estimates of the critical habitat area to be affected by sea level rise or converted to developed land by 2070 based on the areas included within this final critical habitat designation, and we add a discussion under the heading
Ecological Light Pollution
to align with the changes we make to the physical or biological features noted in (2) and (3), above, regarding artificial lighting and sufficient darkness.

(5) Under Final Critical Habitat Designation, below, we adjust the boundaries of Subunits 3B, 9M, 9N, and 9O to include a total of an additional 1,179 ac (477 ha). Subunit 3B now includes an additional 1,118 ac (452 ha) of lands primarily owned by Lee County, based on a peer review comment and to ensure we are designating the specific areas that contain the physical or biological features essential to the conservation of the Florida bonneted bat. Subunit 9M includes an additional 10 ac (4 ha) of lands owned by Miami-Dade County, based on a request from Miami-Dade County and new information indicating these areas have the essential physical or biological features. Subunit 9N includes an additional 10 ac (4 ha) of lands primarily owned by the State of Florida and managed by Miami-Dade County, based on a request from Miami-Dade County and new information indicating this area also contains the essential physical or biological features. Subunit 9O includes an additional 42 ac (17 ha) of lands primarily owned by Miami-Dade County (38 ac (15 ha)) and the U.S. Coast Guard (4 ac (2 ha)), based on new information indicating this area also contains the essential physical or biological features.

(6) Under
Application of the “Adverse Modification” Standard,
below, we add excessive alteration of natural lighting as an action that would significantly reduce habitat suitability or impact the prey base for the Florida bonneted bat in the list of activities that we may, during a consultation under section 7(a)(2) of the Act (16 U.S.C. 1531
et seq.
), consider likely to destroy or adversely modify critical habitat.

(7) We exclude the Coral Reef Commons Habitat Conservation Plan (HCP) on-site preserve and off-site mitigation areas in Subunit 9O from this final designation pursuant to section 4(b)(2) of the Act based on the provisions of the HCP. This amounts to a decrease of approximately 104 ac (42 ha) from the critical habitat areas we proposed.

(8) We exclude Tribal lands of the Seminole Tribe of Florida in Unit 6. This amounts to a decrease of approximately 14,455 ac (5,850 ha) from the critical habitat areas we proposed.

(9) We exclude Tribal lands of the Miccosukee Tribe of Florida in Subunit 1B. This amounts to a decrease of approximately 1.25 ac (0.5 ha) from the critical habitat areas we proposed.

(10) We apply updated information on parcel boundaries and parcel ownership that we obtained from counties, which changed some of the areas of critical habitat by land ownership category from what we presented in table 1 in the revised proposed rule (87 FR 71466, November 22, 2022, p. 71475; see table 1 under Final Critical Habitat Designation, below, for comparison). However, the total area of critical habitat in Units 2, 4, 5, 7, and 8 are the same as we proposed. The total area has only substantially changed for those units where exclusions or boundary adjustments were applied, as noted above in (5), (7), (8), and (9).

(11) Because of the above boundary adjustments and exclusions, in this rule, we revise the index map and maps for Units 1, 3, 6, and 9A-9O in the rule portion of this document.

Beyond those changes, this critical habitat designation is unchanged from what we proposed on November 22, 2022 (87 FR 71466).

Summary of Comments and Recommendations

We requested that all interested parties submit written comments on the proposed critical habitat rule (85 FR 35510; June 10, 2020) and on the revised proposed critical habitat rule (87 FR 71466; November 22, 2022) for the Florida bonneted bat. The comment period for the proposed critical habitat rule closed on August 10, 2020; the comment period for the revised proposed critical habitat rule closed on January 23, 2023.

For the proposed critical habitat rule (85 FR 35510; June 10, 2020), we contacted appropriate Federal and State agencies, Tribes, scientific experts and organizations, and other interested parties and invited them to comment on the proposal. For the revised proposed critical habitat rule (87 FR 71466; November 22, 2022), we again contacted appropriate Federal and State agencies, Tribes, scientific experts and organizations, and other interested parties and invited them to comment on the proposal. In the November 22, 2022, revised proposed rule, we stated that any comments we received in response to the June 10, 2020, proposed rule need not be resubmitted as they would be fully considered in this final rule.

For the June 10, 2020, proposed rule, newspaper notices inviting general public comment were published in the Orlando Sentinel, Ft. Myers News-Press, Sarasota Herald Tribune, and Miami Herald newspapers on June 9, 2020. For the November 22, 2022, revised proposed rule, a newspaper notice inviting general public comment was published in the Miami Herald newspaper on November 28, 2022.

For the June 10, 2020, proposed rule, we did not receive any requests for a public hearing, but we held public informational webinars on June 16 and 17, 2020. For the November 22, 2022, revised proposed rule, we did not receive any requests for a public hearing.

Because of the comprehensive changes we made to the June 10, 2020, proposed rule in the November 22, 2022, revised proposed rule, some substantive comments and information we received during the comment period on the June 10, 2020, proposed rule no longer apply, and we do not address them below. All other substantive information we received during both comment periods has either been

incorporated directly into this final determination or is addressed below.

During the comment period on the June 10, 2020, proposed rule, we received approximately 1,900 written comment letters on the proposed critical habitat designation or the draft economic analysis (DEA) and supplemental memo (IEc 2020a, b, entire). During the comment period on the November 22, 2022, revised proposed rule, we received an additional 41 comment letters on the revised proposed critical habitat designation or the DEA and supplemental memo (IEc 2021a, b, entire). During the comment period on the November 22, 2022, revised proposed rule, we also received four requests for exclusion of areas that were not identified as being considered for exclusion in the proposed rule or the revised proposed rule. We reviewed each exclusion request, whether received in response to the proposed or revised proposed rule, to determine if the requester provided information or a reasoned rationale to initiate an analysis of exclusion or support an exclusion (see Policy Regarding Implementation of Section 4(b)(2) of the Endangered Species Act (81 FR 7226; February 11, 2016), hereafter referred to as our 2016 section 4(b)(2) policy). All substantive information provided to us during both comment periods has been incorporated directly into this final determination or, in the case of substantive information regarding the DEA received during the comment period on the June 10, 2020, proposed rule, was used to revise the economic analysis and supplemental memo (IEc 2021a, b, entire) between the June 10, 2020, proposed and November 22, 2022, revised proposed rules.

Peer Reviewer Comments

As discussed in Peer Review above, we received comments from two peer reviewers on the June 10, 2020, proposed rule and one peer reviewer on the November 22, 2022, revised proposed rule. We reviewed all comments we received from the peer reviewers for substantive issues and new information regarding the Florida bonneted bat and its habitat use and needs. The peer reviewers provided critiques of our methods but generally concurred with our designation of critical habitat and conclusions and provided additional information, clarifications, and suggestions to improve the designation. Our revised proposed critical habitat rule (87 FR 71466; November 22, 2022) was developed in part to address some of the critiques and information raised by the peer reviewers in 2020. The additional details and information we received or that were raised by the peer reviewers have been incorporated into this final rule, as appropriate. Peer review comments are addressed in the following summary.

(1) Comment:
In response to the June 10, 2020, proposed critical habitat rule (85 FR 35510) and the November 22, 2022, revised proposed critical habitat rule (87 FR 71466), we received peer review and public comments requesting that we consider adding 71 areas to the critical habitat designation for the Florida bonneted bat. Specific additions were recommended with supporting information, including information regarding habitat and evidence of use by the Florida bonneted bat. Commenters also stated their views that the critical habitat areas included in the June 10, 2020, proposed and November 22, 2022, revised proposed designations were not sufficient to ensure long-term conservation of the species in light of future threats, such as climate change and urbanization, and that unoccupied habitat should be reexamined for inclusion.

Our Response:
In preparing this final designation, we evaluated all requests for the addition of specified areas (see “Areas Requested for Addition to Florida Bonneted Bat Critical Habitat” under Supporting and Related Material in Docket No. FWS-R4-ES-2019-0106 on
https://www.regulations.gov
). In the November 22, 2022, revised proposed designation, we included 24 additions requested in response to the June 10, 2020, proposed rule that resulted from our development of new critical habitat criteria and analysis of physical or biological features that are essential to the Florida bonneted bat, which guided a new delineation of revised critical habitat units. Of those areas not included in the November 22, 2022, revised proposed rule, we determined that four meet the definition of critical habitat for the Florida bonneted bat, and we include these areas in this final designation as reflected in boundary changes made to four subunits (Subunits 3B, 9M, 9N, and 9O; see Final Critical Habitat Designation, below). The remaining areas, including identified golf courses, parks, and heavily fragmented areas, are not included in this final designation. While we agree that such areas can be important to the species and are considered in recovery and regulatory processes, our evaluation indicated the identified areas did not meet our criteria for designating critical habitat.

A critical habitat designation does not signal that habitat outside the designated area is unimportant or should not be managed or conserved for recovery of the species. Areas that are important to the conservation of the species, both inside and outside the critical habitat designation, will continue to be subject to: (1) Conservation actions implemented under section 7(a)(1) of the Act; (2) section 9 of the Act, which prohibits taking any individual of the species, including taking caused by actions that affect habitat; and (3) regulatory protections afforded by the requirement in section 7(a)(2) of the Act for Federal agencies to ensure that actions that they authorize, fund, or carry out are not likely to jeopardize the continued existence of any endangered or threatened species. Thus, Federal agencies must consult with the Service even if actions they authorize, fund or carry out are conducted outside of designated critical habitat if those activities may affect listed species.

In accordance with section 3(5)(A) of the Act, we are designating critical habitat in specific areas within the geographical area occupied by the species at the time of listing that contain the physical or biological features essential to the conservation of the species and which may require special management considerations or protection. We acknowledge that a variety of roosting and foraging habitats are important to the conservation of the Florida bonneted bat. However, a critical habitat designation identifies the habitat areas essential to the species; it is not necessary to include in the designation all areas that can be occupied by the species or where the species has been detected. We may designate critical habitat that is outside the geographical area occupied by the species if we determine it to be essential for the conservation of the species. Accordingly, during the development of our November 22, 2022, revised proposed rule, we evaluated areas both within and outside the species' current range to identify those areas that have the essential physical or biological features we established for inclusion in critical habitat. We then evaluated whether the areas considered to be occupied are sufficient to ensure conservation of the species. Based on our determination that the occupied units included in the November 22, 2022, revised proposed rule represent the appropriate quantity and spatial arrangement essential to the species, we determined unoccupied areas are not essential for the conservation of the Florida bonneted bat. However, this designation does include areas in the northern extremes of the species'

current range that, while currently occupied, may become of much higher value to the species as the climate changes (see description of Unit 1 under Final Critical Habitat Designation, below).

