Rule2023-03875
Endangered and Threatened Wildlife and Plants; Threatened Species Status With Section 4(d) Rule for the Upper Coosa River Distinct Population Segment of Frecklebelly Madtom and Designation of Critical Habitat
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
March 2, 2023
Effective
April 3, 2023
Issuing agencies
Interior DepartmentFish and Wildlife Service
Abstract
We, the U.S. Fish and Wildlife Service (Service), determine threatened species status under the Endangered Species Act of 1973 (Act), as amended, for the Upper Coosa River distinct population segment (DPS) of the frecklebelly madtom (Noturus munitus), a fish species. We are also finalizing a rule under section 4(d) of the Act to provide for conservation of the species. In addition, we designate critical habitat for the Upper Coosa River DPS under the Act. In total, approximately 134 river miles (216 kilometers) in Georgia and Tennessee fall within the boundaries of the critical habitat designation. This rule applies the protections of the Act to this species and its designated critical habitat.
Full Text
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<title>Federal Register, Volume 88 Issue 41 (Thursday, March 2, 2023)</title>
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<body><pre>[Federal Register Volume 88, Number 41 (Thursday, March 2, 2023)]
[Rules and Regulations]
[Pages 13038-13070]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2023-03875]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
[Docket No. FWS-R4-ES-2020-0058; FF09E21000 FXES1111090FEDR 234]
RIN 1018-BE87
Endangered and Threatened Wildlife and Plants; Threatened Species
Status With Section 4(d) Rule for the Upper Coosa River Distinct
Population Segment of Frecklebelly Madtom and Designation of Critical
Habitat
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Final rule.
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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), determine
threatened species status under the Endangered Species Act of 1973
(Act), as amended, for the Upper Coosa River distinct population
segment (DPS) of the frecklebelly madtom (Noturus munitus), a fish
species. We are also finalizing a rule under section 4(d) of the Act to
provide for conservation of the species. In addition, we designate
critical habitat for the Upper Coosa River DPS under the Act. In total,
approximately 134 river miles (216 kilometers) in Georgia and Tennessee
fall within the boundaries of the critical habitat designation. This
rule applies the protections of the Act to this species and its
designated critical habitat.
DATES: This rule is effective April 3, 2023.
ADDRESSES: This final rule is available on the internet at <a href="https://www.regulations.gov">https://www.regulations.gov</a> in Docket No. FWS-R4-ES-2020-0058 and at <a href="https://www.fws.gov/office/alabama-ecological-services/library">https://www.fws.gov/office/alabama-ecological-services/library</a>. Comments and
materials we received, as well as supporting documentation we used in
preparing this rule, are available for public inspection at <a href="https://www.regulations.gov">https://www.regulations.gov</a> under Docket No. FWS-R4-ES-2020-0058.
For the critical habitat designation, the coordinates or plot
points or both from which the maps are generated are included in the
decision file and are available at <a href="https://www.fws.gov/office/alabama-ecological-services/library">https://www.fws.gov/office/alabama-ecological-services/library</a>, at <a href="https://www.regulations.gov">https://www.regulations.gov</a> under
Docket No. FWS-R4-ES-2020-0058, and at the Alabama Ecological Services
Field Office (see FOR FURTHER INFORMATION CONTACT, below). Any
additional tools or supporting information that we developed for the
critical habitat designation will also be available at the Service
website and Field Office set out above and may also be included in the
preamble and at <a href="https://www.regulations.gov">https://www.regulations.gov</a>.
FOR FURTHER INFORMATION CONTACT: William Pearson, Field Supervisor,
U.S. Fish and Wildlife Service, Alabama Ecological Services Field
Office, 1208-B Main Street, Daphne, AL 36526; telephone 251-441-5870.
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, a species warrants
listing if it meets the definition of an endangered species (in danger
of extinction
[[Page 13039]]
throughout all or a significant portion of its range) or a threatened
species (likely to become endangered within the foreseeable future
throughout all or a significant portion of its range). If we determine
that a species warrants listing, we must list the species promptly and
designate the species' critical habitat to the maximum extent prudent
and determinable. We have determined that the Upper Coosa River DPS of
frecklebelly madtom meets the definition of a threatened species;
therefore, we are listing it as such and designating critical habitat.
Both listing a species as an endangered or threatened species and
designating critical habitat can be completed only by issuing a rule
through the Administrative Procedure Act rulemaking process.
What this document does. This final rule lists the Upper Coosa
River DPS of frecklebelly madtom as a threatened species with a rule
issued under section 4(d) of the Act (a ``4(d) rule'') and designates
critical habitat for the DPS.
The basis for our action. Under the Act, we may determine that a
species is an endangered or threatened species because of any of five
factors: (A) The present or threatened destruction, modification, or
curtailment of its habitat or range; (B) overutilization for
commercial, recreational, scientific, or educational purposes; (C)
disease or predation; (D) the inadequacy of existing regulatory
mechanisms; or (E) other natural or manmade factors affecting its
continued existence. We have determined that the factors driving the
status of the Upper Coosa River DPS are habitat destruction and
degradation caused by agriculture and developed land uses, resulting in
poor water quality (Factor A).
Section 4(a)(3) of the Act requires the Secretary of the Interior
(Secretary) to designate critical habitat concurrent with listing to
the maximum extent prudent and determinable. Section 3(5)(A) of the Act
defines critical habitat as (i) the specific areas within the
geographical area occupied by the species, at the time it is listed, on
which are found those physical or biological features (I) essential to
the conservation of the species and (II) which may require special
management considerations or protections; and (ii) specific areas
outside the geographical area occupied by the species at the time it is
listed, upon a determination by the Secretary that such areas are
essential for the conservation of the species. Section 4(b)(2) of the
Act states that the Secretary must make the designation on the basis of
the best scientific data available and after taking into consideration
the economic impact, the impact on national security, and any other
relevant impacts of specifying any particular area as critical habitat.
Previous Federal Actions
On November 19, 2020, we published a proposed rule (85 FR 74050) to
list the Upper Coosa River DPS of frecklebelly madtom as a threatened
species. That document includes our not-warranted finding on the
listing of the frecklebelly madtom species as a whole. Please refer to
the November 19, 2020, proposed rule for a detailed description of
previous Federal actions concerning the frecklebelly madtom species.
Summary of Changes From the Proposed Rule
Based on information we received during the comment period for the
proposed rule, we have added an exception to the final 4(d) rule to
except incidental take from silviculture practices and forest
management activities that use State-approved best management practices
to protect water and sediment quality and stream and riparian habitat.
We explain this new exception in the preamble of this rule.
Also based on information we received during the comment period for
the proposed rule, we clarify that the critical habitat designation for
the Upper Coosa River DPS of frecklebelly madtom does not extend beyond
the bankfull width of the designated rivers.
In addition, this final rule includes several nonsubstantive,
editorial corrections for clarity and accuracy.
Supporting Documents
A species status assessment (SSA) team prepared an SSA report for
the frecklebelly madtom. The SSA team was composed of Service
biologists, in consultation with other species experts. The SSA report
represents a compilation of the best scientific and commercial data
available concerning the status of the species, including the impacts
of past, present, and future factors (both negative and beneficial)
affecting the species. In accordance with our joint policy on peer
review published in the Federal Register on July 1, 1994 (59 FR 34270),
and our August 22, 2016, memorandum updating and clarifying the role of
peer review of listing actions under the Act, we sought peer review of
the SSA report. As discussed in the proposed rule, we sent the SSA
report to 10 independent peer reviewers, all of whom have expertise
that includes familiarity with the frecklebelly madtom or its habitat,
biological needs, or threats. We received two responses from peer
reviewers.
I. Final Listing Determination
Background
The frecklebelly madtom (Noturus munitus) is a small, stout catfish
reaching 99 millimeters (mm) (3.9 inches (in)) in length (Etnier and
Starnes 1993, p. 324) and distinctively marked with dark saddles
(Suttkus and Taylor 1965, p. 171). The species inhabits the main
channels and larger tributaries of large river systems in Louisiana,
Mississippi, Alabama, Georgia, and Tennessee. The species has a broad
but disjunct distribution across the Pearl River watershed and Mobile
River Basin, with populations in the Pearl River and Bogue Chitto River
in the Pearl River watershed and the Tombigbee, Alabama, Cahaba,
Etowah, and Conasauga river systems in the Mobile River Basin (Piller
et al. 2004, p. 1004; Bennett and Kuhajda 2010, pp. 507-508).
Throughout its range, the frecklebelly madtom primarily occupies
streams and rivers within the Gulf Coastal Plain physiographic
province; however, it also occurs in the Ridge and Valley physiographic
province in the Conasauga River and Piedmont Upland physiographic
province in the Etowah River (Mettee et al. 1996, pp. 408-409). For the
frecklebelly madtom to survive and reproduce, individuals need suitable
habitat that supports essential life functions at all life stages.
Three elements appear to be essential to the survival and reproduction
of individuals: flowing water, stable substrate, and aquatic
vegetation. A thorough review of the taxonomy, life history, and
ecology of the frecklebelly madtom is presented in the SSA report
(version 1.2, pp. 1-17).
The Upper Coosa River DPS of the frecklebelly madtom primarily
occurs within northern Georgia and extends into two counties of
Tennessee within the Conasauga River and Etowah River (see figure 1,
below). Please refer to our proposed rule (85 FR 74050; November 19,
2020) for a summary of the species' background information available to
the Service at the time that the proposal was published.
Regulatory and Analytical Framework
Regulatory Framework
Section 4 of the Act (16 U.S.C. 1533) and its implementing
regulations (50 CFR part 424) set forth the procedures for determining
whether a species is an endangered species or a threatened species,
issuing protective regulations for threatened species, and designating
[[Page 13040]]
critical habitat for endangered and threatened species. In 2019,
jointly with the National Marine Fisheries Service, the Service issued
a final rule that revised the regulations in 50 CFR part 424 regarding
how we add, remove, and reclassify endangered and threatened species
and the criteria for designating listed species' critical habitat (84
FR 45020; August 27, 2019). On the same day, the Service also issued
final regulations that, for species listed as threatened species after
September 26, 2019, eliminated the Service's general protective
regulations automatically applying to threatened species the
prohibitions that section 9 of the Act applies to endangered species
(84 FR 44753; August 27, 2019). We collectively refer to these actions
as the 2019 regulations.
As with the proposed rule, we are applying the 2019 regulations for
this final rule because the 2019 regulations are the governing law just
as they were when we completed the proposed rule. Although there was a
period in the interim--between July 5, 2022, and September 21, 2022--
when the 2019 regulations became vacated and the pre-2019 regulations
therefore governed, the 2019 regulations are now in effect and govern
listing and critical habitat decisions (see Center for Biological
Diversity v. Haaland, No. 4:19-cv-05206-JST, Doc. 168 (N.D. Cal. July
5, 2022) (CBD v. Haaland) (vacating the 2019 regulations and thereby
reinstating the pre-2019 regulations)); In re: Cattlemen's Ass'n, No.
22-70194 (9th Cir. Sept. 21, 2022) (staying the district court's order
vacating the 2019 regulations until the district court resolved a
pending motion to amend the order); Center for Biological Diversity v.
Haaland, No. 4:19-cv-5206-JST, Doc. Nos. 197, 198 (N.D. Cal. Nov. 16,
2022) (granting plaintiffs' motion to amend July 5, 2022 order and
granting government's motion for remand without vacatur). We have
undertaken an analysis under the pre-2019 regulations and included it
in the decision file for this final rule.
The Act defines an ``endangered species'' as a species that is in
danger of extinction throughout all or a significant portion of its
range, and a ``threatened species'' as a species that is likely to
become an endangered species within the foreseeable future throughout
all or a significant portion of its range. The Act requires that we
determine whether any species is an endangered species or a threatened
species because of any of the following factors:
(A) The present or threatened destruction, modification, or
curtailment of its habitat or range;
(B) Overutilization for commercial, recreational, scientific, or
educational purposes;
(C) Disease or predation;
(D) The inadequacy of existing regulatory mechanisms; or
(E) Other natural or manmade factors affecting its continued
existence.
These factors represent broad categories of natural or human-caused
actions or conditions that could have an effect on a species' continued
existence. In evaluating these actions and conditions, we look for
those that may have a negative effect on individuals of the species, as
well as other actions or conditions that may ameliorate any negative
effects or may have positive effects.
We use the term ``threat'' to refer in general to actions or
conditions that are known to or are reasonably likely to negatively
affect individuals of a species. The term ``threat'' includes actions
or conditions that have a direct impact on individuals (direct
impacts), as well as those that affect individuals through alteration
of their habitat or required resources (stressors). The term ``threat''
may encompass--either together or separately--the source of the action
or condition or the action or condition itself.
However, the mere identification of any threat(s) does not
necessarily mean that the species meets the statutory definition of an
``endangered species'' or a ``threatened species.'' In determining
whether a species meets either definition, we must evaluate all
identified threats by considering the expected response by the species,
and the effects of the threats--in light of those actions and
conditions that will ameliorate the threats--on an individual,
population, and species level. We evaluate each threat and its expected
effects on the species, then analyze the cumulative effect of all of
the threats on the species as a whole. We also consider the cumulative
effect of the threats in light of those actions and conditions that
will have positive effects on the species, such as any existing
regulatory mechanisms or conservation efforts. The Secretary determines
whether the species meets the definition of an ``endangered species''
or a ``threatened species'' only after conducting this cumulative
analysis and describing the expected effect on the species now and in
the foreseeable future.
The Act does not define the term ``foreseeable future,'' which
appears in the statutory definition of ``threatened species.'' Our
implementing regulations at 50 CFR 424.11(d) set forth a framework for
evaluating the foreseeable future on a case-by-case basis. The term
``foreseeable future'' extends only so far into the future as we can
reasonably determine that both the future threats and the species'
responses to those threats are likely. In other words, the foreseeable
future is the period of time in which we can make reliable predictions.
``Reliable'' does not mean ``certain''; it means sufficient to provide
a reasonable degree of confidence in the prediction. Thus, a prediction
is reliable if it is reasonable to depend on it when making decisions.
It is not always possible or necessary to define the foreseeable
future as a particular number of years. Analysis of the foreseeable
future uses the best scientific and commercial data available and
should consider the timeframes applicable to the relevant threats and
to the species' likely responses to those threats in view of its life-
history characteristics. Data that are typically relevant to assessing
the species' biological response include species-specific factors such
as lifespan, reproductive rates or productivity, certain behaviors, and
other demographic factors.
Analytical Framework
The frecklebelly madtom (Noturus munitus) SSA report documents the
results of our comprehensive biological status review for the
frecklebelly madtom species as a whole, including an assessment of the
potential stressors to the species (Service 2020, entire). The SSA
report does not represent our decision on whether the species (or the
DPS) should be listed as an endangered or threatened species under the
Act. However, it does provide the scientific basis that informs our
regulatory decisions, which involve the further application of
standards within the Act and its implementing regulations and policies.
The following is a summary of the key results and conclusions from the
SSA report, specifically related to the DPS; the full SSA report can be
found at <a href="https://www.fws.gov/office/alabama-ecological-services/library">https://www.fws.gov/office/alabama-ecological-services/library</a>
and at <a href="https://www.regulations.gov">https://www.regulations.gov</a> under Docket No. FWS-R4-ES-2020-
0058.
To assess the frecklebelly madtom's viability, we used the three
conservation biology principles of resiliency, redundancy, and
representation (Shaffer and Stein 2000, pp. 306-310). Briefly,
resiliency supports the ability of the species to withstand
environmental and demographic stochasticity (for example, wet or dry,
warm or cold years), redundancy supports the ability of the species to
withstand catastrophic events (for example, droughts, large pollution
events), and representation supports the
[[Page 13041]]
ability of the species to adapt over time to long-term changes in the
environment (for example, climate changes). In general, the more
resilient and redundant a species is and the more representation it
has, the more likely it is to sustain populations over time, even under
changing environmental conditions. Using these principles, we
identified the species' ecological requirements for survival and
reproduction at the individual, population, and species levels, and
described the beneficial and risk factors influencing the species'
viability.
The SSA process can be categorized into three sequential stages.
During the first stage, we evaluated the individual species' life-
history needs. The next stage involved an assessment of the historical
and current condition of the species' demographics and habitat
characteristics, including an explanation of how the species arrived at
its current condition. The final stage of the SSA involved making
predictions about the species' responses to positive and negative
environmental and anthropogenic influences. Throughout all of these
stages, we used the best available information to characterize
viability as the ability of a species to sustain populations in the
wild over time. We use this information to inform our regulatory
decision.
Summary of Biological Status and Threats
In this discussion, we review the species needs, the biological
condition of the Upper Coosa River DPS of frecklebelly madtom and its
resources, and the threats that influence the current and future
condition, in order to assess the overall viability and the risks to
the viability of the Upper Coosa River DPS of frecklebelly madtom.
Species Needs and Habitat
Primary habitat for frecklebelly madtom is associated with fast
moving streams often associated with rivers and their tributaries, with
substrate consisting of various sizes of gravel (Suttkus and Taylor
1965, pp. 177-178; Mettee et al. 1996, p. 409; Vincent, 2019,
unpaginated). Cover is an important habitat factor for the species, as
it provides for concealment against predators (Vincent, 2019,
unpaginated), foraging habitat, and nesting habitat. Areas providing
firm gravel substrates, such as small pebbles and rocks, are preferred,
thus muddy waterway sand still streams are not desirable habitat for
this species (Suttkus and Taylor 1965, pp. 177; Taylor 1969, pp. 183;
Mettee et al. 1996, p. 409; Piller et al. 2004, p. 1004).
Delineating Representation and Resilience Units
We delineated representation units to describe the breadth of known
genetic, phenotypic, and ecological diversity within the species. There
is evidence of differentiation in habitat use, morphology, and genetics
for areas that the frecklebelly madtom occupies, which are disconnected
spatially across the landscape. In total, we identified six
representation units for the frecklebelly madtom: Pearl River (A),
upper Tombigbee River (B), lower Tombigbee/Alabama Rivers (C), Alabama
River (D), Cahaba River (E), and upper Coosa River (F). Through the DPS
analysis described in the proposed rule (85 FR 74050; November 19,
2020), we determined that the Upper Coosa River representation unit is
a distinct population segment (see figure 1, below) and that the DPS
meets the Act's definition of a threatened species. Any reference to
the upper Coosa River representation unit in the SSA report can be
understood to mean the Upper Coosa River DPS of frecklebelly madtom.
The term upper Coosa River representation unit is used throughout this
document (and the SSA report) but references the same geographic areas
as the Upper Coosa River DPS of frecklebelly madtom.
