[Federal Register Volume 89, Number 64 (Tuesday, April 2, 2024)]
[Proposed Rules]
[Pages 22649-22662]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-06795]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-R5-ES-2023-0181; FF09E22000 FXES1113090FEDR 245]
RIN 1018-BH61


Endangered and Threatened Wildlife and Plants; Removal of Roanoke 
Logperch 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 Roanoke logperch (Percina rex) from the Federal List of 
Endangered and Threatened Wildlife due to recovery. The species is 
currently listed as endangered. Our review of the best available 
scientific and commercial data indicates that the threats to the 
Roanoke logperch 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). 
Populations of Roanoke logperch are shown to be stable or expanding and 
reproducing (as evidenced by sustained recruitment) since the time of 
listing in each of the following river systems: Upper Roanoke River, 
Pigg River, Smith River, and Nottoway River. The number of streams 
where the Roanoke logperch has been observed has increased from 14 
streams from the time of listing in 1989 to 31 streams in 2019. 
Accordingly, we propose to delist the Roanoke logperch throughout all 
of its range, which is in Virginia and North Carolina. 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 Roanoke logperch.

DATES: We will accept comments received or postmarked on or before June 
3, 2024. Comments submitted electronically using the Federal 
eRulemaking Portal (see ADDRESSES, below) must be received by 11:59 
p.m. eastern time on the closing date. We must receive requests for 
public hearings, in writing, at the address shown in FOR FURTHER 
INFORMATION CONTACT by May 17, 2024.

ADDRESSES: You may submit comments by one of the following methods:
    (1) Electronically: Go to the Federal eRulemaking Portal: https://www.regulations.gov. In the Search box, enter FWS-R5-ES-2023-0181, 
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.''
    (2) By hard copy: Submit by U.S. mail to: Public Comments 
Processing, Attn: FWS-R5-ES-2023-0181, 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 https://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 the 5-year review, the recovery plan, 
and the species status assessment (SSA) report, are available at 
https://www.regulations.gov under Docket No. FWS-R5-ES-2023-0181.

FOR FURTHER INFORMATION CONTACT: Cindy Schulz, Field Supervisor, U.S. 
Fish and Wildlife Service, Virginia Ecological Services Field Office, 
6669 Short Lane, Gloucester, VA 23061; telephone 804-654-1842. 
Individuals in the United States who are deaf, deafblind, hard of 
hearing, or have a speech disability may dial 711 (TTY, TDD, or 
TeleBraille) to access telecommunications relay services. Individuals 
outside the United States should use the relay services offered within 
their country to make international calls to the point-of-contact in 
the United States. Please see Docket No. FWS-R5-ES-2023-0181 on https://www.regulations.gov for a document that summarizes this proposed rule.

SUPPLEMENTARY INFORMATION

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 Roanoke logperch 
from the List of Endangered and Threatened Wildlife.
    (2) Relevant data concerning any threats (or lack thereof) to the 
Roanoke logperch, 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 Roanoke logperch that may have either a negative or positive impact 
on the species.
    (4) Considerations for post-delisting monitoring, including 
monitoring protocols and length of time monitoring is needed, as well 
as triggers for reevaluation.
    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 (16 U.S.C. 1531 et seq.) directs that determinations as to 
whether any species is an endangered species 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 https://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 https://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 https://www.regulations.gov.
    Our final determination may differ from this proposal because we 
will consider all comments we receive during the comment period as well 
as any information that may become available after this proposal. For 
example, based on the new information we receive (and if relevant, any 
comments on that new information), we may conclude that the species 
should remain listed as endangered, or we may conclude that the species 
should be reclassified from endangered to threatened. We will clearly 
explain our rationale and the basis for our final decision, including 
why we made changes, if any, that differ from this proposal.

Public Hearing

    Section 4(b)(5) of the Act provides for a public hearing on this 
proposal, if requested. Requests must be received by

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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. We may hold the public hearing in person or 
virtually via webinar. We will announce any public hearing on our 
website, in addition to the Federal Register. The use of these virtual 
public hearings is consistent with our regulation at 50 CFR 
424.16(c)(3).

Peer Review

    A species status assessment (SSA) team prepared an SSA report for 
the Roanoke logperch. The SSA team was composed of Service biologists, 
in consultation with other species experts. The SSA report represents a 
compilation of the best scientific and commercial data available 
concerning the status of the species, including the impacts of past, 
present, and future factors (both negative and beneficial) affecting 
the species.
    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 solicited independent scientific 
review of the information contained in the Roanoke logperch SSA report. 
We sent the SSA report to nine independent peer reviewers and received 
three responses. Results of this structured peer review process can be 
found at https://www.regulations.gov. In preparing this proposed rule, 
we incorporated the results of these reviews, as appropriate, into the 
final SSA report, which is the foundation for this proposed rule.

Summary of Peer Reviewer Comments

    As discussed in Peer Review above, we received comments from three 
peer reviewers on the draft SSA report. We reviewed all comments we 
received from the peer reviewers for substantive issues and new 
information regarding the information contained in the SSA report. The 
peer reviewers generally concurred with our methods and conclusions, 
and provided additional information, clarifications, and suggestions, 
including clarifications in terminology. Peer reviewers also suggested 
supplementing the content to more explicitly address key assumptions, 
uncertainties, and knowledge gaps, and they made other editorial 
suggestions. One peer reviewer emphasized the need for research to 
address key unknowns that remain in the ecology of early-life stages, 
logperch movement ecology (including dam effects), and empirical 
relationships between stressors such as instream sedimentation measures 
(e.g., embeddedness) and Roanoke logperch fitness measures (e.g., 
growth, survival, reproduction). These data gaps are mentioned or 
implied in summaries of the species' life history and in a detailed 
discussion of caveats and uncertainties in the SSA report (Service 
2022a, pp. 46-47). Otherwise, no substantive changes to our analysis 
and conclusions in the SSA report were deemed necessary. All peer 
reviewer comments are addressed in version 1.1 of the SSA report 
(Service 2022a, entire).

