Federal Register Vol. 83, No.3,

USDA reviewed its pending proposed rules and other notices that published in the Federal Register more than 4 years ago, and for which no final rule or notice of withdrawal has been issued. The agency identified 14 such regulatory proposals for withdrawal. Additionally, USDA identified two proposed rules for withdrawal because they are not considered candidates for final action at this time.

Although not required to do so by the Administrative Procedure Act or by regulations of the Office of the Federal Register, the agency believes the public interest is best served by announcing in the Federal Register that it has withdrawn these 16 items. Therefore, for the reasons set forth above, USDA announces that it has withdrawn the following documents, published in the Federal Register on the dates indicated in the table below.

The withdrawal of these proposals identified in this document does not preclude the Department from reinstituting rulemaking concerning the issues addressed in the proposals listed in the chart. Should we decide to undertake such rulemakings in the future, we will re-propose the actions and provide new opportunities for comment. Furthermore, this notice is only intended to address the specific actions identified in this document, and not any other pending proposals that USDA has issued or is considering. The Department notes that withdrawal of a proposal does not necessarily mean that the preamble statement of the proposal no longer reflects the current position of USDA on the matter addressed. You may wish to review the Department's website (http://www.USDA.gov) for any current guidance on these matter matters.

Why we need to publish a rule. Under the Act, a species may be removed from the Federal List of Endangered and Threatened Wildlife (List) due to recovery. A species is an “endangered species” for purposes of the Act if it is in danger of extinction throughout all or a significant portion of its range and is a “threatened species” if it is likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range. The Act does not define the term “foreseeable future.” The Foskett speckled dace is listed as threatened, and we are proposing to delist the species (i.e., remove the species from the List) because we have determined it is not likely to become an endangered species now or within the foreseeable future. Delistings can only be made by issuing a rulemaking.

The basis for our action. Under the Act, we may determine that a species is an endangered or threatened species because of any one or a combination of five factors: (A) The present or threatened destruction, modification, or curtailment of its habitat or range; (B) overutilization for commercial, recreational, scientific, or educational purposes; (C) disease or predation; (D) the inadequacy of existing regulatory mechanisms; or (E) other natural or manmade factors affecting its continued existence. We have determined that the Foskett speckled dace is no longer at risk of extinction and has exceeded or met the following criteria for delisting described in the species' recovery plan:

(1) Long-term protection of habitat, including spring source aquifers, spring pools and outflow channels, and surrounding lands, is assured;

(2) Long-term habitat management guidelines are developed and implemented to ensure the continued persistence of important habitat features and include monitoring of current habitat and investigation for and evaluation of new spring habitats; and

(3) Research into life history, genetics, population trends, habitat use and preference, and other important parameters is conducted to assist in further developing and/or refining criteria (1) and (2), above.

As per recovery criterion (2), we consider the Foskett speckled dace to be a conservation-reliant species 1 (see Scott et al. 2010, entire), given that it requires active management to maintain suitable habitat. To address this management need, the Bureau of Land Management (BLM), the Oregon Department of Fish and Wildlife (ODFW), and the Service developed and are implementing the Foskett Speckled Dace (Rhinichthys osculus ssp.) Cooperative Management Plan (CMP; USFWS et al. 2015), and are committed to the continuing long-term management of this species.

We intend that any final action resulting from this proposal will be based on the best scientific and commercial data available and be as accurate and as effective as possible. Therefore, we request comments or information from other governmental or State agencies, Tribes, the scientific community, industry, or other interested parties concerning this proposed rule. The comments that will be most useful and likely to influence our decisions are those supported by data or peer-reviewed studies and those that include citations to, and analyses of, applicable laws and regulations. Please make your comments as specific as possible and explain the basis for them. In addition, please include sufficient information with your comments to allow us to authenticate any scientific or commercial data you reference or provide. We particularly seek comments concerning:

(1) Reasons why we should or should not remove Foskett speckled dace from the Federal List of Endangered and Threatened Wildlife (i.e., “delist” the fish under the Act);

(2) New biological or other relevant data concerning any threat (or lack thereof) to this fish (e.g., those associated with climate change);

(3) New information on any efforts by the State or other entities to protect or otherwise conserve the Foskett speckled dace or its habitat;

(4) New information concerning the range, distribution, and population size or trends of this fish;

(5) New information on the current or planned activities in the habitat or range of the Foskett speckled dace that may adversely affect or benefit the fish; and

(6) Information pertaining to the requirements for post-delisting monitoring of the Foskett speckled dace.

Please note that submissions merely stating support for or opposition to the action under consideration without providing supporting information, although noted, may not meet the standard of information required by section 4(b)(1)(A) of the Act (16 U.S.C. 1531 et seq.), which directs that determinations as to whether any species is an endangered or threatened species must be made “solely on the basis of the best scientific and commercial data available.”

Prior to issuing a final rule to implement this proposed action, we will take into consideration all comments and any additional information we receive. Such information may lead to a final rule that differs from this proposal. All comments and recommendations, including names and addresses, will become part of the administrative record.

You may submit your comments and materials concerning this proposed rule by one of the methods listed in ADDRESSES. We will not consider comments sent by email, fax, or to an address not listed in ADDRESSES. We will not consider hand-delivered comments that we do not receive, or mailed comments that are not postmarked by, the date specified in DATES. If you submit information via http://www.regulations.gov, your entire submission—including any personal identifying information—will be posted on the website. Please note that comments posted to this website are not immediately viewable. When you submit a comment, the system receives it immediately. However, the comment will not be publicly viewable until we post it, which might not occur until several days after submission.

If you mail or hand-deliver hardcopy comments that include 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. To ensure that the electronic docket for this rulemaking is complete and all comments we receive are publicly available, we will post all hardcopy submissions on http://www.regulations.gov.

Comments and materials we receive, as well as supporting documentation we used in preparing this proposed rule and draft post-delisting monitoring (PDM) plan, will be available for public inspection on http://www.regulations.gov, or by appointment, during normal business hours, at the U.S. Fish and Wildlife Service, Oregon Fish and Wildlife Office (see Document availability under ADDRESSES, above).

Section 4(b)(5)(E) of the Act provides for one or more public hearings on this proposal, if requested. We must receive requests for public hearings, in writing, at the address shown in FOR FURTHER INFORMATION CONTACT within 45 days after the date of this Federal Register publication (see DATES, above). We will schedule at least one public hearing on this proposal, if any are requested, and announce the dates, times, and location(s) of any hearings, as well as how to obtain reasonable accommodations, in the Federal Register at least 15 days before the first hearing.

In accordance with our policy, “Notice of Interagency Cooperative Policy for Peer Review in Endangered Species Act Activities,” which was published on July 1, 1994 (59 FR 34270), we will seek the expert opinion of at least three appropriate independent specialists regarding this proposed rule as well as the draft PDM plan. The purpose of peer review is to ensure that decisions are based on scientifically sound data, assumptions, and analyses. These reviews will be completed during the public comment period.

We will consider all comments and information we receive during the comment period on this proposed rule as we prepare the final determination. Accordingly, the final decision may differ from this proposal.

We published a final rule listing the Foskett speckled dace as threatened in the Federal Register on March 28, 1985 (50 FR 12302). This rule also found that the designation of critical habitat was not prudent because it would increase the likelihood of vandalism to the small, isolated springs that support this species. On April 27, 1998, a recovery plan was completed for the Foskett speckled dace as well as two other fish of the Warner Basin and Alkali Subbasin (USFWS 1998).

On March 25, 2009 (USFWS 2009, entire), a 5-year review of the Foskett speckled dace status was completed, recommending no change in listing status. On February 18, 2014, we published a notice in the Federal Register announcing the initiation of 5-year status reviews and information requests for five species, including the Foskett speckled dace (79 FR 9263). No information was received from this request. The second 5-year review, completed on October 26, 2015 (USFWS 2015, entire), concluded that the status of the Foskett speckled dace had substantially improved since the time of listing according to the definitions of “endangered species” and “threatened species” under the Act and recommended that the Foskett speckled dace be considered for delisting.

The Foskett speckled dace (Rhinichthys osculus ssp.) is in the family Cyprinidae (Girard 1857) and is represented by two populations in Lake County, Oregon: A natural population that inhabits Foskett Spring on the west side of Coleman Lake, and an introduced population at Dace Springs (USFWS 1998, p. 14). The Foskett speckled dace is a small, elongate, rounded minnow (4 inches (in) (10 centimeters (cm)) with a flat belly. The snout is moderately pointed, the eyes and mouth are small, and ventral barbels (i.e., whisker-like sensory organs near the mouth) are present. Foskett speckled dace have eight dorsal fin rays and seven anal fin rays, and the caudal fin is moderately forked (USFWS 1998, p. 8). The color of its back is dusky to dark olive; the sides are grayish green, with a dark lateral stripe, often obscured by dark speckles or blotches; and the fins are plain. Breeding males are reddish on the lips and fin bases.

Relatively little is known about the biology of the Foskett speckled dace. Fish breed at age 1 year, and spawning begins in March to April and extends into July; individual fish can live for at least 4 years (Scheerer et al. 2015, p. 2). Length-frequency histograms suggest the presence of multiple age classes and that successful reproduction occurs annually (Sheerer and Jacobs 2009, p. 5). Young-of-the-year fish are more common in the shallow marsh habitats (Scheerer et al. 2016, p. 3). Presumably, similar to other dace, Foskett speckled dace require rock or gravel substrate for egg deposition (Sigler and Sigler 1987, p. 208). The taxonomy of the Foskett speckled dace is summarized in the species' 5-year review (USFWS 2015).

The Foskett speckled dace is endemic to Foskett Spring in the Warner Basin, in southeastern Oregon (see Figure 1). The historical known natural range of the Foskett speckled dace is limited to Foskett Spring. At the time of listing in 1985, Foskett speckled dace also occurred at nearby Dace Spring where translocation was initiated in 1979 (Williams et al. 1990, p. 243).

Foskett speckled dace were probably distributed throughout prehistoric Coleman Lake (see Figure 1) during times that it held substantial amounts of water. The timing of the isolation between the Warner Lakes and the Coleman Lake Subbasin is uncertain although it might have been as recent as 10,000 years ago (Bills 1977, entire). As Coleman Lake dried, the salt content of the water increased and suitable habitat would have been reduced from a large lake to spring systems that provided adequate freshwater.

Given that both Foskett and Dace springs were historically below the surface of Coleman Lake, it is reasonable to assume that Foskett speckled dace occupied Dace Spring at some point in the past although none was documented in the 1970s. Beginning in 1979, Foskett speckled dace were translocated into the then-fishless Dace Spring to attempt to create a second population (see discussion below, under Abundance).

Foskett Spring is a small, natural spring that rises from a springhead pool that flows through a narrow, shallow spring brook into a series of shallow marshes, and then disappears into the soil of the normally dry Coleman Lake (Scheerer et al. 2016, p. 1). Foskett Spring is a cool-water spring with temperatures recorded at a constant 64.8 degrees Fahrenheit (°F) (18.2 degrees Celsius (°C)) (Scheerer and Jacobs 2009, p. 5). The spring water is clear, and the water flow rate is less than 0.5 cubic feet (ft3) per second (0.01 cubic meters (m3) per second). The springhead pool has a loose sandy bottom and is heavily vegetated with aquatic plants. The ODFW estimated approximately 864 square yards (yds2) (722 square meters (m2)) of wetland habitat are associated with the Foskett Spring area, including the spring pool, spring brook, tule marsh, cattail marsh, and sedge marsh (Scheerer and Jacobs 2005, p. 6; hereafter “marsh” unless otherwise noted). Foskett speckled dace occur in all the wetlands habitats associated with the spring. The fish use overhanging bank edges, grass, exposed grass roots, and filamentous algae as cover. In 1987, the BLM acquired the property containing both Foskett and Dace springs and the surrounding 161 acres (ac) (65 hectares (ha)), of which approximately 69 ac (28 ha) were fenced to exclude cattle from the two springs. After fencing and cattle exclusion, encroachment by aquatic vegetation reduced the open-water habitat (Sheerer and Jacobs 2007, p. 9). This is a common pattern in desert spring ecosystems and has resulted in reductions of fish populations at other sites (see Kodric-Brown and Brown 2007).

In 2005, 2007, and 2009, the ODFW considered Foskett speckled dace habitat to be in good condition, but limited in extent (Scheerer and Jacobs 2005, p. 7; 2007, p. 9; and 2009, p. 5). They noted that encroachment by aquatic plants may be limiting the population and that a decline in abundance of Foskett speckled dace since 1997 was probably due to the reduction in open-water habitat. Deeper water with moderate vegetative cover would presumably be better habitat, judging from the habitats used by other populations of speckled dace, although Dambacher et al. (1997, no pagination) noted that past habitat management to increase open-water habitat has been unsuccessful in the long run due to sediment infilling and regrowth of aquatic plants. To address the encroachment by aquatic vegetation, in 2013, the BLM implemented a controlled burn in the surrounding marshes to reduce vegetation biomass. In 2013 and 2014, the BLM hand-excavated 11 pools and increased the open-water habitat by 196 yds2 (164 m2) (Scheerer et al. 2014, p. 9). The response of Foskett speckled dace to this habitat enhancement was substantial but relatively short-lived (see Abundance, below).

Dace Spring is approximately 0.5 mile (mi) (0.8 kilometer (km)) south of Foskett Spring and is smaller than Foskett Spring. Baseline water quality and vegetation monitoring at Foskett and Dace springs were initiated by the BLM in 1987. Data collected on September 28, 1988, documented that the springs had similar water chemistry, temperature, and turbidity (Williams et al. 1990, p. 244). To increase open-water habitat, the BLM and the Service worked together in 2009, to construct two ponds connected to the outlet channel of Dace Spring. In 2013, the BLM reconfigured the inlet and outlet to the two ponds, allowing greater water flow and improving water quality (Scheerer et al. 2013, p. 8).

