[Federal Register Volume 89, Number 131 (Tuesday, July 9, 2024)]
[Proposed Rules]
[Pages 56253-56275]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-14320]


=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-R4-ES-2023-0224; FXES1111090FEDR-245-FF09E21000]
RIN 1018-BE32


Endangered and Threatened Wildlife and Plants; Designation of 
Critical Habitat for Barrens Topminnow

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule.

-----------------------------------------------------------------------

SUMMARY: We, the U.S. Fish and Wildlife Service (Service), propose to 
designate critical habitat for the Barrens topminnow (Fundulus julisia) 
under the Endangered Species Act of 1973, as amended (Act). In total, 
approximately 1.5 acres (0.6 hectares) of spring pool and 11.4 miles 
(18.3 kilometers) of spring run in Cannon, Coffee, Dekalb, Franklin, 
Grundy, and Warren Counties, Tennessee, fall within the boundaries of 
the proposed critical habitat designation. We also announce the 
availability of an economic analysis of the proposed designation of 
critical habitat for the Barrens topminnow.

DATES: We will accept comments received or postmarked on or before 
September 9, 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 a 
public hearing, in writing, at the address shown in FOR FURTHER 
INFORMATION CONTACT by August 23, 2024.

ADDRESSES: 
    Written comments: 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-R4-ES-2023-0224, 
which is the docket number for this rulemaking. Then, click on the 
Search button. On the resulting page, in the panel on the left side of 
the screen, under the Document Type heading, click on the Proposed Rule 
box to locate this document. You may submit a comment by clicking on 
``Comment.''
    (2) By hard copy: Submit by U.S. mail to: Public Comments 
Processing, Attn: FWS-R4-ES-2023-0224, 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: For the critical habitat 
designation, the coordinates or plot points or both from which the maps 
are generated are included in the decision file for this critical 
habitat designation and are available at https://www.fws.gov/office/tennessee-ecological-services and at https://www.regulations.gov under 
Docket No. FWS-R4-ES-2023-0224.

FOR FURTHER INFORMATION CONTACT: Daniel Elbert, Field Supervisor, U.S. 
Fish and Wildlife Service, Tennessee Ecological Services Office, 446 
Neal Street, Cookeville, TN 38501; telephone 931-528-6481. 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-R4-ES-2023-0224 on https://www.regulations.gov for a document that summarizes this proposed rule.

[[Page 56254]]


SUPPLEMENTARY INFORMATION:

Executive Summary

    Why we need to publish a rule. To the maximum extent prudent and 
determinable, we must designate critical habitat for any species that 
we determine to be an endangered or threatened species under the Act. 
Designation of critical habitat can only be completed by issuing a rule 
through the Administrative Procedure Act rulemaking process (5 U.S.C. 
551 et seq.).
    What this document does. We propose the designation of critical 
habitat for the Barrens topminnow. The Barrens topminnow was listed as 
an endangered species under the Act on November 20, 2019 (see 84 FR 
56131; October 21, 2019).
    The basis for our action. Under section 4(a)(3) of the Act, if we 
determine that a species is an endangered or threatened species we 
must, to the maximum extent prudent and determinable, designate 
critical habitat. Section 3(5)(A) of the Act defines critical habitat 
as (i) the specific areas within the geographical area occupied by the 
species, at the time it is listed, on which are found those physical or 
biological features (I) essential to the conservation of the species 
and (II) which may require special management considerations or 
protections; and (ii) specific areas outside the geographical area 
occupied by the species at the time it is listed, upon a determination 
by the Secretary of the Interior (Secretary) that such areas are 
essential for the conservation of the species. Section 4(b)(2) of the 
Act states that the Secretary must make the designation on the basis of 
the best scientific data available and after taking into consideration 
the economic impact, the impact on national security, and any other 
relevant impacts of specifying any particular area as critical habitat.
    Section 4(a)(3) of the Act and implementing regulations (50 CFR 
424.12) require that we designate critical habitat at the time a 
species is determined to be an endangered or threatened species, to the 
maximum extent prudent and determinable. On January 4, 2018, the 
Service published a proposed rule to list the Barrens topminnow as an 
endangered species under the Act (83 FR 490). At the time of the 
proposed listing rule, the Service found that critical habitat was 
prudent but could not be determined until a careful assessment of the 
economic impacts that may occur due to a critical habitat designation 
was completed. The final listing rule (84 FR 56131; October 21, 2019) 
affirmed that the designation of critical habitat was prudent but not 
determinable because specific information needed to analyze the impacts 
of designation was lacking.
    In accordance with section 4(b)(2) of the Act and our implementing 
regulations at 50 CFR 424.19, we prepared an analysis of the economic 
impacts of the proposed critical habitat designation. In this proposed 
rule, we announce the availability of the draft economic analysis for 
public review and comment.

Peer Review

    In accordance with our joint policy on peer review published in the 
Federal Register on July 1, 1994 (59 FR 34270) and our August 22, 2016, 
memorandum updating and clarifying the role of peer review of listing 
actions under the Act, we sought the expert opinions of appropriate 
specialists regarding our 2017 species status assessment (SSA) report 
(Service 2017, entire), which informed this proposed rule. In addition 
to the peer review conducted on the 2017 SSA report, we are seeking 
comments from independent specialists during the public comment period 
on this proposed rule (see DATES, above). The purpose of peer review is 
to ensure that our designation is based on scientifically sound data, 
assumptions, and analyses. The peer reviewers have expertise in fish 
biology, habitat, and stressors or factors negatively affecting the 
species.

Information Requested

    We intend that any final action resulting from this proposed rule 
will be based on the best scientific data available and be as accurate 
and as effective as possible. Therefore, we request comments or 
information from other governmental agencies, Native American Tribes, 
the scientific community, industry, or any other interested parties 
concerning this proposed rule. We particularly seek comments 
concerning:
    (1) Historical and current range, including distribution patterns 
and the locations of any additional populations of Barrens topminnow.
    (2) Specific information on:
    (a) The amount and distribution of Barrens topminnow habitat;
    (b) Any additional areas occurring within the range of the species, 
i.e., Cannon, Coffee, Dekalb, Franklin, Grundy, and Warren Counties, 
Tennessee, that should be included in the designation because they (i) 
are occupied at the time of listing and contain the physical or 
biological features that are essential to the conservation of the 
species and that may require special management considerations or 
protection, or (ii) are unoccupied at the time of listing and are 
essential for the conservation of the species;
    (c) Special management considerations or protection that may be 
needed in critical habitat areas we are proposing, including managing 
for the potential effects of climate change; and
    (d) Whether areas not occupied at the time of listing qualify as 
habitat for the species and are essential for the conservation of the 
species.
    (3) Land use designations and current or planned activities in the 
subject areas and their possible impacts on proposed critical habitat.
    (4) Any probable economic, national security, or other relevant 
impacts of designating any area that may be included in the final 
designation, and the related benefits of including or excluding 
specific areas.
    (5) Information on the extent to which the description of probable 
economic impacts in the draft economic analysis is a reasonable 
estimate of the likely economic impacts.
    (6) Whether any specific areas we are proposing for critical 
habitat designation should be considered for exclusion under section 
4(b)(2) of the Act, and whether the benefits of potentially excluding 
any specific area outweigh the benefits of including that area under 
section 4(b)(2) of the Act. Please see Consideration of Other Relevant 
Impacts, below, for information on areas for which the Service's 
Partners for Fish and Wildlife is developing conservation agreements; 
if you think we should exclude any of these areas, or any other areas, 
from the designation of critical habitat for the Barrens topminnow, 
please provide information supporting a benefit of exclusion.
    (7) Whether we could improve or modify our approach to designating 
critical habitat in any way to provide for greater public participation 
and understanding, or to better accommodate public concerns and 
comments.
    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)(2) of 
the Act directs that the Secretary

[[Page 56255]]

shall designate critical habitat on the basis of the best scientific 
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 critical habitat designation 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. Our final designation may not include all areas 
proposed if we determine they do not meet the definition of critical 
habitat, may include some additional areas that meet the definition of 
critical habitat, or may exclude some areas if we find the benefits of 
exclusion outweigh the benefits of inclusion and exclusion will not 
result in the extinction of the species. In our final rule, 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 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 virtual public hearings is 
consistent with our regulations at 50 CFR 424.16(c)(3).

Previous Federal Actions

    On January 4, 2018, we published a proposed rule in the Federal 
Register (83 FR 490) to list the Barrens topminnow as an endangered 
species under the Act. At the time of our proposal, we determined that 
designation of critical habitat was prudent but not determinable 
because specific information needed to analyze the impacts of 
designation was lacking. We published the final listing rule on October 
21, 2019 (84 FR 56131). Please refer to the proposed and final listing 
rules (83 FR 490, January 4, 2018; 84 FR 56131, October 21, 2019) for a 
detailed description of previous Federal actions concerning this 
freshwater fish species.

Background

Critical Habitat

    Critical habitat is defined in section 3 of the Act as:
    (1) The specific areas within the geographical area occupied by the 
species, at the time it is listed in accordance with the Act, on which 
are found those physical or biological features
    (a) Essential to the conservation of the species, and
    (b) Which may require special management considerations or 
protection; and
    (2) Specific areas outside the geographical area occupied by the 
species at the time it is listed, upon a determination that such areas 
are essential for the conservation of the species.
    Our regulations at 50 CFR 424.02 define the geographical area 
occupied by the species as an area that may generally be delineated 
around species' occurrences, as determined by the Secretary (i.e., 
range). Such areas may include those areas used throughout all or part 
of the species' life cycle, even if not used on a regular basis (e.g., 
migratory corridors, seasonal habitats, and habitats used periodically, 
but not solely by vagrant individuals).
    Conservation, as defined under section 3 of the Act, means to use 
and the use of all methods and procedures that are necessary to bring 
an endangered or threatened species to the point at which the measures 
provided pursuant to the Act are no longer necessary. Such methods and 
procedures include, but are not limited to, all activities associated 
with scientific resources management such as research, census, law 
enforcement, habitat acquisition and maintenance, propagation, live 
trapping, and transplantation, and, in the extraordinary case where 
population pressures within a given ecosystem cannot be otherwise 
relieved, may include regulated taking.
    Critical habitat receives protection under section 7 of the Act 
through the requirement that Federal agencies ensure, in consultation 
with the Service, that any action they authorize, fund, or carry out is 
not likely to result in the destruction or adverse modification of 
critical habitat. The designation of critical habitat does not affect 
land ownership or establish a refuge, wilderness, reserve, preserve, or 
other conservation area. Such designation does not allow the government 
or public to access private lands. Such designation does not require 
implementation of restoration, recovery, or enhancement measures by 
non-Federal landowners. Rather, designation requires that, where a 
landowner requests Federal agency funding or authorization for an 
action that may affect an area designated as critical habitat, the 
Federal agency consult with the Service under section 7(a)(2) of the 
Act. If the action may affect the listed species itself (such as for 
occupied critical habitat), the Federal agency would have already been 
required to consult with the Service even absent the designation 
because of the requirement to ensure that the action is not likely to 
jeopardize the continued existence of the species. Even if the Service 
were to conclude after consultation that the proposed activity is 
likely to result in destruction or adverse modification of the critical 
habitat, the Federal action agency and the landowner are not required 
to abandon the proposed activity, or to restore or recover the species; 
instead, they must implement ``reasonable and prudent alternatives'' to 
avoid destruction or adverse modification of critical habitat.
    Under the first prong of the Act's definition of critical habitat, 
areas within the geographical area occupied by the species at the time 
it was listed are included in a critical habitat designation if they 
contain physical or biological features (1) which are essential to the 
conservation of the species and (2) which may require special 
management considerations or protection. For these areas, critical 
habitat designations identify, to the extent known using the best 
scientific data available, those physical or biological features that 
are essential to the conservation of the species (such as space, food, 
cover, and protected habitat).
    Under the second prong of the Act's definition of critical habitat, 
we can designate critical habitat in areas outside the geographical 
area occupied

