[Federal Register Volume 83, Number 3 (Thursday, January 4, 2018)]
[Proposed Rules]
[Pages 490-498]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-28491]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
[Docket No. FWS-R4-ES-2017-0094; 4500030113]
RIN 1018-BC52
Endangered and Threatened Wildlife and Plants; Endangered Species
Status for Barrens Topminnow
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Proposed rule.
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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), propose to
list the Barrens topminnow (Fundulus julisia), a freshwater fish from
Tennessee, as an endangered species under the Endangered Species Act
(Act). If we finalize this rule as proposed, it would extend the Act's
protections to this species.
DATES: We will accept comments received or postmarked on or before
March 5, 2018. 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 20, 2018.
ADDRESSES: You may submit comments 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-2017-0094,
which is the docket number for this rulemaking. Then, in the Search
panel on the left side of the screen, under the Document Type heading,
click on the Proposed Rules link 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-2017-0094, 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 Public Comments, below, for more information).
FOR FURTHER INFORMATION CONTACT: Mary Jennings, U.S. Fish and Wildlife
Service, Tennessee Ecological Services Field Office, 446 Neal Street,
[[Page 491]]
Cookeville, TN 38506; telephone 931-528-6481. Persons who use a
telecommunications device for the deaf (TDD) may call the Federal Relay
Service at 800-877-8339.
SUPPLEMENTARY INFORMATION:
Information Requested
Public Comments
We intend that any final action resulting from this proposed rule
will be based on the best scientific and commercial data available and
be as accurate and as effective as possible. Therefore, we request
comments or information from other concerned governmental agencies,
Native American tribes, the scientific community, industry, or any
other interested parties concerning this proposed rule. We particularly
seek comments concerning:
(1) The Barrens topminnow's biology, range, and population trends,
including:
(a) Biological or ecological requirements of the species, including
habitat requirements for feeding, breeding, and sheltering;
(b) Genetics and taxonomy;
(c) Historical and current range, including distribution patterns;
(d) Historical and current population levels, and current and
projected trends; and
(e) Past and ongoing conservation measures for the species, its
habitat, or both.
(2) Factors that may affect the continued existence of the species,
which may include habitat modification or destruction, overutilization,
disease, predation, the inadequacy of existing regulatory mechanisms,
or other natural or manmade factors.
(3) Biological, commercial trade, or other relevant data concerning
any threats (or lack thereof) to this species and existing regulations
that may be addressing those threats.
(4) Additional information concerning the historical and current
status, range, distribution, and population size of this species,
including the locations of any additional populations of this species.
(5) Information related to climate change within the range of the
Barrens topminnow and how it may affect the species' habitat.
(6) The reasons why areas should or should not be designated as
critical habitat as provided by section 4 of the Act (16 U.S.C. 1531 et
seq.).
(7) Specific information on:
(a) What areas, that are currently occupied and that contain the
physical and biological features essential to the conservation of the
Barrens topminnow, should be included in a critical habitat designation
and why;
(b) Special management considerations or protection that may be
needed for the essential features in potential critical habitat areas,
including managing for the potential effects of climate change; and
(c) What areas not occupied at the time of listing are essential
for the conservation of the species and why.
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.
Please note that submissions merely stating support for or
opposition to the action under consideration without providing
supporting information, although noted, will not be considered in
making a determination, as section 4(b)(1)(A) of the Act directs that
determinations as to whether any species is an endangered or threatened
species must be made ``solely on the basis of the best scientific and
commercial data available.''
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.
If you submit information via http://www.regulations.gov, your
entire submission--including any personal identifying information--will
be posted on the website. If your submission is made via a hardcopy
that includes personal identifying information, you may request at the
top of your document that we withhold this information from public
review. However, we cannot guarantee that we will be able to do so. We
will post all hardcopy submissions on http://www.regulations.gov.
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, Tennessee Ecological Services Field Office (see FOR
FURTHER INFORMATION CONTACT).
Public Hearing
Section 4(b)(5) of the Act requires us to conduct one or more
public hearings on this proposal, if requested. Requests for a public
hearing must be received within 45 days after the date of publication
of this proposed rule in the Federal Register (see DATES, above) and
must be sent to the address shown in FOR FURTHER INFORMATION CONTACT.
We will schedule public hearings on this proposal, if requested, and
announce the dates, times, and places of those hearings, as well as how
to obtain reasonable accommodations, in the Federal Register and local
newspapers at least 15 days before the hearing.
Peer Review
The purpose of peer review is to ensure that our listing
determination is based on scientifically sound data, assumptions, and
analyses. 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 six
appropriate specialists regarding the species status assessment (SSA)
that informed this proposed rule. All of the peer reviewers have
expertise in fish biology, habitat, and stressors to the Barrens
topminnow. We received a response from one of the six peer reviewers,
which we took into account in our SSA and this proposed rule. We invite
any additional comment from the peer reviewers on the proposed rule
during this public comment period; all comments received from peer
reviewers will be available, along with other public comments, in the
docket for this proposed rule on http://www.regulations.gov.
Previous Federal Actions
The Barrens topminnow was initially proposed to be listed as
endangered under the Act in 1977 (42 FR 65209; December 30, 1977).