The population of Foskett speckled dace has been monitored regularly by the ODFW since 2005, and, while variable, the population appears to be resilient (i.e., ability of a species to withstand natural variation in habitat conditions and weather as well as random events). General observations made during these population surveys included the presence of multiple age-classes and the presence of young-of-the-year, which indicates that breeding is occurring and young are surviving for multiple years. Bond (1974) visually estimated the population in Foskett Spring to be between 1,500 and 2,000 individuals in 1974. In 1997, the ODFW obtained mark-recapture population estimates at both Foskett and Dace springs (Dambacher et al. 1997, no pagination). The Foskett Spring estimate was 27,787 fish, and the majority of the fish (97 percent) occurred in an open-water pool located in the marsh outside of the existing Foskett Spring cattle exclosure. Since 1997, population estimates have varied from 751 to 24,888 individuals (Table 1). The data in Table 1 were obtained using the Lincoln-Petersen model (1997-2012), the Huggins closed-capture model (2011-2014), and a state-space model (2015-2016). Estimates were not calculated by habitat type using the Huggins model in 2011, because length-frequency data were not available for each habitat location (Scheerer et al. 2015, pp. 4-7; Scheerer et al. 2013, p. 5; Scheerer et al. 2014, p. 6; Scheerer et al. 2016, p. 6). Different models have been used to estimate abundance through time to provide the most accurate and robust estimates; for example, it was determined that the Lincoln-Petersen estimator had underestimated abundance (Peterson et al. 2015). Abundance declined substantially from 1997 through 2012, a period when aquatic plants substantially expanded into open-water habitats (Scheerer et al. 2016, p. 9). The higher population estimates from 2013 through 2015 were attributed to habitat management that increased open-water habitat (see below) and most fish occurred in maintained habitats (Scheerer et al. 2016, p. 9). The population decline documented in 2016 in Foskett Spring was likely a result of vegetation regrowth into the excavated areas (Scheerer et al. 2016, pp. 6-9). As a result of the vegetation regrowth and population decline in 2016, and consistent with the CMP, the BLM conducted an extensive habitat enhancement project in 2017, excavating approximately 300 cubic yards (yds2) (251 m2) of vegetation and accumulated sediment in the Foskett Spring pool, stream, and portions of the wetland, resulting in a significant increase in open-water habitat. Prior to initiating this enhancement project in 2017, the ODFW conducted a population survey that estimated 4,279 dace in Foskett Spring (95 percent CI: 3,878-4,782), a moderate increase in the estimate from the prior year (1,830) (P. Scheerer, ODFW, pers. comm. 2017). As noted previously, and as illustrated in Table 1 below, the variability in abundance is not uncommon for this species and appears in part to be driven by the availability of open-water habitat. Given information gained from prior habitat enhancement actions at Foskett and Dace springs, we anticipate the extensive habitat enhancement work conducted by the BLM in 2017 will support an increase in abundance in coming years.

No Foskett speckled dace were documented in Dace Spring in the 1970s. In 1979 and 1980, individuals were translocated from Foskett Spring to Dace Spring (Williams et al. 1990, p. 243; see Table 2). Although an estimated 300 fish were documented in 1986 (Williams et al. 1990, p. 243), this initial effort failed to establish a population at Dace Spring due to a lack of successful recruitment (Dambacher et al. 1997, no pagination). Only 19 fish were observed in 1997, and subsequent surveys failed to locate individuals in Dace Springs (Scheerer and Jacobs 2005, p. 2). In 2009, two pools were created at Dace Spring to increase open-water habitat and additional individuals were moved to the spring. Although recruitment was documented, major algal blooms and periods of low dissolved oxygen resulted in low survival (Scheerer et al. 2012, p. 8). Habitat manipulation by the BLM in 2013 improved water quality, and recruitment was documented in 2014 and 2015 (Scheerer et al. 2014, p. 6; Scheerer et al. 2015, p. 5). The two constructed pools at Dace Spring are currently providing additional habitat and may continue to serve as a refuge population for Foskett speckled dace. Based on 2017 population estimates, Dace Spring numbers have increased dramatically since 2013 (Table 2). The population estimates in Table 2 were made with 95 percent confidence intervals, translocations, and habitat management (Williams et al. 1990, p. 243; Dambacher et al. 1997, no pagination; Scheerer and Jacobs 2005, p. 2; Scheerer et al. 2012, p. 1; Scheerer et al. 2013, pp. 2, 8; Scheerer et al. 2014, pp. 6, 9; Scheerer et al. 2015, p. 5; Scheerer et al. 2016, p. 6; Scheerer et. al. 2017, p. 6).

Section 4(f) of the Act directs us to develop and implement recovery plans for the conservation and survival of endangered and threatened species unless we determine that such a plan will not promote the conservation of the species. Under section 4(f)(1)(B)(ii), recovery plans must, to the maximum extent practicable, include objective, measurable criteria which, when met, would result in a determination, in accordance with the provisions of section 4 of the Act, that the species be removed from the List. However, revisions to the List (i.e., adding, removing, or reclassifying a species) must reflect determinations made in accordance with sections 4(a)(1) and 4(b) of the Act. Section 4(a)(1) requires that the Secretary determine whether a species is endangered or threatened (or not) because of one or more of five threat factors. Section 4(b) of the Act requires that the determination be made “solely on the basis of the best scientific and commercial data available.” Therefore, recovery criteria should help indicate when we would anticipate an analysis of the five threat factors under section 4(a)(1) would result in a determination that the species is no longer an endangered species or threatened species after evaluating the five statutory factors (see Summary of Factors Affecting the Species, below).

While recovery plans provide important guidance to the Service, States, and other partners on methods of minimizing threats to listed species and measurable objectives against which to measure progress towards recovery, they are not regulatory documents and cannot substitute for the determinations and promulgation of regulations required under section 4(a)(1) of the Act. A decision to revise the status of a species or remove it from the List is ultimately based on analysis of the best scientific and commercial data available to determine whether a species is no longer considered endangered or threatened, regardless of whether that information differs from the recovery plan.

Recovery plans may be revised to address continuing or new threats to the species as new substantive information becomes available. The recovery plan identifies site-specific management actions that will help recover the species, measurable criteria that set a trigger for eventual review of the species' listing status (e.g., under a 5-year review conducted by the Service), and methods for monitoring recovery progress. Recovery plans are intended to establish goals for long-term conservation of listed species and define criteria that are designed to indicate when the threats facing a species have been removed or reduced to such an extent that the species may no longer need the protections of the Act.

There are many paths to accomplishing recovery of a species, and recovery may be achieved without all criteria being fully met. For example, one or more criteria may be exceeded while other criteria may not yet be met. In that instance, we may determine that the threats are minimized sufficiently to delist. In other cases, recovery opportunities may be discovered that were not known when the recovery plan was finalized. These opportunities may be used instead of methods identified in the recovery plan. Likewise, information on the species may be learned that was not known at the time the recovery plan was finalized. The new information may change the extent that criteria need to be met for recognizing recovery of the species. Recovery of a species is a dynamic process requiring adaptive management that may, or may not, fully follow the guidance provided in a recovery plan.

The Oregon Desert Fishes Working Group has been proactive in improving the conservation status of the Foskett speckled dace. This group of Federal and State agency biologists, academicians, and others has met annually since 2007 to: (1) Share species' status information; (2) share results of new research; and (3) assess ongoing threats to the species.

The primary conservation objective in the Foskett speckled dace recovery plan is to enhance its long-term persistence through the conservation and enhancement of its limited range and habitat (USFWS 1998, entire). The recovery plan states that the Foskett speckled dace spring habitat is currently stable, but extremely restricted, and any alterations to the spring or surrounding activities that indirectly modify the spring could lead to the extinction of this species. While the recovery plan does not explicitly tie the recovery criteria to the five listing factors in section 4(a)(1) of the Act, our analysis of whether the species has achieved recovery is based on these five factors, which are discussed in the Summary of Factors Affecting the Species section, below. The recovery plan outlines three recovery criteria to assist in determining when the Foskett speckled dace has recovered to the point that the protections afforded by the Act are no longer needed, which are summarized below. A detailed review of the recovery criteria for the Foskett speckled dace is presented in the species' 5-year review (USFWS 2015), which is available online at https://ecos.fws.gov/docs/five_year_review/doc4758.pdf, at http://www.regulations.gov under Docket No. FWS-R1-ES-2017-0051, or by requesting a copy from our Oregon Fish and Wildlife Office (see FOR FURTHER INFORMATION CONTACT). The 2015 5-year review concluded that the risk of extinction has been substantially reduced, as threats have been managed, and recommended that the species be proposed for delisting (USFWS 2015, p. 29). The Foskett speckled dace has exceeded or met the following criteria for delisting described in the recovery plan:

Recovery Criterion 1: Long-term protection to habitat, including spring source aquifers, spring pools and outflow channels, and surrounding lands, is assured.

Criterion 1 has been met. In 1987, the BLM acquired and now manages the 160-ac (65-ha) parcel of land containing both Foskett and Dace springs (see below) and fenced 70 ac (28 ha) to exclude cattle from both springs, although the fence does not include the entire occupied habitat for Foskett speckled dace. The acquisition of this parcel of land by the BLM was specifically to provide conservation benefit to the Foskett speckled dace. We anticipate continued ownership of this habitat by the BLM in the future in part due to direction in the BLM's Lakeview District Resource Management Plan (RMP), which includes a management goal of retaining public land with high public resource values and managing that land for the purpose for which it was acquired (BLM 2003, p. 92). Additional support for continued ownership and management of the site by the BLM rests in the Federal Land Policy and Management Act of 1976 (FLPMA) (43 U.S.C. 1701 et seq.), as amended, which directs the BLM to manage public land to provide habitat for fish and aquatic wildlife and to protect the quality of water resources. Lastly, continued ownership and management by the BLM, and the protections afforded to Foskett and Dace springs from public ownership, is supported by the BLM's involvement as a cooperating agency in the development and implementation of the CMP finalized in August 2015 (USFWS et al. 2015).

While little information is available regarding spring flows or the status of the aquifer, the aquifer has limited capability to produce water for domestic or stock use (Gonthier 1985, p. 7). Given this, few wells exist in the Warner Valley and thus are not likely to impact Foskett or Dace springs. Recovery Criterion 1 addresses listing factor A (present or threatened destruction, modification, or curtailment of its habitat or range).

Recovery Criterion 2: Long-term habitat management guidelines are developed and implemented to ensure the continued persistence of important habitat features and include monitoring of current habitat and investigation for and evaluation of new spring habitats.

Criterion 2 has been met. With the understanding that the Foskett speckled dace is a conservation-reliant species, the BLM, ODFW, and Service developed a CMP (USFWS et al. 2015) that outlines long-term management actions necessary to provide for the continued persistence of habitats important to Foskett speckled dace. The CMP was agreed to, finalized, and signed by the Service, BLM, and ODFW in August 2015. The cooperating parties committed to the following actions: (1) Protect and manage Foskett speckled dace habitat; (2) enhance the habitat when needed; (3) monitor Foskett speckled dace populations and habitat; and (4) implement an emergency contingency plan as needed to address potential threats from the introduction of nonnative species, pollutants, or other unforeseen threats (USFWS et al. 2015, p. 3).

Although the CMP is a voluntary agreement among the three cooperating agencies, it is reasonable to conclude the plan will be implemented into the foreseeable future for multiple reasons. First, each of the cooperating agencies have established a long record of engagement in conservation actions for Foskett speckled dace, including the BLM's prior contributions through land acquisition and three decades of habitat management at Foskett and Dace springs; scientific research and monitoring by the ODFW dating back to 1997; and funding support, coordination of recovery actions, and legal obligations by the Service to monitor the species into the future under the Foskett speckled dace post-delisting monitoring plan. In addition, all three cooperating agencies are active participants in the Oregon Desert Fishes Working Group, an interagency group facilitated by the Service that meets annually to discuss recent monitoring and survey information for multiple fish species, including Foskett speckled dace, as well as to coordinate future monitoring and management activities.

Second, implementation of the CMP is already underway. The BLM has conducted quarterly site visits to determine the general health of the local spring environment using photo point monitoring techniques. In 2017, the BLM conducted an extensive habitat enhancement project by excavating approximately 300 yards (yds2) (251 m2) of vegetation and accumulated sediment in the Foskett Spring pool, stream, and portions of the wetland, resulting in a significant increase in open-water habitat. The BLM also provided funding to the ODFW to conduct population estimates of Foskett speckled dace. The ODFW provided personnel and technical assistance to the BLM for the above-mentioned excavation work in 2017, and they conducted an abundance estimate in 2017 to keep track of the long-term trend of the population. The Service provided personnel and technical assistance to the BLM for the 2017 excavation work and provided funding to the ODFW in 2015, 2016, and 2017 to conduct population estimates in Foskett and Dace springs.

Third, the conservation mission and authorities of these agencies authorize this work even if the species is delisted. For example, the Lakeview District BLM's Resource Management Plan (RMP) and BLM Manual 6840.06E both provide general management direction for Special Status Species, including the Foskett speckled dace. The FLPMA also directs the BLM to manage public land to provide habitat for fish and aquatic wildlife and to protect the quality of water resources. The ODFW's State of Oregon Wildlife Diversity Plan (Oregon Administrative Rule (OAR) 635-100-0080), Oregon Native Fish Conservation Policy (OAR 636-007-0502), and the Oregon Conservation Strategy (ODFW 2016) each provide protective measures for the conservation of native fish including Foskett speckled dace, which will remain on the ODFW's sensitive species list even we remove it from the Federal List. The Service is authorized to assist in the protection of fish and wildlife and their habitats under authorities provided by the Act (16 U.S.C. 1536), the Fish and Wildlife Coordination Act (16 U.S.C. 661 et seq.), and the Fish and Wildlife Act of 1956 (16 U.S.C. 742a-742j, not including 742d-l).

Fourth, there is a practical reason to anticipate implementation of the CMP into the foreseeable future: The CMP actions are technically not complicated to implement, and costs are relatively low. We also have confidence that the actions called for in the CMP will be effective in the future because they have already proven effective as evidenced by the information collected from recent habitat actions and associated monitoring (Scheerer et al. 2016, entire).