BILLING CODE 4333-15-P
[[Page 13042]]
[GRAPHIC] [TIFF OMITTED] TR02MR23.000
BILLING CODE 4333-15-C
We delineated resilience units for the upper Coosa River
representation unit of the frecklebelly madtom (see table 1, below).
Resilience units were delineated to describe at a local scale how the
species withstands stochastic events. Resilience units were delineated
as aggregations of adjacent U.S. Geological Survey Hydrological Unit
Code (HUC) 10 watershed boundaries that contain a frecklebelly madtom
observation and are not disconnected by dams or other major habitat
alterations that may present a barrier to movement. By using HUC 10
watersheds, we are able to delineate resilience units that can be
measured and evaluated at a local scale similar to that we would expect
for a
[[Page 13043]]
population. We identified three resilience units consisting of eight
HUC 10 watersheds within the range of the Upper Coosa River DPS of
frecklebelly madtom (see table 1, below).
Table 1--Representation Unit and Resilience Units Used To Assess
Viability of the Upper Coosa River DPS of Frecklebelly Madtom
------------------------------------------------------------------------
Representation unit Resilience units
------------------------------------------------------------------------
Upper Coosa River......................... Conasauga River.
Coosawattee River.
Etowah River.
------------------------------------------------------------------------
Risk Factors for Upper Coosa River DPS of Frecklebelly Madtom
We reviewed the potential risk factors (see discussion of section
4(a)(1) of the Act, above) that are affecting the frecklebelly madtom
now and are expected to affect it into the future. We have determined
that habitat destruction and degradation caused by agriculture and
development, resulting in poor water quality (Factor A), poses the
largest risk to the current and future viability of the Upper Coosa
River DPS of frecklebelly madtom. Other potential stressors to the
species are habitat degradation resulting from channelization, dams,
and impoundments (Factor A) and climate change (Factor E). We find the
species does not face significant threats from overutilization (Factor
B), disease or predation (Factor C), or invasive species (Factor E). We
also reviewed the regulatory mechanisms (Factor D) and conservation
efforts being undertaken for the habitat in which the frecklebelly
madtom occurs. A brief summary of relevant stressors is presented
below; for a full description, refer to chapter 4 of the SSA report
(Service 2020, entire).
Water Quality
The frecklebelly madtom, like other benthic aquatic species, is
sensitive to poor water quality (Warren et al. 1997, p. 125) and needs
clean, flowing water to survive; thus, water quality degradation is
considered a threat to the species. Changes in water chemistry and flow
patterns, resulting in a decrease in water quality and quantity, have
detrimental effects on madtoms because they can render aquatic habitat
unsuitable for occupancy.
Inputs of point (discharge from particular pipes) and nonpoint
(diffuse land surface runoff) source pollution across the DPS's range
are numerous and widespread. Point source pollution can be generated
from inadequately treated effluent from industrial plants, sanitary
landfills, sewage treatment plants, active surface mining, drain fields
from individual private homes, and others (Service 2000, pp. 14-15).
Nonpoint pollution originates from agricultural activities, poultry and
cattle feedlots, abandoned mine runoff, construction, failing septic
tanks, and contaminated runoff from urban areas (Deutsch et al. 1990,
entire; Service 2000, pp. 14-15). These sources contribute pollution to
streams via sediments, heavy metals, fertilizers, herbicides,
pesticides, animal wastes, septic tank and gray water leakage, and oils
and greases. Water quality and native aquatic fauna decline as a result
of this pollution through nitrification, decreases in dissolved oxygen
concentration, increases in acidity and conductivity, or direct
introduction of toxicants. These alterations likely have direct (e.g.,
decreased survival and/or reproduction) and indirect (e.g., loss,
degradation, and fragmentation of habitat) effects. For some aquatic
species, including the frecklebelly madtom, submergent vegetation
provides critical spawning habitat for adults, refugia from predators,
and habitat for prey of all life stages (Jude and Pappas 1992, pp. 666-
667; Freeman et al. 2003, p. 54). Degraded water quality and the high
algal biomass that result from pollutant inputs cause loss of these
critical submergent plant species (Chow-Fraser et al. 1998, pp. 38-39)
that are vital habitat for the frecklebelly madtom.
The frecklebelly madtom is intolerant to sedimentation (Shepard
2004, p. 221; MMNS 2014, p. 35), and sedimentation is a concern
throughout the Upper Coosa River DPS. Researchers have documented a
negative relationship between occurrence of the frecklebelly madtom and
human-induced increases of sediment within Etowah River and Conasauga
River (Burkhead et al. 1997, pp. 406-413; Shepard et al. 1997, pp. 15-
19; Freeman et al. 2002, pp. 18-19; Freeman et al. 2017, pp. 429-430).
Human-induced increases in sediment are likely a factor in local
declines of the species. In addition, the frecklebelly madtom's habitat
requirements make it vulnerable to activities that disturb substrate
integrity. The species is restricted to habitat with pea-sized gravel,
cobble, or slab-rock substrates not embedded in large amounts of silt
(Bennett et al. 2008, p. 467; Bennett and Kuhajda 2010, p. 510),
although it has also been found to occupy some stable streams with a
sandy yet stable substrate. Degradation from sedimentation, physical
habitat disturbance, and contaminants threaten the habitat and water
quality on which the frecklebelly madtom depends. Sedimentation from an
array of land uses (e.g., urbanization, agriculture, channel
maintenance activities) could negatively affect the species by reducing
growth rates, disease tolerance, and gill function; reducing spawning
habitat, reproductive success, and egg (embryo), larva, and juvenile
development; reducing food availability through reductions in prey;
reducing foraging efficiency; and reducing shelter.
A wide range of current activities and land uses, including
agricultural practices, construction, stormwater runoff, unpaved roads,
poor forest management, utility crossings, and mining, can lead to
excessive sedimentation within streams. Fine sediments not only smother
streams during current ongoing activities, historical land-use
practices may have substantially altered hydrological and geological
processes such that sediments continue to be input into streams for
several decades after those activities cease (Harding et al. 1998, p.
14846).
Water quality for frecklebelly madtom is particularly impacted by
three processes: channel modification (i.e., dredging and
channelization), agriculture, and development, which are discussed
further below.
Channel Modification
Dredging and channelization have led to loss of aquatic habitat in
the Southeast (Neves et al. 1997, p. 71). Dredging and channelization
projects are extensive throughout the region for flood control,
navigation, sand and gravel mining, and conversion of wetlands into
croplands (Neves et al. 1997, p. 71; Herrig and Shute 2002, pp. 542-
543). Dredging and channelization modify and destroy habitat for
aquatic species by destabilizing the substrate, increasing erosion and
siltation, removing woody debris, decreasing habitat heterogeneity, and
stirring up contaminants that settle onto the substrate (Williams et
al. 1993, pp. 7-8; Buckner et al. 2002, entire; Bennett et al. 2008,
pp. 467-468). Channelization can also lead to head cutting (an
erosional process in a stream channel with a vertical cut or drop that
migrates upstream over time), which causes further erosion and
sedimentation (Hartfield 1993, pp. 131-141). Dredging can involve
snagging (the removal of woody debris from the channel), which not only
contributes to destabilization of the channel but also removes the
woody debris that provides important cover and nest locations for many
fish species,
[[Page 13044]]
including the frecklebelly madtom (Bennett et al. 2008, pp. 467-468).
Within the range of the Upper Coosa River DPS, important habitat of
the frecklebelly madtom was permanently altered and removed by the U.S.
Army Corps of Engineers when it was appropriated funding by Congress to
remove obstructions from the Oostanaula and Coosawattee rivers in the
1870s (U.S. Department of War Office of Engineers 1875, pp. 792-794).
However, the Conasauga River does not have large-scale human
modification through damming or channelization (Bennett et al. 2008, p.
468), and the Etowah upstream of Allatoona River is relatively
unaltered by dredging or channel modification work.
Agriculture
Agricultural practices such as traditional farming, feedlot
operations, and associated land use practices can contribute pollutants
to rivers. These practices can also degrade habitat by eroding stream
banks, which results in alterations to stream hydrology and
geomorphology. Nutrients, bacteria, pesticides, and other organic
compounds are generally found in higher concentrations in agricultural
areas rather than forested areas. Contaminants associated with
agriculture (e.g., fertilizers, pesticides, herbicides, and animal
waste) can degrade water quality and negatively impact instream
habitats by causing oxygen deficiencies, excess nutrification, and
excessive algal growths, which can have a direct impact on fish
community composition (Petersen et al. 1999, p. 6).
Areas within the current range of the Upper Coosa River DPS of
frecklebelly madtom, which are predominantly agricultural, are impacted
by nonpoint source sediment and agrochemical discharges altering the
physical and chemical characteristics of the DPS's habitat, thus
potentially impeding the frecklebelly madtom's ability to feed, seek
shelter from predators, and successfully reproduce. A negative
relationship between the species and nonpoint source stressors
attributed to agriculture has been described particularly within the
Conasauga River (Freeman et al. 2017, pp. 429-430). Over the past two
decades, an increase in the use of agricultural chemicals and
practices, such as use of glyphosate-based herbicides for weed control
and land dispersion of animal waste for soil amendment, has
corresponded with marked declines in populations of fish and mussel
species in the Upper Conasauga River watershed in Georgia and Tennessee
(Freeman et al. 2017, p. 429). Nutrient enrichment of streams was found
to be widespread, with high levels of nitrate and phosphorus (reported
at over 5 milligrams per liter and over 300 micrograms per liter,
respectively, within the Conasauga River) likely associated with
eutrophication, and hormone concentrations in sediments were often
above those shown to cause endocrine disruption in fish, which was
possibly related to the widespread application of poultry litter and
manure (Lasier et al. 2016, entire). Estrogens, a hormone and type of
endocrine disruptor that can be found in poultry litter, also have been
identified as a threat to aquatic fauna in the Conasauga River system
(Jacobs 2015, entire). Increased levels of estrogens can lead to
decreases in spawning success and potentially population collapse
within short timeframes (Kidd et al. 2007, p. 8899). Aquatic species
declines observed in the Conasauga watershed may be at least partially
due to hormones, as well as excess nutrients, herbicides, and
surfactants (Freeman et al. 2017, p. 429).
The amount (acreage) of agricultural land is declining across the
eastern United States with a net loss of 6.5 percent between 1973 and
2000 (Sayler et al. 2016, p. 12). As discussed below under Future
Scenarios, within the Upper Coosa River watershed, the declining trend
of agricultural land is consistent with broader trends in the eastern
United States showing agricultural land declines with time (Sayler et
al. 2016, p. 12). These agricultural lands are mostly being converted
to developed and forested lands (Sayler et al. 2016, p. 12). Despite
the declining trend, agricultural practices leading to poor water
quality conditions currently influence and will continue to influence
the viability of frecklebelly madtom within the Upper Coosa River DPS.
Development
Development is a significant source of water quality degradation
that can reduce the survival of aquatic organisms, including the
frecklebelly madtom. Urban development can stress aquatic systems in a
variety of ways, including increasing the frequency and magnitude of
high flows in streams; increasing sedimentation and nutrient loads;
increasing contaminants and toxicity; decreasing the diversity of fish,
aquatic insects, plants, and amphibians; and changing stream morphology
and water chemistry (Coles et al. 2012, entire; CWP 2003; entire).
Sources and risks of an acute or catastrophic contamination event, such
as a leak from an underground storage tank or a hazardous materials
spill on a highway, increase as urbanization increases.
Urbanization has also been shown to impair stream quality by
impacting riparian health (Diamond et al. 2002, p. 1150). Riparian
impairment resulting from urbanization or agricultural land use can
amplify negative effects of nonpoint source pollution within the
watershed as well as impact stream quality independent of land use
within the watershed. Impacts from impervious cover can be mitigated
through riparian forest cover and good riparian health (Roy et al.
2005, p. 2318; Walsh et al. 2007, entire); however, the benefit of the
riparian cover diminishes when impervious cover (i.e., urban cover)
exceeds approximately 10 percent within the watershed (Booth and
Jackson 1997, p. 1084; Goetz et al. 2003, p. 205).
Currently, larger population centers, such as the city of Atlanta,
Georgia, contribute substantial runoff to the watersheds occupied by
the Upper Coosa River DPS of frecklebelly madtom. In the future,
urbanization is predicted to increase within the Upper Coosa River DPS
of frecklebelly madtom (see Future Scenarios, below). The Etowah River
watershed, upstream of Lake Allatoona in Georgia, is expected to
experience additional urbanization (Albanese et al. 2018, p. 39).
Conservation concerns in the Etowah River watershed have focused on
potential effects of this predicted urban growth on imperiled fishes
(Burkhead et al. 1997, pp. 959-968; Wenger et al. 2010, pp. 11-21), and
previous analyses show negative correlations between occurrence of
native fishes and increases in impervious cover associated with urban
development (Wenger et al. 2008, p. 1260). In the Etowah Basin in
Georgia, models indicated that urbanization lowered the richness and
density of fish species and led to predictable changes in species
composition. Darters, sculpin, minnows, and endemic species declined
along the urban gradient, whereas sunfishes persisted and became the
dominant group (Walters et al. 2005, pp. 10-11). In the future, we
anticipate increased development to amplify as a population-level
factor influencing the viability of frecklebelly madtom within the
Upper Coosa River DPS.
Impoundments
Impoundment of rivers is a stressor to aquatic species in the
Southeast (Benz and Collins 1997, pp. 22-23, 63, 91, 205, 273, 291,
397, 399, 401-406, 446; Buckner et al. 2002, pp. 10-11). Dams modify
habitat conditions and aquatic communities both upstream and
[[Page 13045]]
downstream of an impoundment (Winston et al. 1991, pp. 103-104;
Mulholland and Lenat 1992, pp. 193-231; Soballe et al. 1992, pp. 421-
474). Upstream of dams, habitat is flooded, and in-channel conditions
change from flowing to still water, with increased depth, decreased
levels of dissolved oxygen, and increased sedimentation. Sedimentation
alters substrate conditions by filling in interstitial spaces between
rocks, which provide habitat for many species (Neves et al. 1997, pp.
63-64), including the frecklebelly madtom. Downstream of dams, flow
regime fluctuates with resulting fluctuations in water temperature and
dissolved oxygen levels, the substrate is scoured, and downstream
tributaries are eroded (Neves et al. 1997, pp. 63-64; Schuster 1997, p.
273; Buckner et al. 2002, p. 11). Negative ``tailwater'' effects on
habitat can extend many kilometers downstream (Neves et al. 1997, p.
63). Dams fragment habitat for aquatic species by blocking corridors
for migration and dispersal, resulting in population isolation and
heightened susceptibility to extinction (Neves et al. 1997, p. 63).
Dams also preclude the ability of aquatic organisms to escape from
polluted waters and accidental spills (Buckner et al. 2002, p. 10).
Damming of streams and springs is also extensive throughout the
Southeast and occurs within the large river habitats of the Upper Coosa
River DPS of frecklebelly madtom, specifically Allatoona Dam on the
Etowah River and Carters Dam on the Coosawattee River (Etnier 1997, pp.
88-89; Morse et al. 1997, pp. 22-23; Shute et al. 1997, pp. 458-459;
Bennett et al. 2008, p. 467). Many streams have both small ponds in
their headwaters and large reservoirs in their lower reaches (Morse et
al. 1997, p. 23). Small streams on private lands are regularly dammed
to create ponds for cattle, irrigation, recreation, and fishing, with
significant ecological effects due to the sheer abundance of these
structures (Morse et al. 1997, pp. 22-23). In addition, small headwater
streams are increasingly being dammed in the Southeast to supply water
for municipalities (Buckner et al. 2002, p. 11).
Dams are known to have caused the extirpation and extinction of
many southeastern species, and existing and proposed dams pose an
ongoing threat to many aquatic species (Folkerts 1997, p. 11; Neves et
al. 1997, p. 63; Ricciardi and Rasmussen 1999, p. 1222; Service 2000,
p. 15; Buckner et al. 2002, p. 11; Olden 2016, pp. 112-122), including
the frecklebelly madtom. For instance, the construction of 10 lock and
dam structures on the Tenn-Tom Waterway, which artificially connects
the Tennessee River to the Gulf of Mexico, led to the extirpation of
many species, including the frecklebelly madtom, from the main river
channel (Bennett et al. 2008, p. 467). The construction of one dam on
the Etowah River may have affected the Upper Coosa River DPS of
frecklebelly madtom and reduced the extent of available habitat, since
the species is dependent on large-river gravel shoal substrate (Bennett
et al. 2008, p. 470).
Climate Change
In the southeastern United States, several climate change models
have projected more frequent drought, more extreme heat (resulting in
increases in air and water temperatures), increased heavy precipitation
events (e.g., flooding), more intense storms (e.g., frequency of major
hurricanes increases), and rising sea level and accompanying storm
surge (IPCC 2013, entire). When taking into account future climate
projections for temperature and precipitation where the frecklebelly
madtom occurs, warming is expected to be greatest in the summer, which
is predicted to increase drought frequency. Nevertheless, annual mean
precipitation is expected to increase slightly, leading to a slight
increase in flooding events (Alder and Hostetler 2013, unpaginated;
IPCC 2013, entire; USGS 2020, unpaginated). Changes in climate may
affect ecosystem processes and communities by altering the abiotic
conditions experienced by biotic assemblages, resulting in potential
effects on community composition and individual species interactions
(DeWan et al. 2010, p. 7).
The frequency, duration, and intensity of droughts are likely to
increase in the southeastern United States as a result of global
climate change (Konrad et al. 2013, p. 34), which could negatively
affect stream flows in the region. Stream flow is strongly correlated
with important physical and chemical parameters that limit the
distribution and abundance of riverine species (Power et al. 1995,
entire; Resh et al. 1988, pp. 438-439) and regulates the ecological
integrity of flowing water systems (Poff et al. 1997, p. 770).
To understand how climate change is projected to affect areas where
frecklebelly madtom occurs, we used the National Climate Change Viewer
(NCCV), a climate-visualization tool developed by the U.S. Geological
Survey (USGS), to generate future climate projections across the range
of the species. The NCCV is a web-based tool for visualizing and
assessing projected changes in climate and water balance at watershed,
State, and county scales (USGS 2020, unpaginated). To evaluate the
effects of climate change in the future, we used projections from
representative concentration pathway (RCP) 4.5 and RCP 8.5 to
characterize projected future changes in climate and water resources,
averaged for the South-Atlantic Gulf Region encompassing the Upper
Coosa River DPS of the frecklebelly madtom (Service 2020, pp. 27-31).
The projections estimate changes in mean annual values for maximum air
temperature, minimum air temperature, monthly precipitation, and
monthly runoff, among other factors, from historical (1981-2010) to
future (2050-2074) time series.
