67190 Federal Register / Vol. 83, No. 248 / Friday, December 28, 2018 / Proposed Rules 

DEPARTMENT OF THE INTERIOR 

Fish and Wildlife Service 

50 CFR Part 17 

[Docket No. FWS–R4–ES–2018–0073; 

4500090023] 

RIN 1018–BD40 

Endangered and Threatened Wildlife 

and Plants; Designation of Critical 

Habitat for Trispot Darter 

AGENCY: Fish and Wildlife Service, 

Interior. 

ACTION: Proposed rule. 

SUMMARY: We, the U.S. Fish and 

Wildlife Service (Service), propose to 

designate critical habitat for the trispot 

darter (Etheostoma trisella) under the 

Endangered Species Act of 1973 (Act), 

as amended. In total, approximately 181 

river miles (291 kilometers) and 16,735 

acres (6,772 hectares) in the Coosa River 

system in Alabama, Georgia, and 

Tennessee fall within the boundaries of 

the proposed critical habitat 

designation. If we finalize this rule as 

proposed, it would extend the Act’s 

protections to this species’ critical 

habitat. We also announce the 

availability of a draft economic analysis 

(DEA) of the proposed designation. 

Elsewhere in today’s Federal Register, 

we published a final rule listing the 

trispot darter as a threatened species 

under the Act. 

DATES: We will accept comments on this 

proposed rule or the associated DEA 

that are received or postmarked on or 

before February 26, 2019. Comments 

submitted electronically using the 

Federal eRulemaking Portal (see 

ADDRESSES, below) must be received by 

11:59 p.m. Eastern Time on the closing 

date. We must receive requests for 

public hearings, in writing, at the 

address shown in FOR FURTHER

INFORMATION CONTACT by February 11, 

2019. 

ADDRESSES: Comment submission: You 

may submit comments on this proposed 

rule or the associated DEA by one of the 

following methods: 

(1) Electronically: Go to the Federal 

eRulemaking Portal: http://

www.regulations.gov. In the Search box, 

enter FWS–R4–ES–2018–0073, which is 

the docket number for this rulemaking. 

Then, click on the Search button. On the 

resulting page, in the Search panel on 

the left side of the screen, under the 

Document Type heading, click on the 

Proposed Rule box to locate this 

document. You may submit a comment 

by clicking on ‘‘Comment Now!’’ 

(2) By hard copy: Submit by U.S. mail 

or hand-delivery to: Public Comments 

Processing, Attn: FWS–R4–ES–2018– 

0073, U.S. Fish and Wildlife Service, 

MS: BPHC, 5275 Leesburg Pike, Falls 

Church, VA 22041–3803. 

We request that you send comments 

only by the methods described above. 

We will post all comments on http://

www.regulations.gov. This generally 

means that we will post any personal 

information you provide us (see 

Information Requested, below, for more 

information). 

Document availability: The DEA is 

available at https://www.fws.gov/ 

daphne/, at http://www.regulations.gov 

under Docket No. FWS–R4–ES–2018– 

0073, and at the Alabama Ecological 

Services Field Office (see FOR FURTHER

INFORMATION CONTACT). 

The coordinates or plot points or both 

from which the maps are generated are 

included in the administrative record 

for this critical habitat designation and 

are available at https://www.fws.gov/ 

daphne/, at http://www.regulations.gov 

at Docket No. FWS–R4–ES–2018–0073, 

and at the Alabama Ecological Services 

Field Office (see FOR FURTHER

INFORMATION CONTACT). Any additional 

tools or supporting information that we 

may develop for this critical habitat 

designation will also be available at the 

Fish and Wildlife Service website and 

Field Office set out above, and may also 

be included in the preamble and/or at 

http://www.regulations.gov. 

FOR FURTHER INFORMATION CONTACT: Bill 

Pearson, Field Supervisor, U.S. Fish and 

Wildlife Service, Alabama Ecological 

Services Field Office, 1208 Main Street, 

Daphne, AL 36526; telephone 251–441– 

5181. Persons who use a 

telecommunications device for the deaf 

(TDD) may call the Federal Relay 

Service at 800–877–8339. 

SUPPLEMENTARY INFORMATION: 

Executive Summary 

Why we need to publish a rule. Under 

the Endangered Species Act, if we 

determine that any species is 

endangered or threatened, we must 

designate critical habitat, to the 

maximum extent prudent and 

determinable concurrently with listing. 

Designations and revisions of critical 

habitat can only be completed by 

issuing a rule. 

This rule proposes to designate 

critical habitat for the trispot darter. 

Elsewhere in today’s Federal Register, 

we published a final rule listing the 

trispot darter as a threatened species 

under the Act. 

The basis for our action. Section 

4(a)(3) of the Act requires that if we 

determine that any species is 

endangered or threatened, we must 

designate critical habitat, to the 

maximum extent prudent and 

determinable, concurrently with listing. 

Section 4(b)(2) of the Act states that the 

Secretary shall designate and make 

revisions to critical habitat on the basis 

of the best available scientific data after 

taking into consideration the economic 

impact, the impact on national security, 

and any other relevant impact of 

specifying any particular area as critical 

habitat. 

We prepared a draft economic 

analysis (DEA) of the proposed 

designation of critical habitat. We 

prepared a draft analysis of the 

economic impacts of the proposed 

critical habitat designation. In this 

proposed rule, we announce the 

availability of the DEA for public review 

and comment. 

Peer Review. In accordance with our 

joint policy on peer review published in 

the Federal Register on July 1, 1994 (59 

FR 34270) and our August 22, 2016, 

memorandum updating and clarifying 

the role of peer review of listing actions 

under the Act, we sought the expert 

opinions of appropriate specialists 

regarding the species status assessment 

report, which informed this proposed 

rule. The purpose of peer review is to 

ensure that our designation is based on 

scientifically sound data, assumptions, 

and analyses. The peer reviewers have 

expertise in fish biology, habitat, and 

stressors (factors negatively affecting the 

species) to the trispot darter. We invite 

any additional comment from the peer 

reviewers during this public comment 

period. 

Information Requested 

We intend that any final action 

resulting from this proposed rule will be 

based on the best scientific data 

available and be as accurate and as 

effective as possible. Therefore, we 

request comments or information from 

other concerned government agencies, 

the scientific community, industry, or 

any other interested party concerning 

this proposed rule. We particularly seek 

comments concerning: 

(1) The reasons why we should or 

should not designate habitat as ‘‘critical 

habitat’’ under section 4 of the Act (16 

U.S.C. 1531 et seq.), including whether 

there are threats to the species from 

human activity, the degree of which can 

be expected to increase due to the 

designation, and whether that increase 

in threat outweighs the benefit of 

designation such that the designation of 

critical habitat may not be prudent. 

(2) Specific information on: 


amozie on DSK3GDR082PROD with PROPOSALS1
Federal Register / Vol. 83, No. 248 / Friday, December 28, 2018 / Proposed Rules 67191 

(a) The amount and distribution of 

trispot darter habitat, in particular 

locations and extent of spawning habitat 

used seasonally by the species; 

(b) What areas, that were occupied at 

the time of listing and that contain the 

physical or biological features essential 

to the conservation of the species, 

should be included in the designation 

and why; 

(c) Special management 

considerations or protection that may be 

needed in critical habitat areas we are 

proposing, including managing for the 

potential effects of climate change; and 

(d) What areas not occupied at the 

time of listing are essential for the 

conservation of the species and why. 

(3) Land use designations and current 

or planned activities in the subject areas 

and their possible impacts on proposed 

critical habitat. 

(4) Information on the projected and 

reasonably likely impacts of climate 

change on the trispot darter and 

proposed critical habitat. 

(5) Any probable economic, national 

security, or other relevant impacts of 

designating any area that may be 

included in the final designation, and 

the benefits of including or excluding 

areas that may be impacted. 

(6) Information on the extent to which 

the description of probable economic 

impacts in the draft economic analysis 

(DEA) is a reasonable estimate of the 

likely economic impacts. 

(7) Whether any specific areas we are 

proposing for critical habitat 

designation should be considered for 

exclusion under section 4(b)(2) of the 

Act, and whether the benefits of 

potentially excluding any specific area 

outweigh the benefits of including that 

area under section 4(b)(2) of the Act. 

(8) The likelihood of adverse social 

reactions to the designation of critical 

habitat, as discussed in the associated 

documents of the DEA, and how the 

consequences of such reactions, if likely 

to occur, would relate to the 

conservation and regulatory benefits of 

the proposed critical habitat 

designation. 

(9) Whether we could improve or 

modify our approach to designating 

critical habitat in any way to provide for 

greater public participation and 

understanding, or to better 

accommodate public concerns and 

comments. 

You may submit your comments and 

materials concerning this proposed rule 

by one of the methods listed in 

ADDRESSES. We request that you send 

comments only by the methods 

described in ADDRESSES. 

Please include sufficient information 

with your submission (such as scientific 

journal articles or other publications) to 

allow us to verify any scientific or 

commercial information you include. 

We also invite additional comments 

from peer reviewers during the public 

comment period. 

All comments submitted 

electronically via http://

www.regulations.gov will be presented 

on the website in their entirety as 

submitted. For comments submitted via 

hard copy, we will post your entire 

comment—including your personal 

identifying information—on http://

www.regulations.gov. You may request 

at the top of your document that we 

withhold personal information such as 

your street address, phone number, or 

email address from public review; 

however, we cannot guarantee that we 

will be able to do so. 

Comments and materials we receive, 

as well as supporting documentation we 

used in preparing this proposed rule, 

will be available for public inspection 

on http://www.regulations.gov, or by 

appointment, during normal business 

hours, at the U.S. Fish and Wildlife 

Service, Alabama Ecological Services 

Field Office (see FOR FURTHER

INFORMATION CONTACT). 

Public Hearing 

Section 4(b)(5) of the Act provides for 

a public hearing on this proposal, if 

requested. Requests must be received 

within 45 days after the date of 

publication of this proposed rule in the 

Federal Register (see DATES, above). 

Such requests must be sent to the 

address shown in FOR FURTHER

INFORMATION CONTACT. We will schedule 

a public hearing on this proposal, if 

requested, and announce the date, time, 

and place of the hearing, as well as how 

to obtain reasonable accommodations, 

in the Federal Register and local 

newspapers at least 15 days before the 

hearing. 

Previous Federal Actions 

On April 20, 2010, we received a 

petition from Center for Biological 

Diversity and others to list 404 aquatic 

species in the southeastern United 

States, including the trispot darter. In 

response to the petition, we completed 

a 90-day finding on September 27, 2011 

(76 FR 59836), in which we announced 

our finding that the petition contained 

substantial information that listing may 

be warranted for the trispot darter. We 

conducted a status review for the 

species, and on October 4, 2017, we 

published a proposed rule to list the 

trispot darter as a threatened species (82 

FR 46183). Elsewhere in today’s Federal 

Register, we published a final rule 

listing the trispot darter as a threatened 

species under the Act. 

Supporting Documents 

A species status assessment (SSA) 

team prepared an SSA report for the 

trispot darter. The SSA team was 

composed of Service biologists, in 

consultation with other species experts. 

The SSA report represents a 

compilation of the best scientific and 

commercial data available concerning 

the status of the species, including the 

impacts of past, present, and future 

factors (both negative and beneficial) 

affecting the species. The SSA report 

underwent independent peer review by 

scientists with expertise in fish biology, 

habitat management, and stressors 

(factors negatively affecting the species) 

to the species. The SSA report and other 

materials relating to this proposal can be 

found on the Service’s Southeast Region 

website at https://www.fws.gov/ 

southeast/ and at http://

www.regulations.gov under Docket No. 

