[Federal Register Volume 85, Number 190 (Wednesday, September 30, 2020)]
[Rules and Regulations]
[Pages 61614-61619]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-19109]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
[Docket No. FWS-R4-ES-2018-0074; FF09E21000 FXES11110900000 201]
RIN 1018-BD43
Endangered and Threatened Wildlife and Plants; Section 4(d) Rule
for Trispot Darter
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Final rule.
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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), adopt a rule
under section 4(d) of the Endangered Species Act of 1973 (Act), as
amended, for the trispot darter (Etheostoma trisella), a fish from
Alabama, Georgia, and Tennessee. This rule provides measures that are
necessary and advisable to conserve the species.
DATES: This rule is effective October 30, 2020.
ADDRESSES: This final rule is available on the internet at http://www.regulations.gov under Docket No. FWS-R4-ES-2018-0074 and at https://www.fws.gov/southeast/. Comments and materials we received, as well as
supporting documentation we used in preparing this rule, are available
for public inspection at http://www.regulations.gov under Docket No.
FWS-R4-ES-2018-0074.
FOR FURTHER INFORMATION CONTACT: William Pearson, Field Supervisor,
U.S. Fish and Wildlife Service, Alabama Ecological Services Field
Office, 1208-B Main Street, Daphne, AL 36526; telephone 251-441-5870.
Persons who use a telecommunications device for the deaf (TDD) may call
the Federal Relay Service at 800-877-8339.
SUPPLEMENTARY INFORMATION:
Previous Federal Actions
On October 4, 2017, we published in the Federal Register (82 FR
46183) a proposed rule to list the trispot darter as a threatened
species under the Act (16 U.S.C. 1531 et seq.). On December 28, 2018,
we published the following documents in the Federal Register: (1) The
final rule listing the trispot darter as a threatened species (83 FR
67131), (2) the proposed rule to provide measures necessary and
advisable to conserve the species under section 4(d) of the Act (a
``4(d) rule'') for the species (83 FR 67185), and (3) the proposed rule
to designate critical habitat for the species (83 FR 67190). Elsewhere
in today's Federal Register, we issue a final rule to designate
critical habitat for the trispot darter. Please see these documents for
additional previous Federal actions affecting the trispot darter.
Summary of Changes From the Proposed Rule
This final rule incorporates one change to our proposed rule based
on the comments we received. Specifically, we replaced the term
``highest-standard best management practices'' with the term ``State
best management practices.''
In addition, in this rule, we change the way in which the
provisions of the 4(d) rule for the trispot darter appear in 50 CFR
17.44 from what we proposed; here, we do not refer to the prohibitions
and provisions set forth in section 9(a)(1) of the Act. Instead, we
refer to the prohibitions set forth at 50 CFR 17.21, which apply to
endangered species. However, the substance of the prohibitions, and
exceptions to those prohibitions, in the 4(d) rule for the trispot
darter have not changed.
Background
The trispot darter is a small-bodied, freshwater fish found in the
Coosa River System, above the fall line in the Ridge and Valley of
Alabama, Georgia, and Tennessee. It is a migratory species that uses
distinct breeding and nonbreeding habitats. From approximately April to
October, the species inhabits its nonbreeding habitat, which consists
of small to medium river margins and lower reaches of tributaries with
slower velocities. After October, trispot darters move from the main
channels into tributaries, eventually reaching adjacent seepage areas
where they 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 and shallow depths (12 inches (30
centimeters) or less).
For a full summary of species information, please refer to the
October 4, 2017, proposed listing rule (82 FR 46183) and the species
status assessment (SSA) report for the trispot darter (Service 2018,
entire). Both documents are available at http://www.regulations.gov
under Docket No. FWS-R4-ES-2017-0063, and on the Service's South
Atlantic-Gulf Region website at https://www.fws.gov/southeast/.
[[Page 61615]]
Summary of Comments and Recommendations
On December 28, 2018, we proposed a 4(d) rule for the trispot
darter (83 FR 67185). We accepted public comments on the proposed 4(d)
rule for 60 days, ending February 26, 2019. During the comment period,
we received 13 comments addressing the proposed 4(d) rule. Eight of the
comments supported the general protections of the proposed 4(d) rule,
and five explicitly expressed support for our conservation strategy of
sustainable forest management and best management practices. None of
the comments opposed the proposed 4(d) rule. All substantive
information provided during the comment period has either been
incorporated directly into this final rule or is addressed in our
responses below.