Lastly, if the CMP is not adhered to by the cooperating agencies or an evaluation by the Service suggests the habitat and population numbers are declining, the Service would evaluate the need to again add the species to the List (i.e., “relist” the species) under the Act. Taken together, it is therefore reasonable to conclude that the CMP will be implemented as anticipated and that the long-term recovery of Foskett speckled dace will be maintained and monitored adequately.

Criterion 2 has been further met by the establishment of a refuge population of Foskett speckled dace at nearby Dace Spring. As described earlier in this proposed rule, dating back to 1979, multiple unsuccessful attempts were made to create a refuge population of Foskett speckled dace at Dace Spring. More recent actions have been more successful. Habitat modification at Dace Spring by the BLM, first in 2009 and again in 2013, and translocation of dace from Foskett Spring to Dace Spring by the ODFW in 2010, 2011, 2013, and 2014, have resulted in a population estimated in 2017 to be 15,729 fish (Table 2, above). Natural recruitment was documented in 2014, 2015, and 2016 (Scheerer et al. 2016, p. 6).

While our proposal to delist Foskett speckled dace is not dependent on the existence of a second population, the redundancy of a second population of Foskett speckled dace, should it prove viable over the long term, provides increased resiliency to the species' overall status and may reduce vulnerability to stochastic events and any future threats that may appear on the landscape.

Recovery Criterion 3: Research into life history, genetics, population trends, habitat use and preference, and other important parameters is conducted to assist in further developing and/or refining criteria 1 and 2 above.

This criterion has been met through population surveys by the ODFW and the Service, and investigations into the genetic relatedness of Foskett speckled dace in comparison with other nearby dace populations. In 1997, the Service contracted the ODFW to conduct an abundance survey and develop a population estimate for the Foskett speckled dace. In 2005, 2007, 2009, and 2011 through 2017, the Service again contracted the ODFW to obtain mark-recapture population estimates for both Foskett and Dace springs. At the former, habitat-specific population estimates were developed. Captured fish were measured to develop length-frequency histograms to document reproduction. In addition to collecting abundance data, ODFW staff mapped wetland habitats, monitored vegetation, and measured temperature and water quality at both springs during each survey. Together, the population estimates and habitat mapping confirmed the relationship between open-water habitat and fish abundance (Sheerer et al. 2016, p. 8). Water quality monitoring highlighted the need for habitat enhancement at Dace Springs. Thus, these data assisted in further developing and/or refining recovery criteria 1 and 2.

Section 4 of the Act and its implementing regulations (50 CFR part 424) set forth the procedures for listing species, reclassifying species, or removing species from listed status. “Species” is defined by the Act as including any species or subspecies of fish or wildlife or plants, and any distinct vertebrate population segment of fish or wildlife that interbreeds when mature (16 U.S.C. 1532(16)). A species may be determined to be an endangered or threatened species because of any one or a combination of the five factors described in section 4(a)(1) of the Act: (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. We must consider these same five factors in delisting a species. We may delist a species according to 50 CFR 424.11(d) if the best available scientific and commercial data indicate that the species is neither endangered nor threatened for the following reasons: (1) The species is extinct; (2) the species has recovered and is no longer endangered or threatened; and/or (3) the original scientific data used at the time the species was classified were in error.

A recovered species is one that no longer meets the Act's definition of endangered or threatened. Determining whether a species is recovered requires consideration of the same five categories of threats specified in section 4(a)(1) of the Act. For species that are already listed as endangered or threatened, this analysis of threats is an evaluation of both the threats currently facing the species and the threats that are reasonably likely to affect the species in the foreseeable future following delisting or downlisting (i.e., reclassification from endangered to threatened) and the removal or reduction of the Act's protections.

A species is “endangered” for purposes of the Act if it is in danger of extinction throughout all or a “significant portion of its range” and is “threatened” if it is likely to become endangered within the foreseeable future throughout all or a “significant portion of its range.” The word “range” in the significant portion of its range phrase refers to the range in which the species currently exists. For the purposes of this analysis, we will evaluate whether the currently listed species, the Foskett speckled dace, should be considered endangered or threatened throughout all of its range. Then we will consider whether there are any significant portions of the Foskett speckled dace's range where the species is in danger of extinction or likely to become so within the foreseeable future.

The Act does not define the term “foreseeable future.” For the purpose of this proposed rule, we defined the “foreseeable future” to be the extent to which, given the amount and substance of available data, we can anticipate events or effects, or reliably extrapolate threat trends, such that we reasonably believe that reliable predictions can be made concerning the future as it relates to the status of the Foskett speckled dace.

Based on population monitoring that began in 1997 by the ODFW, it has been established that the Foskett speckled dace population is variable, and the variability is directly linked to the amount of open-water habitat (Scheerer et al. 2016, p. 8). There is no evidence to indicate that this relationship will change in the future. There also is no reason to expect local changes to ground water levels (see Factor A discussion, below), and climate changes modeled over the next 30 plus years (i.e., through 2049) are not predicted to impact the Foskett speckled dace (see Factor E discussion, below).

Based on 30 years of the BLM owning and managing habitat at Foskett and Dace springs, 20 years of population monitoring by the ODFW, modeling of climate change impacts that suggest little change in environmental conditions over the next 30 years in the Warner Lakes Basin, and agency commitments in the CMP to manage habitat and monitor population status of the Foskett speckled dace by the three agency cooperators, we determine it is reasonable to define the foreseeable future for the Foskett speckled dace as 30 years. In considering what factors might constitute threats, we must look beyond the exposure of the species to a particular factor to evaluate whether the species may respond to the factor in a way that causes actual impacts to the species. If there is exposure to a factor and the species responds negatively, the factor may be a threat, and during the status review, we attempt to determine how significant a threat it is. The threat is significant if it drives or contributes to the risk of extinction of the species, such that the species warrants listing as endangered or threatened as those terms are defined by the Act. However, the identification of factors that could impact a species negatively may not be sufficient to compel a finding that the species warrants listing. The information must include evidence sufficient to suggest that the potential threat is likely to materialize and that it has the capacity (i.e., it should be of sufficient magnitude and extent) to affect the species' status such that it meets the definition of endangered or threatened under the Act.

The Service listed the Foskett speckled dace as threatened in 1985 (50 FR 12302; March 28, 1985), due to the species' very restricted range, its low abundance, and extremely restricted and vulnerable habitat which was being modified. Adverse factors that were identified in the final listing rule included groundwater pumping for irrigation, excessive trampling of the habitat by livestock, channeling of the springs for agricultural purposes, other mechanical modifications of the aquatic ecosystem, and livestock water uses. The vulnerability of the habitat was accentuated by its very small size and a water flow rate of less than 0.5 cubic feet (ft3) per second (0.01 cubic meters (m3) per second) (50 FR 12304).

Trampling of the wetland habitat was evident at the time of listing. Grazing cattle affects the form and function of stream and pool habitat by hoof shearing, compaction of soils, and mechanical alteration of the habitat. Since the listing, the BLM acquired the property containing Foskett and Dace springs by land exchange in 1987, and fenced 70 ac (28 ha) of the 160-ac (65-ha) parcel to exclude cattle from both Foskett and Dace springs as well as the two recently constructed ponds. While the exclusion of cattle likely improved water quality and habitat stability, it may have played a role in increasing the extent of encroaching aquatic vegetation.

Although most of the habitat was excluded from grazing, a portion of the occupied habitat was not included in the fenced area. Examining the population trends within this unfenced habitat illustrates the variability of the population and the ability of the population to respond to management. In 1997, 97 percent of the estimated population of Foskett speckled dace was located in a shallow open-water pool in the cattail marsh (hereafter marsh) outside of the Foskett Spring exclosure fence. This marsh was dry in 1989 (Dambacher et al. 1997, no pagination), illustrating the variability in habitat conditions of this wetland system.

In 2007, 14 percent of the estimated population of 2,984 Foskett speckled dace was located in the marsh outside of the exclusion fence (Scheerer and Jacobs 2007, p. 7), and trampling of the wetland habitat by cattle was evident (USFWS 2015, p. 19).

In 2011 and 2012, no Foskett speckled dace were detected in the marsh outside of the exclusion fence (Scheerer et al. 2014, p. 6). In response, the BLM conducted a controlled burn in 2013; and in 2013 and 2014, they excavated open-water habitat in the marsh. In 2013, over 13,000 Foskett speckled dace were detected, with nearly 10,000 being in the restored marsh (Scheerer et al. 2013, p. 9). In 2014, nearly 25,000 Foskett speckled dace were detected, with nearly 19,000 being in the restored marsh (Scheerer et al. 2014, p. 9). Unfortunately, the marsh and excavated pools outside the fence quickly grew dense with vegetation, and the excavated pool filled in with sediment; it is unclear if the pasture was rested during this period. Nonetheless, the positive relationship between dace abundance and open water (Scheerer et al. 2016, p. 8) illustrates the need for periodic vegetation removal to maintain appropriate habitat for the Foskett speckled dace (Scheerer et al. 2014, p. 9).

Sometime in fall and/or winter of 2014 to 2015, unauthorized cattle grazing occurred in both the Foskett and Dace spring exclosures (Leal 2015, pers. comm.). Cattle accessed the site after a gate was removed illegally. Based on photos provided by the BLM, it appears the vegetation utilization was sporadic although heavy in some areas, but damage to Foskett and Dace springs' streambanks appeared inconsequential. The BLM has replaced the gate and will continue to maintain the fence per their commitments outlined in the CMP (USFWS et al. 2015). Although cattle did access the Foskett and Dace spring sites, over time these exclosures have sufficiently protected Foskett and Dace springs from damage from livestock grazing. The quarterly site visits committed to by the BLM in the CMP will increase the ability to detect and remedy any future issues with open gates or downed fences. However, due to the remoteness of the site it is possible unauthorized grazing within the enclosures may infrequently occur in the foreseeable future. Given the results of previous monitoring of grazing within the enclosures we do not view grazing in the enclosure as a threat in the foreseeable future.

Field surveys conducted from 2005 through 2015 at Foskett Spring did not reveal any sign of artificial channeling of water or mechanized impacts beyond the remnants of historical activities (i.e., two small rock cribs and side-casting of material around the spring). The habitat at Foskett Spring is extremely limited, and past encroachment by aquatic vegetation has reduced the area of open water. The decline in abundance of Foskett speckled dace from 1997 to 2011 (see Table 1, above) was likely due to the reduction in open-water habitat (Scheerer and Jacobs 2005, pp. 5, 7; Scheerer et al. 2012, p. 8). Management to increase open-water habitat, while very effective in the short term, needs to be periodically repeated as sediment infilling and subsequent growth of aquatic vegetation is continuous. As such, periodic management will be needed in perpetuity to maintain high-quality habitat for the Foskett speckled dace.

The ODFW recommended that restoration efforts to increase open-water habitat are needed to increase carrying capacity for Foskett speckled dace (Scheerer and Jacobs 2007, p. 9; Scheerer and Jacobs 2009, pp. 5-6). Restoration efforts were conducted at Foskett Spring in 2013 and 2014, and resulted in a 164 percent increase in open-water habitat and a peak population estimate in 2014 of 24,888 individuals (Scheerer et al. 2016, pp. 8-9). Periodic habitat maintenance at Foskett and Dace springs will be necessary to maintain open-water habitat for the Foskett speckled dace. The BLM, ODFW, and Service have committed to periodic habitat maintenance in the CMP signed in August 2015. As noted earlier in this proposed rule, the CMP identifies actions such as protection of the aquatic habitat and surrounding land; management of the habitat to ensure continued persistence of important habitat features; monitoring of the fish populations and habitat; and implementation of an emergency contingency plan in case of nonnative introduction, pollutants, or other unforeseen threats. Implementation of these actions will significantly reduce or eliminate threats related to destruction, modification or curtailment of the Foskett speckled dace's habitat or range. It is reasonable to conclude the CMP will be implemented into the foreseeable future for the reasons summarized in the Recovery Planning and Recovery Criteria discussion, above.

Mechanical modification and livestock watering uses are no longer considered a threat since the BLM acquired the property containing both Foskett and Dace springs and constructed a fence to exclude cattle from a majority of the habitat. We anticipate continued monitoring and maintenance of the exclusion fence into the foreseeable future by the BLM based on their commitments in the CMP and their long record of conservation management of habitat at Foskett and Dace springs.

Streams and lakes in and around the Warner Basin have produced a variety of unconsolidated Pliocene to Holocene sediments that have accumulated and contribute to the structure of the aquifer (Gonthier 1985, p. 17). Wells in other portions of the Warner Basin utilizing these Pleistocene lake bed aquifers tend to have low to moderate yields. Pleistocene lake bed deposits of clay, sand, and diatomaceous earth (i.e., soft, crumbly soil formed from the fossil remains of algae) have a thickness of up to 200 ft (60 m) (Gonthier 1985, pp. 38-39; Woody 2007, p. 64). Hydraulic conductivity (i.e., ease with which a fluid can move) in these sediments ranges from 25 to 150 ft per day (7.6 to 46 m per day); while transmissivity (horizontal groundwater flow) in valleys in this sediment-filled basin and range region of Oregon, such as the Warner Valley aquifer system, ranges from 1,000 to 15,000 square feet (ft2) (92.90 to 1,393.55 square meters (m2)) per day (Gonthier 1985, p. 7). This is considered a poor quality aquifer with limited capability to produce water for domestic or stock use (Gonthier 1985, p. 7). Therefore, few wells exist in the Warner Valley and are not likely to impact Foskett or Dace spring.

We have no evidence of groundwater pumping in the area. A query of the Oregon Water Resources Department database for water rights did not reveal any wells within 5 mi (8 km) of Foskett Spring. The closest well listed in the database is 5.9 mi (9.5 km) away along Twentymile Creek. No other wells were located closer to Foskett Spring.

There are no Oregon Water Resources Department records of water rights in the vicinity of either spring. Any development of water resources and filing of water rights on BLM lands would require a permit (BLM 2003), and we anticipate the likelihood of the BLM receiving a permit request related to a new water right in the future would be low. Although groundwater pumping was identified as a potential threat at the time of listing, we have determined this is not currently a threat and is not anticipated to be a threat in the foreseeable future.

