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93.101, 93.118, and 93.124). An MVEB they meet the criteria of the CAA. Dated: July 7, 2021. is defined as ‘‘that portion of the total Accordingly, this action merely Diana Esher, allowable emissions defined in the approves state law as meeting Federal Acting Regional Administrator, Region III. submitted or approved control strategy requirements and does not impose [FR Doc. 2021–14853 Filed 7–12–21; 8:45 am] implementation plan revision or additional requirements beyond those BILLING CODE 6560–50–P maintenance plan for a certain date for imposed by state law. For that reason, the purpose of meeting reasonable this proposed action: • Is not a ‘‘significant regulatory further progress milestones or DEPARTMENT OF THE INTERIOR demonstrating attainment or action’’ subject to review by the Office maintenance of the NAAQS, for any of Management and Budget under Fish and Wildlife Service criteria pollutant or its precursors, Executive Orders 12866 (58 FR 51735, allocated to highway and transit vehicle October 4, 1993) and 13563 (76 FR 3821, 50 CFR Part 17 use and emissions (40 CFR 93.101).’’ January 21, 2011); Under the conformity rule, LMP areas • Does not impose an information [Docket No. FWS–R4–ES–2020–0062; may demonstrate conformity without a collection burden under the provisions FF09E21000 FXES11110900000 212] regional emission analysis (40 CFR of the Paperwork Reduction Act (44 RIN 1018–BE55 93.109(e)). However, because LMP areas U.S.C. 3501 et seq.); are still maintenance areas, certain • Is certified as not having a Endangered and Threatened Wildlife aspects of transportation conformity significant economic impact on a and Plants; Designation of Critical determinations still will be required for substantial number of small entities Habitat for Pearl Darter transportation plans, programs, and under the Regulatory Flexibility Act (5 projects. Specifically, for such U.S.C. 601 et seq.); AGENCY: Fish and Wildlife Service, determination, RTPs, TIPs, and • Does not contain any unfunded Interior. transportation projects still will have to mandate or significantly or uniquely ACTION: Proposed rule. demonstrate that they are fiscally affect small governments, as described constrained (40 CFR 93.108), meet the in the Unfunded Mandates Reform Act SUMMARY: We, the U.S. Fish and criteria for consultation (40 CFR 93.105 of 1995 (Pub. L. 104–4); Wildlife Service (Service), propose to and 93.112) and transportation control • Does not have Federalism designate critical habitat for the pearl measure implementation in the implications as specified in Executive darter (Percina aurora) under the conformity rule provisions (40 CFR Order 13132 (64 FR 43255, August 10, Endangered Species Act of 1973 (Act), 93.113). Additionally, conformity 1999); as amended. In total, approximately 517 determinations for RTPs and TIPs must • Is not an economically significant river miles (832 river kilometers) in be determined no less frequently than regulatory action based on health or Clarke, Covington, Forrest, George, every four years, and conformity of plan safety risks subject to Executive Order Greene, Lauderdale, Jackson, Jones, and TIP amendments and transportation 13045 (62 FR 19885, April 23, 1997); Newton, Perry, Simpson, Stone, and projects is demonstrated in accordance • Is not a significant regulatory action Wayne Counties, Mississippi, fall with the timing requirements specified subject to Executive Order 13211 (66 FR within the boundaries of the proposed in 40 CFR 93.104. In addition, for 28355, May 22, 2001); critical habitat designation. If we projects to be approved, they must come • Is not subject to requirements of finalize this rule as proposed, it would from a currently conforming RTP and section 12(d) of the National extend the Act’s protections to this TIP (40 CFR 93.114 and 93.115). The Technology Transfer and Advancement species’ critical habitat. We also Greene County Area remains under the Act of 1995 (15 U.S.C. 272 note) because announce the availability of a draft obligation to meet the applicable application of those requirements would economic analysis of the proposed conformity requirements for the 1997 be inconsistent with the CAA; and designation. • ozone NAAQS. Does not provide EPA with the DATES: We will accept comments on the discretionary authority to address, as III. Proposed Action proposed rule or draft economic appropriate, disproportionate human analysis that are received or postmarked EPA’s review of PADEP’s February 25, health or environmental effects, using on or before September 13, 2021. 2020 submittal indicates that it meets all practicable and legally permissible Comments submitted electronically applicable CAA requirements, methods, under Executive Order 12898 using the Federal eRulemaking Portal specifically the requirements of section (59 FR 7629, February 16, 1994). (see ADDRESSES, below) must be In addition, this proposed 175A. EPA is proposing to approve the received by 11:59 p.m. Eastern Time on rulemaking, proposing approval of second maintenance plan for the Greene the closing date. We must receive Pennsylvania’s second maintenance County Area as a revision to the requests for public hearings, in writing, plan for the Greene County Area, does Pennsylvania SIP. EPA is soliciting at the address shown in FOR FURTHER not have tribal implications as specified public comments on the issues INFORMATION CONTACT by August 27, by Executive Order 13175 (65 FR 67249, discussed in this document. These 2021. comments will be considered before November 9, 2000), because the SIP is taking final action. not approved to apply in Indian country ADDRESSES: You may submit comments located in the State, and EPA notes that on the proposed rule or draft economic IV. Statutory and Executive Order it will not impose substantial direct analysis by one of the following Reviews costs on tribal governments or preempt methods: Under the CAA, the Administrator is tribal law. (1) Electronically: Go to the Federal required to approve a SIP submission eRulemaking Portal: http:// that complies with the provisions of the List of Subjects in 40 CFR Part 52 www.regulations.gov. In the Search box, CAA and applicable Federal regulations. Environmental protection, Air enter FWS–R4–ES–2020–0062, which is 42 U.S.C. 7410(k); 40 CFR 52.02(a). pollution control, Incorporation by the docket number for this rulemaking. Thus, in reviewing SIP submissions reference, Nitrogen dioxide, Ozone, Then, click on the Search button. On the EPA’s role is to approve state choices if Volatile organic compounds. resulting page, in the Search panel on

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the left side of the screen, under the of the Interior (Secretary) to designate habitat’’ under section 4 of the Act (16 Document Type heading, check the critical habitat to the maximum extent U.S.C. 1531 et seq.), including Proposed Rule box to locate this prudent and determinable for species information to inform the following document. You may submit a comment listed as endangered or threatened factors that the regulations identify as by clicking on ‘‘Comment Now!’’ species. Section 3(5)(A) of the Act reasons why designation of critical (2) By hard copy: Submit by U.S. mail defines critical habitat as (i) the specific habitat may not be prudent: to: Public Comments Processing, Attn: areas within the geographical area (a) The species is threatened by taking FWS–R4–ES–2020–0062, U.S. Fish and occupied by the species, at the time it or other human activity and Wildlife Service, MS: PRB/3W, 5275 is listed, on which are found those identification of critical habitat can be Leesburg Pike, Falls Church, VA 22041– physical or biological features (I) expected to increase the degree of such 3803. essential to the conservation of the threat to the species; We request that you send comments species and (II) which may require (b) The present or threatened only by the methods described above. special management considerations or destruction, modification, or We will post all comments on http:// protection; and (ii) specific areas curtailment of a species’ habitat or range www.regulations.gov. This generally outside the geographical area occupied is not a threat to the species, or threats means that we will post any personal by the species at the time it is listed, to the species’ habitat stem solely from information you provide us (see upon a determination by the Secretary causes that cannot be addressed through Information Requested, below, for more that such areas are essential for the management actions resulting from information). conservation of the species. Section consultations under section 7(a)(2) of Document availability: The draft 4(b)(2) of the Act states that the the Act; economic analysis is available at http:// Secretary must make the designation on (c) Areas within the jurisdiction of the www.fws.gov/mississippiES/, at http:// the basis of the best available scientific United States provide no more than www.regulations.gov under Docket No. data after taking into consideration the negligible conservation value, if any, for FWS–R4–ES–2020–0062. economic impact, the impact on a species occurring primarily outside The coordinates or plot points or both national security, and any other relevant from which the maps are generated are the jurisdiction of the United States; or impacts of specifying any particular area (d) No areas meet the definition of included in the administrative record as critical habitat. for this critical habitat designation and critical habitat. Economic impacts. In accordance (2) Specific information on: are available at http://www.fws.gov/ with section 4(b)(2) of the Act, we (a) The amount and distribution of the mississippiES/, at http:// prepared an analysis of the economic pearl darter’s habitat; www.regulations.gov under Docket No. impacts of the proposed critical habitat (b) What areas that were occupied at FWS–R4–ES–2020–0062. Any designation. In this document, we the time of listing and that contain the additional tools or supporting announce the availability of the draft physical or biological features essential information that we may develop for economic analysis for public review and to the conservation of the species this critical habitat designation will also comment. be available at the Service website and Peer review. In accordance with our should be included in the designation Field Office set out above, and may also joint policy on peer review published in and why; be included in the preamble and/or at the Federal Register on July 1, 1994 (59 (c) Any additional areas occurring http://www.regulations.gov. FR 34270), and our August 22, 2016, within the range of the species, i.e., FOR FURTHER INFORMATION CONTACT: memorandum updating and clarifying rivers and streams within the Pearl Stephen Ricks, Field Supervisor, U.S. the role of peer review of listing actions River and Pascagoula River drainages in Fish and Wildlife Service, Mississippi under the Act, we will seek peer review Mississippi and Louisiana, that should Ecological Services Field Office, 6578 of this proposed rule. We are seeking be included in the designation because Dogwood View Parkway, Jackson, MS comments from independent specialists they (1) are occupied at the time of 39213; telephone 601–321–1122. to ensure that our critical habitat listing and contain the physical or Persons who use a telecommunications proposal is based on scientifically biological features that are essential to device for the deaf (TDD) may call the sound data and analyses. We have the conservation of the species and that Federal Relay Service at 800–877–8339. invited these peer reviewers to comment may require special management SUPPLEMENTARY INFORMATION: on our specific assumptions and considerations, or (2) are unoccupied at conclusions in this critical habitat the time of listing and are essential for Executive Summary proposal during the public comment the conservation of the species; Why we need to publish a rule. To the period for this proposed rule (see DATES, (d) Special management maximum extent prudent and above). considerations or protection that may be determinable, we must designate critical needed in occupied critical habitat areas habitat for any species that we Information Requested we are proposing, including managing determine to be an endangered or We intend that any final action for the potential effects of climate threatened species under the Act. resulting from this proposed rule will be change; and Designations of critical habitat can only based on the best scientific and (e) What areas not occupied at the be completed by issuing a rule. commercial data available and be as time of listing are essential for the What this document does. This accurate and as effective as possible. conservation of the species. We document proposes to designate critical Therefore, we request comments or particularly seek comments: habitat for the pearl darter in the information from other concerned (i) Regarding whether occupied areas Pascagoula River and Pearl River basins government agencies, Native American are inadequate for the conservation of in Mississippi. We listed the pearl tribes, the scientific community, the species; darter as a threatened species under the industry, or any other interested party (ii) Providing specific information Act on September 20, 2017 (82 FR concerning this proposed rule. We regarding whether or not unoccupied 43885). particularly seek comments concerning: areas would, with reasonable certainty, The basis for our action. Section (1) The reasons why we should or contribute to the conservation of the 4(a)(3) of the Act requires the Secretary should not designate habitat as ‘‘critical species and contain at least one physical

