[Federal Register Volume 86, Number 167 (Wednesday, September 1, 2021)]
[Proposed Rules]
[Pages 48953-48968]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-18127]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-R4-ES-2020-0152; FF09E22000 FXES11130900000 212]
RIN 1018-BE62


Endangered and Threatened Wildlife and Plants; Removing the Snail 
Darter From the List of Endangered and Threatened Wildlife

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 
remove the snail darter (Percina tanasi), a small freshwater fish 
native to the Tennessee River watershed, from the Federal List of 
Endangered and Threatened Wildlife (List). Our review of the best 
available scientific and commercial data indicates that the threats to 
the species have been eliminated or reduced to the point that the 
species no longer meets the definition of an endangered or a threatened 
species under the Endangered Species Act of 1973, as amended (Act). If 
we finalize this rule as proposed, the prohibitions and conservation 
measures provided by the Act, particularly through sections 7 and 9, 
would no longer apply to the snail darter. We request information and 
comments from the public regarding this proposed rule to remove the 
snail darter from the List (i.e., ``delist'' the species).

DATES: We will accept comments received or postmarked on or before 
November 1, 2021. Comments submitted electronically using the Federal 
eRulemaking Portal (see ADDRESSES, below) must be received by 11:59 
p.m.

[[Page 48954]]

Eastern Time on the closing date. We must receive requests for a public 
hearing, in writing, at the address shown in FOR FURTHER INFORMATION 
CONTACT by October 18, 2021.

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-2020-0152, 
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, check 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 to: Public Comments 
Processing, Attn: FWS-R4-ES-2020-0152, U.S. Fish and Wildlife Service, 
MS: PRB/3W, 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).
    Availability of supporting materials: This proposed rule and 
supporting documents, including references cited and the 5-year review, 
are available at http://www.regulations.gov under Docket No. FWS-R4-ES-
2020-0152.

FOR FURTHER INFORMATION CONTACT: Daniel Elbert, Field Supervisor, U.S. 
Fish and Wildlife Service, Tennessee Ecological Services Field Office, 
446 Neal Street, 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:

Executive Summary

    Why we need to publish a rule. Section 4 of the Act and its 
implementing regulations (50 CFR 424) set forth the procedures for 
listing species, reclassifying species, or removing species from the 
Lists of Endangered and Threatened Wildlife and Plants. In the case of 
any proposed rule to list, reclassify, or delist a species, we must 
publish a notice of such proposal in the Federal Register. Therefore, 
in order to remove the snail darter from the List, we must publish a 
proposed rule.
    What this document does. This rule proposes to remove (delist) the 
snail darter from the Federal List of Endangered and Threatened 
Wildlife based on its recovery.
    The basis for our action. Under the Act, we may determine that a 
species is an endangered species or a threatened species because of any 
of five factors: (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.
    Under the Act and our implementing regulations at 50 CFR 424.11, we 
may delist a species if the best available scientific and commercial 
data indicate that: (1) The species is extinct; (2) the species does 
not meet the definition of an endangered species or a threatened 
species when considering the five factors listed above; or (3) the 
listed entity does not meet the statutory definition of a species. 
Here, we have determined that the snail darter no longer meets the 
definition of an endangered species or a threatened species under the 
Act and, therefore, it may be delisted due to recovery.
    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 are requesting 
comments from independent specialists to ensure that we base our 
determination on scientifically sound data, assumptions, and analyses. 
The peer reviewers have expertise in the biology, habitat, and threats 
to the species.

Information Requested

    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) Reasons we should or should not remove the snail darter from 
the List of Endangered and Threatened Wildlife.
    (2) Relevant data concerning any threats (or lack thereof) to the 
snail darter, particularly any data on the possible effects of climate 
change as it relates to habitat, as well as the extent of State 
protection and management that would be provided to this fish as a 
delisted species;
    (3) Current or planned activities within the geographic range of 
the snail darter that may negatively impact or benefit the species; and
    (4) Information about the type and extent of monitoring that should 
be implemented if the species were delisted.
    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, do not provide substantial 
information necessary to support a determination. Section 4(b)(1)(A) of 
the Act directs that determinations as to whether any species is an 
endangered or a 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 under 
Docket No. FWS-R4-ES-2020-0152.
    Because we will consider all substantive comments and information 
received during the comment period, our final determinations may differ 
from this proposal. Based on the new information we receive (and any 
comments on that new information), we may conclude that the species 
should remained listed as threatened, or we may conclude that the 
species should be reclassified from threatened to endangered.

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Public Hearing

    Section 4(b)(5) of the Act provides for a public hearing on this 
proposal, if requested. Requests must be received by the date specified 
in DATES. 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. For the immediate future, we will provide these public 
hearings using webinars that will be announced on the Service's 
website, in addition to the Federal Register. The use of these virtual 
public hearings is consistent with our regulations at 50 CFR 
424.16(c)(3).

Previous Federal Actions

    On October 9, 1975, we published a final rule in the Federal 
Register (40 FR 47505) listing the snail darter as an endangered 
species due to the threat of the impoundment of the only known location 
of the species by the completion of Tellico Dam. On April 1, 1976, the 
Service designated 16.5 miles (26.4 km) of the lower Little Tennessee 
River as critical habitat for the snail darter (41 FR 13926). In 1977, 
the critical habitat for the snail darter was amended to include a map 
(42 FR 47840). The Snail Darter Recovery Team prepared the initial 
recovery plan for the snail darter on April 4, 1979 (Hurst et al. 1979, 
entire). The plan was revised and finalized on May 5, 1983 (Service 
1983, entire). Due to successful translocations into the Hiawassee and 
Holston Rivers and the discovery of additional populations, we 
reclassified the snail darter from endangered to threatened and 
rescinded critical habitat on July 5, 1984 (49 FR 27510). In 2013, we 
completed a 5-year review for the snail darter. No change in the 
species' listing classification was recommended as a result of that 5-
year review. We initiated a second 5-year review for the species on 
April 11, 2019 (84 FR 14669), and on July 16, 2019, we were petitioned 
to delist the snail darter. We were already reviewing the status of the 
species as part of the 5-year review and, upon receiving the petition, 
determined that there was substantial scientific and commercial 
information indicating the delisting the snail darter may be warranted. 
Based on our review of available data we gathered during preparation of 
that status review and presented herein, we have determined that the 
recovery criteria for delisting the species have been met and that the 
snail darter does not meet the Act's definition of an endangered 
species or a threatened species. Therefore, we are proposing to delist 
the snail darter. This proposed rule will also serve as our 5-year 
review, 90-day finding, and 12-month finding on the petition.
    For additional details on previous Federal actions, including 
recovery actions, see discussion under Recovery, below.

Background

    Below, we present a thorough review of the taxonomy, life history, 
ecology, and overall status of this fish, referencing data from the 
2013 5-year review (Service 2013, entire) where appropriate.

Taxonomy

    The snail darter is a small fish in the perch family, Percidae, and 
darter subfamily, Etheostomatinae. The species was first discovered in 
1973 (Starnes 1977, p. 1). At that time, and when listed in 1975, the 
snail darter was recognized as a new, undescribed species in the genus 
Percina and subgenus Imostoma. The species was described in 1976 as 
Percina tanasi, named after the historic Cherokee town of Tanasi, near 
where the snail darter was first discovered (Etnier 1976, p. 485). The 
snail darter has been recognized as the sister species (closest 
relative) to the stargazing darter (P. uranidea) (Etnier 1976, p. 480; 
Near and McEachran 2002, p. 8).

Population Genetics

    No studies have been completed to determine the level of gene flow 
between populations or the amount of potential inbreeding within 
populations. Because snail darters are often found in the lower 
portions of tributaries, it is likely that tributary populations are 
part of larger mainstem metapopulations (Service 2013, p. 13). It is 
not clear to what level the mainstem populations are isolated by the 
large Tennessee Valley Authority (TVA) dams and reservoirs.

Species Description

    The following description is modified from Etnier (1976, pp. 480-
485) and Etnier and Starnes (1993, pp. 587-590). The snail darter is a 
small benthic (bottom-dwelling) fish that grows to 3.55 inches (in) (90 
millimeters (mm)). The base color is brown or brownish grey with some 
green. The back has four clear black or dark brown saddle markings. 
These markings extend down the sides toward the series of blotches 
along the lateral line. A dark suborbital bar or ``teardrop'' marking 
is present below the eye. Fin rays are usually speckled, but pelvic and 
anal fins are sometimes clear. Males gain a blue-green sheen on the 
sides and belly during the breeding season when golden flecks become 
more pronounced on the cheeks and pectoral fins. Females also develop 
some gold coloring but are less bright than the males. Breeding 
tubercles (small bony protrusions) form on the rays of the elongated 
anal fin of males as well as the lower surfaces of rays of the pelvic 
fins, caudal (tail) fin, and branchiostegal (soft gill cover under 
head) rays.
    The snail darter may occur with two other Imostoma darters, the 
river darter (Percina shumardi) and the saddleback darter (P. vigil). 
The snail darter differs from the river darter by having four saddle 
markings along its back, while the latter lacks saddles altogether. 
Snail darters and river darters are often found together, but river 
darters tend to be associated with slightly larger substrate than snail 
darters (Matthews 2020, pers. comm.). While these species may share 
similar habitat, there is no evidence that they compete for resources.

