Endangered and Threatened Wildlife and Plants; Reclassification of the Okaloosa Darter From Endangered to Threatened and Special Rule, 18087-18103 [2011-7668]

Agencies

• Fish and Wildlife Service
• DEPARTMENT OF THE INTERIOR

[Federal Register Volume 76, Number 63 (Friday, April 1, 2011)]
[Rules and Regulations]
[Pages 18087-18103]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-7668]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-R4-ES-2008-0071; 92220-1113-0000-C6]
RIN 1018--AW95


Endangered and Threatened Wildlife and Plants; Reclassification 
of the Okaloosa Darter From Endangered to Threatened and Special Rule

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), are 
reclassifying the Okaloosa darter (Etheostoma okaloosae) from 
endangered to threatened under the authority of the Endangered Species 
Act of 1973, as amended (Act). The endangered designation no longer 
correctly reflects the current status of this fish due to a substantial 
improvement in the species' status. This action is based on a thorough 
review of the best available scientific and commercial data, which 
indicate a substantial reduction in threats to the species, a 
significant habitat restoration in most of the species' range, and a 
stable or increasing trend of darters in all darter stream systems. We 
also establish a special rule under section 4(d) of the Act. This 
special rule allows Eglin Air Force Base to continue activities with a 
reduced regulatory burden and will provide a net benefit to the 
Okaloosa darter.

DATES: This final rule is effective May 2, 2011.

ADDRESSES: Comments and materials received, as well as supporting 
documentation used in the preparation of this final rule, are available 
for public inspection, by appointment, during normal business hours at 
the Panama City Field Office, U.S. Fish and Wildlife Service, 1601 
Balboa Avenue, Panama City, FL 32405.
    You may obtain copies of this final rule from the address above, by 
calling 850/769-0552, or at the Federal eRulemaking Portal: https://www.regulations.gov.

FOR FURTHER INFORMATION CONTACT: Don Imm, Field Supervisor, at the 
Panama City Field Office (see ADDRESSES) (telephone 850/769-0552; 
facsimile 850/763-2177). Individuals who are hearing-impaired or 
speech-impaired may call the Federal Information Relay Service at 800/
877-8339 for TTY assistance 24 hours a day, 7 days a week.

SUPPLEMENTARY INFORMATION:

Previous Federal Actions

    We proposed listing the Okaloosa darter as endangered on January 
15, 1973 (38 FR 1521) and listed the species as endangered under the 
Act (16 U.S.C. 1531 et seq.) on June 4, 1973 (38 FR 14678) due to its 
extremely limited range, habitat degradation, and apparent competition 
from a possibly introduced related species, the brown darter. We 
completed a recovery plan for the species on October 23, 1981, and a 
revised recovery plan on October 26, 1998.
    On June 21, 2005, we provided notice in the Federal Register that 
we were initiating a 5-year status review under the Act for the 
Okaloosa darter (70 FR 35689).The 5-year status review was completed in 
July 2007, and is available on our Web site at https://www.fws.gov/southeast/5yearReviews/5yearreviews/okaloosa_darterfinal.pdf.
    On February 2, 2010, we published a proposed rule to reclassify the 
Okaloosa darter from endangered to threatened and a proposed special 
rule under section 4(d) of the Act (75 FR 5263). We requested that all 
interested parties submit comments and information concerning the 
proposed reclassification of the Okaloosa darter. We provided 
notification of the publication of the proposed rule through e-mail, 
facsimile, telephone calls, letters, and news releases sent to the 
appropriate Federal, State, and local agencies; county governments; 
elected officials; media outlets; local jurisdictions; scientific 
organizations; interest groups; and other interested parties. We also 
posted the proposed rule on the Service's Panama

[[Page 18088]]

City Field Office Internet Web site following the rule's publication. 
We accepted public comments on the proposed rule for 60 days, ending 
April 5, 2010.

Background

    The Okaloosa darter, Etheostoma okaloosae, is a member of the 
family Percidae. It is a small, perch-like fish (maximum size is 49 
millimeters (mm) (1.93 inches (in.)) Standard Length) that is 
characterized by a well-developed humeral spot, a series of five to 
eight rows of small spots along the sides of the body, and the first 
anal spine being longer than the second. General body coloration varies 
from red-brown to green-yellow dorsally, and lighter ventrally, 
although breeding males have a bright orange submarginal stripe on the 
first dorsal fin (Burkhead et al. 1992, p. 23).
    The endemic Okaloosa darter is known to occur in only six clear 
stream systems that drain into two Choctawhatchee Bay bayous in Walton 
and Okaloosa Counties in northwest Florida. Okaloosa darters are 
currently found in the tributaries and the main channels of the 
following six streams: Toms, Turkey, Mill, Swift, East Turkey, and 
Rocky Creeks. Approximately 90 percent of the 457 square kilometer (176 
square mile) watershed drainage area that historically supported the 
Okaloosa darter is under the management of Eglin Air Force Base (AFB), 
and we estimate that 98.7 percent of the stream length in the darter's 
current range is within the boundaries of Eglin AFB. Eglin AFB 
encompasses the headwaters of all six of these drainages, and the 
remainder of the these streams flow out of Eglin AFB into the urban 
complex of the Cities of Niceville and Valparaiso (USAF 2006, p. 3-1).
    Longleaf pine-wiregrass-red oak sandhill communities dominate the 
vegetation landscape in Okaloosa darter watershed basins. These areas 
are characterized by high sand ridges where soil nutrients are low and 
woodland fire is a regular occurrence. Where water seeps from these 
hills, acid bog communities develop of Sphagnum sp. (sphagnum moss), 
Sarracenia sp. (pitcher plants), and other plants adapted to low 
nutrient soils. In other areas, the water emerges from seepage springs 
directly into clear flowing streams where variation of both temperature 
and flow is moderated by the deep layers of sand. The streams support a 
mixture of Mayaca fluviatilis (bog moss), Scirpus etuberculatus 
(bulrush), Orontium aquaticum (golden club), Sparganium americanum 
(burr-weed), Potamogeton diversifolius (pondweed), Eleocharis sp. 
(spikerush), and other aquatic and emergent plants.
    Okaloosa darters typically inhabit the margins of moderate- to 
fast-flowing streams where detritus, root mats, and vegetation are 
present. Historic densities averaged about two darters per meter (3.28 
feet) of stream length while more recent abundance estimates show an 
increase to an average of 2.9 darters per meter (Jordan and Jelks 2004, 
p. 3; USAF 2006, p. 3-1). They are only rarely collected in areas where 
there is no current or in open sandy areas in the middle of the stream 
channel. The creeks with Okaloosa darters are generally shaded over 
most of their courses, with temperatures ranging from 7 to 22 degrees 
Celsius ([deg]C) (44 to 72 degrees Fahrenheit ([deg]F)) in the winter 
(Tate 2008, pers. comm.; Jelks 2010, pers. comm.) to 22 to 29 [deg]C 
(72 to 84 [deg]F) in the summer (Mettee and Crittenden 1977, p. 5; 
Jelks 2010, pers. comm).
    Okaloosa darters feed primarily on fly larvae (Diptera sp.), mayfly 
nymphs (Ephemeroptera sp.), and caddis fly (Trichoptera sp.) larvae 
(Ogilvie 1980, as referenced in Burkhead et al. 1992, p. 26). The 
breeding season extends from late March through October, although it 
usually peaks in April. Spawning pairs have been videographed attaching 
one or two eggs to vegetation, and observed attaching eggs to woody 
debris and root mats (Collete and Yerger 1962, p. 226; Burkhead et al. 
1994, p. 81). Ogilvie (1980, as referenced in Burkhead et al. 1992, p. 
26) found a mean of 76 ova (unfertilized eggs) and 29 mature ova in 201 
female Okaloosa darters, although these numbers may under-represent 
annual fecundity as the prolonged spawning season is an indication of 
fractional spawning (eggs develop and mature throughout the spawning 
season). Estimates of longevity range from 2 to 5 years (Burkhead et 
al. 1992, p. 27; Jordan 2010, pers. comm.).

