Endangered and Threatened Wildlife and Plants; Designation of Critical Habitat for the Vermilion Darter, 75913-75931 [2010-30420]

Agencies

• Fish and Wildlife Service
• DEPARTMENT OF THE INTERIOR

[Federal Register Volume 75, Number 234 (Tuesday, December 7, 2010)]
[Rules and Regulations]
[Pages 75913-75931]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2010-30420]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-R4-ES-2009-0079; MO 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: Final rule.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), designate 
critical habitat for the vermilion darter (Etheostoma chermocki) under 
the Endangered Species Act of 1973, as amended (Act). We designate as 
critical habitat approximately 21.0 kilometers (km) (13.0 miles (mi)) 
of stream in 5 units within the Turkey Creek watershed in Jefferson 
County, AL.

DATES: This rule becomes effective on January 6, 2011.

ADDRESSES: This final rule, the final economic analysis, comments and 
materials received, as well as supporting documentation we used in 
preparing this final rule, are available for viewing on the Internet at 
https://regulations.gov at Docket No. FWS-R4-ES-2009-0079 and, by 
appointment, during normal business hours, at the U.S. Fish and 
Wildlife Service, Mississippi Fish and Wildlife Office, 6578 Dogwood 
View Parkway, Jackson, MS 39213; telephone 601-321-1122; facsimile 601-
965-4340.

FOR FURTHER INFORMATION CONTACT: Stephen Ricks, Field Supervisor, U.S. 
Fish and Wildlife Service, Mississippi Fish and Wildlife Office (see 
ADDRESSES above). If you use a telecommunications device for the deaf 
(TDD), call the Federal Information Relay Service (FIRS) at 800-877-
8339.

SUPPLEMENTARY INFORMATION: 

Background

    It is our intent to discuss only those topics directly relevant to 
the designation of critical habitat for the vermilion darter under the 
Act (16 U.S.C. 1531 et seq.), in this final rule. For more information 
on the biology and ecology of 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. For 
information on vermilion darter critical habitat, refer to the proposed 
rule to designate critical habitat for the vermilion darter published 
in the Federal Register on December 3, 2009 (74 FR 63366). Information 
on the associated draft economic analysis for the proposed rule to 
designate revised critical habitat was published in the Federal 
Register on June 29, 2010 (75 FR 37350). See also the discussion of 
habitat in the Physical and Biological Features section below.

Description and Taxonomy

    The vermilion darter (Etheostoma chermocki (Teleostei: Percidae)) 
was officially described in 1992 from Turkey Creek, a tributary of the 
Locust Fork, which is within the Black Warrior River drainage of 
Jefferson County, Alabama. The vermilion darter belongs to the subgenus 
Ulocentra (snubnose darters), which includes fish that are slightly 
laterally compressed, have complete lateral lines, broadly connected 
gill membranes, a short head, and a small pronounced mouth. The 
vermilion darter is a medium-sized darter, reaching about 7.1 
centimeters (2.8 inches) total length (length from tip of snout to 
longest portion of tail fin).

Distribution and Habitat

    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

[[Page 75914]]

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, pipe, bridge, gas, sewer and water easement construction; and 
inadequate stormwater management (Drennen pers. obs. 2007-2009; Blanco 
and Mayden 1999, pp. 18-20). These activities lead to water quality 
degradation; the production of pollutants (sediments, nutrients from 
sewage, pesticides, fertilizers, and industrial and stormwater 
effluents); stream channel instability; fragmentation; reduced 
connectivity of the habitat from alteration of stream banks and 
bottoms; degradation of riffles, runs, and pools; and changes in water 
quantity and flow necessary for spawning, feeding, resting, and other 
life-history processes of the species.

Previous Federal Actions

    The vermilion darter (Etheostoma chermocki) was listed as 
endangered under the Act on November 28, 2001 (66 FR 59367). At the 
time of listing, we found that designation of critical habitat was 
prudent. However, due to budgetary constraints, we did not designate 
critical habitat at that time. We approved a final recovery plan for 
the vermilion darter on June 20, 2007 (Service 2007), and announced its 
availability 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 the 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. We published a 
proposed critical habitat designation for the vermilion darter on 
December 3, 2009 (74 FR 63366), and accepted public comments for 60 
days.