Within the Upper Coosa River DPS of the frecklebelly madtom, the
NCCV projects that, under the RCP 4.5 scenario, maximum air temperature
will increase by 1.9 degrees Celsius ([deg]C) (3.4 degrees Fahrenheit
([deg]F)), minimum air temperature will increase by 1.8 [deg]C (3.2
[deg]F), precipitation will increase by 5.36 millimeters (0.2 inches)
per month, and runoff will remain the same in the 2050-2074 time period
(USGS 2020, unpaginated). Under the more extreme RCP 8.5 scenario, the
NCCV projects that maximum air temperature will increase by 2.8 [deg]C
(5 [deg]F), minimum air temperature will increase by 2.7 [deg]C (4.9
[deg]F), precipitation will increase by 5.36 millimeters (0.2 inches)
per month, and runoff will remain the same in the 2050-2074 time period
(USGS 2020, unpaginated). These estimates indicate that, despite
projected minimal increases in annual precipitation, anticipated
increases in maximum and minimum air temperatures will likely offset
those gains. Based on these projections, the frecklebelly madtom will
on average be exposed to increased air temperatures in the Upper Coosa
River watershed, despite limited increases in precipitation; however,
these projections are not a one-to-one air to stream water temperature
comparison.
Despite the recognition of climate effects on ecosystem processes,
there is uncertainty within each model and model ensembles about what
the exact climate future will be, and there is uncertainty in how the
ecosystems and species will respond. Although there are several
potential risks associated with long-term climate change as described
above, there is uncertainty regarding how the frecklebelly madtom will
respond to these risks. The species occupies some tributaries
throughout its range, but the frecklebelly madtom has a preference for
habitat in larger rivers
[[Page 13046]]
and this may provide a buffer to changes induced by climate change,
particularly from issues associated with drought. Therefore, we do not
consider climate change to be a primary risk factor for the species at
this time.
Methods To Assess Current Condition
We assessed the current resiliency (ability of populations to
withstand stochastic events) within the Upper Coosa River DPS of
frecklebelly madtom by considering occurrence data throughout the DPS's
range. We used occurrence data to estimate range extent and range
geometry (i.e., number of named streams with occurrences). These
metrics can be useful for evaluating resiliency, as larger areas of
occupied habitat and multiple occupied streams (more complex ranges)
are more robust to stochastic events (i.e., a single, more localized
event would be unlikely to negatively affect the entire population or
unit if many and larger reaches of streams were occupied). We
categorized current resiliency into high, moderate, low, or likely
extirpated conditions, based on our evaluation of total number of
occurrences, the number of occupied stream reaches, the length of
discrete stream reaches, and an estimate of the maximum occupied stream
reach within each resilience unit, in addition to information within
available literature (Service 2020, pp. 34-53).
Environmental DNA (eDNA, which is DNA that is shed into the
environment by an organism during its life) belonging to the
frecklebelly madtom was collected in all three resilience units of the
Upper Coosa River DPS (Freeman and Bumpers 2018, entire). Within the
Coosawattee River, eDNA is the only evidence of the species' presence
within the period of record (1950-2019). Collecting and analyzing water
samples for eDNA provides a means of rapidly surveying aquatic habitats
to help identify potentially occupied sites for a species. However,
uncertainty of these data remains regarding the origin and fate of the
individuals that shed the DNA and the length of time the eDNA persists
in the environment. For the purposes of this analysis, we used eDNA
data as evidence to support our conclusion that the probability of the
species being present in a particular unit is greater than zero. As
described above, we used occurrence data to assess resiliency. If units
are known only from eDNA data, an unknown resiliency was determined
since we have no occurrence information from traditional surveys.
Representation for the Upper Coosa River DPS of the frecklebelly
madtom is assessed as the number and ecological setting of populations
or resilience units, with resilience units of moderate or high
providing greater contribution to the overall representation.
Representation of the Upper Coosa River DPS is assessed as low since
only the Etowah River meaningfully contributes to this attribute. A
full description of the results can be found in our proposed listing
rule for the Upper Coosa River DPS of the frecklebelly madtom (85 FR
74050; November 19, 2020). Similarly, we assessed redundancy (ability
of species to withstand catastrophic events) by evaluating the number
and distribution of populations or resilience units, with resilience
units of moderate or high providing greater contribution to the overall
redundancy throughout the DPS's range. Similar to representation,
redundancy of the DPS is also assessed as low since only the Etowah
River meaningfully contributes to this attribute. Results can be found
in our November 19, 2020, proposed rule.
Current Condition of the Upper Coosa River DPS of Frecklebelly Madtom
The known historical range for the Upper Coosa River DPS of
frecklebelly madtom includes the Etowah River in northern Georgia and
the Conasauga River in northern Georgia and southeastern Tennessee.
Currently, within the upper Coosa River representation unit, one
resilience unit (Conasauga River) was estimated to have low resiliency,
one to have moderate resiliency (Etowah River), and one to have unknown
resiliency (Coosawattee River).
In the Conasauga River, the number of occurrences, occupied
reaches, and occupied reach length has declined drastically in the
Conasauga River. Additionally, no tributaries are known to support this
species. This drastic decline has been noted since the late 1990s
(Shepard et al. 1997, p. 22) and supported by current occupancy
modeling effort (Freeman et al. 2017, p. 424). Further, fish assemblage
and abundance from the 1990s-2000s documented declines in several fish
species, including the frecklebelly madtom, and after 2000, the
frecklebelly madtom was no longer detected in surveys (Freeman et al.
2003, pp. 569-570; Bennett et al. 2008, p. 466). These surveys indicate
a reduced resiliency in the Conasauga River, because the best available
occurrence data present a transition from a measurable population of
the frecklebelly madtom to an unmeasurable one. Despite a 20-year lapse
since the last observation of the frecklebelly madtom, the current
presence of the species in the Conasauga River is supported by eDNA
that was collected in 2017 and 2018 (Freeman and Bumpers 2018, entire),
as described above. Furthermore, the Conasauga River has not
experienced the same type of habitat modifications as other rivers that
have caused localized extirpation of the species (dams, impoundments,
and channelization), and the species has been observed more recently in
river surveys than in river sections where it is considered extirpated.
Therefore, we determined that the species remains present in the
Conasauga River but with low resiliency to stochastic events, as
estimated from the occurrence data. The number of occurrences of
frecklebelly madtom appears to have declined in the Etowah River from
the 1998-2008 time period as has the number of occupied stream reaches
and their total length. However, a concerted fish survey effort was in
progress during 1998-2008 time period in the upper Coosa River
watershed (Freeman et al. 2003, entire). Therefore, while there are
fewer occurrences of the frecklebelly madtom in the current time
period, we cannot determine that this represents a decline in the
species or a decline in effort in the Etowah River. Based on recent
work that quantified occupancy of frecklebelly madtom and found it to
be relatively consistent in the Etowah River (Freeman et al. 2017, p.
428), it is reasonable to conclude that the species' populations have
been stable. The frecklebelly madtom is largely confined to the main
stem of the Etowah River. However, some of the highest quality habitat
for the frecklebelly madtom in this river can be found flowing through
the Dawson Forest Wildlife Management Area (Shepard et al. 1997, p.
21), a state managed property. Approximately 19 km of the Etowah River
flows through or is adjacent (at least one river bank) to property
owned by the GADNR, which represents approximately 19% of the maximum
known range extent of the frecklebelly madtom in the Etowah River.
Therefore, this river system is believed to currently be afforded some
protection from encroaching developments. Due to the apparent stability
of the range extent in this unit but historically low abundances
(Bennett et al. 2008, p. 465), its relatively simple range geometry,
and exposure to threats from development, this unit was assessed as
having moderate resilience. No occurrence data is available for the
Coosawattee River unit. However, environmental DNA for the frecklebelly
madtom was found in portions of it. In the Coosawattee River, there
were 5 positive environmental DNA assays, and occupancy probability was
estimated as 0.49-0.99 (Figure 5.9;
[[Page 13047]]
Freeman and Bumpers 2018, p. 9). Due to the lack of observations in
this watershed and a history of alteration from dams and
channelization, we consider it to have an unknown resiliency.
Regulatory Mechanisms and Conservation Efforts
The frecklebelly madtom is recognized as a species of concern in
all States where it occurs and is protected by State statute in four
States where it occurs. This species is listed as endangered by the
State of Georgia (GADNR 2015, p. 74) and threatened by the State of
Tennessee (TWRA 2015, appendix C). In general, the protections provided
to the frecklebelly madtom by Georgia and Tennessee prohibit direct
exploitation of the species without a permit within those States.
Beginning in 2017, the Private John Allen National Fish Hatchery
partnered with the Mississippi Department of Wildlife Fisheries and
Parks to collect individuals of frecklebelly madtom within that State
to study marking techniques, establish captive husbandry methods, and
conduct life-history studies. This effort has led to successful
propagation of the species, documented important components of the
species' life history, and collected data that can be used to develop
long-term, captive-propagation efforts, although no individuals have
been released. While the efforts occur outside of the range of the
Upper Coosa River DPS of frecklebelly madtom, species propagation
efforts may be beneficial to the conservation of the DPS.
Throughout the range of the species, portions of occupied rivers
and surrounding lands are owned and managed by State and Federal
entities that prioritize conservation as a management objective.
Generally, these entities help to maintain the natural ecosystem
functioning of a river by managing terrestrial areas in a more natural
state and limiting disturbance adjacent to rivers. However, properties
managed by the U.S. Forest Service, and the Dawson Forest Wildlife
Management Area (WMA) managed by the Georgia Department of Natural
Resources, are known to specifically consider and manage for the
conservation of aquatic species and their habitats. It is expected that
the Upper Coosa River DPS of frecklebelly madtom will be positively
affected by management on these lands. These conservation lands and the
adjacent rivers occupied by the Upper Coosa River DPS of frecklebelly
madtom include portions of the Conasauga River within the Cherokee
National Forest (U.S. Department of Agriculture (USDA) U.S. Forest
Service) in Georgia, and portions of the Etowah River within the Dawson
Forest WMA (Georgia Department of Natural Resources) in Georgia. In
addition, the Etowah River catchment area upstream of habitat occupied
by the frecklebelly madtom and managed by the Chattahoochee-Oconee
National Forest (USDA U.S. Forest Service) is expected to benefit the
species by providing good water quality to lower river reaches.
The Natural Resources Conservation Service (NRCS), USDA, designated
the Conasauga River as a Working Lands for Wildlife (WLFW) landscape in
2017 (USDA 2023, unpaginated), and will provide additional funds and
workforce to improve water quality and aquatic habitat in the
watershed. The project will provide technical and financial assistance
to help landowners improve water quality and help producers plan and
implement a variety of conservation activities or practices that
benefit aquatic species. The Upper Coosa River DPS of frecklebelly
madtom will likely benefit from water quality improvements in portions
of the Conasauga River that are affected by agricultural practices
implemented through the WLFW project.
Synergistic and Cumulative Effects
We note that, by using the SSA framework to guide our analysis of
the scientific information documented in the SSA report, we have not
only analyzed individual effects on the species, but we have also
analyzed their potential cumulative effects. We incorporate the
cumulative effects into our SSA analysis when we characterize the
current and future condition of the species. To assess the current and
future condition of the species, we undertake an iterative analysis
that encompasses and incorporates the threats individually and then
accumulates and evaluates the effects of all the factors that may be
influencing the species, including threats and conservation efforts.
Because the SSA framework considers not just the presence of the
factors, but to what degree they collectively influence risk to the
entire species, our assessment integrates the cumulative effects of the
factors and replaces a standalone cumulative effects analysis.
In addition to impacting frecklebelly madtom individually, it is
possible that several of the risk factors summarized above are acting
synergistically or cumulatively on the DPS. The combined impact of
multiple stressors is likely more harmful than a single stressor acting
alone. The dual stressors of climate change and direct human impact
have the potential to affect aquatic ecosystems by altering stream
flows and nutrient cycles, eliminating habitats, and changing community
structure (Moore et al. 1997, p. 942). Increased water temperatures and
a reduction in stream flow are the climate change effects that are most
likely to affect stream communities (Poff et al. 1997, entire), and
each of these variables is strongly influenced by land use patterns.
For example, in agricultural areas, lower precipitation may trigger
increased irrigation, resulting in reduced stream flow (Hatfield et al.
2008, pp. 41-43). In forested areas, trees influence instream
temperatures through the direct effects of shading. Reductions in
temperature by vegetative cover may be particularly important in low-
order streams, where canopy vegetation significantly reduces the
magnitude and variation of the stream temperature compared with that of
clear-cut areas (Ringler and Hall 1975, pp. 111-121).
Future Scenarios
To evaluate the future viability of the frecklebelly madtom and
address uncertainty associated with the degree and extent of potential
future stressors and their impacts to the madtom, we analyzed three
future scenarios and assessed the resiliency, representation, and
redundancy of the madtom for each scenario. We devised these scenarios
by identifying information on the following primary threats that are
anticipated to affect the frecklebelly madtom in the future:
agriculture and developed land use. A full description of the results
can be found in our proposed listing rule for the Upper Coosa River DPS
of the frecklebelly madtom (85 FR 74050; November 19, 2020).
We considered projected changes in agricultural and developed land
uses in assessing future resiliency of each resilience unit for the
Upper Coosa River DPS of frecklebelly madtom. We assessed these land
uses to understand the future impacts to habitat degradation and
destruction resulting from poor water quality, a primary threat to the
Upper Coosa River DPS of frecklebelly madtom. The three scenarios
capture the range of variability in the changing human population
footprint on the landscape and how frecklebelly madtom populations will
respond to these changing conditions. All three scenarios were
projected out to the year 2050 (i.e., 30 years), because we have good
confidence in our ability to forecast patterns in land-use change and
understand how these land uses will interact with the frecklebelly
madtom
[[Page 13048]]
and its habitat over this time period given the species' life span.
In our development of future scenarios, we used projected trends in
land use change from two models, the National Land Cover Database
(NLCD) and the Slope, Land use, Excluded, Urban, Transportation and
Hillshade (SLEUTH) model (Jantz et al. 2010, entire). Future
projections for agricultural land use were developed from NLCD data by
calculating a 15-year trend in agricultural land use change between
2001 and 2016 for each resilience unit and converting that to an annual
rate of agricultural land use change for each resilience unit. We used
the annual rate of agricultural land use change to project changes to
30 years from the present. The annual rate of agricultural land use
change was held constant for each resilience unit across all scenarios;
however, the rate of change in agricultural area varied among the
resilience units we evaluated in our analysis. We found an overall
decline in the amount of land used for agriculture in the Upper Coosa
River watershed. This result is consistent with broader trends that
show the amount of agricultural land is declining with time in the
eastern United States (Sayler et al. 2016, p. 12).
For our future developed land use projections, we used the SLEUTH
datasets from the year 2050 (closest to 30 years in the future) and
examined development across resilience units. We then developed three
scenarios that varied development probabilities: (1) low development,
(2) moderate development, and (3) high development. For the low
development scenario, we considered all areas predicted to be developed
at a greater than 90 percent probability (i.e., only including areas
that are almost certain to be developed, and therefore including the
least amount of total area to be developed); the moderate development
scenario considered all areas to be developed at a greater than 50
percent probability; and the high development scenario considered all
areas to be developed at a greater than 10 percent probability (i.e.,
including the majority of areas with any potential to be developed, and
therefore the most amount of area to be developed). The results of the
future projections for agriculture and developed land use were used to
estimate a composite land use score, and then using a rule set, we
categorized future resiliency into high, moderate, low, unknown, or
likely extirpated conditions.
In the low development scenario (Scenario 1), the Upper Coosa River
DPS of frecklebelly madtom was projected to have one unit with moderate
resiliency, one unit with low resiliency, and one unit with unknown
resiliency (see table 2, below). In terms of projected change from
current condition, the Etowah River resilience unit is projected to
become more developed, although the percent of developed land does not
reach a point where a change in resiliency is anticipated. All other
units are projected to retain their current resiliency under the low
development scenario.
Table 2--Future Resiliency of the Upper Coosa River DPS of Frecklebelly Madtom Resilience Units Under Three Future Scenarios
--------------------------------------------------------------------------------------------------------------------------------------------------------
Representation units Resilience units Current Scenario 1 Scenario 2 Scenario 3
--------------------------------------------------------------------------------------------------------------------------------------------------------
Upper Coosa River (F)............ Conasauga River (F1) Low................. Low................. Low................ Likely Extirpated.
Coosawattee River Unknown *........... Unknown *........... Unknown *.......... Unknown *.
(F2).
Etowah River (F3)... Moderate............ Moderate............ Low................ Low.
--------------------------------------------------------------------------------------------------------------------------------------------------------
* Resiliency determined as unknown since units are known only from eDNA data.
In the moderate development scenario (Scenario 2), the Upper Coosa
River DPS of frecklebelly madtom was projected to have two units with
low resiliency and one unit with unknown resiliency (see table 2,
above). In terms of projected change from current condition, the Etowah
River resilience unit is projected to become substantially more
developed under this scenario, and, therefore, this unit is projected
to decrease in resiliency from moderate to low. All other units are
projected to retain their current resiliency.
In the high development scenario (Scenario 3), the Upper Coosa
River DPS of frecklebelly madtom was projected to have one unit with
low resiliency, one unit that is likely extirpated, and one unit with
unknown resiliency (see table 2, above). In terms of projected change
from current condition, the Etowah River resilience unit is projected
to become substantially more developed under this scenario; therefore,
this unit is projected to decrease in resiliency from moderate to low.
The Conasauga River resilience unit is projected to decrease in
resiliency from low to being likely extirpated as a result of high
levels of both agriculture and developed land uses.
In summary, within the Upper Coosa River representation unit, the
Etowah River resilience unit is projected to become more developed by
2050 under all scenarios; therefore, in the moderate and high
development scenarios, the resiliency is projected to decrease from
moderate to low, making the unit more vulnerable to stochastic events.
The high level of development projected within riparian areas of the
Etowah River unit will lead to an increase in impervious area, which
could lead to further decreases in water quality and impact the
viability of frecklebelly madtom. In addition, although the
agricultural trend projects a decrease, the amount of land in
agricultural use is still projected to remain relatively high. High
levels of agriculture and developed land use projections in this unit
drive the projected low resiliency by the year 2050. In the Conasauga
River resilience unit, developed land use under the high development
scenario is projected to increase, and agriculture and developed land
use are projected to be at relatively high levels by 2050. However, the
Conasauga River resilience unit currently has low resiliency, and this
projected increase in development is anticipated to further impact
resiliency, resulting in likely extirpation of the frecklebelly madtom
from this unit.
Finally, the presence of frecklebelly madtom in the Coosawattee
River resilience unit is based on recent positive eDNA samples, and
these units have been assessed as having an unknown resiliency. In the
Coosawattee River resilience unit, there is projected to be relatively
high amounts of agricultural and developed land. If the species is
present there, this land use pattern could represent a threat to the
individuals occupying the unit.