Previous Federal Actions

    On March 18, 1975, the Service published in the Federal Register 
(40 FR 12297) a notice of review for the Roanoke logperch and 28 other 
freshwater fishes. Five years later, on May 13, 1980, the Service 
published in the Federal Register (45 FR 31447) another notice of 
review for the Roanoke logperch.
    On December 30, 1982, we published in the Federal Register (47 FR 
58454) our candidate notice of review (CNOR) classifying the Roanoke 
logperch as a Category 2 candidate species. Category 2 status included 
those taxa for which information in our possession at that time 
indicated the possible appropriateness of listing as endangered or 
threatened but sufficient information was not available to biologically 
support a proposed rule.
    On October 6, 1983, we received a petition from Mr. Noel M. 
Burkhead to list the Roanoke logperch as a threatened species. On 
January 16, 1984, we published in the Federal Register (49 FR 1919) a 
90-day finding that the petition presented substantial information that 
the petitioned action may be warranted. On October 12, 1984, we made a 
12-month finding that the petitioned action was warranted but precluded 
from immediate proposal because of other pending proposals to list, 
delist, or reclassify species (hereafter, a ``warranted-but-precluded 
finding''). The announcement of the warranted-but-precluded finding was 
published in the Federal Register on July 18, 1985 (50 FR 29238).
    Between 1986 and 1988, we published three notices of findings on 
pending petitions and descriptions of progress on listing actions in 
the Federal Register (51 FR 996, January 9, 1986; 52 FR 24312, June 30, 
1987; 53 FR 25511, July 7, 1988). Each of these notices retained the 
warranted-but-precluded finding on the October 6, 1983, petition.
    On September 7, 1988, we published in the Federal Register (53 FR 
34561) a proposed rule to list the Roanoke logperch as an endangered 
species under the Act, and on August 18, 1989, we published in the 
Federal Register (54 FR 34468) a final rule to list the Roanoke 
logperch as an endangered species under the Act. This final rule was 
effective on September 18, 1989, and included a determination that the 
designation of critical habitat for the species was not prudent at that 
time.
    In 1992, we released a recovery plan for the species (Service 1992, 
entire). A draft update to the recovery plan was prepared in January 
2007 (Service 2007a, entire), but this plan was not finalized.
    On April 21, 2006, we published in the Federal Register (71 FR 
20717) a notice announcing the initiation of a 5-year review for the 
Roanoke logperch. The resulting recommendation from this 5-year review 
(Service 2007b, entire) was no change in listing status. We announced 
the initiation of subsequent 5-year reviews for the Roanoke logperch in 
2011, 2018, and 2021 (76 FR 33334, June 8, 2011; 83 FR 39113, August 8, 
2018; 86 FR 61778, November 8, 2021). However, reviews were not 
completed in 2011 and 2018 because they were precluded by higher 
priorities. The resulting recommendation from the 5-year review 
completed in 2022 (Service 2022b, entire) is to delist the Roanoke 
logperch due to recovery.

Background

    A thorough review of the biological information on the Roanoke 
logperch including taxonomy, life history, ecology, and conservation 
activities, as well as threats facing the species or its habitat is 
presented in our SSA report (Service 2022a, entire), which is available 
at https://www.regulations.gov under Docket No. FWS-R5-ES-2023-0181. 
Please refer to the SSA report for additional discussion and background 
information.
    The Roanoke logperch is a large-bodied member of the darters 
(Etheostomatinae), a diverse subfamily of freshwater fishes in the 
perch family (Percidae) endemic to the Roanoke, Dan, and Chowan River 
basins in Virginia and North Carolina. The Roanoke logperch occupies 
medium to large warm-water streams and rivers of moderate gradient and 
silt-free substrates (Service 1992, p. 3). Every major riverine habitat 
with unembedded stream substrates with low silt cover is

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exploited by the Roanoke logperch during different phases of life 
history and season (Jenkins and Burkhead 1994, p. 786).
    The overwhelming majority of our knowledge on the Roanoke 
logperch's biology and habitat needs is based on research conducted in 
the upper Roanoke River (see Burkhead 1983, entire; Roberts and 
Angermeier 2006, entire) and comparative studies of Roanoke logperch in 
the Nottaway River (see Rosenberger and Angermeier 2003, entire). 
Roanoke logperch feed and spawn over clean gravel, pebble, and cobble 
substrates in large creeks to medium rivers. They spawn in spring, 
depositing eggs on the substrate with no subsequent parental care. 
Newly hatched larvae drift downstream on river currents until they 
settle out in calm backwaters and pool margins. By their first fall, 
juveniles begin shifting into the deeper, main-channel habitats 
occupied by older juveniles and adults. The species matures by age 2-3 
and lives up to 6.5 years. Adults appear to undertake extensive 
upstream spawning migrations, followed by cumulatively downstream 
migration over ontogeny, or the rest of the fish's lifespan.
    All age classes of Roanoke logperch are intolerant of heavy silt 
cover and embeddedness, both because silt smothers eggs and because the 
species feeds primarily by flipping over unembedded substrate particles 
with its snout. The species is more often found in habitats with silt-
free substrate, forested watersheds, and large enough stream size to 
complete its life history. It avoids heavily silted runs and pools, 
very small creeks, hydrologically unstable tailwaters below dams, and 
lentic lakes and reservoirs.
    As detailed in the 2022 5-year review (Service 2022b, entire), the 
known geographic distribution of the Roanoke logperch has expanded 
since the species was listed in 1989. The Roanoke logperch was first 
collected in the 1880s. State databases contain data collected only 
since 1940, resulting in an information gap from 1890 to 1940. However, 
since 1940, the number of streams where the Roanoke logperch has been 
observed has increased from 4 streams in the 1940s, to 14 streams at 
the time of listing in 1989, to 31 streams in 2019. In terms of river 
basins, the Roanoke logperch was known in Virginia from the Roanoke 
basin in the 1880s and the Chowan basin in the 1940s. The first Roanoke 
logperch location (Town Creek) in the Dan basin was in the 1970s in 
Virginia, then the upper Smith River in the 1980s. In the 1990s and 
2000s, observations in the Dan basin expanded, including into North 
Carolina. The first observation of Roanoke logperch in North Carolina 
was in the Dan River in 2007. No population extirpations are known. The 
number of 12-digit hydrologic unit codes (HUCs, also known as 
watersheds) in which the Roanoke logperch has been observed has 
increased from a total of 27 HUCs in 1989 to 55 HUCs in 2019. A 
detailed description of the Roanoke logperch's geographic distribution 
is presented in section 2.3 of the SSA report (Service 2022a, pp. 14-
19).
    Methodologies for identifying what constitutes a population have 
varied; therefore, our analysis uses management units (MUs) to assess 
the current condition and potential future conditions of the species. 
The definition of an MU is as follows: ``at the smallest spatial grain, 
we define an MU as a group of individuals occupying a discrete, local 
geographic area in which demographic exchange is common and habitat 
conditions are relatively homogeneous. At a larger grain, we define a 
metapopulation as a group of MUs located in an evolutionarily similar 
setting and in close-enough proximity that some dispersal and gene flow 
among MUs within that metapopulation likely has occurred in recent 
ecological time, at least prior to anthropogenic habitat alteration. 
The species as a whole is the sum of all metapopulations'' (Service 
2022a, p. 20). There are four identified Roanoke logperch 
metapopulations: Roanoke Mountain, Roanoke Piedmont, Dan, and Chowan. A 
total of 18 MUs were delineated from these metapopulations. Eleven of 
these MUs are currently occupied (Upper Roanoke, Pigg, Goose, Otter, 
Middle Roanoke, Upper Smith, Middle Smith, Lower Smith, Lower Mayo, 
Middle Dan, Nottoway) and 7 are currently unoccupied (Blackwater, 
Falling, Upper Mayo, Upper Dan, Lower Dan, Banister, Meherrin) (see 
table 1 below; Service 2022a, p. 23). For potential new introductions, 
currently unoccupied MUs were delineated in waterways deemed good 
candidates for future populations based on suitable habitat conditions. 
Currently unoccupied ``potential'' MUs were not used in assessing 
current condition. However, the possibility for these potential MUs to 
become occupied was considered for analysis of future condition. 
Additional details on past delineation of populations and spatial 
associations of the MUs are presented in section 3.2 of the SSA report 
(Service 2022a, pp. 20-25). We provide a summary of the species' 
current and future conditions under Summary of Biological Status and 
Threats, below.
BILLING CODE 4333-15-P

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[GRAPHIC] [TIFF OMITTED] TP02AP24.030