FWS–R4–ES–2018–0073. The draft 

economic analysis is available at https:// 

www.fws.gov/southeast/, at http://

www.regulations.gov under Docket No. 

FWS–R4–ES–2018–0073, and at the 

Alabama Ecological Services Field 

Office (see FOR FURTHER INFORMATION

CONTACT). 

Background 

Critical habitat is defined in section 3 

of the Act as: 

(1) The specific areas within the 

geographical area occupied by the 

species, at the time it is listed in 

accordance with the Act, on which are 

found those physical or biological 

features 

(a) Essential to the conservation of the 

species, and 

(b) Which may require special 

management considerations or 

protection; and 

(2) Specific areas outside the 

geographical area occupied by the 

species at the time it is listed, upon a 

determination that such areas are 

essential for the conservation of the 

species. 

Our regulations at 50 CFR 424.02 

define the geographical area occupied 

by the species as an area that may 

generally be delineated around species’ 

occurrences, as determined by the 

Secretary (i.e., range). Such areas may 

include those areas used throughout all 

or part of the species’ life cycle, even if 

not used on a regular basis (e.g., 

migratory corridors, seasonal habitats, 

and habitats used periodically, but not 

solely by vagrant individuals). 

Conservation, as defined under 

section 3 of the Act, means to use and 


amozie on DSK3GDR082PROD with PROPOSALS1
67192 Federal Register / Vol. 83, No. 248 / Friday, December 28, 2018 / Proposed Rules 

the use of all methods and procedures 

that are necessary to bring an 

endangered or threatened species to the 

point at which the measures provided 

pursuant to the Act are no longer 

necessary. Such methods and 

procedures include, but are not limited 

to, all activities associated with 

scientific resources management such as 

research, census, law enforcement, 

habitat acquisition and maintenance, 

propagation, live trapping, and 

transplantation, and, in the 

extraordinary case where population 

pressures within a given ecosystem 

cannot be otherwise relieved, may 

include regulated taking. 

Critical habitat receives protection 

under section 7 of the Act through the 

requirement that Federal agencies 

ensure, in consultation with the Service, 

that any action they authorize, fund, or 

carry out is not likely to result in the 

destruction or adverse modification of 

critical habitat. The designation of 

critical habitat does not affect land 

ownership or establish a refuge, 

wilderness, reserve, preserve, or other 

conservation area. Such designation 

does not allow the government or public 

to access private lands. Such 

designation does not require 

implementation of restoration, recovery, 

or enhancement measures by nonFederal landowners. Where a landowner 

requests Federal agency funding or 

authorization for an action that may 

affect a listed species or critical habitat, 

the consultation requirements of section 

7(a)(2) of the Act would apply, but even 

in the event of a destruction or adverse 

modification finding, the obligation of 

the Federal action agency and the 

landowner is not to restore or recover 

the species, but to implement 

reasonable and prudent alternatives to 

avoid destruction or adverse 

modification of critical habitat. 

Under the first prong of the Act’s 

definition of critical habitat, areas 

within the geographical area occupied 

by the species at the time it was listed 

are included in a critical habitat 

designation if they contain physical or 

biological features (1) which are 

essential to the conservation of the 

species and (2) which may require 

special management considerations or 

protection. For these areas, critical 

habitat designations identify, to the 

extent known using the best scientific 

and commercial data available, those 

physical or biological features that are 

essential to the conservation of the 

species (such as space, food, cover, and 

protected habitat). In identifying those 

physical or biological features within an 

area, we focus on the specific features 

that support the life-history needs of the 

species, including, but not limited to, 

water characteristics, soil type, 

geological features, prey, vegetation, 

symbiotic species, or other features. A 

feature may be a single habitat 

characteristic, or a more complex 

combination of habitat characteristics. 

Features may include habitat 

characteristics that support ephemeral 

or dynamic habitat conditions. Features 

may also be expressed in terms relating 

to principles of conservation biology, 

such as patch size, distribution 

distances, and connectivity. 

Under the second prong of the Act’s 

definition of critical habitat, we can 

designate critical habitat in areas 

outside the geographical area occupied 

by the species at the time it is listed, 

upon a determination that such areas 

are essential for the conservation of the 

species. We will determine whether 

unoccupied areas are essential for the 

conservation of the species by 

considering the life-history, status, and 

conservation needs of the species. This 

will be further informed by any 

generalized conservation strategy, 

criteria, or outline that may have been 

developed for the species to provide a 

substantive foundation for identifying 

which features and specific areas are 

essential to the conservation of the 

species and, as a result, the 

development of the critical habitat 

designation. For example, an area 

currently occupied by the species but 

that was not occupied at the time of 

listing may be essential to the 

conservation of the species and may be 

included in the critical habitat 

designation. 

Section 4 of the Act requires that we 

designate critical habitat on the basis of 

the best scientific data available. 

Further, our Policy on Information 

Standards under the Endangered 

Species Act (published in the Federal 

Register on July 1, 1994 (59 FR 34271)), 

the Information Quality Act (section 515 

of the Treasury and General 

Government Appropriations Act for 

Fiscal Year 2001 (Pub. L. 106–554; H.R. 

5658)), and our associated Information 

Quality Guidelines, provide criteria, 

establish procedures, and provide 

guidance to ensure that our decisions 

are based on the best scientific data 

available. They require our biologists, to 

the extent consistent with the Act and 

with the use of the best scientific data 

available, to use primary and original 

sources of information as the basis for 

recommendations to designate critical 

habitat. 

When we are determining which areas 

should be designated as critical habitat, 

our primary source of information is 

generally the information from the SSA 

report and information developed 

during the listing process for the 

species. Additional information sources 

may include any generalized 

conservation strategy, criteria, or outline 

that may have been developed for the 

species; the recovery plan for the 

species; articles in peer-reviewed 

journals; conservation plans developed 

by States and counties; scientific status 

surveys and studies; biological 

assessments; other unpublished 

materials; or experts’ opinions or 

personal knowledge. 

Habitat is dynamic, and species may 

move from one area to another over 

time. We recognize that critical habitat 

designated at a particular point in time 

may not include all of the habitat areas 

that we may later determine are 

necessary for the recovery of the 

species. For these reasons, a critical 

habitat designation does not signal that 

habitat outside the designated area is 

unimportant or may not be needed for 

recovery of the species. Areas that are 

important to the conservation of the 

species, both inside and outside the 

critical habitat designation, will 

continue to be subject to: (1) 

Conservation actions implemented 

under section 7(a)(1) of the Act, (2) 

regulatory protections afforded by the 

requirement in section 7(a)(2) of the Act 

for Federal agencies to ensure their 

actions are not likely to jeopardize the 

continued existence of any endangered 

or threatened species, and (3) section 9 

of the Act’s prohibitions on taking any 

individual of the species, including 

taking caused by actions that affect 

habitat. Federally funded or permitted 

projects affecting listed species outside 

their designated critical habitat areas 

may still result in jeopardy findings in 

some cases. These protections and 

conservation tools will continue to 

contribute to recovery of this species. 

Similarly, critical habitat designations 

made on the basis of the best available 

information at the time of designation 

will not control the direction and 

substance of future recovery plans, 

habitat conservation plans (HCPs), or 

other species conservation planning 

efforts if new information available at 

the time of these planning efforts calls 

for a different outcome. 

Prudency Determination 

Section 4(a)(3) of the Act, as 

amended, and its implementing 

regulations (50 CFR 424.12), require 

that, to the maximum extent prudent 

and determinable, the Secretary shall 

designate critical habitat at the time the 

species is determined to be an 

endangered or threatened species. The 

regulations at 50 CFR 424.12(a)(1) state 


amozie on DSK3GDR082PROD with PROPOSALS1
Federal Register / Vol. 83, No. 248 / Friday, December 28, 2018 / Proposed Rules 67193 

that the designation of critical habitat is 

not prudent when one or both of the 

following situations exist: 

(1) The species is threatened by taking 

or other human activity, and 

identification of critical habitat can be 

expected to increase the degree of threat 

to the species, or 

(2) Such designation of critical habitat 

would not be beneficial to the species. 

In determining whether a designation 

would not be beneficial, the factors the 

Service may consider include, but are 

not limited to, whether the present or 

threatened destruction, modification, or 

curtailment of a species’ habitat or range 

is not a threat to the species, or whether 

any areas meet the definition of ‘‘critical 

habitat.’’ 

As discussed in the final listing rule, 

which is published elsewhere in today’s 

Federal Register, there is currently no 

imminent threat of take attributed to 

collection or vandalism identified under 

Factor B for this species, and 

identification and mapping of critical 

habitat is not expected to initiate any 

such threat. In the absence of finding 

that the designation of critical habitat 

would increase threats to a species, we 

must next determine whether such 

designation of critical habitat would not 

be beneficial to the species. In the final 

listing rule, we state our determination 

that there are habitat-based threats to 

the trispot darter identified under Factor 

A. Therefore, we find that the 

designation of critical habitat would be 

beneficial to trispot darter through the 

provisions of section 7 of the Act. 

Because we have determined that the 

designation of critical habitat will not 

likely increase the degree of threat to the 

species and would be beneficial, we 

find that designation of critical habitat 

is prudent for the trispot darter. 

Critical Habitat Determinability 

Having determined that designation is 

prudent, under section 4(a)(3) of the Act 

we must find whether critical habitat for 

the trispot darter is determinable. Our 

regulations at 50 CFR 424.12(a)(2) state 

that critical habitat is not determinable 

when one or both of the following 

situations exist: 

(i) Data sufficient to perform required 

analyses are lacking, or 

(ii) The biological needs of the species 

are not sufficiently well known to 

identify any area that meets the 

definition of ‘‘critical habitat.’’ When 

critical habitat is not determinable, the 

Act allows the Service an additional 

year to publish a critical habitat 

designation (16 U.S.C. 1533(b)(6)(C)(ii)). 

We reviewed the available 

information pertaining to the biological 

needs of the species and habitat 

characteristics where this species is 

located. We find that this information is 

sufficient for us to conduct both the 

biological and economic analyses 

required for the critical habitat 

determination. This and other 

information represent the best scientific 

data available and led us to conclude 

that the designation of critical habitat is 

now determinable for the trispot darter. 

Physical or Biological Features 

In accordance with section 3(5)(A)(i) 

of the Act and regulations at 50 CFR 

424.12(b), in determining which areas 

within the geographical area occupied 

by the species at the time of listing to 

designate as critical habitat, we consider 

the physical or biological features that 

are essential to the conservation of the 

species and which may require special 

management considerations or 

protection. For example, physical 

features might include gravel of a 

particular size required for spawning, 

alkali soil for seed germination, 

protective cover for migration, or 

susceptibility to flooding or fire that 

maintains necessary early-successional 

habitat characteristics. Biological 

features might include prey species, 

forage grasses, specific kinds or ages of 

trees for roosting or nesting, symbiotic 

fungi, or a particular level of nonnative 

species consistent with conservation 

needs of the listed species. The features 

may also be combinations of habitat 

characteristics and may encompass the 

relationship between characteristics or 

the necessary amount of a characteristic 

needed to support the life history of the 

species. In considering whether features 

are essential to the conservation of the 

species, the Service may consider an 

appropriate quality, quantity, and 

spatial and temporal arrangement of 

habitat characteristics in the context of 

the life-history needs, condition, and 

status of the species. These 

characteristics include, but are not 

limited to, space for individual and 

population growth and for normal 

behavior; food, water, air, light, 

minerals, or other nutritional or 

physiological requirements; cover or 

shelter; sites for breeding, reproduction, 

or rearing (or development) of offspring; 

and habitats that are protected from 

disturbance. 

