Endangered and Threatened Wildlife and Plants; Designation of Critical Habitat for Trispot Darter, 67190-67210 [2018-27976]

Agencies

• Fish and Wildlife Service
• DEPARTMENT OF THE INTERIOR

[Federal Register Volume 83, Number 248 (Friday, December 28, 2018)]
[Proposed Rules]
[Pages 67190-67210]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-27976]



[[Page 67190]]

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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-R4-ES-2018-0073; 4500090023]
RIN 1018-BD40


Endangered and Threatened Wildlife and Plants; Designation of 
Critical Habitat for Trispot Darter

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), propose to 
designate critical habitat for the trispot darter (Etheostoma trisella) 
under the Endangered Species Act of 1973 (Act), as amended. In total, 
approximately 181 river miles (291 kilometers) and 16,735 acres (6,772 
hectares) in the Coosa River system in Alabama, Georgia, and Tennessee 
fall within the boundaries of the proposed critical habitat 
designation. If we finalize this rule as proposed, it would extend the 
Act's protections to this species' critical habitat. We also announce 
the availability of a draft economic analysis (DEA) of the proposed 
designation.
    Elsewhere in today's Federal Register, we published a final rule 
listing the trispot darter as a threatened species under the Act.

DATES: We will accept comments on this proposed rule or the associated 
DEA that are received or postmarked on or before February 26, 2019. 
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 public hearings, in 
writing, at the address shown in FOR FURTHER INFORMATION CONTACT by 
February 11, 2019.

ADDRESSES: Comment submission: You may submit comments on this proposed 
rule or the associated DEA 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-2018-0073, 
which is the docket number for this rulemaking. Then, click on the 
Search button. On the resulting page, in the Search 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 Now!''
    (2) By hard copy: Submit by U.S. mail or hand-delivery to: Public 
Comments Processing, Attn: FWS-R4-ES-2018-0073, U.S. Fish and Wildlife 
Service, MS: BPHC, 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).
    Document availability: The DEA is available at https://www.fws.gov/daphne/, at https://www.regulations.gov under Docket No. FWS-R4-ES-2018-
0073, and at the Alabama Ecological Services Field Office (see FOR 
FURTHER INFORMATION CONTACT).
    The coordinates or plot points or both from which the maps are 
generated are included in the administrative record for this critical 
habitat designation and are available at https://www.fws.gov/daphne/, 
at https://www.regulations.gov at Docket No. FWS-R4-ES-2018-0073, and at 
the Alabama Ecological Services Field Office (see FOR FURTHER 
INFORMATION CONTACT). Any additional tools or supporting information 
that we may develop for this critical habitat designation will also be 
available at the Fish and Wildlife Service website and Field Office set 
out above, and may also be included in the preamble and/or at https://www.regulations.gov.

FOR FURTHER INFORMATION CONTACT: Bill Pearson, Field Supervisor, U.S. 
Fish and Wildlife Service, Alabama Ecological Services Field Office, 
1208 Main Street, Daphne, AL 36526; telephone 251-441-5181. Persons who 
use a telecommunications device for the deaf (TDD) may call the Federal 
Relay Service at 800-877-8339.

SUPPLEMENTARY INFORMATION:

Executive Summary

    Why we need to publish a rule. Under the Endangered Species Act, if 
we determine that any species is endangered or threatened, we must 
designate critical habitat, to the maximum extent prudent and 
determinable concurrently with listing. Designations and revisions of 
critical habitat can only be completed by issuing a rule.
    This rule proposes to designate critical habitat for the trispot 
darter. Elsewhere in today's Federal Register, we published a final 
rule listing the trispot darter as a threatened species under the Act.
    The basis for our action. Section 4(a)(3) of the Act requires that 
if we determine that any species is endangered or threatened, we must 
designate critical habitat, to the maximum extent prudent and 
determinable, concurrently with listing. 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, the impact on 
national security, and any other relevant impact of specifying any 
particular area as critical habitat.
    We prepared a draft economic analysis (DEA) of the proposed 
designation of critical habitat. We prepared a draft analysis of the 
economic impacts of the proposed critical habitat designation. In this 
proposed rule, we announce the availability of the DEA 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 the species status assessment 
report, which informed this proposed rule. 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 (factors negatively affecting the 
species) to the trispot darter. We invite any additional comment from 
the peer reviewers during this public comment period.

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 concerned government agencies, the scientific 
community, industry, or any other interested party concerning this 
proposed rule. We particularly seek comments concerning:
    (1) The reasons why we should or should not designate habitat as 
``critical habitat'' under section 4 of the Act (16 U.S.C. 1531 et 
seq.), including whether there are threats to the species from human 
activity, the degree of which can be expected to increase due to the 
designation, and whether that increase in threat outweighs the benefit 
of designation such that the designation of critical habitat may not be 
prudent.
    (2) Specific information on:

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    (a) The amount and distribution of trispot darter habitat, in 
particular locations and extent of spawning habitat used seasonally by 
the species;
    (b) What areas, that were occupied at the time of listing and that 
contain the physical or biological features essential to the 
conservation of the species, should be included in the designation and 
why;
    (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) What areas not occupied at the time of listing are essential 
for the conservation of the species and why.
    (3) Land use designations and current or planned activities in the 
subject areas and their possible impacts on proposed critical habitat.
    (4) Information on the projected and reasonably likely impacts of 
climate change on the trispot darter and proposed critical habitat.
    (5) Any probable economic, national security, or other relevant 
impacts of designating any area that may be included in the final 
designation, and the benefits of including or excluding areas that may 
be impacted.
    (6) Information on the extent to which the description of probable 
economic impacts in the draft economic analysis (DEA) is a reasonable 
estimate of the likely economic impacts.
    (7) 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.
    (8) The likelihood of adverse social reactions to the designation 
of critical habitat, as discussed in the associated documents of the 
DEA, and how the consequences of such reactions, if likely to occur, 
would relate to the conservation and regulatory benefits of the 
proposed critical habitat designation.
    (9) 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.
    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.
    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. We also 
invite additional comments from peer reviewers during the public 
comment period.
    All comments submitted electronically via https://www.regulations.gov will be presented on the website in their entirety 
as submitted. For comments submitted via hard copy, we will post your 
entire comment--including your personal identifying information--on 
https://www.regulations.gov. You may request at the top of your document 
that we withhold personal information such as your street address, 
phone number, or email address from public review; however, we cannot 
guarantee that we will be able to do so.
    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, or by 
appointment, during normal business hours, at the U.S. Fish and 
Wildlife Service, Alabama Ecological Services Field Office (see FOR 
FURTHER INFORMATION CONTACT).

Public Hearing

    Section 4(b)(5) of the Act provides for a public hearing on this 
proposal, if requested. Requests must be received within 45 days after 
the date of publication of this proposed rule in the Federal Register 
(see DATES, above). 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.

Previous Federal Actions

    On April 20, 2010, we received a petition from Center for 
Biological Diversity and others to list 404 aquatic species in the 
southeastern United States, including the trispot darter. In response 
to the petition, we completed a 90-day finding on September 27, 2011 
(76 FR 59836), in which we announced our finding that the petition 
contained substantial information that listing may be warranted for the 
trispot darter. We conducted a status review for the species, and on 
October 4, 2017, we published a proposed rule to list the trispot 
darter as a threatened species (82 FR 46183). Elsewhere in today's 
Federal Register, we published a final rule listing the trispot darter 
as a threatened species under the Act.

Supporting Documents

    A species status assessment (SSA) team prepared an SSA report for 
the trispot darter. The SSA team was composed of Service biologists, in 
consultation with other species experts. The SSA report represents a 
compilation of the best scientific and commercial data available 
concerning the status of the species, including the impacts of past, 
present, and future factors (both negative and beneficial) affecting 
the species. The SSA report underwent independent peer review by 
scientists with expertise in fish biology, habitat management, and 
stressors (factors negatively affecting the species) to the species. 
The SSA report and other materials relating to this proposal can be 
found on the Service's Southeast Region website at https://www.fws.gov/southeast/ and at https://www.regulations.gov under Docket No. FWS-R4-
ES-2018-0073. The draft economic analysis is available at https://www.fws.gov/southeast/, at https://www.regulations.gov under Docket No. 
FWS-R4-ES-2018-0073, and at the Alabama Ecological Services Field 
Office (see FOR FURTHER INFORMATION CONTACT).