Recovery

    Section 4(f) of the Act directs us to develop and implement 
recovery plans for the conservation and survival of endangered and 
threatened species unless we determine that such a plan will not 
promote the conservation of the species. The Act directs that, to the 
maximum extent practicable, we incorporate into each plan:
    (1) Site-specific management actions that may be necessary to 
achieve the plan's goals for conservation and survival of the species;
    (2) Objective, measurable criteria, which when met would result in 
a determination, in accordance with the provisions of section 4 of the 
Act, that the species be removed from the list; and
    (3) Estimates of the time required and cost to carry out the plan.
    However, revisions to the list (adding, removing, or reclassifying 
a species) must reflect determinations made in accordance with sections 
4(a)(1) and 4(b) of the Act. Section 4(a)(1) requires that the 
Secretary determine whether a species is endangered or threatened (or 
not) because of one or more of five threat factors. Therefore, recovery 
criteria must indicate when a species is no longer endangered or 
threatened by any of the five factors. In other words, objective, 
measurable criteria, or recovery criteria contained in recovery plans, 
must indicate when we would anticipate an analysis of the five threat 
factors under 4(a)(1) would result in a determination that a species is 
no longer endangered or threatened. Section 4(b) of the Act requires 
the determination made be ``solely on the basis of the best scientific 
and commercial data available.''
    Thus, while recovery plans are intended to provide guidance to the 
Service, States, and other partners on methods of minimizing threats to 
listed species and on criteria that may be used to determine when 
recovery is achieved, they are not regulatory documents and cannot 
substitute for the determinations and promulgation of regulations 
required under section 4(a)(1) of the Act. Determinations to remove a 
species from the list made under section 4(a)(1) of the Act must be 
based on the best scientific and commercial data available at the time 
of the determination, regardless of whether that information differs 
from the recovery plan.
    In the course of implementing conservation actions for a species, 
new information is often gained that requires recovery efforts to be 
modified accordingly. There are many paths to accomplishing recovery of 
a species, and recovery may be achieved without all criteria being 
fully met. For example, one or more recovery criteria may have been 
exceeded while other criteria may not have been accomplished, yet the 
Service may judge that, overall, the threats have been minimized 
sufficiently, and the species is robust enough, that the Service may 
reclassify the species from endangered to threatened or perhaps delist 
the species. In other cases, recovery opportunities may have been 
recognized that were not known at the time the recovery plan was 
finalized. These opportunities may be used instead of methods 
identified in the recovery plan.
    Likewise, information on the species may be learned that was not 
known at

[[Page 18089]]

the time the recovery plan was finalized. The new information may 
change the extent that criteria need to be met for recognizing recovery 
of the species. Overall, recovery of species is a dynamic process 
requiring adaptive management, planning, implementing, and evaluating 
the degree of recovery of a species that may, or may not, fully follow 
the guidance provided in a recovery plan.
    Thus, while the recovery plan provides important guidance on the 
direction and strategy for recovery, and indicates when a rulemaking 
process may be initiated, the determination to remove a species from 
the Federal List of Endangered and Threatened Wildlife is ultimately 
based on an analysis of whether a species is no longer endangered or 
threatened. The following discussion provides a brief review of 
recovery planning for the Okaloosa darter as well as an analysis of the 
recovery criteria and goals as they relate to evaluating the status of 
the species.
    The recovery plan for the Okaloosa darter was approved on October 
23, 1981 (Service 1981, 18 pp.), and revised on October 26, 1998 
(Service 1998, 42 pp.). The recovery plan identifies a recovery 
objective of downlisting, and eventually delisting, the Okaloosa darter 
by enabling wild populations capable of coping with natural habitat 
fluctuations to persist indefinitely in the six stream systems they 
inhabit by restoring and protecting stream habitat, water quality, and 
water quantity. The Okaloosa darter may be considered for 
reclassification from endangered to threatened (downlisted) when:
    (1) Instream flows and historical habitat of stream systems have 
been protected through management plans, conservation agreements, 
easements, or acquisitions (or a combination of these);
    (2) Eglin AFB has and is implementing an effective habitat 
restoration program to control erosion from roads, clay pits, and open 
ranges;
    (3) The Okaloosa darter population is stable or increasing and 
comprised of two plus age-classes in all six stream systems for 5 
consecutive years;
    (4) The range of the Okaloosa darter has not decreased at all 
historical monitoring sites; and
    (5) No foreseeable threats exist that would impact the survival of 
the species.
    For more information on the recovery plan for the Okaloosa darter, 
a copy of the plan is posted on our Web site at https://ecos.fws.gov/docs/recovery_plan/970407.pdf.
    Each of the above criteria for downlisting the Okaloosa darter to 
threatened has been met, as described below.

    Downlisting Criterion (1): Instream flows and historical habitat 
of stream systems have been protected through management plans, 
conservation agreements, easements, or acquisitions (or a 
combination of these).