Habitat

    The snail darter occurs in flowing sections of medium to large 
rivers. In these streams, snail darters are predominantly found over 
clean gravel without significant silt or plant coverage (Ashton and 
Layzer 2010, p. 615). Initially thought to require shallow, unimpounded 
portions of river to survive (Starnes 1977, pp. 21-23), snail darters 
were later found in the impounded but flowing upper sections of 
mainstem Tennessee River reservoirs (Hickman and Fitz 1978, p. 80). 
Snail darters were found in shoals at a depth of 1 to 3 feet (ft) (0.3 
to 1 meters (m)) (Starnes 1977, pp. 21-33; Ashton and Layzer 2010, 
entire). Snail darters have also been found on gravel and cobble 
patches in up to 25 ft (7.6 m) of water with regular captures at 10 to 
15 ft (3 to 5 m) deep (Ripley 1976, entire; Hickman and Fitz 1978, pp. 
80-83; Matthews 2017, pers. comm.; Matthews 2019, pers. comm.). In 
addition to large river habitats, snail darters also occupy the lower 
reaches of larger creeks, and during the breeding season, large numbers 
of darters congregate on the gravel shoals in these creeks to spawn 
(Starnes 1977, p. 64). Detailed descriptions of snail darter habitat 
can be found in Ashton and Layzer (2010, entire) and Starnes (1977, pp. 
21-33).

Life History

    The life history data presented here are modified from Etnier and 
Starnes (1993, p. 588), with additions from

[[Page 48956]]

Hickman and Fitz (1978, pp. 10-38) and Starnes (1977, entire). The 
snail darter is well adapted to its habitat of clean gravel substrate 
in large creeks and rivers. The saddle markings on the back of the fish 
act as camouflage amongst gravel and small cobble, and are a pattern 
seen in other benthic species (Armbruster and Page 1996, pp. 250-252). 
Snail darters also can burrow into the substrate with just their eyes 
exposed to escape predation (Etnier and Starnes 1993, p. 588). The 
species spawns in the late winter and early spring, from about February 
to April. Adults gather on shoals during the breeding season. While 
spawning has not been directly observed, it is likely that the eggs are 
buried shallowly in the sand and gravel similar to how other Percina 
species bury their eggs. Females produce about 600 eggs per season 
during multiple spawning events. Eggs hatch after 15-20 days and 
produce pelagic (in the water column) larvae that drift considerable 
distances downstream. The developing larvae and juveniles likely use 
relatively calm deeper areas of rivers and reservoirs. By the end of 
summer, juveniles are about 1.6 in (40 mm) in length and begin 
migrating upstream. Some fast-growing individuals may reach sexual 
maturity in their first year, but most mature in their second year 
(Etnier and Starnes 1993, p. 588). Snail darters are short-lived fish 
that rarely survive to their fourth year. As their name implies, snail 
darters mostly feed on freshwater snails, predominantly in the genera 
Leptoxis and Lithasia, as well as caddisfly and dipteran (true fly) 
larvae (Etnier and Starnes 1993, p. 588).

Distribution

    When we listed the snail darter (40 FR 47505; October 9, 1975), the 
species was only known from about 13 miles (21 kilometers (km)) of the 
lower Little Tennessee River in Loudoun County, Tennessee. Shortly 
thereafter, the species was found in the Watts Bar Reservoir portion of 
the Tennessee River below the mouth of the Little Tennessee River, and 
efforts were made to conserve the species by translocating individuals 
into other suitable streams (Hickman and Fitz 1977, pp. 80-83). Snail 
darters were collected from the Little Tennessee River and stocked into 
the Hiwassee, Holston, Nolichucky, and Elk Rivers beginning in 1975 to 
achieve this objective. The introductions into the Nolichucky and Elk 
Rivers were halted when sharphead darters (Etheostoma acuticeps), a 
species once thought extinct, were rediscovered there, causing concern 
about competition between the two species. However, the introductions 
into the Holston and Hiwassee Rivers were successful, and it is thought 
that the populations in the French Broad and Ocoee Rivers were 
established by dispersal from these populations (Ashton and Layzer 
2008, pp. 55-56). These locations are presented on a map in Figure 1, 
below.
    After the completion of Tellico Dam on the Little Tennessee River, 
snail darters were located in five additional tributaries and three 
reservoirs: Little River (1983), Big Sewee Creek (1981), Chickamauga 
Reservoir (1976), Nickajack Reservoir (1981), South Chickamauga Creek 
(Tennessee and Georgia portions) (1980), Guntersville Reservoir 
(Tennessee portion) (1981), Sequatchie River (1981), and Paint Rock 
River (Alabama portion) (1981) (Service 1983, pp. 12-19; Service 2013, 
p. 7). A survey in 2005 located the species in seven of the nine 
tributaries surveyed: French Broad River, Hiwassee River, Holston 
River, Little River, Sequatchie River, Big Sewee Creek, and South 
Chickamauga Creek (Ashton and Layzer 2008, p. 54). This survey appears 
to be the last known record of snail darters in Big Sewee Creek 
(Simmons 2019, unpublished data). In this survey, snail darters were 
not located in the Paint Rock River or Ocoee River, though they were 
discovered at both locations in later years (Kuhajda 2018, unpublished 
data). In 2007, a single snail darter was collected in Citico Creek, 
suggesting that snail darters may have persisted in the Little 
Tennessee River watershed after the dam was constructed; however, they 
were not found in follow-up surveys (Service 2013, p. 7).
    More recent survey efforts have continued to document new snail 
darter locations, though with limited information on persistence. In 
2012, two snail darters were collected in the Flint River in Alabama 
(Simmons 2019, p. 1), but they have not been found there since. In 
2015, snail darters were collected in the Elk River in Alabama and in 
Bear Creek in Alabama and Mississippi, over 100 river miles (160 km) 
from the Flint River location. To verify these collections, TVA began 
an effort to survey the mainstem Tennessee River reservoirs for snail 
darters (Simmons 2019, p. 2), collecting snail darters from six 
reservoirs in Tennessee and Alabama: Chickamauga, Nickajack, 
Guntersville, Wheeler, Pickwick, and the French Broad River arm of Fort 
Loudoun Reservoir (Simmons 2019, p. 7; TVA unpublished data). Later 
surveys of the reservoirs located juvenile snail darters in Watts Bar 
Reservoir (Matthews 2020, pers. comm.), but trawling efforts did not 
locate individuals in Tellico, Wilson, and Kentucky Reservoirs (Simmons 
2019, p. 6).
    In 2017 and 2018, an environmental DNA survey was conducted for 
snail darters in the Alabama portion of the Tennessee River Basin 
(Shollenberger 2019, p. 6). Environmental DNA (eDNA) is a surveillance 
tool used to monitor for the genetic presence of an aquatic species. 
These surveys returned positive eDNA detections in the following 
streams and reservoirs where TVA surveys had physically collected snail 
darters during previous survey efforts: Guntersville Reservoir, Wheeler 
Reservoir, Paint Rock River, Elk River, Pickwick Reservoir, and Bear 
Creek. The eDNA surveys returned negative results at locations where 
snail darters had not been collected recently, such as Wilson Reservoir 
and the Flint River, although an eDNA detection was found and then 
validated in 2020 in Shoal Creek, a tributary to Wilson Reservoir 
(Johnson 2020, p. 2).
    In summary, the snail darter's known range has greatly expanded 
since it was first discovered (see Fig. 1). At the time of listing in 
1975, the species was only known from a small reach of the Little 
Tennessee River. By the early 1980s, new populations had been found or 
established in 10 widely dispersed locations, and in 1984, we 
reclassified the snail darter from an endangered to a threatened 
species (49 FR 27510; July 5, 1984), due largely to an increased number 
of populations and a considerable range expansion. Since 2010, 
populations in an additional two reservoirs and three tributaries have 
been discovered (Simmons 2019, pp. 1-2). As a result, snail darters are 
now considered extant in seven mainstem reservoirs of the Tennessee 
River (Fort Loudoun, Watts Bar, Chickamauga, Nickajack, Guntersville, 
Wheeler, and Pickwick) and 12 tributaries in the Tennessee River 
watershed (Holston River, French Broad River, Little River, Hiwassee 
River, Ocoee River, South Chickamauga Creek, Sequatchie River, Paint 
Rock River, Flint River (two individuals), Elk River, Shoal Creek (one 
individual), and Bear Creek). We consider the snail darter extirpated 
from the Little Tennessee River mainstem, Citico Creek, and Sewee 
Creek, and never established in the Nolichucky River.
BILLING CODE 4333-15-P

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[GRAPHIC] [TIFF OMITTED] TP01SE21.000


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BILLING CODE 4333-15-C

Evaluating Populations

    There is not currently enough information available to determine 
population size for the snail darter. Few targeted surveys have been 
conducted for snail darters since the species was downlisted to 
threatened in 1984. Stream community monitoring is conducted by TVA 
throughout the Tennessee River basin using an index of biotic integrity 
(IBI) approach. The IBI uses fish community metrics, such as percent 
insectivore, to develop a score of stream health. These surveys are 
targeting a representative sample of the overall fish assemblage rather 
than individual species, so are not designed to provide population size 
information on rare species, but are useful for determining species 
persistence at a site. Occasional encounters by IBI monitoring crews 
provide information in the intervening years, but many of these surveys 
took place in wadeable portions of streams, missing the deeper water 
habitats often used by the species. Where snail darters are common near 
IBI sites, surveyors intentionally avoid their habitat to reduce the 
probability of injury, which can result in artificially reduced numbers 
of the species in samples. The wide variety of methods used during 
previous survey efforts also makes comparing populations difficult. 
Records from snorkel surveys targeted at other species only note 
incidental sightings of snail darters, not density, and the TVA trawls 
have mostly been carried out to determine the species' presence and 
range (Simmons 2019, p. 1). However, it is likely that reproducing 
populations of the species exist in at least 16 locations (6 reservoirs 
and 10 tributaries) based on repeated collections that have been made 
at those locations, evidence of multiple age classes at those locations 
(i.e., suggesting regular recruitment into the population), and 
multiple males and females captured at those locations (see Tables 1 
and 2 in Summary of Biological Status, below).

