Endangered and Threatened Wildlife and Plants; Threatened Species Status With Section 4(d) Rule for the Upper Coosa River Distinct Population Segment of Frecklebelly Madtom and Designation of Critical Habitat, 13038-13070 [2023-03875]

Agencies

• Fish and Wildlife Service
• DEPARTMENT OF THE INTERIOR

[Federal Register Volume 88, Number 41 (Thursday, March 2, 2023)]
[Rules and Regulations]
[Pages 13038-13070]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-03875]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-R4-ES-2020-0058; FF09E21000 FXES1111090FEDR 234]
RIN 1018-BE87


Endangered and Threatened Wildlife and Plants; Threatened Species 
Status With Section 4(d) Rule for the Upper Coosa River Distinct 
Population Segment of Frecklebelly Madtom and Designation of Critical 
Habitat

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), determine 
threatened species status under the Endangered Species Act of 1973 
(Act), as amended, for the Upper Coosa River distinct population 
segment (DPS) of the frecklebelly madtom (Noturus munitus), a fish 
species. We are also finalizing a rule under section 4(d) of the Act to 
provide for conservation of the species. In addition, we designate 
critical habitat for the Upper Coosa River DPS under the Act. In total, 
approximately 134 river miles (216 kilometers) in Georgia and Tennessee 
fall within the boundaries of the critical habitat designation. This 
rule applies the protections of the Act to this species and its 
designated critical habitat.

DATES: This rule is effective April 3, 2023.

ADDRESSES: This final rule is available on the internet at https://www.regulations.gov in Docket No. FWS-R4-ES-2020-0058 and at https://www.fws.gov/office/alabama-ecological-services/library. Comments and 
materials we received, as well as supporting documentation we used in 
preparing this rule, are available for public inspection at https://www.regulations.gov under Docket No. FWS-R4-ES-2020-0058.
    For the critical habitat designation, the coordinates or plot 
points or both from which the maps are generated are included in the 
decision file and are available at https://www.fws.gov/office/alabama-ecological-services/library, at https://www.regulations.gov under 
Docket No. FWS-R4-ES-2020-0058, and at the Alabama Ecological Services 
Field Office (see FOR FURTHER INFORMATION CONTACT, below). Any 
additional tools or supporting information that we developed for the 
critical habitat designation will also be available at the Service 
website and Field Office set out above and may also be included in the 
preamble and at https://www.regulations.gov.

FOR FURTHER INFORMATION CONTACT: William Pearson, Field Supervisor, 
U.S. Fish and Wildlife Service, Alabama Ecological Services Field 
Office, 1208-B Main Street, Daphne, AL 36526; telephone 251-441-5870. 
Individuals in the United States who are deaf, deafblind, hard of 
hearing, or have a speech disability may dial 711 (TTY, TDD, or 
TeleBraille) to access telecommunications relay services. Individuals 
outside the United States should use the relay services offered within 
their country to make international calls to the point-of-contact in 
the United States.

SUPPLEMENTARY INFORMATION: 

Executive Summary

    Why we need to publish a rule. Under the Act, a species warrants 
listing if it meets the definition of an endangered species (in danger 
of extinction

[[Page 13039]]

throughout all or a significant portion of its range) or a threatened 
species (likely to become endangered within the foreseeable future 
throughout all or a significant portion of its range). If we determine 
that a species warrants listing, we must list the species promptly and 
designate the species' critical habitat to the maximum extent prudent 
and determinable. We have determined that the Upper Coosa River DPS of 
frecklebelly madtom meets the definition of a threatened species; 
therefore, we are listing it as such and designating critical habitat. 
Both listing a species as an endangered or threatened species and 
designating critical habitat can be completed only by issuing a rule 
through the Administrative Procedure Act rulemaking process.
    What this document does. This final rule lists the Upper Coosa 
River DPS of frecklebelly madtom as a threatened species with a rule 
issued under section 4(d) of the Act (a ``4(d) rule'') and designates 
critical habitat for the DPS.
    The basis for our action. Under the Act, we may determine that a 
species is an endangered or threatened species because of any of five 
factors: (A) The present or threatened destruction, modification, or 
curtailment of its habitat or range; (B) overutilization for 
commercial, recreational, scientific, or educational purposes; (C) 
disease or predation; (D) the inadequacy of existing regulatory 
mechanisms; or (E) other natural or manmade factors affecting its 
continued existence. We have determined that the factors driving the 
status of the Upper Coosa River DPS are habitat destruction and 
degradation caused by agriculture and developed land uses, resulting in 
poor water quality (Factor A).
    Section 4(a)(3) of the Act requires the Secretary of the Interior 
(Secretary) to designate critical habitat concurrent with listing to 
the maximum extent prudent and determinable. Section 3(5)(A) of the Act 
defines critical habitat as (i) the specific areas within the 
geographical area occupied by the species, at the time it is listed, on 
which are found those physical or biological features (I) essential to 
the conservation of the species and (II) which may require special 
management considerations or protections; and (ii) specific areas 
outside the geographical area occupied by the species at the time it is 
listed, upon a determination by the Secretary that such areas are 
essential for the conservation of the species. Section 4(b)(2) of the 
Act states that the Secretary must make the designation on the basis of 
the best scientific data available and after taking into consideration 
the economic impact, the impact on national security, and any other 
relevant impacts of specifying any particular area as critical habitat.

Previous Federal Actions

    On November 19, 2020, we published a proposed rule (85 FR 74050) to 
list the Upper Coosa River DPS of frecklebelly madtom as a threatened 
species. That document includes our not-warranted finding on the 
listing of the frecklebelly madtom species as a whole. Please refer to 
the November 19, 2020, proposed rule for a detailed description of 
previous Federal actions concerning the frecklebelly madtom species.

Summary of Changes From the Proposed Rule

    Based on information we received during the comment period for the 
proposed rule, we have added an exception to the final 4(d) rule to 
except incidental take from silviculture practices and forest 
management activities that use State-approved best management practices 
to protect water and sediment quality and stream and riparian habitat. 
We explain this new exception in the preamble of this rule.
    Also based on information we received during the comment period for 
the proposed rule, we clarify that the critical habitat designation for 
the Upper Coosa River DPS of frecklebelly madtom does not extend beyond 
the bankfull width of the designated rivers.
    In addition, this final rule includes several nonsubstantive, 
editorial corrections for clarity and accuracy.

Supporting Documents

    A species status assessment (SSA) team prepared an SSA report for 
the frecklebelly madtom. The SSA team was composed of Service 
biologists, in consultation with other species experts. The SSA report 
represents a compilation of the best scientific and commercial data 
available concerning the status of the species, including the impacts 
of past, present, and future factors (both negative and beneficial) 
affecting the species. In accordance with our joint policy on peer 
review published in the Federal Register on July 1, 1994 (59 FR 34270), 
and our August 22, 2016, memorandum updating and clarifying the role of 
peer review of listing actions under the Act, we sought peer review of 
the SSA report. As discussed in the proposed rule, we sent the SSA 
report to 10 independent peer reviewers, all of whom have expertise 
that includes familiarity with the frecklebelly madtom or its habitat, 
biological needs, or threats. We received two responses from peer 
reviewers.

I. Final Listing Determination

Background

    The frecklebelly madtom (Noturus munitus) is a small, stout catfish 
reaching 99 millimeters (mm) (3.9 inches (in)) in length (Etnier and 
Starnes 1993, p. 324) and distinctively marked with dark saddles 
(Suttkus and Taylor 1965, p. 171). The species inhabits the main 
channels and larger tributaries of large river systems in Louisiana, 
Mississippi, Alabama, Georgia, and Tennessee. The species has a broad 
but disjunct distribution across the Pearl River watershed and Mobile 
River Basin, with populations in the Pearl River and Bogue Chitto River 
in the Pearl River watershed and the Tombigbee, Alabama, Cahaba, 
Etowah, and Conasauga river systems in the Mobile River Basin (Piller 
et al. 2004, p. 1004; Bennett and Kuhajda 2010, pp. 507-508).
    Throughout its range, the frecklebelly madtom primarily occupies 
streams and rivers within the Gulf Coastal Plain physiographic 
province; however, it also occurs in the Ridge and Valley physiographic 
province in the Conasauga River and Piedmont Upland physiographic 
province in the Etowah River (Mettee et al. 1996, pp. 408-409). For the 
frecklebelly madtom to survive and reproduce, individuals need suitable 
habitat that supports essential life functions at all life stages. 
Three elements appear to be essential to the survival and reproduction 
of individuals: flowing water, stable substrate, and aquatic 
vegetation. A thorough review of the taxonomy, life history, and 
ecology of the frecklebelly madtom is presented in the SSA report 
(version 1.2, pp. 1-17).
    The Upper Coosa River DPS of the frecklebelly madtom primarily 
occurs within northern Georgia and extends into two counties of 
Tennessee within the Conasauga River and Etowah River (see figure 1, 
below). Please refer to our proposed rule (85 FR 74050; November 19, 
2020) for a summary of the species' background information available to 
the Service at the time that the proposal was published.

Regulatory and Analytical Framework

Regulatory Framework

    Section 4 of the Act (16 U.S.C. 1533) and its implementing 
regulations (50 CFR part 424) set forth the procedures for determining 
whether a species is an endangered species or a threatened species, 
issuing protective regulations for threatened species, and designating

[[Page 13040]]

critical habitat for endangered and threatened species. In 2019, 
jointly with the National Marine Fisheries Service, the Service issued 
a final rule that revised the regulations in 50 CFR part 424 regarding 
how we add, remove, and reclassify endangered and threatened species 
and the criteria for designating listed species' critical habitat (84 
FR 45020; August 27, 2019). On the same day, the Service also issued 
final regulations that, for species listed as threatened species after 
September 26, 2019, eliminated the Service's general protective 
regulations automatically applying to threatened species the 
prohibitions that section 9 of the Act applies to endangered species 
(84 FR 44753; August 27, 2019). We collectively refer to these actions 
as the 2019 regulations.
    As with the proposed rule, we are applying the 2019 regulations for 
this final rule because the 2019 regulations are the governing law just 
as they were when we completed the proposed rule. Although there was a 
period in the interim--between July 5, 2022, and September 21, 2022--
when the 2019 regulations became vacated and the pre-2019 regulations 
therefore governed, the 2019 regulations are now in effect and govern 
listing and critical habitat decisions (see Center for Biological 
Diversity v. Haaland, No. 4:19-cv-05206-JST, Doc. 168 (N.D. Cal. July 
5, 2022) (CBD v. Haaland) (vacating the 2019 regulations and thereby 
reinstating the pre-2019 regulations)); In re: Cattlemen's Ass'n, No. 
22-70194 (9th Cir. Sept. 21, 2022) (staying the district court's order 
vacating the 2019 regulations until the district court resolved a 
pending motion to amend the order); Center for Biological Diversity v. 
Haaland, No. 4:19-cv-5206-JST, Doc. Nos. 197, 198 (N.D. Cal. Nov. 16, 
2022) (granting plaintiffs' motion to amend July 5, 2022 order and 
granting government's motion for remand without vacatur). We have 
undertaken an analysis under the pre-2019 regulations and included it 
in the decision file for this final rule.
    The Act defines an ``endangered species'' as a species that is in 
danger of extinction throughout all or a significant portion of its 
range, and a ``threatened species'' as a species that is likely to 
become an endangered species within the foreseeable future throughout 
all or a significant portion of its range. The Act requires that we 
determine whether any species is an endangered species or a threatened 
species because of any of the following factors:
    (A) The present or threatened destruction, modification, or 
curtailment of its habitat or range;
    (B) Overutilization for commercial, recreational, scientific, or 
educational purposes;
    (C) Disease or predation;
    (D) The inadequacy of existing regulatory mechanisms; or
    (E) Other natural or manmade factors affecting its continued 
existence.
    These factors represent broad categories of natural or human-caused 
actions or conditions that could have an effect on a species' continued 
existence. In evaluating these actions and conditions, we look for 
those that may have a negative effect on individuals of the species, as 
well as other actions or conditions that may ameliorate any negative 
effects or may have positive effects.
    We use the term ``threat'' to refer in general to actions or 
conditions that are known to or are reasonably likely to negatively 
affect individuals of a species. The term ``threat'' includes actions 
or conditions that have a direct impact on individuals (direct 
impacts), as well as those that affect individuals through alteration 
of their habitat or required resources (stressors). The term ``threat'' 
may encompass--either together or separately--the source of the action 
or condition or the action or condition itself.
    However, the mere identification of any threat(s) does not 
necessarily mean that the species meets the statutory definition of an 
``endangered species'' or a ``threatened species.'' In determining 
whether a species meets either definition, we must evaluate all 
identified threats by considering the expected response by the species, 
and the effects of the threats--in light of those actions and 
conditions that will ameliorate the threats--on an individual, 
population, and species level. We evaluate each threat and its expected 
effects on the species, then analyze the cumulative effect of all of 
the threats on the species as a whole. We also consider the cumulative 
effect of the threats in light of those actions and conditions that 
will have positive effects on the species, such as any existing 
regulatory mechanisms or conservation efforts. The Secretary determines 
whether the species meets the definition of an ``endangered species'' 
or a ``threatened species'' only after conducting this cumulative 
analysis and describing the expected effect on the species now and in 
the foreseeable future.
    The Act does not define the term ``foreseeable future,'' which 
appears in the statutory definition of ``threatened species.'' Our 
implementing regulations at 50 CFR 424.11(d) set forth a framework for 
evaluating the foreseeable future on a case-by-case basis. The term 
``foreseeable future'' extends only so far into the future as we can 
reasonably determine that both the future threats and the species' 
responses to those threats are likely. In other words, the foreseeable 
future is the period of time in which we can make reliable predictions. 
``Reliable'' does not mean ``certain''; it means sufficient to provide 
a reasonable degree of confidence in the prediction. Thus, a prediction 
is reliable if it is reasonable to depend on it when making decisions.
    It is not always possible or necessary to define the foreseeable 
future as a particular number of years. Analysis of the foreseeable 
future uses the best scientific and commercial data available and 
should consider the timeframes applicable to the relevant threats and 
to the species' likely responses to those threats in view of its life-
history characteristics. Data that are typically relevant to assessing 
the species' biological response include species-specific factors such 
as lifespan, reproductive rates or productivity, certain behaviors, and 
other demographic factors.

Analytical Framework

    The frecklebelly madtom (Noturus munitus) SSA report documents the 
results of our comprehensive biological status review for the 
frecklebelly madtom species as a whole, including an assessment of the 
potential stressors to the species (Service 2020, entire). The SSA 
report does not represent our decision on whether the species (or the 
DPS) should be listed as an endangered or threatened species under the 
Act. However, it does provide the scientific basis that informs our 
regulatory decisions, which involve the further application of 
standards within the Act and its implementing regulations and policies. 
The following is a summary of the key results and conclusions from the 
SSA report, specifically related to the DPS; the full SSA report can be 
found at https://www.fws.gov/office/alabama-ecological-services/library 
and at https://www.regulations.gov under Docket No. FWS-R4-ES-2020-
0058.
    To assess the frecklebelly madtom's viability, we used the three 
conservation biology principles of resiliency, redundancy, and 
representation (Shaffer and Stein 2000, pp. 306-310). Briefly, 
resiliency supports the ability of the species to withstand 
environmental and demographic stochasticity (for example, wet or dry, 
warm or cold years), redundancy supports the ability of the species to 
withstand catastrophic events (for example, droughts, large pollution 
events), and representation supports the

[[Page 13041]]

ability of the species to adapt over time to long-term changes in the 
environment (for example, climate changes). In general, the more 
resilient and redundant a species is and the more representation it 
has, the more likely it is to sustain populations over time, even under 
changing environmental conditions. Using these principles, we 
identified the species' ecological requirements for survival and 
reproduction at the individual, population, and species levels, and 
described the beneficial and risk factors influencing the species' 
viability.
    The SSA process can be categorized into three sequential stages. 
During the first stage, we evaluated the individual species' life-
history needs. The next stage involved an assessment of the historical 
and current condition of the species' demographics and habitat 
characteristics, including an explanation of how the species arrived at 
its current condition. The final stage of the SSA involved making 
predictions about the species' responses to positive and negative 
environmental and anthropogenic influences. Throughout all of these 
stages, we used the best available information to characterize 
viability as the ability of a species to sustain populations in the 
wild over time. We use this information to inform our regulatory 
decision.

Summary of Biological Status and Threats

    In this discussion, we review the species needs, the biological 
condition of the Upper Coosa River DPS of frecklebelly madtom and its 
resources, and the threats that influence the current and future 
condition, in order to assess the overall viability and the risks to 
the viability of the Upper Coosa River DPS of frecklebelly madtom.

Species Needs and Habitat

    Primary habitat for frecklebelly madtom is associated with fast 
moving streams often associated with rivers and their tributaries, with 
substrate consisting of various sizes of gravel (Suttkus and Taylor 
1965, pp. 177-178; Mettee et al. 1996, p. 409; Vincent, 2019, 
unpaginated). Cover is an important habitat factor for the species, as 
it provides for concealment against predators (Vincent, 2019, 
unpaginated), foraging habitat, and nesting habitat. Areas providing 
firm gravel substrates, such as small pebbles and rocks, are preferred, 
thus muddy waterway sand still streams are not desirable habitat for 
this species (Suttkus and Taylor 1965, pp. 177; Taylor 1969, pp. 183; 
Mettee et al. 1996, p. 409; Piller et al. 2004, p. 1004).

Delineating Representation and Resilience Units

    We delineated representation units to describe the breadth of known 
genetic, phenotypic, and ecological diversity within the species. There 
is evidence of differentiation in habitat use, morphology, and genetics 
for areas that the frecklebelly madtom occupies, which are disconnected 
spatially across the landscape. In total, we identified six 
representation units for the frecklebelly madtom: Pearl River (A), 
upper Tombigbee River (B), lower Tombigbee/Alabama Rivers (C), Alabama 
River (D), Cahaba River (E), and upper Coosa River (F). Through the DPS 
analysis described in the proposed rule (85 FR 74050; November 19, 
2020), we determined that the Upper Coosa River representation unit is 
a distinct population segment (see figure 1, below) and that the DPS 
meets the Act's definition of a threatened species. Any reference to 
the upper Coosa River representation unit in the SSA report can be 
understood to mean the Upper Coosa River DPS of frecklebelly madtom. 
The term upper Coosa River representation unit is used throughout this 
document (and the SSA report) but references the same geographic areas 
as the Upper Coosa River DPS of frecklebelly madtom.
BILLING CODE 4333-15-P

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[GRAPHIC] [TIFF OMITTED] TR02MR23.000

BILLING CODE 4333-15-C
    We delineated resilience units for the upper Coosa River 
representation unit of the frecklebelly madtom (see table 1, below). 
Resilience units were delineated to describe at a local scale how the 
species withstands stochastic events. Resilience units were delineated 
as aggregations of adjacent U.S. Geological Survey Hydrological Unit 
Code (HUC) 10 watershed boundaries that contain a frecklebelly madtom 
observation and are not disconnected by dams or other major habitat 
alterations that may present a barrier to movement. By using HUC 10 
watersheds, we are able to delineate resilience units that can be 
measured and evaluated at a local scale similar to that we would expect 
for a

[[Page 13043]]

population. We identified three resilience units consisting of eight 
HUC 10 watersheds within the range of the Upper Coosa River DPS of 
frecklebelly madtom (see table 1, below).

