Endangered and Threatened Wildlife and Plants; Designation of Critical Habitat for the Vermilion Darter, 63366-63384 [E9-28855]

Agencies

• Fish and Wildlife Service
• DEPARTMENT OF THE INTERIOR

[Federal Register Volume 74, Number 231 (Thursday, December 3, 2009)]
[Proposed Rules]
[Pages 63366-63384]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E9-28855]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

FWS-R4-ES-2009-0079 92210-1117-0000-B4
[RIN 1018-AW52]


Endangered and Threatened Wildlife and Plants; Designation of 
Critical Habitat for the Vermilion Darter

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule.

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SUMMARY: We, the U.S. Fish and Wildlife Service, propose to designate 
critical habitat for the vermilion darter (Etheostoma chermocki) under 
the Endangered Species Act of 1973, as amended. We propose to designate 
as critical habitat approximately 21.0 kilometers (13.0 stream miles) 
in 5 units. The proposed critical habitat is

[[Page 63367]]

located within the Turkey Creek watershed in Jefferson County, Alabama.

DATES: We will accept comments from all interested parties until 
February 1, 2010. We must receive requests for public hearings, in 
writing, at the address shown in the FOR FURTHER INFORMATION CONTACT 
section by January 19, 2010.

ADDRESSES: You may submit comments by one of the following methods:
     Federal eRulemaking Portal: https://www.regulations.gov. 
Follow the instructions for submitting comments.
     U.S. mail or hand delivery: Public Comments Processing, 
Attn: [FWS-R4-ES-2009-0079]; Division of Policy and Directives 
Management; U.S. Fish and Wildlife Service; 4401 N. Fairfax Drive, 
Suite 222; Arlington, VA 22203.
    We will not accept e-mail or faxes. We will post all comments on 
https://www.regulations.gov This generally means that we will post any 
personal information you provide us (see the Public Comments section 
below for more information).

FOR FURTHER INFORMATION CONTACT: Cary Norquist, Deputy Field 
Supervisor, U.S. Fish and Wildlife Service, Mississippi Fish and 
Wildlife Office, 6578 Dogwood View Parkway, Jackson, Mississippi, 
39213; telephone: 601-321-1127; facsimile: 601-965-4340. If you use a 
telecommunications device for the deaf (TDD), call the Federal 
Information Relay Service (FIRS) at 800-877-8339.

SUPPLEMENTARY INFORMATION:

Public Comments

    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 governmental agencies, the scientific 
community, industry, or any other interested party concerning this 
proposed rule. We particularly seek comments concerning:
    (1) The reasons why we should or should not designate habitat as 
``critical habitat'' under section 4 of the Endangered Species Act of 
1973, as amended (Act) (16 U.S.C. 1531 et seq.), including whether 
there are threats to the species from human activity, the degree of 
which can be expected to increase due to the designation, and whether 
the benefit of designation would be outweighed by threats to the 
species caused by the designation, such that the designation of 
critical habitat is not prudent.
     (2) Comments or information that may assist us in identifying or 
clarifying the primary constituent elements.
    (3) Specific information on:
     The amount and distribution of vermilion darter habitat,
     What areas occupied at the time of listing and that 
contain features essential to the conservation of the species which may 
require special management considerations or protections we should 
include in the designation and why, and
     What areas not occupied at the time of listing are 
essential for the conservation of the species and why.
    (4) Land-use designations and current or planned activities in the 
subject areas and their possible impacts on proposed critical habitat.
    (5) Any probable economic, national security, or other relevant 
impacts of designating any area that may be included in the final 
designation. We are particularly interested in any impacts on small 
entities (e.g., small businesses or small governments) or families, and 
the benefits of including or excluding areas that exhibit these 
impacts.
    (6) Whether any specific areas we are proposing as critical habitat 
should be excluded under section 4(b)(2) of the Act, and whether the 
benefits of potentially excluding any particular area outweigh the 
benefits of including that area under section 4(b)(2) of the Act.
    (7) Information on any quantifiable economic costs or benefits of 
the proposed designation of critical habitat.
     (8) Whether we could improve or modify our approach to designating 
critical habitat in any way to provide for greater public participation 
and understanding, or to better accommodate public concern and 
comments.
    You may submit your comments and materials concerning this proposed 
rule by one of the methods listed in the ADDRESSES section. We will not 
accept comments sent by e-mail or fax or to an address not listed in 
the ADDRESSES section.
    We will post your entire comment--including your personal 
identifying information--on https://www.regulations.gov. If your written 
comments provide 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.
    Comments and materials we receive, as well as supporting 
documentation we used in preparing this proposed rule, will be 
available for public inspection on https://www.regulations.gov, or by 
appointment, during normal business hours, at the U.S. Fish and 
Wildlife Service, Mississippi Fish and Wildlife Office (see FOR FURTHER 
INFORMATION CONTACT).

Background

    It is our intent to discuss only those topics directly relevant to 
the designation of critical habitat in this proposed rule. For more 
information on the vermilion darter, refer to the final listing rule 
published in the Federal Register on November 28, 2001 (66 FR 59367) 
and the Vermilion Darter Recovery Plan, available on the Internet at 
https://ecos.fws.gov/docs/recovery_plan/070802.pdf. See also the 
discussion of habitat in the Physical and Biological Features section 
below.
    The vermilion darter is a narrowly endemic fish species, occurring 
in sparse, fragmented, and isolated populations. The species is only 
known in parts of the upper mainstem reach of Turkey Creek and four 
tributaries in Pinson, Jefferson County, Alabama (Boschung and Mayden 
2004, p. 520). Suitable streams have pools of moderate current 
alternating with riffles of moderately swift current, and low water 
turbidity.
     The vermilion darter was listed as endangered (66 FR 59367, 
November 28, 2001) because of ongoing threats to the species and its 
habitat from urbanization within the Turkey Creek watershed. The 
primary threats to the species and its habitat are degradation of water 
quality and substrate components due to sedimentation and other 
pollutants, and altered flow regimes from activities such as 
construction and maintenance activities; impoundments (five within the 
Turkey Creek and Dry Creek system); instream gravel extractions; off-
road vehicle usage; road, culvert, bridge, gas, and water easement 
construction; and stormwater management (Drennen personal observation 
1999-2009; Blanco and Mayden 1999, pp.18-20). These activities lead to 
water quality degradation and the production of pollutants (sediments, 
nutrients from sewage, pesticides, fertilizers, and industrial and 
stormwater effluents), stream channel instability, fragmentation, and 
reduced connectivity of the habitat by altering the stream banks and 
bottoms; degrading the riffles, runs, and pools; and producing changes 
in water quantity and flow necessary for spawning, feeding, resting, 
and other life history functions of the species.