(2) Comment:
Peer reviewers recommended acknowledging the important role artificial roosts play in Florida bonneted bat conservation and recovery, and they suggested including artificial roosts (
e.g.,
bat houses, bat boxes) in the species' essential physical or biological features and our habitat analysis.

Our Response:
Physical or biological features are features that support the species' life-history needs, such as reproduction. Roosting habitat is essential to Florida bonneted bats to provide shelter and support reproduction, socialization, and other natural behaviors. While artificial roosts can provide alternative, long-term, and hurricane-resilient roosting habitat for the species where roosting habitat is limited, they are an imperfect surrogate for natural roosting habitat and are not on their own a habitat feature essential for the species' survival (see
Cover or Shelter,
below, for additional details). It is also for this reason that we do not include roost measurements of artificial or supplemental roosts in our description of roosting habitat, although available locations of artificial roosts are included in the presence dataset used for our habitat analysis (see “Florida Bonneted Bat Habitat Analysis” under Supporting and Related Material in Docket No. FWS-R4-ES-2019-0106 on
https://www.regulations.gov
). Additionally, while our knowledge regarding how to design bat houses with conservation benefits for Florida bonneted bats is improving, many designs still present thermal issues to bat colonies and can be harmful (Crawford and O'Keefe 2021, entire; Bat Conservation International 2022, pp. 10-11). Also, bat houses often require human intervention to repair and replace as they deteriorate, especially in Florida, reducing the potential for these structures to provide long-term conservation benefits for Florida bonneted bats. We appreciate the efforts of our partners to provide safe supplemental roosts for the Florida bonneted bat, and we agree that, with proper placement, design, and maintenance, supplemental roosts play an important role in the conservation of the species. While not intentionally included or excluded, all bat houses for Florida bonneted bats at Fred C. Babcock-Cecil M. Webb Wildlife Management Area (Babcock-Webb WMA) and the majority (80 percent) of known bat houses for Florida bonneted bats in Miami-Dade County are located within the final critical habitat designation. Additionally, as noted above, areas including artificial roosts remain subject to regulatory protections afforded by the requirement in section 7(a)(2) of the Act for Federal agencies to ensure that actions that they authorize, fund, or carry out are not likely to jeopardize the continued existence of any endangered or threatened species.

(3) Comment:
In response to the June 10, 2020, proposed and November 22, 2022, revised proposed rules, peer reviewers and public commenters stated their views that additional discussion and consideration of urban areas were needed, and they suggested including some or all urban areas within the species' range (including golf courses, parks, urban ponds, and canals, especially within Miami-Dade County) in the critical habitat designation. Commenters voiced that the addition of these areas is needed to allow the Florida bonneted bat to forage in fragmented landscapes. Commenters also questioned why the proposed and revised proposed rules include negative associations with respect to urban areas and Florida bonneted bat habitat, when a significant portion of the overall population uses an urban landscape; commenters suggested that suburban and urban areas be modeled at a different, smaller scale than areas outside the urban matrix and/or be considered using different criteria for inclusion in the critical habitat designation.

Our Response:
To identify specific areas that may qualify as critical habitat for the Florida bonneted bat, in accordance with 50 CFR 424.12(b), we included the following considerations in the process: (1) Identifying the geographical area occupied by the species at the time of listing; (2) identifying physical or biological habitat features essential to the conservation of the species; (3) identifying the specific areas within the geographical area occupied by the species that contain one or more of the physical or biological features essential to the conservation of the species; (4) determining which of these essential features may require special management considerations or protection; and (5) identifying specific areas outside the geographical area occupied by the species that are essential for the species' conservation. Our evaluation and conclusions are described in detail below under the following headings: Physical or Biological Features Essential to the Conservation of the Species, Special Management Considerations or Protection, and Conservation Strategy and Selection Criteria Used to Identify Critical Habitat.

In development of the November 22, 2022, revised proposed designation, we developed revised physical or biological features based on new information as well as peer review and public comments on the June 10, 2020, proposed rule. As a result, habitat within the Miami-Dade urban matrix was evaluated, and those areas that contain the physical or biological features essential to the conservation of the species were included in our revised proposed designation (
i.e.,
Unit 9). However, while natural areas within urban landscapes are used by Florida bonneted bats, increased urbanization is considered a threat to the species as these areas can have limited resources, such as a lack of roost trees, and increased conflicts with humans. Therefore, despite their use by the species and their local importance, many urban areas have a lower conservation value to the species as a whole and do not contain the physical or biological features essential to the conservation of the Florida bonneted bat.

Results of our habitat analysis (see “Florida Bonneted Bat Habitat Analysis” under Supporting and Related Material in Docket No. FWS-R4-ES-2019-0106 on
https://www.regulations.gov
) did not specifically inform our consideration of urban areas as part of our revised proposed critical habitat methodology or delineation. The MaxEnt model that we used in our analysis did not identify the amount of urbanization as a habitat-related variable having strong influence on the probability of Florida bonneted bat occurrence. Thus, no urbanization covariate was incorporated in our model output or analysis results, and we have no model-related results to estimate its correlation (positive or negative) with Florida bonneted bat occupancy or the relative conservation value of these areas.

In addition, model covariate layers representing high-quality foraging habitat include certain natural areas within the urban matrix based on our evaluation of land cover type characteristics; thus, we did not assume a broad negative association between foraging habitat quality and urbanization. We acknowledge that choice of scale typically impacts the results of any spatial analysis and that the influence and association of urban areas with Florida bonneted bat occurrence and habitat suitability may differ from our MaxEnt results if a different scale (
i.e.,
grid cell size) is

used. Based on the attributes of the available covariate data, as well as on available sample size, we identified our grid cell size using the best available data on Florida bonneted bat biology and habitat use at the time of analysis (see “Florida Bonneted Bat Habitat Analysis” under Supporting and Related Material in Docket No. FWS-R4-ES-2019-0106 on
https://www.regulations.gov
).

Given acknowledged limitations of the habitat analysis, additional criteria were applied to identify areas containing the essential physical or biological features and delineate critical habitat (see
Selection Criteria and Methodology Used to Identify Critical Habitat,
below), including in urban areas.

(4) Comment:
One peer reviewer and several public commenters stated their views that habitat is a three-dimensional concept, and therefore the airspace above the substrate, where the Florida bonneted bat forages and socializes, is essential to the conservation of the species. The peer reviewer also mentioned that because this three-dimensional habitat approach has been used in critical habitat for aquatic and fossorial species, the same approach should be applied to the Florida bonneted bat as a flying species. Some commenters suggested, citing Diehl et al. 2017 and other studies, that airspace above disturbed areas, including over paved surfaces, is vital habitat and heavily used by the species in some areas.

Our Response:
We agree that airspace is important to this species. “Open areas,” as described in the second essential physical or biological feature for the Florida bonneted bat, include the ground, water, vegetation, and air where the Florida bonneted bat forages and socializes above those surfaces; thereby, the air above the surfaces where the Florida bonneted bat forages and socializes is included in the open areas described in in the essential physical or biological features for the species. Since the species' listing, consultations have considered the species' use of habitat in three dimensions, and the evaluation of impacts to Florida bonneted bat habitat addressed in the Florida Bonneted Bat Consultation Guidelines also considers habitat use in three dimensions (see Supporting and Related Material in Docket No. FWS-R4-ES-2019-0106 on
https://www.regulations.gov
).

(5) Comment:
One peer reviewer and several public commenters expressed concerns regarding policy and language in the proposed rule that states that critical habitat does not include lands covered by buildings, pavement, and other structures (see paragraph (3) in the proposed rule text for the Florida bonneted bat's critical habitat designation at 85 FR 35510, June 10, 2020, p. 35539). Commenters stated their views that excluding these areas is arbitrary and unsupported by the best data available on the Florida bonneted bat, and thus these areas are inappropriately omitted from the critical habitat designation.

Our Response:
The Florida bonneted bat may roost in buildings and forage above human-made structures, but critical habitat is not intended to include all areas and locations that the species uses. While certain human-made structures and the lands on which they are located are not included in the designated critical habitat for the Florida bonneted bat, impacts to bats using these areas may still be considered during consultations for effects to the species.

(6) Comment:
One peer reviewer suggested that live oaks (
Quercus virginiana
) be included in the
Cover or Shelter
discussion as a potential roost tree species. The reviewer mentioned that a non-volant (flightless) pup was found below bisected tree cavity in a live oak, providing evidence that the Florida bonneted bat will roost in live oak trees. The peer reviewer also noted that the rule should acknowledge live oak as a potential roost tree species considering mature trees of this species with cavities are plentiful near known Florida bonneted bat foraging areas.

Our Response:
Known natural roosts with Florida bonneted bat colonies have been documented in slash pine (
Pinus elliottii
), longleaf pine (
Pinus palustris
), bald cypress (
Taxodium distichum
), and royal palm (
Roystonea regia
) (see
Cover or Shelter,
below). All trees of appropriate size, regardless of species, are considered to be possible roost trees when project areas are evaluated and surveyed for consultations. While no tree species is omitted from consideration under the Florida bonneted bat's essential physical or biological feature describing roosting habitat, we do not have the information needed to specifically identify live oak trees as a species in which roosts with Florida bonneted bat colonies have repeatedly been observed.

Federal Agency Comments

(7) Comment:
Comments from the U.S. Army Corps of Engineers and Miami-Dade County recommended that conservation plans and additional conservation measures for the Florida bonneted bat be included either as part of the final rule or shared with Federal and local governments outside of the rulemaking process. Other suggestions included that the Service provide funding for land acquisition, incentives for limiting pesticide use, guidance regarding bat-friendly lighting and exclusions, and outreach materials.

Our Response:
We appreciate our partners' support for conservation of the Florida bonneted bat and interest in specific and additional ways to conserve the species and its habitat. While critical habitat is one tool that supports conservation of the species, providing additional or specific conservation recommendations or funding conservation is not within the scope of a critical habitat designation. Additional discussion of conservation actions can be found in the Florida Bonneted Bat Conservation Strategy and the Florida Bonneted Bat Consultation Guidelines (see Supporting and Related Material in Docket No. FWS-R4-ES-2019-0106 on
https://www.regulations.gov
) and will be more fully addressed in the species' recovery plan. For further coordination on development of conservation plans related to the Florida bonneted bat or other listed species, please contact the Service (see
FOR FURTHER INFORMATION CONTACT
).