Recovery

    Section 4(f) of the Act directs us to develop and implement 
recovery plans for the conservation and survival of endangered and 
threatened species unless we determine that such a plan will not 
promote the conservation of the species. Recovery plans must, to the 
maximum extent practicable, include ``objective, measurable criteria 
which, when met, would result in a determination, in accordance with 
the provisions [of section 4 of the Act], that the species be removed 
from the list.''
    Recovery plans provide a roadmap for us and our partners on methods 
of enhancing conservation and minimizing threats to listed species, as 
well as measurable criteria against which to evaluate progress towards 
recovery and assess the species' likely future condition. However, they 
are not regulatory documents and do not substitute for the 
determinations and promulgation of regulations required under section 
4(a)(1) of the Act. A decision to revise the status of a species, or to 
delist a species is ultimately based on an analysis of the best 
scientific and commercial data available to determine whether a species 
is no longer an endangered species or a threatened species, regardless 
of whether that information differs from the recovery plan.
    There are many paths to accomplishing recovery of a species, and 
recovery may be achieved without all of the criteria in a recovery plan 
being fully met. For example, one or more criteria may be exceeded 
while other criteria may not yet be accomplished. In that instance, we 
may determine that the threats are minimized sufficiently and that the 
species is robust enough that it no longer meets the definition of an 
endangered species or a threatened species. In other cases, we may 
discover new recovery opportunities after having finalized the recovery 
plan. Parties seeking to conserve the species may use these 
opportunities instead of methods identified in the recovery plan. 
Likewise, we may learn new information about the species after we 
finalize the recovery plan. The new information may change the extent 
to which existing criteria are appropriate for identifying recovery of 
the species. The recovery of a species is a dynamic process requiring 
adaptive management that may, or may not, follow all of the guidance 
provided in a recovery plan.
    The snail darter recovery plan (Service 1983, entire) included 
recovery criteria to indicate when threats to the species have been 
adequately addressed and prescribed actions that were thought to be 
necessary for achieving those criteria. Below, we discuss our analysis 
of available data and our determination as to whether recovery criteria 
for the snail darter have been achieved.

Recovery Criteria

    The objective of the recovery plan is to protect and recover the 
snail darter to the point where it can be removed from the Federal List 
of Endangered and Threatened Wildlife. The recovery plan states that 
the species ``shall be considered recovered when one of the 
alternatives (A, B, or C) listed below is met and no present or 
foreseeable threats exist that could cause the species to become in 
danger of extinction'' (Service 1983, p. 27).
     Alternative A: Suitable habitat areas of the Tennessee 
River within the area from the backwaters of Wheeler Reservoir upstream 
to the headwaters of Watts Bar Reservoir are inhabited by snail darter 
populations that can survive and reproduce independently of tributary 
rivers as evidenced by documented reproduction in Watts Bar Reservoir 
or some other Tennessee River reservoir.
     Alternative B: More Tennessee River tributary populations 
of the species are discovered and existing populations are not lost. 
The number of additional populations needed to meet this criteria would 
vary depending on the status of the new populations, but two 
populations similar to the Big Sewee Creek, South Chickamauga Creek, or 
Sequatchie River populations, or one comparable to the Hiwassee River 
population, would denote recovery.
     Alternative C: Through maintenance of existing populations 
and/or by expansion of these populations, there exist viable 
populations of snail darters in five separate streams such as Big Sewee 
Creek, Hiwassee River, South Chickamauga Creek, Sequatchie River and 
Paint Rock River. (For this alternative, ``viable populations'' means 
that population monitoring over a 10-year period (biannual sampling) 
indicates that the snail darter is reproducing (at least two year 
classes present each year sampled) and that the population is either 
stable or expanding. For some populations, existing data may be used to 
meet this requirement.)
Achievement of Recovery Criteria
    Alternative A of the recovery criteria requires that snail darters 
be present in suitable habitats within reservoirs from Wheeler 
Reservoir upstream to Watts Bar Reservoir and evidence of reproduction 
within reservoirs independent of tributaries in at least one reservoir. 
We conclude that Alternative A has been met based on collection of 
seven permanent mainstem populations (Pickwick, Wheeler, Guntersville, 
Nickajack, Chickamauga, Watts Bar, and Fort Loudoun reservoirs) and 
evidence of reproduction independent of tributaries in Chickamauga, 
Nickajack, and Wheeler reservoirs (see Tables 1 and 2 in Summary of 
Biological Status, below, and Figure 1 in Background, above). These 
populations represent

[[Page 48959]]

multiple reservoirs, rivers and span at least three physiographic 
regions (Highland Rim, Cumberland Plateau, and Ridge and Valley) 
(Etnier and Starnes 1993, p. 3; Mettee et al. 1996, p. 5).
    Our assessment of the tributary populations of snail darters 
supports the determination that Alternative B has also been met. 
Alternative B of the recovery criteria requires the discovery or 
establishment of at least two new tributary populations similar to the 
Big Sewee Creek, South Chickamauga Creek, or Sequatchie River 
populations or one comparable to the Hiwassee River population. In our 
analysis, we determined that 10 tributary populations are extant that 
have a moderate or high resilience (see Table 1, below). Four of these 
(French Broad River, Ocoee River, Elk River, and Bear Creek) have been 
found or established since the recovery plan was finalized. The largest 
new population occurs in the lower French Broad River. The founders of 
this population were likely migrants or juveniles from the stocked 
population in the Holston (Service 2013, p. 14). Snail darters have 
been collected across at least 21.8 miles (35.1 km) of the French Broad 
River and across 19 miles (30.5 km) of the Hiwassee River (Ashton and 
Layzer 2008, pp. 54-55; Kuhajda 2018, supplementary data; TVA, 
unpublished data). Therefore, the requirement to discover or establish 
a population comparable to the Hiwassee River population has been met.
    Additionally, Alternative B gives the option of two tributary 
populations comparable to Big Sewee Creek, South Chickamauga Creek, and 
Sequatchie River. The current populations in the Ocoee River and Bear 
Creek are comparable to the Big Sewee Creek, South Chickamauga Creek, 
and Sequatchie River populations at the time the recovery plan was 
finalized based on captures and occupied stream length.
    Since 2011, snail darters have been found consistently in the Ocoee 
River by TVA IBI crews, appearing in every biannual sample since 2015. 
Snail darters have been collected across 5.9 miles (9.5 km) of the 
Ocoee River, and collections of snail darters in the Hiwassee River 
near the mouth of the Ocoee suggests that they may occupy more of the 
river.
    Snail darters have only been collected as individuals or pairs, but 
the lower portion of Bear Creek is in the Gulf Coastal Plain 
physiographic region, so preferred habitat is more limited than in 
other streams. Individuals have been collected across 5.8 miles (9.3 
km) of Bear Creek, but trawling collections near the mouth of Bear 
Creek and eDNA detections in the lower parts of the Bear Creek system 
and at its mouth suggest that snail darters may occur in an additional 
25 miles (40 km) of the creek (Simmons 2019, supplementary data; 
Shollenberger 2019, pp. 14-16).
    Since 2015, snail darters have been collected in 1.4 miles (2.3 km) 
of the Elk River in Tennessee. Snail darters may also occur in the 
Alabama portion of the Elk River over more than 20 river miles of free-
flowing stream down to the portion of the river inundated by Wheeler 
Reservoir (Simmons 2019, supplementary data; Shollenberger 2019, pp. 
14-16).
    In summary, our assessment of the tributary populations of the 
snail darter supports the determination that Alternative B has been met 
based on the establishment of the French Broad River population that is 
comparable to the Hiwassee population. Additionally, the Ocoee River, 
Bear Creek, and Elk River populations are comparable to the Big Sewee 
Creek historical population, which was found across 4.2 miles of 
stream, exceeding the prescription in Alternative B for at least one 
additional large population or two additional small populations.
    Alternative C has been partially met. This alternative of the 
recovery criteria calls for the maintenance of viable populations in 
five separate streams. The definition for viable populations in the 
1983 recovery plan requires biannual monitoring over a 10-year period 
with enough data to demonstrate a stable or increasing population size 
and evidence of reproduction indicated by the presence of at least two 
year classes present in each year sampled. We do not have sufficient 
specific monitoring data to meet this definition since most of our 
collections come from TVA IBI surveys that are not species-specific. 
However, our analysis of the tributary populations found 10 populations 
that were considered at least moderately resilient (see Table 1 in 
Summary of Biological Status, below). Of these, nine met the 
requirement of Alternative C that at least two year classes be present. 
The discovery of populations in Bear Creek, Elk River, Wheeler 
Reservoir, and Pickwick Reservoir since 2009 shows evidence of either 
species expansion, or growth of existing populations to the level of 
detection (see Table 2 in Summary of Biological Status, below). The 
presence of resilient populations in 10 tributaries and 7 mainstem 
reservoirs across four physiographic regions provides evidence of high 
redundancy and representation for the species (see further explanation 
of these terms in Analytical Framework, below).

