Endangered and Threatened Wildlife and Plants; Endangered Status for the Cumberland Darter, Rush Darter, Yellowcheek Darter, Chucky Madtom, and Laurel Dace, 48722-48741 [2011-20018]

Agencies

• Fish and Wildlife Service
• DEPARTMENT OF THE INTERIOR

[Federal Register Volume 76, Number 153 (Tuesday, August 9, 2011)]
[Rules and Regulations]
[Pages 48722-48741]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-20018]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-R4-ES-2011-0027; MO 92210-0-0008 B2]
RIN 1018-AV85


Endangered and Threatened Wildlife and Plants; Endangered Status 
for the Cumberland Darter, Rush Darter, Yellowcheek Darter, Chucky 
Madtom, and Laurel Dace

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), determine 
endangered status for the Cumberland darter (Etheostoma susanae), rush 
darter (Etheostoma phytophilum), yellowcheek darter (Etheostoma 
moorei), chucky madtom (Noturus crypticus), and laurel dace (Chrosomus 
saylori) under the Endangered Species Act of 1973, as amended (Act). 
This final rule implements the Federal protections provided by the Act 
for these species throughout their ranges, including Cumberland darter 
in Kentucky and Tennessee, rush darter in Alabama, yellowcheek darter 
in Arkansas, and chucky madtom and laurel dace in Tennessee. We intend 
to propose critical habitat in an upcoming rulemaking, which is 
expected within the next few months.

DATES: This rule becomes effective September 8, 2011.

ADDRESSES: This final rule is available on the Internet at https://www.regulations.gov at Docket No. FWS-R4-ES-2010-0027. Comments and 
materials received, as well as supporting documentation used in the 
preparation of this rule, will be

[[Page 48723]]

available for public inspection, by appointment, during normal business 
hours at: U.S. Fish and Wildlife Service, Tennessee Ecological Services 
Field Office, 446 Neal Street, Cookeville, TN 38501; telephone 931-528-
6481; facsimile 931-528-7075.

FOR FURTHER INFORMATION CONTACT: For information regarding the 
Cumberland darter, contact Lee Andrews, Field Supervisor, U.S. Fish and 
Wildlife Service, Kentucky Ecological Services Field Office, J.C. Watts 
Federal Building, 330 W. Broadway Rm. 265, Frankfort, KY 40601; 
telephone 502-695-0468; facsimile 502-695-1024.
    For information regarding the rush darter, contact Stephen Ricks, 
Field Supervisor, U.S. Fish and Wildlife Service, Mississippi 
Ecological Services Field Office, 6578 Dogwood View Parkway, Suite A, 
Jackson, MS 39213; telephone 601-965-4900; facsimile 601-965-4340 or 
Bill Pearson, Field Supervisor, U.S. Fish and Wildlife Service, Alabama 
Ecological Services Field Office, 1208-B Main Street, Daphne, AL 36526; 
telephone 251-441-5181; fax 251-441-6222.
    For information regarding the yellowcheek darter, contact Jim 
Boggs, Field Supervisor, U.S. Fish and Wildlife Service, Arkansas 
Ecological Services Field Office, 110 South Amity Road, Suite 300, 
Conway, AR 72032; telephone 501-513-4470; facsimile 501-513-4480.
    For information regarding the chucky madtom and laurel dace, 
contact Mary Jennings, Field Supervisor, U.S. Fish and Wildlife 
Service, Tennessee Ecological Services Field Office, 446 Neal Street, 
Cookeville, TN 38501; telephone 931-528-6481; facsimile 931-528-7075.
    If you use a telecommunications device for the deaf (TDD), call the 
Federal Information Relay Service (FIRS) at 800-877-8339.

SUPPLEMENTARY INFORMATION:

Background

    This document consists of a final rule to list the Cumberland 
darter (Etheostoma susanae), rush darter (Etheostoma phytophilum), 
yellowcheek darter (Etheostoma moorei), chucky madtom (Noturus 
crypticus), and laurel dace (Chrosomus saylori) as endangered under the 
Endangered Species Act of 1973, as amended (16 U.S.C. 1531 et seq.) 
(Act). The Act requires that we identify species of wildlife and plants 
that are endangered or threatened, based on the best available 
scientific and commercial information. As defined in section 3 of the 
Act, an endangered species is any species which is in danger of 
extinction throughout all or a significant portion of its range, and a 
threatened species is any species which is likely to become an 
endangered species within the foreseeable future throughout all or a 
significant portion of its range.
    Through the Federal rulemaking process, we add species that meet 
these definitions to the List of Endangered and Threatened Wildlife at 
50 CFR 17.11 or the List of Endangered and Threatened Plants at 50 CFR 
17.12. As part of this program, we maintain a list of species that we 
regard as candidates for listing. We call this list the Candidate 
Notice of Review (CNOR). A candidate species is one for which we have 
on file sufficient information on biological vulnerability and threats 
to support a proposal to list as endangered or threatened, but for 
which preparation and publication of a proposal is precluded by higher 
priority listing actions. We may identify a species as a candidate for 
listing based on an evaluation of its status that we conducted on our 
own initiative, or as a result of making a finding on a petition to 
list a species that listing is warranted but precluded by other higher 
priority listing action. Table 1 includes the citation information for 
the CNORs mentioned in the following paragraphs, which discuss the 
previous candidate status of each of the five species being listed as 
endangered in this rule.

 Table 1--Federal Register Citation Information for Certain Candidate Notices of Review Issued by the U.S. Fish
                                         and Wildlife Service Since 1985
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                                           Federal Register  volume and    Date of publication  in the  Federal
                   Year                            page  number                          Register
----------------------------------------------------------------------------------------------------------------
1985.....................................  50 FR 37958.................  September 18, 1985.
1989.....................................  54 FR 554...................  January 6, 1989.
1991.....................................  56 FR 58804.................  November 21, 1991.
1994.....................................  59 FR 58982.................  November 15, 1994.
1996.....................................  61 FR 7596..................  February 28, 1996.
1999.....................................  64 FR 57533.................  October 25, 1999.
2001.....................................  66 FR 54807.................  October 30, 2001.
2002.....................................  67 FR 40657.................  June 13, 2002.
2004.....................................  69 FR 24875.................  May 4, 2004.
2005.....................................  70 FR 24869.................  May 11, 2005.
2006.....................................  71 FR 53755.................  September 12, 2006.
2007.....................................  72 FR 69034.................  December 6, 2007.
2008.....................................  73 FR 75176.................  December 10, 2008.
2009.....................................  74 FR 57804.................  November 9, 2009.
2010.....................................  75 FR 69222.................  November 10, 2010.
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Previous Federal Action

Cumberland Darter
    The Cumberland darter was first identified as a candidate for 
listing in the 1985 CNOR. It was assigned a Category 2 status, which 
was given to those species for which the Service possessed information 
indicating that proposing to list as endangered or threatened was 
possibly appropriate, but for which conclusive data on biological 
vulnerability and threat was not currently available to support 
proposed rules. The Cumberland darter retained the Category 2 status in 
the 1989, 1991, and 1994 CNORs.
    Assigning categories to candidate species was discontinued in 1996, 
and only species for which the Service had sufficient information on 
biological vulnerability and threats to support issuance of a proposed 
rule were regarded as candidate species. Candidate species were also 
assigned listing priority numbers based on immediacy and the magnitude 
of threat, as well as their taxonomic status. In the 1999, 2001, 2002, 
and 2004 CNORs, the Cumberland darter was identified as a

