[Federal Register Volume 89, Number 131 (Tuesday, July 9, 2024)]
[Proposed Rules]
[Pages 56253-56275]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-14320]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
[Docket No. FWS-R4-ES-2023-0224; FXES1111090FEDR-245-FF09E21000]
RIN 1018-BE32
Endangered and Threatened Wildlife and Plants; Designation of
Critical Habitat for Barrens Topminnow
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: We, the U.S. Fish and Wildlife Service (Service), propose to
designate critical habitat for the Barrens topminnow (Fundulus julisia)
under the Endangered Species Act of 1973, as amended (Act). In total,
approximately 1.5 acres (0.6 hectares) of spring pool and 11.4 miles
(18.3 kilometers) of spring run in Cannon, Coffee, Dekalb, Franklin,
Grundy, and Warren Counties, Tennessee, fall within the boundaries of
the proposed critical habitat designation. We also announce the
availability of an economic analysis of the proposed designation of
critical habitat for the Barrens topminnow.
DATES: We will accept comments received or postmarked on or before
September 9, 2024. Comments submitted electronically using the Federal
eRulemaking Portal (see ADDRESSES, below) must be received by 11:59
p.m. eastern time on the closing date. We must receive requests for a
public hearing, in writing, at the address shown in FOR FURTHER
INFORMATION CONTACT by August 23, 2024.
ADDRESSES:
Written comments: You may submit comments by one of the following
methods:
(1) Electronically: Go to the Federal eRulemaking Portal: https://www.regulations.gov. In the Search box, enter FWS-R4-ES-2023-0224,
which is the docket number for this rulemaking. Then, click on the
Search button. On the resulting page, in the panel on the left side of
the screen, under the Document Type heading, click on the Proposed Rule
box to locate this document. You may submit a comment by clicking on
``Comment.''
(2) By hard copy: Submit by U.S. mail to: Public Comments
Processing, Attn: FWS-R4-ES-2023-0224, U.S. Fish and Wildlife Service,
MS: PRB/3W, 5275 Leesburg Pike, Falls Church, VA 22041-3803.
We request that you send comments only by the methods described
above. We will post all comments on https://www.regulations.gov. This
generally means that we will post any personal information you provide
us (see Information Requested, below, for more information).
Availability of supporting materials: For the critical habitat
designation, the coordinates or plot points or both from which the maps
are generated are included in the decision file for this critical
habitat designation and are available at https://www.fws.gov/office/tennessee-ecological-services and at https://www.regulations.gov under
Docket No. FWS-R4-ES-2023-0224.
FOR FURTHER INFORMATION CONTACT: Daniel Elbert, Field Supervisor, U.S.
Fish and Wildlife Service, Tennessee Ecological Services Office, 446
Neal Street, Cookeville, TN 38501; telephone 931-528-6481. 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.
Please see Docket No. FWS-R4-ES-2023-0224 on https://www.regulations.gov for a document that summarizes this proposed rule.
[[Page 56254]]
SUPPLEMENTARY INFORMATION:
Executive Summary
Why we need to publish a rule. To the maximum extent prudent and
determinable, we must designate critical habitat for any species that
we determine to be an endangered or threatened species under the Act.
Designation of critical habitat can only be completed by issuing a rule
through the Administrative Procedure Act rulemaking process (5 U.S.C.
551 et seq.).
What this document does. We propose the designation of critical
habitat for the Barrens topminnow. The Barrens topminnow was listed as
an endangered species under the Act on November 20, 2019 (see 84 FR
56131; October 21, 2019).
The basis for our action. Under section 4(a)(3) of the Act, if we
determine that a species is an endangered or threatened species we
must, to the maximum extent prudent and determinable, designate
critical habitat. 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 of the Interior (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.
Section 4(a)(3) of the Act and implementing regulations (50 CFR
424.12) require that we designate critical habitat at the time a
species is determined to be an endangered or threatened species, to the
maximum extent prudent and determinable. On January 4, 2018, the
Service published a proposed rule to list the Barrens topminnow as an
endangered species under the Act (83 FR 490). At the time of the
proposed listing rule, the Service found that critical habitat was
prudent but could not be determined until a careful assessment of the
economic impacts that may occur due to a critical habitat designation
was completed. The final listing rule (84 FR 56131; October 21, 2019)
affirmed that the designation of critical habitat was prudent but not
determinable because specific information needed to analyze the impacts
of designation was lacking.
In accordance with section 4(b)(2) of the Act and our implementing
regulations at 50 CFR 424.19, we prepared an analysis of the economic
impacts of the proposed critical habitat designation. In this proposed
rule, we announce the availability of the draft economic analysis for
public review and comment.
Peer Review
In accordance with our joint policy on peer review published in the
Federal Register on July 1, 1994 (59 FR 34270) and our August 22, 2016,
memorandum updating and clarifying the role of peer review of listing
actions under the Act, we sought the expert opinions of appropriate
specialists regarding our 2017 species status assessment (SSA) report
(Service 2017, entire), which informed this proposed rule. In addition
to the peer review conducted on the 2017 SSA report, we are seeking
comments from independent specialists during the public comment period
on this proposed rule (see DATES, above). The purpose of peer review is
to ensure that our designation is based on scientifically sound data,
assumptions, and analyses. The peer reviewers have expertise in fish
biology, habitat, and stressors or factors negatively affecting the
species.
Information Requested
We intend that any final action resulting from this proposed rule
will be based on the best scientific data available and be as accurate
and as effective as possible. Therefore, we request comments or
information from other governmental agencies, Native American Tribes,
the scientific community, industry, or any other interested parties
concerning this proposed rule. We particularly seek comments
concerning:
(1) Historical and current range, including distribution patterns
and the locations of any additional populations of Barrens topminnow.
(2) Specific information on:
(a) The amount and distribution of Barrens topminnow habitat;
(b) Any additional areas occurring within the range of the species,
i.e., Cannon, Coffee, Dekalb, Franklin, Grundy, and Warren Counties,
Tennessee, that should be included in the designation because they (i)
are occupied at the time of listing and contain the physical or
biological features that are essential to the conservation of the
species and that may require special management considerations or
protection, or (ii) are unoccupied at the time of listing and are
essential for the conservation of the species;
(c) Special management considerations or protection that may be
needed in critical habitat areas we are proposing, including managing
for the potential effects of climate change; and
(d) Whether areas not occupied at the time of listing qualify as
habitat for the species and are essential for the conservation of the
species.
(3) Land use designations and current or planned activities in the
subject areas and their possible impacts on proposed critical habitat.
(4) Any probable economic, national security, or other relevant
impacts of designating any area that may be included in the final
designation, and the related benefits of including or excluding
specific areas.
(5) Information on the extent to which the description of probable
economic impacts in the draft economic analysis is a reasonable
estimate of the likely economic impacts.
(6) Whether any specific areas we are proposing for critical
habitat designation should be considered for exclusion under section
4(b)(2) of the Act, and whether the benefits of potentially excluding
any specific area outweigh the benefits of including that area under
section 4(b)(2) of the Act. Please see Consideration of Other Relevant
Impacts, below, for information on areas for which the Service's
Partners for Fish and Wildlife is developing conservation agreements;
if you think we should exclude any of these areas, or any other areas,
from the designation of critical habitat for the Barrens topminnow,
please provide information supporting a benefit of exclusion.
(7) Whether we could improve or modify our approach to designating
critical habitat in any way to provide for greater public participation
and understanding, or to better accommodate public concerns and
comments.
Please include sufficient information with your submission (such as
scientific journal articles or other publications) to allow us to
verify any scientific or commercial information you include.
Please note that submissions merely stating support for, or
opposition to, the action under consideration without providing
supporting information, although noted, do not provide substantial
information necessary to support a determination. Section 4(b)(2) of
the Act directs that the Secretary
[[Page 56255]]
shall designate critical habitat on the basis of the best scientific
data available.
You may submit your comments and materials concerning this proposed
rule by one of the methods listed in ADDRESSES. We request that you
send comments only by the methods described in ADDRESSES.
If you submit information via https://www.regulations.gov, your
entire submission--including any personal identifying information--will
be posted on the website. If your submission is made via a hardcopy
that includes personal identifying information, you may request at the
top of your document that we withhold this information from public
review. However, we cannot guarantee that we will be able to do so. We
will post all hardcopy submissions on https://www.regulations.gov.