    The management plans of several agencies apply to streams in the 
range of the Okaloosa darter and are being implemented to protect this 
fish's water quality and quantity and its overall habitat. Probably the 
most influential of these is Eglin's integrated natural resources 
management plan (INRMP) (USAF 2007; USAF 2009), including the 
Threatened and Endangered Species Component Plan (USAF 2006). The INRMP 
is updated annually and re-confirmed every 5 years in consultation with 
the Service and the Florida Fish and Wildlife Conservation Commission 
(FWC) (see Factor D. under the Summary of Factors Affecting the Species 
section, below, for further detail and description of Department of 
Defense (DOD) protections, and the Available Conservation Measures 
section, below, for Act protections). The INRMP defines goals and 
specific objectives for managing natural resources on the base. The 
primary goal of Okaloosa darter management on Eglin AFB is to provide 
the highest level of capability and flexibility to the military testing 
and training mission while meeting the legal requirements of the Act, 
the Clean Water Act (CWA; 33 U.S.C. 1251 et seq.), and other applicable 
laws. Another goal of the 2009 INRMP is to maintain or restore 
hydrologic processes in streams, floodplains, and wetlands when 
feasible. The specific objectives of Okaloosa darter management on 
Eglin AFB include:
    (1) Downlist the Okaloosa darter from endangered to threatened by 
the end of 2010, and delist the darter by the end of 2015;
    (2) Annually restore 2 fish passage barriers from the 20 identified 
sites in Okaloosa darter drainages as funding allows;
    (3) Develop a public information and awareness program for 
endangered and threatened species on Eglin AFB that have greater 
potential to be impacted by public activities, such as Okaloosa 
darters;
    (4) Complete a program by 2010 that would include an Air Armament 
Academy (A3) class (combined with Endangered Species Act class), 
informational brochures, and portable display boards;
    (5) Cooperate with the City of Niceville, Okaloosa County, and 
private landowners adjacent to Eglin AFB to recover the Okaloosa 
darter;
    (6) Identify and rehabilitate 150 soil erosion sites that have the 
potential to impact endangered and threatened species (Gulf sturgeon 
(Acipenser oxyrhynchus desotoi) and Okaloosa darter) habitat by 2011; 
and
    (7) Train and use Okaloosa darter monitoring crews and aquatic 
monitoring crews to survey and report the presence of invasive, 
nonnative plants and animals during their regular monitoring activities 
and treat invasive, nonnative plants as necessary.
    Instream flows and historical habitat have been protected through 
Eglin AFB's removal of fish passage barriers (INRMP Objective 2) and 
rehabilitation of soil erosion sites that are impacting endangered and 
threatened species (INRMP Objective 6). Further recovery efforts to 
benefit stream flows and historic habitat have been planned, including 
training darter monitoring crews to report invasive species found 
during regular survey efforts (INRMP Objective 7).
    In 2005, the Service, Eglin's Natural Resources Branch, The Nature 
Conservancy (TNC), and the FWC signed an agreement to cooperate in the 
stewardship of aquatic systems on lands of the Gulf Coastal Plain 
Ecosystem Partnership (GCPEP) in western Florida. GCPEP's Aquatic Team 
agreed to initially assign priority to strategies and projects that 
contribute to the recovery of the Okaloosa darter. We are working with 
GCPEP to use stream restoration techniques and management actions that 
have been established for Okaloosa darter watersheds on partner lands.
    The Three Rivers Resource Conservation and Development Council 
(Council) is a nonprofit organization set up to conserve the natural 
resources for, and to improve the overall economic condition of, rural 
and urban citizens. The Council is composed of representatives from the 
county Commissions and Soil and Water Conservation Districts, and 
includes three members at large from Escambia, Santa Rosa, Okaloosa, 
Walton, Bay, Washington, and Holmes Counties in Florida. The Council 
has developed an Area Plan (2003-2008), which includes:
    (1) A natural resources goal of encouraging proper management use 
and protection of the natural resource base;
    (2) An objective to assist local military bases in conservation 
planning efforts;
    (3) A strategy to continue a non-point project to control erosion 
with Eglin AFB; and
    (4) A strategy for habitat restoration, including four recently 
completed

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projects that replaced or rehabilitated undersized or improperly placed 
culverts as well as eliminated sedimentation from roadway runoff.
    The Eglin golf course dominates land use in the Mill Creek Basin. 
Along with West Long Creek in the Rocky Creek Basin, these are the same 
drainages where monitoring suggests darter numbers have been declining 
in recent years. The Service and Eglin AFB have recently completed a 
habitat restoration project in the portion of Mill Creek that runs 
through the Eglin golf course. Work is ongoing to assess causes of 
declines in East Turkey and West Long Creeks.
    The Choctawhatchee Basin Alliance (a citizen's group), along with 
supporting State and Federal agencies, is implementing a program called 
``Breaking New Ground,'' which is a set of place-based air and 
watershed action plans for the Choctawhatchee River and Bay watershed. 
These plans address water quality monitoring, point and non-point 
source pollution, growth management, water supply, education, and 
citizen involvement in all Choctawhatchee Bay watersheds, including the 
darter drainages. This planning effort has resulted in the funding of 
studies to assess point and non-point source water pollution in the 
basin, including darter watersheds, and is expected to continue to 
assist in identifying and addressing potential long-term water quality 
and supply issues in the watershed, which is a positive step towards 
securing permanent protections for Okaloosa darter water quality and 
quantity.
    In addition, the Northwest Florida Water Management District 
(NWFWMD) (in conjunction with the Florida Department of Environmental 
Protection (DEP) has a Surface Water Improvement and Management (SWIM) 
Plan that addresses water issues in the Choctawhatchee River and Bay 
System, including the projected water supply needs of the coastal 
portions of Okaloosa and Walton Counties. Protecting water-dependent 
endangered species and their habitats are integral components of the 
SWIM Plan. In its water supply plan for the counties that encompass the 
range of the darter, the NWFWMD examines the water sources that could 
supply growing human water demands in the region (Bartel et al. 2000). 
Depending on its magnitude and spatial distribution, substantial new 
use of the Sand and Gravel Aquifer could diminish stream flow in the 
darter streams; however, the potential well fields that the NWFWMD 
identified are located south and west of the darter drainages.
    The opportunities for easements or acquisitions or both to protect 
the Okaloosa darter are limited, because over 90 percent of its 
historic range is on Federal land. The Service is currently working 
with FWC and a private landowner to secure a conservation easement for 
the portion of East Turkey Creek between the Eglin AFB boundary and 
Choctawhatchee Bay. This easement would help to secure nearly all of 
East Turkey Creek inhabited by Okaloosa darters outside the boundaries 
of Eglin AFB. Because Eglin AFB and others have demonstrated a 
commitment to recovery of the Okaloosa darter through natural resources 
management planning and coordination with the Service, we consider this 
downlisting criterion to be satisfied.

    Downlisting Criterion (2): Eglin AFB has (and is implementing) 
an effective habitat restoration program to control erosion from 
roads, clay pits, and open ranges.