Summary of Comments and Recommendations

    We requested written comments from the public on the proposed 
designation of critical habitat for the vermilion darter (74 FR 63366) 
during the December 3, 2009, to February 1, 2010, comment period. We 
contacted appropriate Federal, State, and local agencies; scientific 
organizations; and other interested parties, and invited them to 
comment on the proposed rule. We issued a press release and published a 
legal notice in the Birmingham News. On June 29, 2010, we published a 
notice reopening the comment period until July 29, 2010, as well as 
announcing the availability of a draft economic analysis and amended 
required determinations (75 FR 37350). We directly notified, and 
requested comments from the State of Alabama. During the open comment 
periods we received a total seven comments letters: five from 
organizations and individuals and two from peer reviewers, one of whom 
also represented the State of Alabama. All comments supported 
designation of critical habitat for the vermilion darter. We reviewed 
all comments for substantive issues and new data regarding vermilion 
darter critical habitat and the economic analysis. Written comments are 
addressed in the following summary. For readers' convenience, we have 
combined similar comments into single comments and responses.

Peer Review

    In accordance with our policy published in the Federal Register on 
July 1, 1994 (59 FR 34270), we solicited expert opinions from three 
knowledgeable individuals with scientific expertise that included 
familiarity with the species, the geographic region in which the 
species occurs, and conservation biology principles. The purpose of 
such review is to ensure that the designation is based on 
scientifically sound data, assumptions, and analysis, including input 
of appropriate experts and specialists. We received written responses 
from two of the three peer reviewers whom we contacted. The peer 
reviewers generally agreed that the rule incorporated the best 
scientific information available, accurately described the species and 
its habitat requirements (primary constituent elements), accurately 
characterized the reasons for the species' decline and the threats to 
its habitat. Both peer reviewers concurred with our critical habitat 
selection criteria and use of the Vermilion Darter Recovery Plan (USFWS 
2007) as a foundation for the proposed designation. Both peer reviewers 
provided additional information, clarifications, and suggestions to 
improve the final critical habitat rule. These editorial revisions and 
clarifications have been incorporated into the final rule, as 
appropriate. One peer reviewer recommended an additional area for 
critical habitat designation.

Peer Reviewer Comments

    Comment 1: The six-lane Northern Beltline Corridor and the right-
of-way segment for the Northern Beltline Corridor between Alabama 
Highway 79 and Alabama Highway 75 north of Pinson will have direct and 
indirect impacts on the critical habitat of the vermilion darter and 
the general water quality of the Turkey Creek watershed.
    Our Response: The Northern Beltline crosses the northern portions 
of Dry Creek. Only 0.6 km (0.4 mi) of Dry Creek below Innsbrook Lake is 
designated as critical habitat and this is not within the immediate 
area of the Northern Beltline. We reviewed and evaluated the Northern 
Beltline Corridor in accordance with the Fish and Wildlife Coordination 
Act (48 Stat. 401, as amended; 16 U.S.C. 661 et seq.) and the 
Endangered Species Act. We found that the project would not adversely 
affect the vermilion darter or any federally listed species. We will 
reinitiate consultation if new information indicates that the Northern 
Beltline is a threat to the species or its designated critical habitat, 
or if the project is modified in a manner or extent not previously 
considered.
    Comment 2: Stormwater management is a much larger issue to critical 
habitat than what is presented in the rule. There is no maximum 
instream flow limit in reference to the impacts of stormwater on 
critical habitat.
    Our Response: Stormwater management and its implications to water 
quality are addressed within the threats section of this rule. In 
regard to water quantity and stormwater management, an instream flow 
regime with a minimum average daily discharge over 50 cubic feet per 
second (compiled from U.S. Geological Survey flow data) is critical to 
the vitality of the critical habitat and is discussed in this rule. 
However, at this time, we do not have sufficient scientific information 
to determine a maximum stormwater management flow for the designated 
critical habitat. Average discharges of greater than 100 cubic feet per 
second, inclusive of both surface runoff and groundwater sources 
(springs and seepages), occur sporadically throughout the hydrologic 
cycle of the critical habitat and may be important maximum flow 
benchmarks in the future for determining the maximum flow. However, it 
is not known at this time at what point, or velocity in cubic feet per 
second, a flow within the hydrological year changes from a