Comments and materials we receive, as well as supporting
documentation we used in preparing this proposed rule, will be
available for public inspection on https://www.regulations.gov.
Our final critical habitat designation may differ from this
proposal because we will consider all comments we receive during the
comment period as well as any information that may become available
after this proposal. Our final designation may not include all areas
proposed if we determine they do not meet the definition of critical
habitat, may include some additional areas that meet the definition of
critical habitat, or may exclude some areas if we find the benefits of
exclusion outweigh the benefits of inclusion and exclusion will not
result in the extinction of the species. In our final rule, we will
clearly explain our rationale and the basis for our final decision,
including why we made changes, if any, that differ from this proposal.
Public Hearing
Section 4(b)(5) of the Act provides for a public hearing on this
proposal, if requested. Requests must be received by the date specified
in DATES. Such requests must be sent to the address shown in FOR
FURTHER INFORMATION CONTACT. We will schedule a public hearing on this
proposal, if requested, and announce the date, time, and place of the
hearing, as well as how to obtain reasonable accommodations, in the
Federal Register and local newspapers at least 15 days before the
hearing. We may hold the public hearing in person or virtually via
webinar. We will announce any public hearing on our website, in
addition to the Federal Register. The use of virtual public hearings is
consistent with our regulations at 50 CFR 424.16(c)(3).
Previous Federal Actions
On January 4, 2018, we published a proposed rule in the Federal
Register (83 FR 490) to list the Barrens topminnow as an endangered
species under the Act. At the time of our proposal, we determined that
designation of critical habitat was prudent but not determinable
because specific information needed to analyze the impacts of
designation was lacking. We published the final listing rule on October
21, 2019 (84 FR 56131). Please refer to the proposed and final listing
rules (83 FR 490, January 4, 2018; 84 FR 56131, October 21, 2019) for a
detailed description of previous Federal actions concerning this
freshwater fish species.
Background
Critical Habitat
Critical habitat is defined in section 3 of the Act as:
(1) The specific areas within the geographical area occupied by the
species, at the time it is listed in accordance with the Act, on which
are found those physical or biological features
(a) Essential to the conservation of the species, and
(b) Which may require special management considerations or
protection; and
(2) Specific areas outside the geographical area occupied by the
species at the time it is listed, upon a determination that such areas
are essential for the conservation of the species.
Our regulations at 50 CFR 424.02 define the geographical area
occupied by the species as an area that may generally be delineated
around species' occurrences, as determined by the Secretary (i.e.,
range). Such areas may include those areas used throughout all or part
of the species' life cycle, even if not used on a regular basis (e.g.,
migratory corridors, seasonal habitats, and habitats used periodically,
but not solely by vagrant individuals).
Conservation, as defined under section 3 of the Act, means to use
and the use of all methods and procedures that are necessary to bring
an endangered or threatened species to the point at which the measures
provided pursuant to the Act are no longer necessary. Such methods and
procedures include, but are not limited to, all activities associated
with scientific resources management such as research, census, law
enforcement, habitat acquisition and maintenance, propagation, live
trapping, and transplantation, and, in the extraordinary case where
population pressures within a given ecosystem cannot be otherwise
relieved, may include regulated taking.
Critical habitat receives protection under section 7 of the Act
through the requirement that Federal agencies ensure, in consultation
with the Service, that any action they authorize, fund, or carry out is
not likely to result in the destruction or adverse modification of
critical habitat. The designation of critical habitat does not affect
land ownership or establish a refuge, wilderness, reserve, preserve, or
other conservation area. Such designation 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. Rather, designation requires that, where a
landowner requests Federal agency funding or authorization for an
action that may affect an area designated as critical habitat, the
Federal agency consult with the Service under section 7(a)(2) of the
Act. If the action may affect the listed species itself (such as for
occupied critical habitat), the Federal agency would have already been
required to consult with the Service even absent the designation
because of the requirement to ensure that the action is not likely to
jeopardize the continued existence of the species. Even if the Service
were to conclude after consultation that the proposed activity is
likely to result in destruction or adverse modification of the critical
habitat, the Federal action agency and the landowner are not required
to abandon the proposed activity, or to restore or recover the species;
instead, they must implement ``reasonable and prudent alternatives'' to
avoid destruction or adverse modification of critical habitat.
Under the first prong of the Act's definition of critical habitat,
areas within the geographical area occupied by the species at the time
it was listed are included in a critical habitat designation if they
contain physical or biological features (1) which are essential to the
conservation of the species and (2) which may require special
management considerations or protection. For these areas, critical
habitat designations identify, to the extent known using the best
scientific data available, those physical or biological features that
are essential to the conservation of the species (such as space, food,
cover, and protected habitat).
Under the second prong of the Act's definition of critical habitat,
we can designate critical habitat in areas outside the geographical
area occupied
[[Page 56256]]
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 section 9 of the Act.
Federally funded or permitted projects affecting listed species outside
their designated critical habitat areas may still result in jeopardy
findings in some cases. These protections and conservation tools will
continue to contribute to recovery of the species. Similarly, critical
habitat designations made on the basis of the best available
information at the time of designation will not control the direction
and substance of future recovery plans, habitat conservation plans
(HCPs), or other species conservation planning efforts if new
information available at the time of those planning efforts calls for a
different outcome.
Physical or Biological Features Essential to the Conservation of the
Species
In accordance with section 3(5)(A)(i) of the Act and regulations at
50 CFR 424.12(b), in determining which areas we will designate as
critical habitat from within the geographical area occupied by the
species at the time of listing, we consider the physical or biological
features that are essential to the conservation of the species and
which may require special management considerations or protection. The
regulations at 50 CFR 424.02 define ``physical or biological features
essential to the conservation of the species'' as the features that
occur in specific areas and that are essential to support the life-
history needs of the species, including, but not limited to, water
characteristics, soil type, geological features, sites, prey,
vegetation, symbiotic species, or other features. A feature may be a
single habitat characteristic or a more complex combination of habitat
characteristics. Features may include habitat characteristics that
support ephemeral or dynamic habitat conditions. Features may also be
expressed in terms relating to principles of conservation biology, such
as patch size, distribution distances, and connectivity. For example,
physical features essential to the conservation of the species might
include gravel of a particular size required for spawning, alkaline
soil for seed germination, protective cover for migration, or
susceptibility to flooding or fire that maintains necessary early-
successional habitat characteristics. Biological features might include
prey species, forage grasses, specific kinds or ages of trees for
roosting or nesting, symbiotic fungi, or absence of a particular level
of nonnative species consistent with conservation needs of the listed
species. The features may also be combinations of habitat
characteristics and may encompass the relationship between
characteristics or the necessary amount of a characteristic essential
to support the life history of the species.
In considering whether features are essential to the conservation
of the species, we may consider an appropriate quality, quantity, and
spatial and temporal arrangement of habitat characteristics in the
context of the life-history needs, condition, and status of the
species. These characteristics include, but are not limited to, space
for individual and population growth and for normal behavior; 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.
Summary of Essential Physical or Biological Features
We derive the specific physical or biological features essential to
the conservation of Barrens topminnow from studies of this species'
habitat, ecology, and life history as described in the SSA report
(Service 2017, entire); January 4, 2018, proposed listing rule (83 FR
490); and October 21, 2019, final listing rule (84 FR 56131). As
described in the SSA report and listing rules, Barrens topminnows spawn
in filamentous algae near the water surface, between April and August,
with peak activity occurring from May to June. While the maximum age of
the Barrens topminnow is 4 years, adults typically live for 2 years or
less, and only about one-third of individuals spawn more than one
season (Rakes 1989, p. 42; Etnier and Starnes 1993, p. 366). Prey items
consumed by Barrens topminnows consist predominantly of
microcrustaceans and immature aquatic insect larvae. However, the
species is a generalist feeder, also consuming small snails and
terrestrial organisms such as ants and other insects that fall or
wander into aquatic habitats (Rakes 1989, pp. 18-25).