[[Page 56256]]

by the species at the time it is listed, upon a determination that such 
areas are essential for the conservation of the species.
    Section 4 of the Act requires that we designate critical habitat on 
the basis of the best scientific data available. Further, our Policy on 
Information Standards under the Endangered Species Act (published in 
the Federal Register on July 1, 1994 (59 FR 34271)), the Information 
Quality Act (section 515 of the Treasury and General Government 
Appropriations Act for Fiscal Year 2001 (Pub. L. 106-554; H.R. 5658)), 
and our associated Information Quality Guidelines provide criteria, 
establish procedures, and provide guidance to ensure that our decisions 
are based on the best scientific data available. They require our 
biologists, to the extent consistent with the Act and with the use of 
the best scientific data available, to use primary and original sources 
of information as the basis for recommendations to designate critical 
habitat.
    When we are determining which areas should be designated as 
critical habitat, our primary source of information is generally the 
information from the SSA report and information developed during the 
listing process for the species. Additional information sources may 
include any generalized conservation strategy, criteria, or outline 
that may have been developed for the species; the recovery plan for the 
species; articles in peer-reviewed journals; conservation plans 
developed by States and counties; scientific status surveys and 
studies; biological assessments; other unpublished materials; or 
experts' opinions or personal knowledge.
    Habitat is dynamic, and species may move from one area to another 
over time. We recognize that critical habitat designated at a 
particular point in time may not include all of the habitat areas that 
we may later determine are necessary for the recovery of the species. 
For these reasons, a critical habitat designation does not signal that 
habitat outside the designated area is unimportant or may not be needed 
for recovery of the species. Areas that are important to the 
conservation of the species, both inside and outside the critical 
habitat designation, will continue to be subject to: (1) Conservation 
actions implemented under section 7(a)(1) of the Act; (2) regulatory 
protections afforded by the requirement in section 7(a)(2) of the Act 
for Federal agencies to ensure their actions are not likely to 
jeopardize the continued existence of any endangered or threatened 
species; and (3) the prohibitions found in section 9 of the Act. 
Federally funded or permitted projects affecting listed species outside 
their designated critical habitat areas may still result in jeopardy 
findings in some cases. These protections and conservation tools will 
continue to contribute to recovery of the species. Similarly, critical 
habitat designations made on the basis of the best available 
information at the time of designation will not control the direction 
and substance of future recovery plans, habitat conservation plans 
(HCPs), or other species conservation planning efforts if new 
information available at the time of those planning efforts calls for a 
different outcome.

Physical or Biological Features Essential to the Conservation of the 
Species

    In accordance with section 3(5)(A)(i) of the Act and regulations at 
50 CFR 424.12(b), in determining which areas we will designate as 
critical habitat from within the geographical area occupied by the 
species at the time of listing, we consider the physical or biological 
features that are essential to the conservation of the species and 
which may require special management considerations or protection. The 
regulations at 50 CFR 424.02 define ``physical or biological features 
essential to the conservation of the species'' as the features that 
occur in specific areas and that are essential to support the life-
history needs of the species, including, but not limited to, water 
characteristics, soil type, geological features, sites, prey, 
vegetation, symbiotic species, or other features. A feature may be a 
single habitat characteristic or a more complex combination of habitat 
characteristics. Features may include habitat characteristics that 
support ephemeral or dynamic habitat conditions. Features may also be 
expressed in terms relating to principles of conservation biology, such 
as patch size, distribution distances, and connectivity. For example, 
physical features essential to the conservation of the species might 
include gravel of a particular size required for spawning, alkaline 
soil for seed germination, protective cover for migration, or 
susceptibility to flooding or fire that maintains necessary early-
successional habitat characteristics. Biological features might include 
prey species, forage grasses, specific kinds or ages of trees for 
roosting or nesting, symbiotic fungi, or absence of a particular level 
of nonnative species consistent with conservation needs of the listed 
species. The features may also be combinations of habitat 
characteristics and may encompass the relationship between 
characteristics or the necessary amount of a characteristic essential 
to support the life history of the species.
    In considering whether features are essential to the conservation 
of the species, we may consider an appropriate quality, quantity, and 
spatial and temporal arrangement of habitat characteristics in the 
context of the life-history needs, condition, and status of the 
species. These characteristics include, but are not limited to, space 
for individual and population growth and for normal behavior; food, 
water, air, light, minerals, or other nutritional or physiological 
requirements; cover or shelter; sites for breeding, reproduction, or 
rearing (or development) of offspring; and habitats that are protected 
from disturbance.

Summary of Essential Physical or Biological Features

    We derive the specific physical or biological features essential to 
the conservation of Barrens topminnow from studies of this species' 
habitat, ecology, and life history as described in the SSA report 
(Service 2017, entire); January 4, 2018, proposed listing rule (83 FR 
490); and October 21, 2019, final listing rule (84 FR 56131). As 
described in the SSA report and listing rules, Barrens topminnows spawn 
in filamentous algae near the water surface, between April and August, 
with peak activity occurring from May to June. While the maximum age of 
the Barrens topminnow is 4 years, adults typically live for 2 years or 
less, and only about one-third of individuals spawn more than one 
season (Rakes 1989, p. 42; Etnier and Starnes 1993, p. 366). Prey items 
consumed by Barrens topminnows consist predominantly of 
microcrustaceans and immature aquatic insect larvae. However, the 
species is a generalist feeder, also consuming small snails and 
terrestrial organisms such as ants and other insects that fall or 
wander into aquatic habitats (Rakes 1989, pp. 18-25).
    Barrens topminnow habitat is restricted to springhead pools and 
slow-flowing areas of spring runs on the Barrens Plateau in middle 
Tennessee. This species is known to have occurred historically at 18 
sites, but likely occurred at more sites that were not surveyed prior 
to topminnow extirpation. These fish are strongly associated with 
abundant native aquatic vegetation, which they use for cover and as 
spawning substrate (Service 2017, pp. 7-9). Spawning occurs primarily 
over clumps of filamentous algae (Cladophora and Pithophora species). 
Recently deposited eggs are nearly

[[Page 56257]]

colorless and well camouflaged among the many air bubbles generated 
during photosynthesis and trapped in the algae (Rakes 1989, pp. 29-30). 
In addition to clumps of algae, plants used by Barrens topminnows for 
cover include watercress (Nasturtium officinale), rushes (Juncus), 
pondweed (Potamogeton), and eelgrass (Valisneria) (Service 2017, p. 7). 
Barrens topminnows have only been found in streams where the 
predominant source of base flow is groundwater. Due to the groundwater 
influence of these habitats, temperatures are relatively stable, 
ranging from 15 to 25 degrees Celsius ([deg]C) (59 to 77 degrees 
Fahrenheit ([deg]F)) (Service, p. 7). Barrens topminnows only occur in 
and are adapted to surface streams predominantly fed by adjacent 
groundwater sources and typically are clear during baseflow. In 
unaltered landscapes, turbidity increases in these streams are 
temporary, resulting from inputs of sediments and nutrients in runoff 
following precipitation events. Because Barrens topminnows are adapted 
to clear groundwater-fed streams, use visual cues such as sunlight and 
male coloration (Rakes 1989, p. 35) for spawning, and rely in part on 
eyesight to chase prey (Rakes 1989, p. 18), long periods of elevated 
turbidity may negatively impact populations.
    The primary habitat elements that influence resiliency of the 
Barrens topminnow include water quality, water persistence, and 
submerged or overhanging plant cover. We have determined that the 
following physical or biological features are essential to the 
conservation of the Barrens topminnow:
    (1) Groundwater-fed, first or second order streams and springs that 
persist annually;
    (2) Water temperature ranging from 15 to 25 [deg]C (59 to 77 
[deg]F);
    (3) Water during base flow with limited turbidity that is 
sufficiently clear for individuals to see spawning and feeding cues;
    (4) Submerged native aquatic plants, such as Cladophora and 
Pithophora species, watercress (Nasturtium officinale), rushes (Juncus 
spp.), pondweed (Potamogeton spp.), and eelgrass (Vallisneria spp.), or 
overhanging terrestrial plants and submerged plant roots, to provide 
cover and surfaces for spawning; and
    (5) A prey base of microcrustaceans and small aquatic insects such 
as chironomids (midges).
Special Management Considerations
    When designating critical habitat, we assess whether the specific 
areas within the geographical area occupied by the species at the time 
of listing contain features which are essential to the conservation of 
the species and which may require special management considerations or 
protection. The features essential to the conservation of the Barrens 
topminnow may require special management considerations or protection 
to reduce the following threats: (1) Landscape conversion, including 
(but not limited to) urban, commercial, and agricultural use, and 
infrastructure (roads, bridges, utilities); (2) urban and agricultural 
water uses (water supply reservoirs, wastewater treatment, etc.); (3) 
significant alteration of water quality; (4) impacts from invasive 
species; and (5) changes and shifts in seasonal precipitation patterns 
as a result of climate change.
    Management activities that could help ameliorate these threats 
include, but are not limited to, the following: (1) Use of best 
management practices to limit or reduce sedimentation (suspended 
sediment influxes), such as those provided in the Tennessee Department 
of Environment and Conservation (TDEC) Erosion and Sediment Control 
Handbook (TDEC 2012, entire); (2) retention of natural barriers, and 
maintenance or construction of barriers that isolate Barrens topminnows 
from invasive mosquitofish; and (3) installation of wells to provide a 
groundwater source of surface water at drought-sensitive sites.