State Comments
Comment: The Alabama Forestry Commission commented that limiting
silvicultural and forest management activities to May 1 through
December 31 is concerning and may be unnecessary with BMP compliance.
Our Response: The 4(d) rule identifies actions that are prohibited
in order to protect the darter, as well as actions that are excluded
from those prohibitions, including certain forest management
activities. Because trispot darters spawn from January through April,
making this the most sensitive period of the species' lifecycle, the
exclusions for forest management activities in spawning habitat apply
only from May 1 through December 31. During the spawning period, the
exclusions do not apply in areas where spawning habitat is present;
however, in non-spawning habitat, the exclusions apply year-round. In
some cases, silvicultural and forest management activities may still be
undertaken in areas that are spawning habitat during the spawning
season, as long as there is consultation with the Service under section
7 of the Act or a conservation agreement under section 10 of the Act.
Performing silvicultural and forest management activities in the range
of the trispot darter between May 1 and December 31, while applying
State best management practices, will not adversely affect, and may
provide conservation benefits for, the species.
Public Comments
Comment: In regard to silviculture practices or forest management
activities, we received three public comments and one comment from the
Alabama Forestry Commission concerning our use of the term ``highest-
standard best management practices.'' Specifically, one public
commenter requested clarification of the term, and two other public
commenters requested amending the term to ``State best management
practices.'' The State agency commented that Alabama's best management
practices for forestry clearly state that stream management zones,
stream crossings, and forest roads must always be sufficient in design
and filtering capacity to not impact water quality and passage of
aquatic species. Thus, complying with Alabama's best management
practices should ensure water quality and the reference for the need to
``implement the highest-standard best management practices'' is not
needed.
Our Response: Best management practices can change over time as new
scientific and commercial information becomes available. Therefore,
rather than specifying a particular set of best management practices,
we interpreted ``highest-standard best management practices'' to refer
to the most stringent ones available at the time of project
implementation. To clarify the terminology, we removed the term
``highest-standard'' and now refer to these practices (the most
stringent ones currently available) as ``State best management
practices,'' which constitute the highest standard.
Final Rule Issued Under Section 4(d) of the Act
Background
Section 4(d) of the Act contains two sentences. The first sentence
states that the ``Secretary shall issue such regulations as he deems
necessary and advisable to provide for the conservation'' of species
listed as threatened. The U.S. Supreme Court has noted that statutory
language like ``necessary and advisable'' demonstrates a large degree
of deference to the agency (see Webster v. Doe, 486 U.S. 592 (1988)).
Conservation is defined in the Act to mean ``the use of all methods and
procedures which are necessary to bring any endangered species or
threatened species to the point at which the measures provided pursuant
to [the Act] are no longer necessary.'' Additionally, the second
sentence of section 4(d) of the Act states that the Secretary ``may by
regulation prohibit with respect to any threatened species any act
prohibited under section 9(a)(1), in the case of fish or wildlife, or
9(a)(2), in the case of plants.'' Thus, the combination of the two
sentences of section 4(d) of the Act provide the Secretary with wide
latitude of discretion to select and promulgate appropriate regulations
tailored to the specific conservation needs of the threatened species.
The second sentence grants particularly broad discretion to the Service
when adopting the prohibitions under section 9.
The courts have recognized the extent of the Secretary's discretion
under this standard to develop rules that are appropriate for the
conservation of a species. For example, courts have upheld rules
developed under section 4(d) as a valid exercise of agency authority
where they prohibited take of threatened wildlife, or include a limited
taking prohibition (see Alsea Valley Alliance v. Lautenbacher, 2007
U.S. Dist. Lexis 60203 (D. Or. 2007); Washington Environmental Council
v. National Marine Fisheries Service, 2002 U.S. Dist. Lexis 5432 (W.D.