    Table 1--Representation Unit and Resilience Units Used To Assess
      Viability of the Upper Coosa River DPS of Frecklebelly Madtom
------------------------------------------------------------------------
            Representation unit                   Resilience units
------------------------------------------------------------------------
Upper Coosa River.........................  Conasauga River.
                                            Coosawattee River.
                                            Etowah River.
------------------------------------------------------------------------

Risk Factors for Upper Coosa River DPS of Frecklebelly Madtom

    We reviewed the potential risk factors (see discussion of section 
4(a)(1) of the Act, above) that are affecting the frecklebelly madtom 
now and are expected to affect it into the future. We have determined 
that habitat destruction and degradation caused by agriculture and 
development, resulting in poor water quality (Factor A), poses the 
largest risk to the current and future viability of the Upper Coosa 
River DPS of frecklebelly madtom. Other potential stressors to the 
species are habitat degradation resulting from channelization, dams, 
and impoundments (Factor A) and climate change (Factor E). We find the 
species does not face significant threats from overutilization (Factor 
B), disease or predation (Factor C), or invasive species (Factor E). We 
also reviewed the regulatory mechanisms (Factor D) and conservation 
efforts being undertaken for the habitat in which the frecklebelly 
madtom occurs. A brief summary of relevant stressors is presented 
below; for a full description, refer to chapter 4 of the SSA report 
(Service 2020, entire).
Water Quality
    The frecklebelly madtom, like other benthic aquatic species, is 
sensitive to poor water quality (Warren et al. 1997, p. 125) and needs 
clean, flowing water to survive; thus, water quality degradation is 
considered a threat to the species. Changes in water chemistry and flow 
patterns, resulting in a decrease in water quality and quantity, have 
detrimental effects on madtoms because they can render aquatic habitat 
unsuitable for occupancy.
    Inputs of point (discharge from particular pipes) and nonpoint 
(diffuse land surface runoff) source pollution across the DPS's range 
are numerous and widespread. Point source pollution can be generated 
from inadequately treated effluent from industrial plants, sanitary 
landfills, sewage treatment plants, active surface mining, drain fields 
from individual private homes, and others (Service 2000, pp. 14-15). 
Nonpoint pollution originates from agricultural activities, poultry and 
cattle feedlots, abandoned mine runoff, construction, failing septic 
tanks, and contaminated runoff from urban areas (Deutsch et al. 1990, 
entire; Service 2000, pp. 14-15). These sources contribute pollution to 
streams via sediments, heavy metals, fertilizers, herbicides, 
pesticides, animal wastes, septic tank and gray water leakage, and oils 
and greases. Water quality and native aquatic fauna decline as a result 
of this pollution through nitrification, decreases in dissolved oxygen 
concentration, increases in acidity and conductivity, or direct 
introduction of toxicants. These alterations likely have direct (e.g., 
decreased survival and/or reproduction) and indirect (e.g., loss, 
degradation, and fragmentation of habitat) effects. For some aquatic 
species, including the frecklebelly madtom, submergent vegetation 
provides critical spawning habitat for adults, refugia from predators, 
and habitat for prey of all life stages (Jude and Pappas 1992, pp. 666-
667; Freeman et al. 2003, p. 54). Degraded water quality and the high 
algal biomass that result from pollutant inputs cause loss of these 
critical submergent plant species (Chow-Fraser et al. 1998, pp. 38-39) 
that are vital habitat for the frecklebelly madtom.
    The frecklebelly madtom is intolerant to sedimentation (Shepard 
2004, p. 221; MMNS 2014, p. 35), and sedimentation is a concern 
throughout the Upper Coosa River DPS. Researchers have documented a 
negative relationship between occurrence of the frecklebelly madtom and 
human-induced increases of sediment within Etowah River and Conasauga 
River (Burkhead et al. 1997, pp. 406-413; Shepard et al. 1997, pp. 15-
19; Freeman et al. 2002, pp. 18-19; Freeman et al. 2017, pp. 429-430). 
Human-induced increases in sediment are likely a factor in local 
declines of the species. In addition, the frecklebelly madtom's habitat 
requirements make it vulnerable to activities that disturb substrate 
integrity. The species is restricted to habitat with pea-sized gravel, 
cobble, or slab-rock substrates not embedded in large amounts of silt 
(Bennett et al. 2008, p. 467; Bennett and Kuhajda 2010, p. 510), 
although it has also been found to occupy some stable streams with a 
sandy yet stable substrate. Degradation from sedimentation, physical 
habitat disturbance, and contaminants threaten the habitat and water 
quality on which the frecklebelly madtom depends. Sedimentation from an 
array of land uses (e.g., urbanization, agriculture, channel 
maintenance activities) could negatively affect the species by reducing 
growth rates, disease tolerance, and gill function; reducing spawning 
habitat, reproductive success, and egg (embryo), larva, and juvenile 
development; reducing food availability through reductions in prey; 
reducing foraging efficiency; and reducing shelter.
    A wide range of current activities and land uses, including 
agricultural practices, construction, stormwater runoff, unpaved roads, 
poor forest management, utility crossings, and mining, can lead to 
excessive sedimentation within streams. Fine sediments not only smother 
streams during current ongoing activities, historical land-use 
practices may have substantially altered hydrological and geological 
processes such that sediments continue to be input into streams for 
several decades after those activities cease (Harding et al. 1998, p. 
14846).
    Water quality for frecklebelly madtom is particularly impacted by 
three processes: channel modification (i.e., dredging and 
channelization), agriculture, and development, which are discussed 
further below.
Channel Modification
    Dredging and channelization have led to loss of aquatic habitat in 
the Southeast (Neves et al. 1997, p. 71). Dredging and channelization 
projects are extensive throughout the region for flood control, 
navigation, sand and gravel mining, and conversion of wetlands into 
croplands (Neves et al. 1997, p. 71; Herrig and Shute 2002, pp. 542-
543). Dredging and channelization modify and destroy habitat for 
aquatic species by destabilizing the substrate, increasing erosion and 
siltation, removing woody debris, decreasing habitat heterogeneity, and 
stirring up contaminants that settle onto the substrate (Williams et 
al. 1993, pp. 7-8; Buckner et al. 2002, entire; Bennett et al. 2008, 
pp. 467-468). Channelization can also lead to head cutting (an 
erosional process in a stream channel with a vertical cut or drop that 
migrates upstream over time), which causes further erosion and 
sedimentation (Hartfield 1993, pp. 131-141). Dredging can involve 
snagging (the removal of woody debris from the channel), which not only 
contributes to destabilization of the channel but also removes the 
woody debris that provides important cover and nest locations for many 
fish species,

[[Page 13044]]

including the frecklebelly madtom (Bennett et al. 2008, pp. 467-468).
    Within the range of the Upper Coosa River DPS, important habitat of 
the frecklebelly madtom was permanently altered and removed by the U.S. 
Army Corps of Engineers when it was appropriated funding by Congress to 
remove obstructions from the Oostanaula and Coosawattee rivers in the 
1870s (U.S. Department of War Office of Engineers 1875, pp. 792-794). 
However, the Conasauga River does not have large-scale human 
modification through damming or channelization (Bennett et al. 2008, p. 
468), and the Etowah upstream of Allatoona River is relatively 
unaltered by dredging or channel modification work.
Agriculture
    Agricultural practices such as traditional farming, feedlot 
operations, and associated land use practices can contribute pollutants 
to rivers. These practices can also degrade habitat by eroding stream 
banks, which results in alterations to stream hydrology and 
geomorphology. Nutrients, bacteria, pesticides, and other organic 
compounds are generally found in higher concentrations in agricultural 
areas rather than forested areas. Contaminants associated with 
agriculture (e.g., fertilizers, pesticides, herbicides, and animal 
waste) can degrade water quality and negatively impact instream 
habitats by causing oxygen deficiencies, excess nutrification, and 
excessive algal growths, which can have a direct impact on fish 
community composition (Petersen et al. 1999, p. 6).
    Areas within the current range of the Upper Coosa River DPS of 
frecklebelly madtom, which are predominantly agricultural, are impacted 
by nonpoint source sediment and agrochemical discharges altering the 
physical and chemical characteristics of the DPS's habitat, thus 
potentially impeding the frecklebelly madtom's ability to feed, seek 
shelter from predators, and successfully reproduce. A negative 
relationship between the species and nonpoint source stressors 
attributed to agriculture has been described particularly within the 
Conasauga River (Freeman et al. 2017, pp. 429-430). Over the past two 
decades, an increase in the use of agricultural chemicals and 
practices, such as use of glyphosate-based herbicides for weed control 
and land dispersion of animal waste for soil amendment, has 
corresponded with marked declines in populations of fish and mussel 
species in the Upper Conasauga River watershed in Georgia and Tennessee 
(Freeman et al. 2017, p. 429). Nutrient enrichment of streams was found 
to be widespread, with high levels of nitrate and phosphorus (reported 
at over 5 milligrams per liter and over 300 micrograms per liter, 
respectively, within the Conasauga River) likely associated with 
eutrophication, and hormone concentrations in sediments were often 
above those shown to cause endocrine disruption in fish, which was 
possibly related to the widespread application of poultry litter and 
manure (Lasier et al. 2016, entire). Estrogens, a hormone and type of 
endocrine disruptor that can be found in poultry litter, also have been 
identified as a threat to aquatic fauna in the Conasauga River system 
(Jacobs 2015, entire). Increased levels of estrogens can lead to 
decreases in spawning success and potentially population collapse 
within short timeframes (Kidd et al. 2007, p. 8899). Aquatic species 
declines observed in the Conasauga watershed may be at least partially 
due to hormones, as well as excess nutrients, herbicides, and 
surfactants (Freeman et al. 2017, p. 429).
    The amount (acreage) of agricultural land is declining across the 
eastern United States with a net loss of 6.5 percent between 1973 and 
2000 (Sayler et al. 2016, p. 12). As discussed below under Future 
Scenarios, within the Upper Coosa River watershed, the declining trend 
of agricultural land is consistent with broader trends in the eastern 
United States showing agricultural land declines with time (Sayler et 
al. 2016, p. 12). These agricultural lands are mostly being converted 
to developed and forested lands (Sayler et al. 2016, p. 12). Despite 
the declining trend, agricultural practices leading to poor water 
quality conditions currently influence and will continue to influence 
the viability of frecklebelly madtom within the Upper Coosa River DPS.
Development
    Development is a significant source of water quality degradation 
that can reduce the survival of aquatic organisms, including the 
frecklebelly madtom. Urban development can stress aquatic systems in a 
variety of ways, including increasing the frequency and magnitude of 
high flows in streams; increasing sedimentation and nutrient loads; 
increasing contaminants and toxicity; decreasing the diversity of fish, 
aquatic insects, plants, and amphibians; and changing stream morphology 
and water chemistry (Coles et al. 2012, entire; CWP 2003; entire). 
Sources and risks of an acute or catastrophic contamination event, such 
as a leak from an underground storage tank or a hazardous materials 
spill on a highway, increase as urbanization increases.
    Urbanization has also been shown to impair stream quality by 
impacting riparian health (Diamond et al. 2002, p. 1150). Riparian 
impairment resulting from urbanization or agricultural land use can 
amplify negative effects of nonpoint source pollution within the 
watershed as well as impact stream quality independent of land use 
within the watershed. Impacts from impervious cover can be mitigated 
through riparian forest cover and good riparian health (Roy et al. 
2005, p. 2318; Walsh et al. 2007, entire); however, the benefit of the 
riparian cover diminishes when impervious cover (i.e., urban cover) 
exceeds approximately 10 percent within the watershed (Booth and 
Jackson 1997, p. 1084; Goetz et al. 2003, p. 205).
    Currently, larger population centers, such as the city of Atlanta, 
Georgia, contribute substantial runoff to the watersheds occupied by 
the Upper Coosa River DPS of frecklebelly madtom. In the future, 
urbanization is predicted to increase within the Upper Coosa River DPS 
of frecklebelly madtom (see Future Scenarios, below). The Etowah River 
watershed, upstream of Lake Allatoona in Georgia, is expected to 
experience additional urbanization (Albanese et al. 2018, p. 39). 
Conservation concerns in the Etowah River watershed have focused on 
potential effects of this predicted urban growth on imperiled fishes 
(Burkhead et al. 1997, pp. 959-968; Wenger et al. 2010, pp. 11-21), and 
previous analyses show negative correlations between occurrence of 
native fishes and increases in impervious cover associated with urban 
development (Wenger et al. 2008, p. 1260). In the Etowah Basin in 
Georgia, models indicated that urbanization lowered the richness and 
density of fish species and led to predictable changes in species 
composition. Darters, sculpin, minnows, and endemic species declined 
along the urban gradient, whereas sunfishes persisted and became the 
dominant group (Walters et al. 2005, pp. 10-11). In the future, we 
anticipate increased development to amplify as a population-level 
factor influencing the viability of frecklebelly madtom within the 
Upper Coosa River DPS.
Impoundments
    Impoundment of rivers is a stressor to aquatic species in the 
Southeast (Benz and Collins 1997, pp. 22-23, 63, 91, 205, 273, 291, 
397, 399, 401-406, 446; Buckner et al. 2002, pp. 10-11). Dams modify 
habitat conditions and aquatic communities both upstream and

[[Page 13045]]

downstream of an impoundment (Winston et al. 1991, pp. 103-104; 
Mulholland and Lenat 1992, pp. 193-231; Soballe et al. 1992, pp. 421-
474). Upstream of dams, habitat is flooded, and in-channel conditions 
change from flowing to still water, with increased depth, decreased 
levels of dissolved oxygen, and increased sedimentation. Sedimentation 
alters substrate conditions by filling in interstitial spaces between 
rocks, which provide habitat for many species (Neves et al. 1997, pp. 
63-64), including the frecklebelly madtom. Downstream of dams, flow 
regime fluctuates with resulting fluctuations in water temperature and 
dissolved oxygen levels, the substrate is scoured, and downstream 
tributaries are eroded (Neves et al. 1997, pp. 63-64; Schuster 1997, p. 
273; Buckner et al. 2002, p. 11). Negative ``tailwater'' effects on 
habitat can extend many kilometers downstream (Neves et al. 1997, p. 
63). Dams fragment habitat for aquatic species by blocking corridors 
for migration and dispersal, resulting in population isolation and 
heightened susceptibility to extinction (Neves et al. 1997, p. 63). 
Dams also preclude the ability of aquatic organisms to escape from 
polluted waters and accidental spills (Buckner et al. 2002, p. 10).
    Damming of streams and springs is also extensive throughout the 
Southeast and occurs within the large river habitats of the Upper Coosa 
River DPS of frecklebelly madtom, specifically Allatoona Dam on the 
Etowah River and Carters Dam on the Coosawattee River (Etnier 1997, pp. 
88-89; Morse et al. 1997, pp. 22-23; Shute et al. 1997, pp. 458-459; 
Bennett et al. 2008, p. 467). Many streams have both small ponds in 
their headwaters and large reservoirs in their lower reaches (Morse et 
al. 1997, p. 23). Small streams on private lands are regularly dammed 
to create ponds for cattle, irrigation, recreation, and fishing, with 
significant ecological effects due to the sheer abundance of these 
structures (Morse et al. 1997, pp. 22-23). In addition, small headwater 
streams are increasingly being dammed in the Southeast to supply water 
for municipalities (Buckner et al. 2002, p. 11).
    Dams are known to have caused the extirpation and extinction of 
many southeastern species, and existing and proposed dams pose an 
ongoing threat to many aquatic species (Folkerts 1997, p. 11; Neves et 
al. 1997, p. 63; Ricciardi and Rasmussen 1999, p. 1222; Service 2000, 
p. 15; Buckner et al. 2002, p. 11; Olden 2016, pp. 112-122), including 
the frecklebelly madtom. For instance, the construction of 10 lock and 
dam structures on the Tenn-Tom Waterway, which artificially connects 
the Tennessee River to the Gulf of Mexico, led to the extirpation of 
many species, including the frecklebelly madtom, from the main river 
channel (Bennett et al. 2008, p. 467). The construction of one dam on 
the Etowah River may have affected the Upper Coosa River DPS of 
frecklebelly madtom and reduced the extent of available habitat, since 
the species is dependent on large-river gravel shoal substrate (Bennett 
et al. 2008, p. 470).
Climate Change
    In the southeastern United States, several climate change models 
have projected more frequent drought, more extreme heat (resulting in 
increases in air and water temperatures), increased heavy precipitation 
events (e.g., flooding), more intense storms (e.g., frequency of major 
hurricanes increases), and rising sea level and accompanying storm 
surge (IPCC 2013, entire). When taking into account future climate 
projections for temperature and precipitation where the frecklebelly 
madtom occurs, warming is expected to be greatest in the summer, which 
is predicted to increase drought frequency. Nevertheless, annual mean 
precipitation is expected to increase slightly, leading to a slight 
increase in flooding events (Alder and Hostetler 2013, unpaginated; 
IPCC 2013, entire; USGS 2020, unpaginated). Changes in climate may 
affect ecosystem processes and communities by altering the abiotic 
conditions experienced by biotic assemblages, resulting in potential 
effects on community composition and individual species interactions 
(DeWan et al. 2010, p. 7).
    The frequency, duration, and intensity of droughts are likely to 
increase in the southeastern United States as a result of global 
climate change (Konrad et al. 2013, p. 34), which could negatively 
affect stream flows in the region. Stream flow is strongly correlated 
with important physical and chemical parameters that limit the 
distribution and abundance of riverine species (Power et al. 1995, 
entire; Resh et al. 1988, pp. 438-439) and regulates the ecological 
integrity of flowing water systems (Poff et al. 1997, p. 770).
    To understand how climate change is projected to affect areas where 
frecklebelly madtom occurs, we used the National Climate Change Viewer 
(NCCV), a climate-visualization tool developed by the U.S. Geological 
Survey (USGS), to generate future climate projections across the range 
of the species. The NCCV is a web-based tool for visualizing and 
assessing projected changes in climate and water balance at watershed, 
State, and county scales (USGS 2020, unpaginated). To evaluate the 
effects of climate change in the future, we used projections from 
representative concentration pathway (RCP) 4.5 and RCP 8.5 to 
characterize projected future changes in climate and water resources, 
averaged for the South-Atlantic Gulf Region encompassing the Upper 
Coosa River DPS of the frecklebelly madtom (Service 2020, pp. 27-31). 
The projections estimate changes in mean annual values for maximum air 
temperature, minimum air temperature, monthly precipitation, and 
monthly runoff, among other factors, from historical (1981-2010) to 
future (2050-2074) time series.
    Within the Upper Coosa River DPS of the frecklebelly madtom, the 
NCCV projects that, under the RCP 4.5 scenario, maximum air temperature 
will increase by 1.9 degrees Celsius ([deg]C) (3.4 degrees Fahrenheit 
([deg]F)), minimum air temperature will increase by 1.8 [deg]C (3.2 
[deg]F), precipitation will increase by 5.36 millimeters (0.2 inches) 
per month, and runoff will remain the same in the 2050-2074 time period 
(USGS 2020, unpaginated). Under the more extreme RCP 8.5 scenario, the 
NCCV projects that maximum air temperature will increase by 2.8 [deg]C 
(5 [deg]F), minimum air temperature will increase by 2.7 [deg]C (4.9 
[deg]F), precipitation will increase by 5.36 millimeters (0.2 inches) 
per month, and runoff will remain the same in the 2050-2074 time period 
(USGS 2020, unpaginated). These estimates indicate that, despite 
projected minimal increases in annual precipitation, anticipated 
increases in maximum and minimum air temperatures will likely offset 
those gains. Based on these projections, the frecklebelly madtom will 
on average be exposed to increased air temperatures in the Upper Coosa 
River watershed, despite limited increases in precipitation; however, 
these projections are not a one-to-one air to stream water temperature 
comparison.
    Despite the recognition of climate effects on ecosystem processes, 
there is uncertainty within each model and model ensembles about what 
the exact climate future will be, and there is uncertainty in how the 
ecosystems and species will respond. Although there are several 
potential risks associated with long-term climate change as described 
above, there is uncertainty regarding how the frecklebelly madtom will 
respond to these risks. The species occupies some tributaries 
throughout its range, but the frecklebelly madtom has a preference for 
habitat in larger rivers

[[Page 13046]]

and this may provide a buffer to changes induced by climate change, 
particularly from issues associated with drought. Therefore, we do not 
consider climate change to be a primary risk factor for the species at 
this time.