Criteria Used To Identify Critical Habitat

    As required by section 4(b)(2) of the Act, we use the best 
scientific data available to designate critical habitat. In accordance 
with the Act and our implementing regulations at 50 CFR 424.12(b), we 
review available information pertaining to the habitat requirements of 
the species and identify specific areas within the geographical area 
occupied by the species at the time of listing and any specific areas 
outside the geographical area occupied by the species to be considered 
for designation as critical habitat. We are proposing to designate 
critical habitat in areas within the geographical area occupied by the 
species at the time of listing. We also are proposing to designate one 
specific area outside the geographical area occupied by the species 
because we have determined that the area are is essential for the 
conservation of the species (see Areas Outside the Geographic Area 
Occupied at the Time of Listing, below).
    The Barrens topminnow has a naturally limited range, and its 
current distribution is much reduced from its historical distribution. 
Meeting the conservation and recovery needs of the species will require 
continued protection of existing populations and habitat, as well as 
management to ensure there are adequate numbers of individuals in 
stable populations at sites in native watersheds where mosquitofish 
are, or can be, excluded. This approach will reduce the likelihood that 
catastrophic events, such as extreme droughts or introduction/invasion 
of mosquitofish at an occupied site, do not simultaneously affect all 
known populations to the same extent. In addition, rangewide recovery 
considerations, such as maintaining existing genetic diversity and 
striving for representation of all major portions of the species' 
current range, were considered in formulating this proposed critical 
habitat designation.

Areas Occupied at the Time of Listing

    We identified all spring pools (pond-like, with little or no flow) 
and spring runs (groundwater-fed, flowing surface water) that supported 
populations of the Barrens topminnow at the time of listing. Rangewide 
sampling undertaken at 37 spring sites since 2013 (Tennessee Aquarium 
Conservation Institute (TNACI) 2014, p. 11; TNACI 2017, p. 3) verified 
the current occurrence of Barrens topminnow at six sites (Service 2017, 
p. 12): Benedict Spring, Big Spring (Merkle), McMahan Creek, Marcum 
Spring, Short Spring, and Greenbrook Pond. The species has been shown 
in intermittent surveys over several decades to persist at these sites.
    In 2023, a population of Barrens topminnow was discovered in Pepper 
Hollow Branch, Grundy County, Tennessee. At the time of listing in 
2019, Barrens topminnows were not known to occupy Pepper Hollow Branch. 
This stream is at the eastern edge of the Barrens Plateau and has not 
been well surveyed. Given this stream's proximity to the previously 
known range of the Barrens topminnow and, until recently, scarcity of 
reported fish surveys, it is very likely the newly discovered 
population is native and was not introduced after the time of listing. 
As such, there is little uncertainty that Barrens topminnows were 
present in Pepper Hollow Branch at the time of listing, and we include 
the stream in our proposed critical habitat designation. Mosquitofish 
are not present in Pepper Hollow Branch, although no barriers to 
potential mosquitofish incursions have been observed. This area also 
increases the species' viability, which is essential for the 
conservation of the Barrens topminnow. All five physical or biological 
features essential to the conservation of the species are present in 
Pepper Hollow Branch.

[[Page 56258]]

    One occupied site, Greenbrook Pond, contains an introduced 
population (present at the time of listing) outside the historical 
range of the species, but within the middle portion of the Caney Fork 
River watershed, the upper portions of which are in the species' 
historical range. All sites occupied at the time of listing (Benedict 
Spring, Big Spring (Merkle), McMahan Creek, Marcum Spring, Short 
Spring, Greenbrook Pond, and Pepper Hollow Branch) currently have all 
five essential physical or biological features for Barrens topminnow 
populations. Importantly, all occupied sites except Big Spring (Merkle) 
are currently free of mosquitofish, and five of the six sites without 
mosquitofish have a barrier to mosquitofish invasion. Barrens 
topminnows were thought to be potentially extirpated from Big Spring 
(Merkle) but were re-documented at this site on February 16, 2018 
(captured and released on February 15, 2018) (Neely 2018, pers. comm.). 
Although Big Spring (Merkle) is not free of mosquitofish and lacks a 
barrier to further mosquitofish invasion, topminnows in the spring 
appear to outnumber mosquitofish.

Areas Outside the Geographic Area Occupied at the Time of Listing

    We are proposing to designate one area outside the geographical 
area occupied at the time of listing by the species, Vervilla Spring 
because the area is essential for the conservation of the Barrens 
topminnow. Although it is not currently occupied, Vervilla Spring is 
within the Caney Fork River watershed where native populations of the 
Barrens topminnow occur. Vervilla Spring is on the Tennessee National 
Wildlife Refuge and sustained a population of introduced Caney Fork 
watershed Barrens topminnows from 2001 until 2011. However, the 
population succumbed to mosquitofish that, during a flood, circumvented 
a constructed barrier. It is feasible to remove all mosquitofish and 
rebuild the barrier so that it is more robust. With a strong barrier to 
mosquitofish in place, restocking can occur, establishing a new 
population. Reestablishing the population would increase Barrens 
topminnow redundancy, resiliency, and viability, promoting conservation 
and increasing the likelihood species recovery. Without the habitat 
provided by the unoccupied area, species recovery and conservation are 
less likely to be attained. All five physical or biological features 
essential to Barrens topminnow conservation are present in Vervilla 
Spring, which is habitat for the species because it provides adequate 
cover from predation, food resources, substrate (aquatic vegetation) 
for successful spawning and recruitment, and water quality that meets 
the species' physiological needs. The upper ends of all proposed 
critical habitat units are demarcated by the place where surface water 
emerges from the ground to form the head of the spring, or where 
permanent flow begins, which is approximately the location of the 
upstream-most record of Barrens topminnow in each proposed unit. Except 
for Big Spring (Merkle) and Pepper Hollow Branch, the downstream ends 
of the proposed units are demarcated by a barrier to mosquitofish. The 
downstream ends of critical habitat at Big Spring (Merkle) and Pepper 
Hollow Branch are approximately the location of the downstream-most 
record of Barrens topminnow.
    When determining proposed critical habitat boundaries, we made 
every effort to avoid including developed areas such as lands covered 
by buildings, pavement, and other structures because such lands lack 
the essential physical or biological features. The scale of the maps we 
prepared under the parameters for publication within the Code of 
Federal Regulations may not reflect the exclusion of such developed 
lands. Any such lands inadvertently left inside critical habitat 
boundaries shown on the maps of this proposed rule have been excluded 
by text in the proposed rule and are not proposed for designation as 
critical habitat. Therefore, if the critical habitat is finalized as 
proposed, a Federal action involving these lands would not trigger 
section 7 consultation with respect to critical habitat and the 
requirement of no adverse modification unless the specific action would 
affect the physical or biological features in the adjacent critical 
habitat.
    The proposed critical habitat designation is defined by the map or 
maps, as modified by any accompanying regulatory text, presented at the 
end of this document under Proposed Regulation Promulgation. All 
proposed units contain all of the identified physical or biological 
features and support multiple life-history processes. We will make the 
coordinates or plot points or both on which each map is based available 
to the public on https://www.regulations.gov at Docket No. FWS-R4-ES-
2023-0224, on our internet site (https://www.fws.gov/office/tennessee-ecological-services), and at the field office responsible for the 
designation (see FOR FURTHER INFORMATION CONTACT, above).
Proposed Critical Habitat Designation
    We propose to designate approximately 1.5 acres (ac) (0.6 hectares 
(ha)) of spring pool and 11.4 miles (mi) (18.3 kilometers (km)) of 
spring run in eight units as critical habitat for the Barrens 
topminnow. The table below shows the name, land ownership of the 
riparian areas surrounding the units, and surface area (for spring 
pools) or length (for stream runs) of the proposed units. Ownership of 
spring run and spring pool bottoms is determined by the adjacent 
riparian land ownership. These riparian areas are not part of the 
proposed critical habitat designation.

               Table of Proposed Critical Habitat Unit Occupancy Status, Land Ownership, and Size
----------------------------------------------------------------------------------------------------------------
                                                                                      Length or area of unit in
       Critical habitat unit           Occupied at time of   Land ownership by type     miles  (kilometers) or
                                            listing?                                       acres (hectares)
----------------------------------------------------------------------------------------------------------------
1. McMahan Creek...................  Yes...................  Private...............  0.8 mi (1.3 km).
2. Benedict Spring.................  Yes...................  Private...............  0.1 ac (0.04 ha).
3. Short Spring....................  Yes...................  City of Tullahoma.....  1.0 ac (0.4 ha).
4. Vervilla Spring.................  No....................  Federal...............  0.2 mi (0.3 km).
5. Marcum Spring...................  Yes...................  Private...............  0.6 mi (0.9 km).
6. Greenbrook Pond.................  Yes...................  City of Smithville....  0.1 mi (0.16 km); 0.4 ac
                                                                                      (0.16 ha).
7. Big Spring (Merkle).............  Yes...................  Private...............  0.5 mi (0.85 km).
8. Pepper Hollow Branch............  Yes...................  Private...............  9.2 mi (14.8 km).
                                                                                    ----------------------------
    Total pool area................  ......................  ......................  1.5 ac (0.6 ha).
    Total stream length............  ......................  ......................  11.4 mi (18.3 km).
----------------------------------------------------------------------------------------------------------------
* Note: Area sizes may not sum due to rounding.


[[Page 56259]]

    We present brief descriptions of the proposed units, and reasons 
why they meet the definition of critical habitat for Barrens topminnow, 
below.

Unit 1: McMahan Creek

    Unit 1, a spring run, consists of 0.8 mi (1.3 km) of McMahan Creek 
in Cannon County. The upstream end of the unit is at the confluence of 
the source spring run (unnamed) and McMahan Creek, just north of the 
Woodland Estates subdivision. The downstream end is to the south, where 
McMahan Creek goes under Geedsville Road. This unit was occupied at the 
time of listing and is currently occupied by the Barrens topminnow. In 
addition, the unit currently supports all breeding, feeding, and 
sheltering needs for the species and contains all of the physical or 
biological features essential to the conservation of the Barrens 
topminnow. The riparian land adjacent to the unit is privately owned.
    Special management considerations or protection may be required to 
address sediment washing into the creek from adjacent pasture and 
residential areas. Fencing would reduce the likelihood of livestock 
trampling instream vegetation, although adjacent lands are used for 
grazing only intermittently. A concrete box culvert at the Geedsville 
Road crossing at the downstream end of the unit is a barrier to 
mosquitofish. Any future roadway maintenance or construction at the 
crossing would require leaving the culvert intact or, in the case of 
culvert replacement or modification, ensuring an alternative barrier 
persists to prevent mosquitofish invasion.