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BILLING CODE 4333-15-C

Recovery Criteria

    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. Under section 4(f)(1)(B)(ii), 
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 Lists of Endangered and 
Threatened Wildlife and Plants.
    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 Act's 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.
    In 1992, the objectives of the Roanoke logperch recovery plan were 
to first reclassify the species from endangered to threatened, then to 
delist the species (Service 1992, pp. 12-13). The recovery plan states 
that reclassification to threatened would be initiated when:
    (1) Populations of Roanoke logperch are shown to be stable or 
expanding and reproducing (as evidenced by sustained recruitment) in 
each of the following river systems: Upper Roanoke River, Pigg River, 
Smith River, and Nottoway River. Achievement of this criterion will be 
determined by population monitoring over at least a 10-year period; and
    (2) Each of the known populations is protected from present and 
foreseeable threats that may interfere with the species' survival.
    Additionally, the 1992 Roanoke logperch recovery plan states that 
delisting would be considered when, in addition to meeting the two 
criteria above, habitat improvement measures have been developed and 
successfully implemented, as evidenced by a sustained increase in 
Roanoke logperch population size and/or length of river reach inhabited 
within the upper Roanoke River drainage and a similar increase in at 
least two of the other three Roanoke logperch populations (Pigg River, 
Smith River, or Nottoway River).
    As indicated in the most recent 5-year review (Service 2022b, 
entire), the current recovery plan for the species is 30 years old, 
thus requiring a reexamination of the adequacy of recovery criteria. 
The reclassification and delisting criteria in the 1992 plan do not 
mention North Carolina populations because Roanoke logperch was not 
known to occur in that State at that time. Additionally, benchmarks in 
the Plan criteria focus on the health and protection of Roanoke 
logperch populations however, identifying what constitutes a population 
is unclear. For example, the Plan, 2007 5-year status review, and 
associated literature used different methods to identify Roanoke 
logperch populations. Due to the outdated nature of this recovery plan, 
we rely on the information on the current and future conditions 
presented in the SSA report (Service 2022a, entire) to inform the 
status determination for the species. See Summary of Biological Status 
and Threats, below, for a discussion of the status of and threats to 
this species.

Regulatory and Analytical Framework

Regulatory Framework

    Section 4 of the Act (16 U.S.C. 1533) and the implementing 
regulations in title 50 of the Code of Federal Regulations set forth 
the procedures for determining whether a species is an endangered 
species or a threatened species, issuing protective regulations for 
threatened species, and designating critical habitat for endangered and 
threatened species. In 2019, jointly with the National Marine Fisheries 
Service, the Service issued a final rule that revised the regulations 
in 50 CFR 424 regarding how we add, remove, and reclassify endangered 
and threatened species and the criteria for designating listed species' 
critical habitat (84 FR 45020; August 27, 2019). On the same day, we 
issued a finalrule that revised 50 CFR 17.31 and 17.71(84 FR 44753) and 
ended the ``blanket rule'' option for application of section 
9prohibitions to species newly listed as threatened after the effective 
date ofthose regulatory revisions (September 26, 2019).
    Our analysis for this decision applied the regulations that are 
currently in effect, which include the 2019 revisions. However, we 
proposed further revisions to these regulations on June 22, 2023 (88 FR 
40764). In case those revisions are finalized before we make a final 
status determination for this species, we have also undertaken an 
analysis of whether the decision would be different if we were to apply 
those proposed revisions. We concluded that the decision would have 
been the same if we had applied the proposed 2023 regulations. The 
analyses under both the regulations currently in effect and the 
regulations after incorporating the June 22, 2023, proposed revisions 
are included in our decision file.
    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.

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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. The determination to delist a species must be 
based on an analysis of the same five factors.
    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 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 we 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 the 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

    The SSA report documents the results of our comprehensive 
biological review of the best scientific and commercial data regarding 
the status of the species, including an assessment of the potential 
threats to the species. The SSA report does not represent our decision 
on whether the species should be proposed for delisting. However, it 
does provide the scientific basis that informs our regulatory 
decisions, which involve the further application of standards within 
the Act and its implementing regulations and policies.
    To assess Roanoke logperch viability, we used the three 
conservation biology principles of resiliency, redundancy, and 
representation (Shaffer and Stein 2000, pp. 306-310). Briefly, 
resiliency is the ability of the species to withstand environmental and 
demographic stochasticity (for example, wet or dry, warm or cold 
years); redundancy is the ability of the species to withstand 
catastrophic events (for example, droughts, large pollution events); 
and representation is the ability of the species to adapt to both near-
term and long-term changes in its physical and biological environment 
(for example, climate conditions, pathogens). In general, species 
viability will increase with increases in resiliency, redundancy, and 
representation (Smith et al. 2018, p. 306). 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.
    The SSA process can be categorized into three sequential stages. 
During the first stage, we evaluated the species' life-history needs. 
The next stage involved an assessment of the historical and current 
condition of the species' demographics and habitat characteristics, 
including an explanation of how the species arrived at its current 
condition. The final stage of the SSA involved making predictions about 
the species' responses to positive and negative environmental and 
anthropogenic influences. Throughout all of these stages, we used the 
best available information to characterize viability as the ability of 
a species to sustain populations in the wild over time which we then 
used to inform our regulatory decision.
    The following is a summary of the key results and conclusions from 
the SSA report; the full SSA report can be found at Docket FWS-R5-ES-
2023-0181 on https://www.regulations.gov.

Summary of Biological Status and Threats

    In this discussion, we review the biological condition of the 
Roanoke logperch and its resources, and the threats that influence the 
species' current and future conditions, in order to assess the species' 
overall viability and the risks to that viability. In addition, the SSA 
report (Service 2022a, entire) and 5-year review (Service 2022b, 
entire) document our comprehensive biological status review for the 
species, including an assessment of the potential threats and 
beneficial activities to the species.
    We identified six factors that may influence Roanoke logperch 
viability: fine sediment deposition (Factor A), chronic chemical 
pollution (Factor A), dams and other barriers (Factor A), climate 
change (Factor E), management/restoration activities aimed at improving 
habitat quality (Factor A), and existing legal and regulatory 
mechanisms (Factor D). These factors align with many of the threats 
discussed in the 2007 5-year review: large dams and reservoirs, small 
dams/barriers, channelization that will lead to increased 
sedimentation, agricultural and silvicultural activities (non-point 
source pollution in the form of fine sediment), and toxic spills 
(Service 2007b, entire). An additional threat to the Roanoke logperch 
identified since the 2007 5-year review is changing climate. Climate 
change is anticipated to affect precipitation, runoff patterns, and 
stream hydrology, and introduce fine sediment into Roanoke logperch 
habitat (Service 2022a, p. 29). The complex relationship between the 
numerous environmental and anthropogenic factors and their influence on 
the habitat conditions and ultimately on the condition of the Roanoke 
logperch is presented in more detail in the SSA report (see figure 7 in 
Service 2022a, p. 33). The Service is not

[[Page 22656]]

aware of any evidence that overutilization, competition, predation, 
disease, or other manmade factors are significant threats to the 
Roanoke logperch.