    Accomplishments have been made in recovering Okaloosa darter 
habitat, and the Service continues to work with Eglin AFB, the City of 
Niceville, and Okaloosa and Walton Counties to restore additional 
habitat through the removal and replacement of road crossings and 
impoundments throughout the darter's range.
    Eglin AFB is implementing an effective habitat restoration program 
to control erosion from roads, borrow pits (areas where materials like 
sand or gravel are removed for use at another location), and cleared 
test ranges. Since 1995, Eglin AFB has restored 317 sites covering 
196.2 hectares (ha) (484.8 acres (ac)) that were eroding into Okaloosa 
darter streams. All 38 borrow pits within Okaloosa darter drainages are 
now stabilized (59.3 ha; 146.5 ac) (USAF 2005, p. 3-18). The other 279 
sites (136.9 ha; 338.3 ac) included in the total area are characterized 
as non-point sources (pollution created from larger processes and not 
from one concentrated point source, like excess sediment from a 
construction site washing into a stream after a rain) of stream 
sedimentation. Eglin AFB estimates that these efforts have reduced soil 
loss from roughly 69,000 tons per year in darter watersheds in 1994, to 
approximately 2,500 tons per year in 2010 (Pizzolato 2010, pers. 
comm.). As of 2006, Eglin AFB had completed about 95 percent of the 
erosion control projects identified for the darter watersheds (USAF 
2006, p. 3-5). Restoration activities began earlier in the Boggy Bayou 
drainages. Accordingly, darter numbers increased in the Boggy Bayou 
drainages earlier than in the Rocky Bayou drainages. Increases in 
darter numbers over the past 10 years generally track the cumulative 
area restored during that timeframe (Jordan and Jelks 2004, p. 9).
    Many road crossing structures have been eliminated as part of Eglin 
AFB's restoration activities. Of the 152 road crossings that previously 
existed in Okaloosa darter drainages, 57 have been eliminated: 28 in 
Boggy Bayou streams, and 29 in Rocky Bayou streams. Most of these were 
likely barriers to fish passage or problems for stream channel 
stability, and removing them has improved habitat and reduced 
population fragmentation. We have determined that 21 of the remaining 
road crossings are barriers to fish passage. Many of these are culverts 
with the downstream end perched above the stream bed, precluding the 
upstream movement of fish during normal and low-flow conditions. Ten of 
the 21 barriers are of little to no adverse consequence to darter 
habitat connectivity because they occur on the outskirts of the current 
range or are immediately adjacent to another barrier or impoundment. 
However, darters downstream of the 11 remaining barriers cannot move 
upstream during normal and low-flow conditions. To date, 7 of these 
have been removed or replaced with appropriate structures and the 
remaining 4 will be removed in 2011.
    Impoundments may also fragment darter habitat and populations. As 
of 2005, there were 32 impoundments within the darter's range. Most of 
these are the result of beaver activity at road-stream crossings, and 
some are located within reaches from which darters are extirpated or in 
headwater regions of streams where darters are typically found only in 
low densities. As part of the road-stream crossing rehabilitation work, 
Eglin has prioritized restoration or replacement of road-stream 
crossings where beaver activity has impounded stream flow. Major 
projects under this program include multi-partner stream restoration 
efforts in Little Rocky Creek and Toms Creek. These projects required 
removal of historical railroad crossings that had been impounded by 
beavers and included greater than 100 meters of natural channel design 
and construction.
    Manmade structures accounted for 12 of the 32 impoundments in 
Okaloosa darter watersheds. Working with the Service, the Council, FWC, 
and the Mid-Bay Bridge Authority (MBBA), Eglin AFB has removed six 
recreational impoundments, including all impoundments in the Turkey 
Creek watershed. Two major stream restoration projects have been

[[Page 18091]]

conducted on Eglin AFB, both utilizing natural channel design to 
eliminate impoundments and fish passage barriers while promoting public 
recreation.
    In FY 2007, Eglin AFB restored portions of Mill Creek within the 
Falcon and Eagle golf course. Staff from Eglin Natural Resources, the 
Eglin golf course, and the Service determined that it was feasible to 
restore all impoundments upstream of Plew Lake, the largest impoundment 
on the system, to free-flowing streams and to remove all but one of the 
culverts that convey the stream underneath fairways on the golf course. 
Present in the smallest of the six darter watersheds, the darter 
population in Mill Creek is probably most vulnerable to extirpation. 
Within one year of completion, Okaloosa darters had colonized the 
entire restoration project and recruitment had been observed. We 
anticipate that restoration at Mill Creek will help maintain a viable 
population in the Mill Creek system.
    In 2009, a partnership including Eglin AFB, the Service, FWC, and 
MBBA initiated a restoration of Anderson Pond and the adjacent 
campground and recreation area. As part of this project, the 
impoundment was removed, and over 1000 meters of stream channel were 
constructed. A new pond was excavated in a portion of the original 
impoundment to accommodate fishing and other recreational activities. 
This project has reconnected darters isolated in the headwater reaches 
of Anderson Branch with the Turkey Creek population and re-established 
habitat for an estimated 1,500 to 2,000 darters. Both the Mill Creek 
and Anderson Pond projects accomplished stream restoration while 
promoting outdoor recreation and education opportunities for the 
public.
    Based on the observations shared above, Eglin AFB has effectively 
implemented this downlisting criterion and continues to make additional 
progress in reducing remaining erosion problems on the base. These 
actions appear to be associated with identifiable increases in Okaloosa 
darter numbers and occupied range. We will continue to partner with 
Eglin AFB to find similar opportunities like Mill Creek and Anderson 
Pond to restore habitat. Because Eglin AFB and others have demonstrated 
a commitment to recovery of the Okaloosa darter through natural 
resources management planning and coordination with the Service, we 
consider this downlisting criterion to be satisfied.

    Downlisting Criterion (3): Okaloosa darter population is stable 
or increasing and comprised of two plus age-classes in all six 
stream systems for 5 consecutive years.