To assess the effects of management on reducing the encroachment of aquatic vegetation at Foskett Spring and the response of fish to increased open water, the BLM conducted a controlled burn in 2013 in the tule and cattail marsh to reduce plant biomass (Scheerer et al. 2014, p. 9). In 2013 and 2014, the BLM excavated pools to increase open-water habitat. The response of dace to these restoration efforts was remarkable with the 2014 population estimate being 24,888 (19,250-31,500; 95 percent confidence interval) fish, and most of these fish occupied the restored marsh areas. The population data indicate that fluctuations in abundance and population trends are tied to the availability of open water (Scheerer et al. 2016, p. 8) and illustrate the need for periodic management to maintain open-water habitat.

Habitat restoration at Dace Spring followed by translocations of dace has resulted in a second subpopulation of Foskett speckled dace. Two ponds were created and connected to the outlet channel of Dace Spring, and Foskett speckled dace were translocated to the ponds. The 2016 population estimate was 1,964 fish, which is a substantial increase from the 2013 estimate of 34 fish. The estimate includes the 200 dace that were transplanted from Foskett Spring in 2013 (Scheerer et al. 2014, p. 6). The 2017 population estimate in Dace Spring was 15,729 (CI: 12,259-58,479) (Scheerer et. al. 2017, p. 6). Although the broad confidence limits infer low precision, even the low-end of the confidence limit (12,259) represents a significant increase over the 2016 estimate of 1,964 individuals. Reproduction at Dace Spring was documented by the ODFW in 2014 (Scheerer et al. 2014, p. 6) and in 2015 (Scheerer et al. 2015, p. 5). The ODFW is evaluating the long-term status of the Dace Spring population. Although results are positive, it is premature to conclude if establishment of this refuge population will be successful over the long term. While our proposal to delist Foskett speckled dace is not dependent on establishment of a refuge population, the redundancy of a second population of Foskett speckled dace at Dace Spring, should it prove viable over the long term, provides increased resiliency to the species' overall status and may reduce vulnerability to stochastic events and any future threats that may appear on the landscape.

Securing long-term habitat protections (Recovery Criterion 1) and developing and implementing long-term management techniques (Recovery Criterion 2) are important recovery criteria for this species, and many of the factors discussed above fulfill these criteria, which also were identified in the most recent 5-year review (USFWS 2015, entire). Acquisition of the property by the BLM has facilitated the recovery of Foskett speckled dace. The recent habitat enhancement work and the commitments made in the CMP provide assurance that with minor oversight and continued habitat enhancement by the BLM and ODFW, the species is not likely to become an endangered species in the foreseeable future. Although the CMP is voluntary, it is reasonable to conclude, for reasons summarized in the Recovery Planning and Recovery Criteria discussion above, that the plan will be implemented by all three cooperating agencies for the foreseeable future.

Based on the best available information and confidence that current management will continue into the future as outlined in the CMP, we conclude that the present or threatened destruction, modification, or curtailment of habitat or range does not constitute a substantial threat to the Foskett speckled dace, now or in the foreseeable future.

Overutilization for commercial, recreational, scientific, or educational purposes was not a factor in listing and, based on the best available information, we conclude that it does not constitute a substantial threat to the Foskett speckled dace now or in the foreseeable future.

The original listing in 1985 states, “There are no known threats to . . . Foskett speckled dace from disease or predation” (50 FR 12304; March 28, 1985). During the 2005 and 2011 population surveys, the ODFW biologist noted that: “[t]he fish appear to be in good condition with no obvious external parasites” (Scheerer and Jacobs 2005, p. 7; Scheerer 2011, p. 6). During the 2007 and 2009 population surveys, the ODFW noted that the Foskett speckled dace appeared healthy and near carrying capacity for the available habitat at that time (Scheerer and Jacobs 2007, p. 8; 2009, p. 5). We have no additional information that would change this conclusion.

The CMP includes quarterly field visits to Foskett and Dace springs to determine general health of the local spring environment and to identify threats that necessitate implementation of the emergency contingency plan, which could include the detection of disease and introduced predators. The emergency contingency plan describes steps to be taken to secure Foskett speckled dace in the event their persistence is under immediate threat (e.g., from introduction of nonnative fish that may threaten them due to predation or act as a disease vector).

Based on the best available information, we conclude that disease and predation do not constitute substantial threats to the Foskett speckled dace now or in the foreseeable future.

Under this factor, we examine whether existing regulatory mechanisms are inadequate to address the threats to the Foskett speckled dace discussed under other factors. Section 4(b)(1)(A) of the Act requires the Service to take into account “those efforts, if any, being made by any State or foreign nation, or any political subdivision of a State or foreign nation, to protect such species.” In relation to Factor D under the Act, we interpret this language to require us to consider relevant Federal, State, and Tribal laws, regulations, and other such mechanisms that may minimize any of the threats we describe in the threats analyses under the other four factors, or otherwise enhance conservation of the species. We give strongest weight to statutes and their implementing regulations and to management direction that stems from those laws and regulations; an example would be State governmental actions enforced under a State statute or constitution, or Federal action under statute.

For currently listed species that are being considered for delisting, we consider the adequacy of existing regulatory mechanisms to address threats to the species absent the protections of the Act. We examine whether other regulatory mechanisms would remain in place if the species were delisted, and the extent to which those mechanisms will continue to help ensure that future threats will be reduced or minimized.

The 1985 listing rule states, “The State of Oregon lists . . . Foskett speckled dace as [a] “fully protected subspecies” under the Oregon Department of Fish and Wildlife regulations. These regulations prohibit taking of the fishes without an Oregon scientific collecting permit. However, no protection of the habitat is included in such a designation and no management or recovery plan exists [for the Foskett speckled dace]” (50 FR 12304; March 28, 1985).

The Foskett speckled dace was listed as threatened by the State of Oregon in 1987, as part of the original enactment of the Oregon Endangered Species Act (Oregon ESA). The listing designated Foskett speckled dace as a “protected species” and prohibited take or possession unless authorized by a permit. The Oregon ESA prohibits the “take” (kill or obtain possession or control) of State-listed species without an incidental take permit. The Oregon ESA applies to actions of State agencies on State-owned or -leased land, and does not impose any additional restrictions on the use of Federal land. In recognition of the successful conservation actions and future management commitments for the Foskett speckled dace and its habitat, the Oregon Fish and Wildlife Commission (OFWC) ruled to remove Foskett speckled dace from the State List of Threatened and Endangered Species on April 21, 2017.

The ODFW's Native Fish Conservation Policy calls for the conservation and recovery of all native fish in Oregon (ODFW 2002), including Foskett speckled dace, now listed as sensitive on the ODFW's sensitive species list. The Native Fish Conservation Policy requires that the ODFW prevent the serious depletion of any native fish species by protecting natural ecological communities, conserving genetic resources, managing consumptive and non-consumptive fisheries, and using hatcheries responsibly so that naturally produced native fish are sustainable (OAR 635-007-0503). The policy is implemented through the development of collaborative conservation plans for individual species management units that are adopted by the OFWC. To date, the ODFW has implemented this policy by following the federally adopted recovery plan and will continue to conserve Foskett speckled dace according to the State rules for conserving native fish and more specifically the commitments made by the ODFW in the CMP. The State of Oregon Wildlife Diversity Plan (OAR 635-100-0080), Oregon Native Fish Conservation Policy (OAR 636-007-0502), and the Oregon Conservation Strategy (ODFW 2016) provide additional authorities and protective measures for the conservation of native fish, including the Foskett speckled dace.

Additionally, the CMP, prepared jointly and signed by the ODFW, BLM, and Service, will guide future management and protection of the Foskett speckled dace, regardless of its State or Federal listing status. The CMP, as explained in more detail in the Recovery Planning and Recovery Criteria discussion above, identifies actions to be implemented by the Service, BLM, and ODFW to provide for the long-term conservation of the Foskett speckled dace (Recovery Criterion 2).

The approach of developing an interagency CMP for the Foskett speckled dace to promote continued management post-delisting is consistent with a “conservation reliant species,” described by Scott et al. (2005, pp. 384-385) as those that have generally met recovery criteria but require continued active management to sustain the species and associated habitat in a recovered condition. A key component of the CMP is continued management of aquatic vegetation, as necessary, to promote open-water habitat important to the species' long-term viability.

Finally, the BLM manages the 160-ac (65-ha) parcel of land containing the Foskett and Dace spring sites consistent with the Lakeview District's RMP (BLM 2003), which provides general management guidelines for Special Status Species, and specifically states that the BLM will manage the Foskett speckled dace and its habitat consistent with the species' 1998 recovery plan.

In our discussion under Factors A, B, C, and E, we evaluate the significance of threats as mitigated by any conservation efforts and existing regulatory mechanisms. Regulatory mechanisms may reduce or eliminate the impacts from one or more identified threats. Where threats exist, we analyze the extent to which conservation measures and existing regulatory mechanisms address the specific threats to the species. The existence of regulatory mechanisms like the Lakeview District BLM's RMP, State conservation measures such as the Oregon Native Fish Conservation Strategy, along with the other authorities supporting each cooperating agency's entrance into the CMP agreement, reduce risk to the Foskett speckled dace and its habitat. As previously discussed, conservation measures initiated by the State of Oregon and the BLM under the CMP manage potential threats caused by activities such as illegal livestock grazing and trampling. For the reasons discussed above, we anticipate that the conservation measures initiated under the CMP will continue through at least the foreseeable future, which we have defined as 30 years. Consequently, we find that conservation measures, along with existing State and Federal regulatory mechanisms, are adequate to address these specific threats absent protections under the Act.

The original listing rule in 1985 states, “Additional threats include the possible introduction of exotic fishes into the springs, which could have disastrous effects on the endemic. Foskett speckled dace, either through competitive exclusion, predation, or introduced disease. Because these fishes occur in such limited and remote areas, vandalism also poses a potential threat” (50 FR 12304; March 28, 1985).

No exotic fish introduction or acts of vandalism have occurred since the time of listing. The Foskett speckled dace is vulnerable to invasive or nonnative species (aquatic plants, invertebrates, or fish species). However, this vulnerability is reduced in part due to the remoteness of the site and the lack of recreational or other reasons for the public to visit the area. It is also reduced by the establishment of a refuge population in Dace Spring. While the risk of introductions is low, the potential impact is high due to the highly restricted distribution of the Foskett speckled dace. The CMP includes quarterly monitoring and an emergency contingency plan to address potential threats from introduction of nonnative species or pollutants. Although the introduction of an exotic species represents a potential threat to the Foskett speckled dace, we believe the risk is low based on the isolation of the site, the minimal visitor use of the springs, the lack of connectivity to other waterways, and the monitoring agreed to and occurring in accordance with the CMP.

A species' habitat requirements, population size, and dispersal abilities, among other factors, help to determine its vulnerability to extinction. Key risk factors include small population size, dependence on a rare habitat type, inability to move away from sources of stress or habitat degradation, restrictions to a small geographic area, and vulnerability to catastrophic loss resulting from random or localized disturbance (Williams et al. 2005, p. 27). The Service listed the Foskett speckled dace in 1985 (50 FR 12302; March 28, 1985), in part due to these factors. This species had a very restricted natural range, it occurred in low numbers in a small spring that was extremely vulnerable to destruction or modification due to its small size, and a water flow rate of less than 0.5 ft3 per second (0.01 m3 per second). Additionally, the habitat upon which the Foskett speckled dace depends is fragile and has been affected by past livestock grazing and mechanical modification.

Surveys by the ODFW from 2005 through 2017 have documented that the number of Foskett speckled dace vary considerably through time and by habitat type (see Table 1, above), and available open-water habitat, which fluctuates annually, appears to be the key factor in determining the population size of this species (Scheerer et al. 2016, p. 8). The lowest population estimate was 751 fish (using the Lincoln-Petersen model) in 2011, and no individuals were documented in the cattail marsh that year (see Table 1, above). Management to create more open water in the marsh habitat at Foskett Spring was initiated in 2012 and completed in 2014, increasing the amount of open-water habitat by 150 percent, to approximately 358 yds2 (300 m2) (Scheerer et al. 2016, pp. 7-9). The increase in fish abundance in 2013 through 2015 was notable, especially in the two habitats where management occurred (see Table 1, above).

Based on the relationship between the amount of open water and the number of Foskett speckled dace, the CMP includes removing encroaching vegetation to enhance open-water habitat, and excavating open-water pools. These activities will be conducted every 5 to 10 years or as determined necessary to maintain open-water habitat to support healthy populations of Foskett speckled dace.

Additionally, the ongoing effort by the BLM and the Service to restore Dace Spring provides the potential for a refuge population of Foskett speckled dace. Two ponds have been created and connected to the outlet channel of Dace Spring; Foskett speckled dace have been translocated to the ponds (see Table 2, above). Reproduction and an associated population increase was documented by the ODFW in 2014, 2015, 2016, and 2017. The ODFW is currently evaluating the status of the Foskett speckled dace in the new ponds, and, although results are positive, it is premature to predict long-term viability of the Dace Spring population. While our proposal to delist Foskett speckled dace is not dependent on the establishment of a refuge population, the redundancy of a second population of Foskett speckled dace provides additional robustness to the species' overall status.

This species is known to occupy only Foskett Spring and Dace Spring. Due to the small size of Foskett Spring and the lack of connectivity to other aquatic habitat, there is no opportunity for the Foskett speckled dace to disperse away from stress, habitat degradation, or disturbance factors. There are no streams or drainages or other aquatic connections that provide alternate habitat or allow for emigration. As noted previously in this proposed rule, the BLM created two new ponds connected to the outlet channel of Dace Spring, and the ODFW has introduced Foskett speckled dace into these ponds in an attempt to establish a refuge population.