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or biological feature essential to the may request at the top of your document accordance with the Act, on which are conservation of the species; that we withhold this information from found those physical or biological (iii) Explaining whether or not public review. However, we cannot features unoccupied areas fall within the guarantee that we will be able to do so. (a) Essential to the conservation of the definition of ‘‘habitat’’ at 50 CFR 424.02 We will post all hardcopy submissions species, and and why. on http://www.regulations.gov. (b) Which may require special (3) Land use designations and current Comments and materials we receive, management considerations or or planned activities in the subject areas as well as supporting documentation we protection; and and their possible impacts on proposed used in preparing this proposed rule, (2) Specific areas outside the critical habitat. will be available for public inspection geographical area occupied by the (4) Information on the projected and on http://www.regulations.gov. species at the time it is listed, upon a reasonably likely impacts of climate Because we will consider all determination that such areas are change on the pearl darter and proposed comments and information we receive essential for the conservation of the critical habitat. during the comment period, our final species. (5) Any probable economic, national critical habitat designation may differ Our regulations at 50 CFR 424.02 security, or other relevant impacts of from this proposal. Based on the new define the geographical area occupied designating any area that may be information we receive (and any by the species as an area that may included in the final designation, and comments on that new information), we generally be delineated around species’ the benefits of including or excluding may conclude that some additional occurrences, as determined by the areas that may be impacted. areas meet the definition of critical Secretary (i.e., range). Such areas may (6) Information on the extent to which habitat, and some areas proposed as include those areas used throughout all the description of probable economic critical habitat may not meet the or part of the species’ life cycle, even if impacts in the draft economic analysis definition of critical habitat. In addition, not used on a regular basis (e.g., is a reasonable estimate of those we may find that the benefit of migratory corridors, seasonal habitats, impacts. excluding some areas outweigh the and habitats used periodically, but not (7) Whether any specific areas we are benefits of including those areas solely by vagrant individuals). proposing for critical habitat pursuant to section 4(b)(2) of the Act, Additionally, our regulations at 50 CFR designation should be considered for and we may exclude them from the final 424.02 define the word ‘‘habitat’’ as exclusion under section 4(b)(2) of the designation unless we determine that follows: ‘‘For the purposes of Act, and whether the benefits of exclusion would result in extinction of designating critical habitat only, habitat potentially excluding any specific area the pearl darter. is the abiotic and biotic setting that outweigh the benefits of including that currently or periodically contains the Public Hearing area under section 4(b)(2) of the Act. For resources and conditions necessary to any additional areas that you may Section 4(b)(5) of the Act provides for support one or more life processes of a request be excluded from the a public hearing on this proposal, if species.’’ designation, we will undertake an requested. Requests must be received by Conservation, as defined under exclusion analysis if you provide the date specified in DATES. Such section 3 of the Act, means to use and credible information regarding the requests must be sent to the address the use of all methods and procedures existence of a meaningful economic or shown in FOR FURTHER INFORMATION that are necessary to bring an other relevant impact supporting a CONTACT. We will schedule a public endangered or threatened species to the benefit of inclusion or if we otherwise hearing on this proposal, if requested, point at which the measures provided decide to exercise the discretion to and announce the date, time, and place pursuant to the Act are no longer evaluate the areas for possible of the hearing, as well as how to obtain necessary. Such methods and exclusion. reasonable accommodations, in the procedures include, but are not limited (8) Whether we could improve or Federal Register and local newspapers to, all activities associated with modify our approach to designating at least 15 days before the hearing. For scientific resources management such as critical habitat in any way to provide for the immediate future, we will provide research, census, law enforcement, greater public participation and these public hearings using webinars habitat acquisition and maintenance, understanding, or to better that will be announced on the Service’s propagation, live trapping, and accommodate public concerns and website, in addition to the Federal transplantation, and, in the comments. Register. The use of these virtual public extraordinary case where population Please include sufficient information hearings is consistent with our pressures within a given ecosystem with your submission (such as scientific regulations at 50 CFR 424.16(c)(3). cannot be otherwise relieved, may include regulated taking. journal articles or other publications) to Previous Federal Actions allow us to verify any scientific or Critical habitat receives protection commercial information you include. Please refer to the final listing rule for under section 7 of the Act through the You may submit your comments and the pearl darter, which published in the requirement that Federal agencies materials concerning this proposed rule Federal Register on September 20, 2017 ensure, in consultation with the Service, by one of the methods listed in (82 FR 43885), for a detailed description that any action they authorize, fund, or ADDRESSES. We request that you send of previous Federal actions concerning carry out is not likely to result in the comments only by the methods this species. destruction or adverse modification of described in ADDRESSES. Critical Habitat critical habitat. The designation of If you submit information via http:// critical habitat does not affect land www.regulations.gov, your entire Background ownership or establish a refuge, submission—including any personal Critical habitat is defined in section 3 wilderness, reserve, preserve, or other identifying information—will be posted of the Act as: conservation area. Designation also does on the website. If your submission is (1) The specific areas within the not allow the government or public to made via a hardcopy that includes geographical area occupied by the access private lands. Designation does personal identifying information, you species, at the time it is listed in not require implementation of

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restoration, recovery, or enhancement species would be inadequate to ensure regulatory protections afforded by the measures by non-Federal landowners. the conservation of the species. In requirement in section 7(a)(2) of the Act Where a landowner requests Federal addition, for an unoccupied area to be for Federal agencies to ensure their agency funding or authorization for an considered essential, the Secretary must actions are not likely to jeopardize the action that may affect a listed species or determine that there is a reasonable continued existence of any endangered critical habitat, the Federal agency certainty both that the area will or threatened species, and (3) the would be required to consult with the contribute to the conservation of the prohibitions found in section 9 of the Service under section 7(a)(2) of the Act. species and that the area contains one Act. Federally funded or permitted However, even if the Service were to or more of those physical or biological projects affecting listed species outside conclude that the proposed activity features essential to the conservation of their designated critical habitat areas would result in destruction or adverse the species. may still result in jeopardy findings in modification of the critical habitat, the Section 4 of the Act requires that we some cases. These protections and Federal action agency and the designate critical habitat on the basis of conservation tools will continue to landowner are not required to abandon the best scientific data available. contribute to recovery of this species. the proposed activity, or to restore or Further, our Policy on Information Similarly, critical habitat designations recover the species; instead, they must Standards Under the Endangered made on the basis of the best available implement ‘‘reasonable and prudent Species Act (published in the Federal information at the time of designation alternatives’’ to avoid destruction or Register on July 1, 1994 (59 FR 34271)), will not control the direction and adverse modification of critical habitat. the Information Quality Act (section 515 substance of future recovery plans, Under the first prong of the Act’s of the Treasury and General habitat conservation plans (HCPs), or definition of critical habitat, areas Government Appropriations Act for other species conservation planning within the geographical area occupied Fiscal Year 2001 (Pub. L. 106–554; H.R. efforts if new information available at by the species at the time it was listed 5658)), and our associated Information the time of these planning efforts calls are included in a critical habitat Quality Guidelines, provide criteria, for a different outcome. designation if they contain physical or establish procedures, and provide biological features (1) which are guidance to ensure that our decisions Prudency Determination essential to the conservation of the are based on the best scientific data Section 4(a)(3) of the Act, as species and (2) which may require available. They require our biologists, to amended, and implementing regulations special management considerations or the extent consistent with the Act and (50 CFR 424.12) require that, to the protection. For these areas, critical with the use of the best scientific data maximum extent prudent and habitat designations identify, to the available, to use primary and original determinable, the Secretary shall extent known using the best scientific sources of information as the basis for designate critical habitat at the time the data available, those physical or recommendations to designate critical species is determined to be an biological features that are essential to habitat. endangered or threatened species. Our the conservation of the species (such as When we are determining which areas regulations (50 CFR 424.12(a)(1)) state space, food, cover, and protected should be designated as critical habitat, that the Secretary may, but is not habitat). In identifying those physical or our primary source of information is required to, determine that a biological features that occur in specific generally the information developed designation would not be prudent in the occupied areas, we focus on the specific during the listing process for the following circumstances: features that are essential to support the species. Additional information sources (i) The species is threatened by taking life-history needs of the species, may include any generalized or other human activity, and including, but not limited to, water conservation strategy, criteria, or outline identification of critical habitat can be characteristics, soil type, geological that may have been developed for the expected to increase the degree of such features, sites, prey, vegetation, species; the recovery plan for the threat to the species; symbiotic species, or other features. A species; articles in peer-reviewed (ii) The present or threatened feature may be a single habitat journals; conservation plans developed destruction, modification, or characteristic or a more complex by States and counties; scientific status curtailment of a species’ habitat or range combination of habitat characteristics. surveys and studies; biological is not a threat to the species, or threats Features may include habitat assessments; other unpublished to the species’ habitat stem solely from characteristics that support ephemeral materials; or experts’ opinions or causes that cannot be addressed through or dynamic habitat conditions. Features personal knowledge. management actions resulting from may also be expressed in terms relating Habitat is dynamic, and species may consultations under section 7(a)(2) of to principles of conservation biology, move from one area to another over the Act; such as patch size, distribution time. We recognize that critical habitat (iii) Areas within the jurisdiction of distances, and connectivity. designated at a particular point in time the United States provide no more than Under the second prong of the Act’s may not include all of the habitat areas negligible conservation value, if any, for definition of critical habitat, we can that we may later determine are a species occurring primarily outside designate critical habitat in areas necessary for the recovery of the the jurisdiction of the United States; outside the geographical area occupied species. For these reasons, a critical (iv) No areas meet the definition of by the species at the time it is listed, habitat designation does not signal that critical habitat; or upon a determination that such areas habitat outside the designated area is (v) The Secretary otherwise are essential for the conservation of the unimportant or may not be needed for determines that designation of critical species. When designating critical recovery of the species. Areas that are habitat would not be prudent based on habitat, the Secretary will first evaluate important to the conservation of the the best scientific data available. areas occupied by the species. The species, both inside and outside the No imminent threat of take attributed Secretary will only consider unoccupied critical habitat designation, will to collection or vandalism under Factor areas to be essential where a critical continue to be subject to: (1) B was identified in the final listing rule habitat designation limited to Conservation actions implemented for the pearl darter, and identification geographical areas occupied by the under section 7(a)(1) of the Act, (2) and mapping of critical habitat is not

