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DEPARTMENT OF THE INTERIOR hearing, in writing, at the address Executive Summary shown in FOR FURTHER INFORMATION Why we need to publish a rule. Under Fish and Wildlife Service CONTACT by January 4, 2021. the Act, if we determine that a species ADDRESSES: Written comments: You may may be an endangered or threatened 50 CFR Part 17 submit comments by one of the species throughout all or a significant [Docket No. FWS–R4–ES–2020–0058; following methods: portion of its range, we are required to FF09E21000 FXES11110900000 212] (1) Electronically: Go to the Federal promptly publish a proposal in the eRulemaking Portal: http:// RIN 1018–BE87 Federal Register and make a www.regulations.gov. In the Search box, determination on our proposal within 1 Endangered and Threatened Wildlife enter FWS–R4–ES–2020–0058, which is year. To the maximum extent prudent and Plants; Threatened Species Status the docket number for this rulemaking. and determinable, we must designate With Section 4(d) Rule for the Upper Then, click on the Search button. On the critical habitat for any species that we Coosa River Distinct Population resulting page, in the Search panel on determine to be an endangered or Segment of Frecklebelly Madtom and the left side of the screen, under the threatened species under the Act. Designation of Critical Habitat Document Type heading, check the Listing a species as an endangered or Proposed Rule box to locate this threatened species and designation of AGENCY: Fish and Wildlife Service, document. You may submit a comment critical habitat can only be completed Interior. by clicking on ‘‘Comment Now!’’ by issuing a rule. ACTION: Proposed rule. (2) By hard copy: Submit by U.S. mail What this document does. This rule to: Public Comments Processing, Attn: proposes the listing of the Upper Coosa SUMMARY: We, the U.S. Fish and FWS–R4–ES–2020–0058, U.S. Fish and River distinct population segment (DPS) Wildlife Service (Service), announce a Wildlife Service, MS: JAO/3W, 5275 of frecklebelly madtom as a threatened 12-month finding on a petition to list Leesburg Pike, Falls Church, VA 22041– species with a rule under section 4(d) of the frecklebelly madtom (Noturus 3803. the Act and proposes the designation of munitus), a fish species from Louisiana, We request that you send comments critical habitat for the DPS. Mississippi, Alabama, Georgia, and only by the methods described above. The basis for our action. Under the Tennessee, as an endangered or We will post all comments on http:// Act, we may determine that a species is threatened species and designate critical www.regulations.gov. This generally an endangered or threatened species habitat under the Endangered Species means that we will post any personal because of any of five factors: (A) The Act of 1973, as amended (Act). After a information you provide us (see present or threatened destruction, review of the best available scientific Information Requested, below, for more modification, or curtailment of its and commercial information, we find information). habitat or range; (B) overutilization for that listing the frecklebelly madtom as Availability of supporting materials: commercial, recreational, scientific, or an endangered or a threatened species The species status assessment (SSA) educational purposes; (C) disease or throughout all of its range is not report and other materials relating to predation; (D) the inadequacy of warranted. However, we determined this proposal can be found on the existing regulatory mechanisms; or (E) that listing is warranted for a distinct Southeast Region website at https:// other natural or manmade factors population segment (DPS) of the www.fws.gov/southeast/ and at http:// affecting its continued existence. We frecklebelly madtom in the Upper Coosa www.regulations.gov under Docket No. have determined that the factors driving River in Georgia and Tennessee. FWS–R4–ES–2020–0058. the status of the Upper Coosa River DPS For the critical habitat designation, Accordingly, we propose to list the are habitat destruction and degradation the coordinates or plot points or both Upper Coosa River DPS of the caused by agriculture and developed from which the maps are generated are frecklebelly madtom as a threatened land uses resulting in poor water quality included in the administrative record species with a rule issued under section (Factor A). and are available at https:// 4(d) of the Act (‘‘4(d) rule’’). If we Section 4(a)(3) of the Act requires the www.fws.gov/southeast/, at http:// finalize this rule as proposed, it would Secretary of the Interior (Secretary) to www.regulations.gov under Docket No. add this DPS to the List of Endangered designate critical habitat concurrent FWS–R4–ES–2020–0058, and at the and Threatened Wildlife and extend the with listing to the maximum extent Alabama Ecological Services Field Act’s protections to the DPS. We also prudent and determinable. Section Office (see FOR FURTHER INFORMATION propose to designate critical habitat for 3(5)(A) of the Act defines critical habitat CONTACT). Any additional tools or the Upper Coosa River DPS under the as (i) the specific areas within the supporting information that we may Act. In total, approximately 134 river geographical area occupied by the develop for the critical habitat miles (216 kilometers) in Georgia and species, at the time it is listed, on which designation will also be available at the Tennessee fall within the boundaries of are found those physical or biological Service website and field office set out the proposed critical habitat features (I) essential to the conservation above and may also be included in the designation. We also announce the of the species and (II) which may preamble and/or at http:// availability of a draft economic analysis require special management www.regulations.gov. (DEA) of the proposed designation of considerations or protections; and (ii) critical habitat for the Upper Coosa FOR FURTHER INFORMATION CONTACT: specific areas outside the geographical River DPS. William Pearson, Field Supervisor, U.S. area occupied by the species at the time DATES: We will accept comments Fish and Wildlife Service, Alabama it is listed, upon a determination by the received or postmarked on or before Ecological Services Field Office, 1208– Secretary that such areas are essential January 19, 2021. Comments submitted B Main Street, Daphne, AL 36526; for the conservation of the species. electronically using the Federal telephone 251–441–5870. Persons who Section 4(b)(2) of the Act states that the eRulemaking Portal (see ADDRESSES, use a telecommunications device for the Secretary must make the designation on below) must be received by 11:59 p.m. deaf (TDD) may call the Federal Relay the basis of the best scientific data Eastern Time on the closing date. We Service at 800–877–8339. available and after taking into must receive requests for a public SUPPLEMENTARY INFORMATION: consideration the economic impact, the

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impact on national security, and any (c) Historical and current range, (b) The present or threatened other relevant impacts of specifying any including distribution patterns; destruction, modification, or particular area as critical habitat. (d) Historical and current population curtailment of a species’ habitat or range Peer review. In accordance with our levels, and current and projected trends; is not a threat to the species, or threats joint policy on peer review published in and to the species’ habitat stem solely from the Federal Register on July 1, 1994 (59 (e) Past and ongoing conservation causes that cannot be addressed through FR 34270), and our August 22, 2016, measures for the frecklebelly madtom, management actions resulting from memorandum updating and clarifying its habitat, or both. consultations under section 7(a)(2) of the role of peer review of listing actions (2) Factors that may affect the the Act; or under the Act, we sought the expert continued existence of the frecklebelly (c) No areas meet the definition of opinions of 10 appropriate specialists madtom, which may include habitat critical habitat. regarding the SSA report. We received modification or destruction, (7) Specific information on: responses from two specialists, and overutilization, disease, predation, the (a) The amount and distribution of their input informed this proposed rule. inadequacy of existing regulatory Upper Coosa River DPS habitat; The purpose of peer review is to ensure mechanisms, or other natural or (b) Information on the physical or that our listing determinations, critical manmade factors. biological features essential to the habitat designations, and 4(d) rules are (3) Biological, commercial trade, or conservation of the DPS; based on scientifically sound data, other relevant data concerning any (c) What areas, that were occupied at assumptions, and analyses. The peer threats (or lack thereof) to the the time of listing and that contain the reviewers have expertise in the biology, frecklebelly madtom and existing physical or biological features essential habitat, and threats to the species. regulations that may be addressing those to the conservation of the DPS, such as Because we will consider all threats. the Coosawattee River in Georgia, comments and information we receive (4) Additional information concerning should be included in the critical during the comment period, our final the historical and current status, range, habitat designation and why; (d) The methods we used, particularly determinations may differ from this distribution, and population size of the the use of environmental DNA, to proposal. Based on the new information frecklebelly madtom, and specifically identify occupied critical habitat for we receive (and any comments on that the Upper Coosa River DPS, including each of the units; new information), we may conclude that the locations of any additional (e) Special management the Upper Coosa River DPS is populations of the frecklebelly madtom. considerations or protection that may be endangered instead of threatened, or we (5) Information on regulations that are may conclude that the DPS does not needed in critical habitat areas we are necessary and advisable to provide for proposing, including managing for the warrant listing. Such final decisions the conservation of the Upper Coosa would be a logical outgrowth of this potential effects of climate change; and River DPS of frecklebelly madtom and (f) What areas not occupied at the proposal, as long as we: (1) Base the that the Service can consider in decisions on the best scientific and time of listing are essential for the developing a 4(d) rule for the DPS, conservation of the DPS and should be commercial data available after including information concerning the considering all of the relevant factors; included as critical habitat and why. We extent to which we should include any particularly seek comments: (2) do not rely on factors Congress has of the section 9 prohibitions in the 4(d) not intended us to consider; and (3) (i) Regarding whether occupied areas rule or whether any other forms of take are adequate for the conservation of the articulate a rational connection between should be excepted from the the facts found and the conclusions DPS; and prohibitions in the 4(d) rule. We (ii) Providing specific information made, including why we changed our particularly seek comments concerning: conclusion. regarding whether or not unoccupied (a) Whether we should add a areas would, with reasonable certainty, Information Requested provision to except incidental take contribute to the conservation of the We intend that any final action resulting from silvicultural practices DPS and contain at least one physical or resulting from this proposed rule will be and forest management activities that biological feature essential to the based on the best scientific and implement State-approved best conservation of the DPS. commercial data available and be as management practices and comply with (8) Land use designations and current accurate and as effective as possible. forest practice guidelines related to or planned activities in the subject areas Therefore, we request comments or water quality standards. and their possible impacts on proposed information from other concerned (b) Whether there are additional critical habitat. governmental agencies, Native provisions the Service may wish to (9) Any probable economic, national American Tribes, the scientific consider for the section 4(d) rule in security, or other relevant impacts of community, industry, or any other order to conserve, recover, and manage designating any area that may be interested parties concerning this the Upper Coosa River DPS. included in the final designation, and proposed rule. (6) The reasons why we should or the related benefits of including or We particularly seek comments should not designate habitat as ‘‘critical excluding specific areas. concerning: habitat’’ under section 4 of the Act (16 (10) Information on the extent to (1) The frecklebelly madtom’s biology, U.S.C. 1531 et seq.), including which the description of probable range, distribution, and population information to inform the following economic impacts in the draft economic trends, particularly in the upper Coosa factors that the regulations identify as analysis is a reasonable estimate of the River watershed in Georgia and reasons why designation of critical likely economic impacts. Tennessee, including: habitat may be not prudent: (11) Whether any specific areas we are (a) Biological or ecological (a) The species is threatened by taking proposing for critical habitat requirements of the frecklebelly or other human activity and designation should be considered for madtom, including habitat requirements identification of critical habitat can be exclusion under section 4(b)(2) of the for feeding, breeding, and sheltering; expected to increase the degree of such Act, and whether the benefits of (b) Genetics and taxonomy; threat to the species; potentially excluding any specific area

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outweigh the benefits of including that Register. The use of these virtual public 1.2; Service 2020, pp. 5–15; available at area under section 4(b)(2) of the Act. hearings is consistent with our https://www.fws.gov/southeast/ and at (12) Whether we could improve or regulations at 50 CFR 424.16(c)(3). http://www.regulations.gov under modify our approach to designating Docket No. FWS–R4–ES–2020–0058). critical habitat in any way to provide for Previous Federal Actions The frecklebelly madtom is a catfish greater public participation and On April 20, 2010, we were petitioned species that inhabits the main channels understanding, or to better by the Center for Biological Diversity and larger tributaries of large river accommodate public concerns and and others to list 404 aquatic species in systems in Louisiana, Mississippi, comments. the southeastern United States, Alabama, Georgia, and Tennessee. The Please include sufficient information including the frecklebelly madtom, species has a broad but disjunct with your submission (such as scientific under the Act. In response to the distribution across the Pearl River journal articles or other publications) to petition, we completed a partial 90-day watershed and Mobile River Basin, with allow us to verify any scientific or finding on September 27, 2011 (76 FR populations in the Pearl River and commercial information you include. 59836), in which we announced our Bogue Chitto River in the Pearl River Please note that submissions merely finding that the petition contained watershed and the Upper Tombigbee, stating support for, or opposition to, the substantial information indicating that Alabama, Cahaba, Etowah, and action under consideration without listing may be warranted for numerous Conasauga river systems in the Mobile providing supporting information, species, including the frecklebelly River Basin (Piller et al. 2004, p. 1004; although noted, will not be considered madtom. On April 15, 2015, the Center Bennett et al. 2010, pp. 507–508). in making a determination, as section for Biological Diversity amended a Throughout its range, the frecklebelly 4(b)(1)(A) of the Act directs that complaint against the Service for failure madtom primarily occupies streams and determinations as to whether any to complete a 12-month finding for the rivers within the Gulf Coastal Plain species is an endangered or a threatened frecklebelly madtom in accordance with physiographic province; however, it species must be made ‘‘solely on the statutory deadlines. On September 9, also occurs in the Ridge and Valley basis of the best scientific and 2015, the Service and the Center for physiographic province in the commercial data available.’’ Biological Diversity filed stipulated Conasauga River and Piedmont Upland You may submit your comments and settlements in the District of Columbia, physiographic province in the Etowah materials concerning this proposed rule agreeing that the Service would submit River (Mettee et al. 1996, pp. 408–409). by one of the methods listed in to the Federal Register a 12-month The frecklebelly madtom is a small, ADDRESSES. We request that you send finding for the frecklebelly madtom no stout catfish reaching 99 millimeters comments only by the methods later than September 30, 2020 (Center (mm) (3.9 inches (in)) in length (Etnier described in ADDRESSES. for Biological Diversity v. Jewell, case and Starnes 1993, p. 324) and If you submit information via http:// 1:15–CV–00229–EGS). This document distinctively marked with dark saddles www.regulations.gov, your entire constitutes our concurrent 12-month (Suttkus and Taylor 1965, p. 171). The submission—including any personal warranted petition finding, proposed color of the frecklebelly madtom is a identifying information—will be posted listing rule, and proposed critical mixture of light yellows with brownish on the website. If your submission is habitat rule. patches and a combination of many made via a hardcopy that includes scattered specks or freckles on the Supporting Documents personal identifying information, you underside, which provides camouflage may request at the top of your document An SSA team prepared an SSA report in its preferred habitats and inspired its that we withhold this information from for the frecklebelly madtom. The SSA common name (Suttkus and Taylor public review. However, we cannot team was composed of Service 1965, p. 176; Vincent 2019, guarantee that we will be able to do so. biologists, in consultation with other unpaginated). The fins’ colors are We will post all hardcopy submissions species experts. The SSA report typically mottled or blotched (Etnier on http://www.regulations.gov. represents a compilation of the best and Starnes 1993, p. 324). The Comments and materials we receive, scientific and commercial data available frecklebelly madtom is armed with as well as supporting documentation we concerning the status of the species, venomous pectoral and dorsal spines used in preparing this proposed rule, including the impacts of past, present, used to defend against predation and will be available for public inspection and future factors (both negative and has barbels around the mouth that act as on http://www.regulations.gov. beneficial) affecting the species. The sensory organs. Service sent the SSA report to 10 The species belongs in the family Public Hearing independent peer reviewers and Ictaluridae, and all species in the genus Section 4(b)(5) of the Act provides for received 2 responses. The Service also Noturus, referred to as madtoms, are a public hearing on this proposal, if sent the SSA report for review to 13 diminutive and possess long and low requested. Requests must be received by partners, including scientists with adipose fins (i.e., found on the back the date specified in DATES. Such expertise in fish biology, stream and behind the dorsal fin) (Page and Burr requests must be sent to the address riverine ecology, and factors negatively 2011, p. 207). The currently recognized shown in FOR FURTHER INFORMATION and positively affecting the species. We taxon is Noturus munitus (Suttkus and CONTACT. We will schedule a public received review from two partners, Taylor 1965, entire; Rhode 1978, p. hearing on this proposal, if requested, Mississippi Museum of Natural Science 465). Since the time of description, and announce the date, time, and place and Georgia Department of Natural uncertainty regarding the taxonomic of the hearing, as well as how to obtain Resources. status of some populations of reasonable accommodations, in the I. Proposed Listing Determination frecklebelly madtom has arisen. In 1998, Federal Register and local newspapers the name ‘‘Coosa madtom’’ (Noturus sp. at least 15 days before the hearing. For Background cf. N. munitus) was coined to describe the immediate future, we will provide A thorough review of the taxonomy, the madtoms, previously identified as these public hearings using webinars life history, and ecology of the frecklebelly madtom, in the Conasauga that will be announced on the Service’s frecklebelly madtom (Noturus munitus) and Etowah Rivers that were website, in addition to the Federal is presented in the SSA report (version morphologically distinct from the

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frecklebelly madtom found elsewhere the frecklebelly madtom has been ‘‘endangered species’’ as a species that (Boschung and Mayden 2004, p. 347; collected in moderate to swift currents is in danger of extinction throughout all Neely 2018, p. 1). However, a recent over boulders, rubble, cobble, and or a significant portion of its range, and analysis of the existing morphological coarse gravel and around concentrations a ‘‘threatened species’’ as a species that and genetic datasets documented of river weed. is likely to become an endangered substantial genetic divergence between The frecklebelly madtom is likely species within the foreseeable future all populations from distinct nocturnal and most active at night. The throughout all or a significant portion of watersheds. The Pearl and Mobile basin species has a lifespan of approximately its range. The Act requires that we populations exhibited the strongest 5 years (Mettee et al. 1996, pp. 408–409) determine whether any species is an genetic divergence, followed by and is reproductively mature in the ‘‘endangered species’’ or a ‘‘threatened Tombigbee and Alabama River (Cahaba second summer after birth, similar to species’’ because of any of the following and Coosa) populations (Neely 2018, other madtom species (Burr and factors: entire). The Cahaba and Coosa Stoeckel 1999, p. 65). In the wild, (A) The present or threatened populations exhibited the lowest genetic reproduction is thought to occur destruction, modification, or differentiation and could not be reliably between June and July (Trauth et al. curtailment of its habitat or range; diagnosed based on morphology. 1981, p. 66). At the Private John Allen (B) Overutilization for commercial, Therefore, because the data indicate National Fish Hatchery in Tupelo, MS, recreational, scientific, or educational divergence between populations but do frecklebelly madtoms have been purposes; not support the description of distinct observed spawning between the end of (C) Disease or predation; (D) The inadequacy of existing subspecies or species, we consider each May to mid-August (Schwarz 2020, unpublished report). The female regulatory mechanisms; or population of frecklebelly madtom to be (E) Other natural or manmade factors produces 50 to 70 eggs, which are a separate evolutionary significant unit affecting its continued existence. (ESU) (Neely 2018, p. 10) for purposes released all at one time (Trauth et al. These factors represent broad of this determination. ESUs are partially 1981, p. 66). Fecundity in madtoms is categories of natural or human-caused defined as a population that ‘‘represents among the lowest for North American actions or conditions that could have an an important component in the freshwater fishes due to their small size, effect on a species’ continued existence. evolutionary legacy of a species’’ relatively large egg size, and high level In evaluating these actions and (Waples 1991, p. 12). Because evolution of parental care given to the fertilized conditions, we look for those that may is a continual process, elements that eggs (embryos) and larvae (Dinkins and have a negative effect on individuals of represent a species’ evolutionary legacy Shute 1996, pp. 58–60; Burr and the species, as well as other actions or are also important elements of a species’ Stoeckel 1999, pp. 66–67). However, the conditions that may ameliorate any adaptive capacity. Therefore, the ESUs frecklebelly madtom is considered negative effects or may have positive recommended by Neely (2018, entire) highly fecund for a madtom and among effects. were used to inform our analysis on the the highest fecundity known for its We use the term ‘‘threat’’ to refer in frecklebelly madtom’s representation, subgenus, Rabida (Bennett et al. 2010, general to actions or conditions that are an attribute of the species’ viability p. 507). known to or are reasonably likely to (Service 2020, pp. 3, 35–37). Nesting sites for madtoms are negatively affect individuals of a For the frecklebelly madtom to typically cavities under natural material species. The term ‘‘threat’’ includes survive and reproduce, individuals need (rocks, logs, empty mussel shells) or actions or conditions that have a direct suitable habitat that supports essential human litter (inside cans or bottles, impact on individuals (direct impacts), life functions at all life stages. Three under boards). Madtoms construct as well as those that affect individuals elements appear to be essential to the cavities on the bottoms of streams by through alteration of their habitat or survival and reproduction of moving substrate using their heads to required resources (stressors). The term individuals: Flowing water, stable push gravel or their mouths to carry and ‘‘threat’’ may encompass—either substrate, and aquatic vegetation. The transport gravel and pebbles (Vincent together or separately—the source of the frecklebelly madtom typically occurs 2019, unpaginated). Both males and action or condition or the action or over firm gravel substrates, such as females may construct nesting cavities condition itself. shoals and riffles, in small to large swift- (Burr and Stoeckel 1999, p. 69). However, the mere identification of flowing streams often associated with The species is an opportunistic any threat(s) does not necessarily mean large rivers and their tributaries (Suttkus insectivore feeding on a variety of that the species meets the statutory and Taylor 1965, pp. 177–178; Mettee et aquatic insects and larvae, including definition of an ‘‘endangered species’’ or al. 1996, p. 409; Vincent 2019, caddisflies, mayflies, blackflies, and a ‘‘threatened species.’’ In determining unpaginated). However, the species will midges (Miller 1984, p. 9). There appear whether a species meets either use streams dominated with sand to be seasonal shifts in food preference definition, we must evaluate all substrates if suitable cover such as large between the sexes, with males typically identified threats by considering the woody debris is present (Wagner 2019, preferring caddisflies in the fall months, expected response by the species, and pers. comm.). Cover is an important and the females preferring midges the effects of the threats—in light of habitat factor for the species, as it during the same time (Miller 1984, p. those actions and conditions that will provides for concealment against 10). ameliorate the threats—on an predators (Vincent 2019, unpaginated), Regulatory and Analytical Framework individual, population, and species foraging habitat, and nesting habitat. In level. We evaluate each threat and its some rivers where the species is found, Regulatory Framework expected effects on the species, then the frecklebelly madtom is often Section 4 of the Act (16 U.S.C. 1533) analyze the cumulative effect of all of associated with aquatic vegetation, such and its implementing regulations (50 the threats on the species as a whole. as river weed (Podostemum), and under CFR part 424) set forth the procedures We also consider the cumulative effect large, flat rocks (Mettee et al. 1996, p. for determining whether a species is an of the threats in light of those actions 409, Freeman et al. 2003, p. iii). In the ‘‘endangered species’’ or a ‘‘threatened and conditions that will have positive upper Etowah and Conasauga Rivers, species.’’ The Act defines an effects on the species, such as any