Methods To Assess Current Condition

    We assessed the current resiliency (ability of populations to 
withstand stochastic events) within the Upper Coosa River DPS of 
frecklebelly madtom by considering occurrence data throughout the DPS's 
range. We used occurrence data to estimate range extent and range 
geometry (i.e., number of named streams with occurrences). These 
metrics can be useful for evaluating resiliency, as larger areas of 
occupied habitat and multiple occupied streams (more complex ranges) 
are more robust to stochastic events (i.e., a single, more localized 
event would be unlikely to negatively affect the entire population or 
unit if many and larger reaches of streams were occupied). We 
categorized current resiliency into high, moderate, low, or likely 
extirpated conditions, based on our evaluation of total number of 
occurrences, the number of occupied stream reaches, the length of 
discrete stream reaches, and an estimate of the maximum occupied stream 
reach within each resilience unit, in addition to information within 
available literature (Service 2020, pp. 34-53).
    Environmental DNA (eDNA, which is DNA that is shed into the 
environment by an organism during its life) belonging to the 
frecklebelly madtom was collected in all three resilience units of the 
Upper Coosa River DPS (Freeman and Bumpers 2018, entire). Within the 
Coosawattee River, eDNA is the only evidence of the species' presence 
within the period of record (1950-2019). Collecting and analyzing water 
samples for eDNA provides a means of rapidly surveying aquatic habitats 
to help identify potentially occupied sites for a species. However, 
uncertainty of these data remains regarding the origin and fate of the 
individuals that shed the DNA and the length of time the eDNA persists 
in the environment. For the purposes of this analysis, we used eDNA 
data as evidence to support our conclusion that the probability of the 
species being present in a particular unit is greater than zero. As 
described above, we used occurrence data to assess resiliency. If units 
are known only from eDNA data, an unknown resiliency was determined 
since we have no occurrence information from traditional surveys.
    Representation for the Upper Coosa River DPS of the frecklebelly 
madtom is assessed as the number and ecological setting of populations 
or resilience units, with resilience units of moderate or high 
providing greater contribution to the overall representation. 
Representation of the Upper Coosa River DPS is assessed as low since 
only the Etowah River meaningfully contributes to this attribute. A 
full description of the results can be found in our proposed listing 
rule for the Upper Coosa River DPS of the frecklebelly madtom (85 FR 
74050; November 19, 2020). Similarly, we assessed redundancy (ability 
of species to withstand catastrophic events) by evaluating the number 
and distribution of populations or resilience units, with resilience 
units of moderate or high providing greater contribution to the overall 
redundancy throughout the DPS's range. Similar to representation, 
redundancy of the DPS is also assessed as low since only the Etowah 
River meaningfully contributes to this attribute. Results can be found 
in our November 19, 2020, proposed rule.

Current Condition of the Upper Coosa River DPS of Frecklebelly Madtom

    The known historical range for the Upper Coosa River DPS of 
frecklebelly madtom includes the Etowah River in northern Georgia and 
the Conasauga River in northern Georgia and southeastern Tennessee. 
Currently, within the upper Coosa River representation unit, one 
resilience unit (Conasauga River) was estimated to have low resiliency, 
one to have moderate resiliency (Etowah River), and one to have unknown 
resiliency (Coosawattee River).
    In the Conasauga River, the number of occurrences, occupied 
reaches, and occupied reach length has declined drastically in the 
Conasauga River. Additionally, no tributaries are known to support this 
species. This drastic decline has been noted since the late 1990s 
(Shepard et al. 1997, p. 22) and supported by current occupancy 
modeling effort (Freeman et al. 2017, p. 424). Further, fish assemblage 
and abundance from the 1990s-2000s documented declines in several fish 
species, including the frecklebelly madtom, and after 2000, the 
frecklebelly madtom was no longer detected in surveys (Freeman et al. 
2003, pp. 569-570; Bennett et al. 2008, p. 466). These surveys indicate 
a reduced resiliency in the Conasauga River, because the best available 
occurrence data present a transition from a measurable population of 
the frecklebelly madtom to an unmeasurable one. Despite a 20-year lapse 
since the last observation of the frecklebelly madtom, the current 
presence of the species in the Conasauga River is supported by eDNA 
that was collected in 2017 and 2018 (Freeman and Bumpers 2018, entire), 
as described above. Furthermore, the Conasauga River has not 
experienced the same type of habitat modifications as other rivers that 
have caused localized extirpation of the species (dams, impoundments, 
and channelization), and the species has been observed more recently in 
river surveys than in river sections where it is considered extirpated. 
Therefore, we determined that the species remains present in the 
Conasauga River but with low resiliency to stochastic events, as 
estimated from the occurrence data. The number of occurrences of 
frecklebelly madtom appears to have declined in the Etowah River from 
the 1998-2008 time period as has the number of occupied stream reaches 
and their total length. However, a concerted fish survey effort was in 
progress during 1998-2008 time period in the upper Coosa River 
watershed (Freeman et al. 2003, entire). Therefore, while there are 
fewer occurrences of the frecklebelly madtom in the current time 
period, we cannot determine that this represents a decline in the 
species or a decline in effort in the Etowah River. Based on recent 
work that quantified occupancy of frecklebelly madtom and found it to 
be relatively consistent in the Etowah River (Freeman et al. 2017, p. 
428), it is reasonable to conclude that the species' populations have 
been stable. The frecklebelly madtom is largely confined to the main 
stem of the Etowah River. However, some of the highest quality habitat 
for the frecklebelly madtom in this river can be found flowing through 
the Dawson Forest Wildlife Management Area (Shepard et al. 1997, p. 
21), a state managed property. Approximately 19 km of the Etowah River 
flows through or is adjacent (at least one river bank) to property 
owned by the GADNR, which represents approximately 19% of the maximum 
known range extent of the frecklebelly madtom in the Etowah River. 
Therefore, this river system is believed to currently be afforded some 
protection from encroaching developments. Due to the apparent stability 
of the range extent in this unit but historically low abundances 
(Bennett et al. 2008, p. 465), its relatively simple range geometry, 
and exposure to threats from development, this unit was assessed as 
having moderate resilience. No occurrence data is available for the 
Coosawattee River unit. However, environmental DNA for the frecklebelly 
madtom was found in portions of it. In the Coosawattee River, there 
were 5 positive environmental DNA assays, and occupancy probability was 
estimated as 0.49-0.99 (Figure 5.9;

[[Page 13047]]

Freeman and Bumpers 2018, p. 9). Due to the lack of observations in 
this watershed and a history of alteration from dams and 
channelization, we consider it to have an unknown resiliency.

Regulatory Mechanisms and Conservation Efforts

    The frecklebelly madtom is recognized as a species of concern in 
all States where it occurs and is protected by State statute in four 
States where it occurs. This species is listed as endangered by the 
State of Georgia (GADNR 2015, p. 74) and threatened by the State of 
Tennessee (TWRA 2015, appendix C). In general, the protections provided 
to the frecklebelly madtom by Georgia and Tennessee prohibit direct 
exploitation of the species without a permit within those States.
    Beginning in 2017, the Private John Allen National Fish Hatchery 
partnered with the Mississippi Department of Wildlife Fisheries and 
Parks to collect individuals of frecklebelly madtom within that State 
to study marking techniques, establish captive husbandry methods, and 
conduct life-history studies. This effort has led to successful 
propagation of the species, documented important components of the 
species' life history, and collected data that can be used to develop 
long-term, captive-propagation efforts, although no individuals have 
been released. While the efforts occur outside of the range of the 
Upper Coosa River DPS of frecklebelly madtom, species propagation 
efforts may be beneficial to the conservation of the DPS.
    Throughout the range of the species, portions of occupied rivers 
and surrounding lands are owned and managed by State and Federal 
entities that prioritize conservation as a management objective. 
Generally, these entities help to maintain the natural ecosystem 
functioning of a river by managing terrestrial areas in a more natural 
state and limiting disturbance adjacent to rivers. However, properties 
managed by the U.S. Forest Service, and the Dawson Forest Wildlife 
Management Area (WMA) managed by the Georgia Department of Natural 
Resources, are known to specifically consider and manage for the 
conservation of aquatic species and their habitats. It is expected that 
the Upper Coosa River DPS of frecklebelly madtom will be positively 
affected by management on these lands. These conservation lands and the 
adjacent rivers occupied by the Upper Coosa River DPS of frecklebelly 
madtom include portions of the Conasauga River within the Cherokee 
National Forest (U.S. Department of Agriculture (USDA) U.S. Forest 
Service) in Georgia, and portions of the Etowah River within the Dawson 
Forest WMA (Georgia Department of Natural Resources) in Georgia. In 
addition, the Etowah River catchment area upstream of habitat occupied 
by the frecklebelly madtom and managed by the Chattahoochee-Oconee 
National Forest (USDA U.S. Forest Service) is expected to benefit the 
species by providing good water quality to lower river reaches.
    The Natural Resources Conservation Service (NRCS), USDA, designated 
the Conasauga River as a Working Lands for Wildlife (WLFW) landscape in 
2017 (USDA 2023, unpaginated), and will provide additional funds and 
workforce to improve water quality and aquatic habitat in the 
watershed. The project will provide technical and financial assistance 
to help landowners improve water quality and help producers plan and 
implement a variety of conservation activities or practices that 
benefit aquatic species. The Upper Coosa River DPS of frecklebelly 
madtom will likely benefit from water quality improvements in portions 
of the Conasauga River that are affected by agricultural practices 
implemented through the WLFW project.

Synergistic and Cumulative Effects

    We note that, by using the SSA framework to guide our analysis of 
the scientific information documented in the SSA report, we have not 
only analyzed individual effects on the species, but we have also 
analyzed their potential cumulative effects. We incorporate the 
cumulative effects into our SSA analysis when we characterize the 
current and future condition of the species. To assess the current and 
future condition of the species, we undertake an iterative analysis 
that encompasses and incorporates the threats individually and then 
accumulates and evaluates the effects of all the factors that may be 
influencing the species, including threats and conservation efforts. 
Because the SSA framework considers not just the presence of the 
factors, but to what degree they collectively influence risk to the 
entire species, our assessment integrates the cumulative effects of the 
factors and replaces a standalone cumulative effects analysis.
    In addition to impacting frecklebelly madtom individually, it is 
possible that several of the risk factors summarized above are acting 
synergistically or cumulatively on the DPS. The combined impact of 
multiple stressors is likely more harmful than a single stressor acting 
alone. The dual stressors of climate change and direct human impact 
have the potential to affect aquatic ecosystems by altering stream 
flows and nutrient cycles, eliminating habitats, and changing community 
structure (Moore et al. 1997, p. 942). Increased water temperatures and 
a reduction in stream flow are the climate change effects that are most 
likely to affect stream communities (Poff et al. 1997, entire), and 
each of these variables is strongly influenced by land use patterns. 
For example, in agricultural areas, lower precipitation may trigger 
increased irrigation, resulting in reduced stream flow (Hatfield et al. 
2008, pp. 41-43). In forested areas, trees influence instream 
temperatures through the direct effects of shading. Reductions in 
temperature by vegetative cover may be particularly important in low-
order streams, where canopy vegetation significantly reduces the 
magnitude and variation of the stream temperature compared with that of 
clear-cut areas (Ringler and Hall 1975, pp. 111-121).

Future Scenarios

    To evaluate the future viability of the frecklebelly madtom and 
address uncertainty associated with the degree and extent of potential 
future stressors and their impacts to the madtom, we analyzed three 
future scenarios and assessed the resiliency, representation, and 
redundancy of the madtom for each scenario. We devised these scenarios 
by identifying information on the following primary threats that are 
anticipated to affect the frecklebelly madtom in the future: 
agriculture and developed land use. A full description of the results 
can be found in our proposed listing rule for the Upper Coosa River DPS 
of the frecklebelly madtom (85 FR 74050; November 19, 2020).
    We considered projected changes in agricultural and developed land 
uses in assessing future resiliency of each resilience unit for the 
Upper Coosa River DPS of frecklebelly madtom. We assessed these land 
uses to understand the future impacts to habitat degradation and 
destruction resulting from poor water quality, a primary threat to the 
Upper Coosa River DPS of frecklebelly madtom. The three scenarios 
capture the range of variability in the changing human population 
footprint on the landscape and how frecklebelly madtom populations will 
respond to these changing conditions. All three scenarios were 
projected out to the year 2050 (i.e., 30 years), because we have good 
confidence in our ability to forecast patterns in land-use change and 
understand how these land uses will interact with the frecklebelly 
madtom

[[Page 13048]]

and its habitat over this time period given the species' life span.
    In our development of future scenarios, we used projected trends in 
land use change from two models, the National Land Cover Database 
(NLCD) and the Slope, Land use, Excluded, Urban, Transportation and 
Hillshade (SLEUTH) model (Jantz et al. 2010, entire). Future 
projections for agricultural land use were developed from NLCD data by 
calculating a 15-year trend in agricultural land use change between 
2001 and 2016 for each resilience unit and converting that to an annual 
rate of agricultural land use change for each resilience unit. We used 
the annual rate of agricultural land use change to project changes to 
30 years from the present. The annual rate of agricultural land use 
change was held constant for each resilience unit across all scenarios; 
however, the rate of change in agricultural area varied among the 
resilience units we evaluated in our analysis. We found an overall 
decline in the amount of land used for agriculture in the Upper Coosa 
River watershed. This result is consistent with broader trends that 
show the amount of agricultural land is declining with time in the 
eastern United States (Sayler et al. 2016, p. 12).
    For our future developed land use projections, we used the SLEUTH 
datasets from the year 2050 (closest to 30 years in the future) and 
examined development across resilience units. We then developed three 
scenarios that varied development probabilities: (1) low development, 
(2) moderate development, and (3) high development. For the low 
development scenario, we considered all areas predicted to be developed 
at a greater than 90 percent probability (i.e., only including areas 
that are almost certain to be developed, and therefore including the 
least amount of total area to be developed); the moderate development 
scenario considered all areas to be developed at a greater than 50 
percent probability; and the high development scenario considered all 
areas to be developed at a greater than 10 percent probability (i.e., 
including the majority of areas with any potential to be developed, and 
therefore the most amount of area to be developed). The results of the 
future projections for agriculture and developed land use were used to 
estimate a composite land use score, and then using a rule set, we 
categorized future resiliency into high, moderate, low, unknown, or 
likely extirpated conditions.
    In the low development scenario (Scenario 1), the Upper Coosa River 
DPS of frecklebelly madtom was projected to have one unit with moderate 
resiliency, one unit with low resiliency, and one unit with unknown 
resiliency (see table 2, below). In terms of projected change from 
current condition, the Etowah River resilience unit is projected to 
become more developed, although the percent of developed land does not 
reach a point where a change in resiliency is anticipated. All other 
units are projected to retain their current resiliency under the low 
development scenario.

              Table 2--Future Resiliency of the Upper Coosa River DPS of Frecklebelly Madtom Resilience Units Under Three Future Scenarios
--------------------------------------------------------------------------------------------------------------------------------------------------------
       Representation units          Resilience units           Current             Scenario 1            Scenario 2                Scenario 3
--------------------------------------------------------------------------------------------------------------------------------------------------------
Upper Coosa River (F)............  Conasauga River (F1)  Low.................  Low.................  Low................  Likely Extirpated.
                                   Coosawattee River     Unknown *...........  Unknown *...........  Unknown *..........  Unknown *.
                                    (F2).
                                   Etowah River (F3)...  Moderate............  Moderate............  Low................  Low.
--------------------------------------------------------------------------------------------------------------------------------------------------------
* Resiliency determined as unknown since units are known only from eDNA data.

    In the moderate development scenario (Scenario 2), the Upper Coosa 
River DPS of frecklebelly madtom was projected to have two units with 
low resiliency and one unit with unknown resiliency (see table 2, 
above). In terms of projected change from current condition, the Etowah 
River resilience unit is projected to become substantially more 
developed under this scenario, and, therefore, this unit is projected 
to decrease in resiliency from moderate to low. All other units are 
projected to retain their current resiliency.
    In the high development scenario (Scenario 3), the Upper Coosa 
River DPS of frecklebelly madtom was projected to have one unit with 
low resiliency, one unit that is likely extirpated, and one unit with 
unknown resiliency (see table 2, above). In terms of projected change 
from current condition, the Etowah River resilience unit is projected 
to become substantially more developed under this scenario; therefore, 
this unit is projected to decrease in resiliency from moderate to low. 
The Conasauga River resilience unit is projected to decrease in 
resiliency from low to being likely extirpated as a result of high 
levels of both agriculture and developed land uses.
    In summary, within the Upper Coosa River representation unit, the 
Etowah River resilience unit is projected to become more developed by 
2050 under all scenarios; therefore, in the moderate and high 
development scenarios, the resiliency is projected to decrease from 
moderate to low, making the unit more vulnerable to stochastic events. 
The high level of development projected within riparian areas of the 
Etowah River unit will lead to an increase in impervious area, which 
could lead to further decreases in water quality and impact the 
viability of frecklebelly madtom. In addition, although the 
agricultural trend projects a decrease, the amount of land in 
agricultural use is still projected to remain relatively high. High 
levels of agriculture and developed land use projections in this unit 
drive the projected low resiliency by the year 2050. In the Conasauga 
River resilience unit, developed land use under the high development 
scenario is projected to increase, and agriculture and developed land 
use are projected to be at relatively high levels by 2050. However, the 
Conasauga River resilience unit currently has low resiliency, and this 
projected increase in development is anticipated to further impact 
resiliency, resulting in likely extirpation of the frecklebelly madtom 
from this unit.
    Finally, the presence of frecklebelly madtom in the Coosawattee 
River resilience unit is based on recent positive eDNA samples, and 
these units have been assessed as having an unknown resiliency. In the 
Coosawattee River resilience unit, there is projected to be relatively 
high amounts of agricultural and developed land. If the species is 
present there, this land use pattern could represent a threat to the 
individuals occupying the unit.
    In the Upper Coosa River representation unit, two resilience units 
are projected to decrease in resiliency under the moderate and high 
scenarios. Therefore, frecklebelly madtom in these units are at an 
increased risk of extirpation from a catastrophic event.

[[Page 13049]]

Summary of Comments and Recommendations

    In the November 19, 2020, proposed rule (85 FR 74050), we requested 
that all interested parties submit written comments on the proposal by 
January 19, 2021. We also contacted appropriate Federal and State 
agencies, scientific experts and organizations, and other interested 
parties and invited them to comment on the proposal. Newspapers notices 
inviting general public comment were published in the Chattanooga Times 
Free Press on November 20, 2020, and in the Dalton Citizen on November 
27, 2020, and on December 4, 11, and 18, 2020. We did not receive any 
requests for a public hearing. All substantive information we received 
during the comment period has either been incorporated directly into 
this final determination or is addressed below.