Because of comments received on the proposed critical habitat, the
listing was postponed, and critical habitat was reproposed in 1979 (44
FR 44418; July 27, 1979); however, the proposed listing rule was
withdrawn in 1980, because it was not finalized within the required 2
years (45 FR 5782; January 24, 1980, effective December 30, 1979). The
Barrens topminnow was designated a Category 2 candidate species in 1982
(47 FR 58454; December 30, 1982) until that list was discontinued in
1996 (61 FR 7596; February 28, 1996), and it was not added to the
revised candidate list. In 2010, the Center for Biological Diversity
(CBD) petitioned the Service to list 404 aquatic, riparian, and wetland
species from the southeastern United States, including the Barrens
topminnow, as endangered or threatened under the Act. On September 27,
2011, the Service published a substantial 90-day finding for 374 of the
404 species, including the Barrens topminnow, soliciting information
about, and initiating status reviews for, those species (76 FR 59836).
In 2015, CBD filed a complaint against the Service for failure to
timely
[[Page 492]]
complete a 12-month finding for the Barrens topminnow. In 2016, the
Service entered into a settlement agreement with CBD, which specified
that a 12-month finding for the Barrens topminnow would be delivered to
the Federal Register by December 31, 2017.
Background
A thorough review of the taxonomy, life history, ecology, and
overall viability of the Barrens topminnow (Fundulus julisia) is
presented in the SSA (Service 2017; available at http://www.regulations.gov). In the SSA, we summarize the relevant biological
data and a description of past, present, and likely future stressors,
and conduct an analysis of the viability of the species. The SSA
documents the results of the comprehensive biological status review for
the Barrens topminnow, provides an account of the species' overall
viability through forecasting of the species' condition in the future,
and provides the scientific basis that informs our regulatory decision
regarding whether this species should be listed as an endangered or
threatened species under the Act as well as the risk analysis on which
the determination is based (Service 2017, entire). The following
discussion is a summary of the results and conclusions from the SSA.
Species Description
The Barrens topminnow is a small, colorful fish that grows to 98
millimeters (mm) (3.9 inches (in)). As is typical of its genus,
Fundulus, the Barrens topminnow has an upturned mouth, flattened head
and back, and rounded fins with the unpaired fins set far back on the
body (Etnier and Starnes 1993, pp. 360-361). Reproductive males are
very showy with bright, iridescent background colors of greens and
blues, with reddish orange spots and yellow fins as well as tubercles
(hardened projections) on the anal fin rays. Females, juveniles, and
non-reproductive males are drabber, with pale brown bodies sprinkled
with darker spots on the sides (Williams and Etnier 1982, entire;
Etnier and Starnes 1993, pp. 365-366). A detailed description of scale
and fin ray counts and other morphological features is provided in
Williams and Etnier (1982, entire) and Etnier and Starnes (1993, p.
365).
Reproduction and Lifespan
Barrens topminnows spawn in filamentous algae near the water
surface, between April and August, with peak activity occurring from
May to June. Spawning occurs on multiple occasions, with a few eggs
released during each spawning event. By the end of the spawning season,
up to 300 eggs are released. While the maximum age of the Barrens
topminnow is 4 years, adults typically live for 2 years or less, and
only about one-third of individuals spawn more than one season (Rakes
1989, p. 42; Etnier and Starnes 1993, p. 366). Most individuals mature
and spawn within the first year, though some of the later spawned fish
are in year 2 before they spawn (Rakes 1989, entire).
Prey items consumed by Barrens topminnows consist predominantly of
microcrustaceans and immature aquatic insect larvae. However, the
species is a generalist feeder, also consuming small snails and
terrestrial organisms such as ants and other insects that fall or
wander into aquatic habitats (Rakes 1989, pp. 18-25).
Habitat and Range
Barrens topminnow habitat is restricted to springhead pools and
slow-flowing areas of spring runs on the Barrens Plateau in middle
Tennessee. These fish are strongly associated with abundant aquatic
vegetation such as filamentous algae (e.g., Cladophora and Pithophora),
watercress (Nasturtium officinale), rushes (Juncus), pondweed
(Potamogeton), and eelgrass (Vallisneria), and will occasionally
shelter under overhanging terrestrial plants and tree roots. Barrens
topminnows have only been found in streams where the predominant source
of base flow is groundwater. Due to the groundwater influence of these
habitats, temperatures are relatively stable, ranging from 15 to 25
degrees Celsius ([deg]C) (59 to 77 degrees Fahrenheit ([deg]F)). The
karst topography of the Barrens Plateau results in the presence of a
number of spring systems, though not all of these have been inhabited
by the Barrens topminnow. In times of drought, if the discharge of the
springs is severely reduced, Barrens topminnows likely move downstream
into more permanent water if suitable habitat is available.
Historically, Barrens topminnows were found in Cannon, Coffee, and
Warren Counties of Tennessee in three river systems, the Elk River,
Duck River, and Caney Fork River. The Elk River and Duck River flow to
the Tennessee River, and the Caney Fork River flows to the Cumberland
River. The small streams or springs inhabited by Barrens topminnows in
each river system are separated by hundreds of miles of intervening,
unsuitable, larger stream habitat; therefore the individual populations
are isolated and cannot come into contact with other populations by
moving downstream. Within these three systems, the Barrens topminnow
was known to occur in at least 18 sites (Hurt et al. 2017, p. 2). It is
likely that many more sites were occupied, but were either not surveyed
due to lack of access to private land, or were modified to be
incompatible with Barrens topminnow presence for uses such as watering
livestock before surveys could be conducted.