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existing regulatory mechanisms or To assess frecklebelly madtom healthy populations to withstand conservation efforts. The Secretary viability, we used the three conservation environmental stochasticity (resiliency) determines whether the species meets biology principles of resiliency, and catastrophes (redundancy) and to the definition of an ‘‘endangered redundancy, and representation (Shaffer adapt to biological and physical changes species’’ or a ‘‘threatened species’’ only and Stein 2000, pp. 306–310). Briefly, in its environment (representation). To after conducting this cumulative resiliency supports the ability of the evaluate the current and future viability analysis and describing the expected species to withstand environmental and of the frecklebelly madtom, we assessed effect on the species now and in the demographic stochasticity (for example, a range of conditions to allow us to foreseeable future. wet or dry, warm or cold years), consider the current and future effects The Act does not define the term redundancy supports the ability of the on resiliency, representation, and ‘‘foreseeable future,’’ which appears in species to withstand catastrophic events redundancy. the statutory definition of ‘‘threatened (for example, droughts, large pollution Delineating Representation and species.’’ Our implementing regulations events), and representation supports the Resilience Units at 50 CFR 424.11(d) set forth a ability of the species to adapt over time framework for evaluating the foreseeable to long-term changes in the environment We delineated representation and future on a case-by-case basis. The term (for example, climate changes). In resilience units for the frecklebelly ‘‘foreseeable future’’ extends only so far general, the more resilient and madtom. Representation units were into the future as the Service can redundant a species is and the more delineated to describe the breadth of reasonably determine that both the representation it has, the more likely it known genetic, phenotypic, and future threats and the species’ responses is to sustain populations over time, even ecological diversity within the species. to those threats are likely. In other under changing environmental There is evidence of differentiation in words, the foreseeable future is the conditions. Using these principles, we habitat use, morphology, and genetics period of time in which we can make identified the species’ ecological for areas that the frecklebelly madtom reliable predictions. ‘‘Reliable’’ does not requirements for survival and occupies, which are disconnected mean ‘‘certain’’; it means sufficient to reproduction at the individual, spatially across the landscape. provide a reasonable degree of population, and species levels, and Resilience units were delineated to confidence in the prediction. Thus, a described the beneficial and risk factors describe at a local scale how the species prediction is reliable if it is reasonable influencing the species’ viability. withstands stochastic events. These to depend on it when making decisions. The SSA process can be categorized resilience units are not meant to It is not always possible or necessary into three sequential stages. During the represent individual populations as they to define foreseeable future as a first stage, we evaluated the individual may represent multiple or portions of particular number of years. Analysis of species’ life-history needs. The next groups of demographically linked the foreseeable future uses the best stage involved an assessment of the interbreeding individuals. scientific and commercial data available historical and current condition of the In total, we identified six and should consider the timeframes species’ demographics and habitat representation units for the frecklebelly applicable to the relevant threats and to characteristics, including an madtom: Pearl River (A), upper the species’ likely responses to those explanation of how the species arrived Tombigbee River (B), lower Tombigbee/ threats in view of its life-history at its current condition. The final stage Alabama Rivers (C), Alabama River (D), characteristics. Data that are typically of the SSA involved making predictions Cahaba River (E), and upper Coosa River relevant to assessing the species’ about the species’ responses to positive (F) (see table 1, below). Four biological response include species- and negative environmental and representation units (Pearl River (A), specific factors such as lifespan, anthropogenic influences. Throughout upper Tombigbee River (B), Cahaba reproductive rates or productivity, all of these stages, we used the best River (E), and upper Coosa River (F)) are certain behaviors, and other available information to characterize the ESUs based on the evaluation of demographic factors. viability as the ability of a species to morphometric and genetic datasets (Neely 2018, entire). Morphometric and Analytical Framework sustain populations in the wild over time. We use this information to inform genetic data from the remaining two The SSA report documents the results our regulatory decision. representation units (lower Tombigbee/ of our comprehensive biological review Alabama Rivers (C) and Alabama River of the best scientific and commercial Summary of Biological Status and (D)) were not available to be analyzed in data regarding the status of the species, Threats the 2018 study (Neely 2018, entire) and, including an assessment of the potential In this discussion, we review the therefore, were not identified as ESUs in threats to the species. The SSA report biological condition of the species and that study. does not represent a decision by the its resources, and the threats that The lower Tombigbee/Alabama Rivers Service on whether the species should influence the species’ current and future (C) and Alabama River (D) be proposed for listing as an endangered condition, in order to assess the species’ representation units reflect occurrences or threatened species under the Act. It overall viability and the risks to that of the species in the Mobile River Basin does, however, provide the scientific viability. For frecklebelly madtom that are the farthest downstream and basis that informs our regulatory populations to be resilient, the needs of within a large river habitat type that is decisions, which involve the further individuals (flowing water, substrate, distinct from the remainder of the units application of standards within the Act and aquatic vegetation) must be met at in the Mobile River Basin. Furthermore, and its implementing regulations and a large scale. Stream reaches with these reaches are disconnected from the policies. The following is a summary of suitable habitat must be large enough to nearest adjacent representation units by the key results and conclusions from the support an appropriate number of dams that act as dispersal barriers for SSA report; the full SSA report can be individuals to avoid issues associated the species. Therefore, these reaches are found at https://www.fws.gov/southeast/ with small population sizes, such as assessed as two individual and at http://www.regulations.gov inbreeding depression. At the species representation units. The Alabama River under Docket No. FWS–R4–ES–2020– level, the frecklebelly madtom needs a (D) representation unit consists of a 0058. sufficient number and distribution of single HUC 10 watershed that is isolated

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from other representation units by are not disconnected by dams or other and evaluated at a local scale similar to dams. The remaining unit, lower major habitat alterations that may that we would expect for a population. Tombigbee/Alabama Rivers (C), is present a barrier to movement. While We determined this to be the most disconnected from the upper Tombigbee resiliency is typically assessed at the appropriate scale for measuring River and Alabama River units by dams. scale of a population, there was little resiliency. We identified 16 resilience Resilience units were delineated as information to delineate populations of units consisting of 66 HUC10 aggregations of adjacent U.S. Geological the frecklebelly madtom. By using HUC watersheds across the range of the Survey Hydrological Unit Code (HUC) 10 watersheds, we are able to delineate frecklebelly madtom (see table 1, 10 watershed boundaries that contain a resilience units that can be measured below). frecklebelly madtom observation and

TABLE 1—REPRESENTATION UNITS AND RESILIENCE UNITS USED TO ASSESS VIABILITY OF THE FRECKLEBELLY MADTOM

Representation units Resilience units

Pearl River (A) ...... Bogue Chitto River (A1). Pearl River (A2). Upper Tombigbee River (B) ...... East Fork Tombigbee (B1). Sipsey River (B2). Luxapallila Creek (B3). Buttahatchee River (B4). Bull Mountain Creek (B5). Upper Tombigbee River (mainstem) (B6). Lower Tombigbee/Alabama Rivers (C) ...... Lower Tombigbee River (C1). Lower Alabama River (C2). Alabama River (D) ...... Alabama River (D1). Cahaba River (E) ...... Cahaba River (E1). Alabama River/Big Swamp (E2). Upper Coosa River (F) ...... Conasauga River (F1). Coosawattee River (F2). Etowah River (F3).

Methods To Assess Current Condition estimate and available literature the probability of the species being We assessed the current resiliency (Service 2020, pp. 34–53). The Lower present in a particular unit is greater (ability of populations to withstand Tombigbee/Alabama Rivers (C) than zero. As described above, we used stochastic events) of frecklebelly representation unit was categorized to occurrence data to assess resiliency. If madtom resilience units by considering have unknown resiliency (see units are known only from eDNA data, occurrence data throughout the species’ discussion below regarding an unknown resiliency was determined range. We used occurrence data to environmental DNA). since we have no occurrence estimate range extent and range Environmental DNA (eDNA, which is information. geometry (i.e., number of named streams DNA that is shed into the environment We assessed representation for the with occurrences). These metrics can be by an organism during its life) belonging frecklebelly madtom as the number of useful for evaluating resiliency, as larger to the frecklebelly madtom was resilient populations within a areas of occupied habitat and multiple collected in the Conasauga River (F1), representation unit. Finally, we assessed occupied streams (more complex Coosawattee River (F2), Etowah River frecklebelly madtom redundancy ranges) are more robust to stochastic (F3), and portions of the lower Alabama (ability of species to withstand events (i.e., a single more localized River (C2) and lower Tombigbee River catastrophic events) by evaluating the event would be unlikely to negatively (C1) (Freeman and Bumpers 2018, number and distribution of resilient affect the entire population or unit if entire; Janosik and Whittaker 2018, populations throughout the species’ many and larger reaches of streams were entire). Within the Coosawattee River range. occupied). Occurrence data for the (F2), the lower Alabama River (C2), and Current Condition of Frecklebelly frecklebelly madtom are only available the lower Tombigbee River (C1), eDNA Madtom for five of the six representation units: is the only evidence of the species’ The Pearl River (A), upper Tombigbee presence within the period of record The historical range for the River (B), Alabama River (D), Cahaba (1950–2019). Collecting and analyzing frecklebelly madtom includes two large River (E), and upper Coosa River (F). water samples for eDNA provides a river basins that enter into the Gulf of Therefore, we conducted our assessment means of rapidly surveying aquatic Mexico: The Pearl River Basin and the of occurrences only on resilience units habitats to help identify potentially Mobile River Basin. The Pearl River within those representation units, and occupied sites for a species. However, Basin is in eastern Louisiana and we categorized current resiliency into uncertainty of these data revolves southern Mississippi (identified as Pearl high, moderate, low, or likely extirpated around the origin and fate of the River (A) representation unit in the conditions, based on our evaluation of individuals that shed the DNA and the SSA). The Mobile River Basin consists total number of occurrences, the number length of time the eDNA persists in the of the Tombigbee River in eastern of occupied stream reaches, the length environment. For the purposes of this Mississippi and western Alabama of discrete stream reaches, and the analysis, we used eDNA data as (Upper Tombigbee (B) representation maximum occupied stream reach evidence to support our conclusion that unit); the upper Alabama (Alabama

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River (D) representation unit) and individuals per survey event (i.e., believed to be a stronghold for the Cahaba Rivers (Cahaba River (E) occurrence). species (Neely 2018, p. 11) where it representation unit) in central Alabama; Historically, the mainstem of the appears to be abundant (Bennet et al. the Etowah River (part of the Upper upper Tombigbee River (mainstem, B6) 2008, p. 467). The Alabama River-Big Coosa River (F) representation unit) in unit was considered to support robust Swamp Creek (E2) resilience unit is northern Georgia; and the Conasauga populations of the frecklebelly madtom likely extirpated; no observations have River (part of the Upper Coosa River (F) with some sites producing single been made of this species in the unit representation unit) in northern Georgia collections of over 300 individuals since the late 1960s after the and southeastern Tennessee. during the assessment period from construction of Miller’s Ferry Lock and Historically, the species was likely more 1950–1987 (Bennet et al. 2008, p. 466; Dam and Claiborne Dam despite efforts widespread in the Mobile Bay drainage Service 2020, p. 49). However, the to locate the species (Shepherd et al. but was extirpated from large river construction of the Tenn-Tom 1997, p. 18; Bennet et al. 2008, p. 464). habitats after the creation of numerous Waterway, a canal system that connects Within the Coosa River (F) impoundments, and thus, the species’ the Tombigbee River to the Tennessee representation unit, one resilience unit current representation has been reduced River for commercial navigation, (Conasauga River (F1)) was estimated to from historical levels. Currently, the eliminated the suitable gravel-cobble have low resiliency, one with moderate species is known to be extant in four habitat for the species (Shepard et al. resiliency (Etowah River (F3)), and one (Pearl River (A), Upper Tombigbee River 1997, p. 4). Despite fish assemblage with unknown resiliency (Coosawattee (B), Cahaba River (E), and Upper Coosa surveys undertaken since the River (F2)). In the Conasauga River (F1), construction of the waterway (e.g., River (F)) of the six representation units. fish assemblage and abundance from the Millican et al. 2006, entire), Within the Pearl River (A) 1990s–2000s documented declines in observations of the species cease in the representation unit, there are two several fish species, including the mainstem of the upper Tombigbee River resilience units (Bogue Chitto River (A1) frecklebelly madtom, and after 2000, the (B6) after 1980 (Bennett et al. 2008, p. and Pearl River (A2)) assessed to have frecklebelly madtom was no longer 466), thus supporting the species’ likely high resiliency to stochastic events detected in fish surveys (Freeman et al. extirpation from this formerly occupied based on stable populations and 2003, pp. 569–570; Bennett et al. 2008 habitat. The frecklebelly madtom has complex range geometry with 15 p. 466). These surveys indicate a not been observed in the Bull Mountain occupied streams in the Pearl River. In reduced resiliency in the Conasauga Creek (B5) unit since 1978–1987 addition, recent surveys (2009–2019) assessment period; this unit was also River (F1), because the best available observed frecklebelly madtom at 83 drastically altered by the construction of occurrence data present a transition percent of known historical sites (i.e., the Tenn-Tom Waterway and is from a measurable population of the any site in which the species was currently bisected by the canal system frecklebelly madtom to an previously observed) (Wagner et al. (Millican et al. 2006, p. 3). The habitat unmeasurable one. Despite a 20-year 2018, entire; Service 2020, p. 59). lost from this major construction and lapse since the last observation of the Within the Upper Tombigbee River engineering activity has likely caused frecklebelly madtom, the current (B) representation unit, there is one the extirpation of the frecklebelly presence of the species in the Conasauga resilience unit (Buttahatchee River (B4)) madtom in the upper Tombigbee River River (F1) is supported by eDNA that assessed to have high resiliency, three (B6) (Millican et al. 2006 p. 84; Shepard was collected in 2017 and 2018 (East Fork Tombigbee River (B1), Sipsey 2004, p. 221; Bennett et al. 2008, p. 467) (Freeman and Bumper 2018, entire), as River (B2), and Luxapallila Creek (B3)) and Bull Mountain Creek (B5) (Shepard described above. Furthermore, the have moderate resiliency, and two are 2004, p. 221) resilience units. Conasauga River (F1) has not likely extirpated (Upper Tombigbee Within the Lower Tombigbee/ experienced the same type of habitat River (B6) and Bull Mountain Creek Alabama Rivers (C) representation unit, modifications as other rivers that have (B5)). The Buttahatchee River (B4) unit there are two resilience units (Lower caused localized extirpation of the has been identified as a stronghold of Tombigbee River (C1) and Lower species (dams, impoundments, and the species where it has consistently Alabama River (C2)) assessed to have channelization), and the species has been collected in higher numbers unknown resiliency. There are no been observed more recently in river (Shepard et al. 1997, p. 23, Bennett et traditional occurrence data of this surveys than in river sections where it al. 2008, p. 470). For the East Fork of the species for either resilience unit; is considered extirpated. Therefore, we Tombigbee River (B1) unit, the species however, eDNA of frecklebelly madtom determined that the species remains has recent (2009–2019) collections of was found in both units (Janosik and present in the Conasauga River but with more than 100 individuals per survey Whittaker 2018, p. 7). low resiliency to stochastic events, as event (i.e., occurrence) of frecklebelly Within the Alabama River (D) estimated from the occurrence data. madtom. However, there has been a loss representation unit, there is one Within the Etowah River (F3), of habitat, altered water quality, and resilience unit (Alabama River (D1)) frecklebelly madtom populations appear loss of connectivity in the East Fork assessed to be likely extirpated. stable, albeit at lower levels of with numerous structures installed for Following the construction of the abundance, as the patterns of the Tennessee-Tombigbee Waterway Miller’s Ferry Lock and Dam and occurrence in the most recent time (Tenn-Tom Waterway) (Millican et al. Claiborne Dam in the late 1960s, there period is similar to time periods prior to 2006, p. 3–4). Within the Sipsey River have been no occurrences of this species 1998. There are no historical occurrence (B2) unit, experts have indicated that in the Alabama River (D1) unit, despite data or direct observations of the species the habitat is excellent with few threats efforts to locate the species (Shepherd et from the Coosawattee River (F2) and the populations appear stable, albeit al. 1997, p. 18). resilience unit. Environmental DNA for few records for them exist (Shepard et Within the Cahaba River (E) the frecklebelly madtom was found in al. 1997, pp. 9, 23). Frecklebelly representation unit, one resilience unit portions of this unit (Freeman and madtom persists in Luxapallila Creek (Cahaba River (E1)) was estimated to Bumpers 2018, p. 9); therefore, we (B3) with stable populations and recent have moderate resiliency to stochastic assessed this unit as having an (2009–2019) collections of almost 100 events. The Cahaba River system is unknown resiliency.

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

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al. 2008, pp. 467–468). Channelization oxygen deficiencies, excess declines with time (Sayler et al. 2016, p. can also lead to head cutting (an nutrification, and excessive algal 12). These agricultural lands are mostly erosional process in a stream channel growths, which can have a direct impact being converted to developed and with a vertical cut or drop that migrates on fish community composition forested lands (Sayler et al. 2016, p. 12). upstream over time), which causes (Petersen et al. 1999, p. 6). Despite the declining trend, agricultural further erosion and sedimentation Areas within the current range of the practices leading to poor water quality (Hartfield 1993, pp. 131–141). Dredging frecklebelly madtom, which are conditions currently influence and will can involve snagging (the removal of predominantly agricultural, are continue to influence the viability of woody debris from the channel), which impacted by nonpoint source sediment frecklebelly madtom across its range. not only contributes to destabilization of and agrochemical discharges altering Development the channel but also removes the woody the physical and chemical debris that provides important cover characteristics of its habitat, thus Development is a significant source of and nest locations for many fish species, potentially impeding its ability to feed, water quality degradation that can including the frecklebelly madtom seek shelter from predators, and reduce the survival of aquatic (Bennett et al. 2008, pp. 467–468). successfully reproduce. A negative organisms, including the frecklebelly The frecklebelly madtom was relationship between the species and madtom. Urban development can stress eliminated from much of the mainstem nonpoint source stressors attributed to aquatic systems in a variety of ways, of the Tombigbee River after the agriculture has been described including increasing the frequency and construction of the Tenn-Tom particularly within the Conasauga River magnitude of high flows in streams; Waterway. Tributaries to the upper (Freeman et al. 2017, pp. 429–430). increasing sedimentation and nutrient Tombigbee River have also been affected Over the past two decades, an increase loads; increasing contaminants and by channel modification of the Tenn- in the use of agricultural chemicals and toxicity; decreasing the diversity of fish, Tom Waterway due to head cutting and practices, such as use of glyphosate- aquatic insects, plants, and amphibians; other geomorphic and flow based herbicides for weed control and and changing stream morphology and modifications (Raborn and Schramm land dispersion of animal waste for soil water chemistry (Coles et al. 2012, 2003, pp. 289–301; Roberts et al. 2007, amendment, has corresponded with entire; CWP 2003; entire). Sources and pp. 250–256; Tipton et al. 2004, pp. 49– marked declines in populations of fish risks of an acute or catastrophic 61), and fewer tributaries currently and mussel species in the Upper contamination event, such as a leak maintain the habitat needed by the Conasauga River watershed in Georgia from an underground storage tank or a frecklebelly madtom in this system and Tennessee (Freeman et al. 2017, p. hazardous materials spill on a highway, (Millican et al. 2006, p. 84; Shepard 429). Nutrient enrichment of streams increase as urbanization increases. 2004, pp. 220–222; Shepard et al. 1997, was found to be widespread with high Urbanization has also been shown to pp. 3–4). Similarly, channel levels of nitrate and phosphorus impair stream quality by impacting geomorphology and substrate are likely (reported at over 5 milligrams per liter riparian health (Diamond et al. 2002, p. being affected by head cutting due to and over 300 micrograms per liter, 1150). Riparian impairment resulting impoundment of the Alabama River respectively, within the Conasauga from urbanization or agricultural land (Bennett et al. 2008, p. 468). River) likely associated with use can amplify negative effects of Alternatively, frecklebelly madtom eutrophication, and hormone nonpoint source pollution within the abundances have remained stable in the concentrations in sediments were often watershed as well as impact stream Cahaba River throughout the above those shown to cause endocrine quality independent of land use within modification periods that affected disruption in fish, which was possibly the watershed. Impacts from impervious surrounding drainages. The Cahaba related to the widespread application of cover can be mitigated through riparian River, Conasauga River, and some poultry litter and manure (Lasier et al. forest cover and good riparian health tributaries to the upper Tombigbee River 2016, entire). Estrogens, a hormone and (Roy et al. 2005, p. 2318; Walsh et al. are the only remaining waters within type of endocrine disruptor that can be 2007, entire); however, the benefit of the the range of the frecklebelly madtom found in poultry litter, also have been riparian cover diminishes when that have escaped large-scale human identified as a threat to aquatic fauna in impervious cover (i.e., urban cover) modification through damming or the Conasauga River system (Jacobs exceeds approximately 10 percent channelization (Bennet et al. 2008, p. 2015, entire). Increased levels of within the watershed (Booth and 468). estrogens can lead to decreases in Jackson 1997, p. 1084; Goetz et al. 2003, spawning success and potentially p. 205). Agriculture population collapse within short Currently, larger population centers, Agricultural practices such as timeframes (Kidd et al. 2007, p. 8899). such as the cities of Atlanta, Georgia, traditional farming, feedlot operations, Aquatic species declines observed in the Jackson, Mississippi, and Birmingham, and associated land use practices can Conasauga watershed may be at least Alabama, contribute substantial runoff contribute pollutants to rivers. These partially due to hormones, as well as to the watersheds occupied by the practices can also degrade habitat by excess nutrients, herbicides, and frecklebelly madtom. In the future, eroding stream banks, which results in surfactants (Freeman et al. 2017, p. 429). urbanization is predicted to increase in alterations to stream hydrology and The amount (acreage) of agricultural several areas across the range of the geomorphology. Nutrients, bacteria, land is declining across the eastern frecklebelly madtom (see below under pesticides, and other organic United States with a net loss of 6.5 Future Scenarios). All watersheds, but compounds are generally found in percent between 1973 and 2000 (Sayler especially the Etowah River watershed, higher concentrations in agricultural et al. 2016, p. 12). As discussed below upstream of Lake Allatoona in Georgia areas rather than forested areas. under Future Scenarios, within the are expected to experience additional Contaminants associated with watersheds in which frecklebelly urbanization (Albanese et al. 2018, p. agriculture (e.g., fertilizers, pesticides, madtom occurs, the declining trend of 39). Conservation concerns in the herbicides, and animal waste) can agricultural land is consistent with Etowah River watershed have focused degrade water quality and negatively broader trends in the eastern United on potential effects of this predicted impact instream habitats by causing States showing agricultural land urban growth on imperiled fishes