Regulatory and Analytical Framework

Regulatory Framework

    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 requires that we determine 
whether any species is an ``endangered species'' or a ``threatened 
species'' because of any of the following factors:
    (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 other actions or conditions that may ameliorate any negative 
effects or 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). The term ``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 species' expected response and 
the

[[Page 48960]]

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 existing regulatory mechanisms or 
conservation efforts. The Secretary determines whether the species 
meets the definition of an ``endangered species'' or a ``threatened 
species'' only after conducting this cumulative analysis and describing 
the expected effect on the species now and in the foreseeable future.
    The Act does not define the term ``foreseeable future,'' which 
appears in the statutory definition of ``threatened species.'' Our 
implementing regulations at 50 CFR 424.11(d) set forth a framework for 
evaluating the foreseeable future on a case-by-case basis. The term 
foreseeable future extends only so far into the future as the Services 
can reasonably determine that both the future threats and the species' 
responses to those threats are likely. In other words, the foreseeable 
future is the period of time in which we can make reliable predictions. 
``Reliable'' does not mean ``certain''; it means sufficient to provide 
a reasonable degree of confidence in the prediction. Thus, a prediction 
is reliable if it is reasonable to depend on it when making decisions.
    It is not always possible or necessary to define foreseeable future 
as a particular number of years. Analysis of the foreseeable future 
uses the best scientific and commercial data available and should 
consider the timeframes applicable to the relevant threats and to the 
species' likely responses to those threats in view of its life-history 
characteristics. Data that are typically relevant to assessing the 
species' biological response include species-specific factors such as 
lifespan, reproductive rates or productivity, certain behaviors, and 
other demographic factors.

Analytical Framework

    To assess species viability, we use the three conservation biology 
principles of resiliency, redundancy, and representation (Shaffer and 
Stein 2000, pp. 306-310).
    Briefly, resiliency supports the ability of the species to 
withstand environmental and demographic stochasticity (for example, wet 
or dry, warm or cold years), redundancy supports the ability of the 
species to withstand catastrophic events (for example, droughts, large 
pollution events), and representation supports the ability of the 
species to adapt over time to long-term changes in the environment (for 
example, climate change). In general, the more resilient and redundant 
a species is and the more representation it has, the more likely it is 
to sustain populations over time, even under changing environmental 
conditions. Using these principles, we identified the species' 
ecological requirements for survival and reproduction at the 
individual, population, and species levels and described the beneficial 
and risk factors influencing the species' viability.

Summary of Biological Status

Resiliency Analysis

    As explained above in Evaluating Populations, the existing data 
available do not allow us to estimate population sizes for snail 
darter. However, collections over multiple years and the presence of 
multiple age classes provide evidence of persistence in tributaries 
throughout the snail darter's range. In the reservoirs, the capture of 
multiple individuals and evidence of multiple age classes typically 
represents a sustainable population. Where available, presence of snail 
darters in breeding condition is used as additional evidence of 
spawning, because snail darters move onto the spawning ground before 
spawning commences (Starnes 1977, p. 64). We used IBI scores from fixed 
monitoring stations to address stream health where possible for 
tributary populations. These scores are generated from fish assemblage 
surveys throughout the Tennessee River Valley and rank streams from 12 
to 60 (poor to excellent) based on metrics such as total number of 
species, proportions of intolerant and tolerant species, and the 
numbers of species in various ecological guilds (TVA 2005, pp. 5-7). We 
use these measures to describe the resiliency of the snail darter 
populations and their contributions to the species' recovery.
    Tributary Resiliency--We characterized snail darter population 
resiliency in 14 tributaries (11 extant populations, one extirpated, 
and two apparently not established with only one collection each and no 
evidence of reproduction) using data related to three factors: 
Collections in multiple years since 2009, presence of multiple year 
classes in these samples, and TVA IBI scores for the tributary 
populations (see resiliency scores for these factors in Table 1, 
below). Detection of the species in multiple years provides evidence of 
persistence within a tributary. Consistent collections also indicate 
population numbers that are high enough to be detected using non-
depletion methods (not every fish in a sample reach is caught), which 
is relevant for species like the snail darter that are difficult to 
capture with standard fish sampling equipment. The presence of multiple 
age classes is evidence of successful reproduction in the population. 
Given that snail darters only live 4 years and likely do not mature 
until their second year, it would only take a few years of failed 
reproduction for a population to be extirpated (Etnier and Starnes 
1993, p. 588). We reviewed the available data to determine population 
scores for each of the tributaries. The best available data are not 
sufficient to determine snail darter population size or trends due to 
the typically small numbers collected at any given site; however, we 
can address resiliency of the tributary populations by looking at 
persistence over time and evidence of reproduction. To do this, we used 
data from snail darter collections and observations from TVA and 
Conservation Fisheries, Inc., and data compiled by the Tennessee 
Aquarium Conservation Institute.
    We used IBI scores to address stream community health where 
possible for tributary populations. Measuring the overall fish 
community is a way to investigate habitat quality, water quality, and 
ecosystem stability by proxy of the fish that live in the stream. The 
IBI incorporates 12 metrics to measure fish community health based on 
the number of species or proportion of individuals in different guilds 
(group of species with similar life history) compared to what is 
expected in a reference condition stream. These metrics are adjusted 
based on stream size and physiographic region in order to be relevant 
to the differences in natural conditions across the Tennessee River 
Basin. Each metric is assigned a value matching a ranking of good (5), 
fair (3), or poor (1). The 12 metrics are then summed for each, 
yielding an overall rating of the stream community health. An IBI score 
of 12 to 22 equates to a very poor rating, 28 to 34 to a poor rating, 
40 to 44 to a fair rating, 48 to 52 to a good rating, and 58 to 60 to 
an excellent rating. Scores between these ranges received intermediate 
ratings (TVA 2005, entire). To determine potential IBI trends, we 
compared overall IBI scores for sites within the range of snail darters 
in each tributary from 2009 to 2019. Roughly half of the tributaries 
(French Broad River, Little

[[Page 48961]]

River, Hiwassee River, Ocoee River, Elk River, and Flint River) showed 
some improvement during the 1999-2009 period, but during the 2009-2019 
analysis period, the communities in all of the tributaries were mostly 
stable.
    We combined the population metrics to give a population score (low, 
medium, or high), and the habitat metrics combined to form a composite 
habitat score (low, medium, or high). These scores are compiled in 
Table 1, below. The population and habitat scores were averaged to 
provide the overall resilience score. Tributaries with multiple 
collections (of several fish each collection) and multiple age classes 
over the 12-year period were ranked high; conversely, those with only 
one collection and no evidence of reproduction were considered not 
established. Age classes were assigned by body length, based on life-
history studies (Starnes 1977, pp. 47-63; Hickman and Fitz 1978, pp. 
10-19). Sites with multiple collections but only one age class were 
ranked low. Tributaries with good or better IBI scores that were stable 
or improving were then ranked high, and tributaries with fair IBI 
scores with stable or improving conditions were ranked moderate. 
Overall resilience was calculated by averaging the column scores. Where 
snail darters had been extirpated or not established, IBI scores were 
not incorporated. While the habitat in Little River is very good, we 
found that the low numbers (three or fewer individuals in any single 
observation) of snail darters captured and the lack of multiple age 
classes did not warrant categorizing the Little River population as 
moderate or high. Our results of the tributary resiliency analysis are 
summarized in Table 1.

                           Table 1--Tributary Population Resiliency Based on Collection Data and TVA IBI Scores From 2009-2019
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                   Multiple        Multiple  age      Population                                                             Overall
          Tributary               detections          classes            score          IBI  score        IBI trend      Habitat score      resiliency
--------------------------------------------------------------------------------------------------------------------------------------------------------
Holston River................  Yes.............  Yes.............  High............  Fair............  Stable.........  Moderate.......  Moderate/high.
French Broad River...........  Yes.............  Yes.............  High............  Fair/good.......  Stable or        High...........  High.
                                                                                                        improving.
Little River.................  Yes.............  No..............  Low.............  Good/excellent..  Stable.........  High...........  Low.
Citico Creek.................  No..............  No..............  Not established.  Good............  Stable.........  High...........  Not
                                                                                                                                          established.
Big Sewee Creek..............  No..............  No..............  Extirpated......  Poor/fair.......  Stable.........  Low............  Extirpated.
Hiawassee River..............  Yes.............  Yes.............  High............  Good/excellent..  Stable.........  High...........  High.
Ocoee River..................  Yes.............  Yes.............  High............  Fair............  Stable.........  Moderate.......  Moderate/high.
South Chickamauga Creek......  Yes.............  Yes.............  High............  Fair............  Stable or        Moderate.......  Moderate/high.
                                                                                                        declining.
Sequatchie River.............  Yes.............  Yes.............  High............  Fair............  Stable or        Moderate.......  Moderate/high.
                                                                                                        declining.
Paint Rock River.............  Yes.............  Yes.............  High............  Fair/good.......  Stable.........  High...........  High.
Flint River..................  No..............  No..............  Not established.  Fair............  Insufficient     Moderate.......  Not
                                                                                                        data.                             established.
Elk River....................  Yes.............  Yes.............  High............  Fair/good.......  Stable or        High...........  High.
                                                                                                        improving.
Shoal Creek..................  No..............  No..............  Not established.  Good............  Stable or        High...........  Not
                                                                                                        improving.                        established.
Bear Creek...................  Yes.............  Yes.............  High............  Good............  Stable or        High...........  High.
                                                                                                        improving.
--------------------------------------------------------------------------------------------------------------------------------------------------------

    Reservoir Resiliency--Using the data available from the TVA snail 
darter trawl surveys (Simmons 2019, p. 3), we analyzed resiliency of 
the reservoir populations based on first, the number of individuals 
captured; and second, evidence of reproduction, with evidence of 
reproduction established either through presence of multiple age 
classes, adults in spawning condition (gravid females and/or males 
flowing milt [sperm]), or juveniles. To categorize number of 
individuals, we classified collections of 0-4 individuals as low, 5-9 
as moderate, and >=10 as high. To classify reproduction, given the 
limited sampling effort to date, collection of more than one age class 
or other evidence of reproduction resulted in a high rating in the 
reproduction metrics. Collection of only one age class or no other 
evidence of reproduction resulted in a low rating. Similar to the 
stream population, overall resilience was calculated by averaging the 
scores of the number collected and reproduction metrics. Results are 
summarized below in Table 2.