The trispot darter is a freshwater fish 

found in the Coosa River System in the 

Ridge and Valley ecoregion of Alabama, 

Georgia, and Tennessee. It is a migratory 

species that utilizes distinct breeding 

and nonbreeding habitats. From 

approximately April to October, the 

species inhabits its nonbreeding habitat, 

which consists of small to medium 

margins of rivers and lower reaches of 

tributaries with slower velocities. It is 

associated with detritus, logs, and 

stands of water willow, and a substrate 

that consists of small cobbles, pebbles, 

gravel, and often a fine layer of silt. 

During low flow periods, the darters 

move away from the peripheral zones 

and toward the main channel; edges of 

water willow beds, riffles, and pools; 

and mouths of tributaries. 

Migration into spawning areas begins 

in approximately late November or early 

December, with fish moving from the 

main channels into tributaries and 

eventually reaching adjacent seepage 

areas where they will congregate and 

remain for the duration of spawning, 

until approximately late April. Breeding 

sites are intermittent seepage areas and 

ditches with little to no flow; shallow 

depths (12 inches (30 centimeters) or 

less); moderate leaf litter covering 

mixed cobble, gravel, sand, and clay; a 

deep layer of soft silt over clay; and 

emergent vegetation. Additionally, 

breeding sites possess channels that 

maintain base flow throughout the 

winter and early spring. 

Trispot darters predominantly feed on 

mayfly nymphs and midge larvae and 

pupae. 

A thorough review of the life history 

and ecology of the trispot darter is 

presented in the SSA report (Service 

2017, entire). A summary of the 

resource needs of the trispot darter is 

provided below in Table 1. 

TABLE 1—LIFE-HISTORY AND RESOURCE NEEDS OF THE TRISPOT DARTER

Life stage Resources needed 

Fertilized Eggs ................................ Ephemeral streams/ditches connected to nonbreeding habitat with adequate water quality; vegetation, 

rocks for adhesive eggs; eggs submerged on vegetation and/or rocks for approximately 30 days at 53 °F 

(12 °C). 

Larvae ............................................. Ephemeral streams/ditches connected to nonbreeding habitat with adequate water quality; low predation, 

disease, and environmental stress; flushing rain events to reach lower stream reaches; 41 days to reach 

juvenile stage. 


amozie on DSK3GDR082PROD with PROPOSALS1
67194 Federal Register / Vol. 83, No. 248 / Friday, December 28, 2018 / Proposed Rules 

TABLE 1—LIFE-HISTORY AND RESOURCE NEEDS OF THE TRISPOT DARTER—Continued 

Life stage Resources needed 

Juveniles ......................................... Flowing water with good water quality; low predation, disease, and environmental stress; adequate food 

availability. 

Nonbreeding Adults (Mid-April to 

Mid-October).

Clear, flowing water in shallow pools and backwaters in main channel with good water quality but documented to be found with a fine layer of silt and/or debris, leaf litter; adequate food availability. 

Breeding Adults (Late November to 

Late April).

Flowing water with adequate water quality, adequate flow to connect to breeding areas; clean structure 

(vegetation, rock, substrate); appropriate male to female demographics; appropriate spawning temperatures. 

Summary of Essential Physical or 

Biological Features 

We derive the specific physical or 

biological features essential to the 

conservation of trispot darter from 

studies of this species’ habitat, ecology, 

and life history. Additional information 

can be found in the proposed listing 

rule published in the Federal Register 

on October 4, 2017 (82 FR 46183), the 

SSA report (Service 2017, entire), and 

the final listing rule published 

elsewhere in today’s Federal Register. 

We have determined that the following 

physical or biological features are 

essential to the conservation of trispot 

darter: 

(1) Geomorphically stable, small to 

medium streams with (a) detritus, 

woody debris, and stands of water 

willow (Justicia americana) over stream 

substrate that consists of small cobble, 

pebbles, gravel, and fine layers of silt; 

and (b) intact riparian cover to maintain 

stream morphology and reduce erosion 

and sediment inputs. 

(2) Adequate seasonal water flows, or 

a hydrologic flow regime (which 

includes the severity, frequency, 

duration, and seasonality of discharge 

over time) necessary to maintain 

appropriate benthic habitats and to 

maintain and create connectivity 

between permanently flowing streams 

with associated streams that hold water 

from November through April, 

providing connectivity between the 

darter’s spawning and summer areas. 

(3) Water and sediment quality 

(including, but not limited to, 

conductivity; hardness; turbidity; 

temperature; pH; ammonia; heavy 

metals; pesticides; animal waste 

products; and nitrogen, phosphorus, 

and potassium fertilizers) necessary to 

sustain natural physiological processes 

for normal behavior, growth, and 

viability of all life stages. 

(4) Prey base of aquatic 

macroinvertebrates. 

Special Management Considerations or 

Protection 

When designating critical habitat, we 

assess whether the specific areas within 

the geographical area occupied by the 

species at the time of listing contain 

features which are essential to the 

conservation of the species and which 

may require special management 

considerations or protection. The 

features essential to the conservation of 

the trispot darter may require special 

management considerations or 

protections to reduce the following 

threats: (1) Urbanization of the 

landscape, including (but not limited to) 

land conversion for urban and 

commercial use, infrastructure (roads, 

bridges, utilities), and urban water uses 

(water supply reservoirs, wastewater 

treatment); (2) nutrient pollution from 

agricultural activities that impact water 

quantity and quality; (3) significant 

alteration of water quality; (4) improper 

forest management or silviculture 

activities that remove large areas of 

forested wetlands and riparian systems; 

(5) culvert and pipe installation that 

creates barriers to movement; (6) 

changes and shifts in seasonal 

precipitation patterns as a result of 

climate change; (7) other watershed and 

floodplain disturbances that release 

sediments or nutrients into the water or 

fill suitable spawning habitat; and (8) 

creation of reservoirs that convert 

permanently flowing streams and/or 

streams that hold water from November 

through April into lake or pond-like 

(lentic) environments. 

Management activities that could 

ameliorate these threats include, but are 

not limited to, use of best management 

practices (BMPs) designed to reduce 

sedimentation, erosion, and bank-side 

destruction; protection of riparian 

corridors and suitable spawning habitat; 

retention of sufficient canopy cover 

along banks; moderation of surface and 

ground water withdrawals to maintain 

natural flow regimes; increased use of 

stormwater management and reduction 

of stormwater flows into the stream 

systems; placement of culverts or 

bridges that accommodate fish passage; 

and reduction of other watershed and 

floodplain disturbances that release 

sediments, pollutants, or nutrients into 

the water. 

Criteria Used To Identify Critical 

Habitat 

As required by section 4(b)(2) of the 

Act, we use the best scientific data 

available to designate critical habitat. In 

accordance with the Act and our 

implementing regulations at 50 CFR 

424.12(b), we review available 

information pertaining to the habitat 

requirements of the species and identify 

specific areas within the geographical 

area occupied by the species at the time 

of listing and any specific areas outside 

the geographical area occupied by the 

species to be considered for designation 

as critical habitat. 

The current distribution of the trispot 

darter is reduced from its historical 

distribution. We anticipate that recovery 

will require continued protection of 

existing populations and habitat, as well 

as ensuring there are adequate numbers 

of fish in stable populations and that 

these populations occur over a wide 

geographic area. This will help to 

ensure that catastrophic events, such as 

floods, cannot simultaneously affect all 

known populations. Range-wide 

recovery considerations, such as 

maintaining existing genetic diversity 

and striving for representation of all 

major portions of the species’ current 

range, were considered in formulating 

this proposed critical habitat 

designation. 

Sources of data for this proposed 

critical habitat include multiple 

databases maintained by universities 

and State agencies in Tennessee, 

Alabama, and Georgia, and numerous 

survey reports on streams throughout 

the species’ range. Other sources of 

available information on habitat 

requirements for this species include 

studies conducted at occupied sites and 

published in peer-reviewed articles, 

agency reports, and data collected 

during monitoring efforts (Service 2017, 

entire). 

Areas Occupied at the Time of Listing 

The proposed critical habitat 

designation does not include all streams 

known to have been occupied by the 

species historically; instead, it focuses 

on currently occupied streams and 


amozie on DSK3GDR082PROD with PROPOSALS1
Federal Register / Vol. 83, No. 248 / Friday, December 28, 2018 / Proposed Rules 67195 

rivers within the historical range that 

have retained the necessary physical or 

biological features that will allow for the 

maintenance and expansion of existing 

populations. For the purposes of critical 

habitat designation, we determined a 

unit to be occupied if it contains recent 

(i.e., observed in the past 10 years (since 

2007), based on the data available for 

the SSA analysis) observations of trispot 

darter. Collection records were 

compiled and provided to us by State 

partners funded under a concurrent 

section 6 status assessment for the 

trispot darter. Collection records were 

obtained through the website FISHNET2 

(an online repository of ichthyological 

museum data) or directly from 

institutions. To delineate spawning 

areas for trispot darter, we identified 

waterways where trispot darter was 

observed from November to April 

between the years 2007 and 2017. We 

assume these observations represented 

fish in or near spawning habitat within 

the timeframe. We based this 

assumption on the knowledge that this 

short-lived migratory species will stage 

near spawning areas in pre-spawning 

congregations and that both spawning 

and non-spawning individuals will 

make a migration. 

We considered areas of low 

topographic variation at lower 

elevations as exhibiting topographic 

characteristics that support recharge of 

a shallow soil water table, slow release 

of water into breeding channels, and 

connectivity between ephemeral 

breeding channels and permanent 

trispot darter summer habitat. These 

areas support the essential physical and 

biological features that allow for 

adequate seasonal water flows, the 

hydrologic flow regime that maintains 

appropriate trispot habitat, and 

connectivity between streams in the 

winter. Areas of low topographic 

variation would generally have slower 

stream velocities and retain water for 

longer duration (i.e., have a less 

‘‘flashy’’ hydrograph), in order to 

maintain necessary benthic habitat and 

stream substrate. Areas at lower 

elevation would interact with 

permanent streams and rivers, and be 

accessible to trispot darters attempting 

to migrate into adjacent ephemeral 

spawning streams. 

To identify areas with both low 

elevation and low topographic variation, 

we conducted a geographic information 

system (GIS) analysis using a 30-meter 

digital elevation model (DEM). Low 

elevation for this analysis was defined 

as two standard deviations away from 

the mean elevation at which spawning 

trispot darters were observed. Therefore, 

elevation ranged from 558 to 790 feet (ft) 

(170 to 241 meters (m)). We used 

roughness as a measure of topographic 

variation. To calculate roughness, we 

used an ArcGIS tool (Evans et al. 2014) 

that implements an algorithm described 

by Riley et al. (1999, entire). We then 

conducted an overlay analysis using the 

spawning elevation layer and roughness 

layer to produce a map of potential 

spawning habitat. 

Finally, we considered the dispersal 

ability of trispot darter when delineating 

critical habitat that included spawning 

habitat. Trispot darters have been 

recorded to travel approximately 6,000 

ft (1,829 m). Therefore, we only 

delineate lands that exhibit topographic 

characteristics we consider suitable for 

trispot darter spawning habitat that are 

within 6,000 ft (1,829 m) of a trispot 

darter observed between November and 

April in the years 2007 to 2017. 