Unit 2: Benedict Spring

    Unit 2 is a 0.1-ac (0.04-ha) spring pool in Coffee County, just 
north of Highway 55, between Summitville Road to the west and Summit 
Breeze Lane to the east. This unit was occupied at the time of listing 
and is currently occupied by the Barrens topminnow. In addition, the 
unit currently supports all breeding, feeding, and sheltering needs for 
the species and contains all of the physical or biological features 
essential to the conservation of the Barrens topminnow. The riparian 
land adjacent to the unit is privately owned.
    Special management considerations or protection may be required to 
address drying of the spring pond. In 2006, 2007, 2008, 2010, and 2016, 
the spring became almost completely dry, and topminnows had to be 
rescued (TNACI 2014, p. 11; Service 2017, p. 20). They were returned to 
the spring on each occasion, after drought subsided. Installation of a 
well with a pump, employed during droughts, would prevent the need to 
rescue topminnows. Assurance of a constant water supply to the spring 
pool during drought would reduce stress on the topminnow population in 
proposed Unit 2, which otherwise will continue to endure frequent 
periods of drought-induced stress due to elevated temperature, lowered 
dissolved oxygen, enhanced depredation, and handling necessary for 
rescue efforts.

Unit 3: Short Spring

    Unit 3 is a 1.0-ac (0.4-ha) spring pool in the city of Tullahoma, 
in Coffee County, just west of Short Springs Road and just north of the 
Short Springs Natural Area. The spring pool is formed by a concrete dam 
and feeds a short, approximately 0.1-mile (0.16-km) spring run that 
feeds Bobo Creek. The city owns the unit, and the natural area is 
State-owned. This unit was occupied at the time of listing and is 
currently occupied by the Barrens topminnow. In addition, the unit 
currently supports all breeding, feeding, and sheltering needs for the 
species and contains all of the physical or biological features 
essential to the conservation of the Barrens topminnow.
    Special management considerations may be required for Unit 3. For 
example, controlling access to the unit for fishing may reduce the 
likelihood of introductions of bait bucket species, including 
mosquitofish, that can compete with or prey upon topminnows.

Unit 4: Vervilla Spring

    Unit 4, in Warren County, is a 0.2-mile (0.3-km) reach consisting 
of a series of spring pools and intervening spring run, with its 
downstream end at the Hickory Creek Confluence, just upstream of the 
confluence of Hickory Creek and West Fork Hickory Creek. The unit is 
entirely within a parcel of the Tennessee National Wildlife Refuge, 
owned and managed by the U.S. Fish and Wildlife Service. This unit was 
historically occupied but is currently unoccupied by the Barrens 
topminnow, and it is essential for the conservation of the species. 
Adding a population of Barrens topminnow to this unoccupied unit, after 
raising the level of the dam and removing mosquitofish, would increase 
the species' resiliency and redundancy as is necessary for the 
conservation and recovery of the species, and reduce the species' 
likelihood of extinction. In addition, this unit is habitat for the 
species; it contains all five physical or biological features essential 
to the conservation of the species.

Unit 5: Marcum Spring

    Unit 5, in Coffee County, consists of an isolated spring pool and 
0.6 mile (0.9 km) of intervening spring run and natural spring pool 
habitat that terminates in a small pond formed by a constructed 
impoundment. The downstream end of the unit (the impounded pool) is at 
Ovoca Road, where it empties to Ovoca Lake, a small-constructed 
impoundment on Carroll Creek. This unit was occupied at the time of 
listing and is currently occupied by the Barrens topminnow. In 
addition, the unit currently supports all breeding, feeding, and 
sheltering needs for the species and contains all of the physical or 
biological features essential to the conservation of the Barrens 
topminnow. The riparian land adjacent to the unit is privately owned.
    Special management considerations or protection may be required to 
address sediment washing into the spring from adjacent pasture and to 
address filling portions of the spring for off-road heavy machinery 
access, which has happened before (TNACI 2014, p. 15). In addition, 
maintaining existing fencing at the site would continue to keep 
livestock out of the stream.

Unit 6: Greenbrook Pond

    Unit 6 consists of a 0.4-ac (0.16-ha) pond, which is an impounded 
spring pool, and 0.1 mi (0.16 km) of spring run at the pond outflow, in 
Greenbrook Park, in the city of Smithville, Dekalb County. This unit 
was occupied at the time of listing and is currently occupied by the 
Barrens topminnow. In addition, the unit currently supports all 
breeding, feeding, and sheltering needs for the species and contains 
all of the physical or biological features essential to the 
conservation of the Barrens topminnow. The riparian land adjacent to 
the unit is owned by the city of Smithville.
    Special management considerations may be required for Unit 6. 
Because the unit is in a public park, access to the unit for collecting 
bait fish may need to be controlled, to reduce the likelihood of 
capturing topminnows or of releasing unused bait fish, including 
mosquitofish, that can compete with or prey upon topminnows.

Unit 7: Big Spring (Merkle)

    Unit 7, in Franklin County, consists of a springhead and 
approximately 0.5 mi (0.85 km) of spring run. The spring is marked as 
Big Spring on topographic maps but is also referred to by the last name 
of the landowner at the spring head, Merkle. The unit lies on two 
private property parcels and is adjacent to a county road right-of-way.

[[Page 56260]]

    The spring flows out of a springhead at the base of a hill and 
through fields used for row-crop agriculture. The stretch upstream of 
Georgia Crossing Road is surrounded by a row-crop field. Below Georgia 
Crossing Road, there is more riparian vegetation, and the stream runs 
adjacent to Hawkins Cove Road. Unit 7 terminates at the confluence with 
Miller Creek.
    This unit was occupied at the time of listing and is currently 
occupied by the Barrens topminnow. In addition, the unit currently 
supports all breeding, feeding, and sheltering needs for the species 
and contains all of the physical or biological features essential to 
the conservation of the Barrens topminnow. Special management 
considerations may be required for streambank and riparian area 
conservation projects that may occur in Unit 7 in the future. The 
spring run has mostly been channelized and the banks cleared of 
vegetation. Portions of the spring run are occasionally dammed by 
beavers, creating more slackwater habitat and promoting aquatic 
vegetation growth.

Unit 8: Pepper Hollow Branch

    Unit 8 consists of 9.2 mi (14.8 km) of Pepper Hollow Branch and its 
permanent tributary reaches upstream of the confluence with the Collins 
River, in Grundy County, Tennessee. The upstream end of the unit starts 
on mainstem Pepper Hollow Branch on the Cumberland Plateau, in a pine 
plantation, from which the stream flows into and through hardwood 
forest until it reaches the valley floor. Areas adjacent to Pepper 
Hollow Branch in the valley are used for nursery production. The 
unnamed tributaries feeding Pepper Hollow Branch are shaded and have a 
mix of riffles and pools with some aquatic vegetation along their 
margins. Tarlton Spring Run, the downstream-most tributary, contains 
abundant aquatic vegetation and flows through open fields in the 
valley. The riparian land adjacent to the unit consists of several 
privately owned parcels.
    This unit is currently occupied by the Barrens topminnow but had 
not been surveyed and was not known to be occupied at the time of 
listing. This unit is essential for the conservation of the species, as 
this newly discovered population increases the species' resiliency and 
redundancy as is necessary for conservation and recovery of the 
species, and reduces the species' likelihood of extinction. In 
addition, this unit contains all five physical or biological features 
essential to the conservation of the species.

Effects of Critical Habitat Designation

Section 7 Consultation

    Section 7(a)(2) of the Act requires Federal agencies, including the 
Service, to ensure that any action they fund, authorize, or carry out 
is not likely to jeopardize the continued existence of any endangered 
species or threatened species or result in the destruction or adverse 
modification of designated critical habitat of such species. In 
addition, section 7(a)(4) of the Act requires Federal agencies to 
confer with the Service on any agency action which is likely to 
jeopardize the continued existence of any species proposed to be listed 
under the Act or result in the destruction or adverse modification of 
proposed critical habitat.
    Destruction or adverse modification means a direct or indirect 
alteration that appreciably diminishes the value of critical habitat as 
a whole for the conservation of a listed species (50 CFR 402.02).
    Compliance with the requirements of section 7(a)(2) of the Act is 
documented through our issuance of:
    (1) A concurrence letter for Federal actions that may affect, but 
are not likely to adversely affect, listed species or critical habitat; 
or
    (2) A biological opinion for Federal actions that may affect, and 
are likely to adversely affect, listed species or critical habitat.
    When we issue a biological opinion concluding that a project is 
likely to jeopardize the continued existence of a listed species and/or 
destroy or adversely modify critical habitat, we provide reasonable and 
prudent alternatives to the project, if any are identifiable, that 
would avoid the likelihood of jeopardy and/or destruction or adverse 
modification of critical habitat. We define ``reasonable and prudent 
alternatives'' (at 50 CFR 402.02) as alternative actions identified 
during formal consultation that:
    (1) Can be implemented in a manner consistent with the intended 
purpose of the action,
    (2) Can be implemented consistent with the scope of the Federal 
agency's legal authority and jurisdiction,
    (3) Are economically and technologically feasible, and
    (4) Would, in the Service Director's opinion, avoid the likelihood 
of jeopardizing the continued existence of the listed species and/or 
avoid the likelihood of destroying or adversely modifying critical 
habitat.
    Reasonable and prudent alternatives can vary from slight project 
modifications to extensive redesign or relocation of the project. Costs 
associated with implementing a reasonable and prudent alternative are 
similarly variable.
    Regulations at 50 CFR 402.16 set forth requirements for Federal 
agencies to reinitiate consultation. Reinitiation of consultation is 
required and shall be requested by the Federal agency, where 
discretionary Federal involvement or control over the action has been 
retained or is authorized by law and: (1) If the amount or extent of 
taking specified in the incidental take statement is exceeded; (2) if 
new information reveals effects of the action that may affect listed 
species or critical habitat in a manner or to an extent not previously 
considered; (3) if the identified action is subsequently modified in a 
manner that causes an effect to the listed species or critical habitat 
that was not considered in the biological opinion or written 
concurrence; or (4) if a new species is listed or critical habitat 
designated that may be affected by the identified action. As provided 
in 50 CFR 402.16, the requirement to reinitiate consultations for new 
species listings or critical habitat designation does not apply to 
certain agency actions (e.g., land management plans issued by the 
Bureau of Land Management in certain circumstances).