Currently, the Barrens topminnow occurs in five sites: Marcum
Spring (Ovaca Spring), Short Spring, Benedict Spring, McMahan Creek,
and Greenbrook Pond. Marcum Spring and Short Spring are in the Duck
River system. The remaining three springs are in the Caney Fork River
system. Benedict Spring and McMahan Creek are occupied by native stock,
while the three other occupied sites were reestablished with
individuals from the Caney Fork system (see discussion under
Conservation Actions and Regulatory Mechanisms, below). Greenbrook
Pond, although it ultimately drains to the Caney Fork, is outside the
known historical range of the species, in Dekalb County, Tennessee.
Although no longer extant at its native locality, the Pond Spring
population from the Elk River system is maintained in captivity at
three facilities. Collectively, these captively held topminnows form an
``ark population'' that is managed as part of a conservation strategy
that will enable release back into the wild if Pond Spring can be
restored.
Estimates of current population size by site are lacking, but
recent surveys (Kuhajda et al. 2014, entire; Kuhajda 2017, entire)
reported the number of Barrens topminnows captured (Table 1, below),
providing a rough approximation of the number of topminnows in each
population. Based on these samples, Benedict Spring, Marcum Spring, and
Greenbrook Pond had fairly robust populations, with at least, or likely
with more than, 100 individuals. The population in McMahan Creek
appeared to be small relative to other occupied sites, but this
difference is at least partly an artifact of sampling bias. In stream
habitat such as McMahan Creek, habitat structure makes it easier for
fish to avoid the seine, and fish tend to be more broadly dispersed
than they are in pond-like spring habitats.
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Table 1--Number of Barrens Topminnows Captured by Site (Kuhajda 2017,
Entire) McMahan Creek Number From 2017 Sampling (Service, Unpublished)
------------------------------------------------------------------------
Barrens
topminnows
Site captured
(year)
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Benedict Spring......................................... 100 (2016)
McMahan Creek........................................... 10 (2017)
Marcum Spring........................................... 132 (2015)
Short Spring............................................ 30 (2015)
Greenbrook Pond......................................... 91 (2015)
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Species Needs
In this section, we describe the needs of the species at the
individual, population, and species level. We describe the Barrens
topminnow's viability needs in terms of resiliency (ability of the
populations to withstand stochastic events), redundancy (ability of the
species to withstand large-scale, catastrophic events), and
representation (the ability of the species to adapt to changing
environmental conditions). In later sections, using various time frames
and the current and projected resiliency, redundancy, and
representation, we will describe the species' viability over time.
Barrens topminnows need filamentous algae or other submerged
vegetation for egg deposition and cover, and consistently cool water
ranging from 15 to 25 [deg]C (59 to 77 [deg]F) that is sufficiently
clear for mating display (Rakes, 1989, entire). For feeding, they need
microcrustaceans and immature aquatic insect larvae (Rakes 1989, pp.
18-25). At the larval and juvenile stage, it is essential that
predation rates and competition from other fishes is low (Laha and
Mattingly 2006, pp. 1, 6-10).
Resiliency
For the Barrens topminnow to maintain viability, its populations or
some portion thereof must be resilient. Stochastic events that affect
resiliency are reasonably likely to occur infrequently, but are of a
magnitude that can drastically alter the ecosystem where they happen.
Classic examples of stochastic events include drought, major storms
(hurricanes), fire, and landslides (Chapin et al. 2002, pp. 285-288).
To be resilient to stochastic events populations of Barrens topminnow
need to be sufficiently abundant, with several hundred individuals
(Service 2017, p. 11) represented by adult and juvenile age classes.
The larger the range, or spatial extent, occupied by a Barrens
topminnow population, the more resilient the population will be to a
stochastic event. Additionally, populations need to exist in locations
where environmental conditions provide suitable habitat and water
quality such that adequate numbers of individuals can be supported.
Without all of these factors, a population has an increased likelihood
of extirpation.
Representation
Maintaining representation in the form of genetic diversity is
important to the Barrens topminnow's capacity to adapt to environmental
changes. Ecological diversity, another measure of species'
representation, is naturally low, as the Barrens topminnow has always
been restricted to spring habitats in a single physiographic province.
Based on mitochondrial DNA, genetic variation of extant populations is
extremely low, and there are fixed differences between the Caney Fork
system populations and the Elk River system population (Hurt et al.
2017, pp. 1, 5), which is from Pond Spring and is represented now only
by individuals held in captivity. The captive Elk River population, for
which there are two identified mitochondrial DNA haplotypes unique from
the third haplotype present in all Caney Fork system sampled fish,
should be considered an evolutionary significant unit (ESU) (Hurt et
al. 2017, p. 5), a historically isolated population that is on an
independent evolutionary trajectory (Moritz 1994, p. 373). Accordingly,
reestablishing the captive Elk River population in the wild will be
important to increasing genetic representation and species' viability.