The following rivers and streams meet 

the criteria described above and are 

considered occupied by the species at 

the time of listing where the essential 

physical and biological features are 

found: Big Canoe Creek, Ballplay Creek, 

Conasauga River, Mill Creek, Coahulla 

Creek, and Coosawattee River. 

Areas Outside the Geographic Area 

Occupied at the Time of Listing 

We are not proposing to designate any 

areas outside the geographical area 

currently occupied by the species 

because we did not find any unoccupied 

areas that were essential for the 

conservation of the species. The 

protection of six moderately or highly 

resilient management units across the 

physiographic representation of the 

range would sufficiently reduce the risk 

of extinction. Improving the resiliency 

of populations in the currently occupied 

streams will likely increase viability to 

the point that the protections of the Act 

are no longer necessary. 

Developed Areas 

When determining proposed critical 

habitat boundaries, we made every 

effort to avoid including developed 

areas such as lands covered by 

buildings, pavement, and other 

structures because such lands lack 

physical or biological features necessary 

for trispot darter. The scale of the maps 

we prepared under the parameters for 

publication within the Code of Federal 

Regulations may not reflect the 

exclusion of such developed lands. Any 

such lands inadvertently left inside 

critical habitat boundaries shown on the 

maps of this proposed rule have been 

excluded by text in the proposed rule 

and are not proposed for designation as 

critical habitat. Therefore, if the critical 

habitat is finalized as proposed, a 

Federal action involving these lands 

would not trigger section 7 consultation 

with respect to critical habitat and the 

requirement of no adverse modification 

unless the specific action would affect 

the physical or biological features in the 

adjacent critical habitat. 

Critical Habitat Maps 

The critical habitat designation is 

defined by the map or maps, as 

modified by any accompanying 

regulatory text, presented at the end of 

this document in Proposed Regulation 

Promulgation. We include more detailed 

information on the boundaries of the 

critical habitat designation in the 

preamble of this document. We will 

make the coordinates or plot points or 

both on which each map is based 

available to the public on http://

www.regulations.gov under Docket No. 

FWS–R4–ES–2018–0073, on our 

internet site at https://www.fws.gov/ 

daphne/, and at the field office 

responsible for the designation (see FOR

FURTHER INFORMATION CONTACT, above). 

Proposed Critical Habitat Designation 

We are proposing 181 river miles (mi) 

(291 kilometers (km)) and 16,735 acres 

(ac) (6,772 hectares (ha)) in six units as 

critical habitat for the trispot darter. The 

critical habitat areas we describe below 

constitute our current best assessment of 

areas that meet the definition of critical 

habitat for trispot darter. All 6 areas we 

propose as critical habitat are in the 

Coosa River system in Alabama, 

Georgia, and Tennessee (Table 2). Table 

2 shows the name, land ownership, 

acres, and approximate stream miles of 

the proposed designated units for the 

trispot darter. Per State regulations 

(Alabama Code section 9–11–80, 

Tennessee Code Annotated section 69– 

1–101, and Georgia Code section 52–1– 

31), navigable waters are considered 

public rights-of-way. Most, if not all, 

lands beneath the navigable waters 

included in this proposed rule are 

owned by the States of Alabama, 

Georgia, or Tennessee. Ownership of 

lands beneath most nonnavigable waters 

included in this proposed rule are 

determined by riparian land ownership. 

As discussed below, riparian lands 

along the waters described are owned by 

either private, State, or Federal entities. 


amozie on DSK3GDR082PROD with PROPOSALS1
67196 Federal Register / Vol. 83, No. 248 / Friday, December 28, 2018 / Proposed Rules 

TABLE 2—PROPOSED CRITICAL HABITAT UNITS FOR TRISPOT DARTER

Unit Ownership* of river miles (kilometers) Ownership* of acres (hectares) 

Private Local State Federal Total Private State Federal Total 

1. Big Canoe Creek .................. 41 (66) 0 0 0 41 

(66) 

10,167 

(4,114) 

0 0 10,167 

(4,114) 

2. Ballplay Creek ....................... 17 (27) 0 0 0 17 

(27) 

2,527 

(1,023) 

0 0 2,527 

(1,023) 

3. Conasauga River .................. 54.58 

(87.84) 

0 2.42 

(3.90) 

0 57 

(92) 

2,161 

(875) 

0 0 2,161 

(875) 

4. Mill Creek .............................. 13.69 

(22.03) 

1.31 

(2.11) 

0 0 15 

(24) 

438 

(177) 

0 0 438 

(177) 

5. Coahulla Creek ..................... 26 (42) 0 0 0 26 

(42) 

1,442 

(584) 

0 0 1,442 

(584) 

6. Coosawattee River ................ 24.24 

(39) 

0 0.34 

(0.55) 

0.42 

(0.68) 

25 

(40) 

0 0 0 0 

Total ................................... 176.51 

(283.87) 

1.31 

(2.11) 

2.76 

(4.45) 

0.42 

(0.68) 

181 

(291) 

16,735 

(6,772) 

0 0 16,735 

(6,772) 

* Adjacent riparian ownership is reported under ‘‘river miles.’’ 

Note: Measurements may not sum due to rounding. 

We present brief descriptions of all 

proposed units, and reasons why they 

meet the definition of critical habitat for 

trispot darter below. All of the proposed 

units are currently occupied by the 

darter and contain the physical and 

biological features that are essential to 

the conservation of the species and 

which may require special management 

considerations or protection. 

Unit 1: Big Canoe Creek 

Unit 1 consists of 41 stream mi (66 

km) in St. Clair County, Alabama, from 

approximately 3.5 mi (5.6 km) upstream 

of Pinedale Road, west of Ashville, 

Alabama, to approximately U.S. 

Highway (Hwy.) 11. In addition to Big 

Canoe Creek, Unit 1 includes the 

westernmost portion of Little Canoe 

Creek to State Hwy. 174 and all of its 

associated tributaries. Unit 1 also 

includes all low elevation areas (10,167 

ac (4,114 ha)) containing channels that 

hold water from November through 

April beginning 0.5 mi (0.8 km) 

upstream of County Road 31 upstream 

to the U.S. Hwy. 11 crossing with Big 

Canoe Creek, approximately 0.70 miles 

(1.1 km) downstream of the Interstate 59 

(I–59) crossing with the Left Hand Prong 

Little Canoe Creek, and the State Hwy. 

174 crossing with Little Canoe Creek 

and Stovall Branch. The low elevation 

riparian areas that hold water seasonally 

in Unit 1 are privately owned, except for 

bridge crossings and road easements, 

which are owned by the State or 

County. 

Additional special management 

considerations or protection may be 

required within Unit 1 to alleviate 

impacts from stressors that have led to 

the degradation of the habitat, including 

roadside erosion, urban development, 

fish barriers, and unstable stream banks. 

Livestock accessing streams and 

riparian buffers have led to high levels 

of sedimentation, siltation, 

contamination, and nutrient-loading, as 

well as destabilized stream banks. 

Unit 2: Ballplay Creek 

Unit 2 consists of 17 stream mi (27 

km) of Ballplay Creek in Etowah, 

Cherokee, and Calhoun Counties, 

Alabama, and 2,527 ac (1,023 ha) of 

ephemeral spawning habitat. Unit 2 

begins upstream of a wetland complex 

located at the border between Etowah 

and Cherokee Counties approximately at 

County Road 32, and continues 

upstream approximately to the U.S. 

Hwy. 278 crossing over Ballplay Creek 

in Calhoun County, Alabama. Unit 2 

includes all low elevation areas (2,527 

ac (1,023 ha)) containing channels that 

hold water from November through 

April beginning upstream of a wetland 

complex located at the border between 

Etowah and Cherokee Counties 

approximately 0.60 mi (1 km) southwest 

of County Road 32 and extending 

upstream to the confluence of Ballplay 

and Little Ballplay Creeks and to the 

west along Rocky Ford Road and Alford 

Road. The ephemeral spawning habitat 

proposed in Unit 2 is privately owned 

except for bridge crossings and road 

easements, which are owned by the 

State or Counties. Additional special 

management considerations or 

protection may be required within Unit 

2 because entrenchment and 

channelization have altered the channel 

and may degrade spawning habitat and 

reduce floodplain access. 

Unit 3: Conasauga River 

Unit 3 consists of 57 stream mi (92 

km) and 2,161 acres (875 ha) of 

ephemeral wetland spawning habitat in 

Whitfield and Murray Counties, 

Georgia, and Polk and Bradley Counties, 

Tennessee. Unit 3 begins in the 

Conasauga River upstream of the mouth 

of Coahulla Creek and continues 

upstream to the mouth of Minneawauga 

Creek. Unit 3 also includes: Mill Creek 

from its confluence with the Conasauga 

River in Bradley County, Tennessee, 

upstream to the first impoundment on 

Mill Creek approximately at Green 

Shadow Road SE; Old Fort Creek from 

Ladd Springs Road SE in Polk County, 

Tennessee, to its confluence with Mill 

Creek in Bradley County, Tennessee; 

and Perry Creek from its headwaters 

(approximately 0.35 mi (0.6 km) 

upstream of Tennga Gregory Road) to its 

confluence with the Conasauga River in 

Murray County, Georgia, and both of its 

tributaries. Unit 3 includes all low 

elevation areas (2,161 ac (875 ha)) 

containing channels that hold water 

from November through April, 

beginning from the confluence of the 

Conasauga River and Shears Branch 

(west of U.S. Hwy. 411 in Polk County, 

Tennessee) to approximately 0.30 mi 

(0.5 km) downstream of the confluence 

of the Conasauga River and Perry Creek; 

Mill Creek from Hicks Tanyard Road 

downstream to its confluence with the 

Conasauga River; Old Fort Creek from 

Hicks Tanyard Road to its confluence 

with Mill Creek; and Perry Creek. The 

ephemeral wetland areas surrounding 

the river proposed in this unit is a 

combination of private ownership, 

conservation easements, and State 

Natural Areas. These easements are held 

by Georgia Department of 

Transportation, Georgia Department of 

Natural Resources, and GeorgiaAlabama Land trust. 

Additional special management 

considerations or protection may be 

required within the Conasauga River 

Unit to reduce impacts from pollutants 

from agricultural runoff, construction of 

farm ponds that destroy spawning 

habitat, development, erosion, 

sedimentation, and dams and other 

barriers to dispersal. 


amozie on DSK3GDR082PROD with PROPOSALS1
Federal Register / Vol. 83, No. 248 / Friday, December 28, 2018 / Proposed Rules 67197 

Unit 4: Mill Creek 

Unit 4 consists of 15 stream mi (24 

km) of Mill Creek and 438 ac (177 ha) 

of ephemeral spawning habitat in 

Whitfield County, Georgia. The land 

surrounding the river in this unit is both 

in private ownership and owned by the 

City of Dalton, Georgia. Unit 4 begins at 

the confluence of Mill Creek with 

Coahulla Creek and continues upstream 

along Mill Creek for approximately 15 

mi (24 km) to the U.S. Hwy. 41 crossing. 

The unit includes all low elevation 

areas (438 ac (177 ha)) containing 

channels that hold water from 

November through April, beginning 

from the U.S. Hwy. 41 crossing with 

Mill Creek downstream to the 

confluence of Mill Creek and Haig Mill 

Branch. Unit 4’s spawning habitat is 

privately owned except for bridge 

crossings and road easements, which are 

owned by the State or County. 

Additional special management 

considerations or protection may be 

required within Unit 4 to address 

pollutants from agricultural runoff, 

agricultural ditching, and the 

construction of farm ponds that remove 

spawning habitat. Sediment loading and 

excessive fecal contamination have 

degraded water quality and also require 

special management considerations. 