(8) Comment:
In response to the June 10, 2020, proposed rule, the U.S. Army Corps of Engineers requested that private lands enrolled in the Wetland Reserve Easement Partnership Program (WREPP, formerly the Wetlands Reserve Program (WRP)) and lands within the Picayune Strand Restoration Project be excluded from critical habitat designation. They suggested that exclusion should be considered on an economic basis for both areas of land and, for lands enrolled in WREPP, that exclusion should also be considered due to the conservation benefits associated with the program.

Our Response:
We listed this exclusion request in table 2 in the
Exclusion Requests Received During the Previous Public Comment Period
section of the revised proposed rule (87 FR 71466, November 22, 2022, p. 71481). In this final rule, we do not conduct an analysis of these lands to determine whether the benefits of potentially excluding any specific area from this critical habitat designation outweigh the benefits of including that area in the designation under section 4(b)(2) of the Act. Under our 2016 section 4(b)(2) policy, we may choose to exclude proposed critical habitat if there is a signed conservation plan or program that provides for the necessary long-term conservation and management of habitat for a species and an analysis has determined that the benefits of

excluding outweigh the benefits of including the area in critical habitat.

This comment was received in the context of the June 10, 2020, proposed rule, and the WREPP lands that were requested for exclusion (Wolf Island) were in Unit 1 of the proposed designation. Under the revised physical or biological features proposed in the November 22, 2022, revised proposed rule, those WREPP lands no longer meet the definition of critical habitat.

However, in our November 22, 2022, revised proposed designation, there were other WREPP lands that overlapped with our revised proposed critical habitat units, consisting of 387 ac (157 ha) in Subunit 2A. Because of this, we extrapolated the logic of the initial request to exclude WREPP lands, and we considered this initial request to also apply to WREPP lands in the revised proposal, although we did not receive a comment from the U.S. Army Corps of Engineers requesting that we consider these other WREPP lands for exclusion. However, we did not conduct an analysis considering the benefits of excluding WREPP lands covered by a non-permitted voluntary conservation plan because the initial request did not provide information on the benefits of exclusion that would be needed to weigh the potential benefits of excluding these lands from the critical habitat designation against including them in the designation. Further, we did not receive any other comments about this request. Additionally, it is our understanding that the conservation in agreements under the WREPP program is highly variable among landowners, and no landowner for these WREPP lands provided information or comment on either the June 10, 2020, proposed or November 22, 2022, revised proposed rule. Similarly, we do not conduct an exclusion analysis based on economic impacts for either WREPP lands or lands within the Picayune Strand Restoration Project (consisting of 64,490 ac (26,098 ha) in Unit 6) because the commenter described an economic burden that is purely associated with listing, and they did not describe any additional anticipated project modifications or costs anticipated to result from the designation of critical habitat for the Florida bonneted bat.

State Comments

(9) Comment:
Two State agencies (the Florida Fish and Wildlife Conservation Commission and Florida Farm Bureau) and other commenters recommended that the Service provide assurances that the critical habitat designation would not negatively affect a land manager's or private landowner's ability to implement resource management activities (
e.g.,
prescribed fire, invasive species management, grazing, tree harvesting) or recreational activities (
e.g.,
hunting, off road vehicle use) within critical habitat, and that it will not add regulatory burden. Further, commenters recommended that the Service identify which activities are likely to require (or not require) consultation with the Service and clarify the project modifications that would be needed to avoid adverse effects to or the destruction or adverse modification of critical habitat.

Our Response:
The purpose of the designation of critical habitat is to identify those areas critical to the conservation of the species, not to impede resource or habitat management. Section 7(a)(2) states that each Federal action agency shall, in consultation with the Secretary, ensure that any action they authorize, fund, or carry out is not likely to result in the destruction or adverse modification of designated critical habitat. Each Federal agency shall review its action at the earliest possible time to determine whether it may affect listed species or critical habitat. To help Federal and State agencies and members of the public recognize the actions considered to have potential effects on designated critical habitat, we generally identify those types of actions that could potentially result in destruction or adverse modification of designated critical habitat (see
Application of the “Adverse Modification” Standard,
below). The actual effects of a proposed action on designated critical habitat are dependent on many project-specific factors related to both the action being proposed and the project area. Therefore, we cannot determine or provide specific thresholds for adverse effects or adverse modification within this rule. Determination of adverse effects or adverse modification is conducted through the section 7 process, during which specific factors of the proposed action and conditions within the project area can be evaluated. This consultation requirement under section 7 is not a prohibition of otherwise lawful actions; rather, it is a means by which they may proceed in a manner that avoids destruction or adverse modification of critical habitat. Even in areas absent designated critical habitat, if the action may affect a listed species, consultation is still required to ensure the action is not likely to jeopardize the species. There is not expected to be any difference between a jeopardy analysis (on the species) and an adverse modification analysis (on the species' critical habitat) conducted as part of the consultation because threats to the Florida bonneted bat are largely habitat-related and all critical habitat units are occupied.

Additionally, there are opportunities for collaboration and cooperation with our partners to develop conservation strategies, conservation plans, and programmatic consultations to streamline regulatory procedures and compliance and to benefit listed species.

Public Comments

(10) Comment:
In response to the November 22, 2022, revised proposed critical habitat rule, one commenter requested clarification regarding how all peer review, public comments, and new information provided in response to the June 10, 2020, proposed rule were considered in our revised proposed designation process. They also asked what changes were made from the proposed rule to the revised proposed designation and reasons for those changes.

Our Response:
All peer review, public comments, and new information we received on the June 10, 2020, proposed rule were thoroughly reviewed and considered in our November 22, 2022, revised proposed designation. Based on this review, we determined that changes were needed to the physical or biological features essential to the conservation of the Florida bonneted bat and the criteria and methodology used to identify those specific areas that constitute critical habitat for the species (see New Information and Revisions to Previously Proposed Critical Habitat at 87 FR 71466, November 22, 2022, p. 71469). To sufficiently address comments we received and incorporate new information, we comprehensively rewrote the proposed designation based on the development of a conservation strategy and corresponding critical habitat criteria, a new habitat analysis, and new essential physical or biological features, all based on the best available science. Given the significant and substantive changes we made in identifying the essential physical or biological features and, accordingly, the areas that meet the definition of critical habitat for the Florida bonneted bat, we determined it was necessary to revise the proposal and provide for notice and comment; therefore, we published the November 22, 2022, revised proposed rule (87 FR 71466). In this final rule, we are providing responses to peer review and public comments we received on both the June 10, 2020, proposed and November 22, 2022, revised proposed rules, and, where appropriate, we have noted how our November 22, 2022,

revised proposed designation addressed comments on the June 10, 2020, proposed rule.

(11) Comment:
One commenter stated their view that the November 22, 2022, revised proposed rule explains how genetic diversity, geographic extent, and ecological diversity were incorporated in the revised proposed critical habitat designation, but it does not show that the designation is sufficient to achieve resiliency, redundancy, and representation.

Our Response:
To determine and select appropriate areas, we incorporated information from the conservation strategy for the species (see “Florida Bonneted Bat Conservation Strategy” under Supporting and Related Material in Docket No. FWS-R4-ES-2019-0106 on
https://www.regulations.gov
). This conservation strategy helped identify those areas within the Florida bonneted bat's range that contain the essential physical or biological features. In the absence of population estimates or trend data, we used current presence data along with information regarding future changes to the landscape (
e.g.,
due to climate and urbanization) to estimate the quantity and spatial arrangement of units that would be sufficient to conserve the species. The resulting 1,160,625-ac (469,688-ha) designation includes the four known Florida bonneted bat populations that support resiliency, redundancy, and representation of the species by including areas that maintain or reestablish connectivity within and between populations (supporting resiliency), that are predicted to be unaffected or less affected by sea-level rise and climate change (supporting resiliency), that are in each of the known genetically distinct areas and distributed across the geographic range of the species (supporting representation, redundancy, resiliency), and that are in each major ecological community that provides roosting habitat (supporting representation and resiliency).

(12) Comment:
In response to the June 10, 2020, proposed and November 22, 2022, revised proposed critical habitat rules, several commenters stated their views that our designation process did not consider the best available scientific information and that information was not considered sufficiently or interpreted correctly. Specific concerns expressed included failure to incorporate all Florida bonneted bat location data, including acoustic and telemetry data, as well as specific published and unpublished information sources related to the species' range, movements, biology, genetics, habitat use, and threats (including climate change). One commenter disagreed with our interpretation of acoustic data, specifically related to the level of bat activity, which the commenter believes resulted in an over-inclusive designation regarding Subunit 9O.

Our Response:
In development of the November 22, 2022, revised proposed critical habitat rule, we reviewed all information sources and specific information identified in comments on the June 10, 2020, proposed rule to ensure that they were considered as part of our revised designation process. We also obtained and incorporated all available location data for the Florida bonneted bat, including geographic information system (GIS) and non-GIS data from acoustic surveys, reports, and researchers (including roost locations and maps of telemetry data). All of this information was used in multiple facets of our revised designation process, including the development of our Florida Bonneted Bat Conservation Strategy and Florida Bonneted Bat Habitat Analysis (see these documents under Supporting and Related Material in Docket No. FWS-R4-ES-2019-0106 on
https://www.regulations.gov
), physical or biological features essential to the Florida bonneted bat, critical habitat criteria, and critical habitat delineation methods. As such, the November 22, 2022, revised proposed rule incorporated substantial new information representing the best available science. In addition, in the development of this final designation, we have reviewed additional information sources provided through public comments on the November 22, 2022, revised proposed rule and have updated the rule as appropriate (see Summary of Changes from the Proposed Rule, above).

We followed our standard peer review process for both the June 10, 2020, proposed and November 22, 2022, revised proposed rules to help ensure we are applying the best available information and that our interpretation is appropriate. While acoustic locations were used to indicate presence of Florida bonneted bats as part of our habitat analysis, information related to the level of bat activity (
e.g.,
number of Florida bonneted bat calls or percentage of total bat calls) did not provide further insight into the presence of Florida bonneted bats in an area and was not used in delineating Subunit 9O or in any part of the revised designation process. Furthermore, as mentioned, the designation process is complex and not based on presence data alone.

(13) Comment:
In response to the November 22, 2022, revised proposed critical habitat rule, one commenter stated their view that the habitat analysis methods used were flawed and that the results appear to conflict with the best available science. Specifically, the commenter expressed concerns that our use of a combination of roost locations and positive acoustic detections (the latter of which represented the majority of locations) resulted in skewed data. The commenter asserted that the use of non-random acoustic data may have influenced our analysis results, which they said seem to disagree with independent research and peer-reviewed studies that suggest agricultural areas are important for the Florida bonneted bat. The commenter also questioned why and how we classified cover types as high-quality foraging habitat in our development of modeling covariates.