Redundancy
Finally, the Barrens topminnow needs to have multiple resilient
populations distributed throughout its range to provide redundancy, the
ability of the species to withstand catastrophic events. The more
populations, and the wider the distribution of those populations, the
more redundancy the species will exhibit. Redundancy reduces the risk
that a large portion of the species' range will be negatively affected
by a catastrophic natural or anthropogenic event at a given point in
time. Species that are well-distributed across their historical range
are considered less susceptible to extinction and have higher viability
than species confined to a small portion of their range (Carroll et al.
2010, entire; Redford et al. 2011, entire).
Summary of Biological Status and Threats
Section 4 of the Act (16 U.S.C. 1533) and its implementing
regulations (50 CFR part 424) set forth the procedures for determining
whether a species is an ``endangered species'' or a ``threatened
species.'' The Act defines an endangered species as a species that is
``in danger of extinction throughout all or a significant portion of
its range,'' and a threatened species as a species that is ``likely to
become an endangered species within the foreseeable future throughout
all or a significant portion of its range.'' The Act directs us to
determine whether any species is an endangered species or a threatened
species because of one or more of the following factors affecting its
continued existence: (A) The present or threatened destruction,
modification, or curtailment of its habitat or range; (B)
overutilization for commercial, recreational, scientific, or
educational purposes; (C) disease or predation; (D) the inadequacy of
existing regulatory mechanisms; or (E) other natural or manmade factors
affecting its continued existence.
These factors represent broad categories of natural or human-caused
actions or conditions that could have an effect on a species' continued
existence. In evaluating these actions and conditions, we look for
those that may have a negative effect on individuals of the species, as
well as for those that may ameliorate any negative effects and those
that may have positive effects.
We use the term ``threat'' to refer in general to actions or
conditions that are known to or are reasonably likely to negatively
affect individuals of a species. The term ``threat'' includes actions
or conditions that have a direct impact on individuals (direct
impacts), as well as those that affect individuals through alteration
of their habitat or required resources (stressors). A threat may
encompass--either together or separately--the source of the action or
condition, or the action or condition itself.
However, the mere identification of any threat(s) does not
necessarily mean that the species meets the statutory definition of an
``endangered species'' or a ``threatened species.'' In determining
whether a species meets either definition, we must evaluate all
identified threats by considering the expected response by the species,
and the effects of the threats--in light of those actions and
conditions that will ameliorate the threats--on an individual,
population, and species level. We evaluate each threat and its expected
effects on the species, then analyze the cumulative effect of all of
the threats on the species as a whole. We also consider the cumulative
effect of the threats in light of those actions and conditions that
will have positive effects on the species--such as any
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existing regulatory mechanisms or conservation efforts. It is only
after conducting this cumulative analysis of threats and the actions
that may ameliorate them or have positive effects on the species, and
describing the expected effect on the species now and in the
foreseeable future, that the Secretary can determine whether the
species meets the definition of an ``endangered species'' or a
``threatened species.'' We completed a comprehensive assessment of the
biological status of the Barrens topminnow, and prepared a report of
the assessment which provides a thorough account of the species'
overall viability and evaluates the cumulative effects of the five
listing factors (Service 2017, entire).
Risk Factors
In the SSA, we assessed the potential risk factors (i.e., threats,
stressors) that could be affecting the Barrens topminnow now and in the
future. In this proposed rule, we will discuss only those factors in
detail that could meaningfully impact the status of the species. Those
risks that are not known to have effects on Barrens topminnow
populations, such as collection and disease, are not discussed here.
The primary risk factor affecting the status of the Barrens
topminnow is western mosquitofish (Gambusia affinis), a species
invasive to the Barrens Plateau that preys on young topminnows,
harasses older individuals, and may compete with adults for space and
food (Factor C).
Western mosquitofish are native to Tennessee, but their range
within the State was most likely confined to the Coastal Plain province
(Etnier and Starnes 1993, p. 373), and they are not native to the
Barrens Plateau. In many parts of North America, western mosquitofish
were stocked in attempt to control mosquito larvae, which is presumably
the means by which they were introduced to the Barrens Plateau in the
mid twentieth century. Although to the best of our knowledge
mosquitofish stocking stopped shortly thereafter, the species has
spread and become a permanent inhabitant throughout most of the Barrens
Plateau. Mosquitofish are well adapted to spread in habitats where they
are introduced because they reproduce rapidly, spawning three to four
cohorts per year of a few to a hundred or more individuals (Etnier and
Starnes 1993, p. 373). They can move through very shallow water and
have invaded sites connected by temporarily wetted areas created by
floods. Mosquitofish prey on young topminnows and harass adults,
causing recruitment failure such that only the adult age class remains
after a spawning season (Goldsworthy and Bettoli 2006, p. 341; Laha and
Mattingly 2007, p. 9). Under most circumstances, extirpation of Barrens
topminnows occurs within 3 to 5 years of mosquitofish invading a site
(Service 2017, p. 32). The five extant Barrens topminnow populations
are at sites free of mosquitofish.