[[Page 75915]]

flushing flow to a flow that causes geomorphologic or biological 
damage.
    Comment 3: The commenter states that protection of aquifers and 
groundwater recharge areas is especially important because of the 
impacts of climate change on the habitat of the vermilion darter; 
specifically those impacts ``resulting in higher stream water 
temperatures and lower flows, and stormwater management needs and 
higher flows.'' The Service should be consulted for disturbances within 
the critical habitat area as well as beyond the immediate critical 
habitat area within the recharge areas particularly in regard to 
springs and seeps.
    Our Response: Critical habitat only affects Federal agencies and 
those projects which have a Federal nexus. All Federal agencies must 
comply with section 7 of the Act. Section 7 requires consultation on 
Federal actions that may adversely affect critical habitat. Under 
section 7 of the Act, the Federal action agency must provide an 
analysis of cumulative effects along with other information, when 
requesting formal consultation. The Service will be consulted for 
disturbances to areas both within the critical habitat units as well as 
those within the recharge area, including springs and seeps that 
contribute to the instream flow in the tributaries, especially during 
times when stream flows are abnormally low. See the Effects of Critical 
Habitat Designation section of this rule for additional information on 
section 7 consultation.
    Comment 4: The Service should include the spring run on the east 
side of north bound Alabama Highway 79 as part of the critical habitat 
designation. Vermilion darters have been collected there during the 
spawning season.
    Our Response: We acknowledge that there have been some sporadic 
collections of the vermilion darter at this spring run. We did not 
designate this site as critical habitat because the available 
information demonstrated that it did not contain the physical and 
biological features essential to the conservation of the species. See 
the Primary Constituent Elements section of this rule for areas 
essential to the conservation of the species. The spring run is located 
in a road-side ditch about 30 feet long. The run is bordered on all 
sides by pipes, roads, and a parking lot. It is disjunct and drains 
into Unit 5 but first must traverse about 100 feet within a pipe under 
Highway 79. However, although the spring run is not designated as 
critical habitat, the site will continue to be subject to conservation 
actions we implement under section 7 of the Act. See the Effects of 
Critical Habitat Designation section of this rule for additional 
information on section 7 consultation.

Public Comments

    Comment 5: The size of the critical habitat for the vermilion 
darter is inadequate. The entire watersheds of the proposed stream 
units should be designated as critical habitat. At a minimum, the 
Service should designate a 300- to 500-foot buffer zone along each bank 
of all 5 stream units as critical habitat.
    Our Response: The Act requires us to designate specific areas 
within the geographical area occupied by a species at the time it is 
listed which contain physical or biological features that are essential 
to the conservation of the species, and that may require special 
management considerations or protection. Specific areas outside the 
geographical area occupied by a species at the time of listing may also 
be designated critical habitat if it is determined that such areas are 
essential for the conservation of the species. We believe the five 
stream units that were proposed as critical habitat are occupied by the 
vermilion darter, are essential to its conservation, and require 
special management considerations or protection. As described in the 
proposed rule (74 FR 63366), we considered additional areas; however, 
they did not meet the criteria for designation as critical habitat.
    When evaluating the effects of any Federal action subject to 
section 7 consultation, all activities which have the potential to 
destroy or adversely modify designated critical habitat must be 
considered. Adverse impacts to vermilion darter critical habitat might 
result from stormwater runoff, eutrophication, or potential changes in 
hydrology, geomorphology, etc. (see Effects of Critical Habitat 
Designation section below), that would include areas upstream of or 
adjacent to areas of stream channels that were designated critical 
habitat. Therefore, specific designation of these areas is unnecessary. 
Identification of the stream channel as critical habitat provides 
notice to Federal agencies to review activities conducted anywhere 
within the drainage for their potential effects to the designated 
portion of the channel. Critical habitat designation will alert third 
parties of the importance of the area to the survival of the vermilion 
darter.
    Comment 6: The six-lane Northern Beltline Corridor will cross Dry 
Creek and follow the hilly terrain within the Turkey Creek watershed. 
Dry Creek will be placed in culverts at two locations and the general 
water quality of the Turkey Creek watershed, along with the habitat of 
the vermilion darter, will be impacted negatively.
    Our Response: We evaluated the potential effects of the Northern 
Beltline on the vermilion darter and other trust resources in 
accordance with the Fish and Wildlife Coordination Act (48 Stat. 401, 
as amended; 16 U.S.C. et seq.) and the Endangered Species Act and found 
that the project would not adversely affect any federally listed 
species. We will reinitiate consultation if new information indicates 
that the Northern Beltline is a threat to the species or its designated 
critical habitat, or if the project is modified in a manner or extent 
not previously considered (See Comment 1 in the Peer Reviewer Comments 
section).
    Comment 7: Strip mines are occurring along the Locust Fork of the 
Black Warrior River near Turkey Creek, outside of the vermilion 
darter's range and the critical habitat, but within the lower portion 
of the Turkey Creek watershed. The Majestic Mine is permitted to 
discharge within Turkey Creek via the creek's tributaries. The Service 
may want to consider extending the critical habitat of Turkey Creek 
downstream (from the lower section) to the confluence with the Locust 
Fork of the Black Warrior River, thus allowing the future downstream 
migration or reintroduction of the species.
    Our Response: The areas below the most downstream point of Turkey 
Creek do not contain, at this time, the physical and biological 
features essential to the conservation of the vermilion darter. Current 
and proposed coal mining activities, along with current geomorphic 
conditions, limit the expansion of the vermilion darter beyond this 
point within Turkey Creek.
    Comment 8: We are skeptical that the rule provides conservation 
standards adequate for the vermilion darter because critical habitat 
designation is based on data collected over a decade ago when the 
species was listed. An updated assessment may have expanded critical 
habitat to other areas.
    Our Response: We utilized the most current information available 
when preparing this designation, including information from studies 
conducted since the vermilion darter listing in 2001 (i.e., 
Khudamrongsawat 2007, Khudamrongsawat et al. 2005, Rakes and Shute 
2005, USFWS 2007). We have determined that sufficient information is 
available to identify basic features essential to the conservation of 
the species as well as specific areas that meet the definition of 
critical habitat (see Critical Habitat section below).

