Endangered and Threatened Wildlife and Plants; Section 4(d) Rule for Trispot Darter, 67185-67189 [2018-27977]

Agencies

• Fish and Wildlife Service
• DEPARTMENT OF THE INTERIOR

[Federal Register Volume 83, Number 248 (Friday, December 28, 2018)]
[Proposed Rules]
[Pages 67185-67189]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-27977]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-R4-ES-2018-0074; 4500030113]
RIN 1018-BD43


Endangered and Threatened Wildlife and Plants; Section 4(d) Rule 
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 a 
rule under section 4(d) of the Endangered Species Act of 1973 (Act), as 
amended, for the trispot darter (Etheostoma trisella), a fish from 
Alabama, Georgia, and Tennessee. This rule would provide measures 
necessary and advisable to conserve the species, which we list as a 
threatened species under the Act in a separate rulemaking published in 
today's Federal Register.

DATES: We will accept comments 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: You may submit comments by one of the following methods:
    (1) Electronically: Go to the Federal eRulemaking Portal:
    https://www.regulations.gov. In the Search box, enter FWS-R4-ES-
2018-0074, 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-2018-0074, 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).

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; facsimile 
251-441-6222. Persons who use a telecommunications device for the deaf 
(TDD) may call the Federal Relay Service at 800-877-8339.

SUPPLEMENTARY INFORMATION:

Previous Federal Actions

    On October 4, 2017, we published a proposed rule in the Federal 
Register (82 FR 46183) to list the trispot darter as a threatened 
species under the Act (16 U.S.C. 1531 et seq.). Please refer to that 
proposed rule for a detailed description of previous Federal actions 
concerning this species, as well as information on the trispot darter's 
taxonomy, habitat, life history, historical and current distribution, 
population estimates, and status, and a summary of factors affecting 
the species. In addition, a thorough review of the taxonomy, life 
history, and ecology of the trispot darter is presented in the species 
status assessment (SSA) report, available on https://www.regulations.gov 
under Docket No. FWS-R4-ES-2018-0074.
    Elsewhere in today's Federal Register, we publish (1) a final rule 
to list the trispot darter as a threatened species under the Act 
(``final listing rule''), and (2) a proposed rule to designate critical 
habitat for the trispot darter under the Act.

Background

    The trispot darter is a freshwater fish found in the Coosa River 
System, above the fall line in the Ridge and Valley ecoregion of 
Alabama, Georgia, and Tennessee. This fish has a historical range from 
the middle to upper Coosa River Basin with recorded collections in 
tributaries to the Oostanaula, the mainstem Coosa, the Conasauga, and 
the Coosawattee Rivers, and their tributaries. Currently, the trispot 
darter is known to occur in Little Canoe Creek and tributaries (Coosa 
River), Ballplay Creek tributaries (Coosa River), Conasauga River and 
tributaries, and Coosawattee River and one tributary.
    The trispot darter is a small-bodied, fish ranging in size from 1.3 
to 1.6 inches (in) (3.3 to 4.1 centimeters (cm))

[[Page 67186]]

as an adult. The darter has three prominent black dorsal saddles, a 
pale undersurface, and a dark bar below the eye. Scattered dark 
blotches exist on the fins' rays. During breeding season, males are a 
reddish-orange color and have green marks along their sides and a red 
band through their spiny dorsal fin.
    The trispot darter 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 river margins and lower reaches of tributaries with slower 
velocities. Trispot darters are associated with detritus, logs, and 
stands of water willow, and the substrate 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. In late fall (approximately late November 
through early December), the species shifts its habitat preference and 
begins movement toward spawning areas; this is most likely stimulated 
by precipitation, but temperature changes and decreasing daylight hours 
may also provide cues to begin migration. The fish move from the main 
channels into tributaries, 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 in (30 cm) 
or less); moderate leaf litter covering mixed cobble, gravel, sand, and 
clay; a deep layer of soft silt over clay; and emergent vegetation. 
Trispot darters predominantly feed on mayfly nymphs and midge larvae 
and pupae.
    A multitude of natural and anthropogenic factors that affect 
aquatic systems may impact the status of this species. The largest 
threat to the future viability of the trispot darters is habitat 
degradation from stressors that influence four habitat elements: water 
quality, water quantity, instream habitat, and habitat connectivity. 
All of these factors are exacerbated by the effects of climate change. 
These stressors include hydrologic alteration, sedimentation, loss of 
connectivity, loss of riparian vegetation, and contaminants entering 
the water system due to agricultural activities (such as excessive 
poultry litter and livestock entering streams) and urbanization within 
the watershed.