[[Page 48724]]

listing priority 6 candidate species. We published a petition finding 
for Cumberland darter in the 2005 CNOR in response to a petition 
received on May 11, 2004, stating the darter would retain a listing 
priority of 6.
    In the 2006 CNOR, we changed the listing priority number for 
Cumberland darter from 6 to 5, because it was formally described as a 
distinct species. Based on new molecular evidence, the subspecies 
Etheostoma nigrum susanae was elevated to specific status, Etheostoma 
susanae. In the 2007, 2008, 2009, and 2010 CNORs, the Cumberland darter 
retained a listing priority of 5. On June 24, 2010 (75 FR 36035) we 
published a proposed rule to list the Cumberland darter as endangered.
Rush Darter
    We first identified the rush darter as a candidate for listing in 
the 2002 CNOR. The rush darter was assigned a listing priority number 
of 5. In the 2004 CNOR, the rush darter retained a listing priority 
number of 5. We published a petition finding for rush darter in the 
2005 CNOR in response to a petition received on May 11, 2004, stating 
the darter would retain a listing priority of 5.
    In 2006, we changed the listing priority number of the rush darter 
from 5 to 2 based on the imminent threat of water quality deterioration 
(i.e., increased sedimentation due to urbanization, road maintenance, 
and silviculture practices). In the 2007, 2008, 2009, and 2010 CNORs, 
the rush darter retained a listing priority of 2. We proposed to list 
the rush darter as endangered on June 24, 2010 (75 FR 36035).
Yellowcheek Darter
    We first identified the yellowcheek darter as a candidate for 
listing in the 2001 CNOR with a listing priority of 2. The yellowcheek 
darter retained a listing priority number of 2 in the 2002 and 2004 
CNORs. We published a petition finding for yellowcheek darter in the 
2005 CNOR in response to a petition received on May 11, 2004, stating 
the darter would retain a listing priority of 2.
    In the 2006, 2007, 2008, 2009, and 2010 CNORs, the yellowcheek 
darter retained a listing priority of 2. The yellowcheek darter is 
covered by a 2007 programmatic Candidate Conservation Agreement with 
Assurances (71 FR 53129) that covers the entire range of the species. 
We proposed to list the yellowcheek darter as endangered on June 24, 
2010 (75 FR 36035).
Chucky Madtom
    We first identified the chucky madtom as a candidate for listing in 
the 1994 CNOR with a Category 2 status. In the 2002 and 2004 CNORs, the 
chucky madtom was identified as a listing priority 2 candidate species. 
We published a petition finding for chucky madtom in the 2005 CNOR in 
response to a petition received on May 11, 2004, stating the madtom 
would retain a listing priority of 2. In the 2006, 2007, 2008, 2009, 
and 2010 CNORs, the chucky madtom retained a listing priority of 2.
    In 1994, the chucky madtom was first added to the candidate list as 
Noturus sp. Subsequently, and based on morphological and molecular 
evidence, the chucky madtom was formally described as a distinct 
species, Noturus crypticus (Burr et al. 2005). We included this new 
information in the 2006 CNOR. We proposed to list the chucky madtom as 
endangered on June 24, 2010 (75 FR 36035).
Laurel Dace
    We first identified the laurel dace as a new candidate for listing 
in the 2007 CNOR. New candidates are those taxa for which we have 
sufficient information on biological vulnerability and threats to 
support preparation of a listing proposal, but for which development of 
a listing regulation is precluded by other higher priority listing 
activities.
    In the 2007 CNOR, we assigned the laurel dace a listing priority of 
5. The laurel dace retained a listing priority of 5 in the 2008, 2009, 
and 2010 CNORs. We proposed to list the laurel dace as endangered on 
June 24, 2010 (75 FR 36035).

Species Information

Cumberland Darter
    The Cumberland darter (Etheostoma (Boleosoma) susanae (Jordan and 
Swain)) is a medium-sized member of the fish tribe Etheostomatini 
(family Percidae) that reaches over 5.5 centimeters (cm) (2 inches 
(in)) standard length (SL) (length from tip of snout to start of the 
caudal peduncle (slender region extending from behind the anal fin to 
the base of the caudal fin)) (Etnier and Starnes 1993, p. 512). The 
species has a straw-yellow background body color with brown markings 
that form six evenly spaced dorsal (back) saddles and a series of X-, 
C-, or W-shaped markings on its sides (Etnier and Starnes 1993, p. 
510). During spawning season, the overall body color of breeding males 
darkens, and the side markings become obscure or appear as a series of 
blotches (Etnier and Starnes 1993, p. 510).
    The Cumberland darter was first described as Boleosoma susanae by 
Jordan and Swain (1883, pp. 249-250) from tributaries of the Clear Fork 
of the Cumberland River, Kentucky. Subsequent studies by Kuhne (1939, 
p. 92) and Cole (1967, p. 29) formerly recognized the taxon as a 
subspecies (Etheostoma nigrum susanae) of E. n. nigrum (Johnny darter). 
Starnes and Starnes (1979, p. 427) clarified the subspecific status of 
the Cumberland darter, differentiating it from the Johnny darter by 
several diagnostic characteristics. Strange (1998, p. 101) elevated E. 
n. susanae to full species status based on analyses of mitochondrial 
DNA for E. n. susanae and E. n. nigrum.
    The Cumberland darter inhabits pools or shallow runs of low- to 
moderate-gradient sections of streams with stable sand, silt, or sand-
covered bedrock substrates (O'Bara 1988, pp. 10-11; O'Bara 1991, p. 10; 
Thomas 2007, p. 4). Thomas (2007, p. 4) did not encounter the species 
in high-gradient sections of streams or areas dominated by cobble or 
boulder substrates. Thomas (2007, p. 4) reported that streams inhabited 
by Cumberland darters were second to fourth order, with widths ranging 
from 4 to 9 meters (m) (11 to 30 feet (ft)) and depths ranging from 20 
to 76 cm (8 to 30 in).
    Little is known regarding the reproductive habits of the Cumberland 
darter. Thomas (2007, p. 4) reported the collection of males in 
breeding condition in April and May, with water temperatures ranging 
from 15 to 18 degrees Celsius ([deg]C) (59 to 64 degrees Fahrenheit 
([deg]F)). Extensive searches by Thomas (2007, p. 4) produced no 
evidence of nests or eggs at these sites. Species commonly associated 
with the Cumberland darter during surveys by Thomas (2007, pp. 4-5) 
were creek chub (Semotilus atromaculatus), northern hogsucker 
(Hypentelium nigricans), stripetail darter (E. kennicotti), and 
Cumberland arrow darter (E. sagitta sagitta). Feeding habits are 
unknown but are likely similar to that of the closely related species, 
the Johnny darter (E. nigrum). Johnny darters are sight feeders, with 
prey items consisting of midge larvae, mayfly nymphs, caddisfly larvae, 
and microcrustaceans (Etnier and Starnes 1993, p. 511). Thomas (2007, 
p. 5) collected individuals of the Federally threatened blackside dace 
(Chrosomus cumberlandensis), from three streams that also supported 
Cumberland darters.
    The Cumberland darter is endemic to the upper Cumberland River 
system