    We had no estimate of population size at the time of listing, 
although the historic range of the Okaloosa darter is fairly well 
documented. Relative abundance estimates were determined annually from 
1987-88 to 1998 at Eglin AFB. Bortone (1999, p.15) compared the 
relative abundance (number per sampling hour) of darters at 16 to 18 
stations over 10 sampling seasons. The mean number of Okaloosa darters 
per sample (in those samples that yielded darters) was slightly lower 
in the earlier sampling period (1987 to1991), higher during the middle 
sampling years (1992 to 1997), and distinctly lower in 1998 and 1999. 
Bortone (1999, p. 9) concluded that this may not have indicated an 
overall trend in the reduction in Okaloosa darters as much as it may be 
indicative of changes that specifically reduced preferable habitat and 
increased sampling effectiveness at certain sites, as several sites 
were altered by beaver activity while others became more rooted with 
undergrowth. Generally, the data do not indicate any overall major 
trends in decline or increase during the 10-year sampling period 
(Bortone 1999, p.10).
    The U.S. Geological Survey (USGS) and Loyola University New Orleans 
has surveyed between 12 and 60 sites for Okaloosa darters annually 
since 1995 (Jordan and Jelks 2004, p. 2). Their methodology has evolved 
into counting darters in 20-m (66-ft) segments using mask and snorkel 
visual surveys, and includes collection of habitat conditions such as 
water depth, stream discharge, substrate type, and canopy cover. 
Collectively, Jordan and Jelks' data show an almost tripling of darter 
numbers in a 10-year timeframe, from an average of about 20 darters per 
20-m (66-ft) segment sampled in 1995, to about 55 darters per segment 
in 2004. Dips in Okaloosa darter densities occurred in 2001-02 and in 
2009, which corresponded with years of regional drought conditions. 
Even during these years, however, darter numbers were almost double 
those of 1995 and 1996.
    The current rangewide total population estimate, estimated by 
applying Jordan and Jelks (2004, p. 3) study area-wide density estimate 
of 3.1 darters per meter (m) (or per 3.28 feet) to our estimates of 
occupied stream length in each of the six Okaloosa darter basins, is 
802,668 darters with an estimated 625,279 mature individuals (Service 
2007, Table 2). In order to expand the surveyed range of the species, 
69 sites were seine surveyed in 50-m (164-ft) segments by the Service 
in 2004-05, with many of those being outside the area surveyed by 
Jordan and Jelks (2004). Observed segment densities were transformed to 
local abundance estimates based upon the Jordan et al. (2008, pp. 316-
318) comparison of seine versus visual counts and depletion sampling. 
These surveys produced an overall density estimate of 1.28 darters per 
meter (or per 3.28 ft) and an abundance estimate of 259,355 mature 
individuals (Service 2007, Table 3). This estimate is very conservative 
because seining typically only recovers about a third of the Okaloosa 
darters detected visually (Jordan et al. 2008, p. 318) For more 
information on sampling methods, see the Service's 2007 5-year status 
review of the Okaloosa darter (Service 2007).
    Standardized sampling since the status review continues to show 
robust numbers of Okaloosa darters. A visual survey conducted in 2009 
showed an average density of 3.1  2.3 Okaloosa darters per 
linear meter (Jelks pers. comm. 2010).
    Downlisting criterion number (3) is further defined in Appendix A 
of the Okaloosa darter recovery plan to include a specific standardized 
sampling methodology. An operational definition of a ``stable'' 
population is also provided in Appendix A of the recovery plan. The 
definition of a ``stable'' population applies to 26 long-term 
monitoring sites and has three parts:
    (1) Okaloosa darter numbers remain above 1.75 standard deviations 
below the cumulative long-term average at each of the monitoring sites;
    (2) The long-term trend in the average counts at each monitoring 
site is increasing, or neutral; and
    (3) The range that the species inhabits is not decreased by more 
than a 500-meter (1,640.4-ft) stream reach within any of the six stream 
systems.
    Although the darter meets the criterion for a stable population, 
the validity of the criteria in the operational definition of 
``stable'' has come into question since 1998, when the recovery plan 
was prepared. As identified in our 2007 5-year status review of the 
Okaloosa darter (Service 2007, p. 6), monitoring has shown that natural 
variation coupled with sampling method (seining versus visual survey) 
might result in a variation greater than 1.75 standard deviations while 
still maintaining a stable or increasing trend. Therefore, we have 
found that this operational definition may no longer reflect the true 
status of the species. We plan to revise the recovery criteria to 
incorporate advances in population assessment that use variation at 
specific localities while incorporating adjustments for sampling error.

[[Page 18092]]

    Current estimates of Okaloosa darter numbers were calculated using 
two different methods of standardizing monitoring and survey data. The 
first method used visual surveys in 28 20-m (66-ft) segments of stream 
encompassing the six principal basins; a study area-wide density 
estimate was applied to the known occupied stream length for a 2004 
total population estimate of 802,668 darters with 95 percent confidence 
interval (CI) ranging from 503,457 to 1,323,597 (Service 2007, Table 
2). The second method transformed seine sample density estimates to 
local abundance estimates, based upon the Jordan et al. (2008) 
comparison of seine versus visual counts and depletion sampling, to 
calculate a 2004-05 population estimate of 259,355 with 95 percent CI 
ranging from 216,120 to 302,590 darters (Service 2007, Table 3). 
Acknowledging the greater error likely associated with the seine-based 
calculations, they provide a more conservative population estimate; 
however, both estimates are large given the naturally small range of 
the species.
    As identified in our 2007 5-year status review (Service 2007, p. 6-
7), the long-term trend in the average counts at each monitoring site 
indicated that the four smallest darter watersheds (Toms, Swift, Mill, 
and East Turkey), as well as West Long Creek and East Long Creek, were 
decreasing while the watersheds of Rocky Creek and Turkey Creek were 
increasing. However, sampling conducted since restoration activities on 
Mill Creek were completed indicates that darter numbers are now 
increasing. Using the estimated length of occupied habitat for these 
creeks, darter numbers are stable or increasing in 86 percent of their 
current range and decreasing in 14 percent of their current range. All 
of the declining trends were sampled by seining, not visual surveys, 
and may reflect variable sampling efficiency over time. For example, 
one site has become almost impossible to seine due to the exposure of 
tree roots resulting from stream bed degradation. Because seining 
detects only about 32 percent as many Okaloosa darters as visual 
surveys (Jordan et al. 2008, p. 313), the long-term trends in darter 
counts at sites sampled by seine may not reflect actual trends. 
Furthermore, there appears to be a reduction in numbers at many of the 
sites in 1998 to 2000, prior to which counts appear to be relatively 
consistent or generally increasing, which correspond to a drought that 
began in 1998. Following 1998, the darter counts at these sites follow 
a stable or increasing trend at reduced densities (Service 2007, Figure 
6). Because recovery criteria were based on data collected in years 
with normal rainfall, variation associated with droughts could not be 
accounted for and strict interpretation of criteria is likely not 
biologically appropriate.
    The range of the Okaloosa darter is represented as the cumulative 
stream length of occupancy in a basin. However, the annual monitoring 
identified in the recovery plan is not specifically designed to measure 
the length of a range reduction. Therefore, we are unable to determine 
whether part (3) of the operational definition of ``stable'' (A 
population will be considered stable if * * * (3) the range that the 
species inhabits is not decreased by more than a 500-meter (1,640.4-ft) 
stream reach within any of the six stream systems) has been met. 
Further, as noted previously, seining has been shown to detect only 
about 32 percent as many darters as visual surveys (Jordan et al. 2008, 
p. 313), increasing the probability of incorrectly concluding that 
darters are absent when using this survey method. Therefore, we do not 
feel that this aspect of the definition of ``stable'' is appropriate.
    Okaloosa darters population numbers have increased since 1995, and 
have remained consistently stable at all sites where current sampling 
techniques are utilized. Annual population monitoring by USGS and 
Loyola University New Orleans has detected young-of-the-year and adult 
fish in all six stream systems for the past 13 years (Service 2007). 
Okaloosa darters appear to have expanded their range in Mill Creek 
following habitat restoration activities in 2007, and have been 
collected in the southern/western tributary of Toms Creek previously 
thought to be uninhabited. We have not observed extirpation at any of 
the monitoring sites since 1998, and sampling conducted in 2009 
continues to show robust numbers of Okaloosa darters. Acknowledging the 
limitations in the criteria outlined in Appendix A of the recovery 
plan, we consider this downlisting criterion to be satisfied.

    Downlisting Criterion (4): The range of the Okaloosa darter has 
not decreased at all historical monitoring sites.