As a consequence of the western mosquitofish invasion, the habitat
available to the Barrens topminnow, and the species' range, has been
curtailed (Factor A). Historically, Barrens topminnow populations were
likely connected by floods and high flow events that washed individuals
downstream or provided temporary connections across local stream
divides. Most, if not all, pathways via flood-facilitated migration are
no longer viable owing to the presence of mosquitofish. Many of the
sites where the topminnow is extirpated currently have sufficient
habitat quality to support populations (Kuhajda et al. 2014, entire;
Kuhajda 2017, entire). Thus, it is the presence of mosquitofish rather
than habitat that is limiting Barrens topminnow populations because
mosquitofish prevent topminnows from colonizing previously occupied
springs in their range. This reduction in connectivity contributes to
reduced gene flow, which in turn reduces genetic diversity and species'
representation. Additionally, the lost connectivity contributes to the
diminished range (number of occupied sites), which has caused a
reduction in species' redundancy.
Reduced habitat availability has exacerbated the threat of drought
(Factor E), which has greatest effect on one of the two remaining
native populations, at Benedict Spring. Approximately once every 5
years, drought results in Benedict Spring drying completely or nearly
so, to the point that it can no longer support the Barrens topminnow.
In these years, all topminnows are removed from Benedict Spring and
placed in aquaria, where they are held until water levels return. Under
natural (i.e., mosquitofish free) conditions, drought would not be a
concern because Barrens topminnows would recolonize areas in wetter
years; however, due to the widespread reduction in suitable habitat due
to mosquitofish and the resulting small number of remaining
populations, the loss of any population is a concern.
Conservation Actions and Regulatory Mechanisms
There have been many targeted efforts since circa 1980 to conserve
the Barrens topminnow. Without these efforts it is likely the species
would persist only at one site, McMahan Spring, which has not gone dry
during periods of drought and is not occupied by mosquitofish. In 2001,
the Barrens Topminnow Working Group, consisting of the Tennessee
Wildlife Resources Agency, the Service, universities, and nonprofit
organizations, was created to coordinate actions such as habitat
improvement, propagation, and reintroduction of the species in the
wild. Since the initiation of the stocking program, more than 44,000
Barrens topminnows have been reintroduced in 27 sites deemed to have
appropriate habitat. Brood fish were taken from McMahan Creek and
Benedict Spring in the Caney Fork watershed, and Pond Spring in the Elk
River watershed. Reintroduction was unsuccessful at most of these
sites, either because of insufficient or marginal habitat or the
invasion of mosquitofish (Goldsworth and Bettoli 2005, entire). At the
2016 Working Group meeting, the decision was made to stop the stocking
program because it was no longer needed to maintain populations at
suitable sites that lack mosquitofish, and at other sites, continued
stocking was unlikely to establish self-sustaining populations.
One of the stocked sites, Vervilla Spring, was situated in the
Caney Fork watershed on land opportunistically purchased by the Service
for Barrens topminnow reintroduction. When the land came under the
management of Tennessee National Wildlife Refuge, mosquitofish were
present in the spring on the property and topminnows were not. To
improve habitat for topminnows at the site, spring pools were deepened,
a concrete low water barrier was installed, and the mosquitofish
removed with a piscicide. Topminnows from Benedict Spring were then
stocked above the barrier. This population was stocked in 2001, and
maintained viability until 2010, when mosquitofish reinvaded the spring
during a flood. In 2011, only adults were present, and by 2013, no
Barrens topminnows remained in Vervilla Spring.
From the late 1980s into the 2000s, the Service's Partners for Fish
and Wildlife program worked with landowners to exclude livestock from
the springs and spring runs where Barrens topminnows occurred in an
effort to curb sedimentation. None of these Partners agreements is
currently active. However, there are still buffers that exclude
livestock from topminnow habitat in place at some sites, many which
have since been invaded by mosquitofish.
[[Page 495]]
Current Condition
As discussed above, only five remaining populations of Barrens
topminnow remain (see Table 1, above), in contrast to at least 18
identified historical populations (occupied sites) and likely several
more that were extirpated without having been first identified. Thus,
there has been at least a 72 percent reduction in the number of
populations in the wild. Furthermore, the number of native populations
has been reduced by at least 89 percent. The only population known to
be native in the Elk River watershed, from Pond Spring, is now
maintained as a captive ``ark population'' at three facilities. In the
Duck River system, native populations were extirpated by the late 1960s
(Etnier and Starnes 1993, p. 366), and if there was any genetic
component unique to the Duck River system, it has been lost. The only
two remaining native populations are at Benedict Spring and McMahan
Creek.
In summary, the current condition for each of the conservation
metrics of resiliency, redundancy, and representation is low. Regarding
resiliency, four of the five extant populations are of moderate size,
likely with 100 individuals or more. The other population is smaller,
although based on recent surveys it appears to be persisting and
recruiting new cohorts each year. However, even if the number of
individuals in each population is sufficient to maintain future
generations, all currently occupied sites are small and vulnerable to
stochastic events, so that a disturbance would adversely affect a site
and its whole population equally. Regarding redundancy, at least 16 of
18 native populations (89 percent) have been lost, with only 5
populations remaining in the wild. Thus, the spatial distribution of a
naturally narrow-ranging endemic has become more concentrated, making
the species more susceptible to a catastrophic event. Lastly,
representation has been reduced and the species' adaptive capacity may
be limited as there is little genetic variation between extant
populations. Native stock from the Elk River and Duck River has been
extirpated, although members of the Elk River population survive in
captivity.