In the Upper Coosa River representation unit, two resilience units
are projected to decrease in resiliency under the moderate and high
scenarios. Therefore, frecklebelly madtom in these units are at an
increased risk of extirpation from a catastrophic event.
[[Page 13049]]
Summary of Comments and Recommendations
In the November 19, 2020, proposed rule (85 FR 74050), we requested
that all interested parties submit written comments on the proposal by
January 19, 2021. We also contacted appropriate Federal and State
agencies, scientific experts and organizations, and other interested
parties and invited them to comment on the proposal. Newspapers notices
inviting general public comment were published in the Chattanooga Times
Free Press on November 20, 2020, and in the Dalton Citizen on November
27, 2020, and on December 4, 11, and 18, 2020. We did not receive any
requests for a public hearing. All substantive information we received
during the comment period has either been incorporated directly into
this final determination or is addressed below.
Peer Reviewer Comments
As discussed in Supporting Documents above, we received comments on
our SSA report from two peer reviewers. The frecklebelly madtom
(Noturus munitus) SSA report documents the results of our comprehensive
biological status review for the frecklebelly madtom species as a
whole. We reviewed all comments we received from the peer reviewers for
substantive issues and new information regarding the information
contained in the SSA report. The peer reviewers provided additional
information, clarifications, and suggestions to improve the final SSA
report. Peer reviewer comments on the SSA report are addressed in the
following summary and/or incorporated into the SSA report, as
appropriate.
Comment (1): One reviewer thought that our method to produce a
composite land-use threat classification should be adjusted such that
the classification score would be equivalent to the lowest score of its
constituent components rather than calculating a composite score that
is an average of its constituents, unless there is reason to justify
assessing otherwise.
Our response: Our stated goals for categorizing land-use threats
endeavored to avoid overestimating a negative relationship between the
species and land-use practices because, although this relationship is
expected to exist, the magnitude of this relationship is uncertain
without species-specific studies. Therefore, we did not change how we
calculated the composite land-use threat classification that is the
average of its constituents.
Comment (2): One reviewer commented that our future conditions
projections should more explicitly consider other factors of change
beyond land use and specified that impoundments and channelization
should be incorporated.
Our response: The threats of impoundments and channelization were
not included in the future conditions due to the high amount of
uncertainty regarding their implementation and operation in the future
landscape. At this time, we have no information to indicate that new
dams will be constructed or that impoundments will be created in the
future within the range of the Upper Coosa River DPS of frecklebelly
madtom. However, dams, impoundments, channelization, and channel
maintenance are considered as factors that contribute to current
resiliency, which help to inform future resiliency predictions.
Comment (3): One reviewer commented that our third ``rule'' in our
rule set to estimate future resilience described in section 6.1 of the
SSA report did not implement the same conservative approach described
elsewhere in our methods.
Our response: Our third ``rule'' reads: ``If composite land use
score dropped from good to fair, we adjusted the resiliency down to
moderate if the population is currently considered high; if the
population is currently considered moderate, no adjustment was made to
future resilience.'' Elsewhere in the SSA report, we described an
approach to avoid overestimating a negative response of the
frecklebelly madtom to changes in land cover and land use. The best
available science supports our interpretation that a fair land use
score aligns with a moderate population resiliency as discussed in the
SSA report (Service 2020, pp. 43-46). Furthermore, a predicted decline
in the composite land use score from good to fair is not likely to
cause substantial declines, indicating low resiliency, as demonstrated
by two resilience units that currently have a ``fair'' land use score
and are also currently classified as having ``good'' (Bogue Chitto
unit) or ``moderate'' (Etowah River unit) resiliency. However, as
described in our discussion of factors that influence viability of the
species, many of the stressors to the Upper Coosa River DPS originate
from land-use practices. Therefore, we determined it is likely that
changes in land-use practices that cause the land-use score to change
from good to fair would negatively affect abundance and distribution of
populations to the point that a resilience classification of
``moderate'' would more effectively describe the resilience unit.
Comment (4): In the draft of the SSA provided for peer review, we
considered resiliency units that were only known from eDNA data to have
a ``low'' resiliency. One reviewer provided additional information and
literature regarding uncertainty with eDNA surveying methods and
recommended that we should be more conservative in interpreting results
from studies that primarily surveyed for eDNA.
Our response: Based on the information provided, we agree with the
reviewer that the eDNA data we received should be interpreted more
conservatively. We included the citations provided by the reviewer and
considered resilience units where only eDNA was available to support
presence of the species to have an ``unknown'' current resiliency in
version 1.2 of the SSA and in this final rule.
State Agency Comments
We received comments from one State agency, the Georgia Forestry
Commission (GFC). Because we received several comments regarding
forestry considerations, we have integrated GFC comments and responses
under Public Comments, below.
Public Comments
We received input from five public commenters on the proposed rule.
One commenter was supportive of the proposal to list the Upper Coosa
River DPS of frecklebelly madtom as threatened and to designate
critical habitat. Four commenters offered neither support nor
opposition to the proposed rule. We did not receive any comments in
opposition of the proposed rule. We note the SSA report, a list of
literature referenced, the public comments, and the peer reviewer
reports, all of which helped inform this listing decision, are
available to the public on <a href="https://www.regulations.gov">https://www.regulations.gov</a> under Docket No.
FWS-R4-ES-2020-0058.
Comment (5): Three commenters responded directly to our request for
comments on whether we should add a provision to except incidental take
resulting from silvicultural practices and forest management activities
that implement State-approved best management practices (BMPs) and
comply with forest practice guidelines related to water quality
standards. All three commenters were supportive of inclusion of such a
provision and provided information on the effectiveness of BMPs to
maintain water quality conditions that support aquatic organisms, high
implementation rates of BMPs nationally and within the range of the
Upper Coosa River DPS of
[[Page 13050]]
frecklebelly madtom, and high compliance rates. One commenter (GFC)
provided information on BMP development for the State of Georgia and a
summary of data from the State's most recent BMP compliance survey,
conducted in 2019, which found high percentages of BMP implementation
and compliance. Two commenters provided information on BMP compliance
assurances that are provided through forest certification programs such
as Sustainable Forestry Initiative, American Tree Farm System, and
Forest Stewardship Council.
Our response: We recognize that silvicultural operations are widely
implemented in accordance with State-approved BMPs (as reviewed by
Cristan et al. 2018, entire), and the adherence to these BMPs broadly
protects water quality, particularly related to sedimentation (as
reviewed by Cristan et al. 2016, entire; Warrington et al. 2017,
entire; and Schilling et al. 2021, entire). Based on the information
provided, we agree that silvicultural practices and forest management
activities that implement State-approved BMPs and comply with forest
practice guidelines related to water quality standards can maintain
favorable habitat conditions for the species and that adding a
provision to except incidental take associated with these activities
can encourage cooperation by landowners and other affected parties in
implementing conservation measures. Therefore, we incorporated such a
provision into this rule.
Comment (6): One commenter recommended that the description of
designated critical habitat be clarified to state that critical habitat
is limited to the bankfull width of the designated streams.
Our response: The critical habitat proposed for designation was not
intended to include adjacent terrestrial components, and in the
proposed rule, we stated that critical habitat included river habitat
up to the ``bank full height.'' We agree that the term ``bankfull
width'' better describes the lateral dimension of the stream.
Therefore, we have revised the description of the critical habitat
designation to clarify that it does not extend beyond the bankfull
width of the designated rivers.
Comment (7): One commenter recommended we include a discussion of
not only the ability of forest management to retain adequate conditions
but also to improve forest conditions, which may rebound to the benefit
of species.
Our response: When used and properly implemented, BMPs can offer a
substantial improvement to water quality compared to forestry
operations where BMPs are not properly implemented. As noted in our
response to Comment (5), above, we identify normal silvicultural
practices that are carried out in accordance with State-approved BMPs
as an action that can maintain favorable habitat conditions for the
frecklebelly madtom, and we have added a provision to except from
prohibitions incidental take that may occur from such activities. In
this rule, we identified BMPs designed to reduce sedimentation,
erosion, and bank-side destruction and retention of sufficient canopy
cover along stream banks as examples of activities that could
ameliorate threats to physical or biological features essential to the
conservation of the frecklebelly madtom. In addition, as previously
noted, we recognize that silvicultural operations are widely
implemented in accordance with State-approved BMPs (as reviewed by
Cristan et al. 2018, entire), and the adherence to these BMPs broadly
protects water quality, particularly related to sedimentation (as
reviewed by Cristan et al. 2016, entire; Warrington et al. 2017,
entire; and Schilling et al. 2021, entire), to an extent that does not
impair the DPS's conservation.
Distinct Population Segment (DPS) Analysis
Please see our proposed rule (85 FR 74050; November 19, 2020) for
the full description of our DPS analysis. We did not receive
substantive additional information during the open comment period
regarding whether or not the Upper Coosa River DPS of the frecklebelly
madtom is a valid DPS.
Determination of Status for the Upper Coosa River DPS of Frecklebelly
Madtom
Section 4 of the Act (16 U.S.C. 1533) and its implementing
regulations (50 CFR part 424) set forth the procedures for determining
whether a species meets the definition of an endangered species or a
threatened species. The Act defines an ``endangered species'' as a
species that is in danger of extinction throughout all or a significant
portion of its range, and a ``threatened species'' as a species that is
likely to become an endangered species within the foreseeable future
throughout all or a significant portion of its range. The Act requires
that we determine whether a species meets the definition of endangered
species or threatened species because of any of the following factors:
(A) The present or threatened destruction, modification, or curtailment
of its habitat or range; (B) overutilization for commercial,
recreational, scientific, or educational purposes; (C) disease or
predation; (D) the inadequacy of existing regulatory mechanisms; or (E)
other natural or manmade factors affecting its continued existence.
Status Throughout All of Its Range
After evaluating threats to the species and assessing the
cumulative effect of the threats under the Act's section 4(a)(1)
factors, we have carefully assessed the best scientific and commercial
information available regarding the past, present, and future threats
to the Upper Coosa River DPS of the frecklebelly madtom. We considered
whether the Upper Coosa River DPS of the frecklebelly madtom is
presently in danger of extinction throughout all of its range. The
Upper Coosa River representation unit faces ongoing and future threats
from habitat destruction and degradation caused by agriculture and
developed land uses that result in poor water quality. Occurrence
records in the Etowah River resilience unit are considered similar to
historical occurrence records and occupancy did not decline between two
sample periods over a fourteen-year period in the 2000s (Freeman et al.
2017, pg. 427). Declines from historical conditions in frecklebelly
madtom occurrences and occupancy in the Conasauga River resilience unit
have been recorded and individuals of the species have not been
directly observed in the Conasauga River since 2000. Evidence of
frecklebelly madtom presence was first reported from the Coosawattee
River from eDNA collected in 2018. Until eDNA for the species was
recorded from this river, the frecklebelly madtom was not expected to
occur there, given that the history of physical modification to improve
navigation upstream, as well as hydropeaking at Carters Dam, has
negatively affected small-bodied, riffle-dwelling fish species (Freeman
et al. 2011, pp. 10-11). Our analysis of future conditions in the SSA
indicates that the frecklebelly madtom will likely continue to persist
into the future, albeit at reduced resiliency under some scenarios
(Service 2020, pp. 80-101). Therefore, it is not likely that the
current threats, or the cumulative effects of those threats, will
result in the extirpation of the DPS and we conclude that the DPS is
not currently in danger of extinction throughout all of its range.
In the future, projected urbanization and continued agricultural
activities will continue to impact the Upper Coosa River DPS and its
habitat by negatively affecting water quality (Factor A). Our
[[Page 13051]]
future scenarios project the Etowah River and Conasauga River units in
the Upper Coosa River representation unit to have low resiliency or to
become extirpated by the year 2050, and this would substantially
increase the risk of extirpation of the Upper Coosa River
representation unit from the aforementioned threats, as well as a
catastrophic or stochastic event, within the foreseeable future. In our
consideration of foreseeable future, we evaluated how far into the
future we could reliably predict the threats to this unit, as well as
the frecklebelly madtom's response to those threats. Based on the
modeling and scenarios (agriculture and developed land-use projections
to 2050) evaluated, we considered our ability to make reliable
predictions in the future and the uncertainty in how and to what degree
the unit could respond to those risk factors in this timeframe. We
determined a foreseeable future of 30 years for the Upper Coosa River
representation unit. Based on this information, we find the Upper Coosa
River DPS of the frecklebelly madtom is likely to become endangered
within the foreseeable future throughout all of its range.
Status Throughout a Significant Portion of Its Range
Under the Act and our implementing regulations, a species may
warrant listing if it is in danger of extinction or likely to become so
in the foreseeable future throughout all or a significant portion of
its range. The court in Center for Biological Diversity v. Everson, 435
F. Supp. 3d 69 (D.D.C. 2020) (Everson), vacated the aspect of the Final
Policy on Interpretation of the Phrase ``Significant Portion of Its
Range'' in the Endangered Species Act's Definitions of ``Endangered
Species'' and ``Threatened Species'' (Final Policy; 79 FR 37578; July
1, 2014) that provided that the Service does not undertake an analysis
of significant portions of a species' range if the species warrants
listing as threatened throughout all of its range. Therefore, we
proceed to evaluating whether the species (DPS) is endangered in a
significant portion of its range--that is, whether there is any portion
of the species' range for which both (1) the portion is significant;
and (2) the species is in danger of extinction in that portion.
Depending on the case, it might be more efficient for us to address the
``significance'' question or the ``status'' question first. We can
choose to address either question first. Regardless of which question
we address first, if we reach a negative answer with respect to the
first question that we address, we do not need to evaluate the other
question for that portion of the species' range.
Following the court's holding in Everson, we now consider whether
there are any significant portions of the species' range where the
species is in danger of extinction now (i.e., endangered). In
undertaking this analysis for the Upper Coosa River DPS of the
frecklebelly madtom, we chose to address the status question first--we
consider information pertaining to the geographic distribution of both
the species and the threats that the species faces to identify portions
of the range where the species may be endangered. We considered whether
the threats acting on the Upper Coosa River DPS are geographically
concentrated in any portion of the range at a biologically meaningful
scale. We examine the following threats that were considered to be
primary factors driving current resiliency of the Upper Coosa River
DPS: habitat destruction and degradation caused by agriculture and
developed land uses resulting in poor water quality (Factor A).
Habitat destruction and degradation from agriculture and developed
land uses resulting in poor water quality are occurring throughout the
range of the Upper Coosa River DPS. In the Conasauga River resilience
unit, current development and agriculture comprises 8.0 percent and
21.3 percent of the watershed, respectively (Service 2020, pp. 66-69).
In the Coosawattee River resilience unit, current development and
agriculture comprises 6.6 percent and 27.2 percent of the watershed,
respectively (Service 2020, pp. 66-69). Lastly, current development and
agriculture comprises 14.8 percent and 10.4 percent of the Etowah River
resilience unit (Service 2020, pp. 66-69). For the three resilience
units assessed within the DPS, approximately 25 to 33 percent of each
unit is currently impacted by agricultural and developed land uses.
Therefore, we found no concentration of threats in any portion of the
Upper Coosa River DPS's range at a biologically meaningful scale.
However, we identified one portion, the Conasauga River resilience
unit, which currently has low resiliency and where the frecklebelly
madtom has not been observed, despite repeated surveys, in at least 20
years. Environmental DNA surveys have detected the frecklebelly madtom
in the Conasauga River resilience unit, leading us to determine the
species remains present there. However, the lack of recent occurrence
data coupled with projections that this unit will become extirpated
within the foreseeable future led us to find there is substantial
information that the Conasauga River resilience unit may be endangered.
We then proceeded to consider whether this portion of the range
(i.e., the Conasauga River resilience unit) is significant. For
purposes of this analysis, the Service is examining for significant
portions of the range by applying any reasonable definition of
``significant.'' We asked whether any portions of the range may be
biologically meaningful in terms of the resiliency, redundancy, or
representation of the entity being evaluated. This approach is
consistent with the Act, our implementing regulations, our policies,
and case law.
The Upper Coosa River representation unit occurs in the Ridge and
Valley (Conasauga River resilience unit) and Piedmont Upland (Etowah
River resilience unit) physiographic provinces. The Conasauga River
resilience unit occurs in the Ridge and Valley province, which contains
a series of valleys (lowlands) and ridges (mountains) through the
Appalachians (Fenneman 1928, p. 296). The Etowah River resilience unit
occurs in the Piedmont province, which contains lowlands (plains) and
highlands (plateaus) with isolated mountains (Fenneman 1928, p. 293).
These two resilience units may occur in two physiographic provinces;
however, the geography in both similarly represents environmental and
physical conditions of lowlands and highlands associated with higher
elevations. Frecklebelly madtoms collected in both the Conasauga River
and Etowah River resilience units are strongly associated with river
weed (Podostemum spp.) used for cover and shelter. Neither unit acts as
a refugia or an important spawning ground for the DPS. In addition, the
Conasauga River resilience unit watershed is experiencing similar
impacts from development and agricultural land use to the Etowah River
resilience unit. Because the Upper Coosa River DPS of the frecklebelly
madtom occurs in rivers with similar physical and environmental
conditions, and the Conasauga River resilience unit portion is
experiencing similar water quality impacts as the remainder of the
DPS's range, there is no unique observable environmental contribution
by this portion that would make it a significant portion of the range
of the Upper Coosa River DPS.
Overall, there is little evidence to indicate that the Conasauga
River portion of the range has higher quality or higher value habitat
or any other special importance to the species' conservation in the
Upper Coosa River DPS. We considered if the Conasauga
[[Page 13052]]
River portion contributes to biological significance in any way listed
above and did not find this portion to be prominent or noteworthy in a
manner that would suggest it is a significant portion of the DPS's
range. Thus, based on the best available information, we find that this
portion of the DPS's range is not significant. Therefore, no portion of
the Upper Coosa River DPS's range provides a basis for determining that
it is in danger of extinction in a significant portion of its range,
and we determine that the species is likely to become in danger of
extinction within the foreseeable future throughout all of its range.
This does not conflict with the courts' holdings in Desert Survivors v.
U.S. Department of the Interior, 321 F. Supp. 3d 1011, 1070-74 (N.D.
Cal. 2018) and Center for Biological Diversity v. Jewell, 248 F. Supp.
3d 946, 959 (D. Ariz. 2017) because, in reaching this conclusion, we
did not apply the aspects of the Final Policy's definition of
``significant'' that those court decisions held were invalid.