Barrens topminnow habitat is restricted to springhead pools and
slow-flowing areas of spring runs on the Barrens Plateau in middle
Tennessee. This species is known to have occurred historically at 18
sites, but likely occurred at more sites that were not surveyed prior
to topminnow extirpation. These fish are strongly associated with
abundant native aquatic vegetation, which they use for cover and as
spawning substrate (Service 2017, pp. 7-9). Spawning occurs primarily
over clumps of filamentous algae (Cladophora and Pithophora species).
Recently deposited eggs are nearly
[[Page 56257]]
colorless and well camouflaged among the many air bubbles generated
during photosynthesis and trapped in the algae (Rakes 1989, pp. 29-30).
In addition to clumps of algae, plants used by Barrens topminnows for
cover include watercress (Nasturtium officinale), rushes (Juncus),
pondweed (Potamogeton), and eelgrass (Valisneria) (Service 2017, p. 7).
Barrens topminnows have only been found in streams where the
predominant source of base flow is groundwater. Due to the groundwater
influence of these habitats, temperatures are relatively stable,
ranging from 15 to 25 degrees Celsius ([deg]C) (59 to 77 degrees
Fahrenheit ([deg]F)) (Service, p. 7). Barrens topminnows only occur in
and are adapted to surface streams predominantly fed by adjacent
groundwater sources and typically are clear during baseflow. In
unaltered landscapes, turbidity increases in these streams are
temporary, resulting from inputs of sediments and nutrients in runoff
following precipitation events. Because Barrens topminnows are adapted
to clear groundwater-fed streams, use visual cues such as sunlight and
male coloration (Rakes 1989, p. 35) for spawning, and rely in part on
eyesight to chase prey (Rakes 1989, p. 18), long periods of elevated
turbidity may negatively impact populations.
The primary habitat elements that influence resiliency of the
Barrens topminnow include water quality, water persistence, and
submerged or overhanging plant cover. We have determined that the
following physical or biological features are essential to the
conservation of the Barrens topminnow:
(1) Groundwater-fed, first or second order streams and springs that
persist annually;
(2) Water temperature ranging from 15 to 25 [deg]C (59 to 77
[deg]F);
(3) Water during base flow with limited turbidity that is
sufficiently clear for individuals to see spawning and feeding cues;
(4) Submerged native aquatic plants, such as Cladophora and
Pithophora species, watercress (Nasturtium officinale), rushes (Juncus
spp.), pondweed (Potamogeton spp.), and eelgrass (Vallisneria spp.), or
overhanging terrestrial plants and submerged plant roots, to provide
cover and surfaces for spawning; and
(5) A prey base of microcrustaceans and small aquatic insects such
as chironomids (midges).
Special Management Considerations
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 Barrens
topminnow may require special management considerations or protection
to reduce the following threats: (1) Landscape conversion, including
(but not limited to) urban, commercial, and agricultural use, and
infrastructure (roads, bridges, utilities); (2) urban and agricultural
water uses (water supply reservoirs, wastewater treatment, etc.); (3)
significant alteration of water quality; (4) impacts from invasive
species; and (5) changes and shifts in seasonal precipitation patterns
as a result of climate change.
Management activities that could help ameliorate these threats
include, but are not limited to, the following: (1) Use of best
management practices to limit or reduce sedimentation (suspended
sediment influxes), such as those provided in the Tennessee Department
of Environment and Conservation (TDEC) Erosion and Sediment Control
Handbook (TDEC 2012, entire); (2) retention of natural barriers, and
maintenance or construction of barriers that isolate Barrens topminnows
from invasive mosquitofish; and (3) installation of wells to provide a
groundwater source of surface water at drought-sensitive sites.
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. We are proposing to designate
critical habitat in areas within the geographical area occupied by the
species at the time of listing. We also are proposing to designate one
specific area outside the geographical area occupied by the species
because we have determined that the area are is essential for the
conservation of the species (see Areas Outside the Geographic Area
Occupied at the Time of Listing, below).
The Barrens topminnow has a naturally limited range, and its
current distribution is much reduced from its historical distribution.
Meeting the conservation and recovery needs of the species will require
continued protection of existing populations and habitat, as well as
management to ensure there are adequate numbers of individuals in
stable populations at sites in native watersheds where mosquitofish
are, or can be, excluded. This approach will reduce the likelihood that
catastrophic events, such as extreme droughts or introduction/invasion
of mosquitofish at an occupied site, do not simultaneously affect all
known populations to the same extent. In addition, rangewide recovery
considerations, such as maintaining existing genetic diversity and
striving for representation of all major portions of the species'
current range, were considered in formulating this proposed critical
habitat designation.
Areas Occupied at the Time of Listing
We identified all spring pools (pond-like, with little or no flow)
and spring runs (groundwater-fed, flowing surface water) that supported
populations of the Barrens topminnow at the time of listing. Rangewide
sampling undertaken at 37 spring sites since 2013 (Tennessee Aquarium
Conservation Institute (TNACI) 2014, p. 11; TNACI 2017, p. 3) verified
the current occurrence of Barrens topminnow at six sites (Service 2017,
p. 12): Benedict Spring, Big Spring (Merkle), McMahan Creek, Marcum
Spring, Short Spring, and Greenbrook Pond. The species has been shown
in intermittent surveys over several decades to persist at these sites.
In 2023, a population of Barrens topminnow was discovered in Pepper
Hollow Branch, Grundy County, Tennessee. At the time of listing in
2019, Barrens topminnows were not known to occupy Pepper Hollow Branch.
This stream is at the eastern edge of the Barrens Plateau and has not
been well surveyed. Given this stream's proximity to the previously
known range of the Barrens topminnow and, until recently, scarcity of
reported fish surveys, it is very likely the newly discovered
population is native and was not introduced after the time of listing.
As such, there is little uncertainty that Barrens topminnows were
present in Pepper Hollow Branch at the time of listing, and we include
the stream in our proposed critical habitat designation. Mosquitofish
are not present in Pepper Hollow Branch, although no barriers to
potential mosquitofish incursions have been observed. This area also
increases the species' viability, which is essential for the
conservation of the Barrens topminnow. All five physical or biological
features essential to the conservation of the species are present in
Pepper Hollow Branch.
[[Page 56258]]
One occupied site, Greenbrook Pond, contains an introduced
population (present at the time of listing) outside the historical
range of the species, but within the middle portion of the Caney Fork
River watershed, the upper portions of which are in the species'
historical range. All sites occupied at the time of listing (Benedict
Spring, Big Spring (Merkle), McMahan Creek, Marcum Spring, Short
Spring, Greenbrook Pond, and Pepper Hollow Branch) currently have all
five essential physical or biological features for Barrens topminnow
populations. Importantly, all occupied sites except Big Spring (Merkle)
are currently free of mosquitofish, and five of the six sites without
mosquitofish have a barrier to mosquitofish invasion. Barrens
topminnows were thought to be potentially extirpated from Big Spring
(Merkle) but were re-documented at this site on February 16, 2018
(captured and released on February 15, 2018) (Neely 2018, pers. comm.).
Although Big Spring (Merkle) is not free of mosquitofish and lacks a
barrier to further mosquitofish invasion, topminnows in the spring
appear to outnumber mosquitofish.
Areas Outside the Geographic Area Occupied at the Time of Listing
We are proposing to designate one area outside the geographical
area occupied at the time of listing by the species, Vervilla Spring
because the area is essential for the conservation of the Barrens
topminnow. Although it is not currently occupied, Vervilla Spring is
within the Caney Fork River watershed where native populations of the
Barrens topminnow occur. Vervilla Spring is on the Tennessee National
Wildlife Refuge and sustained a population of introduced Caney Fork
watershed Barrens topminnows from 2001 until 2011. However, the
population succumbed to mosquitofish that, during a flood, circumvented
a constructed barrier. It is feasible to remove all mosquitofish and
rebuild the barrier so that it is more robust. With a strong barrier to
mosquitofish in place, restocking can occur, establishing a new
population. Reestablishing the population would increase Barrens
topminnow redundancy, resiliency, and viability, promoting conservation
and increasing the likelihood species recovery. Without the habitat
provided by the unoccupied area, species recovery and conservation are
less likely to be attained. All five physical or biological features
essential to Barrens topminnow conservation are present in Vervilla
Spring, which is habitat for the species because it provides adequate
cover from predation, food resources, substrate (aquatic vegetation)
for successful spawning and recruitment, and water quality that meets
the species' physiological needs. The upper ends of all proposed
critical habitat units are demarcated by the place where surface water
emerges from the ground to form the head of the spring, or where
permanent flow begins, which is approximately the location of the
upstream-most record of Barrens topminnow in each proposed unit. Except
for Big Spring (Merkle) and Pepper Hollow Branch, the downstream ends
of the proposed units are demarcated by a barrier to mosquitofish. The
downstream ends of critical habitat at Big Spring (Merkle) and Pepper
Hollow Branch are approximately the location of the downstream-most
record of Barrens topminnow.