Future Condition
As part of the SSA, we developed three future condition scenarios
to capture the range of uncertainties regarding future threats and the
projected responses by the Barrens topminnow. Our scenarios included a
status quo scenario, which incorporated the current risk factors
continuing on the same trajectory that they are on now. We also
evaluated a best case scenario, under which management actions to
exclude mosquitofish and reintroduce populations would occur. Finally,
we evaluated a worst case scenario, under which no management actions
would be applied and climate change would increase the frequency and
magnitude of droughts and floods. Regarding the likelihood of each
scenario transpiring, in the near future (3- to 5-year time frame), the
status quo scenario was predicted to be ``very likely'' and best case
and worst case scenarios were ``unlikely.'' For the SSA, the terms
``very likely'' and ``unlikely'' as they apply to confidence are 70-90
percent certain and 10-40 percent certain, respectively (IPCC 2014, p.
2). In 20 to 30 years, the time frame constituting the extent of the
foreseeable future, beyond which there is insufficient confidence in
how threats will act, the best case scenario was predicted to be
``unlikely'' and the status quo and worst case scenarios were ``as
likely as not,'' defined as having a 40-70 percent certainty of
occurrence (IPCC 2014, p. 2). Because we determined that the current
condition of the Barrens topminnow was consistent with that of an
endangered species (see Determination, below), and that it is very
likely the current condition will persist through the near future, we
are not presenting in any more detail how each scenario would likely
act on species viability. Please refer to the SSA (Service 2017, pp.
32-42) for the full analysis of future scenarios.
Determination
Section 4 of the Act (16 U.S.C. 1533) and its implementing
regulations (50 CFR part 424) set forth the procedures for determining
whether a species meets the definition of ``endangered species'' or
``threatened species.'' The Act defines an endangered species as any
species that is ``in danger of extinction throughout all or a
significant portion of its range'' and a threatened species as any
species ``that is likely to become endangered throughout all or a
significant portion of its range within the foreseeable future.'' We
have carefully assessed the best scientific and commercial information
available and find that the Barrens topminnow is presently in danger of
extinction throughout its entire range based on the severity and
immediacy of threats currently impacting the species.
The overall range of the Barrens topminnow has been significantly
reduced (Factor A), and its remaining populations are threatened by
mosquitofish (Factor C), drought, and small population size (Factor E)
acting in combination to reduce the overall viability of the species.
The risk of extinction is high because the remaining populations have a
high risk of extirpation, are isolated, and have no potential for
recolonization without intervening management actions. Therefore, on
the basis of the best available scientific and commercial information,
we propose listing the Barrens topminnow as endangered in accordance
with sections 3(6) and 4(a)(1) of the Act. We find that a threatened
species status is not appropriate for the Barrens topminnow, as it is
already in danger of extinction throughout its range because of the
currently contracted range (loss of 79 percent of occupied sites),
because the threats are occurring across the entire range of the
species, and because the threats are ongoing currently and are expected
to continue into the future.
Under the Act and our implementing regulations, a species may
warrant listing if it is endangered or threatened throughout all or a
significant portion of its range. Because we have determined that the
Barrens topminnow is endangered throughout all of its range, no portion
of its range can be ``significant'' for purposes of the definitions of
``endangered species'' and ``threatened species.'' See the Final Policy
on Interpretation of the Phrase ``Significant Portion of Its Range'' in
the Endangered Species Act's Definitions of ``Endangered Species'' and
``Threatened Species'' (79 FR 37578; July 1, 2014).
Available Conservation Measures
Conservation measures provided to species listed as endangered or
threatened species under the Act include recognition, recovery actions,
requirements for Federal protection, and prohibitions against certain
practices. Recognition through listing results in public awareness and
conservation by Federal, State, Tribal, and local agencies; private
organizations; and individuals. The Act encourages cooperation with the
States and other countries and calls for recovery actions to be carried
out for listed species. The protection required by Federal agencies and
the prohibitions against certain activities are discussed, in part,
below.
The primary purpose of the Act is the conservation of endangered
and threatened species and the ecosystems upon which they depend. The
ultimate goal of such conservation efforts is the recovery of these
listed species, so that they no longer need the protective measures of
the Act. Subsection 4(f) of the Act calls for the Service to develop
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and implement recovery plans for the conservation of endangered and
threatened species. The recovery planning process involves the
identification of actions that are necessary to halt or reverse the
species' decline by addressing the threats to its survival and
recovery. The goal of this process is to restore listed species to a
point where they are secure, self-sustaining, and functioning
components of their ecosystems.
Recovery planning includes the development of a recovery outline
when a species is listed and preparation of a draft and final recovery
plan. The recovery outline guides the immediate implementation of
urgent recovery actions and describes the process to be used to develop
a recovery plan. Subsequently, a recovery plan identifies recovery
criteria for review of when a species may be ready for downlisting or
delisting, and methods for monitoring recovery progress. Recovery plans
also establish a framework for agencies to coordinate their recovery
efforts and provide estimates of the cost of implementing recovery
tasks. Recovery teams (composed of species experts, Federal and State
agencies, nongovernmental organizations, and stakeholders) are often
established to develop recovery plans. Revisions of the plan may be
done to address continuing or new threats to the species, as new
substantive information becomes available. We intend to make a recovery
outline available to the public concurrent with the final listing rule,
if listing continues to be warranted. When completed, the recovery
outline, draft recovery plan, and the final recovery plan will be
available on our website (http://www.fws.gov/endangered), or from our
Tennessee Ecological Services Field Office (see FOR FURTHER INFORMATION
CONTACT).