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expected to initiate any such threat. In consider the physical or biological Mississippi and Louisiana, and the our final listing determination for the features that are essential to the species was described from the lower pearl darter, we determined that the conservation of the species and which Strong River within the Pearl River present or threatened destruction, may require special management drainage of Mississippi (Suttkus et al. modification, or curtailment of habitat considerations or protection. The 1994, pp. 15–20). The darter has been or range is a threat to this species and regulations at 50 CFR 424.02 define extirpated from the Pearl River drainage that those threats in some way can be ‘‘physical or biological features essential for several decades, apparently due to addressed by section 7(a)(2) to the conservation of the species’’ as system-wide channel and water quality consultation measures. The species the features that occur in specific areas degradation occurring in the late 1960s occurs wholly in the jurisdiction of the and that are essential to support the life- to early 1970s (Wagner et al. 2017, United States, and we are able to history needs of the species, including, entire). With this extirpation, at least identify areas that meet the definition of but not limited to, water characteristics, half of the historical, geographical, and critical habitat. Therefore, because none soil type, geological features, sites, prey, ecological habitats of the pearl darter are of the circumstances set forth in our vegetation, symbiotic species, or other no longer occupied. Channel integrity regulations at 50 CFR 424.12(a)(1) has features. A feature may be a single and water quality within the Pearl River been met and because there are no other habitat characteristic or a more complex drainage has since improved due to the circumstances the Secretary has combination of habitat characteristics. enactment of State and Federal laws and identified for which this designation of Features may include habitat regulations addressing water pollution critical habitat would be not prudent, characteristics that support ephemeral and in-channel sand and gravel mining. we have determined that the or dynamic habitat conditions. Features In the lower Strong River, channel designation of critical habitat is prudent may also be expressed in terms relating integrity is controlled and protected by for the pearl darter. to principles of conservation biology, natural bedrock outcrops, and water such as patch size, distribution quality has improved, as indicated by Critical Habitat Determinability distances, and connectivity. For the resurgence of other benthic fish Having determined that designation is example, physical features essential to species that historically co-occurred prudent, under section 4(a)(3) of the Act the conservation of the species might with the pearl darter (Piller et al. 2004, we must find whether critical habitat for include gravel of a particular size pp. 1007–1011; Tipton et al. 2004, pp. the pearl darter is determinable. Our required for spawning, alkaline soil for 57–60; Wagner et al. 2018, entire). regulations at 50 CFR 424.12(a)(2) state seed germination, protective cover for Within the Pascagoula River drainage, that critical habitat is not determinable migration, or susceptibility to flooding the pearl darter occurs within the when one or both of the following or fire that maintains necessary early- Pascagoula, Chickasawhay, Leaf, situations exist: successional habitat characteristics. Chunky, and Bouie Rivers and the (i) Data sufficient to perform required Biological features might include prey Okatoma and Black Creeks (Wagner et analyses are lacking, or species, forage grasses, specific kinds or al. 2017, pp. 3–10, 12; Clark et al. 2018, (ii) The biological needs of the species ages of trees for roosting or nesting, pp. 100–103; Schaefer et al. 2020, pp. are not sufficiently well known to symbiotic fungi, or a particular level of 26–27, 43–44). identify any area that meets the nonnative species consistent with The lower Strong River within the definition of ‘‘critical habitat.’’ conservation needs of the listed species. Pearl River drainage and the rivers and When we published the proposed The features may also be combinations streams identified above within the listing rule (81 FR 64857; September 21, of habitat characteristics and may Pascagoula River drainage are 2016) and then the final listing rule (82 encompass the relationship between representative of the historical, FR 43885; September 20, 2017) for the characteristics or the necessary amount geographical, and ecological pearl darter, a careful assessment of the of a characteristic essential to support distribution of the species. economic impacts of an associated the life history of the species. Space for Individual and Population critical habitat designation was In considering whether features are Growth and for Normal Behavior incomplete, leading us to find that essential to the conservation of the critical habitat was not determinable. species, the Service may consider an The pearl darter is found in free- We continued to review the available appropriate quality, quantity, and flowing, low-gradient streams and rivers information related to the draft spatial and temporal arrangement of with pools and scour holes associated economic analysis, as well as newly habitat characteristics in the context of with channel bends and runs (Slack et acquired biological information the life-history needs, condition, and al. 2002, p. 10; Bart et al. 2001, p. 13). necessary to perform this assessment. status of the species. These Presence of the darter is associated with This and other information represent characteristics include, but are not coarse sand and gravel substrates and the best scientific data available, and we limited to, space for individual and woody debris, which also supplies now find the data are sufficient for us population growth and for normal habitats for its prey. Other bottom to analyze the impacts of critical habitat behavior; food, water, air, light, substrates associated with the species designation. Accordingly, we conclude minerals, or other nutritional or include sand, silt, loose clay, and gravel, that the designation of critical habitat is physiological requirements; cover or with organic matter in the form of determinable for the pearl darter. shelter; sites for breeding, reproduction, coarse and fine particulates and snag or rearing (or development) of offspring; material (Slack et al. 2005, pp. 9, 11). Physical or Biological Features and habitats that are protected from Pearl darter occurrence within these Essential to the Conservation of the disturbance. habitats may be seasonal, with Species spawning occurring in upstream In accordance with section 3(5)(A)(i) Habitats Representative of the reaches, and growth and recruitment in of the Act and regulations at 50 CFR Historical, Geographical, and Ecological downstream reaches (Bart et al. 2001, 424.12(b), in determining which areas Distributions of the Species pp. 13, 15). Therefore, a continuum of we will designate as critical habitat The pearl darter is historically known perennial, uninterrupted, and within the geographical area occupied from rivers and streams within the Pearl interconnected natural small stream-to- by the species at the time of listing, we River and Pascagoula River drainages in river channel habitat is required for the

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downstream drift of larvae or movement during March through May (Suttkus et and viability of all life stages of the of juveniles, and the upstream migration al. 1994, pp. 19–20), and young of year species. of spawning adults. were collected in June (Suttkus et al. (4) Presence of a prey base of small 1994, p. 19). Based on collection aquatic macroinvertebrates, including Food, Water, Air, Light, Minerals, or occurrence patterns, some researchers midges, crustaceans, mayflies, Other Nutritional or Physiological have postulated that adult pearl darters caddisflies, and zooplankton. Requirements migrate upstream during the fall and The pearl darter requires unimpeded Special Management Considerations or winter to spawn in suitable upstream Protection and interconnected stretches of gravel reaches, with elevated river perennial and flowing streams and discharge during the spring dispersing When designating critical habitat, we rivers with adequate water quality. the larvae and juveniles into assess whether the specific areas within Water temperatures at pearl darter downstream reaches (Bart et al. 2001, p. the geographical area occupied by the collection sites has ranged from 8 to 30 14; Ross et al. 2000, p. 11). Other studies species at the time of listing contain degrees Celsius (°C) (46.4 to 86.0 have hypothesized that the species features that are essential to the degrees Fahrenheit (°F)) (Suttkus et al. disperses locally from shallow conservation of the species and which 1994, pp. 17–19; Bart et al. 2001, p. 13, spawning habitats into nearby deeper may require special management Slack et al. 2002, p. 10), with dissolved habitats where their presence is more considerations or protection. The pearl oxygen of 5.8 to 9.3 milligrams per liter difficult to detect (Slack et al. 2002, p. darter is threatened by water quality (mg/1) (Suttkus et al. 1994, pp. 17–19; 18). The pattern of the disappearance of degradation from point and nonpoint Bart et al. 2001, pp. 7, 13–14; Slack et the pearl darter from all stream orders source pollution, discharges from al. 2002, p. 10). The species is in the Pearl River drainage over a municipalities, and geomorphological apparently sensitive to warmer water relatively short period of time suggests changes to its channel habitats (82 FR temperatures and may seasonally that some degree of seasonal 43885, September 20, 2017, pp. 43888– require tributaries with canopy shading interchange between tributary and river 43893). The features essential to the and/or cool spring flows as seasonal channel subpopulations may have been conservation of this species may require refugia from warmer, unshaded river a factor in the species’ extirpation from special management considerations or channels (Bart et al. 2001, p. 14). that drainage. Therefore, until more is protection to reduce the following The natural diet of the pearl darter is known relative to seasonal dispersal, threats: (1) Actions that alter the poorly known; however, other species connectivity between instream habitats minimum or existing flow regime, within the genus feed on chironomids should be considered essential for including impoundment, (midges), small crustaceans, mayflies, successful breeding and rearing of the channelization, or water diversion; (2) and caddisflies (Kuehne and Barbour pearl darter. actions that significantly alter water 1983, p. 49). Food availability is likely chemistry or temperature by the release affected by adequate flow, channel Summary of Essential Physical or of chemicals, biological pollutants, or stability, and water quality. Pearl darters Biological Features heated effluents into the surface water have been maintained in captivity for at We derive the specific physical or or connected groundwater at a point or least 2 years on a diet of bloodworms biological features essential to the non-point source; and (3) actions that (Campbell 2019, p. 1). conservation of the pearl darter from significantly alter channel morphology or geometry, including channelization, Sites for Breeding, Reproduction, or studies of this species’ habitat, ecology, impoundment, road and bridge Rearing (or Development) of Offspring and life history. Additional information can be found in the September 21, 2016, construction, or instream mining. Pearl darters have been collected at proposed listing rule (81 FR 64857) and Examples of special management sites with cool to warm water the September 20, 2017, final listing actions that would minimize or ° temperatures (8 to 30 C (46.4 to rule (82 FR 43885). We have determined ameliorate these threats include: (a) ° 86.0 F)), high dissolved oxygen (5.8 to that the following physical or biological Restoration and protection of riparian 9.3 mg/l), slightly acidic to basic pH features are essential to the conservation corridors; (b) implementation of best values (6.3 to 7.6), and apparently low of the pearl darter: management practices to minimize levels of pollution (Suttkus et al. 1994, (1) Unobstructed and stable stream erosion (such as State and industry pp. 17–19; Bart et al. 2001, pp. 7, 13– and river channels with: practices for road construction, forest 14; Slack et al. 2002, p. 10). Spawning (a) Connected sequences of channel management, or mining activities); (c) in the Strong River was associated with runs and bends associated with pools stream bank restoration projects; (d) bedrock and broken rubble (Suttkus et and scour holes; and private landowner programs to promote al. 1994, p. 19), and three probable (b) Bottom substrates consisting of watershed and soil conservation (such spawning sites in the Pascagoula River fine and coarse sand, gravel, bedrock, as the U.S. Department of Agriculture’s system were characterized by extensive silt, clay, organic matter, or woody Farm Bill and the Service’s Private outcrops of limestone or sandstone (Bart debris. Lands programs); (e) implementation of and Pillar 1997, p. 8). Pearl darters in (2) A natural flow regime necessary to best management practices for storm spawning condition in the Pascagoula maintain instream habitats and their water; and (f) upgrades to industrial and River drainage have also been collected connectivity. municipal treatment facilities to over firm gravel in relatively shallow, (3) Water quality conditions, improve water quality in effluents. flowing water from April to early May including cool to warm water (Bart et al. 2001, p. 13). Ideal conditions temperatures (8 to 30 °C (46.4 to Criteria Used To Identify Critical for spawning have been described as 86.0 °F)), high dissolved oxygen (5.8 to Habitat channel reaches with good canopy 9.3 mg/l), slightly acidic to basic pH (6.3 As required by section 4(b)(2) of the shading, an extensive buffer of mature to 7.6), and low levels of pollutants and Act, we use the best scientific data forest, and good water quality (Bart et al. nutrients meeting the current State of available to designate critical habitat. In 2001, p. 15). Mississippi criteria, as necessary to accordance with the Act and our Spawning in the Pearl and Strong maintain natural physiological implementing regulations at 50 CFR Rivers (Mississippi) was documented processes for normal behavior, growth, 424.12(b), we review available