[[Page 63368]]

Previous Federal Actions
    The vermilion darter (Etheostoma chermocki) was listed as 
endangered under the Act on November 28, 2001 (66 FR 59367). The 
Service found that designation of critical habitat was prudent at the 
time of listing. However, due to budgetary constraints, we did not 
designate critical habitat at that time. We approved final recovery 
plan for the vermilion darter on June 20, 2007 (U.S. Fish and Wildlife 
Service 2007) and made it available to the public through a notice 
published in the Federal Register on August 2, 2007 (72 FR 42426).
    On November 27, 2007, the Center for Biological Diversity filed a 
lawsuit against the Secretary of Interior for our failure to timely 
designate critical habitat for the vermilion darter (Center for 
Biological Diversity v. Kempthorne (07-CV-2928)). In a court-approved 
settlement agreement, the Service agreed to submit to the Federal 
Register a new prudency determination, and if the designation was found 
to be prudent, a proposed designation of critical habitat, by November 
30, 2009, and a final designation by November 30, 2010.

Critical Habitat

Background
     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 under 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(a)(2) of the 
Act through the prohibition against Federal agencies carrying out, 
funding, or authorizing the destruction or adverse modification of 
critical habitat. Section 7(a)(2) requires consultation on Federal 
actions that may affect 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 seeks or 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) would apply, but even in 
the event of a destruction or adverse modification finding, the Federal 
action agency's and the landowner's obligation landowneris not to 
restore or recover the species, but to implement reasonable and prudent 
alternatives to avoid destruction or adverse modification of critical 
habitat.
    To be considered for inclusion in a critical habitat designation, 
habitat within the geographical area occupied by the species at the 
time it was listed must contain the physical or biological features 
that are essential to the conservation of the species. Areas supporting 
the essential physical or biological features are identified, to the 
extent known using the best scientific data available, as the habitat 
areas that provide essential life cycle needs of the species; (i.e., 
areas on which are found the primary constituent elements laid out in 
the appropriate quantity and spatial arrangement essential to the 
conservation of the species). Habitat within the geographical area 
occupied by the species at the time of listing that contains features 
essential to the conservation of the species meets the definition of 
critical habitat only if these features may require special management 
consideration or protection. Under the Act and regulations at 50 CFR 
424.12, we can designate critical habitat in areas outside the 
geographical area occupied by the species at the time it is listed only 
when we determine that the best available scientific data demonstrate 
that the designation of those areas is essential for the conservation 
of the species.
    Section 4 of the Act requires that we designate critical habitat on 
the basis of the best scientific and commercial data available. 
Further, our Policy on Information Standards Under the Endangered 
Species Act (published in the Federal Register on July 1, 1994 (59 FR 
34271)), the Information Quality Act (section 515 of the Treasury and 
General Government Appropriations Act for Fiscal Year 2001 (Pub. L. 
106-554; H.R. 5658)), and our associated information quality 
guidelines, provide criteria, establish procedures, and provide 
guidance to ensure that our decisions are based on the best scientific 
data available. They require our biologists, to the extent consistent 
with the Act and with the use of the best scientific data available, to 
use primary and original sources of information as the basis for 
recommendations to designate critical habitat.
    When we are determining which areas we should designate as critical 
habitat, our primary source of information is generally the information 
developed during the listing process for the species. Additional 
information sources may include the recovery plan for the species, 
articles in peer-reviewed journals, conservation plans developed by 
States and counties, scientific status surveys and studies, biological 
assessments, or other unpublished materials and expert opinion or 
personal knowledge.
    Habitat is dynamic, and species may move from one area to another 
over time. In particular, we recognize that climate change may cause 
changes in the arrangement of occupied habitat stream reaches. Climate 
change may lead to increased frequency and duration of severe storms 
and droughts (Golladay et al. 2004, p. 504; McLaughlin et al. 2002, p. 
6074; Cook et al. 2004, p. 1015). From 2006 to 2007, drought conditions 
greatly reduced the habitat of the vermilion darter in Jefferson County 
(Drennen, pers. obs. 2007). Flucker et al. (2007, p. 10) and Drennen 
(pers. obs. 2007) reported that ongoing drought conditions, coupled 
with rapid urbanization within watersheds containing imperiled darters, 
render the populations vulnerable to anthropomorphic disturbances such 
as water extraction, vehicles within Turkey Creek and its tributaries, 
and increased clearing or draining of vulnerable wetlands and spring 
seeps; especially during the breeding season when the darters 
concentrate in specific habitat areas of Turkey Creek and its 
tributaries.
    The information currently available on the effects of global 
climate change and increasing temperatures does not

[[Page 63369]]