Our Response:
In response to comments we received on the June 10, 2020, proposed critical habitat rule, we incorporated all available data (
e.g.,
acoustic detections from all available sources, including locations sampled by Bailey et al. (2017a, entire), as well as known roost locations) in our November 22, 2022, revised proposed designation. In our initial exploratory analyses during the development of the revised proposed designation, model results based only on roost locations indicated the model was overfitted (
i.e.,
model results corresponded too closely to the data used and thus may fail to predict future observations reliably), likely resulting from small sample size (n = 21). Because these exploratory analyses showed that a roost-only model is not appropriate based on data available at the time of our analysis, in our final analysis, we chose to combine roost locations with acoustic data in a single presence dataset to ensure we incorporated all available GIS data into our model. Likewise, we did not limit our analysis to only those data collected using a randomized sampling design, as that would exclude a large amount of available data. As acknowledged in our Florida Bonneted Bat Habitat Analysis (see Supporting and Related Material in Docket No. FWS-R4-ES-2019-0106 on
https://www.regulations.gov
), we recognize that the majority of acoustic data were collected during pre-development surveys and thus may exhibit a certain level of habitat bias based on project locations (but not due to survey protocol, as agricultural areas are included in potential foraging habitat to be surveyed (see “Florida Bonneted Bat Consultation Guidelines” under Supporting and Related Material in Docket No. FWS-R4-ES-2019-0106

on
https://www.regulations.gov
)). We agree that this habitat bias likely contributed to the differing results obtained from our model related to correlation of species' occurrence with agricultural areas when compared to the results of those studies identified by the commenter (
i.e.,
Bailey et al. 2017a, p. 1589; Webb 2018, p. 25), although our results were also (and possibly more so) influenced by differences in the source and classification of land cover data, model covariates, and/or model spatial scale. While our designation is based on the best available data, we believe continued modeling efforts would be useful to better understand the Florida bonneted bat's habitat needs at both local and landscape scales, including how different habitat types contribute to supporting the long-term conservation of the species.

Many habitats or land cover types contribute at least minimally to providing foraging opportunities for Florida bonneted bats (
e.g.,
by producing prey), but not all of these areas are equal in the amount or type of prey they produce or in having the open habitat structure needed for maneuvering to catch prey. To explore these relationships, we classified land cover data in two ways: (1) Foraging habitat quality (high quality, low quality, not foraging habitat) based on the cover type's likelihood of producing large insects (
e.g.,
beetles and moths); and (2) foraging habitat structure (open, not open) based on the cover type description (see table 1 in Florida Bonneted Bat Habitat Analysis under Supporting and Related Material in Docket No. FWS-R4-ES-2019-0106 on
https://www.regulations.gov
). Many land cover types, including most agricultural types, were classified as high-quality foraging habitat (based on prey production); cover types we associated with lower prey production consisted of saltwater/saline habitats, highly manicured areas (
e.g.,
lawns), and unvegetated cover types. Of those cover types classified as high-quality foraging, all having an open habitat structure were classified as high-quality open foraging habitat. These classifications were then used to develop model covariate layers to investigate their potential influence on Florida bonneted bat occurrence. The MaxEnt model that we used in our analysis does not identify the amount of high-quality or high-quality open foraging habitat as having a strong influence on the probability of Florida bonneted bat occurrence; thus, these covariates were not incorporated in our model output or analysis results.

(14) Comment:
In response to the November 22, 2022, revised proposed critical habitat rule, commenters stated concerns about various aspects of how current and future land use, the overall spatial extent of the designation, ownership, and habitat quality were considered in the revised proposed designation of critical habitat. Some commenters stated their views that private lands, urban areas, and agricultural areas were seemingly arbitrarily avoided in our revised critical habitat designation and that the spatial extent of the designation was arbitrarily reduced from the June 10, 2020, proposal. Other commenters expressed concern with the revised proposed critical habitat not aligning with ownership boundaries, such as conservation easements, property lines, or other easements, or suggested that the Service should consider future development plans when delineating critical habitat and aim to avoid or protect areas with plans for development. One commenter requested additional information regarding how we considered “hot spots” identified by the habitat analysis, specifically expressing concerns that some apparently high-quality areas were omitted from the revised proposed designation.

Our Response:
Critical habitat, as defined in section 3 of the Act, includes 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 essential to the conservation of the species and which may require special management considerations or protection. In the development of our November 22, 2022, revised proposed designation, we followed this approach to identify and delineate critical habitat for the Florida bonneted bat using a step-wise process incorporating critical habitat criteria based on the species' conservation strategy, results of our spatially explicit habitat analysis, and additional information that could not be incorporated into our spatial analysis (see Conservation Strategy and Selection Criteria Used To Identify Critical Habitat, below). We did not consider ownership or management of any areas during this process, and ownership and management information (including easements) is not evaluated until after critical habitat delineation is completed; future development plans are not considered in the definition or delineation of critical habitat. Thus, private lands were not purposefully avoided, and most units include private lands to some degree. Urban and agricultural areas, while not specifically avoided, are less prevalent than certain land cover types (
e.g.,
forested lands, freshwater wetlands) in the designation; this is primarily a result of their lower likelihood of containing the essential physical or biological features or their lower conservation value. For example, despite their use by Florida bonneted bats and their local importance in the southeastern extent of the species' range, many urban areas have lower conservation value to the species as a whole and do not contain the physical or biological features essential for the conservation of the Florida bonneted bat, as further discussed above in our response to
(3) Comment.
Likewise, although some agricultural areas are known to provide foraging habitat for the species, the conservation value of these areas is generally lower than that of other open foraging habitats that are dominated by native vegetation and not exposed to regular pesticide applications. Regardless of critical habitat designation, Federal agencies are required to fulfill their conservation responsibilities by consulting with the Service if the actions they authorize, fund, or carry out “may affect” listed species; therefore, Florida bonneted bats and their habitat are still protected by the Act where they occur, including in urbanized and agriculture areas.

Just as the composition of our November 22, 2022, revised proposed designation was guided by the factors described above, so were the spatial arrangement and extent of our revised critical habitat units. During the development of our revised proposed rule, we evaluated areas both within and outside the species' known range to identify those areas that meet the definition of critical habitat. This evaluation included areas identified as potential “hot spots” (areas having higher probability of Florida bonneted bat occurrence) in the predictive maps produced based on our MaxEnt model. We further evaluated these areas for the temperature limitations of the species and to ensure that land cover data were correctly categorized, and we eliminated areas that were unlikely to contain the physical or biological features essential to the species (
e.g.,
areas at the far northern edge of the model's spatial extent where winter temperatures are typically too low for the bat, areas where aerial imagery indicated poor habitat quality). Other areas identified as “hot spots” by the model but that were not occupied (
e.g.,
area east of Lake Okeechobee) were eliminated in a later step of our delineation process because we determined unoccupied

areas are not essential for the conservation of the Florida bonneted bat, as further discussed in our response to
(1) Comment,
above. The remaining areas were included in our November 22, 2022, revised proposed designation, as were additional areas where the physical or biological features essential to the species are found and which we determined were necessary to fulfill critical habitat criteria (
e.g.,
areas for connectivity between model-identified “hot spots” that fall within the geographical area occupied by the species as defined at 50 CFR 424.02). These methods produced the specific critical habitat units included in our November 22, 2022, revised proposed designation, and any differences in unit size, arrangement, or composition between the June 10, 2020, proposed and November 22, 2022, revised proposed units are a result of delineations made following revised criteria to identify the essential physical or biological features rather than arbitrary changes (see also our response to
(10) Comment,
above).

(15) Comment:
In response to the November 22, 2022, revised proposed critical habitat rule, one commenter questioned the removal of minimum patch size as a criterion for critical habitat units and suggested that this was not supported other than to allow for additional connectivity, including the addition of smaller patches or “stepping stones.” The commenter also requested that a definition be provided for the term “stepping stones.”

Our Response:
Based on peer review and public comments on the June 10, 2020, proposed rule and new information, we determined that use of a minimum patch size was not appropriate for the Florida bonneted bat because using a minimum patch size would have eliminated areas that contain the physical or biological features essential to the conservation of the species and that provide necessary ecological community and genetic representation. “Stepping stones” are characterized in the November 22, 2022, revised proposed rule and in this rule under
Space for Individual and Population Growth and for Normal Behavior,
below, as suitable habitat in the form of linear corridors or patches and are described more specifically in the description of the essential physical or biological features as patches such as tree islands or other isolated natural areas within a matrix of otherwise low-quality habitat.

(16) Comment:
Several comments expressed concerns that many threats to the Florida bonneted bat, as well as details related to some of the outlined threats (
e.g.,
habitat loss, climate change, environmental stochasticity, pesticides and contaminants), were not mentioned or fully addressed in the Special Managements Considerations or Protection discussions in the June 10, 2020, proposed and November 22, 2022, revised proposed rules.

Our Response:
The threats included in the discussion under Special Management Considerations or Protection, below, as well as in the June 10, 2020, proposed and November 22, 2022, revised proposed rules, are potential threats to the physical and biological features, not threats directly to the Florida bonneted bat. Additionally, the threats included in our discussion are not intended to be an exhaustive list. Additional discussion of threats to the Florida bonneted bat can be found in the final rule to list the Florida bonneted bat as an endangered species (78 FR 61004; October 2, 2013) A comprehensive discussion of current and future threats to the species will be a part of the species' upcoming recovery plan.

(17) Comment:
Several commenters stated that the baseline approach used by the Service to assess economic impacts, which considers only impacts solely attributable to the critical habitat designation, is flawed and severely underestimates costs presented in the DEA. Commenters further suggested that considering all costs regardless of whether they are incremental to critical habitat designation, thus including those costs likely to be incurred to avoid adverse habitat modification as well as jeopardy to the species, would more accurately analyze how a critical habitat designation affects property owners.

Our Response:
Because the primary purposes of the Service's economic analysis are to facilitate the mandatory consideration of the economic impact of the designation of critical habitat, to inform the discretionary section 4(b)(2) exclusion analysis, and to determine compliance with relevant statutes and Executive orders, our economic analysis focuses on the incremental impact of the designation. The economic analysis of the designation of critical habitat for the Florida bonneted bat follows this incremental approach. As such, costs associated with actions that are anticipated to occur regardless of critical habitat designation for the Florida bonneted bat are not included.