Background

    Critical habitat is defined in section 3 of the Act as:
    (1) The specific areas within the geographical area occupied by the 
species, at the time it is listed in accordance with the Act, on which 
are found those physical or biological features
    (a) Essential to the conservation of the species, and
    (b) Which may require special management considerations or 
protection; and
    (2) Specific areas outside the geographical area occupied by the 
species at the time it is listed, upon a determination that such areas 
are essential for the conservation of the species.
    Our regulations at 50 CFR 424.02 define the geographical area 
occupied by the species as an area that may generally be delineated 
around species' occurrences, as determined by the Secretary (i.e., 
range). Such areas may include those areas used throughout all or part 
of the species' life cycle, even if not used on a regular basis (e.g., 
migratory corridors, seasonal habitats, and habitats used periodically, 
but not solely by vagrant individuals).
    Conservation, as defined under section 3 of the Act, means to use 
and

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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. Where a landowner requests Federal agency 
funding or authorization for an action that may affect a listed species 
or critical habitat, the consultation requirements of section 7(a)(2) 
of the Act would apply, but even in the event of a destruction or 
adverse modification finding, the obligation of the Federal action 
agency and the landowner is not to restore or recover the species, but 
to implement reasonable and prudent alternatives to avoid destruction 
or adverse modification of critical habitat.
    Under the first prong of the Act's definition of critical habitat, 
areas within the geographical area occupied by the species at the time 
it was listed are included in a critical habitat designation if they 
contain physical or biological features (1) which are essential to the 
conservation of the species and (2) which may require special 
management considerations or protection. For these areas, critical 
habitat designations identify, to the extent known using the best 
scientific and commercial data available, those physical or biological 
features that are essential to the conservation of the species (such as 
space, food, cover, and protected habitat). In identifying those 
physical or biological features within an area, we focus on the 
specific features that support the life-history needs of the species, 
including, but not limited to, water characteristics, soil type, 
geological features, 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.
    Under the second prong of the Act's definition of critical habitat, 
we can designate critical habitat in areas outside the geographical 
area occupied by the species at the time it is listed, upon a 
determination that such areas are essential for the conservation of the 
species. We will determine whether unoccupied areas are essential for 
the conservation of the species by considering the life-history, 
status, and conservation needs of the species. This will be further 
informed by any generalized conservation strategy, criteria, or outline 
that may have been developed for the species to provide a substantive 
foundation for identifying which features and specific areas are 
essential to the conservation of the species and, as a result, the 
development of the critical habitat designation. For example, an area 
currently occupied by the species but that was not occupied at the time 
of listing may be essential to the conservation of the species and may 
be included in the critical habitat designation.
    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) section 9 of the Act's prohibitions on taking any 
individual of the species, including taking caused by actions that 
affect habitat. Federally funded or permitted projects affecting listed 
species outside their designated critical habitat areas may still 
result in jeopardy findings in some cases. These protections and 
conservation tools will continue to contribute to recovery of this 
species. Similarly, critical habitat designations made on the basis of 
the best available information at the time of designation will not 
control the direction and substance of future recovery plans, habitat 
conservation plans (HCPs), or other species conservation planning 
efforts if new information available at the time of these planning 
efforts calls for a different outcome.

Prudency Determination

    Section 4(a)(3) of the Act, as amended, and its implementing 
regulations (50 CFR 424.12), require that, to the maximum extent 
prudent and determinable, the Secretary shall designate critical 
habitat at the time the species is determined to be an endangered or 
threatened species. The regulations at 50 CFR 424.12(a)(1) state

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that the designation of critical habitat is not prudent when one or 
both of the following situations exist:
    (1) The species is threatened by taking or other human activity, 
and identification of critical habitat can be expected to increase the 
degree of threat to the species, or
    (2) Such designation of critical habitat would not be beneficial to 
the species. In determining whether a designation would not be 
beneficial, the factors the Service may consider include, but are not 
limited to, whether the present or threatened destruction, 
modification, or curtailment of a species' habitat or range is not a 
threat to the species, or whether any areas meet the definition of 
``critical habitat.''
    As discussed in the final listing rule, which is published 
elsewhere in today's Federal Register, there is currently no imminent 
threat of take attributed to collection or vandalism identified under 
Factor B for this species, and identification and mapping of critical 
habitat is not expected to initiate any such threat. In the absence of 
finding that the designation of critical habitat would increase threats 
to a species, we must next determine whether such designation of 
critical habitat would not be beneficial to the species. In the final 
listing rule, we state our determination that there are habitat-based 
threats to the trispot darter identified under Factor A. Therefore, we 
find that the designation of critical habitat would be beneficial to 
trispot darter through the provisions of section 7 of the Act. Because 
we have determined that the designation of critical habitat will not 
likely increase the degree of threat to the species and would be 
beneficial, we find that designation of critical habitat is prudent for 
the trispot darter.

Critical Habitat Determinability

    Having determined that designation is prudent, under section 
4(a)(3) of the Act we must find whether critical habitat for the 
trispot darter is determinable. Our regulations at 50 CFR 424.12(a)(2) 
state that critical habitat is not determinable when one or both of the 
following situations exist:
    (i) Data sufficient to perform required analyses are lacking, or
    (ii) The biological needs of the species are not sufficiently well 
known to identify any area that meets the definition of ``critical 
habitat.'' When critical habitat is not determinable, the Act allows 
the Service an additional year to publish a critical habitat 
designation (16 U.S.C. 1533(b)(6)(C)(ii)).
    We reviewed the available information pertaining to the biological 
needs of the species and habitat characteristics where this species is 
located. We find that this information is sufficient for us to conduct 
both the biological and economic analyses required for the critical 
habitat determination. This and other information represent the best 
scientific data available and led us to conclude that the designation 
of critical habitat is now determinable for the trispot darter.

Physical or Biological Features

    In accordance with section 3(5)(A)(i) of the Act and regulations at 
50 CFR 424.12(b), in determining which areas within the geographical 
area occupied by the species at the time of listing to designate as 
critical habitat, 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. For example, physical 
features might include gravel of a particular size required for 
spawning, alkali soil for seed germination, protective cover for 
migration, or susceptibility to flooding or fire that maintains 
necessary early-successional habitat characteristics. Biological 
features might include prey species, forage grasses, specific kinds or 
ages of trees for roosting or nesting, symbiotic fungi, or a particular 
level of nonnative species consistent with conservation needs of the 
listed species. The features may also be combinations of habitat 
characteristics and may encompass the relationship between 
characteristics or the necessary amount of a characteristic needed to 
support the life history of the species. In considering whether 
features are essential to the conservation of the species, the Service 
may consider an appropriate quality, quantity, and spatial and temporal 
arrangement of habitat characteristics in the context of the life-
history needs, condition, and status of the species. These 
characteristics include, but are not limited to, space for individual 
and population growth and for normal behavior; food, water, air, light, 
minerals, or other nutritional or physiological requirements; cover or 
shelter; sites for breeding, reproduction, or rearing (or development) 
of offspring; and habitats that are protected from disturbance.
    The trispot darter is a freshwater fish found in the Coosa River 
System in the Ridge and Valley ecoregion of Alabama, Georgia, and 
Tennessee. It is a migratory species that utilizes distinct breeding 
and nonbreeding habitats. From approximately April to October, the 
species inhabits its nonbreeding habitat, which consists of small to 
medium margins of rivers and lower reaches of tributaries with slower 
velocities. It is associated with detritus, logs, and stands of water 
willow, and a substrate that consists of small cobbles, pebbles, 
gravel, and often a fine layer of silt. During low flow periods, the 
darters move away from the peripheral zones and toward the main 
channel; edges of water willow beds, riffles, and pools; and mouths of 
tributaries.
    Migration into spawning areas begins in approximately late November 
or early December, with fish moving from the main channels into 
tributaries and eventually reaching adjacent seepage areas where they 
will congregate and remain for the duration of spawning, until 
approximately late April. Breeding sites are intermittent seepage areas 
and ditches with little to no flow; shallow depths (12 inches (30 
centimeters) or less); moderate leaf litter covering mixed cobble, 
gravel, sand, and clay; a deep layer of soft silt over clay; and 
emergent vegetation. Additionally, breeding sites possess channels that 
maintain base flow throughout the winter and early spring.
    Trispot darters predominantly feed on mayfly nymphs and midge 
larvae and pupae.
    A thorough review of the life history and ecology of the trispot 
darter is presented in the SSA report (Service 2017, entire). A summary 
of the resource needs of the trispot darter is provided below in Table 
1.