make sufficiently precise estimates of the location and magnitude of 
the effects. Nor are we currently aware of any climate change 
information specific to the habitat of the vermilion darter that would 
indicate what areas may become important to the species in the future. 
Therefore, we are unable to determine what additional areas, if any, 
may be appropriate to include in the proposed critical habitat for this 
species; however, we specifically request information from the public 
on the currently predicted effects of climate change on the vermilion 
darter and its habitat. Additionally, we recognize that critical 
habitat designated at a particular point in time may not include all of 
the habitat areas that we may later determine are necessary for the 
recovery of the species. For these reasons, a critical habitat 
designation does not signal that habitat outside the designated 
critical habitat area is unimportant or may not be required for 
recovery of the species.
    Areas that are important to the conservation of the species, but 
are outside the critical habitat designation, will continue to be 
subject to conservation actions we implement under section 7(a)(1) of 
the Act. They are also subject to the regulatory protections afforded 
by the section 7(a)(2) jeopardy standard, as determined based on the 
best available scientific information at the time of the agency action. 
Federally funded or permitted projects affecting listed species outside 
their designated critical habitat areas may still result in jeopardy 
findings in some cases. Similarly, critical habitat designations made 
on the basis of the best available information at the time of 
designation will not control the direction and substance of future 
recovery plans, habitat conservation plans (HCPs), section 7 
consultations, or other species conservation planning efforts if new 
information available at the time of these planning efforts calls for a 
different outcome.
Prudency Determination
    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 at 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 
activity and the identification of critical habitat can be expected to 
increase the degree of threat to the species; or (2) the designation of 
critical habitat would not be beneficial to the species.
    There is no documentation that the vermilion darter is threatened 
by taking or other human activity. In the absence of finding that the 
designation of critical habitat would increase threats to the species, 
if there are any benefits to a critical habitat designation, then a 
prudent finding is warranted. The potential benefits include: (1) 
Triggering consultation, under section 7 of the Act, in new areas for 
action 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) identifying the physical and 
biological features essential to the conservation of the vermilion 
darter and focusing conservation activities on these essential features 
and areas; (3) providing educational benefits to State or county 
governments or private entities engaged in activities or long-range 
planning in areas essential to the conservation of the species; and (4) 
preventing people from causing inadvertent harm to the species. 
Conservation of the vermilion darter and the essential features of the 
habitat will require habitat protection and restoration, which will be 
facilitated by knowledge of habitat locations and the physical and 
biological features of those habitats.
    Therefore, since we have determined that the designation of 
critical habitat will not likely increase the degree of threat to the 
species and may provide some measure of benefit, we find that the 
designation of critical habitat for the vermilion darter is prudent.
Critical Habitat Determinability
     As stated above, section 4(a)(3) of the Act requires the 
designation of critical habitat concurrently with the species' listing 
``to the maximum extent prudent and 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.
    When critical habitat is not determinable, the Act provides for an 
additional year to publish a critical habitat designation (16 U.S.C. 
1533(b)(6)(C)(ii)).
    We reviewed the available information pertaining to the biological 
needs of the vermilion darter, the historical distribution of the 
vermilion darter, and the habitat characteristics where they currently 
survive. This and other information represent the best scientific and 
commercial data available and led us to conclude that the designation 
of critical habitat is determinable for the vermilion darter.
Methods
    As required by section 4(b) of the Act, we used the best scientific 
and commercial data available in determining which areas within the 
geographical area occupied by the species at the time of listing 
contain the features essential to the conservation of the vermilion 
darter that may require special management considerations or 
protections, and which areas outside of the geographical area occupied 
at the time of listing are essential for the conservation of the 
species.
    We reviewed the available information pertaining to historical and 
current distributions, life histories, and habitat requirements of this 
species. Our sources included peer-reviewed scientific publications; 
unpublished survey reports; unpublished field observations by Service, 
State, and other experienced biologists; notes and communications from 
qualified biologists or experts; and Service publications such as the 
final listing rule for the vermilion darter and the Recovery Plan for 
the Vermilion Darter.

Physical and Biological Features

    In accordance with sections 3(5)(A)(i) and 4(b)(1)(A) of the Act 
and the regulations at 50 CFR 424.12, in determining which areas within 
the geographical area occupied at the time of listing to propose as 
critical habitat, we consider the physical and biological features that 
are essential to the conservation of the species which may require 
special management considerations or protection. These include, but are 
not limited to:
    (1) Space for individual and population growth and for normal 
behavior;
    (2) Food, water, air, light, minerals, or other nutritional or 
physiological requirements;
    (3) Cover or shelter;
    (4) Sites for breeding, reproduction, or rearing (or development) 
of offspring; and
     (5) Habitats that are protected from disturbance or are 
representative of the historic, geographical, and ecological 
distributions of a species.
    We consider the specific physical and biological features to be the 
primary constituent elements (PCEs) laid out in the appropriate 
quantity and spatial

[[Page 63370]]

