Endangered and Threatened Wildlife and Plants; Designation of Critical Habitat for the Cumberland Darter, Rush Darter, Yellowcheek Darter, Chucky Madtom, and Laurel Dace, 63603-63668 [2012-24468]

Download as PDF Vol. 77 Tuesday, No. 200 October 16, 2012 Part IV Department of the Interior tkelley on DSK3SPTVN1PROD with RULES2 Fish and Wildlife Service 50 CFR Part 17 Endangered and Threatened Wildlife and Plants; Designation of Critical Habitat for the Cumberland Darter, Rush Darter, Yellowcheek Darter, Chucky Madtom, and Laurel Dace; Final Rule VerDate Mar<15>2010 17:42 Oct 15, 2012 Jkt 229001 PO 00000 Frm 00001 Fmt 4717 Sfmt 4717 E:\FR\FM\16OCR2.SGM 16OCR2 63604 Federal Register / Vol. 77, No. 200 / Tuesday, October 16, 2012 / Rules and Regulations DEPARTMENT OF THE INTERIOR Fish and Wildlife Service 50 CFR Part 17 [Docket No. FWS–R4–ES–2011–0074; 4500030114] RIN 1018–AX76 Endangered and Threatened Wildlife and Plants; Designation of Critical Habitat for the Cumberland Darter, Rush Darter, Yellowcheek Darter, Chucky Madtom, and Laurel Dace Fish and Wildlife Service, Interior. ACTION: Final rule. AGENCY: We, the U.S. Fish and Wildlife Service, designate critical habitat 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. In total, approximately 86 river kilometers (rkm) (54 river miles (rmi)) are being designated as critical habitat for the Cumberland darter, 44 rkm (27 rmi) and 12 hectares (ha) (29 acres (ac)) for the rush darter, 164 rkm (102 rmi) for the yellowcheek darter, 32 rkm (20 rmi) for the Chucky madtom, and 42 rkm (26 rmi) for the laurel dace. The effect of this regulation is to conserve the five species’ habitat under the Endangered Species Act. DATES: This rule becomes effective on November 15, 2012. ADDRESSES: This final rule and the associated final economic analysis are available on the Internet at https:// www.regulations.gov. Comments and materials received, as well as supporting documentation used in preparing this final rule, are available for public inspection, by appointment, during normal business hours, at the 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. The coordinates or plot points or both from which the maps are generated are included in the administrative record for this critical habitat designation and are available at https://www.fws.gov/ cookeville, https://www.regulations.gov at Docket No. FWS–R4–ES–2011–0074, and at the Tennessee Fish and Wildlife Office (see FOR FURTHER INFORMATION CONTACT). Any additional tools or supporting information that we may develop for this critical habitat tkelley on DSK3SPTVN1PROD with RULES2 SUMMARY: VerDate Mar<15>2010 17:42 Oct 15, 2012 Jkt 229001 designation will also be available at the Fish and Wildlife Service Web site and Field Office set out above, and may also be included in the preamble and/or at https://www.regulations.gov. FOR FURTHER INFORMATION CONTACT: For information regarding the Cumberland darter, contact Lee Andrews, Field Supervisor, U.S. Fish and Wildlife Service, Kentucky Fish and Wildlife Office, J.C. Watts Federal Building, 330 W. Broadway, Room 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 Fish and Wildlife 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 Fish and Wildlife Office, 1208–B Main Street, Daphne, AL 36526; telephone 251–441– 5181; facsimile 251–441–6222. For information regarding the yellowcheek darter, contact Jim Boggs, Field Supervisor, U.S. Fish and Wildlife Service, Arkansas Fish and Wildlife Office, 110 South Amity Road, Suite 300, Conway, AR 72032; telephone 501– 513–4470; facsimile 501–513–4480. For information regarding the Chucky madtom or laurel dace, contact Mary Jennings, Field Supervisor, U.S. Fish and Wildlife Service, Tennessee Fish and Wildlife Office, 446 Neal Street, Cookeville, TN 38501; telephone 931– 525–4973; 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: Executive Summary Why we need to publish a rule. Under the Endangered Species Act, any species that is determined to be an endangered or threatened species requires critical habitat to be designated, to the maximum extent prudent and determinable. Designations and revisions of critical habitat can only be completed by issuing a rule. This rule will designate critical habitat for the Cumberland Darter, Rush Darter, Yellowcheek Darter, Chucky Madtom, and Laurel Dace. In total, approximately 86 river kilometers (rkm) (54 river miles (rmi)) are being designated as critical habitat for the Cumberland darter in McCreary and Whitley Counties, Kentucky, and Campbell and Scott Counties, Tennessee; 44 rkm (27 rmi) and 12 hectares (ha) (29 acres (ac)) are being PO 00000 Frm 00002 Fmt 4701 Sfmt 4700 designated as critical habitat for the rush darter in Etowah, Jefferson, and Winston Counties, Alabama; 164 rkm (102 rmi) are being designated as critical habitat for the yellowcheek darter in Cleburne, Searcy, Stone, and Van Buren Counties, Arkansas; 32 rkm (20 rmi) are being designated as critical habitat for the Chucky madtom in Greene County, Tennessee; and 42 rkm (26 rmi) are being designated as critical habitat for the laurel dace in Bledsoe, Rhea, and Sequatchie Counties, Tennessee. The basis for our action. The Act requires that the Service designate critical habitat at the time of listing