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information pertaining to the habitat as a single population. The loss of the to the conservation of the pearl darter requirements of the species and identify species’ redundancy, with its are now present within the Pearl River specific areas within the geographical extirpation from the Pearl River drainage. Because the Pearl River area occupied by the species at the time drainage, has also diminished its genetic drainage habitat contains the physical or of listing and any specific areas outside and ecological representation, and, biological features for the pearl darter the geographical area occupied by the therefore, increased the species’ and supports other benthic fish species species at the time of listing to be vulnerability to catastrophic events and with similar life processes, we conclude considered for designation as critical population changes. A successful that the drainage contains the resources habitat. reintroduction into the Pearl River and conditions necessary to support the The current distribution of the pearl drainage would restore the species’ life processes for the pearl darter. darter is reduced from its historical redundancy within the historical range. For this proposed rule, we completed distribution, and we anticipate that In addition, the pearl darter’s the following steps to delineate critical recovery will require continued representation would increase from habitat: protection of the existing population current levels by allowing for local (1) We compiled all available current and habitat, as well as establishing a environmental adaptation and and historical occurrence data records population within its historical range, to increasing genetic representation. Thus, for the pearl darter in both the ensure there are adequate numbers of reintroducing the species into the Pearl Pascagoula and Pearl River drainages; pearl darters occurring in stable River drainage would contribute to the (2) We used confirmed presence from populations for the species’ continued resilience and conservation of the pearl 1994–2019 as the foundation for conservation. Furthermore, rangewide darter. identifying areas currently occupied in recovery considerations, such as Factors implicated in the Pearl River the Pascagoula River drainage; maintaining existing genetic diversity extirpation include geomorphic (3) We evaluated habitat suitability of and striving for representation of all instability (i.e., channel erosion and stream segments that contain the major portions of the species’ historical degradation), sedimentation, and point identified physical or biological features range, were considered in formulating source pollution from municipalities and that are currently occupied by the this proposed critical habitat and industries (e.g., Bart and Suttkus species, and we retained all occupied designation. 1995, p. 14; Tipton et al. 2004, pp. 59– stream segments; We are proposing to designate critical 60). One or all of these factors may have (4) We evaluated unoccupied habitat in areas within the geographical been responsible for the diminishment segments of the Pearl River drainage for area occupied by the species at the time or loss of some or all of the physical or suitability of spawning and recruitment, of listing. We identified areas with biological features essential to the darter reintroduction, and monitoring current occurrence records that we conservation of the pearl darter within and management of a reintroduced deemed suitable habitat (see delineation the drainage (e.g., channel stability, population; and steps, below) and that had one or more substrate, water quality, prey base). We (5) We evaluated unoccupied of the physical or biological features now find that these factors have been segments of the Pearl River drainage for identified for the pearl darter which reduced to a degree that the pearl darter connectivity with reaches historically may require special management may be successfully reintroduced into occupied and identified areas considerations or protection. We also the Pearl River. containing the physical or biological are proposing to designate specific areas For example, active channel erosion features essential to the conservation of outside of the geographical area and degradation that may have been the species that may require special occupied by the species at the time of precipitated by the 1956 construction of management considerations or listing because we have determined that the Pearl River navigation system in the protection. a designation limited to occupied areas lower basin, and aggravated by the 1963 Sources of data for this proposed would be inadequate to ensure the construction of the Ross Barnett critical habitat designation include the conservation of the species. For those Reservoir in the upper basin, have proposed and final listing rules (81 FR unoccupied areas, we have determined diminished, and instream mining is 64857, September 21, 2016; 82 FR that it is reasonably certain that the now prohibited by the States of 43885, September 20, 2017), fish unoccupied areas will contribute to the Mississippi and Louisiana, resulting in collection databases provided by the conservation of the species and contain more stable channel habitats within the MDWFP, survey reports and one or more of the physical or biological basin. In addition, point-source observations, and peer-reviewed features that are essential to the pollution from untreated municipal and publications. conservation of the species. We have industrial discharge into the Pearl River also determined that the unoccupied has been significantly reduced by Areas Occupied at the Time of Listing areas fall within the regulatory enactment and enforcement of the Clean We used reports and collection data to definition of ‘‘habitat’’ at 50 CFR 424.02. Water Act of 1972 (33 U.S.C. 1251 et map species site collections and Threats to pearl darters occurring in seq.). The improvement of the physical occurrences between 1994 and 2019 to the Pascagoula River drainage are or biological features within the Pearl determine areas occupied at the time of compounded by the species’ naturally River drainage is also demonstrated by listing. Based on the best available low numbers and short life span, but the recent observed increases in other scientific data, we determined that all species’ conservation potential is benthic fish species (e.g., crystal darter currently known occupied habitat for primarily limited by its extirpation from (Crystallaria asprella) and frecklebelly the pearl darter was also occupied by the Pearl River drainage and, therefore, madtom (Noturus munitus)), which the species at the time of listing, and its lack of redundancy. The documented experienced declines concurrent with that these areas contain the physical or Pearl River drainage extirpation was the extirpation of the pearl darter (Piller biological features essential to the rapid and system-wide, including all et al. 2004, pp. 1007–1011; Tipton et al. conservation of the species and which mainstem and tributary collection sites 2004, pp. 57–60; Wagner et al. 2018, p. may require special management seemingly simultaneously. As such, we 13). These improvements leave us considerations or protection. consider pearl darters occurring within reasonably certain that all of the As stated above, we delineated units the Pascagoula River and its tributaries physical or biological features essential based on documented occurrences and

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the existing physical or biological upon upstream and downstream occupied by the species at the time of features essential to the conservation of channel habitat conditions for their listing that are essential for the the species. Collection occurrence maintenance. Therefore, we considered conservation of the species. We used patterns suggest that adult pearl darters the areas occupied at the time of listing historical occurrence data and the migrate upstream to spawn in suitable to extend from an identifiable landmark physical or biological features described gravel or bedrock reaches, with elevated (e.g., bridge crossing, tributary earlier to identify unoccupied habitat spring river discharge dispersing larvae confluence, etc.) nearest the uppermost essential for the conservation of the and juveniles into downstream reaches; records within second or third order pearl darter. an alternative hypothesis considers that streams, through their confluence with Based on our review, we determined the pearl darter moves from shallow, third and fourth order streams, that the lower Strong River, a major easily collected spawning habitats into downstream to an identifiable landmark tributary of the Pearl River, has the deeper habitats where it is more near the lowermost areas of collection in potential for future reintroduction and difficult to detect the fish (see Sites for the Pascagoula River (i.e., forks of the reoccupation by the pearl darter, Breeding, Reproduction, or Rearing (or East and West Pascagoula River). Within provided that stressors are managed and Development) of Offspring, above). the current range of the pearl darter mitigated. Reestablishing a viable While both hypotheses are partially within the Pascagoula River drainage, population in the Strong River will supported by data, we note that the some habitats may or may not be restore the species’ redundancy within disappearance of the species from the actively used at all times by individuals; the historical range and increase the Pearl River drainage occurred fairly however, these areas are necessary for species’ ecological representation. The rapidly and simultaneously in all stream maintaining population connectivity, as specific area encompasses the minimum orders, suggesting some element of well as other physical or biological area of the species’ historical range migration may be involved in the features essential to the conservation of within the Pearl River drainage, while darter’s life history. To allow for the species, and, therefore, are still providing ecological diversity so potential seasonal movement between considered the geographic area that the species can evolve and adapt stream reaches, we propose to designate occupied at the time of listing for the over time. This river reach also provides one continuous unit of occupied critical pearl darter. This area (referred to below the potential for the pearl darter to habitat within the Pascagoula River as proposed Unit 1) contains all of the expand its range into other historically drainage. This unit includes portions of physical or biological features essential occupied areas, which currently may be the Chunky, Bouie, Leaf, Chickasawhay, to the conservation of the pearl darter or may later become suitable, to ensure and Pascagoula Rivers, as well as and which may require special that the species has an adequate level of reaches of Okatoma and Big Black management conditions or protections. redundancy within the Pearl River Creeks, as described below under drainage and guard against future Areas Unoccupied at the Time of Listing Proposed Critical Habitat Designation. catastrophic events. The lower Strong Since the 2017 listing of the species, To consider for designation areas not River also represents the stream reach there have been 71 site collections of occupied by the species at the time of within the historical range with the best pearl darter in the Pascagoula River listing, we must demonstrate that these potential for recovery of the species due drainage (Wagner et al. 2019, pp. 8–18; areas are essential for the conservation to current conditions, suitability for Schaefer et al. 2020, pp. 26–27, 43–44). of the pearl darter. The proposed reintroductions, and access for One of these collections in 2018 occupied critical habitat does not monitoring. extended the known range include geographic areas within the Accordingly, we propose to designate approximately 60 mi (97 km) in Black Pearl River drainage—the only other one unoccupied unit in the lower Strong Creek, above its confluence with the area in which the pearl darter River within the Pearl River drainage. occupied reach of Big Black Creek historically occurred—as it has been As described below in the individual (Schaefer et al. 2020, pp. 26–27). We extirpated from that drainage. In unit descriptions, this unit contains all consider this additional mileage of addition, because the Pascagoula River of the physical or biological features stream reach to be occupied at the time drainage population is the only extant essential to the conservation of the of listing. This is because the reach population, that population provides no species and is reasonably certain to between the previously identified redundancy for the species. Based upon contribute to the conservation of the population in Big Black Creek and the the species’ rapid and system-wide species. extirpation from the Pearl River newly discovered population upstream General Information on the Maps of the drainage, a series of back-to-back has the physical or biological features Proposed Critical Habitat Designation essential to the conservation of the stochastic events or a single catastrophic species, and the species potentially event could similarly significantly The areas proposed as critical habitat seasonally migrates. The potential for reduce resiliency or extirpate the include only stream channels within the seasonal migration, the species’ small Pascagoula River population. For these ordinary high-water line. There are no size and rarity, and the fact that surveys reasons, we determined we cannot developed areas within the critical for the pearl darter are difficult and not conserve the species by designating only habitat boundaries except for always definitive of the species’ absence occupied habitat as it includes only a transportation and pipeline crossings, within a particular reach of an occupied single population in a single drainage. which do not remove the suitability of stream also support considering this Thus, we determined that habitat in these areas for the pearl darter. When area occupied at the time of listing. another historical drainage is needed for determining proposed critical habitat In making these determinations, we the long-term survival and recovery of boundaries, we made every effort to recognize that collection sites for the the species. Therefore, because we avoid including developed areas such as pearl darter occur at areas generally determined that the one occupied area lands covered by buildings, pavement, accessible to fish biologists and that alone is not adequate for the and other structures because such lands occupied habitats within a river reach conservation of the species, we have lack physical or biological features may vary depending upon life stage, identified and are proposing for necessary for the pearl darter. The scale stream size, and season. Additionally, designation as critical habitat specific of the maps we prepared under the stream habitats are highly dependent areas outside the geographical area parameters for publication within the

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Code of Federal Regulations may not maps, as modified by any accompanying and stream channels in two units as reflect the exclusion of such developed regulatory text, presented at the end of critical habitat for the pearl darter. The lands. Any such lands inadvertently left this document under Proposed critical habitat areas we describe below inside critical habitat boundaries shown Regulation Promulgation. We include constitute our current best assessment of on the maps of this proposed rule have more detailed information on the areas that meet the definition of critical been excluded by text in the proposed boundaries of the critical habitat habitat for the pearl darter. The two rule and are not proposed for designation in our discussion of the areas we propose as critical habitat are: designation as critical habitat. individual units below. We will make (1) Pascagoula River Unit; and (2) Strong Therefore, if the critical habitat is the coordinates or plot points or both on River Unit. Ownership of stream finalized as proposed, a Federal action which each map is based available to channel bottoms included in this involving these lands would not trigger the public on http:// proposed rule are determined by section 7 consultation with respect to www.regulations.gov under Docket No. riparian land ownership. The table critical habitat and the requirement of FWS–R4–ES–2020–0062 and on our below shows the occupancy of the units, no adverse modification unless the internet site http://www.fws.gov/ the riparian land ownership, and specific action would affect the physical mississippiES/. or biological features in the adjacent approximate lengths of the proposed critical habitat. Proposed Critical Habitat Designation critical habitat for the pearl darter. The proposed critical habitat We are proposing to designate designation is defined by the map or approximately 517 mi (832 km) of river

TABLE OF PROPOSED CRITICAL HABITAT UNITS FOR PEARL DARTER [Unit length estimates include only stream channels within the ordinary high-water line]

Riparian land ownership Total mi Unit Occupancy Federal mi State mi County mi Private mi (km) (km) (km) (km) (km)

1. Pascagoula River ...... Occupied ...... ** 45 (72) ** 76 (122) ...... 373 (600) ** 487 (783) 2. Strong River ...... Unoccupied ...... 0.4 (0.6) 30 (48.4) 30 (49)

Total km (mi) ...... ** 45 (72) ** 76 (122) 0.4 (0.6) 403 (648.4) ** 517 (832) ** 7 mi (11 km) of pearl darter critical habitat stream miles shared between State and Federal lands.