Wash. 2002)). Courts have also upheld 4(d) rules that do not address
all of the threats a species faces (see State of Louisiana v. Verity,
853 F.2d 322 (5th Cir. 1988)). As noted in the legislative history when
the Act was initially enacted, ``once an animal is on the threatened
list, the Secretary has an almost infinite number of options available
to him with regard to the permitted activities for those species. He
may, for example, permit taking, but not importation of such species,
or he may choose to forbid both taking and importation but allow the
transportation of such species'' (H.R. Rep. No. 412, 93rd Cong., 1st
Sess. 1973).
Exercising its authority under section 4(d), the Service has
developed a final rule for the trispot darter that is designed to
address the species' specific threats and conservation needs. Although
the statute does not require the Service to make a ``necessary and
advisable'' finding with respect to the adoption of specific
prohibitions under section 9, we find that this final 4(d) rule as a
whole satisfies the requirement in section 4(d) of the Act to issue
regulations deemed necessary and advisable to provide for the
conservation of the trispot darter. As discussed in the final listing
rule (83 FR 67131; December 28, 2018), the Service has concluded that
the trispot darter is likely to become in danger of extinction within
the foreseeable future primarily due to threats that degrade instream
habitat and reduce water quality and water quantity, all which reduce
connectivity between populations. The provisions of this final 4(d)
rule promote conservation of the trispot darter by encouraging
management of stream systems and the landscapes they drain while also
meeting land use management considerations. The provisions of this
final 4(d) rule are one of many tools that the Service will use
[[Page 61616]]
to promote the conservation of the trispot darter.
Provisions of the 4(d) Rule for Trispot Darter
This final 4(d) rule provides for the conservation of the trispot
darter by prohibiting the following activities, except as otherwise
authorized or permitted: Importing or exporting; take; possession and
other acts with unlawfully taken specimens; delivering, receiving,
transporting, or shipping in interstate or foreign commerce in the
course of commercial activity; and selling or offering for sale in
interstate or foreign commerce. We also include several standard
exclusions to these prohibitions, which are set forth under Regulation
Promulgation, below, as well as some species-specific exclusions.
As discussed in the final listing rule (83 FR 67131) a range of
natural and anthropogenic factors that affect aquatic systems may
impact the status of the trispot darter. The largest threat to the
future viability of the species is habitat degradation from stressors
that influence four habitat elements: water quality, water quantity,
instream habitat, and habitat connectivity. These stressors include
hydrologic alteration, sedimentation, loss of connectivity, loss of
riparian vegetation, contaminants entering the water system due to
agricultural activities (such as excessive poultry litter and livestock
entering streams), and urbanization within the watersheds inhabited by
the species. Regulating these activities would reduce their combined
negative effects, providing for the conservation of the trispot darter
by helping to preserve remaining populations.
Conservation actions that benefit the trispot darter include
habitat restoration and protection. Additionally, conservation may be
achieved through augmentation of populations to increase their size
(number of individuals), which increases resiliency to adverse events
such as storms and droughts, inadvertent runoff of pollutants and
sediment, and contaminant spills. This rule provides exceptions from
the Act's incidental take prohibitions, accommodating species
restoration efforts by State wildlife agencies, channel restoration
projects, and streambank stabilization projects. Further, this rule
enhances habitat protection, by providing exceptions to incidental take
provisions for silviculture and forest management that implement best
management practices; transportation projects that provide for fish
passage in waters occupied by the trispot darter; and projects carried
out under the Working Lands for Wildlife program of the Natural
Resources Conservation Service, U.S. Department of Agriculture. The
provisions in this rule for channel restoration and habitat protection
can occur only between May 1 and December 31, to avoid the trispot
darter's spawning period, when seasonal spawning areas are wetted. This
curtails the likelihood of incidental take occurring. Although the
exceptions for certain activities may result in some minimal level of
harm or temporary disturbance to the trispot darter, overall, these
activities benefit the species by contributing to conservation and
recovery.
The provisions in this rule are necessary and advisable because the
species needs active conservation to improve the quality of its habitat
and, absent protections, the species is likely to become in danger of
extinction within the foreseeable future. These provisions can
encourage cooperation by landowners and other affected parties in
implementing conservation measures. This allows for use of the land
while at the same time ensuring the preservation of suitable habitat
and minimizing impact on the species.