When determining proposed 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
the essential physical or biological features. 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 proposed rule have been excluded
by text in the proposed rule and are not proposed for designation as
critical habitat. Therefore, if the critical habitat is finalized as
proposed, a Federal action involving these lands would not trigger
section 7 consultation with respect to critical habitat and the
requirement of no adverse modification unless the specific action would
affect the physical or biological features in the adjacent critical
habitat.
The proposed 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 Proposed Regulation Promulgation. All
proposed units contain all of the identified physical or biological
features and support multiple life-history processes. We will make the
coordinates or plot points or both on which each map is based available
to the public on https://www.regulations.gov at Docket No. FWS-R4-ES-
2023-0224, on our internet site (https://www.fws.gov/office/tennessee-ecological-services), and at the field office responsible for the
designation (see FOR FURTHER INFORMATION CONTACT, above).
Proposed Critical Habitat Designation
We propose to designate approximately 1.5 acres (ac) (0.6 hectares
(ha)) of spring pool and 11.4 miles (mi) (18.3 kilometers (km)) of
spring run in eight units as critical habitat for the Barrens
topminnow. The table below shows the name, land ownership of the
riparian areas surrounding the units, and surface area (for spring
pools) or length (for stream runs) of the proposed units. Ownership of
spring run and spring pool bottoms is determined by the adjacent
riparian land ownership. These riparian areas are not part of the
proposed critical habitat designation.
Table of Proposed Critical Habitat Unit Occupancy Status, Land Ownership, and Size
----------------------------------------------------------------------------------------------------------------
Length or area of unit in
Critical habitat unit Occupied at time of Land ownership by type miles (kilometers) or
listing? acres (hectares)
----------------------------------------------------------------------------------------------------------------
1. McMahan Creek................... Yes................... Private............... 0.8 mi (1.3 km).
2. Benedict Spring................. Yes................... Private............... 0.1 ac (0.04 ha).
3. Short Spring.................... Yes................... City of Tullahoma..... 1.0 ac (0.4 ha).
4. Vervilla Spring................. No.................... Federal............... 0.2 mi (0.3 km).
5. Marcum Spring................... Yes................... Private............... 0.6 mi (0.9 km).
6. Greenbrook Pond................. Yes................... City of Smithville.... 0.1 mi (0.16 km); 0.4 ac
(0.16 ha).
7. Big Spring (Merkle)............. Yes................... Private............... 0.5 mi (0.85 km).
8. Pepper Hollow Branch............ Yes................... Private............... 9.2 mi (14.8 km).
----------------------------
Total pool area................ ...................... ...................... 1.5 ac (0.6 ha).
Total stream length............ ...................... ...................... 11.4 mi (18.3 km).
----------------------------------------------------------------------------------------------------------------
* Note: Area sizes may not sum due to rounding.
[[Page 56259]]
We present brief descriptions of the proposed units, and reasons
why they meet the definition of critical habitat for Barrens topminnow,
below.
Unit 1: McMahan Creek
Unit 1, a spring run, consists of 0.8 mi (1.3 km) of McMahan Creek
in Cannon County. The upstream end of the unit is at the confluence of
the source spring run (unnamed) and McMahan Creek, just north of the
Woodland Estates subdivision. The downstream end is to the south, where
McMahan Creek goes under Geedsville Road. This unit was occupied at the
time of listing and is currently occupied by the Barrens topminnow. In
addition, the unit currently supports all breeding, feeding, and
sheltering needs for the species and contains all of the physical or
biological features essential to the conservation of the Barrens
topminnow. The riparian land adjacent to the unit is privately owned.
Special management considerations or protection may be required to
address sediment washing into the creek from adjacent pasture and
residential areas. Fencing would reduce the likelihood of livestock
trampling instream vegetation, although adjacent lands are used for
grazing only intermittently. A concrete box culvert at the Geedsville
Road crossing at the downstream end of the unit is a barrier to
mosquitofish. Any future roadway maintenance or construction at the
crossing would require leaving the culvert intact or, in the case of
culvert replacement or modification, ensuring an alternative barrier
persists to prevent mosquitofish invasion.
Unit 2: Benedict Spring
Unit 2 is a 0.1-ac (0.04-ha) spring pool in Coffee County, just
north of Highway 55, between Summitville Road to the west and Summit
Breeze Lane to the east. This unit was occupied at the time of listing
and is currently occupied by the Barrens topminnow. In addition, the
unit currently supports all breeding, feeding, and sheltering needs for
the species and contains all of the physical or biological features
essential to the conservation of the Barrens topminnow. The riparian
land adjacent to the unit is privately owned.
Special management considerations or protection may be required to
address drying of the spring pond. In 2006, 2007, 2008, 2010, and 2016,
the spring became almost completely dry, and topminnows had to be
rescued (TNACI 2014, p. 11; Service 2017, p. 20). They were returned to
the spring on each occasion, after drought subsided. Installation of a
well with a pump, employed during droughts, would prevent the need to
rescue topminnows. Assurance of a constant water supply to the spring
pool during drought would reduce stress on the topminnow population in
proposed Unit 2, which otherwise will continue to endure frequent
periods of drought-induced stress due to elevated temperature, lowered
dissolved oxygen, enhanced depredation, and handling necessary for
rescue efforts.
Unit 3: Short Spring
Unit 3 is a 1.0-ac (0.4-ha) spring pool in the city of Tullahoma,
in Coffee County, just west of Short Springs Road and just north of the
Short Springs Natural Area. The spring pool is formed by a concrete dam
and feeds a short, approximately 0.1-mile (0.16-km) spring run that
feeds Bobo Creek. The city owns the unit, and the natural area is
State-owned. This unit was occupied at the time of listing and is
currently occupied by the Barrens topminnow. In addition, the unit
currently supports all breeding, feeding, and sheltering needs for the
species and contains all of the physical or biological features
essential to the conservation of the Barrens topminnow.
Special management considerations may be required for Unit 3. For
example, controlling access to the unit for fishing may reduce the
likelihood of introductions of bait bucket species, including
mosquitofish, that can compete with or prey upon topminnows.
Unit 4: Vervilla Spring
Unit 4, in Warren County, is a 0.2-mile (0.3-km) reach consisting
of a series of spring pools and intervening spring run, with its
downstream end at the Hickory Creek Confluence, just upstream of the
confluence of Hickory Creek and West Fork Hickory Creek. The unit is
entirely within a parcel of the Tennessee National Wildlife Refuge,
owned and managed by the U.S. Fish and Wildlife Service. This unit was
historically occupied but is currently unoccupied by the Barrens
topminnow, and it is essential for the conservation of the species.
Adding a population of Barrens topminnow to this unoccupied unit, after
raising the level of the dam and removing mosquitofish, would increase
the species' resiliency and redundancy as is necessary for the
conservation and recovery of the species, and reduce the species'
likelihood of extinction. In addition, this unit is habitat for the
species; it contains all five physical or biological features essential
to the conservation of the species.
Unit 5: Marcum Spring
Unit 5, in Coffee County, consists of an isolated spring pool and
0.6 mile (0.9 km) of intervening spring run and natural spring pool
habitat that terminates in a small pond formed by a constructed
impoundment. The downstream end of the unit (the impounded pool) is at
Ovoca Road, where it empties to Ovoca Lake, a small-constructed
impoundment on Carroll Creek. This unit was occupied at the time of
listing and is currently occupied by the Barrens topminnow. In
addition, the unit currently supports all breeding, feeding, and
sheltering needs for the species and contains all of the physical or
biological features essential to the conservation of the Barrens
topminnow. The riparian land adjacent to the unit is privately owned.