We present brief descriptions of all upstream to the bridge crossing at U.S. or other actions that alter stream flow; units, and reasons why they meet the Highway 84 in Covington County; reducing excessive use of manures, definition of critical habitat for pearl • 15 mi (24 km) of Bouie River fertilizers, and pesticides near stream darter, below. channel from its confluence with the channels; improving treatment of Leaf River, upstream to the confluence wastewater discharged from permitted Unit 1: Pascagoula River Unit of Okatoma Creek in Forrest County; facilities; and implementing practices Unit 1 consists of 487 mi (783 km) of and that protect or restore riparian buffer occupied connected river and stream • 28 mi (45 km) of Okatoma Creek areas along stream corridors. channels within the Pascagoula River from its confluence with the Bouie River drainage in Mississippi, including: in Forrest County, upstream to the Unit 2: Strong River Unit • 63 mi (102 km) of the Pascagoula bridge crossing at U.S. Highway 84 in Unit 2 consists of 30 mi (49 km) of River channel from its confluence with Covington County. unoccupied habitat in the Strong River the West Pascagoula River in Jackson The riparian lands (channel borders) channel from its confluence with the County, upstream to the confluence of in this unit are generally privately Pearl River, upstream to U.S. Highway the Leaf and Chickasawhay Rivers in owned agricultural or silvicultural 49, in Simpson County, Mississippi. George County; lands, with short reaches owned and The riparian lands in this unit are • 80 mi (129 km) of Big Black Creek/ managed by the U.S. Forest Service or generally privately owned agricultural Black Creek channel from its confluence the State (see table above). All channel or silvicultural lands, with a short with the Pascagoula River in Jackson segments in Unit 1 are occupied by the channel reach (0.39 mi (0.63 km)) County, upstream to U.S. Highway 49 pearl darter, and the unit contains all owned and operated by the Simpson Bridge in Forrest County; the physical or biological features County Park Commission (see table • 160 mi (257 km) of Chickasawhay essential to the conservation of the above). Unit 2 is not within the River channel from its confluence with species, including deep pools, runs, and geographic range occupied by the pearl the Leaf River just north of Enterprise, bends and scour holes; mixtures of darter at the time of listing, but this area Clarke County, upstream to the bottom substrates of sand, silt, loose was historically known to provide confluence of Okatibbee Creek and clay and gravel, fine and coarse particles spawning and recruitment habitat prior Chunky River in Clarke County; of organic matter, and snag material; a to the species’ extirpation from the Pearl • 21 mi (34 km) of Chunky River natural hydrograph with flows and River drainage. This unit currently channel from its confluence with water quality that currently support the provides all physical or biological Okatibbee Creek in Clarke County, normal life stages of the pearl darter; features essential to the conservation of upstream to second Highway 80 and the species’ prey sources. the pearl darter, including a stable Crossing in Newton County; Special management considerations channel with bottom substrates of sand, • 119 mi (192 km) of Leaf River and protections that may be required to silt, loose clay and gravel, bedrock, fine channel from its confluence with the address threats within the unit include and coarse particles of organic matter, Chickasawhay River in George County, minimizing surface water withdrawals and woody debris; a natural hydrograph

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with flows and water quality to support Effects of Critical Habitat Designation provide reasonable and prudent the normal life stages of the pearl darter alternatives to the project, if any are Section 7 Consultation and the species’ prey sources. Further identifiable, that would avoid the evidence of the presence of physical or Section 7(a)(2) of the Act requires likelihood of jeopardy and/or biological features within this reach of Federal agencies, including the Service, destruction or adverse modification of the Strong River is demonstrated by to ensure that any action they fund, critical habitat. We define ‘‘reasonable recent increases in other benthic fish authorize, or carry out is not likely to and prudent alternatives’’ (at 50 CFR species (e.g., frecklebelly madtom) that jeopardize the continued existence of 402.02) as alternative actions identified declined concurrent with the any endangered species or threatened during consultation that: extirpation of the pearl darter (Piller et species or result in the destruction or (1) Can be implemented in a manner al. 2004, pp. 1007–1011; Wagner et al. adverse modification of designated consistent with the intended purpose of 2018, pp. 4–5). critical habitat of such species. In the action, addition, section 7(a)(4) of the Act (2) Can be implemented consistent As described above, the best available requires Federal agencies to confer with with the scope of the Federal agency’s information demonstrates that the pearl the Service on any agency action which legal authority and jurisdiction, darter disappeared from the entire Pearl is likely to jeopardize the continued (3) Are economically and River and all known tributary segments existence of any species proposed to be technologically feasible, and virtually simultaneously. Therefore, it is listed under the Act or result in the (4) Would, in the Service Director’s possible that a series of back-to-back destruction or adverse modification of opinion, avoid the likelihood of stochastic events or a single catastrophic proposed critical habitat. jeopardizing the continued existence of event could significantly reduce or We published a final rule revising the the listed species and/or avoid the extirpate the surviving pearl darter definition of destruction or adverse likelihood of destroying or adversely population within the Pascagoula River modification on August 27, 2019 (84 FR modifying critical habitat. drainage. Due to the species’ lack of 44976). Destruction or adverse Reasonable and prudent alternatives redundancy, its naturally small numbers modification means a direct or indirect can vary from slight project within the Pascagoula River drainage, alteration that appreciably diminishes modifications to extensive redesign or and its short life span, the pearl darter the value of critical habitat as a whole relocation of the project. Costs is more vulnerable to existing and future for the conservation of a listed species. associated with implementing a threats, including habitat degradation If a Federal action may affect a listed reasonable and prudent alternative are and loss, catastrophic weather events, species or its critical habitat, the similarly variable. and introduced species. This unit would responsible Federal agency (action Regulations at 50 CFR 402.16 set forth serve to protect habitat needed to agency) must enter into consultation requirements for Federal agencies to reestablish a wild population within the with us. Examples of actions that are reinitiate formal consultation on historical range in the Pearl River subject to the section 7 consultation previously reviewed actions. These drainage and recover the species. Re- process are actions on State, Tribal, requirements apply when the Federal establishing a population of the pearl local, or private lands that require a agency has retained discretionary darter within Unit 2 would also increase Federal permit (such as a permit from involvement or control over the action the species’ redundancy and restore the U.S. Army Corps of Engineers under (or the agency’s discretionary ecological representation, better section 404 of the Clean Water Act (33 involvement or control is authorized by ensuring its survival if a stochastic U.S.C. 1251 et seq.) or a permit from the law) and, subsequent to the previous event were to impact the Pascagoula Service under section 10 of the Act) or consultation, we have listed a new River population. This unit is essential that involve some other Federal action species or designated critical habitat for the conservation of the species (such as funding from the Federal that may be affected by the Federal because it will provide habitat for range Highway Administration, Federal action, or the action has been modified expansion in known historical habitat Aviation Administration, or the Federal in a manner that affects the species or that is necessary to increase viability of Emergency Management Agency). critical habitat in a way not considered the pearl darter by increasing its Federal actions not affecting listed in the previous consultation. In such resiliency, redundancy, and species or critical habitat—and actions situations, Federal agencies sometimes representation. on State, Tribal, local, or private lands may need to request reinitiation of that are not federally funded, consultation with us, but the regulations The need for reintroduction of the authorized, or carried out by a Federal also specify some exceptions to the pearl darter into the Pearl River agency—do not require section 7 requirement to reinitiate consultation on drainage has been recognized and is consultation. specific land management plans after being discussed by our conservation Compliance with the requirements of subsequently listing a new species or partners. The landowner of the type section 7(a)(2), is documented through designating new critical habitat. See the locality (location where the species was our issuance of: regulations for a description of those described) within the Strong River unit (1) A concurrence letter for Federal exceptions. has been working with the Service and actions that may affect, but are not Application of the ‘‘Destruction or MDWFP to regularly monitor for the likely to adversely affect, listed species Adverse Modification’’ Standard presence of the pearl darter and other or critical habitat; or benthic fish, and expressed interest in (2) A biological opinion for Federal The key factor related to the reestablishing the species on the actions that may affect, and are likely to destruction or adverse modification property. Methods and facilities for adversely affect, listed species or critical determination is whether propagating the species have been habitat. implementation of the proposed Federal developed, tested, and proven at a When we issue a biological opinion action directly or indirectly alters the Service fish hatchery. Accordingly, we concluding that a project is likely to designated critical habitat in a way that are reasonably certain this unit will jeopardize the continued existence of a appreciably diminishes the value of the contribute to the conservation of the listed species and/or destroy or critical habitat as a whole for the pearl darter. adversely modify critical habitat, we conservation of the listed species. As

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discussed above, the role of critical nonnative aquatic species in occupied Consideration of Economic Impacts habitat is to support physical or stream segments, or in stream segments Section 4(b)(2) of the Act and its biological features essential to the that are hydrologically connected to implementing regulations require that conservation of a listed species and occupied stream segments, even if those we consider the economic impact that provide for the conservation of the segments are occasionally intermittent, may result from a designation of critical species. or the introduction of other species that habitat. To assess the probable Section 4(b)(8) of the Act requires us compete with or prey on the pearl economic impacts of a designation, we to briefly evaluate and describe, in any darter. Possible actions could include, must first evaluate specific land uses or proposed or final regulation that but are not limited to, stocking of activities and projects that may occur in designates critical habitat, activities nonnative fishes or other related the area of the critical habitat. We then involving a Federal action that may actions. These activities can also must evaluate the impacts that a specific violate section 7(a)(2) of the Act by introduce parasites or disease, or affect critical habitat designation may have on destroying or adversely modifying such the growth, reproduction, and survival restricting or modifying specific land habitat, or that may be affected by such of the pearl darter. uses or activities for the benefit of the designation. species and its habitat within the areas Activities that the Services may, Exemptions during a consultation under section proposed. We then identify which 7(a)(2) of the Act, find are likely to Application of Section 4(a)(3) of the Act conservation efforts may be the result of destroy or adversely modify critical the species being listed under the Act Section 4(a)(3)(B)(i) of the Act (16 habitat include, but are not limited to: versus those attributed solely to the (1) Actions that would block or U.S.C. 1533(a)(3)(B)(i)) provides that the designation of critical habitat for this disconnect stream and river channels. Secretary shall not designate as critical particular species. The probable Such activities could include, but are habitat any lands or other geographic economic impact of a proposed critical not limited to, the construction of dams areas owned or controlled by the habitat designation is analyzed by or weirs, channelization, and mining. Department of Defense (DoD), or comparing scenarios both ‘‘with critical These activities could result in designated for its use, that are subject to habitat’’ and ‘‘without critical habitat.’’ destruction of habitat, block movements an integrated natural resources The ‘‘without critical habitat’’ between seasonal habitats, fragment and management plan (INRMP) prepared scenario represents the baseline for the isolate subpopulations within critical under section 101 of the Sikes Act (16 analysis, which includes the existing habitat units, and/or affect flows within U.S.C. 670a), if the Secretary determines regulatory and socio-economic burden or into critical habitat. in writing that such plan provides a imposed on landowners, managers, or (2) Actions that would affect channel benefit to the species for which critical other resource users potentially affected substrates and stability. Such activities habitat is proposed for designation. by the designation of critical habitat include channelization, impoundment, There are no DoD lands with a (e.g., under the Federal listing as well as mining, road and bridge construction, completed INRMP within the proposed other Federal, State, and local removal of riparian vegetation, and land critical habitat designation. regulations). The baseline, therefore, clearing. These activities may lead to represents the costs of all efforts Consideration of Impacts Under Section attributable to the listing of the species changes in channel substrates, erosion 4(b)(2) of the Act of the streambed and banks, and under the Act (i.e., conservation of the excessive sedimentation that could Section 4(b)(2) of the Act states that species and its habitat incurred degrade pearl darter habitat. the Secretary shall designate and make regardless of whether critical habitat is (3) Actions that would reduce flow revisions to critical habitat on the basis designated). The ‘‘with critical habitat’’ levels or alter flow regimes. These could of the best available scientific data after scenario describes the incremental include, but are not limited to, activities taking into consideration the economic impacts associated specifically with the that block or lower surface flow or impact, national security impact, and designation of critical habitat for the groundwater levels, including any other relevant impact of specifying species. The incremental conservation channelization, impoundment, any particular area as critical habitat. efforts and associated impacts would groundwater pumping, and surface The Secretary may exclude an area from not be expected without the designation water withdrawal or diversion. Such critical habitat if they determine that the of critical habitat for the species. In other words, the incremental costs are activities can result in long-term benefits of such exclusion outweigh the those attributable solely to the changes in stream flows that affect benefits of specifying such area as part designation of critical habitat, above and habitat quality and quantity for the of the critical habitat, unless they beyond the baseline costs. These are the darter and its prey. determine, based on the best scientific (4) Actions that would affect water costs we use when evaluating the data available, that the failure to chemistry or temperature or introduce benefits of inclusion and exclusion of designate such area as critical habitat pollutants and nutrients at levels above particular areas from the final will result in the extinction of the State of Mississippi criteria. Such designation of critical habitat should we species. In making the determination to activities include, but are not limited to, choose to conduct a discretionary exclude a particular area, the statute on the release of chemical pollutants, 4(b)(2) exclusion analysis. its face, as well as the legislative history, biological pollutants, or heated effluents For this particular designation, we are clear that the Secretary has broad into the surface water or connected developed an incremental effects discretion regarding which factor(s) to groundwater at a point source or by memorandum (IEM) considering the use and how much weight to give to any dispersed release (nonpoint source). probable incremental economic impacts factor. These activities could alter water that may result from this proposed quality conditions to levels that are We describe below the process that designation of critical habitat. The beyond the tolerances of the pearl darter we undertook for taking into information contained in our IEM was or its prey species. consideration each category of impacts then used to develop a screening (5) Actions that would result in the and our analyses of the relevant analysis of the probable effects of the introduction, spread, or augmentation of impacts. designation of critical habitat for the