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(Burkhead et al. 1997, pp. 959–968; 458–459, Bennett et al. 2008, p. 467). IPCC 2013, entire; USGS 2020, Wenger et al. 2010, pp. 11–21), and Many streams have both small ponds in unpaginated). Changes in climate may previous analyses show negative their headwaters and large reservoirs in affect ecosystem processes and correlations between occurrence of their lower reaches (Morse et al. 1997, communities by altering the abiotic native fishes and increases in p. 23). Small streams on private lands conditions experienced by biotic impervious cover associated with urban are regularly dammed to create ponds assemblages, resulting in potential development (Wenger et al. 2008, p. for cattle, irrigation, recreation, and effects on community composition and 1260). In the Etowah Basin in Georgia, fishing, with significant ecological individual species interactions (DeWan models indicated that urbanization effects due to the sheer abundance of et al. 2010, p. 7). lowered fish species richness and these structures (Morse et al. 1997, pp. The frequency, duration, and density and led to predictable changes 22–23). In addition, small headwater intensity of droughts are likely to in species composition. Darters, sculpin, streams are increasingly being dammed increase in the southeastern United minnows, and endemic species declined in the Southeast to supply water for States as a result of global climate along the urban gradient, whereas municipalities (Buckner et al. 2002, p. change (Konrad et al. 2013, p. 34), sunfishes persisted and became the 11). which could negatively affect stream dominant group (Walters et al. 2005, pp. Dams are known to have caused the flows in the region. Stream flow is 10–11). In the future, we anticipate extirpation and extinction of many strongly correlated with important increased development to amplify as a southeastern species, and existing and physical and chemical parameters that population-level factor influencing the proposed dams pose an ongoing threat limit the distribution and abundance of viability of frecklebelly madtom. to many aquatic species (Folkerts 1997, riverine species (Power et al. 1995, p. 11; Neves et al. 1997, p. 63; Riciarddi entire; Resh et al. 1988, pp. 438–439) Impoundments and Rasmussen 1999, p. 1222; Service and regulates the ecological integrity of Impoundment of rivers is a stressor to 2000, p. 15; Buckner et al. 2002, p. 11, flowing water systems (Poff et al. 1997, aquatic species in the southeast (Benz Olden 2016, pp. 112–122), including the p. 770). and Collins 1997, pp. 22–23, 63, 91, frecklebelly madtom. The construction To understand how climate change is 205, 273, 291, 397, 399, 401–406, 446; of 10 lock and dam structures on the projected to affect where frecklebelly Buckner et al. 2002, pp. 10–11). Dams Tenn-Tom Waterway, which artificially madtom occurs, we used the National modify habitat conditions and aquatic connects the Tennessee River to the Climate Change Viewer (NCCV), a communities both upstream and Gulf of Mexico, led to the extirpation of climate-visualization tool developed by downstream of an impoundment many species, including the frecklebelly the U.S. Geological Survey (USGS), to (Winston et al. 1991, pp. 103–104; madtom, from the main river channel generate future climate projections Mulholland and Lenat 1992, pp. 193– (Bennett et al. 2008, p. 467). The across the range of the species. The 231; Soballe et al. 1992, pp. 421–474). frecklebelly madtom is considered NCCV is a web-based tool for Upstream of dams, habitat is flooded extirpated from the Alabama River, visualizing and assessing projected and in-channel conditions change from likely due to the construction of three changes in climate and water balance at flowing to still water, with increased dams in the late 1960s and early 1970s watershed, State, and county scales depth, decreased levels of dissolved (Bennett et al. 2008, p. 467). In addition, (USGS 2020, unpaginated). To evaluate oxygen, and increased sedimentation. the construction of one dam on the the effects of climate change in the Sedimentation alters substrate Etowah River may have affected the future, we used projections from conditions by filling in interstitial frecklebelly madtom, since the species Representative Concentration Pathway spaces between rocks, which provide is dependent on large-river gravel shoal (RCP) 4.5 and RCP 8.5 to characterize habitat for many species (Neves et al. substrate (Bennett et al. 2008, p. 470). projected future changes in climate and 1997, pp. 63–64), including the As discussed above in Current water resources, averaged for the South- frecklebelly madtom. Downstream of Condition of Frecklebelly Madtom, four Atlantic Gulf Region encompassing the dams, flow regime fluctuates with resilience units are likely extirpated as range of the frecklebelly madtom resulting fluctuations in water a result of dam construction and large (Service 2020, pp. 27–31). The temperature and dissolved oxygen scale river modifications. projections estimate changes in mean levels, the substrate is scoured, and annual values for maximum air downstream tributaries are eroded Climate Change temperature, minimum air temperature, (Neves et al. 1997, pp. 63–64; Schuster In the southeastern United States, monthly precipitation, and monthly 1997, p. 273; Buckner et al. 2002, p. 11). several climate change models have runoff, among other factors, from Negative ‘‘tailwater’’ effects on habitat projected more frequent drought, more historical (1981–2010) to future (2050– can extend many kilometers extreme heat (resulting in increases in 2074) time series. downstream (Neves et al. 1997, p. 63). air and water temperatures), increased Within the range of the frecklebelly Dams fragment habitat for aquatic heavy precipitation events (e.g., madtom, the NCCV projects that, under species by blocking corridors for flooding), more intense storms (e.g., the RCP 4.5 scenario, maximum air migration and dispersal, resulting in frequency of major hurricanes temperature will increase by 1.9 degrees population isolation and heightened increases), and rising sea level and Celsius (°C) (3.4 degrees Fahrenheit susceptibility to extinction (Neves et al. accompanying storm surge (IPCC 2013, (°F)), minimum air temperature will 1997, p. 63). Dams also preclude the entire). When taking into account future increase by 1.8 °C (3.2 °F), precipitation ability of aquatic organisms to escape climate projections for temperature and will increase by 5.36 millimeters (0.2 from polluted waters and accidental precipitation where the frecklebelly inches) per month, and runoff will spills (Buckner et al. 2002, p. 10). madtom occurs, warming is expected to remain the same in the 2050–2074 time Damming of streams and springs is be greatest in the summer, which is period (USGS 2020, unpaginated). also extensive throughout the Southeast predicted to increase drought frequency. Under the more extreme RCP 8.5 and occurs within the large river Nevertheless, annual mean precipitation scenario, the NCCV projects that habitats of the frecklebelly madtom is expected to increase slightly, leading maximum air temperature will increase (Etnier 1997, pp. 88–89; Morse et al. to a slight increase in flooding events by 2.8 degrees Celsius (°C) (5 degrees 1997, pp. 22–23; Shute et al. 1997, pp. (Alder and Hostetler 2013, unpaginated; Fahrenheit (°F)), minimum air

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temperature will increase by 2.7 °C studies. This effort has led to successful producers plan and implement a variety (4.9 °F), precipitation will increase by propagation of the species, documented of conservation activities or practices 5.36 millimeter (0.2 inches) per month, important components of the species’ that benefit aquatic species. The and runoff will remain the same in the life history, and collected data that can frecklebelly madtom will likely benefit 2050–2074 time period (USGS 2020, be used to develop long-term, captive- from water quality improvements in unpaginated). These estimates indicate propagation efforts, although no portions of the Conasauga River that are that, despite projected minimal individuals have been released. affected by agricultural practices increases in annual precipitation, Throughout the range of the species, implemented through the WLFW anticipated increases in maximum and portions of occupied rivers and project. minimum air temperatures will likely surrounding lands are owned and Synergistic and Cumulative Effects offset those gains. Based on these managed by State and Federal entities projections, the frecklebelly madtom that prioritize conservation as a We note that, by using the SSA will on average be exposed to increased management objective. Generally, these framework to guide our analysis of the air temperatures across its range, despite entities help to maintain the natural scientific information documented in limited increases in precipitation; ecosystem functioning of a river by the SSA report, we have not only however, these projections are not a managing terrestrial areas in a more analyzed individual effects on the one-to-one air to stream water natural state and limiting disturbance species, but we have also analyzed their temperature comparison. adjacent to rivers. However, properties potential cumulative effects. We Despite the recognition of climate managed by the Service, U.S. Forest incorporate the cumulative effects into effects on ecosystem processes, there is Service, and the Dawson Forest Wildlife our SSA analysis when we characterize uncertainty within each model and Management Area (WMA) managed by the current and future condition of the model ensembles about what the exact the Georgia Department of Natural species. Our assessment of the current climate future will be, and there is Resources, are known to specifically and future conditions encompasses and uncertainty in how the ecosystems and consider and manage for the incorporates the threats individually species will respond. Although there are conservation of aquatic species and and primary threats cumulatively. Our several potential risks associated with their habitats. It is expected that the current and future condition (see below) long-term climate change as described frecklebelly madtom will be positively assessment is iterative, because it above, there is uncertainty regarding affected by management on these lands. accumulates and evaluates the effects of how the frecklebelly madtom will These conservation lands and the all the factors that may be influencing respond to these risks. The species adjacent rivers occupied by the the species, including threats and occupies some tributaries throughout its frecklebelly madtom include: Portions conservation efforts. Because the SSA range, but the frecklebelly madtom has of the Bogue Chitto and Pearl Rivers framework considers not just the a preference for habitat in larger rivers within the Bogue Chitto National presence of the factors, but to what and this may provide a buffer to changes Wildlife Refuge (NWR, Service) in degree they collectively influence risk to induced by climate change, particularly Louisiana; portions of the Bogue Chitto the entire species, our assessment from issues associated with drought. River within Bogue Chitto State Park integrates the cumulative effects of the Therefore, we do not consider climate (Louisiana Department of Culture, factors and replaces a standalone change to be a primary risk factor for the Recreation, and Tourism) in Louisiana; cumulative effects analysis. species at this time. portions of the Pearl River within the In addition to impacting frecklebelly Pearl River WMA (Louisiana madtom individually, it is possible that Conservation Efforts Department of Wildlife and Fisheries) in several of the above summarized risk The frecklebelly madtom is Louisiana; portions of the Cahaba River factors are acting synergistically or recognized as a species of concern in all within the Cahaba NWR (Service) in cumulatively on the species. The States where it occurs and is protected Alabama; portions of the Conasauga combined impact of multiple stressors is by State statute in four States where it River within the Cherokee National likely more harmful than a single occurs. This species is listed as Forest (U.S. Department of Agriculture stressor acting alone. The dual stressors endangered by the State of Georgia (USDA) U.S. Forest Service) in Georgia; of climate change and direct human (GADNR 2015, p. 74), endangered by the and portions of the Etowah River within impact have the potential to affect State of Mississippi (Mississippi the Dawson Forest WMA (Georgia aquatic ecosystems by altering stream Museum of Natural Science 2015, p. 36), Department of Natural Resources) in flows and nutrient cycles, eliminating and threatened by the State of Georgia. In addition, the Etowah River habitats, and changing community Tennessee (TWRA 2015, Appendix C). catchment area upstream of habitat structure (Moore et al. 1997, p. 942). In Alabama, the frecklebelly madtom is occupied by the frecklebelly madtom Increased water temperatures and a designated as a protected nongame and managed by the Chattahoochee- reduction in stream flow are the climate species under Alabama Code 220–2–.92. Oconee National Forest (USDA U.S. change effects that are most likely to In general, the protections accorded to Forest Service) is expected to benefit the affect stream communities (Poff 1997, the frecklebelly madtom by Mississippi, species by providing good water quality entire), and each of these variables is Alabama, Georgia, and Tennessee to lower river reaches. strongly influenced by land use prohibit direct exploitation of the The Natural Resources Conservation patterns. For example, in agricultural species without a permit within those Service (NRCS), USDA, designated the areas, lower precipitation may trigger States. Conasauga River as a Working Lands for increased irrigation resulting in reduced Beginning in 2017, the Private John Wildlife (WLFW) landscape in 2017 stream flow (Backlund et al. 2008, pp. Allen National Fish Hatchery partnered (USDA 2020, unpaginated) and will 42–43). In forested areas, trees influence with the Mississippi Department of provide additional funds and human- instream temperatures through the Wildlife Fisheries and Parks to collect power to improve water quality and direct effects of shading. Reductions in individuals of the frecklebelly madtom aquatic habitat in the watershed. The temperature by vegetative cover may be within that State to study marking project will provide technical and particularly important in low-order techniques, establish captive husbandry financial assistance to help landowners streams, where canopy vegetation methods, and conduct life-history improve water quality and help significantly reduces the magnitude and

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variation of the stream temperature In our development of future development, and (3) high development. compared with that of clear-cut areas scenarios, we used projected trends in For the low development scenario, we (Ringler and Hall, 1975, pp. 111–121). land use change from two models, the considered all areas predicted to be National Land Cover Database (NLCD) developed at a greater than 90 percent Future Scenarios and the Slope, Land use, Excluded, probability (i.e., only including areas To evaluate the future viability of the Urban, Transportation and Hillshade that are almost certain to be developed); frecklebelly madtom and address (SLEUTH) model (Jantz et al. 2010, the moderate development scenario uncertainty associated with the degree entire). Future projections for considered all areas to be developed at and extent of potential future stressors agricultural land use were developed a greater than 50 percent probability; from NLCD data by calculating a 15-year and their impacts to the madtom, we and the high development scenario trend in agricultural land use change analyzed three future scenarios and considered all areas to be developed at between 2001 and 2016 for each assessed the resiliency, representation, a greater than 10 percent probability resilience unit and converting that to an and redundancy of the madtom for each (i.e., including the majority of areas with annual rate of agricultural land use scenario. We devised these scenarios by any potential to be developed). The change for each resilience unit. We used results of the future projections for identifying information on the following the annual rate of agricultural land use primary threats that are anticipated to agriculture and developed land use change to project changes to 30 years were used to estimate a composite land affect the frecklebelly madtom in the from the present. The annual rate of future: Agriculture and developed land use score, and then using a rule set, we agricultural land use change was held categorized future resiliency into high, use. We considered projected changes in constant for each resilience unit across agricultural and developed land uses in moderate, low, unknown, or likely all scenarios; however, the rate of extirpated conditions. assessing future resiliency of each change in agricultural area varied resilience unit for frecklebelly madtom. among the resilience units we evaluated In the low development scenario, the We assessed these land uses to in our analysis. With the exception of frecklebelly madtom was projected to understand the future impacts to habitat the Alabama River resilience unit, have one unit with high resiliency, degradation and destruction resulting which has an increase in the amount of seven units with moderate resiliency, from poor water quality, a primary agricultural land use over time, we one unit with low resiliency, and four threat to frecklebelly madtom. The three found an overall decline in the amount units that are likely extirpated (see table scenarios capture the range of variability of land used for agriculture. This result 2, below). In terms of projected change in the changing human population is consistent with broader trends that from current condition, the footprint on the landscape and how show the amount of agricultural land is Buttahatchee River (B4) and Pearl River frecklebelly madtom populations will declining with time in the eastern (A2) resilience units are projected to respond to these changing conditions. United States (Sayler et al. 2016, p. 12). decrease in resiliency from high to All three scenarios were projected out to For our future developed land use moderate. The Etowah River (F3) the year 2050 (i.e., 30 years), because we projections, we used the SLEUTH resilience unit is projected to become were reasonably certain we could datasets from the year 2050 (closest to more developed, although the percent of forecast patterns in land-use change and 30 years in the future) and examined developed land does not reach a point understand how these land uses will development across resilience units. We where a change in resiliency is interact with the frecklebelly madtom then developed three scenarios that anticipated. All other units are projected and its habitat over this time period varied development probabilities: (1) to retain their current resiliency under given the species’ life span. Low development, (2) moderate the low development scenario. TABLE 2—FUTURE RESILIENCY OF FRECKLEBELLY MADTOM RESILIENCE UNITS UNDER THREE FUTURE SCENARIOS

Representation units Resilience units Current Scenario 1 Scenario 2 Scenario 3

Pearl River (A) ...... Bogue Chitto River (A1) ...... High ...... High ...... High ...... High. Pearl River (A2) ...... High ...... Moderate ...... Moderate ...... Moderate. Upper Tombigbee River (B) ...... East Fork Tombigbee (B1) ...... Moderate ...... Moderate ...... Moderate ...... Moderate. Sipsey River (B2) ...... Moderate ...... Moderate ...... Moderate ...... Moderate. Luxapallila Creek (B3) ...... Moderate ...... Moderate ...... Moderate ...... Moderate. Buttahatchee River (B4) ...... High ...... Moderate ...... Moderate ...... Moderate. Bull Mountain Creek (B5) ...... Likely Extirpated Likely Extirpated Likely Extirpated Likely Extirpated. Upper Tombigbee River Likely Extirpated Likely Extirpated Likely Extirpated Likely Extirpated. (mainstem) (B6). Lower Tombigbee/Alabama Rivers (C) ...... Lower Tombigbee River (C1) ...... Unknown* ...... Unknown* ...... Unknown* ...... Unknown.* Lower Alabama River (C2) ...... Unknown* ...... Unknown* ...... Unknown* ...... Unknown.* Alabama River (D) ...... Alabama River (D1) ...... Likely Extirpated Likely Extirpated Likely Extirpated Likely Extirpated. Cahaba River (E) ...... Cahaba River (E1) ...... Moderate ...... Moderate ...... Moderate ...... Moderate. Alabama River/Big Swamp (E2) .. Likely Extirpated Likely Extirpated Likely Extirpated Likely Extirpated. Upper Coosa River (F) ...... Conasauga River (F1) ...... Low ...... Low ...... Low ...... Likely Extirpated. Coosawattee River (F2) ...... Unknown* ...... Unknown* ...... Unknown* ...... Unknown.* Etowah River (F3) ...... Moderate ...... Moderate ...... Low ...... Low. * Resiliency determined as unknown since units are known only from eDNA data.

In the moderate development of projected change from current scenario, and, therefore, this unit is scenario, the frecklebelly madtom was condition, the Buttahatchee River (B4) projected to decrease in resiliency from projected to have one unit with high and Pearl River (A2) resilience units are moderate to low. All other units are resiliency, six units with moderate projected to decrease in resiliency from projected to retain their current resiliency, two units with low high to moderate. The Etowah River (F3) resiliency. resiliency, and four units that are likely resilience unit is projected to become In the high development scenario, the extirpated (see table 2, above). In terms substantially more developed under this frecklebelly madtom was projected to

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have one unit with high resiliency, six high. High levels of agriculture and units are at an increased risk of units with moderate resiliency, one unit developed land use projections in this extirpation from a catastrophic event. with low resiliency, and five units that unit drive the projected low resiliency Given the broad distribution of are likely extirpated (see table 2, above). by the year 2050. In the Conasauga River moderate to high resilience units, it is In terms of projected change from (F1) resilience unit, developed land use unlikely that a catastrophic event would current condition, the Buttahatchee under the high development scenario is impact the entire species’ range. River (B4) and Pearl River (A2) projected to increase, and agriculture Determination of Frecklebelly resilience units are projected to decrease and developed land use are projected to Madtom’s Status in resiliency from high to moderate. The be at relatively high levels by 2050. Etowah River (F3) resilience unit is However, the Conasauga River (F1) Section 4 of the Act (16 U.S.C. 1533) projected to become substantially more resilience unit currently has low and its implementing regulations (50 developed under this scenario; resiliency, and this projected increase in CFR part 424) set forth the procedures therefore, this unit is projected to development is anticipated to further for determining whether a species meets decrease in resiliency from moderate to impact resiliency, resulting in likely the definition of ‘‘endangered species’’ low. The Conasauga River (F1) extirpation of the frecklebelly madtom or ‘‘threatened species.’’ The Act defines resilience unit is projected to decrease from this unit. an ‘‘endangered species’’ as a species in resiliency from low to being likely Finally, the presence of frecklebelly that is in danger of extinction extirpated as a result of high levels of madtom in the Lower Tombigbee River throughout all or a significant portion of both agriculture and developed land (C1), Lower Alabama River (C2), and its range, and a ‘‘threatened species’’ as uses. All other units are projected to Coosawattee River (F2) resilience units a species that is likely to become an retain their current resiliency. is based on recent positive eDNA endangered species within the In summary, the resiliency of samples, and these units have been foreseeable future throughout all or a frecklebelly madtom resilience units are assessed as having an unknown significant portion of its range. The Act projected to remain similar to the resiliency. Based on our assessment of requires that we determine whether a current condition with eight units future land use, threat levels from species meets the definition of having moderate to high resiliency agriculture and developed land use are ‘‘endangered species’’ or ‘‘threatened under the low development scenario projected to be relatively low in the species’’ because of any of the following (Service 2020, entire). In the moderate Lower Tombigbee (C1) and Lower factors: (A) The present or threatened and high development scenarios, seven Alabama (C2) resilience units. Thus, if destruction, modification, or units are projected to have moderate to the species is present, there is no curtailment of its habitat or range; (B) high resiliency; two units are projected projected increase in threats related to overutilization for commercial, to have low resiliency (one unit is low agriculture or developed land use. In the recreational, scientific, or educational under current condition) in the Coosawattee River (F2) resilience unit, purposes; (C) disease or predation; (D) moderate development scenario and one there is projected to be relatively high the inadequacy of existing regulatory additional unit is projected to be likely amounts of agricultural and developed mechanisms; or (E) other natural or extirpated (total of five units) in the land. If the species is present there, this manmade factors affecting its continued high development scenario. The Pearl land use pattern could represent a threat existence. River (A) representation unit continues to the individuals occupying the unit. Status Throughout All of Its Range to be the stronghold for the species, as Future species’ representation is resiliency is projected to remain high in projected to maintain current levels in We have carefully assessed the best the Bogue Chitto (A1) resilience unit the low development scenario, as the scientific and commercial information across all scenarios and the Pearl River only projected changes in resiliency are available regarding the past, present, (A2) resilience unit is projected to have two units decreasing from high to and future threats to the frecklebelly moderate resiliency across all scenarios. moderate resiliency. Under the madtom. We considered whether the All extant resilience units in the Upper moderate and high development frecklebelly madtom is presently in Tombigbee (B) representation unit are scenarios, the Etowah River (F3) and danger of extinction. Our review of the projected to have moderate resiliency. Conasauga River (F1) units are projected best available information indicates The Cahaba River (E1) resilience unit is to decrease in resiliency. Therefore, the there are 16 resilience units of projected to maintain moderate Upper Coosa River (F) representation frecklebelly madtom within 6 resiliency into the future. unit is projected to be vulnerable to representation units across the known Within the Upper Coosa River (F) extirpation, resulting in a loss of historical range in Louisiana, representation unit, the Etowah River species’ representation. Given this unit Mississippi, Alabama, Georgia, and (F3) resilience unit is projected to occurs in a unique physiographic Tennessee. The species was likely more become more developed by 2050 under province and has populations widespread historically in the Mobile all scenarios; therefore, in the moderate considered as an evolutionary Bay drainage but was extirpated from and high development scenarios, the significant unit (Neely 2018, pp. 7–10), large river habitats after the creation of resiliency is projected to decrease from the projected loss of this unit would numerous impoundments. Currently, moderate to low, making the unit more result in a lower level of representation eight resilience units (62 percent) of vulnerable to stochastic events. The for the species. frecklebelly madtom have moderate to high level of development projected Species redundancy is projected to high resiliency and are contributing to within riparian areas of the Etowah maintain current levels into the future the viability of the species; impacts from River (F3) unit will lead to an increase under the low and moderate habitat destruction and modification do in impervious area, which could lead to development scenarios, as no additional not appear to be affecting the further decreases in water quality and resilience units are projected to become frecklebelly madtom at the population- impact the persistence of frecklebelly extirpated. In the Upper Coosa River (F) level for these resilience units. Five madtom. In addition, although the representation unit, two resilience units units (38 percent) have low resiliency or agricultural trend projects a decrease, are projected to decrease in resiliency are likely extirpated due to habitat the amount of land in agricultural use under the moderate and high scenarios. destruction and degradation resulting is still projected to remain relatively Therefore, frecklebelly madtom in these from channelization, dams, and