Provisions of Section 4(d) of the Act

    The Act and its implementing regulations set forth a series of 
general prohibitions and exceptions that apply to threatened wildlife. 
Under section 4(d) of the Act, the Secretary of the Interior has the 
discretion to issue such regulations as he deems necessary and 
advisable to provide for the conservation of threatened species. The 
Secretary also has the discretion to prohibit, by regulation with 
respect to any threatened species of fish or wildlife, any act 
prohibited under section 9(a)(1) of the Act. The prohibitions of 
section 9(a)(1) of the Act, codified at 50 CFR 17.31, make it illegal 
for any person subject to the jurisdiction of the United States to take 
(which includes harass, harm, pursue, hunt, shoot, wound, kill, trap, 
capture, or collect; or to attempt any of these) threatened wildlife 
within the United States or on the high seas. In addition, it is 
unlawful to import; export; deliver, receive, carry, transport, or ship 
in interstate or foreign commerce in the course of commercial activity; 
or sell or offer for sale in interstate or foreign commerce any listed 
species. It is also illegal to possess, sell, deliver, carry, 
transport, or ship any such wildlife that has been taken illegally.
    For any threatened species, the Service may develop a protective 
regulation that is specific to the conservation needs of that species. 
The courts have recognized the extent of the Secretary's discretion to 
develop prohibitions, as well as exclusions from those prohibitions, 
that are appropriate for the conservation of a threatened species. For 
example, the Secretary may decide not to prohibit take, or to put in 
place only limited take prohibitions (see Alsea Valley Alliance v. 
Lautenbacher, 2007 U.S. Dist. Lexis 60203 (D. Or. 2007); Washington 
Environmental Council v. National Marine Fisheries Service, 2002 U.S. 
Dist. Lexis 5432 (W.D. Wash. 2002)). In addition, as affirmed in State 
of Louisiana v. Verity, 853 F.2d 322 (5th Cir. 1988), the protective 
regulation for a threatened species need not address all the threats to 
the species. As noted by Congress when the Act was initially enacted, 
once an animal is listed as a threatened species, the Secretary has an 
almost infinite number of options available to him with regard to the 
permitted activities for those species. He may, for example, permit 
taking, but not importation of such species, or he may choose to 
prohibit both taking and importation but allow the transportation of 
such species, as long as the measures will serve to conserve, protect, 
or restore the species concerned in accordance with the purposes of the 
Act.

Proposed 4(d) Rule for the Trispot Darter

    Under this proposed section 4(d) rule, all prohibitions and 
provisions of section 9(a)(1) would apply to the trispot darter, except 
the following actions would not be prohibited:
    (1) Species restoration efforts by State wildlife agencies, 
including collection of broodstock, tissue collection for genetic 
analysis, captive propagation, and subsequent stocking into currently 
occupied and unoccupied areas within the historical range of the 
species.
    (2) Channel restoration projects that create natural, physically 
stable, ecologically functioning streams (or stream and wetland 
systems) that are reconnected with their groundwater aquifers and, if 
the projects involve known trispot darter spawning habitat, that take 
place between May 1 and December 31 to avoid the time period when the 
trispot darter will be found within such habitat. These projects can be 
accomplished using a variety of methods, but the desired outcome is a 
natural channel with low shear stress (force of water moving against 
the channel); bank heights that enable reconnection to the floodplain; 
a reconnection of surface and groundwater systems, resulting in 
perennial flows in the channel; riffles and pools comprised of existing 
soil, rock, and wood instead of large imported materials; low 
compaction of soils within adjacent riparian areas; and inclusion of 
riparian wetlands. Second- to third-order headwater streams 
reconstructed in this way would offer suitable habitats for the trispot 
darter and contain stable channel features, such as pools, glides, 
runs, and riffles, which could be used by the species' for spawning, 
rearing, growth, feeding, migration, and other normal behaviors.
    (3) Streambank stabilization projects that utilize bioengineering 
methods to replace pre-existing, bare, eroding stream banks with 
vegetated, stable stream banks, thereby reducing bank erosion and 
instream sedimentation and improving habitat conditions for the 
species. Following these bioengineering methods, stream banks may be 
stabilized using live stakes (live, vegetative cuttings inserted or 
tamped into the ground in a manner that allows the stake to take root 
and grow), live fascines (live branch cuttings, usually willows, bound 
together into long, cigar-shaped bundles), or brush layering (cuttings 
or branches of easily rooted tree species layered between successive 
lifts of soil fill). These bioengineering