Unit 5: Coahulla Creek 

Unit 5 consists of 26 stream mi (42 

km) of Coahulla Creek and 1,442 ac (584 

ha) of ephemeral spawning habitat in 

Whitfield County, Georgia, and Bradley 

County, Tennessee. Unit 5 begins 

immediately upstream of the Prater Mill 

dam upstream of State Hwy. 2 in 

Georgia. The unit continues upstream 

for approximately 26 mi (42 km) to 

Ramsey Bridge Road SE and includes 

ephemeral wetland habitat from 0.5 mi 

(0.8 km) downstream of Hopewell Road 

to approximately 0.5 mi (0.8 km) 

upstream of McGaughey Chapel Road. 

The ephemeral spawning habitat 

surrounding the river in this unit is 

privately owned, except for bridge 

crossings and road easements, which are 

owned by the State or County. 

Additional special management 

considerations or protection may be 

required within Unit 5 to address 

pollutants from agricultural runoff, 

agricultural ditching, and the 

construction of farm ponds that remove 

spawning habitat. Sediment loading and 

excessive fecal contamination have 

degraded water quality and also require 

special management considerations. 

Unit 6: Coosawattee River 

Unit 6 consists of 25 stream mi (40 

km) of the Coosawattee River beginning 

at the confluence with the Conasauga 

River in Gordon County, Georgia. The 

unit continues upstream to Old 

Highway 411 downstream of Carters 

Lake Reregulation Dam in Murray 

County, Georgia. The ephemeral 

spawning habitat surrounding the river 

in this unit is a mix of State, private, 

and Federal (U.S. Army Corps of 

Engineers) ownership. 

Additional special management 

considerations or protection may be 

required within Unit 6 to address 

erosion and sedimentation from urban 

runoff and development, rural unpaved 

roads, forestry practices, dam 

construction and use, and agriculture, 

leading to impairment of water quality. 

Effects of Critical Habitat Designation 

Section 7 Consultation 

Section 7(a)(2) of the Act requires 

Federal agencies, including the Service, 

to ensure that any action they fund, 

authorize, or carry out is not likely to 

jeopardize the continued existence of 

any endangered species or threatened 

species or result in the destruction or 

adverse modification of designated 

critical habitat of such species. In 

addition, section 7(a)(4) of the Act 

requires Federal agencies to confer with 

the Service on any agency action which 

is likely to jeopardize the continued 

existence of any species proposed to be 

listed under the Act or result in the 

destruction or adverse modification of 

proposed critical habitat. 

We published a final rule adopting a 

new definition of destruction or adverse 

modification on February 11, 2016 (81 

FR 7214). Destruction or adverse 

modification means a direct or indirect 

alteration that appreciably diminishes 

the value of critical habitat for the 

conservation of a listed species. Such 

alterations may include, but are not 

limited to, those that alter the physical 

or biological features essential to the 

conservation of a species or that 

preclude or significantly delay 

development of such features. 

If a Federal action may affect a listed 

species or its critical habitat, the 

responsible Federal agency (action 

agency) must enter into consultation 

with us. Examples of actions that are 

subject to the section 7 consultation 

process are actions on State, tribal, 

local, or private lands that require a 

Federal permit (such as a permit from 

the U.S. Army Corps of Engineers under 

section 404 of the Clean Water Act (33 

U.S.C. 1251 et seq.) or a permit from the 

Service under section 10 of the Act) or 

that involve some other Federal action 

(such as funding from the Federal 

Highway Administration, Federal 

Aviation Administration, or the Federal 

Emergency Management Agency). 

Federal actions not affecting listed 

species or critical habitat, and actions 

on State, tribal, local, or private lands 

that are not federally funded or 

authorized, do not require section 7 

consultation. As a result of section 7 

consultation, we document compliance 

with the requirements of section 7(a)(2) 

through our issuance of: 

(1) A concurrence letter for Federal 

actions that may affect, but are not 

likely to adversely affect, listed species 

or critical habitat; or 

(2) A biological opinion for Federal 

actions that may affect and are likely to 

adversely affect, listed species or critical 

habitat. 

When we issue a biological opinion 

concluding that a project is likely to 

jeopardize the continued existence of a 

listed species and/or destroy or 

adversely modify critical habitat, we 

provide reasonable and prudent 

alternatives to the project, if any are 

identifiable, that would avoid the 

likelihood of jeopardy and/or 

destruction or adverse modification of 

critical habitat. We define ‘‘reasonable 

and prudent alternatives’’ (at 50 CFR 

402.02) as alternative actions identified 

during consultation that: 

(1) Can be implemented in a manner 

consistent with the intended purpose of 

the action, 

(2) Can be implemented consistent 

with the scope of the Federal agency’s 

legal authority and jurisdiction, 

(3) Are economically and 

technologically feasible, and 

(4) Would, in the Service Director’s 

opinion, avoid the likelihood of 

jeopardizing the continued existence of 

the listed species and/or avoid the 

likelihood of destroying or adversely 

modifying critical habitat. 

Reasonable and prudent alternatives 

can vary from slight project 

modifications to extensive redesign or 

relocation of the project. Costs 

associated with implementing a 

reasonable and prudent alternative are 

similarly variable. 

Regulations at 50 CFR 402.16 require 

Federal agencies to reinitiate 

consultation on previously reviewed 

actions in instances where we have 

listed a new species or subsequently 

designated critical habitat that may be 

affected and the Federal agency has 

retained discretionary involvement or 

control over the action (or the agency’s 

discretionary involvement or control is 

authorized by law). Consequently, 

Federal agencies sometimes may need to 

request reinitiation of consultation with 

us on actions for which formal 

consultation has been completed, if 


amozie on DSK3GDR082PROD with PROPOSALS1
67198 Federal Register / Vol. 83, No. 248 / Friday, December 28, 2018 / Proposed Rules 

those actions with discretionary 

involvement or control may affect 

subsequently listed species or 

designated critical habitat. 

Application of the ‘‘Adverse 

Modification’’ Standard 

The key factor related to the adverse 

modification determination is whether, 

with implementation of the proposed 

Federal action, the affected critical 

habitat would continue to serve its 

intended conservation role for the 

species. Activities that may destroy or 

adversely modify critical habitat are 

those that result in a direct or indirect 

alteration that appreciably diminishes 

the value of critical habitat for the 

conservation of the trispot darter. Such 

alterations may include, but are not 

limited to, those that alter the physical 

or biological features essential to the 

conservation of these species or that 

preclude or significantly delay 

development of such features. As 

discussed above, the role of critical 

habitat is to support physical or 

biological features essential to the 

conservation of a listed species and 

provide for the conservation of the 

species. Section 4(b)(8) of the Act 

requires us to briefly evaluate and 

describe, in any proposed or final 

regulation that designates critical 

habitat, activities involving a Federal 

action that may destroy or adversely 

modify such habitat, or that may be 

affected by such designation. 

Activities that may affect critical 

habitat, when carried out, funded, or 

authorized by a Federal agency, should 

result in consultation for the trispot 

darter. These activities include, but are 

not limited to: 

(1) Actions that would alter the 

minimum flow or the existing flow 

regime. Such activities could include, 

but are not limited to, impoundment, 

channelization, water diversion, water 

withdrawal, and hydropower 

generation. These activities could 

eliminate or reduce the habitat 

necessary for the growth and 

reproduction of trispot darter by 

decreasing or altering flows to levels 

that would adversely affect their ability 

to complete their life cycles. 

(2) Actions that would significantly 

alter water chemistry or temperature. 

Such activities could include, but are 

not limited to, release of chemicals 

(including pharmaceuticals, metals, and 

salts), biological pollutants, or heated 

effluents into the surface water or 

connected groundwater at a point 

source or by dispersed release (nonpoint source). These activities could 

alter water conditions to levels that are 

beyond the tolerances of the trispot 

darter and result in direct or cumulative 

adverse effects to these individuals and 

their life cycles. 

(3) Actions that would significantly 

increase sediment deposition within the 

stream channel. Such activities could 

include, but are not limited to, excessive 

sedimentation from livestock grazing, 

road construction, channel alteration, 

and other watershed and floodplain 

disturbances. These activities could 

eliminate or reduce the habitat 

necessary for the growth and 

reproduction of the trispot darter by 

increasing the sediment deposition to 

levels that would adversely affect the 

species’ ability to complete its life cycle. 

(4) Actions that would significantly 

increase the phytoplankton algal 

community within the stream channel. 

Such activities could include, but are 

not limited to, release of nutrients into 

the surface water or connected 

groundwater at a point source or by 

dispersed release (non-point source). 

These activities can result in excessive 

filamentous algae filling streams and 

reducing habitat for fish, degrading 

water quality during phytoplankton 

decay, and decreasing oxygen levels at 

night from phytoplankton respiration to 

levels below the tolerances of the fish. 

(5) Actions that would significantly 

alter channel morphology or geometry. 

Such activities could include, but are 

not limited to, channelization, 

impoundment, road and bridge 

construction, mining, dredging, and 

destruction of riparian vegetation. These 

activities may lead to changes in water 

flows and levels that would degrade or 

eliminate the trispot darter habitat. 

These actions can also lead to increased 

sedimentation and degradation in water 

quality to levels that are beyond the 

tolerances of the fish. 

(6) Actions that result in the 

introduction, spread, or augmentation of 

nonnative aquatic species in occupied 

stream segments, or in stream segments 

that are hydrologically connected to 

occupied stream segments, even if those 

segments are occasionally intermittent, 

or introduction of other species that 

compete with or prey on the trispot 

darter. Possible actions could include, 

but are not limited to, stocking of 

nonnative fishes, stocking of sport fish, 

or other related actions. These activities 

can introduce parasites or disease; result 

in direct predation; or affect the growth, 

reproduction, and survival of trispot 

darter. 

(7) Actions that would result in the 

conversion of aquatic habitats from 

seeps or from ephemeral, periodic, 

intermittent, or permanent flowing 

streams to lake or pond-like 

environments. Such activities could 

include, but are not limited to, creating 

impoundments, digging ponds, or 

excavating channels. These actions 

could eliminate or reduce habitat and 

adversely affect the growth and 

reproduction of the trispot darter. 

(8) Actions that would result in the 

conversion of aquatic habitats to 

terrestrial habitats. Such activities could 

include, but are not limited to, filling 

wetlands, seeps, or ephemeral, periodic, 

intermittent, or permanent flowing 

streams with soil or other material or 

draining wetlands. These actions could 

reduce water quantity to levels below 

the tolerances of the trispot darter. 

(9) Actions that would result in 

decreased connectivity within and 

between suitable spawning and nonspawning habitat for the trispot darter. 

Such activities could include, but are 

not limited to, levee construction; 

transportation projects that span streams 

without consideration for fish passage 

or debris left in seeps; and logging or 

site preparation for development 

without consideration for ephemeral, 

periodic, intermittent, or permanent 

flowing streams. These activities could 

reduce the accessibility to habitat 

necessary for the growth and 

reproduction of the trispot darter and 

adversely affect the species’ ability to 

complete its life cycle. 

Exemptions 

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

The Sikes Act Improvement Act of 

1997 (Sikes Act) (16 U.S.C. 670a) 

required each military installation that 

includes land and water suitable for the 

conservation and management of 

natural resources to complete an 

integrated natural resources 

management plan (INRMP) by 

November 17, 2001. An INRMP 

integrates implementation of the 

military mission of the installation with 

stewardship of the natural resources 

found on the base. Each INRMP 

includes: 

(1) An assessment of the ecological 

needs on the installation, including the 

need to provide for the conservation of 

listed species; 

(2) A statement of goals and priorities; 

(3) A detailed description of 

management actions to be implemented 

to provide for these ecological needs; 

and 

(4) A monitoring and adaptive 

management plan. 