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impoundments, and these units are not scenario and seven units in the not need to evaluate the other question currently contributing to the moderate and high development for that portion of the species’ range. frecklebelly madtom’s viability. Three scenarios are projected to remain viable In undertaking this analysis for the units have unknown resiliency as these through 2050. With the projected lower frecklebelly madtom, we chose to units have no direct observations of the resiliency from habitat destruction and address the status question first—we species and are known only from eDNA degradation within the Upper Coosa consider information pertaining to the presence surveys. The species is River (F) representation unit, the geographic distribution of both the currently extant in four of the six species’ representation and redundancy species and the threats that the species representation units with at least one is lower than current levels. However, faces to identify any portions of the resilience unit having moderate to high the geographically wide distribution of range where the species is endangered resiliency in each of the four resilience and representation units or threatened. We considered whether representation units. Given the broad guards against catastrophic losses any of the threats acting on the distribution of the species and eight rangewide. We find the multiple frecklebelly madtom are geographically units across the range having moderate resilience units across multiple concentrated in any portion of the range to high resiliency, a single catastrophic representation units provide resiliency, at a biologically meaningful scale. event is not likely to impact the species representation, and redundancy levels We identified two portions of the as a whole. Therefore, the frecklebelly that are likely sufficient to sustain the species’ range that may be experiencing madtom across its range is currently at species into the foreseeable future. a concentration of threats. First, the a low risk of extinction from habitat Therefore, we find that the risk of Upper Tombigbee River (B) destruction and other stressors. Thus, extinction of the frecklebelly madtom is representation unit of the frecklebelly we determine that proposing an sufficiently low that it is unlikely to madtom may be experiencing elevated endangered status for the species is not become endangered within the threats resulting from construction of appropriate. foreseeable future, i.e., within the next the Tenn-Tom Waterway (Factor A). The We forecasted the viability of the 30 years. construction of the Tenn-Tom Waterway frecklebelly madtom under three After evaluating threats to the species for commercial navigation eliminated plausible scenarios 30 years into the and assessing the cumulative effect of suitable habitat for the frecklebelly future (summarized above in Future the threats under the section 4(a)(1) madtom and has caused the likely Scenarios). We assessed relevant risk factors, we conclude that the risk factors extirpation of two of six resilience units factors that may be acting on the acting on the frecklebelly madtom and in the Upper Tombigbee River (B) frecklebelly madtom in the future and its habitat, either singly or in representation unit: Upper Tombigbee whether we could make reliable combination, are not of sufficient River (B6) and Bull Mountain Creek predictions about these factors and how imminence, scope, or magnitude to rise (B5). We evaluated current status they may impact the viability of the to the level to indicate that the species information and concluded that the species. We assessed how agriculture is in danger of extinction now (an species is effectively extirpated from and developed land use is projected to endangered species), or likely to become these two resilience units. Because we influence the viability of the endangered within the foreseeable considered these extirpated units to be frecklebelly madtom 30 years in the future (a threatened species), throughout lost historical range, they cannot be future (2050). Based on the modeling all of its range. considered as a significant portion of and scenarios evaluated, we considered the range. However, we considered the Status Throughout a Significant Portion our ability to make reliable predictions effects that the loss of these two units of Its Range in the future and the uncertainty in how have on the current and future viability and to what degree the species could Under the Act and our implementing of the frecklebelly madtom in the Upper respond to those risk factors in this regulations, a species may warrant Tombigbee River (B) representation timeframe. Based on this information, listing if it is in danger of extinction or unit. We then considered the current we determine the appropriate timeframe likely to become so within the status of the remaining four resilience for assessing whether this species is foreseeable future throughout all or a units in the Upper Tombigbee River likely to become in danger of extinction significant portion of its range. Having representation unit (B), which currently in the foreseeable future is 30 years. determined that the frecklebelly have moderate to high resiliency, Taking into account the impacts of the madtom is not in danger of extinction or including the Buttahatchee River (B4)— primary factors influencing the species likely to become so in the foreseeable considered a stronghold for the species. in the future (habitat destruction and future throughout all of its range, we In addition, the East Fork Tombigbee degradation caused by agriculture and now consider whether it may be in River (B1) resilience unit has moderate developed land uses resulting in poor danger of extinction or likely to become resiliency with recent collections of water quality) and the potential impacts so in the foreseeable future in a over 100 individuals despite some to the species’ needs, we project the significant portion of its range—that is, habitat impacts from the Tenn-Tom frecklebelly madtom will continue to whether there is any portion of the Waterway. These four units are remain resilient to stochastic events species’ range for which it is true that projected to have continued moderate across much of its range. We project that both (1) the portion is significant; and resiliency into the foreseeable future. numerous resilience units will have (2) the species is in danger of extinction Based on these facts, we conclude that moderate to high resiliency over the now or likely to become so in the the impacts from the Tenn-Tom next 30 years across the broad foreseeable future in that portion. Waterway are not having any geographic range of the species, Depending on the case, it might be more biologically meaningful effect on the including within the four currently efficient for us to address the remaining four resilience units in the extant representation units, depending ‘‘significance’’ question or the ‘‘status’’ Upper Tombigbee River representation on scenario. Although two of our question first. We can choose to address unit (B), which indicates the species scenarios indicated a decline in the either question first. Regardless of does not have a different status in that number of resilience units contributing which question we address first, if we portion of its range. Therefore, even if to viability of the frecklebelly madtom, reach a negative answer with respect to the Upper Tombigbee River (B) eight units in the low development the first question that we address, we do representation unit was found to

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comprise a significant portion of the stream habitat and water quality in the and ridges (mountains) through the frecklebelly madtom’s range, we Conasauga River (F1) resilience unit, Appalachians (Fennemann 1928, p. conclude that the species is not in which already has elevated nitrogen, 296). Given the Upper Coosa River (F) danger of extinction or likely to become phosphorus, turbidity, and representation unit occurs in different so in the foreseeable future in that concentrations of bioavailable estrogen physiographic provinces with a portion. (Freemen et al. 2017, pp. 429–430). In distinctive physical geography from the We identified another portion, the addition, the future scenarios project the rest of the range, frecklebelly madtoms Upper Coosa River (F) representation Etowah River (F3) and Conasauga River in this unit may experience unit, of the frecklebelly madtom’s range (F1) units to have low resiliency (under environmental conditions, such as soils, that is experiencing a concentration of the moderate development scenario) water chemistry, hydrological regimes, the following threat, but at a biologically and to have low resiliency and be likely and nutrient cycling, that are different meaningful scale: Habitat destruction extirpated, respectively (under the high from the rest of the range. These rivers and degradation from agriculture and development scenario), by the year in the Upper Coosa River (F) developed land uses resulting in poor 2050. This would significantly increase representation unit, flowing through water quality (Factor A). Currently, the risk of extirpation of the Upper unique physiographic provinces, are within the Upper Coosa River (F) Coosa (F) representation unit from a also removed from the nearest Coastal representation unit, two resilience units catastrophic or stochastic event. Our Plain physiographic province resilience (Conasauga River (F1) and Etowah River examination leads us to find that there units by approximately 418 river miles (F3)) have low and moderate resiliency, is substantial information that the (673 river kilometers) and represent the respectively; the Coosawattee (F2) Upper Coosa River (F) representation most eastern and northern resilience resilience unit was determined to have unit is likely to become in danger of units of the frecklebelly madtom. an unknown resiliency as the species extinction within the foreseeable future. Historically and currently, the Upper was not historically known to occur in We then proceeded to consider Coosa River (F) representation unit this river, but eDNA for the frecklebelly whether this portion of the range (i.e., represents a small portion (less than 15 madtom was found in portions of this the Upper Coosa River (F) percent based on current occurrences unit in 2018. Declines from historical representation unit) is significant. For and occupied stream reaches; less than condition in frecklebelly madtom the purposes of this analysis, the 24 percent based on historical occurrences have been apparent in the Service is considering significant occurrences) of the frecklebelly Conasauga River (F1) resilience unit, portions of the range by applying any madtom’s range. If the Upper Coosa while occurrence records in the Etowah reasonable definition of ‘‘significant.’’ River (F) representation unit was River (F3) resilience unit are fairly We asked whether any portions of the extirpated, the frecklebelly madtom widespread and considered similar to range may be biologically meaningful in would lose some representation and historical occurrence records. Given the terms of the resiliency, redundancy, or redundancy, but the loss of this portion current resiliency of units within the representation of the entity being of the species’ range would still leave Upper Coosa River (F) representation evaluated. This approach is consistent sufficient resiliency (populations with unit, it is not likely a single catastrophic with the Act, our implementing moderate to high resiliency), event would result in the extirpation of regulations, our policies, and case law. redundancy, and representation in the the species from this portion. We evaluated the available remainder of the species’ range such In the foreseeable future, we project information about the portion of the that it would not notably reduce the the Upper Coosa River (F) species that occupies the Upper Coosa viability of the species. Therefore, representation unit will have declines in River representation unit, assessing its despite the Upper Coosa River (F) resiliency for both the Conasauga River significance. Throughout most of its representation unit occurring in (F1) and Etowah River (F3) resilience range, the frecklebelly madtom occurs different physiographic provinces and units due to habitat destruction and in rivers within the Gulf Coastal Plain being disjunct from the remainder of the degradation from agriculture and physiographic province, which is an range, this unit only represents a small developed land use. Although this area comprising the former continental portion of the frecklebelly madtom’s threat is not unique to the Upper Coosa shelf and is currently above sea level historical and current range and does River (F) representation unit, the threat (Fennemann 1928, p. 280). The Upper not represent a significant portion of the in this portion is great enough to project Coosa River (F) representation unit frecklebelly madtom’s range. We a reduction in resiliency for both of occurs in the Ridge and Valley conclude that the frecklebelly madtom these resilience units, and, therefore, the (Conasauga River (F1) and Coosawattee is not in danger of extinction or likely entire representation unit is expected to River (F2) resilience units) and to become so in the foreseeable future in decline. In the Etowah River (F3) Piedmont Upland (Etowah River (F3) a significant portion of its range. Our resilience unit, urbanization under the resilience unit) physiographic approach is consistent with the courts’ low, moderate, and high development provinces. Physiographic provinces are holdings in Desert Survivors v. scenarios is projected to increase and regions divided into distinctive Department of the Interior, 321 F. Supp. comprise 35, 38, and 42 percent of the geographic areas based on physical 3d 1011 (N.D. Cal. 2018), and Center for watershed, respectively, as compared to geography, such as topography, soil Biological Diversity v. Jewell, 248 F. 14 percent of the watershed currently. type, and geologic history (Fenneman Supp. 3d, 946, 959 (D. Ariz. 2017). Within the Conasauga River (F1) 1928, pp. 266–272), where areas with We have carefully assessed the best resilience unit, urbanization is projected similar characteristics are grouped into scientific and commercial information to increase and comprise 13, 15, and 17 a province. The Piedmont province available regarding the past, present, percent of the watershed under the low, contains lowlands (plains) and and future threats to the frecklebelly moderate, and high development highlands (plateaus) with isolated madtom. Because the species is neither scenarios, as compared to 8 percent of mountains, and in Georgia, the elevation in danger of extinction now nor likely the watershed currently. This projected reaches up to 480 meters (1,500 feet) to become so in the foreseeable future urbanization coupled with continued (Fennemann 1928, p. 293); the Ridge throughout all or any significant portion agricultural activities will continue to and Valley province contain a of its range, the frecklebelly madtom impair, and potentially further decrease, longitudinal series of valleys (lowlands) does not meet the definition of an

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endangered species or threatened Distinct Population Segment (DPS) for listing is a DPS, then the population species. Therefore, we find that listing Analysis segment’s conservation status is the frecklebelly madtom as an Under the Act, we have the authority evaluated based on the five listing endangered or threatened species under to consider for listing any species, factors established by the Act to the Act is not warranted at this time. subspecies, or, for vertebrates, any determine if listing it as either This constitutes the conclusion of the distinct population segment (DPS) of endangered or threatened is warranted. Service’s 12-month finding on the 2010 these taxa if there is sufficient The Upper Coosa River (F) petition to list the frecklebelly madtom information to indicate that such action representation unit consists of the as an endangered or threatened species. may be warranted. To guide the Conasauga River, Coosawattee River, A detailed discussion of the basis for implementation of the DPS provisions Etowah River, and their tributaries and this finding can be found in the SSA of the Act, we and the National Marine watersheds (see figure 1, below). The report and other supporting documents Fisheries Service (National Oceanic and Coosawattee River joins the Conasauga (available on the internet at http:// Atmospheric Administration— River to form the Oostanaula River, and www.regulations.gov under Docket No. Fisheries), published the Policy the Etowah River joins the Oostanaula FWS–R4–ES–2020–0058). Regarding the Recognition of Distinct River to form the Coosa River. Within Vertebrate Population Segments Under this proposed rule, we refer to the We ask the public to submit to us any the Endangered Species Act (DPS Upper Coosa River (F) representation new information that becomes available Policy) in the Federal Register on unit as including all rivers and streams concerning the taxonomy, biology, February 7, 1996 (61 FR 4722). Under in the upper Coosa River basin that join ecology, or status of the frecklebelly our DPS Policy, we use two elements to to form the Coosa River; in other words, madtom, or stressors to the frecklebelly assess whether a population segment the entire watershed upstream from the madtom, whenever it becomes available. under consideration for listing may be confluence of the Oostanaula and Please submit any new information, recognized as a DPS: (1) The population Etowah Rivers. Below, we evaluated the materials, comments, or questions segment’s discreteness from the Upper Coosa River representation unit concerning this finding to the Alabama remainder of the species to which it of the frecklebelly madtom’s range to Ecological Services Field Office (see FOR belongs, and (2) the significance of the determine whether it meets the FURTHER INFORMATION CONTACT). population segment to the species to definition of a DPS under our DPS which it belongs. If we determine that Policy. a population segment being considered BILLING CODE 4333–15–P

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BILLING CODE 4333–15–C markedly separated from other (2) it is delimited by international Discreteness populations of the same taxon as a governmental boundaries within which consequence of physical, physiological, differences in control of exploitation, Under our DPS Policy, a population ecological, or behavioral factors. management of habitat, conservation segment of a vertebrate taxon may be Quantitative measures of genetic or status, or regulatory mechanisms exist considered discrete if it satisfies either morphological discontinuity may that are significant in light of section one of the following conditions: (1) It is provide evidence of this separation; or 4(a)(1)(D) of the Act.

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The Upper Coosa River (F) Neely Henry, Logan Martin, Lay, ‘‘significant’’ found in our DPS Policy representation unit of the frecklebelly Mitchell, Jordan, and R.F. Henry) and and used for DPS analysis. Although madtom is markedly separate from other impoundments disrupting the there are similarities in the definition of representation and resilience units of connectivity and creating barriers to ‘‘significant’’ under the SPR Policy and the species both genetically and movement to the rest of the range. the definition of ‘‘significance’’ in the geographically. In terms of morphology Therefore, frecklebelly madtoms in the DPS Policy, there are important and genetics, the frecklebelly madtom Upper Coosa River (F) representation differences between the two. The DPS has exhibited some morphological and unit currently do not, and will likely Policy requires that for a vertebrate genetic differences across representation never, naturally interact with population to meet the Act’s definition units. Preliminary data suggested there individuals or populations in the of ‘‘species,’’ it must be discrete from was considerable morphological remaining part of the range. In addition, other populations and must be variation across the species’ range, and if this portion becomes extirpated, significant to the taxon as a whole. The the populations in the Coosa River frecklebelly madtoms located within the significance criterion under the DPS drainage were the most distinctive Coastal Plain physiographic province Policy is necessarily broad and could be population (Neely 2018, p. 1). Given may be unable to recolonize the Upper met under a wider variety of this information, it was thought that Coosa River (F) representation unit, not circumstances even if it could not be frecklebelly madtoms in the Conasauga only due to the lack of connectivity, but met under the SPR Policy. In this case, and Etowah Rivers may be distinct from also because they may lack the needed we determine (see below) that the Upper frecklebelly madtoms found elsewhere. adaptive traits to survive in these Coosa River (F) representation unit is Through a reanalysis of existing different physical geographies. Based on ‘‘significant’’ for the purposes of DPS, morphological and genetic data, our review of the available information, and we did not, as discussed above, frecklebelly madtoms collected from the we conclude that the Upper Coosa River conclude that it constituted a Coosa River drainage were found to representation unit of the frecklebelly ‘‘significant’’ portion of the frecklebelly have shorter snout to barbel midpoint madtom is markedly separate from other madtom’s range. distance measurements than madtoms representation and resilience units of Currently, the Upper Coosa River (F) collected from other drainages, but this the species due to genetic separation representation unit is one of four known difference was not diagnostic of this and geographic (physical) isolation from extant units within the species. We population as there is overlap in the frecklebelly madtoms in the remainder determined that loss of this unit range of measurements among of the range. Therefore, we have (population segment) would result in a populations (Neely 2018, p. 7). In terms determined that the Upper Coosa River significant gap in the species’ range. The of genetic variation, considerable representation unit of the frecklebelly Upper Coosa River (F) representation genetic differentiation was observed madtom meets the condition for unit in Georgia and Tennessee among the Pearl, Tombigbee, Cahaba, discreteness under our DPS Policy. represents the eastern and northernmost portion of the frecklebelly madtom’s and Coosa Rivers populations; however, Significance morphological variation was range, with the remainder of the range Under our DPS Policy, once we have incongruent with genetic variation occurring in Louisiana, Mississippi, and determined that a population segment is (Neely 2018, p. 10). These results ‘‘do Alabama. As discussed previously, this discrete, we consider its biological and not allow clear diagnosis of distinct unit also occurs in different ecological significance to the larger physiographic provinces (Ridge and species within Noturus munitus’’ (Neely taxon to which it belongs. This Valley province and Piedmont Upland 2018, p. 10). Because the data do not consideration may include, but is not province) associated with different support the description of a distinct limited to: (1) Evidence of the environmental and physical conditions. subspecies or species, each population persistence of the discrete population Lastly, the Upper Coosa River (F) of frecklebelly madtom is recommended segment in an ecological setting that is representation unit is approximately to be considered as a separate unusual or unique for the taxon, (2) 418 river miles (673 kilometers) from evolutionary significant unit or ESU of evidence that loss of the population the nearest resilience units in the the frecklebelly madtom (Neely 2018, p. segment would result in a significant Coastal Plain province. Therefore, the 10). Therefore, the Upper Coosa River gap in the range of the taxon, (3) loss of this unit would result in the (F) representation unit is considered an evidence that the population segment species’ range shifting south and west ESU of the frecklebelly madtom, which represents the only surviving natural approximately 418 miles (673 provides key representation for the occurrence of a taxon that may be more kilometers). frecklebelly madtom as a whole. abundant elsewhere as an introduced As with other representation units, The Upper Coosa River (F) population outside its historical range, the Upper Coosa River (F) representation unit also consists of or (4) evidence that the discrete representation unit of the frecklebelly separate and distinct physiographic population segment differs markedly madtom differs markedly from other provinces as compared to the majority from other populations of the species in populations of the species in its genetic of the species’ range, as discussed above its genetic characteristics. Of particular characteristics. As discussed above, under Status Throughout a Significant note, as we explained in our draft (76 considerable genetic differentiation has Portion of Its Range. In terms of physical FR 76987, December 9, 2011, p. 76998) been observed among populations of or geographic separation, the resilience and final (79 FR 37577, July 1, 2014, pp. frecklebelly madtom (Neely 2018, p. 10), units in the Upper Coosa River (F) 79 FR 37579, 37585) Policy on and these populations are considered representation unit are disjunct from Interpretation of the Phrase ‘‘Significant evolutionary significant units of other units of the frecklebelly madtom Portion of Its Range’’ in the Endangered frecklebelly madtom. In addition, the across the species’ range. The distance Species Act’s Definitions of Upper Coosa River (F) representation of the geographic separation from other ‘‘Endangered Species’’ and ‘‘Threatened unit of the frecklebelly madtom persists frecklebelly madtom representation and Species’’ (SPR Policy), the definition of in different physiographic provinces resilience units is approximately 418 ‘‘significant’’ for the purpose of than the remainder of the range. The river miles (673 river kilometers) significant portion of the range analysis Upper Coosa River (F) representation upstream with seven dams (Weiss, H. differs from the definition of unit occurs in the Ridge and Valley