Under the Act, ``take'' means to harass, harm, pursue, hunt, shoot,
wound, kill, trap, capture, or collect, or to attempt to engage in any
such conduct. Some of these provisions have been further defined in
regulation at 50 CFR 17.3. Take can result knowingly or otherwise, by
direct and indirect impacts, intentionally or incidentally. Regulating
intentional and incidental take under this 4(d) rule will help preserve
the species' remaining populations; enable beneficial management
actions to occur; and decrease synergistic, negative effects from other
stressors.
We may issue permits to carry out otherwise prohibited activities,
including those described above, involving threatened wildlife under
certain circumstances. Regulations governing permits are codified at 50
CFR 17.32. With regard to threatened wildlife, a permit may be issued
for the following purposes: For scientific purposes, to enhance
propagation or survival, for economic hardship, for zoological
exhibition, for educational purposes, for incidental taking, or for
special purposes consistent with the purposes of the Act. There are
also certain statutory exemptions from the prohibitions, which are
found in sections 9 and 10 of the Act.
The Service recognizes the special and unique relationship with our
State natural resource agency partners in contributing to conservation
of listed species. State agencies often possess scientific data and
valuable expertise on the status and distribution of endangered,
threatened, and candidate species of wildlife and plants. State
agencies, because of their authorities and their close working
relationships with local governments and landowners, are in a unique
position to assist the Services in implementing all aspects of the Act.
In this regard, section 6 of the Act provides that the Services shall
cooperate to the maximum extent practicable with the States in carrying
out programs authorized by the Act. Therefore, any qualified employee
or agent of a State conservation agency that is a party to a
cooperative agreement with the Service in accordance with section 6(c)
of the Act, who is designated by his or her agency for such purposes,
would be able to conduct activities designed to conserve trispot darter
that may result in otherwise prohibited take without additional
authorization.
Nothing in this 4(d) rule changes in any way the recovery planning
provisions of section 4(f) of the Act, the consultation requirements
under section 7 of the Act, or the ability of the Service to enter into
partnerships for the management and protection of the trispot darter.
However, interagency cooperation may be further streamlined through
planned programmatic consultations for the species between Federal
agencies and the Service.
Required Determinations
Regulatory Planning and Review (Executive Orders 12866 and 13563)
Executive Order (E.O.) 12866 provides that the Office of
Information and Regulatory Affairs (OIRA) in the Office of Management
and Budget will review all significant rules. OIRA has determined that
this rule is not significant.
E.O. 13563 reaffirms the principles of E.O. 12866 while calling for
improvements in the nation's regulatory system to promote
predictability, to reduce uncertainty, and to use the best, most
innovative, and least burdensome tools for achieving regulatory ends.
The executive order directs agencies to consider regulatory approaches
that reduce burdens and maintain flexibility and freedom of choice for
the public where these approaches are relevant, feasible, and
consistent with regulatory objectives. E.O. 13563 emphasizes further
that regulations must be based on the best available science and that
the rulemaking process must allow for public participation and an open
exchange of ideas. We have developed
[[Page 61617]]
this final 4(d) rule in a manner consistent with these requirements.
Regulatory Flexibility Act (5 U.S.C. 601 et seq.)
Under the Regulatory Flexibility Act (RFA; 5 U.S.C. 601 et seq.),
as amended by the Small Business Regulatory Enforcement Fairness Act of
1996 (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. Thus, for a regulatory flexibility analysis
to be required, impacts must exceed a threshold for ``significant
impact'' and a threshold for a ``substantial number of small
entities.'' See 5 U.S.C. 605(b). Based on the information that is
available to us at this time, we certify that this rule will not have a
significant economic impact on a substantial number of small entities.
The following discussion explains our rationale.
On December 28, 2018, we published the final rule listing the
trispot darter as a threatened species (83 FR 67131). In this issue of
the Federal Register, we publish (1) this final rule to establish a
4(d) rule for the trispot darter, and (2) a final rule designating
critical habitat for the species. Any economic impacts resulting from
these three final rules under the Act stem from listing the trispot
darter and designating its critical habitat rather than this 4(d) rule.
This 4(d) rule will not add to any costs due to section 7 consultation
for the species and its critical habitat because, while this rule
establishes prohibitions on acts with regard to the trispot darter, it
also provides exceptions to those prohibitions. These exceptions will
reduce the amount of time, and therefore costs, to complete
consultations because the effects of the activities excepted by the
4(d) rule will not require analysis during those consultations.