Special management considerations or protection may be required to
address sediment washing into the spring from adjacent pasture and to
address filling portions of the spring for off-road heavy machinery
access, which has happened before (TNACI 2014, p. 15). In addition,
maintaining existing fencing at the site would continue to keep
livestock out of the stream.
Unit 6: Greenbrook Pond
Unit 6 consists of a 0.4-ac (0.16-ha) pond, which is an impounded
spring pool, and 0.1 mi (0.16 km) of spring run at the pond outflow, in
Greenbrook Park, in the city of Smithville, Dekalb County. This unit
was occupied at the time of listing and is currently occupied by the
Barrens topminnow. In addition, the unit currently supports all
breeding, feeding, and sheltering needs for the species and contains
all of the physical or biological features essential to the
conservation of the Barrens topminnow. The riparian land adjacent to
the unit is owned by the city of Smithville.
Special management considerations may be required for Unit 6.
Because the unit is in a public park, access to the unit for collecting
bait fish may need to be controlled, to reduce the likelihood of
capturing topminnows or of releasing unused bait fish, including
mosquitofish, that can compete with or prey upon topminnows.
Unit 7: Big Spring (Merkle)
Unit 7, in Franklin County, consists of a springhead and
approximately 0.5 mi (0.85 km) of spring run. The spring is marked as
Big Spring on topographic maps but is also referred to by the last name
of the landowner at the spring head, Merkle. The unit lies on two
private property parcels and is adjacent to a county road right-of-way.
[[Page 56260]]
The spring flows out of a springhead at the base of a hill and
through fields used for row-crop agriculture. The stretch upstream of
Georgia Crossing Road is surrounded by a row-crop field. Below Georgia
Crossing Road, there is more riparian vegetation, and the stream runs
adjacent to Hawkins Cove Road. Unit 7 terminates at the confluence with
Miller Creek.
This unit was occupied at the time of listing and is currently
occupied by the Barrens topminnow. In addition, the unit currently
supports all breeding, feeding, and sheltering needs for the species
and contains all of the physical or biological features essential to
the conservation of the Barrens topminnow. Special management
considerations may be required for streambank and riparian area
conservation projects that may occur in Unit 7 in the future. The
spring run has mostly been channelized and the banks cleared of
vegetation. Portions of the spring run are occasionally dammed by
beavers, creating more slackwater habitat and promoting aquatic
vegetation growth.
Unit 8: Pepper Hollow Branch
Unit 8 consists of 9.2 mi (14.8 km) of Pepper Hollow Branch and its
permanent tributary reaches upstream of the confluence with the Collins
River, in Grundy County, Tennessee. The upstream end of the unit starts
on mainstem Pepper Hollow Branch on the Cumberland Plateau, in a pine
plantation, from which the stream flows into and through hardwood
forest until it reaches the valley floor. Areas adjacent to Pepper
Hollow Branch in the valley are used for nursery production. The
unnamed tributaries feeding Pepper Hollow Branch are shaded and have a
mix of riffles and pools with some aquatic vegetation along their
margins. Tarlton Spring Run, the downstream-most tributary, contains
abundant aquatic vegetation and flows through open fields in the
valley. The riparian land adjacent to the unit consists of several
privately owned parcels.
This unit is currently occupied by the Barrens topminnow but had
not been surveyed and was not known to be occupied at the time of
listing. This unit is essential for the conservation of the species, as
this newly discovered population increases the species' resiliency and
redundancy as is necessary for conservation and recovery of the
species, and reduces the species' likelihood of extinction. In
addition, this unit contains all five physical or biological features
essential to the conservation of the species.
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 adverse
modification of designated critical habitat of such species. In
addition, section 7(a)(4) of the Act requires Federal agencies to
confer with the Service on any agency action which is likely to
jeopardize the continued existence of any species proposed to be listed
under the Act or result in the destruction or adverse modification of
proposed critical habitat.
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 (50 CFR 402.02).
Compliance with the requirements of section 7(a)(2) of the Act 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 formal 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 consultation. Reinitiation of consultation is
required and shall be requested by the Federal agency, where
discretionary Federal involvement or control over the action has been
retained or is authorized by law and: (1) If the amount or extent of
taking specified in the incidental take statement is exceeded; (2) 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; (3) 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 written
concurrence; or (4) if a new species is listed or critical habitat
designated that may be affected by the identified action. As provided
in 50 CFR 402.16, the requirement to reinitiate consultations for new
species listings or critical habitat designation does not apply to
certain agency actions (e.g., land management plans issued by the
Bureau of Land Management in certain circumstances).
Destruction or Adverse Modification of Critical Habitat
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 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 that our Federal Register
notices ``shall, to the maximum extent practicable also include a brief
description and evaluation of those activities (whether public or
private) which, in the opinion of the Secretary, if undertaken may
adversely modify [critical] habitat, or may be affected by such
designation.'' Activities that may be affected by designation of
critical habitat for the Barrens topminnow include those that may
affect the physical or biological features of the Barrens topminnow's
critical habitat (see Physical or Biological Features Essential to the
Conservation of the Species).
[[Page 56261]]
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. No DoD lands with a completed INRMP are within the
proposed 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 designated 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 (hereafter, the ``2016 Policy''; 81 FR 7226,
February 11, 2016), 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).
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. 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 our final rules, we explain any decision to exclude
areas, as well as decisions not to exclude, to make clear the rational
basis for our decision. We describe below the process that we use for
taking into consideration each category of impacts and any initial
analyses of the relevant impacts.
Consideration of 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. To assess the probable economic impacts of a
designation, we must first evaluate specific land uses or activities
and projects that may occur in the area of the critical habitat. We
then must evaluate the impacts that a specific critical habitat
designation may have on restricting or modifying specific land uses or
activities for the benefit of the species and its habitat within the
areas proposed. We then identify which conservation efforts may be the
result of the species being listed under the Act versus those
attributed solely to the designation of critical habitat for this
particular species. The probable economic impact of a proposed critical
habitat designation is analyzed by comparing scenarios both ``with
critical habitat'' and ``without critical habitat.''
The ``without critical habitat'' scenario represents the baseline
for the analysis, which includes the existing regulatory and socio-
economic burden imposed on landowners, managers, or other resource
users potentially affected by the designation of critical habitat
(e.g., under the Federal listing as well as other Federal, State, and
local regulations). Therefore, the baseline represents the costs of all
efforts attributable to the listing of the species under the Act (i.e.,
conservation of the species and its habitat incurred regardless of
whether critical habitat is designated). The ``with critical habitat''
scenario describes the incremental impacts associated specifically with
the designation of critical habitat for the species. The incremental
conservation efforts and associated impacts would not be expected
without the designation of critical habitat for the species. In other
words, the incremental costs are those attributable solely to the
designation of critical habitat, above and beyond the baseline costs.
These are the costs we use when evaluating the benefits of inclusion
and exclusion of particular areas from the final designation of
critical habitat should we choose to conduct a discretionary 4(b)(2)
exclusion analysis.
Executive Order (E.O.) 14094 supplements and reaffirms E.O. 12866
and E.O. 13563 and directs 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. Section 3(f) of E.O.
12866 identifies four criteria when a regulation is considered a
``significant regulatory action'' and requires additional analysis,
review, and approval if met. The criterion relevant here is whether the
designation of critical habitat may have an economic effect of $200
million or more in any given year (section 3(f)(1) as amended by E.O.
14094). Therefore, our consideration of economic impacts uses a
screening analysis to assess whether a designation of critical habitat
for the Barrens topminnow is likely to exceed the economically
significant threshold.
For this particular designation, we developed an incremental
effects memorandum (IEM) considering the probable incremental economic
impacts that may result from this proposed designation of critical
habitat. The information contained in our IEM was then used to develop
a screening analysis of the probable effects of the designation of
critical habitat for the Barrens topminnow (IEC 2023, entire). We began
by conducting a screening analysis of the proposed designation of
critical habitat in order to focus our analysis on the key factors that
are likely to result in incremental economic impacts. The purpose of
the screening analysis is to filter out particular geographical areas
of critical habitat that are already subject to such protections and
are, therefore, unlikely to incur incremental economic impacts. In
particular, the screening analysis considers baseline costs (i.e.,
absent critical habitat designation) and includes any probable
incremental economic impacts where land and water use may already be
subject to conservation plans, land management plans, best management
practices, or regulations that protect the habitat area as a result of
the Federal listing status of the species. Ultimately, the screening
analysis allows us to focus our analysis on evaluating the specific
areas or sectors that may incur probable
[[Page 56262]]
incremental economic impacts as a result of the designation.