[[Page 48725]]

above Cumberland Falls in Kentucky and Tennessee (O'Bara 1988, p. 1; 
O'Bara 1991, p. 9; Etnier and Starnes 1993, p. 511). The earliest known 
collections of the species were made by Jordan and Swain (1883, pp. 
249-250), who recorded it as abundant in tributaries of Clear Fork of 
the Cumberland River, Kentucky. The species was later reported from Gum 
Fork, Scott County, Tennessee, by Shoup and Peyton (1940, p. 11), and 
seven additional tributaries of the Cumberland River by Burr and Warren 
(1986, p. 310). More exhaustive surveys by O'Bara (1988, p. 6; 1991, 
pp. 9-10) and Laudermilk and Cicerello (1998; pp. 83-233, 303-408) 
determined that the Cumberland darter was restricted to short reaches 
of 20 small streams (23 sites) in the upper Cumberland River system in 
Whitley and McCreary Counties, Kentucky, and Campbell and Scott 
Counties, Tennessee. These studies suggested the extirpation of the 
species from Little Wolf Creek in Whitley County, Kentucky, and Gum 
Fork in Scott County, Tennessee. Preliminary reports of disjunct 
populations in the Poor Fork Cumberland River and Martins Fork in 
Letcher and Harlan Counties, Kentucky (Starnes and Starnes 1979, p. 
427; O'Bara 1988, p. 6; O'Bara 1991, pp. 9-10), were evaluated 
genetically and determined to be the Johnny darter (Strange 1998, p. 
101).
    Thomas (2007, p. 3) provided the most recent information on status 
and distribution of the species through completion of a range-wide 
status assessment in the upper Cumberland River drainage in Kentucky. 
Between June 2005 and April 2007, a total of 47 sites were sampled 
qualitatively in the upper Cumberland River drainage. All Kentucky 
sites with historic records were surveyed (20 sites), as well as 27 
others having potentially suitable habitat. Surveys by Thomas (2007, p. 
3) produced a total of 51 specimens from 13 localities (12 streams). 
Only one of the localities represented a new occurrence record for the 
species.
    In 2008, the Kentucky Department of Fish and Wildlife Resources 
(KDFWR) initiated a propagation and reintroduction project for the 
Cumberland darter in the upper Cumberland River drainage (Thomas et al. 
2010, p. 107). Utilizing State Wildlife Grant funds from the Service, 
KDFWR worked cooperatively with Conservation Fisheries, Inc. (CFI) of 
Knoxville, Tennessee, to develop captive propagation protocols for the 
species and to produce juvenile Cumberland darters that could be 
reintroduced within the species' historic range. Cogur Fork, a 
tributary to Indian Creek in McCreary County, Kentucky, was chosen by 
KDFWR as a suitable reintroduction site. Cumberland darters were 
released into Cogur Fork in August 2009 and September 2010. Surveys in 
November 2010 resulted in recaptures of individuals released in 2009 
and 2010, as well as captures of four individuals without tags 
(possibly native individuals) (Thomas pers. comm. 2010). Based on these 
results, it appears that reintroduction efforts have been effective, 
with Cumberland darters persisting within Cogur Fork since 2009. 
Furthermore, captures of untagged individuals in 2009 and 2010 suggest 
that Cogur Fork also supports a small, native population of the 
species.
    Currently, the Cumberland darter is known from 15 localities in a 
total of 13 streams in Kentucky (McCreary and Whitley Counties) and 
Tennessee (Campbell and Scott Counties). All 15 extant occurrences of 
the Cumberland darter are restricted to short stream reaches, with the 
majority believed to be restricted to less than 1.6 kilometers (km) (1 
mile (mi)) of stream (O'Bara 1991, pp. 9-10; Thomas 2007, p. 3). These 
occurrences are thought to form six population clusters (Bunches Creek, 
Indian Creek, Marsh Creek, Jellico Creek, Clear Fork, and Youngs 
Creek), which are geographically separated from one another by an 
average distance of 30.5 stream km (19 stream mi) (O'Bara 1988, p. 12; 
O'Bara 1991, p. 10; Thomas 2007, p. 3). Based on collection efforts by 
O'Bara (1991, pp. 9-10), Laudermilk and Cicerello (1998; pp. 83-233, 
303-408), and Thomas (2007, p. 3), the species appears to be extirpated 
from 11 historical collection sites and a total of 9 streams: 
Cumberland River mainstem, near the mouth of Bunches Creek and 
Cumberland Falls (Whitley County); Sanders Creek (Whitley County); 
Brier Creek (Whitley County); Kilburn Fork of Indian Creek (McCreary 
County); Bridge Fork (McCreary County); Marsh Creek, near mouth of Big 
Branch and Caddell Branch (McCreary County); Cal Creek (McCreary 
County); Little Wolf Creek (Whitley County); and Gum Fork (Scott 
County). No population estimates or status trends are available for the 
Cumberland darter; however, survey results by Thomas (2007, p. 3) 
suggest that the species is uncommon or occurs in low densities across 
its range (Thomas 2007, p. 3).
    The Cumberland darter is ranked by the Kentucky State Nature 
Preserves Commission (KSNPC) (2009, p. 38) and the Tennessee Department 
of Environment and Conservation (TDEC) (2009, p. 53) as a G1G2S1 
species: critically imperiled or imperiled globally and critically 
imperiled in Kentucky and Tennessee. The KDFWR State Wildlife Action 
Plan identified the Cumberland darter as a species of Greatest 
Conservation Need (GCN) and identified several top conservation actions 
for it and other species in its Aquatic Guild (Upland Headwater Streams 
in Pools), including: Acquisition or conservation easements for 
critical habitat, development of financial incentives to protect 
riparian (land adjacent to stream channel) corridors, development and 
implementation of best management practices, and restoration of 
degraded habitats through various State and Federal programs (KDFWR 
2005, p. 2.2.2). The Cumberland darter is designated as a Tier 1 GCN 
species in the Tennessee Comprehensive Wildlife Conservation Strategy 
(CWCS) (TWRA 2005, pp. 44, 49).
Rush Darter
    The rush darter (Etheostoma phytophilum) is a medium-sized darter 
in the family Percidae, tribe Etheostomatini, and subgenus Fuscatelum. 
The species reaches an average size of 5 cm (2 in) SL (Bart and Taylor 
1999, p. 28; Johnston and Kleiner 2001, p. 3). The rush darter was 
described by Bart and Taylor in 1999 (pp. 27-33), and is closely 
related to the goldstripe darter (E. parvipinne), a drab-colored 
species with a thin golden stripe along the lateral line (canal along 
the side of a fish with sensory capabilities) that is surrounded by 
heavily mottled or stippled sides (Shaw 1996, p. 85). However, the 
distinct golden stripe characteristic of goldstripe darters is not well 
developed in rush darters (Bart and Taylor 1999, p. 29). Also, the 
brown pigment on the sides of the rush darter is usually not as intense 
as in the goldstripe darter. Other characteristics of the rush darter 
are described in Bart and Taylor (1999, p. 28).
    Rush darters have been collected from various habitats (Stiles and 
Mills 2008, pp. 1-4; Bart 2002, p. 1; Johnston and Kleiner 2001, pp. 3-
4; Stiles and Blanchard 2001, pp. 1-4; Bart and Taylor 1999, p. 32), 
including root masses of emergent vegetation along the margins of 
spring-fed streams in very shallow, clear, cool, and flowing water; and 
from both small clumps and dense stands of bur reed (Sparganium sp.), 
coontail (Ceratophyllum sp.), watercress (Nasturtium officinale), and 
rush (Juncus sp.) in streams with substrates of silt, sand, sand and 
silt, muck and sand or some gravel with sand, and bedrock. Rush darters 
appear to prefer springs and spring-fed reaches of relatively low-
gradient small streams,