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pearl darter (IEc 2020, entire). We began or residential development; (3) the proposed critical habitat. Within by conducting a screening analysis of dredging; (4) groundwater pumping; (5) this occupied unit, any actions that may the proposed designation of critical instream dams and diversions; (6) affect the species or its habitat would habitat in order to focus our analysis on storage, distribution, or discharge of also affect designated critical habitat, the key factors that are likely to result chemical pollutants; (7) oil and gas; (8) and it is unlikely that any additional in incremental economic impacts. The utilities; (9) water quantity and supply; conservation efforts would be purpose of the screening analysis is to and (10) water quality. We considered recommended to address the adverse filter out particular geographic areas of each industry or category individually. modification standard over and above critical habitat that are already subject Additionally, we considered whether those recommended as necessary to to such protections and are, therefore, their activities have any Federal avoid jeopardizing the continued unlikely to incur incremental economic involvement. Critical habitat existence of the pearl darter. Therefore, impacts. In particular, the screening designation generally will not affect only administrative costs are expected analysis considers baseline costs (i.e., activities that do not have any Federal in actions affecting this unit. While this absent critical habitat designation) and involvement; under the Act, designation additional analysis will require time includes probable economic impacts of critical habitat only affects activities and resources by both the Federal action where land and water use may be conducted, funded, permitted, or agency and the Service, it is believed subject to conservation plans, land authorized by Federal agencies. In areas that, in most circumstances, these costs, management plans, best management where the pearl darter is present, because they are predominantly practices, or regulations that protect the Federal agencies already are required to administrative in nature, would not be habitat area as a result of the Federal consult with the Service under section significant. listing status of the species. Ultimately, 7 of the Act on activities they fund, Unit 2 is currently unoccupied by the the screening analysis allows us to focus permit, or implement that may affect the species but is essential for the our analysis on evaluating the specific species. If we finalize this proposed conservation of the species. This unit areas or sectors that may incur probable critical habitat designation, totals 30 mi (49 km) and comprises 6 incremental economic impacts as a consultations to avoid the destruction or percent of the total proposed critical result of the designation. If there are any adverse modification of critical habitat habitat designation. In this unoccupied unoccupied units in the proposed would be incorporated into the existing area, any conservation efforts or critical habitat designation, the consultation process. associated probable impacts would be screening analysis assesses whether any In our IEM, we attempted to clarify considered incremental effects additional management or conservation the distinction between the effects that attributed to the critical habitat efforts may incur incremental economic will result from the species being listed designation. However, two threatened impacts. This screening analysis and those attributable to the critical species, Gulf sturgeon (listed as Atlantic combined with the information habitat designation (i.e., difference sturgeon (Gulf subspecies), Acipenser contained in our IEM are what we between the jeopardy and adverse oxyrinchus desotoi) and ringed map consider our draft economic analysis modification standards) for the pearl turtle (Graptemys oculifera), currently (DEA) of the proposed critical habitat darter’s critical habitat. The following occupy this unit, and conservation designation for the pearl darter; our specific circumstances in this case help efforts to protect these species would DEA is summarized in the narrative to inform our evaluation: (1) The also protect pearl darter critical habitat. essential physical or biological features The DEA finds that the total annual below. identified for critical habitat are the incremental costs of critical habitat Executive Orders (E.O.s) 12866 and same features essential for the life designation for the pearl darter are not 13563 direct Federal agencies to assess requisites of the species, and (2) any anticipated to reach $100 million in any the costs and benefits of available actions that would result in sufficient given year based on the anticipated regulatory alternatives in quantitative harm or harassment to constitute annual number of consultations and (to the extent feasible) and qualitative jeopardy to the pearl darter would also associated administrative costs, which terms. Consistent with the E.O. likely adversely affect the essential are not expected to exceed $710,000 in regulatory analysis requirements, our physical or biological features of critical any year. effects analysis under the Act may take habitat. The IEM outlines our rationale In Unit 1, which constitutes 94 into consideration impacts to both concerning this limited distinction percent of the proposed critical habitat directly and indirectly affected entities, between baseline conservation efforts area, the activities that may affect the where practicable and reasonable. If and incremental impacts of the critical habitat are already subject to sufficient data are available, we assess designation of critical habitat for this section 7 consultation due to the to the extent practicable the probable species. This evaluation of the presence of pearl darter. We determined impacts to both directly and indirectly incremental effects has been used as the that the project modification affected entities. As part of our basis to evaluate the probable recommendations made to avoid screening analysis, we considered the incremental economic impacts of this jeopardy to the pearl darter would also types of economic activities that are proposed designation of critical habitat. result in the avoidance of adverse likely to occur within the areas likely The proposed critical habitat modification. Thus, for projects and affected by the critical habitat designation for the pearl darter totals activities occurring in Unit 1, no designation. In our evaluation of the approximately 517 mi (832 km) of river additional project modification probable incremental economic impacts and stream channels in two units. recommendations are likely to result that may result from the proposed Riparian lands bordering the proposed from the proposed critical habitat rule designation of critical habitat for the critical habitat are under private (78 and costs are limited to additional pearl darter, first we identified, in the percent), county (0.1 percent), State (15 administrative effort. IEM dated April 21, 2020, probable percent), and Federal (9 percent) A relatively small fraction (6 percent) incremental economic impacts ownership. A small portion (1.3 of the proposed critical habitat associated with the following categories percent) has shared State and Federal designation is in Unit 2, which is not of activities: (1) Roadway and bridge ownership. Unit 1 is occupied by the currently occupied by the species. In construction and repair; (2) commercial pearl darter and represents 94 percent of these areas, activities that may affect the

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critical habitat for the pearl darter are scope of the Service’s expertise, for justification, we will defer to the expert also already subject to section 7 purposes of the exclusion analysis we judgment of DoD, DHS, or another consultation due to the presence of will assign weights to those impacts Federal agency as to: (1) Whether other listed species with similar habitat consistent with the information from activities on its lands or waters, or its requirements and designated critical experts in, or sources with firsthand activities on other lands or waters, have habitat. Additionally, activities that may knowledge about, those impacts, unless national-security or homeland-security affect pearl darter critical habitat in Unit we have rebutting information. We may implications; (2) the importance of those 2 generally implement project exclude an area from critical habitat if implications; and (3) the degree to modification recommendations from a we determine that the benefits of which the cited implications would be standardized set provided in the excluding the area outweigh the benefits adversely affected in the absence of an Mississippi Standard Local Operations of including the area, provided the exclusion. In that circumstance, in Procedures for Endangered Species exclusion will not result in the conducting a discretionary section (SLOPES) agreement. Through this extinction of this species. 4(b)(2) exclusion analysis, we will give great weight to national-security and agreement, enacted in June 2017, the Consideration of National Security homeland-security concerns in U.S. Army Corps of Engineers (COE) Impacts and the Service have established routine analyzing the benefits of exclusion. procedures for jointly implementing Section 4(a)(3)(B)(i) of the Act may In preparing this proposal, we section 7 requirements for all projects not cover all DoD lands or areas that determined that the lands within the that require COE permits. The pose potential national-security proposed designation of critical habitat agreement requires the COE to consult concerns (e.g., a DoD installation that is for the pearl darter are not owned, species-specific SLOPES documents to in the process of revising its INRMP for managed, or used by the DoD or DHS, determine if a project is expected to a newly listed species or a species and, therefore, we anticipate no impact adversely affect the species or its previously not covered). If a particular on national security or homeland habitat. As part of the agreement, area is not covered under section security. However, during the species-specific avoidance and 4(a)(3)(B)(i), national-security or development of a final designation we minimization measures have been homeland-security concerns are not a will consider any additional established for COE projects. The factor in the process of determining information received through the public measures described for the pearl darter what areas meet the definition of comment period on the impacts of the ‘‘critical habitat.’’ Nevertheless, when are similar to the measures described for proposed designation on national designating critical habitat under overlapping species and because the security or homeland security to section 4(b)(2), the Service must COE addresses permitting for projects determine whether to undertake the consider impacts on national security, with water impacts, all projects with a discretionary analysis to determine including homeland security, on lands Federal nexus in the proposed pearl whether to exclude any specific areas or areas not covered by section darter critical habitat are likely to follow from the final critical habitat 4(a)(3)(B)(i). Accordingly, we will the Mississippi SLOPES procedures and designation under authority of section always consider for exclusion from the recommendations. Therefore, even 4(b)(2) and our implementing designation areas for which DoD, absent critical habitat designation, these regulations at 50 CFR 17.90. Department of Homeland Security activities are likely to avoid adverse (DHS), or another Federal agency has Consideration of Other Relevant effects on the habitat. requested exclusion based on an Impacts We are soliciting data and comments assertion of national-security or Under section 4(b)(2) of the Act, we from the public on the DEA discussed homeland-security concerns. consider any other relevant impacts, in above, as well as all aspects of this We cannot, however, automatically addition to economic impacts and proposed rule and our required exclude requested areas. When DoD, impacts on national security discussed determinations. During the development DHS, or another Federal agency requests above. We consider a number of factors of a final designation, we will consider exclusion from critical habitat on the including whether there are permitted the information presented in the DEA basis of national-security or homeland- conservation plans covering the species and any additional information on security impacts, it must provide in the area such as HCPs, safe harbor economic impacts we receive during the credible information, including a agreements (SHAs), or candidate public comment period to determine reasonably specific justification of an conservation agreements with whether any specific areas should be incremental impact on national security assurances (CCAAs), or whether there excluded from the final critical habitat that would result from the designation are non-permitted conservation designation under authority of section of that specific area as critical habitat. agreements and partnerships that would 4(b)(2) and our implementing That justification could include be encouraged by designation of, or regulations at 50 CFR 17.90. If we demonstration of probable impacts, exclusion from, critical habitat. In receive credible information regarding such as impacts to ongoing border- addition, we look at the existence of the existence of a meaningful economic security patrols and surveillance Tribal conservation plans and impact or other relevant impact activities, or a delay in training or partnerships and consider the supporting a benefit of exclusion, we facility construction, as a result of government-to-government relationship will conduct an exclusion analysis for compliance with section 7(a)(2) of the of the United States with Tribal entities. the relevant area or areas. We may also Act. If the agency requesting the We also consider any social impacts that otherwise decide to exercise the exclusion does not provide us with a might occur because of the designation. discretion to evaluate any particular reasonably specific justification, we will In preparing this proposal, we areas for possible exclusion. In addition, contact the agency to recommend that it determined that there are currently no if we do conduct an exclusion analysis provide a specific justification or HCPs or other management plans for and we have received any information clarification of its concerns relative to pearl darter, and the proposed from experts in, or sources with the probable incremental impact that designation does not include any Tribal firsthand knowledge about, impacts of could result from the designation. If the lands or trust resources. We anticipate the designation that are outside the agency provides a reasonably specific no impact on Tribal lands, partnerships,