The presence of the listed species in occupied areas of critical
habitat means that any destruction or adverse modification of those
areas is also likely to jeopardize the continued existence of the
species. Therefore, designating occupied areas as critical habitat
typically causes little if any incremental impacts above and beyond the
impacts of listing the species. As a result, we generally focus the
screening analysis on areas of unoccupied critical habitat (unoccupied
units or unoccupied areas within occupied units). Overall, the
screening analysis assesses whether designation of critical habitat is
likely to result in any additional management or conservation efforts
that may incur incremental economic impacts. This screening analysis
combined with the information contained in our IEM constitute what we
consider to be our draft economic analysis (DEA) of the proposed
critical habitat designation for the Barrens topminnow; our DEA is
summarized in the narrative below.
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 proposed
designation of critical habitat for the Barrens topminnow, first we
identified, in the IEM dated October 19, 2022, probable incremental
economic impacts associated with the following categories of
activities: (1) bridge or highway construction and maintenance; (2)
development and maintenance of utilities (e.g., pipelines); (3)
agriculture; (4) water quality permitting; and (5) stream restoration.
We considered each industry or category individually. Additionally, we
considered whether their 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. The species was listed as endangered
on November 20, 2019 (see 84 FR 56131; October 21, 2019). Therefore, in
areas where the Barrens topminnow is present, under section 7 of the
Act, Federal agencies are required to consult with the Service on
activities they fund, permit, or implement that may affect the species.
If we finalize this proposed critical habitat designation, our
consultations would include an evaluation of measures to avoid the
destruction or adverse modification of critical habitat.
In our IEM, we attempted to clarify the distinction between the
effects that result from the species being listed and those that would
be attributable to the critical habitat designation (i.e., difference
between the jeopardy and adverse modification standards) for the
Barrens topminnow's critical habitat. The following specific
circumstances 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 likely adversely affect the essential physical or
biological features of occupied critical habitat are also likely to
adversely affect the species itself. 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 proposed designation.
The proposed critical habitat designation for the Barrens topminnow
totals approximately 1.5 ac (0.6 ha) of spring pool and 11.4 mi (18.3
km) of spring run, which includes both occupied and unoccupied habitat.
Within the currently occupied springs (proposed Units 1, 2, 3, 5, 6, 7,
and 8), any actions that may affect the species would likely also
affect proposed critical habitat and it is unlikely that any additional
conservation efforts would be required to address the adverse
modification standard over and above those recommended as necessary to
avoid jeopardizing the continued existence of the species. Thus,
incremental project modifications resulting solely from the presence of
occupied critical habitat are not anticipated. In total, approximately
21 section 7 consultations are anticipated to occur over the next 10
years in the occupied units, with total costs to the Service and action
agencies of $75,800, or approximately $7,600 per year.
Within the unoccupied Vervilla Spring (proposed Unit 4), any future
projects that may affect the Barrens topminnow or its critical habitat
would result in section 7 consultation because the spring is on
federally managed land. It is not clear that substantial project
modifications to proposed Unit 4 would be required to accommodate
critical habitat over and above what would already be anticipated to
occur under the baseline. With or without critical habitat, this area
will be managed for Barrens topminnow conservation because the Service
plans to reintroduce Barrens topminnow into this area. In other words,
raising the height of the mosquitofish exclusion barrier and
rehabilitating the unoccupied unit would have been completed to promote
species recovery by improving the habitat prior to occupation by the
Barrens topminnow regardless of a critical habitat designation.
Nevertheless, the screening analysis assumed that raising the height of
the mosquitofish barrier and rehabilitating unoccupied proposed Unit 4
is an incremental cost due to the designation of critical habitat. The
Service estimates the one-time cost of barrier replacement at $12,500.
In addition to barrier replacement, according to the IEM, one new
formal section 7 consultation considering only adverse modification is
anticipated to occur in proposed Unit 4 during the next 10 years, at a
cost of $17,000. One informal consultation, with estimated
administrative costs of $8,000, is also anticipated for proposed Unit
4. Therefore, the total incremental cost for proposed Unit 4 is
estimated at $37,500 during the next 10 years, or approximately $3,800
per year. The total incremental cost for all eight units is estimated
at less than $76,000 over the next 10 years, or $7,600 per year. These
costs would not reach the threshold of ``significant'' under E.O.
12866.
As noted above, in proposed Unit 8, which is occupied but was not
known to be occupied at the time of listing, any actions that may
affect the species would likely also affect proposed critical habitat,
and it is unlikely that any additional conservation efforts would be
required to address the adverse modification standard over and above
those recommended as necessary to avoid jeopardizing the continued
existence of the species.
We are soliciting data and comments from the public on the DEA
discussed above. During the development of a final designation, we will
consider the information presented in the DEA and any additional
information on economic impacts we receive during the public comment
period to determine whether any specific areas should be excluded from
the final critical habitat designation under authority of section
4(b)(2) of the Act, our implementing regulations at 50 CFR 424.19, and
the 2016 Policy. We may exclude an area from critical habitat if we
determine that the benefits of excluding the area outweigh the benefits
of including the area, provided the exclusion will not result in the
extinction of this species.
[[Page 56263]]
Consideration of National Security Impacts
Section 4(a)(3)(B)(i) of the Act may not cover all DoD lands or
areas that pose potential national-security concerns (e.g., a DoD
installation that is in the process of revising its INRMP for a newly
listed species or a species previously not covered). If a particular
area is not covered under section 4(a)(3)(B)(i), then national-security
or homeland-security concerns are not a factor in the process of
determining what areas meet the definition of ``critical habitat.''
However, we must still consider impacts on national security, including
homeland security, on those lands or areas not covered by section
4(a)(3)(B)(i) because section 4(b)(2) requires us to consider those
impacts whenever it designates critical habitat. Accordingly, if DoD,
Department of Homeland Security (DHS), or another Federal agency has
requested exclusion based on an assertion of national-security or
homeland-security concerns, or we have otherwise identified national-
security or homeland-security impacts from designating particular areas
as critical habitat, we generally have reason to consider excluding
those areas.
However, we cannot automatically exclude requested areas. When DoD,
DHS, or another Federal agency requests exclusion from critical habitat
on the basis of national-security or homeland-security impacts, we must
conduct an exclusion analysis if the Federal requester provides
information, including a reasonably specific justification of an
incremental impact on national security that would result from the
designation of that specific area as critical habitat. That
justification could include demonstration of probable impacts, such as
impacts to ongoing border-security patrols and surveillance activities,
or a delay in training or facility construction, as a result of
compliance with section 7(a)(2) of the Act. If the agency requesting
the exclusion does not provide us with a reasonably specific
justification, we will contact the agency to recommend that it provide
a specific justification or clarification of its concerns relative to
the probable incremental impact that could result from the designation.
If we conduct an exclusion analysis because the agency provides a
reasonably specific justification or because we decide to exercise the
discretion to conduct an exclusion analysis, we will defer to the
expert judgment of DoD, DHS, or another Federal agency as to: (1)
Whether activities on its lands or waters, or its activities on other
lands or waters, have national-security or homeland-security
implications; (2) the importance of those implications; and (3) the
degree to which the cited implications would be adversely affected in
the absence of an exclusion. In that circumstance, in conducting a
discretionary section 4(b)(2) exclusion analysis, we will give great
weight to national-security and homeland-security concerns in analyzing
the benefits of exclusion.
In preparing this proposal, we have determined that the lands
within the proposed designation of critical habitat for the Barrens
topminnow are not owned or managed by the DoD or DHS, and, therefore,
we anticipate no impact on national security or homeland security.