Destruction or Adverse Modification of Critical Habitat

    The key factor related to the destruction or adverse modification 
determination is whether implementation of the proposed Federal action 
directly or indirectly alters the designated critical habitat in a way 
that appreciably diminishes the value of the critical habitat for the 
conservation of the listed species. As discussed above, the role of 
critical habitat is to support physical or biological features 
essential to the conservation of a listed species and provide for the 
conservation of the species.
    Section 4(b)(8) of the Act requires that our Federal Register 
notices ``shall, to the maximum extent practicable also include a brief 
description and evaluation of those activities (whether public or 
private) which, in the opinion of the Secretary, if undertaken may 
adversely modify [critical] habitat, or may be affected by such 
designation.'' Activities that may be affected by designation of 
critical habitat for the Barrens topminnow include those that may 
affect the physical or biological features of the Barrens topminnow's 
critical habitat (see Physical or Biological Features Essential to the 
Conservation of the Species).

[[Page 56261]]

Exemptions

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

    Section 4(a)(3)(B)(i) of the Act (16 U.S.C. 1533(a)(3)(B)(i)) 
provides that the Secretary shall not designate as critical habitat any 
lands or other geographical areas owned or controlled by the Department 
of Defense (DoD), or designated for its use, that are subject to an 
integrated natural resources management plan (INRMP) prepared under 
section 101 of the Sikes Act Improvement Act of 1997 (16 U.S.C. 670a), 
if the Secretary determines in writing that such plan provides a 
benefit to the species for which critical habitat is proposed for 
designation. No DoD lands with a completed INRMP are within the 
proposed critical habitat designation.

Consideration of Impacts Under Section 4(b)(2) of the Act

    Section 4(b)(2) of the Act states that the Secretary shall 
designate and make revisions to critical habitat on the basis of the 
best available scientific data after taking into consideration the 
economic impact, national security impact, and any other relevant 
impact of specifying any particular area as critical habitat. The 
Secretary may exclude an area from designated critical habitat based on 
economic impacts, impacts on national security, or any other relevant 
impacts. Exclusion decisions are governed by the regulations at 50 CFR 
424.19 and the Policy Regarding Implementation of Section 4(b)(2) of 
the Endangered Species Act (hereafter, the ``2016 Policy''; 81 FR 7226, 
February 11, 2016), both of which were developed jointly with the 
National Marine Fisheries Service (NMFS). We also refer to a 2008 
Department of the Interior Solicitor's opinion entitled, ``The 
Secretary's Authority to Exclude Areas from a Critical Habitat 
Designation under Section 4(b)(2) of the Endangered Species Act'' (M-
37016).
    In considering whether to exclude a particular area from the 
designation, we identify the benefits of including the area in the 
designation, identify the benefits of excluding the area from the 
designation, and evaluate whether the benefits of exclusion outweigh 
the benefits of inclusion. If the analysis indicates that the benefits 
of exclusion outweigh the benefits of inclusion, the Secretary may 
exercise discretion to exclude the area only if such exclusion would 
not result in the extinction of the species. In making the 
determination to exclude a particular area, the statute on its face, as 
well as the legislative history, are clear that the Secretary has broad 
discretion regarding which factor(s) to use and how much weight to give 
to any factor. In our final rules, we explain any decision to exclude 
areas, as well as decisions not to exclude, to make clear the rational 
basis for our decision. We describe below the process that we use for 
taking into consideration each category of impacts and any initial 
analyses of the relevant impacts.

Consideration of Economic Impacts

    Section 4(b)(2) of the Act and its implementing regulations require 
that we consider the economic impact that may result from a designation 
of critical habitat. To assess the probable economic impacts of a 
designation, we must first evaluate specific land uses or activities 
and projects that may occur in the area of the critical habitat. We 
then must evaluate the impacts that a specific critical habitat 
designation may have on restricting or modifying specific land uses or 
activities for the benefit of the species and its habitat within the 
areas proposed. We then identify which conservation efforts may be the 
result of the species being listed under the Act versus those 
attributed solely to the designation of critical habitat for this 
particular species. The probable economic impact of a proposed critical 
habitat designation is analyzed by comparing scenarios both ``with 
critical habitat'' and ``without critical habitat.''
    The ``without critical habitat'' scenario represents the baseline 
for the analysis, which includes the existing regulatory and socio-
economic burden imposed on landowners, managers, or other resource 
users potentially affected by the designation of critical habitat 
(e.g., under the Federal listing as well as other Federal, State, and 
local regulations). Therefore, the baseline represents the costs of all 
efforts attributable to the listing of the species under the Act (i.e., 
conservation of the species and its habitat incurred regardless of 
whether critical habitat is designated). The ``with critical habitat'' 
scenario describes the incremental impacts associated specifically with 
the designation of critical habitat for the species. The incremental 
conservation efforts and associated impacts would not be expected 
without the designation of critical habitat for the species. In other 
words, the incremental costs are those attributable solely to the 
designation of critical habitat, above and beyond the baseline costs. 
These are the costs we use when evaluating the benefits of inclusion 
and exclusion of particular areas from the final designation of 
critical habitat should we choose to conduct a discretionary 4(b)(2) 
exclusion analysis.
    Executive Order (E.O.) 14094 supplements and reaffirms E.O. 12866 
and E.O. 13563 and directs Federal agencies to assess the costs and 
benefits of available regulatory alternatives in quantitative (to the 
extent feasible) and qualitative terms. Consistent with the E.O. 
regulatory analysis requirements, our effects analysis under the Act 
may take into consideration impacts to both directly and indirectly 
affected entities, where practicable and reasonable. If sufficient data 
are available, we assess to the extent practicable the probable impacts 
to both directly and indirectly affected entities. Section 3(f) of E.O. 
12866 identifies four criteria when a regulation is considered a 
``significant regulatory action'' and requires additional analysis, 
review, and approval if met. The criterion relevant here is whether the 
designation of critical habitat may have an economic effect of $200 
million or more in any given year (section 3(f)(1) as amended by E.O. 
14094). Therefore, our consideration of economic impacts uses a 
screening analysis to assess whether a designation of critical habitat 
for the Barrens topminnow is likely to exceed the economically 
significant threshold.
    For this particular designation, we developed an incremental 
effects memorandum (IEM) considering the probable incremental economic 
impacts that may result from this proposed designation of critical 
habitat. The information contained in our IEM was then used to develop 
a screening analysis of the probable effects of the designation of 
critical habitat for the Barrens topminnow (IEC 2023, entire). We began 
by conducting a screening analysis of the proposed designation of 
critical habitat in order to focus our analysis on the key factors that 
are likely to result in incremental economic impacts. The purpose of 
the screening analysis is to filter out particular geographical areas 
of critical habitat that are already subject to such protections and 
are, therefore, unlikely to incur incremental economic impacts. In 
particular, the screening analysis considers baseline costs (i.e., 
absent critical habitat designation) and includes any probable 
incremental economic impacts where land and water use may already be 
subject to conservation plans, land management plans, best management 
practices, or regulations that protect the habitat area as a result of 
the Federal listing status of the species. Ultimately, the screening 
analysis allows us to focus our analysis on evaluating the specific 
areas or sectors that may incur probable

[[Page 56262]]