Peer Reviewer Comments

    As discussed in Supporting Documents above, we received comments on 
our SSA report from two peer reviewers. The frecklebelly madtom 
(Noturus munitus) SSA report documents the results of our comprehensive 
biological status review for the frecklebelly madtom species as a 
whole. We reviewed all comments we received from the peer reviewers for 
substantive issues and new information regarding the information 
contained in the SSA report. The peer reviewers provided additional 
information, clarifications, and suggestions to improve the final SSA 
report. Peer reviewer comments on the SSA report are addressed in the 
following summary and/or incorporated into the SSA report, as 
appropriate.
    Comment (1): One reviewer thought that our method to produce a 
composite land-use threat classification should be adjusted such that 
the classification score would be equivalent to the lowest score of its 
constituent components rather than calculating a composite score that 
is an average of its constituents, unless there is reason to justify 
assessing otherwise.
    Our response: Our stated goals for categorizing land-use threats 
endeavored to avoid overestimating a negative relationship between the 
species and land-use practices because, although this relationship is 
expected to exist, the magnitude of this relationship is uncertain 
without species-specific studies. Therefore, we did not change how we 
calculated the composite land-use threat classification that is the 
average of its constituents.
    Comment (2): One reviewer commented that our future conditions 
projections should more explicitly consider other factors of change 
beyond land use and specified that impoundments and channelization 
should be incorporated.
    Our response: The threats of impoundments and channelization were 
not included in the future conditions due to the high amount of 
uncertainty regarding their implementation and operation in the future 
landscape. At this time, we have no information to indicate that new 
dams will be constructed or that impoundments will be created in the 
future within the range of the Upper Coosa River DPS of frecklebelly 
madtom. However, dams, impoundments, channelization, and channel 
maintenance are considered as factors that contribute to current 
resiliency, which help to inform future resiliency predictions.
    Comment (3): One reviewer commented that our third ``rule'' in our 
rule set to estimate future resilience described in section 6.1 of the 
SSA report did not implement the same conservative approach described 
elsewhere in our methods.
    Our response: Our third ``rule'' reads: ``If composite land use 
score dropped from good to fair, we adjusted the resiliency down to 
moderate if the population is currently considered high; if the 
population is currently considered moderate, no adjustment was made to 
future resilience.'' Elsewhere in the SSA report, we described an 
approach to avoid overestimating a negative response of the 
frecklebelly madtom to changes in land cover and land use. The best 
available science supports our interpretation that a fair land use 
score aligns with a moderate population resiliency as discussed in the 
SSA report (Service 2020, pp. 43-46). Furthermore, a predicted decline 
in the composite land use score from good to fair is not likely to 
cause substantial declines, indicating low resiliency, as demonstrated 
by two resilience units that currently have a ``fair'' land use score 
and are also currently classified as having ``good'' (Bogue Chitto 
unit) or ``moderate'' (Etowah River unit) resiliency. However, as 
described in our discussion of factors that influence viability of the 
species, many of the stressors to the Upper Coosa River DPS originate 
from land-use practices. Therefore, we determined it is likely that 
changes in land-use practices that cause the land-use score to change 
from good to fair would negatively affect abundance and distribution of 
populations to the point that a resilience classification of 
``moderate'' would more effectively describe the resilience unit.
    Comment (4): In the draft of the SSA provided for peer review, we 
considered resiliency units that were only known from eDNA data to have 
a ``low'' resiliency. One reviewer provided additional information and 
literature regarding uncertainty with eDNA surveying methods and 
recommended that we should be more conservative in interpreting results 
from studies that primarily surveyed for eDNA.
    Our response: Based on the information provided, we agree with the 
reviewer that the eDNA data we received should be interpreted more 
conservatively. We included the citations provided by the reviewer and 
considered resilience units where only eDNA was available to support 
presence of the species to have an ``unknown'' current resiliency in 
version 1.2 of the SSA and in this final rule.

State Agency Comments

    We received comments from one State agency, the Georgia Forestry 
Commission (GFC). Because we received several comments regarding 
forestry considerations, we have integrated GFC comments and responses 
under Public Comments, below.

Public Comments

    We received input from five public commenters on the proposed rule. 
One commenter was supportive of the proposal to list the Upper Coosa 
River DPS of frecklebelly madtom as threatened and to designate 
critical habitat. Four commenters offered neither support nor 
opposition to the proposed rule. We did not receive any comments in 
opposition of the proposed rule. We note the SSA report, a list of 
literature referenced, the public comments, and the peer reviewer 
reports, all of which helped inform this listing decision, are 
available to the public on https://www.regulations.gov under Docket No. 
FWS-R4-ES-2020-0058.
    Comment (5): Three commenters responded directly to our request for 
comments on whether we should add a provision to except incidental take 
resulting from silvicultural practices and forest management activities 
that implement State-approved best management practices (BMPs) and 
comply with forest practice guidelines related to water quality 
standards. All three commenters were supportive of inclusion of such a 
provision and provided information on the effectiveness of BMPs to 
maintain water quality conditions that support aquatic organisms, high 
implementation rates of BMPs nationally and within the range of the 
Upper Coosa River DPS of

[[Page 13050]]

frecklebelly madtom, and high compliance rates. One commenter (GFC) 
provided information on BMP development for the State of Georgia and a 
summary of data from the State's most recent BMP compliance survey, 
conducted in 2019, which found high percentages of BMP implementation 
and compliance. Two commenters provided information on BMP compliance 
assurances that are provided through forest certification programs such 
as Sustainable Forestry Initiative, American Tree Farm System, and 
Forest Stewardship Council.
    Our response: We recognize that silvicultural operations are widely 
implemented in accordance with State-approved BMPs (as reviewed by 
Cristan et al. 2018, entire), and the adherence to these BMPs broadly 
protects water quality, particularly related to sedimentation (as 
reviewed by Cristan et al. 2016, entire; Warrington et al. 2017, 
entire; and Schilling et al. 2021, entire). Based on the information 
provided, we agree that silvicultural practices and forest management 
activities that implement State-approved BMPs and comply with forest 
practice guidelines related to water quality standards can maintain 
favorable habitat conditions for the species and that adding a 
provision to except incidental take associated with these activities 
can encourage cooperation by landowners and other affected parties in 
implementing conservation measures. Therefore, we incorporated such a 
provision into this rule.
    Comment (6): One commenter recommended that the description of 
designated critical habitat be clarified to state that critical habitat 
is limited to the bankfull width of the designated streams.
    Our response: The critical habitat proposed for designation was not 
intended to include adjacent terrestrial components, and in the 
proposed rule, we stated that critical habitat included river habitat 
up to the ``bank full height.'' We agree that the term ``bankfull 
width'' better describes the lateral dimension of the stream. 
Therefore, we have revised the description of the critical habitat 
designation to clarify that it does not extend beyond the bankfull 
width of the designated rivers.
    Comment (7): One commenter recommended we include a discussion of 
not only the ability of forest management to retain adequate conditions 
but also to improve forest conditions, which may rebound to the benefit 
of species.
    Our response: When used and properly implemented, BMPs can offer a 
substantial improvement to water quality compared to forestry 
operations where BMPs are not properly implemented. As noted in our 
response to Comment (5), above, we identify normal silvicultural 
practices that are carried out in accordance with State-approved BMPs 
as an action that can maintain favorable habitat conditions for the 
frecklebelly madtom, and we have added a provision to except from 
prohibitions incidental take that may occur from such activities. In 
this rule, we identified BMPs designed to reduce sedimentation, 
erosion, and bank-side destruction and retention of sufficient canopy 
cover along stream banks as examples of activities that could 
ameliorate threats to physical or biological features essential to the 
conservation of the frecklebelly madtom. In addition, as previously 
noted, we recognize that silvicultural operations are widely 
implemented in accordance with State-approved BMPs (as reviewed by 
Cristan et al. 2018, entire), and the adherence to these BMPs broadly 
protects water quality, particularly related to sedimentation (as 
reviewed by Cristan et al. 2016, entire; Warrington et al. 2017, 
entire; and Schilling et al. 2021, entire), to an extent that does not 
impair the DPS's conservation.

Distinct Population Segment (DPS) Analysis

    Please see our proposed rule (85 FR 74050; November 19, 2020) for 
the full description of our DPS analysis. We did not receive 
substantive additional information during the open comment period 
regarding whether or not the Upper Coosa River DPS of the frecklebelly 
madtom is a valid DPS.

Determination of Status for the Upper Coosa River DPS of Frecklebelly 
Madtom

    Section 4 of the Act (16 U.S.C. 1533) and its implementing 
regulations (50 CFR part 424) set forth the procedures for determining 
whether a species meets the definition of an endangered species or a 
threatened species. The Act defines an ``endangered species'' as a 
species that is in danger of extinction throughout all or a significant 
portion of its range, and a ``threatened species'' as a species that is 
likely to become an endangered species within the foreseeable future 
throughout all or a significant portion of its range. The Act requires 
that we determine whether a species meets the definition of endangered 
species or threatened species because of any of the following factors: 
(A) The present or threatened destruction, modification, or curtailment 
of its habitat or range; (B) overutilization for commercial, 
recreational, scientific, or educational purposes; (C) disease or 
predation; (D) the inadequacy of existing regulatory mechanisms; or (E) 
other natural or manmade factors affecting its continued existence.

Status Throughout All of Its Range

    After evaluating threats to the species and assessing the 
cumulative effect of the threats under the Act's section 4(a)(1) 
factors, we have carefully assessed the best scientific and commercial 
information available regarding the past, present, and future threats 
to the Upper Coosa River DPS of the frecklebelly madtom. We considered 
whether the Upper Coosa River DPS of the frecklebelly madtom is 
presently in danger of extinction throughout all of its range. The 
Upper Coosa River representation unit faces ongoing and future threats 
from habitat destruction and degradation caused by agriculture and 
developed land uses that result in poor water quality. Occurrence 
records in the Etowah River resilience unit are considered similar to 
historical occurrence records and occupancy did not decline between two 
sample periods over a fourteen-year period in the 2000s (Freeman et al. 
2017, pg. 427). Declines from historical conditions in frecklebelly 
madtom occurrences and occupancy in the Conasauga River resilience unit 
have been recorded and individuals of the species have not been 
directly observed in the Conasauga River since 2000. Evidence of 
frecklebelly madtom presence was first reported from the Coosawattee 
River from eDNA collected in 2018. Until eDNA for the species was 
recorded from this river, the frecklebelly madtom was not expected to 
occur there, given that the history of physical modification to improve 
navigation upstream, as well as hydropeaking at Carters Dam, has 
negatively affected small-bodied, riffle-dwelling fish species (Freeman 
et al. 2011, pp. 10-11). Our analysis of future conditions in the SSA 
indicates that the frecklebelly madtom will likely continue to persist 
into the future, albeit at reduced resiliency under some scenarios 
(Service 2020, pp. 80-101). Therefore, it is not likely that the 
current threats, or the cumulative effects of those threats, will 
result in the extirpation of the DPS and we conclude that the DPS is 
not currently in danger of extinction throughout all of its range.
    In the future, projected urbanization and continued agricultural 
activities will continue to impact the Upper Coosa River DPS and its 
habitat by negatively affecting water quality (Factor A). Our

[[Page 13051]]

future scenarios project the Etowah River and Conasauga River units in 
the Upper Coosa River representation unit to have low resiliency or to 
become extirpated by the year 2050, and this would substantially 
increase the risk of extirpation of the Upper Coosa River 
representation unit from the aforementioned threats, as well as a 
catastrophic or stochastic event, within the foreseeable future. In our 
consideration of foreseeable future, we evaluated how far into the 
future we could reliably predict the threats to this unit, as well as 
the frecklebelly madtom's response to those threats. Based on the 
modeling and scenarios (agriculture and developed land-use projections 
to 2050) evaluated, we considered our ability to make reliable 
predictions in the future and the uncertainty in how and to what degree 
the unit could respond to those risk factors in this timeframe. We 
determined a foreseeable future of 30 years for the Upper Coosa River 
representation unit. Based on this information, we find the Upper Coosa 
River DPS of the frecklebelly madtom is likely to become endangered 
within the foreseeable future throughout all of its range.

Status Throughout a Significant Portion of Its Range

    Under the Act and our implementing regulations, a species may 
warrant listing if it is in danger of extinction or likely to become so 
in the foreseeable future throughout all or a significant portion of 
its range. The court in Center for Biological Diversity v. Everson, 435 
F. Supp. 3d 69 (D.D.C. 2020) (Everson), vacated the aspect of the Final 
Policy on Interpretation of the Phrase ``Significant Portion of Its 
Range'' in the Endangered Species Act's Definitions of ``Endangered 
Species'' and ``Threatened Species'' (Final Policy; 79 FR 37578; July 
1, 2014) that provided that the Service does not undertake an analysis 
of significant portions of a species' range if the species warrants 
listing as threatened throughout all of its range. Therefore, we 
proceed to evaluating whether the species (DPS) is endangered in a 
significant portion of its range--that is, whether there is any portion 
of the species' range for which both (1) the portion is significant; 
and (2) the species is in danger of extinction in that portion. 
Depending on the case, it might be more efficient for us to address the 
``significance'' question or the ``status'' question first. We can 
choose to address either question first. Regardless of which question 
we address first, if we reach a negative answer with respect to the 
first question that we address, we do not need to evaluate the other 
question for that portion of the species' range.
    Following the court's holding in Everson, we now consider whether 
there are any significant portions of the species' range where the 
species is in danger of extinction now (i.e., endangered). In 
undertaking this analysis for the Upper Coosa River DPS of the 
frecklebelly madtom, we chose to address the status question first--we 
consider information pertaining to the geographic distribution of both 
the species and the threats that the species faces to identify portions 
of the range where the species may be endangered. We considered whether 
the threats acting on the Upper Coosa River DPS are geographically 
concentrated in any portion of the range at a biologically meaningful 
scale. We examine the following threats that were considered to be 
primary factors driving current resiliency of the Upper Coosa River 
DPS: habitat destruction and degradation caused by agriculture and 
developed land uses resulting in poor water quality (Factor A).
    Habitat destruction and degradation from agriculture and developed 
land uses resulting in poor water quality are occurring throughout the 
range of the Upper Coosa River DPS. In the Conasauga River resilience 
unit, current development and agriculture comprises 8.0 percent and 
21.3 percent of the watershed, respectively (Service 2020, pp. 66-69). 
In the Coosawattee River resilience unit, current development and 
agriculture comprises 6.6 percent and 27.2 percent of the watershed, 
respectively (Service 2020, pp. 66-69). Lastly, current development and 
agriculture comprises 14.8 percent and 10.4 percent of the Etowah River 
resilience unit (Service 2020, pp. 66-69). For the three resilience 
units assessed within the DPS, approximately 25 to 33 percent of each 
unit is currently impacted by agricultural and developed land uses. 
Therefore, we found no concentration of threats in any portion of the 
Upper Coosa River DPS's range at a biologically meaningful scale. 
However, we identified one portion, the Conasauga River resilience 
unit, which currently has low resiliency and where the frecklebelly 
madtom has not been observed, despite repeated surveys, in at least 20 
years. Environmental DNA surveys have detected the frecklebelly madtom 
in the Conasauga River resilience unit, leading us to determine the 
species remains present there. However, the lack of recent occurrence 
data coupled with projections that this unit will become extirpated 
within the foreseeable future led us to find there is substantial 
information that the Conasauga River resilience unit may be endangered.
    We then proceeded to consider whether this portion of the range 
(i.e., the Conasauga River resilience unit) is significant. For 
purposes of this analysis, the Service is examining for significant 
portions of the range by applying any reasonable definition of 
``significant.'' We asked whether any portions of the range may be 
biologically meaningful in terms of the resiliency, redundancy, or 
representation of the entity being evaluated. This approach is 
consistent with the Act, our implementing regulations, our policies, 
and case law.
    The Upper Coosa River representation unit occurs in the Ridge and 
Valley (Conasauga River resilience unit) and Piedmont Upland (Etowah 
River resilience unit) physiographic provinces. The Conasauga River 
resilience unit occurs in the Ridge and Valley province, which contains 
a series of valleys (lowlands) and ridges (mountains) through the 
Appalachians (Fenneman 1928, p. 296). The Etowah River resilience unit 
occurs in the Piedmont province, which contains lowlands (plains) and 
highlands (plateaus) with isolated mountains (Fenneman 1928, p. 293). 
These two resilience units may occur in two physiographic provinces; 
however, the geography in both similarly represents environmental and 
physical conditions of lowlands and highlands associated with higher 
elevations. Frecklebelly madtoms collected in both the Conasauga River 
and Etowah River resilience units are strongly associated with river 
weed (Podostemum spp.) used for cover and shelter. Neither unit acts as 
a refugia or an important spawning ground for the DPS. In addition, the 
Conasauga River resilience unit watershed is experiencing similar 
impacts from development and agricultural land use to the Etowah River 
resilience unit. Because the Upper Coosa River DPS of the frecklebelly 
madtom occurs in rivers with similar physical and environmental 
conditions, and the Conasauga River resilience unit portion is 
experiencing similar water quality impacts as the remainder of the 
DPS's range, there is no unique observable environmental contribution 
by this portion that would make it a significant portion of the range 
of the Upper Coosa River DPS.
    Overall, there is little evidence to indicate that the Conasauga 
River portion of the range has higher quality or higher value habitat 
or any other special importance to the species' conservation in the 
Upper Coosa River DPS. We considered if the Conasauga

[[Page 13052]]

River portion contributes to biological significance in any way listed 
above and did not find this portion to be prominent or noteworthy in a 
manner that would suggest it is a significant portion of the DPS's 
range. Thus, based on the best available information, we find that this 
portion of the DPS's range is not significant. Therefore, no portion of 
the Upper Coosa River DPS's range provides a basis for determining that 
it is in danger of extinction in a significant portion of its range, 
and we determine that the species is likely to become in danger of 
extinction within the foreseeable future throughout all of its range. 
This does not conflict with the courts' holdings in Desert Survivors v. 
U.S. Department of the Interior, 321 F. Supp. 3d 1011, 1070-74 (N.D. 
Cal. 2018) and Center for Biological Diversity v. Jewell, 248 F. Supp. 
3d 946, 959 (D. Ariz. 2017) because, in reaching this conclusion, we 
did not apply the aspects of the Final Policy's definition of 
``significant'' that those court decisions held were invalid.

Determination of Status

    Based on the best available scientific and commercial information 
as presented in the SSA report and this finding, we find that the Upper 
Coosa River representation unit is likely to become endangered within 
the foreseeable future throughout all of its range. Therefore, we are 
listing the Upper Coosa River DPS of the frecklebelly madtom as a 
threatened species throughout all of its range in accordance with 
sections 3(20) and 4(a)(1) of the Act.

Available Conservation Measures

    Conservation measures provided to species listed as endangered or 
threatened species under the Act include recognition as a listed 
species, planning and implementation of recovery actions, requirements 
for Federal protection, and prohibitions against certain practices. 
Recognition through listing results in public awareness, and 
conservation by Federal, State, Tribal, and local agencies, private 
organizations, and individuals. The Act encourages cooperation with the 
States and other countries and calls for recovery actions to be carried 
out for listed species. The protection required by Federal agencies and 
the prohibitions against certain activities are discussed, in part, 
below.
    The primary purpose of the Act is the conservation of endangered 
and threatened species and the ecosystems upon which they depend. The 
ultimate goal of such conservation efforts is the recovery of these 
listed species, so that they no longer need the protective measures of 
the Act. Section 4(f) of the Act calls for the Service to develop and 
implement recovery plans for the conservation of endangered and 
threatened species. The goal of this process is to restore listed 
species to a point where they are secure, self-sustaining, and 
functioning components of their ecosystems.
    Recovery planning consists of preparing draft and final recovery 
plans, beginning with the development of a recovery outline and making 
it available to the public within 30 days of a final listing 
determination. The recovery outline guides the immediate implementation 
of urgent recovery actions and describes the process to be used to 
develop a recovery plan. Revisions of the plan may be done to address 
continuing or new threats to the species, as new substantive 
information becomes available. The recovery plan also identifies 
recovery criteria for review of when a species may be ready for 
reclassification from endangered to threatened (``downlisting'') or 
removal from protected status (``delisting''), and methods for 
monitoring recovery progress. Recovery plans also establish a framework 
for agencies to coordinate their recovery efforts and provide estimates 
of the cost of implementing recovery tasks. Recovery teams (composed of 
species experts, Federal and State agencies, nongovernmental 
organizations, and stakeholders) are often established to develop 
recovery plans. When completed, the recovery outline, draft recovery 
plan, and the final recovery plan will be available on our website 
(https://www.fws.gov/program/endangered-species), or from our Alabama 
Ecological Services Field Office (see FOR FURTHER INFORMATION CONTACT).
    Implementation of recovery actions generally requires the 
participation of a broad range of partners, including other Federal 
agencies, States, Tribes, nongovernmental organizations, businesses, 
and private landowners. Examples of recovery actions include habitat 
restoration (e.g., restoration of native vegetation), research, captive 
propagation and reintroduction, and outreach and education. The 
recovery of many listed species cannot be accomplished solely on 
Federal lands because their range may occur primarily or solely on non-
Federal lands. To achieve recovery of these species requires 
cooperative conservation efforts on private, State, and Tribal lands.
    Following publication of this final rule, funding for recovery 
actions will be available from a variety of sources, including Federal 
budgets, State programs, and cost-share grants for non-Federal 
landowners, the academic community, and nongovernmental organizations. 
In addition, pursuant to section 6 of the Act, the States of Georgia 
and Tennessee will be eligible for Federal funds to implement 
management actions that promote the protection or recovery of the Upper 
Coosa River DPS of the frecklebelly madtom. Information on our grant 
programs that are available to aid species recovery can be found at: 
https://www.fws.gov/service/financial-assistance.
    Please let us know if you are interested in participating in 
recovery efforts for the Upper Coosa River DPS. Additionally, we invite 
you to submit any new information on this species whenever it becomes 
available and any information you may have for recovery planning 
purposes (see FOR FURTHER INFORMATION CONTACT, above).
    Section 7(a) of the Act requires Federal agencies to evaluate their 
actions with respect to any species that is proposed or listed as an 
endangered or threatened species and with respect to its critical 
habitat, if any is designated. Regulations implementing this 
interagency cooperation provision of the Act are codified at 50 CFR 
part 402. Section 7(a)(2) of the Act requires Federal agencies to 
ensure that activities they authorize, fund, or carry out are not 
likely to jeopardize the continued existence of the species or destroy 
or adversely modify its critical habitat. If a Federal action may 
affect a listed species or its critical habitat, the responsible 
Federal agency must enter into consultation with the Service.
    Federal agency actions within the range of the Upper Coosa River 
DPS of the frecklebelly madtom habitat that may require conference or 
consultation or both as described in the preceding paragraph include 
management and any other landscape-altering activities on Federal lands 
administered, or on private lands seeking funding by Federal agencies, 
which may include, but are not limited to, the USDA U.S. Forest 
Service, USDA Farm Service Agency, USDA Natural Resources Conservation 
Service, and Federal Emergency Disaster Service; issuance of section 
404 Clean Water Act (33 U.S.C. 1251 et seq.) permits by the U.S. Army 
Corps of Engineers; and construction and maintenance of roads or 
highways by the Federal Highway Administration.
    It is our policy, as published in the Federal Register on July 1, 
1994 (59 FR 34272), to identify to the maximum extent practicable at 
the time a species is listed, those activities that would or would not 
constitute a violation of

[[Page 13053]]

section 9 of the Act. The intent of this policy is to increase public 
awareness of the effect of a final listing on proposed and ongoing 
activities within the range of a listed species. The discussion below 
regarding protective regulations under section 4(d) of the Act complies 
with our policy.

