Endangered and Threatened Wildlife and Plants; Endangered Species Status for Barrens Topminnow
| Published date | 21 October 2019 |
| Citation | 84 FR 56131 |
| Record Number | 2019-22857 |
| Section | Rules and Regulations |
| Court | Fish And Wildlife Service,Interior Department |
Federal Register, Volume 84 Issue 203 (Monday, October 21, 2019)
[Federal Register Volume 84, Number 203 (Monday, October 21, 2019)]
[Rules and Regulations]
[Pages 56131-56136]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-22857]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
[Docket No. FWS-R4-ES-2017-0094; 4500030113]
RIN 1018-BC52
Endangered and Threatened Wildlife and Plants; Endangered Species
Status for Barrens Topminnow
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Final rule.
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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), determine
endangered species status under the Endangered Species Act of 1973, as
amended (Act), for the Barrens topminnow (Fundulus julisia), a
freshwater fish species from Cannon, Coffee, Dekalb, and Warren
Counties, Tennessee. This rule adds this species to the Federal List of
Endangered and Threatened Wildlife.
DATES: This rule is effective November 20, 2019.
ADDRESSES: This final rule is available on the internet at http://www.regulations.gov under Docket No. FWS-R4-ES-2017-0094 and at https://www.fws.gov/southeast/. Comments and materials we received, as well as
supporting documentation we used in preparing this rule, are available
for public inspection at http://www.regulations.gov under Docket No.
FWS-R4-ES-2017-0094. Comments, materials, and documentation that we
considered in this rulemaking will be available by appointment, during
normal business hours at: U.S. Fish and Wildlife Service, Tennessee
Ecological Services Field Office; 446 Neal Street, Cookeville, TN;
telephone 931-877-8339.
FOR FURTHER INFORMATION CONTACT: Lee Andrews, Field Supervisor, U.S.
Fish and Wildlife Service, Tennessee Ecological Services Field Office,
446 Neal Street, Cookeville, TN; telephone 931-525-4973. Persons who
use a telecommunications device for the deaf (TDD) may call the Federal
Relay Service at 800-877-8339.
SUPPLEMENTARY INFORMATION:
[[Page 56132]]
Supporting Documents
We prepared a species status assessment (SSA) report for the
Barrens topminnow. Written in consultation with species experts, the
SSA report represents the best scientific and commercial data available
concerning the status of the Barrens topminnow, including the impacts
of past, present and future factors (both negative and beneficial)
affecting the species. Scientific expertise informing the SSA report
came primarily from the Barrens Topminnow Working Group, which is a
team of biologists from the Service, Tennessee Wildlife Resources
Agency, Tennessee universities, and nongovernment organizations that
have been working on Barrens topminnow conservation since 2001.
Scientists on the Barrens Topminnow Working Group provided expertise in
fish biology, habitat management, and stressors (factors negatively
affecting the species). One biologist outside the Barrens Topminnow
Working Group conducted independent peer review of the SSA report. The
SSA report; the January 4, 2018, proposed rule (83 FR 490); this final
rule; and other materials relating to this rulemaking can be found on
the Service's Southeast Region website at https://www.fws.gov/southeast/ and at http://www.regulations.gov under Docket No. FWS-R4-
ES-2017-0094.
Previous Federal Actions
Please refer to the proposed listing rule for the Barrens topminnow
(83 FR 490; January 4, 2018) for a detailed description of previous
Federal actions concerning this species.
Background
The Barrens topminnow is a small fish with an average lifespan of 2
years that is endemic to springs and gently flowing portions of spring-
fed streams in middle Tennessee. This species relies on aquatic
vegetation for spawning substrate and cover. Owing primarily to
invasive western mosquitofish (Gambusia affinis) that prey upon and
harass Barrens topminnows, the species' range has been curtailed and
its status rangewide is low, based upon the best available scientific
and commercial data available.
Please refer to the January 4, 2018, proposed listing rule for the
Barrens topminnow (83 FR 490) and the SSA report for a full summary of
species information. Both are available on the Service's Southeast
Region website at https://www.fws.gov/southeast/ and at http://www.regulations.gov under Docket No. FWS-R4-ES-2017-0094.