                                   Table 2--Reservoir Population Collections Based on TVA Benthic Trawls, 2016-2019 *
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                         Population  score        Age
              Reservoir                 (number  collected)     classes    Evidence of  reproduction      Reproduction  score       Overall  resilience
--------------------------------------------------------------------------------------------------------------------------------------------------------
Fort Loudoun........................  Low (2)................          2  No........................  High......................  Moderate.
Watts Bar...........................  Low (3)................          1  Yes.......................  High......................  Moderate.
Chickamauga.........................  Low (4)................          2  Yes.......................  High......................  Moderate.
Nickajack...........................  High (11)..............          2  Yes.......................  High......................  High.
Guntersville........................  High (33)..............          2  No........................  High......................  High.
Wheeler.............................  High (18)..............          2  Yes.......................  High......................  High.
Wilson..............................  Low (0)................          0  No........................  N/A.......................  Not established.
Pickwick............................  High (18)..............          3  No........................  High......................  High.

[[Page 48962]]

 
Kentucky............................  Low (0)................          0  No........................  N/A.......................  Not established.
--------------------------------------------------------------------------------------------------------------------------------------------------------
* Age classes based on total length measurements from Hickman and Fritz (1978). Evidence of reproduction is based on capture of juvenile individuals,
  adults in spawning condition, or multiple age classes (Simmons 2019, p. 7).

    For the purpose of evaluating the snail darter's status, we 
considered those tributaries that ranked moderate or high as 
contributing to resiliency. Because of the limited amount of reservoir 
sampling that has been completed, we considered those reservoir 
populations that had evidence of reproduction present as permanent, 
independent populations (Simmons 2019, p. 2) that contribute to 
resiliency. We, therefore, considered 7 reservoir populations (Fort 
Loudoun, Watts Bar, Chickamauga, Nickajack, Guntersville, Wheeler, and 
Pickwick) and 10 tributary populations (Holston, French Broad, Little, 
Hiwassee, Ocoee, Sequatchie, Paint Rock, and Elk Rivers, and South 
Chickamauga and Bear Creeks) as contributing to species resiliency. We 
did not count Wilson Reservoir or Kentucky Reservoir toward resiliency 
because snail darters had never been collected there despite trawling 
efforts. While Watts Bar is only represented by three juveniles, their 
collection far from any large tributaries is evidence of reproduction 
within the reservoir. We did not consider Citico Creek, Big Sewee 
Creek, Flint River, or Shoal Creek as contributing toward resiliency 
either, because the species had not been collected there within the 
analysis period, despite multiple efforts (Big Sewee Creek, Citico 
Creek) or because a single snail darter had been found on only one 
occasion (Shoal Creek, Flint River) and we considered the populations 
to be not established in those locations (see Table 1, above).

Analysis of Redundancy and Representation

    With discoveries of new tributary and reservoir populations, the 
known redundancy and representation of the snail darter has expanded 
during the analysis period. When we listed the species (40 FR 47505; 
October 9, 1975), it had very low redundancy and representation because 
only one population was known from several miles of the Little 
Tennessee River, in the Ridge and Valley physiographic region. 
Currently, the species is known across more than 400 miles (640 km) of 
the Tennessee River Valley, with moderately to highly resilient 
populations in 9 tributaries and 7 reservoirs, providing a level of 
redundancy that helps shield the species from localized stochastic 
events.
    While we do not have population genetic data for the snail darter, 
we can look at the species' ability to adapt to changes in the 
environment (representation) by looking at its distribution across a 
range of habitats and physiographic regions. Resilient populations are 
currently known from streams ranging in size from mid-sized creeks to 
the large Tennessee River itself, with collections in depths ranging 
from less than 3 ft (1 m) to 25 ft (7.6 m). These populations occur in 
reservoirs and tributaries with these conditions in four different 
physiographic regions (Ridge and Valley, Cumberland Plateau, Highland 
Rim, and Gulf Coastal Plain). This wide range of habitat use and 
geographic distribution helps to demonstrate the snail darter's 
adaptability to changing environmental pressures (representation).

Summary of Factors Affecting the Species

    A recovered species is one that no longer meets the Act's 
definition of an endangered species or a threatened species. 
Determining whether the status of a species has improved to the point 
that it can be delisted or downlisted requires consideration of the 
same five factors identified above for listing a species. When we 
initially listed the snail darter as endangered in 1975, the only 
identified threat influencing its status was the modification and loss 
of habitat and curtailment of range (Factor A) caused by the completion 
of Tellico Dam and the flooding of the entire known range of the 
species. When we reclassified the species as threatened in 1984, we 
evaluated a more complete list of factors based on improved knowledge 
of the snail darter's range and life history. These factors included 
threats to habitat such as shipping activities in the mainstem 
Tennessee River, impacts from development in some of the tributaries 
such as South Chickamauga Creek, threats from agricultural runoff and 
channelization in streams like the Elk River, impacts from coal mining 
in the Sequatchie River watershed, and chemical spills in the Hiwassee 
and Ocoee watersheds (Factor A); excessive collection associated with 
the notoriety of the species (Factor B); and protections afforded the 
species by State and Federal laws (Factor D). The following analysis 
evaluates these previously identified threats, any other threats 
currently facing the species that we have identified, as well as any 
other threats that are reasonably likely to affect the species in the 
foreseeable future.
    To establish the foreseeable future for the purpose of evaluating 
trends in the threats and the species' responses, we analyzed trends 
from historical data on distribution and abundance, ongoing 
conservation efforts, factors currently affecting the species, and 
predictions of future climate change. When combined with our knowledge 
of factors affecting the species (see discussion below), available data 
allow us to reasonably predict future conditions, albeit with 
diminishing precision over time. Given our understanding of the best 
available data, for the purposes of this proposed rule, we consider the 
foreseeable future for the snail darter to be approximately 30 years. 
We determined that we can reasonably predict the threats to the species 
and the species' response during this timeframe based on climate 
vulnerability assessments through 2050, the planning horizon of the 
reservoir release improvement program (RRIP), and enough time for the 
species to respond based on biology and lifespan.
    As noted above, when the species was downlisted (49 FR 27510; July 
5, 1984), the reclassification rule identified additional threats to 
habitat in the additional populations established or discovered since 
listing (40 FR 47505; October 9, 1975). These included threats from 
shipping activities in the mainstem Tennessee River, impacts from 
development in some of the tributaries such as South Chickamauga Creek, 
threats from agricultural runoff and channelization in streams like the 
Elk River, impacts from coal mining in the Sequatchie River watershed, 
and

[[Page 48963]]