II. Final Rule Issued Under Section 4(d) of the Act

Background

    Section 4(d) of the Act contains two sentences. The first sentence 
states that the Secretary shall issue such regulations as she deems 
necessary and advisable to provide for the conservation of species 
listed as threatened. The U.S. Supreme Court has noted that statutory 
language like ``necessary and advisable'' demonstrates a large degree 
of deference to the agency (see Webster v. Doe, 486 U.S. 592 (1988)). 
Conservation is defined in the Act to mean the use of all methods and 
procedures which are necessary to bring any endangered species or 
threatened species to the point at which the measures provided pursuant 
to the Act are no longer necessary. Additionally, the second sentence 
of section 4(d) of the Act states that the Secretary may by regulation 
prohibit with respect to any threatened species any act prohibited 
under section 9(a)(1), in the case of fish or wildlife, or section 
9(a)(2), in the case of plants. Thus, the combination of the two 
sentences of section 4(d) provides the Secretary with wide latitude of 
discretion to select and promulgate appropriate regulations tailored to 
the specific conservation needs of the threatened species. The second 
sentence grants particularly broad discretion to the Service when 
adopting the prohibitions under section 9.
    The courts have recognized the extent of the Secretary's discretion 
under this standard to develop rules that are appropriate for the 
conservation of a species. For example, courts have upheld rules 
developed under section 4(d) as a valid exercise of agency authority 
where they prohibited take of threatened wildlife or include a limited 
taking prohibition (see Alsea Valley Alliance v. Lautenbacher, 2007 
U.S. Dist. Lexis 60203 (D. Or. 2007); Washington Environmental Council 
v. National Marine Fisheries Service, 2002 U.S. Dist. Lexis 5432 (W.D. 
Wash. 2002)). Courts have also upheld 4(d) rules that do not address 
all of the threats a species faces (see State of Louisiana v. Verity, 
853 F.2d 322 (5th Cir. 1988)). As noted in the legislative history when 
the Act was initially enacted, ``once an animal is on the threatened 
list, the Secretary has an almost infinite number of options available 
to [her] with regard to the permitted activities for those species. 
[She] may, for example, permit taking, but not importation of such 
species, or [she] may choose to forbid both taking and importation but 
allow the transportation of such species'' (H.R. Rep. No. 412, 93rd 
Cong., 1st Sess. 1973).
    Exercising our authority under section 4(d), we have developed a 
rule that is designed to address the specific threats and conservation 
needs for the Upper Coosa River DPS of the frecklebelly madtom. 
Although the statute does not require us to make a ``necessary and 
advisable'' finding with respect to the adoption of specific 
prohibitions under section 9, we find that this rule as a whole 
satisfies the requirement in section 4(d) of the Act to issue 
regulations deemed necessary and advisable to provide for the 
conservation of the Upper Coosa River DPS of frecklebelly madtom. As 
discussed above under Summary of Biological Status and Threats, we have 
concluded that the Upper Coosa River DPS is likely to become in danger 
of extinction within the foreseeable future primarily due to habitat 
destruction and degradation from agriculture and developed land uses 
that result in poor water quality. The provisions of this 4(d) rule 
will promote conservation of the Upper Coosa River DPS by encouraging 
management of the landscape in ways that meet both watershed and 
riparian management purposes and the conservation needs of the Upper 
Coosa River DPS. The provisions of this rule are one of many tools that 
we will use to promote the conservation of the Upper Coosa River DPS.
    Section 7(a)(2) of the Act requires Federal agencies, including the 
Service, to ensure that any action they fund, authorize, or carry out 
is not likely to jeopardize the continued existence of any endangered 
species or threatened species or result in the destruction or adverse 
modification of designated critical habitat of such species.
    If a Federal action may affect a listed species or its critical 
habitat, the responsible Federal agency (action agency) must enter into 
consultation with us. Examples of actions that are subject to the 
section 7 consultation process are actions on State, Tribal, local, or 
private lands that require a Federal permit (such as a permit from the 
U.S. Army Corps of Engineers under section 404 of the Clean Water Act 
(33 U.S.C. 1251 et seq.) or a permit from the Service under section 10 
of the Act) or that involve some other Federal action (such as funding 
from the Federal Highway Administration, Federal Aviation 
Administration, or the Federal Emergency Management Agency). Federal 
actions not affecting listed species or critical habitat--and actions 
on State, Tribal, local, or private lands that are not federally 
funded, authorized, or carried out by a Federal agency--do not require 
section 7 consultation.
    This obligation does not change in any way for a threatened species 
with a species-specific 4(d) rule. Actions that result in a 
determination by a Federal agency of ``not likely to adversely affect'' 
continue to require the Service's written concurrence and actions that 
are ``likely to adversely affect'' a species require formal 
consultation and the formulation of a biological opinion.

Provisions of the 4(d) Rule

    This 4(d) rule will provide for the conservation of the Upper Coosa 
River DPS by prohibiting the following activities, except as otherwise 
authorized or permitted: importing or exporting; take; possession and 
other acts with unlawfully taken specimens; delivering, receiving, 
carrying, transporting, or shipping in interstate or foreign commerce 
in the course of commercial activity; or selling or offering for sale 
in interstate or foreign commerce. We also include several exceptions 
to these prohibitions, which, along with the prohibitions, are set 
forth under Regulation Promulgation, below.
    Under the Act, ``take'' means to harass, harm, pursue, hunt, shoot, 
wound, kill, trap, capture, or collect, or to attempt to engage in any 
such conduct. Some of these provisions have been further defined in 
regulation at 50 CFR 17.3. Take can result knowingly or otherwise, by 
direct and indirect impacts, intentionally or incidentally. Protecting 
the Upper Coosa River DPS of the frecklebelly madtom from direct forms 
of take, such as physical injury or killing, whether incidental or 
intentional, will help preserve and recover the remaining populations 
of the DPS. Therefore, we prohibit intentional take of frecklebelly 
madtom, including, but not limited to, capturing, handling, trapping, 
collecting, or other activities. Also, as discussed above under Summary 
of Biological Status and Threats, habitat destruction and degradation 
from agriculture and developed land uses are affecting the status of 
the Upper Coosa River DPS. Across the DPS's range, stream and water 
quality have been degraded physically by sedimentation, pollution, 
contaminants, impoundments,

[[Page 13054]]

channelization, destruction of riparian habitat, and loss of riparian 
vegetation due to agriculture activities and development within the 
watershed and riparian areas. Other habitat or hydrological alteration, 
such as ditching, draining, stream diversion, or diversion or 
alteration of surface or ground water flow into or out of the stream, 
will impact the habitat of the DPS. Therefore, we prohibit actions that 
result in the incidental take of the Upper Coosa River DPS by 
destroying, altering, or degrading the habitat in the manner described 
above. Regulating these activities will help conserve the DPS slow the 
rate of population decline, and decrease synergistic, negative effects 
from other stressors.

Exceptions to Prohibitions

    In addition to certain statutory exceptions from prohibitions, 
which are found in sections 9 and 10 of the Act, the 4(d) rule includes 
the following exceptions to the prohibitions:
Permitted Activities
    We may issue permits to carry out otherwise prohibited activities, 
including those described above, involving threatened wildlife under 
certain circumstances. Regulations governing permits are codified at 50 
CFR 17.32. With regard to threatened wildlife, a permit may be issued 
for the following purposes: For scientific purposes, to enhance 
propagation or survival, for economic hardship, for zoological 
exhibition, for educational purposes, for incidental taking, or for 
special purposes consistent with the Act. The Act also contains certain 
exemptions from the prohibitions, which are found in sections 9 and 10 
of the Act.
Activities Not Requiring a Permit
    We recognize the special and unique relationship with our State 
natural resource agency partners in contributing to conservation of 
listed species. State agencies often possess scientific data and 
valuable expertise on the status and distribution of endangered, 
threatened, and candidate species of wildlife and plants. State 
agencies, because of their authorities and their close working 
relationships with local governments and landowners, are in a unique 
position to assist the Service in implementing all aspects of the Act. 
In this regard, section 6 of the Act provides that the Service shall 
cooperate to the maximum extent practicable with the States in carrying 
out programs authorized by the Act. Therefore, any qualified employee 
or agent of a State conservation agency that is a party to a 
cooperative agreement with the Service in accordance with section 6(c) 
of the Act, who is designated by his or her agency for such purposes, 
will be able to conduct activities designed to conserve the Upper Coosa 
River DPS that may result in otherwise prohibited take without 
additional authorization.
    In this rule, we allow take of the individuals of the Upper Coosa 
River DPS without a permit by any employee or agent of the Service or a 
State conservation agency designated by his agency for such purposes 
and when acting in the course of his official duties if such action is 
necessary to aid a sick, injured or orphaned specimen; dispose of a 
dead specimen; or salvage a dead specimen which may be useful for 
scientific study. In addition, Federal and State law enforcement 
officers may possess, deliver, carry, transport, or ship specimens 
taken in violation of the Act as necessary.
Channel Restoration, Streambank Stabilization, and Other Activities
    Channel restoration is used as a technique to restore degraded, 
physically unstable streams back to natural, physically stable, 
ecologically functioning streams. When done correctly, these projects 
reduce, ameliorate, or fix unnatural erosion, head cutting, and/or 
sedimentation. Thus, channel restoration projects result in 
geomorphically stable stream channels that maintain the appropriate 
lateral dimensions, longitudinal profiles, and sinuosity patterns over 
time without an aggrading or degrading bed elevation and include stable 
riffle-run-pool complexes that consist of silt-free gravel, coarse 
sand, cobble, boulders, woody structure, and river weed (Podostemum 
spp.). This provision of the 4(d) rule for channel restoration will 
promote conservation of the Upper Coosa River DPS by excepting 
incidental take resulting from activities that improve channel 
conditions and restore degraded, physically unstable streams or stream 
segments. We anticipate these activities will advance ecological 
conditions within a watershed to a more natural state that will benefit 
the frecklebelly madtom.
    Streambank stabilization is used as a habitat restoration technique 
to restore degraded and eroded streambanks back to natively vegetated, 
stable streambanks. When done correctly, these projects reduce bank 
erosion and instream sedimentation, resulting in improved habitat 
conditions for aquatic species. Therefore, we will allow streambanks to 
be stabilized using the following bioengineering methods: native live 
stakes (live, vegetative cuttings inserted or tamped into the ground in 
a manner that allows the stake to take root and grow), native live 
fascines (live branch cuttings, usually willows, bound together into 
long, cigar-shaped bundles), or native brush layering (cuttings or 
branches of easily rooted tree species layered between successive lifts 
of soil fill). All methods must use plant species native to the region 
where the project is being conducted. These methods must not include 
the sole use of quarried rock (rip-rap) or the use of rock baskets or 
gabion structures, but they could be used in conjunction with the above 
bioengineering methods. This provision of the 4(d) rule for streambank 
stabilization will promote conservation of the Upper Coosa River DPS by 
excepting from the prohibition incidental take resulting from 
activities that will improve habitat conditions by reducing bank 
erosion and instream sedimentation.
    Improving watershed, riparian, and habitat conditions within the 
range of the Upper Coosa River DPS will provide for the conservation of 
the DPS and will likely increase resiliency throughout. Activities that 
would benefit the DPS, if they do not alter habitats known to be used 
by the DPS beyond its tolerances, are implemented with a primary 
objective of improving environmental conditions to support the aquatic 
biodiversity of flowing water habitats. This provision of the 4(d) rule 
for other activities will promote conservation of the Upper Coosa River 
DPS by excepting from the prohibition incidental take resulting from 
activities as described above.
Silviculture and Forest Management Under State-Approved Best Management 
Practices
    We are excepting incidental take resulting from silviculture and 
forest management activities that use State-approved BMPs to protect 
water and sediment quality and stream and riparian habitat. Best 
management practices are designed to reduce sedimentation, erosion, and 
bank destruction, thereby protecting instream habitat for the species. 
We recognize that silvicultural operations are widely implemented in 
accordance with State-approved BMPs (as reviewed by Cristan et al. 
2018, entire), and the adherence to these BMPs broadly protects water 
quality, particularly related to sedimentation (as reviewed by Cristan 
et al. 2016, entire; Warrington et al. 2017, entire; and Schilling et 
al. 2021, entire). This provision of the 4(d) rule for silviculture and 
forest management activities will promote conservation of

[[Page 13055]]

the Upper Coosa River DPS by excepting from the prohibition incidental 
take resulting from activities that use State-approved BMPs.
Relation of 4(d) Rule to Available Conservation Measures
    Nothing in this 4(d) rule would change in any way the recovery 
planning provisions of section 4(f) of the Act, the consultation 
requirements under section 7 of the Act, or the ability of the Service 
to enter into partnerships for the management and protection of the 
Upper Coosa River DPS. However, interagency cooperation may be further 
streamlined through planned programmatic consultations for the species 
between Federal agencies and the Service, where appropriate.

III. Critical Habitat

Background

    Critical habitat is defined in section 3 of the Act as:
    (1) The specific areas within the geographical area occupied by the 
species, at the time it is listed in accordance with the Act, on which 
are found those physical or biological features
    (a) Essential to the conservation of the species, and
    (b) Which may require special management considerations or 
protection; and
    (2) Specific areas outside the geographical area occupied by the 
species at the time it is listed, upon a determination that such areas 
are essential for the conservation of the species.
    Our regulations at 50 CFR 424.02 define the geographical area 
occupied by the species as an area that may generally be delineated 
around species' occurrences, as determined by the Secretary (i.e., 
range). Such areas may include those areas used throughout all or part 
of the species' life cycle, even if not used on a regular basis (e.g., 
migratory corridors, seasonal habitats, and habitats used periodically, 
but not solely by vagrant individuals).
    Conservation, as defined under section 3 of the Act, means to use 
and the use of all methods and procedures that are necessary to bring 
an endangered or threatened species to the point at which the measures 
provided pursuant to the Act are no longer necessary. Such methods and 
procedures include, but are not limited to, all activities associated 
with scientific resources management such as research, census, law 
enforcement, habitat acquisition and maintenance, propagation, live 
trapping, and transplantation, and, in the extraordinary case where 
population pressures within a given ecosystem cannot be otherwise 
relieved, may include regulated taking.
    Critical habitat receives protection under section 7 of the Act 
through the requirement that Federal agencies ensure, in consultation 
with the Service, that any action they authorize, fund, or carry out is 
not likely to result in the destruction or adverse modification of 
critical habitat. The designation of critical habitat does not affect 
land ownership or establish a refuge, wilderness, reserve, preserve, or 
other conservation area. Designation also does not allow the government 
or public to access private lands. Such designation does not require 
implementation of restoration, recovery, or enhancement measures by 
non-Federal landowners. Where a landowner requests Federal agency 
funding or authorization for an action that may affect a listed species 
or critical habitat, the Federal agency would be required to consult 
with the Service under section 7(a)(2) of the Act. However, even if the 
Service were to conclude that the proposed activity would result in 
destruction or adverse modification of the critical habitat, the 
Federal action agency and the landowner are not required to abandon the 
proposed activity, or to restore or recover the species; instead, they 
must implement ``reasonable and prudent alternatives'' to avoid 
destruction or adverse modification of critical habitat.
    Under the first prong of the Act's definition of critical habitat, 
areas within the geographical area occupied by the species at the time 
it was listed are included in a critical habitat designation if they 
contain physical or biological features (1) which are essential to the 
conservation of the species and (2) which may require special 
management considerations or protection. For these areas, critical 
habitat designations identify, to the extent known using the best 
scientific and commercial data available, those physical or biological 
features that are essential to the conservation of the species (such as 
space, food, cover, and protected habitat).
    Under the second prong of the Act's definition of critical habitat, 
we can designate critical habitat in areas outside the geographical 
area occupied by the species at the time it is listed, upon a 
determination that such areas are essential for the conservation of the 
species.
    Section 4 of the Act requires that we designate critical habitat on 
the basis of the best scientific data available. Further, our Policy on 
Information Standards Under the Endangered Species Act (published in 
the Federal Register on July 1, 1994 (59 FR 34271)), the Information 
Quality Act (section 515 of the Treasury and General Government 
Appropriations Act for Fiscal Year 2001 (Pub. L. 106-554; H.R. 5658)), 
and our associated Information Quality Guidelines provide criteria, 
establish procedures, and provide guidance to ensure that our decisions 
are based on the best scientific data available. They require our 
biologists, to the extent consistent with the Act and with the use of 
the best scientific data available, to use primary and original sources 
of information as the basis for recommendations to designate critical 
habitat.
    When we are determining which areas should be designated as 
critical habitat, our primary source of information is generally the 
information from the SSA report and information developed during the 
listing process for the species. Additional information sources may 
include any generalized conservation strategy, criteria, or outline 
that may have been developed for the species; the recovery plan for the 
species; articles in peer-reviewed journals; conservation plans 
developed by States and counties; scientific status surveys and 
studies; biological assessments; other unpublished materials; or 
experts' opinions or personal knowledge.
    Habitat is dynamic, and species may move from one area to another 
over time. We recognize that critical habitat designated at a 
particular point in time may not include all of the habitat areas that 
we may later determine are necessary for the recovery of the species. 
For these reasons, a critical habitat designation does not signal that 
habitat outside the designated area is unimportant or may not be needed 
for recovery of the species. Areas that are important to the 
conservation of the species, both inside and outside the critical 
habitat designation, will continue to be subject to: (1) Conservation 
actions implemented under section 7(a)(1) of the Act; (2) regulatory 
protections afforded by the requirement in section 7(a)(2) of the Act 
for Federal agencies to ensure their actions are not likely to 
jeopardize the continued existence of any endangered or threatened 
species; and (3) the prohibitions found in the 4(d) rule. Federally 
funded or permitted projects affecting listed species outside their 
designated critical habitat areas may still result in jeopardy findings 
in some cases. These protections and conservation tools will continue 
to contribute to recovery of this DPS.