    As noted above, trends in the range of the Okaloosa darter are 
difficult to interpret. Darters have expanded their range in Mill Creek 
as a result of habitat restoration. A recent collection of darters from 
the southern/western tributary of Toms Creek may represent an 
additional range expansion; however, additional field surveys will be 
necessary to determine the extent and stability of the occupied 
habitat. If Okaloosa darters are established in this tributary, this 
would represent a range expansion of about 2.25 kilometers (1.4 miles). 
The Okaloosa darter has been extirpated from about 9 percent of the 402 
km (249.8 mi) of streams that comprise its total historical range. 
Nearly all of these impacts occurred prior to the original recovery 
plan in 1984, and most were likely prior to the species listing in 
1973. The Swift Creek monitoring site is the only established 
monitoring site where an extirpation appears to have occurred. This is 
evidenced by a single collection of 2 individuals in 1987; otherwise 
Okaloosa darters have not been collected at this site. Because local 
extirpation occurred more than 20 years ago, the darter has expanded 
its range in Mill Creek and Toms Creek, and we have not witnessed a 
reduction in range since the revision of the recovery plan in 1998, we 
consider this criterion to be met.

    Downlisting Criterion (5): No foreseeable threats exist that 
would impact the survival of the species.

    At this stage of the recovery of Okaloosa darter, threats remain 
under Listing Factor A: the present or threatened destruction, 
modification, or curtailment of the species' habitat or range. Resource 
stewardship on Eglin AFB is generally reducing the threat of habitat 
destruction and range reduction from sedimentation from unpaved roads 
and areas adjacent to poorly designed or maintained paved roads. As of 
2006, about 95 percent of the erosion control projects identified in 
darter watersheds had been completed (USAF 2007, pp. 3-5). Eglin AFB is 
continuing to fund these projects to completely eliminate the threat. 
We will continue to work with Eglin AFB to remove remaining erosion 
sources or point and non-point pollution sources in Okaloosa darter 
habitat. In addition, stream restoration projects have been completed, 
and new projects are being considered on Eglin AFB. We will work with 
Elgin AFB to ensure Okaloosa darter habitat is protected.
    Although water quality issues associated with the Niceville 
landfill and sprayfield continue to threaten the darter, they are being 
examined in a research project, which began in 2007. We recently worked 
with the City of Niceville to improve its wastewater collection system 
and install more appropriate culverts at a number of road crossings. In 
addition, as stated above, a few of the Okaloosa darter's streams have 
been indicated as potentially impaired due to biological indicators. We 
will continue to work with Eglin AFB and the city of Niceville to

[[Page 18093]]

determine the causes of impairment and remove them.
    Proposed plans to assign additional military forces to Eglin AFB 
may alter the military mission and could potentially impact Okaloosa 
darter populations; however, we do not anticipate any increase in 
threats from this action as the new ranges have been moved outside of 
Okaloosa darter habitat. Eglin AFB has also agreed to provide a 300-ft. 
buffer along all darter streams when conducting any troop maneuvers. On 
the smaller creeks, where we noted a general long-term decline in 
average counts, we will continue to investigate using survey protocols 
whether habitat attributes at these sites are the cause.
    The Okaloosa darter was listed in 1973 as an endangered species. At 
the time of listing, the species faced significantly greater threats 
than it does today, as evidenced by the numerous recovery actions to 
date that have improved and restored its habitat conditions. These 
recovery actions include completing 95 percent of the erosion control 
projects identified in darter watersheds, thereby significantly 
reducing the most intense threat to the species (see the Summary of 
Factors Affecting the Species section below for further details). Now, 
more than 35 years after it was listed under the Act, the Okaloosa 
darter's overall status has improved. Given that the threats to the 
species have been significantly reduced, we have determined that the 
Okaloosa darter has recovered to the point where it now meets the 
definition of a threatened species--one that is ``likely to become an 
endangered species within the foreseeable future throughout all or a 
significant portion of its range.'' In other words, although some 
threats to the Okaloosa darter continue to exist, these threats are not 
likely to cause the species to become extinct throughout all or a 
significant portion of its range within the foreseeable future. Data 
collected on the distribution and abundance of the species indicate 
that the species' range has expanded and overall population numbers are 
increasing. The Okaloosa darter has met all five downlisting criteria 
in its recovery plan.

Summary of Comments and Responses

    During the 60-day comment period on the proposed rule, which began 
on February 2, 2010, and ended on April 5, 2010 (75 FR 5263), we 
received only two written comments, both of which supported both 
reclassification of the Okaloosa darter from endangered to threatened 
and the special rule. The proponents of the reclassification included 
the FWC and TNC. We received no public hearing requests. In accordance 
with our peer review policy published on July 1, 1994 (59 FR 34270), we 
solicited independent opinions from three knowledgeable individuals who 
have expertise with the species and the geographic region where the 
species occurs and are familiar with conservation biology principles. 
We received comments from all three of the peer reviewers. The 
reviewers were affiliated with the State of Florida, a Louisiana 
university, and a Federal Government agency. Reviewers provided 
additional factual information, as well as minor corrections and input 
on our interpretation of existing information. In general, all peer 
reviewers concurred with the downlisting of the Okaloosa darter to 
threatened status and the special rule. We reviewed all comments 
received from the peer reviewers and the public for substantive issues 
and new information regarding the proposed reclassification. 
Substantive comments we received during the comment period have been 
addressed below and, where appropriate, incorporated directly into this 
final rule. The comments are grouped below according to peer review or 
public comments.

Peer Review/State Comments

    (1) Comment: One reviewer expressed concern for the population of 
Okaloosa darters in Shaw Still Branch, a tributary to Swift Creek, due 
to isolation resulting from College Pond and habitat degradation.
    Response: We agree that the population in Shaw Still Branch should 
be closely monitored and that restoration of College Pond should be 
considered; however, the Okaloosa darter population and suitable 
habitat persist in this stream. In addition, there has been a stable or 
increasing trend of darters in all darter stream systems, including 
Swift Creek. We do not feel that the genetic isolation of the Shaw 
Still Branch darter population precludes reclassification from 
endangered to threatened, which is based on an assessment of the 
species' status and threats as a whole.
    (2) Comment: Two reviewers expressed concern over the Mid-Bay 
Bridge Connector Road and long-term secondary and cumulative effects to 
the Okaloosa darter.
    Response: We recently completed consultation under section 7(a)(2) 
of the Act on this road project and have updated the discussion of this 
project in this rule (see Summary of Factors Affecting the Species; 
Factor A. discussion). We found that the proposed Mid-Bay Bridge 
Connector Road is not likely to jeopardize the continued existence of 
the Okaloosa darter. There are many conservation measures in place to 
minimize the impacts of the roadway, and the potential secondary and 
cumulative effects will be minimized through efforts to work with with 
private property owners to protect floodplain and riparian habitat and 
reduce threats along Okaloosa darter streams. Given the specific 
extensive conservation measures included in the project, we do not 
consider the Mid-Bay Bridge Connector Road to be a significant threat 
to Okaloosa darters.
    (3) Comment: Although the sand and gravel aquifer that feeds the 
darter drainages is not currently used for human consumption, one 
reviewer expressed concern that plans for wellfields have been proposed 
within Okaloosa darter drainages.
    Response: We are not aware of any proposals to directly use the 
sand and gravel aquifer for human consumption. The NWFWMD has recently 
announced plans for an offline reservoir in the Shoal River (Yellow 
River watershed) to supply drinking water to Okaloosa County. This 
action will use surface water and is outside the primary recharge area 
for streams inhabited by the Okaloosa darter; therefore, we believe 
there will be little to no impact on Okaloosa darters related to this 
offline reservoir. Eglin AFB, the cities of Niceville and Valparaiso, 
and Okaloosa County have not indicated plans to establish wellfields in 
the foreseeable future.
    (4) Comment: One reviewer expressed concern that the proposed rule 
recommended delisting by 2012.
    Response: The proposed rule actually noted that Eglin AFB's INRMP 
goals for darter management recommended delisting by 2012. The proposed 
rule was updated to reflect the most recent annual update of the INRMP, 
which now recommends delisting by 2015. In any case, this is Eglin 
AFB's recommendation, and does not reflect the views of the Service. A 
determination to remove a species from the Federal List of Endangered 
and Threatened Wildlife is made by the Service and is based on an 
analysis of whether a species is no longer endangered or threatened.
    (5) Comment: One reviewer was concerned that our population 
estimate was inflated because we assumed that all stream segments 
within the six darter drainages are suitable for Okaloosa darters.
    Response: We did not assume that all stream segments within the six 
Okaloosa darter drainages are suitable