Determination of Status
Based on the best available scientific and commercial information
as presented in the SSA report and this finding, we find that the Upper
Coosa River representation unit is likely to become endangered within
the foreseeable future throughout all of its range. Therefore, we are
listing the Upper Coosa River DPS of the frecklebelly madtom as a
threatened species throughout all of its range in accordance with
sections 3(20) and 4(a)(1) of the Act.
Available Conservation Measures
Conservation measures provided to species listed as endangered or
threatened species under the Act include recognition as a listed
species, planning and implementation of recovery actions, requirements
for Federal protection, and prohibitions against certain practices.
Recognition through listing results in public awareness, and
conservation by Federal, State, Tribal, and local agencies, private
organizations, and individuals. The Act encourages cooperation with the
States and other countries and calls for recovery actions to be carried
out for listed species. The protection required by Federal agencies and
the prohibitions against certain activities are discussed, in part,
below.
The primary purpose of the Act is the conservation of endangered
and threatened species and the ecosystems upon which they depend. The
ultimate goal of such conservation efforts is the recovery of these
listed species, so that they no longer need the protective measures of
the Act. Section 4(f) of the Act calls for the Service to develop and
implement recovery plans for the conservation of endangered and
threatened species. The goal of this process is to restore listed
species to a point where they are secure, self-sustaining, and
functioning components of their ecosystems.
Recovery planning consists of preparing draft and final recovery
plans, beginning with the development of a recovery outline and making
it available to the public within 30 days of a final listing
determination. The recovery outline guides the immediate implementation
of urgent recovery actions and describes the process to be used to
develop a recovery plan. Revisions of the plan may be done to address
continuing or new threats to the species, as new substantive
information becomes available. The recovery plan also identifies
recovery criteria for review of when a species may be ready for
reclassification from endangered to threatened (``downlisting'') or
removal from protected status (``delisting''), and methods for
monitoring recovery progress. Recovery plans also establish a framework
for agencies to coordinate their recovery efforts and provide estimates
of the cost of implementing recovery tasks. Recovery teams (composed of
species experts, Federal and State agencies, nongovernmental
organizations, and stakeholders) are often established to develop
recovery plans. When completed, the recovery outline, draft recovery
plan, and the final recovery plan will be available on our website
(<a href="https://www.fws.gov/program/endangered-species">https://www.fws.gov/program/endangered-species</a>), or from our Alabama
Ecological Services Field Office (see FOR FURTHER INFORMATION CONTACT).
Implementation of recovery actions generally requires the
participation of a broad range of partners, including other Federal
agencies, States, Tribes, nongovernmental organizations, businesses,
and private landowners. Examples of recovery actions include habitat
restoration (e.g., restoration of native vegetation), research, captive
propagation and reintroduction, and outreach and education. The
recovery of many listed species cannot be accomplished solely on
Federal lands because their range may occur primarily or solely on non-
Federal lands. To achieve recovery of these species requires
cooperative conservation efforts on private, State, and Tribal lands.
Following publication of this final rule, funding for recovery
actions will be available from a variety of sources, including Federal
budgets, State programs, and cost-share grants for non-Federal
landowners, the academic community, and nongovernmental organizations.
In addition, pursuant to section 6 of the Act, the States of Georgia
and Tennessee will be eligible for Federal funds to implement
management actions that promote the protection or recovery of the Upper
Coosa River DPS of the frecklebelly madtom. Information on our grant
programs that are available to aid species recovery can be found at:
<a href="https://www.fws.gov/service/financial-assistance">https://www.fws.gov/service/financial-assistance</a>.
Please let us know if you are interested in participating in
recovery efforts for the Upper Coosa River DPS. Additionally, we invite
you to submit any new information on this species whenever it becomes
available and any information you may have for recovery planning
purposes (see FOR FURTHER INFORMATION CONTACT, above).
Section 7(a) of the Act requires Federal agencies to evaluate their
actions with respect to any species that is proposed or listed as an
endangered or threatened species and with respect to its critical
habitat, if any is designated. Regulations implementing this
interagency cooperation provision of the Act are codified at 50 CFR
part 402. Section 7(a)(2) of the Act requires Federal agencies to
ensure that activities they authorize, fund, or carry out are not
likely to jeopardize the continued existence of the species or destroy
or adversely modify its critical habitat. If a Federal action may
affect a listed species or its critical habitat, the responsible
Federal agency must enter into consultation with the Service.
Federal agency actions within the range of the Upper Coosa River
DPS of the frecklebelly madtom habitat that may require conference or
consultation or both as described in the preceding paragraph include
management and any other landscape-altering activities on Federal lands
administered, or on private lands seeking funding by Federal agencies,
which may include, but are not limited to, the USDA U.S. Forest
Service, USDA Farm Service Agency, USDA Natural Resources Conservation
Service, and Federal Emergency Disaster Service; issuance of section
404 Clean Water Act (33 U.S.C. 1251 et seq.) permits by the U.S. Army
Corps of Engineers; and construction and maintenance of roads or
highways by the Federal Highway Administration.
It is our policy, as published in the Federal Register on July 1,
1994 (59 FR 34272), to identify to the maximum extent practicable at
the time a species is listed, those activities that would or would not
constitute a violation of
[[Page 13053]]
section 9 of the Act. The intent of this policy is to increase public
awareness of the effect of a final listing on proposed and ongoing
activities within the range of a listed species. The discussion below
regarding protective regulations under section 4(d) of the Act complies
with our policy.
II. Final Rule Issued Under Section 4(d) of the Act
Background
Section 4(d) of the Act contains two sentences. The first sentence
states that the Secretary shall issue such regulations as she deems
necessary and advisable to provide for the conservation of species
listed as threatened. The U.S. Supreme Court has noted that statutory
language like ``necessary and advisable'' demonstrates a large degree
of deference to the agency (see Webster v. Doe, 486 U.S. 592 (1988)).
Conservation is defined in the Act to mean the use of all methods and
procedures which are necessary to bring any endangered species or
threatened species to the point at which the measures provided pursuant
to the Act are no longer necessary. Additionally, the second sentence
of section 4(d) of the Act states that the Secretary may by regulation
prohibit with respect to any threatened species any act prohibited
under section 9(a)(1), in the case of fish or wildlife, or section
9(a)(2), in the case of plants. Thus, the combination of the two
sentences of section 4(d) provides the Secretary with wide latitude of
discretion to select and promulgate appropriate regulations tailored to
the specific conservation needs of the threatened species. The second
sentence grants particularly broad discretion to the Service when
adopting the prohibitions under section 9.
The courts have recognized the extent of the Secretary's discretion
under this standard to develop rules that are appropriate for the
conservation of a species. For example, courts have upheld rules
developed under section 4(d) as a valid exercise of agency authority
where they prohibited take of threatened wildlife or include a limited
taking prohibition (see Alsea Valley Alliance v. Lautenbacher, 2007
U.S. Dist. Lexis 60203 (D. Or. 2007); Washington Environmental Council
v. National Marine Fisheries Service, 2002 U.S. Dist. Lexis 5432 (W.D.
Wash. 2002)). Courts have also upheld 4(d) rules that do not address
all of the threats a species faces (see State of Louisiana v. Verity,
853 F.2d 322 (5th Cir. 1988)). As noted in the legislative history when
the Act was initially enacted, ``once an animal is on the threatened
list, the Secretary has an almost infinite number of options available
to [her] with regard to the permitted activities for those species.
[She] may, for example, permit taking, but not importation of such
species, or [she] may choose to forbid both taking and importation but
allow the transportation of such species'' (H.R. Rep. No. 412, 93rd
Cong., 1st Sess. 1973).
Exercising our authority under section 4(d), we have developed a
rule that is designed to address the specific threats and conservation
needs for the Upper Coosa River DPS of the frecklebelly madtom.
Although the statute does not require us to make a ``necessary and
advisable'' finding with respect to the adoption of specific
prohibitions under section 9, we find that this rule as a whole
satisfies the requirement in section 4(d) of the Act to issue
regulations deemed necessary and advisable to provide for the
conservation of the Upper Coosa River DPS of frecklebelly madtom. As
discussed above under Summary of Biological Status and Threats, we have
concluded that the Upper Coosa River DPS is likely to become in danger
of extinction within the foreseeable future primarily due to habitat
destruction and degradation from agriculture and developed land uses
that result in poor water quality. The provisions of this 4(d) rule
will promote conservation of the Upper Coosa River DPS by encouraging
management of the landscape in ways that meet both watershed and
riparian management purposes and the conservation needs of the Upper
Coosa River DPS. The provisions of this rule are one of many tools that
we will use to promote the conservation of the Upper Coosa River DPS.
Section 7(a)(2) of the Act requires Federal agencies, including the
Service, to ensure that any action they fund, authorize, or carry out
is not likely to jeopardize the continued existence of any endangered
species or threatened species or result in the destruction or adverse
modification of designated critical habitat of such species.
If a Federal action may affect a listed species or its critical
habitat, the responsible Federal agency (action agency) must enter into
consultation with us. Examples of actions that are subject to the
section 7 consultation process are actions on State, Tribal, local, or
private lands that require a Federal permit (such as a permit from the
U.S. Army Corps of Engineers under section 404 of the Clean Water Act
(33 U.S.C. 1251 et seq.) or a permit from the Service under section 10
of the Act) or that involve some other Federal action (such as funding
from the Federal Highway Administration, Federal Aviation
Administration, or the Federal Emergency Management Agency). Federal
actions not affecting listed species or critical habitat--and actions
on State, Tribal, local, or private lands that are not federally
funded, authorized, or carried out by a Federal agency--do not require
section 7 consultation.
This obligation does not change in any way for a threatened species
with a species-specific 4(d) rule. Actions that result in a
determination by a Federal agency of ``not likely to adversely affect''
continue to require the Service's written concurrence and actions that
are ``likely to adversely affect'' a species require formal
consultation and the formulation of a biological opinion.
Provisions of the 4(d) Rule
This 4(d) rule will provide for the conservation of the Upper Coosa
River DPS by prohibiting the following activities, except as otherwise
authorized or permitted: importing or exporting; take; possession and
other acts with unlawfully taken specimens; delivering, receiving,
carrying, transporting, or shipping in interstate or foreign commerce
in the course of commercial activity; or selling or offering for sale
in interstate or foreign commerce. We also include several exceptions
to these prohibitions, which, along with the prohibitions, are set
forth under Regulation Promulgation, below.
Under the Act, ``take'' means to harass, harm, pursue, hunt, shoot,
wound, kill, trap, capture, or collect, or to attempt to engage in any
such conduct. Some of these provisions have been further defined in
regulation at 50 CFR 17.3. Take can result knowingly or otherwise, by
direct and indirect impacts, intentionally or incidentally. Protecting
the Upper Coosa River DPS of the frecklebelly madtom from direct forms
of take, such as physical injury or killing, whether incidental or
intentional, will help preserve and recover the remaining populations
of the DPS. Therefore, we prohibit intentional take of frecklebelly
madtom, including, but not limited to, capturing, handling, trapping,
collecting, or other activities. Also, as discussed above under Summary
of Biological Status and Threats, habitat destruction and degradation
from agriculture and developed land uses are affecting the status of
the Upper Coosa River DPS. Across the DPS's range, stream and water
quality have been degraded physically by sedimentation, pollution,
contaminants, impoundments,
[[Page 13054]]
channelization, destruction of riparian habitat, and loss of riparian
vegetation due to agriculture activities and development within the
watershed and riparian areas. Other habitat or hydrological alteration,
such as ditching, draining, stream diversion, or diversion or
alteration of surface or ground water flow into or out of the stream,
will impact the habitat of the DPS. Therefore, we prohibit actions that
result in the incidental take of the Upper Coosa River DPS by
destroying, altering, or degrading the habitat in the manner described
above. Regulating these activities will help conserve the DPS slow the
rate of population decline, and decrease synergistic, negative effects
from other stressors.
Exceptions to Prohibitions
In addition to certain statutory exceptions from prohibitions,
which are found in sections 9 and 10 of the Act, the 4(d) rule includes
the following exceptions to the prohibitions:
Permitted Activities
We may issue permits to carry out otherwise prohibited activities,
including those described above, involving threatened wildlife under
certain circumstances. Regulations governing permits are codified at 50
CFR 17.32. With regard to threatened wildlife, a permit may be issued
for the following purposes: For scientific purposes, to enhance
propagation or survival, for economic hardship, for zoological
exhibition, for educational purposes, for incidental taking, or for
special purposes consistent with the Act. The Act also contains certain
exemptions from the prohibitions, which are found in sections 9 and 10
of the Act.
Activities Not Requiring a Permit
We recognize the special and unique relationship with our State
natural resource agency partners in contributing to conservation of
listed species. State agencies often possess scientific data and
valuable expertise on the status and distribution of endangered,
threatened, and candidate species of wildlife and plants. State
agencies, because of their authorities and their close working
relationships with local governments and landowners, are in a unique
position to assist the Service in implementing all aspects of the Act.
In this regard, section 6 of the Act provides that the Service shall
cooperate to the maximum extent practicable with the States in carrying
out programs authorized by the Act. Therefore, any qualified employee
or agent of a State conservation agency that is a party to a
cooperative agreement with the Service in accordance with section 6(c)
of the Act, who is designated by his or her agency for such purposes,
will be able to conduct activities designed to conserve the Upper Coosa
River DPS that may result in otherwise prohibited take without
additional authorization.
In this rule, we allow take of the individuals of the Upper Coosa
River DPS without a permit by any employee or agent of the Service or a
State conservation agency designated by his agency for such purposes
and when acting in the course of his official duties if such action is
necessary to aid a sick, injured or orphaned specimen; dispose of a
dead specimen; or salvage a dead specimen which may be useful for
scientific study. In addition, Federal and State law enforcement
officers may possess, deliver, carry, transport, or ship specimens
taken in violation of the Act as necessary.
Channel Restoration, Streambank Stabilization, and Other Activities
Channel restoration is used as a technique to restore degraded,
physically unstable streams back to natural, physically stable,
ecologically functioning streams. When done correctly, these projects
reduce, ameliorate, or fix unnatural erosion, head cutting, and/or
sedimentation. Thus, channel restoration projects result in
geomorphically stable stream channels that maintain the appropriate
lateral dimensions, longitudinal profiles, and sinuosity patterns over
time without an aggrading or degrading bed elevation and include stable
riffle-run-pool complexes that consist of silt-free gravel, coarse
sand, cobble, boulders, woody structure, and river weed (Podostemum
spp.). This provision of the 4(d) rule for channel restoration will
promote conservation of the Upper Coosa River DPS by excepting
incidental take resulting from activities that improve channel
conditions and restore degraded, physically unstable streams or stream
segments. We anticipate these activities will advance ecological
conditions within a watershed to a more natural state that will benefit
the frecklebelly madtom.
Streambank stabilization is used as a habitat restoration technique
to restore degraded and eroded streambanks back to natively vegetated,
stable streambanks. When done correctly, these projects reduce bank
erosion and instream sedimentation, resulting in improved habitat
conditions for aquatic species. Therefore, we will allow streambanks to
be stabilized using the following bioengineering methods: native live
stakes (live, vegetative cuttings inserted or tamped into the ground in
a manner that allows the stake to take root and grow), native live
fascines (live branch cuttings, usually willows, bound together into
long, cigar-shaped bundles), or native brush layering (cuttings or
branches of easily rooted tree species layered between successive lifts
of soil fill). All methods must use plant species native to the region
where the project is being conducted. These methods must not include
the sole use of quarried rock (rip-rap) or the use of rock baskets or
gabion structures, but they could be used in conjunction with the above
bioengineering methods. This provision of the 4(d) rule for streambank
stabilization will promote conservation of the Upper Coosa River DPS by
excepting from the prohibition incidental take resulting from
activities that will improve habitat conditions by reducing bank
erosion and instream sedimentation.
Improving watershed, riparian, and habitat conditions within the
range of the Upper Coosa River DPS will provide for the conservation of
the DPS and will likely increase resiliency throughout. Activities that
would benefit the DPS, if they do not alter habitats known to be used
by the DPS beyond its tolerances, are implemented with a primary
objective of improving environmental conditions to support the aquatic
biodiversity of flowing water habitats. This provision of the 4(d) rule
for other activities will promote conservation of the Upper Coosa River
DPS by excepting from the prohibition incidental take resulting from
activities as described above.
Silviculture and Forest Management Under State-Approved Best Management
Practices
We are excepting incidental take resulting from silviculture and
forest management activities that use State-approved BMPs to protect
water and sediment quality and stream and riparian habitat. Best
management practices are designed to reduce sedimentation, erosion, and
bank destruction, thereby protecting instream habitat for the species.
We recognize that silvicultural operations are widely implemented in
accordance with State-approved BMPs (as reviewed by Cristan et al.
2018, entire), and the adherence to these BMPs broadly protects water
quality, particularly related to sedimentation (as reviewed by Cristan
et al. 2016, entire; Warrington et al. 2017, entire; and Schilling et
al. 2021, entire). This provision of the 4(d) rule for silviculture and
forest management activities will promote conservation of
[[Page 13055]]
the Upper Coosa River DPS by excepting from the prohibition incidental
take resulting from activities that use State-approved BMPs.
Relation of 4(d) Rule to Available Conservation Measures
Nothing in this 4(d) rule would change in any way the recovery
planning provisions of section 4(f) of the Act, the consultation
requirements under section 7 of the Act, or the ability of the Service
to enter into partnerships for the management and protection of the
Upper Coosa River DPS. However, interagency cooperation may be further
streamlined through planned programmatic consultations for the species
between Federal agencies and the Service, where appropriate.
III. Critical Habitat
Background
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. 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 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 and commercial 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 from the SSA report and 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 the 4(d) rule. 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 DPS.
[[Page 13056]]
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, habitat conservation
plans (HCPs), or other species conservation planning efforts if new
information available at the time of these planning efforts calls for a
different outcome.
Section 4(a)(3) of the Act, as amended, and implementing
regulations (50 CFR 424.12) require that, to the maximum extent prudent
and determinable, the Secretary shall designate critical habitat at the
time the species is determined to be an endangered or threatened
species.
As discussed earlier in this document, there is currently no
imminent threat of take attributed to collection or vandalism
identified under Factor B for this species, and identification and
mapping of critical habitat is not expected to initiate any such
threat. In our SSA and listing determination for the Upper Coosa River
DPS of the frecklebelly madtom, we determined that the present or
threatened destruction, modification, or curtailment of habitat or
range is a threat to the Upper Coosa River DPS and that those threats
in some way can be addressed by section 7(a)(2) consultation measures.
The DPS occurs wholly in the jurisdiction of the United States, and we
are able to identify areas that meet the definition of critical
habitat. Therefore, because none of the circumstances enumerated in our
regulations at 50 CFR 424.12(a)(1) have been met and because there are
no other circumstances the Secretary has identified for which this
designation of critical habitat would be not prudent, we have
determined that the designation of critical habitat is prudent for the
Upper Coosa River DPS.