[[Page 48726]]

which are generally influenced by springs (Stiles and Mills 2008, pp. 
1-4; Fluker et al. 2007, p. 1; Bart 2002, p. 1; Johnston and Kleiner 
2001, pp. 3-4; Stiles and Blanchard 2001, pp. 1-4; Bart and Taylor 
1999, p. 32). Rush darters have also been collected in wetland pools 
(Stiles and Mills 2008; pp. 2-3). Water depth at collection sites 
ranged from 3.0 cm to 0.5 m (0.1 ft to 1.6 ft), with moderate water 
velocity in riffles and no flow or low flow in pools. Rush darters have 
not been found in higher gradient streams with bedrock substrates and 
sparse vegetation (Stiles and Mills 2008, pp. 1-4; Bart 2002, p. 1; 
Johnston and Kleiner 2001, pp. 3-4; Stiles and Blanchard 2001, pp. 1-4; 
Bart and Taylor 1999, p. 32).
    Stiles and Mills (2008, p. 2) found gravid rush darter females in 
February and fry (newly hatched larval fish) in late April from a 
wetland pool in the Mill Creek watershed (Winston County, Alabama). 
These pools act as nursery areas for the fry (Stiles and Mills 2008, p. 
5). While little is known specifically about the life history of the 
rush darter, this information is available for the goldstripe darter, a 
related species in the Etheostoma genus. Spawning of the goldstripe 
darter in Alabama occurs from mid-March through June (Mettee et al. 
1996, p. 655). Preferred food items for the goldstripe darter include 
midge larvae, mayfly nymphs, blackfly larvae, beetles, and 
microcrustaceans (Mettee et al. 1996, p. 655). The lifespan of the 
goldstripe darter is estimated to be 2 to 3 years.
    The rush darter currently has a restricted distribution (Johnston 
and Kleiner 2001, p. 1). All rush darter populations are located above 
the Fall Line (the inland boundary of the Coastal Plain physiographic 
region) and in other ``highland regions'' where topography and 
elevation changes are observed presenting a barrier for fish movement 
(Boshung and Mayden 2004, p. 18) in the Black Warrior River drainage in 
portions of the Appalachian Plateau and Valley and Ridge physiographic 
provinces of Alabama (Boshung and Mayden 2004, pp. 16-17; Warren et al. 
2000, pp. 9, 10, 24). The closely related goldstripe darter in Alabama 
occurs essentially below the Fall Line in all major systems except the 
Coosa system (Boshung and Mayden 2004, p. 550). Reports of goldstripe 
darters from the 1960s and 1970s in Winston and Jefferson Counties, 
Alabama (Caldwell 1965, pp. 13-14; Barclay 1971, p. 38; Dycus and 
Howell 1974, pp. 21-24; Mettee et al. 1989, pp. 13, 61, 64), which are 
above the Fall Line, were made prior to the description of the rush 
darter, but are now considered to be rush darters (Kuhajda pers. comm. 
2008).
    Historically, rush darters have been found in three distinct 
watersheds in Alabama: Doe Branch, Wildcat Branch, and Mill Creek of 
the Clear Creek drainage in Winston County; an unnamed spring run of 
Beaver Creek and Penny Springs of the Turkey Creek drainage in 
Jefferson County; and Cove Spring (Little Cove Creek system) and 
Bristow Creek of the Locust Fork drainage in Etowah County. Fluker et 
al. (2007, p. 10) suggests that the unique topographic and geologic 
influences in the three distinct population groups likely produced 
different selective pressures, genetic isolation, genetic drift, and 
divergence during the species' evolution.
    Currently, the three rush darter populations occur in the same 
watersheds but in a more limited distribution. One population is 
located in Wildcat Branch and Mill Creek in the Clear Creek drainage in 
Winston County (Johnston and Kleiner 2001, p. 4; Stiles and Mills 2008, 
pp. 1-3); the second is located in an unnamed spring run to Beaver 
Creek, portions of Beaver Creek, and an unnamed tributary to Turkey 
Creek in the Turkey Creek drainage in Jefferson County (Stiles and 
Blanchard 2001, p. 2; Drennen pers. obsv. 2006-2010; Kuhajda pers. 
comm. 2009); and the third is in the Little Cove Creek drainage (Bart 
and Taylor 1999, p. 28; Bart 2002, p. 7; Kuhajda pers. comm. 2008-2009; 
Spadgenski pers. comm. 2008-2009).
    Rush darter populations are separated from each other 
geographically, and individual rush darters are only sporadically 
collected at a particular site within their range. Where it occurs, the 
rush darter is apparently an uncommon species that is usually collected 
in low numbers (compiled from Bart and Taylor 1999, pp. 31-32; Johnston 
and Kleiner 2001, pp. 2-4; Stiles and Blanchard 2001, pp. 1-4; Johnston 
2003, pp. 1-3; Stiles and Mills 2008, pp. 1-3; Rakes pers. comm. 2010; 
Drennen pers. obsv. 2006-2010; Kuhajda pers. comm. 2009); however, 
there are no population estimates at this time.
    Cumulatively, the rush darter is only known from localized 
collection sites within approximately 14.5 km (9 mi) of streams in the 
Clear Creek; Little Cove and Bristow Creek; and Turkey Creek drainages 
in Winston, Etowah, and Jefferson Counties, respectively. Currently, 
about 3 km (2 mi) of stream, or about 22 percent of the rush darter's 
known range, is not occupied.
    Within the Clear Creek drainage, the rush darter has been collected 
in Wildcat Branch, Mill Creek, and Doe Creek, which represents about 13 
km (9 mi) of stream or about 89 percent of the species' total 
cumulative range. Recent surveys (Stiles and Mills 2008, pp. 1-4; 
Johnston and Kleiner 2001, p. 3) have failed to document the absence of 
the rush darter in Doe Creek, indicating a potential reduction of the 
species' known range within the Clear Creek drainage by about 3 km (2 
mi) of stream or 22 percent. However, rush darters were collected in 
2005, 2008, and 2009 in the Little Cove Creek drainage (Cove Spring 
run), after a 30 year period of not finding the species. This 
rediscovery of the species confirms the continued existence of the 
species in Etowah County and Cove Spring. However, the Little Cove 
Creek drainage constitutes an increase of only 0.05 km (0.02 mi) of 
occupied stream habitat or a 0.22 percent addition to the total range 
of the species. No collections of the species have occurred at Bristow 
Creek since 1997. Bristow Creek has since been channelized 
(straightened and deepened to increase water velocity). In the Turkey 
Creek drainage, rush darters have been collected sporadically within 
Penny Springs and at the type locality for the species (an unnamed 
spring run in Jefferson County, Alabama) (Bart and Taylor 1999, pp. 28, 
33). However, the rush darter is likely extirpated from Penny and 
Tapawingo Springs due to introductions of the watercress darter (E. 
nuchale) (George et al. 2009, p. 532). The species can still be found 
in portions of an unnamed tributary of Beaver Creek and an unnamed 
spring to Beaver Creek (Kuhajda pers. comm. 2009). This area contains 
about 1.6 km (1 mi) of occupied stream habitat or approximately 11 
percent of the rush darter's total range.
    The rush darter is ranked by the Alabama Department of Conservation 
and Natural Resources (ADCNR) (Wildlife and Freshwater Fisheries 
Division, ADCNR 2005) as a P1G1S1 species signifying its rarity in 
Alabama and its status as critically imperiled globally. It is also 
considered a species of GCN by the State (Bart 2004, p. 193). The rush 
darter has a High Priority Conservation Actions Needed and Key 
Partnership Opportunities ranking of ``CA 6,'' the highest of any fish 
species listed. The State Wildlife Action Plan states that the species 
consists of disjoint populations and information is needed to determine 
genetic structuring within the populations (Wildlife and Freshwater 
Fisheries Division, ADCNR 2005). Conservation Actions for the species 
may require population augmentation or reintroduction of the