[[Page 75916]]

    Comment 9: Ensure the continuity in water flow in the Units to 
promote genetic flow within Turkey Creek, to prevent the extinction of 
the vermilion darter.
    Our Response: We will implement the requirements of the Act and 
continue to monitor all activities that might affect stream flow and 
continuity within the designated area in light of their effects on 
water quality or quantity (see Physical and Biological Features and 
Effects of Critical Habitat Designation sections below).

Comments From States

    We received two editorial comments to the critical habitat rule 
from the Alabama Department of Conservation and Natural Resources, 
which have been incorporated into this final rule. No official position 
was expressed by the State on the critical habitat designation.

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 of the Act 
through the requirement that Federal agencies insure, 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 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 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.
    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 which are essential to 
the conservation of the species, and which may require special 
management considerations or protection. Critical habitat designations 
identify, to the extent known using the best scientific and commercial 
data available, those physical and biological features that are 
essential to the conservation of the species (such as space, food, 
cover, and protected habitat), focusing on the principal biological or 
physical constituent elements (primary constituent elements) within an 
area that are essential to the conservation of the species (such as 
roost sites, nesting grounds, seasonal wetlands, water quality, tide, 
soil type). Primary constituent elements are the elements of physical 
and biological features that, when laid out in the appropriate quantity 
and spatial arrangement to provide for a species' life-history 
processes, are essential to the conservation of the species.
    Under the Act, we can designate critical habitat in 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. We designate critical habitat in areas outside the 
geographical area occupied by a species only when a designation limited 
to its range would be inadequate to ensure the conservation of the 
species. When the best available scientific data do not demonstrate 
that the conservation needs of the species require such additional 
areas, we will not designate critical habitat in areas outside the 
geographical area occupied by the species. An area currently occupied 
by the species but that was not occupied at the time of listing may, 
however, be essential to the conservation of the species and may be 
included in the critical habitat designation.
    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). Fluker 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

[[Page 75917]]

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 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, as explained 
in the proposed rule (74 FR 63366), we are unable to determine what 
additional areas, if any, may be appropriate to include in the final 
critical habitat for this species to address the effects of climate 
change.
    We recognize that critical habitat designated at a particular point 
in time may not include all of the habitat areas that we may later 
determine are necessary for the recovery of the species. For these 
reasons, a critical habitat designation does not signal that habitat 
outside the designated area is unimportant or may not be required for 
recovery of the species. Areas that are important to the conservation 
of the species, both inside and outside the critical habitat 
designation, will continue to be subject to: (1) Conservation actions 
implemented under section 7(a)(1) of the Act, (2) regulatory 
protections afforded by the requirement in section 7(a)(2) of the Act 
for Federal agencies to insure their actions are not likely to 
jeopardize the continued existence of any endangered or threatened 
species, and (3) the prohibitions of section 9 of the Act if actions 
occurring in these areas may affect the species. Federally funded or 
permitted projects affecting listed species outside their designated 
critical habitat areas may still result in jeopardy findings in some 
cases. These protections and conservation tools will continue to 
contribute to recovery of this species. Similarly, critical habitat 
designations made on the basis of the best available information at the 
time of designation will not control the direction and substance of 
future recovery plans, habitat conservation plans (HCPs), or other 
species conservation planning efforts if new information available at 
the time of these planning efforts calls for a different outcome.

Physical and Biological Features

    In accordance with sections 3(5)(A)(i) and 4(b)(1)(A) of the Act 
and regulations at 50 CFR 424.12(b), in determining which areas within 
the geographical area occupied at the time of listing to designate as 
critical habitat, we considered the physical and biological features 
that are essential to the conservation of the species and 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 historical, geographical, and ecological 
distributions of a species.
    We derive the specific physical and biological features required 
for the vermilion darter from the biological needs of the species as 
described in the Critical Habitat section of the proposed rule to 
designate critical habitat for the vermilion darter published in the 
Federal Register on December 3, 2009 (74 FR 63366), and in the 
information presented below. Additional information can be found in 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. 
We have determined that the vermilion darter requires the following 
physical and biological features:
Space for Individual and Population Growth and for Normal Behavior
    While little is known about the specific space requirements of the 
vermilion darter within the Turkey Creek system, darters, in general, 
depend on space from geomorphically stable streams with varying water 
quantities and flow. Studies show that 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 and 
inadequate storm water management in the Turkey Creek watershed have 
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, 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 
isolated the populations within the Turkey Creek system, reduced space 
for rearing and reproduction and population maintenance, reduced 
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 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.

[[Page 75918]]

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 nonpoint- and point-source pollution. 
Impoundments within Turkey and Dry Creeks not only serve as dispersal 
barriers but also have 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), 
inclusive of both surface runoff and groundwater sources (springs and 
seepages) and exclusive of flushing flows. However, the favorable upper 
limit for the average daily discharge is not known. 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 pers. obs., 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. 
However, excessive stormwater flow can alter the geomorphology of the 
existing stream by disturbing bottom substrate and banksides along with 
dislodging vegetation.
Water Quality
    Factors that can potentially alter water quality are decreases in 
water quantity through droughts and periods of low seasonal flow, 
precipitation events, nonpoint-source runoff, human activities within 
the watershed, random spills, and unregulated stormwater 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, requires acceptable levels of 
dissolved oxygen. The type of organism and its life stage determine the 
level of oxygen required. Generally, among fish, the 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 early life stages (e.g., embryo, larvae, and juvenile).
    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 reduce photosynthesis in 
aquatic plants, 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. Eutrophication (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. 1992, pp.199-203). Generally, early life 
stages of fishes are less tolerant of environmental contamination than 
adults or juveniles (Little et al. 1993, p. 67).
    Adequate water quality and good to optimal water 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 also 
essential for normal behavior, growth, and viability during all life 
stages. However, excessive water quantity as stormwater runoff may 
destabilize and move bottom and bankside substrates as well as increase 
instream sedimentation and decrease water quantity in general.
    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 and 26.7 [deg]Celsius 
(C) (45 and 80 [deg]Fahrenheit (F)) with spring egg incubation 
temperatures from 12.2 to 18.3 [deg]C (54 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

[[Page 75919]]

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, eutrophication 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. Excessive 
water quantity as stormwater runoff may destabilize and move bottom and 
bankside substrates as well as increase instream sedimentation and 
decrease water quantity in general. 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 pers. obs., 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 pers. obs., 
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. 
Excessive fine sediment can also impact aquatic vegetation by reducing 
sunlight due to turbid water or by covering the vegetation with fine 
silt. Aquatic vegetation is likely also used by vermilion darters as a 
spawning substrate (Kuhajda pers. comm., May 2007).
    Geomorphic instability within the streambed and along the banks 
from high stormwater flow results in scouring and erosion of these 
areas, leading to sedimentation and loss of vegetation and substrate 
for 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 the vermilion darter in areas occupied at the time of 
listing, focusing on the features' primary constituent elements. We 
consider primary constituent elements to be the elements of physical 
and biological features that, when laid out in the appropriate quantity 
and spatial arrangement to provide for a species' life-history 
processes, are 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 primary constituent elements to support at least one 
life-history process.
    Based on our current knowledge of the life history, biology, and 
ecology of vermilion darter and the requirements of the habitat to 
sustain the life-history processes of the species, we determined that 
the primary constituent elements specific to vermilion darter are:
    Primary Constituent Element 1. Geomorphically stable stream bottoms 
and banks (stable horizontal dimension and vertical profile) in order 
to maintain the bottom features (riffles, runs, and pools) and 
transition zones between bottom features, to promote connectivity 
between spawning, foraging, and resting sites, and to maintain gene 
flow throughout the species' range.
    Primary Constituent Element 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) and 
exclusive of flushing flows.
    Primary Constituent Element 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 NTUs 
and 15mg/l TSS or less; and a specific conductance of no greater than 
225 micro Siemens per centimeter at 26.7 [deg]C (80 [deg]F).
    Primary Constituent Element 4. Stable 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 along with adequate aquatic 
vegetation.
    With this designation of critical habitat, we intend to identify 
the physical and biological features essential to the conservation of 
the species, through the identification of the appropriate quantity and 
spatial arrangement of the primary constituent elements sufficient to 
support the life-history processes of the species. Each of the areas 
identified as critical habitat in this rule contains sufficient primary 
constituent elements to provide for one or more of the life-history 
processes of the vermilion darter.

Criteria Used To Identify Final Critical Habitat

    As required by section 4(b)(1)(A) of the Act, we used the best 
scientific and commercial data available to designate critical habitat. 
We reviewed available information pertaining to the habitat 
requirements of this species. In accordance with the Act and its 
implementing regulation at 50 CFR 424.12(e), we considered whether 
designating additional areas--outside those currently occupied as well 
as those occupied at the time of listing--are necessary to ensure the 
conservation of the species. We are designating all stream reaches in 
occupied habitat as critical habitat. We have defined ``occupied 
habitat'' as those stream reaches occupied at the time of listing, all 
of which are still known as of the publication date of this rulemaking 
to be

[[Page 75920]]

occupied by the vermilion darter; these stream reaches comprise the 
entire known range of the vermilion darter. We are not designating 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.
    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. obs. March 2008).
    Following the identification of the specific locations occupied by 
the vermilion darter, we determined the appropriate length of stream 
segments to designate by identifying the upstream and downstream limits 
of these occupied sections necessary for the conservation of the 
vermilion darter. Populations of vermilion darters are isolated due to 
dispersal barriers. Accordingly, we set the upstream and downstream 
limits of each critical habitat unit by identifying landmarks (bridges, 
confluences, road crossings, and dams) above and below the upper- and 
lower-most 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-minute topographic 
maps and ARCGIS to produce the critical habitat map.
    The five final critical habitat units contain physical and 
biological features with one or more of the primary constituent 
elements in the appropriate quantity and spatial arrangement for the 
features to support multiple life processes for the vermilion darter 
and to be essential to the conservation of this species.
    When identifying final 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 primary constituent elements for endangered or threatened species. 
Areas identified as 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.

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 features that are essential to the conservation 
of the species and which may require special management considerations 
or protection.
    The five units we are designating 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 final 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 final rule may affect one or more of the physical and biological 
features. For example, features in the final critical habitat 
designation may require special management due to threats posed by the 
following activities or disturbances: urbanization activities and 
inadequate stormwater management (such as stream channel modification 
for flood control or gravel extraction) that could cause an increase in 
bank erosion; significant changes in the existing flow regime within 
the streams due to water diversion or withdrawal; significant 
alteration of water quality; significant alteration in the quantity of 
groundwater and alteration of spring discharge sites; significant 
changes in stream bed material composition and quality due to 
construction projects and maintenance activities; off-road vehicle use; 
sewer, gas, and water easements; bridge construction; culvert and pipe 
installation; stormwater management; and other watershed and floodplain 
disturbances that release sediments or nutrients into the water. Other 
activities that may affect physical and biological features in the 
final critical habitat units include those listed in the Effects of 
Critical Habitat Designation section below.