Among other things, each INRMP 

must, to the extent appropriate and 

applicable, provide for fish and wildlife 

management; fish and wildlife habitat 

enhancement or modification; wetland 

protection, enhancement, and 


amozie on DSK3GDR082PROD with PROPOSALS1
Federal Register / Vol. 83, No. 248 / Friday, December 28, 2018 / Proposed Rules 67199 

restoration where necessary to support 

fish and wildlife; and enforcement of 

applicable natural resource laws. 

The National Defense Authorization 

Act for Fiscal Year 2004 (Pub. L. 108– 

136) amended the Act to limit areas 

eligible for designation as critical 

habitat. Specifically, section 4(a)(3)(B)(i) 

of the Act (16 U.S.C. 1533(a)(3)(B)(i)) 

provides that: ‘‘The Secretary shall not 

designate as critical habitat any lands or 

other geographical areas owned or 

controlled by the Department of 

Defense, or designated for its use, that 

are subject to an integrated natural 

resources management plan prepared 

under section 101 of the Sikes Act (16 

U.S.C. 670a), if the Secretary determines 

in writing that such plan provides a 

benefit to the species for which critical 

habitat is proposed for designation.’’ 

We consult with the military on the 

development and implementation of 

INRMPs for installations with listed 

species. We analyze INRMPs developed 

by military installations located within 

the range of the proposed critical habitat 

designation to determine if they meet 

the criteria for exemption from critical 

habitat under section 4(a)(3) of the Act. 

We have determined that there are no 

Department of Defense lands within the 

proposed critical habitat designation. 

Exclusions 

Consideration of Impacts Under Section 

4(b)(2) of the Act 

Section 4(b)(2) of the Act states that 

the Secretary shall designate and make 

revisions to critical habitat on the basis 

of the best available scientific data after 

taking into consideration the economic 

impact, national security impact, and 

any other relevant impact of specifying 

any particular area as critical habitat. 

The Secretary may exclude an area from 

critical habitat if he determines that the 

benefits of such exclusion outweigh the 

benefits of specifying such area as part 

of the critical habitat, unless he 

determines, based on the best scientific 

data available, that the failure to 

designate such area as critical habitat 

will result in the extinction of the 

species. In making that determination, 

the statute on its face, as well as the 

legislative history, are clear that the 

Secretary has broad discretion regarding 

which factors to use and how much 

weight to give to any factor. 

As discussed below, we are not 

proposing to exclude any areas from 

critical habitat. However, the final 

decision on whether to exclude any 

areas will be based on the best scientific 

data available at the time of the final 

designation, including information we 

obtain during the comment period and 

information about the economic impact 

of designation. Accordingly, we have 

prepared a draft economic analysis 

(DEA) concerning the proposed critical 

habitat designation, which is available 

for review and comment (see 

ADDRESSES). 

Consideration of Economic Impacts 

Section 4(b)(2) of the Act and its 

implementing regulations require that 

we consider the economic impact that 

may result from a designation of critical 

habitat. To assess the probable 

economic impacts of a designation, we 

must first evaluate specific land uses or 

activities and projects that may occur in 

the area of the critical habitat. We then 

must evaluate the impacts that a specific 

critical habitat designation may have on 

restricting or modifying specific land 

uses or activities for the benefit of the 

species and its habitat within the areas 

proposed. We then identify which 

conservation efforts may be the result of 

the species being listed under the Act 

versus those attributed solely to the 

designation of critical habitat for this 

particular species. The probable 

economic impact of a proposed critical 

habitat designation is analyzed by 

comparing scenarios both ‘‘with critical 

habitat’’ and ‘‘without critical habitat.’’ 

The ‘‘without critical habitat’’ scenario 

represents the baseline for the analysis, 

which includes the existing regulatory 

and socio-economic burden imposed on 

landowners, managers, or other resource 

users potentially affected by the 

designation of critical habitat (e.g., 

under the Federal listing as well as 

other Federal, State, and local 

regulations). The baseline, therefore, 

represents the costs of all efforts 

attributable to the listing of the species 

under the Act (i.e., conservation of the 

species and its habitat incurred 

regardless of whether critical habitat is 

designated). The ‘‘with critical habitat’’ 

scenario describes the incremental 

impacts associated specifically with the 

designation of critical habitat for the 

species. The incremental conservation 

efforts and associated impacts would 

not be expected without the designation 

of critical habitat for the species. In 

other words, the incremental costs are 

those attributable solely to the 

designation of critical habitat, above and 

beyond the baseline costs. These are the 

costs we use when evaluating the 

benefits of inclusion and exclusion of 

particular areas from the final 

designation of critical habitat should we 

choose to conduct a discretionary 

4(b)(2) exclusion analysis. 

For this designation, we developed an 

incremental effects memorandum (IEM) 

considering the probable incremental 

economic impacts that may result from 

this proposed designation of critical 

habitat. The information contained in 

our IEM was then used to develop a 

screening analysis of the probable 

effects of the designation of critical 

habitat for the trispot darter (IEc 2018, 

entire). The screening analysis enables 

us to focus on the key factors that are 

likely to result in incremental economic 

impacts. Its purpose is to filter out the 

geographic areas in which the critical 

habitat designation is unlikely to result 

in probable incremental economic 

impacts. In particular, the screening 

analysis considers baseline costs (i.e., 

absent critical habitat designation) and 

includes probable economic impacts 

where land and water use may be 

subject to conservation plans, land 

management plans, best management 

practices, or regulations that protect the 

habitat area as a result of the Federal 

listing status of the species. The 

screening analysis filters out particular 

areas of critical habitat that are already 

subject to such protections and are, 

therefore, unlikely to incur incremental 

economic impacts. Ultimately, the 

screening analysis allows us to focus 

our analysis the specific areas or sectors 

that may incur probable incremental 

economic impacts as a result of the 

designation. The screening analysis also 

assesses whether units are unoccupied 

by the species and may require 

additional management or conservation 

efforts as a result of the critical habitat 

designation for the species which may 

incur incremental economic impacts. 

This screening analysis, combined with 

the information contained in our IEM, 

constitutes our draft economic analysis 

(DEA) of the proposed critical habitat 

designation for the trispot darter, which 

is summarized in the narrative below. 

Executive Orders (E.O.s) 12866 and 

13563 direct Federal agencies to assess 

the costs and benefits of available 

regulatory alternatives in quantitative 

(to the extent feasible) and qualitative 

terms. Consistent with the E.O. 

regulatory analysis requirements, our 

effects analysis under the Act may take 

into consideration impacts to both 

directly and indirectly affected entities, 

where practicable and reasonable. If 

sufficient data are available, we assess 

to the extent practicable the probable 

impacts to both directly and indirectly 

affected entities. As part of our 

screening analysis, we considered the 

types of economic activities that are 

likely to occur within the areas likely 

affected by the critical habitat 

designation. In our evaluation of the 

probable incremental economic impacts 

that may result from the proposed 


amozie on DSK3GDR082PROD with PROPOSALS1
67200 Federal Register / Vol. 83, No. 248 / Friday, December 28, 2018 / Proposed Rules 

designation of critical habitat for the 

trispot darter, first we identified, in the 

IEM dated August 8, 2018, probable 

incremental economic impacts 

associated with the following categories 

of activities: (1) Oil and gas; (2) 

agriculture; (3) silviculture/timber; (4) 

development; (5) conservation and 

restoration; (6) renewable energy; (7) inwater construction; and (8) 

transportation. We considered each 

industry or category individually. 

Additionally, we considered whether 

their activities have any Federal 

involvement. Critical habitat 

designation generally will not affect 

activities that do not have any Federal 

involvement; under the Act, designation 

of critical habitat only affects activities 

conducted, funded, permitted, or 

authorized by Federal agencies. 

Beginning on the effective date of the 

final rule listing the trispot darter as a 

threatened species (published elsewhere 

in today’s Federal Register), in areas 

where the trispot darter is present, 

Federal agencies will be required to 

consult with the Service under section 

7 of the Act on activities they fund, 

permit, or implement that may affect the 

species. If we finalize this proposed 

critical habitat designation, 

consultations to avoid the destruction or 

adverse modification of critical habitat 

would be incorporated into that existing 

consultation process. 

In our IEM, we attempted to clarify 

the distinction between the effects that 

will result from the species being listed 

and those attributable to the critical 

habitat designation (i.e., difference 

between the jeopardy and adverse 

modification standards) for the trispot 

darter’s critical habitat. Because the 

designation of critical habitat for trispot 

darter is being proposed at the same 

time as the listing decision is made 

final, it has been our experience that it 

is more difficult to discern which 

conservation efforts are attributable to 

the species being listed and those which 

will result solely from the designation of 

critical habitat. However, the following 

specific circumstances in this case help 

to inform our evaluation: (1) The 

essential physical or biological features 

identified for critical habitat are the 

same features essential for the life 

requisites of the species, and (2) any 

actions that would result in sufficient 

harm or harassment to constitute 

jeopardy to the trispot darter would also 

likely adversely affect the essential 

physical or biological features of critical 

habitat. The IEM outlines our rationale 

concerning this limited distinction 

between baseline conservation efforts 

and incremental impacts of the 

designation of critical habitat for this 

species. This evaluation of the 

incremental effects has been used as the 

basis to evaluate the probable 

incremental economic impacts of this 

proposed designation. 

The proposed critical habitat 

designation for the trispot darter totals 

approximately 181 river mi (291 km) 

and 16,735 ac (6,772 ha), all of which 

is currently occupied by the species. In 

these areas, any actions that may affect 

the species would also affect proposed 

critical habitat, and it is unlikely that 

any additional conservation efforts 

would be recommended to address the 

adverse modification standard over and 

above those recommended as necessary 

to avoid jeopardizing the continued 

existence of the trispot darter. 

Therefore, even though some analysis of 

the impacts of the action of critical 

habitat may be necessary, and this 

additional analysis will require costs in 

time and resources by both the Federal 

action agency and the Service, it is 

believed that, in most circumstances, 

these costs would predominantly be 

administrative in nature and would not 

be significant. We do not expect any 

additional consultations resulting from 

the designation of critical habitat. The 

total annual incremental costs of critical 

habitat designation are anticipated to be 

the additional resources expended in a 

maximum of four section 7 

consultations annually at a cost of 

approximately $13,000 per year. 

As we stated earlier, we are soliciting 

data and comments from the public on 

the DEA, as well as all aspects of this 

proposed rule and our required 

determinations. We may revise this 

proposed rule or supporting documents 

to incorporate or address information 

we receive during the public comment 

period. In particular, under section 

4(b)(2) of the Act and its implementing 

regulations at 50 CFR 424.19, we may 

exclude an area from critical habitat if 

we determine that the benefits of 

excluding the area outweigh the benefits 

of including the area, provided the 

exclusion will not result in the 

extinction of this species. 

Exclusions Based on Economic Impacts 

Under section 4(b)(2) of the Act, we 

consider the economic impacts of 

specifying any particular area as critical 

habitat. As discussed above, we have 

prepared an analysis of the probable 

economic impacts of the proposed 

critical habitat designation and related 

factors. Based on this analysis, the 

Secretary does not propose to exercise 

his discretion to exclude any areas from 

the final designation based on economic 

impacts. 