chemical spills in the Hiwassee and Ocoee watersheds.
    One of the biggest factors still affecting the snail darter is the 
impoundment of large portions of the Tennessee River Valley. The TVA 
operates 9 dams on the mainstem Tennessee River and 38 dams on 
tributaries to the Tennessee River. These impoundments create large 
areas of deep, still water that do not meet the habitat needs of the 
snail darter. Snail darters are limited in the depth they can occupy by 
the presence of food resources. Snails, the darter's preferred prey, 
live only in water shallow enough for light to penetrate and allow 
algae to grow on the substrate, about 15-20 ft (5-7 m) in much of the 
Tennessee mainstem. Impoundment also reduces stream flow and allows 
fine sediments to settle out, which can cover the clean gravel habitats 
needed by snail darters. Additionally, these dams were initially 
operated with a hydropeaking strategy, only releasing water when needed 
to generate electricity or maintain reservoir level or flood storage 
capacity. In addition, many of these releases came from the water 
levels within the reservoir that held cold, oxygen-deficient water. 
Collectively, these factors created conditions in the tailwaters that 
negatively affected water quality, food availability, and fish 
diversity.
    Given the long operational lifespan of dams (>100 years), it is 
nearly certain that the TVA reservoirs will be in place for the 
foreseeable future. However, beginning in 1981, TVA began studies to 
improve conditions in the tailwaters of their dams. The cold, oxygen-
deficient water released from the bottom of many of the dams created 
conditions that eliminated many fish and mussel species from these 
areas. Through the RRIP, TVA began implementing strategies to increase 
minimum flow, dissolved oxygen, and, in some cases, temperature, in the 
tailwaters of their dams beginning in 1991 (Bednarek and Hart 2005, p. 
997). In 2002, TVA conducted a reservoir operation study to consider 
how to implement these changes across the basin to improve the health 
of the river (TVA 2004, p. ES-3). The result was to manage the river 
based on minimum flows instead of reservoir level and improve tailwater 
conditions. These changes have resulted in significant improvements in 
biological and abiotic variables and increases in fish and invertebrate 
diversity in many TVA dam tailwaters (Layzer and Scott 2006, entire; 
Bednarek and Hart 2005, entire; Scott et al. 1996, entire). These 
improvements have likely resulted in improved conditions for the snail 
darter and may have contributed to improvements to the species' status 
within tailwaters since the 1990s, across more than 400 miles (640 km) 
of the mainstem of the Tennessee River. Since the RRIP is based on 
ecologically meaningful parameters in the tailwaters, such as dissolved 
oxygen and temperature, this program may be able to provide some 
resiliency to a warming climate and precipitation variability in the 
future, especially if TVA adjusts the program to maintain the needed 
conditions in the tailwaters. The reservoir operation study is planned 
along an approximately 25-year timeline, extending to 2030 (TVA 2004, 
p. ES-4). However, given the presence of at least 10 other listed 
aquatic species in the tailwaters of the mainstem Tennessee River 
reservoirs and the complexities of changing the operations plan, it is 
very likely that TVA will continue RRIP as part of their compliance 
with the Act for these other species beyond the timeline of the 
environmental impact statement (EIS) and biological opinion that were 
prepared under Section 7 of the Act before alterations were made to dam 
release management. For these same reasons, TVA will likely incorporate 
RRIP to protect federally listed mussels present when it revisits its 
EIS around 2030, and because the current EIS's term is 25 years, it is 
reasonable to assume TVA will issue another 25-year EIS. Therefore, we 
estimate these conditions benefiting the snail darter will continue 
through at least midcentury (Baxter 2020, pers. comm.). Overall, the 
persistence and expansion of snail darter populations in the mainstem 
since the 1970s indicate greater resiliency in these habitats than was 
considered at the time of listing, particularly now with the 
implementation of TVA's RRIP.
    Anthropogenic changes to the land can also negatively impact the 
snail darter and its habitats. Sedimentation is one of the biggest 
threats to water quality in the Tennessee River Valley, including in 
streams occupied by snail darters. Big Sewee Creek has been impacted by 
sedimentation from persistent farming in the watershed, reducing the 
amount and quality of gravel habitat in the stream. The predominant 
agricultural activities contributing to sedimentation in Big Sewee 
Creek (livestock pasture and row crops) are exempt from many State and 
Federal regulations designed to reduce sediment runoff, and these 
activities are likely to continue into the future. Therefore, we do not 
expect this population to reestablish unless habitat conditions improve 
in the future. Sedimentation from agriculture and development is also 
considered a concern in the lower Little Tennessee River, Sequatchie 
River, South Chickamauga Creek, and Paint Rock River watersheds. There 
have been watershed-level efforts to address sedimentation issues in 
some of the tributaries where snail darters have been found. The South 
Chickamauga Creek Land Treatment Watershed Project, an effort of the 
Natural Resources Conservation Service (NRCS) of the U.S. Department of 
Agriculture (USDA), began in 2001, to reduce the runoff of sediment and 
nutrients in the watershed by installing animal waste management 
systems (see 65 FR 44519; July 18, 2000). Additionally, the Limestone 
Valley Resource Conservation and Development Council is working with a 
wide variety of partners to implement the South Chickamauga Creek 
Headwaters Management Plan, developed in 2012, to address water quality 
issues (Smith and Huser 2012, pp. i-3). In the Paint Rock River, The 
Nature Conservancy (TNC) has designated a ``landscape conservation 
area'' and worked to address sedimentation issues from agriculture 
throughout the watershed, resulting in improved conditions for aquatic 
fauna (Throneberry 2019, unpublished data). Many of these efforts 
include restoring natural stream channel characteristics where streams 
have been channelized. These efforts have been undertaken outside of 
species-specific recovery efforts for the snail darter, and they are 
likely to continue regardless of the delisting of the species. Other 
small-scale efforts have been undertaken to reduce sedimentation in 
many of the other tributaries inhabited by snail darters. It is likely 
that sedimentation has resulted in the extirpation of snail darters 
from Big Sewee Creek, but there is some potential for recolonization by 
individuals from Chickamauga Reservoir if habitat conditions improve.
    Urban and suburban development may impact the snail darter as well. 
Increases in the amount of impervious surfaces associated with 
development increase runoff to streams, destabilize hydrology, and 
increase water temperature. Additionally, residential and commercial 
development are associated with increased runoff of lawn and automotive 
chemicals into the streams (Matthaei and Lang 2016, p. 180; Walsh et 
al. 2005, p. 707). The snail darter tributaries currently most impacted 
by development and the chemical and sediment runoff associated with it 
are South

[[Page 48964]]

Chickamauga Creek in Chattanooga, Tennessee; Flint River in Huntsville, 
Alabama; and Little River in Maryville, Tennessee. Based on the SLEUTH 
(Slope, Land use, Excluded area, Urban area, Transportation, Hillside 
area) model, these areas are anticipated to have increased suburban and 
urban growth in the next 30 years, which might further impact South 
Chickamauga Creek, Flint River, and Little River; there is also the 
potential for increased urban impacts to the Sequatchie River and Paint 
Rock River watersheds associated with the growth of Chattanooga and 
suburban development from Huntsville, respectively (Terando et al. 
2014, pp. 1-3). However, based on the persistence of snail darters in 
South Chickamauga Creek, which scored moderate in our analysis (see 
Table 1, above), it appears that there is some evidence to support a 
conclusion that the species is resilient to the impacts of 
urbanization.
    Additionally, the Thrive Regional Partnership is a group working to 
promote responsible growth in a 16-county region in the Greater 
Chattanooga area. The partnership's goal is to improve communities 
while maintaining healthy ecosystems. Thrive has identified portions of 
streams and surrounding land that are key to preserving and enhancing 
water quality in the region of interest, with the goals of conserving 
50 percent of unprotected forest and improving water quality in at 
least 50 percent of polluted streams by 2055. The area covered by this 
initiative includes portions of the Big Sewee Creek, South Chickamauga 
Creek, Sequatchie River, and Paint Rock River watersheds (Thrive 
Regional Partnership 2019, entire).
    The threat of chemical and industrial spills was raised as a 
potential threat in the downlisting rule (49 FR 27510; July 5, 1984). 
The range of the snail darter is crossed by several major highways and 
railroad lines, making the possibility of a spill during transport an 
ongoing risk. Such spills have occurred as recently as 1991 in the 
Hiwassee River, but while spills may have severe impacts locally, they 
are unlikely to affect the species as a whole given its wide range in 
the mainstem of the Tennessee River and several tributaries (Service 
2013, p. 18). Furthermore, the Ocoee River has suffered from industrial 
and mine runoff from the historical copper extraction in the watershed. 
Within the Ocoee River watershed, concerted efforts have been made to 
clean up industrial and mine-related pollution, resulting in much 
improved water quality and a healthier ecosystem, which may have 
contributed to the increased numbers of snail darters seen in that 
river since the Service's 2013 5-year review (Service 2013, p. 12; 
Simmons 2019, unpublished data).
    The threat to snail darters from coal mining in the Sequatchie 
Valley has been greatly reduced since the recovery plan was completed. 
Mining for coal in the Sequatchie Valley ceased in the 1990s, and since 
that time, there have been efforts to remediate acid mine drainage in 
the area. Currently, there are no active coal mining permits in the 
Sequatchie Valley (OSMRE 2016, p. 34; ITRC 2010, entire).
    The Tennessee River is a major inland shipping corridor, and in the 
downlisting rule (49 FR 27510; July 5, 1984), activities associated 
with barge traffic were considered to potentially threaten snail 
darters through habitat alterations in the mainstem Tennessee River 
reservoirs. Barge and large boat wakes can result in significant bank 
erosion along the river. Within the mainstem reservoirs, bank 
stabilization efforts have occurred in some significantly impacted 
areas and have reduced sedimentation at those locations, but there is 
no concerted plan to address this source of sediment across the 
Tennessee River basin. However, there is some evidence that areas of 
consistent traffic, such as barge mooring cells, may provide areas of 
silt-free habitat swept clean by tug engines (Matthews 2017, pers. 
comm.; Walker and Alford 2016, p. 1101).
    In summary, while effects to snail darter habitat (Factor A) 
associated with continued urbanization and agriculture are certain to 
persist into the foreseeable future, efforts are being made to reduce 
the impact to many of the tributaries inhabited by snail darters. 
Additionally, snail darters appear to be resilient to urbanization and 
agriculture, including practices such as channelization, in certain 
tributaries such as South Chickamauga Creek and Sequatchie River. In 
the Sequatchie River, the threat from coal mining is reduced with the 
cessation of mining in the valley and ongoing reclamation efforts. The 
mainstem populations are less susceptible to sedimentation and runoff 
associated with agriculture and urbanization due to the buffering 
capacity of the larger river, but they still may be affected by bank 
erosion and industrial transport along the Tennessee River. However, 
population persistence and the apparent expansion in the mainstem since 
the 1970s demonstrate the resiliency of the snail darter within these 
habitats, especially with the implementation of TVA's RRIP.
    At the time of the downlisting rule (49 FR 27510; July 5, 1984), 
the Service projected that the notoriety of the snail darter could 
result in an increase in illegal collection (Factor B); however, no 
such activities have been observed or documented since that rule was 
published. Snail darters receive some protection against collection 
from the States. The species is listed as threatened in Tennessee, 
endangered in Georgia, and protected as a non-game species in Alabama 
and Mississippi. These protections require State permits for the 
collection of the species.
    The snail darter's habitat is also protected by State water quality 
laws that require the use of best management practices, such as leaving 
a riparian buffer, when clearing or building near a stream (Factor D). 
In Tennessee, any waterway with a State-listed species is designated an 
``Exceptional Tennessee Waterway,'' and projects impacting these 
streams are required to undergo additional review before receiving the 
necessary State permits. While agriculture is typically exempt from 
many of the provisions in State laws, various efforts described above, 
such as those in the Paint Rock River and South Chickamauga Creek, are 
working to reduce the impact of sedimentation from agriculture on the 
snail darter. Additionally, the snail darter's range overlaps with the 
ranges of more than 10 federally endangered mussels. This provides some 
protection, as entities implementing projects with a Federal nexus, 
such as infrastructure repair and construction and dam operation, are 
required to consult with the Service to reduce the impacts to listed 
species and designated critical habitat. These consultations may result 
in changes to the project to reduce sedimentation or limit the time of 
year when construction can take place to reduce disruption to the life 
history of a species. The protection, restoration, conservation, and 
management of ecological resources within the snail darter's range have 
been broadly enhanced through Executive Orders and Federal regulations 
since the species was listed. These include provisions emphasizing the 
protection and restoration of ecosystem function and quality in 
compliance with existing Federal environmental statutes and regulations 
(e.g., National Environmental Policy Act (NEPA; 42 U.S.C. 4321 et seq.) 
and Clean Water Act (CWA; 33 U.S.C. 1251 et seq.)) and endorsing 
Federal efforts to advance environmental goals. Recent water resources 
authorizations have also enhanced opportunities for the involvement of 
the U.S. Army Corps of Engineers and other Federal agencies in studies 
and projects to specifically