Therefore, a final regulatory flexibility analysis is not required.
Executive Order 13771
This rule is not an Executive Order (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.
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
actions that significantly affect energy supply, distribution, or use.
This rule will not have any significant effect, nor is it likely to
have any effect, on energy supplies, distribution, or use. Therefore,
this action is not a significant energy action, and no Statement of
Energy Effects is required.
Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.)
In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501
et seq.), we make the following finding:
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.''
This rule will not impose an unfunded mandate on State, local, or
tribal governments, or the private sector of more than $100 million per
year. The rule will not have a significant or unique effect on State,
local, or tribal governments or the private sector. A statement
containing the information required by the Unfunded Mandates Reform Act
(2 U.S.C. 1501 et seq.) is not required.
Takings--Executive Order 12630
In accordance with Executive Order 12630 (Government Actions and
Interference with Constitutionally Protected Private Property Rights),
this rule does not have significant takings implications. We have
determined that the rule has no potential takings of private property
implications as defined by this Executive Order because this 4(d) rule,
with limited exceptions, maintains the regulatory status quo regarding
activities currently allowed under the Endangered Species Act. A
takings implication assessment is not required.
Federalism--Executive Order 13132
In accordance with E.O. 13132 (Federalism), this 4(d) rule does not
have significant Federalism effects. A federalism summary impact
statement is not required. This rule will not have substantial direct
effects on the States, on the relationship between the Federal
government and the States, or on the distribution of powers and
responsibilities among the various levels of government.
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 issue this 4(d) rule in
accordance with the provisions of the Act. To assist the public in
understanding the conservation needs of the species, the rule
identifies the prohibitions and exclusions to those prohibitions that
are necessary and advisable to the conservation of the species.
[[Page 61618]]
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.)
This rule does not contain information collection requirements, and
a submission to the Office of Management and Budget (OMB) under the
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.) is not
required. We may not conduct or sponsor and you are not required to
respond to a collection of information unless it displays a currently
valid OMB control number.
National Environmental Policy Act (42 U.S.C. 4321 et seq.)
We have prepared a final environmental assessment, as defined under
the authority of the National Environmental Policy Act of 1969. For
information on how to obtain a copy of the final environmental
assessment, see ADDRESSES, above.
Government-to-Government Relationships 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
interests will be affected by this rule.
References Cited
A complete list of references cited in this rulemaking is available
on the internet at http://www.regulations.gov and upon request from the
Alabama Ecological Services Field Office (see FOR FURTHER INFORMATION
CONTACT).
Authors
The primary authors of this rule are the staff members of the Fish
and Wildlife Service's Species Assessment Team and the Alabama
Ecological Services Field Office.
List of Subjects in 50 CFR Part 17
Endangered and threatened species, Exports, Imports, Reporting and
recordkeeping requirements, Transportation.
Regulation Promulgation
Accordingly, we amend part 17, subchapter B of chapter I, title 50
of the Code of Federal Regulations, as follows:
PART 17--ENDANGERED AND THREATENED WILDLIFE AND PLANTS
0
1. The authority citation for part 17 continues to read as follows:
Authority: 16 U.S.C. 1361-1407; 1531-1544; and 4201-4245,
unless otherwise noted.
0
2. Amend Sec. 17.11 in paragraph (h) by revising the entry for
``Darter, trispot'' under FISHES in the List of Endangered and
Threatened Wildlife to read as set forth below.
Sec. 17.11 Endangered and threatened wildlife.
* * * * *
(h) * * *
----------------------------------------------------------------------------------------------------------------
Listing citations and
Common name Scientific name Where listed Status applicable rules
----------------------------------------------------------------------------------------------------------------
* * * * * * *
Fishes
* * * * * * *
Darter, trispot................. Etheostoma Wherever found.... T 83 FR 67131, 12/28/
trisella. 2018; 50 CFR 17.44(q);
\4d\ 50 CFR
17.95(e).\CH\
* * * * * * *
----------------------------------------------------------------------------------------------------------------
0
3. Amend Sec. 17.44 by adding paragraph (q) to read as follows:
Sec. 17.44 Special rules--fishes.