     Table 1--Life-History and Resource Needs of the Trispot Darter
------------------------------------------------------------------------
            Life stage                        Resources needed
------------------------------------------------------------------------
Fertilized Eggs...................  Ephemeral streams/ditches connected
                                     to nonbreeding habitat with
                                     adequate water quality; vegetation,
                                     rocks for adhesive eggs; eggs
                                     submerged on vegetation and/or
                                     rocks for approximately 30 days at
                                     53 [deg]F (12 [deg]C).
Larvae............................  Ephemeral streams/ditches connected
                                     to nonbreeding habitat with
                                     adequate water quality; low
                                     predation, disease, and
                                     environmental stress; flushing rain
                                     events to reach lower stream
                                     reaches; 41 days to reach juvenile
                                     stage.

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Juveniles.........................  Flowing water with good water
                                     quality; low predation, disease,
                                     and environmental stress; adequate
                                     food availability.
Nonbreeding Adults (Mid-April to    Clear, flowing water in shallow
 Mid-October).                       pools and backwaters in main
                                     channel with good water quality but
                                     documented to be found with a fine
                                     layer of silt and/or debris, leaf
                                     litter; adequate food availability.
Breeding Adults (Late November to   Flowing water with adequate water
 Late April).                        quality, adequate flow to connect
                                     to breeding areas; clean structure
                                     (vegetation, rock, substrate);
                                     appropriate male to female
                                     demographics; appropriate spawning
                                     temperatures.
------------------------------------------------------------------------

Summary of Essential Physical or Biological Features

    We derive the specific physical or biological features essential to 
the conservation of trispot darter from studies of this species' 
habitat, ecology, and life history. Additional information can be found 
in the proposed listing rule published in the Federal Register on 
October 4, 2017 (82 FR 46183), the SSA report (Service 2017, entire), 
and the final listing rule published elsewhere in today's Federal 
Register. We have determined that the following physical or biological 
features are essential to the conservation of trispot darter:
    (1) Geomorphically stable, small to medium streams with (a) 
detritus, woody debris, and stands of water willow (Justicia americana) 
over stream substrate that consists of small cobble, pebbles, gravel, 
and fine layers of silt; and (b) intact riparian cover to maintain 
stream morphology and reduce erosion and sediment inputs.
    (2) Adequate seasonal water flows, or a hydrologic flow regime 
(which includes the severity, frequency, duration, and seasonality of 
discharge over time) necessary to maintain appropriate benthic habitats 
and to maintain and create connectivity between permanently flowing 
streams with associated streams that hold water from November through 
April, providing connectivity between the darter's spawning and summer 
areas.
    (3) Water and sediment quality (including, but not limited to, 
conductivity; hardness; turbidity; temperature; pH; ammonia; heavy 
metals; pesticides; animal waste products; and nitrogen, phosphorus, 
and potassium fertilizers) necessary to sustain natural physiological 
processes for normal behavior, growth, and viability of all life 
stages.
    (4) Prey base of aquatic macroinvertebrates.

Special Management Considerations or Protection

    When designating critical habitat, we assess whether the specific 
areas within the geographical area occupied by the species at the time 
of listing contain features which are essential to the conservation of 
the species and which may require special management considerations or 
protection. The features essential to the conservation of the trispot 
darter may require special management considerations or protections to 
reduce the following threats: (1) Urbanization of the landscape, 
including (but not limited to) land conversion for urban and commercial 
use, infrastructure (roads, bridges, utilities), and urban water uses 
(water supply reservoirs, wastewater treatment); (2) nutrient pollution 
from agricultural activities that impact water quantity and quality; 
(3) significant alteration of water quality; (4) improper forest 
management or silviculture activities that remove large areas of 
forested wetlands and riparian systems; (5) culvert and pipe 
installation that creates barriers to movement; (6) changes and shifts 
in seasonal precipitation patterns as a result of climate change; (7) 
other watershed and floodplain disturbances that release sediments or 
nutrients into the water or fill suitable spawning habitat; and (8) 
creation of reservoirs that convert permanently flowing streams and/or 
streams that hold water from November through April into lake or pond-
like (lentic) environments.
    Management activities that could ameliorate these threats include, 
but are not limited to, use of best management practices (BMPs) 
designed to reduce sedimentation, erosion, and bank-side destruction; 
protection of riparian corridors and suitable spawning habitat; 
retention of sufficient canopy cover along banks; moderation of surface 
and ground water withdrawals to maintain natural flow regimes; 
increased use of stormwater management and reduction of stormwater 
flows into the stream systems; placement of culverts or bridges that 
accommodate fish passage; and reduction of other watershed and 
floodplain disturbances that release sediments, pollutants, or 
nutrients into the water.

Criteria Used To Identify Critical Habitat

    As required by section 4(b)(2) of the Act, we use the best 
scientific data available to designate critical habitat. In accordance 
with the Act and our implementing regulations at 50 CFR 424.12(b), we 
review available information pertaining to the habitat requirements of 
the species and identify specific areas within the geographical area 
occupied by the species at the time of listing and any specific areas 
outside the geographical area occupied by the species to be considered 
for designation as critical habitat.
    The current distribution of the trispot darter is reduced from its 
historical distribution. We anticipate that recovery will require 
continued protection of existing populations and habitat, as well as 
ensuring there are adequate numbers of fish in stable populations and 
that these populations occur over a wide geographic area. This will 
help to ensure that catastrophic events, such as floods, cannot 
simultaneously affect all known populations. Range-wide 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.
    Sources of data for this proposed critical habitat include multiple 
databases maintained by universities and State agencies in Tennessee, 
Alabama, and Georgia, and numerous survey reports on streams throughout 
the species' range. Other sources of available information on habitat 
requirements for this species include studies conducted at occupied 
sites and published in peer-reviewed articles, agency reports, and data 
collected during monitoring efforts (Service 2017, entire).

Areas Occupied at the Time of Listing

    The proposed critical habitat designation does not include all 
streams known to have been occupied by the species historically; 
instead, it focuses on currently occupied streams and

[[Page 67195]]

rivers within the historical range that have retained the necessary 
physical or biological features that will allow for the maintenance and 
expansion of existing populations. For the purposes of critical habitat 
designation, we determined a unit to be occupied if it contains recent 
(i.e., observed in the past 10 years (since 2007), based on the data 
available for the SSA analysis) observations of trispot darter. 
Collection records were compiled and provided to us by State partners 
funded under a concurrent section 6 status assessment for the trispot 
darter. Collection records were obtained through the website FISHNET2 
(an online repository of ichthyological museum data) or directly from 
institutions. To delineate spawning areas for trispot darter, we 
identified waterways where trispot darter was observed from November to 
April between the years 2007 and 2017. We assume these observations 
represented fish in or near spawning habitat within the timeframe. We 
based this assumption on the knowledge that this short-lived migratory 
species will stage near spawning areas in pre-spawning congregations 
and that both spawning and non-spawning individuals will make a 
migration.
    We considered areas of low topographic variation at lower 
elevations as exhibiting topographic characteristics that support 
recharge of a shallow soil water table, slow release of water into 
breeding channels, and connectivity between ephemeral breeding channels 
and permanent trispot darter summer habitat. These areas support the 
essential physical and biological features that allow for adequate 
seasonal water flows, the hydrologic flow regime that maintains 
appropriate trispot habitat, and connectivity between streams in the 
winter. Areas of low topographic variation would generally have slower 
stream velocities and retain water for longer duration (i.e., have a 
less ``flashy'' hydrograph), in order to maintain necessary benthic 
habitat and stream substrate. Areas at lower elevation would interact 
with permanent streams and rivers, and be accessible to trispot darters 
attempting to migrate into adjacent ephemeral spawning streams.
    To identify areas with both low elevation and low topographic 
variation, we conducted a geographic information system (GIS) analysis 
using a 30-meter digital elevation model (DEM). Low elevation for this 
analysis was defined as two standard deviations away from the mean 
elevation at which spawning trispot darters were observed. Therefore, 
elevation ranged from 558 to 790 feet (ft) (170 to 241 meters (m)). We 
used roughness as a measure of topographic variation. To calculate 
roughness, we used an ArcGIS tool (Evans et al. 2014) that implements 
an algorithm described by Riley et al. (1999, entire). We then 
conducted an overlay analysis using the spawning elevation layer and 
roughness layer to produce a map of potential spawning habitat.
    Finally, we considered the dispersal ability of trispot darter when 
delineating critical habitat that included spawning habitat. Trispot 
darters have been recorded to travel approximately 6,000 ft (1,829 m). 
Therefore, we only delineate lands that exhibit topographic 
characteristics we consider suitable for trispot darter spawning 
habitat that are within 6,000 ft (1,829 m) of a trispot darter observed 
between November and April in the years 2007 to 2017.
    The following rivers and streams meet the criteria described above 
and are considered occupied by the species at the time of listing where 
the essential physical and biological features are found: Big Canoe 
Creek, Ballplay Creek, Conasauga River, Mill Creek, Coahulla Creek, and 
Coosawattee River.