The Foskett speckled dace is restricted to one small spring and has been translocated to two small, constructed ponds at an adjacent spring. The available open-water habitat at Foskett Spring is naturally limited, and encroaching aquatic vegetation periodically limits suitable habitat. However, removing sediments and vegetation to increase open-water habitat is a proven conservation measure that results in a significant increase in fish abundance. Because of its restricted natural distribution and dependence on a single water source, the Foskett speckled dace is more vulnerable to threats that may occur than species that are more widely distributed. While our proposal to delist Foskett speckled dace is not dependent on the existence of a second population, the redundancy of a second population of Foskett speckled dace, should it prove viable over the long term, increases the resiliency of the species and may reduce vulnerability to stochastic events and any future threats that may appear on the landscape.

Additionally, the CMP provides for management of Foskett Spring and Dace Spring areas for the long-term conservation of the Foskett speckled dace. Although it is difficult to plan for and address catastrophic events, quarterly site visits and habitat and population surveys conducted regularly will facilitate the timely detection of changes to the habitat and as well as other unforeseen future threats.

We also analyzed the effects of changing climate to the Foskett speckled dace and its habitat. The terms “climate” and “climate change” are defined by the Intergovernmental Panel on Climate Change (IPCC). “Climate” refers to the mean and variability of different types of weather conditions over time, with 30 years being a typical period for such measurements, although shorter or longer periods also may be used (IPCC 2007, p. 78). The term “climate change” thus refers to a change in the mean or variability of one or more measures of climate (e.g., temperature or precipitation) that persists for an extended period, typically decades or longer, whether the change is due to natural variability, human activity, or both (IPCC 2007, p. 78). Changes in climate can have direct or indirect effects on species, may be positive, neutral, or negative, and they may change over time, depending on the species and other relevant considerations such as the effects of interactions of climate with other variables (e.g., habitat fragmentation) (IPCC 2007, pp. 8-14, 18-19). In our analyses, we used our expert judgment to weigh relevant information, including uncertainty, in considering the effects of climate change on the Foskett speckled dace.

Global climate projections are informative and, in some cases, the only or the best scientific information available for us to use. However, projected changes in climate and related impacts can vary substantially across and within different regions of the world (IPCC 2007, pp. 8-12). Therefore, we use “downscaled” projections when they are available and have been developed through appropriate scientific procedures because such projections provide higher-resolution information that is more relevant to spatial scales used for analyses of a given species (see Glick et al. 2011, pp. 58-61, for a discussion of downscaling).

Downscaled projections were available for our analysis of the Foskett speckled dace from the U.S. Geological Survey (USGS) (https://www2.usgs.gov/climate_landuse/clu_rd/nccv/viewer.asp). The National Climate Change Viewer is based on the mean of 30 models which can be used to predict changes in air temperature for the Warner Lakes basin in Lake County, Oregon. The models predict an increase in the mean maximum air temperature of 3.2 °F (1.8 °C) and an increase in the mean annual minimum air temperature of 3.1 °F (1.7 °C) in the 25-year period from 2025 to 2049. Mean precipitation is not predicted to change, but annual snow accumulation is predicted to decrease by 0.4 in (10.16 millimeters (mm)) during the same period.

Over the ensuing 25-year period from 2050 to 2074, the mean annual maximum air temperature is predicted to increase by 4.9 degrees °F (2.7 °C), and the change in mean annual minimum air temperature is predicted to increase by 4.3 °F (2.4 °C). The 2050 to 2074 model predicts no change in the mean annual precipitation and annual snow accumulation is predicted to decrease by 0.4 in (9.6 mm) for the Warner Lakes basin (Alder and Hostetler 2013, entire).

Increase in the ambient air temperature may cause slight warming of Foskett Spring surface water. This may reduce the overall amount of habitat available for Foskett speckled dace due to an increase in water temperatures, especially at the lower end of the outlet stream and marsh habitat; however, Foskett speckled dace prefer the spring and pool habitats through the stream portion of the outlet channel. Changes to precipitation, aquifer recharge, or vegetative community around Foskett Spring as a result of climate change would not likely have an impact on Foskett speckled dace. The occupied habitat is fed from a spring that has a fairly consistent temperature of approximately 65 °F (18 °C), and the vegetative community is not likely to change from the predicted temperature increases.

The original listing rule in 1985 (50 FR 12302; March 28, 1985) identified introduction of exotic fishes as a potential threat. However, in over 30 years of monitoring, no exotic fishes have been detected, and there is no evidence of attempts to introduce exotic fish species. Other potential threats such as small population size, dependence on a specific or rare habitat type, the inability to disperse, restriction to a small geographic area, vulnerability to stochastic events, and climate change also have been assessed and determined to be minimal. Based on the best available information, we conclude that other natural or manmade factors do not constitute a substantial threat to the Foskett speckled dace now or in the foreseeable future.

Together, the factors discussed above could result in cumulative impacts to the Foskett speckled dace. For example, effects of cattle grazing directly on the habitat in combination with mechanical disturbances could result in a greater overall impact to Foskett speckled dace habitat. Although the types, magnitude, or extent of cumulative impacts are difficult to predict, we are not aware of any combination of factors that have not already been, or would not be, addressed through ongoing conservation measures that are expected to continue post-delisting and into the future, as described above. The best scientific and commercial data available indicate that the species is relatively abundant, and that the factors are not currently resulting, nor are they anticipated to cumulatively result, in reductions in Foskett speckled dace numbers and/or to the species' habitat.

Section 4 of the Act (16 U.S.C. 1533), and its implementing regulations at 50 CFR part 424, set forth the procedures for determining whether a species is an endangered species or threatened species and should be included on the Federal Lists of Endangered and Threatened Wildlife and Plants (listed). The Act defines an endangered species as any species that is “in danger of extinction throughout all or a significant portion of its range” and a threatened species as any species “that is likely to become endangered throughout all or a significant portion of its range within the foreseeable future.”

On July 1, 2014, we published a final policy interpreting the phrase “significant portion of its range” (SPR) (79 FR 37578). In our policy, we interpret the phrase “significant portion of its range” in the Act's definitions of “endangered species” and “threatened species” to provide an independent basis for listing a species in its entirety; thus there are two situations (or factual bases) under which a species would qualify for listing: A species may be in danger of extinction or likely to become so in the foreseeable future throughout all of its range; or a species may be in danger of extinction or likely to become so throughout a significant portion of its range. If a species is in danger of extinction throughout an SPR, it, the species, is an “endangered species.” The same analysis applies to “threatened species.”

Our final policy addresses the consequences of finding a species is in danger of extinction in an SPR, and what would constitute an SPR. The final policy states that (1) if a species is found to be endangered or threatened throughout a significant portion of its range, the entire species is listed as an endangered species or a threatened species, respectively, and the Act's protections apply to all individuals of the species wherever found; (2) a portion of the range of a species is “significant” if the species is not currently endangered or threatened throughout all of its range, but the portion's contribution to the viability of the species is so important that, without the members in that portion, the species would be in danger of extinction, or likely to become so in the foreseeable future, throughout all of its range; (3) the range of a species is considered to be the general geographical area within which that species can be found at the time the Service or the National Marine Fisheries Service makes any particular status determination; and (4) if a vertebrate species is endangered or threatened throughout an SPR, and the population in that significant portion is a valid DPS, we will list the DPS rather than the entire taxonomic species or subspecies.

The SPR policy is applied to all status determinations, including analyses for the purposes of making listing, delisting, and reclassification determinations. The procedure for analyzing whether any portion is an SPR is similar, regardless of the type of status determination we are making. The first step in our assessment of the status of a species is to determine its status throughout all of its range. Depending on the status throughout all of its range, we will subsequently examine whether it is necessary to determine its status throughout a significant portion of its range. If we determine that the species is in danger of extinction, or likely to become so in the foreseeable future, throughout all of its range, we list the species as an endangered (or threatened) species and no SPR analysis will be required. The same factors apply whether we are analyzing the species' status throughout all of its range or throughout a significant portion of its range.

As described in our policy, once the Service determines that a “species”—which can include a species, subspecies, or distinct population segment (DPS)—meets the definition of “endangered species” or “threatened species,” the species must be listed in its entirety and the Act's protections applied consistently to all individuals of the species wherever found (subject to modification of protections through special rules under sections 4(d) and 10(j) of the Act).

Thus, the first step in our assessment of the status of a species is to determine its status throughout all of its range. Depending on the status throughout all of its range, we will subsequently examine whether it is necessary to determine its status throughout a significant portion of its range. Under section 4(a)(1) of the Act, we determine whether a species is an endangered species or threatened species because of any of the following: (A) The present or threatened destruction, modification, or curtailment of its habitat or range; (B) Overutilization for commercial, recreational, scientific, or educational purposes; (C) Disease or predation; (D) The inadequacy of existing regulatory mechanisms; or (E) Other natural or manmade factors affecting its continued existence. These five factors apply whether we are analyzing the species' status throughout all of its range or throughout a significant portion of its range.

We conducted a review of the status of Foskett speckled dace and assessed the five factors to evaluate whether Foskett speckled dace is in danger of extinction, or likely to become so in the foreseeable future, throughout all of its range. We found that, with periodic management, Foskett speckled dace populations are persistent but cyclical within a range of 751 to 24,888 individuals over the last decade (Table 1). During our analysis, we found that impacts believed to be threats at the time of listing are either not as significant as originally anticipated or have been eliminated or reduced since listing, and we do not expect any of these conditions to substantially change post-delisting and into the foreseeable future, nor do we expect the effects of climate change to affect this species. The finalization of the CMP acknowledges the “conservation-reliant” nature of Foskett speckled dace and the need for continued management of the habitat at Foskett Spring and affirms the BLM, ODFW, and Service will continue to carry out long-term management actions. Long-term management actions and elimination and reduction of threats apply to all populations of the species, such that both populations are secure.

We conclude that the previously recognized impacts to the Foskett speckled dace no longer are a threat to the species. In order to make this conclusion, we analyzed the five threat factors used in making Endangered Species Act listing (and delisting) decisions.

Because we determined that Foskett speckled dace is not in danger of extinction or likely to become so in the foreseeable future throughout all of its range, we will consider whether there are any significant portions of its range in which the species is in danger of extinction or likely to become so. To undertake this analysis, we first identify any portions of the species' range that warrant further consideration. The range of a species can theoretically be divided into portions in an infinite number of ways. To identify only those portions that warrant further consideration, we determine whether there are any portions of the species' range: (1) That may be “significant,” and (2) where the species may be in danger of extinction or likely to become so in the foreseeable future. We emphasize that answering these questions in the affirmative is not equivalent to a determination that the species should be listed—rather, it is a step in determining whether a more-detailed analysis of the issue is required.

If we identify any portions (1) that may be significant and (2) where the species may be in danger of extinction or likely to become so in the foreseeable future, we conduct a more thorough analysis to determine whether both of these standards are indeed met. The determination that a portion that we have identified does meet our definition of significant does not create a presumption, prejudgment, or other determination as to whether the species is in danger of extinction or likely to become so in the foreseeable future in that identified SPR. We must then analyze whether the species is in danger of extinction or likely to become so in the SPR. To make that determination, we use the same standards and methodology that we use to determine if a species is in danger of extinction or likely to become so in the foreseeable future throughout all of its range (but applied only to the portion of the range now being analyzed).

We evaluated the range of the Foskett speckled dace to determine if any area may be significant. The Foskett speckled dace is endemic to Foskett Spring in the Warner Basin. The historical known natural range of the Foskett speckled dace is limited to Foskett Spring. At the time of listing in 1985, Foskett speckled dace also occurred at nearby Dace Spring, located approximately one-half mile south of Foskett Spring, where translocation of specimens from Foskett Spring was initiated in 1979. Because of its narrow range limited to two springs within half mile of each other, and because speckled dace currently occupying Dace Spring originated from translocations from Foskett Spring, we find that the species is comprised of is a single, population and there are no logical biological divisions delineating portions of the range. For this reason, we did not identify any portions that may be significant because of natural or biological divisions indicating biological or conservation importance.

A key part of identifying portions appropriate for further analysis is whether the threats are geographically concentrated. If a species is not in danger of extinction or likely to become so in the foreseeable future throughout all of its range and the threats to the species are essentially uniform throughout its range, then there is no basis on which to conclude that the species may be in danger of extinction or likely to become so in the foreseeable future in any portion of its range. Therefore, we also examined whether any threats are geographically concentrated in some way that would indicate the species may be in danger of extinction, or likely to become so, in a particular area. We conclude that none of them are concentrated in any particular area of the species' range. Although some of the factors we evaluated in the Summary of Factors Affecting the Species section above occur in specific habitat types (i.e. the spring pool, stream habitat, and marsh habitat), the factors affecting the Foskett speckled dace occur at similarly low levels throughout its range and would affect all individuals of the population. Additionally, because the species acts as a single population, no portion is likely to have a different status or be differently affected by threats than any other portion or than that of the species throughout all of its range. Therefore, even if Foskett Spring and the nearby Dace Spring were considered to be separate portions of the species' range, no threats or their effects are sufficiently concentrated to indicate the species may be in danger of extinction, or likely to become so in either area. As noted earlier in this rule, our proposal to delist Foskett speckled dace is not dependent on establishment of a refuge population at Dace Spring. However, the redundancy of a second population of Foskett speckled dace at Dace Spring, should it prove viable over the long term, provides increased resiliency to the species' overall status and may reduce vulnerability to stochastic events and any future threats that may appear on the landscape. For these reasons, we conclude that the species is not in danger of extinction, or likely to become so, throughout a significant portion of its range.

We have carefully assessed the best scientific and commercial information available regarding the past, present, and future threats to the Foskett speckled dace. The threats that led to the species being listed under the Act (primarily the species' extremely restricted and vulnerable habitat which was being modified; Factor A) have been removed or ameliorated by the actions of multiple conservation partners over the past 30 years; these include securing the property and developing long-term management strategies to ensure that appropriate habitat is maintained. Given various authorities that enabled the three cooperating agencies to enter into the Foskett Speckled Dace CMP, and the long record of engagement and proactive conservation actions implemented by the three cooperating agencies over a 30-year period, we expect conservation efforts will continue to support a healthy viable population of the Foskett speckled dace post-delisting and into the foreseeable future. Because the species is not in danger of extinction now or in the foreseeable future throughout all of its range or any significant portion of its range, the species does not meet the definition of an endangered species or threatened species. We conclude the Foskett speckled dace no longer requires the protection of the Act, and, therefore, we are proposing to remove it from the Federal List of Endangered and Threatened Wildlife.