* * * * *
(q) Trispot darter (Etheostoma trisella). (1) Prohibitions. The
following prohibitions that apply to endangered wildlife also apply to
the trispot darter. Except as provided under paragraph (q)(2) of this
section and Sec. Sec. 17.4 and 17.5, it is unlawful for any person
subject to the jurisdiction of the United States to commit, to attempt
to commit, to solicit another to commit, or cause to be committed, any
of the following acts in regard to the trispot darter:
(i) Import or export, as set forth at Sec. 17.21(b) for endangered
wildlife.
(ii) Take, as set forth at Sec. 17.21(c)(1) for endangered
wildlife.
(iii) Possession and other acts with unlawfully taken specimens, as
set forth at Sec. 17.21(d)(1) for endangered wildlife.
(iv) Interstate or foreign commerce in the course of commercial
activity, as set forth at Sec. 17.21(e) for endangered wildlife.
(v) Sale or offer for sale, as set forth at Sec. 17.21(f) for
endangered wildlife.
(2) Exceptions from prohibitions. In regard to this species, you
may:
(i) Conduct activities as authorized by a permit issued under Sec.
17.32.
(ii) Take, as set forth at Sec. 17.21(c)(2) through (c)(4) for
endangered wildlife.
(iii) Take, as set forth at Sec. 17.31(b).
(iv) Take incidental to an otherwise lawful activity caused by:
(A) Species restoration efforts by State wildlife agencies,
including collection of broodstock, tissue collection for genetic
analysis, captive propagation, and subsequent stocking into currently
occupied and unoccupied areas within the historical range of the
species.
(B) Channel restoration projects that create natural, physically
stable, ecologically functioning streams (or stream and wetland
systems) that are reconnected with their groundwater aquifers and, if
the projects involve known trispot darter spawning habitat, that take
place between May 1 and December 31. These projects can be accomplished
using a variety of methods, but the desired outcome is a natural
channel with low shear stress (force of water moving against the
channel); bank heights that enable reconnection to the floodplain; a
reconnection of surface and groundwater systems, resulting in perennial
flows in the channel; riffles and pools comprised of existing soil,
rock, and wood instead of large
[[Page 61619]]
imported materials; low compaction of soils within adjacent riparian
areas; and inclusion of riparian wetlands.
(C) Streambank stabilization projects that utilize bioengineering
methods to replace pre-existing, bare, eroding stream banks with
vegetated, stable stream banks, thereby reducing bank erosion and
instream sedimentation and improving habitat conditions for the
species. Stream banks may be stabilized using live stakes (live,
vegetative cuttings inserted or tamped into the ground in a manner that
allows the stake to take root and grow), live fascines (live branch
cuttings, usually willows, bound together into long, cigar-shaped
bundles), or brush layering (cuttings or branches of easily rooted tree
species layered between successive lifts of soil fill). Stream banks
must not be stabilized solely through the use of quarried rock (rip-
rap) or the use of rock baskets or gabion structures.
(D) Silviculture practices and forest management activities that:
(1) Implement State best management practices, particularly for
streamside management zones, for stream crossings, for forest roads,
for erosion control, and to maintain stable channel morphology; or
(2) Remove logging debris or any other large material placed within
natural or artificial wet weather conveyances or ephemeral,
intermittent, or perennial stream channels; and
(3) When such activities involve trispot darter spawning habitat,
are carried out between May 1 and December 31.
(E) Transportation projects that provide for fish passage at stream
crossings that are performed between May 1 and December 31 to avoid the
time period when the trispot darter will be found within spawning
habitat, if such habitat is affected by the activity.
(F) Projects carried out in the species' range under the Working
Lands for Wildlife program of the Natural Resources Conservation
Service, U.S. Department of Agriculture, that:
(1) Do not alter habitats known to be used by the trispot darter
beyond the fish's tolerances; and
(2) Are performed between May 1 and December 31 to avoid the time
period when the trispot darter will be found within its spawning
habitat, if such habitat is affected by the activity.
(v) Possess and engage in other acts with unlawfully taken
wildlife, as set forth at Sec. 17.21(d)(2) for endangered wildlife.
* * * * *
Aurelia Skipwith,
Director, U.S. Fish and Wildlife Service.
[FR Doc. 2020-19109 Filed 9-29-20; 8:45 am]
BILLING CODE 4333-15-P