The Service acknowledges that historically the method for assessing the economic impact of critical habitat designations has been the subject of significant debate. The United States Court of Appeals for the Tenth Circuit in
New Mexico Cattlegrowers Ass'n
v.
FWS,
248 F.3d 1277 (10th Cir. 2001) found that the regulatory definition of the jeopardy standard fully encompassed the adverse modification standard, rendering any purported economic analysis done utilizing the baseline approach, which only considers economic impacts that would not occur “but for” the critical habitat, virtually meaningless. For this reason, the court rejected the baseline approach to economic analysis. Later, in 2004, the Ninth Circuit (
Gifford Pinchot Task Force
v.
USFWS,
378 F.3d 1059 (9th Cir. 2004)) invalidated the regulatory definition of “destruction or adverse modification.” The court held that the definition gave too little protection to critical habitat by not giving weight to Congress' intent that designated critical habitat supports the recovery of listed species. On August 27, 2019, the Service issued a final rule (84 FR 44976) revising the definition of destruction or adverse modification in a way that allows the Service to define an incremental effect of the designation. This process eliminated the predicate for the Tenth Circuit's analysis and decision. Therefore, the Service has concluded that it is appropriate to consider the impacts of designation on an incremental basis. Indeed, no court outside of the Tenth Circuit has followed
New Mexico Cattle Growers
since the Ninth Circuit issued
Gifford Pinchot Task Force
and the Service revised its definition of “destruction or adverse modification.”

Most recently, the U.S. Ninth Circuit Court of Appeals upheld the incremental approach as lawful explaining that “the very notion of conducting a cost/benefit analysis is undercut by incorporating in that analysis costs that will exist regardless of the decision made.” Further, when the plaintiffs filed a petition for
writ of certiorari
asking the U.S. Supreme Court to specifically answer the question of whether the government is required to “analyze all of the economic impacts of `critical habitat' designation (regardless of whether the impacts are co-extensive with, or cumulative of, other causes), as the Tenth Circuit decided, or instead only those impacts for which `critical habitat' designation is a `but for' cause, as the Ninth Circuit decided,” the Supreme Court declined to hear the case (
Home Builders Association of Northern California
v.
United States Fish and Wildlife Service,
616 F.3d 983 (9th Cir. 2010), cert. denied, 179 L. Ed 2d 301, 2011 U.S. Lexis 1392, 79 U.S.L.W. 3475 (2011); citing
Arizona Cattle Growers
v.
Salazar,
606 F.3d 1160 (9th Cir. 2010), cert. denied, 179 L. Ed. 2d 300, 2011

U.S. Lexis 1362, 79 U.S. L.W. 3475 (2011)). Subsequently, on August 28, 2013, the Service issued a final rule (78 FR 53058) revising its approach to conducting impact analyses for designations of critical habitat, specifying that we will compare the impacts with and without the designation (50 CFR 424.19(b)).

(18) Comment:
Several commenters stated concerns that critical habitat designation for the Florida bonneted bat will alter land management, development, and conservation activities and will result in economic impacts that are not included or are underestimated in the DEA. Commenters specifically cited concerns that the costs that private entities incur during section 7 consultation (
e.g.,
biologist and consultant fees, project modifications and mitigation, costs associated with permit and project delays) and potential increased litigation risk are a significant economic burden.

Our Response:
Section 4 of the economic analysis (IEc 2021a, pp. 22-25) outlines the substantial baseline protections currently afforded the Florida bonneted bat throughout areas in the revised proposed critical habitat designation. These baseline protections result from the listing of the Florida bonneted bat under the Act and the presence of the species in all critical habitat units, as well as overlap with habitat of other, similar listed species and designated critical habitat. Specifically, once a species is listed as endangered or threatened, section 7 of the Act requires Federal agencies to consult with the Service to ensure that the actions they authorize, fund, or carry out will not jeopardize the continued existence of the species, even absent critical habitat designation. For designated critical habitat, section 7 also requires Federal agencies to ensure that their actions will not destroy or adversely modify critical habitat. Thus, a key focus of the economic screening analysis is evaluating whether the designation of critical habitat would trigger project modifications to avoid adverse modification that would be above and beyond modifications that would already have been undertaken to avoid adverse effects to the species itself. The jeopardy analysis conducted as part of consultation would focus on the same impacts that an adverse modification standard analysis would because threats to the Florida bonneted bat are habitat-related (
e.g.,
removal, fragmentation, or degradation of habitat due to construction, development, or climate change). Under those circumstances, project modifications or conservation measures would likely be required to address the species, regardless of whether there is designated critical habitat, because of the effects on the species. Therefore, it is unlikely that an analysis would identify a difference between measures needed to avoid the destruction or adverse modification of critical habitat from measures needed to avoid jeopardizing the species. Thus, the designation of critical habitat is unlikely to generate recommendations for additional project modifications in occupied areas. As such, we do not forecast any incremental costs associated with project modifications that would involve additional conservation efforts resulting from this critical habitat designation. Incremental costs include additional time for the Service, action agencies, and third parties to participate in consultations related to designated critical habitat for the Florida bonneted bat.

The Service makes its decision whether to specify any particular area as critical habitat based on the best available science after taking into consideration the economic impact, the impact on national security, and any other relevant impact. We do not consider the costs of litigation surrounding the critical habitat rule itself when considering the economic impacts of the rule. The extent to which litigation could increase the costs of a critical habitat designation is purely speculative and inappropriate for consideration.

(19) Comment:
Several commenters stated that the number of actions that would be affected by the designation of critical habitat for the Florida bonneted bat, and thus the costs associated with those actions, may be larger than estimated in the DEA. Commenters specifically stated that the number of consultations associated with private projects that require Federal authorization (
e.g.,
those triggering consultation under section 404 of the Clean Water Act, 33 U.S.C. 1251
et seq.
) are underestimated in the DEA.

Our Response:
The economic analysis forecasts the likely number of future section 7 consultation actions based on the number of consultations for the Florida bonneted bat that have occurred since its listing in 2013 and information from the Service about likely future actions in particular units. The analysis also incorporates information provided by several government agencies, as well as by several public commenters, into the forecast of the number of likely actions that will require section 7 consultation. Specifically, the analysis incorporates information from the National Park Service, the U.S. Army Corps of Engineers, the Florida Department of Transportation, the Service's Southwest Florida Refuge Complex, the Miccosukee Tribe of Florida, the Seminole Tribe of Florida, Florida Power and Light (FPL), and other commenters. By adding the number of annual consultations based on the historical rate to the specific known actions and actions identified through commenter input, our estimate of the number of future consultation actions is likely to be overstated because some of these actions would have also been captured in the historical number of consultations. Also, see our response to
(18) Comment,
regarding the substantial baseline protections currently afforded the Florida bonneted bat throughout areas in the revised proposed critical habitat designation.

(20) Comment:
Several commenters stated that the DEA underestimates the effect of the designation of critical habitat for the Florida bonneted bat on private land values, primarily because it does not account for the full perceptional effects of designating critical habitat.

Our Response:
Section 5 of the economic analysis discusses the possible perceptional effects of the proposed designation on private property values. Specifically, this section of the economic analysis discusses comments and concerns submitted in response to previous critical habitat rulemakings that the designation of critical habitat may affect the value of a private property due to the public perception that the Act may preclude, limit, or slow development or somehow alter the highest and best use of the property. The analysis acknowledges that incremental costs from public perception of the critical habitat designation for Florida bonneted bat could be possible. As stated in the analysis, public attitudes and concerns about the regulatory effects of the Act can cause real economic effects to the owners of property, regardless of whether such concerns and effects are actually realized. Over time, as public awareness grows with respect to the role of critical habitat and the impacts of a critical habitat designation, particularly where no Federal nexus compelling a section 7 consultation exists, concerns regarding the effect of critical habitat designation on properties may subside.

While existing economic literature and prior public comments on previous designations suggest that costs may result from public perception about how critical habitat may affect private lands, given the differences in circumstances, including varying species, geographic

locations, public attitudes, and potential for a Federal nexus, we lack the ability to calculate costs associated with public perception in a manner that does not require extensive speculation. Additionally, we are unable to estimate the magnitude of perception-related impacts to property values likely to result from this designation. We are unable to do this due to existing data limitations regarding the probability that such effects will occur, the likelihood of perception effects above and beyond those associated with the listing, and the presence of other co-occurring listed species and designated critical habitats.

(21) Comment:
In response to the June 10, 2020, proposed rule, one commenter stated that the Service should account for and incorporate planned land use changes in the economic impacts of critical habitat designation considered in the DEA.

Our Response:
Planned land use changes were considered and incorporated into our economic analysis of this critical habitat designation. Section 3 of the economic analysis forecasts section 7 consultations based on data on past consultation efforts for the Florida bonneted bat in or near proposed critical habitat areas and identifies known or probable projects in proposed critical habitat that may affect critical habitat designation or require consultation under section 7 of the Act. Known or probable projects were identified based on information we received from Federal agencies during the development of the incremental effects memorandum (IEM) and from the public in response to the June 10, 2020, proposed rule. In addition, public comments we received on the proposed rule from FPL, Collier Enterprises Management, and a number of other interested parties provided information about potential effects of the critical habitat designation for Florida bonneted bat on ongoing activities. We used this information, as well as comments from Federal and State agencies, to forecast the number of consultations that will occur for the Florida bonneted bat in proposed critical habitat areas over the next 10 years. Information we received during the public comment period for the November 22, 2022, revised proposed rule about potential effects of critical habitat designation for Florida bonneted bat on ongoing activities was also considered in our analysis of the probable incremental economic impacts of this critical habitat designation.

(22) Comment:
One commenter stated that the DEA fails to account for private development on county-owned leased lands in the Miami-Dade Rocklands Unit (Unit 9) and thus does not adequately estimate incremental costs, including those associated with perceptional effects, associated with private development on county-owned leased lands.

Our Response:
We appreciate the information the commenter submitted with respect to Unit 9. We did consider potential activity on all areas within this unit, including county-owned leased lands, when evaluating the economic impacts. Because the primary purposes of the economic analysis are to facilitate the mandatory consideration of the economic impact of the designation of critical habitat, to inform the discretionary section 4(b)(2) exclusion analysis, and to determine compliance with relevant statutes and Executive orders, the economic analysis focuses on the incremental impact of the designation. The economic analysis of the designation of critical habitat for the Florida bonneted bat follows this incremental approach. Based on the consultation history and public and agency comments, the economic analysis anticipates that approximately 2 formal consultations, 15 informal consultations, and 3 technical assistance efforts will occur in the Miami-Dade Rocklands Unit that will consider Florida bonneted bat critical habitat during the next 10 years, or approximately 2 consultation actions annually. These forecasted consultations are not specific to particular landowners and may include county-owned lands.