Summary of Comments and Recommendations
In the January 4, 2018, proposed rule (83 FR 490), we requested
that all interested parties submit written comments on the proposal by
March 5, 2018. We also contacted appropriate Federal and State
agencies, scientific experts and organizations, and other interested
parties and invited them to comment on the proposal. We did not receive
any requests for a public hearing.
Peer Reviewer Comments
In accordance with our peer review policy published on July 1, 1994
(59 FR 34270), and our August 22, 2016, memorandum updating and
clarifying the role of peer review actions under the Act (16 U.S.C.
1531 et seq.), we solicited expert opinion from six knowledgeable
individuals with scientific expertise that included familiarity with
the Barrens topminnow and its habitat, biological needs, and threats.
We received a response from one peer reviewer.
We updated the SSA report based on the peer reviewer's comments.
The changes consisted of clarifications and corrections to the SSA
report, including typographical edits, incorporation of omitted
references, and a clarification regarding the definition of a genetic
term. The peer reviewer's comments did not change our determination
that the Barrens topminnow meets the definition of an endangered
species under the Act.
Public Comments
We received 24 public comments on the proposed rule. Eleven of the
comments were supportive of listing the Barrens topminnow as endangered
but did not provide any new information on the species' status. None of
the remaining 13 comments provided substantive comments concerning the
proposed listing of the Barrens topminnow. Ten of those did not address
or provide any information concerning the Barrens topminnow, and three
focused on the need for transparency in regulations implemented under
the Act. Regarding transparency for our listing decision for the
Barrens topminnow, we note that we provide our SSA report, as well as
several other reports and surveys that helped inform this listing
decision, to the public on http://www.regulations.gov under Docket No.
FWS-R4-ES-2017-0094. Thus, none of the public comments changed our
determination that the Barrens topminnow meets the definition of an
endangered species under the Act.
Summary of Changes From the Proposed Rule
As discussed above, we made no changes to this final rule after
consideration of the comments we received.
Summary of Biological Status and Threats
Section 4 of the Act (16 U.S.C. 1533), and its implementing
regulations in title 50 of the Code of Federal Regulations at 50 CFR
part 424, set forth the procedures for adding species to the Federal
Lists of Endangered and Threatened Wildlife and Plants. Under section
4(a)(1) of the Act, we may list a species based on (A) The present or
threatened destruction, modification, or curtailment of its habitat or
range; (B) overutilization for commercial, recreational, scientific, or
educational purposes; (C) disease or predation; (D) the inadequacy of
existing regulatory mechanisms; or (E) other natural or manmade factors
affecting its continued existence. Our assessment evaluates the
biological status of the species and possible threats to its continued
existence based upon the best available scientific and commercial data.
Please refer to the SSA report for a more detailed discussion of
the factors affecting the Barrens topminnow.
Current Condition of the Barrens Topminnow
To evaluate the current and future viability of the Barrens
topminnow, we assessed a range of conditions to consider the species'
resiliency, representation, and redundancy (the ``3 Rs'' described in
detail in the SSA report). The historical range of the Barrens
topminnow included springs and spring runs (first and second order
streams with a spring source) on the Barrens Plateau, which is part of
the Eastern Highland Rim physiographic province in middle Tennessee.
Historical species records are from the Duck River, Elk River, and
Caney Fork River drainages. The Duck River and Elk River drain to the
Tennessee River, and the Caney Fork River drains to the Cumberland
River. Captively held Elk River and wild Caney Fork River stock exist
today and are considered ``evolutionary significant units'' (ESUs,
historically isolated groups of populations that are on independent
evolutionary trajectories). Historical Duck River stock became extinct
in the 1960s, before genetic material could be examined to assess
whether the Duck River stock was a unique ESU or belonged to one of the
two extant ESUs.
Once known to occupy 18 sites (and likely more sites that were not
sampled
[[Page 56133]]
prior to extirpation) within the three drainages, the Barrens topminnow
currently occurs in the wild at 5 sites. The species occurs in the Duck
River drainage in Short Spring and Marcum Spring, and in the Caney Fork
drainage in Benedict Spring, McMahan Creek, and Greenbrook Pond. The
Benedict Spring and McMahan Creek occurrences consist of native stock,
while the remaining three, including the two Duck River occurrences,
are populated with individuals introduced from Caney Fork drainage
sites. An ark population of Barrens topminnows from Pond Spring in the
Elk River drainage is held in captivity at three facilities, with the
intention to reintroduce individuals from that population to the
drainage where habitat conditions are, or can be made, suitable.