incremental economic impacts as a result of the designation.
    The presence of the listed species in occupied areas of critical 
habitat means that any destruction or adverse modification of those 
areas is also likely to jeopardize the continued existence of the 
species. Therefore, designating occupied areas as critical habitat 
typically causes little if any incremental impacts above and beyond the 
impacts of listing the species. As a result, we generally focus the 
screening analysis on areas of unoccupied critical habitat (unoccupied 
units or unoccupied areas within occupied units). Overall, the 
screening analysis assesses whether designation of critical habitat is 
likely to result in any additional management or conservation efforts 
that may incur incremental economic impacts. This screening analysis 
combined with the information contained in our IEM constitute what we 
consider to be our draft economic analysis (DEA) of the proposed 
critical habitat designation for the Barrens topminnow; our DEA is 
summarized in the narrative below.
    As part of our screening analysis, we considered the types of 
economic activities that are likely to occur within the areas likely 
affected by the critical habitat designation. In our evaluation of the 
probable incremental economic impacts that may result from the proposed 
designation of critical habitat for the Barrens topminnow, first we 
identified, in the IEM dated October 19, 2022, probable incremental 
economic impacts associated with the following categories of 
activities: (1) bridge or highway construction and maintenance; (2) 
development and maintenance of utilities (e.g., pipelines); (3) 
agriculture; (4) water quality permitting; and (5) stream restoration. 
We considered each industry or category individually. Additionally, we 
considered whether their activities have any Federal involvement. 
Critical habitat designation generally will not affect activities that 
do not have any Federal involvement; under the Act, designation of 
critical habitat only affects activities conducted, funded, permitted, 
or authorized by Federal agencies. The species was listed as endangered 
on November 20, 2019 (see 84 FR 56131; October 21, 2019). Therefore, in 
areas where the Barrens topminnow is present, under section 7 of the 
Act, Federal agencies are required to consult with the Service on 
activities they fund, permit, or implement that may affect the species. 
If we finalize this proposed critical habitat designation, our 
consultations would include an evaluation of measures to avoid the 
destruction or adverse modification of critical habitat.
    In our IEM, we attempted to clarify the distinction between the 
effects that result from the species being listed and those that would 
be attributable to the critical habitat designation (i.e., difference 
between the jeopardy and adverse modification standards) for the 
Barrens topminnow's critical habitat. The following specific 
circumstances help to inform our evaluation: (1) The essential physical 
or biological features identified for critical habitat are the same 
features essential for the life requisites of the species, and (2) any 
actions that would likely adversely affect the essential physical or 
biological features of occupied critical habitat are also likely to 
adversely affect the species itself. The IEM outlines our rationale 
concerning this limited distinction between baseline conservation 
efforts and incremental impacts of the designation of critical habitat 
for this species. This evaluation of the incremental effects has been 
used as the basis to evaluate the probable incremental economic impacts 
of this proposed designation.
    The proposed critical habitat designation for the Barrens topminnow 
totals approximately 1.5 ac (0.6 ha) of spring pool and 11.4 mi (18.3 
km) of spring run, which includes both occupied and unoccupied habitat. 
Within the currently occupied springs (proposed Units 1, 2, 3, 5, 6, 7, 
and 8), any actions that may affect the species would likely also 
affect proposed critical habitat and it is unlikely that any additional 
conservation efforts would be required to address the adverse 
modification standard over and above those recommended as necessary to 
avoid jeopardizing the continued existence of the species. Thus, 
incremental project modifications resulting solely from the presence of 
occupied critical habitat are not anticipated. In total, approximately 
21 section 7 consultations are anticipated to occur over the next 10 
years in the occupied units, with total costs to the Service and action 
agencies of $75,800, or approximately $7,600 per year.
    Within the unoccupied Vervilla Spring (proposed Unit 4), any future 
projects that may affect the Barrens topminnow or its critical habitat 
would result in section 7 consultation because the spring is on 
federally managed land. It is not clear that substantial project 
modifications to proposed Unit 4 would be required to accommodate 
critical habitat over and above what would already be anticipated to 
occur under the baseline. With or without critical habitat, this area 
will be managed for Barrens topminnow conservation because the Service 
plans to reintroduce Barrens topminnow into this area. In other words, 
raising the height of the mosquitofish exclusion barrier and 
rehabilitating the unoccupied unit would have been completed to promote 
species recovery by improving the habitat prior to occupation by the 
Barrens topminnow regardless of a critical habitat designation. 
Nevertheless, the screening analysis assumed that raising the height of 
the mosquitofish barrier and rehabilitating unoccupied proposed Unit 4 
is an incremental cost due to the designation of critical habitat. The 
Service estimates the one-time cost of barrier replacement at $12,500. 
In addition to barrier replacement, according to the IEM, one new 
formal section 7 consultation considering only adverse modification is 
anticipated to occur in proposed Unit 4 during the next 10 years, at a 
cost of $17,000. One informal consultation, with estimated 
administrative costs of $8,000, is also anticipated for proposed Unit 
4. Therefore, the total incremental cost for proposed Unit 4 is 
estimated at $37,500 during the next 10 years, or approximately $3,800 
per year. The total incremental cost for all eight units is estimated 
at less than $76,000 over the next 10 years, or $7,600 per year. These 
costs would not reach the threshold of ``significant'' under E.O. 
12866.
    As noted above, in proposed Unit 8, which is occupied but was not 
known to be occupied at the time of listing, any actions that may 
affect the species would likely also affect proposed critical habitat, 
and it is unlikely that any additional conservation efforts would be 
required to address the adverse modification standard over and above 
those recommended as necessary to avoid jeopardizing the continued 
existence of the species.
    We are soliciting data and comments from the public on the DEA 
discussed above. During the development of a final designation, we will 
consider the information presented in the DEA and any additional 
information on economic impacts we receive during the public comment 
period to determine whether any specific areas should be excluded from 
the final critical habitat designation under authority of section 
4(b)(2) of the Act, our implementing regulations at 50 CFR 424.19, and 
the 2016 Policy. We may exclude an area from critical habitat if we 
determine that the benefits of excluding the area outweigh the benefits 
of including the area, provided the exclusion will not result in the 
extinction of this species.

[[Page 56263]]

Consideration of National Security Impacts

    Section 4(a)(3)(B)(i) of the Act may not cover all DoD lands or 
areas that pose potential national-security concerns (e.g., a DoD 
installation that is in the process of revising its INRMP for a newly 
listed species or a species previously not covered). If a particular 
area is not covered under section 4(a)(3)(B)(i), then national-security 
or homeland-security concerns are not a factor in the process of 
determining what areas meet the definition of ``critical habitat.'' 
However, we must still consider impacts on national security, including 
homeland security, on those lands or areas not covered by section 
4(a)(3)(B)(i) because section 4(b)(2) requires us to consider those 
impacts whenever it designates critical habitat. Accordingly, if DoD, 
Department of Homeland Security (DHS), or another Federal agency has 
requested exclusion based on an assertion of national-security or 
homeland-security concerns, or we have otherwise identified national-
security or homeland-security impacts from designating particular areas 
as critical habitat, we generally have reason to consider excluding 
those areas.
    However, we cannot automatically exclude requested areas. When DoD, 
DHS, or another Federal agency requests exclusion from critical habitat 
on the basis of national-security or homeland-security impacts, we must 
conduct an exclusion analysis if the Federal requester provides 
information, including a reasonably specific justification of an 
incremental impact on national security that would result from the 
designation of that specific area as critical habitat. That 
justification could include demonstration of probable impacts, such as 
impacts to ongoing border-security patrols and surveillance activities, 
or a delay in training or facility construction, as a result of 
compliance with section 7(a)(2) of the Act. If the agency requesting 
the exclusion does not provide us with a reasonably specific 
justification, we will contact the agency to recommend that it provide 
a specific justification or clarification of its concerns relative to 
the probable incremental impact that could result from the designation. 
If we conduct an exclusion analysis because the agency provides a 
reasonably specific justification or because we decide to exercise the 
discretion to conduct an exclusion analysis, we will defer to the 
expert judgment of DoD, DHS, or another Federal agency as to: (1) 
Whether activities on its lands or waters, or its activities on other 
lands or waters, have national-security or homeland-security 
implications; (2) the importance of those implications; and (3) the 
degree to which the cited implications would be adversely affected in 
the absence of an exclusion. In that circumstance, in conducting a 
discretionary section 4(b)(2) exclusion analysis, we will give great 
weight to national-security and homeland-security concerns in analyzing 
the benefits of exclusion.
    In preparing this proposal, we have determined that the lands 
within the proposed designation of critical habitat for the Barrens 
topminnow are not owned or managed by the DoD or DHS, and, therefore, 
we anticipate no impact on national security or homeland security.

Consideration of Other Relevant Impacts

    Under section 4(b)(2) of the Act, we consider any other relevant 
impacts, in addition to economic impacts and impacts on national 
security discussed above. To identify other relevant impacts that may 
affect the exclusion analysis, we consider a number of factors, 
including whether there are permitted conservation plans covering the 
species in the area--such as safe harbor agreements (SHAs), candidate 
conservation agreements with assurances (CCAAs) or ``conservation 
benefit agreement'' or ``conservation agreement'' (CBAs) (CBAs are a 
new type of agreement replacing SHAs and CCAAs in use after April 2024 
(89 FR 26070; April 12, 2024)) or HCPs, or whether there are non-
permitted conservation agreements and partnerships that may be impaired 
by designation of, or exclusion from, critical habitat. In addition, we 
look at whether Tribal conservation plans or partnerships, Tribal 
resources, or government-to-government relationships of the United 
States with Tribal entities may be affected by the designation. We also 
consider any State, local, social, or other impacts that might occur 
because of the designation.
    In preparing this proposal, we have determined that no HCPs or 
other management plans for the Barrens topminnow currently exist, and 
the proposed designation does not include any Tribal lands or trust 
resources or any lands for which designation would have any economic or 
national-security impacts. Therefore, we anticipate no impact on Tribal 
lands, partnerships, or HCPs from this proposed critical habitat 
designation, and thus, as described above, we are not considering 
excluding any particular areas on the basis of the presence of 
established conservation agreements or impacts to trust resources.
    When analyzing other relevant impacts of including a particular 
area in a designation of critical habitat, we weigh those impacts 
relative to the conservation value of the particular area. To determine 
the conservation value of designating a particular area, we consider a 
number of factors, including, but not limited to, the additional 
regulatory benefits that the area would receive due to the protection 
from destruction or adverse modification as a result of actions with a 
Federal nexus, the educational benefits of mapping essential habitat 
for recovery of the listed species, and any benefits that may result 
from a designation due to State or Federal laws that may apply to 
critical habitat.
    After identifying the benefits of inclusion and the benefits of 
exclusion, we carefully weigh the two sides to evaluate whether the 
benefits of exclusion outweigh those of inclusion. If our analysis 
indicates that the benefits of exclusion outweigh the benefits of 
inclusion, we then determine whether exclusion would result in 
extinction of the species. If exclusion of an area from critical 
habitat will result in extinction, we will not exclude it from the 
designation.
    The Service's Partners for Fish and Wildlife (PFW) program is 
developing conservation agreements with landowners at Benedict Spring 
and Greenbrook Pond, proposed Units 2 and 6, respectively. At Benedict 
Spring, a well would be developed and a pump installed to maintain a 
water supply that would keep the spring full during periods of drought 
to conserve the Barrens topminnow. Lands adjacent to the spring pool 
and spring run constituting the proposed Greenbrook Pond Unit would 
continue to be managed as a city park, under which the population of 
topminnows has persisted in high numbers. Therefore, as indicated in 
Information Requested, we are requesting information on whether the 
benefits of excluding any areas where PFW conservation agreements are 
developed may outweigh inclusion under section 4(b)(2) of the Act, and 
the Secretary may exclude these areas from the final designation of 
critical habitat for the Barrens topminnow.
    If through the public comment period we receive information that we 
determine indicates that there are potential economic, national 
security, or other relevant impacts from designating particular areas 
as critical habitat, then as part of developing the final designation 
of critical habitat, we will evaluate that information and may

[[Page 56264]]

conduct a discretionary exclusion analysis to determine whether to 
exclude those areas under authority of section 4(b)(2) of the Act and 
our implementing regulations at 50 CFR 424.19. If we receive a request 
for exclusion of a particular area and after evaluation of supporting 
information we do not exclude, we will fully describe our decision in 
the final rule for this action.

Correction

    In this proposed rule, we include a correction to the final listing 
rule's citation in the entry for the Barrens topminnow in the List of 
Endangered and Threatened Wildlife (List) at 50 CFR 17.11(h). When the 
final listing rule published (84 FR 56131; October 21, 2019), in the 
``Listing citations and applicable rules'' column of the List, the 
wrong volume number was included in the citation for the Barrens 
topminnow's listing rule. We reflect the corrected information under 
Proposed Regulation Promulgation, below. As explained at 50 CFR 
17.11(f), the ``Listing citations and applicable rules'' column of the 
List is nonregulatory in nature and is provided for informational and 
navigational purposes only.

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.