Having determined that designation is prudent, under section
4(a)(3) of the Act we must find whether critical habitat for the Upper
Coosa River DPS of the frecklebelly madtom is determinable. We reviewed
the available information pertaining to the biological needs of the
Upper Coosa River DPS and habitat characteristics where this DPS is
located. This and other information represent the best scientific data
available and led us to conclude that the designation of critical
habitat is determinable for the Upper Coosa River DPS.
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 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; food,
water, air, light, minerals, or other nutritional or physiological
requirements; cover or shelter; sites for breeding, reproduction, or
rearing (or development) of offspring; and habitats that are protected
from disturbance.
The Upper Coosa River DPS is a population segment of the
frecklebelly madtom and occurs in the upper Coosa River system in the
Piedmont Upland physiographic province in Georgia and the Ridge and
Valley physiographic province in Georgia and Tennessee. The primary
habitat features that influence the resiliency of the Upper Coosa River
DPS include flowing water, suitable water quality, substrate, cover,
and habitat connectivity. These features are essential to the survival
and reproduction of individuals at all life stages.
As stated above, the frecklebelly madtom occurs in small to large,
swift-flowing rivers consisting of stable riffle-run pool complexes and
with a substrate that consists of silt-free gravel, coarse sand,
cobble, and boulders. The species needs unimpounded flowing water to
successfully reproduce and maintain populations. In addition, streams
must have an adequate flow to maintain instream habitats and
connectivity of streams with the floodplain, which is important to
allow nutrient and sediment exchange for habitat maintenance. Stream
reaches with suitable habitat must be large enough and have
connectivity to support enough frecklebelly madtoms to ensure
individuals can find a mate and reproduce (Service 2020, p. 17). Cover
is an important component of suitable habitat for the frecklebelly
madtom and provides shelter from predators, space to forage, and space
to nest. The species is often found in or near aquatic vegetation, such
as river weed (Podostemum spp.), woody structures, and under large,
flat rocks. In addition, nesting sites for madtoms are typically
cavities under natural material (rocks, logs, empty mussel shells).
Thus, small to large flowing rivers with appropriate substrate, cover,
and connectivity are important for the growth, reproduction, and
survival of the frecklebelly madtom.
The frecklebelly madtom, like other benthic species, is sensitive
to poor water quality (Warren et al. 1997, p. 125) and needs clean,
flowing water to survive. Changes in water chemistry and flow patterns,
resulting in a decrease in water quality and quantity, have detrimental
effects on madtom ecology, because they can render aquatic habitat
unsuitable for occupancy. In addition, the frecklebelly madtom is
intolerant of excessive sedimentation (Shepard 2004, p. 221). The
minimum and maximum standards of water quality and quantity conditions
that are conducive to the presence of frecklebelly madtom are not well
known. However, muddy waterways, lentic streams (still water), and poor
water quality conditions are not desirable for maintaining suitable
habitat for the species. Therefore, appropriate water and sediment
quality are necessary to sustain growth,
[[Page 13057]]
reproduction, and viability of the frecklebelly madtom and are
essential to the conservation of the species.
The species is an opportunistic insectivore feeding on a variety of
aquatic insects and larvae, including caddisflies, mayflies,
blackflies, and midges (Miller 1984, p. 9). Seasonal changes found in
diet probably reflect differences in prey availability (Miller 1984, p.
11). Therefore, a diverse and available aquatic macroinvertebrate
assemblage is important to the growth and survival of the frecklebelly
madtom.
More detail of the habitat and life-history needs of the
frecklebelly madtom and a thorough review are available in our proposed
rule (85 FR 74050; November 19, 2020) and in the SSA report (Service
2020, entire; available on <a href="https://www.regulations.gov">https://www.regulations.gov</a> under Docket No.
FWS-R4-ES-2020-0058). A summary of the resource needs of the Upper
Coosa River DPS is provided below in table 3.
Table 3--Resource Needs for the Upper Coosa River DPS of the
Frecklebelly Madtom To Complete Each Life Stage
------------------------------------------------------------------------
Life stage Resources needed
------------------------------------------------------------------------
Fertilized eggs........... Flowing water with good water quality;
cavities for shelter; parental care.
Larvae.................... Flowing water with good water quality; low
predation, disease, and environmental
stress; adequate food availability.
Juveniles................. Flowing water with good water quality; low
predation, disease, and environmental
stress; structure (vegetation, rock,
substrate) for shelter and forage; adequate
food availability.
Adults.................... Flowing water with adequate water quality;
structure (vegetation, rock, substrate) for
shelter, forage, and nesting; cavities for
nesting; appropriate male to female
demographics; adequate food availability.
------------------------------------------------------------------------
Summary of Essential Physical or Biological Features
We derive the specific physical or biological features essential to
the conservation of Upper Coosa River DPS of the frecklebelly madtom
from studies of the species' habitat, ecology, and life history as
described above. Additional information can be found in the SSA report
(Service 2020, entire; available on <a href="https://www.regulations.gov">https://www.regulations.gov</a> under
Docket No. FWS-R4-ES-2020-0058). We have determined that the following
physical or biological features are essential to the conservation of
Upper Coosa River DPS of the frecklebelly madtom:
(1) Geomorphically stable, medium to large streams with:
(a) Stable stream channels that maintain lateral dimensions,
longitudinal profiles, and sinuosity patterns over time without an
aggrading or degrading bed elevation; and
(b) Banks with intact riparian cover to maintain stream morphology
and reduce erosion and sediment inputs.
(2) Connected instream habitats that:
(a) Include stable riffle-run pool complexes;
(b) Have abundant cobble, boulders, and woody structures, or other
suitable cover used for nesting and river weed (Podostemum spp.) that
is free of silt.
(3) Adequate flows, or a hydrologic flow regime (which includes the
severity, frequency, duration, and seasonality of discharge over time),
necessary to maintain instream habitats and to maintain connectivity of
streams with the floodplain, allowing the exchange of nutrients and
sediment for maintenance of the fish's habitat, food availability, and
ample oxygenated flow for spawning and nesting habitat.
(4) Appropriate water and sediment quality (including, but not
limited to, conductivity; hardness; turbidity; temperature; pH;
ammonia; heavy metals; pesticides; animal waste products; and nitrogen,
phosphorus, and potassium fertilizers) necessary to sustain natural
physiological processes for normal behavior, growth, and viability of
all life stages.
(5) Diversity and availability of aquatic macroinvertebrate prey
items, which include larval midges, mayflies, caddisflies, dragonflies,
and beetles.
Special Management Considerations or Protection
When designating critical habitat, we assess whether the specific
areas within the geographical area occupied by the species at the time
of listing contain features which are essential to the conservation of
the species and which may require special management considerations or
protection. The features essential to the conservation of the Upper
Coosa River DPS may require special management considerations or
protections to reduce the following threats: (1) Urbanization of the
landscape, including (but not limited to) land conversion for urban and
commercial use, infrastructure (roads, bridges, utilities), and urban
water uses (water supply reservoirs, wastewater treatment); (2)
nutrient pollution from agricultural activities that impact water
quantity and quality; (3) significant alteration of water quality; (4)
culvert and pipe installation that creates barriers to movement; (5)
other watershed and floodplain disturbances that release sediments or
nutrients into the water or fill suitable spawning habitat; and (6)
creation of reservoirs that convert permanently flowing streams and/or
streams that hold water into lake or pond-like (lentic) environments.
Management activities that could ameliorate these threats include,
but are not limited to, use of best management practices (BMPs)
designed to reduce sedimentation, erosion, and bank-side destruction;
protection of riparian corridors and suitable spawning habitat;
retention of sufficient canopy cover along banks; moderation of surface
and ground water withdrawals to maintain natural flow regimes;
increased use of stormwater management and reduction of stormwater
flows into the stream systems; placement of culverts or bridges that
accommodate fish passage; and reduction of other watershed and
floodplain disturbances that release sediments, pollutants, or
nutrients into the water.
Criteria Used To Identify Critical Habitat
As required by section 4(b)(2) of the Act, we use the best
scientific data available to designate critical habitat. In accordance
with the Act and our implementing regulations at 50 CFR 424.12(b), we
review available information pertaining to the habitat requirements of
the species and identify specific areas within the geographical area
occupied by the species at the time of listing and any specific areas
outside the geographical area occupied by the species to be considered
for designation as critical habitat. To determine and select
appropriate occupied areas that contain the physical or biological
features essential to the conservation of the species or areas
otherwise essential for the conservation of the Upper Coosa River DPS
of the frecklebelly madtom, we developed a conservation strategy
[[Page 13058]]
for the DPS. The goal of the conservation strategy for the Upper Coosa
River DPS of the frecklebelly madtom is to recover the DPS to the point
where the protections of the Act are no longer necessary. The role of
critical habitat in achieving this conservation goal is to identify the
specific areas within the Upper Coosa River DPS's range that provide
essential physical or biological features, without which rangewide
resiliency, redundancy, and representation could not be achieved. We
anticipate that recovery will require continued protection of existing
resilience units and habitats that contribute to the viability of the
DPS, as well as ensuring there are adequate numbers of fish in stable
units and that at least one sufficiently resilient unit occurs in each
of the physiographic provinces (Piedmont Upland and Ridge and Valley).
This will help to ensure that catastrophic events, such as floods,
cannot simultaneously affect all known resilience units of the DPS.
Recovery considerations, such as maintaining existing genetic diversity
and striving for representation of both physiographic provinces in the
DPS's current range, were considered.
In developing our conservation strategy for determining which areas
to include as critical habitat for the Upper Coosa River DPS, we
focused on the existing resilience units and habitats that are
presently contributing to the viability of the species or historical
units in which resiliency can be improved such that they contribute to
the viability of the species. In summary, we identified streams and
rivers that are both: (1) Currently occupied streams and rivers within
the known historical range of the Upper Coosa River DPS and (2) those
areas that have retained the physical or biological features identified
earlier that will allow for the maintenance and expansion of existing
populations. For the purposes of the critical habitat designation, and
for areas within the geographic area occupied by the species at the
time of listing, we determined a unit to be occupied if it contains a
recent (i.e., observed in the past 11 years (since 2009)) observation
(collection) or eDNA record that supports the presence of the species.
Within those areas, we delineated the boundaries of critical habitat
units using the following process:
We evaluated habitat suitability of stream and river channels
within the geographical area occupied at the time of listing, and
retained for further consideration those streams that contain one or
more of the physical and biological features to support life-history
functions essential to conservation of the Upper Coosa River DPS. We
determined the end points of river units by evaluating the presence or
absence of appropriate physical and biological features. Our upstream
cutoff points for each stream are located approximately where the
physiographic province that the frecklebelly madtom occupies begins
(where the Conasauga River flows out of the Blue Ridge and into the
Ridge and Valley physiographic province and where the Etowah River
flows out of the Blue Ridge and into the Piedmont Upland physiographic
province) and selected downstream cutoff points that omit areas where
habitat conditions are less favorable for the species (i.e., do not
contain the physical or biological features essential to the
conservation of the DPS).
Based on this analysis, the following rivers meet criteria for
areas occupied by the species at the time of listing: Conasauga River,
Coosawattee River, and Etowah River. These areas include the two
rivers, Conasauga River and Etowah River, known to have been occupied
by the DPS historically. Environmental DNA of the frecklebelly madtom
was detected in the Conasauga River in 2017 and 2018, which meets the
criteria for consideration as an area occupied by the species at the
time of listing. In the Etowah River, occurrence data and eDNA records
from 2018 are available. These two areas meet our conservation strategy
for the frecklebelly madtom. Designating critical habitat of streams in
these two occupied resilience units of the DPS, which occur in both
physiographic provinces and currently contribute to (or are historical
units in which resiliency can be improved to contribute to) the
species' viability, will help protect, and eventually reduce the risk
of extirpation, of the DPS.
The designation does not include the Coosawattee River, which is
not part of the known historical range of the species. Environmental
DNA of the frecklebelly madtom was detected in the Coosawattee River in
2018, which meets the criteria for consideration as an area occupied by
the species at the time of listing. However, since the Coosawattee
River is not part of the known historical range of the frecklebelly
madtom, this area does not meet our conservation strategy for
designating critical habitat for the species. The conservation strategy
focused on areas within the historical known range of the species. In
addition, since the species has never been directly observed in this
river despite multiple surveys over time, using the best available
information, we determined this area is not a historical unit in which
resiliency can be improved to contribute to the species' viability.
Lastly, we determined that sufficient areas (Conasauga River and Etowah
River) to provide for the conservation of the species already have been
identified within this final designation. We did not receive
information during the public comment period that supported designating
as critical habitat areas not included in the proposed units (see
Critical Habitat Designation, below).
We are not designating any areas outside the geographical area
occupied by the Upper Coosa River DPS because we did not identify any
unoccupied areas that are essential for the conservation of the
species. The protection of the Conasauga River and Etowah River will
sufficiently reduce the risk of extinction. Sources of data for this
designation of critical habitat include multiple databases maintained
by universities and State agencies in Tennessee and Georgia, as well as
numerous survey reports on streams throughout the DPS's range. Other
sources of available information on habitat requirements for this
species include studies conducted at occupied sites and published in
peer-reviewed articles, agency reports, and data collected during
monitoring efforts (Shepard et al. 1997, entire; Bennett et al. 2008,
entire; Bennett and Kuhajda 2010, entire; Albanese et al. 2018, entire;
Service 2020, entire). Observation and eDNA records were compiled and
provided to us by State partners during the SSA analysis.
When determining critical habitat boundaries, we made every effort
to avoid including developed areas such as lands covered by buildings,
pavement, and other structures because such lands lack physical or
biological features necessary for the Upper Coosa River DPS. The scale
of the maps we prepared under the parameters for publication within the
Code of Federal Regulations may not reflect the exclusion of such
developed lands. Any such lands inadvertently left inside critical
habitat boundaries shown on the maps of this rule have been excluded by
text in the rule and are not designated as critical habitat. Therefore,
a Federal action involving these lands will not trigger section 7
consultation with respect to critical habitat and the requirement of no
adverse modification unless the specific action will affect the
physical or biological features in the adjacent critical habitat.
We are designating as critical habitat areas that we have
determined are occupied at the time of listing (i.e., currently
occupied) and that contain
[[Page 13059]]
one or more of the physical or biological features that are essential
to support life-history processes of the species. Units are designated
based on one or more of the physical or biological features being
present to support the Upper Coosa River DPS's life-history processes.
Unit 1 contains only some of the physical or biological features
necessary to support the Upper Coosa River DPS's particular use of that
habitat. Unit 2 contains all of the identified physical or biological
features and supports multiple life-history processes.
The critical habitat designation is defined by the map or maps, as
modified by any accompanying regulatory text, presented at the end of
this document under Regulation Promulgation. We include more detailed
information on the boundaries of the critical habitat designation in
the preamble of this document. We will make the coordinates or plot
points or both on which each map is based available to the public on
<a href="https://www.regulations.gov">https://www.regulations.gov</a> at Docket No. FWS-R4-ES-2020-0058 and on
our internet site at <a href="https://www.fws.gov/southeast/">https://www.fws.gov/southeast/</a>.
Final Critical Habitat Designation
We are designating approximately 134 river miles (mi) (216 river
kilometers (km)) in two units as critical habitat for the Upper Coosa
River DPS of the frecklebelly madtom. The critical habitat areas we
describe below constitute our current best assessment of areas that
meet the definition of critical habitat for the Upper Coosa River DPS.
The two units are: (1) Conasauga River Unit and (2) Etowah River Unit.
Table 4, below, shows the critical habitat units, land ownership, and
the approximate river miles of each unit. Per State regulations
(Tennessee Code Annotated section 69-1-101 and Georgia Code section 52-
1-31), navigable waters are considered public rights-of-way. Lands
beneath the navigable waters included in this final rule are owned by
the States of Tennessee or Georgia. Ownership of lands beneath
nonnavigable waters included in this rule are determined by riparian
land ownership. The riparian land adjacent to the designated critical
habitat is 85 percent private, 6 percent local government, 5 percent
State, and 4 percent Federal lands.
Table 4--Critical Habitat Units for the Upper Coosa River DPS of the
Frecklebelly Madtom
------------------------------------------------------------------------
Riparian ownership River miles
Critical habitat unit surrounding units (kilometers)
------------------------------------------------------------------------
1. Conasauga River............. Private, State, Federal 51.5 (83)
2. Etowah River................ Private, Local, State.. 82.5 (133)
---------------
Total...................... ....................... 134 (216)
------------------------------------------------------------------------
Note: Lengths may not sum due to rounding.
We present brief descriptions of all units, and reasons why they
meet the definition of critical habitat for the Upper Coosa River DPS,
below.
Unit 1: Conasauga River
Unit 1 consists of approximately 51.5 river mi (83 km) of the
Conasauga River beginning at the mouth of Coahulla Creek in Whitfield
and Murray Counties, Georgia, and continuing upstream through Bradley
County, Tennessee, to the mouth of Graham Branch in Polk County,
Tennessee. Unit 1 does not extend beyond the bankfull width of the
river. Frecklebelly madtom occupies all river reaches in this unit.
Unit 1 contains some of the physical or biological features essential
to the conservation of the DPS. Unit 1 possesses those characteristics,
as described above under Summary of Essential Physical or Biological
Features, of essential physical or biological features (1), (2), (3),
and (5). Essential physical or biological feature (4) is degraded in
this unit, but with appropriate management and restoration actions,
this physical or biological feature can be restored.
Special management considerations or protection may be required
within Unit 1 to alleviate impacts from stressors that have led to the
degradation of the habitat, including sedimentation, pollutant input,
excess nutrient input, development, and unstable stream banks.
Surrounding land-use practices, including agricultural runoff,
agricultural ditching, and erosion, have led to high levels of
sedimentation, siltation, contamination, and nutrient-loading, as well
as destabilized stream banks. Special management considerations related
to agricultural and developed areas that will benefit the habitat in
this unit include, but are not limited to, riparian buffer restoration,
reduced surface and groundwater withdrawals, increased open space in
the watershed, and treating wastewater to the highest level
practicable.
Unit 2: Etowah River
Unit 2 consists of approximately 82.5 river mi (133 km) of the
Etowah River beginning at its confluence with Shoal Creek in Cherokee
County, Georgia, and continuing upstream through Forsyth and Dawson
Counties to approximately 0.5 miles upstream of the Jay Bridge Road
crossing over the Etowah River in Lumpkin County, Georgia. Unit 2 does
not extend beyond the bankfull width of the river. Frecklebelly madtom
occupies all river reaches in this unit. Unit 2 contains all of the
physical or biological features essential to the conservation of the
DPS.