Of the five sites currently occupied by the species, the Greenbrook
Pond and Marcum Spring populations are estimated to have medium
resiliency, and the other three populations low resiliency. Rangewide,
the Barrens topminnow has low representation, owing to the species'
reduced genetic diversity, loss of at least one ESU from the wild, and
restriction to a single ecoregion and specific habitat type. Redundancy
is also low, as the species is extant at only 5 of 18 known historical
sites. Based on the 3 Rs, the species' overall current condition is
low.
Threats
The greatest threat to Barrens topminnow is predation from the
western mosquitofish (Factor C), an invasive species native to portions
of Tennessee west of the Barrens Plateau that preys upon young
topminnows and harasses adults. Extirpation of Barrens topminnows has
occurred consistently within 3 to 5 years of western mosquitofish
invasion of a site, and the five sites where Barrens topminnows remain
extant are the only sites not occupied by western mosquitofish.
Predation upon Barrens topminnows by western mosquitofish (Factor
C) is the primary driver of Barrens topminnow range curtailment and
habitat modification (Factor A), as well as adverse demographic changes
(Factor E). The presence of predatory western mosquitofish in most
spring and stream systems of the Barrens Plateau has rendered otherwise
suitable habitat for the Barrens topminnow uninhabitable. In addition
to modification of habitat by a biological feature (invasive western
mosquitofish), alteration of physical habitat features has occurred due
to conversion of surrounding upland habitat to pasture, with
concomitant removal of riparian vegetation and livestock accessing
streams.
Livestock access increases bank erosion, sedimentation, and
nutrient loading in streams. Removal of riparian vegetation can also
increase sedimentation and may raise water temperatures above levels
suitable for Barrens topminnows. While such physical habitat alteration
(Factor A) has occurred and has been a factor in curtailing some of the
species' range, its impact on the topminnow is much less substantial
than predation by western mosquitofish.
Adverse demographic changes (Factor E) also are largely driven by
invasive western mosquitofish (Factor C). The expansion of western
mosquitofish into topminnow habitat has eliminated connectivity between
sites that would allow gene flow and maintenance of genetic diversity.
Each occupied site is vulnerable to extirpation due to prolonged
drought or a flood that enables western mosquitofish invasion.
Topminnows cannot move from these sites during droughts or floods
because western mosquitofish are downstream. Further, the erosion of
genetic variability due to site isolation reduces the capacity of the
species to withstand stochastic events.
Climate change (Factor E) is a threat to the Barrens topminnow.
Drought poses a threat to Barrens topminnows as evidenced by the
Benedict Spring site drying up three times since 2006, although each
time topminnows were rescued from the drying spring and held in
captivity until they could be returned to the spring after the drought
subsided. Climate models at the scale of the Barrens Plateau are
lacking, but in the broader southeastern United States, variability in
weather is expected to increase over the next century, resulting in
more extreme dry and wet years.
We did not find that the Barrens topminnow is impacted by
overutilization (Factor B). Regarding the adequacy of existing
regulatory mechanisms (Factor D), such as regulations implemented under
the Clean Water Act to protect water quality and instream habitat, we
found that they do not address, nor do they contribute to, the threat
of invasive mosquitofish, which is the primary driver of the Barrens
topminnow's status.
Determination
We have carefully assessed the best scientific and commercial
information available regarding the past, present, and future threats
to the Barrens topminnow. The Barrens topminnow is extirpated from 13
of 18 historically occupied sites, which is equivalent to a 72 percent
loss in the species' range. Native Duck River populations have been
lost, and the ESU from the Elk River drainage currently persists only
in captivity. Due primarily to predation by the western mosquitofish,
but secondarily to habitat alternation exacerbated by climate change,
the overall condition of the species is low, based on population
resiliency and rangewide representation and redundancy.