[[Page 18094]]

for Okaloosa darters when we derived the population estimate of 802,668 
darters. A complete description of the methods we used to derive the 
amount of suitable habitat can be found in Service 2007, pages 16-18. 
In general, we calculated the total stream length within the Okaloosa 
darter drainages and then subtracted the impoundments and the segments 
that we believe no longer support Okaloosa darters from total stream 
length. However, we still believed that not all portions of the 
remaining stream length were necessarily suited for Okaloosa darters. 
To correct for this bias, we applied darter/habitat relationships to 
estimate the proportion of potential habitat that may be occupied. We 
estimated that for the roughly 365 km of potential darter habitat, 
about 261 km would be occupied, and estimated the population 
accordingly.
    (6) Comment: One reviewer noted that the fixed station sampling 
methodology may only be capturing a localized density increase, not a 
true population increase.
    Response: We agree with the reviewer that alternative study designs 
to fixed station sampling, such as random site selection, can provide 
more robust conclusions about population trends. The critique of fixed 
site sampling is that nonrepresentative data may be collected, thereby 
increasing the chance of incorrect conclusions. In the case of fixed 
station sampling of Okaloosa darters, we believe the chances of 
collecting nonrepresentative data are fairly low. The fixed stations 
occur across multiple sites in all six darter drainages. The number of 
sites has been high, with anywhere from 12 to 60 sites sampled annually 
since 1995, and collectively these data show an almost tripling of 
darter numbers in a 10-year timeframe. In addition, Okaloosa darters 
appear to have expanded their range in Mill Creek and possibly in a 
tributary of Toms Creek previously thought to be uninhabited. 
Therefore, we believe it is reasonable to conclude that the overall 
increasing trend in the fixed station sampling data is likely 
reflecting an increase in the Okaloosa darter population as a whole.
    (7) Comment: One reviewer was concerned that the Service redefined 
recovery criteria so as to minimize the importance of population 
declines and extirpations in areas outside of Eglin AFB in order to 
expedite the reclassification process.
    Response: This comment was first directed at the language under the 
Recovery section of the proposed rule (75 FR 5265; February 2, 2010) 
that describes how precise attainment of all recovery criteria is not a 
prerequisite for downlisting. In addition, within each recovery 
criterion, the reviewer believes we have redefined the Okaloosa darter 
population to be those darters on Eglin AFB and thereby implied that 
the 1.3 percent of the current geographic range that is outside of 
Eglin AFB is of marginal importance. We do not agree with this comment 
because we manage the Okaloosa darter as a whole across its range and 
have to address its status and threats it faces across its range. A 
determination to reclassify a species' status on the Federal List of 
Endangered and Threatened Wildlife is ultimately based on an analysis 
of whether a species is no longer endangered or no longer threatened. 
Based on the best available scientific information, the population as a 
whole has increased, and its threats have decreased within 98.7 percent 
of its current range and 90 percent of its historic range. We agree 
with the reviewer that the populations of Okaloosa darters outside of 
Eglin AFB are important to the overall population resiliency and for 
full recovery and delisting of the species.
    (8) Comment: One reviewer expressed concern that we did not use the 
best scientific data available because we did not rely on a recent 
unpublished study on the degree of genetic distinction in Okaloosa 
darters among streams. The study found that each of the six Okaloosa 
darter drainages support genetically unique populations. The reviewer 
felt that the populations outside Eglin AFB in Mill, Swift, and East 
Turkey creeks are in danger of extinction and recommended that the 
Service consider reclassifying only populations of Okaloosa darters in 
the Toms, Turkey, and Rocky creek drainages and leave populations in 
the Mill, Swift, and East Turkey creek drainages as endangered.
    Response: We did not include the findings of this study in our 
analysis because at the time the proposed rule was published, this 
study was not available. The authors only very recently completed a 
final report and submitted it for publication in a peer-reviewed 
journal (Austin et al. 2010, unpublished data). In summary, the authors 
conducted mitochondrial and nuclear DNA analyses to determine the 
degree of genetic distinction among streams. They found that Toms 
Bayou, Boggy Bayou, and Rocky Bayou are three evolutionarily 
significant units and, to a lesser extent than the bayous, all six 
streams are genetically unique. They also found that robust historical 
genetic estimates of abundance and recent census estimates support the 
decision to reclassify the Okaloosa darter to threatened.
    Based on the subtly different genetic characteristics of these six 
streams, it is conceivable that extirpation of Okaloosa darters in any 
of the six streams would result in a loss of genetic variation. While 
we acknowledge there have been localized declines in the populations in 
Mill, Swift, and East Turkey creeks, we do not agree that darters are 
in danger of extirpation from these creeks. Darter populations in Mill 
Creek have been increasing since restoration was completed, and we 
expect this restoration will result in a viable, sustainable 
population. In addition, significant parts of all three of these 
streams are located on Eglin AFB, where resource stewardship and 
protection is generally reducing the threat of habitat destruction and 
range reduction. Outside of Eglin's borders, we are working with the 
City of Niceville and private landowners to reduce threats to Okaloosa 
darters. The status of the species as a whole has improved and threats 
have decreased in all six streams. We will continue to work with the 
authors as we work towards recovery of the Okaloosa darter.
    (9) Comment: One reviewer disagreed with how we defined 
``significant portion of the range,'' noting that if we considered the 
six drainages separately based on genetic differences noted in Austin 
et al. (2010, unpublished data), there is considerable likelihood that 
Okaloosa darter is in danger of extinction in a significant portion of 
its range due to the more pronounced threat in the areas outside of 
Eglin AFB.
    Response: The Okaloosa darter was listed due to threats across its 
entire range. In our evaluation of significant portion of the range for 
this species, we assessed threats across the landscape to determine if 
any areas were experiencing unique impacts. We then determined if those 
areas were significant to the species as a whole as further described 
below in the Significant Portion of the Range section of this rule. In 
evaluating this comment, we determined that, although each drainage may 
possess slightly different genetics (Austin et al. 2010, unpublished 
data), the drainages are all subject to similar threats. The area 
outside of the Eglin AFB was not considered a significant portion of 
the range, because this area is small and is similar in structure to 
habitat found throughout the rest of the species' range. We have 
determined that there are no portions of the range that qualify as a 
significant portion of the range for the darter.