Implementation of recovery actions generally requires the
participation of a broad range of partners, including other Federal
agencies, States, Tribes, nongovernmental organizations, businesses,
and private landowners. Examples of recovery actions include habitat
restoration (e.g., restoration of native vegetation), research, captive
propagation and reintroduction, and outreach and education. The
recovery of many listed species cannot be accomplished solely on
Federal lands because their ranges may occur primarily or solely on
non-Federal lands. To achieve recovery of these species requires
cooperative conservation efforts on private, State, and Tribal lands.
If this species is listed, funding for recovery actions will be
available from a variety of sources, including Federal budgets, State
programs, and cost share grants for non-Federal landowners, the
academic community, and nongovernmental organizations. In addition,
pursuant to section 6 of the Act, the State of Tennessee would be
eligible for Federal funds to implement management actions that promote
the protection or recovery of the Barrens topminnow. Information on our
grant programs that are available to aid species recovery can be found
at: http://www.fws.gov/grants.
Although the Barrens topminnow is only proposed for listing under
the Act at this time, please let us know if you are interested in
participating in recovery efforts for this species. Additionally, we
invite you to submit any new information on this species whenever it
becomes available and any information you may have for recovery
planning purposes (see FOR FURTHER INFORMATION CONTACT).
Section 7(a) of the Act requires Federal agencies to evaluate their
actions with respect to any species that is proposed or listed as an
endangered or threatened species and with respect to its critical
habitat, if any is designated. Regulations implementing this
interagency cooperation provision of the Act are codified at 50 CFR
part 402. Section 7(a)(4) of the Act requires Federal agencies to
confer with the Service on any action that is likely to jeopardize the
continued existence of a species proposed for listing or result in
destruction or adverse modification of proposed critical habitat. If a
species is listed subsequently, section 7(a)(2) of the Act requires
Federal agencies to ensure that activities they authorize, fund, or
carry out are not likely to jeopardize the continued existence of the
species or destroy or adversely modify its critical habitat. If a
Federal action may affect a listed species or its critical habitat, the
responsible Federal agency must enter into consultation with the
Service.
Federal agency actions within the species' habitat that may require
conference or consultation or both as described in the preceding
paragraph include issuance of section 404 Clean Water Act (33 U.S.C.
1251 et seq.) permits by the U.S. Army Corps of Engineers, construction
and maintenance of roads or highways by the Federal Highway
Administration, construction and maintenance of utility corridors by
the Tennessee Valley Authority, and construction and maintenance of
natural gas or oil pipeline corridors by the Federal Energy Regulatory
Commission.
The Act and its implementing regulations set forth a series of
general prohibitions and exceptions that apply to endangered wildlife.
The prohibitions of section 9(a)(1) of the Act, codified at 50 CFR
17.21, make it illegal for any person subject to the jurisdiction of
the United States to take (which includes harass, harm, pursue, hunt,
shoot, wound, kill, trap, capture, or collect; or to attempt any of
these) endangered wildlife within the United States or on the high
seas. In addition, it is unlawful to import; export; deliver, receive,
carry, transport, or ship in interstate or foreign commerce in the
course of commercial activity; or sell or offer for sale in interstate
or foreign commerce any listed species. It is also illegal to possess,
sell, deliver, carry, transport, or ship any such wildlife that has
been taken illegally. Certain exceptions apply to employees of the
Service, the National Marine Fisheries Service, other Federal land
management agencies, and State conservation agencies.
We may issue permits to carry out otherwise prohibited activities
involving endangered wildlife under certain circumstances. Regulations
governing permits are codified at 50 CFR 17.22. With regard to
endangered wildlife, a permit may be issued for the following purposes:
For scientific purposes, to enhance the propagation or survival of the
species, and for incidental take in connection with otherwise lawful
activities. There are also certain statutory exemptions from the
prohibitions, which are found in sections 9 and 10 of the Act.
It is our policy, as published in the Federal Register on July 1,
1994 (59 FR 34272), to identify to the maximum extent practicable at
the time a species is listed, those activities that would or would not
constitute a violation of section 9 of the Act. The intent of this
policy is to increase public awareness of the effect of a proposed
listing on proposed and ongoing activities within the range of the
species proposed for listing. Based on the best available information,
if we list this species, the following actions are unlikely to result
in a violation of section 9, if these activities are carried out in
accordance with existing regulations and permit requirements; this list
is not comprehensive:
(1) Normal agricultural and silvicultural practices, including
herbicide and pesticide use, which are carried out in accordance with
any existing regulations, permit and label requirements, and best
management practices; and
(2) Normal residential landscape activities.
Based on the best available information, if we list this species,
the
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following activities may potentially result in a violation of section 9
of the Act; this list is not comprehensive:
(1) Intentional release of mosquitofish into occupied Barrens
topminnow habitat;
(2) Unauthorized handling or collecting of the species;
(3) Modification of the water flow of any spring or stream in which
the Barrens topminnow is known to occur;
(4) Direct or indirect destruction of stream habitat; and
(5) Discharge of chemicals or fill material into any waters in
which the Barrens topminnow is known to occur.