[[Page 67187]]

methods must not include the sole use of quarried rock (rip-rap) or the 
use of rock baskets or gabion structures, but rip-rap, rock baskets, or 
gabion structures could be used in conjunction with the bioengineering 
methods.
    (4) Silviculture practices and forest management activities that:
    (a) Implement highest-standard best management practices, 
particularly for Streamside Management Zones, stream crossings, and 
forest roads;
    (b) Comply with forest practice guidelines related to water quality 
standards, or comply with Sustainable Forestry Initiative/Forest 
Stewardship Council/American Tree Farm System certification standards 
for both forest management and responsible fiber sourcing;
    (c) Remove logging debris or any other large material placed within 
natural or artificial wet weather conveyances or ephemeral, 
intermittent, or perennial stream channels; and
    (d) When silviculture practices and forest management activities 
involve trispot darter spawning habitat, are carried out between May 1 
and December 31 to avoid the time period when the trispot darter will 
be found within spawning habitat.
    (5) Development or other activities where transportation corridors 
cross streams that:
    (a) Include the installation of structures engineered to allow 
organism passage at stream crossings, with specific consideration for 
fish passage; and
    (b) Are performed between May 1 and December 31 to avoid the time 
period when the trispot darter will be found within spawning habitat, 
if such habitat is affected by the activity.
    (6) Activities carried out under the Working Lands for Wildlife 
program of the Natural Resources Conservation Service, U.S. Department 
of Agriculture; or similar projects throughout the range of the trispot 
darter that may be created in the future that:
    (a) Do not alter habitats known to be used by the trispot darter 
beyond the fish's tolerances; and
    (b) Are performed between May 1 and December 31 to avoid the time 
period when the trispot darter will be found within its spawning 
habitat, if such habitat is affected by the activity.
    Although these management activities may result in some minimal 
level of harm or temporary disturbance to the trispot darter, overall, 
these activities benefit the subspecies by contributing to conservation 
and recovery.
    Across the species' range, instream habitats have been degraded 
physically by sedimentation, direct channel disturbance, pollution, and 
loss of connectivity. The activities proposed in this rule would 
correct some of these problems, creating more favorable habitat 
conditions for the species. These provisions are necessary and 
advisable because the species needs active conservation to improve the 
quality of its habitat and, absent protections, the species is likely 
to become in danger of extinction in the foreseeable future. These 
provisions can encourage cooperation by landowners and other affected 
parties in implementing conservation measures. This would allow for use 
of the land while at the same time ensuring the preservation of 
suitable habitat and minimizing impact on the species.
    Under our regulations at 50 CFR 17.32, we may issue permits to 
carry out otherwise prohibited activities involving threatened wildlife 
under certain circumstances. A permit may be issued for the following 
purposes: for scientific purposes, to enhance propagation or survival, 
for economic hardship, for zoological exhibition, for educational 
purposes, for incidental taking, or for special purposes consistent 
with the purposes of the Act.
    Nothing in this proposed 4(d) rule would change in any way the 
recovery planning provisions of section 4(f) or consultation 
requirements under section 7 of the Act, or the ability of the Service 
to enter into partnerships for the management and protection of the 
trispot darter.

Available Conservation Measures

    Conservation measures provided to species listed as endangered or 
threatened species under the Act include recognition, recovery actions, 
requirements for Federal protection, and prohibitions against certain 
practices. Recognition of a species through listing it results in 
public awareness, and leads Federal, State, Tribal, and local agencies; 
private organizations; and individuals to undertake conservation. The 
Act encourages cooperation with the States and other countries and 
calls for recovery actions to be carried out for listed species. 
Information about the protection required by Federal agencies, and the 
prohibitions against certain activities, and recovery planning and 
implementation and interagency consultation, are discussed in the 
proposed listing rule (82 FR 46183; October 4, 2017) and the final 
listing rule (published elsewhere in today's Federal Register).