[[Page 48727]]

species to suitable habitats to maintain viability.
Yellowcheek Darter
    The yellowcheek darter (Etheostoma moorei) is a small and 
laterally-compressed fish that attains a maximum SL of about 6.4 cm 
(2.5 in), and has a moderately sharp snout, deep body, and deep caudal 
peduncle (Raney and Suttkus 1964, p. 130). The back and sides are 
grayish brown, often with darker brown saddles and lateral bars. 
Breeding males are brightly colored with a bright blue or brilliant 
turquoise throat and breast and a light-green belly, while breeding 
females possess orange and red-orange spots but are not brightly 
colored (Robison and Buchanan 1988, pp. 427-429).
    First collected in 1959 from the Devils Fork Little Red River, 
Cleburne County, Arkansas, this species was eventually described by 
Raney and Suttkus in 1964, using 228 specimens from the Middle, South, 
and Devils Forks of the Little Red River (Devils Fork, Turkey Fork, and 
Beech Fork represent one stream with three different names and are 
subsequently referred to in this rule as ``Devils Fork''). Wood (1996, 
p. 305) verified the taxonomic status of the yellowcheek darter within 
the subgenus Nothonotus. Complete taxonomy for the species is family 
Percidae, subfamily Percinae, tribe Etheostomatini, genus Etheostoma, 
subgenus Nothonotus and E. tippecanoe species group (Wood 1996, p. 
307). The yellowcheek darter is one of only two members of the subgenus 
Nothonotus known to occur west of the Mississippi River.
    The yellowcheek darter inhabits high-gradient headwater tributaries 
with clear water; permanent flow; moderate to strong riffles; and 
gravel, rubble, and boulder substrates (Robison and Buchanan 1988, p. 
429). Yellowcheek darter prey items include aquatic fly larvae, 
stonefly larvae, mayfly nymphs, and caddisfly larvae (McDaniel 1984, p. 
56).
    Male and female yellowcheek darters reach sexual maturity at 1 year 
of age, and maximum lifespan is around 5 years (McDaniel 1984, pp. 25, 
76). Spawning occurs from late May through June in the swift to 
moderately swift portions of riffles, often around or under the largest 
substrate particles (McDaniel 1984, p. 82), although brooding females 
have been found at the head of riffles in smaller gravel substrate 
(Wine et al. 2000, p. 3). During nonspawning months, there is a general 
movement to portions of the riffle with smaller substrate, such as 
gravel or cobble, and less turbulence (Robison and Harp 1981, p. 3). 
Weston and Johnson (2005, p. 24) observed that the yellowcheek darter 
moved very little during a 1-year migration study. It was noted that 
the yellowcheek darter appears to be a relatively nonmobile species, 
with 19 of 22 recaptured darters found within 9 m (29.5 ft) of their 
original capture position after periods of several months. A number of 
life-history characteristics including courtship patterns, specific 
spawning behaviors, egg deposition sites, number of eggs per nest, 
degree of nest protection by males, and degree of territoriality are 
unknown at this time; however, researchers have suggested that the 
yellowcheek darter deposits eggs on the undersides of large rubble in 
swift water (McDaniel 1984, p. 82). Wine and Blumenshine (2002, p. 10) 
noted that, during laboratory spawning, female yellowcheek darters bury 
themselves in fine gravel or sand substrates (often behind large cobble 
or boulders) with only their heads and caudal fin exposed. A male 
yellowcheek darter will then position upstream of the buried female and 
fertilize her eggs as she releases them in a vibrating motion. Clutch 
size and nest defense behavior were not observed.
    The yellowcheek darter is endemic to the Devils, Middle, South, and 
Archey Forks of the Little Red River and mainstem Little Red River in 
Cleburne, Searcy, Stone, and Van Buren Counties, Arkansas (Robison and 
Buchanan 1988, p. 429). In 1962, the construction of a dam on the 
Little Red River to create Greers Ferry Reservoir impounded much of the 
range of this species, including the lower reaches of Devils Fork, 
Middle Fork, South Fork, and portions of the mainstem Little Red River, 
thus extirpating the species from these reaches. Yellowcheek darter was 
also extirpated from the Little Red River downstream of Greers Ferry 
Reservoir due to cold tailwater releases. The lake flooded optimal 
habitat for the species, and caused the genetic isolation of 
populations (McDaniel 1984, p. 1). The yellowcheek darter was known to 
historically occur in portions of these streams that maintained 
permanent year-round flows.
    In the 1978-1981 study by Robison and Harp (1981, pp. 15-16), 
yellowcheek darter occurred in greatest numbers in the Middle and South 
Forks of the Little Red River, with populations estimated at 36,000 and 
13,500 individuals, respectively, while populations in both Devils Fork 
and Archey Fork were estimated at approximately 10,000 individuals 
(Robison and Harp 1981, pp. 5-11). During this study, the four forks of 
the Little Red River supported an estimated yellowcheek darter 
population of 60,000 individuals, and the species was considered the 
most abundant riffle fish present (Robison and Harp 1981, p. 14). 
Extensive sampling of the first two tributaries of the Little Red River 
below Greers Ferry Dam (both named Big Creek) failed to find any 
yellowcheek darters, and no darters were found in immediately adjacent 
watersheds (Robison and Harp 1981, p. 5).
    Two subsequent studies have failed to observe yellowcheek darters 
in the Turkey Fork reach of the Devils Fork Little Red River (Wine et 
al. 2000, p. 9; Wine and Blumenshine 2002, p. 11), since four 
individuals were last collected by Arkansas State University (ASU) 
researchers in 1999 (Mitchell et al. 2002, p. 129). They have been 
observed downstream within that system in the Beech Fork reach, where 
flows are more permanent. The reach downstream of Raccoon Creek is 
influenced by inundation from Greers Ferry Reservoir and no longer 
supports yellowcheek darter. The U.S. Army Corps of Engineers 
channelized approximately 5.6 km (3.5 mi) of the lower Archey and South 
Forks Little Red River within the city limits of Clinton, Arkansas, in 
1985 for flood control purposes. Yellowcheek darter has not been 
collected within this reach since channelization. The yellowcheek 
darter inhabits most of its historical range not currently affected by 
Greers Ferry Lake, although in greatly reduced numbers in the Middle, 
South, Archey, and Devils Forks of the Little Red River.
    While collecting specimens for the 1999 genetic study, ASU 
researchers discovered that the yellowcheek darter was no longer the 
most abundant riffle fish and was more difficult to find throughout its 
historical range (Wine et al. 2000, p. 2). Because optimal habitat had 
been destroyed by the creation of Greers Ferry Lake, yellowcheek 
darters were confined to upper stream reaches with lower summer flow, 
smaller substrate particle size, and reduced gradient. A thorough 
status survey conducted in 2000 found the yellowcheek darter in three 
of four historically occupied forks in greatly reduced numbers (Wine et 
al. 2000, p. 9). Populations in the Middle Fork were estimated at 
approximately 6,000 individuals, the South Fork at 2,300, and the 
Archey Fork at 2,000. Yellowcheek darter was not collected from the 
Devils Fork. Fish community composition was similar from 1978-1981 and 
2000 studies, but the proportion of yellowcheek darter declined from 
approximately 28 percent to 6 percent of the overall composition. Fish 
known to coexist with yellowcheek darter include the rainbow darter (E.

[[Page 48728]]