to the extent prudent and determinable. We have determined that designation is prudent and critical habitat is determinable (see Critical Habitat section below). We prepared an economic analysis. To ensure that we consider the economic impacts, we prepared an economic analysis of the designation of critical habitat. We published an announcement and solicited public comments on the draft economic analysis. The analysis found that the present value of the total direct (administrative) incremental cost of critical habitat designation is $644,000 over the next 20 years assuming a seven percent discount rate. Primarily these costs are associated with consultation for water quality management activities, transportation; coal mining; oil and natural gas development; agriculture, ranching, and silviculture; dredging, channelization, impoundments, dams, and diversions; and recreation at $10,000 (Industrial Economics, Inc. 2012). Peer review and public comment. We sought comments from independent specialists to ensure that our designation is based on scientifically sound data and analyses. We invited these peer reviewers to comment on our conclusions in the critical habitat proposal. We also considered all comments and information received during the comment period. Background It is our intent to discuss in this final rule only those topics directly relevant to the development and designation of critical habitat for the Cumberland darter, rush darter, yellowcheek darter, Chucky madtom, and laurel dace under the Endangered Species Act of 1973, as amended (Act; 16 U.S.C. 1531 et seq.). For more information on the biology and ecology of these five fishes, refer to the final listing rule published in the Federal Register on August 9, 2011 (76 FR 48722). For information on the five fishes’ critical habitat, refer to the E:\FR\FM\16OCR2.SGM 16OCR2 Federal Register / Vol. 77, No. 200 / Tuesday, October 16, 2012 / Rules and Regulations proposed rule to designate critical habitat published in the Federal Register on October 12, 2011 (76 FR 63360). Information on the associated draft economic analysis for the proposed rule was published in the Federal Register on May 24, 2012 (77 FR 30988). Previous Federal Actions The Cumberland darter, rush darter, yellowcheek darter, Chucky madtom, and laurel dace were listed as endangered species under the Act on August 9, 2011 (76 FR 48722). For the full history of previous Federal actions regarding these five species, please refer to the final listing rule (76 FR 48722). In the June 24, 2010, proposed listing rule (75 FR 36035) we determined that designation of critical habitat was prudent for all five species. However, we found that critical habitat was not determinable at the time and set forth the steps we would undertake to obtain the information necessary to develop a proposed designation of critical habitat. The proposed rule to designate critical habitat for these fishes published in the Federal Register on October 12, 2011 (76 FR 63360). Information on the associated draft economic analysis for the proposed rule to designate critical habitat was published in the Federal Register on May 24, 2012 (77 FR 30988). Species Information tkelley on DSK3SPTVN1PROD with RULES2 Cumberland Darter The Cumberland darter (Etheostoma susanae) is a narrowly endemic fish species, occurring in sparse, fragmented, and isolated populations in the upper Cumberland River system of Kentucky and Tennessee. The species 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 centimeters (cm) (8 to 30 inches (in)). The Cumberland darter’s current distribution is limited to 13 streams in McCreary and Whitley Counties, Kentucky, and Campbell and Scott Counties, Tennessee (Thomas 2007, pp. 11–12). Occurrences from these streams are thought to form six population clusters (Bunches Creek, Indian Creek, Marsh Creek, Jellico Creek, Wolf Creek, VerDate Mar<15>2010 17:42 Oct 15, 2012 Jkt 229001 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). The primary threat to the Cumberland darter 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; Skelton 1997, pp. 17, 19; KDOW 2006, pp. 178–185; Thomas 2007, p. 5). Rush Darter The rush darter (Etheostoma phytophilum) is a narrowly endemic, rare, and difficult to collect fish species in north-central Alabama. The rush darter occurs in sparse, fragmented, and isolated populations. The species is currently known from tributaries and associated spring systems of the Turkey Creek (Jefferson County), Clear Creek (Winston County), and Little CoveBristow Creek watersheds (Etowah County). Most of these tributaries contain sites with intact physical characteristics such as riffles, runs, pools, transition zones, and emergent vegetation. Rush darters prefer springs and spring-fed reaches of relatively lowgradient, small streams (Bart and Taylor 1999, p. 32; Johnston and Kleiner 2001, pp. 3–4; Stiles and Blanchard 2001, pp. 1–4; Bart 2002, p. 1; Fluker et al. 2007, p. 1; Stiles and Mills 2008, pp. 1–4). Rush darters are also found in wetland pools and in some ephemeral tributaries of the aforementioned watersheds (Stiles and Mills 2008, pp. 2–3). This species also relies heavily on aquatic vegetation (Fluker et al. 2007, p. 1), including both small clumps