Information Requested

    We intend that any final action resulting from this proposal will 
be based on the best scientific and commercial data available and be as 
accurate and as effective as possible. Therefore, we request comments 
or information from other concerned governmental agencies, Native 
American tribes, the scientific community, industry, or any other 
interested parties concerning this proposed 4(d) rule. We will consider 
all comments and information we receive during our preparation of a 
final 4(d) rule. Accordingly, our final decision may differ from this 
proposal based on specific public comments or any other new information 
that may become available.
    We particularly seek comments concerning:
    (1) Information concerning the appropriateness and scope of a 4(d) 
rule for the trispot darter. We are particularly interested in input 
from agriculture or forestry experts regarding forest management, 
restoration practices, water conservation, or related activities, along 
with the value of certified forestry and agricultural practices and of 
best management practices, that would be appropriately addressed 
through a 4(d) rule for the trispot darter.
    (2) Additional provisions the Service may wish to consider for a 
4(d) rule in order to manage and conserve the trispot darter.
    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.
    You may submit your comments and materials concerning this proposed 
rule by one of the methods listed in ADDRESSES. We request that you 
send comments only by the methods described in ADDRESSES.
    If you submit information via https://www.regulations.gov, your 
entire submission--including any personal identifying information--will 
be posted on the website. If your submission is made via a hardcopy 
that includes personal identifying information, you may request at the 
top of your document that we withhold this information from public 
review. However, we cannot guarantee that we will be able to do so. We 
will post all hardcopy submissions on https://www.regulations.gov.
    Comments and materials we receive, as well as supporting 
documentation we used in preparing this proposed rule, will be 
available for public inspection on https://www.regulations.gov, or by 
appointment, during normal business hours, at the U.S. Fish and 
Wildlife Service, Alabama Ecological Services Office (see FOR FURTHER 
INFORMATION CONTACT).

[[Page 67188]]

Required Determinations

Regulatory Planning and Review (Executive Orders 12866 and 13563)

    Executive Order 12866 provides that the Office of Information and 
Regulatory Affairs (OIRA) in the Office of Management and Budget will 
review all significant rules. OIRA has determined that this rule is not 
significant.
    Executive Order 13563 reaffirms the principles of E.O. 12866 while 
calling for improvements in the nation's regulatory system to promote 
predictability, to reduce uncertainty, and to use the best, most 
innovative, and least burdensome tools for achieving regulatory ends. 
The executive order directs agencies to consider regulatory approaches 
that reduce burdens and maintain flexibility and freedom of choice for 
the public where these approaches are relevant, feasible, and 
consistent with regulatory objectives. E.O. 13563 emphasizes further 
that regulations must be based on the best available science and that 
the rulemaking process must allow for public participation and an open 
exchange of ideas. We have developed this proposed 4(d) rule in a 
manner consistent with these requirements.

Regulatory Flexibility Act

    Under the Regulatory Flexibility Act (RFA; 5 U.S.C. 601 et seq., as 
amended by the Small Business Regulatory Enforcement Fairness Act 
(SBREFA) of 1996), whenever an agency must 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 (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. SBREFA amended the RFA to require 
Federal agencies to provide a statement of the factual basis for 
certifying that the rule will not have a significant economic impact on 
a substantial number of small entities. Thus, for a regulatory 
flexibility analysis to be required, impacts must exceed a threshold 
for ``significant impact'' and a threshold for a ``substantial number 
of small entities.'' See 5 U.S.C. 605(b). Based on the information that 
is available to us at this time, we certify that, if adopted as 
proposed, this rule will not have a significant economic impact on a 
substantial number of small entities. The following discussion explains 
our rationale.
    Elsewhere in today's Federal Register, we published the final 
determination to list the trispot darter as a threatened species. That 
rule becomes effective 30 days after the date of publication. As a 
result, the trispot darter will be covered by the full protections of 
the Act, including the full section 9 prohibitions that make it illegal 
for any person subject to the jurisdiction of the United States to take 
(harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or 
collect, or attempt to engage in any such conduct), import or export, 
ship in interstate commerce in the course of commercial activity, or 
sell or offer for sale in interstate or foreign commerce any wildlife 
species listed as an endangered species, without written authorization. 
It also is illegal under section 9(a)(1) of the Act to possess, sell, 
deliver, carry, transport, or ship any such wildlife that is taken 
illegally. This proposed 4(d) rule states that all prohibitions in the 
Act's section 9(a)(1) would apply to the trispot darter, except 
regulated activities that are conducted consistent with the 
conservation needs of the species as laid out above. This would result 
in a less restrictive regulation under the Act, as it pertains to the 
trispot darter, than would otherwise exist. For the above reasons, we 
certify that, if adopted as proposed, this rule will not have a 
significant economic impact on a substantial number of small entities. 
Therefore, a final regulatory flexibility analysis is not required.

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.

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

    This proposed rule would not impose an unfunded mandate on State, 
local, or tribal governments, or the private sector of more than $100 
million per year. The rule would not have a significant or unique 
effect on State, local, or tribal governments or the private sector. A 
statement containing the information required by the Unfunded Mandates 
Reform Act (2 U.S.C. 1501 et seq.) is not required.