Fine Sediment Deposition

    Fine sediment is produced through erosion and enters streams and 
rivers through runoff, especially during storm events (Waters 1995, 
entire). A variety of human activities accelerate erosion and thereby 
increase sediment inputs to streams, but urbanization and agriculture 
are the two most prominent of these activities in the Roanoke 
logperch's range.
    Fine sediments originating from the watershed or channel of a 
stream remain suspended until they reach a low-velocity area and 
deposit on the stream substrate. Although suspended sediment can reduce 
feeding efficiency for a sight feeder like the Roanoke logperch, it 
likely has a greater negative impact once it deposits on the stream 
bottom. Deposition of fine sediments like silt and clay on stream 
substrate likely reduces the fitness and survival of Roanoke logperch 
adults and the survival and recruitment of age-0 juveniles. Roanoke 
logperch are invertivores that feed almost exclusively on the stream 
bottom; they require substrate particles (for example, pebbles, leaves, 
sticks, etc.) to be mostly unembedded by fine sediment so that they can 
flip over these particles and access food underneath. Heavily embedded 
substrates contain lower benthic macroinvertebrate densities and fewer 
benthic invertivorous fishes (Berkman and Rabeni 1987, entire).
    Although uninvestigated to date, we assume that as deposition and 
embeddedness increase, Roanoke logperch food intake at all life stages 
will decrease and individual growth and survival rates will decrease. 
Moreover, silt coverage could smother eggs and reduce their hatching 
rate, particularly for a gravel spawner like the Roanoke logperch 
(Berkman and Rabeni 1987, entire). Reduced egg-to-larva survival, along 
with reduced benthic feeding efficiency for age-0 juveniles, could 
translate to overall lower recruitment rates for Roanoke logperch 
populations. Thus, the effects of fine sediments can impact Roanoke 
logperch population resiliency by reducing population densities and 
impacting habitat quality.

Chemical Pollution

    By definition, water pollution is anthropogenic in origin and 
alters the chemical composition of a receiving waterbody (U.S. 
Environmental Protection Agency (USEPA) 2022, entire). Pollutants 
include organic nutrients such as fertilizer, livestock manure, and 
human sewage effluent, along with myriad natural and synthetic 
chemicals including heavy metals, pesticides, cleaners, solvents, 
pharmaceuticals, and petroleum products, among others.
    The population dynamics of the Roanoke logperch were found to be 
particularly sensitive to acute pollution events that cause substantial 
one-time reductions in population size (Roberts et al. 2016a, entire). 
The same study found that, in the upper Roanoke River watershed, seven 
pollution events resulting in Roanoke logperch mortality occurred over 
a 35-year period, an average of once every 5 years. The most recent 
spill event with a known mortality occurred in 2007. These events 
involved a variety of different pollutants and affected anywhere from 2 
to 19 kilometers (km) (1.2 to 11.8 miles (mi)) of river. Such 
catastrophic events presumably act by temporarily reducing survival of 
all age classes until the chemical has dissipated, which may take up to 
a year (Ensign et al. 1997, entire). However, if fish kills occur 
frequently enough, affect a large enough area, or happen to an already 
small population, they could threaten the viability of an entire 
population.
    Like fine sediment, water pollution emanates from a variety of 
sources, including urban, mining, or agricultural runoff, and 
transportation of chemicals by road, rail, or pipeline. Notably, some 
fish-kill events impacting the Roanoke logperch stemmed from nonurban 
causes, such as a liquid manure spill in 1991, and a golf course 
fungicide spill in 2007 (Roberts et al. 2016a, entire) (Table 2).
[GRAPHIC] [TIFF OMITTED] TP02AP24.031

    In general, however, we expect the risk of a pollution event to be 
higher in a watershed with greater urbanization, because with 
urbanization we expect a greater concentration of manufacturing 
chemicals, industrial and municipal chemical effluents, and chemical 
transportation via roads, rails, and pipelines. Thus, we expect 
urbanization to be a primary driver of pollution events affecting the 
Roanoke logperch.

Dams and Other Barriers

    European settlers began constructing milldams and other low-head 
dams on rivers upon arrival to the Atlantic States (Walter and Merritts 
2008, entire). These barriers may have affected connectivity and 
habitat conditions for the Roanoke logperch historically, but we lack 
distribution and abundance data for the Roanoke logperch before 1940. 
Between the 1920s and 1960s, large hydroelectric dams were installed on 
several large rivers in the Roanoke logperch's range. Although none of 
these dams were equipped with fish passage technologies, some are short 
enough and have a modest-enough spillway drop that they may allow for 
one-way fish

[[Page 22657]]

movement (from upstream to downstream) over the spillway. For example, 
one study found that Martinsville Dam on the middle Smith River does 
not form a genetic population boundary between Roanoke logperch 
upstream and downstream of the dam, so the study's authors hypothesized 
that the dam allows one-way gene flow (Roberts et al. 2013, entire).
    However, many of the dams are much larger than the Martinsville 
Dam, forming an extensive impoundment that would not be suitable 
habitat for the species, and each of these dams probably constitutes a 
complete two-way barrier to Roanoke logperch movement. Roanoke logperch 
have a migratory life history that, in the absence of movement 
barriers, utilizes multiple sections of a watershed over a lifetime. 
Although genetic data indicate that Roanoke logperch populations 
currently have sharp, discrete boundaries (Roberts et al. 2013, 
entire), these boundaries mostly coincide with dams. Before 
construction of these dams, population structure might have been more 
continuous, with more frequent dispersal occurring among now-
disconnected streams (Burkhead 1983, entire). Thus, the barrier effect 
created by dams has potentially fragmented a once more-continuous range 
into a series of geographically smaller, more isolated populations. 
This fragmentation reduces resiliency because a declining population 
cannot be naturally demographically or genetically ``rescued'' by 
another population.
    In addition to a movement barrier, dams can create habitat 
degradation and loss for Roanoke logperch. Impoundments upstream of 
dams convert formerly riverine, potentially suitable habitat to 
lacustrine habitat (relating to or associated with lakes) that is not 
suitable for Roanoke logperch. Although the species has been observed 
occasionally in Smith Mountain Lake and Leesville Reservoir, these have 
been interpreted as waifs attempting dispersal through the reservoirs, 
rather than resident fish (Jenkins and Burkhead 1994, p. 787). Although 
completely unstudied, reservoirs upstream of dams may directly increase 
mortality for Roanoke logperch larvae if the larvae drift into the 
reservoir from upstream spawning sites and settle in unsuitable 
lacustrine microhabitats.
    Habitat conditions downstream of hydroelectric dams may be 
unsuitable for Roanoke logperch as well. Hydropeaking discharges (i.e., 
the practice of releasing pulses of water to increase power production) 
from Leesville Dam have rendered habitat conditions immediately 
downstream in the middle Roanoke River unstable and relatively poor for 
Roanoke logperch. Population density there is relatively low (Smith 
2011, pers. comm.). Hydropeaking, combined with a cold hypolimnetic 
release (i.e., release of water that lies below the thermocline and is 
perpetually cold), has likewise rendered the middle Smith River 
immediately downstream from Philpott Dam unsuitable for Roanoke 
logperch. Not only are Roanoke logperch apparently absent from this 
reach (Krause et al. 2005, entire), based on genetic results, the cold 
unsuitable tailwater acts as a movement barrier between Town Creek, an 
occupied tributary that flows into the unoccupied reach, and the 
occupied section of middle Smith River, located 4 km (2.5 mi) 
downstream (Roberts et al. 2013, p. 2060). These habitat losses 
effectively shrink the adjoining populations to a smaller geographic 
area, which reduces their potential for resiliency.