Critical habitat would only affect a private development project on county-owned leased lands if there were a Federal nexus for the project or the designation of critical habitat triggered regulatory compliance under State or local laws. We are aware of Miami-Dade County approving a long-term lease for lands within Unit 9. Because this area is considered occupied for Florida bonneted bat and co-occurs with other listed species and their critical habitats, should there be a Federal nexus for a project conducted on these lands, the incremental economic impact as a result of this critical habitat designation would be limited to minor additional administrative economic costs due to the additional analysis required for the destruction or adverse modification analysis.

As the commenter notes, the economic analysis specifically discusses perception-related impacts as related to privately owned lands. Perception-related effects are also possible for county-owned lands that may be leased to private developers. However, for the reasons discussed above (see our response to
(20) Comment
), we are unable to estimate the magnitude of perception-related impacts to property values that may result from this designation.

(23) Comment:
In response to the June 10, 2020, proposed rule, Collier Enterprises Management, Inc. requested that we exclude the lands within the boundary of the draft East Collier Multiple Species Habitat Conservation Plan (HCP), totaling 3,772 ac (1,526 ha) within Units 5 and 6 of the revised proposed designation.

Our Response:
We listed this exclusion request in table 2 of the revised proposed rule (87 FR 71466, November 22, 2022, pp. 71481-71482); however, we did not conduct an analysis to determine whether the benefits of potentially excluding any specific area outweigh the benefits of including that area under section 4(b)(2) of the Act because this HCP was withdrawn prior to the publication of this final rule.

(24) Comment:
In response to the June 10, 2020, proposed rule, Aliese Priddy, JB Ranch I, LLC, requested that we exclude the property owned by JB Ranch I, LLC, and Sunniland Family Limited Partnership lands. In addition, Miami-Dade Limestone Products Association requested that we exclude lands overlapping the Florida legislature-designated Lake Belt mining area.

Our Response:
We listed these exclusion requests in table 2 of the revised proposed rule (87 FR 71466, November 22, 2022, pp. 71481-71482), and we noted that these requests do not overlap with the revised proposed designation for the Florida bonneted bat. In this final rule, we did not conduct an analysis to determine whether the benefits of potentially excluding these specific areas outweigh the benefits of including them under section 4(b)(2) of the Act because the lands identified in these requests do not overlap with the final critical habitat designation.

(25) Comment:
In response to the June 10, 2020, proposed and November 22, 2022, revised proposed rules, several commenters requested that broad areas of land (
e.g.,
all private property; all currently operating cattle ranches, associated rights-of-way, and access points within proposed critical habitat; all Federal and other publicly owned lands; entire proposed critical habitat units; and/or all proposed critical habitat) be excluded from designation because of economic and regulatory burdens. Commenters expressed concerns that critical habitat designation would restrict or prevent

actions from proceeding on those lands. One commenter supported their request for exclusion by stating that our approach for assessing the economic impacts of critical habitat designation was flawed and advocated for a coextensive approach. One commenter further stated that all Federal and publicly owned lands should be excluded from the critical habitat designation because the Service has not demonstrated that exclusion of all lands from critical habitat will result in the extinction of the Florida bonneted bat.

Our Response:
We considered these requests according to our 2016 section 4(b)(2) policy, which outlines measures we consider when excluding any areas from critical habitat. The commenters provided general statements of their desire to be excluded but provided no specific information about the economic impacts or reasoned rationale about the benefits of excluding any specific areas. To properly evaluate an exclusion request, the commenters must provide information concerning the economic impacts of the designation, and hence the need for exclusion. Thus, we did not conduct an analysis to balance or weigh the benefits of excluding the areas against the benefits of including the areas in the critical habitat designation. Neither the Act nor the implementing regulations at 50 CFR 424.19 requires the Secretaries of the Interior and Commerce (Secretaries) to conduct a discretionary section 4(b)(2) exclusion analysis (see,
e.g., Cape Hatteras Access Preservation Alliance
v.
DOI,
731 F. Supp. 2d 15, 29-30 (D.D.C. 2010)). Rather, the Secretaries have discretion as to whether to conduct that analysis. If the Secretary decides not to consider exclusion of any particular area, no additional analysis is required.

Regarding the concern that the critical habitat designation would restrict or prevent actions, the requirement to consult with us on actions with a Federal nexus that may affect designated critical habitat is designed to allow actions to proceed while avoiding destruction or adverse modification of critical habitat, as further discussed in our responses to
(9) Comment
and
(18) Comment.

Regarding the concern that our approach for assessing the economic impacts is flawed, the economic analysis for the designation of critical habitat for the Florida bonneted bat follows an incremental approach, which has been upheld by the courts, as further discussed in
(17) Comment.

Regarding one commenter's assertion that all critical habitat should be excluded because this would not result in extinction of the species, we are mandated by the Act to designate critical habitat for listed species, to the maximum extent prudent and determinable. The Act does not require us to exclude lands from the designation if that exclusion would not result in the extinction of the species. Rather, the Secretary of the Interior (Secretary) may exclude any particular area if she determines that the benefits of such exclusion outweigh the benefits of including such area as part of the critical habitat, unless she determines, based on the best scientific data available, that the failure to designate such area as critical habitat will result in the extinction of the species (see Consideration of Impacts under Section 4(b)(2) of the Act, below). As stated earlier in this comment response, because the commenter did not provide specific information or reasoned rationale about the benefits of excluding any specific areas, we chose not to conduct an analysis to balance or weigh the benefits of excluding the areas against the benefits of including the areas in the critical habitat designation.

(26) Comment:
In response to the November 22, 2022, revised proposed rule, Miami-Dade County requested that we exclude the 327 ac (132 ha) of the developed footprint of Zoo Miami due to concerns that including this area in the critical habitat designation would prevent the zoo from conducting activities needed to adhere to Association of Zoos and Aquariums (AZA) accreditation standards. The commenter expressed concern that if they were not able to meet AZA standards, they could lose their AZA accreditation, which impacts the zoo's economic capacity.

Our Response:
We appreciate our partners' efforts to conserve wildlife and inspire stewardship for local wildlife as well as species around the world. We considered this request for exclusion according to our 2016 section 4(b)(2) policy, and we consulted with AZA accreditation experts and reviewed the AZA accreditation standards and related policies (AZA 2024, entire).

Because a focus on conservation and active stewardship of the natural environment, including wildlife, is part of the accreditation process and standards (AZA 2024, pp. 6, 12, 27-28), it is reasonable to assume that a demonstrated commitment to supporting the conservation of an endangered species, such as the Florida bonneted bat, would benefit an organization seeking accreditation.

Human-altered areas such as buildings or pavement without any type of vegetation that could provide roosting habitat or support insect populations that provide prey for the Florida bonneted bat may not possess the physical and biological features essential to the conservation of the species and would not meet the definition of critical habitat. These areas are “excluded by text” from the designation. However, the Zoo Miami property does include areas that contain the physical and biological features essential to the conservation of the Florida bonneted as well as features essential to five other species with designated critical habitat within the Zoo Miami area.

Also, critical habitat designations do not affect activities by private landowners unless projects have a Federal nexus (
e.g.,
on Federal property, using Federal funding, authorized or carried out by a Federal agency). Furthermore, any regulatory burden related to updating or improving exhibits or expanding the developed areas of Zoo Miami to maintain accreditation would be associated with the species' listing, not the critical habitat designation. Therefore, since the designation of critical habitat is unlikely to have a negative effect on the ability of Zoo Miami to continue AZA accreditation and any foreseen regulatory burden would be purely associated with listing, we did not conduct an analysis to determine whether the benefits of potentially excluding any specific area outweigh the benefits of including that area under section 4(b)(2) of the Act. Neither the Act nor the implementing regulations at 50 CFR 424.19 require the Secretaries to conduct a discretionary 4(b)(2) exclusion analysis (see,
e.g., Cape Hatteras Access Preservation Alliance
v.
DOI,
731 F. Supp. 2d 15, 29-30 (D.D.C. 2010)). Rather, the Secretaries have discretion as to whether to conduct that analysis. If the Secretary decides not to consider exclusion of any particular area, no additional analysis is required.

(27) Comment:
We received comments from the Division of Charlotte County Mosquito Control and the Collier Mosquito Control District requesting that the areas of critical habitat overlapping their respective mosquito control districts be excluded from critical habitat; we also received comments expressing concern about designating the portions of Lee, Collier, and Charlotte Counties for which taxes fund mosquito control services. Commentors expressed concerns that the designation of critical habitat would restrict their ability to conduct mosquito control practices within critical habitat, resulting in negative impacts to public health, suppression of economic growth, and reductions in land value.

Our Response:
We considered this request for exclusion under our 2016 section 4(b)(2) policy. No specific information was provided to enable us to conduct an analysis to balance or weigh the benefits of excluding the areas against the benefits of including the areas in the designation. Therefore, we did not conduct an analysis to determine whether the benefits of potentially excluding any specific area outweigh the benefits of including that area under section 4(b)(2) of the Act. Neither the Act nor the implementing regulations at 50 CFR 424.19 require the Secretaries to conduct a discretionary section 4(b)(2) exclusion analysis (see,
e.g., Cape Hatteras Access Preservation Alliance
v.
DOI,
731 F. Supp. 2d 15, 29-30 (D.D.C. 2010)). Rather, the Secretaries have discretion as to whether to conduct that analysis. If the Secretary decides not to consider exclusion of any particular area, no additional analysis is required.

The lands included in this critical habitat designation are all considered occupied by the Florida bonneted bat. Therefore, regardless of any critical habitat designation, activities that may take Florida bonneted bat are subject to prohibitions under section 9 of the Act. We would recommend protective measures be established for the Florida bonneted bat regardless of critical habitat designation within mosquito control districts because of potential impacts to the species, but this critical habitat designation does not limit or stop mosquito control operations or reduce efforts to protect communities from mosquito-borne viruses.

(28) Comment:
Miami-Dade County and several other commenters requested clarification regarding the areas that are excluded from designation “by text,” specified at paragraph (3) in the regulatory text of the critical habitat designation for the Florida bonneted bat, and what meets the characteristics of natural habitats at the time of critical habitat designation. Commenters also stated their views that some areas within Unit 9 in the November 22, 2022, revised proposed designation should not be included in the final designation because they should be considered developed or because they do not contain the physical or biological features essential for the conservation of the species.