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or HCPs from this proposed critical achieving regulatory ends. The general, the term ‘‘significant economic habitat designation. Additionally, as executive order directs agencies to impact’’ is meant to apply to a typical described above, we are not considering consider regulatory approaches that small business firm’s business excluding any particular areas on the reduce burdens and maintain flexibility operations. basis of impacts to national security or and freedom of choice for the public Under the RFA, as amended, and as economic impacts. where these approaches are relevant, understood in light of recent court During the development of a final feasible, and consistent with regulatory decisions, Federal agencies are required designation, we will consider all objectives. E.O. 13563 emphasizes to evaluate the potential incremental information currently available or further that regulations must be based impacts of rulemaking on those entities received during the public comment on the best available science and that directly regulated by the rulemaking period. If we receive credible the rulemaking process must allow for itself; in other words, the RFA does not information regarding the existence of a public participation and an open require agencies to evaluate the meaningful impact supporting a benefit exchange of ideas. We have developed potential impacts to indirectly regulated of excluding any area, we will this proposed rule in a manner entities. The regulatory mechanism undertake an exclusion analysis and consistent with these requirements. through which critical habitat determine whether those areas should protections are realized is section 7 of Regulatory Flexibility Act (5 U.S.C. 601 the Act, which requires Federal be excluded from the final critical et seq.) habitat designation under authority of agencies, in consultation with the section 4(b)(2) and our implementing Under the Regulatory Flexibility Act Service, to ensure that any action regulations at 50 CFR 17.90. We may (RFA; 5 U.S.C. 601 et seq.), as amended authorized, funded, or carried out by the also exercise the discretion to undertake by the Small Business Regulatory agency is not likely to destroy or exclusion analyses for other areas as Enforcement Fairness Act of 1996 adversely modify critical habitat. well. (SBREFA; 5 U.S.C. 801 et seq.), Therefore, under section 7, only Federal whenever an agency is required to action agencies are directly subject to Required Determinations publish a notice of rulemaking for any the specific regulatory requirement Clarity of the Rule proposed or final rule, it must prepare (avoiding destruction and adverse and make available for public comment modification) imposed by critical We are required by Executive Orders a regulatory flexibility analysis that habitat designation. Consequently, it is 12866 and 12988 and by the describes the effects of the rule on small our position that only Federal action Presidential Memorandum of June 1, entities (i.e., small businesses, small agencies would be directly regulated if 1998, to write all rules in plain organizations, and small government we adopt the proposed critical habitat language. This means that each rule we jurisdictions). However, no regulatory designation. There is no requirement publish must: flexibility analysis is required if the under the RFA to evaluate the potential (1) Be logically organized; head of the agency certifies the rule will impacts to entities not directly (2) Use the active voice to address not have a significant economic impact regulated. Moreover, Federal agencies readers directly; on a substantial number of small are not small entities. Therefore, (3) Use clear language rather than entities. The SBREFA amended the RFA because no small entities would be jargon; to require Federal agencies to provide a directly regulated by this rulemaking, (4) Be divided into short sections and certification statement of the factual the Service certifies that, if made final sentences; and basis for certifying that the rule will not as proposed, the proposed critical (5) Use lists and tables wherever have a significant economic impact on habitat designation will not have a possible. a substantial number of small entities. significant economic impact on a If you feel that we have not met these According to the Small Business substantial number of small entities. requirements, send us comments by one Administration, small entities include In summary, we have considered of the methods listed in ADDRESSES. To small organizations such as whether the proposed designation better help us revise the rule, your independent nonprofit organizations; would result in a significant economic comments should be as specific as small governmental jurisdictions, impact on a substantial number of small possible. For example, you should tell including school boards and city and entities. For the above reasons and us the numbers of the sections or town governments that serve fewer than based on currently available paragraphs that are unclearly written, 50,000 residents; and small businesses information, we certify that, if made which sections or sentences are too (13 CFR 121.201). Small businesses final, the proposed critical habitat long, the sections where you feel lists or include manufacturing and mining designation will not have a significant tables would be useful, etc. concerns with fewer than 500 economic impact on a substantial employees, wholesale trade entities number of small business entities. Regulatory Planning and Review with fewer than 100 employees, retail (Executive Orders 12866 and 13563) Therefore, an initial regulatory and service businesses with less than $5 flexibility analysis is not required. Executive Order 12866 provides that million in annual sales, general and the Office of Information and Regulatory heavy construction businesses with less Energy Supply, Distribution, or Use— Affairs (OIRA) in the Office of than $27.5 million in annual business, Executive Order 13211 Management and Budget will review all special trade contractors doing less than Executive Order 13211 (Actions significant rules. OIRA has determined $11.5 million in annual business, and Concerning Regulations That that this rule is not significant. agricultural businesses with annual Significantly Affect Energy Supply, Executive Order 13563 reaffirms the sales less than $750,000. To determine Distribution, or Use) requires agencies principles of E.O. 12866 while calling if potential economic impacts to these to prepare Statements of Energy Effects for improvements in the nation’s small entities are significant, we when undertaking certain actions. In regulatory system to promote considered the types of activities that our economic analysis, we did not find predictability, to reduce uncertainty, might trigger regulatory impacts under that this proposed critical habitat and to use the best, most innovative, this designation as well as types of designation would significantly affect and least burdensome tools for project modifications that may result. In energy supplies, distribution, or use.

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Therefore, this action is not a significant by the designation of critical habitat, the is not required. In keeping with energy action, and no Statement of legally binding duty to avoid Department of the Interior and Energy Effects is required. destruction or adverse modification of Department of Commerce policy, we critical habitat rests squarely on the requested information from, and Unfunded Mandates Reform Act Federal agency. Furthermore, to the coordinated development of this (2 U.S.C. 1501 et seq.) extent that non-Federal entities are proposed critical habitat designation In accordance with the Unfunded indirectly impacted because they with, appropriate State resource Mandates Reform Act (2 U.S.C. 1501 et receive Federal assistance or participate agencies. From a federalism perspective, seq.), we make the following finding: in a voluntary Federal aid program, the the designation of critical habitat (1) This proposed rule would not Unfunded Mandates Reform Act would directly affects only the responsibilities produce a Federal mandate. In general, not apply, nor would critical habitat of Federal agencies. The Act imposes no a Federal mandate is a provision in shift the costs of the large entitlement other duties with respect to critical legislation, statute, or regulation that programs listed above onto State habitat, either for States and local would impose an enforceable duty upon governments. governments, or for anyone else. As a State, local, or Tribal governments, or (2) We do not believe that this rule result, the proposed rule does not have the private sector, and includes both would significantly or uniquely affect substantial direct effects either on the ‘‘Federal intergovernmental mandates’’ small governments because it will not States, or on the relationship between and ‘‘Federal private sector mandates.’’ produce a Federal mandate of $100 the national government and the States, These terms are defined in 2 U.S.C. million or greater in any year, that is, it or on the distribution of powers and 658(5)–(7). ‘‘Federal intergovernmental is not a ‘‘significant regulatory action’’ responsibilities among the various mandate’’ includes a regulation that under the Unfunded Mandates Reform levels of government. The proposed ‘‘would impose an enforceable duty Act. The designation of critical habitat designation may have some benefit to upon State, local, or Tribal imposes no obligations on State or local these governments because the areas governments’’ with two exceptions. It governments and, as such, a Small that contain the features essential to the excludes ‘‘a condition of Federal Government Agency Plan is not conservation of the species are more assistance.’’ It also excludes ‘‘a duty required. clearly defined, and the physical or arising from participation in a voluntary Takings—Executive Order 12630 biological features of the habitat Federal program,’’ unless the regulation necessary for the conservation of the ‘‘relates to a then-existing Federal In accordance with E.O. 12630 species are specifically identified. This program under which $500,000,000 or (Government Actions and Interference information does not alter where and more is provided annually to State, with Constitutionally Protected Private what federally sponsored activities may local, and Tribal governments under Property Rights), we have analyzed the occur. However, it may assist State and entitlement authority,’’ if the provision potential takings implications of local governments in long-range would ‘‘increase the stringency of designating critical habitat for the pearl planning because they no longer have to conditions of assistance’’ or ‘‘place caps darter in a takings implications wait for case-by-case section 7 upon, or otherwise decrease, the Federal assessment. The Act does not authorize consultations to occur. Government’s responsibility to provide the Service to regulate private actions Where State and local governments funding,’’ and the State, local, or Tribal on private lands or confiscate private require approval or authorization from a governments ‘‘lack authority’’ to adjust property as a result of critical habitat Federal agency for actions that may accordingly. At the time of enactment, designation. Designation of critical affect critical habitat, consultation these entitlement programs were: habitat does not affect land ownership, under section 7(a)(2) of the Act would Medicaid; Aid to Families with or establish any closures, or restrictions be required. While non-Federal entities Dependent Children work programs; on use of or access to the designated that receive Federal funding, assistance, Child Nutrition; Food Stamps; Social areas. Furthermore, the designation of or permits, or that otherwise require Services Block Grants; Vocational critical habitat does not affect approval or authorization from a Federal Rehabilitation State Grants; Foster Care, landowner actions that do not require agency for an action, may be indirectly Adoption Assistance, and Independent Federal funding or permits, nor does it impacted by the designation of critical Living; Family Support Welfare preclude development of habitat habitat, the legally binding duty to Services; and Child Support conservation programs or issuance of avoid destruction or adverse Enforcement. ‘‘Federal private sector incidental take permits to permit actions modification of critical habitat rests mandate’’ includes a regulation that that do require Federal funding or squarely on the Federal agency. ‘‘would impose an enforceable duty permits to go forward. However, Federal Civil Justice Reform—Executive Order upon the private sector, except (i) a agencies are prohibited from carrying 12988 condition of Federal assistance or (ii) a out, funding, or authorizing actions that duty arising from participation in a would destroy or adversely modify In accordance with Executive Order voluntary Federal program.’’ critical habitat. A takings implications 12988 (Civil Justice Reform), the Office The designation of critical habitat assessment has been completed for the of the Solicitor has determined that the does not impose a legally binding duty proposed designation of critical habitat rule would not unduly burden the on non-Federal Government entities or for the pearl darter, and it concludes judicial system and that it meets the private parties. Under the Act, the only that, if adopted, this designation of requirements of sections 3(a) and 3(b)(2) regulatory effect is that Federal agencies critical habitat does not pose significant of the Order. We have proposed must ensure that their actions do not takings implications for lands within or designating critical habitat in destroy or adversely modify critical affected by the designation. accordance with the provisions of the habitat under section 7. While non- Act. To assist the public in Federal entities that receive Federal Federalism—Executive Order 13132 understanding the habitat needs of the funding, assistance, or permits, or that In accordance with E.O. 13132 species, this proposed rule identifies the otherwise require approval or (Federalism), this proposed rule does elements of physical or biological authorization from a Federal agency for not have significant Federalism effects. features essential to the conservation of an action, may be indirectly impacted A federalism summary impact statement the species. The proposed areas of