Questions regarding whether specific activities would constitute a
violation of section 9 of the Act should be directed to the Tennessee
Ecological Services Field Office (see FOR FURTHER INFORMATION CONTACT).
Critical Habitat
Background
Critical habitat is defined in section 3 of the Act as:
(1) The specific areas within the geographical area occupied by the
species, at the time it is listed in accordance with the Act, on which
are found those physical or biological features:
(a) Essential to the conservation of the species, and
(b) Which may require special management considerations or
protection; and
(2) Specific areas outside the geographical area occupied by the
species at the time it is listed, upon a determination that such areas
are essential for the conservation of the species.
Conservation, as defined under section 3 of the Act, means to use
and the use of all methods and procedures that are necessary to bring
an endangered or threatened species to the point at which the measures
provided pursuant to the Act are no longer necessary.
Such methods and procedures include, but are not limited to, all
activities associated with scientific resources management such as
research, census, law enforcement, habitat acquisition and maintenance,
propagation, live trapping, and transplantation, and, in the
extraordinary case where population pressures within a given ecosystem
cannot be otherwise relieved, may include regulated taking.
Critical habitat receives protection under section 7 of the Act
through the requirement that Federal agencies ensure, in consultation
with the Service, that any action they authorize, fund, or carry out is
not likely to result in the destruction or adverse modification of
critical habitat. The designation of critical habitat does not affect
land ownership or establish a refuge, wilderness, reserve, preserve, or
other conservation area. 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
non-Federal landowners. Where a landowner requests Federal agency
funding or authorization for an action that may affect a listed species
or critical habitat, the 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.
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.
Prudency Determination
Section 4(a)(3) of the Act, as amended, and implementing
regulations (50 CFR 424.12), require that, to the maximum extent
prudent and determinable, the Secretary designate critical habitat at
the time the species is determined to be endangered or threatened. Our
regulations (50 CFR 424.12(a)(1)) state 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.
As discussed above and in the SSA, there is currently no imminent
threat to the Barrens topminnow of take attributed to collection or
vandalism (Factor B), and identification and mapping of critical
habitat would not likely to increase any such threat. In the absence of
finding that the designation of critical habitat would increase threats
to a species, if there are any benefits to a critical habitat
designation, then a prudent finding is warranted. The potential
benefits of designation include: (1) Triggering consultation under
section 7 of the Act in new areas for actions in which there may be a
Federal nexus where it would not otherwise occur because, for example,
it is or has become unoccupied or the occupancy is in question; (2)
focusing conservation activities on the most essential features and
areas; (3) providing educational benefits to State or county
governments or private entities; and (4) preventing people from causing
inadvertent harm to the species. Therefore, because we have determined
that the designation of critical habitat will not likely increase the
degree of threat to these species and may provide some measure of
benefit, we find that designation of critical habitat is prudent for
the Barrens topminnow.
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
species 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: (1) Information sufficient to perform
required analyses of the impacts of the designation is lacking, or (2)
The biological needs of the species are not sufficiently well known to
permit identification of an area as critical habitat. As discussed
above, we have reviewed the available information pertaining to the
biological needs of this species and the habitat characteristics where
this species is located. However, a careful assessment of the economic
impacts that may occur due to a critical habitat designation is
ongoing, and we are in the process of working with the States and other
partners in acquiring the complex information needed to perform that
assessment. Until these efforts are complete, information sufficient to
perform a required analysis of the impacts of the designation is
lacking, and, therefore, we find designation of critical habitat for
this species to be not determinable at this time. However, we
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expect to have the necessary information, and publish a proposed rule
in the Federal Register, in the near future.
Required Determinations
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.
National Environmental Policy Act (42 U.S.C. 4321 et seq.)
We have determined that environmental assessments and environmental
impact statements, as defined under the authority of the National
Environmental Policy Act, need not be prepared in connection with
listing a species as an endangered or threatened species under the
Endangered Species Act. We published a notice outlining our reasons for
this determination in the Federal Register on October 25, 1983 (48 FR
49244).
References Cited
A complete list of references cited is available in Appendix A of
the SSA (Service 2017. Species Status Assessment Report for the Barrens
Topminnow (Fundulus julisia), Version 1.0. Cookeville, TN), available
online at http://www.regulations.gov under Docket No. FWS-R4-ES-2017-
0094.
Authors
The primary authors of this proposed rule are the staff members of
the Tennessee 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
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(h) by adding an entry for ``Topminnow, Barrens''
to the List of Endangered and Threatened Wildlife in alphabetical order
under FISHES to read as follows:
Sec. 17.11 Endangered and threatened wildlife.
* * * * *
(h) * * *
----------------------------------------------------------------------------------------------------------------
Listing citations
Common name Scientific name Where listed Status and applicable rules
----------------------------------------------------------------------------------------------------------------
* * * * * * *
Fishes
* * * * * * *
Topminnow, Barrens................ Fundulus julisia..... Wherever found....... E [Insert Federal
Register citation
when published as a
final rule]
* * * * * * *
----------------------------------------------------------------------------------------------------------------
Dated: December 3, 2017.
James W. Kurth,
Deputy Director for U.S. Fish and Wildlife Service, Exercising the
Authority of the Director for U.S. Fish and Wildlife Service.
[FR Doc. 2017-28491 Filed 1-3-18; 8:45 am]
BILLING CODE 4333-15-P