[[Page 18095]]

    (10) Comment: One reviewer disagrees that almost all of the human 
activities that may affect the existing darter population are Federal 
actions.
    Response: Of the darter's current range, 98.7 percent is on Federal 
lands, and the remaining 1.3 percent occurs downstream of the 
boundaries of Eglin AFB. We agree that there are human activities that 
impact the darter in the 1.3 percent of the darter's range outside of 
Eglin AFB; however, almost all of the darter's range is within Federal 
lands and subject to Federal statutes and regulations, including the 
Sikes Act and Sikes Improvement Act, the Act, and the CWA, as well as 
other applicable State laws. Furthermore, any State, local, and private 
projects outside of Eglin AFB that use Federal funds or require Federal 
permits must undergo section 7 consultation under the Act.
    (11) Comment: One reviewer expressed concern for delisting by 
asking how the Okaloosa darter can be delisted given that the species 
was primarily listed due to a restricted geographic range and that will 
never change.
    Response: The Service is not considering delisting the species at 
this time. The determination to remove a species from the Federal List 
of Endangered and Threatened Wildlife is based on an analysis of 
whether a species is no longer endangered or threatened by any of the 
five factors: (1) Habitat modification, destruction, or curtailment; 
(2) overutilization of the species for commercial, recreational, 
scientific, or educational purposes; (3) disease or predation; (4) 
inadequacy of existing regulatory mechanisms; or (5) other natural or 
manmade factors affecting its continued existence. The Okaloosa darter 
was initially listed not only due to its restricted range but also 
because of habitat degradation from roads, dams, and land clearing, and 
the threat of competition with brown darters. Delisting the species 
would involve a full assessment of these and other threats impacting 
the Okaloosa darter in consideration of its restricted range. As 
discussed throughout this rule, there has been a substantial reduction 
in threats to the species' habitat, and brown darters do not appear to 
be a significant threat to its recovery. There are still actions needed 
for the Okaloosa darter to continue to recover, including cooperative 
agreements to protect and restore habitat, water quality, and water 
quantity outside of Eglin AFB, and the continued improvement and 
maintenance of water quality and riparian habitat on Eglin AFB.
    (12) Comment: One reviewer expressed concern regarding the 
enforcement of the Act as it relates to Okaloosa darter in areas that 
occur outside of Eglin AFB.
    Response: All State, local, and private projects outside of Eglin 
AFB that use Federal funds or require Federal permits (for example CWA 
section 404 dredge-and-fill permits) must undergo section 7 
consultation under the Act. In addition, under section 9 of the Act, 
``take'' (defined as to harass, harm, pursue, hunt, shoot, wound, kill, 
trap, capture, or collect, or to attempt to engage in any such conduct 
in section 3(19) of the Act) will still be prohibited on private lands 
as it was when the species was listed as endangered. The special rule 
under section 4(d) of the Act does not remove the prohibitions against 
take outside of Eglin AFB's habitat restoration projects. The Service 
also works proactively with the Florida Fish and Wildlife Conservation 
Commission and private landowners to facilitate darter habitat 
restoration off of Eglin AFB.

Public Comments

    The following public comment addresses issues that were not raised 
by the peer reviewers. If an issue brought up by a peer reviewer was 
also raised by the public, it is discussed above in the peer review 
comment section rather than below.
    (13) Comment: In relation to additional subpopulations of Okaloosa 
darters, one commenter suggested we conduct an assessment of other 
stream systems within the Rocky Bayou drainage that may have 
historically contained the Okaloosa darter. The commenter also 
described a stream restoration project in Puddin Head Lake, a steephead 
stream system adjacent to the Rocky Creek watershed, noting that this 
stream may have historically contained Okaloosa darters and recommended 
that the Service consider this stream restoration project as a current 
activity that may benefit the Okaloosa darter.
    Response: We agree and plan to evaluate other streams within all 
three bayous that may have historically contained Okaloosa darters to 
locate suitable habitat and possible additional populations. Okaloosa 
darters do not occur in Puddin Head Lake, but we plan to evaluate 
restored habitat within the Puddin Head stream and other locations that 
may have historically contained Okaloosa darters as potential sites for 
reintroduction.

Summary of Factors Affecting the Species

    Section 4 of the Act and its implementing regulations (50 CFR part 
424) set forth the procedures for listing, reclassifying, or removing 
species from the Federal Lists of Endangered and Threatened Wildlife 
and Plants. ``Species'' is defined by the Act as including any species 
or subspecies of fish or wildlife or plants, and any distinct 
vertebrate population segment of fish or wildlife that interbreeds when 
mature (16 U.S.C. 1532(16)). Once the ``species'' is determined, we 
then evaluate whether that species may be endangered or threatened 
because of one or more of the five factors described in section 4(a)(1) 
of the Act. Those factors are: (1) Habitat modification, destruction, 
or curtailment; (2) overutilization of the species for commercial, 
recreational, scientific, or educational purposes; (3) disease or 
predation; (4) inadequacy of existing regulatory mechanisms; or (5) 
other natural or manmade factors affecting its continued existence. We 
must consider these same five factors in reclassifying or delisting a 
species. Listing, reclassifying, or delisting may be warranted based on 
any of the above threat factors, either singly or in combination.
    For species that are already listed as endangered or threatened, 
this analysis of threats is an evaluation of both the threats currently 
facing the species and the threats that are reasonably likely to affect 
the species in the foreseeable future following the delisting or 
downlisting.
    The following threats analysis examines the five factors currently 
affecting, or that are likely to affect, the Okaloosa darter within the 
foreseeable future. For the purposes of this analysis, we will first 
evaluate whether the currently listed species, the Okaloosa darter, 
should be considered endangered or threatened throughout its range. 
Then we will consider whether there are any portions of the species' 
range where it is in danger of extinction or likely to become 
endangered within the foreseeable future.

Factor A. The Present or Threatened Destruction, Modification, or 
Curtailment of Its Habitat or Range

    The Okaloosa darter was listed under the Act in 1973, because of 
its extremely limited range and potential problems resulting from 
erosion, water impoundment, and competition with brown darters. The 
Okaloosa darter has been extirpated from about 9 percent of the 402 km 
(249.8 mi) of streams that

[[Page 18096]]

comprise its total historical range. This historic loss of range is 
most likely due to physical and chemical habitat degradation from 
sediment and pollutant loading and the urbanization of the City of 
Niceville coupled with historic impacts originating on what is now 
Eglin AFB. Recent surveys in a southern/western tributary of Toms 
Creek, however, have established the darter's presence in a stretch