Regulatory Planning and Review (Executive Orders 12866, 13563, and 
14094)

    Executive Order 14094 reaffirms the principles of E.O. 12866 and 
E.O. 13563 and states that regulatory analysis should facilitate agency 
efforts to develop regulations that serve the public interest, advance 
statutory objectives, and are consistent with E.O. 12866, E.O. 13563, 
and the Presidential Memorandum of January 20, 2021 (Modernizing 
Regulatory Review). Regulatory analysis, as practicable and 
appropriate, shall recognize distributive impacts and equity, to the 
extent permitted by law. E.O. 13563 emphasizes further that regulations 
must be based on the best available science and that the rulemaking 
process must allow for public participation and an open exchange of 
ideas. We have developed this proposed rule in a manner consistent with 
these requirements.
    E.O. 12866, as reaffirmed by E.O. 13563 and E.O. 14094, provides 
that the Office of Information and Regulatory Affairs (OIRA) in the 
Office of Management and Budget (OMB) will review all significant 
rules. OIRA has determined that this rule is not significant.

Regulatory Flexibility Act (5 U.S.C. 601 et seq.)

    Under the Regulatory Flexibility Act (RFA; 5 U.S.C. 601 et seq.), 
as amended by the Small Business Regulatory Enforcement Fairness Act of 
1996 (SBREFA; 5 U.S.C. 801 et seq.), whenever an agency is required to 
publish a notice of rulemaking for any proposed or final rule, it must 
prepare and make available for public comment a regulatory flexibility 
analysis that describes the effects of the rule on small entities 
(i.e., small businesses, small organizations, and small government 
jurisdictions). However, no regulatory flexibility analysis is required 
if the head of the agency certifies the rule will not have a 
significant economic impact on a substantial number of small entities. 
The SBREFA amended the RFA to require Federal agencies to provide a 
certification statement of the factual basis for certifying that the 
rule will not have a significant economic impact on a substantial 
number of small entities.
    According to the Small Business Administration, small entities 
include small organizations such as independent nonprofit 
organizations; small governmental jurisdictions, including school 
boards and city and town governments that serve fewer than 50,000 
residents; and small businesses (13 CFR 121.201). Small businesses 
include manufacturing and mining concerns with fewer than 500 
employees, wholesale trade entities with fewer than 100 employees, 
retail and service businesses with less than $5 million in annual 
sales, general and heavy construction businesses with less than $27.5 
million in annual business, special trade contractors doing less than 
$11.5 million in annual business, and agricultural businesses with 
annual sales less than $750,000. To determine whether potential 
economic impacts to these small entities are significant, we considered 
the types of activities that might trigger regulatory impacts under 
this designation as well as types of project modifications that may 
result. In general, the term ``significant economic impact'' is meant 
to apply to a typical small business firm's business operations.
    Under the RFA, as amended, and as understood in light of recent 
court decisions, Federal agencies are required to evaluate the 
potential incremental impacts of rulemaking on those entities directly 
regulated by the rulemaking itself; in other words, the RFA does not 
require agencies to evaluate the potential impacts to indirectly 
regulated entities. The regulatory mechanism through which critical 
habitat protections are realized is section 7 of the Act, which 
requires Federal agencies, in consultation with the Service, to ensure 
that any action authorized, funded, or carried out by the agency is not 
likely to destroy or adversely modify critical habitat. Therefore, 
under section 7, only Federal action agencies are directly subject to 
the specific regulatory requirement (avoiding destruction and adverse 
modification) imposed by critical habitat designation. Consequently, it 
is our position that only Federal action agencies would be directly 
regulated if we adopt the proposed critical habitat designation. The 
RFA does not require evaluation of the potential impacts to entities 
not directly regulated. Moreover, Federal agencies are not small 
entities. Therefore, because no small entities would be directly 
regulated by this rulemaking, the Service certifies that, if made final 
as proposed, this critical habitat designation will not have a 
significant economic impact on a substantial number of small entities.
    In summary, we have considered whether the proposed designation 
would result in a significant economic impact on a substantial number 
of small entities. For the above reasons and based on currently 
available information, we certify that, if made final as proposed, the 
critical habitat designation will not have a significant economic 
impact on a substantial number of small business entities. Therefore, 
an initial regulatory flexibility analysis is not required.

[[Page 56265]]

Energy Supply, Distribution, or Use--Executive Order 13211

    Executive Order 13211 (Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use) requires 
agencies to prepare statements of energy effects ``to the extent 
permitted by law'' when undertaking actions identified as significant 
energy actions. E.O. 13211 defines a ``significant energy action'' as 
an action that (i) is a significant regulatory action under E.O. 12866 
(or any successor order, including most recently E.O. 14094); and (ii) 
is likely to have a significant adverse effect on the supply, 
distribution, or use of energy. In our economic analysis, we did not 
find that this proposed critical habitat designation would 
significantly affect energy supplies, distribution, or use. Therefore, 
this action is not a significant energy action, and there is no 
requirement to prepare a statement of energy effects for this action.

Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.)

    In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501 
et seq.), we make the following findings:
    (1) This proposed rule would not produce a Federal mandate. In 
general, a Federal mandate is a provision in legislation, statute, or 
regulation that would impose an enforceable duty upon State, local, or 
Tribal governments, or the private sector, and includes both ``Federal 
intergovernmental mandates'' and ``Federal private sector mandates.'' 
These terms are defined in 2 U.S.C. 658(5)-(7). ``Federal 
intergovernmental mandate'' includes a regulation that ``would impose 
an enforceable duty upon State, local, or tribal governments'' with two 
exceptions. It excludes ``a condition of Federal assistance.'' It also 
excludes ``a duty arising from participation in a voluntary Federal 
program,'' unless the regulation ``relates to a then-existing Federal 
program under which $500,000,000 or more is provided annually to State, 
local, and tribal governments under entitlement authority,'' if the 
provision would ``increase the stringency of conditions of assistance'' 
or ``place caps upon, or otherwise decrease, the Federal Government's 
responsibility to provide funding,'' and the State, local, or Tribal 
governments ``lack authority'' to adjust accordingly. At the time of 
enactment, these entitlement programs were: Medicaid; Aid to Families 
with Dependent Children work programs; Child Nutrition; Food Stamps; 
Social Services Block Grants; Vocational Rehabilitation State Grants; 
Foster Care, Adoption Assistance, and Independent Living; Family 
Support Welfare Services; and Child Support Enforcement. ``Federal 
private sector mandate'' includes a regulation that ``would impose an 
enforceable duty upon the private sector, except (i) a condition of 
Federal assistance or (ii) a duty arising from participation in a 
voluntary Federal program.''
    The designation of critical habitat does not impose a legally 
binding duty on non-Federal Government entities or private parties. 
Under the Act, the only regulatory effect is that Federal agencies must 
ensure that their actions are not likely to destroy or adversely modify 
critical habitat under section 7. While non-Federal entities that 
receive Federal funding, assistance, or permits, or that otherwise 
require approval or authorization from a Federal agency for an action, 
may be indirectly impacted by the designation of critical habitat, the 
legally binding duty to avoid destruction or adverse modification of 
critical habitat rests squarely on the Federal agency. Furthermore, to 
the extent that non-Federal entities are indirectly impacted because 
they receive Federal assistance or participate in a voluntary Federal 
aid program, the Unfunded Mandates Reform Act would not apply, nor 
would critical habitat shift the costs of the large entitlement 
programs listed above onto State governments.
    (2) We do not believe that this proposed rule would significantly 
or uniquely affect small governments. One of the proposed critical 
habitat units is on federally owned land and five units are on private 
land, and thus these six units are not on property belonging to small 
governments. Two of the eight proposed units are on city property, but 
one is within a city park, while the other is within city boundaries 
and abuts a State natural area. Additionally, all proposed units are 
groundwater-fed pools or streams that are not suitable for development 
of buildings or housing.

Takings--Executive Order 12630

    In accordance with E.O. 12630 (Government Actions and Interference 
with Constitutionally Protected Private Property Rights), we have 
analyzed the potential takings implications of designating critical 
habitat for the Barrens topminnow in a takings implications assessment. 
The Act does not authorize the Service to regulate private actions on 
private lands or confiscate private property as a result of critical 
habitat designation. Designation of critical habitat does not affect 
land ownership, or establish any closures, or restrictions on use of or 
access to the designated areas. Furthermore, the designation of 
critical habitat does not affect landowner actions that do not require 
Federal funding or permits, nor does it preclude development of habitat 
conservation programs or issuance of incidental take permits to permit 
actions that do require Federal funding or permits to go forward. 
However, Federal agencies are prohibited from carrying out, funding, or 
authorizing actions that would destroy or adversely modify critical 
habitat. A takings implications assessment has been completed for the 
proposed designation of critical habitat for the Barrens topminnow, and 
it concludes that, if adopted as proposed, this designation of critical 
habitat does not pose significant takings implications for lands within 
or affected by the designation.

Federalism--Executive Order 13132

    In accordance with E.O. 13132 (Federalism), this proposed rule does 
not have significant Federalism effects. A federalism summary impact 
statement is not required. In keeping with Department of the Interior 
and Department of Commerce policy, we requested information from, and 
coordinated development of this proposed critical habitat designation 
with, the appropriate State resource agency in Tennessee. From a 
federalism perspective, the designation of critical habitat directly 
affects only the responsibilities of Federal agencies. The Act imposes 
no other duties with respect to critical habitat, either for States and 
local governments, or for anyone else. As a result, the proposed rule 
does not have substantial direct effects either on the State, or on the 
relationship between the national government and the State, or on the 
distribution of powers and responsibilities among the various levels of 
government. The proposed designation may have some benefit to these 
governments because the areas that contain the features essential to 
the conservation of the species are more clearly defined, and the 
physical or biological features of the habitat necessary to the 
conservation of the species are specifically identified. This 
information does not alter where and what federally sponsored 
activities may occur. However, it may assist these local governments in 
long-range planning because they no longer have to wait for case-by-
case section 7 consultations to occur.
    Where State and local governments require approval or authorization 
from a Federal agency for actions that may affect critical habitat, 
consultation under section 7(a)(2) would be required.

[[Page 56266]]

While non-Federal entities that receive Federal funding, assistance, or 
permits, or that otherwise require approval or authorization from a 
Federal agency for an action, may be indirectly impacted by the 
designation of critical habitat, the legally binding duty to avoid 
destruction or adverse modification of critical habitat rests squarely 
on the Federal agency.

Civil Justice Reform--Executive Order 12988

    In accordance with Executive Order 12988 (Civil Justice Reform), 
the Office of the Solicitor has determined that the rule does not 
unduly burden the judicial system and that it meets the requirements of 
sections 3(a) and 3(b)(2) of the Order. We have proposed designating 
critical habitat in accordance with the provisions of the Act. To 
assist the public in understanding the habitat needs of the species, 
this proposed rule identifies the elements of physical or biological 
features essential to the conservation of the species. The proposed 
areas of designated critical habitat are presented on maps, and the 
proposed rule provides several options for the interested public to 
obtain more detailed location information, if desired.

Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.)

    This rule does not contain information collection requirements, and 
a submission to the Office of Management and Budget (OMB) under the 
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.) is not 
required. We may not conduct or sponsor and you are not required to 
respond to a collection of information unless it displays a currently 
valid OMB control number.

National Environmental Policy Act (42 U.S.C. 4321 et seq.)

    Regulations adopted pursuant to section 4(a) of the Act are exempt 
from the National Environmental Policy Act (NEPA; 42 U.S.C. 4321 et 
seq.) and do not require an environmental analysis under NEPA. We 
published a notice outlining our reasons for this determination in the 
Federal Register on October 25, 1983 (48 FR 49244). This includes 
listing, delisting, and reclassification rules, as well as critical 
habitat designations. In a line of cases starting with Douglas County 
v. Babbitt, 48 F.3d 1495 (9th Cir. 1995), the courts have upheld this 
position.

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), E.O. 13175 (Consultation and Coordination 
With Indian Tribal Governments), the President's memorandum of November 
30, 2022 (Uniform Standards for Tribal Consultation; 87 FR 74479, 
December 5, 2022), 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 Secretary's 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 discussed earlier in this document, we have determined 
that no Tribal lands would be affected by this proposed critical 
habitat designation.

References Cited

    A complete list of references cited in this rulemaking is available 
on the internet at https://www.regulations.gov under Docket No. FWS-R4-
ES-2023-0224 and upon request from the Tennessee Ecological Services 
Field Office (see FOR FURTHER INFORMATION CONTACT).

Authors

    The primary authors of this proposed rule are the staff members of 
the U.S. Fish and Wildlife Service Species Assessment Team and 
Tennessee 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 further amend part 17, subchapter B of 
chapter I, title 50 of the Code of Federal Regulations, as set forth 
below:

PART 17--ENDANGERED AND THREATENED WILDLIFE AND PLANTS

0
1. The authority citation for part 17 continues to read as follows:

    Authority: 16 U.S.C. 1361-1407; 1531-1544; and 4201-4245, unless 
otherwise noted.

0
2. In Sec.  17.11, amend paragraph (h) by revising the entry for 
``Topminnow, Barrens'' in the List of Endangered and Threatened 
Wildlife under FISHES to read as follows:


Sec.  17.11  Endangered and threatened wildlife.

* * * * *
    (h) * * *

----------------------------------------------------------------------------------------------------------------
                                                                                          Listing citations and
           Common name              Scientific name      Where listed         Status         applicable rules
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
             Fishes
 
                                                  * * * * * * *
Topminnow, Barrens..............  Fundulus julisia..  Wherever found....  E              84 FR 56131, 10/21/
                                                                                          2019; 50 CFR
                                                                                          17.95(e).\CH\
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------

0
3. In Sec.  17.95, amend paragraph (e) by adding an entry for ``Barrens 
Topminnow (Fundulus julisia)'' immediately following the entry for 
``Spring Pygmy Sunfish (Elassoma alabamae)'' to read as follows:


Sec.  17.95   Critical habitat--fish and wildlife.

* * * * *
    (e) Fishes.
* * * * *
Barrens Topminnow (Fundulus julisia)
    (1) Critical habitat units are depicted for Cannon, Coffee, Dekalb, 
Franklin, Grundy, and Warren Counties, Tennessee, on the maps in this 
entry.

[[Page 56267]]

    (2) Within these areas, the physical or biological features 
essential to the conservation of the Barrens topminnow consist of the 
following components:
    (i) Groundwater-fed, first or second order streams and springs that 
persist annually;
    (ii) Water temperature ranging from 15 to 25 degrees Celsius 
([deg]C) (59 to 77 degrees Fahrenheit ([deg]F));
    (iii) Water during base flow with limited turbidity that is 
sufficiently clear for individuals to see spawning and feeding cues;
    (iv) Submerged native aquatic plants, such as Cladophora and 
Pithophora species, watercress (Nasturtium officinale), rushes (Juncus 
spp.), pondweed (Potamogeton spp.), and eelgrass (Vallisneria spp.), or 
overhanging terrestrial plants and submerged plant roots, to provide 
cover and surfaces for spawning; and
    (v) A prey base of microcrustaceans and small aquatic insects such 
as chironomids (midges).
    (3) Critical habitat does not include manmade structures (such as 
buildings, aqueducts, runways, roads, and other paved areas) and the 
land on which they are located existing within the legal boundaries on 
[EFFECTIVE DATE OF FINAL RULE].
    (4) Data layers defining map units were created using Universal 
Transverse Mercator (UTM) Zone 16N coordinates. The hydrologic data 
used in the maps were extracted from U.S. Geological Survey National 
Hydrography Dataset High Resolution (1:24,000 scale) using Geographic 
Coordinate System North American 1983 coordinates. The maps in this 
entry, as modified by any accompanying regulatory text, establish the 
boundaries of the critical habitat designation. The coordinates or plot 
points or both on which each map is based are available to the public 
at https://www.regulations.gov under Docket No. FWS-R4-ES-2023-0224 and 
at the field office responsible for this designation. You may obtain 
field office location information by contacting one of the Service 
regional offices, the addresses of which are listed at 50 CFR 2.2.
    (5) Note: Index map follows:

Figure 1 to Barrens Topminnow (Fundulus julisia) paragraph (5)
BILLING CODE 4333-15-P

[[Page 56268]]

[GRAPHIC] [TIFF OMITTED] TP09JY24.000

    (6) Unit 1: McMahan Creek; Cannon County, Tennessee.
    (i) Unit 1 consists of approximately 0.8 mile (mi) (1.3 kilometers 
(km)) of McMahan Creek from the mouth of the unnamed perennial spring 
run upstream of the Woodland Estates subdivision (35.7157[deg], -
86.0542[deg]), down to the bridge at Geedsville Road (35.7072[deg], -
86.0480[deg]), in Cannon County, Tennessee.
    (ii) Map of Unit 1 follows:


[[Page 56269]]


Figure 2 to Barrens Topminnow (Fundulus julisia) paragraph (6)(ii)
[GRAPHIC] [TIFF OMITTED] TP09JY24.001

    (7) Unit 2: Benedict Spring; Coffee County, Tennessee.
    (i) Unit 2 consists of an approximately 0.1-acre (ac) (0.04-hectare 
(ha)) pond fed by a spring flowing out of a small cave, on a site 
(35.5497, -85.9836) approximately 0.2 mi (0.3 km) west-southwest of the 
Summitville Post Office.
    (ii) Map of Unit 2 follows:

[[Page 56270]]

Figure 3 to Barrens Topminnow (Fundulus julisia) paragraph (7)(ii)
[GRAPHIC] [TIFF OMITTED] TP09JY24.002

    (8) Unit 3: Short Spring; Coffee County, Tennessee.
    (i) Unit 3 consists of a 1.0-ac (0.4-ha) impounded spring 
(35.4045[deg], -86.1781[deg]) in Tullahoma, in Coffee County, 
Tennessee.
    (ii) Map of Unit 3 and Unit 5 follows:

[[Page 56271]]

Figure 4 to Barrens Topminnow (Fundulus julisia) paragraph (8)(ii)
[GRAPHIC] [TIFF OMITTED] TP09JY24.003

    (9) Unit 4: Vervilla Spring; Warren County, Tennessee.
    (i) Unit 4 is an approximately 0.2-mi (0.3-km) spring run located 
on an outparcel of the Tennessee National Wildlife Refuge, owned and 
managed by U.S. Fish and Wildlife Service, near the community of 
Vervilla. The unit extends from the source of the spring run 
(35.5870[deg], -85.8575[deg]) down to its mouth on Hickory Creek.
    (ii) Map of Unit 4 follows:

[[Page 56272]]

Figure 5 to Barrens Topminnow (Fundulus julisia) paragraph (9)(ii)
[GRAPHIC] [TIFF OMITTED] TP09JY24.004

    (10) Unit 5: Marcum Spring; Coffee County, Tennessee.
    (i) Unit 5 is an approximately 0.6-mi (0.9-km) spring run, 
including adjacent disconnected spring pools, that flows into Ovoca 
Lake near Tullahoma, in Coffee County, Tennessee. Unit 5 (35.4090[deg], 
-86.2052[deg]) runs from the source to the upper end of a pond just 
above the outlet into Ovoca Lake.
    (ii) Map of Unit 5 is provided at paragraph (8)(ii) of this entry.
    (11) Unit 6: Greenbrook Pond; Dekalb County, Tennessee.
    (i) Unit 6 is an approximately 0.4-ac (0.16-ha) pond and 0.1-mi 
(0.16-km) spring run flowing from the pond, in Greenbrook Park, in the 
city of Smithville.
    (ii) Map of Unit 6 follows:

[[Page 56273]]

Figure 6 to Barrens Topminnow (Fondulus julisia) paragraph (11)(ii)
[GRAPHIC] [TIFF OMITTED] TP09JY24.005

    (12) Unit 7: Big Spring (Merkle); Franklin County, Tennessee.
    (i) Unit 7 consists of a springhead (35.1832[deg], -85.9831[deg]) 
and approximately 0.5-mi (0.85 km) of spring run between the springhead 
and the confluence with Miller Creek (35.1761[deg], -85.9822[deg]).
    (ii) Map of Unit 7 follows:

[[Page 56274]]

Figure 7 to Barrens Topminnow (Fondulus julisia) paragraph (12)(ii)
[GRAPHIC] [TIFF OMITTED] TP09JY24.006

    (13) Unit 8: Pepper Hollow Branch; Grundy County, Tennessee.
    (i) Unit 8 consists of 9.2 mi (14.8 km) of Pepper Hollow Branch and 
its permanent tributary reaches upstream of the confluence with the 
Collins River (35.5109[deg], -85.6686[deg]), located just downstream of 
State Route 56.
    (ii) Map of Unit 8 follows:

[[Page 56275]]

Figure 8 to Barrens Topminnow (Fondulus julisia) paragraph (13)(ii)
[GRAPHIC] [TIFF OMITTED] TP09JY24.007

* * * * *

Martha Williams,
Director, U.S. Fish and Wildlife Service.
[FR Doc. 2024-14320 Filed 7-8-24; 8:45 am]
BILLING CODE 4333-15-C