Special management considerations or protection may be required
within Unit 2 to alleviate impacts from stressors that are anticipated
to amplify degradation of the habitat, including sedimentation,
pollutant input, excess nutrient input, development, and unstable
stream banks. Increased development, including urban development and
runoff, dam construction and use, and paved and unpaved roads, in the
surrounding watershed and riparian area has led to higher levels of
sedimentation, siltation, contamination, and nutrient-loading, as well
as destabilized stream banks. Special management considerations related
to agricultural and developed areas that will benefit the habitat in
this unit include, but are not limited to, riparian buffer restoration,
reduced surface and ground water withdrawals, increased open space in
the watershed, and implementing highest levels of treatment of
wastewater practicable.
Effects of Critical Habitat Designation
Section 7 Consultation
Section 7(a)(2) of the Act requires Federal agencies, including the
Service, to ensure that any action they fund, authorize, or carry out
is not likely to jeopardize the continued existence of any endangered
species or threatened species or result in the destruction or
[[Page 13060]]
adverse modification of designated critical habitat of such species. We
published a final rule revising the definition of destruction or
adverse modification on August 27, 2019 (84 FR 44976). Destruction or
adverse modification means a direct or indirect alteration that
appreciably diminishes the value of critical habitat as a whole for the
conservation of a listed species.
If a Federal action may affect a listed species or its critical
habitat, the responsible Federal agency (action agency) must enter into
consultation with us. Examples of actions that are subject to the
section 7 consultation process are actions on State, Tribal, local, or
private lands that require a Federal permit (such as a permit from the
U.S. Army Corps of Engineers under section 404 of the Clean Water Act
(33 U.S.C. 1251 et seq.) or a permit from the Service under section 10
of the Act) or that involve some other Federal action (such as funding
from the Federal Highway Administration, Federal Aviation
Administration, or the Federal Emergency Management Agency). Federal
actions not affecting listed species or critical habitat--and actions
on State, Tribal, local, or private lands that are not federally
funded, authorized, or carried out by a Federal agency--do not require
section 7 consultation.
Compliance with the requirements of section 7(a)(2) is documented
through our issuance of:
(1) A concurrence letter for Federal actions that may affect, but
are not likely to adversely affect, listed species or critical habitat;
or
(2) A biological opinion for Federal actions that may affect, and
are likely to adversely affect, listed species or critical habitat.
When we issue a biological opinion concluding that a project is
likely to jeopardize the continued existence of a listed species and/or
destroy or adversely modify critical habitat, we provide reasonable and
prudent alternatives to the project, if any are identifiable, that
would avoid the likelihood of jeopardy and/or destruction or adverse
modification of critical habitat. We define ``reasonable and prudent
alternatives'' (at 50 CFR 402.02) as alternative actions identified
during consultation that:
(1) Can be implemented in a manner consistent with the intended
purpose of the action,
(2) Can be implemented consistent with the scope of the Federal
agency's legal authority and jurisdiction,
(3) Are economically and technologically feasible, and
(4) Would, in the Service Director's opinion, avoid the likelihood
of jeopardizing the continued existence of the listed species and/or
avoid the likelihood of destroying or adversely modifying critical
habitat.
Reasonable and prudent alternatives can vary from slight project
modifications to extensive redesign or relocation of the project. Costs
associated with implementing a reasonable and prudent alternative are
similarly variable.
Regulations at 50 CFR 402.16 set forth requirements for Federal
agencies to reinitiate formal consultation on previously reviewed
actions. These requirements apply when the Federal agency has retained
discretionary involvement or control over the action (or the agency's
discretionary involvement or control is authorized by law) and,
subsequent to the previous consultation: (a) If the amount or extent of
taking specified in the incidental take statement is exceeded; (b) if
new information reveals effects of the action that may affect listed
species or critical habitat in a manner or to an extent not previously
considered; (c) if the identified action is subsequently modified in a
manner that causes an effect to the listed species or critical habitat
that was not considered in the biological opinion; or (d) if a new
species is listed or critical habitat designated that may be affected
by the identified action.
In such situations, Federal agencies sometimes may need to request
reinitiation of consultation with us, but the regulations also specify
some exceptions to the requirement to reinitiate consultation on
specific land management plans after subsequently listing a new species
or designating new critical habitat. See the regulations for a
description of those exceptions.
Application of the ``Adverse Modification'' Standard
The key factor related to the destruction or adverse modification
determination is whether implementation of the proposed Federal action
directly or indirectly alters the designated critical habitat in a way
that appreciably diminishes the value of the critical habitat as a
whole for the conservation of the listed species. As discussed above,
the role of critical habitat is to support physical or biological
features essential to the conservation of a listed species and provide
for the conservation of the species.
Section 4(b)(8) of the Act requires us to briefly evaluate and
describe, in any proposed or final regulation that designates critical
habitat, activities involving a Federal action that may violate section
7(a)(2) of the Act by destroying or adversely modifying such habitat,
or that may be affected by such designation.
Activities that we may, during a consultation under section 7(a)(2)
of the Act, consider likely to destroy or adversely modify critical
habitat include, but are not limited to:
(1) Actions that would alter the minimum flow or existing flow
regime. Such activities could include, but are not limited to,
impoundment, channelization, water diversion, water withdrawal,
hydropower generation, and flood control. These activities could
eliminate or reduce the habitat necessary for the growth and
reproduction of the Upper Coosa River DPS by altering flows to levels
that would adversely affect the Upper Coosa River DPS's ability to
complete its life cycle.
(2) Actions that would significantly alter water chemistry or
quality. Such activities could include, but are not limited to, release
of chemicals or biological pollutants into the surface water or
connected groundwater at a point source or by dispersed release (non-
point source). These activities could alter water conditions to levels
that are beyond the tolerances of the Upper Coosa River DPS and result
in direct or cumulative adverse effects to individuals and their life
cycles.
(3) Actions that would significantly increase sediment deposition
within the stream channel. Such activities could include, but are not
limited to, excessive sedimentation from livestock grazing, road
construction, channel alteration, and other watershed and floodplain
disturbances. These activities could eliminate or reduce the habitat
necessary for the growth and reproduction of the Upper Coosa River DPS
by increasing the sediment deposition to levels that would adversely
affect the DPS's ability to complete its life cycle.
(4) Actions that would significantly increase eutrophication (the
addition of excessive nutrients that are typically limited in aquatic
environments, such as nitrogen and phosphorus that cause phytoplankton
to proliferate). Such activities could include, but are not limited to,
release of excessive nutrients into the surface water or connected
groundwater at a point source or by dispersed release (non-point
source). These activities could result in excessive nutrients and algae
filling streams and reducing habitat, degrading water quality from
excessive nutrients
[[Page 13061]]
and algae decay, and decreasing oxygen levels below the tolerances of
the DPS.
(5) Actions that would significantly alter channel morphology or
geometry, or decrease connectivity. Such activities could include, but
are not limited to, channelization, impoundment, road and bridge
construction, mining, dredging, and destruction of riparian vegetation.
These activities may lead to changes in water flows and levels that
would degrade or eliminate the Upper Coosa River DPS and its habitats.
These actions could also lead to increased sedimentation and
degradation in water quality to levels beyond the tolerances of the
DPS.
(6) Actions that result in the introduction, spread, or
augmentation of nonnative aquatic species in occupied stream segments,
or in stream segments that are hydrologically connected to occupied
stream segments, or introduction of other species that compete with or
prey on the Upper Coosa River DPS. Possible actions could include, but
are not limited to, stocking of nonnative fishes and crayfishes, or
other related actions. These activities could introduce parasites or
disease; result in direct predation or direct competition; or affect
the growth, reproduction, and survival of the DPS.
Exemptions
Application of Section 4(a)(3) of the Act
Section 4(a)(3)(B)(i) of the Act (16 U.S.C. 1533(a)(3)(B)(i))
provides that the Secretary shall not designate as critical habitat any
lands or other geographical areas owned or controlled by the Department
of Defense (DoD), or designated for its use, that are subject to an
integrated natural resources management plan (INRMP) prepared under
section 101 of the Sikes Act Improvement Act of 1997 (16 U.S.C. 670a),
if the Secretary determines in writing that such plan provides a
benefit to the species for which critical habitat is proposed for
designation. There are no DoD lands within this final critical habitat
designation.
Consideration of Impacts Under Section 4(b)(2) of the Act
Section 4(b)(2) of the Act states that the Secretary shall
designate and make revisions to critical habitat on the basis of the
best available scientific data after taking into consideration the
economic impact, national security impact, and any other relevant
impact of specifying any particular area as critical habitat. The
Secretary may exclude an area from critical habitat based on economic
impacts, impacts on national security, or any other relevant impacts.
Exclusion decisions are governed by the regulations at 50 CFR 424.19
and the Policy Regarding Implementation of Section 4(b)(2) of the
Endangered Species Act, 81 FR 7226 (Feb. 11, 2016) (2016 Policy) both
of which were developed jointly with the National Marine Fisheries
Service (NMFS). We also refer to a 2008 Department of the Interior
Solicitor's opinion entitled ``The Secretary's Authority to Exclude
Areas from a Critical Habitat Designation under Section 4(b)(2) of the
Endangered Species Act'' (M-37016). We explain each decision to exclude
areas, as well as decisions not to exclude, to demonstrate that the
decision is reasonable.
In considering whether to exclude a particular area from the
designation, we identify the benefits of including the area in the
designation, identify the benefits of excluding the area from the
designation, and evaluate whether the benefits of exclusion outweigh
the benefits of inclusion. If the analysis indicates that the benefits
of exclusion outweigh the benefits of inclusion, the Secretary may
exercise discretion to exclude the area only if such exclusion would
not result in the extinction of the species. The 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. In making the
determination to exclude a particular area, the statute on its face, as
well as the legislative history, are clear that the Secretary has broad
discretion regarding which factor(s) to use and how much weight to give
to any factor. In this final rule, we are not excluding any areas from
the critical habitat designation.
Exclusions Based on Economic Impacts
Section 4(b)(2) of the Act and its implementing regulations require
that we consider the economic impact that may result from a designation
of critical habitat. In order to consider economic impacts, we prepared
an incremental effects memorandum (IEM) and screening analysis which,
together with our narrative and interpretation of effects, we consider
our economic analysis of the critical habitat designation and related
factors (IEc 2020, entire). The analysis, dated June 23, 2020, was made
available for public review from November 19, 2020, through January 19,
2021 (85 FR 74050). The economic analysis addressed probable economic
impacts of critical habitat designation for the Upper Coosa River DPS
of frecklebelly madtom. Following the close of the comment period, we
reviewed and evaluated all information submitted during the comment
period that may pertain to our consideration of the probable
incremental economic impacts of this critical habitat designation.
Additional information relevant to the probable incremental economic
impacts of critical habitat designation for the Upper Coosa River DPS
of frecklebelly madtom is summarized below and available in the
screening analysis for the DPS (IEc 2020, entire), available at <a href="https://www.regulations.gov">https://www.regulations.gov</a>.
Executive Orders (E.O.s) 12866 and 13563 direct Federal agencies to
assess the costs and benefits of available regulatory alternatives in
quantitative (to the extent feasible) and qualitative terms. Consistent
with the E.O. regulatory analysis requirements, our effects analysis
under the Act may take into consideration impacts to both directly and
indirectly affected entities, where practicable and reasonable. If
sufficient data are available, we assess to the extent practicable the
probable impacts to both directly and indirectly affected entities. As
part of our screening analysis, we considered the types of economic
activities that are likely to occur within the areas likely affected by
the critical habitat designation. In our evaluation of the probable
incremental economic impacts that may result from the designation of
critical habitat for the Upper Coosa River DPS, first we identified, in
the IEM dated June 23, 2020, probable incremental economic impacts
associated with the following categories of activities: (1) Federal
lands management (U.S. Forest Service and U.S. Army Corps of
Engineers); (2) agriculture; (3) development; (4) roadway and bridgeway
construction; (5) dredging, dams, and diversions; (6) flood control and
hydropower; (7) wastewater and chemical discharge; (8) pesticide use;
(9) recreation; (10) conservation and restoration; and (11)
transportation and utilities. We considered each industry or category
individually. Additionally, we considered whether these activities have
any Federal involvement. Critical habitat designation generally will
not affect activities that do not have any Federal involvement; under
the Act, designation of critical habitat only affects activities
conducted, funded, permitted, or authorized by Federal agencies. In
areas where individuals from the Upper Coosa River DPS are found,
Federal agencies are required to
[[Page 13062]]
ensure that their actions are not likely to jeopardize the continued
existence of the DPS under section 7 consultation procedures. With this
critical habitat designation, consultations to avoid the destruction or
adverse modification of critical habitat will be incorporated into the
existing consultation process.
In our IEM, we attempted to clarify the distinction between the
effects that will result from the species being listed and those
attributable to the critical habitat designation (i.e., difference
between the jeopardy and adverse modification standards) for the Upper
Coosa River DPS's critical habitat. Because the designation of critical
habitat for the Upper Coosa River DPS is being finalized concurrently
with the listing, it has been our experience that it is more difficult
to discern which conservation efforts are attributable to the species
being listed and those which will result solely from the designation of
critical habitat. However, the following specific circumstances in this
case help to inform our evaluation: (1) The essential physical or
biological features identified for critical habitat are the same
features essential for the life requisites of the species, and (2) any
actions that would result in sufficient harm or harassment to
constitute jeopardy to the Upper Coosa River DPS would also likely
adversely affect the essential physical or biological features of
critical habitat. The IEM outlines our rationale concerning this
limited distinction between baseline conservation efforts and
incremental impacts of the designation of critical habitat for this
species. This evaluation of the incremental effects has been used as
the basis to evaluate the probable incremental economic impacts of this
designation of critical habitat.
The final critical habitat designation for the Upper Coosa River
DPS totals approximately 134 river miles (mi) (216 river kilometers
(km)) in two occupied units in Georgia and Tennessee. In these areas,
any actions that may affect the species will also affect critical
habitat because all designated habitat is occupied. Thus, it is
unlikely that any additional conservation efforts will be recommended
to address the adverse modification standard over and above those
recommended as necessary to avoid jeopardizing the continued existence
of the Upper Coosa River DPS. Therefore, the only additional costs that
are expected in all of the critical habitat designation are
administrative costs. These costs are due to additional consultation
analysis requiring time and resources by both the Federal action agency
and the Service. However, these costs are not expected to reach the
threshold of ``significant'' under E.O. 12866. We anticipate a maximum
of 10 section 7 consultations annually at a total incremental cost of
less than $11,000 per year.
In our November 19, 2020 proposed rule (85 FR 74050), we solicited
data and comments from the public on the draft economic analysis, as
well as all aspects of the proposed rule and our required
determinations. We did not receive any additional information on
economic impacts during that public comment period to determine whether
any specific areas should be excluded from this final critical habitat
designation under the authority of section 4(b)(2) of the Act and our
implementing regulations at 50 CFR 424.19.
Exclusions Based on Impacts on National Security and Homeland Security
In preparing this rule, we have determined that the lands within
the designation of critical habitat for the Upper Coosa River DPS are
not owned or managed by the DoD or the Department of Homeland Security,
and, therefore, we anticipate no impact on national security or
homeland security. We did not receive any additional information during
the November 19, 2020, proposed rule's public comment period on the
impacts of the designation on national security or homeland security
that would support excluding any specific areas from this final
critical habitat designation under authority of section 4(b)(2) of the
Act and our implementing regulations at 50 CFR 424.19, as well as the
2016 Policy.
Exclusions Based on Other Relevant Impacts
Under section 4(b)(2) of the Act, we consider any other relevant
impacts, in addition to economic impacts and impacts on national
security as discussed above. To identify other relevant impacts that
may affect the exclusion analysis, we consider a number of factors,
including whether there are permitted conservation plans covering the
species in the area such as HCPs, safe harbor agreements (SHAs), or
candidate conservation agreements with assurances (CCAAs), or whether
there are non-permitted conservation agreements and partnerships that
would be encouraged by designation of, or exclusion from, critical
habitat. In addition, we look at whether Tribal conservation plans or
partnerships, Tribal resources, or government-to-government
relationships of the United States with Tribal entities may be affected
by the designation. We also consider any State, local, social, or other
impacts that might occur because of the designation.
In preparing this rule, we have determined that there are currently
no HCPs or other management plans for the Upper Coosa River DPS, and
the final designation does not include any Tribal lands or trust
resources. Therefore, we anticipate no impact on Tribal lands,
partnerships, or HCPs from this final critical habitat designation. We
did not receive any additional information during the public comment
period for the proposed rule regarding other relevant impacts to
support excluding any specific areas from the final critical habitat
designation under authority of section 4(b)(2) and our implementing
regulations at 50 CFR 424.19, as well as the 2016 Policy.
As discussed above, we did not identify impacts on national
security, economic, or any other relevant impacts as a result of this
designation. Accordingly, the Secretary is not exercising her
discretion to exclude any areas from the critical habitat designation.
Required Determinations
Regulatory Planning and Review (Executive Orders 12866 and 13563)
Executive Order 12866 provides that the Office of Information and
Regulatory Affairs (OIRA) in the Office of Management and Budget will
review all significant rules. OIRA has determined that this rule is not
significant.
Executive Order 13563 reaffirms the principles of E.O. 12866 while
calling for improvements in the nation's regulatory system to promote
predictability, to reduce uncertainty, and to use the best, most
innovative, and least burdensome tools for achieving regulatory ends.
The executive order directs agencies to consider regulatory approaches
that reduce burdens and maintain flexibility and freedom of choice for
the public where these approaches are relevant, feasible, and
consistent with regulatory objectives. E.O. 13563 emphasizes further
that regulations must be based on the best available science and that
the rulemaking process must allow for public participation and an open
exchange of ideas. We have developed this rule in a manner consistent
with these requirements.
Regulatory Flexibility Act (5 U.S.C. 601 et seq.)
Under the Regulatory Flexibility Act (RFA; 5 U.S.C. 601 et seq.),
as amended by the Small Business Regulatory Enforcement Fairness Act of
1996
[[Page 13063]]
(SBREFA; 5 U.S.C. 801 et seq.), whenever an agency is required to
publish a notice of rulemaking for any proposed or final rule, it must
prepare and make available for public comment a regulatory flexibility
analysis that describes the effects of the rule on small entities
(i.e., small businesses, small organizations, and small government
jurisdictions). However, no regulatory flexibility analysis is required
if the head of the agency certifies the rule will not have a
significant economic impact on a substantial number of small entities.
The SBREFA amended the RFA to require Federal agencies to provide a
certification statement of the factual basis for certifying that the
rule will not have a significant economic impact on a substantial
number of small entities.