This proposal, if made final, would revise 50 CFR 17.11(h) by removing the Foskett speckled dace from the Federal List of Endangered and Threatened Wildlife. Accordingly, we would also remove the Foskett speckled dace from the rule promulgated under section 4(d) of the Act at 50 CFR 17.44(j). The prohibitions and conservation measures provided by the Act, particularly through sections 7 and 9, would no longer apply to this species. Federal agencies would no longer be required to consult with the Service under section 7 of the Act in the event that activities they authorize, fund, or carry out may affect the Foskett speckled dace. No critical habitat has been designated for Foskett speckled dace, so there would be no effect to designated critical habitat. State laws related to the Foskett speckled dace would remain in place and be enforced and would continue to provide protection for this species.

Section 4(g)(1) of the Act requires the Secretary of the Interior, through the Service and in cooperation with the States, to implement a system to monitor for not less than 5 years for all species that have been recovered and delisted. The purpose of this requirement is to develop a program that detects the failure of any delisted species to sustain populations without the protective measures provided by the Act. If, at any time during the monitoring period, data indicate that protective status under the Act should be reinstated, we can initiate listing procedures, including, if appropriate, emergency listing.

A draft PDM plan has been developed for the Foskett speckled dace, building on and continuing the research that was conducted during the listing period. The draft PDM plan will be peer reviewed by specialists and available for public comment upon the publication of this proposed rule. Public and peer review comments submitted in response to the draft PDM plan will be addressed within the body of the plan and summarized in an appendix to the plan. The draft PDM plan was developed by the Service and ODFW. The draft PDM plan consists of: (1) A summary of the species' status at the time of proposed delisting; (2) an outline of the roles of PDM cooperators; (3) a description of monitoring methods; (4) an outline of the frequency and duration of monitoring; (5) an outline of data compilation and reporting procedures; and (6) a definition of thresholds or triggers for potential monitoring outcomes and conclusions of the PDM.

The draft PDM plan proposes to monitor Foskett speckled dace populations following the same sampling protocol used by the ODFW prior to delisting. Monitoring would consist of two components: Foskett speckled dace distribution and abundance, and potential adverse changes to Foskett speckled dace habitat due to environmental or anthropogenic factors. The PDM would continue for 9 years, which would begin after the final delisting rule is published. Monitoring through this time period would allow us to address any possible negative effects to the Foskett speckled dace.

The draft PDM plan identifies measurable management thresholds and responses for detecting and reacting to significant changes in the Foskett speckled dace's protected habitat, distribution, and persistence. If declines are detected equaling or exceeding these thresholds, the Service, in combination with other PDM participants, will investigate causes of these declines, including considerations of habitat changes, substantial human persecution, stochastic events, or any other significant evidence. The result of the investigation will be to determine if the Foskett speckled dace warrants expanded monitoring, additional research, additional habitat protection, or relisting as a threatened or endangered species under the Act. If relisting the Foskett speckled dace is warranted, emergency procedures to relist the species may be followed, if necessary, in accordance with section 4(b)(7) of the Act.

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:

(a) Be logically organized;

(b) Use the active voice to address readers directly;

(c) Use clear language rather than jargon;

(d) Be divided into short sections and sentences; and

(e) 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 names 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.

We have determined that environmental assessments and environmental impact statements, as defined under the authority of the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.), need not be prepared in connection with regulations pursuant to section 4(a) of the Act. We published a notice outlining our reasons for this determination in the Federal Register on October 25, 1983 (48 FR 49244).

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, 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.

We do not believe that any Tribes will be affected by this rule. However, we have contacted the Burns Paiute Tribe to coordinate with them regarding the proposed rule.

A complete list of all references cited in this proposed rule is available at http://www.regulations.gov or upon request from the person listed under FOR FURTHER INFORMATION CONTACT.

The primary authors of this proposed rule are staff members of the Service's Oregon Fish and Wildlife Office.

Accordingly, we hereby propose to amend part 17, subchapter B of chapter I, title 50 of the Code of Federal Regulations, as set forth below:

We intend that any final action resulting from this proposed rule will be based on the best scientific and commercial data available and be as accurate and as effective as possible. Therefore, we request comments or information from other concerned governmental agencies, Native American tribes, the scientific community, industry, or any other interested parties concerning this proposed rule. We particularly seek comments concerning:

(1) The Barrens topminnow's biology, range, and population trends, including:

(a) Biological or ecological requirements of the species, including habitat requirements for feeding, breeding, and sheltering;

(b) Genetics and taxonomy;

(c) Historical and current range, including distribution patterns;

(d) Historical and current population levels, and current and projected trends; and

(e) Past and ongoing conservation measures for the species, its habitat, or both.

(2) Factors that may affect the continued existence of the species, which may include habitat modification or destruction, overutilization, disease, predation, the inadequacy of existing regulatory mechanisms, or other natural or manmade factors.

(3) Biological, commercial trade, or other relevant data concerning any threats (or lack thereof) to this species and existing regulations that may be addressing those threats.

(4) Additional information concerning the historical and current status, range, distribution, and population size of this species, including the locations of any additional populations of this species.

(5) Information related to climate change within the range of the Barrens topminnow and how it may affect the species' habitat.

(6) The reasons why areas should or should not be designated as critical habitat as provided by section 4 of the Act (16 U.S.C. 1531 et seq.).

(7) Specific information on:

(a) What areas, that are currently occupied and that contain the physical and biological features essential to the conservation of the Barrens topminnow, should be included in a critical habitat designation and why;

(b) Special management considerations or protection that may be needed for the essential features in potential critical habitat areas, including managing for the potential effects of climate change; and

(c) What areas not occupied at the time of listing are essential for the conservation of the species and why.

Please include sufficient information with your submission (such as scientific journal articles or other publications) to allow us to verify any scientific or commercial information you include.

Please note that submissions merely stating support for or opposition to the action under consideration without providing supporting information, although noted, will not be considered in making a determination, as section 4(b)(1)(A) of the Act directs that determinations as to whether any species is an endangered or threatened species must be made “solely on the basis of the best scientific and commercial data available.”

You may submit your comments and materials concerning this proposed rule by one of the methods listed in ADDRESSES. We request that you send comments only by the methods described in ADDRESSES.

If you submit information via http://www.regulations.gov, your entire submission—including any personal identifying information—will be posted on the website. If your submission is made via a hardcopy that includes personal identifying information, you may request at the top of your document that we withhold this information from public review. However, we cannot guarantee that we will be able to do so. We will post all hardcopy submissions on http://www.regulations.gov.

Comments and materials we receive, as well as supporting documentation we used in preparing this proposed rule, will be available for public inspection on http://www.regulations.gov, or by appointment, during normal business hours, at the U.S. Fish and Wildlife Service, Tennessee Ecological Services Field Office (see FOR FURTHER INFORMATION CONTACT).

Section 4(b)(5) of the Act requires us to conduct one or more public hearings on this proposal, if requested. Requests for a public hearing must be received within 45 days after the date of publication of this proposed rule in the Federal Register (see DATES, above) and must be sent to the address shown in FOR FURTHER INFORMATION CONTACT. We will schedule public hearings on this proposal, if requested, and announce the dates, times, and places of those hearings, as well as how to obtain reasonable accommodations, in the Federal Register and local newspapers at least 15 days before the hearing.

The purpose of peer review is to ensure that our listing determination is based on scientifically sound data, assumptions, and analyses. In accordance with our joint policy on peer review published in the Federal Register on July 1, 1994 (59 FR 34270), and our August 22, 2016, memorandum updating and clarifying the role of peer review of listing actions under the Act, we sought the expert opinions of six appropriate specialists regarding the species status assessment (SSA) that informed this proposed rule. All of the peer reviewers have expertise in fish biology, habitat, and stressors to the Barrens topminnow. We received a response from one of the six peer reviewers, which we took into account in our SSA and this proposed rule. We invite any additional comment from the peer reviewers on the proposed rule during this public comment period; all comments received from peer reviewers will be available, along with other public comments, in the docket for this proposed rule on http://www.regulations.gov.

The Barrens topminnow was initially proposed to be listed as endangered under the Act in 1977 (42 FR 65209; December 30, 1977). Because of comments received on the proposed critical habitat, the listing was postponed, and critical habitat was reproposed in 1979 (44 FR 44418; July 27, 1979); however, the proposed listing rule was withdrawn in 1980, because it was not finalized within the required 2 years (45 FR 5782; January 24, 1980, effective December 30, 1979). The Barrens topminnow was designated a Category 2 candidate species in 1982 (47 FR 58454; December 30, 1982) until that list was discontinued in 1996 (61 FR 7596; February 28, 1996), and it was not added to the revised candidate list. In 2010, the Center for Biological Diversity (CBD) petitioned the Service to list 404 aquatic, riparian, and wetland species from the southeastern United States, including the Barrens topminnow, as endangered or threatened under the Act. On September 27, 2011, the Service published a substantial 90-day finding for 374 of the 404 species, including the Barrens topminnow, soliciting information about, and initiating status reviews for, those species (76 FR 59836). In 2015, CBD filed a complaint against the Service for failure to timely complete a 12-month finding for the Barrens topminnow. In 2016, the Service entered into a settlement agreement with CBD, which specified that a 12-month finding for the Barrens topminnow would be delivered to the Federal Register by December 31, 2017.

A thorough review of the taxonomy, life history, ecology, and overall viability of the Barrens topminnow (Fundulus julisia) is presented in the SSA (Service 2017; available at http://www.regulations.gov). In the SSA, we summarize the relevant biological data and a description of past, present, and likely future stressors, and conduct an analysis of the viability of the species. The SSA documents the results of the comprehensive biological status review for the Barrens topminnow, provides an account of the species' overall viability through forecasting of the species' condition in the future, and provides the scientific basis that informs our regulatory decision regarding whether this species should be listed as an endangered or threatened species under the Act as well as the risk analysis on which the determination is based (Service 2017, entire). The following discussion is a summary of the results and conclusions from the SSA.

The Barrens topminnow is a small, colorful fish that grows to 98 millimeters (mm) (3.9 inches (in)). As is typical of its genus, Fundulus, the Barrens topminnow has an upturned mouth, flattened head and back, and rounded fins with the unpaired fins set far back on the body (Etnier and Starnes 1993, pp. 360-361). Reproductive males are very showy with bright, iridescent background colors of greens and blues, with reddish orange spots and yellow fins as well as tubercles (hardened projections) on the anal fin rays. Females, juveniles, and non-reproductive males are drabber, with pale brown bodies sprinkled with darker spots on the sides (Williams and Etnier 1982, entire; Etnier and Starnes 1993, pp. 365-366). A detailed description of scale and fin ray counts and other morphological features is provided in Williams and Etnier (1982, entire) and Etnier and Starnes (1993, p. 365).

Barrens topminnows spawn in filamentous algae near the water surface, between April and August, with peak activity occurring from May to June. Spawning occurs on multiple occasions, with a few eggs released during each spawning event. By the end of the spawning season, up to 300 eggs are released. While the maximum age of the Barrens topminnow is 4 years, adults typically live for 2 years or less, and only about one-third of individuals spawn more than one season (Rakes 1989, p. 42; Etnier and Starnes 1993, p. 366). Most individuals mature and spawn within the first year, though some of the later spawned fish are in year 2 before they spawn (Rakes 1989, entire).

Prey items consumed by Barrens topminnows consist predominantly of microcrustaceans and immature aquatic insect larvae. However, the species is a generalist feeder, also consuming small snails and terrestrial organisms such as ants and other insects that fall or wander into aquatic habitats (Rakes 1989, pp. 18-25).

Barrens topminnow habitat is restricted to springhead pools and slow-flowing areas of spring runs on the Barrens Plateau in middle Tennessee. These fish are strongly associated with abundant aquatic vegetation such as filamentous algae (e.g., Cladophora and Pithophora), watercress (Nasturtium officinale), rushes (Juncus), pondweed (Potamogeton), and eelgrass (Vallisneria), and will occasionally shelter under overhanging terrestrial plants and tree roots. Barrens topminnows have only been found in streams where the predominant source of base flow is groundwater. Due to the groundwater influence of these habitats, temperatures are relatively stable, ranging from 15 to 25 degrees Celsius (°C) (59 to 77 degrees Fahrenheit (°F)). The karst topography of the Barrens Plateau results in the presence of a number of spring systems, though not all of these have been inhabited by the Barrens topminnow. In times of drought, if the discharge of the springs is severely reduced, Barrens topminnows likely move downstream into more permanent water if suitable habitat is available.

Historically, Barrens topminnows were found in Cannon, Coffee, and Warren Counties of Tennessee in three river systems, the Elk River, Duck River, and Caney Fork River. The Elk River and Duck River flow to the Tennessee River, and the Caney Fork River flows to the Cumberland River. The small streams or springs inhabited by Barrens topminnows in each river system are separated by hundreds of miles of intervening, unsuitable, larger stream habitat; therefore the individual populations are isolated and cannot come into contact with other populations by moving downstream. Within these three systems, the Barrens topminnow was known to occur in at least 18 sites (Hurt et al. 2017, p. 2). It is likely that many more sites were occupied, but were either not surveyed due to lack of access to private land, or were modified to be incompatible with Barrens topminnow presence for uses such as watering livestock before surveys could be conducted.

Currently, the Barrens topminnow occurs in five sites: Marcum Spring (Ovaca Spring), Short Spring, Benedict Spring, McMahan Creek, and Greenbrook Pond. Marcum Spring and Short Spring are in the Duck River system. The remaining three springs are in the Caney Fork River system. Benedict Spring and McMahan Creek are occupied by native stock, while the three other occupied sites were reestablished with individuals from the Caney Fork system (see discussion under Conservation Actions and Regulatory Mechanisms, below). Greenbrook Pond, although it ultimately drains to the Caney Fork, is outside the known historical range of the species, in Dekalb County, Tennessee. Although no longer extant at its native locality, the Pond Spring population from the Elk River system is maintained in captivity at three facilities. Collectively, these captively held topminnows form an “ark population” that is managed as part of a conservation strategy that will enable release back into the wild if Pond Spring can be restored.