Areas Outside the Geographic Area Occupied at the Time of Listing

    We are not proposing to designate any areas outside the 
geographical area currently occupied by the species because we did not 
find any unoccupied areas that were essential for the conservation of 
the species. The protection of six moderately or highly resilient 
management units across the physiographic representation of the range 
would sufficiently reduce the risk of extinction. Improving the 
resiliency of populations in the currently occupied streams will likely 
increase viability to the point that the protections of the Act are no 
longer necessary.

Developed Areas

    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 
physical or biological features necessary for trispot darter. 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.

Critical Habitat Maps

    The critical habitat designation is defined by the map or maps, as 
modified by any accompanying regulatory text, presented at the end of 
this document in Proposed Regulation Promulgation. We include more 
detailed information on the boundaries of the critical habitat 
designation in the preamble of this document. We will make the 
coordinates or plot points or both on which each map is based available 
to the public on https://www.regulations.gov under Docket No. FWS-R4-ES-
2018-0073, on our internet site at https://www.fws.gov/daphne/, and at 
the field office responsible for the designation (see FOR FURTHER 
INFORMATION CONTACT, above).

Proposed Critical Habitat Designation

    We are proposing 181 river miles (mi) (291 kilometers (km)) and 
16,735 acres (ac) (6,772 hectares (ha)) in six units as critical 
habitat for the trispot darter. The critical habitat areas we describe 
below constitute our current best assessment of areas that meet the 
definition of critical habitat for trispot darter. All 6 areas we 
propose as critical habitat are in the Coosa River system in Alabama, 
Georgia, and Tennessee (Table 2). Table 2 shows the name, land 
ownership, acres, and approximate stream miles of the proposed 
designated units for the trispot darter. Per State regulations (Alabama 
Code section 9-11-80, Tennessee Code Annotated section 69-1-101, and 
Georgia Code section 52-1-31), navigable waters are considered public 
rights-of-way. Most, if not all, lands beneath the navigable waters 
included in this proposed rule are owned by the States of Alabama, 
Georgia, or Tennessee. Ownership of lands beneath most nonnavigable 
waters included in this proposed rule are determined by riparian land 
ownership. As discussed below, riparian lands along the waters 
described are owned by either private, State, or Federal entities.

[[Page 67196]]



                                               Table 2--Proposed Critical Habitat Units for Trispot Darter
--------------------------------------------------------------------------------------------------------------------------------------------------------
                Unit                       Ownership* of river miles (kilometers)                               Ownership* of acres (hectares)
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                       Private       Local        State       Federal       Total       Private       State       Federal       Total
--------------------------------------------------------------------------------------------------------------------------------------------------------
1. Big Canoe Creek.................      41 (66)            0            0            0           41       10,167            0            0       10,167
                                                                                                (66)      (4,114)                                (4,114)
2. Ballplay Creek..................      17 (27)            0            0            0           17        2,527            0            0        2,527
                                                                                                (27)      (1,023)                                (1,023)
3. Conasauga River.................        54.58            0         2.42            0           57        2,161            0            0        2,161
                                         (87.84)                    (3.90)                      (92)        (875)                                  (875)
4. Mill Creek......................        13.69         1.31            0            0           15          438            0            0          438
                                         (22.03)       (2.11)                                   (24)        (177)                                  (177)
5. Coahulla Creek..................      26 (42)            0            0            0           26        1,442            0            0        1,442
                                                                                                (42)        (584)                                  (584)
6. Coosawattee River...............        24.24            0         0.34         0.42           25            0            0            0            0
                                            (39)                    (0.55)       (0.68)         (40)
    Total..........................       176.51         1.31         2.76         0.42          181       16,735            0            0       16,735
                                        (283.87)       (2.11)       (4.45)       (0.68)        (291)      (6,772)                                (6,772)
--------------------------------------------------------------------------------------------------------------------------------------------------------
* Adjacent riparian ownership is reported under ``river miles.''
Note: Measurements may not sum due to rounding.

    We present brief descriptions of all proposed units, and reasons 
why they meet the definition of critical habitat for trispot darter 
below. All of the proposed units are currently occupied by the darter 
and contain the physical and biological features that are essential to 
the conservation of the species and which may require special 
management considerations or protection.

Unit 1: Big Canoe Creek

    Unit 1 consists of 41 stream mi (66 km) in St. Clair County, 
Alabama, from approximately 3.5 mi (5.6 km) upstream of Pinedale Road, 
west of Ashville, Alabama, to approximately U.S. Highway (Hwy.) 11. In 
addition to Big Canoe Creek, Unit 1 includes the westernmost portion of 
Little Canoe Creek to State Hwy. 174 and all of its associated 
tributaries. Unit 1 also includes all low elevation areas (10,167 ac 
(4,114 ha)) containing channels that hold water from November through 
April beginning 0.5 mi (0.8 km) upstream of County Road 31 upstream to 
the U.S. Hwy. 11 crossing with Big Canoe Creek, approximately 0.70 
miles (1.1 km) downstream of the Interstate 59 (I-59) crossing with the 
Left Hand Prong Little Canoe Creek, and the State Hwy. 174 crossing 
with Little Canoe Creek and Stovall Branch. The low elevation riparian 
areas that hold water seasonally in Unit 1 are privately owned, except 
for bridge crossings and road easements, which are owned by the State 
or County.
    Additional special management considerations or protection may be 
required within Unit 1 to alleviate impacts from stressors that have 
led to the degradation of the habitat, including roadside erosion, 
urban development, fish barriers, and unstable stream banks. Livestock 
accessing streams and riparian buffers have led to high levels of 
sedimentation, siltation, contamination, and nutrient-loading, as well 
as destabilized stream banks.

Unit 2: Ballplay Creek

    Unit 2 consists of 17 stream mi (27 km) of Ballplay Creek in 
Etowah, Cherokee, and Calhoun Counties, Alabama, and 2,527 ac (1,023 
ha) of ephemeral spawning habitat. Unit 2 begins upstream of a wetland 
complex located at the border between Etowah and Cherokee Counties 
approximately at County Road 32, and continues upstream approximately 
to the U.S. Hwy. 278 crossing over Ballplay Creek in Calhoun County, 
Alabama. Unit 2 includes all low elevation areas (2,527 ac (1,023 ha)) 
containing channels that hold water from November through April 
beginning upstream of a wetland complex located at the border between 
Etowah and Cherokee Counties approximately 0.60 mi (1 km) southwest of 
County Road 32 and extending upstream to the confluence of Ballplay and 
Little Ballplay Creeks and to the west along Rocky Ford Road and Alford 
Road. The ephemeral spawning habitat proposed in Unit 2 is privately 
owned except for bridge crossings and road easements, which are owned 
by the State or Counties. Additional special management considerations 
or protection may be required within Unit 2 because entrenchment and 
channelization have altered the channel and may degrade spawning 
habitat and reduce floodplain access.