Exclusions Based on National Security 

Impacts or Homeland Security Impacts 

Under section 4(b)(2) of the Act, we 

also consider whether there are lands 

owned or managed by the Department of 

Defense where a national security 

impact might exist. We have determined 

that the lands within the proposed 

designation of critical habitat for trispot 

darter are not owned or managed by the 

Department of Defense or Department of 

Homeland Security, and, therefore, we 

anticipate no impact on national 

security. Consequently, the Secretary 

does not propose to exercise his 

discretion to exclude any areas from the 

final designation based on impacts on 

national security. 

Exclusions Based on Other Relevant 

Impacts 

Under section 4(b)(2) of the Act, we 

consider any other relevant impacts, in 

addition to economic impacts and 

impacts on national security. We 

consider a number of factors, including 

whether there are permitted 

conservation plans covering the species 

in the area such as HCPs, safe harbor 

agreements, or candidate conservation 

agreements with assurances, or whether 

there are non-permitted conservation 

agreements and partnerships that would 

be encouraged by designation of, or 

exclusion from, critical habitat. In 

addition, we look at the existence of 

tribal conservation plans and 

partnerships and consider the 

government-to-government relationship 

of the United States with tribal entities. 

We also consider any social impacts that 

might occur because of the designation. 

In preparing this proposal, we have 

determined that there are currently no 

HCPs or other management plans for 

trispot darter, and the proposed 

designation does not include any tribal 

lands or trust resources. We anticipate 

no impact on partnerships or HCPs from 

this proposed critical habitat 

designation. Accordingly, the Secretary 

does not intend to exercise his 

discretion to exclude any areas from the 

final designation based on other 

relevant impacts. 

Required Determinations 

Regulatory Planning and Review 

(Executive Orders 12866 and 13563) 

Executive Order 12866 provides that 

the Office of Information and Regulatory 

Affairs (OIRA) will review all significant 

rules. The Office of Information and 

Regulatory Affairs has determined that 

this rule is not significant. 

Executive Order 13563 reaffirms the 

principles of E.O. 12866 while calling 

for improvements in the nation’s 


amozie on DSK3GDR082PROD with PROPOSALS1
Federal Register / Vol. 83, No. 248 / Friday, December 28, 2018 / Proposed Rules 67201 

regulatory system to promote 

predictability, to reduce uncertainty, 

and to use the best, most innovative, 

and least burdensome tools for 

achieving regulatory ends. The 

executive order directs agencies to 

consider regulatory approaches that 

reduce burdens and maintain flexibility 

and freedom of choice for the public 

where these approaches are relevant, 

feasible, and consistent with regulatory 

objectives. E.O. 13563 emphasizes 

further that regulations must be based 

on the best available science and that 

the rulemaking process must allow for 

public participation and an open 

exchange of ideas. We have developed 

this rule in a manner consistent with 

these requirements. 

Executive Order 13771 

This rule is not an E.O. 13771 

(‘‘Reducing Regulation and Controlling 

Regulatory Costs’’) (82 FR 9339, 

February 3, 2017) regulatory action 

because this rule is not significant under 

E.O. 12866. 

Regulatory Flexibility Act (5 U.S.C. 601 

et seq.) 

Under the Regulatory Flexibility Act 

(RFA; 5 U.S.C. 601 et seq.), as amended 

by the Small Business Regulatory 

Enforcement Fairness Act of 1996 

(SBREFA; 5 U.S.C. 801 et seq.), 

whenever an agency is required to 

publish a notice of rulemaking for any 

proposed or final rule, it must prepare 

and make available for public comment 

a regulatory flexibility analysis that 

describes the effects of the rule on small 

entities (i.e., small businesses, small 

organizations, and small government 

jurisdictions). However, no regulatory 

flexibility analysis is required if the 

head of the agency certifies the rule will 

not have a significant economic impact 

on a substantial number of small 

entities. The SBREFA amended the RFA 

to require Federal agencies to provide a 

certification statement of the factual 

basis for certifying that the rule will not 

have a significant economic impact on 

a substantial number of small entities. 

According to the Small Business 

Administration, small entities include 

small organizations such as 

independent nonprofit organizations; 

small governmental jurisdictions, 

including school boards and city and 

town governments that serve fewer than 

50,000 residents; and small businesses 

(13 CFR 121.201). Small businesses 

include manufacturing and mining 

concerns with fewer than 500 

employees, wholesale trade entities 

with fewer than 100 employees, retail 

and service businesses with less than $5 

million in annual sales, general and 

heavy construction businesses with less 

than $27.5 million in annual business, 

special trade contractors doing less than 

$11.5 million in annual business, and 

agricultural businesses with annual 

sales less than $750,000. To determine 

if potential economic impacts to these 

small entities are significant, we 

considered the types of activities that 

might trigger regulatory impacts under 

this designation as well as types of 

project modifications that may result. In 

general, the term ‘‘significant economic 

impact’’ is meant to apply to a typical 

small business firm’s business 

operations. 

The Service’s current understanding 

of the requirements under the RFA, as 

amended, and following recent court 

decisions, is that Federal agencies are 

only required to evaluate the potential 

incremental impacts of rulemaking on 

those entities directly regulated by the 

rulemaking itself and, therefore, are not 

required to evaluate the potential 

impacts to indirectly regulated entities. 

The regulatory mechanism through 

which critical habitat protections are 

realized is section 7 of the Act, which 

requires Federal agencies, in 

consultation with the Service, to ensure 

that any action authorized, funded, or 

carried out by the agency is not likely 

to destroy or adversely modify critical 

habitat. Therefore, under section 7, only 

Federal action agencies are directly 

subject to the specific regulatory 

requirement (avoiding destruction and 

adverse modification) imposed by 

critical habitat designation. 

Consequently, it is our position that 

only Federal action agencies would be 

directly regulated by this designation. 

There is no requirement under RFA to 

evaluate the potential impacts to entities 

not directly regulated. Moreover, 

Federal agencies are not small entities. 

Therefore, because no small entities 

would be directly regulated if we adopt 

this rule as proposed, the Service 

certifies that, if made final, this 

proposed critical habitat designation 

will not have a significant economic 

impact on a substantial number of small 

entities. 

Energy Supply, Distribution, or Use— 

Executive Order 13211 

Executive Order 13211 (Actions 

Concerning Regulations That 

Significantly Affect Energy Supply, 

Distribution, or Use) requires agencies 

to prepare Statements of Energy Effects 

when undertaking certain actions. In 

our economic analysis, we did not find 

that the designation of this proposed 

critical habitat would significantly affect 

energy supplies, distribution, or use. 

Therefore, this action is not a significant 

energy action, and no Statement of 

Energy Effects is required. 

Unfunded Mandates Reform Act (2 

U.S.C. 1501 et seq.) 

In accordance with the Unfunded 

Mandates Reform Act (2 U.S.C. 1501 et 

seq.), we make the following findings: 

(1) This rule would not produce a 

Federal mandate. In general, a Federal 

mandate is a provision in legislation, 

statute, or regulation that would impose 

an enforceable duty upon State, local, or 

tribal governments, or the private sector, 

and includes both ‘‘Federal 

intergovernmental mandates’’ and 

‘‘Federal private sector mandates.’’ 

These terms are defined in 2 U.S.C. 

658(5)-(7). ‘‘Federal intergovernmental 

mandate’’ includes a regulation that 

‘‘would impose an enforceable duty 

upon State, local, or tribal governments’’ 

with two exceptions. It excludes ‘‘a 

condition of Federal assistance.’’ It also 

excludes ‘‘a duty arising from 

participation in a voluntary Federal 

program,’’ unless the regulation ‘‘relates 

to a then-existing Federal program 

under which $500,000,000 or more is 

provided annually to State, local, and 

tribal governments under entitlement 

authority,’’ if the provision would 

‘‘increase the stringency of conditions of 

assistance’’ or ‘‘place caps upon, or 

otherwise decrease, the Federal 

Government’s responsibility to provide 

funding,’’ and the State, local, or tribal 

governments ‘‘lack authority’’ to adjust 

accordingly. At the time of enactment, 

these entitlement programs were: 

Medicaid; Aid to Families with 

Dependent Children work programs; 

Child Nutrition; Food Stamps; Social 

Services Block Grants; Vocational 

Rehabilitation State Grants; Foster Care, 

Adoption Assistance, and Independent 

Living; Family Support Welfare 

Services; and Child Support 

Enforcement. ‘‘Federal private sector 

mandate’’ includes a regulation that 

‘‘would impose an enforceable duty 

upon the private sector, except (i) a 

condition of Federal assistance or (ii) a 

duty arising from participation in a 

voluntary Federal program.’’ 

The designation of critical habitat 

does not impose a legally binding duty 

on non-Federal Government entities or 

private parties. Under the Act, the only 

regulatory effect is that Federal agencies 

must ensure that their actions do not 

destroy or adversely modify critical 

habitat under section 7. While nonFederal entities that receive Federal 

funding, assistance, or permits, or that 

otherwise require approval or 

authorization from a Federal agency for 

an action, may be indirectly impacted 

by the designation of critical habitat, the 


amozie on DSK3GDR082PROD with PROPOSALS1
67202 Federal Register / Vol. 83, No. 248 / Friday, December 28, 2018 / Proposed Rules 

legally binding duty to avoid 

destruction or adverse modification of 

critical habitat rests squarely on the 

Federal agency. Furthermore, to the 

extent that non-Federal entities are 

indirectly impacted because they 

receive Federal assistance or participate 

in a voluntary Federal aid program, the 

Unfunded Mandates Reform Act would 

not apply, nor would critical habitat 

shift the costs of the large entitlement 

programs listed above onto State 

governments. 

(2) We do not believe that this rule 

would significantly or uniquely affect 

small governments because the lands 

being proposed for critical habitat 

designation are Federally or privately 

owned, or owned by the States of 

Alabama, Georgia, and Tennessee. 

These government entities do not fit the 

definition of ‘‘small governmental 

jurisdiction.’’ Therefore, a Small 

Government Agency Plan is not 

required. 

Takings—Executive Order 12630 

In accordance with E.O. 12630 

(Government Actions and Interference 

with Constitutionally Protected Private 

Property Rights), we have analyzed the 

potential takings implications of 

designating critical habitat for trispot 

darter in a takings implications 

assessment. The Act does not authorize 

the Service to regulate private actions 

on private lands or confiscate private 

property as a result of critical habitat 

designation. Designation of critical 

habitat does not affect land ownership, 

or establish any closures, or restrictions 

on use of or access to the designated 

areas. Furthermore, the designation of 

critical habitat does not affect 

landowner actions that do not require 

Federal funding or permits, nor does it 

preclude development of habitat 

conservation programs or issuance of 

incidental take permits to permit actions 

that do require Federal funding or 

permits to go forward. However, Federal 

agencies are prohibited from carrying 

out, funding, or authorizing actions that 

would destroy or adversely modify 

critical habitat. A takings implications 

assessment has been completed and 

concludes that this designation of 

critical habitat for trispot darter would 

not pose significant takings implications 

for lands within or affected by the 

designation. 

Federalism—Executive Order 13132 

In accordance with E.O. 13132 

(Federalism), this proposed rule does 

not have significant Federalism effects. 