caeruleum) and greenside darter (E. blennioides), which can use pool 
habitats during periods of low flow, as evidenced by the collection of 
these two species from pools during electroshocking activities. 
Electroshocking has not revealed yellowcheek darter in pools, 
suggesting perhaps that they are unable to tolerate pool conditions 
(deep, slow-moving water usually devoid of cobble substrate). An 
inability to use pools during low flows would make them much more 
vulnerable to seasonal fluctuations in flows that reduce riffle 
habitat. As a result, researchers have suggested that yellowcheek 
darter declines are more likely a species rather than community 
phenomenon (Wine et al. 2000, p. 11).
    Weston and Johnson (2005, p. 22) estimated yellowcheek darter 
populations within the Middle Fork to be between 15,000 and 40,000 
individuals, and between 13,000 and 17,000 individuals in the South 
Fork. Such increases since the 2000 status survey would indicate 
remarkable adaptability to changing environmental conditions. However, 
it should be noted that estimates were based upon mark/recapture 
estimates using the Jolly-Seber method, which requires high numbers of 
recaptured specimens for accurate estimations. Recaptures were 
extremely low during that study; therefore, population estimates were 
highly variable and confidence in the resulting estimates is low.
    The yellowcheek darter is ranked by the Arkansas Natural Heritage 
Commission (ANHC) (2007, pp. 2-118) as an S1G1 species: extremely rare 
in Arkansas, and critically imperiled globally. The Arkansas Game and 
Fish Commission's (AGFC) Wildlife Action Plan describes the yellowcheek 
darter as a critically imperiled species with declining populations 
(AGFC 2005, pp. 452-454).
Chucky Madtom
    The chucky madtom (Noturus crypticus) is a small catfish (family 
Ictaluridae), with the largest specimen measuring 6.5 cm (2.6 in) SL 
(Burr et al. 2005, p. 795). Burr et al. (2005) described the chucky 
madtom, confirming previous analyses (Burr and Eisenhour 1994), which 
indicated that the chucky madtom is a unique species, a member of the 
Rabida subgenus (i.e., the ``mottled'' or ``saddled'' madtoms), and a 
member of the Noturus elegans species complex (i.e., N. elegans, N. 
albater, N. fasciatus, and N. trautmani) outlined by Taylor (1969 in 
Grady and LeGrande 1992). A robust madtom, the chucky madtom body is 
wide at the pectoral fin origins, greater than 23 percent of the SL. 
The back contains three dark, nearly black blotches ending abruptly 
above the lateral midline of the body, with a moderately contrasting, 
oval, pale saddle in front of each blotch (Burr et al. 2005, p. 795).
    The chucky madtom is a rare catfish known from only 15 specimens 
collected from two Tennessee streams. A lone individual was collected 
in 1940 from Dunn Creek (a Little Pigeon River tributary) in Sevier 
County, and 14 specimens have been encountered since 1991 in Little 
Chucky Creek (a Nolichucky River tributary) in Greene County, 
Tennessee. Only 3 chucky madtom individuals have been encountered since 
2000; 1 in 2000 (Lang et al. 2001, p. 2) and 2 in 2004 (CFI 2008, 
unpublished data), despite surveys that have been conducted in both 
historical localities at least twice a year since 2000 (Rakes and Shute 
2004, pp. 2-3; Weber and Layzer 2007, p. 4; CFI 2008, unpublished 
data). In addition, several streams in the Nolichucky, Holston, and 
French Broad River watersheds of the upper Tennessee River basin, which 
are similar in size and character to Little Chucky Creek, have been 
surveyed with no success (Burr and Eisenhour 1994, pp. 1-2; Shute et 
al. 1997, p. 5; Lang et al. 2001, pp. 2-3; Rakes and Shute 2004, p. 1). 
Conservation Fisheries, Inc. did not find chucky madtoms in 2007 after 
attempting new sampling techniques (e.g., PVC ``jug'' traps) (CFI 2008, 
unpublished data).
    Originally, museum specimens collected from the Roaring River in 
Tennessee (Cumberland River drainage) and from Piney Creek, West Fork 
Flint River, and the Paint Rock River system in Alabama (Tennessee 
River drainage) were first identified and catalogued as Noturus elegans 
species complex and thought to be chucky madtoms. The Roaring River, 
Piney Creek, and West Fork Flint River specimens are now considered to 
be a member of the N. elegans group, but have not been assigned to a 
species. While the specimens from the Paint Rock River system share 
typical anal ray counts with the chucky madtom, they lack the 
distinctive cheek characteristics, differ in pelvic ray counts, and are 
intermediately shaped between the chucky and saddled madtoms (N. 
fasciatus) with respect to body width as a proportion of SL (Burr et 
al. 2005, p. 796). Thus, the Little Chucky and Dunn Creek forms are the 
only forms that are recognized as chucky madtoms.
    All of the specimens collected in Little Chucky Creek have been 
found in stream runs with slow to moderate current over pea gravel, 
cobble, or slab-rock substrates (Burr and Eisenhour 1994, p. 2). 
Habitat of these types is sparse in Little Chucky Creek, and the stream 
affords little loose, rocky cover suitable for madtoms (Shute et al. 
1997, p. 8). It is notable that intact riparian buffers are present in 
the locations where chucky madtoms have been found (Shute et al. 1997, 
p. 9).
    No studies to determine the life history and behavior of this 
species have been conducted. While nothing is known specifically about 
chucky madtom reproductive biology, recruitment, growth and longevity, 
food habits, or mobility, this information is available for other 
similar members of the Noturus group. The least madtom (N. hildebrandi) 
may reach sexual maturity at 1 or more years of age (i.e., during their 
second summer) (Mayden and Walsh 1984, p. 351). Only the largest 
females of Ozark madtom (N. albater) were found to be sexually mature, 
and males were found to be sexually mature primarily within the second 
age class (Mayden et al. 1980, p. 339), though, a single large male of 
the first age class showed evidence of sexual maturity (Mayden et al. 
1980, p. 339). The breeding season of the least and smoky madtoms (N. 
baileyi) is primarily during June through July, though development of 
breeding condition is initiated as early as April in least madtom and 
May in smoky madtom (Mayden and Walsh 1984, p. 353; Dinkins and Shute 
1996, p. 56). Fecundity varied among the species for which data were 
available; however, it should be noted that fecundity in madtoms is 
generally lower in comparison to other North American freshwater fishes 
(Breder and Rosen 1966 in Dinkins and Shute 1996, p. 58). Dinkins and 
Shute (1996, p. 58) commented that for smoky madtom the combination of 
relatively large egg size and high level of parental care given to the 
fertilized eggs and larvae reduce early mortality and, therefore, the 
need to produce a large number of young.
    Both smoky and elegant madtoms (N. elegans) were found to nest 
under flat rocks at or near the head of riffles (Dinkins and Shute 
1996, p. 56; Burr and Dimmick 1981, p. 116). Shallow pools were also 
used by the smoky madtom, which was observed to select rocks of larger 
dimension for nesting than were used for shelter during other times of 
year (Dinkins and Shute 1996, p. 56). Single madtoms were found to 
guard nests in smoky and elegant madtoms, a behavior also exhibited by 
Ozark and least madtoms (Dinkins and Shute 1996, p. 56; Burr and 
Dimmick 1981, p. 116; Mayden et al. 1980, p. 337;

[[Page 48729]]