[[Page 13056]]

Similarly, critical habitat designations made on the basis of the best 
available information at the time of designation will not control the 
direction and substance of future recovery plans, habitat conservation 
plans (HCPs), or other species conservation planning efforts if new 
information available at the time of these planning efforts calls for a 
different outcome.
    Section 4(a)(3) of the Act, as amended, and implementing 
regulations (50 CFR 424.12) require that, to the maximum extent prudent 
and determinable, the Secretary shall designate critical habitat at the 
time the species is determined to be an endangered or threatened 
species.
    As discussed earlier in this document, there is currently no 
imminent threat of take attributed to collection or vandalism 
identified under Factor B for this species, and identification and 
mapping of critical habitat is not expected to initiate any such 
threat. In our SSA and listing determination for the Upper Coosa River 
DPS of the frecklebelly madtom, we determined that the present or 
threatened destruction, modification, or curtailment of habitat or 
range is a threat to the Upper Coosa River DPS and that those threats 
in some way can be addressed by section 7(a)(2) consultation measures. 
The DPS occurs wholly in the jurisdiction of the United States, and we 
are able to identify areas that meet the definition of critical 
habitat. Therefore, because none of the circumstances enumerated in our 
regulations at 50 CFR 424.12(a)(1) have been met and because there are 
no other circumstances the Secretary has identified for which this 
designation of critical habitat would be not prudent, we have 
determined that the designation of critical habitat is prudent for the 
Upper Coosa River DPS.
    Having determined that designation is prudent, under section 
4(a)(3) of the Act we must find whether critical habitat for the Upper 
Coosa River DPS of the frecklebelly madtom is determinable. We reviewed 
the available information pertaining to the biological needs of the 
Upper Coosa River DPS and habitat characteristics where this DPS is 
located. This and other information represent the best scientific data 
available and led us to conclude that the designation of critical 
habitat is determinable for the Upper Coosa River DPS.

Physical or Biological Features Essential to the Conservation of the 
Species

    In accordance with section 3(5)(A)(i) of the Act and regulations at 
50 CFR 424.12(b), in determining which areas we will designate as 
critical habitat from within the geographical area occupied by the 
species at the time of listing, we consider the physical or biological 
features that are essential to the conservation of the species and 
which may require special management considerations or protection. The 
regulations at 50 CFR 424.02 define ``physical or biological features 
essential to the conservation of the species'' as the features that 
occur in specific areas and that are essential to support the life-
history needs of the species, including, but not limited to, water 
characteristics, soil type, geological features, sites, prey, 
vegetation, symbiotic species, or other features. A feature may be a 
single habitat characteristic or a more complex combination of habitat 
characteristics. Features may include habitat characteristics that 
support ephemeral or dynamic habitat conditions. Features may also be 
expressed in terms relating to principles of conservation biology, such 
as patch size, distribution distances, and connectivity. For example, 
physical features essential to the conservation of the species might 
include gravel of a particular size required for spawning, alkaline 
soil for seed germination, protective cover for migration, or 
susceptibility to flooding or fire that maintains necessary early-
successional habitat characteristics. Biological features might include 
prey species, forage grasses, specific kinds or ages of trees for 
roosting or nesting, symbiotic fungi, or a particular level of 
nonnative species consistent with conservation needs of the listed 
species. The features may also be combinations of habitat 
characteristics and may encompass the relationship between 
characteristics or the necessary amount of a characteristic essential 
to support the life history of the species.
    In considering whether features are essential to the conservation 
of the species, we may consider an appropriate quality, quantity, and 
spatial and temporal arrangement of habitat characteristics in the 
context of the life-history needs, condition, and status of the 
species. These characteristics include, but are not limited to, space 
for individual and population growth and for normal behavior; food, 
water, air, light, minerals, or other nutritional or physiological 
requirements; cover or shelter; sites for breeding, reproduction, or 
rearing (or development) of offspring; and habitats that are protected 
from disturbance.
    The Upper Coosa River DPS is a population segment of the 
frecklebelly madtom and occurs in the upper Coosa River system in the 
Piedmont Upland physiographic province in Georgia and the Ridge and 
Valley physiographic province in Georgia and Tennessee. The primary 
habitat features that influence the resiliency of the Upper Coosa River 
DPS include flowing water, suitable water quality, substrate, cover, 
and habitat connectivity. These features are essential to the survival 
and reproduction of individuals at all life stages.
    As stated above, the frecklebelly madtom occurs in small to large, 
swift-flowing rivers consisting of stable riffle-run pool complexes and 
with a substrate that consists of silt-free gravel, coarse sand, 
cobble, and boulders. The species needs unimpounded flowing water to 
successfully reproduce and maintain populations. In addition, streams 
must have an adequate flow to maintain instream habitats and 
connectivity of streams with the floodplain, which is important to 
allow nutrient and sediment exchange for habitat maintenance. Stream 
reaches with suitable habitat must be large enough and have 
connectivity to support enough frecklebelly madtoms to ensure 
individuals can find a mate and reproduce (Service 2020, p. 17). Cover 
is an important component of suitable habitat for the frecklebelly 
madtom and provides shelter from predators, space to forage, and space 
to nest. The species is often found in or near aquatic vegetation, such 
as river weed (Podostemum spp.), woody structures, and under large, 
flat rocks. In addition, nesting sites for madtoms are typically 
cavities under natural material (rocks, logs, empty mussel shells). 
Thus, small to large flowing rivers with appropriate substrate, cover, 
and connectivity are important for the growth, reproduction, and 
survival of the frecklebelly madtom.
    The frecklebelly madtom, like other benthic species, is sensitive 
to poor water quality (Warren et al. 1997, p. 125) and needs clean, 
flowing water to survive. Changes in water chemistry and flow patterns, 
resulting in a decrease in water quality and quantity, have detrimental 
effects on madtom ecology, because they can render aquatic habitat 
unsuitable for occupancy. In addition, the frecklebelly madtom is 
intolerant of excessive sedimentation (Shepard 2004, p. 221). The 
minimum and maximum standards of water quality and quantity conditions 
that are conducive to the presence of frecklebelly madtom are not well 
known. However, muddy waterways, lentic streams (still water), and poor 
water quality conditions are not desirable for maintaining suitable 
habitat for the species. Therefore, appropriate water and sediment 
quality are necessary to sustain growth,

[[Page 13057]]

reproduction, and viability of the frecklebelly madtom and are 
essential to the conservation of the species.
    The species is an opportunistic insectivore feeding on a variety of 
aquatic insects and larvae, including caddisflies, mayflies, 
blackflies, and midges (Miller 1984, p. 9). Seasonal changes found in 
diet probably reflect differences in prey availability (Miller 1984, p. 
11). Therefore, a diverse and available aquatic macroinvertebrate 
assemblage is important to the growth and survival of the frecklebelly 
madtom.
    More detail of the habitat and life-history needs of the 
frecklebelly madtom and a thorough review are available in our proposed 
rule (85 FR 74050; November 19, 2020) and in the SSA report (Service 
2020, entire; available on https://www.regulations.gov under Docket No. 
FWS-R4-ES-2020-0058). A summary of the resource needs of the Upper 
Coosa River DPS is provided below in table 3.

      Table 3--Resource Needs for the Upper Coosa River DPS of the
             Frecklebelly Madtom To Complete Each Life Stage
------------------------------------------------------------------------
        Life stage                        Resources needed
------------------------------------------------------------------------
Fertilized eggs...........  Flowing water with good water quality;
                             cavities for shelter; parental care.
Larvae....................  Flowing water with good water quality; low
                             predation, disease, and environmental
                             stress; adequate food availability.
Juveniles.................  Flowing water with good water quality; low
                             predation, disease, and environmental
                             stress; structure (vegetation, rock,
                             substrate) for shelter and forage; adequate
                             food availability.
Adults....................  Flowing water with adequate water quality;
                             structure (vegetation, rock, substrate) for
                             shelter, forage, and nesting; cavities for
                             nesting; appropriate male to female
                             demographics; adequate food availability.
------------------------------------------------------------------------

Summary of Essential Physical or Biological Features

    We derive the specific physical or biological features essential to 
the conservation of Upper Coosa River DPS of the frecklebelly madtom 
from studies of the species' habitat, ecology, and life history as 
described above. Additional information can be found in the SSA report 
(Service 2020, entire; available on https://www.regulations.gov under 
Docket No. FWS-R4-ES-2020-0058). We have determined that the following 
physical or biological features are essential to the conservation of 
Upper Coosa River DPS of the frecklebelly madtom:
    (1) Geomorphically stable, medium to large streams with:
    (a) Stable stream channels that maintain lateral dimensions, 
longitudinal profiles, and sinuosity patterns over time without an 
aggrading or degrading bed elevation; and
    (b) Banks with intact riparian cover to maintain stream morphology 
and reduce erosion and sediment inputs.
    (2) Connected instream habitats that:
    (a) Include stable riffle-run pool complexes;
    (b) Have abundant cobble, boulders, and woody structures, or other 
suitable cover used for nesting and river weed (Podostemum spp.) that 
is free of silt.
    (3) Adequate flows, or a hydrologic flow regime (which includes the 
severity, frequency, duration, and seasonality of discharge over time), 
necessary to maintain instream habitats and to maintain connectivity of 
streams with the floodplain, allowing the exchange of nutrients and 
sediment for maintenance of the fish's habitat, food availability, and 
ample oxygenated flow for spawning and nesting habitat.
    (4) Appropriate water and sediment quality (including, but not 
limited to, conductivity; hardness; turbidity; temperature; pH; 
ammonia; heavy metals; pesticides; animal waste products; and nitrogen, 
phosphorus, and potassium fertilizers) necessary to sustain natural 
physiological processes for normal behavior, growth, and viability of 
all life stages.
    (5) Diversity and availability of aquatic macroinvertebrate prey 
items, which include larval midges, mayflies, caddisflies, dragonflies, 
and beetles.

Special Management Considerations or Protection

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

Criteria Used To Identify Critical Habitat

    As required by section 4(b)(2) of the Act, we use the best 
scientific data available to designate critical habitat. In accordance 
with the Act and our implementing regulations at 50 CFR 424.12(b), we 
review available information pertaining to the habitat requirements of 
the species and identify specific areas within the geographical area 
occupied by the species at the time of listing and any specific areas 
outside the geographical area occupied by the species to be considered 
for designation as critical habitat. To determine and select 
appropriate occupied areas that contain the physical or biological 
features essential to the conservation of the species or areas 
otherwise essential for the conservation of the Upper Coosa River DPS 
of the frecklebelly madtom, we developed a conservation strategy

[[Page 13058]]

for the DPS. The goal of the conservation strategy for the Upper Coosa 
River DPS of the frecklebelly madtom is to recover the DPS to the point 
where the protections of the Act are no longer necessary. The role of 
critical habitat in achieving this conservation goal is to identify the 
specific areas within the Upper Coosa River DPS's range that provide 
essential physical or biological features, without which rangewide 
resiliency, redundancy, and representation could not be achieved. We 
anticipate that recovery will require continued protection of existing 
resilience units and habitats that contribute to the viability of the 
DPS, as well as ensuring there are adequate numbers of fish in stable 
units and that at least one sufficiently resilient unit occurs in each 
of the physiographic provinces (Piedmont Upland and Ridge and Valley). 
This will help to ensure that catastrophic events, such as floods, 
cannot simultaneously affect all known resilience units of the DPS. 
Recovery considerations, such as maintaining existing genetic diversity 
and striving for representation of both physiographic provinces in the 
DPS's current range, were considered.
    In developing our conservation strategy for determining which areas 
to include as critical habitat for the Upper Coosa River DPS, we 
focused on the existing resilience units and habitats that are 
presently contributing to the viability of the species or historical 
units in which resiliency can be improved such that they contribute to 
the viability of the species. In summary, we identified streams and 
rivers that are both: (1) Currently occupied streams and rivers within 
the known historical range of the Upper Coosa River DPS and (2) those 
areas that have retained the physical or biological features identified 
earlier that will allow for the maintenance and expansion of existing 
populations. For the purposes of the critical habitat designation, and 
for areas within the geographic area occupied by the species at the 
time of listing, we determined a unit to be occupied if it contains a 
recent (i.e., observed in the past 11 years (since 2009)) observation 
(collection) or eDNA record that supports the presence of the species. 
Within those areas, we delineated the boundaries of critical habitat 
units using the following process:
    We evaluated habitat suitability of stream and river channels 
within the geographical area occupied at the time of listing, and 
retained for further consideration those streams that contain one or 
more of the physical and biological features to support life-history 
functions essential to conservation of the Upper Coosa River DPS. We 
determined the end points of river units by evaluating the presence or 
absence of appropriate physical and biological features. Our upstream 
cutoff points for each stream are located approximately where the 
physiographic province that the frecklebelly madtom occupies begins 
(where the Conasauga River flows out of the Blue Ridge and into the 
Ridge and Valley physiographic province and where the Etowah River 
flows out of the Blue Ridge and into the Piedmont Upland physiographic 
province) and selected downstream cutoff points that omit areas where 
habitat conditions are less favorable for the species (i.e., do not 
contain the physical or biological features essential to the 
conservation of the DPS).
    Based on this analysis, the following rivers meet criteria for 
areas occupied by the species at the time of listing: Conasauga River, 
Coosawattee River, and Etowah River. These areas include the two 
rivers, Conasauga River and Etowah River, known to have been occupied 
by the DPS historically. Environmental DNA of the frecklebelly madtom 
was detected in the Conasauga River in 2017 and 2018, which meets the 
criteria for consideration as an area occupied by the species at the 
time of listing. In the Etowah River, occurrence data and eDNA records 
from 2018 are available. These two areas meet our conservation strategy 
for the frecklebelly madtom. Designating critical habitat of streams in 
these two occupied resilience units of the DPS, which occur in both 
physiographic provinces and currently contribute to (or are historical 
units in which resiliency can be improved to contribute to) the 
species' viability, will help protect, and eventually reduce the risk 
of extirpation, of the DPS.
    The designation does not include the Coosawattee River, which is 
not part of the known historical range of the species. Environmental 
DNA of the frecklebelly madtom was detected in the Coosawattee River in 
2018, which meets the criteria for consideration as an area occupied by 
the species at the time of listing. However, since the Coosawattee 
River is not part of the known historical range of the frecklebelly 
madtom, this area does not meet our conservation strategy for 
designating critical habitat for the species. The conservation strategy 
focused on areas within the historical known range of the species. In 
addition, since the species has never been directly observed in this 
river despite multiple surveys over time, using the best available 
information, we determined this area is not a historical unit in which 
resiliency can be improved to contribute to the species' viability. 
Lastly, we determined that sufficient areas (Conasauga River and Etowah 
River) to provide for the conservation of the species already have been 
identified within this final designation. We did not receive 
information during the public comment period that supported designating 
as critical habitat areas not included in the proposed units (see 
Critical Habitat Designation, below).
    We are not designating any areas outside the geographical area 
occupied by the Upper Coosa River DPS because we did not identify any 
unoccupied areas that are essential for the conservation of the 
species. The protection of the Conasauga River and Etowah River will 
sufficiently reduce the risk of extinction. Sources of data for this 
designation of critical habitat include multiple databases maintained 
by universities and State agencies in Tennessee and Georgia, as well as 
numerous survey reports on streams throughout the DPS's range. Other 
sources of available information on habitat requirements for this 
species include studies conducted at occupied sites and published in 
peer-reviewed articles, agency reports, and data collected during 
monitoring efforts (Shepard et al. 1997, entire; Bennett et al. 2008, 
entire; Bennett and Kuhajda 2010, entire; Albanese et al. 2018, entire; 
Service 2020, entire). Observation and eDNA records were compiled and 
provided to us by State partners during the SSA analysis.
    When determining critical habitat boundaries, we made every effort 
to avoid including developed areas such as lands covered by buildings, 
pavement, and other structures because such lands lack physical or 
biological features necessary for the Upper Coosa River DPS. The scale 
of the maps we prepared under the parameters for publication within the 
Code of Federal Regulations may not reflect the exclusion of such 
developed lands. Any such lands inadvertently left inside critical 
habitat boundaries shown on the maps of this rule have been excluded by 
text in the rule and are not designated as critical habitat. Therefore, 
a Federal action involving these lands will not trigger section 7 
consultation with respect to critical habitat and the requirement of no 
adverse modification unless the specific action will affect the 
physical or biological features in the adjacent critical habitat.
    We are designating as critical habitat areas that we have 
determined are occupied at the time of listing (i.e., currently 
occupied) and that contain

[[Page 13059]]

one or more of the physical or biological features that are essential 
to support life-history processes of the species. Units are designated 
based on one or more of the physical or biological features being 
present to support the Upper Coosa River DPS's life-history processes. 
Unit 1 contains only some of the physical or biological features 
necessary to support the Upper Coosa River DPS's particular use of that 
habitat. Unit 2 contains all of the identified physical or biological 
features and supports multiple life-history processes.
    The critical habitat designation is defined by the map or maps, as 
modified by any accompanying regulatory text, presented at the end of 
this document under Regulation Promulgation. We include more detailed 
information on the boundaries of the critical habitat designation in 
the preamble of this document. We will make the coordinates or plot 
points or both on which each map is based available to the public on 
https://www.regulations.gov at Docket No. FWS-R4-ES-2020-0058 and on 
our internet site at https://www.fws.gov/southeast/.

Final Critical Habitat Designation

    We are designating approximately 134 river miles (mi) (216 river 
kilometers (km)) in two units as critical habitat for the Upper Coosa 
River DPS of the frecklebelly madtom. The critical habitat areas we 
describe below constitute our current best assessment of areas that 
meet the definition of critical habitat for the Upper Coosa River DPS. 
The two units are: (1) Conasauga River Unit and (2) Etowah River Unit. 
Table 4, below, shows the critical habitat units, land ownership, and 
the approximate river miles of each unit. Per State regulations 
(Tennessee Code Annotated section 69-1-101 and Georgia Code section 52-
1-31), navigable waters are considered public rights-of-way. Lands 
beneath the navigable waters included in this final rule are owned by 
the States of Tennessee or Georgia. Ownership of lands beneath 
nonnavigable waters included in this rule are determined by riparian 
land ownership. The riparian land adjacent to the designated critical 
habitat is 85 percent private, 6 percent local government, 5 percent 
State, and 4 percent Federal lands.

  Table 4--Critical Habitat Units for the Upper Coosa River DPS of the
                           Frecklebelly Madtom
------------------------------------------------------------------------
                                    Riparian ownership      River miles
     Critical habitat unit          surrounding units      (kilometers)
------------------------------------------------------------------------
1. Conasauga River.............  Private, State, Federal       51.5 (83)
2. Etowah River................  Private, Local, State..      82.5 (133)
                                                         ---------------
    Total......................  .......................       134 (216)
------------------------------------------------------------------------
Note: Lengths may not sum due to rounding.

    We present brief descriptions of all units, and reasons why they 
meet the definition of critical habitat for the Upper Coosa River DPS, 
below.

Unit 1: Conasauga River

    Unit 1 consists of approximately 51.5 river mi (83 km) of the 
Conasauga River beginning at the mouth of Coahulla Creek in Whitfield 
and Murray Counties, Georgia, and continuing upstream through Bradley 
County, Tennessee, to the mouth of Graham Branch in Polk County, 
Tennessee. Unit 1 does not extend beyond the bankfull width of the 
river. Frecklebelly madtom occupies all river reaches in this unit. 
Unit 1 contains some of the physical or biological features essential 
to the conservation of the DPS. Unit 1 possesses those characteristics, 
as described above under Summary of Essential Physical or Biological 
Features, of essential physical or biological features (1), (2), (3), 
and (5). Essential physical or biological feature (4) is degraded in 
this unit, but with appropriate management and restoration actions, 
this physical or biological feature can be restored.
    Special management considerations or protection may be required 
within Unit 1 to alleviate impacts from stressors that have led to the 
degradation of the habitat, including sedimentation, pollutant input, 
excess nutrient input, development, and unstable stream banks. 
Surrounding land-use practices, including agricultural runoff, 
agricultural ditching, and erosion, have led to high levels of 
sedimentation, siltation, contamination, and nutrient-loading, as well 
as destabilized stream banks. Special management considerations related 
to agricultural and developed areas that will benefit the habitat in 
this unit include, but are not limited to, riparian buffer restoration, 
reduced surface and groundwater withdrawals, increased open space in 
the watershed, and treating wastewater to the highest level 
practicable.