The Act defines an endangered species as any species that is ``in
danger of extinction throughout all or a significant portion of its
range'' and a threatened species as any species that ``is likely to
become an endangered species within the foreseeable future throughout
all or a significant portion of its range.'' As discussed above, the
resiliency, representation, and redundancy of the species has been
severely compromised by the operation of threats in the past, primarily
due to predation by introduced and expanding populations of nonnative
western mosquitofish. In addition, all of the remaining populations of
Barrens topminnow are at imminent risk of further expansion of western
mosquitofish, as well as drought events, with no reasonable prospect of
natural reestablishment once a population is extirpated. Therefore, we
conclude that the species is currently at risk of extinction throughout
its range, thus meeting the definition of an endangered species. For
the same reasons, we find that a threatened species status is not
appropriate for the Barrens topminnow.
Under the Act and our implementing regulations, a species may
warrant listing if it is endangered or threatened throughout all or a
significant portion of its range. Because we have determined that the
Barrens topminnow is in danger of extinction throughout its range, we
find it unnecessary to proceed to an evaluation of potentially
significant portions of the range. Where the best available information
allows the Services to determine a status for the species rangewide,
that determination should be given conclusive weight because a
rangewide determination of status more accurately reflects the species'
degree of imperilment and better promotes the purposes of the statute.
Under this reading, we should first consider whether listing is
appropriate based on a rangewide analysis and proceed to conduct a
``significant portion of its range'' analysis if, and only if, a
species does not qualify for listing as either endangered or threatened
according to the ``all'' language. We note that the court in Desert
Survivors v. Department
[[Page 56134]]
of the Interior, No. 16-cv-01165-JCS, 2018 WL 4053447 (N.D. Cal. Aug.
24, 2018), did not address this issue, and our conclusion is therefore
consistent with the opinion in that case.
Therefore, on the basis of the best available scientific and
commercial information, we list the Barrens topminnow as an endangered
species in accordance with sections 3(6) and 4(a)(1) of the Act.
Available Conservation Measures
Conservation measures provided to species listed as endangered or
threatened species under the Act include recognition, recovery actions,
requirements for Federal protection, and prohibitions against certain
practices. Recognition through listing results in public awareness and
conservation by Federal, State, Tribal, and local agencies, private
organizations, and individuals. The Act encourages cooperation with the
States and requires that recovery actions be carried out for all listed
species. The protection required by Federal agencies and the
prohibitions against certain activities are discussed, in part, below.
Recovery Actions
The primary purpose of the Act is the conservation of endangered
and threatened species and the ecosystems upon which they depend. The
ultimate goal of such conservation efforts is the recovery of these
listed species, so that they no longer need the protective measures of
the Act. Subsection 4(f) of the Act requires the Service to develop and
implement recovery plans for the conservation of endangered and
threatened species. The recovery planning process involves the
identification of actions that are necessary to halt or reverse the
species' decline by addressing the threats to its survival and
recovery. The goal of this process is to restore listed species to a
point where they are secure, self-sustaining, and functioning
components of their ecosystems.
Recovery planning includes the development of a recovery outline
shortly after a species is listed and preparation of a draft and final
recovery plan. The recovery outline guides the immediate implementation
of urgent recovery actions and describes the process to be used to
develop a recovery plan. Revisions of the plan may be done to address
continuing or new threats to the species, as new substantive
information becomes available. The recovery plan identifies site-
specific management actions that set a trigger for review of the five
factors that control whether a species remains endangered or may be
downlisted or delisted, and methods for monitoring recovery progress.
Recovery plans also establish a framework for agencies to coordinate
their recovery efforts and provide estimates of the cost of
implementing recovery tasks. Recovery teams (composed of species
experts, Federal and State agencies, nongovernmental organizations, and
stakeholders) are often established to develop recovery plans. When
completed, the recovery outline, draft recovery plan, and the final
recovery plan will be available on our website (http://www.fws.gov/endangered) or from our Tennessee Ecological Services Field Office (see
FOR FURTHER INFORMATION CONTACT).