Climate Change

    Changes to the climate of the Roanoke logperch's geographic range 
can affect precipitation, runoff patterns, and stream hydrology in ways 
that negatively affect the species' vital rates and resiliency. In the 
coming decades, the Roanoke logperch's range is expected to average 5 
to 8 degrees Fahrenheit (2.8 to 4.4 degrees Celsius) warmer with around 
1 more inch (2.5 centimeters) of rain per year (see section 4.2.1 of 
SSA report (Service 2022a, pp. 50-53)). Although a modest increase in 
total rainfall, this rain is expected to come in less predictable, less 
frequent, more intense storm events (Ingram et al. 2013, entire; Burt 
et al. 2016, entire). Increased air temperature has the potential to 
increase evapotranspiration rates, decrease groundwater recharge into 
streams, and reduce the magnitude of summer baseflows (Ingram et al. 
2013, entire; Lynch et al. 2016, pp. 349-350). Increased storm 
intensity may likewise reduce summer baseflows by raising the runoff to 
infiltration ratio. More irregular but intense rainfall means 
``flashier'' stream flows overall, with higher high flows, lower low 
flows, and steeper rising and falling limbs of the hydrograph, a 
situation exacerbated by urbanization and watershed imperviousness (Roy 
et al. 2010, entire). Stronger storm events also increase the 
probability that fine sediment will be mobilized in runoff and carried 
into streams.
    Relationships between hydrology and the Roanoke logperch's habitat 
suitability or vital rates have not been thoroughly investigated. 
However, in the upper Roanoke River, one study found that age-0 
logperch abundance in the fall of their first year was negatively 
related to the standard deviation of stream flows during the spring 
(April-June) of that year (Roberts and Angermeier 2007, p. 43). Highly 
variable flows may directly increase mortality of vulnerable larvae and 
small juveniles. They also may reduce habitat quality and availability. 
Age-0 Roanoke logperch have very specific habitat needs during their 
first summer, requiring unembedded, shallow, and very low-velocity 
microhabitats, often in the margins of pools (Roberts and Angermeier 
2006, p. 4). These microhabitat conditions change rapidly with stream 
flows; the drying of shallow areas forces Roanoke logperch into deeper 
areas where they are more vulnerable to aquatic predators, while 
elevated flows increase velocity beyond the swimming abilities of small 
fish. Given that storm intensity and stream flashiness are predicted to 
increase, we predict that it will be more difficult for age-0 Roanoke 
logperch to locate and track suitable microhabitat configurations, 
resulting in reduced survival and recruitment. Further, reduced 
baseflow magnitude may crowd adult Roanoke logperch into smaller areas 
of suitable habitat within riffle-runs, resulting in increased 
competition for resources, and potentially reduced fitness and survival 
of adults. We anticipate that the higher erosion and sediment transport 
rates likely to result from predicted greater storm intensity would 
negatively affect growth, recruitment, and survival of Roanoke 
logperch.

Conservation Efforts: Management and Restoration

    Three types of restoration activities have positively benefited 
Roanoke logperch habitat and population conditions to date: (1) habitat 
restoration, (2) habitat connectivity restoration, and (3) population 
restoration. Habitat restoration activities for the Roanoke logperch 
primarily seek to reduce erosion potential and fine sediment inputs to 
streams. Projects include reestablishing the riparian zone, fencing 
livestock out of streams, and placing lands in conservation easements 
to prevent deforestation. The end goal of all these projects is to 
reduce new inputs of fine sediment into Roanoke logperch habitats. 
These activities have occurred, and as discussed below, we expect them 
to continue in watersheds harboring Roanoke logperch, regardless of the 
Federal listing status of the species.

[[Page 22658]]

    Unfortunately, there is no efficient or cost-effective way to 
remove existing deposited sediment, which has accumulated in some cases 
over the course of centuries and can be removed only very gradually 
through downstream transport during flushing flow events (Walter and 
Merritts 2008, entire). Since it can take decades to see the positive 
effects of Roanoke logperch habitat restoration, the near-term 
resiliency of Roanoke logperch populations is not as strongly affected 
by these management activities as by connectivity and population 
restoration activities.
    Habitat connectivity restoration involves the removal of, or 
passage over, barriers to Roanoke logperch movement in stream reaches, 
most notably dams. Multiple dams have been removed within the species' 
range in recent decades, including Wasena Dam on the upper Roanoke 
River near Roanoke, Virginia, in 2009; Veteran's Park Dam on the Pigg 
River near Rocky Mount, Virginia, in 2013; and Rocky Mount Power Dam on 
the Pigg River near Rocky Mount, Virginia, in 2016. Additionally, fish 
passages were designed and installed for Roanoke logperch past the 
Lindsey Bridge Dam on the Dan River near Madison, North Carolina, in 
2020. Removal of additional dams is plausible, given the current trend 
toward dam removal in the eastern United States (Bellmore et al. 2017, 
entire). Barrier removal and passage increase the effective area of 
adjacent populations and allow increased dispersal among populations, 
both of which increase population resiliency (Gido et al. 2016, 
entire).
    Population restoration involves the intentional anthropogenic 
movement of fish across movement barriers they otherwise would be 
unable to cross. The individual fish being stocked could be 
translocated wild fish or propagules produced in a hatchery. Fish can 
be stocked into currently occupied habitat to augment the demography or 
genetic diversity of that population, reintroduced into a previously 
occupied habitat that is no longer occupied, or introduced into a 
habitat that has never been occupied by the species. Augmentation is 
intended to bolster resiliency by increasing vital rates, total 
population size, and genetic diversity, whereas introduction and 
reintroduction are intended to bolster redundancy by increasing the 
number of populations on the landscape. Collectively, propagation, 
augmentation, reintroduction, translocation, and introduction 
(hereafter ``PARTI'') form a suite of interrelated population 
restoration tactics that have been successfully used in the recovery of 
a variety of imperiled fish species (Minckley et al. 2003, entire; 
Vrijenhoek 1996, entire; Yamamoto et al. 2006, entire). As of 2023, 
PARTI activities conducted by State, Federal, and non-profit agencies 
are beginning for the Roanoke logperch; propagation procedures have 
been established (Ruble et al. 2009, entire; Ruble et al. 2010, 
entire), a decision document is in place to provide a scientific basis 
to PARTI decisions for the Roanoke logperch (Roberts 2018, entire), an 
online decision-support tool has been developed based on input from the 
Structured Decision-making Team to guide hatchery and PARTI activities 
(Gibson 2022, entire), and a Statewide aquatic species safe harbor 
program in North Carolina will enable the use of PARTI for the Roanoke 
logperch (see 87 FR 51698; August 23, 2022). As such, there is strong 
momentum to incorporate PARTI into recovery actions for the Roanoke 
logperch in the future. As discussed further below, regardless of the 
Federal listing status of the Roanoke logperch, we expect the States of 
Virginia and North Carolina to continue to prioritize Roanoke logperch 
population restoration in the future, as they do with other State-
listed fishes and freshwater mussels.