A federalism summary impact statement 

is not required. In keeping with 

Department of the Interior and 

Department of Commerce policy, we 

requested information from, and 

coordinated development of this 

proposed critical habitat designation 

with, appropriate State resource 

agencies in Alabama, Georgia, and 

Tennessee. From a federalism 

perspective, the designation of critical 

habitat directly affects only the 

responsibilities of Federal agencies. The 

Act imposes no other duties with 

respect to critical habitat, either for 

States and local governments, or for 

anyone else. As a result, the rule would 

not have substantial direct effects either 

on the States, or on the relationship 

between the national government and 

the States, or on the distribution of 

powers and responsibilities among the 

various levels of government. The 

designation may have some benefit to 

these governments because the areas 

that contain the features essential to the 

conservation of the species are more 

clearly defined, and the physical or 

biological features of the habitat 

necessary to the conservation of the 

species are specifically identified. This 

information does not alter where and 

what federally sponsored activities may 

occur. However, it may assist these local 

governments in long-range planning 

(because these local governments no 

longer have to wait for case-by-case 

section 7 consultations to occur). 

Where State and local governments 

require approval or authorization from a 

Federal agency for actions that may 

affect critical habitat, consultation 

under section 7(a)(2) would be required. 

While non-Federal entities that receive 

Federal funding, assistance, or permits, 

or that otherwise require approval or 

authorization from a Federal agency for 

an action, may be indirectly impacted 

by the designation of critical habitat, the 

legally binding duty to avoid 

destruction or adverse modification of 

critical habitat rests squarely on the 

Federal agency. 

Civil Justice Reform—Executive Order 

12988 

In accordance with Executive Order 

12988 (Civil Justice Reform), the Office 

of the Solicitor has determined that the 

rule does not unduly burden the judicial 

system and that it meets the 

requirements of sections 3(a) and 3(b)(2) 

of the Order. We have proposed 

designating critical habitat in 

accordance with the provisions of the 

Act. To assist the public in 

understanding the habitat needs of the 

species, the rule identifies the elements 

of physical or biological features 

essential to the conservation of the 

species. The proposed critical habitat 

units are presented on maps, and the 

rule provides several options for the 

interested public to obtain more 

detailed location information, if desired. 

Paperwork Reduction Act of 1995 (44 

U.S.C. 3501 et seq.) 

This rule does not contain any new 

collections of information that require 

approval by the Office of Management 

and Budget (OMB) under the Paperwork 

Reduction Act of 1995 (44 U.S.C. 3501 

et seq.). This rule will not impose 

recordkeeping or reporting requirements 

on State or local governments, 

individuals, businesses, or 

organizations. An agency may not 

conduct or sponsor, and a person is not 

required to respond to, a collection of 

information unless it displays a 

currently valid OMB control number. 

National Environmental Policy Act (42 

U.S.C. 4321 et seq.) 

It is our position that, outside the 

jurisdiction of the U.S. Court of Appeals 

for the Tenth Circuit, we do not need to 

prepare environmental analyses 

pursuant to the National Environmental 

Policy Act in connection with 

designating critical habitat under the 

Act. We published a notice outlining 

our reasons for this determination in the 

Federal Register on October 25, 1983 

(48 FR 49244). This position was upheld 

by the U.S. Court of Appeals for the 

Ninth Circuit (Douglas County v. 

Babbitt, 48 F.3d 1495 (9th Cir. 1995), 

cert. denied 516 U.S. 1042 (1996)). 

Government-to-Government 

Relationship With Tribes 

In accordance with the President’s 

memorandum of April 29, 1994 

(Government-to-Government Relations 

with Native American Tribal 

Governments; 59 FR 22951), Executive 

Order 13175 (Consultation and 

Coordination With Indian Tribal 

Governments), and the Department of 

the Interior’s manual at 512 DM 2, we 

readily acknowledge our responsibility 

to communicate meaningfully with 

recognized Federal Tribes on a 

government-to-government basis. In 

accordance with Secretarial Order 3206 

of June 5, 1997 (American Indian Tribal 

Rights, Federal-Tribal Trust 

Responsibilities, and the Endangered 

Species Act), we readily acknowledge 

our responsibilities to work directly 

with tribes in developing programs for 

healthy ecosystems, to acknowledge that 

tribal lands are not subject to the same 

controls as Federal public lands, to 

remain sensitive to Indian culture, and 

to make information available to tribes. 

We have determined that no tribal lands 

would be affected by this designation. 


amozie on DSK3GDR082PROD with PROPOSALS1
Federal Register / Vol. 83, No. 248 / Friday, December 28, 2018 / Proposed Rules 67203 

Clarity of the Rule 

We are required by Executive Orders 

12866 and 12988 and by the 

Presidential Memorandum of June 1, 

1998, to write all rules in plain 

language. This means that each rule we 

publish must: 

(1) Be logically organized; 

(2) Use the active voice to address 

readers directly; 

(3) Use clear language rather than 

jargon; 

(4) Be divided into short sections and 

sentences; and 

(5) Use lists and tables wherever 

possible. 

If you feel that we have not met these 

requirements, send us comments by one 

of the methods listed in ADDRESSES. To 

better help us revise the rule, your 

comments should be as specific as 

possible. For example, you should tell 

us the numbers of the sections or 

paragraphs that are unclearly written, 

which sections or sentences are too 

long, the sections where you feel lists or 

tables would be useful, etc. 

Authors 

The primary authors of this proposed 

rule are the staff members of the U.S. 

Fish and Wildlife Service Species 

Assessment Team and Alabama 

Ecological Services Field Office. 

List of Subjects in 50 CFR Part 17 

Endangered and threatened species, 

Exports, Imports, Reporting and 

recordkeeping requirements, 

Transportation. 

Proposed Regulation Promulgation 

Accordingly, we propose to amend 

part 17, subchapter B of chapter I, title 

50 of the Code of Federal Regulations, 

as set forth below: 

PART 17—ENDANGERED AND 

THREATENED WILDLIFE AND PLANTS 

■ 1. The authority citation for part 17 

continues to read as follows: 

Authority: 16 U.S.C. 1361–1407; 1531– 

1544; and 4201–4245, unless otherwise 

noted. 

■ 2. Amend § 17.95(e) by adding an 

entry for ‘‘Trispot Darter (Etheostoma 

trisella)’’ immediately following the 

entry for Slackwater Darter (Etheostoma 

boschungi), to read as set forth below: 

§ 17.95 Critical habitat—fish and wildlife. 

* * * * * 

(e) Fishes. 

* * * * * 

Trispot Darter (Etheostoma trisella) 

(1) Critical habitat units are depicted 

for St. Clair, Etowah, Cherokee, and 

Calhoun Counties, Alabama; Whitfield, 

Murray, and Gordon Counties, Georgia; 

and Polk and Bradley Counties, 

Tennessee, on the maps in this entry. 

(2) Within these areas, the physical or 

biological features essential to the 

conservation of the trispot darter consist 

of the following components: 

(i) Geomorphically stable, small to 

medium streams with: 

(A) Detritus, woody debris, and stands 

of water willow (Justicia americana) 

over stream substrate that consists of 

small cobble, pebbles, gravel, and fine 

layers of silt; and 

(B) Intact riparian cover to maintain 

stream morphology and reduce erosion 

and sediment inputs. 

(ii) Adequate seasonal water flows, or 

a hydrologic flow regime (which 

includes the severity, frequency, 

duration, and seasonality of discharge 

over time) necessary to maintain 

appropriate benthic habitats and to 

maintain and create connectivity 

between permanently flowing streams 

with associated streams that hold water 

from November through April, 

providing connectivity between the 

darter’s spawning and summer areas. 

(iii) Water and sediment quality 

(including, but not limited to, 

conductivity; hardness; turbidity; 

temperature; pH; ammonia; heavy 

metals; pesticides; animal waste 

products; and nitrogen, phosphorus, 

and potassium fertilizers) necessary to 

sustain natural physiological processes 

for normal behavior, growth, and 

viability of all life stages. 

(iv) Prey base of aquatic 

macroinvertebrates. 

(3) Critical habitat does not include 

manmade structures (such as buildings, 

aqueducts, runways, roads, and other 

paved areas) and the land on which they 

are located existing within the legal 

boundaries on the effective date of this 

rule. 

(4) Critical habitat map units. The 

hydrologic data used in the critical 

habitat maps were extracted from the 

U.S. Geological Survey’s 1:1M scale 

nationwide hydrologic layer with a 

projection of EPSG:4269–NAD83 

Geographic. The maps in this entry, as 

modified by any accompanying 

regulatory text, establish the boundaries 

of the critical habitat designation. The 

coordinates or plot points or both on 

which each map is based are available 

to the public at the Service’s internet 

site at https://www.fws.gov/daphne/, at 

http://www.regulations.gov under 

Docket No. FWS–R4–ES–2018–0073, 

and at the field office responsible for 

this designation. You may obtain field 

office location information by 

contacting one of the Service regional 

offices, the addresses of which are listed 

at 50 CFR 2.2. 

BILLING CODE 4333–15–P 


amozie on DSK3GDR082PROD with PROPOSALS1
67204 Federal Register / Vol. 83, No. 248 / Friday, December 28, 2018 / Proposed Rules 

(5) Note: Index map follows: 


amozie on DSK3GDR082PROD with PROPOSALS1EP28DE18.001</GPH>
Federal Register / Vol. 83, No. 248 / Friday, December 28, 2018 / Proposed Rules 67205 

(6) Unit 1: Big Canoe Creek, St. Clair 

County, Alabama. Map of Unit 1 

follows: 


amozie on DSK3GDR082PROD with PROPOSALS1EP28DE18.002</GPH>

1:90,974 
67206 Federal Register / Vol. 83, No. 248 / Friday, December 28, 2018 / Proposed Rules 

(7) Unit 2: Ballplay Creek, Etowah, 

Cherokee, and Calhoun Counties, 

Alabama. Map of Unit 2 follows: 


amozie on DSK3GDR082PROD with PROPOSALS1EP28DE18.003</GPH>

\ 
Federal Register / Vol. 83, No. 248 / Friday, December 28, 2018 / Proposed Rules 67207 

(8) Unit 3: Conasauga River, Whitfield 

and Murray Counties, Georgia, and Polk 

and Bradley Counties, Tennessee. Map 

of Unit 3 follows: 


amozie on DSK3GDR082PROD with PROPOSALS1EP28DE18.004</GPH>
67208 Federal Register / Vol. 83, No. 248 / Friday, December 28, 2018 / Proposed Rules 

(9) Unit 4: Mill Creek, Whitfield 

County, Georgia. Map of Unit 4 follows: 


amozie on DSK3GDR082PROD with PROPOSALS1EP28DE18.005</GPH>

~ US lnt<=;r!!ot~lte:<~ 

Stale Bo1Jnc1erv 

Streams 
Federal Register / Vol. 83, No. 248 / Friday, December 28, 2018 / Proposed Rules 67209 

(10) Unit 5: Coahulla Creek, Whitfield 

County, Georgia, and Bradley County, 

Tennessee. Map of Unit 5 follows: 


amozie on DSK3GDR082PROD with PROPOSALS1EP28DE18.006</GPH>

Streams 
67210 Federal Register / Vol. 83, No. 248 / Friday, December 28, 2018 / Proposed Rules 

(11) Unit 6: Coosawattee River, 

Gordon and Murray Counties, Georgia. 

Map of Unit 6 follows: 

* * * * * Dated: October 26, 2018. 

James W. Kurth, 

Deputy Director, U.S. Fish and Wildlife 

Service, Exercising the Authority of the 

Director, U.S. Fish and Wildlife Service. 

[FR Doc. 2018–27976 Filed 12–27–18; 8:45 am] 

BILLING CODE 4333–15–C 


amozie on DSK3GDR082PROD with PROPOSALS1EP28DE18.007</GPH>