Unit 2: Etowah River

    Unit 2 consists of approximately 82.5 river mi (133 km) of the 
Etowah River beginning at its confluence with Shoal Creek in Cherokee 
County, Georgia, and continuing upstream through Forsyth and Dawson 
Counties to approximately 0.5 miles upstream of the Jay Bridge Road 
crossing over the Etowah River in Lumpkin County, Georgia. Unit 2 does 
not extend beyond the bankfull width of the river. Frecklebelly madtom 
occupies all river reaches in this unit. Unit 2 contains all of the 
physical or biological features essential to the conservation of the 
DPS.
    Special management considerations or protection may be required 
within Unit 2 to alleviate impacts from stressors that are anticipated 
to amplify degradation of the habitat, including sedimentation, 
pollutant input, excess nutrient input, development, and unstable 
stream banks. Increased development, including urban development and 
runoff, dam construction and use, and paved and unpaved roads, in the 
surrounding watershed and riparian area has led to higher levels of 
sedimentation, siltation, contamination, and nutrient-loading, as well 
as destabilized stream banks. Special management considerations related 
to agricultural and developed areas that will benefit the habitat in 
this unit include, but are not limited to, riparian buffer restoration, 
reduced surface and ground water withdrawals, increased open space in 
the watershed, and implementing highest levels of treatment of 
wastewater practicable.

Effects of Critical Habitat Designation

Section 7 Consultation

    Section 7(a)(2) of the Act requires Federal agencies, including the 
Service, to ensure that any action they fund, authorize, or carry out 
is not likely to jeopardize the continued existence of any endangered 
species or threatened species or result in the destruction or

[[Page 13060]]

adverse modification of designated critical habitat of such species. We 
published a final rule revising the definition of destruction or 
adverse modification on August 27, 2019 (84 FR 44976). Destruction or 
adverse modification means a direct or indirect alteration that 
appreciably diminishes the value of critical habitat as a whole for the 
conservation of a listed species.
    If a Federal action may affect a listed species or its critical 
habitat, the responsible Federal agency (action agency) must enter into 
consultation with us. Examples of actions that are subject to the 
section 7 consultation process are actions on State, Tribal, local, or 
private lands that require a Federal permit (such as a permit from the 
U.S. Army Corps of Engineers under section 404 of the Clean Water Act 
(33 U.S.C. 1251 et seq.) or a permit from the Service under section 10 
of the Act) or that involve some other Federal action (such as funding 
from the Federal Highway Administration, Federal Aviation 
Administration, or the Federal Emergency Management Agency). Federal 
actions not affecting listed species or critical habitat--and actions 
on State, Tribal, local, or private lands that are not federally 
funded, authorized, or carried out by a Federal agency--do not require 
section 7 consultation.
    Compliance with the requirements of section 7(a)(2) is documented 
through our issuance of:
    (1) A concurrence letter for Federal actions that may affect, but 
are not likely to adversely affect, listed species or critical habitat; 
or
    (2) A biological opinion for Federal actions that may affect, and 
are likely to adversely affect, listed species or critical habitat.
    When we issue a biological opinion concluding that a project is 
likely to jeopardize the continued existence of a listed species and/or 
destroy or adversely modify critical habitat, we provide reasonable and 
prudent alternatives to the project, if any are identifiable, that 
would avoid the likelihood of jeopardy and/or destruction or adverse 
modification of critical habitat. We define ``reasonable and prudent 
alternatives'' (at 50 CFR 402.02) as alternative actions identified 
during consultation that:
    (1) Can be implemented in a manner consistent with the intended 
purpose of the action,
    (2) Can be implemented consistent with the scope of the Federal 
agency's legal authority and jurisdiction,
    (3) Are economically and technologically feasible, and
    (4) Would, in the Service Director's opinion, avoid the likelihood 
of jeopardizing the continued existence of the listed species and/or 
avoid the likelihood of destroying or adversely modifying critical 
habitat.
    Reasonable and prudent alternatives can vary from slight project 
modifications to extensive redesign or relocation of the project. Costs 
associated with implementing a reasonable and prudent alternative are 
similarly variable.
    Regulations at 50 CFR 402.16 set forth requirements for Federal 
agencies to reinitiate formal consultation on previously reviewed 
actions. These requirements apply when the Federal agency has retained 
discretionary involvement or control over the action (or the agency's 
discretionary involvement or control is authorized by law) and, 
subsequent to the previous consultation: (a) If the amount or extent of 
taking specified in the incidental take statement is exceeded; (b) if 
new information reveals effects of the action that may affect listed 
species or critical habitat in a manner or to an extent not previously 
considered; (c) if the identified action is subsequently modified in a 
manner that causes an effect to the listed species or critical habitat 
that was not considered in the biological opinion; or (d) if a new 
species is listed or critical habitat designated that may be affected 
by the identified action.
    In such situations, Federal agencies sometimes may need to request 
reinitiation of consultation with us, but the regulations also specify 
some exceptions to the requirement to reinitiate consultation on 
specific land management plans after subsequently listing a new species 
or designating new critical habitat. See the regulations for a 
description of those exceptions.

Application of the ``Adverse Modification'' Standard

    The key factor related to the destruction or adverse modification 
determination is whether implementation of the proposed Federal action 
directly or indirectly alters the designated critical habitat in a way 
that appreciably diminishes the value of the critical habitat as a 
whole for the conservation of the listed species. As discussed above, 
the role of critical habitat is to support physical or biological 
features essential to the conservation of a listed species and provide 
for the conservation of the species.
    Section 4(b)(8) of the Act requires us to briefly evaluate and 
describe, in any proposed or final regulation that designates critical 
habitat, activities involving a Federal action that may violate section 
7(a)(2) of the Act by destroying or adversely modifying such habitat, 
or that may be affected by such designation.
    Activities that we may, during a consultation under section 7(a)(2) 
of the Act, consider likely to destroy or adversely modify critical 
habitat include, but are not limited to:
    (1) Actions that would alter the minimum flow or existing flow 
regime. Such activities could include, but are not limited to, 
impoundment, channelization, water diversion, water withdrawal, 
hydropower generation, and flood control. These activities could 
eliminate or reduce the habitat necessary for the growth and 
reproduction of the Upper Coosa River DPS by altering flows to levels 
that would adversely affect the Upper Coosa River DPS's ability to 
complete its life cycle.
    (2) Actions that would significantly alter water chemistry or 
quality. Such activities could include, but are not limited to, release 
of chemicals or biological pollutants into the surface water or 
connected groundwater at a point source or by dispersed release (non-
point source). These activities could alter water conditions to levels 
that are beyond the tolerances of the Upper Coosa River DPS and result 
in direct or cumulative adverse effects to individuals and their life 
cycles.
    (3) Actions that would significantly increase sediment deposition 
within the stream channel. Such activities could include, but are not 
limited to, excessive sedimentation from livestock grazing, road 
construction, channel alteration, and other watershed and floodplain 
disturbances. These activities could eliminate or reduce the habitat 
necessary for the growth and reproduction of the Upper Coosa River DPS 
by increasing the sediment deposition to levels that would adversely 
affect the DPS's ability to complete its life cycle.
    (4) Actions that would significantly increase eutrophication (the 
addition of excessive nutrients that are typically limited in aquatic 
environments, such as nitrogen and phosphorus that cause phytoplankton 
to proliferate). Such activities could include, but are not limited to, 
release of excessive nutrients into the surface water or connected 
groundwater at a point source or by dispersed release (non-point 
source). These activities could result in excessive nutrients and algae 
filling streams and reducing habitat, degrading water quality from 
excessive nutrients

[[Page 13061]]

and algae decay, and decreasing oxygen levels below the tolerances of 
the DPS.
    (5) Actions that would significantly alter channel morphology or 
geometry, or decrease connectivity. Such activities could include, but 
are not limited to, channelization, impoundment, road and bridge 
construction, mining, dredging, and destruction of riparian vegetation. 
These activities may lead to changes in water flows and levels that 
would degrade or eliminate the Upper Coosa River DPS and its habitats. 
These actions could also lead to increased sedimentation and 
degradation in water quality to levels beyond the tolerances of the 
DPS.
    (6) Actions that result in the introduction, spread, or 
augmentation of nonnative aquatic species in occupied stream segments, 
or in stream segments that are hydrologically connected to occupied 
stream segments, or introduction of other species that compete with or 
prey on the Upper Coosa River DPS. Possible actions could include, but 
are not limited to, stocking of nonnative fishes and crayfishes, or 
other related actions. These activities could introduce parasites or 
disease; result in direct predation or direct competition; or affect 
the growth, reproduction, and survival of the DPS.

Exemptions

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

    Section 4(a)(3)(B)(i) of the Act (16 U.S.C. 1533(a)(3)(B)(i)) 
provides that the Secretary shall not designate as critical habitat any 
lands or other geographical areas owned or controlled by the Department 
of Defense (DoD), or designated for its use, that are subject to an 
integrated natural resources management plan (INRMP) prepared under 
section 101 of the Sikes Act Improvement Act of 1997 (16 U.S.C. 670a), 
if the Secretary determines in writing that such plan provides a 
benefit to the species for which critical habitat is proposed for 
designation. There are no DoD lands within this final critical habitat 
designation.

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

    Section 4(b)(2) of the Act states that the Secretary shall 
designate and make revisions to critical habitat on the basis of the 
best available scientific data after taking into consideration the 
economic impact, national security impact, and any other relevant 
impact of specifying any particular area as critical habitat. The 
Secretary may exclude an area from critical habitat based on economic 
impacts, impacts on national security, or any other relevant impacts. 
Exclusion decisions are governed by the regulations at 50 CFR 424.19 
and the Policy Regarding Implementation of Section 4(b)(2) of the 
Endangered Species Act, 81 FR 7226 (Feb. 11, 2016) (2016 Policy) both 
of which were developed jointly with the National Marine Fisheries 
Service (NMFS). We also refer to a 2008 Department of the Interior 
Solicitor's opinion entitled ``The Secretary's Authority to Exclude 
Areas from a Critical Habitat Designation under Section 4(b)(2) of the 
Endangered Species Act'' (M-37016). We explain each decision to exclude 
areas, as well as decisions not to exclude, to demonstrate that the 
decision is reasonable.
    In considering whether to exclude a particular area from the 
designation, we identify the benefits of including the area in the 
designation, identify the benefits of excluding the area from the 
designation, and evaluate whether the benefits of exclusion outweigh 
the benefits of inclusion. If the analysis indicates that the benefits 
of exclusion outweigh the benefits of inclusion, the Secretary may 
exercise discretion to exclude the area only if such exclusion would 
not result in the extinction of the species. The Secretary may exclude 
any particular area if she determines that the benefits of such 
exclusion outweigh the benefits of including such area as part of the 
critical habitat, unless she determines, based on the best scientific 
data available, that the failure to designate such area as critical 
habitat will result in the extinction of the species. In making the 
determination to exclude a particular area, the statute on its face, as 
well as the legislative history, are clear that the Secretary has broad 
discretion regarding which factor(s) to use and how much weight to give 
to any factor. In this final rule, we are not excluding any areas from 
the critical habitat designation.

Exclusions Based on Economic Impacts

    Section 4(b)(2) of the Act and its implementing regulations require 
that we consider the economic impact that may result from a designation 
of critical habitat. In order to consider economic impacts, we prepared 
an incremental effects memorandum (IEM) and screening analysis which, 
together with our narrative and interpretation of effects, we consider 
our economic analysis of the critical habitat designation and related 
factors (IEc 2020, entire). The analysis, dated June 23, 2020, was made 
available for public review from November 19, 2020, through January 19, 
2021 (85 FR 74050). The economic analysis addressed probable economic 
impacts of critical habitat designation for the Upper Coosa River DPS 
of frecklebelly madtom. Following the close of the comment period, we 
reviewed and evaluated all information submitted during the comment 
period that may pertain to our consideration of the probable 
incremental economic impacts of this critical habitat designation. 
Additional information relevant to the probable incremental economic 
impacts of critical habitat designation for the Upper Coosa River DPS 
of frecklebelly madtom is summarized below and available in the 
screening analysis for the DPS (IEc 2020, entire), available at https://www.regulations.gov.
    Executive Orders (E.O.s) 12866 and 13563 direct Federal agencies to 
assess the costs and benefits of available regulatory alternatives in 
quantitative (to the extent feasible) and qualitative terms. Consistent 
with the E.O. regulatory analysis requirements, our effects analysis 
under the Act may take into consideration impacts to both directly and 
indirectly affected entities, where practicable and reasonable. If 
sufficient data are available, we assess to the extent practicable the 
probable impacts to both directly and indirectly affected entities. As 
part of our screening analysis, we considered the types of economic 
activities that are likely to occur within the areas likely affected by 
the critical habitat designation. In our evaluation of the probable 
incremental economic impacts that may result from the designation of 
critical habitat for the Upper Coosa River DPS, first we identified, in 
the IEM dated June 23, 2020, probable incremental economic impacts 
associated with the following categories of activities: (1) Federal 
lands management (U.S. Forest Service and U.S. Army Corps of 
Engineers); (2) agriculture; (3) development; (4) roadway and bridgeway 
construction; (5) dredging, dams, and diversions; (6) flood control and 
hydropower; (7) wastewater and chemical discharge; (8) pesticide use; 
(9) recreation; (10) conservation and restoration; and (11) 
transportation and utilities. We considered each industry or category 
individually. Additionally, we considered whether these activities have 
any Federal involvement. Critical habitat designation generally will 
not affect activities that do not have any Federal involvement; under 
the Act, designation of critical habitat only affects activities 
conducted, funded, permitted, or authorized by Federal agencies. In 
areas where individuals from the Upper Coosa River DPS are found, 
Federal agencies are required to

[[Page 13062]]

ensure that their actions are not likely to jeopardize the continued 
existence of the DPS under section 7 consultation procedures. With this 
critical habitat designation, consultations to avoid the destruction or 
adverse modification of critical habitat will be incorporated into the 
existing consultation process.
    In our IEM, we attempted to clarify the distinction between the 
effects that will result from the species being listed and those 
attributable to the critical habitat designation (i.e., difference 
between the jeopardy and adverse modification standards) for the Upper 
Coosa River DPS's critical habitat. Because the designation of critical 
habitat for the Upper Coosa River DPS is being finalized concurrently 
with the listing, it has been our experience that it is more difficult 
to discern which conservation efforts are attributable to the species 
being listed and those which will result solely from the designation of 
critical habitat. However, the following specific circumstances in this 
case help to inform our evaluation: (1) The essential physical or 
biological features identified for critical habitat are the same 
features essential for the life requisites of the species, and (2) any 
actions that would result in sufficient harm or harassment to 
constitute jeopardy to the Upper Coosa River DPS would also likely 
adversely affect the essential physical or biological features of 
critical habitat. The IEM outlines our rationale concerning this 
limited distinction between baseline conservation efforts and 
incremental impacts of the designation of critical habitat for this 
species. This evaluation of the incremental effects has been used as 
the basis to evaluate the probable incremental economic impacts of this 
designation of critical habitat.
    The final critical habitat designation for the Upper Coosa River 
DPS totals approximately 134 river miles (mi) (216 river kilometers 
(km)) in two occupied units in Georgia and Tennessee. In these areas, 
any actions that may affect the species will also affect critical 
habitat because all designated habitat is occupied. Thus, it is 
unlikely that any additional conservation efforts will be recommended 
to address the adverse modification standard over and above those 
recommended as necessary to avoid jeopardizing the continued existence 
of the Upper Coosa River DPS. Therefore, the only additional costs that 
are expected in all of the critical habitat designation are 
administrative costs. These costs are due to additional consultation 
analysis requiring time and resources by both the Federal action agency 
and the Service. However, these costs are not expected to reach the 
threshold of ``significant'' under E.O. 12866. We anticipate a maximum 
of 10 section 7 consultations annually at a total incremental cost of 
less than $11,000 per year.
    In our November 19, 2020 proposed rule (85 FR 74050), we solicited 
data and comments from the public on the draft economic analysis, as 
well as all aspects of the proposed rule and our required 
determinations. We did not receive any additional information on 
economic impacts during that public comment period to determine whether 
any specific areas should be excluded from this final critical habitat 
designation under the authority of section 4(b)(2) of the Act and our 
implementing regulations at 50 CFR 424.19.

Exclusions Based on Impacts on National Security and Homeland Security

    In preparing this rule, we have determined that the lands within 
the designation of critical habitat for the Upper Coosa River DPS are 
not owned or managed by the DoD or the Department of Homeland Security, 
and, therefore, we anticipate no impact on national security or 
homeland security. We did not receive any additional information during 
the November 19, 2020, proposed rule's public comment period on the 
impacts of the designation on national security or homeland security 
that would support excluding any specific areas from this final 
critical habitat designation under authority of section 4(b)(2) of the 
Act and our implementing regulations at 50 CFR 424.19, as well as the 
2016 Policy.

Exclusions Based on Other Relevant Impacts

    Under section 4(b)(2) of the Act, we consider any other relevant 
impacts, in addition to economic impacts and impacts on national 
security as discussed above. To identify other relevant impacts that 
may affect the exclusion analysis, we consider a number of factors, 
including whether there are permitted conservation plans covering the 
species in the area such as HCPs, safe harbor agreements (SHAs), or 
candidate conservation agreements with assurances (CCAAs), or whether 
there are non-permitted conservation agreements and partnerships that 
would be encouraged by designation of, or exclusion from, critical 
habitat. In addition, we look at whether Tribal conservation plans or 
partnerships, Tribal resources, or government-to-government 
relationships of the United States with Tribal entities may be affected 
by the designation. We also consider any State, local, social, or other 
impacts that might occur because of the designation.
    In preparing this rule, we have determined that there are currently 
no HCPs or other management plans for the Upper Coosa River DPS, and 
the final designation does not include any Tribal lands or trust 
resources. Therefore, we anticipate no impact on Tribal lands, 
partnerships, or HCPs from this final critical habitat designation. We 
did not receive any additional information during the public comment 
period for the proposed rule regarding other relevant impacts to 
support excluding any specific areas from the final critical habitat 
designation under authority of section 4(b)(2) and our implementing 
regulations at 50 CFR 424.19, as well as the 2016 Policy.
    As discussed above, we did not identify impacts on national 
security, economic, or any other relevant impacts as a result of this 
designation. Accordingly, the Secretary is not exercising her 
discretion to exclude any areas from the critical habitat designation.

Required Determinations

Regulatory Planning and Review (Executive Orders 12866 and 13563)

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

Regulatory Flexibility Act (5 U.S.C. 601 et seq.)