arrangement for the conservation of the species. The PCEs required for 
the vermilion darter are derived from biological needs of the species 
as described in the Background section of this proposed rule and in the 
final listing rule (66 FR 59367). Unfortunately, little is known of the 
specific habitat requirements for this species other than that the 
species requires adequate water quality, water quantity, water flow, 
and a stable stream channel. To identify the physical and biological 
needs of the vermilion darter, we have relied on current conditions at 
locations where the species survives, the limited information available 
on this species and its close relatives, and factors associated with 
the decline and extirpation of fish species within the Mobile River 
Basin (U.S. Fish and Wildlife Service 2000, pp.6-13) and other similar 
watersheds.
Space for Individual and Population Growth and for Normal Behavior
    Little is known about the specific space requirements of the 
vermilion darter within the Turkey Creek system; however, in general, 
darters depend on space from geomorphically stable streams with varying 
water quantities and flow. Vermilion darters are found in the 
transition zone between a riffle (shallow, fast water) or run (deeper, 
fast water) and a pool (deep, slow water) (Blanco and Mayden 1999, 
pp.18-20), usually at the head and foot of the riffles and downstream 
of the run habitat. Construction of impoundments in the Turkey Creek 
watershed has altered stream banks and bottoms; degraded the riffles, 
runs, and pools; and altered the natural water quantity and flow of the 
stream. A stable stream maintains its horizontal dimension and vertical 
profile (stream banks and bottoms), thereby conserving the physical 
characteristics of a stream, including bottom features such as riffles, 
runs, and pools and the transition zones between these features. The 
riffles, runs, and pools not only provide space for the vermilion 
darter, but also provide cover and shelter for breeding, reproduction, 
and growth of offspring.
    In addition, the current range of the vermilion darter is reduced 
to localized sites due to fragmentation, separation, and destruction of 
vermilion darter populations. There are both natural (waterfall) and 
manmade (impoundments) dispersal barriers that not only contribute to 
the separation and isolation of vermilion darter populations, but also 
affect water quality. Fragmentation of the species' habitat has 
subjected these small isolated populations within the Turkey Creek 
system to genetic isolation and reduction of space for rearing and 
reproduction, population maintenance and reduction of adaptive 
capabilities, and increased likelihood of local extinctions (Hallerman 
2003, pp. 363-364; Burkhead et al. 1997, pp 397-399). Genetic variation 
and diversity within a species are essential for recovery, adaptation 
to environmental changes, and long-term viability (capability to live, 
reproduce, and develop) (Noss and Cooperrider 1994, pp. 282-297; Harris 
1984, pp. 93-107). Long-term viability is founded on numerous 
interbreeding, local populations throughout the range (Harris 1984, 
pp.93-107). Continuity of water flow between suitable habitats is 
essential in preventing further fragmentation of the species' habitat 
and populations; conserving the essential riffles, runs, and pools 
needed by vermilion darters; and promoting genetic flow throughout the 
populations. Continuity of habitat will maintain spawning, foraging, 
and resting sites, as well as provide heterozygosity or gene flow 
throughout the population. Connectivity of habitats, as a whole, also 
permits improvement in water quality and water quantity by allowing an 
unobstructed water flow throughout the connected habitats.
    Based on the biological information and needs discussed above, it 
is essential to protect riffles, runs, and pools, and the continuity of 
these structures, to accommodate feeding, spawning, growth, and other 
normal behaviors of the vermilion darter and to promote genetic flow 
within the species.
Food, Water, Air, Light, Minerals, or Other Nutritional or 
Physiological Requirements
Water Quantity and Flow
    Much of the cool, clean water provided to the Turkey Creek main 
stem comes from consistent and steady groundwater sources (springs) 
that contribute to the flow and water quantity in the tributaries 
(Beaver Creek, Dry Creek, Dry Branch, and the unnamed tributary to 
Beaver Creek). Flowing water provides a means for transporting 
nutrients and food items, moderating water temperatures and dissolved 
oxygen levels, and diluting non-point and point source pollution. 
Impoundments within Turkey and Dry creeks not only serve as dispersal 
barriers but have also altered stream flows from natural conditions. 
Without clean water sources, water quality and water quantity would be 
considerably lower and would significantly impair the normal life 
stages and behavior of the vermilion darter.
    Favorable water quantity is an average daily discharge of over 50 
cubic feet per second within the Turkey Creek main stem (U.S. 
Geological Survey 2009, compiled from average annual statistics). Along 
with this average daily discharge, both minimum and flushing flows are 
necessary within the tributaries to maintain all life stages and to 
remove fine sediments and dilute other pollutants (Drennen personal 
observation, February 2009a; Instream Flow Council 2004, pp.103-104, 
375; Gilbert et al. eds. 1994, pp. 505-522; Moffett and Moser 1978, pp. 
20-21). These flows are supplemented by groundwater and contribute to 
the overall stream cleansing effect by adding to the total flow of 
high-quality water. This, in turn, helps in maintenance of stream banks 
and bottoms, essential for normal life stages and behavior of the 
vermilion darter.
Water Quality
    Factors that can potentially alter water quality are decreases in 
water quantity through droughts and periods of low seasonal flow, 
precipitation events, non-point source runoff, human activities within 
the watershed, random spills, and unregulated discharge events 
(Instream Flow Council 2004, pp.29-50). These factors are particularly 
harmful during drought conditions when flows are depressed and 
pollutants are concentrated. Impoundments also affect water quality by 
reducing water flow, altering temperatures, and concentrating 
pollutants (Blanco and Mayden 1999, pp. 5-6, 36). Nonpoint-source 
pollution and alteration of flow regimes are primary threats to the 
vermilion darter in the Turkey Creek watershed.
    Aquatic life, including fish, require acceptable levels of 
dissolved oxygen. The type of organism and its life stage determine the 
level of oxygen required. Generally, among fish, cold water species and 
young life forms are the most sensitive. The amount of dissolved oxygen 
that is present in the water (the saturation level) depends upon water 
temperature. As the water temperature increases, the saturated 
dissolved oxygen level decreases. The more oxygen there is in the 
water, the greater the assimilative capacity (ability to consume 
organic wastes with minimal impact) of that water; lower water flows 
have a reduced assimilative capacity (Pitt 2000, pp. 6-7). Low-flow 
conditions affect the chemical environment occupied by the fish, and 
extended low-flow conditions coupled with higher pollutant levels would 
likely result in behavior changes within all life stages, but could be 
particularly detrimental to

[[Page 63371]]