Energy Supply, Distribution or Use (Executive Order 13211)

    Executive Order 13211 requires agencies to prepare Statements of 
Energy Effects when undertaking actions that significantly affect 
energy supply, distribution, or use. For reasons discussed within this 
proposed rule, we believe that the rule would not have any effect on 
energy supplies, distribution, or use. Therefore, this action is not a 
significant energy action, and no Statement of Energy Effects is 
required.

Takings--Executive Order 12630

    In accordance with Executive Order 12630, this proposed rule would 
not have significant takings implications. We have determined that the 
rule has no potential takings of private property implications as 
defined by this Executive Order because this proposed 4(d) rule would, 
with limited exceptions, maintain the regulatory status quo regarding 
activities currently allowed under the Endangered Species Act. A 
takings implication assessment is not required.

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.

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 a 4(d) rule in 
accordance with the provisions of the Act. To assist the public in 
understanding the conservation needs of the species, the proposed rule 
identifies the prohibitions and exceptions to those prohibitions that 
are necessary and advisable to the conservation of the species.

Federalism--Executive Order 13132

    In accordance with E.O. 13132 (Federalism), this proposed 4(d) rule 
does not have significant Federalism effects. A federalism summary 
impact statement is not required. This rule would not have substantial 
direct effects on the States, on the relationship between the Federal 
government and the States, or on the distribution of powers and 
responsibilities among the various levels of government.

[[Page 67189]]

Government-to-Government Relationships 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 proposed rule.

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.

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

    We intend to undertake an environmental assessment of this action 
under the authority of the National Environmental Policy Act of 1969. 
We will notify the public of the availability of the draft 
environmental assessment for this proposal when it is complete.

Authors

    The primary authors of this proposed rule are the staff members of 
the Species Assessment Team and the Alabama Ecological Services Field 
Office (see FOR FURTHER INFORMATION CONTACT).

List of Subjects in 50 CFR Part 17

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

Proposed Regulation Promulgation

    Accordingly, for the reasons just described, 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.  17.44 by revising paragraph (q) to read as follows:


Sec.  17.44  Special rules--fishes.

* * * * *
    (q) Trispot darter (Etheostoma trisella).
    (1) Prohibitions. Except as noted in paragraph (q)(2) of this 
section, all prohibitions and provisions of section 9(a)(1) of the Act 
apply to the trispot darter.
    (2) Exceptions from prohibitions. Incidental take of the trispot 
darter will not be considered a violation of section 9 of the Act if 
the take results from any of the following activities:
    (i) Species restoration efforts by State wildlife agencies, 
including collection of broodstock, tissue collection for genetic 
analysis, captive propagation, and subsequent stocking into currently 
occupied and unoccupied areas within the historical range of the 
species.
    (ii) Channel restoration projects that create natural, physically 
stable, ecologically functioning streams (or stream and wetland 
systems) that are reconnected with their groundwater aquifers. These 
projects can be accomplished using a variety of methods, but the 
desired outcome is a natural channel with low shear stress (force of 
water moving against the channel); bank heights that enable 
reconnection to the floodplain; a reconnection of surface and 
groundwater systems, resulting in perennial flows in the channel; 
riffles and pools comprised of existing soil, rock, and wood instead of 
large imported materials; low compaction of soils within adjacent 
riparian areas; and inclusion of riparian wetlands.
    (iii) Streambank stabilization projects that utilize bioengineering 
methods to replace pre-existing, bare, eroding stream banks with 
vegetated, stable stream banks, thereby reducing bank erosion and 
instream sedimentation and improving habitat conditions for the 
species. Stream banks may be stabilized using live stakes (live, 
vegetative cuttings inserted or tamped into the ground in a manner that 
allows the stake to take root and grow), live fascines (live branch 
cuttings, usually willows, bound together into long, cigar-shaped 
bundles), or brush layering (cuttings or branches of easily rooted tree 
species layered between successive lifts of soil fill). Stream banks 
must not be stabilized solely through the use of quarried rock (rip-
rap) or the use of rock baskets or gabion structures.
    (iv) Silviculture practices and forest management activities that:
    (A) Implement highest-standard best management practices, 
particularly for Streamside Management Zones, stream crossings, and 
forest roads; and
    (B) Comply with forest practice guidelines related to water quality 
standards, or comply with Sustainable Forestry Initiative/Forest 
Stewardship Council/American Tree Farm System certification standards 
for both forest management and responsible fiber sourcing.
    (v) Transportation projects that provide for fish passage at stream 
crossings; and
    (vi) Projects carried out in the species' range under the Working 
Lands for Wildlife program of the Natural Resources Conservation 
Service, U.S. Department of Agriculture.
* * * * *

    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. 2018-27977 Filed 12-27-18; 8:45 am]
 BILLING CODE 4333-15-P