Estimates of current population size by site are lacking, but recent surveys (Kuhajda et al. 2014, entire; Kuhajda 2017, entire) reported the number of Barrens topminnows captured (Table 1, below), providing a rough approximation of the number of topminnows in each population. Based on these samples, Benedict Spring, Marcum Spring, and Greenbrook Pond had fairly robust populations, with at least, or likely with more than, 100 individuals. The population in McMahan Creek appeared to be small relative to other occupied sites, but this difference is at least partly an artifact of sampling bias. In stream habitat such as McMahan Creek, habitat structure makes it easier for fish to avoid the seine, and fish tend to be more broadly dispersed than they are in pond-like spring habitats.

In this section, we describe the needs of the species at the individual, population, and species level. We describe the Barrens topminnow's viability needs in terms of resiliency (ability of the populations to withstand stochastic events), redundancy (ability of the species to withstand large-scale, catastrophic events), and representation (the ability of the species to adapt to changing environmental conditions). In later sections, using various time frames and the current and projected resiliency, redundancy, and representation, we will describe the species' viability over time.

Barrens topminnows need filamentous algae or other submerged vegetation for egg deposition and cover, and consistently cool water ranging from 15 to 25 °C (59 to 77 °F) that is sufficiently clear for mating display (Rakes, 1989, entire). For feeding, they need microcrustaceans and immature aquatic insect larvae (Rakes 1989, pp. 18-25). At the larval and juvenile stage, it is essential that predation rates and competition from other fishes is low (Laha and Mattingly 2006, pp. 1, 6-10).

For the Barrens topminnow to maintain viability, its populations or some portion thereof must be resilient. Stochastic events that affect resiliency are reasonably likely to occur infrequently, but are of a magnitude that can drastically alter the ecosystem where they happen. Classic examples of stochastic events include drought, major storms (hurricanes), fire, and landslides (Chapin et al. 2002, pp. 285-288). To be resilient to stochastic events populations of Barrens topminnow need to be sufficiently abundant, with several hundred individuals (Service 2017, p. 11) represented by adult and juvenile age classes. The larger the range, or spatial extent, occupied by a Barrens topminnow population, the more resilient the population will be to a stochastic event. Additionally, populations need to exist in locations where environmental conditions provide suitable habitat and water quality such that adequate numbers of individuals can be supported. Without all of these factors, a population has an increased likelihood of extirpation.

Maintaining representation in the form of genetic diversity is important to the Barrens topminnow's capacity to adapt to environmental changes. Ecological diversity, another measure of species' representation, is naturally low, as the Barrens topminnow has always been restricted to spring habitats in a single physiographic province. Based on mitochondrial DNA, genetic variation of extant populations is extremely low, and there are fixed differences between the Caney Fork system populations and the Elk River system population (Hurt et al. 2017, pp. 1, 5), which is from Pond Spring and is represented now only by individuals held in captivity. The captive Elk River population, for which there are two identified mitochondrial DNA haplotypes unique from the third haplotype present in all Caney Fork system sampled fish, should be considered an evolutionary significant unit (ESU) (Hurt et al. 2017, p. 5), a historically isolated population that is on an independent evolutionary trajectory (Moritz 1994, p. 373). Accordingly, reestablishing the captive Elk River population in the wild will be important to increasing genetic representation and species' viability.

Finally, the Barrens topminnow needs to have multiple resilient populations distributed throughout its range to provide redundancy, the ability of the species to withstand catastrophic events. The more populations, and the wider the distribution of those populations, the more redundancy the species will exhibit. Redundancy reduces the risk that a large portion of the species' range will be negatively affected by a catastrophic natural or anthropogenic event at a given point in time. Species that are well-distributed across their historical range are considered less susceptible to extinction and have higher viability than species confined to a small portion of their range (Carroll et al. 2010, entire; Redford et al. 2011, entire).

Section 4 of the Act (16 U.S.C. 1533) and its implementing regulations (50 CFR part 424) set forth the procedures for determining whether a species is an “endangered species” or a “threatened species.” The Act defines an endangered species as a species that is “in danger of extinction throughout all or a significant portion of its range,” and a threatened species as a species that is “likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range.” The Act directs us to determine whether any species is an endangered species or a threatened species because of one or more of the following factors affecting its continued existence: (A) The present or threatened destruction, modification, or curtailment of its habitat or range; (B) overutilization for commercial, recreational, scientific, or educational purposes; (C) disease or predation; (D) the inadequacy of existing regulatory mechanisms; or (E) other natural or manmade factors affecting its continued existence.

These factors represent broad categories of natural or human-caused actions or conditions that could have an effect on a species' continued existence. In evaluating these actions and conditions, we look for those that may have a negative effect on individuals of the species, as well as for those that may ameliorate any negative effects and those that may have positive effects.

We use the term “threat” to refer in general to actions or conditions that are known to or are reasonably likely to negatively affect individuals of a species. The term “threat” includes actions or conditions that have a direct impact on individuals (direct impacts), as well as those that affect individuals through alteration of their habitat or required resources (stressors). A threat may encompass—either together or separately—the source of the action or condition, or the action or condition itself.

However, the mere identification of any threat(s) does not necessarily mean that the species meets the statutory definition of an “endangered species” or a “threatened species.” In determining whether a species meets either definition, we must evaluate all identified threats by considering the expected response by the species, and the effects of the threats—in light of those actions and conditions that will ameliorate the threats—on an individual, population, and species level. We evaluate each threat and its expected effects on the species, then analyze the cumulative effect of all of the threats on the species as a whole. We also consider the cumulative effect of the threats in light of those actions and conditions that will have positive effects on the species—such as any existing regulatory mechanisms or conservation efforts. It is only after conducting this cumulative analysis of threats and the actions that may ameliorate them or have positive effects on the species, and describing the expected effect on the species now and in the foreseeable future, that the Secretary can determine whether the species meets the definition of an “endangered species” or a “threatened species.” We completed a comprehensive assessment of the biological status of the Barrens topminnow, and prepared a report of the assessment which provides a thorough account of the species' overall viability and evaluates the cumulative effects of the five listing factors (Service 2017, entire).

In the SSA, we assessed the potential risk factors (i.e., threats, stressors) that could be affecting the Barrens topminnow now and in the future. In this proposed rule, we will discuss only those factors in detail that could meaningfully impact the status of the species. Those risks that are not known to have effects on Barrens topminnow populations, such as collection and disease, are not discussed here.

The primary risk factor affecting the status of the Barrens topminnow is western mosquitofish (Gambusia affinis), a species invasive to the Barrens Plateau that preys on young topminnows, harasses older individuals, and may compete with adults for space and food (Factor C).

Western mosquitofish are native to Tennessee, but their range within the State was most likely confined to the Coastal Plain province (Etnier and Starnes 1993, p. 373), and they are not native to the Barrens Plateau. In many parts of North America, western mosquitofish were stocked in attempt to control mosquito larvae, which is presumably the means by which they were introduced to the Barrens Plateau in the mid twentieth century. Although to the best of our knowledge mosquitofish stocking stopped shortly thereafter, the species has spread and become a permanent inhabitant throughout most of the Barrens Plateau. Mosquitofish are well adapted to spread in habitats where they are introduced because they reproduce rapidly, spawning three to four cohorts per year of a few to a hundred or more individuals (Etnier and Starnes 1993, p. 373). They can move through very shallow water and have invaded sites connected by temporarily wetted areas created by floods. Mosquitofish prey on young topminnows and harass adults, causing recruitment failure such that only the adult age class remains after a spawning season (Goldsworthy and Bettoli 2006, p. 341; Laha and Mattingly 2007, p. 9). Under most circumstances, extirpation of Barrens topminnows occurs within 3 to 5 years of mosquitofish invading a site (Service 2017, p. 32). The five extant Barrens topminnow populations are at sites free of mosquitofish.

As a consequence of the western mosquitofish invasion, the habitat available to the Barrens topminnow, and the species' range, has been curtailed (Factor A). Historically, Barrens topminnow populations were likely connected by floods and high flow events that washed individuals downstream or provided temporary connections across local stream divides. Most, if not all, pathways via flood-facilitated migration are no longer viable owing to the presence of mosquitofish. Many of the sites where the topminnow is extirpated currently have sufficient habitat quality to support populations (Kuhajda et al. 2014, entire; Kuhajda 2017, entire). Thus, it is the presence of mosquitofish rather than habitat that is limiting Barrens topminnow populations because mosquitofish prevent topminnows from colonizing previously occupied springs in their range. This reduction in connectivity contributes to reduced gene flow, which in turn reduces genetic diversity and species' representation. Additionally, the lost connectivity contributes to the diminished range (number of occupied sites), which has caused a reduction in species' redundancy.

Reduced habitat availability has exacerbated the threat of drought (Factor E), which has greatest effect on one of the two remaining native populations, at Benedict Spring. Approximately once every 5 years, drought results in Benedict Spring drying completely or nearly so, to the point that it can no longer support the Barrens topminnow. In these years, all topminnows are removed from Benedict Spring and placed in aquaria, where they are held until water levels return. Under natural (i.e., mosquitofish free) conditions, drought would not be a concern because Barrens topminnows would recolonize areas in wetter years; however, due to the widespread reduction in suitable habitat due to mosquitofish and the resulting small number of remaining populations, the loss of any population is a concern.

There have been many targeted efforts since circa 1980 to conserve the Barrens topminnow. Without these efforts it is likely the species would persist only at one site, McMahan Spring, which has not gone dry during periods of drought and is not occupied by mosquitofish. In 2001, the Barrens Topminnow Working Group, consisting of the Tennessee Wildlife Resources Agency, the Service, universities, and nonprofit organizations, was created to coordinate actions such as habitat improvement, propagation, and reintroduction of the species in the wild. Since the initiation of the stocking program, more than 44,000 Barrens topminnows have been reintroduced in 27 sites deemed to have appropriate habitat. Brood fish were taken from McMahan Creek and Benedict Spring in the Caney Fork watershed, and Pond Spring in the Elk River watershed. Reintroduction was unsuccessful at most of these sites, either because of insufficient or marginal habitat or the invasion of mosquitofish (Goldsworth and Bettoli 2005, entire). At the 2016 Working Group meeting, the decision was made to stop the stocking program because it was no longer needed to maintain populations at suitable sites that lack mosquitofish, and at other sites, continued stocking was unlikely to establish self-sustaining populations.

One of the stocked sites, Vervilla Spring, was situated in the Caney Fork watershed on land opportunistically purchased by the Service for Barrens topminnow reintroduction. When the land came under the management of Tennessee National Wildlife Refuge, mosquitofish were present in the spring on the property and topminnows were not. To improve habitat for topminnows at the site, spring pools were deepened, a concrete low water barrier was installed, and the mosquitofish removed with a piscicide. Topminnows from Benedict Spring were then stocked above the barrier. This population was stocked in 2001, and maintained viability until 2010, when mosquitofish reinvaded the spring during a flood. In 2011, only adults were present, and by 2013, no Barrens topminnows remained in Vervilla Spring.

From the late 1980s into the 2000s, the Service's Partners for Fish and Wildlife program worked with landowners to exclude livestock from the springs and spring runs where Barrens topminnows occurred in an effort to curb sedimentation. None of these Partners agreements is currently active. However, there are still buffers that exclude livestock from topminnow habitat in place at some sites, many which have since been invaded by mosquitofish.

As discussed above, only five remaining populations of Barrens topminnow remain (see Table 1, above), in contrast to at least 18 identified historical populations (occupied sites) and likely several more that were extirpated without having been first identified. Thus, there has been at least a 72 percent reduction in the number of populations in the wild. Furthermore, the number of native populations has been reduced by at least 89 percent. The only population known to be native in the Elk River watershed, from Pond Spring, is now maintained as a captive “ark population” at three facilities. In the Duck River system, native populations were extirpated by the late 1960s (Etnier and Starnes 1993, p. 366), and if there was any genetic component unique to the Duck River system, it has been lost. The only two remaining native populations are at Benedict Spring and McMahan Creek.

In summary, the current condition for each of the conservation metrics of resiliency, redundancy, and representation is low. Regarding resiliency, four of the five extant populations are of moderate size, likely with 100 individuals or more. The other population is smaller, although based on recent surveys it appears to be persisting and recruiting new cohorts each year. However, even if the number of individuals in each population is sufficient to maintain future generations, all currently occupied sites are small and vulnerable to stochastic events, so that a disturbance would adversely affect a site and its whole population equally. Regarding redundancy, at least 16 of 18 native populations (89 percent) have been lost, with only 5 populations remaining in the wild. Thus, the spatial distribution of a naturally narrow-ranging endemic has become more concentrated, making the species more susceptible to a catastrophic event. Lastly, representation has been reduced and the species' adaptive capacity may be limited as there is little genetic variation between extant populations. Native stock from the Elk River and Duck River has been extirpated, although members of the Elk River population survive in captivity.

As part of the SSA, we developed three future condition scenarios to capture the range of uncertainties regarding future threats and the projected responses by the Barrens topminnow. Our scenarios included a status quo scenario, which incorporated the current risk factors continuing on the same trajectory that they are on now. We also evaluated a best case scenario, under which management actions to exclude mosquitofish and reintroduce populations would occur. Finally, we evaluated a worst case scenario, under which no management actions would be applied and climate change would increase the frequency and magnitude of droughts and floods. Regarding the likelihood of each scenario transpiring, in the near future (3- to 5-year time frame), the status quo scenario was predicted to be “very likely” and best case and worst case scenarios were “unlikely.” For the SSA, the terms “very likely” and “unlikely” as they apply to confidence are 70-90 percent certain and 10-40 percent certain, respectively (IPCC 2014, p. 2). In 20 to 30 years, the time frame constituting the extent of the foreseeable future, beyond which there is insufficient confidence in how threats will act, the best case scenario was predicted to be “unlikely” and the status quo and worst case scenarios were “as likely as not,” defined as having a 40-70 percent certainty of occurrence (IPCC 2014, p. 2). Because we determined that the current condition of the Barrens topminnow was consistent with that of an endangered species (see Determination, below), and that it is very likely the current condition will persist through the near future, we are not presenting in any more detail how each scenario would likely act on species viability. Please refer to the SSA (Service 2017, pp. 32-42) for the full analysis of future scenarios.