Implementation of recovery actions generally requires the
participation of a broad range of partners, including other Federal
agencies, States, Tribes, nongovernmental organizations, businesses,
and private landowners. Examples of recovery actions include habitat
restoration (e.g., restoration of native vegetation), research, captive
propagation and reintroduction, and outreach and education. The
recovery of many listed species cannot be accomplished solely on
Federal lands because their range may occur primarily or solely on non-
Federal lands. To achieve recovery of these species requires
cooperative conservation efforts on private, State, and Tribal lands.
Following publication of this final listing rule, funding for
recovery actions will be available from a variety of sources, including
Federal budgets, State programs, and cost share grants for non-Federal
landowners, the academic community, and nongovernmental organizations.
In addition, pursuant to section 6 of the Act, the State of Tennessee
will be eligible for Federal funds to implement management actions that
promote the protection or recovery of the Barrens topminnow.
Information on our grant programs that are available to aid species
recovery can be found at: http://www.fws.gov/grants.
Please let us know if you are interested in participating in
recovery efforts for the Barrens topminnow. Additionally, we invite you
to submit any new information on this species whenever it becomes
available and any information you may have for recovery planning
purposes (see FOR FURTHER INFORMATION CONTACT).
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. In the proposed listing rule
(83 FR 490; January 4, 2018), 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 are still in the process of assessing this information. We plan to
publish a proposed rule to designate critical habitat for the Barrens
topminnow in the near future.
Regulatory Provisions
Section 7(a) of the Act requires Federal agencies to evaluate their
actions with respect to any species that is listed as an endangered or
threatened species and with respect to its critical habitat, if any is
designated. Regulations implementing this interagency cooperation
provision of the Act are codified at 50 CFR part 402. Section 7(a)(2)
of the Act requires Federal agencies to ensure that activities they
authorize, fund, or carry out are not likely to jeopardize the
continued existence of any endangered or threatened species or destroy
or adversely modify its critical habitat. If a Federal action may
affect a listed species or its critical habitat, the responsible
Federal agency must enter into consultation with the Service.
Federal agency actions within the species' habitat that may require
conference or consultation or both as described in the preceding
paragraph include management and any other landscape-altering
activities on Federal lands administered by the Service; technical
assistance and projects funded through the U.S. Department of
Agriculture Natural Resources Conservation Service; issuance of permits
by the Tennessee Valley Authority for right-of-way stream crossings;
issuance of section 404 Clean Water Act (33 U.S.C. 1251 et seq.)
permits by the U.S. Army Corps of Engineers; and construction and
maintenance of roads or highways by the Federal Highway Administration.
The Act and its implementing regulations set forth a series of
general prohibitions and exceptions that apply to endangered wildlife.
The prohibitions of section 9(a)(1) of the Act, also codified at 50 CFR
17.21, make it illegal for any person subject to the jurisdiction of
the United States to take (which includes harass, harm, pursue, hunt,
shoot, wound, kill, trap, capture, or collect; or to attempt any of
these) endangered wildlife within the United States or on the high
seas. In addition, it is unlawful to import; export; deliver, receive,
carry, transport, or ship in interstate or foreign commerce in the
[[Page 56135]]
course of commercial activity; or sell or offer for sale in interstate
or foreign commerce any listed species. It is also illegal to possess,
sell, deliver, carry, transport, or ship any such wildlife that has
been taken illegally. Certain exceptions apply to employees of the
Service, the National Marine Fisheries Service, other Federal land
management agencies, and State conservation agencies.
We may issue permits to carry out otherwise prohibited activities
involving endangered wildlife under certain circumstances. Regulations
governing permits for endangered wildlife are codified at 50 CFR 17.22.
A permit may be issued for the following purposes: For scientific
purposes, to enhance the propagation or survival of the species, and
for incidental take in connection with otherwise lawful activities.
There are also certain statutory exemptions from the prohibitions,
which are found in sections 9 and 10 of the Act.
It is our policy, as published in the Federal Register on July 1,
1994 (59 FR 34272), to identify to the maximum extent practicable at
the time a species is listed, those activities that would or would not
constitute a violation of section 9 of the Act. The intent of this
policy is to increase public awareness of the effect of a final listing
on proposed and ongoing activities within the range of a listed
species. Based on the best available information, the following actions
are unlikely to result in a violation of section 9, if these activities
are carried out in accordance with existing regulations and permit
requirements; this list is not comprehensive:
(1) Normal agricultural practices, including herbicide and
pesticide use, which are carried out in accordance with any existing
regulations, permit and label requirements, and best management
practices; and
(2) Normal residential landscaping activities.