Regulatory Mechanisms

    Over time, the Roanoke logperch has benefited from the protections 
and resources provided by State and Federal laws and regulations. The 
species has been listed as an endangered species under the Act since 
1989. Federal listing status has affected the course of large proposed 
and completed projects within the geographic range of the species. For 
example, construction plans for the Roanoke River Flood Reduction 
Project were adjusted to reduce instream construction traffic, minimize 
silt runoff, and closely monitor water quality and Roanoke logperch 
population levels, to minimize incidental take of the species (Roberts 
et al. 2016c, entire). Coordination for this project spanned multiple 
years, and a final Biological Opinion was issued by the Service in 
2017. Time-of-year restrictions on construction projects during the 
species' spawning window (March 15-June 30), recommended by both State 
and Federal agencies, have reduced streambed and floodplain disturbance 
and sediment loading during this key time in the species' lifecycle. 
Federal status also has allowed access to funding mechanisms available 
only for use on federally listed species, including the funds provided 
under section 6 of the Act. These funds have been used to restore 
riparian habitats to reduce sediment inputs, remove barriers to Roanoke 
logperch movement, and fund a range of university research studies that 
have advanced understanding of the species' basic biology (e.g., 
Rosenberger and Angermeier 2003, entire), distribution and abundance 
(e.g., Roberts 2012b, entire), and genetics and evolution (e.g., 
Roberts et al. 2013, entire).
    In our SSA analysis, we did not consider protections, funding, or 
other benefits of listed status, including any other Federal, State, or 
local protections or benefits arising solely as a result of the species 
being listed under the Act when assessing risks to the Roanoke 
logperch. Rather, we consider only non-Act-related regulatory 
mechanisms and restoration activities that are existing or that we are 
reasonably confident will occur in the future regardless of the 
species' Federal listing status, such as State-level protection and 
population management, habitat restoration, and dam removal and 
passage.
    The Roanoke logperch has been listed as endangered by Virginia 
since 1989, and by North Carolina since its discovery in that State in 
2007. The species is given high priority in both States' wildlife 
action plans, allowing access to funding mechanisms such as State 
wildlife grants. As with the Act's section 6 funds, State wildlife 
grants have been used to restore riparian habitats, remove barriers, 
and fund research studies. These State listings are independent of the 
species' Federal status. There is no reason to expect a change in 
Federal status would be followed by the States, both of which are 
currently increasing Roanoke logperch propagation and translocation 
capacity. Thus, we expect State-level emphasis on protections and 
population restoration to carry into the future, regardless of the 
species' Federal status. Furthermore, there is considerable interest in 
dam removal in the eastern United States for human safety, fish passage 
restoration, and river channel restoration. We, therefore, expect 
removal of dams and other barriers to continue within the range of the 
Roanoke logperch, regardless of the species' Federal listing status.
    In addition to benefiting from the Act and State-level listings, 
the Roanoke logperch and other stream fishes benefit from the 
provisions of the Clean Water Act (CWA; 33 U.S.C. 1251 et seq.). The 
CWA's National Pollutant Discharge Elimination System permitting system 
regulates point sources of water pollution and has reduced some of the 
most chronic chemical pollution impacts of the early to mid-20th

[[Page 22659]]

century. Although controlling non-point source pollution--in 
particular, runoff of fine sediment, nutrients, and other 
contaminants--has been more difficult, CWA provisions such as total 
maximum daily load standards, which States are required to develop and 
achieve, have helped spur watershed-level management plans aimed at 
stemming pollutants potentially harmful to the Roanoke logperch, such 
as nutrients and sediment.
    No previous research has directly quantified relationships between 
the threats to the species and the Roanoke logperch's vital rates, so 
in assessing current and future conditions, we based our assumptions 
about the nature of these relationships on a combination of ecological 
theory, expert judgment, and simulation models (Service 2022a, p. 26). 
Effects from specific threats such as fine sediment deposition, 
chemical pollution, dams and other barriers, and climate change are 
represented in the models but are not explicitly attributed to each 
threat.

Current Condition

    Considering the biology of the species and key factors influencing 
condition, we assessed the current resiliency of occupied Roanoke 
logperch MUs (see table 1, above, for a list of MUs) based on indices 
of population density, genetically effective population size, habitat 
quality, and geographic range complexity. An overall index of current 
MU resiliency that combines this information is available in the SSA 
report (see section 3.4 of SSA report (Service 2022a, pp. 34-37)). In 
summary:
     Higher population density is indicative of a more highly 
productive habitat, and therefore reflects a population with higher 
resiliency since the habitat is able to support the needs of the 
species at a more concentrated scale.
     An important component of resiliency is being able to 
resist the influence of inbreeding depression on individual fitness, 
and ultimately, being able to adapt to changing future conditions. A 
larger value for genetically effective population size is needed over 
the long term (dozens to hundreds of generations) to maintain adaptive 
variation in the face of genetic drift; therefore, a higher value is 
indicative of higher resiliency in a population.
     Current habitat quality was qualitatively assigned as an 
aggregate assessment of that habitat's ability to support Roanoke 
logperch population growth, and we considered MUs with high habitat 
quality to have highest resiliency. Additionally, populations are less 
likely to go extinct when they are widely distributed across complex 
and diverse habitats. Accordingly, having more stream segments is 
indicative of more refugia and protection from impacts from negative 
events, and therefore indicative of higher resiliency.
    MUs were given scores of low, intermediate, or high for each of the 
above indices and then an overall index was calculated. The overall 
index was the sum of the high scores (max of 4) minus the sum of the 
low scores (max of 4), plus 3 (to scale the final index to have a 
minimum of one). Any MU with an overall score >= 5 exhibited at least 
three ``high'' indices, so we considered these MUs to have highest 
resiliency. In contrast, any MU with an overall score of 1 exhibited at 
least two ``low'' indices and no ``high'' indices, so we considered 
these MUs to have the lowest resiliency. MUs with scores of 2-4 were 
considered intermediately resilient. The overall resiliency index for 
current condition is highest in the Upper Roanoke, Pigg, Upper Smith, 
Middle Dan, and Nottoway MUs, and is either high or intermediate in 9 
of the 11 currently occupied MUs (Service 2022a, p. 40).
    We used MU resiliency to further assess redundancy and 
representation at the metapopulation and species levels. For each 
metapopulation, a redundancy index was calculated, with the assumption 
that each MU's contribution to redundancy is a function of both the 
resiliency and the geographic complexity of that MU (Service 2022a, pp. 
36-37). The overall current redundancy score is highest in the Dan 
metapopulation, followed by the Roanoke Mountain and Chowan 
metapopulations, and is intermediate in the Roanoke Piedmont 
metapopulation; therefore, overall redundancy is considered 
intermediate to high across all four metapopulations.
    Representation describes the ability of a species to adapt to 
changing environmental conditions over time. By maximizing 
representation, a species' adaptive capacity to face unpredictable 
future changes to its environment are also maximized. Given that all 
four metapopulations, which are combinations of ecoregion and basin, 
within the known range of the Roanoke logperch have multiple 
(redundant) MUs with intermediate or high effective populations, we 
deemed that species-level adaptive capacity, or representation, is high 
for the species. The high estimated resiliency and redundancy of the 
Chowan metapopulation is particularly important for species-level 
representation, given that it is the most genetically distinctive 
metapopulation (Roberts et al. 2013, entire). The Chowan metapopulation 
occurs in the most ecologically distinct environment (Jenkins and 
Burkhead 1994, pp. 786-787; Rosenberger and Angermeier 2003, entire) 
and, therefore, potentially contributes disproportionately to the 
evolutionary diversity of the species.

Future Conditions

    We assessed future conditions for the Roanoke logperch using a 
population viability model that forecasts population size and species' 
viability 50 years into the future. We assumed a current date of 2020, 
thus forecasting population size to year 2070. We chose a 50-year 
timeframe because we had information to reasonably assess urbanization, 
climate change, and risks to the species over this timeframe. Assuming 
a 4.5-year generation time for the Roanoke logperch (Roberts 2012a, p. 
89), 50 years represents just over 10 generations for the species to 
respond to changing future conditions. As with current condition, 
future conditions were assessed using the three conservation biology 
principles of resiliency, redundancy, and representation, with 
resiliency gauged by assessing MU persistence probability over the 50-
year timeframe and metapopulation redundancy and species representation 
gauged by counts of MUs with intermediate to high resilience.
    We forecasted future conditions for the Roanoke logperch under 12 
scenarios, featuring three management categories contrasted with four 
different assumptions about future environmental conditions including 
different watershed urbanization levels, climate change scenarios, and 
conservation management (i.e., Roanoke logperch population restoration 
efforts and habitat connectivity restoration via barrier removals) (see 
chapter 4 of SSA report (Service 2022a, pp. 41-57)). The forecasted 
future conditions showed 8 of 11 MUs with 99 or 100 percent probability 
of persistence under all 12 scenarios until 2070. Even under the worst 
plausible future scenario (increased risk of watershed urbanization, 
decreased habitat suitability, no population augmentation, and no 
barrier removal), at least one MU is projected to persist in each of 
three metapopulations (Roanoke Mountain, Roanoke Piedmont, Chowan), and 
all of the MUs in the fourth metapopulation, Dan, are projected to 
maintain resiliency. Redundancy is projected to be consistently high in 
the Roanoke Mountain, Dan, and Chowan metapopulations. In contrast,

[[Page 22660]]

redundancy of the Roanoke Piedmont metapopulation depends strongly on 
future environmental and management conditions. Under declining habitat 
conditions, the Roanoke Piedmont metapopulation maintains only one MU, 
whereas with conservation management (i.e., PARTI and barrier removal), 
it maintains three MUs. Species-level representation is relatively high 
under scenarios where multiple Roanoke Piedmont MUs maintain 
resiliency, but only partially achieved in situations where the Roanoke 
Piedmont metapopulation decreases to one remaining MU.
    In summary, owing to a large geographic range that includes at 
least some numerically large populations in good-quality habitat, we 
estimate that species-level representation and redundancy for Roanoke 
logperch currently is relatively high. All four metapopulations exhibit 
at least some redundancy of MUs in intermediate to high resiliency 
condition. In the future, under the worst-case scenario of worsening 
habitat quality, increased risk, and no management, 8 of 11 MUs are 
projected to remain highly resilient by year 2070. The Roanoke Piedmont 
metapopulation and its constituent MUs show the lowest resiliency and 
redundancy, particularly under scenarios involving worsening habitat 
quality. However, these declines could potentially be offset through 
restoration measures like PARTI (augmenting weak populations and 
establishing new ones) and/or barrier removal and passage (allowing 
natural augmentation and colonization).
    We note that, by using the SSA framework to guide our analysis of 
the scientific information documented in the SSA report, we have 
analyzed the cumulative effects of identified threats and conservation 
actions on the species. To assess the current and future condition of 
the species, we evaluate the effects of all the relevant factors that 
may be influencing the species, including threats and conservation 
efforts. Because the SSA framework considers not just the presence of 
the factors, but to what degree they collectively influence risk to the 
entire species, our assessment integrates the cumulative effects of the 
factors and replaces a standalone cumulative effects analysis.

Determination of the Roanoke Logperch's Status

    Section 4 of the Act (16 U.S.C. 1533) and its implementing 
regulations (50 CFR part 424) set forth the procedures for determining 
whether a species meets the definition of 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 a species meets the definition of 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.

Status Throughout All of Its Range

    When the Roanoke logperch was listed as endangered in 1989, it was 
thought to be endemic to Virginia and to inhabit only the upper 
Roanoke, Pigg, Nottoway, and Smith rivers. Since then, the species' 
known range has expanded to 31 streams spanning 55 watersheds (HUCs) in 
both Virginia and North Carolina, and restoration work (such as barrier 
removal, construction of fish passages, and riparian habitat 
improvement) has occurred throughout the species' range. Furthermore, 
no population extirpations are known.
    After evaluating threats to the species and assessing the 
cumulative effect of the threats under the Act's section 4(a)(1) 
factors, we deemed that six factors influence Roanoke logperch 
viability. First, fine-sediment deposition emanating from urbanization, 
agriculture, and other sources smothers eggs and reduces feeding 
efficiency, potentially resulting in reduced growth, survival, and 
recruitment. Second, chronic chemical pollution reduces habitat 
suitability for the Roanoke logperch, and acute pollution events reduce 
survival and population size. Third, dams and other barriers inhibit 
fish movement, fragmenting populations into smaller areas and reducing 
demographic rescue and gene flow among populations. Fourth, climate 
change has the potential to alter hydrology and sediment delivery by 
increasing flood magnitudes and flow variability in general, reducing 
flow predictability, decreasing summer/fall base flows, and increasing 
erosion and runoff of sediment, potentially reducing habitat 
suitability for all age-classes of Roanoke logperch and increasing 
direct mortality of vulnerable juveniles during spring floods. Fifth, 
existing legal and regulatory mechanisms such as protections of the 
Act, the CWA, and State-level equivalents have benefitted the species 
through prohibitions on activities that may cause take and by 
facilitating funding opportunities used for Roanoke logperch research 
and conservation (note, however, that our assessment of status does not 
take into account the protections and benefits of the species being 
listed under the Act). Sixth, management activities aimed at improving 
habitat quality (e.g., riparian revegetation to reduce silt loading), 
restoring habitat connectivity (e.g., removing dams and constructing 
fish passages over barriers), and directly manipulating populations 
through propagation, augmentation, reintroduction, translocation, and 
introduction of fish (i.e., PARTI) have increased the resiliency and 
redundancy of populations.
    Based on the species' expanded geographic distribution since the 
time of listing, the lack of empirical records of watersheds that have 
become unoccupied or populations that have become extirpated, and our 
analysis of threats, we conclude that the Roanoke logperch has a very 
low risk of extinction in the near term. The current number and 
distribution of intermediate to high resilience MUs is high across all 
four metapopulations, species-level adaptive capacity is relatively 
high, and threats in the near term are low. Thus, the Roanoke logperch 
does not meet the Act's definition of an endangered species.
    Twelve future scenarios were modeled 50 years into the future. 
Regardless of projected increases in urbanization or climate change, 
and even in the absence of augmentation or barrier removal, all 
occupied MUs in the Roanoke Mountain, Dan, and Chowan metapopulations 
had high persistence probabilities. Only the Roanoke Piedmont differed, 
with two high and two low probabilities of persistence among its four 
MUs. Also, under all scenarios, all four metapopulations have MUs with 
high probabilities of persistence to 2070; thus, species-level 
representation is projected to remain high into the future. Even under 
the worst plausible case of worsening habitat quality, increased risk, 
and no conservation management, 8 of 11 MUs are projected to persist to 
2070. Therefore, the Roanoke logperch is not likely to become in danger 
of extinction within the foreseeable future, and it does not meet the 
Act's definition of a threatened species.
    Thus, after assessing the best available information, we conclude 
that the