Consideration of 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 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 safe harbor agreements (SHAs), candidate
conservation agreements with assurances (CCAAs) or ``conservation
benefit agreement'' or ``conservation agreement'' (CBAs) (CBAs are a
new type of agreement replacing SHAs and CCAAs in use after April 2024
(89 FR 26070; April 12, 2024)) or HCPs, or whether there are non-
permitted conservation agreements and partnerships that may be impaired
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 proposal, we have determined that no HCPs or
other management plans for the Barrens topminnow currently exist, and
the proposed designation does not include any Tribal lands or trust
resources or any lands for which designation would have any economic or
national-security impacts. Therefore, we anticipate no impact on Tribal
lands, partnerships, or HCPs from this proposed critical habitat
designation, and thus, as described above, we are not considering
excluding any particular areas on the basis of the presence of
established conservation agreements or impacts to trust resources.
When analyzing other relevant impacts of including a particular
area in a designation of critical habitat, we weigh those impacts
relative to the conservation value of the particular area. To determine
the conservation value of designating a particular area, we consider a
number of factors, including, but not limited to, the additional
regulatory benefits that the area would receive due to the protection
from destruction or adverse modification as a result of actions with a
Federal nexus, the educational benefits of mapping essential habitat
for recovery of the listed species, and any benefits that may result
from a designation due to State or Federal laws that may apply to
critical habitat.
After identifying the benefits of inclusion and the benefits of
exclusion, we carefully weigh the two sides to evaluate whether the
benefits of exclusion outweigh those of inclusion. If our analysis
indicates that the benefits of exclusion outweigh the benefits of
inclusion, we then determine whether exclusion would result in
extinction of the species. If exclusion of an area from critical
habitat will result in extinction, we will not exclude it from the
designation.
The Service's Partners for Fish and Wildlife (PFW) program is
developing conservation agreements with landowners at Benedict Spring
and Greenbrook Pond, proposed Units 2 and 6, respectively. At Benedict
Spring, a well would be developed and a pump installed to maintain a
water supply that would keep the spring full during periods of drought
to conserve the Barrens topminnow. Lands adjacent to the spring pool
and spring run constituting the proposed Greenbrook Pond Unit would
continue to be managed as a city park, under which the population of
topminnows has persisted in high numbers. Therefore, as indicated in
Information Requested, we are requesting information on whether the
benefits of excluding any areas where PFW conservation agreements are
developed may outweigh inclusion under section 4(b)(2) of the Act, and
the Secretary may exclude these areas from the final designation of
critical habitat for the Barrens topminnow.
If through the public comment period we receive information that we
determine indicates that there are potential economic, national
security, or other relevant impacts from designating particular areas
as critical habitat, then as part of developing the final designation
of critical habitat, we will evaluate that information and may
[[Page 56264]]
conduct a discretionary exclusion analysis to determine whether to
exclude those areas under authority of section 4(b)(2) of the Act and
our implementing regulations at 50 CFR 424.19. If we receive a request
for exclusion of a particular area and after evaluation of supporting
information we do not exclude, we will fully describe our decision in
the final rule for this action.
Correction
In this proposed rule, we include a correction to the final listing
rule's citation in the entry for the Barrens topminnow in the List of
Endangered and Threatened Wildlife (List) at 50 CFR 17.11(h). When the
final listing rule published (84 FR 56131; October 21, 2019), in the
``Listing citations and applicable rules'' column of the List, the
wrong volume number was included in the citation for the Barrens
topminnow's listing rule. We reflect the corrected information under
Proposed Regulation Promulgation, below. As explained at 50 CFR
17.11(f), the ``Listing citations and applicable rules'' column of the
List is nonregulatory in nature and is provided for informational and
navigational purposes only.
Required Determinations
Clarity of the Rule
We are required by Executive Orders 12866 and 12988 and by the
Presidential Memorandum of June 1, 1998, to write all rules in plain
language. This means that each rule we publish must:
(1) Be logically organized;
(2) Use the active voice to address readers directly;
(3) Use clear language rather than jargon;
(4) Be divided into short sections and sentences; and
(5) Use lists and tables wherever possible.
If you feel that we have not met these requirements, send us
comments by one of the methods listed in ADDRESSES. To better help us
revise the rule, your comments should be as specific as possible. For
example, you should tell us the numbers of the sections or paragraphs
that are unclearly written, which sections or sentences are too long,
the sections where you feel lists or tables would be useful, etc.
Regulatory Planning and Review (Executive Orders 12866, 13563, and
14094)
Executive Order 14094 reaffirms the principles of E.O. 12866 and
E.O. 13563 and states that regulatory analysis should facilitate agency
efforts to develop regulations that serve the public interest, advance
statutory objectives, and are consistent with E.O. 12866, E.O. 13563,
and the Presidential Memorandum of January 20, 2021 (Modernizing
Regulatory Review). Regulatory analysis, as practicable and
appropriate, shall recognize distributive impacts and equity, to the
extent permitted by law. 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 proposed rule in a manner consistent with
these requirements.
E.O. 12866, as reaffirmed by E.O. 13563 and E.O. 14094, provides
that the Office of Information and Regulatory Affairs (OIRA) in the
Office of Management and Budget (OMB) will review all significant
rules. OIRA has determined that this rule is not significant.
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 (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 as understood in light of 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 would be directly
regulated if we adopt the proposed critical habitat designation. The
RFA does not require evaluation of the potential impacts to entities
not directly regulated. Moreover, Federal agencies are not small
entities. Therefore, because no small entities would be directly
regulated by this rulemaking, the Service certifies that, if made final
as proposed, this critical habitat designation will not have a
significant economic impact on a substantial number of small entities.
In summary, we have considered whether the proposed designation
would result in a significant economic impact on a substantial number
of small entities. For the above reasons and based on currently
available information, we certify that, if made final as proposed, the
critical habitat designation will not have a significant economic
impact on a substantial number of small business entities. Therefore,
an initial regulatory flexibility analysis is not required.
[[Page 56265]]
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 ``to the extent
permitted by law'' when undertaking actions identified as significant
energy actions. E.O. 13211 defines a ``significant energy action'' as
an action that (i) is a significant regulatory action under E.O. 12866
(or any successor order, including most recently E.O. 14094); and (ii)
is likely to have a significant adverse effect on the supply,
distribution, or use of energy. In our economic analysis, we did not
find that this proposed critical habitat designation would
significantly affect energy supplies, distribution, or use. Therefore,
this action is not a significant energy action, and there is no
requirement to prepare a statement of energy effects for this action.
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 findings:
(1) This proposed rule would 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 are not likely to 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
programs listed above onto State governments.
(2) We do not believe that this proposed rule would significantly
or uniquely affect small governments. One of the proposed critical
habitat units is on federally owned land and five units are on private
land, and thus these six units are not on property belonging to small
governments. Two of the eight proposed units are on city property, but
one is within a city park, while the other is within city boundaries
and abuts a State natural area. Additionally, all proposed units are
groundwater-fed pools or streams that are not suitable for development
of buildings or housing.
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 the Barrens topminnow in a takings implications assessment.
The Act does not authorize the Service 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
proposed designation of critical habitat for the Barrens topminnow, and
it concludes that, if adopted as proposed, 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 proposed 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 proposed critical habitat designation
with, the appropriate State resource agency in Tennessee. 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 proposed rule
does not have substantial direct effects either on the State, or on the
relationship between the national government and the State, or on the
distribution of powers and responsibilities among the various levels of
government. The proposed 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 necessary 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 these 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) would be required.
[[Page 56266]]
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 does not
unduly burden the judicial system and that it meets the requirements of
sections 3(a) and 3(b)(2) of the Order. We have proposed designating
critical habitat in accordance with the provisions of the Act. To
assist the public in understanding the habitat needs of the species,
this proposed rule identifies the elements of physical or biological
features essential to the conservation of the species. The proposed
areas of designated critical habitat are presented on maps, and the
proposed 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.)
Regulations adopted pursuant to section 4(a) of the Act are exempt
from the National Environmental Policy Act (NEPA; 42 U.S.C. 4321 et
seq.) and do not require an environmental analysis under NEPA. We
published a notice outlining our reasons for this determination in the
Federal Register on October 25, 1983 (48 FR 49244). This includes
listing, delisting, and reclassification rules, as well as critical
habitat designations. In a line of cases starting with Douglas County
v. Babbitt, 48 F.3d 1495 (9th Cir. 1995), the courts have upheld this
position.