Section 4 of the Act (16 U.S.C. 1533) and its implementing regulations (50 CFR part 424) set forth the procedures for determining whether a species meets the definition of “endangered species” or “threatened species.” The Act defines an endangered species as any species that is “in danger of extinction throughout all or a significant portion of its range” and a threatened species as any species “that is likely to become endangered throughout all or a significant portion of its range within the foreseeable future.” We have carefully assessed the best scientific and commercial information available and find that the Barrens topminnow is presently in danger of extinction throughout its entire range based on the severity and immediacy of threats currently impacting the species.

The overall range of the Barrens topminnow has been significantly reduced (Factor A), and its remaining populations are threatened by mosquitofish (Factor C), drought, and small population size (Factor E) acting in combination to reduce the overall viability of the species. The risk of extinction is high because the remaining populations have a high risk of extirpation, are isolated, and have no potential for recolonization without intervening management actions. Therefore, on the basis of the best available scientific and commercial information, we propose listing the Barrens topminnow as endangered in accordance with sections 3(6) and 4(a)(1) of the Act. We find that a threatened species status is not appropriate for the Barrens topminnow, as it is already in danger of extinction throughout its range because of the currently contracted range (loss of 79 percent of occupied sites), because the threats are occurring across the entire range of the species, and because the threats are ongoing currently and are expected to continue into the future.

Under the Act and our implementing regulations, a species may warrant listing if it is endangered or threatened throughout all or a significant portion of its range. Because we have determined that the Barrens topminnow is endangered throughout all of its range, no portion of its range can be “significant” for purposes of the definitions of “endangered species” and “threatened species.” See the Final Policy on Interpretation of the Phrase “Significant Portion of Its Range” in the Endangered Species Act's Definitions of “Endangered Species” and “Threatened Species” (79 FR 37578; July 1, 2014).

Conservation measures provided to species listed as endangered or threatened species under the Act include recognition, recovery actions, requirements for Federal protection, and prohibitions against certain practices. Recognition through listing results in public awareness and conservation by Federal, State, Tribal, and local agencies; private organizations; and individuals. The Act encourages cooperation with the States and other countries and calls for recovery actions to be carried out for listed species. The protection required by Federal agencies and the prohibitions against certain activities are discussed, in part, below.

The primary purpose of the Act is the conservation of endangered and threatened species and the ecosystems upon which they depend. The ultimate goal of such conservation efforts is the recovery of these listed species, so that they no longer need the protective measures of the Act. Subsection 4(f) of the Act calls for the Service to develop and implement recovery plans for the conservation of endangered and threatened species. The recovery planning process involves the identification of actions that are necessary to halt or reverse the species' decline by addressing the threats to its survival and recovery. The goal of this process is to restore listed species to a point where they are secure, self-sustaining, and functioning components of their ecosystems.

Recovery planning includes the development of a recovery outline when a species is listed and preparation of a draft and final recovery plan. The recovery outline guides the immediate implementation of urgent recovery actions and describes the process to be used to develop a recovery plan. Subsequently, a recovery plan identifies recovery criteria for review of when a species may be ready for downlisting or delisting, and methods for monitoring recovery progress. Recovery plans also establish a framework for agencies to coordinate their recovery efforts and provide estimates of the cost of implementing recovery tasks. Recovery teams (composed of species experts, Federal and State agencies, nongovernmental organizations, and stakeholders) are often established to develop recovery plans. Revisions of the plan may be done to address continuing or new threats to the species, as new substantive information becomes available. We intend to make a recovery outline available to the public concurrent with the final listing rule, if listing continues to be warranted. When completed, the recovery outline, draft recovery plan, and the final recovery plan will be available on our website (http://www.fws.gov/endangered), or from our Tennessee Ecological Services Field Office (see FOR FURTHER INFORMATION CONTACT).

Implementation of recovery actions generally requires the participation of a broad range of partners, including other Federal agencies, States, Tribes, nongovernmental organizations, businesses, and private landowners. Examples of recovery actions include habitat restoration (e.g., restoration of native vegetation), research, captive propagation and reintroduction, and outreach and education. The recovery of many listed species cannot be accomplished solely on Federal lands because their ranges may occur primarily or solely on non-Federal lands. To achieve recovery of these species requires cooperative conservation efforts on private, State, and Tribal lands. If this species is listed, funding for recovery actions will be available from a variety of sources, including Federal budgets, State programs, and cost share grants for non-Federal landowners, the academic community, and nongovernmental organizations. In addition, pursuant to section 6 of the Act, the State of Tennessee would be eligible for Federal funds to implement management actions that promote the protection or recovery of the Barrens topminnow. Information on our grant programs that are available to aid species recovery can be found at: http://www.fws.gov/grants.

Although the Barrens topminnow is only proposed for listing under the Act at this time, please let us know if you are interested in participating in recovery efforts for this species. Additionally, we invite you to submit any new information on this species whenever it becomes available and any information you may have for recovery planning purposes (see FOR FURTHER INFORMATION CONTACT).

Section 7(a) of the Act requires Federal agencies to evaluate their actions with respect to any species that is proposed or listed as an endangered or threatened species and with respect to its critical habitat, if any is designated. Regulations implementing this interagency cooperation provision of the Act are codified at 50 CFR part 402. Section 7(a)(4) of the Act requires Federal agencies to confer with the Service on any action that is likely to jeopardize the continued existence of a species proposed for listing or result in destruction or adverse modification of proposed critical habitat. If a species is listed subsequently, section 7(a)(2) of the Act requires Federal agencies to ensure that activities they authorize, fund, or carry out are not likely to jeopardize the continued existence of the species or destroy or adversely modify its critical habitat. If a Federal action may affect a listed species or its critical habitat, the responsible Federal agency must enter into consultation with the Service.

Federal agency actions within the species' habitat that may require conference or consultation or both as described in the preceding paragraph include issuance of section 404 Clean Water Act (33 U.S.C. 1251 et seq.) permits by the U.S. Army Corps of Engineers, construction and maintenance of roads or highways by the Federal Highway Administration, construction and maintenance of utility corridors by the Tennessee Valley Authority, and construction and maintenance of natural gas or oil pipeline corridors by the Federal Energy Regulatory Commission.

The Act and its implementing regulations set forth a series of general prohibitions and exceptions that apply to endangered wildlife. The prohibitions of section 9(a)(1) of the Act, codified at 50 CFR 17.21, make it illegal for any person subject to the jurisdiction of the United States to take (which includes harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect; or to attempt any of these) endangered wildlife within the United States or on the high seas. In addition, it is unlawful to import; export; deliver, receive, carry, transport, or ship in interstate or foreign commerce in the course of commercial activity; or sell or offer for sale in interstate or foreign commerce any listed species. It is also illegal to possess, sell, deliver, carry, transport, or ship any such wildlife that has been taken illegally. Certain exceptions apply to employees of the Service, the National Marine Fisheries Service, other Federal land management agencies, and State conservation agencies.

We may issue permits to carry out otherwise prohibited activities involving endangered wildlife under certain circumstances. Regulations governing permits are codified at 50 CFR 17.22. With regard to endangered wildlife, a permit may be issued for the following purposes: For scientific purposes, to enhance the propagation or survival of the species, and for incidental take in connection with otherwise lawful activities. There are also certain statutory exemptions from the prohibitions, which are found in sections 9 and 10 of the Act.

It is our policy, as published in the Federal Register on July 1, 1994 (59 FR 34272), to identify to the maximum extent practicable at the time a species is listed, those activities that would or would not constitute a violation of section 9 of the Act. The intent of this policy is to increase public awareness of the effect of a proposed listing on proposed and ongoing activities within the range of the species proposed for listing. Based on the best available information, if we list this species, the following actions are unlikely to result in a violation of section 9, if these activities are carried out in accordance with existing regulations and permit requirements; this list is not comprehensive:

(1) Normal agricultural and silvicultural practices, including herbicide and pesticide use, which are carried out in accordance with any existing regulations, permit and label requirements, and best management practices; and

(2) Normal residential landscape activities.

Based on the best available information, if we list this species, the following activities may potentially result in a violation of section 9 of the Act; this list is not comprehensive:

(1) Intentional release of mosquitofish into occupied Barrens topminnow habitat;

(2) Unauthorized handling or collecting of the species;

(3) Modification of the water flow of any spring or stream in which the Barrens topminnow is known to occur;

(4) Direct or indirect destruction of stream habitat; and

(5) Discharge of chemicals or fill material into any waters in which the Barrens topminnow is known to occur.

Questions regarding whether specific activities would constitute a violation of section 9 of the Act should be directed to the Tennessee Ecological Services Field Office (see FOR FURTHER INFORMATION CONTACT).

Critical habitat is defined in section 3 of the Act as:

(1) The specific areas within the geographical area occupied by the species, at the time it is listed in accordance with the Act, on which are found those physical or biological features:

(a) Essential to the conservation of the species, and

(b) Which may require special management considerations or protection; and

(2) Specific areas outside the geographical area occupied by the species at the time it is listed, upon a determination that such areas are essential for the conservation of the species.

Conservation, as defined under section 3 of the Act, means to use and the use of all methods and procedures that are necessary to bring an endangered or threatened species to the point at which the measures provided pursuant to the Act are no longer necessary.

Such methods and procedures include, but are not limited to, all activities associated with scientific resources management such as research, census, law enforcement, habitat acquisition and maintenance, propagation, live trapping, and transplantation, and, in the extraordinary case where population pressures within a given ecosystem cannot be otherwise relieved, may include regulated taking.

Critical habitat receives protection under section 7 of the Act through the requirement that Federal agencies ensure, in consultation with the Service, that any action they authorize, fund, or carry out is not likely to result in the destruction or adverse modification of critical habitat. The designation of critical habitat does not affect land ownership or establish a refuge, wilderness, reserve, preserve, or other conservation area. Such designation does not allow the government or public to access private lands. Such designation does not require implementation of restoration, recovery, or enhancement measures by non-Federal landowners. Where a landowner requests Federal agency funding or authorization for an action that may affect a listed species or critical habitat, the consultation requirements of section 7(a)(2) of the Act would apply, but even in the event of a destruction or adverse modification finding, the obligation of the Federal action agency and the landowner is not to restore or recover the species, but to implement reasonable and prudent alternatives to avoid destruction or adverse modification of critical habitat.

Section 4 of the Act requires that we designate critical habitat on the basis of the best scientific data available. Further, our Policy on Information Standards Under the Endangered Species Act (published in the Federal Register on July 1, 1994 (59 FR 34271)), the Information Quality Act (section 515 of the Treasury and General Government Appropriations Act for Fiscal Year 2001 (Pub. L. 106-554; H.R. 5658), and our associated Information Quality Guidelines, provide criteria, establish procedures, and provide guidance to ensure that our decisions are based on the best scientific data available. They require our biologists, to the extent consistent with the Act and with the use of the best scientific data available, to use primary and original sources of information as the basis for recommendations to designate critical habitat.

Section 4(a)(3) of the Act, as amended, and implementing regulations (50 CFR 424.12), require that, to the maximum extent prudent and determinable, the Secretary designate critical habitat at the time the species is determined to be endangered or threatened. Our regulations (50 CFR 424.12(a)(1)) state that the designation of critical habitat is not prudent when one or both of the following situations exist: (1) The species is threatened by taking or other human activity, and identification of critical habitat can be expected to increase the degree of threat to the species, or (2) such designation of critical habitat would not be beneficial to the species.

As discussed above and in the SSA, there is currently no imminent threat to the Barrens topminnow of take attributed to collection or vandalism (Factor B), and identification and mapping of critical habitat would not likely to increase any such threat. In the absence of finding that the designation of critical habitat would increase threats to a species, if there are any benefits to a critical habitat designation, then a prudent finding is warranted. The potential benefits of designation include: (1) Triggering consultation under section 7 of the Act in new areas for actions in which there may be a Federal nexus where it would not otherwise occur because, for example, it is or has become unoccupied or the occupancy is in question; (2) focusing conservation activities on the most essential features and areas; (3) providing educational benefits to State or county governments or private entities; and (4) preventing people from causing inadvertent harm to the species. Therefore, because we have determined that the designation of critical habitat will not likely increase the degree of threat to these species and may provide some measure of benefit, we find that designation of critical habitat is prudent for the Barrens topminnow.

Having determined that designation is prudent, under section 4(a)(3) of the Act we must find whether critical habitat for the species is determinable. Our regulations at 50 CFR 424.12(a)(2) state that critical habitat is not determinable when one or both of the following situations exist: (1) Information sufficient to perform required analyses of the impacts of the designation is lacking, or (2) The biological needs of the species are not sufficiently well known to permit identification of an area as critical habitat. As discussed above, we have reviewed the available information pertaining to the biological needs of this species and the habitat characteristics where this species is located. However, a careful assessment of the economic impacts that may occur due to a critical habitat designation is ongoing, and we are in the process of working with the States and other partners in acquiring the complex information needed to perform that assessment. Until these efforts are complete, information sufficient to perform a required analysis of the impacts of the designation is lacking, and, therefore, we find designation of critical habitat for this species to be not determinable at this time. However, we expect to have the necessary information, and publish a proposed rule in the Federal Register, in the near future.

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.

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).

A complete list of references cited is available in Appendix A of the SSA (Service 2017. Species Status Assessment Report for the Barrens Topminnow (Fundulus julisia), Version 1.0. Cookeville, TN), available online at http://www.regulations.gov under Docket No. FWS-R4-ES-2017-0094.

The primary authors of this proposed rule are the staff members of the Tennessee Ecological Services Field Office.

Accordingly, we propose to amend part 17, subchapter B of chapter I, title 50 of the Code of Federal Regulations, as set forth below: