# 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

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/fr%3A2023-03875

## Record

- **Collection:** Federal Register
- **Document type:** Rule
- **Published:** March 2, 2023
- **Citation:** 88 FR 13038

## Text

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.

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

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

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

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

ER02MR23.000

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

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,

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

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 (°C) (3.4 degrees Fahrenheit (°F)), minimum air temperature will increase by 1.8 °C (3.2 °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 °C (5 °F), minimum air temperature will increase by 2.7 °C (4.9 °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

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;

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

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 (F2)
Unknown *
Unknown *
Unknown *
Unknown *.

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.

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

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

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

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

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,

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

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.

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 Essen

[Text truncated at 120,000 characters. The full text is on the page linked above.]

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3A2023-03875. Public record. Not legal advice.