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), E.O. 13175 (Consultation and Coordination
With Indian Tribal Governments), the President's memorandum of November
30, 2022 (Uniform Standards for Tribal Consultation; 87 FR 74479,
December 5, 2022), 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 Secretary's 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. As discussed earlier in this document, we have determined
that no Tribal lands would be affected by this proposed critical
habitat designation.
References Cited
A complete list of references cited in this rulemaking is available
on the internet at https://www.regulations.gov under Docket No. FWS-R4-
ES-2023-0224 and upon request from the Tennessee Ecological Services
Field Office (see FOR FURTHER INFORMATION CONTACT).
Authors
The primary authors of this proposed rule are the staff members of
the U.S. Fish and Wildlife Service Species Assessment Team and
Tennessee 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.
Proposed Regulation Promulgation
Accordingly, we propose to further 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. In Sec. 17.11, amend paragraph (h) by revising the entry for
``Topminnow, Barrens'' in the List of Endangered and Threatened
Wildlife 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
* * * * * * *
Topminnow, Barrens.............. Fundulus julisia.. Wherever found.... E 84 FR 56131, 10/21/
2019; 50 CFR
17.95(e).\CH\
* * * * * * *
----------------------------------------------------------------------------------------------------------------
0
3. In Sec. 17.95, amend paragraph (e) by adding an entry for ``Barrens
Topminnow (Fundulus julisia)'' immediately following the entry for
``Spring Pygmy Sunfish (Elassoma alabamae)'' to read as follows:
Sec. 17.95 Critical habitat--fish and wildlife.
* * * * *
(e) Fishes.
* * * * *
Barrens Topminnow (Fundulus julisia)
(1) Critical habitat units are depicted for Cannon, Coffee, Dekalb,
Franklin, Grundy, and Warren Counties, Tennessee, on the maps in this
entry.
[[Page 56267]]
(2) Within these areas, the physical or biological features
essential to the conservation of the Barrens topminnow consist of the
following components:
(i) Groundwater-fed, first or second order streams and springs that
persist annually;
(ii) Water temperature ranging from 15 to 25 degrees Celsius
([deg]C) (59 to 77 degrees Fahrenheit ([deg]F));
(iii) Water during base flow with limited turbidity that is
sufficiently clear for individuals to see spawning and feeding cues;
(iv) Submerged native aquatic plants, such as Cladophora and
Pithophora species, watercress (Nasturtium officinale), rushes (Juncus
spp.), pondweed (Potamogeton spp.), and eelgrass (Vallisneria spp.), or
overhanging terrestrial plants and submerged plant roots, to provide
cover and surfaces for spawning; and
(v) A prey base of microcrustaceans and small aquatic insects such
as chironomids (midges).
(3) Critical habitat does not include manmade 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
[EFFECTIVE DATE OF FINAL RULE].
(4) Data layers defining map units were created using Universal
Transverse Mercator (UTM) Zone 16N coordinates. The hydrologic data
used in the maps were extracted from U.S. Geological Survey National
Hydrography Dataset High Resolution (1:24,000 scale) using Geographic
Coordinate System North American 1983 coordinates. 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 https://www.regulations.gov under Docket No. FWS-R4-ES-2023-0224 and
at the field office responsible for this designation. You may obtain
field office location information by contacting one of the Service
regional offices, the addresses of which are listed at 50 CFR 2.2.
(5) Note: Index map follows:
Figure 1 to Barrens Topminnow (Fundulus julisia) paragraph (5)
BILLING CODE 4333-15-P
[[Page 56268]]
[GRAPHIC] [TIFF OMITTED] TP09JY24.000
(6) Unit 1: McMahan Creek; Cannon County, Tennessee.
(i) Unit 1 consists of approximately 0.8 mile (mi) (1.3 kilometers
(km)) of McMahan Creek from the mouth of the unnamed perennial spring
run upstream of the Woodland Estates subdivision (35.7157[deg], -
86.0542[deg]), down to the bridge at Geedsville Road (35.7072[deg], -
86.0480[deg]), in Cannon County, Tennessee.
(ii) Map of Unit 1 follows:
[[Page 56269]]
Figure 2 to Barrens Topminnow (Fundulus julisia) paragraph (6)(ii)
[GRAPHIC] [TIFF OMITTED] TP09JY24.001
(7) Unit 2: Benedict Spring; Coffee County, Tennessee.
(i) Unit 2 consists of an approximately 0.1-acre (ac) (0.04-hectare
(ha)) pond fed by a spring flowing out of a small cave, on a site
(35.5497, -85.9836) approximately 0.2 mi (0.3 km) west-southwest of the
Summitville Post Office.
(ii) Map of Unit 2 follows:
[[Page 56270]]
Figure 3 to Barrens Topminnow (Fundulus julisia) paragraph (7)(ii)
[GRAPHIC] [TIFF OMITTED] TP09JY24.002
(8) Unit 3: Short Spring; Coffee County, Tennessee.
(i) Unit 3 consists of a 1.0-ac (0.4-ha) impounded spring
(35.4045[deg], -86.1781[deg]) in Tullahoma, in Coffee County,
Tennessee.
(ii) Map of Unit 3 and Unit 5 follows:
[[Page 56271]]
Figure 4 to Barrens Topminnow (Fundulus julisia) paragraph (8)(ii)
[GRAPHIC] [TIFF OMITTED] TP09JY24.003
(9) Unit 4: Vervilla Spring; Warren County, Tennessee.
(i) Unit 4 is an approximately 0.2-mi (0.3-km) spring run located
on an outparcel of the Tennessee National Wildlife Refuge, owned and
managed by U.S. Fish and Wildlife Service, near the community of
Vervilla. The unit extends from the source of the spring run
(35.5870[deg], -85.8575[deg]) down to its mouth on Hickory Creek.
(ii) Map of Unit 4 follows:
[[Page 56272]]
Figure 5 to Barrens Topminnow (Fundulus julisia) paragraph (9)(ii)
[GRAPHIC] [TIFF OMITTED] TP09JY24.004
(10) Unit 5: Marcum Spring; Coffee County, Tennessee.
(i) Unit 5 is an approximately 0.6-mi (0.9-km) spring run,
including adjacent disconnected spring pools, that flows into Ovoca
Lake near Tullahoma, in Coffee County, Tennessee. Unit 5 (35.4090[deg],
-86.2052[deg]) runs from the source to the upper end of a pond just
above the outlet into Ovoca Lake.
(ii) Map of Unit 5 is provided at paragraph (8)(ii) of this entry.
(11) Unit 6: Greenbrook Pond; Dekalb County, Tennessee.
(i) Unit 6 is an approximately 0.4-ac (0.16-ha) pond and 0.1-mi
(0.16-km) spring run flowing from the pond, in Greenbrook Park, in the
city of Smithville.
(ii) Map of Unit 6 follows:
[[Page 56273]]
Figure 6 to Barrens Topminnow (Fondulus julisia) paragraph (11)(ii)
[GRAPHIC] [TIFF OMITTED] TP09JY24.005
(12) Unit 7: Big Spring (Merkle); Franklin County, Tennessee.
(i) Unit 7 consists of a springhead (35.1832[deg], -85.9831[deg])
and approximately 0.5-mi (0.85 km) of spring run between the springhead
and the confluence with Miller Creek (35.1761[deg], -85.9822[deg]).
(ii) Map of Unit 7 follows:
[[Page 56274]]
Figure 7 to Barrens Topminnow (Fondulus julisia) paragraph (12)(ii)
[GRAPHIC] [TIFF OMITTED] TP09JY24.006
(13) Unit 8: Pepper Hollow Branch; Grundy County, Tennessee.
(i) Unit 8 consists of 9.2 mi (14.8 km) of Pepper Hollow Branch and
its permanent tributary reaches upstream of the confluence with the
Collins River (35.5109[deg], -85.6686[deg]), located just downstream of
State Route 56.
(ii) Map of Unit 8 follows:
[[Page 56275]]
Figure 8 to Barrens Topminnow (Fondulus julisia) paragraph (13)(ii)
[GRAPHIC] [TIFF OMITTED] TP09JY24.007
* * * * *
Martha Williams,
Director, U.S. Fish and Wildlife Service.
[FR Doc. 2024-14320 Filed 7-8-24; 8:45 am]
BILLING CODE 4333-15-C