According to the Small Business Administration, small entities
include small organizations such as independent nonprofit
organizations; small governmental jurisdictions, including school
boards and city and town governments that serve fewer than 50,000
residents; and small businesses (13 CFR 121.201). Small businesses
include manufacturing and mining concerns with fewer than 500
employees, wholesale trade entities with fewer than 100 employees,
retail and service businesses with less than $5 million in annual
sales, general and heavy construction businesses with less than $27.5
million in annual business, special trade contractors doing less than
$11.5 million in annual business, and agricultural businesses with
annual sales less than $750,000. To determine whether potential
economic impacts to these small entities are significant, we considered
the types of activities that might trigger regulatory impacts under
this designation as well as types of project modifications that may
result. In general, the term ``significant economic impact'' is meant
to apply to a typical small business firm's business operations.
Under the RFA, as amended, and following recent court decisions,
Federal agencies are required to evaluate the potential incremental
impacts of rulemaking on those entities directly regulated by the
rulemaking itself; in other words, the RFA does not require agencies to
evaluate the potential impacts to indirectly regulated entities. The
regulatory mechanism through which critical habitat protections are
realized is section 7 of the Act, which requires Federal agencies, in
consultation with the Service, to ensure that any action authorized,
funded, or carried out by the agency is not likely to destroy or
adversely modify critical habitat. Therefore, under section 7, only
Federal action agencies are directly subject to the specific regulatory
requirement (avoiding destruction and adverse modification) imposed by
critical habitat designation. Consequently, it is our position that
only Federal action agencies will be directly regulated by this
designation. There is no requirement under the RFA to evaluate the
potential impacts to entities not directly regulated. Moreover, Federal
agencies are not small entities. Therefore, because no small entities
will be directly regulated by this rulemaking, the Service certifies
that this final critical habitat designation will not have a
significant economic impact on a substantial number of small entities.
During the development of this final rule, we reviewed and
evaluated all information submitted during the comment period on the
November 19, 2020, proposed rule (85 FR 74050) that may pertain to our
consideration of the probable incremental economic impacts of this
critical habitat designation. Based on this information, we affirm our
certification that this critical habitat designation will not have a
significant economic impact on a substantial number of small entities,
and a regulatory flexibility analysis is not required.
Energy Supply, Distribution, or Use--Executive Order 13211
Executive Order 13211 (Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use) requires
agencies to prepare Statements of Energy Effects when undertaking
certain actions. The Office of Management and Budget (OMB) provides
guidance for implementing this Executive Order, outlining nine outcomes
(criteria) that may constitute ``a significant adverse effect'' when
compared with the regulatory action under consideration. The economic
analysis finds that none of these criteria are relevant to this
analysis, and therefore, we did not find that this critical habitat
designation will significantly affect energy supplies, distribution, or
use. Therefore, this action is not a significant energy action, and no
Statement of Energy Effects is required.
Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.)
In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501
et seq.), we make the following finding:
(1) This rule will not produce a Federal mandate. In general, a
Federal mandate is a provision in legislation, statute, or regulation
that would impose an enforceable duty upon State, local, or Tribal
governments, or the private sector, and includes both ``Federal
intergovernmental mandates'' and ``Federal private sector mandates.''
These terms are defined in 2 U.S.C. 658(5)-(7). ``Federal
intergovernmental mandate'' includes a regulation that ``would impose
an enforceable duty upon State, local, or Tribal governments'' with two
exceptions. It excludes ``a condition of Federal assistance.'' It also
excludes ``a duty arising from participation in a voluntary Federal
program,'' unless the regulation ``relates to a then-existing Federal
program under which $500,000,000 or more is provided annually to State,
local, and Tribal governments under entitlement authority,'' if the
provision would ``increase the stringency of conditions of assistance''
or ``place caps upon, or otherwise decrease, the Federal Government's
responsibility to provide funding,'' and the State, local, or Tribal
governments ``lack authority'' to adjust accordingly. At the time of
enactment, these entitlement programs were: Medicaid; Aid to Families
with Dependent Children work programs; Child Nutrition; Food Stamps;
Social Services Block Grants; Vocational Rehabilitation State Grants;
Foster Care, Adoption Assistance, and Independent Living; Family
Support Welfare Services; and Child Support Enforcement. ``Federal
private sector mandate'' includes a regulation that ``would impose an
enforceable duty upon the private sector, except (i) a condition of
Federal assistance or (ii) a duty arising from participation in a
voluntary Federal program.''
The designation of critical habitat does not impose a legally
binding duty on non-Federal Government entities or private parties.
Under the Act, the only regulatory effect is that Federal agencies must
ensure that their actions do not destroy or adversely modify critical
habitat under section 7. While non-Federal entities that receive
Federal funding, assistance, or permits, or that otherwise require
approval or authorization from a Federal agency for an action, may be
indirectly impacted by the designation of critical habitat, the legally
binding duty to avoid destruction or adverse modification of critical
habitat rests squarely on the Federal agency. Furthermore, to the
extent that non-Federal entities are indirectly impacted because they
receive Federal assistance or participate in a voluntary Federal aid
program, the Unfunded Mandates Reform Act would not apply, nor would
critical habitat shift the costs of the large entitlement
[[Page 13064]]
programs listed above onto State governments.
(2) We do not believe that this rule will significantly or uniquely
affect small governments, because it will not produce a Federal mandate
of $100 million or greater in any year, that is, it is not a
``significant regulatory action'' under the Unfunded Mandates Reform
Act. The designation of critical habitat imposes no obligations on
State or local governments and, as such, a Small Government Agency Plan
is not required.
Takings--Executive Order 12630
In accordance with E.O. 12630 (Government Actions and Interference
with Constitutionally Protected Private Property Rights), we have
analyzed the potential takings implications of designating critical
habitat for Upper Coosa River DPS in a takings implications assessment.
The Act does not authorize us to regulate private actions on private
lands or confiscate private property as a result of critical habitat
designation. Designation of critical habitat does not affect land
ownership, or establish any closures, or restrictions on use of or
access to the designated areas. Furthermore, the designation of
critical habitat does not affect landowner actions that do not require
Federal funding or permits, nor does it preclude development of habitat
conservation programs or issuance of incidental take permits to permit
actions that do require Federal funding or permits to go forward.
However, Federal agencies are prohibited from carrying out, funding, or
authorizing actions that would destroy or adversely modify critical
habitat. A takings implications assessment has been completed for the
designation of critical habitat for Upper Coosa River DPS, and it
concludes that this designation of critical habitat does not pose
significant takings implications for lands within or affected by the
designation.
Federalism--Executive Order 13132
In accordance with E.O. 13132 (Federalism), this rule does not have
significant Federalism effects. A federalism summary impact statement
is not required. In keeping with Department of the Interior and
Department of Commerce policy, we requested information from, and
coordinated development of this critical habitat designation with,
appropriate State resource agencies. From a federalism perspective, the
designation of critical habitat directly affects only the
responsibilities of Federal agencies. The Act imposes no other duties
with respect to critical habitat, either for States and local
governments, or for anyone else. As a result, the rule does not have
substantial direct effects either on the States, or on the relationship
between the national government and the States, or on the distribution
of powers and responsibilities among the various levels of government.
The designation may have some benefit to these governments because the
areas that contain the features essential to the conservation of the
species are more clearly defined, and the physical or biological
features of the habitat essential to the conservation of the species
are specifically identified. This information does not alter where and
what federally sponsored activities may occur. However, it may assist
State and local governments in long-range planning because they no
longer have to wait for case-by-case section 7 consultations to occur.
Where State and local governments require approval or authorization
from a Federal agency for actions that may affect critical habitat,
consultation under section 7(a)(2) of the Act will be required. While
non-Federal entities that receive Federal funding, assistance, or
permits, or that otherwise require approval or authorization from a
Federal agency for an action, may be indirectly impacted by the
designation of critical habitat, the legally binding duty to avoid
destruction or adverse modification of critical habitat rests squarely
on the Federal agency.
Civil Justice Reform--Executive Order 12988
In accordance with Executive Order 12988 (Civil Justice Reform),
the Office of the Solicitor has determined that the rule will not
unduly burden the judicial system and that it meets the requirements of
sections 3(a) and 3(b)(2) of the Order. We are designating critical
habitat in accordance with the provisions of the Act. To assist the
public in understanding the habitat needs of the species, this final
rule identifies the physical or biological features essential to the
conservation of the species. The designated areas of critical habitat
are presented on maps, and the rule provides several options for the
interested public to obtain more detailed location information, if
desired.
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.)
This rule does not contain information collection requirements, and
a submission to the Office of Management and Budget (OMB) under the
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.) is not
required. We may not conduct or sponsor, and you are not required to
respond to, a collection of information unless it displays a currently
valid OMB control number.
National Environmental Policy Act (42 U.S.C. 4321 et seq.)
It is our position that we do not need to prepare environmental
analyses pursuant to the National Environmental Policy Act (NEPA; 42
U.S.C. 4321 et seq.) in connection with regulations adopted pursuant to
section 4(a) of 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 Court of Appeals for the
Ninth Circuit (Douglas County v. Babbitt, 48 F.3d 1495 (9th Cir.
1995)).
Government-to-Government Relationship With Tribes
In accordance with the President's memorandum of April 29, 1994
(Government-to-Government Relations with Native American Tribal
Governments; 59 FR 22951), Executive Order 13175 (Consultation and
Coordination with Indian Tribal Governments), and the Department of the
Interior's manual at 512 DM 2, we readily acknowledge our
responsibility to communicate meaningfully with recognized Federal
Tribes on a government-to-government basis. In accordance with
Secretarial Order 3206 of June 5, 1997 (American Indian Tribal Rights,
Federal-Tribal Trust Responsibilities, and the Endangered Species Act),
we readily acknowledge our responsibilities to work directly with
Tribes in developing programs for healthy ecosystems, to acknowledge
that Tribal lands are not subject to the same controls as Federal
public lands, to remain sensitive to Indian culture, and to make
information available to Tribes. We have identified no Tribal interests
that would be affected by the listing of the Upper Coosa River DPS of
the frecklebelly madtom. We have also determined that no Tribal lands
fall within the boundaries of the critical habitat designation for the
Upper Coosa River DPS, so no Tribal lands will be affected by the
designation.
References Cited
A complete list of references cited in this rulemaking is available
on the internet at <a href="https://www.regulations.gov">https://www.regulations.gov</a> and upon request from
the Alabama Ecological Services Field Office (see FOR FURTHER
INFORMATION CONTACT).
Authors
The primary authors of this final rule are the staff members of the
Fish and
[[Page 13065]]
Wildlife Service's Species Assessment Team and the Alabama Ecological
Services Field Office.
List of Subjects in 50 CFR Part 17
Endangered and threatened species, Exports, Imports, Plants,
Reporting and recordkeeping requirements, Transportation, Wildlife.
Regulation Promulgation
Accordingly, we amend part 17, subchapter B of chapter I, title 50
of the Code of Federal Regulations, as set forth below:
PART 17--ENDANGERED AND THREATENED WILDLIFE AND PLANTS
0
1. The authority citation for part 17 continues to read as follows:
Authority: 16 U.S.C. 1361-1407; 1531-1544; and 4201-4245, unless
otherwise noted.
0
2. Amend Sec. 17.11, in paragraph (h), by adding an entry for
``Madtom, frecklebelly [Upper Coosa River DPS]'' to the List of
Endangered and Threatened Wildlife in alphabetical order under FISHES
to read as follows:
Sec. 17.11 Endangered and threatened wildlife.
* * * * *
(h) * * *
----------------------------------------------------------------------------------------------------------------
Listing citations and
Common name Scientific name Where listed Status applicable rules
----------------------------------------------------------------------------------------------------------------
* * * * * * *
----------------------------------------------------------------------------------------------------------------
FISHES
----------------------------------------------------------------------------------------------------------------
* * * * * * *
Madtom, frecklebelly [Upper Noturus munitus... Upper Coosa River T 88 FR [Insert Federal
Coosa River DPS]. Basin (GA, TN). Register page where
the document begins];
3/2/2023; 50 CFR
17.44(ff); \4d\ 50
CFR 17.95(e).\CH\
* * * * * * *
----------------------------------------------------------------------------------------------------------------
0
3. Amend Sec. 17.44 by adding paragraph (ff) to read as follows:
Sec. 17.44 Special rules--fishes.
* * * * *
(ff) Upper Coosa River DPS of the frecklebelly madtom (Noturus
munitus).
(1) Prohibitions. The following prohibitions that apply to
endangered wildlife also apply to the Upper Coosa River DPS. Except as
provided under paragraph (ff)(2) of this section and Sec. Sec. 17.4
and 17.5, it is unlawful for any person subject to the jurisdiction of
the United States to commit, to attempt to commit, to solicit another
to commit, or cause to be committed, any of the following acts in
regard to this DPS:
(i) Import or export, as set forth at Sec. 17.21(b) for endangered
wildlife.
(ii) Take, as set forth at Sec. 17.21(c)(1) for endangered
wildlife.
(iii) Possession and other acts with unlawfully taken specimens, as
set forth at Sec. 17.21(d)(1) for endangered wildlife.
(iv) Interstate or foreign commerce in the course of a commercial
activity, as set forth at Sec. 17.21(e) for endangered wildlife.
(v) Sale or offer for sale, as set forth at Sec. 17.21(f) for
endangered wildlife.
(2) Exceptions from prohibitions. In regard to this DPS, you may:
(i) Conduct activities as authorized by a permit under Sec. 17.32.
(ii) Take, as set forth at Sec. 17.21(c)(2) through (c)(4) for
endangered wildlife.
(iii) Take, as set forth at Sec. 17.31(b).
(iv) Take incidental to an otherwise lawful activity caused by:
(A) Channel restoration projects that create natural, physically
stable, ecologically functioning streams. These projects can be
accomplished using a variety of methods, but the desired outcome is a
natural channel with geomorphically stable stream channels that
maintain the appropriate lateral dimensions, longitudinal profiles, and
sinuosity patterns over time without an aggrading or degrading bed
elevation and include stable riffle-run-pool complexes that consist of
silt-free gravel, coarse sand, cobble, boulders, woody structure, and
river weed (Podostemum spp.).
(B) Streambank stabilization projects that use bioengineering
methods to replace pre-existing, bare, eroding stream banks with
natively vegetated, stable stream banks, thereby reducing bank erosion
and instream sedimentation and improving habitat conditions for the
DPS. Stream banks may be stabilized using native live stakes (live,
vegetative cuttings inserted or tamped into the ground in a manner that
allows the stake to take root and grow), native live fascines (live
branch cuttings, usually willows, bound together into long, cigar-
shaped bundles), or native brush layering (cuttings or branches of
easily rooted tree species layered between successive lifts of soil
fill). Stream banks must not be stabilized solely through the use of
quarried rock (rip-rap) or the use of rock baskets or gabion
structures.
(C) Projects carried out in the DPS's range under the Working Lands
for Wildlife program of the Natural Resources Conservation Service,
U.S. Department of Agriculture, or similar projects conducted by the
U.S. Fish and Wildlife Service's Partners for Fish and Wildlife Program
or the Environmental Protection Agency's 319 Grant Program, that are
implemented with a primary objective of improving environmental
conditions to support the native, aquatic biodiversity of flowing water
habitats.
(D) Silviculture practices and forest management activities that
implement State-approved best management practices to protect water and
sediment quality and stream and riparian habitat.
(v) Possess and engage in other acts with unlawfully taken
wildlife, as set forth at Sec. 17.21(d)(2) for endangered wildlife.
0
4. Amend Sec. 17.95, in paragraph (e), by adding an entry for
``Frecklebelly Madtom [Upper Coosa River DPS] (Noturus munitus)'' after
the entry for ``Chucky Madtom (Noturus crypticus)'', to read as
follows:
Sec. 17.95 Critical habitat--fish and wildlife.
* * * * *
(e) Fishes.
* * * * *
Frecklebelly Madtom [Upper Coosa River DPS] (Noturus munitus)
(1) Critical habitat units are depicted for Bradley and Polk
Counties, Tennessee, and Cherokee, Dawson,
[[Page 13066]]
Forsyth, Lumpkin, Murray, and Whitfield Counties, Georgia, on the maps
in this entry.
(2) Within these areas, the physical or biological features
essential to the conservation of the Upper Coosa River distinct
population segment (DPS) consist of the following components:
(i) Geomorphically stable, medium to large streams with:
(A) Stable stream channels that maintain lateral dimensions,
longitudinal profiles, and sinuosity patterns over time without an
aggrading or degrading bed elevation; and
(B) Banks with intact riparian cover to maintain stream morphology
and reduce erosion and sediment inputs.
(ii) Connected instream habitats that:
(A) Include stable riffle-run-pool complexes;
(B) Consist of silt-free gravel, coarse sand, cobble, boulders,
woody structure, and river weed (Podostemum spp.); and
(C) Have abundant cobble, boulders, woody structure, or other
suitable cover used for nesting.
(iii) Adequate flows, or a hydrologic flow regime (which includes
the severity, frequency, duration, and seasonality of discharge over
time), necessary to maintain instream habitats and to maintain
connectivity of streams with the floodplain, allowing the exchange of
nutrients and sediment for maintenance of the fish's habitat, food
availability, and ample oxygenated flow for spawning and nesting
habitat.
(iv) Appropriate water and sediment quality (including, but not
limited to, conductivity; hardness; turbidity; temperature; pH;
ammonia; heavy metals; pesticides; animal waste products; and nitrogen,
phosphorus, and potassium fertilizers) necessary to sustain natural
physiological processes for normal behavior, growth, and viability of
all life stages.
(v) Diversity and availability of aquatic macroinvertebrate prey
items, which include larval midges, mayflies, caddisflies, dragonflies,
and beetles.
(3) Critical habitat does not include humanmade structures (such as
buildings, aqueducts, runways, roads, and other paved areas) and the
land on which they are located existing within the legal boundaries on
April 3, 2023.
(4) Data layers defining map units were selected from the U.S.
Geological Survey National Hydrological Dataset--High Resolution
(1:24,000 scale; Geographic Coordinate System North American 1983
coordinates) using mapping software. The selected river reaches were
informed by species occurrence data. All layers use Universal
Transverse Mercator (UTM) Zone 16N coordinates. We also used the
mapping software to calculate the length of the units. The maps in this
entry, as modified by any accompanying regulatory text, establish the
boundaries of the critical habitat designation. The coordinates or plot
points or both on which each map is based are available to the public
at the Service's internet site at <a href="https://www.fws.gov/about/region/southeast">https://www.fws.gov/about/region/southeast</a>, at <a href="https://www.regulations.gov">https://www.regulations.gov</a> at Docket No. FWS-R4-ES-2020-
0058, and at the field office responsible for this designation. You may
obtain field office location in
[…truncated; see source link]Indexed from Federal Register on March 2, 2023.
This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.