Our Response:
As specified at paragraph (3) of the regulatory text in this rule (see Regulation Promulgation, below), critical habitat does not include human-made structures (such as buildings, aqueducts, runways, roads, and other paved areas) and the land on which they are located. These types of structures and lands that are within critical habitat units on the effective date of this final rule (see
DATES,
above) are excluded from designation “by text.” Areas within delineated critical habitat units that (1) are not human-made structures or the land on which they are located and (2) include any of the physical or biological features essential to the conservation of the Florida bonneted bat are designated critical habitat. These areas could include human-altered areas such as areas near buildings or pavement with any type of vegetation that could provide roosting habitat or could support insect populations that provide prey for the Florida bonneted bat. Where specific areas were identified by commenters, we evaluated and determined that removal from the final designation was not appropriate or required because the areas would already be excluded from the designation under paragraph (3) of the regulatory text or because they have at least one physical or biological feature essential to the conservation of the species that requires special management considerations or protection (and, thus, do meet our criteria for designating critical habitat). Questions regarding whether other specific areas are included in the designation should be directed to the Service (see
FOR FURTHER INFORMATION CONTACT
). Even absent critical habitat designation, Federal agencies are still required to consult with the Service if any action they authorize, fund, or carry out may affect listed species, so impacts to Florida bonneted bats using these areas may still be considered during consultations for effects to the species.

(29) Comment:
One commenter requests an explanation of how the State of Florida's assumption of permitting authority under section 404 of the Clean Water Act program affects the consideration of critical habitat in reviews of projects or actions impacting Florida bonneted bats.

Our Response:
Consistent with the biological opinion, which is titled, “U.S. Environmental Protection Agency's Approval of Florida Department of Environmental Protection's Assumption of the Administration of the Dredge and Fill Permitting Program under Section 404 of the Clean Water Act” (Service 2020, entire), and a memorandum of understanding between the Service, Florida Department of Environmental Protection (FDEP), and Florida Fish and Wildlife Conservation Commission (FWC), we provide technical assistance to FDEP to ensure that no State 404 permit action jeopardizes the continued existence of federally listed species or adversely modifies or destroys critical habitat, pursuant to 40 CFR 233.20(a). We continue to consult with the U.S. Army Corps of Engineer on permits they issue pursuant to section 404 of the Clean Water Act.

(30) Comment:
One commenter stated that the Service should prepare an environmental impact statement to comply with the National Environmental Policy Act (NEPA; 42 U.S.C. 4321
et seq.
) for every Federal action significantly affecting the quality of the human environment. The commenter also stated that the Service should have included an initial regulatory flexibility analysis with the proposed rule to comply with the Regulatory Flexibility Act (RFA; 5 U.S.C. 601
et seq.
). The commenter further stated that the Service has not accurately represented the significant impact that this critical habitat rule will have on a substantial number of small entities.

Our Response:
It is our position that, outside the jurisdiction of the U.S. Court of Appeals for the Tenth Circuit, we do not need to prepare environmental analyses pursuant to NEPA in connection with designating critical habitat under the Act. We published a notice outlining our reasons for this determination in the
Federal Register
on October 25, 1983 (48 FR 49244). This position was upheld by the U.S. Court of Appeals for the Ninth Circuit (
Douglas County
v.
Babbitt,
48 F.3d 1495 (9th Cir. 1995), cert. denied 516 U.S. 1042 (1996)). Therefore, it is appropriate that we did not prepare an environmental impact statement for this designation of critical habitat. See also
National Environmental Policy Act (42 U.S.C. 4321 et seq.),
below.

As required by the RFA, we evaluated the potential incremental impacts of rulemaking on those entities directly regulated by the rulemaking itself. Under section 7 of the Act, only Federal action agencies are directly subject to this specific regulatory requirement imposed by critical habitat designation. Therefore, because no small entities will be directly regulated by this rulemaking, we certify that this critical habitat designation will not have a significant economic impact on a substantial number of small entities. See
Regulatory Flexibility Act (5 U.S.C. 601 et seq.),
below, for more detail.

(31) Comment:
In response to the November 22, 2022, revised proposed critical habitat rule, two commenters noted that the information necessary to evaluate the impacts of critical habitat (
e.g.,
Florida Bonneted Bat Consultation Guidelines, shapefile for critical habitat maps) were not available or difficult to

obtain during the comment period for the revised proposed rule, thus making it difficult to fully review and provide comment on the revised proposed rule.

Our Response:
We agree that sharing the supporting documents for proposed rules during the comment period is important for providing the public the ability to fully review and comment on a proposed rule. During the comment period for the November, 22, 2022, revised proposed critical habitat rule, all supporting documents, with the exception of shapefiles (which are not supported by the platform), were made available at
https://www.regulations.gov
under Docket No. FWS-R4-ES-2019-0106, as noted in the revised proposed rule (87 FR 71466; November 22, 2022). During the comment period for the November 22, 2022, revised proposed rule, the Florida Ecological Services Field Office website was undergoing updates, and we were unable to make some information directly available from the office website, although much of it was available in the docket for the revised proposed rule on
https://www.regulations.gov.
However, the November 22, 2022, revised proposed rule also provided our contact information to the public for questions, and we did, upon being contacted, provide the link to the critical habitat shapefile directly to the commenter and all other individuals and partners who requested this information.

(32) Comment:
In response to the November 22, 2022, revised proposed critical habitat rule, one commenter suggested that the Service should be more transparent with the data we consider in the designation of critical habitat, making data and information publicly accessible unless we risk compromising sensitive information and sharing peer reviews we receive on proposed rules.

Our Response:
We agree that transparency is important and always strive to share with the public the information that supports our proposed and final rules where prudent to do so. As noted in
(31) Comment,
we made supporting documents publicly available concurrent with the publication of the June 10, 2020, proposed and November 22, 2022, revised proposed rules, with the exception of shapefiles, which we shared upon request. Included in these supporting documents were the DEA, conservation strategy, a list of conservation lands that overlap with the proposed designation, conservation and natural resource management plans for areas we were considering for exclusion, a summary of the habitat analysis conducted to inform delineation of the revised proposed critical habitat units, and a list of all literature cited in the rule with references available as attachments. The Florida Bonneted Bat Conservation Strategy provides a technical foundation for recovery strategies, summarizing the best scientific data available concerning the status of the species and threats affecting the species, and outlines objectives for achieving recovery of the Florida bonneted bat. This document was prepared based on input and information from researchers and species experts. Additionally, we have provided the Recovery Outline for Florida Bonneted Bat (
Eumops floridanus
) (see Supporting and Related Material in Docket No. FWS-R4-ES-2019-0106 on
https://www.regulations.gov
) concurrent with publication of this final rule. The recovery outline is a brief document that broadly sketches the interim conservation and management program for the Florida bonneted bat during the time between the species' final listing under the Act and completion of a recovery plan.

We also agree that it is important to provide the public access to the peer review responses we receive on proposed rules. In accordance with our joint policy on peer review published in the
Federal Register
on July 1, 1994 (59 FR 34270), we summarize peer review in this final rule. Prior to the publication of the November 22, 2022, revised proposed rule, we also shared all peer review comments on the June 10, 2020, proposed rule and the accompanying conflict of interest forms completed by the peer reviewers; these peer reviews and conflict of interest forms were made available at
https://www.regulations.gov
under Docket No. FWS-R4-ES-2019-0106 on September 29, 2020. Concurrent with the publication of this final rule, we have made available the most recent peer review and accompanying completed conflict of interest form on the revised proposed critical habitat rule at
https://www.regulations.gov
under Docket No. FWS-R4-ES-2019-0106.

(33) Comment:
In response to the November 22, 2022, revised proposed critical habitat rule, we received two comments that raised concerns that the peer review of the proposed rule was flawed, specifically, that there were not enough reviewers, reviewers were unqualified, and that a peer reviewer had an undisclosed conflict of interest.

Our Response:
The Service has long been committed to the use of best available science in decision‐making and to the use of peer review to improve such science. The Service solicited independent scientific reviews of both the June 10, 2020, proposed and November 22, 2022, revised proposed rules in accordance with our joint policy on peer review (59 FR 34270; July 1, 1994), and our August 22, 2016, memorandum updating and clarifying the role of peer review of listing actions under the Act.

The policy and memo direct us to solicit an independent scientific review from a minimum of three reviewers; accordingly, we sent the June 10, 2020, proposed critical habitat rule to six reviewers and the November 22, 2022, revised proposed critical habitat rule to five reviewers. In response, we received two reviews of the June 10, 2020, proposed rule and one review of the November 22, 2022, revised proposed rule.

As directed in our August 22, 2016, memorandum, we selected qualified reviewers with, “expertise and/or experience relevant to the scientific questions and determinations addressed in our actions.” Peer reviewers were selected based on their ability to act as an independent reviewer and on their expertise related to the Florida bonneted bat and its habitat and threats. Peer reviewers were asked to review the science applied to the June 10, 2020, proposed and November 22, 2022, revised proposed critical habitat rules, and the peer reviews they submitted did indeed focus on critique of the science rather than policy. One peer reviewer who provided comments on the June 10, 2020, proposed rule is a Service employee but does not work within Florida, did not contribute otherwise to the development of this rule, and is a subject matter expert (bats); thus, we think this person meets the standards set forth by our peer review policy and clarified in our August 22, 2016, memorandum. Additionally, we solicited peer review from five other external experts.

Per our August 22, 2016, memorandum, peer reviewers were required to complete a conflict of interest form, and we assessed potential conflicts of interest by examining financial and business relationships and consulting arrangements, using applicable standards issued by the Office of Government Ethics. As noted in our August 22, 2016, memorandum, “Divulging a conflict of interest does not invalidate the comments of the reviewer; however, it will allow for transparency to the public regarding the reviewer's possible biases or associations.” In instances where a reviewer has a substantial conflict of interest, we will evaluate their comments in light of that conflict;

however, we did not determine that any of the three peer reviewers who submitted comments on the two proposed rules have a substantial conflict of interest.

(34) Comment:
Several commenters suggested that the Service should notify private landowners if their land overlaps a proposed critical habitat designation.