Based on the best available information, the following activities
may potentially result in a violation of section 9 the Act; this list
is not comprehensive:
(1) Collection or handling of the Barrens topminnow;
(2) Introduction of nonnative species that compete with or prey
upon the Barrens topminnow, including western mosquitofish and other
species in the mosquitofish genus Gambusia;
(3) Removal or destruction of native aquatic vegetation in any body
of water in which the Barrens topminnow is known to occur; and
(4) Discharge of chemicals or fill material into any waters in
which the Barrens topminnow is known to occur.
Questions regarding whether specific activities would constitute a
violation of section 9 of the Act should be directed to the Tennessee
Ecological Services Field Office (see FOR FURTHER INFORMATION CONTACT).
Required Determinations
National Environmental Policy Act (42 U.S.C. 4321 et seq.)
We have determined that environmental assessments and environmental
impact statements, as defined under the authority of the National
Environmental Policy Act, need not be prepared in connection with
listing a species as an endangered or threatened species under the
Endangered Species Act. We published a notice outlining our reasons for
this determination in the Federal Register on October 25, 1983 (48 FR
49244).
Government-to-Government Relationship With Tribes
In accordance with the President's memorandum of April 29, 1994
(Government-to-Government Relations with Native American Tribal
Governments; 59 FR 22951), Executive Order 13175 (Consultation and
Coordination With Indian Tribal Governments), and the Department of the
Interior's manual at 512 DM 2, we readily acknowledge our
responsibility to communicate meaningfully with recognized Federal
Tribes on a government-to-government basis. In accordance with
Secretarial Order 3206 of June 5, 1997 (American Indian Tribal Rights,
Federal-Tribal Trust Responsibilities, and the Endangered Species Act),
we readily acknowledge our responsibilities to work directly with
tribes in developing programs for healthy ecosystems, to acknowledge
that tribal lands are not subject to the same controls as Federal
public lands, to remain sensitive to Indian culture, and to make
information available to tribes. There are no tribal lands affected by
this listing determination.
References Cited
A complete list of references cited in the SSA report that informed
this rulemaking is available on the internet at http://www.regulations.gov under Docket No. FWS-R4-ES-2017-0094 and upon
request from the Tennessee Ecological Services Field Office (see FOR
FURTHER INFORMATION CONTACT).
Authors
The primary authors of this final rule are the staff members of the
Service's Tennessee Ecological Services Field Office.
List of Subjects in 50 CFR Part 17
Endangered and threatened species, Exports, Imports, Reporting and
recordkeeping requirements, Transportation.
Regulation Promulgation
Accordingly, we amend part 17, subchapter B of chapter I, title 50
of the Code of Federal Regulations, as set forth below:
PART 17--ENDANGERED AND THREATENED WILDLIFE AND PLANTS
0
1. The authority citation for part 17 continues to read as follows:
Authority: 16 U.S.C. 1361-1407; 1531-1544; and 4201-4245,
unless otherwise noted.
0
2. Amend Sec. 17.11(h) by adding an entry for ``Topminnow, Barrens''
to the List of Endangered and Threatened Wildlife in alphabetical order
under FISHES to read as follows:
Sec. 17.11 Endangered and threatened wildlife.
* * * * *
(h) * * *
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Listing citations and
Common name Scientific name Where listed Status applicable rules
----------------------------------------------------------------------------------------------------------------
* * * * * * *
Fishes
* * * * * * *
Topminnow, Barrens.............. Fundulus julisia.. Wherever found.... E 83 FR [insert Federal
Register page where
the document begins],
10/21/2019.
* * * * * * *
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[[Page 56136]]
Dated: August 20, 2019.
Margaret E. Everson,
Principal Deputy Director, U.S. Fish and Wildlife Service, Exercising
the Authority of the Director, U.S. Fish and Wildlife Service.
[FR Doc. 2019-22857 Filed 10-18-19; 8:45 am]
BILLING CODE 4333-15-P