Final Critical Habitat Designation

    We are designating 5 units, totaling approximately 21.2 stream km 
(13.1 stream 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 final units for the species, 
the occupancy of the units, the final extent of critical habitat for 
the vermilion darter, and ownership of the final designated areas.

          Table 1--Occupancy and Ownership of the Final Critical Habitat Units for the Vermilion Darter
----------------------------------------------------------------------------------------------------------------
                                                                      Private     State, county,
                                                                     ownership    city ownership
             Unit                  Location          Occupied         stream          stream           Total
                                                                    kilometers      kilometers
                                                                      (miles)         (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 Creek....  Yes............             0.9             0.1             1.0
                                                                           (0.6)         (< 0.1)           (0.6)
4............................  Dry Creek.......  Yes............             0.6  ..............             0.6
                                                                           (0.4)                           (0.4)
5............................  Unnamed           Yes............             3.3             0.4             3.7
                                Tributary to                               (2.0)           (0.2)           (2.2)
                                Beaver Creek.
                              ----------------------------------------------------------------------------------
    Total....................  ................  ...............            20.4             0.8            21.2
                                                                          (12.6)           (0.5)          (13.1)
----------------------------------------------------------------------------------------------------------------


[[Page 75921]]

    We present brief descriptions of each unit and reasons why they 
meet the definition of critical habitat below. The final 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, for nonnavigable waterways, the riparian landowner 
owns the stream to the middle of the channel.
    For each stream reach of final critical habitat, the upstream and 
downstream boundaries are described generally below; more precise 
descriptions are provided in the Regulation Promulgation section at the 
end of this final 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-minute 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-
minute 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 (Stiles, 
pers. comm. 1999) is located within the confluence of Turkey Creek and 
Tapawingo Spring run (Primary Constituent Element 4). In addition, 
Turkey Creek provides the most darter habitat for the vermilion darters 
with an abundance of pools, riffles, and runs (Primary Constituent 
Element 1). These geomorphic structures provide the species with 
spawning, foraging, and resting areas (Primary Constituent Elements 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 (Primary Constituent Elements 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 vermilion darter and its habitat in Turkey Creek 
which may require special management and protection of primary 
constituent elements include the potential of: urbanization activities 
(such as channel modification for flood control, inadequate stormwater 
management, or gravel extraction) that could result in increased bank 
erosion; significant changes in the existing flow regime due to 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; sewer, gas, and water easements; bridge construction; 
culvert and pipe installation; 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.
    Most 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 (Primary Constituent 
Elements 1, 3, and 4). One of the three known spawning sites for the 
species is located within the confluence of this reach (Primary 
Constituent Element 1 and 4) and Beaver Creek (Stiles, pers. comm. 
2009).
    Threats to the vermilion darter and its habitat at Dry Branch which 
may require special management and protection of Primary Constituent 
Elements 1, 3, and 4 include the potential of: urbanization activities 
(such as channel modification for flood control, inadequate stormwater 
management, construction of impoundments, and 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; sewer, gas, and water easements; 
bridge construction; culvert and pipe installation; 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 and Dry Branch 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 (under 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 (Primary 
Constituent Elements 1 and 2). The reach also contains adequate bottom 
substrate for vermilion darters to use in spawning, foraging, and other 
life processes (Primary Constituent Element 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 (Primary 
Constituent Elements 1 and 4).
    Threats to the vermilion darter and its habitat at Beaver Creek 
which may require special management of Primary Constituent Elements 1, 
2, and 4 include the potential of: urbanization activities (such as 
channel modification for flood control, construction of impoundments, 
gravel extraction) that could result in increased bank erosion; 
significant changes in the existing flow regime due to inadequate 
stormwater management, 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; sewer, gas, 
and water easements; bridge construction; culvert and pipe 
installation; and other watershed and

[[Page 75922]]

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.
    One hundred percent of this area, is privately owned.
    Dry Creek supports populations of vermilion darters and