Our Response:
We strive for good communication with the public, including communicating our intent to designate critical habitat and making available proposed critical habitat rules, which include the specific locations where critical habitat is proposed. Section 4(b)(5) of the Act requires us to, not less than 90 days before the effective date of the regulation, publish a general notice and the complete text of the proposed regulation in the
Federal Register
. For the June 10, 2020, proposed and November 22, 2022, revised proposed critical habitat rules for the Florida bonneted bat, we notified the public via publication in the
Federal Register
on June 10, 2020 (85 FR 35510), and November 22, 2022 (87 FR 71466), respectively. On June 9, 2020, we posted a press release notifying the public of the publication of the June 10, 2020, proposed critical habitat rule on our Regional website, and on November 21, 2022, we also posted a press release notifying the public of the publication of the November 22, 2022, revised proposed critical habitat rule at
https://www.fws.gov/press-release/2022-11/florida-bonneted-bat.
For the June 10, 2020, proposed rule, newspaper notices inviting general public comment were published in the Orlando Sentinel, Ft. Myers News-Press, Sarasota Herald Tribune, and Miami Herald newspapers. For the November 22, 2022, revised proposed rule, a newspaper notice inviting general public comment was again published in the Miami Herald newspaper. For the proposed and revised proposed rules, we also disseminated notice of the publication on various social media platforms, including Twitter and Facebook, and sent notices to several interested parties, including nongovernmental organizations and interested industry and property-holding entities. Accordingly, we make every attempt to ensure the public is well-informed of proposed regulations that may affect it.

Background

Section 4(a)(3) of the Act requires that, to the maximum extent prudent and determinable, we designate a species' critical habitat concurrently with listing the species. Critical habitat is defined in section 3 of the Act as:

(1) The specific areas within the geographical area occupied by the species, at the time it is listed in accordance with the Act, on which are found those physical or biological features

(a) Essential to the conservation of the species, and

(b) Which may require special management considerations or protection; and

(2) Specific areas outside the geographical area occupied by the species at the time it is listed, upon a determination that such areas are essential for the conservation of the species.

Our regulations at 50 CFR 424.02 define the geographical area occupied by the species as an area that may generally be delineated around species' occurrences, as determined by the Secretary (
i.e.,
range). Such areas may include those areas used throughout all or part of the species' life cycle, even if not used on a regular basis (
e.g.,
migratory corridors, seasonal habitats, and habitats used periodically, but not solely by vagrant individuals).

Conservation, as defined under section 3 of the Act, means to use and the use of all methods and procedures that are necessary to bring an endangered or threatened species to the point at which the measures provided pursuant to the Act are no longer necessary. Such methods and procedures include, but are not limited to, all activities associated with scientific resources management such as research, census, law enforcement, habitat acquisition and maintenance, propagation, live trapping, and transplantation, and, in the extraordinary case where population pressures within a given ecosystem cannot be otherwise relieved, may include regulated taking.

Critical habitat receives protection under section 7 of the Act through the requirement that Federal agencies ensure, in consultation with the Service, that any action they authorize, fund, or carry out is not likely to result in the destruction or adverse modification of critical habitat. The designation of critical habitat does not affect land ownership or establish a refuge, wilderness, reserve, preserve, or other conservation area. Such designation also does not allow the government or public to access private lands. Such designation does not require implementation of restoration, recovery, or enhancement measures by non-Federal landowners. Where a landowner requests Federal agency funding or authorization for an action that may affect a listed species or critical habitat, the Federal agency would be required to consult with the Service under section 7(a)(2) of the Act. However, even if the Service were to conclude that the proposed activity would likely result in destruction or adverse modification of the critical habitat, the Federal action agency and the landowner are not required to abandon the proposed activity, or to restore or recover the species; instead, they must implement “reasonable and prudent alternatives” to avoid destruction or adverse modification of critical habitat.

Under the first prong of the Act's definition of critical habitat, areas within the geographical area occupied by the species at the time it was listed are included in a critical habitat designation if they contain physical or biological features (1) which are essential to the conservation of the species and (2) which may require special management considerations or protection. For these areas, critical habitat designations identify, to the extent known using the best scientific data available, those physical or biological features that are essential to the conservation of the species (such as space, food, cover, and protected habitat).

Under the second prong of the Act's definition of critical habitat, we can designate critical habitat in areas outside the geographical area occupied by the species at the time it is listed, upon a determination that such areas are essential for the conservation of the species.

Section 4 of the Act requires that we designate critical habitat on the basis of the best scientific data available. Further, our Policy on Information Standards Under the Endangered Species Act (published in the
Federal Register
on July 1, 1994 (59 FR 34271)), the Information Quality Act (section 515 of the Treasury and General Government Appropriations Act for Fiscal Year 2001 (Pub. L. 106-554; H.R. 5658)), and our associated Information Quality Guidelines provide criteria, establish procedures, and provide guidance to ensure that our decisions are based on the best scientific data available. They require our biologists, to the extent consistent with the Act and with the use of the best scientific data available, to use primary and original sources of information as the basis for recommendations to designate critical habitat.

When we are determining which areas should be designated as critical habitat, our primary source of information is generally the information developed during the listing process for the species. Additional information sources

may include any generalized conservation strategy, criteria, or outline that may have been developed for the species; the recovery plan for the species; articles in peer-reviewed journals; conservation plans developed by States and counties; scientific status surveys and studies; biological assessments; other unpublished materials; or experts' opinions or personal knowledge.

Habitat is dynamic, and species may move from one area to another over time. We recognize that critical habitat designated at a particular point in time may not include all of the habitat areas that we may later determine are necessary for the recovery of the species. For these reasons, a critical habitat designation does not signal that habitat outside the designated area is unimportant or may not be needed for recovery of the species. Areas that are important to the conservation of the species, both inside and outside the critical habitat designation, will continue to be subject to: (1) Conservation actions implemented under section 7(a)(1) of the Act; (2) regulatory protections afforded by the requirement in section 7(a)(2) of the Act for Federal agencies to ensure their actions are not likely to jeopardize the continued existence of any endangered or threatened species; and (3) the prohibitions found in section 9 of the Act. Federally funded or permitted projects affecting listed species outside their designated critical habitat areas may still result in jeopardy findings in some cases. These protections and conservation tools will continue to contribute to recovery of this species. Similarly, critical habitat designations made on the basis of the best available information at the time of designation will not control the direction and substance of future recovery plans, HCPs, or other species conservation planning efforts if new information available at the time of these planning efforts calls for a different outcome.

Physical or Biological Features Essential to the Conservation of the Species

In accordance with section 3(5)(A)(i) of the Act and regulations at 50 CFR 424.12(b), in determining which areas we will designate as critical habitat from within the geographical area occupied by the species at the time of listing, we consider the physical or biological features that are essential to the conservation of the species and which may require special management considerations or protection. The regulations at 50 CFR 424.02 define “physical or biological features essential to the conservation of the species” as the features that occur in specific areas and that are essential to support the life-history needs of the species, including, but not limited to, water characteristics, soil type, geological features, sites, prey, vegetation, symbiotic species, or other features. A feature may be a single habitat characteristic or a more complex combination of habitat characteristics. Features may include habitat characteristics that support ephemeral or dynamic habitat conditions. Features may also be expressed in terms relating to principles of conservation biology, such as patch size, distribution distances, and connectivity. For example, physical features essential to the conservation of the species might include gravel of a particular size required for spawning, alkaline soil for seed germination, protective cover for migration, or susceptibility to flooding or fire that maintains necessary early-successional habitat characteristics. Biological features might include prey species, forage grasses, specific kinds or ages of trees for roosting or nesting, symbiotic fungi, or absence of a particular level of nonnative species consistent with conservation needs of the listed species. The features may also be combinations of habitat characteristics and may encompass the relationship between characteristics or the necessary amount of a characteristic essential to support the life history of the species.

In considering whether features are essential to the conservation of the species, we may consider an appropriate quality, quantity, and spatial and temporal arrangement of habitat characteristics in the context of the life-history needs, condition, and status of the species. These characteristics include, but are not limited to, space for individual and population growth and for normal behavior; cover or shelter; sites for breeding, reproduction, or rearing (or development) of offspring; food, water, air, light, minerals, or other nutritional or physiological requirements; and habitats with appropriate disturbance regimes (for more information, see the October 4, 2012, proposed rule to list the Florida bonneted bat (77 FR 60750), and the Florida Bonneted Bat Conservation Strategy (see Supporting and Related Material in Docket No. FWS-R4-ES-2019-0106 on
https://www.regulations.gov
)). We summarize below the more important habitat characteristics, particularly those that support the description of physical or biological features essential to the conservation of the Florida bonneted bat. We also consider these habitat features relative to the scale at which Florida bonneted bats use the features, allowing us to more logically organize the physical or biological features to delineate the critical habitat.

Space for Individual and Population Growth and for Normal Behavior

Due to the spatial variability of its prey, its large size, and its wing morphology, the Florida bonneted bat has significant spatial needs for foraging. Insect abundance, density, and community composition frequently vary across space and over time based on season and environmental conditions. As a result of this spatial variability, Florida bonneted bats may need to travel far distances and feed over large areas to satisfy dietary needs. For example, Florida bonneted bats from Babcock-Webb WMA, on average, traveled 9.5 miles (mi) (15 kilometers (km)) from their roosts and flew 24 mi (39 km) total per night (Webb et al. 2018, p. 8; Webb 2018, pers. comm.). These bats also traveled maximum distances of more than 24 mi (39 km) from their roosts and more than 56 mi (90 km) total in one night (Webb et al. 2018, p. 8; Webb 2018, pers. comm.). Florida bonneted bats also require open areas for foraging due to their large body size and the morphology of their wings, which are designed for fast and efficient, but less maneuverable, flight.

This large bat relies on swarms of larger insects for feeding; thus, foraging habitat for the Florida bonneted bat consists of areas that hatch and concentrate insects of this size, including vegetated areas and waterways. These bats are also frequently detected in agricultural areas and golf courses (Bailey et al. 2017a, entire) and are known to feed on insects associated with crops (Webb 2018, pp. 12, 61).

Ecologically diverse areas of suitable habitat representing the geographic extent of the species' range are also important for population growth and persistence. The major ecological communities (Myers and Ewel 1990, entire; Service 1999, entire; FNAI 2010, entire) that provide Florida bonneted bat roosting habitat in central and southern Florida include: pine rocklands (south Florida rockland, rockland pine forest, rockland hammock); cypress communities (cypress swamps, strand swamps, domes, sloughs, ponds); hydric pine flatwoods (wet flatwoods); mesic pine flatwoods; and high pine. A variety of other habitats, including agricultural areas, may be used as well (Bailey et al. 2017a, entire), and freshwater forested

wetlands, including areas with longer hydroperiods and deeper w

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3A2024-04053. Public record. Not legal advice.