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critical habitat are presented on maps, with Native American Tribal Signing Authority and the proposed rule provides several Governments; 59 FR 22951), Executive The Director, U.S. Fish and Wildlife options for the interested public to Order 13175 (Consultation and Service, approved this document and obtain more detailed location Coordination with Indian Tribal authorized the undersigned to sign and information, if desired. Governments), and the Department of submit the document to the Office of the Paperwork Reduction Act of 1995 (44 the Interior’s manual at 512 DM 2, we Federal Register for publication U.S.C. 3501 et seq.) readily acknowledge our responsibility electronically as an official document of to communicate meaningfully with the U.S. Fish and Wildlife Service. This rule does not contain recognized Federal Tribes on a Martha Williams, Principal Deputy information collection requirements, government-to-government basis. In Director Exercising the Delegated and a submission to the Office of accordance with Secretarial Order 3206 Authority of the Director, U.S. Fish and Management and Budget (OMB) under of June 5, 1997 (American Indian Tribal Wildlife Service, approved this the Paperwork Reduction Act of 1995 Rights, Federal-Tribal Trust document on June 29, 2021, for (44 U.S.C. 3501 et seq.) is not required. Responsibilities, and the Endangered publication. We may not conduct or sponsor and you are not required to respond to a Species Act), we readily acknowledge List of Subjects in 50 CFR Part 17 collection of information unless it our responsibilities to work directly with Tribes in developing programs for Endangered and threatened species, displays a currently valid OMB control Exports, Imports, Reporting and number. healthy ecosystems, to acknowledge that Tribal lands are not subject to the same recordkeeping requirements, Transportation. National Environmental Policy Act (42 controls as Federal public lands, to U.S.C. 4321 et seq.) remain sensitive to Indian culture, and Proposed Regulation Promulgation It is our position that, outside the to make information available to Tribes. Accordingly, we propose to amend jurisdiction of the U.S. Court of Appeals We have determined that no Tribal part 17, subchapter B of chapter I, title for the Tenth Circuit, we do not need to lands fall within the boundaries of the 50 of the Code of Federal Regulations, prepare environmental analyses proposed critical habitat for the pearl as set forth below: pursuant to the National Environmental darter, so no Tribal lands would be Policy Act (NEPA; 42 U.S.C. 4321 et affected by the proposed designation. PART 17—ENDANGERED AND seq.) in connection with designating THREATENED WILDLIFE AND PLANTS critical habitat under the Act. We References Cited ■ 1. The authority citation for part 17 published a notice outlining our reasons A complete list of references cited in continues to read as follows: for this determination in the Federal this rulemaking is available on the Register on October 25, 1983 (48 FR internet at http://www.regulations.gov Authority: 16 U.S.C. 1361–1407; 1531– 49244). This position was upheld by the 1544; and 4201–4245, unless otherwise and upon request from the Mississippi U.S. Court of Appeals for the Ninth noted. Ecological Services Field Office (see FOR Circuit (Douglas County v. Babbitt, 48 FURTHER INFORMATION CONTACT). ■ 2. Amend § 17.11(h) by revising the F.3d 1495 (9th Cir. 1995), cert. denied entry for ‘‘Darter, pearl’’ under FISHES in 516 U.S. 1042 (1996)). Authors the List of Endangered and Threatened Wildlife to read as follows: Government-to-Government The primary authors of this proposed Relationship With Tribes rule are the staff members of the § 17.11 Endangered and threatened In accordance with the President’s Mississippi Ecological Services Field wildlife. memorandum of April 29, 1994 Office. * * * * * (Government-to-Government Relations (h) * * *

Common name Scientific name Where listed Status Listing citations and applicable rules

******* FISHES

******* Darter, pearl ...... Percina aurora ...... Wherever found ...... T 82 FR 43885, 9/20/2017; 50 CFR 17.95(e).CH

*******

■ 3. Amend § 17.95(e) by adding an Pearl Darter (Percina aurora) (i) Unobstructed and stable stream entry for ‘‘Pearl Darter (Percina aurora)’’ and river channels with: following the entry for ‘‘Niangua Darter (1) Critical habitat units are depicted (A) Connected sequences of channel (Etheostoma nianguae)’’ to read as set for Clarke, Covington, Forrest, George, runs and bends associated with pools Greene, Jackson, Jones, Lauderdale, forth below: and scour holes, and Newton, Perry, Simpson, Stone, and (B) Bottom substrates consisting of § 17.95 Critical habitat—fish and wildlife. Wayne Counties, Mississippi, on the fine and coarse sand, gravel, bedrock, * * * * * maps in this entry. silt, clay, organic matter, or woody (2) Within these areas, the physical or debris. (e) Fishes. biological features essential to the (ii) A natural flow regime necessary to * * * * * conservation of the pearl darter consist maintain instream habitats and their of the following components: connectivity.

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(iii) Water quality conditions, high water line, and does not include accompanying regulatory text, establish including cool to warm water manmade structures (such as buildings, the boundaries of the critical habitat temperatures (8 to 30 °C (46.4 to aqueducts, runways, roads, and other designation. The coordinates or plot 86.0 °F)), high dissolved oxygen (5.8 to paved areas) and the land on which they points or both on which each map is 9.3 mg/l), slightly acidic to basic pH (6.3 are located existing within the legal based are available to the public at the to 7.6), and low levels of pollutants and boundaries on the effective date of the Service’s internet site at http:// nutrients meeting the current State of final rule. www.fws.gov/mississippiES/, at http:// Mississippi criteria, as necessary to (4) Data layers defining map units www.regulations.gov under Docket No. maintain natural physiological were created using U.S. Geological FWS–R4–ES–2020–0062, and at the processes for normal behavior, growth, Survey’s National Hydrography Dataset field office responsible for this flowline data, on a base map of State and viability of all life stages of the designation. You may obtain field office and County boundaries from the U.S. species. location information by contacting one (iv) Presence of a prey base of small Department of Agriculture’s Natural of the Service regional offices, the aquatic macroinvertebrates, including Resources Conservation Service. Critical addresses of which are listed at 50 CFR midges, crustaceans, mayflies, habitat units were mapped using the 2.2. caddisflies, and zooplankton. Geographic Coordinate System North (3) Critical habitat includes only the American 1983 coordinates. The maps (5) Note: Index map follows: stream channels within the ordinary in this entry, as modified by any BILLING CODE 4333–15–P

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Index Map of Critical Habitat for Pearl Darter ( Percina aurora)

\ Newton Lauderdale Unit 2 Strong River

Wayne

Unit 1 Pascagoula River I

NI sissippi Louisiana

- Critical Habitat State Boundary Louisiana c:J D County Boundary 0 12:5

(6) Unit 1: Pascagoula River drainage, mi (102 km) to the confluence of the confluence of Okatibbee Creek and Clarke, Covington, Forrest, George, Leaf and Chickasawhay Rivers in George Chunky River in Clarke County; Greene, Lauderdale, Jackson, Jones, County; (D) The Chunky River from its Newton, Perry, Stone, and Wayne (B) The Big Black/Black Creek from its confluence with Okatibbee Creek in Counties, Mississippi. confluence with the Pascagoula River in Clarke County, upstream 21 mi (34 km) (i) Unit 1 consists of 487 miles (mi) Jackson County, upstream 80 mi (129 to second Highway 80 Crossing in (783 kilometers (km)) of connected river km) to U.S. Highway 49 Bridge in Newton County; and stream channels within the Forrest County; (E) The Leaf River from its confluence Pascagoula River drainage, including: (C) The Chickasawhay River from its with the Chickasawhay River in George (A) The Pascagoula River from its confluence with the Leaf River just County, upstream 119 mi (192 km) to confluence with the West Pascagoula north of Enterprise, Clarke County, the bridge crossing at U.S. Highway 84 River in Jackson County, upstream 63 upstream 160 mi (257 km) to the in Covington County;

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(F) The Bouie River from its Forrest County, upstream 28 mi (45 km) the exception of 76 mi (122 km) of the confluence with the Leaf River, to the bridge crossing at U.S. Highway Pascagoula River channel border owned upstream 15 mi (24 km) to the 84 in Covington County. and managed by the Mississippi confluence of Okatoma Creek, in Forrest (ii) The channel borders (and Department of Wildlife, Fisheries, and County; and therefore the stream channel bottoms) in Parks, and 45 mi (72 km) owned by the (G) The Okatoma Creek from its Unit 1 are generally privately owned U.S. Forest Service. confluence with the Bouie River in agricultural or silvicultural lands, with (iii) Map of Unit 1 follows:

Unit 1: Pascagoula River Critical Habitat Pearl Darter (Percina aurora), Mississippi

•------+------

',,~~, ,, 6 ~ ,_ "'\. 'I r -~ ---~ --•-..--_.__ - - r---.L--..1 I I

1' Foi~st l:1,,i · I

--'--- -- ,@~, C I \.'t,,~ ~ - - - ":, -L -¾ - Tennessee I : ~-"' "'c--1- St,;:ine 0,$"" I __ _ -'------~, I I labama Ha~~i,son '. Jackson \ i • ·, l -18 ····•-·:ce. 1

- Critical Habitat N ,,·.-..-·c::·::.::, Road 0 12.5 25 50 Kilometers Louisiana : : : County Boundary + ,--....,..--,--,.--,--r---.-'-..-....,40 Miles - __ I ·----- D State Boundary 0 10 20

(7) Unit 2: Strong River, Simpson (i) Unit 2 consists of approximately 30 from its confluence with the Pearl River, County, Mississippi. mi (49 km) of the Strong River channel upstream to U.S. Highway 49 in

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Simpson County. The channel borders privately owned agricultural or km)) owned and managed by the (and therefore the stream channel silvicultural lands, with the exception Simpson County Park Commission. bottoms) in this unit are generally of a short channel reach (0.39 mi (0.63 (ii) Map of Unit 2 follows:

Unit 2: Strong River Critical Habitat Pearl Darter ( Percina aurora), Simpson County, Mississippi

.,

N o 5 10 20Kilometers - Critical Habttat == Road 'o~~ C';'.i County Boundary + 3.75 7.5 15 MIies

* * * * * Madonna Baucum, Regulations and Policy Chief, Division of Policy, Economics, Risk Management, and Analytics, Joint Administrative Operations, U.S. Fish and Wildlife Service. [FR Doc. 2021–14272 Filed 7–12–21; 8:45 am] BILLING CODE 4333–15–C

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