    Under the Regulatory Flexibility Act (RFA; 5 U.S.C. 601 et seq.), 
as amended by the Small Business Regulatory Enforcement Fairness Act of 
1996

[[Page 13063]]

(SBREFA; 5 U.S.C. 801 et seq.), whenever an agency is required to 
publish a notice of rulemaking for any proposed or final rule, it must 
prepare and make available for public comment a regulatory flexibility 
analysis that describes the effects of the rule on small entities 
(i.e., small businesses, small organizations, and small government 
jurisdictions). However, no regulatory flexibility analysis is required 
if the head of the agency certifies the rule will not have a 
significant economic impact on a substantial number of small entities. 
The SBREFA amended the RFA to require Federal agencies to provide a 
certification statement of the factual basis for certifying that the 
rule will not have a significant economic impact on a substantial 
number of small entities.
    According to the Small Business Administration, small entities 
include small organizations such as independent nonprofit 
organizations; small governmental jurisdictions, including school 
boards and city and town governments that serve fewer than 50,000 
residents; and small businesses (13 CFR 121.201). Small businesses 
include manufacturing and mining concerns with fewer than 500 
employees, wholesale trade entities with fewer than 100 employees, 
retail and service businesses with less than $5 million in annual 
sales, general and heavy construction businesses with less than $27.5 
million in annual business, special trade contractors doing less than 
$11.5 million in annual business, and agricultural businesses with 
annual sales less than $750,000. To determine whether potential 
economic impacts to these small entities are significant, we considered 
the types of activities that might trigger regulatory impacts under 
this designation as well as types of project modifications that may 
result. In general, the term ``significant economic impact'' is meant 
to apply to a typical small business firm's business operations.
    Under the RFA, as amended, and following recent court decisions, 
Federal agencies are required to evaluate the potential incremental 
impacts of rulemaking on those entities directly regulated by the 
rulemaking itself; in other words, the RFA does not require agencies to 
evaluate the potential impacts to indirectly regulated entities. The 
regulatory mechanism through which critical habitat protections are 
realized is section 7 of the Act, which requires Federal agencies, in 
consultation with the Service, to ensure that any action authorized, 
funded, or carried out by the agency is not likely to destroy or 
adversely modify critical habitat. Therefore, under section 7, only 
Federal action agencies are directly subject to the specific regulatory 
requirement (avoiding destruction and adverse modification) imposed by 
critical habitat designation. Consequently, it is our position that 
only Federal action agencies will be directly regulated by this 
designation. There is no requirement under the RFA to evaluate the 
potential impacts to entities not directly regulated. Moreover, Federal 
agencies are not small entities. Therefore, because no small entities 
will be directly regulated by this rulemaking, the Service certifies 
that this final critical habitat designation will not have a 
significant economic impact on a substantial number of small entities.
    During the development of this final rule, we reviewed and 
evaluated all information submitted during the comment period on the 
November 19, 2020, proposed rule (85 FR 74050) that may pertain to our 
consideration of the probable incremental economic impacts of this 
critical habitat designation. Based on this information, we affirm our 
certification that this critical habitat designation will not have a 
significant economic impact on a substantial number of small entities, 
and a regulatory flexibility analysis is not required.

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

    Executive Order 13211 (Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use) requires 
agencies to prepare Statements of Energy Effects when undertaking 
certain actions. The Office of Management and Budget (OMB) provides 
guidance for implementing this Executive Order, outlining nine outcomes 
(criteria) that may constitute ``a significant adverse effect'' when 
compared with the regulatory action under consideration. The economic 
analysis finds that none of these criteria are relevant to this 
analysis, and therefore, we did not find that this critical habitat 
designation will significantly affect energy supplies, distribution, or 
use. Therefore, this action is not a significant energy action, and no 
Statement of Energy Effects is required.

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

    In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501 
et seq.), we make the following finding:
    (1) This rule will not produce a Federal mandate. In general, a 
Federal mandate is a provision in legislation, statute, or regulation 
that would impose an enforceable duty upon State, local, or Tribal 
governments, or the private sector, and includes both ``Federal 
intergovernmental mandates'' and ``Federal private sector mandates.'' 
These terms are defined in 2 U.S.C. 658(5)-(7). ``Federal 
intergovernmental mandate'' includes a regulation that ``would impose 
an enforceable duty upon State, local, or Tribal governments'' with two 
exceptions. It excludes ``a condition of Federal assistance.'' It also 
excludes ``a duty arising from participation in a voluntary Federal 
program,'' unless the regulation ``relates to a then-existing Federal 
program under which $500,000,000 or more is provided annually to State, 
local, and Tribal governments under entitlement authority,'' if the 
provision would ``increase the stringency of conditions of assistance'' 
or ``place caps upon, or otherwise decrease, the Federal Government's 
responsibility to provide funding,'' and the State, local, or Tribal 
governments ``lack authority'' to adjust accordingly. At the time of 
enactment, these entitlement programs were: Medicaid; Aid to Families 
with Dependent Children work programs; Child Nutrition; Food Stamps; 
Social Services Block Grants; Vocational Rehabilitation State Grants; 
Foster Care, Adoption Assistance, and Independent Living; Family 
Support Welfare Services; and Child Support Enforcement. ``Federal 
private sector mandate'' includes a regulation that ``would impose an 
enforceable duty upon the private sector, except (i) a condition of 
Federal assistance or (ii) a duty arising from participation in a 
voluntary Federal program.''
    The designation of critical habitat does not impose a legally 
binding duty on non-Federal Government entities or private parties. 
Under the Act, the only regulatory effect is that Federal agencies must 
ensure that their actions do not destroy or adversely modify critical 
habitat under section 7. While non-Federal entities that receive 
Federal funding, assistance, or permits, or that otherwise require 
approval or authorization from a Federal agency for an action, may be 
indirectly impacted by the designation of critical habitat, the legally 
binding duty to avoid destruction or adverse modification of critical 
habitat rests squarely on the Federal agency. Furthermore, to the 
extent that non-Federal entities are indirectly impacted because they 
receive Federal assistance or participate in a voluntary Federal aid 
program, the Unfunded Mandates Reform Act would not apply, nor would 
critical habitat shift the costs of the large entitlement

[[Page 13064]]

programs listed above onto State governments.
    (2) We do not believe that this rule will significantly or uniquely 
affect small governments, because it will not produce a Federal mandate 
of $100 million or greater in any year, that is, it is not a 
``significant regulatory action'' under the Unfunded Mandates Reform 
Act. The designation of critical habitat imposes no obligations on 
State or local governments and, as such, a Small Government Agency Plan 
is not required.

Takings--Executive Order 12630

    In accordance with E.O. 12630 (Government Actions and Interference 
with Constitutionally Protected Private Property Rights), we have 
analyzed the potential takings implications of designating critical 
habitat for Upper Coosa River DPS in a takings implications assessment. 
The Act does not authorize us to regulate private actions on private 
lands or confiscate private property as a result of critical habitat 
designation. Designation of critical habitat does not affect land 
ownership, or establish any closures, or restrictions on use of or 
access to the designated areas. Furthermore, the designation of 
critical habitat does not affect landowner actions that do not require 
Federal funding or permits, nor does it preclude development of habitat 
conservation programs or issuance of incidental take permits to permit 
actions that do require Federal funding or permits to go forward. 
However, Federal agencies are prohibited from carrying out, funding, or 
authorizing actions that would destroy or adversely modify critical 
habitat. A takings implications assessment has been completed for the 
designation of critical habitat for Upper Coosa River DPS, and it 
concludes that this designation of critical habitat does not pose 
significant takings implications for lands within or affected by the 
designation.

Federalism--Executive Order 13132

    In accordance with E.O. 13132 (Federalism), this rule does not have 
significant Federalism effects. A federalism summary impact statement 
is not required. In keeping with Department of the Interior and 
Department of Commerce policy, we requested information from, and 
coordinated development of this critical habitat designation with, 
appropriate State resource agencies. From a federalism perspective, the 
designation of critical habitat directly affects only the 
responsibilities of Federal agencies. The Act imposes no other duties 
with respect to critical habitat, either for States and local 
governments, or for anyone else. As a result, the rule does not have 
substantial direct effects either on the States, or on the relationship 
between the national government and the States, or on the distribution 
of powers and responsibilities among the various levels of government. 
The designation may have some benefit to these governments because the 
areas that contain the features essential to the conservation of the 
species are more clearly defined, and the physical or biological 
features of the habitat essential to the conservation of the species 
are specifically identified. This information does not alter where and 
what federally sponsored activities may occur. However, it may assist 
State and local governments in long-range planning because they no 
longer have to wait for case-by-case section 7 consultations to occur.
    Where State and local governments require approval or authorization 
from a Federal agency for actions that may affect critical habitat, 
consultation under section 7(a)(2) of the Act will be required. While 
non-Federal entities that receive Federal funding, assistance, or 
permits, or that otherwise require approval or authorization from a 
Federal agency for an action, may be indirectly impacted by the 
designation of critical habitat, the legally binding duty to avoid 
destruction or adverse modification of critical habitat rests squarely 
on the Federal agency.

Civil Justice Reform--Executive Order 12988

    In accordance with Executive Order 12988 (Civil Justice Reform), 
the Office of the Solicitor has determined that the rule will not 
unduly burden the judicial system and that it meets the requirements of 
sections 3(a) and 3(b)(2) of the Order. We are designating critical 
habitat in accordance with the provisions of the Act. To assist the 
public in understanding the habitat needs of the species, this final 
rule identifies the physical or biological features essential to the 
conservation of the species. The designated areas of critical habitat 
are presented on maps, and the rule provides several options for the 
interested public to obtain more detailed location information, if 
desired.

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

    This rule does not contain information collection requirements, and 
a submission to the Office of Management and Budget (OMB) under the 
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.) is not 
required. We may not conduct or sponsor, and you are not required to 
respond to, a collection of information unless it displays a currently 
valid OMB control number.

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

    It is our position that we do not need to prepare environmental 
analyses pursuant to the National Environmental Policy Act (NEPA; 42 
U.S.C. 4321 et seq.) in connection with regulations adopted pursuant to 
section 4(a) of the Act. We published a notice outlining our reasons 
for this determination in the Federal Register on October 25, 1983 (48 
FR 49244). This position was upheld by the Court of Appeals for the 
Ninth Circuit (Douglas County v. Babbitt, 48 F.3d 1495 (9th Cir. 
1995)).

Government-to-Government Relationship With Tribes

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

References Cited

    A complete list of references cited in this rulemaking is available 
on the internet at https://www.regulations.gov and upon request from 
the Alabama Ecological Services Field Office (see FOR FURTHER 
INFORMATION CONTACT).

Authors

    The primary authors of this final rule are the staff members of the 
Fish and

[[Page 13065]]

Wildlife Service's Species Assessment Team and the Alabama Ecological 
Services Field Office.

List of Subjects in 50 CFR Part 17

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

Regulation Promulgation

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

PART 17--ENDANGERED AND THREATENED WILDLIFE AND PLANTS

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

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


0
2. Amend Sec.  17.11, in paragraph (h), by adding an entry for 
``Madtom, frecklebelly [Upper Coosa River DPS]'' to the List of 
Endangered and Threatened Wildlife in alphabetical order under FISHES 
to read as follows:


Sec.  17.11  Endangered and threatened wildlife.

* * * * *
    (h) * * *

----------------------------------------------------------------------------------------------------------------
                                                                                           Listing citations and
          Common name              Scientific name      Where listed          Status         applicable rules
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------
                                                     FISHES
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
Madtom, frecklebelly [Upper      Noturus munitus...  Upper Coosa River   T                88 FR [Insert Federal
 Coosa River DPS].                                    Basin (GA, TN).                      Register page where
                                                                                           the document begins];
                                                                                           3/2/2023; 50 CFR
                                                                                           17.44(ff); \4d\ 50
                                                                                           CFR 17.95(e).\CH\
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------


0
3. Amend Sec.  17.44 by adding paragraph (ff) to read as follows:


Sec.  17.44  Special rules--fishes.

* * * * *
    (ff) Upper Coosa River DPS of the frecklebelly madtom (Noturus 
munitus).
    (1) Prohibitions. The following prohibitions that apply to 
endangered wildlife also apply to the Upper Coosa River DPS. Except as 
provided under paragraph (ff)(2) of this section and Sec. Sec.  17.4 
and 17.5, it is unlawful for any person subject to the jurisdiction of 
the United States to commit, to attempt to commit, to solicit another 
to commit, or cause to be committed, any of the following acts in 
regard to this DPS:
    (i) Import or export, as set forth at Sec.  17.21(b) for endangered 
wildlife.
    (ii) Take, as set forth at Sec.  17.21(c)(1) for endangered 
wildlife.
    (iii) Possession and other acts with unlawfully taken specimens, as 
set forth at Sec.  17.21(d)(1) for endangered wildlife.
    (iv) Interstate or foreign commerce in the course of a commercial 
activity, as set forth at Sec.  17.21(e) for endangered wildlife.
    (v) Sale or offer for sale, as set forth at Sec.  17.21(f) for 
endangered wildlife.
    (2) Exceptions from prohibitions. In regard to this DPS, you may:
    (i) Conduct activities as authorized by a permit under Sec.  17.32.
    (ii) Take, as set forth at Sec.  17.21(c)(2) through (c)(4) for 
endangered wildlife.
    (iii) Take, as set forth at Sec.  17.31(b).
    (iv) Take incidental to an otherwise lawful activity caused by:
    (A) Channel restoration projects that create natural, physically 
stable, ecologically functioning streams. These projects can be 
accomplished using a variety of methods, but the desired outcome is a 
natural channel with geomorphically stable stream channels that 
maintain the appropriate lateral dimensions, longitudinal profiles, and 
sinuosity patterns over time without an aggrading or degrading bed 
elevation and include stable riffle-run-pool complexes that consist of 
silt-free gravel, coarse sand, cobble, boulders, woody structure, and 
river weed (Podostemum spp.).
    (B) Streambank stabilization projects that use bioengineering 
methods to replace pre-existing, bare, eroding stream banks with 
natively vegetated, stable stream banks, thereby reducing bank erosion 
and instream sedimentation and improving habitat conditions for the 
DPS. Stream banks may be stabilized using native live stakes (live, 
vegetative cuttings inserted or tamped into the ground in a manner that 
allows the stake to take root and grow), native live fascines (live 
branch cuttings, usually willows, bound together into long, cigar-
shaped bundles), or native brush layering (cuttings or branches of 
easily rooted tree species layered between successive lifts of soil 
fill). Stream banks must not be stabilized solely through the use of 
quarried rock (rip-rap) or the use of rock baskets or gabion 
structures.
    (C) Projects carried out in the DPS's range under the Working Lands 
for Wildlife program of the Natural Resources Conservation Service, 
U.S. Department of Agriculture, or similar projects conducted by the 
U.S. Fish and Wildlife Service's Partners for Fish and Wildlife Program 
or the Environmental Protection Agency's 319 Grant Program, that are 
implemented with a primary objective of improving environmental 
conditions to support the native, aquatic biodiversity of flowing water 
habitats.
    (D) Silviculture practices and forest management activities that 
implement State-approved best management practices to protect water and 
sediment quality and stream and riparian habitat.
    (v) Possess and engage in other acts with unlawfully taken 
wildlife, as set forth at Sec.  17.21(d)(2) for endangered wildlife.

0
4. Amend Sec.  17.95, in paragraph (e), by adding an entry for 
``Frecklebelly Madtom [Upper Coosa River DPS] (Noturus munitus)'' after 
the entry for ``Chucky Madtom (Noturus crypticus)'', to read as 
follows:


Sec.  17.95  Critical habitat--fish and wildlife.

* * * * *
    (e) Fishes.
* * * * *
Frecklebelly Madtom [Upper Coosa River DPS] (Noturus munitus)
    (1) Critical habitat units are depicted for Bradley and Polk 
Counties, Tennessee, and Cherokee, Dawson,

[[Page 13066]]

Forsyth, Lumpkin, Murray, and Whitfield Counties, Georgia, on the maps 
in this entry.
    (2) Within these areas, the physical or biological features 
essential to the conservation of the Upper Coosa River distinct 
population segment (DPS) consist of the following components:
    (i) Geomorphically stable, medium to large streams with:
    (A) Stable stream channels that maintain lateral dimensions, 
longitudinal profiles, and sinuosity patterns over time without an 
aggrading or degrading bed elevation; and
    (B) Banks with intact riparian cover to maintain stream morphology 
and reduce erosion and sediment inputs.
    (ii) Connected instream habitats that:
    (A) Include stable riffle-run-pool complexes;
    (B) Consist of silt-free gravel, coarse sand, cobble, boulders, 
woody structure, and river weed (Podostemum spp.); and
    (C) Have abundant cobble, boulders, woody structure, or other 
suitable cover used for nesting.
    (iii) Adequate flows, or a hydrologic flow regime (which includes 
the severity, frequency, duration, and seasonality of discharge over 
time), necessary to maintain instream habitats and to maintain 
connectivity of streams with the floodplain, allowing the exchange of 
nutrients and sediment for maintenance of the fish's habitat, food 
availability, and ample oxygenated flow for spawning and nesting 
habitat.
    (iv) Appropriate water and sediment quality (including, but not 
limited to, conductivity; hardness; turbidity; temperature; pH; 
ammonia; heavy metals; pesticides; animal waste products; and nitrogen, 
phosphorus, and potassium fertilizers) necessary to sustain natural 
physiological processes for normal behavior, growth, and viability of 
all life stages.
    (v) Diversity and availability of aquatic macroinvertebrate prey 
items, which include larval midges, mayflies, caddisflies, dragonflies, 
and beetles.
    (3) Critical habitat does not include humanmade structures (such as 
buildings, aqueducts, runways, roads, and other paved areas) and the 
land on which they are located existing within the legal boundaries on 
April 3, 2023.
    (4) Data layers defining map units were selected from the U.S. 
Geological Survey National Hydrological Dataset--High Resolution 
(1:24,000 scale; Geographic Coordinate System North American 1983 
coordinates) using mapping software. The selected river reaches were 
informed by species occurrence data. All layers use Universal 
Transverse Mercator (UTM) Zone 16N coordinates. We also used the 
mapping software to calculate the length of the units. The maps in this 
entry, as modified by any accompanying regulatory text, establish the 
boundaries of the critical habitat designation. The coordinates or plot 
points or both on which each map is based are available to the public 
at the Service's internet site at https://www.fws.gov/about/region/southeast, at https://www.regulations.gov at Docket No. FWS-R4-ES-2020-
0058, and at the field office responsible for this designation. You may 
obtain field office location information by contacting one of the 
Service regional offices, the addresses of which are listed at 50 CFR 
2.2.

    (5) Index map follows:

BILLING CODE 4333-15-P

[[Page 13067]]

Figure 1 to Frecklebelly Madtom [Upper Coosa River DPS] (Noturus 
munitus) paragraph (5)
[GRAPHIC] [TIFF OMITTED] TR02MR23.001

    (6) Unit 1: Conasauga River; Bradley and Polk Counties, Tennessee, 
and Murray and Whitfield Counties, Georgia.
    (i) Unit 1 consists of 51.5 river miles (83 kilometers) of the 
Conasauga River beginning at the mouth of Coahulla Creek in Murray and 
Whitfield Counties, Georgia, and continuing upstream through Bradley 
County, Tennessee, to the mouth of Graham Branch in Polk County, 
Tennessee. Unit 1 does not extend beyond the bankfull width of the 
river.
    (ii) Map of Unit 1 follows:


[[Page 13068]]


Figure 2 to Frecklebelly Madtom [Upper Coosa River DPS] (Noturus 
munitus) paragraph (6)(ii)
[GRAPHIC] [TIFF OMITTED] TR02MR23.002

    (7) Unit 2: Etowah River, Cherokee, Dawson, Forsyth, and Lumpkin 
Counties, Georgia.
    (i) Unit 2 consists of 82.5 river miles (133 kilometers) of the 
Etowah River beginning at its confluence with Shoal Creek in Cherokee 
County, Georgia, and continuing upstream through Forsyth and Dawson 
Counties to approximately 0.5 miles upstream of the Jay Bridge Road 
crossing over the Etowah River in Lumpkin County, Georgia. Unit 2 does 
not extend beyond the bankfull width of the river.
    (ii) Map of Unit 2 follows:


[[Page 13069]]


Figure 3 to Frecklebelly Madtom [Upper Coosa River DPS] (Noturus 
munitus) paragraph (7)(ii)
[GRAPHIC] [TIFF OMITTED] TR02MR23.003


[[Page 13070]]


* * * * *

Wendi Weber,
Acting Director, U.S. Fish and Wildlife Service.
[FR Doc. 2023-03875 Filed 3-1-23; 8:45 am]
BILLING CODE 4333-15-C