Unit 3: Conasauga River

    Unit 3 consists of 57 stream mi (92 km) and 2,161 acres (875 ha) of 
ephemeral wetland spawning habitat in Whitfield and Murray Counties, 
Georgia, and Polk and Bradley Counties, Tennessee. Unit 3 begins in the 
Conasauga River upstream of the mouth of Coahulla Creek and continues 
upstream to the mouth of Minneawauga Creek. Unit 3 also includes: Mill 
Creek from its confluence with the Conasauga River in Bradley County, 
Tennessee, upstream to the first impoundment on Mill Creek 
approximately at Green Shadow Road SE; Old Fort Creek from Ladd Springs 
Road SE in Polk County, Tennessee, to its confluence with Mill Creek in 
Bradley County, Tennessee; and Perry Creek from its headwaters 
(approximately 0.35 mi (0.6 km) upstream of Tennga Gregory Road) to its 
confluence with the Conasauga River in Murray County, Georgia, and both 
of its tributaries. Unit 3 includes all low elevation areas (2,161 ac 
(875 ha)) containing channels that hold water from November through 
April, beginning from the confluence of the Conasauga River and Shears 
Branch (west of U.S. Hwy. 411 in Polk County, Tennessee) to 
approximately 0.30 mi (0.5 km) downstream of the confluence of the 
Conasauga River and Perry Creek; Mill Creek from Hicks Tanyard Road 
downstream to its confluence with the Conasauga River; Old Fort Creek 
from Hicks Tanyard Road to its confluence with Mill Creek; and Perry 
Creek. The ephemeral wetland areas surrounding the river proposed in 
this unit is a combination of private ownership, conservation 
easements, and State Natural Areas. These easements are held by Georgia 
Department of Transportation, Georgia Department of Natural Resources, 
and Georgia-Alabama Land trust.
    Additional special management considerations or protection may be 
required within the Conasauga River Unit to reduce impacts from 
pollutants from agricultural runoff, construction of farm ponds that 
destroy spawning habitat, development, erosion, sedimentation, and dams 
and other barriers to dispersal.

[[Page 67197]]

Unit 4: Mill Creek

    Unit 4 consists of 15 stream mi (24 km) of Mill Creek and 438 ac 
(177 ha) of ephemeral spawning habitat in Whitfield County, Georgia. 
The land surrounding the river in this unit is both in private 
ownership and owned by the City of Dalton, Georgia. Unit 4 begins at 
the confluence of Mill Creek with Coahulla Creek and continues upstream 
along Mill Creek for approximately 15 mi (24 km) to the U.S. Hwy. 41 
crossing. The unit includes all low elevation areas (438 ac (177 ha)) 
containing channels that hold water from November through April, 
beginning from the U.S. Hwy. 41 crossing with Mill Creek downstream to 
the confluence of Mill Creek and Haig Mill Branch. Unit 4's spawning 
habitat is privately owned except for bridge crossings and road 
easements, which are owned by the State or County.
    Additional special management considerations or protection may be 
required within Unit 4 to address pollutants from agricultural runoff, 
agricultural ditching, and the construction of farm ponds that remove 
spawning habitat. Sediment loading and excessive fecal contamination 
have degraded water quality and also require special management 
considerations.

Unit 5: Coahulla Creek

    Unit 5 consists of 26 stream mi (42 km) of Coahulla Creek and 1,442 
ac (584 ha) of ephemeral spawning habitat in Whitfield County, Georgia, 
and Bradley County, Tennessee. Unit 5 begins immediately upstream of 
the Prater Mill dam upstream of State Hwy. 2 in Georgia. The unit 
continues upstream for approximately 26 mi (42 km) to Ramsey Bridge 
Road SE and includes ephemeral wetland habitat from 0.5 mi (0.8 km) 
downstream of Hopewell Road to approximately 0.5 mi (0.8 km) upstream 
of McGaughey Chapel Road. The ephemeral spawning habitat surrounding 
the river in this unit is privately owned, except for bridge crossings 
and road easements, which are owned by the State or County.
    Additional special management considerations or protection may be 
required within Unit 5 to address pollutants from agricultural runoff, 
agricultural ditching, and the construction of farm ponds that remove 
spawning habitat. Sediment loading and excessive fecal contamination 
have degraded water quality and also require special management 
considerations.

Unit 6: Coosawattee River

    Unit 6 consists of 25 stream mi (40 km) of the Coosawattee River 
beginning at the confluence with the Conasauga River in Gordon County, 
Georgia. The unit continues upstream to Old Highway 411 downstream of 
Carters Lake Reregulation Dam in Murray County, Georgia. The ephemeral 
spawning habitat surrounding the river in this unit is a mix of State, 
private, and Federal (U.S. Army Corps of Engineers) ownership.
    Additional special management considerations or protection may be 
required within Unit 6 to address erosion and sedimentation from urban 
runoff and development, rural unpaved roads, forestry practices, dam 
construction and use, and agriculture, leading to impairment of water 
quality.

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.
    We published a final rule adopting a new definition of destruction 
or adverse modification on February 11, 2016 (81 FR 7214). Destruction 
or adverse modification means a direct or indirect alteration that 
appreciably diminishes the value of critical habitat for the 
conservation of a listed species. Such alterations may include, but are 
not limited to, those that alter the physical or biological features 
essential to the conservation of a species or that preclude or 
significantly delay development of such features.
    If a Federal action may affect a listed species or its critical 
habitat, the responsible Federal agency (action agency) must enter into 
consultation with us. Examples of actions that are subject to the 
section 7 consultation process are actions on State, tribal, local, or 
private lands that require a Federal permit (such as a permit from the 
U.S. Army Corps of Engineers under section 404 of the Clean Water Act 
(33 U.S.C. 1251 et seq.) or a permit from the Service under section 10 
of the Act) or that involve some other Federal action (such as funding 
from the Federal Highway Administration, Federal Aviation 
Administration, or the Federal Emergency Management Agency). Federal 
actions not affecting listed species or critical habitat, and actions 
on State, tribal, local, or private lands that are not federally funded 
or authorized, do not require section 7 consultation. As a result of 
section 7 consultation, we document compliance with the requirements of 
section 7(a)(2) through our issuance of:
    (1) A concurrence letter for Federal actions that may affect, but 
are not likely to adversely affect, listed species or critical habitat; 
or
    (2) A biological opinion for Federal actions that may affect and 
are likely to adversely affect, listed species or critical habitat.
    When we issue a biological opinion concluding that a project is 
likely to jeopardize the continued existence of a listed species and/or 
destroy or adversely modify critical habitat, we provide reasonable and 
prudent alternatives to the project, if any are identifiable, that 
would avoid the likelihood of jeopardy and/or destruction or adverse 
modification of critical habitat. We define ``reasonable and prudent 
alternatives'' (at 50 CFR 402.02) as alternative actions identified 
during consultation that:
    (1) Can be implemented in a manner consistent with the intended 
purpose of the action,
    (2) Can be implemented consistent with the scope of the Federal 
agency's legal authority and jurisdiction,
    (3) Are economically and technologically feasible, and
    (4) Would, in the Service Director's opinion, avoid the likelihood 
of jeopardizing the continued existence of the listed species and/or 
avoid the likelihood of destroying or adversely modifying critical 
habitat.
    Reasonable and prudent alternatives can vary from slight project 
modifications to extensive redesign or relocation of the project. Costs 
associated with implementing a reasonable and prudent alternative are 
similarly variable.
    Regulations at 50 CFR 402.16 require Federal agencies to reinitiate 
consultation on previously reviewed actions in instances where we have 
listed a new species or subsequently designated critical habitat that 
may be affected and the Federal agency has retained discretionary 
involvement or control over the action (or the agency's discretionary 
involvement or control is authorized by law). Consequently, Federal 
agencies sometimes may need to request reinitiation of consultation 
with us on actions for which formal consultation has been completed, if

[[Page 67198]]

those actions with discretionary involvement or control may affect 
subsequently listed species or designated critical habitat.