early life stages (e.g., eggs, larvae, and juveniles).
    Optimal water quality lacks harmful levels of pollutants, such as 
inorganic contaminants like copper, arsenic, mercury, and cadmium; 
organic contaminants such as human and animal waste products; 
endocrine-disrupting chemicals; pesticides; nitrogen, potassium, and 
phosphorous fertilizers; and petroleum distillates. Sediment is the 
most abundant pollutant produced in the Mobile River Basin (Alabama 
Department of Environmental Management 1996, pp.13-15). Siltation 
(excess sediments suspended or deposited in a stream) contributes to 
turbidity of the water and has been shown to suffocate aquatic insects, 
smother fish eggs, clog fish gills, and fill in essential interstitial 
spaces (spaces between stream substrates) used by aquatic organisms for 
spawning and foraging; therefore, siltation negatively impacts fish 
growth, physiology, behavior, reproduction, and survival. Nutrification 
(excessive nutrients present, such as nitrogen and phosphorous) 
promotes heavy algal growth that covers and eliminates clean rock or 
gravel habitats necessary for vermilion darter feeding and spawning. 
High conductivity values are an indicator of hardness and alkalinity 
and may denote water nitrification (Hackney et al. 1999, pp.99-103). 
Generally, early life stages of fishes are less tolerant of 
environmental contamination than adults or juveniles (Little et al. 
1993, pp. 67).
    Appropriate water quality and quantity are necessary to dilute 
impacts from storm water and other non-natural effluents. Harmful 
levels of pollutants impair critical behavior functions in fish and are 
reflected in population-level responses (reduced population size, 
biomass, year class success, etc.). Adequate water quantity and flow 
and good to optimal water quality are essential for normal behavior, 
growth, and viability during all life stages.
    The vermilion darter requires relatively clean, cool flowing water 
within the Turkey Creek main stem and tributaries. The Clean Water Act 
(33 U.S.C. 1251 et seq.), Water Quality Act (Pub. L. 100-4) and Alabama 
Water Pollution Control Act (Ala. Code Sec.  22-22-1) establish 
guidelines for water usage and standards of quality for the State's 
waters necessary to preserve and protect aquatic life. Essential water 
quality attributes for darters and other fish species in fast to middle 
water flow streams include: dissolved oxygen levels greater than 6 
parts per million (ppm), temperatures between 7 [deg] and 26.7 
[deg]Celsius (C) (45 [deg] and 80 [deg]Fahrenheit (F)) with spring egg 
incubation temperatures from 12.2 [deg] to 18.3 [deg]C (54 [deg] to 65 
[deg]F), a specific conductance (ability of water to conduct an 
electric current, based on dissolved solids in the water) of less than 
approximately 225 micro Siemens per centimeter at 26.7 [deg]C (80 
[deg]F), and low concentrations of free or suspended solids (organic 
and inorganic sediments) less than 10 Nephelometric Turbidity Units 
(NTU; units used to measure sediment discharge) and 15 mg/L Total 
Suspended Solids (TSS; measured as mg/L of sediment in water ) (Teels 
et al. 1975, pp. 8-9; Ultschet et al. 1978, pp. 99-101; Ingersoll et 
al. 1984, pp. 131-138; Kundell and Rasmussen 1995, pp. 211-212; Henley 
et al. 2000, pp. 125-139; Meyer and Sutherland 2005, pp. 43-64).
Food
    The vermilion darter is a benthic (bottom) insectivore consuming 
larval chironomids (midges), tipulids (crane flies), and hydropsychids 
(caddisflies), along with occasional microcrustaceans (Boschung and 
Mayden 2004, p. 520; Khudamrongsawat et al. 2005, p.472). Caddisflies 
and crane flies are pollution sensitive organisms found in good to fair 
water quality (Auburn University 1993, p.53). Variation in instream 
flow maintains the stream bottom where food for the vermilion darter is 
found, transports these organisms, and provides oxygen and other 
attributes to various invertebrate life stages. Sedimentation has been 
shown to wear away and suffocate periphyton (organisms that live 
attached to objects underwater) and disrupt aquatic insect communities 
(Waters 1995, pp. 53-86; Knight and Welch 2001, pp. 132-135). In 
addition, nutrification promotes heavy algal growth that covers and 
eliminates the clean rock or gravel habitats necessary for vermilion 
darter feeding and spawning. A decrease in water quality and instream 
flow will correspondingly decrease the major food species for the 
vermilion darter. Thus, food availability for the vermilion darter is 
affected by instream flow and water quality.
    Based on the biological information and needs discussed above, we 
believe it is essential that vermilion darter habitat consist of 
unaltered, connected, stable streams to maintain flow, prevent 
sedimentation, and promote good water quality absent harmful 
pollutants.
Cover or Shelter (Sites for Breeding, Reproduction or Rearing)
    Vermilion darters depend on specific bottom substrates for normal 
and robust life processes such as spawning, rearing, protection of 
young during life stages, protection of adults when threatened, 
foraging, and feeding. These bottom substrates are dominated by fine 
gravel, along with some sand, coarse gravel, cobble, and bedrock 
(Blanco and Mayden 1999, pp. 24-26; Drennen personal observation, 
February 2009b). The vermilion darter prefers small-sized gravel for 
spawning substrates (Blanchard and Stiles 2005, pp.1-12). Occasionally, 
there are also small sticks and limbs on the bottom substrate and 
within the water column (Stiles pers. comm., September 1999; Drennen 
personal observation, May 2007).
    Excessive fine sediments of small sands, silt, and clay may embed 
in the larger substrates, filling in interstitial spaces between these 
structures. Loss of these interstitial areas removes spawning and 
rearing areas, foraging and feeding sites, and escape and protection 
localities (Sylte and Fischenich 2002, pp. 1-25). In addition, dense, 
filamentous algae growth on the substrates may restrict or eliminate 
the usefulness of the interstitial spaces by the vermilion darter.
    Geomorphic instability within the streambed and along the banks 
results in scouring and erosion of these areas, leading to 
sedimentation and loss of shelter and cover for vermilion darters, 
their eggs, and their young. This fine sediment deposition also reduces 
the area available for food sources, such as macroinvertebrates and 
periphyton (Tullos 2005, pp. 80-81).
    Thus, based on the biological information and needs above, 
essential vermilion darter habitat consists of stable streams with a 
stream flow sufficient to remove sediment and eliminate the filling in 
of interstitial spaces and substrate to accommodate spawning, rearing, 
protection of young, protection of adults when threatened, foraging, 
and feeding.
Primary Constituent Elements for Vermilion Darter
    Under the Act and its implementing regulations, we are required to 
identify the physical and biological features essential to the 
conservation of vermilion darter. The physical and biological features 
are the primary constituent elements (PCEs) laid out in the appropriate 
quantity and spatial arrangement essential to the conservation of the 
species. Areas designated as critical habitat for vermilion darter 
contain only occupied areas within the species' historical geographic 
range, and contain sufficient PCEs to support at least one life history 
function.

[[Page 63372]]

    Based on our current knowledge of the life history, biology, and 
ecology of vermilion darter and the requirements of the habitat to 
sustain the essential life history functions of the species, we 
determined that the PCEs specific to vermilion darter are:
     (1) Geomorphically stable stream bottoms and banks (stable 
horizontal dimension and vertical profile) in order to maintain t 
bottom features (riffles, runs, and pools) and transition zones between 
bottom features , to continue appropriate habitat to maintain essential 
riffles, runs, and pools, to promote connectivity between spawning, 
foraging and resting sites, and to maintain gene flow throughout the 
population.
     (2) Instream flow regime with an average daily discharge over 50 
cubic feet per second, inclusive of both surface runoff and groundwater 
sources (springs and seepages).
     (3) Water quality with temperature not exceeding 26.7 [deg]C (80 
[deg]F), dissolved oxygen 6.0 milligrams or greater per liter, 
turbidity of an average monthly reading of 10 Nephelometric Turbidity 
Units (NTU; units used to measure sediment discharge) and 15mg/l Total 
Suspended Solids (TSS; measured as mg/l of sediment in water ) or less; 
and a specific conductance (ability of water to conduct an electric 
current, based on dissolved solids in the water) of no greater than 225 
micro Siemens per centimeter at 26.7 [deg] C (80 [deg]F).
     (4) Bottom substrates consisting of fine gravel with coarse gravel 
or cobble, or bedrock with sand and gravel, with low amounts of fine 
sand and sediments within the interstitial spaces of the substrates.
    With this proposed designation of critical habitat, we intend to 
conserve the physical and biological features essential to the 
conservation of the species, through the identification of the 
appropriate quantity and spatial arrangement of the PCEs sufficient to 
support the life history functions of the species. Each of the areas 
proposed as critical habitat in this rule contains sufficient PCEs to 
provide for one or more of the life history functions of the vermilion 
darter.