[[Page 22661]]

Roanoke logperch is not in danger of extinction now 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 
within the foreseeable future throughout all or a significant portion 
of its range. Having determined that the Roanoke logperch is not in 
danger of extinction or likely to become so within the foreseeable 
future throughout all of its range, we now consider whether it may be 
in danger of extinction (i.e., endangered) or likely to become so 
within the foreseeable future (i.e., threatened) in a significant 
portion of its range--that is, whether there is any portion of the 
species' range for which both (1) the portion is significant; and (2) 
the species is in danger of extinction or likely to become so within 
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.
    We identified two portions of the range to consider: (1) the 
Roanoke Piedmont metapopulation, because it was variable in terms of 
resiliency and had the lowest redundancy score; and (2) the Chowan 
metapopulation, because it houses the most genetically unique 
population of the species. The remaining two portions of the range 
(Roanoke Mountain and Dan metapopulations) were not considered due to 
their consistently high resiliency and redundancy, indicating the 
species is not in danger of extinction or likely to become so within 
the foreseeable future in those portions. In undertaking this analysis 
for the Roanoke logperch, we choose to address the significance 
question first. In the absence of a legal definition of significance in 
the Act, we determined significance on a case-by-case basis for the 
Roanoke logperch using a reasonable interpretation of significance and 
providing a rational basis for our determination. In doing so, we 
considered what is currently observed about the contributions made by 
each geographic portion in terms of biological factors, focusing on the 
importance of each in supporting the continued viability of the 
species. We also evaluated whether the area occupies relatively large 
or particularly high-quality or unique habitat.
    The Roanoke Piedmont represents one of the four metapopulations in 
our analysis. It was defined by combining river basin (i.e., Roanoke 
River Basin) and ecoregion (i.e., upper Piedmont). This metapopulation 
represents 25 percent of the species' range, which is a small 
proportion of the Roanoke logperch's range and encompasses a small 
proportion of the species' overall population. Further, it is not 
unique in that it shares similar geology, topography, water chemistry, 
habitat, and climate with another upper Piedmont part of the range, the 
Dan metapopulation. We conclude that the Roanoke Piedmont is not a 
significant portion of the range.
    In our representation analysis, we note the special nature of the 
Chowan metapopulation. Intraspecific genetic studies of Roanoke 
logperch indicate that the Chowan basin houses the most genetically 
unique population of the species; however, overall levels of 
intraspecific genetic divergence are relatively minor, such that no 
major subspecific phylogeographic distinctions (e.g., evolutionarily 
significant units) are evident. The high estimated resiliency and 
redundancy of the Chowan metapopulation is particularly important for 
species-level representation. This evolutionary unit is the most 
genetically distinctive metapopulation, occurs in the most ecologically 
distinct environment, and therefore potentially contributes 
disproportionately to the evolutionary diversity of the species.
    Having identified the Chowan as a significant portion of the 
Roanoke logperch's range, we then focused our analysis on whether this 
portion of the species' range may meet the Act's definition of an 
endangered species or a threatened species. We considered whether the 
threats to, or their effects on, the species are greater in this 
portion of the species' range than in other portions such that the 
species is in danger of extinction now or likely to become so within 
the foreseeable future in that portion. We examined the following 
threats: fine-sediment deposition, pollution, dams/barriers, and 
climate change, including their cumulative effects.
    Our analysis indicates that the primary threats are not acting on 
the Roanoke logperch in the Chowan Basin such that the Chowan 
metapopulation would have a different status than the species as a 
whole. The current condition of Roanoke logperch in the Chowan 
metapopulation consists of a high resiliency MU, indicating that the 
species has robust population densities, high genetic diversity, plenty 
of available suitable habitat, and security from risks like pollution 
events. We project that, in the foreseeable future, Roanoke logperch in 
the Chowan metapopulation would have a 100 percent probability of 
persistence regardless of future scenario. Therefore, we conclude that 
the species is not in danger of extinction or likely to become so 
within the foreseeable future in the Chowan portion of the range.
    We found no biologically meaningful portion of the Roanoke 
logperch's range where the condition of the species differs from its 
condition elsewhere in its range such that the status of the species in 
that portion differs from its status in any other portion of the 
species' range.
    Therefore, we find that the species is not in danger of extinction 
now or likely to become so within the foreseeable future in any 
significant portion of its range. This does not conflict with the 
courts' holdings in Desert Survivors v. Department of the Interior, 321 
F. Supp. 3d 1011, 1070-74 (N.D. Cal. 2018), and Center for Biological 
Diversity v. Jewell, 248 F. Supp. 3d. 946, 959 (D. Ariz. 2017) because, 
in reaching this conclusion, we did not apply the aspects of the Final 
Policy on Interpretation of the Phrase ``Significant Portion of Its 
Range'' in the Endangered Species Act's Definitions of ``Endangered 
Species'' and ``Threatened Species'' (79 FR 37578; July 1, 2014), 
including the definition of ``significant'' that those court decisions 
held to be invalid.

Determination of Status

    Our review of the best scientific and commercial data available 
indicates that the Roanoke logperch does not meet the Act's definition 
of an endangered species or a threatened species in accordance with 
sections 3(6), 3(20), and 4(a)(1) of the Act. Therefore, in accordance 
with our regulations at 50 CFR 424.11(e)(2), we propose to remove the 
Roanoke logperch from the Federal List of Endangered and Threatened 
Wildlife.

Effects of This Rule

    This proposed rule, if made final, would revise 50 CFR 17.11(h) by 
removing the Roanoke logperch 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 this species. Federal agencies would no longer be 
required to consult with the Service under section 7 of the Act in the

[[Page 22662]]

event that activities they authorize, fund, or carry out may affect the 
Roanoke logperch.
    There is no critical habitat designated for this species, so there 
would be no effect to 50 CFR 17.95.

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 recovered. 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.
    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 
Roanoke logperch. 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 Roanoke logperch 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 Roanoke logperch warrants 
expanded monitoring, additional research, additional habitat 
protection, or resumption of Federal protection under the Act.
    We appreciate any information on what should be included in post-
delisting monitoring strategies for this species (see Information 
Requested, above).

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.

References Cited

    A complete list of references cited in this rulemaking is available 
on the internet at https://www.regulations.gov and upon request from 
the Virginia Ecological Services Field Office (see FOR FURTHER 
INFORMATION CONTACT).

Authors

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

List of Subjects in 50 CFR Part 17

    Endangered and threatened species, Exports, Imports, Plants, 
Reporting and recordkeeping requirements, Transportation, Wildlife.

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; 4201-4245, unless 
otherwise noted.


Sec.  17.11  [Amended]

0
2. In 17.11, in paragraph (h), amend the List of Endangered and 
Threatened Wildlife by removing the entry for ``Logperch, Roanoke'' 
under FISHES.

Martha Williams,
Director, U.S. Fish and Wildlife Service.
[FR Doc. 2024-06795 Filed 4-1-24; 8:45 am]
BILLING CODE 4333-15-P