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(Conasauga River (F1) and Coosawattee the Upper Coosa River representation not likely that the current threats, or the River (F2) resilience units) and unit of the frecklebelly madtom is cumulative effects of those threats, will Piedmont Upland (Etowah River (F3) significant, as described above. result in the extirpation of the DPS. resilience unit) physiographic Therefore, we conclude that the Upper Therefore, the DPS is not currently in provinces, while the rest of the range Coosa River (F) representation unit of danger of extinction throughout its occurs in rivers within the Gulf Coastal the frecklebelly madtom is both discrete range. Plain physiographic province. Having and significant under our DPS Policy In the future, projected urbanization persisted over time in areas with and is, therefore, a listable entity under and continued agricultural activities distinctive physical geography, the Act. will continue to impact the Upper Coosa frecklebelly madtoms in the Upper Based on our DPS Policy (61 FR 4722; River DPS and its habitat by negatively Coosa River (F) representation unit have February 7, 1996), if a population affecting water quality (Factor A). Our likely adapted to environmental segment of a vertebrate species is both future scenarios project the Etowah conditions, such as soils, water discrete and significant relative to the River (F3) and Conasauga River (F1) chemistry, hydrological regimes, and taxon as a whole (i.e., it is a distinct units in the Upper Coosa River (F) nutrient cycling, differently, as population segment), its evaluation for representation unit to have low demonstrated by the divergent genetics endangered or threatened status will be resiliency or to become extirpated by described by Neely (2018, entire), and based on the Act’s definition of those the year 2050, and this would have likely contributed to the adaptive terms and a review of the factors significantly increase the risk of capacity of the species. The adaptations enumerated in section 4(a) of the Act. extirpation of the Upper Coosa River (F) of frecklebelly madtoms are an Having found that the Upper Coosa representation unit from the important and unique component of the River (F) representation unit of the aforementioned threats, as well as a species’ representation, which is frecklebelly madtom meets the catastrophic or stochastic event, within evidence of it differing markedly from definition of a distinct population the foreseeable future. In our other populations of the species in its segment, we now evaluate the status of consideration of foreseeable future, we genetics. Therefore, we have substantial this DPS to determine whether it meets evaluated how far into the future we evidence that the Upper Coosa River (F) the definition of an endangered or could reliably predict the threats to this representation unit of the frecklebelly threatened species under the Act. unit, as well as the madtom’s response to those threats. Based on the modeling madtom differs markedly in its genetic Status Throughout All of the DPS’s and scenarios (agriculture and characteristics, as it is considered an Range evolutionary significant unit, and loss of developed land use projections to 2050) this genetic diversity would likely In the analysis above for the evaluated, we considered our ability to impact the species’ adaptive capacity. frecklebelly madtom as a whole, we make reliable predictions in the future However, although the loss of the Upper have carefully assessed the best and the uncertainty in how and to what Coosa River (F) representation unit scientific and commercial information degree the unit could respond to those would likely result in a reduction in available regarding the past, present, risk factors in this timeframe. We species’ redundancy, and, therefore, the and future threats to the Upper Coosa determined a foreseeable future of 30 species’ adaptive capacity, it would not River DPS of the species. We considered years for the Upper Coosa River notably reduce the viability of the whether the Upper Coosa River DPS of representation unit. Based on this species across the range (see above the frecklebelly madtom is presently in information, we find the Upper Coosa under Status Throughout a Significant danger of extinction throughout all of its River DPS of the frecklebelly madtom is Portion of Its Range). range. The Upper Coosa River likely to become endangered within the Given the evidence that the Upper representation unit faces ongoing and foreseeable future throughout all of its Coosa River (F) representation unit of future threats from habitat destruction range. Therefore, we consider the Upper the frecklebelly madtom would result in and degradation caused by agriculture Coosa River DPS to be threatened a significant gap in the range if lost, and and developed land uses resulting in throughout all of its range. that the unit differs markedly from other poor water quality. As discussed above Status Throughout a Significant Portion populations of the species, we consider under Status Throughout a Significant of the DPS’s Range this unit to be significant to the species Portion of Its Range, occurrence records as a whole. Thus, the Upper Coosa River in the Etowah River (F3) resilience unit Under the Act and our implementing (F) representation unit of the are considered similar to historical regulations, a species may warrant frecklebelly madtom meets the criteria occurrence records, whereas there have listing if it is in danger of extinction or for significance under our DPS Policy. been declines from historical conditions likely to become so in the foreseeable in frecklebelly madtom occurrences in future throughout all or a significant DPS Conclusion for the Upper Coosa the Conasauga River (F1) resilience unit. portion of its range. The court in Center River Representation Unit of the Evidence of the frecklebelly madtom for Biological Diversity v. Everson, 2020 Frecklebelly Madtom presence was first reported from the WL 437289 (D.D.C. Jan. 28, 2020) Our DPS Policy directs us to evaluate Coosawattee River (F2) from eDNA (Center for Biological Diversity), vacated the significance of a discrete population collected in 2018. Until eDNA for the the aspect of the SPR Policy (79 FR in the context of its biological and species was recorded from this river, the 37577; July 1, 2014) that provided that ecological significance to the remainder frecklebelly madtom was not expected the Service does not undertake an of the species to which it belongs. Based occur there, given that the history of analysis of significant portions of a on an analysis of the best available physical modification to improve species’ range if the species warrants scientific and commercial data, we navigation, as well as hydropeaking at listing as threatened throughout all of its conclude that the Upper Coosa River (F) Carters Dam, upstream has negatively range. Therefore, we proceed to representation unit of the frecklebelly affected small-bodied, riffle-dwelling evaluating whether the species (DPS) is madtom is discrete due to genetic fish species (Freeman et al. 2011, pp. endangered in a significant portion of its separation and geographic (physical) 10–11). However, given the current range—that is, whether there is any isolation from the remainder of the resiliency of units within the Upper portion of the species’ range for which taxon. Furthermore, we conclude that Coosa River (F) representation unit, it is both (1) the portion is significant; and

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(2) the species is in danger of extinction surveys, in at least 20 years. experiencing similar impacts from in that portion. Depending on the case, Environmental DNA surveys have development and agricultural land-use it might be more efficient for us to detected the frecklebelly madtom in the to the Etowah River (F3) resilience unit. address the ‘‘significance’’ question or Conasauga River (F1) resilience unit, Since the Upper Coosa River DPS of the the ‘‘status’’ question first. We can leading us to determine the species frecklebelly madtom occurs in rivers choose to address either question first. remains present there. However, the with similar physical and Regardless of which question we lack of recent occurrence data coupled environmental conditions, and the address first, if we reach a negative with projections that this unit will Conasauga River (F1) resilience unit answer with respect to the first question become extirpated within the portion is experiencing similar water that we address, we do not need to foreseeable future led us to find there is quality impacts as the remainder of the evaluate the other question for that substantial information that the DPS’s range, there is no unique portion of the species’ range. Conasauga River (F1) resilience unit observable environmental usage or Following the court’s holding in may be endangered. behavioral characteristics attributable to Center for Biological Diversity, we now We then proceeded to consider just this portion that would make it a consider whether there are any whether this portion of the range (i.e., significant portion of the range of the significant portions of the species’ range the Conasauga River (F1) resilience unit) Upper Coosa River DPS. where the species is in danger of is significant. For purposes of this Overall, there is little evidence to extinction now (i.e., endangered). In analysis, the Service is examining for suggest that the Conasauga River (F1) undertaking this analysis for the Upper significant portions of the range by portion of the range has higher quality Coosa River DPS of the frecklebelly applying any reasonable definition of or higher value habitat or any other madtom, we chose to address the status ‘‘significant.’’ We asked whether any special importance to the species’ life question first—we consider information portions of the range may be history in the Upper Coosa River DPS. pertaining to the geographic distribution biologically meaningful in terms of the We considered if the Conasauga River of both the species and the threats that resiliency, redundancy, or (F1) portion contributes to biological the species faces to identify any representation of the entity being significance in any way listed above and portions of the range where the species evaluated. This approach is consistent did not find this portion to be is endangered. We considered whether with the Act, our implementing prominent or noteworthy in a manner the threats acting on the Upper Coosa regulations, our policies, and case law. that would suggest it is a significant River DPS are geographically The Upper Coosa River (F) portion of the DPS’s range. Thus, based concentrated in any portion of the range representation unit occurs in the Ridge on the best available information, we at a biologically meaningful scale. We and Valley (Conasauga River (F1) find that this portion of the DPS’s range examine the following threats that were resilience unit) and Piedmont Upland is not biologically significant. Therefore, considered to be primary factors driving (Etowah River (F3) resilience unit) no portion of the Upper Coosa River current resiliency of the Upper Coosa physiographic provinces. As discussed DPS’s range provides a basis for River DPS: Habitat destruction and above under Status Throughout a determining that it is in danger of degradation caused by agriculture and Significant Portion of Its Range for the extinction in a significant portion of its developed land uses resulting in poor frecklebelly madtom as a whole, range. This is consistent with the courts’ water quality (Factor A). physiographic provinces are geographic holdings in Desert Survivors v. Habitat destruction and degradation areas divided based on physical Department of the Interior, No. 16–cv– from agriculture and developed land geography and grouped by similar 01165–JCS, 2018 WL 4053447 (N.D. Cal. uses resulting in poor water quality is characteristics (Fenneman 1928, pp. Aug. 24, 2018), and Center for Biological occurring throughout the range of the 266–272). The Conasauga River (F1) Diversity v. Jewell, 248 F. Supp. 3d, 946, Upper Coosa River DPS. In the resilience unit occurs in the Ridge and 959 (D. Ariz. 2017). Conasauga River (F1) resilience unit, Valley province, which contains a series current development and agriculture of valleys (lowlands) and ridges Determination of Status comprises 8.0 percent and 21.3 percent (mountains) through the Appalachians We evaluated threats to the of the watershed, respectively (Service (Fennemann 1928, p. 296). The Etowah frecklebelly madtom and assessed the 2020, pp. 66–69). In the Coosawattee River (F3) resilience unit occurs in the cumulative effect of the threats under River (F2) resilience unit, current Piedmont province, which contains the Act’s section 4(a)(1) factors and development and agriculture comprises lowlands (plains) and highlands conclude the species, viewed across its 6.6 percent and 27.2 percent of the (plateaus) with isolated mountains entire range, experiences a low risk of watershed, respectively (Service 2020, (Fennemann 1928, p. 293). These two extinction. Based on the best available pp. 66–69). Lastly, current development resilience units may occur in two scientific and commercial information and agriculture comprises 14.8 percent physiographic provinces; however, the as presented in the SSA report and this and 10.4 percent of the Etowah River geography in both represents finding, we do not find that the (F3) resilience unit (Service 2020, pp. environmental and physical conditions frecklebelly madtom is currently in 66–69). For the three resilience units of lowlands and highlands associated danger of extinction throughout all or a assessed within the DPS, approximately with higher elevations than the significant portion of its range, nor is it 25 to 33 percent of each unit is currently remainder of the species’ range in the likely to become so in the foreseeable impacted by agricultural and developed Coastal Plain province. Frecklebelly future. However, we did find the Upper land uses. Therefore, we found no madtoms collected in both the Coosa River representation unit is a concentration of threats in any portion Conasauga River (F1) and Etowah River valid DPS, and this DPS of the of the Upper Coosa River DPS’s range at (F3) resilience units are strongly frecklebelly madtom is likely to become a biologically meaningful scale. associated with river weed endangered within the foreseeable However, we identified one portion, the (Podostemum spp.) used for cover and future throughout all of its range. Conasauga River (F1) resilience unit, shelter. Neither unit acts as a refugia or Therefore, we propose to list the Upper which currently has low resiliency and an important spawning ground for the Coosa River DPS of the frecklebelly where the frecklebelly madtom has not DPS. In addition, the Conasauga River madtom as a threatened species been observed, despite repeated (1) resilience unit watershed is throughout all of its range in accordance

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with sections 3(20) and 4(a)(1) of the organizations, and stakeholders) are species proposed for listing or result in Act. often established to develop recovery destruction or adverse modification of plans. When completed, the recovery proposed critical habitat. If a species is Available Conservation Measures outline, draft recovery plan, and the listed subsequently, section 7(a)(2) of Conservation measures provided to final recovery plan will be available on the Act requires Federal agencies to species listed as endangered or our website (http://www.fws.gov/ ensure that activities they authorize, threatened species under the Act endangered), or from our Alabama fund, or carry out are not likely to include recognition, recovery actions, Ecological Services Field Office (see FOR jeopardize the continued existence of requirements for Federal protection, and FURTHER INFORMATION CONTACT). the species or destroy or adversely prohibitions against certain practices. Implementation of recovery actions modify its critical habitat. If a Federal Recognition through listing results in generally requires the participation of a action may affect a listed species or its public awareness, and conservation by broad range of partners, including other critical habitat, the responsible Federal Federal, State, Tribal, and local Federal agencies, States, Tribes, agency must enter into consultation agencies, private organizations, and nongovernmental organizations, with the Service. individuals. The Act encourages businesses, and private landowners. Federal agency actions within the cooperation with the States and other Examples of recovery actions include species’ habitat that may require countries and calls for recovery actions habitat restoration (e.g., restoration of conference or consultation or both as to be carried out for listed species. The native vegetation), research, captive described in the preceding paragraph protection required by Federal agencies propagation and reintroduction, and include management and any other and the prohibitions against certain outreach and education. The recovery of landscape-altering activities on Federal activities are discussed, in part, below. many listed species cannot be lands administered, or on private lands The primary purpose of the Act is the accomplished solely on Federal lands seeking funding by Federal agencies, conservation of endangered and because their range may occur primarily which may include, but are not limited threatened species and the ecosystems or solely on non-Federal lands. To to, the USDA U.S. Forest Service, USDA upon which they depend. The ultimate achieve recovery of these species Farm Service Agency, USDA Natural goal of such conservation efforts is the requires cooperative conservation efforts Resources Conservation Service, and recovery of these listed species, so that on private, State, and Tribal lands. Federal Emergency Disaster Service; they no longer need the protective If this species is listed, funding for issuance of section 404 Clean Water Act measures of the Act. Section 4(f) of the recovery actions will be available from (33 U.S.C. 1251 et seq.) permits by the Act calls for the Service to develop and a variety of sources, including Federal U.S. Army Corps of Engineers; and implement recovery plans for the budgets, State programs, and cost-share construction and maintenance of roads conservation of endangered and grants for non-Federal landowners, the or highways by the Federal Highway threatened species. The recovery academic community, and Administration. planning process involves the nongovernmental organizations. In It is our policy, as published in the identification of actions that are addition, pursuant to section 6 of the Federal Register on July 1, 1994 (59 FR necessary to halt or reverse the species’ Act, the States of Georgia and Tennessee 34272), to identify to the maximum decline by addressing the threats to its would be eligible for Federal funds to extent practicable at the time a species survival and recovery. The goal of this implement management actions that is listed, those activities that would or process is to restore listed species to a promote the protection or recovery of would not constitute a violation of point where they are secure, self- the Upper Coosa River DPS of the section 9 of the Act. The intent of this sustaining, and functioning components frecklebelly madtom. Information on policy is to increase public awareness of of their ecosystems. our grant programs that are available to the effect of a proposed listing on Recovery planning consists of aid species recovery can be found at: proposed and ongoing activities within preparing draft and final recovery plans, http://www.fws.gov/grants. beginning with the development of a Although the Upper Coosa River DPS the range of the species proposed for recovery outline and making it available of the frecklebelly madtom is only listing. The discussion below regarding to the public within 30 days of a final proposed for listing under the Act at protective regulations under section 4(d) listing determination. The recovery this time, please let us know if you are of the Act complies with our policy. outline guides the immediate interested in participating in recovery II. Proposed Rule Issued Under Section implementation of urgent recovery efforts for this species. Additionally, we 4(d) of the Act actions and describes the process to be invite you to submit any new Background used to develop a recovery plan. information on this species whenever it Revisions of the plan may be done to becomes available and any information Section 4(d) of the Act contains two address continuing or new threats to the you may have for recovery planning sentences. The first sentence states that species, as new substantive information purposes (see FOR FURTHER INFORMATION the Secretary shall issue such becomes available. The recovery plan CONTACT). regulations as he deems necessary and also identifies recovery criteria for Section 7(a) of the Act requires advisable to provide for the review of when a species may be ready Federal agencies to evaluate their conservation of species listed as for reclassification from endangered to actions with respect to any species that threatened. The U.S. Supreme Court has threatened (‘‘downlisting’’) or removal is proposed or listed as an endangered noted that statutory language like from protected status (‘‘delisting’’), and or threatened species and with respect ‘‘necessary and advisable’’ demonstrates methods for monitoring recovery to its critical habitat, if any is a large degree of deference to the agency progress. Recovery plans also establish designated. Regulations implementing (see Webster v. Doe, 486 U.S. 592 a framework for agencies to coordinate this interagency cooperation provision (1988)). Conservation is defined in the their recovery efforts and provide of the Act are codified at 50 CFR part Act to mean the use of all methods and estimates of the cost of implementing 402. Section 7(a)(4) of the Act requires procedures which are necessary to bring recovery tasks. Recovery teams Federal agencies to confer with the any endangered species or threatened (composed of species experts, Federal Service on any action that is likely to species to the point at which the and State agencies, nongovernmental jeopardize the continued existence of a measures provided pursuant to the Act

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are no longer necessary. Additionally, extinction within the foreseeable future River DPS. Across the DPS’s range, the second sentence of section 4(d) of primarily due to habitat destruction and stream and water quality have been the Act states that the Secretary may by degradation from agriculture and degraded physically by sedimentation, regulation prohibit with respect to any developed land uses resulting in poor pollution, contaminants, threatened species any act prohibited water quality. The provisions of this impoundments, channelization, under section 9(a)(1), in the case of fish proposed 4(d) rule would promote destruction of riparian habitat, and loss or wildlife, or section 9(a)(2), in the case conservation of the Upper Coosa River of riparian vegetation due to agriculture of plants. Thus, the combination of the DPS by encouraging management of the activities and development within the two sentences of section 4(d) provides landscape in ways that meet both watershed and riparian areas. Other the Secretary with wide latitude of watershed and riparian management habitat or hydrological alteration, such discretion to select and promulgate purposes and the conservation needs of as ditching, draining, stream diversion, appropriate regulations tailored to the the Upper Coosa River DPS. The or diversion or alteration of surface or specific conservation needs of the provisions of this proposed rule are one ground water flow, into or out of the threatened species. The second sentence of many tools that we would use to stream will impact the habitat of the grants particularly broad discretion to promote the conservation of the Upper DPS. Therefore, we prohibit actions that the Service when adopting the Coosa River DPS. This proposed 4(d) result in the incidental take of the prohibitions under section 9. rule would apply only if and when we Upper Coosa River DPS by destroying, The courts have recognized the extent make final the listing of the Upper altering, or degrading the habitat in the of the Secretary’s discretion under this Coosa River DPS as a threatened manner described above (see proposed standard to develop rules that are species. § 17.44(ee)(1)(ii)). Regulating these appropriate for the conservation of a activities would help preserve the DPS’s Provisions of the Proposed 4(d) Rule species. For example, courts have remaining populations, slow the rate of upheld rules developed under section This proposed 4(d) rule would population decline, and decrease 4(d) as a valid exercise of agency provide for the conservation of the synergistic, negative effects from other authority where they prohibited take of Upper Coosa River DPS by prohibiting stressors. threatened wildlife or include a limited the following activities, except as taking prohibition (see Alsea Valley otherwise authorized or permitted: Exceptions to Prohibitions Alliance v. Lautenbacher, 2007 U.S. Import or export (see proposed In addition to certain statutory Dist. Lexis 60203 (D. Or. 2007); § 17.44(ee)(1)(i)); take (see proposed exceptions from prohibitions, which are Washington Environmental Council v. § 17.44(ee)(1)(ii)); possession and other found in sections 9 and 10 of the Act, National Marine Fisheries Service, 2002 acts with unlawfully taken specimens the proposed 4(d) rule includes the U.S. Dist. Lexis 5432 (W.D. Wash. (see proposed § 17.44(ee)(1)(iii)); following exceptions to the 2002)). Courts have also upheld 4(d) delivery, receipt, transport, or shipment prohibitions: rules that do not address all of the in interstate or foreign commerce in the Permitted Activities threats a species faces (see State of course of commercial activity (see Louisiana v. Verity, 853 F.2d 322 (5th proposed § 17.44(ee)(1)(iv)); and sale or We may issue permits to carry out Cir. 1988)). As noted in the legislative offer for sale in interstate or foreign otherwise prohibited activities, history when the Act was initially commerce (see proposed including those described above, enacted, ‘‘once an animal is on the § 17.44(ee)(1)(v)). We also include involving threatened wildlife under threatened list, the Secretary has an several exceptions to these prohibitions, certain circumstances (see proposed almost infinite number of options which along with the prohibitions are § 17.44(ee)(2)(i)). Regulations governing available to him with regard to the set forth under Proposed Regulation permits are codified at 50 CFR 17.32. permitted activities for those species. He Promulgation, below. With regard to threatened wildlife, a may, for example, permit taking, but not Under the Act, ‘‘take’’ means to permit may be issued for the following importation of such species, or he may harass, harm, pursue, hunt, shoot, purposes: For scientific purposes, to choose to forbid both taking and wound, kill, trap, capture, or collect, or enhance propagation or survival, for importation but allow the transportation to attempt to engage in any such economic hardship, for zoological of such species’’ (H.R. Rep. No. 412, conduct. Some of these provisions have exhibition, for educational purposes, for 93rd Cong., 1st Sess. 1973). been further defined in regulation at 50 incidental taking, or for special Exercising our authority under section CFR 17.3. Take can result knowingly or purposes consistent with the Act. There 4(d), we have developed a proposed rule otherwise, by direct and indirect are also certain statutory exemptions that is designed to address the specific impacts, intentionally, unintentionally, from the prohibitions, which are found threats and conservation needs for the or incidentally. Protecting the Upper in sections 9 and 10 of the Act. Upper Coosa River DPS of the Coosa River DPS of the frecklebelly frecklebelly madtom. Although the madtom from direct forms of take, such Activities Not Requiring a Permit statute does not require us to make a as physical injury or killing, whether We recognize the special and unique ‘‘necessary and advisable’’ finding with incidental or intentional, will help relationship with our State natural respect to the adoption of specific preserve and recover the remaining resource agency partners in contributing prohibitions under section 9, we find populations of the DPS. Therefore, we to conservation of listed species. State that this rule as a whole satisfies the prohibit intentional take of frecklebelly agencies often possess scientific data requirement in section 4(d) of the Act to madtom, including, but not limited to, and valuable expertise on the status and issue regulations deemed necessary and capturing, handling, trapping, distribution of endangered, threatened, advisable to provide for the collecting, or other activities (see and candidate species of wildlife and conservation of the Upper Coosa River proposed § 17.44(ee)(1)(ii)). Also, as plants. State agencies, because of their DPS of frecklebelly madtom. As discussed above under Summary of authorities and their close working discussed above under Summary of Biological Status and Threats, habitat relationships with local governments Biological Status and Threats, we have destruction and degradation from and landowners, are in a unique concluded that the Upper Coosa River agriculture and developed land uses are position to assist the Service in DPS is likely to become in danger of affecting the status of the Upper Coosa implementing all aspects of the Act. In