Mayden and Walsh 1984, p. 357). Males of these species were the nest 
guardians and many were found to have empty stomachs suggesting that 
they do not feed during nest guarding, which can last as long as 3 
weeks.
    Conservation Fisheries, Inc. had one male chucky madtom in 
captivity from 2004 through 2008. However, based on information from 
other members of this genus for which longevity data are available, 
least and smoky madtoms, it is unlikely that chucky madtoms can survive 
this long in the wild. The shorter lived of these, least madtom, 
reached a maximum age of 18 months, though most individuals lived 
little more than 12 months, dying soon after reproducing (Mayden and 
Walsh 1984, p. 351). Based on length-frequency distributions, smoky 
madtoms exhibited a lifespan of 2 years, with two cohorts present in a 
given year (Dinkins and Shute 1996, p. 53). Collection of two age 
classes together provided evidence that life expectancy exceeds 1 year 
in the pygmy madtom (N. stanauli) (Etnier and Jenkins 1980, p. 20). The 
Ozark madtom lives as long as 3 years (Mayden et al. 1980, p. 337).
    Chucky madtom prey items are unknown; however, least madtom prey 
items include midge larvae, caddisfly larvae, stonefly larvae, and 
mayfly nymphs (Mayden and Walsh 1984, p. 339). In smoky madtoms, mayfly 
nymphs comprised 70.7 percent of stomach contents analyzed; fly, 
mosquitoe, midge, and gnat larvae 2.4 percent; caddisfly larvae 4.4 
percent; and stonefly larvae 1.0 percent (Dinkins and Shute 1996, p. 
61). Significant daytime feeding was observed in smoky madtoms.
    Dinkins and Shute (1996, p. 50) found smoky madtoms underneath 
slabrocks in swift to moderate current during May to early November. 
Habitat use shifted to shallow pools over the course of a 1-week 
period, coinciding with a drop in water temperature to 7 or 8 [deg]C 
(45 to 46 [deg]F), and persisted from early November to May. Eisenhour 
et al. (1996, p. 43) collected saddled madtoms in gravel, cobble, and 
slab-rock substrates in riffle habitats with depths ranging from 0.1 to 
0.3 m (0.3 to 1.0 ft). Based on their limited number of observations, 
Eisenhour et al. (1996, p. 43) hypothesized that saddled madtoms occupy 
riffles and runs in the daylight hours and then move to pools at night 
and during crepuscular hours (dawn and dusk) to feed.
    The current range of the chucky madtom is believed to be restricted 
to an approximately 3-km (1.8-mi) reach of Little Chucky Creek in 
Greene County, Tennessee. Because this species was also collected from 
Dunn Creek, a stream that is in a different watershed and physiographic 
province than Little Chucky Creek, it is likely that the historic range 
of the chucky madtom encompassed a wider area in the Ridge and Valley 
and the Blue Ridge physiographic provinces in Tennessee than is 
demonstrated by its current distribution. A survey for the chucky 
madtom in Dunn Creek in 1996 was not successful at locating the species 
(Shute et al. 1997, p. 8). The Dunn Creek population may be extirpated 
(Shute et al. 1997, p. 6; Burr et al. 2005, p. 797), because adequate 
habitat and a diverse fish community were present at the time of the 
surveys, but no chucky madtoms were found. There are no population size 
estimates or status trends for the chucky madtom due to low numbers and 
only sporadic collections of specimens.
    The chucky madtom is ranked by the TDEC (2009, p. 58) as an S1G1 
species: extremely rare in Tennessee, and critically imperiled 
globally. The chucky madtom is designated as a Tier 1 GCN species in 
the Tennessee CWCS (TWRA 2005, pp. 44, 49).
Laurel Dace
    The laurel dace (Chrosomus saylori), family Cyprinidae and 
subfamily Leuciscinae, has two continuous black lateral stripes and 
black pigment covering the breast and underside of the head of nuptial 
(breeding) males (Skelton 2001, p. 120). The maximum SL observed is 5.1 
cm (2 in) (Skelton 2001, p. 124). While the belly, breast, and lower 
half of the head are typically a whitish-silvery color, at any time of 
the year laurel dace may develop red coloration below the lateral 
stripe that extends from the base of the pectoral fins to the base of 
the caudal fin (Skelton 2001, p. 121).
    Nuptial males often acquire brilliant coloration during the 
breeding season, as the two lateral stripes, breast, and underside of 
head turn intensely black and the entire ventral (lower/abdominal) 
portion of the body, contiguous with the lower black stripe and black 
breast, becomes an intense scarlet color. All of the fins acquire a 
yellow color, which is most intense in the paired fins and less intense 
in the dorsal, anal, and caudal fins. Females also develop most of 
these colors, though of lesser intensity (Skelton 2001, p. 121). 
Broadly rounded pectoral fins of males are easily discerned from the 
broadly pointed fins of females at any time during the year.
    Laurel dace have been most often collected from pools or slow runs 
from undercut banks or beneath slab boulders, typically in first or 
second order, clear, cool (maximum temperature 26 [deg]C or 78.8 
[deg]F) streams. Substrates in streams where laurel dace are found 
typically consist of a mixture of cobble, rubble, and boulders, and the 
streams tend to have a dense riparian zone consisting largely of 
mountain laurel (Skelton 2001, pp. 125-126).
    Skelton (2001, p. 126) reported having collected nuptial 
individuals from late March until mid-June, though Call (pers. obs. 
2004) observed males in waning nuptial color during surveys on July 22, 
2004. Laurel dace may be a spawning nest associate where syntopic 
(sharing the same habitat) with nest-building minnow species, as has 
been documented in blackside dace (Starnes and Starnes 1981, p. 366). 
Soddy Creek is the only location in which Skelton (2001, p. 126) has 
collected a nest-building minnow with laurel dace. Skelton (2001, p. 
126) reports finding as many as three year classes in some collections 
of laurel dace, though young-of-year fish are uncommon in collections. 
Observations of three year classes indicate that laurel dace live as 
long as 3 years.
    Laurel dace preferred prey items include fly larvae, stonefly 
larvae, and caddisfly larvae (Skelton 2001, p. 126). Skelton observed 
that the morphological feeding traits of laurel dace, including large 
mouth, short digestive tract, reduced number of pharyngeal (located 
within the throat) teeth, and primitively shaped basioccipital bone 
(bone that articulates the vertebra), all of which are consistent with 
a diet consisting largely of animal material.
    Laurel dace are known historically from seven streams on the Walden 
Ridge portion of the Cumberland Plateau, where drainages generally 
meander eastward before dropping abruptly down the plateau escarpment 
and draining into the Tennessee River. Specifically, these seven 
streams occur in three independent systems: Soddy Creek; three streams 
that are part of the Sale Creek system (the Horn and Laurel branch 
tributaries to Rock Creek, and the Cupp Creek tributary to Roaring 
Creek); and three streams that are part of the Piney River system 
(Young's, Moccasin, and Bumbee creeks). Strange and Skelton (2005, p. 
8) assessed the genetic structure within populations of laurel dace 
and, based on distribution of genetic diversity among populations, they 
recognized two genetically distinct management units; (1) The southern 
populations in Sale and Soddy Creeks, and (2) the northern population 
in the Piney River system.
    Skelton (2001, p. 126) considered collections by the Tennessee 
Valley

[[Page 48730]]

Authority (TVA) during a rotenone survey of Laurel Branch in 1976 to 
represent laurel dace that were misidentified as southern redbelly dace 
(Chrosomus erythrogaster), as was found to be true for specimens 
collected by TVA from Horn Branch in 1976, but no specimens are 
available for confirmation. In 1991, and in four other surveys (two in 
1995, one in 1996, and one in 2004), laurel dace were not collected in 
Laurel Branch, leading Skelton to the conclusion that laurel dace have 
been extirpated from this stream (Skelton 1997, p. 13; Skelton 2001, p. 
126; Skelton pers. comm. 2009). Skelton (pers. comm. 2009) also noted 
that the site was impacted by silt.
    The current distribution of laurel dace comprises six of the seven 
streams that were historically occupied; the species is considered 
extirpated from Laurel Branch (see above). In these six streams, they 
are known to occupy reaches of approximately 0.3 to 8 km (0.2 to 5 mi) 
in length. The laurel dace is known from a single reach in Soddy Creek, 
and surveys in 2004 produced only a single, juvenile laurel dace 
(Strange and Skelton 2005, pp. 5-6 and Appendices 1 and 2). In Horn 
Branch, laurel dace are known from approximately 900 m (2,953 ft), but 
have become increasingly difficult to collect (Skelton 1997, pp. 13-
14). Skelton (1997, p. 14) reports that minnow traps have been the most 
successful method for collecting live laurel dace from Horn Branch, as 
it is difficult to electroshock the fish due to in-stream rock 
formations and fallen trees. Only a single juvenile was caught in 2004 
(Strange and Skelton 2005, p. 6). A total of 19 laurel dace were 
collected from Cupp Creek during 1995 and 1996 using an electroshocker 
(Skelton 1996, p. 14). However, Skelton found no laurel dace in this 
stream in 2004, despite attempts to collect throughout an approximately 
700-m (2,297-ft) reach (Strange and Skelton 2005, p. 6).
    Laurel dace were initially found in Young's, Moccasin, and Bumbee 
creeks in the Piney River system in 1996 (Skelton 1997, pp. 14-15). 
Sampling in 2004 led to the discovery of additional laurel dace 
localities in Young's and Moccasin creeks, but the locality where 
laurel dace were found in Young's Creek in 1996 was inaccessible due to 
the presence of a locked gate (Strange and Skelton 2005, p. 6-7). The 
new localities were in the headwaters of these two streams. Persistence 
of laurel dace at the Bumbee Creek locality was confirmed in 2004 by 
surveying from a nearby road using binoculars. Direct surveys were not 
possible because the land had been leased to a hunt club for which 
contact information was not available, and, therefore, survey 
permission could not be obtained (Strange and Skelton 2005, p. 7). 
Nuptial males are easily identified from other species present in 
Bumbee Creek due to their brilliant coloration during the breeding 
season, as the two lateral stripes, breast, and underside of head turn 
intensely black and the entire ventral (lower/abdominal) portion of the 
body, contiguous with the lower black stripe and black breast, becomes 
an intense scarlet color. This brilliant coloration is easily seen 
through binoculars at short distances by trained individuals.
    No population estimates are available for laurel dace. However, 
based on trends observed in surveys and collections since 1991, Strange 
and Skelton (2005, p. 8) concluded that this species is persisting in 
Young's, Moccasin, and Bumbee creeks in the Piney River watershed, but 
is at risk of extirpation from the southern part of Walden Ridge in 
Soddy Creek, and in the Horn Branch and Cupp Creek areas that are 
tributaries to Sale Creek. As noted above, the species is considered to 
be extirpated from Laurel Branch, which is part of the Sale Creek 
system.
    The laurel dace is ranked by the TDEC (2009, p. 60) as an S1G1 
species: extremely rare in Tennessee, and critically imperiled 
globally. The laurel dace is designated as a Tier 1 GCN species in the 
Tennessee CWCS (TWRA 2005, pp. 44, 49).