Application of the ``Adverse Modification'' Standard

    The key factor related to the adverse modification determination is 
whether, with implementation of the proposed Federal action, the 
affected critical habitat would continue to serve its intended 
conservation role for the species. Activities that may destroy or 
adversely modify critical habitat are those that result in a direct or 
indirect alteration that appreciably diminishes the value of critical 
habitat for the conservation of the trispot darter. Such alterations 
may include, but are not limited to, those that alter the physical or 
biological features essential to the conservation of these species or 
that preclude or significantly delay development of such features. As 
discussed above, the role of critical habitat is to support physical or 
biological features essential to the conservation of a listed species 
and provide for the conservation of the species. Section 4(b)(8) of the 
Act requires us to briefly evaluate and describe, in any proposed or 
final regulation that designates critical habitat, activities involving 
a Federal action that may destroy or adversely modify such habitat, or 
that may be affected by such designation.
    Activities that may affect critical habitat, when carried out, 
funded, or authorized by a Federal agency, should result in 
consultation for the trispot darter. These activities include, but are 
not limited to:
    (1) Actions that would alter the minimum flow or the existing flow 
regime. Such activities could include, but are not limited to, 
impoundment, channelization, water diversion, water withdrawal, and 
hydropower generation. These activities could eliminate or reduce the 
habitat necessary for the growth and reproduction of trispot darter by 
decreasing or altering flows to levels that would adversely affect 
their ability to complete their life cycles.
    (2) Actions that would significantly alter water chemistry or 
temperature. Such activities could include, but are not limited to, 
release of chemicals (including pharmaceuticals, metals, and salts), 
biological pollutants, or heated effluents into the surface water or 
connected groundwater at a point source or by dispersed release (non-
point source). These activities could alter water conditions to levels 
that are beyond the tolerances of the trispot darter and result in 
direct or cumulative adverse effects to these individuals and their 
life cycles.
    (3) Actions that would significantly increase sediment deposition 
within the stream channel. Such activities could include, but are not 
limited to, excessive sedimentation from livestock grazing, road 
construction, channel alteration, and other watershed and floodplain 
disturbances. These activities could eliminate or reduce the habitat 
necessary for the growth and reproduction of the trispot darter by 
increasing the sediment deposition to levels that would adversely 
affect the species' ability to complete its life cycle.
    (4) Actions that would significantly increase the phytoplankton 
algal community within the stream channel. Such activities could 
include, but are not limited to, release of nutrients into the surface 
water or connected groundwater at a point source or by dispersed 
release (non-point source). These activities can result in excessive 
filamentous algae filling streams and reducing habitat for fish, 
degrading water quality during phytoplankton decay, and decreasing 
oxygen levels at night from phytoplankton respiration to levels below 
the tolerances of the fish.
    (5) Actions that would significantly alter channel morphology or 
geometry. Such activities could include, but are not limited to, 
channelization, impoundment, road and bridge construction, mining, 
dredging, and destruction of riparian vegetation. These activities may 
lead to changes in water flows and levels that would degrade or 
eliminate the trispot darter habitat. These actions can also lead to 
increased sedimentation and degradation in water quality to levels that 
are beyond the tolerances of the fish.
    (6) Actions that result in the introduction, spread, or 
augmentation of nonnative aquatic species in occupied stream segments, 
or in stream segments that are hydrologically connected to occupied 
stream segments, even if those segments are occasionally intermittent, 
or introduction of other species that compete with or prey on the 
trispot darter. Possible actions could include, but are not limited to, 
stocking of nonnative fishes, stocking of sport fish, or other related 
actions. These activities can introduce parasites or disease; result in 
direct predation; or affect the growth, reproduction, and survival of 
trispot darter.
    (7) Actions that would result in the conversion of aquatic habitats 
from seeps or from ephemeral, periodic, intermittent, or permanent 
flowing streams to lake or pond-like environments. Such activities 
could include, but are not limited to, creating impoundments, digging 
ponds, or excavating channels. These actions could eliminate or reduce 
habitat and adversely affect the growth and reproduction of the trispot 
darter.
    (8) Actions that would result in the conversion of aquatic habitats 
to terrestrial habitats. Such activities could include, but are not 
limited to, filling wetlands, seeps, or ephemeral, periodic, 
intermittent, or permanent flowing streams with soil or other material 
or draining wetlands. These actions could reduce water quantity to 
levels below the tolerances of the trispot darter.
    (9) Actions that would result in decreased connectivity within and 
between suitable spawning and non-spawning habitat for the trispot 
darter. Such activities could include, but are not limited to, levee 
construction; transportation projects that span streams without 
consideration for fish passage or debris left in seeps; and logging or 
site preparation for development without consideration for ephemeral, 
periodic, intermittent, or permanent flowing streams. These activities 
could reduce the accessibility to habitat necessary for the growth and 
reproduction of the trispot darter and adversely affect the species' 
ability to complete its life cycle.

Exemptions

Application of Section 4(a)(3) of the Act

    The Sikes Act Improvement Act of 1997 (Sikes Act) (16 U.S.C. 670a) 
required each military installation that includes land and water 
suitable for the conservation and management of natural resources to 
complete an integrated natural resources management plan (INRMP) by 
November 17, 2001. An INRMP integrates implementation of the military 
mission of the installation with stewardship of the natural resources 
found on the base. Each INRMP includes:
    (1) An assessment of the ecological needs on the installation, 
including the need to provide for the conservation of listed species;
    (2) A statement of goals and priorities;
    (3) A detailed description of management actions to be implemented 
to provide for these ecological needs; and
    (4) A monitoring and adaptive management plan.
    Among other things, each INRMP must, to the extent appropriate and 
applicable, provide for fish and wildlife management; fish and wildlife 
habitat enhancement or modification; wetland protection, enhancement, 
and

[[Page 67199]]

restoration where necessary to support fish and wildlife; and 
enforcement of applicable natural resource laws.
    The National Defense Authorization Act for Fiscal Year 2004 (Pub. 
L. 108-136) amended the Act to limit areas eligible for designation as 
critical habitat. Specifically, 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, or designated for its 
use, that are subject to an integrated natural resources management 
plan prepared under section 101 of the Sikes Act (16 U.S.C. 670a), if 
the Secretary determines in writing that such plan provides a benefit 
to the species for which critical habitat is proposed for 
designation.''
    We consult with the military on the development and implementation 
of INRMPs for installations with listed species. We analyze INRMPs 
developed by military installations located within the range of the 
proposed critical habitat designation to determine if they meet the 
criteria for exemption from critical habitat under section 4(a)(3) of 
the Act. We have determined that there are no Department of Defense 
lands within the proposed critical habitat designation.

Exclusions

Consideration of Impacts Under Section 4(b)(2) of the Act

    Section 4(b)(2) of the Act states that the Secretary shall 
designate and make revisions to critical habitat on the basis of the 
best available scientific data after taking into consideration the 
economic impact, national security impact, and any other relevant 
impact of specifying any particular area as critical habitat. The 
Secretary may exclude an area from critical habitat if he determines 
that the benefits of such exclusion outweigh the benefits of specifying 
such area as part of the critical habitat, unless he determines, based 
on the best scientific data available, that the failure to designate 
such area as critical habitat will result in the extinction of the 
species. In making that determination, the statute on its face, as well 
as the legislative history, are clear that the Secretary has broad 
discretion regarding which factors to use and how much weight to give 
to any factor.
    As discussed below, we are not proposing to exclude any areas from 
critical habitat. However, the final decision on whether to exclude any 
areas will be based on the best scientific data available at the time 
of the final designation, including information we obtain during the 
comment period and information about the economic impact of 
designation. Accordingly, we have prepared a draft economic analysis 
(DEA) concerning the proposed critical habitat designation, which is 
available for review and comment (see ADDRESSES).

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). The baseline, therefore, represents the costs of all 
efforts attributable to the listing of the species under the Act (i.e., 
conservation of the species and its habitat incurred regardless of 
whether critical habitat is designated). The ``with critical habitat'' 
scenario describes the incremental impacts associated specifically with 
the designation of critical habitat for the species. The incremental 
conservation efforts and associated impacts would not be expected 
without the designation of critical habitat for the species. In other 
words, the incremental costs are those attributable solely to the 
designation of critical habitat, above and beyond the baseline costs. 
These are the costs we use when evaluating the benefits of inclusion 
and exclusion of particular areas from the final designation of 
critical habitat should we choose to conduct a discretionary 4(b)(2) 
exclusion analysis.
    For this 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 trispot darter (IEc 2018, entire). The screening analysis 
enables us to focus on the key factors that are likely to result in 
incremental economic impacts. Its purpose is to filter out the 
geographic areas in which the critical habitat designation is unlikely 
to result in probable incremental economic impacts. In particular, the 
screening analysis considers baseline costs (i.e., absent critical 
habitat designation) and includes probable economic impacts where land 
and water use may be subject to conservation plans, land management 
plans, best management practices, or regulations that protect the 
habitat area as a result of the Federal listing status of the species. 
The screening analysis filters out particular areas of critical habitat 
that are already subject to such protections and are, therefore, 
unlikely to incur incremental economic impacts. Ultimately, the 
screening analysis allows us to focus our analysis the specific areas 
or sectors that may incur probable incremental economic impacts as a 
result of the designation. The screening analysis also assesses whether 
units are unoccupied by the species and may require additional 
management or conservation efforts as a result of the critical habitat 
designation for the species which may incur incremental economic 
impacts. This screening analysis, combined with the information 
contained in our IEM, constitutes our draft economic analysis (DEA) of 
the proposed critical habitat designation for the trispot darter, which 
is summarized in the narrative below.
    Executive Orders (E.O.s) 12866 and 13563 direct Federal agencies to 
assess the costs and benefits of available regulatory alternatives in 
quantitative (to the extent feasible) and qualitative terms. Consistent 
with the E.O. regulatory analysis requirements, our effects analysis 
under the Act may take into consideration impacts to both directly and 
indirectly affected entities, where practicable and reasonable. If 
sufficient data are available, we assess to the extent practicable the 
probable impacts to both directly and indirectly affected entities. As 
part of our screening analysis, we considered the types of economic 
activities that are likely to occur within the areas likely affected by 
the critical habitat designation. In our evaluation of the probable 
incremental economic impacts that may result from the proposed