Special Management Considerations or Protections

    When designating critical habitat, we assess whether the specific 
areas within the geographical area occupied by the species at the time 
of listing contain the physical and biological features that are 
essential to the conservation of the species and whether those features 
may require special management considerations or protection.
    The five units we are proposing for designation as critical habitat 
will require some level of management to address the current and future 
threats to the physical and biological features essential to the 
conservation of the species. None of the proposed critical habitat 
units are presently under special management or protection provided by 
a legally operative plan or agreement for the conservation of the 
vermilion darter. Various activities in or adjacent to the critical 
habitat units described in this proposed rule may affect one or more of 
the PCEs. For example, features in the proposed critical habitat 
designation may require special management due to threats posed by 
urbanization activities (such as stream channel modification for flood 
control or gravel extraction) that could cause an increase in bank 
erosion; by significant changes in the existing flow regime within the 
streams due to water diversion or withdrawal; by significant alteration 
of water quality; by significant alteration in the quantity of 
groundwater and alteration of spring discharge sites; by significant 
changes in stream bed material composition and quality due to 
construction projects and maintenance activities; by off-road vehicle 
use; by gas and water easements; by bridge construction; by culvert 
installation; by stormwater management; and by other watershed and 
floodplain disturbances that release sediments or nutrients into the 
water. Other activities that may affect PCEs in the proposed critical 
habitat units include those listed in the ``Effects of Critical 
Habitat'' section below.
    As stated above, designation of critical habitat does not imply 
that lands outside of critical habitat do not play an important role in 
the conservation of the vermilion darter. Activities with a Federal 
nexus that may affect areas outside of critical habitat, such as 
development; road construction and maintenance; oil, gas, and utility 
easements; and effluent discharges, are still subject to review under 
section 7 of the Act if they may affect the vermilion darter, because 
Federal agencies must consider both effects to the species and effects 
to critical habitat independently. The Service should be consulted for 
disturbances to areas both within the proposed critical habitat unist 
as well as upstream of those areas known to support vermilion darter, 
including springs and seeps that contribute to the instream flow in the 
tributaries, especially during times when stream flows are abnormally 
low (i.e., during droughts). The prohibitions of section 9 of the Act 
against the take of listed species also continue to apply both inside 
and outside of designated critical habitat.

Criteria Used to Identify Proposed Critical Habitat

    Using the best scientific and commercial data available, as 
required by section 4(b)(1)(A) of the Act, we identified those areas to 
propose for designation as critical habitat that, within the 
geographical area occupied by the species at the time of listing, 
possess those physical and biological features essential to the 
conservation of the vermilion darter which may require special 
management considerations or protection. We also considered the area 
outside the geographical area occupied by the species at the time of 
listing for any areas that are essential for the conservation of the 
vermilion darter.
    We used information from surveys and reports prepared by the 
Alabama Department of Conservation and Natural Resources, Alabama 
Geological Survey, Samford University, University of Alabama, and the 
Service to identify the specific locations occupied by the vermilion 
darter. Currently, occupied habitat for the species is limited and 
isolated. The species is currently located within the upper mainstem 
reaches of Turkey Creek and four tributaries: unnamed tributary to 
Beaver Creek, Beaver Creek, Dry Creek, and Dry Branch in Pinson, 
Jefferson County, Alabama (Blanco and Mayden 1999, pp.18-20; Drennen 
pers. observ. March 2008).
    Following the identification of the specific locations occupied by 
the vermilion darter, we determined the appropriate length of stream 
segments by identifying the upstream and downstream limits of these 
occupied sections necessary for the conservation of the vermilion 
darter. Because populations of vermilion darters are isolated due to 
dispersal barriers, to set the upstream and downstream limits of each 
critical habitat unit, we identified landmarks (bridges, confluences, 
road crossings, and dams) above and below the upper and lowermost 
reported locations of the vermilion darter in each stream reach to 
ensure incorporation of all potential sites of occurrence. These stream 
reaches were then digitized using 7.5' topographic maps and ARCGIS to 
produce the critical habitat map.
    We are proposing to designate as critical habitat all stream 
reaches in occupied habitat. We have defined ``occupied habitat'' as 
those stream reaches occupied at the time of listing and still known to 
be occupied by the vermilion darter ; these stream reaches comprise the 
entire known range of the

[[Page 63373]]

vermilion darter. We are not proposing to designate any areas outside 
the known range of the species because the historical range of the 
vermilion darter, beyond currently occupied areas, is unknown and 
dispersal beyond the current range is not likely due to dispersal 
barriers.
    The five proposed units contain one or more of the PCEs in the 
appropriate quantity and spatial arrangement essential to the 
conservation of this species and support multiple life processes for 
the vermilion darter.
    When identifying proposed critical habitat boundaries, we make 
every effort to avoid including developed areas such as lands covered 
by buildings, pavement, and other structures because such lands usually 
lack PCEs for endangered or threatened species. Areas proposed for 
critical habitat for the vermilion darter below include only stream 
channels within the ordinary high water line and do not contain any 
developed areas or structures.

Proposed Critical Habitat Designation

    We are proposing to designate 5 units, totaling approximately 21.0 
km (13.0 mi), as critical habitat for the vermilion darter. The 
critical habitat units described below constitute our best assessment 
of areas that currently meet the definition of critical habitat for the 
vermilion darter. Table 1 identifies the proposed units for the 
species; shows the occupancy of the units; the approximate extent 
proposed as critical habitat for the vermilion darter; and ownership of 
the proposed designated areas.

                              TABLE 1--Occupancy and Ownership of Proposed Critical Habitat Units for the Vermilion Darter.
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                       Private Ownership     State, County, City
                Unit                        Location                Occupied           Stream Kilometers      Ownership  Stream            Total
                                                                                            (Miles)           Kilometers (Miles)
--------------------------------------------------------------------------------------------------------------------------------------------------------
1                                    Turkey Creek            Yes                     14.9                   0.3                    15.2
                                                                                     (9.2)................  (0.2)................  (9.4)
--------------------------------------------------------------------------------------------------------------------------------------------------------
2                                    Dry Branch              Yes                     0.7                    -                      0.7
                                                                                     (0.4)................                         (0.4)
--------------------------------------------------------------------------------------------------------------------------------------------------------
3                                    Beaver                  Yes                     0.9                    0.1                    1.0
                                     Creek.................                          (0.6)................  (< 0.1)..............  (0.6)
--------------------------------------------------------------------------------------------------------------------------------------------------------
4                                    Dry Creek               Yes                     0.6                    -                      0.6
                                                                                     (0.4)................                         (0.4)
--------------------------------------------------------------------------------------------------------------------------------------------------------
5                                    Unnamed Tributary to    Yes                     3.3                    0.4
                                      Beaver Creek                                   (2.0)................  (0.2)................  3.7
                                                                                                                                   (2.2)
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                     TOTAL                                            20.4                  0.8                    21.2
                                                                                     (12.6)...............  (0.5)................  (13.1)
--------------------------------------------------------------------------------------------------------------------------------------------------------