Summary of Comments and Recommendations

    In the proposed rule published on June 24, 2010, we requested that 
all interested parties submit written comments on the proposed rule to 
list the Cumberland darter, rush darter, yellowcheek darter, chucky 
madtom, and laurel dace by August 23, 2010. We also contacted 
appropriate Federal and State agencies, scientific experts and 
organizations, and other interested parties and invited them to comment 
on the proposal. Newspaper notices inviting general public comment were 
published in newspapers covering all affected counties in Kentucky, 
Tennessee, Alabama, and Arkansas. We did not receive any requests for a 
public hearing.
    During the comment period for the proposed rule, we received ten 
comment letters in response to the proposed rule: four from peer 
reviewers, one from a State agency, and five from organizations or 
individuals. All of the ten commenters supported the proposed rule to 
list these five fishes as endangered. All substantive information 
provided during the comment period has either been incorporated 
directly into this final determination or is addressed below.

Peer Review

    In accordance with our peer review policy published on July 1, 1994 
(59 FR 34270), we solicited expert opinion from 12 knowledgeable 
individuals with scientific expertise that included familiarity with 
the 5 species and their habitats, biological needs, and threats. We 
received responses from four of the peer reviewers.
    We reviewed all comments received from the peer reviewers for 
substantive issues and new information regarding the listing of the 
five fishes. The peer reviewers generally concurred with our 
conclusions and provided additional information on taxonomic 
classification, life-history, and distribution; technical 
clarifications; and suggestions to improve the final rule. Peer 
reviewer comments are addressed in the ``Summary of Changes from 
Proposed Rule'' and incorporated into the final rule as appropriate.

Public Comments

    (1) Comment: Two commenters stated that the laurel dace is 
threatened, particularly in Horn Branch, a tributary to the Rock Creek 
watershed, by timber harvest, rock harvest (collection of surface 
fieldstones), and coal mining of the Sewanee Coal Seam in Bledsoe and 
Rhea counties, Tennessee. These commenters recommended critical habitat 
designation in the Upper Rock Creek watershed of Bledsoe County, 
Tennessee, due to the threats that are imminent and of high magnitude 
in Horn Branch. The commenters are particularly concerned that mining 
of the Sewanee Coal Seem would result in acid mine drainage.
    Our Response: We concur with these commenters that the laurel dace 
in Rock Creek watershed is threatened by timber harvest, rock harvest, 
and coal mining. We have incorporated further analyses regarding the 
threats of rock harvest and coal mining under ``Summary of Factors 
Affecting the Species'' for laurel dace. Further analysis with regard 
to critical habitat designation will be addressed in the upcoming 
critical habitat rule.
    (2) Comment: One commenter stated that the Cumberland darter is 
threatened, particularly in Dan Branch, a tributary to the Lick Fork 
watershed, by degradation of water quality from mountaintop mining 
projects in Campbell and Claiborne counties, Tennessee. In addition to 
this general concern, the commenter was aware of selenium contamination 
within these same watersheds and feared that the

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issuance of new permits would cause further degradation to fish and 
wildlife habitats in Campbell County.
    Our Response: We concur with the commenter that mountaintop mining, 
and specifically selenium contamination, has the potential to degrade 
the water quality of Cumberland darter streams in Campbell and 
Claiborne counties, Tennessee. Streams associated with mountaintop 
mining and valley fills are characterized by increased conductivity, 
total dissolved solids, and concentrations of sulfate, bicarbonate 
ions, and metals such as manganese, iron, aluminum, and selenium. 
Increased levels of selenium have been shown to bioaccumulate in 
organisms, leading to deformities in larval fish and potentially 
harming birds that prey on fishes. The proposed rule provided a more 
detailed analysis of these and other water quality threats to the 
Cumberland darter under ``Summary of Factors Affecting the Species.''

Summary of Changes From Proposed Rule

    As a result of the comments received during the public comment 
period (see above) we made the following changes to the final listing 
rule:
    (1) We added taxonomic classification information to the species' 
background sections.
    (2) We added life-history information to the Cumberland darter and 
chucky madtom background sections.
    (3) We updated the distributional information for the rush darter 
in Alabama.
    (4) We changed the genus of laurel dace from Phoxinus to Chrosomus 
to reflect recent taxonomic changes (Strange and Mayden 2009).
    (5) We updated population estimate and threats information for the 
yellowcheek darter in Arkansas.

Summary of Factors Affecting the Species

    Section 4 of the Act and its implementing regulations (50 CFR 424) 
set forth the procedures for adding species to the Federal Lists of 
Endangered and Threatened Wildlife and Plants. A species may be 
determined to be an endangered or threatened species due to one or more 
of the five factors described in section 4(a)(1) of the Act: (A) The 
present or threatened destruction, modification, or curtailment of its 
habitat or range; (B) overutilization for commercial, recreational, 
scientific, or educational purposes; (C) disease or predation; (D) the 
inadequacy of existing regulatory mechanisms; and (E) other natural or 
manmade factors affecting its continued existence. Listing actions may 
be warranted based on any of the above threat factors, singly or in 
combination. Each of these factors is discussed below.

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

    The primary threat to the Cumberland darter, rush darter, 
yellowcheek darter, chucky madtom, and laurel dace is physical habitat 
destruction or modification resulting from a variety of human-induced 
impacts such as siltation, disturbance of riparian corridors, and 
changes in channel morphology (Waters 1995, pp. 2-3; Skelton 1997, pp. 
17, 19; Thomas 2007, p. 5). The most significant of these impacts is 
siltation (excess sediments suspended or deposited in a stream) caused 
by excessive releases of sediment from activities such as resource 
extraction (e.g., coal mining, silviculture, natural gas development), 
agriculture, road construction, and urban development (Waters 1995, pp. 
2-3; Kentucky Division of Water (KDOW) 2006, pp. 178-185; Skelton 1997, 
pp. 17, 19; Thomas 2007, p. 5).
    Land use practices that affect sediment and water discharges into a 
stream can also increase the erosion or sedimentat