[[Page 67200]]

designation of critical habitat for the trispot darter, first we 
identified, in the IEM dated August 8, 2018, probable incremental 
economic impacts associated with the following categories of 
activities: (1) Oil and gas; (2) agriculture; (3) silviculture/timber; 
(4) development; (5) conservation and restoration; (6) renewable 
energy; (7) in-water construction; and (8) transportation. 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. Beginning on the effective date of 
the final rule listing the trispot darter as a threatened species 
(published elsewhere in today's Federal Register), in areas where the 
trispot darter is present, Federal agencies will be required to consult 
with the Service under section 7 of the Act on activities they fund, 
permit, or implement that may affect the species. If we finalize this 
proposed critical habitat designation, consultations to avoid the 
destruction or adverse modification of critical habitat would be 
incorporated into that existing consultation process.
    In our IEM, we attempted to clarify the distinction between the 
effects that will result from the species being listed and those 
attributable to the critical habitat designation (i.e., difference 
between the jeopardy and adverse modification standards) for the 
trispot darter's critical habitat. Because the designation of critical 
habitat for trispot darter is being proposed at the same time as the 
listing decision is made final, it has been our experience that it is 
more difficult to discern which conservation efforts are attributable 
to the species being listed and those which will result solely from the 
designation of critical habitat. However, the following specific 
circumstances in this case help to inform our evaluation: (1) The 
essential physical or biological features identified for critical 
habitat are the same features essential for the life requisites of the 
species, and (2) any actions that would result in sufficient harm or 
harassment to constitute jeopardy to the trispot darter would also 
likely adversely affect the essential physical or biological features 
of critical habitat. The IEM outlines our rationale concerning this 
limited distinction between baseline conservation efforts and 
incremental impacts of the designation of critical habitat for this 
species. This evaluation of the incremental effects has been used as 
the basis to evaluate the probable incremental economic impacts of this 
proposed designation.
    The proposed critical habitat designation for the trispot darter 
totals approximately 181 river mi (291 km) and 16,735 ac (6,772 ha), 
all of which is currently occupied by the species. In these areas, any 
actions that may affect the species would also affect proposed critical 
habitat, and it is unlikely that any additional conservation efforts 
would be recommended to address the adverse modification standard over 
and above those recommended as necessary to avoid jeopardizing the 
continued existence of the trispot darter. Therefore, even though some 
analysis of the impacts of the action of critical habitat may be 
necessary, and this additional analysis will require costs in time and 
resources by both the Federal action agency and the Service, it is 
believed that, in most circumstances, these costs would predominantly 
be administrative in nature and would not be significant. We do not 
expect any additional consultations resulting from the designation of 
critical habitat. The total annual incremental costs of critical 
habitat designation are anticipated to be the additional resources 
expended in a maximum of four section 7 consultations annually at a 
cost of approximately $13,000 per year.
    As we stated earlier, we are soliciting data and comments from the 
public on the DEA, as well as all aspects of this proposed rule and our 
required determinations. We may revise this proposed rule or supporting 
documents to incorporate or address information we receive during the 
public comment period. In particular, under section 4(b)(2) of the Act 
and its implementing regulations at 50 CFR 424.19, 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.

Exclusions Based on Economic Impacts

    Under section 4(b)(2) of the Act, we consider the economic impacts 
of specifying any particular area as critical habitat. As discussed 
above, we have prepared an analysis of the probable economic impacts of 
the proposed critical habitat designation and related factors. Based on 
this analysis, the Secretary does not propose to exercise his 
discretion to exclude any areas from the final designation based on 
economic impacts.

Exclusions Based on National Security Impacts or Homeland Security 
Impacts

    Under section 4(b)(2) of the Act, we also consider whether there 
are lands owned or managed by the Department of Defense where a 
national security impact might exist. We have determined that the lands 
within the proposed designation of critical habitat for trispot darter 
are not owned or managed by the Department of Defense or Department of 
Homeland Security, and, therefore, we anticipate no impact on national 
security. Consequently, the Secretary does not propose to exercise his 
discretion to exclude any areas from the final designation based on 
impacts on national security.

Exclusions Based on Other Relevant Impacts

    Under section 4(b)(2) of the Act, we consider any other relevant 
impacts, in addition to economic impacts and impacts on national 
security. We consider a number of factors, including whether there are 
permitted conservation plans covering the species in the area such as 
HCPs, safe harbor agreements, or candidate conservation agreements with 
assurances, or whether there are non-permitted conservation agreements 
and partnerships that would be encouraged by designation of, or 
exclusion from, critical habitat. In addition, we look at the existence 
of tribal conservation plans and partnerships and consider the 
government-to-government relationship of the United States with tribal 
entities. We also consider any social impacts that might occur because 
of the designation.
    In preparing this proposal, we have determined that there are 
currently no HCPs or other management plans for trispot darter, and the 
proposed designation does not include any tribal lands or trust 
resources. We anticipate no impact on partnerships or HCPs from this 
proposed critical habitat designation. Accordingly, the Secretary does 
not intend to exercise his discretion to exclude any areas from the 
final designation based on other relevant impacts.

Required Determinations

Regulatory Planning and Review (Executive Orders 12866 and 13563)

    Executive Order 12866 provides that the Office of Information and 
Regulatory Affairs (OIRA) will review all significant rules. The Office 
of Information and Regulatory Affairs has determined that this rule is 
not significant.
    Executive Order 13563 reaffirms the principles of E.O. 12866 while 
calling for improvements in the nation's

[[Page 67201]]

regulatory system to promote predictability, to reduce uncertainty, and 
to use the best, most innovative, and least burdensome tools for 
achieving regulatory ends. The executive order directs agencies to 
consider regulatory approaches that reduce burdens and maintain 
flexibility and freedom of choice for the public where these approaches 
are relevant, feasible, and consistent with regulatory objectives. E.O. 
13563 emphasizes further that regulations must be based on the best 
available science and that the rulemaking process must allow for public 
participation and an open exchange of ideas. We have developed this 
rule in a manner consistent with these requirements.

Executive Order 13771

    This rule is not an E.O. 13771 (``Reducing Regulation and 
Controlling Regulatory Costs'') (82 FR 9339, February 3, 2017) 
regulatory action because this rule is not significant under E.O. 
12866.

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 if 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.
    The Service's current understanding of the requirements under the 
RFA, as amended, and following recent court decisions, is that Federal 
agencies are only required to evaluate the potential incremental 
impacts of rulemaking on those entities directly regulated by the 
rulemaking itself and, therefore, are not required 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 by this designation. There 
is no requirement under RFA to evaluate the potential impacts to 
entities not directly regulated. Moreover, Federal agencies are not 
small entities. Therefore, because no small entities would be directly 
regulated if we adopt this rule as proposed, the Service certifies 
that, if made final, this proposed critical habitat designation will 
not have a significant economic impact on a substantial number of small 
entities.

Energy Supply, Distribution, or Use--Executive Order 13211

    Executive Order 13211 (Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use) requires 
agencies to prepare Statements of Energy Effects when undertaking 
certain actions. In our economic analysis, we did not find that the 
designation of this proposed critical habitat would significantly 
affect energy supplies, distribution, or use. Therefore, this action is 
not a significant energy action, and no Statement of Energy Effects is 
required.

Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.)