    We present brief descriptions of each unit and reasons why they 
meet the definition of critical habitat below. The proposed critical 
habitat units include the stream channels of the creek and tributaries 
within the ordinary high water line. As defined in 33 CFR 329.11, the 
ordinary high water line on nontidal rivers is the line on the shore 
established by the fluctuations of water and indicated by physical 
characteristics such as a clear, natural water line impressed on the 
bank; shelving; changes in the character of soil; destruction of 
terrestrial vegetation; the presence of litter and debris; or other 
appropriate means that consider the characteristics of the surrounding 
areas. In Alabama, the riparian landowner owns the stream to the middle 
of the channel.
    For each stream reach proposed as a critical habitat, the upstream 
and downstream boundaries are described generally below; more precise 
descriptions are provided in the Regulation Promulgation at the end of 
this proposed rule.

Unit 1: Turkey Creek, Jefferson County, Alabama

    Unit 1 includes 15.2 km (9.4 mi) in Turkey Creek from Shadow Lake 
Dam downstream to the Section 13/14 (T15S, R2W) line, as taken from the 
U.S. Geological Survey 7.5 topographical map (Pinson quadrangle).
    Approximately 14.9 km (9.2 mi), or 98 percent of this area is 
privately owned. The remaining 0.3 km (0.2 mi), or 2 percent is 
publicly owned by the City of Pinson or Jefferson County in the form of 
bridge crossings and road easements.
    Turkey Creek supports the most abundant and robust populations of 
the vermilion darter in the watershed. Populations of vermilion darters 
are small and isolated within specific habitat sites of Turkey Creek 
from Shadow Lake dam downstream to the old strip mine pools (13/14 S 
T15S R2W section line, as taken from the U.S. Geological Survey 7.5 
topographical map (Pinson quadrangle)). We consider the entire reach of 
Turkey Creek that composes Unit 1 to be occupied.
    One of the three known spawning sites for the species is located 
within the confluence of Turkey Creek and Tapawingo Spring run (PCE 4). 
In addition, Turkey Creek provides the most darter habitat for the 
vermilion darters with an abundance of pools, riffles, and runs (PCE 
1). These geomorphic structures provide the species with spawning, 
foraging, and resting areas (PCEs 1 and 4), along with good water 
quality, quantity, and flow, which support the normal life stages and 
behavior of the vermilion darter and the species' prey sources (PCEs 2 
and 3).
    There are five impoundments in Turkey Creek (Blanco and Mayden 
1999, pp. 5-6, 36, 63) limiting the connectivity of the range and 
expansion of the species into other units and posing a risk of 
extinction to the species due to changes in flow regime, habitat, water 
quality, water quantity, and stochastic events such as drought. These 
impoundments accumulate nutrients and undesirable fish species that 
could propose threats to vermilion darters and the species' habitat. 
Other threats to the

[[Page 63374]]

vermilion darter and its habitat in Turkey Creek that may require 
special management and protection of PCEs include the potential of: 
urbanization activities (such as channel modification for flood control 
or gravel extraction) that could result in increased bank erosion; 
significant changes in the existing flow regime due to water diversion 
or withdrawal; significant alteration of water quality; and significant 
changes in stream bed material composition and quality as a result of 
construction projects and maintenance activities, off-road vehicle use, 
gas and water easements, bridge construction, culvert installation, 
stormwater management, and other watershed and floodplain disturbances 
that release sediments or nutrients into the water.

Unit 2: Dry Branch, Jefferson County, Alabama

    Unit 2 includes 0.7 km (0.4 mi) of Dry Branch from the bridge at 
Glenbrook Road downstream to the confluence with Beaver Creek.
    Almost all of the 0.7 km (0.4 mi) or close to 100 percent of this 
area is privately owned. Less than 1 percent of the area is publicly 
owned by the City of Pinson or Jefferson County in the form of bridge 
crossings and road easements.
    Dry Branch provides supplemental water quantity to Turkey Creek 
proper (Unit 1) and provides connectivity to additional bottom 
substrate habitat and possible spawning sites (PCEs 1, 3, and 4). One 
of the three known spawning sites for the species is located within the 
confluence of this reach (PCE 1 and 4) and Beaver Creek.
    Threats to the vermilion darter and its habitat at Dry Branch that 
may require special management and protection of PCEs 1, 3, and 4 
include the potential of: urbanization activities (such as channel 
modification for flood control, impoundments, gravel extraction) that 
could result in increased bank erosion; significant changes in the 
existing flow regime due to construction of impoundments, water 
diversion, or water withdrawal; significant alteration of water 
quality; and significant changes in stream bed material composition and 
quality as a result of construction projects and maintenance 
activities, off-road vehicle use, gas and water easements, bridge 
construction, culvert installation, stormwater management, and other 
watershed and floodplain disturbances that release sediments or 
nutrients into the water.

Unit 3: Beaver Creek, Jefferson County, Alabama

    Unit 3 includes 1.0 km (0.6 mi) of Beaver Creek from the confluence 
with the unnamed tributary to Beaver Creek downstream to the confluence 
with Turkey Creek.
    Almost 0.9 km (0.6 mi), or 94 percent of this area is privately 
owned. The remaining 0.1 km (< 0.1 mi), or 6 percent is publicly owned 
by the City of Pinson or Jefferson County in the form of bridge 
crossings and road easements.
    Beaver Creek supports populations of vermilion darters, and 
provides supplemental water quantity to Turkey Creek proper (PCEs 1 and 
2). The reach also contains adequate bottom substrate for vermilion 
darters to use in spawning, foraging, and other life processes (PCE 4). 
Beaver Creek makes available additional habitat and spawning sites, and 
offers connectivity with other vermilion darter populations within 
Turkey Creek, Dry Branch, and the unnamed tributary to Beaver Creek 
(PCEs 1 and 4).
    Threats to the vermilion darter and its habitat at Beaver Creek 
that may require special management of PCEs 1, 2, and 4 include the 
potential of: urbanization activities (such as channel modification for 
flood control, impoundments, gravel extraction) that could result in 
increased bank erosion; significant changes in the existing flow 
regime, water diversion, or water withdrawal; significant alteration of 
water quality; and significant changes in stream bed material 
composition and quality as a result of construction projects and 
maintenance activities, off-road vehicle use, gas and water easements, 
bridge construction, culvert installation, stormwater management, and 
other watershed and floodplain disturbances that release sediments or 
nutrients into the water.