[[Page 48965]]

address objectives related to the restoration of ecological resources 
(e.g., section 1135 of the Water Resources Development Act of 1986, as 
amended, 33 U.S.C. 2201 et seq.).
    Protections associated with the CWA and State wildlife laws will 
continue to provide some protection to the snail darter. The fear that 
the species' notoriety would result in increased collection or other 
forms of take has not been realized since we reclassified the species 
to threatened, and collection is unlikely to have a major impact on 
species resilience in the foreseeable future. Additionally, even if 
range States were to cease protecting the snail darter, its wide range 
and current redundancy should minimize its risk of extinction for the 
foreseeable future.
    In addition to the threats mentioned in the downlisting rule (49 FR 
27510; July 5, 1984) that are addressed above, we now consider other 
threats or stressors that reasonably could affect the snail darter in 
the foreseeable future. One such potential threat is climate change. In 
the southeastern United States, clear trends in climate predictions are 
limited. However, annual temperatures are projected to increase, cold 
days will become less frequent, the freeze-free season will lengthen by 
up to a month, temperatures exceeding 95 degrees Fahrenheit ([deg]F) 
(35 degrees Celsius ([deg]C)) will increase, heat waves will become 
longer, and the number of category 5 hurricanes will increase (Ingram 
et al. 2013, p. 32). Variability in weather is predicted to increase, 
resulting in more frequent and more extreme dry years and wet years 
over the next century, but a directional shift in overall precipitation 
is not anticipated in the Tennessee River Valley (Mulholland et al. 
1997, pp. 951-955; Ingram et al. 2013, pp. 15, 35).
    There is some evidence that the increased variability may already 
be taking effect. 2018 and 2019 were the two wettest years on record 
for the Tennessee River Valley (Simmons 2020, unpublished data). During 
the late summer and early fall of 2019, the second wettest year 
overall, parts of the Valley temporarily experienced abnormally dry or 
drought conditions (USDA Drought Monitor for Tennessee River Valley, 
October 1, 2019).
    Increased rainfall will result in increased runoff, higher river 
levels, and longer periods of spilling from the top of dams by TVA. 
During periods of spilling at dams, there is the chance for more 
oxygenation of tailwaters and temperature mixing that could benefit the 
snail darter. However, increased rainfall, especially extreme events, 
would increase runoff of sediment and pollutants into tributaries and 
eventually into the mainstem. These inputs could potentially degrade 
spawning and foraging habitat for the snail darter. Increased flows 
during the spawning season could also increase the distance that the 
pelagic larvae of snail darters drift before becoming benthic. If the 
larvae found suitable habitat, increased flow could expand the range of 
the species and contribute to genetic mixing; however, there is also 
the chance that larvae could be pushed into unsuitable habitat, which 
would result in reduced survival. Drought would most likely impact the 
shallower habitats inhabited by snail darters in tributaries. The area 
of shoal habitat available during periods of low flow could be reduced 
during a drought. The flows could be further reduced by water 
extraction for irrigation. These reductions of spawning habitat could 
result in lower spawning success. If discharge is reduced enough, the 
clean-swept gravel habitats that the snail darter relies on in the 
mainstem could begin to retain silt, reducing habitat quality.
    There is evidence that the habitat and life history of the snail 
darter will protect it from predicted changes in climate over the next 
30 years. In a 2017 climate change vulnerability assessment of 700 
species, the Appalachian Landscape Conservation Cooperative (LCC) 
ranked the snail darter as ``presumed stable'' through 2050 under 
predicted climate conditions (Appalachian LCC 2017, supplemental data). 
Being adapted to large river habitats, the snail darter is less 
susceptible to impacts from high-flow events. As much of its habitat in 
the mainstem is already impounded, the effects of high water are less 
meaningful, and TVA flood control efforts may offset some of the strong 
flow peaks associated with extreme rain events. The species' preference 
for deeper water habitats and late winter spawning period protects it 
from drought. Deep water habitats are not impacted by droughts as 
drastically as shallow habitats. The RRIP in TVA tailwaters ensures 
availability of suitable water for the mainstem populations throughout 
the year despite the occurrence of drought. Drought is also unlikely to 
impact spawning events on shoals in tributaries because late winter and 
early spring are typically the wettest times of the year within the 
Tennessee River Valley. The snail darter is likely also protected from 
the projected temperature increases by adaptation to larger streams and 
the thermal buffering of the large reservoirs on the mainstem.
    If we examine current projections beyond our 30-year foreseeable 
future, under plausible future greenhouse gas concentrations termed 
representative concentration pathways (RCP), warming temperatures and 
precipitation projections continue to suggest mixed effects to the 
species. Relative to 1981-2010, over 2050-2074, the 50th percentile 
(median) for the Tennessee Region, maximum air temperature warms by 4.4 
[deg]F (2.4 [ordm]C) in RCP 4.5, whereas the region warms by 6.4 [deg]F 
(3.6 [ordm]C) in RCP 8.5 (Alder and Hostetler 2013, entire). Changes in 
precipitation are not as apparent. Relative to 1981-2010, over 2050-
2074, the 50th percentile (median) for the Tennessee Region, 
precipitation increases by only 0.2 in (5.1 mm) per month in both RCP 
4.5 and RCP 8.5 (Alder and Hostetler 2013, entire). We are not 
extending the foreseeable future timeline beyond 2050 because the snail 
darter's response to changing climatic conditions is less certain after 
2050. We have greater certainty about the species' response to changing 
climactic conditions between now and 2050 because we have both the 
projections and scientific sources that predict the species' response, 
such as the LCC report. Further, the climate projections are more 
reliable between now and 2050 as compared to beyond 2050 because the 
models diverge after 2050. As a result, we do not consider the snail 
darter to be vulnerable to the effects of climate change in the 
foreseeable future.
    The increases documented in the abundance and distribution of the 
snail darter since it was listed in 1975 have led to a better 
understanding of the current and future condition of the species' 
resiliency, redundancy, and representation across the range. The 
observed variations in population size, density, or distribution of the 
snail darter are typical of metapopulation dynamics. Surveys have shown 
that individual populations may decline based on localized stressors 
(e.g., severe sedimentation, toxic spills, streamflow alteration) or 
their cumulative effects. When threats occur together, one may 
exacerbate the effects of another, causing effects not accounted for 
when threats are analyzed individually. However, the best available 
information does not demonstrate that cumulative effects are occurring 
at a level sufficient to negatively affect the species.

Determination of the Snail Darter's Status

    Section 4 of the Act (16 U.S.C. 1533) and its implementing 
regulations (50

[[Page 48966]]

CFR part 424) set forth the procedures for determining whether a 
species meets the definition of 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.'' For a more detailed 
discussion on the factors considered when determining whether a species 
meets the definition of an endangered species or a threatened species 
and our analysis on how we determine the foreseeable future in making 
these decisions, see Regulatory and Analytical Framework, above.