    In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501 
et seq.), we make the following findings:
    (1) This 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 do not destroy or adversely modify critical 
habitat under section 7. While non-Federal entities that receive 
Federal funding, assistance, or permits, or that otherwise require 
approval or authorization from a Federal agency for an action, may be 
indirectly impacted by the designation of critical habitat, the

[[Page 67202]]

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 rule would significantly or 
uniquely affect small governments because the lands being proposed for 
critical habitat designation are Federally or privately owned, or owned 
by the States of Alabama, Georgia, and Tennessee. These government 
entities do not fit the definition of ``small governmental 
jurisdiction.'' Therefore, a Small Government Agency Plan is not 
required.

Takings--Executive Order 12630

    In accordance with E.O. 12630 (Government Actions and Interference 
with Constitutionally Protected Private Property Rights), we have 
analyzed the potential takings implications of designating critical 
habitat for trispot darter 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 and 
concludes that this designation of critical habitat for trispot darter 
would 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, appropriate State resource agencies in Alabama, Georgia, and 
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 rule would not have substantial direct effects either on 
the States, or on the relationship between the national government and 
the States, or on the distribution of powers and responsibilities among 
the various levels of government. The designation may have some benefit 
to these governments because the areas that contain the features 
essential to the conservation of the species are more clearly defined, 
and the physical or biological features of the habitat 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 these local governments 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. 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, 
the rule identifies the elements of physical or biological features 
essential to the conservation of the species. The proposed critical 
habitat units are presented on maps, and the rule provides several 
options for the interested public to obtain more detailed location 
information, if desired.

Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.)

    This rule does not contain any new collections of information that 
require approval by the Office of Management and Budget (OMB) under the 
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.). This rule 
will not impose recordkeeping or reporting requirements on State or 
local governments, individuals, businesses, or organizations. An agency 
may not conduct or sponsor, and a person is not required to respond to, 
a collection of information unless it displays a currently valid OMB 
control number.

National Environmental Policy Act (42 U.S.C. 4321 et seq.)

    It is our position that, outside the jurisdiction of the U.S. Court 
of Appeals for the Tenth Circuit, we do not need to prepare 
environmental analyses pursuant to the National Environmental Policy 
Act in connection with designating critical habitat under the Act. We 
published a notice outlining our reasons for this determination in the 
Federal Register on October 25, 1983 (48 FR 49244). This position was 
upheld by the U.S. Court of Appeals for the Ninth Circuit (Douglas 
County v. Babbitt, 48 F.3d 1495 (9th Cir. 1995), cert. denied 516 U.S. 
1042 (1996)).

Government-to-Government Relationship With Tribes

    In accordance with the President's memorandum of April 29, 1994 
(Government-to-Government Relations with Native American Tribal 
Governments; 59 FR 22951), Executive Order 13175 (Consultation and 
Coordination With Indian Tribal Governments), and the Department of the 
Interior's manual at 512 DM 2, we readily acknowledge our 
responsibility to communicate meaningfully with recognized Federal 
Tribes on a government-to-government basis. In accordance with 
Secretarial Order 3206 of June 5, 1997 (American Indian Tribal Rights, 
Federal-Tribal Trust Responsibilities, and the Endangered Species Act), 
we readily acknowledge our responsibilities to work directly with 
tribes in developing programs for healthy ecosystems, to acknowledge 
that tribal lands are not subject to the same controls as Federal 
public lands, to remain sensitive to Indian culture, and to make 
information available to tribes. We have determined that no tribal 
lands would be affected by this designation.

[[Page 67203]]

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.

Authors

    The primary authors of this proposed rule are the staff members of 
the U.S. Fish and Wildlife Service Species Assessment Team and Alabama 
Ecological Services Field Office.

List of Subjects in 50 CFR Part 17

    Endangered and threatened species, Exports, Imports, Reporting and 
recordkeeping requirements, Transportation.

Proposed Regulation Promulgation

    Accordingly, we propose to amend part 17, subchapter B of chapter 
I, title 50 of the Code of Federal Regulations, as set forth below:

PART 17--ENDANGERED AND THREATENED WILDLIFE AND PLANTS

0
1. The authority citation for part 17 continues to read as follows:

    Authority: 16 U.S.C. 1361-1407; 1531-1544; and 4201-4245, unless 
otherwise noted.

0
2. Amend Sec.  17.95(e) by adding an entry for ``Trispot Darter 
(Etheostoma trisella)'' immediately following the entry for Slackwater 
Darter (Etheostoma boschungi), to read as set forth below:


Sec.  17.95  Critical habitat--fish and wildlife.

* * * * *
    (e) Fishes.
* * * * *
    Trispot Darter (Etheostoma trisella)
    (1) Critical habitat units are depicted for St. Clair, Etowah, 
Cherokee, and Calhoun Counties, Alabama; Whitfield, Murray, and Gordon 
Counties, Georgia; and Polk and Bradley Counties, Tennessee, on the 
maps in this entry.
    (2) Within these areas, the physical or biological features 
essential to the conservation of the trispot darter consist of the 
following components:
    (i) Geomorphically stable, small to medium streams with:
    (A) Detritus, woody debris, and stands of water willow (Justicia 
americana) over stream substrate that consists of small cobble, 
pebbles, gravel, and fine layers of silt; and
    (B) Intact riparian cover to maintain stream morphology and reduce 
erosion and sediment inputs.
    (ii) Adequate seasonal water flows, or a hydrologic flow regime 
(which includes the severity, frequency, duration, and seasonality of 
discharge over time) necessary to maintain appropriate benthic habitats 
and to maintain and create connectivity between permanently flowing 
streams with associated streams that hold water from November through 
April, providing connectivity between the darter's spawning and summer 
areas.
    (iii) Water and sediment quality (including, but not limited to, 
conductivity; hardness; turbidity; temperature; pH; ammonia; heavy 
metals; pesticides; animal waste products; and nitrogen, phosphorus, 
and potassium fertilizers) necessary to sustain natural physiological 
processes for normal behavior, growth, and viability of all life 
stages.
    (iv) Prey base of aquatic macroinvertebrates.
    (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 
the effective date of this rule.
    (4) Critical habitat map units. The hydrologic data used in the 
critical habitat maps were extracted from the U.S. Geological Survey's 
1:1M scale nationwide hydrologic layer with a projection of EPSG:4269-
NAD83 Geographic. The maps in this entry, as modified by any 
accompanying regulatory text, establish the boundaries of the critical 
habitat designation. The coordinates or plot points or both on which 
each map is based are available to the public at the Service's internet 
site at https://www.fws.gov/daphne/, at https://www.regulations.gov 
under Docket No. FWS-R4-ES-2018-0073, 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.
BILLING CODE 4333-15-P

[[Page 67204]]

    (5) Note: Index map follows:
    [GRAPHIC] [TIFF OMITTED] TP28DE18.001
    

[[Page 67205]]


    (6) Unit 1: Big Canoe Creek, St. Clair County, Alabama. Map of Unit 
1 follows:
[GRAPHIC] [TIFF OMITTED] TP28DE18.002


[[Page 67206]]


    (7) Unit 2: Ballplay Creek, Etowah, Cherokee, and Calhoun Counties, 
Alabama. Map of Unit 2 follows:
[GRAPHIC] [TIFF OMITTED] TP28DE18.003


[[Page 67207]]


    (8) Unit 3: Conasauga River, Whitfield and Murray Counties, 
Georgia, and Polk and Bradley Counties, Tennessee. Map of Unit 3 
follows:
[GRAPHIC] [TIFF OMITTED] TP28DE18.004


[[Page 67208]]


    (9) Unit 4: Mill Creek, Whitfield County, Georgia. Map of Unit 4 
follows:
[GRAPHIC] [TIFF OMITTED] TP28DE18.005


[[Page 67209]]


    (10) Unit 5: Coahulla Creek, Whitfield County, Georgia, and Bradley 
County, Tennessee. Map of Unit 5 follows:
[GRAPHIC] [TIFF OMITTED] TP28DE18.006


[[Page 67210]]


    (11) Unit 6: Coosawattee River, Gordon and Murray Counties, 
Georgia. Map of Unit 6 follows:
[GRAPHIC] [TIFF OMITTED] TP28DE18.007

* * * * *

    Dated: October 26, 2018.
James W. Kurth,
Deputy Director, U.S. Fish and Wildlife Service, Exercising the 
Authority of the Director, U.S. Fish and Wildlife Service.
[FR Doc. 2018-27976 Filed 12-27-18; 8:45 am]
BILLING CODE 4333-15-C