Unit 4: Dry Creek, Jefferson County, Alabama

    Unit 4 includes 0.6 km (0.4 mi) of Dry Creek from Innsbrook Road 
downstream to the confluence with Turkey Creek.
    Almost 0.6 km (0.4 mi), or 100 percent of this area is privately 
owned.
    Dry Creek supports populations of vermilion darters and provides 
supplemental water quantity to Turkey Creek proper (PCEs 1 and 2). The 
reach also contains adequate bottom substrate for vermilion darters to 
use in spawning, foraging, and other life processes (PCE 4). Dry Creek 
makes available additional habitat and spawning sites, and offers 
connectivity with vermilion darter populations in Turkey Creek (PCE 1).
    There are two impoundments in Dry Creek (Blanco and Mayden 1999, 
pp. 56, 62) which limit the range and expansion of the species within 
the unit and increases the risk of extinction due to changes in flow 
regime, habitat or water quality, water quantity, and stochastic events 
such as drought. These impoundments amass nutrients and undesirable 
fish species that could propose threats to vermilion darters and to its 
habitat. Threats that may require special management and protection of 
PCEs include: urbanization activities (such as channel modification for 
flood control and gravel extraction) that could result in increased 
bank erosion; significant changes in the existing flow regime due to 
future impoundment construction, water diversion, or water withdrawal; 
significant alteration of water quality; and significant changes in 
stream bed material composition and quality as a result of construction 
projects and maintenance activities, off-road vehicle use, gas and 
water easements, bridge construction, culvert installation, stormwater 
management, and other watershed and floodplain disturbances that 
release sediments or nutrients into the water.

Unit 5: Unnamed Tributary to Beaver Creek, Jefferson County, Alabama

    Unit 5 includes 3.7 km (2.3 mi) of the unnamed tributary of Beaver 
Creek from the Section 12/11 (T16S, R2W) line, as taken from the U.S. 
Geological Survey 7.5 topographical map (Pinson quadrangle), downstream 
to its confluence with Beaver Creek.
    Almost 3.3 km (2.1 mi), or 89 percent of this area is privately 
owned. The remaining 0.4 km (0.2 mi), or 11 percent is publicly owned 
by the City of Pinson or Jefferson County in the form of bridge 
crossings and road easements.
    The unnamed tributary to Beaver Creek supports populations of 
vermilion darters and provides supplemental water quantity to Turkey 
Creek proper (PCEs 1 and 2). The unnamed tributary to Beaver Creek has 
been intensely geomorphically changed by man over the last 100 years. 
The majority of this reach has been modified for flood control, as it 
runs parallel to Highway 79. There are several bridge crossings, and 
the reach has a history of industrial uses along the bank. However, 
owing to the groundwater effluent that constantly supplies this reach 
with clean and flowing water (PCEs 2 and 3), the reach has been able to 
cleanse itself and maintain a population of vermilion darters at 
several locations. One of the three known spawning sites for the 
species is located within this reach (PCE 4).
    The headwaters of the unnamed tributary to Beaver Creek is

[[Page 63375]]

characterized by natural flows that are attributed to an abundance of 
spring groundwater discharges contributing adequate water quality, 
water quantity, and substrates (PCEs 1, 2, and 3). Increasing the 
connectivity of the vermilion darter populations (PCE 1) into the upper 
reaches of this tributary is an essential conservation requirement as 
it would expand the range and decrease the vulnerability of these 
populations to stochastic threats.
    Threats to the vermilion darter and its habitat that may require 
special management and protection of PCEs are: urbanization activities 
(such as channel modification for flood control, and gravel extraction) 
that could result in increased bank erosion; significant changes in the 
existing flow regime due to future impoundment construction, water 
diversion, or water withdrawal; significant alteration of water 
quality; and significant changes in stream bed material composition and 
quality as a result of construction projects and maintenance 
activities, off-road vehicle use, gas and water easements, bridge 
construction, culvert installation, stormwater management, and other 
watershed and floodplain disturbances that release sediments or 
nutrients into the water.

Effects of Critical Habitat Designation

Section 7 Consultation
    Section 7(a)(2) of the Act requires Federal agencies, including the 
Service, to ensure that actions they fund, authorize, or carry out are 
not likely to destroy or adversely modify critical habitat. Decisions 
by the Fifth and Ninth Circuits Courts of Appeals have invalidated our 
definition of ``destruction or adverse modification'' (50 CFR 402.02) 
(see Gifford Pinchot Task Force v. U.S. Fish and Wildlife Service, 378 
F.3d 1059 (9\th\ Cir. 2004) and Sierra Club v. U.S. Fish and Wildlife 
Service, 245 F.3d 434, 442 (5\th\ Cir. 2001)), and we do not rely on 
this regulatory definition when analyzing whether an action is likely 
to destroy or adversely modify critical habitat. Under the statutory 
provisions of the Act, we determine destruction or adverse modification 
on the basis of whether, with implementation of the proposed Federal 
action, the affected critical habitat would remain functional (or 
retain the current ability for the PCEs to be functionally established) 
to serve its intended conservation role for the species.
    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. Conference reports 
provide conservation recommendations to assist the agency in 
eliminating conflicts that may be caused by the proposed action. We may 
issue a formal conference report if requested by a Federal agency. 
Formal conference reports on proposed critical habitat contain an 
opinion that is prepared according to 50 CFR 402.14, as if critical 
habitat were designated. We may adopt the formal conference report as 
the biological opinion when the critical habitat is designated, if no 
substantial new information or changes in the action alter the content 
of the opinion (see 50 CFR 402.10(d)). The conservation recommendations 
in a conference report or opinion are strictly advisory.
    If a species is listed or critical habitat is designated, 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 to destroy or adversely modify 
its critical habitat. If a Federal action may affect a listed species 
or its critical habitat, the responsible Federal agency (action agency) 
mus