Status Throughout All of Its Range

    After evaluating threats to the species and assessing the 
cumulative effect of the threats under the section 4(a)(1) factors, we 
have found that snail darter representation and redundancy has 
increased, with extant populations in 7 mainstem reservoirs of the 
Tennessee River and 10 tributaries in the Tennessee River watershed. Of 
the mainstem reservoirs, six populations showed multiple age classes, 
and for these six, we have observed direct evidence of reproduction in 
three populations, indicating moderate or high resilience. Collection 
efforts in two mainstem reservoirs, Wilson and Kentucky reservoirs, 
failed to find snail darters during our analysis period. Of the 
tributaries, nine populations demonstrated moderate to high resilience; 
one population is considered to have low resilience with no evidence of 
reproduction; three tributary populations (Citico Creek, Flint River, 
and Shoal Creek) lack sufficient collections during our analysis period 
to consider them established. Additionally, the species is now known to 
be present in four physiographic regions, indicating increased 
representation, and the multiple, resilient populations indicate an 
increase in redundancy since the species was reclassified to threatened 
in 1984. Because the snail darter has increased in representation and 
redundancy generally, and in particular with respect to numbers of 
resilient, self-sustaining populations, we expect this species to be 
able to sustain populations into the foreseeable future.
    We have carefully assessed the best scientific and commercial 
information regarding the threats faced by the snail darter in 
developing this proposed rule. Threats reported at the time of listing 
(1975) and when we downlisted the species to threatened status (1984) 
related to habitat loss and curtailment of range (Factor A) have been 
reduced in many locations, and available data indicate the species 
possesses greater resilience to the negative effects of dams than was 
determined at the time of listing. Further, beneficial dam operations 
(i.e., RRIP) are expected to continue into the foreseeable future.
    At the time of the downlisting rule (49 FR 27510; July 5, 1984), it 
was thought that the notoriety of the snail darter would result in an 
increase in illegal collection (Factor B); however, no such activities 
have been seen, and we do not consider this a threat to the current or 
future viability of the species. State water quality and wildlife laws 
provide some protections to the snail darter and its habitat, and its 
range overlaps with other federally protected aquatic animals (Factor 
D). In addition, we have evaluated potential effects of climate change 
(Factor E) and determined that it is not a primary threat to the 
species. Thus, after assessing the best available information, we 
conclude that the snail darter is not in danger of extinction or likely 
to become so within the foreseeable future throughout all of its range.

Status Throughout a Significant Portion of Its Range

    Under the Act and our implementing regulations, a species may 
warrant listing if it is in danger of extinction or likely to become so 
in the foreseeable future throughout all or a significant portion of 
its range. Having determined that the snail darter is not in danger of 
extinction or likely to become so in the foreseeable future throughout 
all of its range, we now consider whether it may be in danger of 
extinction or likely to become so in the foreseeable future in a 
significant portion of its range--that is, whether there is any portion 
of the species' range for which it is true that both (1) the portion is 
significant; and (2) the species is in danger of extinction now or 
likely to become so in the foreseeable future in that portion. 
Depending on the case, it might be more efficient for us to address the 
``significance'' question or the ``status'' question first. We can 
choose to address either question first. Regardless of which question 
we address first, if we reach a negative answer with respect to the 
first question that we address, we do not need to evaluate the other 
question for that portion of the species' range.
    In undertaking this analysis for the snail darter, we choose to 
address the status question first--we consider information pertaining 
to the geographic distribution of both the species and the threats that 
the species faces to identify any portions of the range where the 
species may be endangered or threatened. For the snail darter, we 
considered whether the threats are geographically concentrated in any 
portion of the species' range at a biologically meaningful scale. We 
examined the following threats: Habitat modification, curtailment of 
range, climate change, and illegal collection, including cumulative 
effects.
    Threats related to habitat modification or curtailment of range 
affect snail darters throughout their range. With the implementation of 
TVA's RRIP, conditions around the large dams on the mainstem of the 
Tennessee River have improved. Our analysis of the species' resiliency 
(see above, Analytical Framework), which integrated information on 
demographics and threats, determined that six out of nine reservoir 
populations showed multiple age classes, and for these six, we have 
observed direct evidence of reproduction in three of these reservoirs. 
These reservoirs with resilient populations are distributed across the 
snail darter's range and multiple geographic provinces. Of the 10 
resilient tributary populations, 9 populations demonstrated moderate to 
high resiliency. In tributary watersheds such as the Ocoee and 
Sequatchie where water quality was impacted by localized mining 
threats, conditions have improved due in part to the cessation of 
mining and efforts to clean up the mine sites. In watersheds with 
higher levels of agriculture and urbanization such as the South 
Chickamauga Creek and Paint Rock River watersheds, conservation 
programs are in place to reduce the impact of these activities on the 
instream habitat used by the snail darter. Based on the distribution of 
resilient populations and the conservation efforts put in place, we 
have determined that threats related to habitat modification or 
curtailment of range are not concentrated in any portion of the 
species' range.
    We have reviewed other potential threats, including climate change, 
illegal collection, and cumulative effects, and we concluded that none 
of them is concentrated in any portion of the species' range at a 
biologically meaningful scale. Therefore, no portion of the species' 
range can provide a basis for determining that the species is in danger 
of extinction now or likely to become so in the foreseeable future in a 
significant portion of its range, and we find the species is not in 
danger of extinction now or likely to become so in the foreseeable 
future in any significant portion of its range. This is consistent

[[Page 48967]]

with the court's holding in Desert Survivors v. Department of the 
Interior, No. 16-cv-01165-JCS, 2018 WL 4053447 (N.D. Cal. Aug. 24, 
2018); and Center for Biological Diversity v. Jewell, 248 F. Supp. 3d, 
946, 959 (D. Ariz. 2017).

Determination of Status

    Our review of the best scientific and commercial data available 
indicates that the snail darter does not meet the definition of an 
endangered species or a threatened species in accordance with sections 
3(6) and 3(20) of the Act. Therefore, we propose to remove the snail 
darter from the List.

Effects of This Rule

    This proposal, if made final, would revise 50 CFR 17.11(h) by 
removing the snail darter from the Federal List of Endangered and 
Threatened Wildlife. The prohibitions and conservation measures 
provided by the Act, particularly through sections 7 and 9, would no 
longer apply to the snail darter. Federal agencies would no longer be 
required to consult with us under section 7 of the Act in the event 
that activities they authorize, fund, or carry out may affect the snail 
darter. There is no critical habitat designated for this species, so 
there would be no effect to 50 CFR 17.95.
    This rule would not affect the snail darter's status as an 
endangered or threatened species under State laws or suspend any other 
legal protections provided by those laws. States may have more 
restrictive laws protecting wildlife, and these would not be affected 
by this Federal action. However, this proposed rule may prompt 
Tennessee or Georgia to remove protection for the snail darter under 
their endangered species laws, although we are not aware of any such 
intention at this time.

Post-Delisting Monitoring

    Section 4(g)(1) of the Act requires us, in cooperation with the 
States, to implement a monitoring program for not less than 5 years for 
all species that have been delisted due to recovery. Post-delisting 
monitoring (PDM) refers to activities undertaken to verify that a 
species delisted due to recovery remains secure from the risk of 
extinction after the protections of the Act no longer apply. The 
primary goal of PDM is to monitor the species to ensure that its status 
does not deteriorate, and if a decline is detected, to take measures to 
halt the decline so that proposing it as endangered or threatened is 
not again needed. If at any time during the monitoring period data 
indicate that protective status under the Act should be reinstated, we 
can initiate listing procedures, including, if appropriate, emergency 
listing.
    Section 4(g) of the Act explicitly requires that we cooperate with 
the States in development and implementation of PDM programs. However, 
we remain ultimately responsible for compliance with section 4(g) and, 
therefore, must remain actively engaged in all phases of PDM. We also 
seek active participation of other entities that are expected to assume 
responsibilities for the species' conservation after delisting.
    We will coordinate with other Federal agencies, State resource 
agencies, interested scientific organizations, and others as 
appropriate to develop and implement an effective PDM plan for the 
snail darter. The PDM plan will build upon current research and 
effective management practices that have improved the status of the 
species since listing. Ensuring continued implementation of proven 
management strategies that have been developed to sustain the species 
will be a fundamental goal for the PDM plan. The PDM plan will identify 
measurable management thresholds and responses for detecting and 
reacting to significant changes in snail darter numbers, distribution, 
and persistence. If declines are detected equaling or exceeding these 
thresholds, the Service, in combination with other PDM participants, 
will investigate causes of these declines. The investigation will be to 
determine if the snail darter warrants expanded monitoring, additional 
research, additional habitat protection, or resumption of Federal 
protection under the Act. We will draft the PDM plan and will notify 
the public on our website, https://www.fws.gov/cookeville, when it is 
available. Copies will also be available from the U.S. Fish and 
Wildlife Service, Tennessee Ecological Services Field Office (see FOR 
FURTHER INFORMATION CONTACT). We anticipate finalizing a PDM plan at 
the time of making a final determination on the proposed delisting 
rule.

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.)

    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 of 1969 (NEPA; 42 U.S.C. 4321 et seq.) in connection with 
regulations adopted pursuant to section 4(a) of the Act. We published a 
notice outlining our reasons for this determination in the Federal 
Register on October 25, 1983 (48 FR 49244).

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. As we move forward with this 
rulemaking process, we will continue to consult with Tribes on a 
government-to-government basis as necessary.

References Cited

    A complete list of references cited in this rulemaking is available 
on the internet at http://www.regulations.gov

[[Page 48968]]

under Docket No. FWS-R4-ES-2020-0152.

Authors

    The primary authors of this proposed rule are the staff members of 
the Fish and Wildlife Service's Species Assessment Team and 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.


Sec.  17.11   [Amended]

0
2. Amend Sec.  17.11 in paragraph (h) by removing the entry for 
``Darter, snail'' under FISHES from the List of Endangered and 
Threatened Wildlife.

Martha Williams,
Principal Deputy Director, Exercising the Delegated Authority of the 
Director, U.S. Fish and Wildlife Service.
[FR Doc. 2021-18127 Filed 8-31-21; 8:45 am]
BILLING CODE 4333-15-P