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this regard, section 6 of the Act provides Streambank stabilization is used as a Relation of 4(d) Rule to Available that the Service shall cooperate to the habitat restoration technique to restore Conservation Measures maximum extent practicable with the degraded and eroded streambanks back Nothing in this proposed 4(d) rule States in carrying out programs to natively vegetated, stable would change in any way the recovery authorized by the Act. Therefore, any streambanks. When done correctly, planning provisions of section 4(f) of the qualified employee or agent of a State these projects reduce bank erosion and Act, the consultation requirements conservation agency that is a party to a instream sedimentation, resulting in under section 7 of the Act, or the ability cooperative agreement with the Service improved habitat conditions for aquatic of the Service to enter into partnerships in accordance with section 6(c) of the species. Therefore, we would allow for the management and protection of Act, who is designated by his or her streambanks to be stabilized using the the Upper Coosa River DPS. However, agency for such purposes, would be able following bioengineering methods: Live interagency cooperation may be further to conduct activities designed to stakes (live, vegetative cuttings inserted streamlined through planned conserve the Upper Coosa River DPS or tamped into the ground in a manner programmatic consultations for the that may result in otherwise prohibited that allows the stake to take root and species between Federal agencies and take without additional authorization grow), live fascines (live branch the Service, where appropriate. We ask (see proposed § 17.44(ee)(2)(iii)). cuttings, usually willows, bound the public, particularly State agencies We may allow take of the individuals together into long, cigar-shaped and other interested stakeholders that of the Upper Coosa River DPS without bundles), planting of bare-root seedlings may be affected by the proposed 4(d) a permit by any employee or agent of or brush layering (cuttings or branches rule, to provide comments and the Service or a State conservation of easily rooted tree species layered suggestions regarding additional agency designated by his agency for between successive lifts of soil fill). All guidance and methods that the Service such purposes and when acting in the methods should use plant species native could provide or use, respectively, to course of his official duties if such to the region where the project is being streamline the implementation of this action is necessary to aid a sick, injured conducted. These methods would not proposed 4(d) rule (see Information or orphaned specimen; dispose of a include the sole use of quarried rock Requested, above). dead specimen; or salvage a dead (rip-rap) or the use of rock baskets or specimen which may be useful for gabion structures, but could be used in Since we are proposing a threatened scientific study (see proposed conjunction with the above status for the Upper Coosa River DPS of § 17.44(ee)(2)(ii)). In addition, Federal bioengineering methods. This provision the frecklebelly madtom and this and State law enforcement officers may of the proposed 4(d) rule for streambank proposed rule outlines the protections possess, deliver, carry, transport, or ship stabilization would promote in section 9(a)(1) of the Act for the DPS, specimens taken in violation of the Act conservation of the Upper Coosa River we are identifying those activities that as necessary (see proposed DPS by excepting from the prohibition would or would not constitute a § 17.44(ee)(2)(v)). incidental take resulting from activities violation of either section 9(a)(1) or this Channel Restoration, Streambank that would improve habitat conditions proposed 4(d) rule. Based on the best Stabilization, and Other Activities by reducing bank erosion and instream available information, at this time, activities identified as discussed above Channel restoration is used as a sedimentation (see proposed § 17.44(ee)(2)(iv)(B)). under Exceptions to Prohibitions would technique to restore degraded, not be considered to result in a violation Improving watershed, riparian, and physically unstable streams back to of section 9 of the Act. On the other habitat conditions within the range of natural, physically stable, ecologically hand, based on the best available the Upper Coosa River DPS would functioning streams. When done information, the following actions may provide for the conservation of the DPS correctly, these projects reduce, potentially result in a violation of and would likely increase resiliency in ameliorate, or fix unnatural erosion, section 9 of the Act if we adopt this the Etowah River and Conasauga River head cutting, and/or sedimentation. proposed rule; this list is not resilience units. Activities carried out Thus, channel restoration projects result comprehensive: in geomorphically stable stream under the Working Lands for Wildlife (1) Unauthorized handling, collecting, channels that maintain the appropriate (WLFW) program of the Natural possessing, selling, delivering, carrying, lateral dimensions, longitudinal Resources Conservation Service (NRCS), or transporting of the frecklebelly profiles, and sinuosity patterns over U.S. Department of Agriculture, or madtom, including interstate time without an aggrading or degrading similar projects, which may include transportation across State lines and bed elevation and include stable riffle- projects funded by the Service’s run-pool complexes that consist of silt- Partners for Fish and Wildlife Program import or export across international free gravel, coarse sand, cobble, or the Environmental Protection boundaries. boulders, woody structure, and river Agency’s 319 grant program, would (2) Destruction/alteration of the weed (Podostemum spp.). This benefit the DPS if they do not alter species’ habitat by discharge of fill provision of the proposed 4(d) rule for habitats known to be used by the DPS material, draining, ditching, tiling, pond channel restoration would promote beyond its tolerances and are construction, stream channelization or conservation of the Upper Coosa River implemented with a primary objective diversion, or diversion or alteration of DPS by excepting incidental take of improving environmental conditions surface or ground water flow into or out resulting from activities that would to support the aquatic biodiversity of of the stream (i.e., due to roads, improve channel conditions and restore flowing water habitats. This provision of impoundments, discharge pipes, degraded, physically unstable streams the proposed 4(d) rule for other stormwater detention basins, etc.). or stream segments (see proposed activities would promote conservation (3) Introduction of nonnative species § 17.44(ee)(2)(iv)(A)). We anticipate of the Upper Coosa River DPS by that compete with or prey upon the these activities will advance ecological excepting from the prohibition frecklebelly madtom. conditions within a watershed to a more incidental take resulting from activities (4) Discharge of chemicals or fill natural state that will benefit the as described above (see proposed material into any waters in which the frecklebelly madtom. § 17.44(ee)(2)(iv)(C)). frecklebelly madtom is known to occur.

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Questions regarding whether specific ownership or establish a refuge, habitat, the Secretary will first evaluate activities would constitute a violation of wilderness, reserve, preserve, or other areas occupied by the species. The section 9 of the Act should be directed conservation area. Designation also does Secretary will only consider unoccupied to the Alabama Ecological Services not allow the government or public to areas to be essential where a critical Field Office (see FOR FURTHER access private lands, nor does habitat designation limited to INFORMATION CONTACT). designation require implementation of geographical areas occupied by the restoration, recovery, or enhancement species would be inadequate to ensure III. Critical Habitat measures by non-Federal landowners. the conservation of the species. In Background Where a landowner requests Federal addition, for an unoccupied area to be Critical habitat is defined in section 3 agency funding or authorization for an considered essential, the Secretary must of the Act as: action that may affect a listed species or determine that there is a reasonable (1) The specific areas within the critical habitat, the Federal agency certainty both that the area will geographical area occupied by the would be required to consult with the contribute to the conservation of the species, at the time it is listed in Service under section 7(a)(2) of the Act. species and that the area contains one accordance with the Act, on which are However, even if the Service were to or more of those physical or biological found those physical or biological conclude that the proposed activity features essential to the conservation of features would result in destruction or adverse the species. Section 4 of the Act requires that we (a) Essential to the conservation of the modification of the critical habitat, the designate critical habitat on the basis of species, and Federal action agency and the the best scientific data available. (b) Which may require special landowner are not required to abandon Further, our Policy on Information management considerations or the proposed activity, or to restore or recover the species; instead, they must Standards Under the Endangered protection; and implement ‘‘reasonable and prudent Species Act (published in the Federal (2) Specific areas outside the alternatives’’ to avoid destruction or Register on July 1, 1994 (59 FR 34271)), geographical area occupied by the adverse modification of critical habitat. the Information Quality Act (section 515 species at the time it is listed, upon a Under the first prong of the Act’s of the Treasury and General determination that such areas are definition of critical habitat, areas Government Appropriations Act for essential for the conservation of the within the geographical area occupied Fiscal Year 2001 (Pub. L. 106–554; H.R. species. by the species at the time it was listed 5658)), and our associated Information Our regulations at 50 CFR 424.02 are included in a critical habitat Quality Guidelines provide criteria, define the geographical area occupied designation if they contain physical or establish procedures, and provide by the species as an area that may biological features (1) which are guidance to ensure that our decisions generally be delineated around species’ essential to the conservation of the are based on the best scientific data occurrences, as determined by the species and (2) which may require available. They require our biologists, to Secretary (i.e., range). Such areas may special management considerations or the extent consistent with the Act and include those areas used throughout all protection. For these areas, critical with the use of the best scientific data or part of the species’ life cycle, even if habitat designations identify, to the available, to use primary and original not used on a regular basis (e.g., extent known using the best scientific sources of information as the basis for migratory corridors, seasonal habitats, and commercial data available, those recommendations to designate critical and habitats used periodically, but not physical or biological features that are habitat. solely by vagrant individuals). essential to the conservation of the When we are determining which areas Conservation, as defined under species (such as space, food, cover, and should be designated as critical habitat, section 3 of the Act, means to use and protected habitat). In identifying those our primary source of information is the use of all methods and procedures physical or biological features that occur generally the information from the SSA that are necessary to bring an in specific occupied areas, we focus on report and information developed endangered or threatened species to the the specific features that are essential to during the listing process for the point at which the measures provided support the life-history needs of the species. Additional information sources pursuant to the Act are no longer species, including, but not limited to, may include any generalized necessary. Such methods and water characteristics, soil type, conservation strategy, criteria, or outline procedures include, but are not limited geological features, prey, vegetation, that may have been developed for the to, all activities associated with symbiotic species, or other features. A species; the recovery plan for the scientific resources management such as feature may be a single habitat species; articles in peer-reviewed research, census, law enforcement, characteristic or a more complex journals; conservation plans developed habitat acquisition and maintenance, combination of habitat characteristics. by States and counties; scientific status propagation, live trapping, and Features may include habitat surveys and studies; biological transplantation, and, in the characteristics that support ephemeral assessments; other unpublished extraordinary case where population or dynamic habitat conditions. Features materials; or experts’ opinions or pressures within a given ecosystem may also be expressed in terms relating personal knowledge. cannot be otherwise relieved, may to principles of conservation biology, Habitat is dynamic, and species may include regulated taking. such as patch size, distribution move from one area to another over Critical habitat receives protection distances, and connectivity. time. We recognize that critical habitat under section 7 of the Act through the Under the second prong of the Act’s designated at a particular point in time requirement that Federal agencies definition of critical habitat, we can may not include all of the habitat areas ensure, in consultation with the Service, designate critical habitat in areas that we may later determine are that any action they authorize, fund, or outside the geographical area occupied necessary for the recovery of the carry out is not likely to result in the by the species at the time it is listed, species. For these reasons, a critical destruction or adverse modification of upon a determination that such areas habitat designation does not signal that critical habitat. The designation of are essential for the conservation of the habitat outside the designated area is critical habitat does not affect land species. When designating critical unimportant or may not be needed for

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recovery of the species. Areas that are (v) The Secretary otherwise Physical or Biological Features important to the conservation of the determines that designation of critical Essential to the Conservation of the species, both inside and outside the habitat would not be prudent based on Species critical habitat designation, will the best scientific data available. In accordance with section 3(5)(A)(i) continue to be subject to: (1) As discussed earlier in this document, of the Act and regulations at 50 CFR Conservation actions implemented there is currently no imminent threat of 424.12(b), in determining which areas under section 7(a)(1) of the Act; (2) take attributed to collection or we will designate as critical habitat from regulatory protections afforded by the within the geographical area occupied requirement in section 7(a)(2) of the Act vandalism identified under Factor B for this species, and identification and by the species at the time of listing, we for Federal agencies to ensure their consider the physical or biological actions are not likely to jeopardize the mapping of critical habitat is not expected to initiate any such threat. In features that are essential to the continued existence of any endangered conservation of the species and that may or threatened species; and (3) section 9 our SSA and proposed listing determination for the Upper Coosa River require special management of the Act’s prohibitions on taking any considerations or protection. The individual of the species, including DPS of the frecklebelly madtom, we determined that the present or regulations at 50 CFR 424.02 define taking caused by actions that affect ‘‘physical or biological features essential threatened destruction, modification, or habitat. Federally funded or permitted to the conservation of the species’’ as curtailment of habitat or range is a projects affecting listed species outside the features that occur in specific areas threat to the Upper Coosa River DPS and their designated critical habitat areas and that are essential to support the life- may still result in jeopardy findings in that those threats in some way can be history needs of the species, including, some cases. These protections and addressed by section 7(a)(2) but not limited to, water characteristics, conservation tools will continue to consultation measures. The species soil type, geological features, sites, prey, contribute to recovery of this species. occurs wholly in the jurisdiction of the vegetation, symbiotic species, or other Similarly, critical habitat designations United States, and we are able to features. A feature may be a single made on the basis of the best available identify areas that meet the definition of habitat characteristic or a more complex information at the time of designation critical habitat. Therefore, because none combination of habitat characteristics. will not control the direction and of the circumstances enumerated in our Features may include habitat substance of future recovery plans, regulations at 50 CFR 424.12(a)(1) have characteristics that support ephemeral habitat conservation plans (HCPs), or been met and because there are no other or dynamic habitat conditions. Features other species conservation planning circumstances the Secretary has may also be expressed in terms relating efforts if new information available at identified for which this designation of to principles of conservation biology, the time of these planning efforts calls critical habitat would be not prudent, such as patch size, distribution for a different outcome. we have determined that the distances, and connectivity. For Prudency Determination designation of critical habitat is prudent example, physical features essential to Section 4(a)(3) of the Act, as for the Upper Coosa River DPS. the conservation of the species might include gravel of a particular size amended, and implementing regulations Critical Habitat Determinability (50 CFR 424.12) require that, to the required for spawning, alkali soil for maximum extent prudent and Having determined that designation is seed germination, protective cover for determinable, the Secretary shall prudent, under section 4(a)(3) of the Act migration, or susceptibility to flooding designate critical habitat at the time the we must find whether critical habitat for or fire that maintains necessary early- species is determined to be an the Upper Coosa River DPS of the successional habitat characteristics. endangered or threatened species. Our frecklebelly madtom is determinable. Biological features might include prey species, forage grasses, specific kinds or regulations (50 CFR 424.12(a)(1)) state Our regulations at 50 CFR 424.12(a)(2) ages of trees for roosting or nesting, that the Secretary may, but is not state that critical habitat is not symbiotic fungi, or a particular level of required to, determine that a determinable when one or both of the nonnative species consistent with designation would not be prudent in the following situations exist: following circumstances: conservation needs of the listed species. (i) The species is threatened by taking (i) Data sufficient to perform required The features may also be combinations or other human activity and analyses are lacking, or of habitat characteristics and may identification of critical habitat can be (ii) The biological needs of the species encompass the relationship between expected to increase the degree of such are not sufficiently well known to characteristics or the necessary amount threat to the species; identify any area that meets the of a characteristic essential to support (ii) The present or threatened definition of ‘‘critical habitat.’’ When the life history of the species. destruction, modification, or critical habitat is not determinable, the In considering whether features are curtailment of a species’ habitat or range Act allows the Service an additional essential to the conservation of the species, we may consider an appropriate is not a threat to the species, or threats year to publish a critical habitat quality, quantity, and spatial and to the species’ habitat stem solely from designation (16 U.S.C. 1533(b)(6)(C)(ii)). causes that cannot be addressed through temporal arrangement of habitat management actions resulting from We reviewed the available characteristics in the context of the life- consultations under section 7(a)(2) of information pertaining to the biological history needs, condition, and status of the Act; needs of the Upper Coosa River DPS and the species. These characteristics (iii) Areas within the jurisdiction of habitat characteristics where this DPS is include, but are not limited to, space for the United States provide no more than located. This and other information individual and population growth and negligible conservation value, if any, for represent the best scientific data for normal behavior; food, water, air, a species occurring primarily outside available and led us to conclude that the light, minerals, or other nutritional or the jurisdiction of the United States; designation of critical habitat is physiological requirements; cover or (iv) No areas meet the definition of determinable for the Upper Coosa River shelter; sites for breeding, reproduction, critical habitat; or DPS. or rearing (or development) of offspring;

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and habitats that are protected from and have connectivity to support conditions that are conducive to the disturbance. enough frecklebelly madtoms to ensure presence of frecklebelly madtom is not The Upper Coosa River DPS is a individuals can find a mate and well known. However, muddy population segment of the frecklebelly reproduce (Service 2020, p. 17). Cover is waterways, lentic streams (still water), madtom and occurs in the upper Coosa an important component of suitable and poor water quality conditions are River system in the Piedmont Upland habitat for the frecklebelly madtom and not desirable for maintaining suitable physiographic province in Georgia and provides shelter from predators, space habitat for the species. Therefore, the Ridge and Valley physiographic to forage, and space to nest. The species appropriate water and sediment quality province in Georgia and Tennessee. The is often found in or near aquatic are necessary to sustain growth, primary habitat features that influence vegetation, such as river weed reproduction, and viability of the the resiliency of the Upper Coosa River (Podostemum spp.), woody structures, frecklebelly madtom and are essential to DPS include flowing water, suitable and under large, flat rocks. In addition, the conservation of the species. water quality, substrate, cover, and nesting sites for madtoms are typically The species is an opportunistic habitat connectivity. These features are cavities under natural material (rocks, insectivore feeding on a variety of essential to the survival and logs, empty mussel shells). Thus, small aquatic insects and larvae, including reproduction of individuals at all life to large flowing rivers with appropriate caddisflies, mayflies, blackflies, and stages. substrate, cover, and connectivity are midges (Miller 1984, p. 9). Seasonal As stated above, the frecklebelly important for the growth, reproduction, changes found in diet probably reflect madtom occurs in small to large, swift- and survival of the frecklebelly madtom. differences in prey availability (Miller flowing rivers consisting of stable riffle- The frecklebelly madtom, like other 1984, p. 11). Therefore, a diverse and run pool complexes and with a substrate benthic species, is sensitive to poor available aquatic macroinvertebrate that consists of silt-free gravel, coarse water quality (Warren et al. 1997, p. assemblage is important to the growth sand, cobble, and boulders. The species 125) and needs clean, flowing water to and survival of the frecklebelly madtom. needs unimpounded flowing water to survive. Changes in water chemistry and More detail of the habitat and life successfully reproduce and maintain flow patterns, resulting in a decrease in history needs are summarized above populations. In addition, streams must water quality and quantity, have under Background, and a thorough have an adequate flow to maintain detrimental effects on madtom ecology, review is available in the SSA report instream habitats and connectivity of because they can render aquatic habitat (Service 2020, entire; available on streams with the floodplain, which is unsuitable for occupancy. In addition, http://www.regulations.gov under important to allow nutrient and the frecklebelly madtom is intolerant of Docket No. FWS–R4–ES–2020–0058). A sediment exchange for habitat excessive sedimentation (Shepard 2004, summary of the resource needs of the maintenance. Stream reaches with p. 221). The minimum and maximum Upper Coosa River DPS is provided suitable habitat must be large enough standards of water quality and quantity below in table 3.

TABLE 3—RESOURCE NEEDS FOR THE UPPER COOSA RIVER DPS OF THE FRECKLEBELLY MADTOM TO COMPLETE EACH LIFE STAGE

Life stage Resources needed

Fertilized eggs ...... Flowing water with good water quality; cavities for shelter; parental care. Larvae ...... Flowing water with good water quality; low predation, disease, and environmental stress; adequate food availability. Juveniles ...... Flowing water with good water quality; low predation, disease, and environmental stress; structure (vegeta- tion, rock, substrate) for shelter and forage; adequate food availability. Adults ...... Flowing water with adequate water quality; structure (vegetation, rock, substrate) for shelter, forage, and nesting; cavities for nesting; appropriate male to female demographics; adequate food availability.

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

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Special Management Considerations or species to be considered for designation Within those areas, we delineated Protection as critical habitat. To determine and critical-habitat-unit boundaries using When designating critical habitat, we select appropriate occupied areas that the following process: We evaluated habitat suitability of assess whether the specific areas within contain the physical or biological stream and river channels within the the geographical area occupied by the features essential to the conservation of geographical area occupied at the time species at the time of listing contain the species or areas otherwise essential of listing, and retained for further features which are essential to the for the conservation of the Upper Coosa consideration those streams that contain conservation of the species and which River DPS of the frecklebelly madtom, one or more of the physical and may require special management we developed a conservation strategy biological features to support life- considerations or protection. The for the DPS. The goal of the conservation strategy for the Upper history functions essential to features essential to the conservation of conservation of the Upper Coosa River the Upper Coosa River DPS may require Coosa River DPS of the frecklebelly madtom is to recover the DPS to the DPS. We determined the end points of special management considerations or river units by evaluating the presence or protections to reduce the following point where the protections of the Act are no longer necessary. The role of absence of appropriate physical and threats: (1) Urbanization of the biological features. Our upstream cutoff landscape, including (but not limited to) critical habitat in achieving this conservation goal is to identify the points for each stream are located land conversion for urban and approximately where the physiographic commercial use, infrastructure (roads, specific areas within the Upper Coosa River DPS’s range that provide essential province that the frecklebelly madtom bridges, utilities), and urban water uses occupies begins (where the Conasauga (water supply reservoirs, wastewater physical or biological features, without which range-wide resiliency, River flows out of the Blue Ridge and treatment); (2) nutrient pollution from into the Ridge and Valley physiographic agricultural activities that impact water redundancy, and representation could not be achieved. We anticipate that province and where the Etowah River quantity and quality; (3) significant flows out of the Blue Ridge and into the alteration of water quality; (4) culvert recovery will require continued protection of existing resilience units Piedmont Upland physiographic and pipe installation that creates province) and selected downstream barriers to movement; (5) other and habitats that contribute to the viability of the DPS, as well as ensuring cutoff points that omit areas where watershed and floodplain disturbances habitat conditions are less favorable for that release sediments or nutrients into there are adequate numbers of fish in stable units and that at least one viable the species (i.e., do not contain the the water or fill suitable spawning physical or biological features essential habitat; and (6) creation of reservoirs unit occurs in each of the physiographic provinces (Piedmont Upland and Ridge to the conservation of the DPS). that convert permanently flowing Based on this analysis, the following and Valley). This will help to ensure streams and/or streams that hold water rivers meet criteria for areas occupied that catastrophic events, such as floods, into lake or pond-like (lentic) by the species at the time of listing: cannot simultaneously affect all known environments. Conasauga River, Coosawattee River, resilience units of the DPS. Recovery Management activities that could and Etowah River. These areas include considerations, such as maintaining ameliorate these threats include, but are the two rivers, Conasauga River and existing genetic diversity and striving not limited to, use of best management Etowah River, known to have been for representation of both physiographic practices (BMPs) designed to reduce occupied by the DPS historically. provinces in the DPS’s current range, sedimentation, erosion, and bank-side Environmental DNA of the frecklebelly were considered in formulating this destruction; protection of riparian madtom was detected in the Conasauga corridors and suitable spawning habitat; proposal. River in 2017 and 2018, which meets retention of sufficient canopy cover In developing our conservation the criteria for consideration as an area along banks; moderation of surface and strategy for determining which areas to occupied by the species at the time of ground water withdrawals to maintain include as critical habitat for the Upper listing. In the Etowah River, occurrence natural flow regimes; increased use of Coosa River DPS, we focused on the data and eDNA records from 2018 are stormwater management and reduction existing resilience units and habitats available. These two areas meet our of stormwater flows into the stream that are presently contributing to the conservation strategy for the frecklebelly systems; placement of culverts or viability or historical units in which madtom. Designating critical habitat of bridges that accommodate fish passage; resiliency can be improved such that streams in these two occupied resilience and reduction of other watershed and they contribute to viability of the units of the DPS, which occur in both floodplain disturbances that release species. In summary, we identified physiographic provinces and currently sediments, pollutants, or nutrients into streams and rivers that are both: (1) contribute to (or are historical units in the water. Currently occupied streams and rivers which resiliency can be improved to within the known historical range of the contribute to) the species’ viability, will Criteria Used To Identify Critical Upper Coosa River DPS, and (2) those sufficiently lead to the protection, and Habitat areas that have retained the physical or eventual reduction in risk of extirpation, As required by section 4(b)(2) of the biological features identified earlier that of the DPS. Improving the resiliency of Act, we use the best scientific data will allow for the maintenance and the resilience units in these two available to designate critical habitat. In expansion of existing populations. For currently occupied streams will likely accordance with the Act and our the purposes of the proposed critical increase viability to the point that the implementing regulations at 50 CFR habitat designation, and for areas within protections of the Act are no longer 424.12(b), we review available the geographic area occupied by the necessary. information pertaining to the habitat species at the time of listing, we The proposed designation does not requirements of the species and identify determined a unit to be occupied if it include the Coosawattee River, which is specific areas within the geographical contains a recent (i.e., observed in the not part of the known historical range of area occupied by the species at the time past 11 years (since 2009)) observation the species. Environmental DNA of the of listing and any specific areas outside (collection) or eDNA record that frecklebelly madtom was detected in the the geographical area occupied by the supports the presence of the species. Coosawattee River in 2018, which meets

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the criteria for consideration as an area collected during monitoring efforts identified physical or biological features occupied by the species at the time of (Shepard et al. 1997, entire; Bennet et and supports multiple life-history listing. However, since the Coosawattee al. 2008, entire; Bennet and Kuhajda processes. River is not part of the known historical 2010, entire; Albanese et al. 2018, The critical habitat designation is range of the frecklebelly madtom, this entire; Service 2020, entire). defined by the map or maps, as area does not meet our conservation Observation and eDNA records were modified by any accompanying strategy for designating critical habitat compiled and provided to us by State regulatory text, presented at the end of for the species. The conservation partners during the SSA analysis. this document under Proposed strategy focused on areas within the When determining proposed critical Regulation Promulgation. We include historical known range of the species. In habitat boundaries, we made every addition, since the species has never effort to avoid including developed more detailed information on the been directly observed in this river areas such as lands covered by boundaries of the critical habitat despite multiple surveys over time, buildings, pavement, and other designation in the preamble of this using the best available information, we structures because such lands lack document. We will make the determined this area is not a historical physical or biological features necessary coordinates or plot points or both on unit in which resiliency can be for the Upper Coosa River DPS. The which each map is based available to improved to contribute to the species’ scale of the maps we prepared under the the public on http:// viability. Lastly, we determined that parameters for publication within the www.regulations.gov at Docket No. sufficient areas (Conasauga River and Code of Federal Regulations may not FWS–R4–ES–2020–0058 and on our Etowah River) already have been reflect the exclusion of such developed internet site at https://www.fws.gov/ identified within this proposed lands. Any such lands inadvertently left southeast/. designation. Should we receive inside critical habitat boundaries shown Proposed Critical Habitat Designation information during the public comment on the maps of this proposed rule have period that supports designating as been excluded by text in the proposed We are proposing to designate critical habitat areas not included in the rule and are not proposed for approximately 134 river miles (mi) (216 proposed units (see Proposed Critical designation as critical habitat. river kilometers (km)) in two units as Habitat Designation, below), we will Therefore, if the critical habitat is critical habitat for the Upper Coosa reevaluate our current proposal. finalized as proposed, a Federal action River DPS of the frecklebelly madtom. We are not currently proposing to involving these lands would not trigger The critical habitat areas we describe designate any areas outside the section 7 consultation with respect to below constitute our current best geographical area occupied by the critical habitat and the requirement of assessment of areas that meet the Upper Coosa River DPS, because we no adverse modification unless the definition of critical habitat for the have not identified any unoccupied specific action would affect the physical areas that are essential for the or biological features in the adjacent Upper Coosa River DPS. The two units conservation of the species. The critical habitat. are: (1) Conasauga River Unit and (2) protection of the Conasauga River and We propose to designate as critical Etowah River Unit. Table 4, below, Etowah River would sufficiently reduce habitat lands that we have determined shows the proposed critical habitat the risk of extinction, and improving the are occupied at the time of listing (i.e., units, land ownership, and the resiliency of these currently occupied currently occupied) and that contain approximate river miles of each unit. streams of the DPS would increase one or more of the physical or biological Per State regulations (Tennessee Code viability to the point that the protections features that are essential to support Annotated section 69–1–101 and of the Act are no longer necessary. life-history processes of the species. Georgia Code section 52–1–31), Sources of data for this proposed Units are proposed for designation navigable waters are considered public designation of critical habitat include based on one or more of the physical or rights-of-way. Lands beneath the multiple databases maintained by biological features being present to navigable waters included in this universities and State agencies in support the Upper Coosa River DPS’s proposed rule are owned by the States Tennessee and Georgia, as well as life-history processes. Some units of Tennessee or Georgia. Ownership of numerous survey reports on streams contain all of the identified physical or lands beneath nonnavigable waters throughout the DPS’s range. Other biological features and support multiple included in this rule are determined by sources of available information on life-history processes. Unit 1 contains riparian land ownership. The riparian habitat requirements for this species only some of the physical or biological land adjacent to the proposed critical include studies conducted at occupied features necessary to support the Upper habitat is 85 percent private, 6 percent sites and published in peer-reviewed Coosa River DPS’s particular use of that local, 5 percent State, and 4 percent articles, agency reports, and data habitat. Unit 2 contains all of the Federal lands.

TABLE 4—PROPOSED CRITICAL HABITAT UNITS FOR THE UPPER COOSA RIVER DPS OF THE FRECKLEBELLY MADTOM

River miles Critical habitat unit Riparian ownership surrounding units (kilometers)

1. Conasauga River ...... Private, State, Federal ...... 51.5 (83) 2. Etowah River ...... Private, Local, State ...... 82.5 (133)

Total ...... 134 (216) Note: Lengths may not sum due to rounding.

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We present brief descriptions of all features necessary for the conservation that involve some other Federal action units, and reasons why they meet the of the DPS. (such as funding from the Federal definition of critical habitat for the Special management considerations Highway Administration, Federal Upper Coosa River DPS, below. or protection may be required within Aviation Administration, or the Federal Unit 2 to alleviate impacts from Emergency Management Agency). Unit 1: Conasauga River stressors that are anticipated to amplify Federal actions not affecting listed Unit 1 consists of approximately 51.5 degradation of the habitat, including species or critical habitat—and actions river mi (83 km) of the Conasauga River sedimentation, pollutant input, excess on State, Tribal, local, or private lands beginning at the mouth of Coahulla nutrient input, development, and that are not federally funded, Creek in Whitfield and Murray unstable stream banks. Increased authorized, or carried out by a Federal Counties, Georgia, and continuing development, including urban agency—do not require section 7 upstream through Bradley County, development and runoff, dam consultation. Tennessee, to the mouth of Graham construction and use, and paved and Compliance with the requirements of Branch in Polk County, Tennessee. Unit unpaved roads, in the surrounding section 7(a)(2) is documented through 1 includes river habitat up to bank full watershed and riparian area have led to our issuance of: height. Frecklebelly madtom occupies higher levels of sedimentation, siltation, (1) A concurrence letter for Federal all river reaches in this unit. Unit 1 contamination, and nutrient-loading, as actions that may affect, but are not contains some of the physical or well as destabilized stream banks. likely to adversely affect, listed species biological features necessary for the Special management considerations or critical habitat; or conservation of the DPS. Unit 1 related to agricultural and developed (2) A biological opinion for Federal possesses those characteristics, as areas that will benefit the habitat in this actions that may affect, and are likely to described above under Summary of unit include, but are not limited to, adversely affect, listed species or critical Essential Physical or Biological riparian buffer restoration, reduced habitat. Features, of essential physical or surface and groundwater withdrawals, When we issue a biological opinion biological features (1), (2), (3), and (5). increased open space in the watershed, concluding that a project is likely to Essential physical or biological feature and implementing highest levels of jeopardize the continued existence of a (4) is degraded in this unit, but with treatment of wastewater practicable. listed species and/or destroy or adversely modify critical habitat, we appropriate management and restoration Effects of Critical Habitat Designation actions, this physical or biological provide reasonable and prudent feature can be restored. Section 7 Consultation alternatives to the project, if any are identifiable, that would avoid the Special management considerations Section 7(a)(2) of the Act requires likelihood of jeopardy and/or or protection may be required within Federal agencies, including the Service, destruction or adverse modification of Unit 1 to alleviate impacts from to ensure that any action they fund, critical habitat. We define ‘‘reasonable stressors that have led to the authorize, or carry out is not likely to and prudent alternatives’’ (at 50 CFR degradation of the habitat, including jeopardize the continued existence of 402.02) as alternative actions identified sedimentation, pollutant input, excess any endangered species or threatened during consultation that: nutrient input, development, and species or result in the destruction or (1) Can be implemented in a manner unstable stream banks. Surrounding adverse modification of designated consistent with the intended purpose of land-use practices, including critical habitat of such species. In the action, agricultural runoff, agricultural addition, section 7(a)(4) of the Act (2) Can be implemented consistent ditching, and erosion have led to high requires Federal agencies to confer with with the scope of the Federal agency’s levels of sedimentation, siltation, the Service on any agency action which legal authority and jurisdiction, contamination, and nutrient-loading, as is likely to jeopardize the continued (3) Are economically and well as destabilized stream banks. existence of any species proposed to be technologically feasible, and Special management considerations listed under the Act or result in the (4) Would, in the Service Director’s related to agricultural and developed destruction or adverse modification of opinion, avoid the likelihood of areas that will benefit the habitat in this proposed critical habitat. jeopardizing the continued existence of unit include, but are not limited to, We published a final rule revising the the listed species and/or avoid the riparian buffer restoration, reduced definition of destruction or adverse likelihood of destroying or adversely surface and groundwater withdrawals, modification on August 27, 2019 (84 FR modifying critical habitat. increased open space in the watershed, 44976). Destruction or adverse Reasonable and prudent alternatives and treating wastewater to the highest modification means a direct or indirect can vary from slight project level practicable. alteration that appreciably diminishes modifications to extensive redesign or Unit 2: Etowah River the value of critical habitat as a whole relocation of the project. Costs for the conservation of a listed species. associated with implementing a Unit 2 consists of approximately 82.5 If a Federal action may affect a listed reasonable and prudent alternative are river mi (133 km) of the Etowah River species or its critical habitat, the similarly variable. beginning at its confluence with Shoal responsible Federal agency (action Regulations at 50 CFR 402.16 set forth Creek in Cherokee County, Georgia, and agency) must enter into consultation requirements for Federal agencies to continuing upstream through Forsyth with us. Examples of actions that are reinitiate formal consultation on and Dawson Counties to approximately subject to the section 7 consultation previously reviewed actions. These 0.5 miles upstream of the Jay Bridge process are actions on State, Tribal, requirements apply when the Federal Road crossing over the Etowah River in local, or private lands that require a agency has retained discretionary Lumpkin County, Georgia. Unit 2 Federal permit (such as a permit from involvement or control over the action includes river habitat up to bank full the U.S. Army Corps of Engineers under (or the agency’s discretionary height. Frecklebelly madtom occupies section 404 of the Clean Water Act (33 involvement or control is authorized by all river reaches in this unit. Unit 2 U.S.C. 1251 et seq.) or a permit from the law) and, subsequent to the previous contains all of the physical or biological Service under section 10 of the Act) or consultation, we have listed a new

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species or designated critical habitat (non-point source). These activities Exemptions that may be affected by the Federal could alter water conditions to levels Application of Section 4(a)(3) of the Act action, or the action has been modified that are beyond the tolerances of the in a manner that affects the species or Upper Coosa River DPS and result in Section 4(a)(3)(B)(i) of the Act (16 critical habitat in a way not considered direct or cumulative adverse effects to U.S.C. 1533(a)(3)(B)(i)) provides that the in the previous consultation. In such individuals and their life cycles. Secretary shall not designate as critical situations, Federal agencies sometimes (3) Actions that would significantly habitat any lands or other geographical may need to request reinitiation of increase sediment deposition within the areas owned or controlled by the consultation with us, but the regulations stream channel. Such activities could Department of Defense, or designated also specify some exceptions to the include, but are not limited to, excessive for its use, that are subject to an requirement to reinitiate consultation on sedimentation from livestock grazing, integrated natural resources specific land management plans after road construction, channel alteration, management plan (INRMP) prepared subsequently listing a new species or and other watershed and floodplain under section 101 of the Sikes Act (16 designating new critical habitat. See the disturbances. These activities could U.S.C. 670a), if the Secretary determines regulations for a description of those eliminate or reduce the habitat in writing that such plan provides a exceptions. necessary for the growth and benefit to the species for which critical reproduction of the Upper Coosa River habitat is proposed for designation. Application of the ‘‘Destruction or DPS by increasing the sediment There are no Department of Defense Adverse Modification’’ Standard deposition to levels that would (DoD) lands within the proposed critical The key factor related to the adversely affect the DPS’s ability to habitat designation. destruction or adverse modification complete its life cycle. Consideration of Impacts Under Section determination is whether (4) Actions that would significantly 4(b)(2) of the Act implementation of the proposed Federal increase eutrophication (the addition of action directly or indirectly alters the excessive nutrients that are typically Section 4(b)(2) of the Act states that designated critical habitat in a way that limited in aquatic environments, such the Secretary shall designate and make appreciably diminishes the value of the as nitrogen and phosphorus that cause revisions to critical habitat on the basis critical habitat as a whole for the phytoplankton to proliferate). Such of the best available scientific data after conservation of the listed species. As activities could include, but are not taking into consideration the economic discussed above, the role of critical limited to, release of excessive nutrients impact, national security impact, and habitat is to support physical or into the surface water or connected any other relevant impact of specifying biological features essential to the groundwater at a point source or by any particular area as critical habitat. conservation of a listed species and dispersed release (non-point source). The Secretary may exclude an area from provide for the conservation of the These activities could result in critical habitat if he determines that the species. excessive nutrients and algae filling benefits of such exclusion outweigh the Section 4(b)(8) of the Act requires us streams and reducing habitat, degrading benefits of specifying such area as part to briefly evaluate and describe, in any water quality from excessive nutrients of the critical habitat, unless he proposed or final regulation that and algae decay, and decreasing oxygen determines, based on the best scientific designates critical habitat, activities levels below the tolerances of the DPS. data available, that the failure to involving a Federal action that may (5) Actions that would significantly designate such area as critical habitat violate section 7(a)(2) of the Act by alter channel morphology or geometry, will result in the extinction of the destroying or adversely modifying such or decrease connectivity. Such activities species. In making the determination to habitat, or that may be affected by such could include, but are not limited to, exclude a particular area, the statute on designation. channelization, impoundment, road and its face, as well as the legislative history, Activities that the Service may, bridge construction, mining, dredging, are clear that the Secretary has broad during a consultation under section and destruction of riparian vegetation. discretion regarding which factor(s) to 7(a)(2) of the Act, find are likely to These activities may lead to changes in use and how much weight to give to any destroy or adversely modify critical water flows and levels that would factor. habitat include, but are not limited to: degrade or eliminate the Upper Coosa The first sentence in section 4(b)(2) of (1) Actions that would alter the River DPS and its habitats. These the Act requires that we take into minimum flow or existing flow regime. actions could also lead to increased consideration the economic, national Such activities could include, but are sedimentation and degradation in water security, or other relevant impacts of not limited to, impoundment, quality to levels beyond the tolerances designating any particular area as channelization, water diversion, water of the DPS. critical habitat. We describe below the withdrawal, hydropower generation, (6) Actions that result in the process that we undertook for taking and flood control. These activities could introduction, spread, or augmentation of into consideration each category of eliminate or reduce the habitat nonnative aquatic species in occupied impacts and our analyses of the relevant necessary for the growth and stream segments, or in stream segments impacts. reproduction of the Upper Coosa River that are hydrologically connected to DPS by altering flows to levels that occupied stream segments, or Consideration of Economic Impacts would adversely affect the Upper Coosa introduction of other species that Section 4(b)(2) of the Act and its River DPS’s ability to complete its life compete with or prey on the Upper implementing regulations require that cycle. Coosa River DPS. Possible actions could we consider the economic impact that (2) Actions that would significantly include, but are not limited to, stocking may result from a designation of critical alter water chemistry or quality. Such of nonnative fishes and crayfishes, or habitat. To assess the probable activities could include, but are not other related actions. These activities economic impacts of a designation, we limited to, release of chemicals or could introduce parasites or disease; must first evaluate specific land uses or biological pollutants into the surface result in direct predation or direct activities and projects that may occur in water or connected groundwater at a competition; or affect the growth, the area of the critical habitat. We then point source or by dispersed release reproduction, and survival of the DPS. must evaluate the impacts that a specific

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critical habitat designation may have on habitat area as a result of the Federal existence of the DPS under section 7 restricting or modifying specific land listing status of the Upper Coosa River consultation procedures. If we finalize uses or activities for the benefit of the DPS. Ultimately, the screening analysis this proposed critical habitat species and its habitat within the areas allows us to focus on evaluating the designation, consultations to avoid the proposed. We then identify which specific areas or sectors that may incur destruction or adverse modification of conservation efforts may be the result of probable incremental economic impacts critical habitat would be incorporated the species being listed under the Act as a result of the designation. This into the existing consultation process. versus those attributed solely to the screening analysis, combined with the In our IEM, we attempted to clarify designation of critical habitat for this information contained in our IEM, the distinction between the effects that particular species. The probable comprises our draft economic analysis will result from the species being listed economic impact of a proposed critical (DEA) of the proposed critical habitat and those attributable to the critical habitat designation is analyzed by designation for the Upper Coosa River habitat designation (i.e., difference comparing scenarios both ‘‘with critical DPS of the frecklebelly madtom; our between the jeopardy and adverse habitat’’ and ‘‘without critical habitat.’’ DEA is summarized in the narrative modification standards) for the Upper The ‘‘without critical habitat’’ below. Coosa River DPS’s critical habitat. scenario represents the baseline for the Executive Orders (E.O.s) 12866 and Because the designation of critical analysis, which includes the existing 13563 direct Federal agencies to assess habitat for the Upper Coosa River DPS regulatory and socio-economic burden the costs and benefits of available was proposed concurrently with the listing, it has been our experience that imposed on landowners, managers, or regulatory alternatives in quantitative other resource users potentially affected it is more difficult to discern which (to the extent feasible) and qualitative by the designation of critical habitat conservation efforts are attributable to terms. Consistent with the E.O. (e.g., under the Federal listing as well as the species being listed and those which regulatory analysis requirements, our other Federal, State, and local will result solely from the designation of effects analysis under the Act may take regulations). The baseline, therefore, critical habitat. However, the following into consideration impacts to both represents the costs of all efforts specific circumstances in this case help directly and indirectly affected entities, attributable to the listing of the species to inform our evaluation: (1) The where practicable and reasonable. If under the Act (i.e., conservation of the essential physical or biological features sufficient data are available, we assess species and its habitat incurred identified for critical habitat are the to the extent practicable the probable regardless of whether critical habitat is same features essential for the life designated). The ‘‘with critical habitat’’ impacts to both directly and indirectly requisites of the species, and (2) any scenario describes the incremental affected entities. As part of our actions that would result in sufficient impacts associated specifically with the screening analysis, we considered the harm or harassment to constitute designation of critical habitat for the types of economic activities that are jeopardy to the Upper Coosa River DPS species. The incremental conservation likely to occur within the areas likely would also likely adversely affect the efforts and associated impacts would affected by the critical habitat essential physical or biological features not be expected without the designation designation. In our evaluation of the of critical habitat. The IEM outlines our of critical habitat for the species. In probable incremental economic impacts rationale concerning this limited other words, the incremental costs are that may result from the proposed distinction between baseline those attributable solely to the designation of critical habitat for the conservation efforts and incremental designation of critical habitat, above and Upper Coosa River DPS, first we impacts of the designation of critical beyond the baseline costs. These are the identified, in the IEM dated June 23, habitat for this species. This evaluation costs we use when evaluating the 2020, probable incremental economic of the incremental effects has been used benefits of inclusion and exclusion of impacts associated with the following as the basis to evaluate the probable particular areas from the final categories of activities: (1) Federal lands incremental economic impacts of this designation of critical habitat should we management (U.S. Forest Service and proposed designation of critical habitat. choose to conduct a discretionary U.S. Army Corps of Engineers); (2) The proposed critical habitat 4(b)(2) exclusion analysis. agriculture; (3) development; (4) designation for the Upper Coosa River For this designation, we developed an roadway and bridgeway construction; DPS totals approximately 134 river incremental effects memorandum (IEM) (5) dredging, dams, and diversions; (6) miles (mi) (216 river kilometers (km)) in considering the probable incremental flood control and hydropower; (7) two occupied units in Georgia and economic impacts that may result from wastewater and chemical discharge; (8) Tennessee. In these areas, any actions the proposed designation. The pesticide use; (9) recreation; (10) that may affect the species would also information contained in our IEM was conservation and restoration; and (11) affect proposed critical habitat because then used to develop a screening transportation and utilities. We all designated habitat is occupied. Thus, analysis of the probable effects of the considered each industry or category it is unlikely that any additional designation (IEc 2020, entire). The individually. Additionally, we conservation efforts would be purpose of the screening analysis is to considered whether these activities have recommended to address the adverse filter out particular geographic areas of any Federal involvement. Critical modification standard over and above critical habitat that are already subject habitat designation generally will not those recommended as necessary to to such protections and are, therefore, affect activities that do not have any avoid jeopardizing the continued unlikely to incur incremental economic Federal involvement; under the Act, existence of the Upper Coosa River DPS. impacts. In particular, the screening designation of critical habitat only Therefore, the only additional costs that analysis considers baseline costs (i.e., affects activities conducted, funded, are expected in all of the proposed absent critical habitat designation) and permitted, or authorized by Federal critical habitat designation are includes probable economic impacts agencies. In areas where individuals administrative costs. These costs are where land and water use may be from the Upper Coosa River DPS are due to additional consultation analysis subject to conservation plans, land found, Federal agencies already are requiring time and resources by both the management plans, best management required to ensure that their actions are Federal action agency and the Service. practices, or regulations that protect the not likely to jeopardize the continued However, these costs are not expected to

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reach the threshold of ‘‘significant’’ in the area such as HCPs, safe harbor Regulatory Planning and Review under E.O. 12866. We anticipate a agreements (SHAs), or candidate (Executive Orders 12866 and 13563) maximum of 10 section 7 consultations conservation agreements with Executive Order 12866 provides that annually at a total incremental cost of assurances (CCAAs), or whether there the Office of Information and Regulatory less than $11,000 per year. are non-permitted conservation Affairs (OIRA) in the Office of We are soliciting data and comments agreements and partnerships that would Management and Budget will review all from the public on the DEA discussed be encouraged by designation of, or significant rules. OIRA has determined above, as well as all aspects of this exclusion from, critical habitat. In that this rule is not significant. proposed rule and our required addition, we look at the existence of Executive Order 13563 reaffirms the determinations. During the development Tribal conservation plans and principles of E.O. 12866 while calling of a final designation, we will consider partnerships and consider the for improvements in the nation’s the information presented in the DEA government-to-government relationship regulatory system to promote and any additional information on of the United States with Tribal entities. predictability, to reduce uncertainty, economic impacts received during the We also consider any social impacts that and to use the best, most innovative, public comment period to determine might occur because of the designation. whether any specific areas should be and least burdensome tools for In preparing this proposal, we have achieving regulatory ends. The excluded from the final critical habitat determined that there are currently no designation under authority of section executive order directs agencies to draft or final HCPs or other management consider regulatory approaches that 4(b)(2) and our implementing plans for the Upper Coosa River DPS, regulations at 50 CFR 424.19. In reduce burdens and maintain flexibility and the proposed designation does not and freedom of choice for the public particular, we may exclude an area from include any Tribal lands or trust critical habitat if we determine that the where these approaches are relevant, resources. feasible, and consistent with regulatory benefits of excluding the area outweigh As discussed above, we anticipate no the benefits of including the area, objectives. E.O. 13563 emphasizes impacts on national security, economic, further that regulations must be based provided the exclusion will not result in or any other relevant impacts as a result the extinction of this species. on the best available science and that of this designation. Accordingly, at this the rulemaking process must allow for The final decision on whether to time, we do not propose to exclude any exclude any areas will be based on the public participation and an open particular areas from the critical habitat exchange of ideas. We have developed best scientific data available at the time designation. However, during the of the final designation, including this proposed rule in a manner development of a final designation, we consistent with these requirements. information we obtain during the public will consider any additional comment period and information about information we receive through the Regulatory Flexibility Act (5 U.S.C. 601 the economic impact of designation. public comment period regarding other et seq.) Accordingly, we have prepared a draft relevant impacts to determine whether Under the Regulatory Flexibility Act economic analysis concerning the any specific areas should be excluded proposed critical habitat designation, (RFA; 5 U.S.C. 601 et seq.), as amended from the final critical habitat by the Small Business Regulatory which is available for review and designation under authority of section comment (see ADDRESSES). Enforcement Fairness Act of 1996 4(b)(2) and our implementing (SBREFA; 5 U.S.C. 801 et seq.), Consideration of National Security regulations at 50 CFR 424.19. whenever an agency is required to Impacts Required Determinations publish a notice of rulemaking for any In preparing this proposal, we have proposed or final rule, it must prepare Clarity of the Rule determined that the lands within the and make available for public comment proposed designation of critical habitat We are required by Executive Orders a regulatory flexibility analysis that for the Upper Coosa River DPS are not 12866 and 12988 and by the describes the effects of the rule on small owned, managed, or used by the DoD or Presidential Memorandum of June 1, entities (i.e., small businesses, small DHS where a national security or 1998, to write all rules in plain organizations, and small government homeland security impact might exist, language. This means that each rule we jurisdictions). However, no regulatory and, therefore, we anticipate no impact publish must: flexibility analysis is required if the on national security or homeland (1) Be logically organized; head of the agency certifies the rule will security. However, during the (2) Use the active voice to address not have a significant economic impact development of a final designation, we readers directly; on a substantial number of small will consider any additional (3) Use clear language rather than entities. The SBREFA amended the RFA information received through the public jargon; to require Federal agencies to provide a comment period on the impacts of the (4) Be divided into short sections and certification statement of the factual proposed designation on national sentences; and basis for certifying that the rule will not security or homeland security to (5) Use lists and tables wherever have a significant economic impact on determine whether any specific areas possible. a substantial number of small entities. should be excluded from the final If you feel that we have not met these According to the Small Business critical habitat designation under requirements, send us comments by one Administration, small entities include authority of section 4(b)(2) and our of the methods listed in ADDRESSES. To small organizations such as implementing regulations at 50 CFR better help us revise the rule, your independent nonprofit organizations; 424.19. comments should be as specific as small governmental jurisdictions, possible. For example, you should tell including school boards and city and Consideration of Other Relevant us the numbers of the sections or town governments that serve fewer than Impacts paragraphs that are unclearly written, 50,000 residents; and small businesses We consider a number of factors, which sections or sentences are too (13 CFR 121.201). Small businesses including whether there are permitted long, the sections where you feel lists or include manufacturing and mining conservation plans covering the species tables would be useful, etc. concerns with fewer than 500

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employees, wholesale trade entities number of small business entities. otherwise decrease, the Federal with fewer than 100 employees, retail Therefore, an initial regulatory Government’s responsibility to provide and service businesses with less than $5 flexibility analysis is not required. funding,’’ and the State, local, or Tribal million in annual sales, general and governments ‘‘lack authority’’ to adjust Executive Order 13771 heavy construction businesses with less accordingly. At the time of enactment, than $27.5 million in annual business, This proposed rule is not a regulatory these entitlement programs were: special trade contractors doing less than action subject to Executive Order (E.O.) Medicaid; Aid to Families with $11.5 million in annual business, and 13771 (‘‘Reducing Regulation and Dependent Children work programs; agricultural businesses with annual Controlling Regulatory Costs’’) (82 FR Child Nutrition; Food Stamps; Social sales less than $750,000. To determine 9339, February 3, 2017) regulatory Services Block Grants; Vocational whether potential economic impacts to action because this rule is not Rehabilitation State Grants; Foster Care, these small entities are significant, we significant under E.O. 12866. Adoption Assistance, and Independent considered the types of activities that Energy Supply, Distribution, or Use— Living; Family Support Welfare might trigger regulatory impacts under Executive Order 13211 Services; and Child Support this designation as well as types of Enforcement. ‘‘Federal private sector project modifications that may result. In Executive Order 13211 (Actions mandate’’ includes a regulation that general, the term ‘‘significant economic Concerning Regulations That ‘‘would impose an enforceable duty impact’’ is meant to apply to a typical Significantly Affect Energy Supply, upon the private sector, except (i) a small business firm’s business Distribution, or Use) requires agencies condition of Federal assistance or (ii) a operations. to prepare Statements of Energy Effects duty arising from participation in a Under the RFA, as amended, and as when undertaking certain actions. The voluntary Federal program.’’ understood in the light of recent court Office of Management and Budget The designation of critical habitat decisions, Federal agencies are required (OMB) provides guidance for does not impose a legally binding duty to evaluate the potential incremental implementing this Executive Order, on non-Federal Government entities or impacts of rulemaking only on those outlining nine outcomes (criteria) that private parties. Under the Act, the only entities directly regulated by the may constitute ‘‘a significant adverse regulatory effect is that Federal agencies rulemaking itself and, therefore, are not effect’’ when compared with the must ensure that their actions do not required to evaluate the potential regulatory action under consideration. destroy or adversely modify critical impacts to indirectly regulated entities. The economic analysis finds that none habitat under section 7. While non- The regulatory mechanism through of these criteria are relevant to this Federal entities that receive Federal which critical habitat protections are analysis, and therefore, we did not find funding, assistance, or permits, or that realized is section 7 of the Act, which that this proposed critical habitat otherwise require approval or requires Federal agencies, in designation would significantly affect authorization from a Federal agency for consultation with the Service, to ensure energy supplies, distribution, or use. an action, may be indirectly impacted that any action authorized, funded, or Therefore, this action is not a significant by the designation of critical habitat, the carried out by the agency is not likely energy action, and no Statement of legally binding duty to avoid to destroy or adversely modify critical Energy Effects is required. destruction or adverse modification of habitat. Therefore, under section 7, only Unfunded Mandates Reform Act (2 critical habitat rests squarely on the Federal action agencies are directly U.S.C. 1501 et seq.) Federal agency. Furthermore, to the subject to the specific regulatory extent that non-Federal entities are requirement (avoiding destruction and In accordance with the Unfunded indirectly impacted because they adverse modification) imposed by Mandates Reform Act (2 U.S.C. 1501 et receive Federal assistance or participate critical habitat designation. seq.), we make the following finding: in a voluntary Federal aid program, the Consequently, it is our position that (1) This proposed rule would not Unfunded Mandates Reform Act would only Federal action agencies would be produce a Federal mandate. In general, not apply, nor would critical habitat directly regulated if we adopt the a Federal mandate is a provision in shift the costs of the large entitlement proposed critical habitat designation. legislation, statute, or regulation that programs listed above onto State There is no requirement under the RFA would impose an enforceable duty upon governments. to evaluate the potential impacts to State, local, or Tribal governments, or (2) We do not believe that this rule entities not directly regulated. the private sector, and includes both would significantly or uniquely affect Moreover, Federal agencies are not ‘‘Federal intergovernmental mandates’’ small governments, because it will not small entities. Therefore, because no and ‘‘Federal private sector mandates.’’ produce a Federal mandate of $100 small entities would be directly These terms are defined in 2 U.S.C. million or greater in any year, that is, it regulated by this rulemaking, the 658(5)–(7). ‘‘Federal intergovernmental is not a ‘‘significant regulatory action’’ Service certifies that, if made final as mandate’’ includes a regulation that under the Unfunded Mandates Reform proposed, the proposed critical habitat ‘‘would impose an enforceable duty Act. The designation of critical habitat designation will not have a significant upon State, local, or tribal governments’’ imposes no obligations on State or local economic impact on a substantial with two exceptions. It excludes ‘‘a governments and, as such, a Small number of small entities. condition of Federal assistance.’’ It also Government Agency Plan is not In summary, we have considered excludes ‘‘a duty arising from required. whether the proposed designation participation in a voluntary Federal would result in a significant economic program,’’ unless the regulation ‘‘relates Takings—Executive Order 12630 impact on a substantial number of small to a then-existing Federal program In accordance with E.O. 12630 entities. For the above reasons and under which $500,000,000 or more is (Government Actions and Interference based on currently available provided annually to State, local, and with Constitutionally Protected Private information, we certify that, if made tribal governments under entitlement Property Rights), we have analyzed the final, the proposed critical habitat authority,’’ if the provision would potential takings implications of designation will not have a significant ‘‘increase the stringency of conditions of designating critical habitat for Upper economic impact on a substantial assistance’’ or ‘‘place caps upon, or Coosa River DPS in a takings

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implications assessment. The Act does wait for case-by-case section 7 It is also our position that, outside the not authorize the Service to regulate consultations to occur. jurisdiction of the U.S. Court of Appeals private actions on private lands or Where State and local governments for the Tenth Circuit, we do not need to confiscate private property as a result of require approval or authorization from a prepare environmental analyses critical habitat designation. Designation Federal agency for actions that may pursuant to the NEPA in connection of critical habitat does not affect land affect critical habitat, consultation with designating critical habitat under ownership, or establish any closures, or under section 7(a)(2) of the Act would the Act. We published a notice outlining restrictions on use of or access to the be required. While non-Federal entities our reasons for this determination in the designated areas. Furthermore, the that receive Federal funding, assistance, Federal Register on October 25, 1983 designation of critical habitat does not or permits, or that otherwise require (48 FR 49244). This position was upheld affect landowner actions that do not approval or authorization from a Federal by the U.S. Court of Appeals for the require Federal funding or permits, nor agency for an action, may be indirectly Ninth Circuit (Douglas County v. does it preclude development of habitat impacted by the designation of critical Babbitt, 48 F.3d 1495 (9th Cir. 1995), conservation programs or issuance of habitat, the legally binding duty to cert. denied 516 U.S. 1042 (1996)). incidental take permits to permit actions avoid destruction or adverse that do require Federal funding or modification of critical habitat rests Government-to-Government permits to go forward. However, Federal squarely on the Federal agency. Relationship With Tribes In accordance with the President’s agencies are prohibited from carrying Civil Justice Reform—Executive Order out, funding, or authorizing actions that memorandum of April 29, 1994 12988 would destroy or adversely modify (Government-to-Government Relations critical habitat. A takings implications In accordance with Executive Order with Native American Tribal assessment has been completed for the 12988 (Civil Justice Reform), the Office Governments; 59 FR 22951), Executive proposed designation of critical habitat of the Solicitor has determined that the Order 13175 (Consultation and for Upper Coosa River DPS, and it rule would not unduly burden the Coordination with Indian Tribal concludes that, if adopted, this judicial system and that it meets the Governments), and the Department of designation of critical habitat does not requirements of sections 3(a) and 3(b)(2) the Interior’s manual at 512 DM 2, we pose significant takings implications for of the Order. We have proposed readily acknowledge our responsibility lands within or affected by the designating critical habitat in to communicate meaningfully with designation. accordance with the provisions of the recognized Federal Tribes on a Act. To assist the public in Federalism—Executive Order 13132 government-to-government basis. In understanding the habitat needs of the accordance with Secretarial Order 3206 In accordance with E.O. 13132 species, this proposed rule identifies the of June 5, 1997 (American Indian Tribal (Federalism), this proposed rule does elements of physical or biological Rights, Federal-Tribal Trust not have significant Federalism effects. features essential to the conservation of Responsibilities, and the Endangered A federalism summary impact statement the species. The proposed areas of Species Act), we readily acknowledge is not required. In keeping with designated critical habitat are presented our responsibilities to work directly Department of the Interior and on maps, and the proposed rule with Tribes in developing programs for Department of Commerce policy, we provides several options for the healthy ecosystems, to acknowledge that requested information from, and interested public to obtain more Tribal lands are not subject to the same coordinated development of this detailed location information, if desired. controls as Federal public lands, to proposed critical habitat designation remain sensitive to Indian culture, and with, appropriate State resource Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.) to make information available to Tribes. agencies. From a federalism perspective, We have identified no Tribal interests the designation of critical habitat This rule does not contain that would be affected by this proposed directly affects only the responsibilities information collection requirements, listing. We have also determined that no of Federal agencies. The Act imposes no and a submission to the Office of Tribal lands fall within the boundaries other duties with respect to critical Management and Budget (OMB) under of the proposed critical habitat for the habitat, either for States and local the Paperwork Reduction Act of 1995 Upper Coosa River DPS, so no Tribal governments, or for anyone else. As a (44 U.S.C. 3501 et seq.) is not required. lands would be affected by the proposed result, the proposed rule does not have We may not conduct or sponsor, and designation. substantial direct effects either on the you are not required to respond to, a States, or on the relationship between collection of information unless it References Cited the national government and the States, displays a currently valid OMB control A complete list of references cited in or on the distribution of powers and number. this rulemaking is available on the responsibilities among the various internet at http://www.regulations.gov levels of government. The proposed National Environmental Policy Act (42 U.S.C. 4321 et seq.) and upon request from the Alabama designation may have some benefit to Ecological Services Field Office (see FOR these governments because the areas We have determined that FURTHER INFORMATION CONTACT). that contain the features essential to the environmental assessments and conservation of the species are more environmental impact statements, as Authors clearly defined, and the physical or defined under the authority of the The primary authors of this proposed biological features of the habitat National Environmental Policy Act rule are the staff members of the Fish necessary for the conservation of the (NEPA), need not be prepared in and Wildlife Service’s Species species are specifically identified. This connection with listing a species as an Assessment Team and the Alabama information does not alter where and endangered or threatened species under Ecological Services Field Office. what federally sponsored activities may the Act. We published a notice outlining occur. However, it may assist State and our reasons for this determination in the List of Subjects in 50 CFR Part 17 local governments in long-range Federal Register on October 25, 1983 Endangered and threatened species, planning because they no longer have to (48 FR 49244). Exports, Imports, Reporting and

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recordkeeping requirements, PART 17—ENDANGERED AND Coosa River DPS]’’ to the List of Transportation. THREATENED WILDLIFE AND PLANTS Endangered and Threatened Wildlife in alphabetical order under FISHES to read Proposed Regulation Promulgation ■ 1. The authority citation for part 17 as set forth below: continues to read as follows: Accordingly, we propose to amend Authority: 16 U.S.C. 1361–1407; 1531– § 17.11 Endangered and threatened part 17, subchapter B of chapter I, title wildlife. 50 of the Code of Federal Regulations, 1544; and 4201–4245, unless otherwise noted. as set forth below: * * * * * ■ 2. Amend § 17.11(h) by adding an (h) * * * entry for ‘‘Madtom, frecklebelly [Upper

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

******* FISHES

******* Madtom, frecklebelly Noturus munitus ...... Upper Coosa River T [Federal Register citation when published as a [Upper Coosa River Basin (GA, TN). final rule]; DPS]. 50 CFR 17.44(ee); 4d 50 CFR 17.95(e).CH

*******

■ 3. Amend § 17.44 by reserving (A) Channel restoration projects that Wildlife Service Partners for Fish and paragraphs (cc) and (dd), and by adding create natural, physically stable, Wildlife Program or the Environmental a paragraph (ee) to read as set forth ecologically functioning streams. These Protection Agency’s 319 Grant Program, below: projects can be accomplished using a that are implemented with a primary variety of methods, but the desired objective of improving environmental § 17.44 Special rules—fishes. outcome is a natural channel with conditions to support the native, aquatic * * * * * geomorphically stable stream channels biodiversity of flowing water habitats. (cc) [Reserved] that maintain the appropriate lateral (v) Possess and engage in other acts (dd) [Reserved] dimensions, longitudinal profiles, and with unlawfully taken wildlife, as set (ee) Upper Coosa River DPS of the sinuosity patterns over time without an forth at § 17.21(d)(2) for endangered frecklebelly madtom (Noturus munitus). aggrading or degrading bed elevation (1) Prohibitions. The following wildlife. and include stable riffle-run-pool * * * * * prohibitions that apply to endangered complexes that consist of silt-free ■ 4. Amend § 17.95(e) by adding an wildlife also apply to the Upper Coosa gravel, coarse sand, cobble, boulders, entry for ‘‘Frecklebelly Madtom [Upper River DPS. Except as provided under woody structure, and river weed Coosa River DPS] (Noturus munitus)’’, paragraph (ee)(2) of this section and (Podostemum spp.). §§ 17.4 and 17.5, it is unlawful for any in the same alphabetical order that it (B) Streambank stabilization projects person subject to the jurisdiction of the appears in the table at § 17.11(h), to that use bioengineering methods to United States to commit, to attempt to read as set forth below: replace pre-existing, bare, eroding commit, to solicit another to commit, or stream banks with natively vegetated, § 17.95 Critical habitat—fish and wildlife. cause to be committed, any of the stable stream banks, thereby reducing following acts in regard to this DPS: * * * * * bank erosion and instream (i) Import or export, as set forth at (e) Fishes. sedimentation and improving habitat § 17.21(b) for endangered wildlife. * * * * * (ii) Take, as set forth at § 17.21(c)(1) conditions for the DPS. Stream banks for endangered wildlife. may be stabilized using live stakes (live, Frecklebelly Madtom [Upper Coosa (iii) Possession and other acts with vegetative cuttings inserted or tamped River DPS] (Noturus munitus) unlawfully taken specimens, as set forth into the ground in a manner that allows the stake to take root and grow), live (1) Critical habitat units are depicted at § 17.21(d)(1) for endangered wildlife. for Bradley and Polk Counties, (iv) Interstate or foreign commerce in fascines (live branch cuttings, usually willows, bound together into long, cigar- Tennessee, and Cherokee, Dawson, the course of a commercial activity, as Forsyth, Lumpkin, Murray, and set forth at § 17.21(e) for endangered shaped bundles), or brush layering (cuttings or branches of easily rooted Whitfield Counties, Georgia, on the wildlife. maps in this entry. (v) Sale or offer for sale, as set forth tree species layered between successive (2) Within these areas, the physical or at § 17.21(f) for endangered wildlife. lifts of soil fill). Stream banks must not biological features essential to the (2) Exceptions from prohibitions. In be stabilized solely through the use of conservation of the Upper Coosa River regard to this DPS, you may: quarried rock (rip-rap) or the use of rock (i) Conduct activities as authorized by baskets or gabion structures. distinct population segment (DPS) a permit under § 17.32. (C) Projects carried out in the DPS’s consist of the following components: (ii) Take, as set forth at § 17.21(c)(2) range under the Working Lands for (i) Geomorphically stable, medium to through (c)(4) for endangered wildlife. Wildlife program of the Natural large streams with: (iii) Take as set forth at § 17.31(b). Resources Conservation Service, U.S. (A) Stable stream channels that (iv) Take incidental to an otherwise Department of Agriculture, or similar maintain lateral dimensions, lawful activity caused by: projects conducted by the U.S. Fish and longitudinal profiles, and sinuosity

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patterns over time without an aggrading (iv) Appropriate water and sediment Coordinate System North American or degrading bed elevation; and quality (including, but not limited to, 1983 coordinates) using mapping (B) Banks with intact riparian cover to conductivity; hardness; turbidity; software. The selected river reaches maintain stream morphology and reduce temperature; pH; ammonia; heavy were informed by species occurrence erosion and sediment inputs. metals; pesticides; animal waste data. All layers use Universal (ii) Connected instream habitats that: products; and nitrogen, phosphorus, Transverse Mercator (UTM) Zone 16N and potassium fertilizers) necessary to coordinates. We also used the mapping (A) Include stable riffle-run-pool sustain natural physiological processes software to calculate the length of the complexes; for normal behavior, growth, and units. The maps in this entry, as (B) Consist of silt-free gravel, coarse viability of all life stages. modified by any accompanying sand, cobble, boulders, woody structure, (v) Diversity and availability of regulatory text, establish the boundaries and river weed (Podostemum spp.); and aquatic macroinvertebrate prey items, of the critical habitat designation. The (C) Have abundant cobble, boulders, which include larval midges, mayflies, coordinates or plot points on which woody structure, or other suitable cover caddisflies, dragonflies, and beetles. each map is based are available to the used for nesting. (3) Critical habitat does not include public at the Service’s internet site at (iii) Adequate flows, or a hydrologic manmade structures (such as buildings, https://www.fws.gov/southeast/, at flow regime (which includes the aqueducts, runways, roads, and other http://www.regulations.gov at Docket severity, frequency, duration, and paved areas) and the land on which they No. FWS–R4–ES–2020–0058, and at the seasonality of discharge over time), are located existing within the legal field office responsible for this necessary to maintain instream habitats boundaries on the effective date of the designation. You may obtain field office and to maintain connectivity of streams rule. location information by contacting one with the floodplain, allowing the (4) Critical habitat map units. Data of the Service regional offices, the exchange of nutrients and sediment for layers defining map units were selected addresses of which are listed at 50 CFR maintenance of the fish’s habitat, food from the U.S. Geological Survey 2.2. availability, and ample oxygenated flow National Hydrological Dataset—High (5) Note: Index map follows: for spawning and nesting habitat. Resolution (1:24,000 scale; Geographic BILLING CODE 4333–15–P

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(6) Unit 1: Conasauga River; Bradley kilometers) of the Conasauga River Branch in Polk County, Tennessee. Unit and Polk Counties, Tennessee, and beginning at the mouth of Coahulla 1 includes river habitat up to bank full Murray and Whitfield Counties, Creek in Murray and Whitfield height. Georgia. Counties, Georgia, and continuing (ii) Map of Unit 1 follows: (i) General description: Unit 1 upstream through Bradley County, consists of 51.5 river miles (83 Tennessee, to the mouth of Graham

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(7) Unit 2: Etowah River, Cherokee, beginning at its confluence with Shoal Lumpkin County, Georgia. Unit 2 Dawson, Forsyth, and Lumpkin Creek in Cherokee County, Georgia, and includes river habitat up to bank full Counties, Georgia. continuing upstream through Forsyth height. (i) General description: Unit 2 and Dawson Counties to approximately (ii) Map of Unit 2 follows: consists of 82.5 river miles (133 0.5 miles upstream of the Jay Bridge kilometers) of the Etowah River Road crossing over the Etowah River in

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* * * * * Aurelia Skipwith Director, U.S. Fish and Wildlife Service. [FR Doc. 2020–24208 Filed 11–18–20; 8:45 am] BILLING CODE 4333–15–C

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