and dense stands, and root masses of emergent vegetation along stream margins. These habitats tend to be shallow, clear, and cool, with moderate current and substrates composed of a combination of sand with silt, muck, gravel, or bedrock. The species is found in both urban and industrial zoned areas (Jefferson County) and rural settings (Winston and Etowah Counties). Within these areas, the rush darters’ habitat has been degraded by alteration of stream banks and bottoms; channelization; inadequate PO 00000 Frm 00003 Fmt 4701 Sfmt 4700 63605 storm water management; inappropriate placement of culverts, pipes, and bridges; road maintenance; inadequate protection of groundwater recharge zones and aquifers; and haphazard silvicultural and agricultural practices. The persistence of a constant flow of clean groundwater from various springs has somewhat offset the destruction of the species’ habitat, water quality, and water quantity; however, the species’ status still appears to be declining. Yellowcheek Darter The yellowcheek darter (Etheostoma moorei) is endemic to the Devil’s, Middle, South, and Archey forks of the Little Red River in Cleburne, Searcy, Stone, and Van Buren Counties in Arkansas (Robison and Buchanan 1988, p. 429). These streams are located primarily within the Boston Mountains subdivision of the Ozark Plateau. 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 Devil’s Fork, Middle Fork, South Fork, and portions of the main stem Little Red River, thus extirpating the species from these reaches. Cold tailwater releases below the dam preclude the yellowcheek darter from inhabiting the main stem Little Red River. The yellowcheek darter inhabits high-gradient headwater tributaries with clear water; permanent flow; moderate to strong riffles; and gravel, cobble, and boulder substrates (Robison and Buchanan 1988, p. 429). Prey items consumed by yellowcheek darters include blackfly larvae, stoneflies, and mayflies. Robison and Harp (1981, p. 5) estimated the range of the yellowcheek darter in the South Fork to extend from 2.9 km (1.8 mi) north northeast of Scotland, Arkansas, to U.S. Highway 65 in Clinton, Arkansas. The Middle Fork population was estimated to extend from just upstream of U.S. Highway 65 near Leslie, Arkansas, to 4.8 km (3.0 mi) west of Shirley, Arkansas. The Archey Fork population extended from its confluence with South Castleberry Creek to immediately downstream of U.S. Highway 65 in Clinton, Arkansas. The Devil’s Fork population extended from 4.8 km (3.0 mi) north of Prim, Arkansas, to 6.1 km (3.8 mi) east southeast of Woodrow, Arkansas. The yellowcheek darter is threatened primarily by factors associated with the present destruction, modification, or curtailment of its habitat or range. Threats include sedimentation and nutrient enrichment from impoundment, water diversion, gravel mining, channelization or channel E:\FR\FM\16OCR2.SGM 16OCR2 63606 Federal Register / Vol. 77, No. 200 / Tuesday, October 16, 2012 / Rules and Regulations Laurel Dace instability, and natural gas development. tkelley on DSK3SPTVN1PROD with RULES2 Chucky Madtom The Chucky madtom (Noturus crypticus) is a rare catfish found in Greene County, Tennessee. Specimens collected in Little Chucky Creek have been found in stream runs with slow to moderate current over pea gravel, cobble, or slab-rock boulder substrates (Burr et al. 2005, p. 797). These habitats are 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). Little is known about Chucky madtom life history and behavior; however, this information is available for other similar members of the Noturus group. Dinkins and Shute (1996, p. 50) found smoky madtoms (N. baileyi) underneath slabrock boulders 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 °C (45 to 46 °F), and persisted from early November to May. Eisenhour et al. (1996, p. 43) collected saddled madtoms (N. fasciatus) in gravel, cobble, and slabrock boulders 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 restricted to an approximate 3-km (1.8-mi) reach of Little Chucky Creek in Greene County, Tennessee. Degradation from sedimentation, physical habitat disturbance, and contaminants threaten the habitat and water quality on which the Chucky madtom depends. Sedimentation could negatively affect the Chucky madtom by reducing growth rates, disease tolerance, and gill function; reducing spawning habitat, reproductive success, and egg, larval, and juvenile development; reducing food availability through reductions in prey; and reducing foraging efficiency. Contaminants associated with agriculture (e.g., fertilizers, pesticides, herbicides, and animal waste) can cause degradation of water quality and habitats through instream oxygen deficiencies, excess nutrification, and excessive algal growths. VerDate Mar<15>2010 17:42 Oct 15, 2012 Jkt 229001 The laurel dace (Chrosomus saylori) is endemic to seven streams on the Walden Ridge portion of the Cumberland Plateau (Bledsoe, Rhea, and Sequatchie Counties, Tennessee), where drainages generally meander eastward before dropping abruptly down the plateau escarpment and draining into the Tennessee River. Laurel dace are known historically from seven streams in three disjunct 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 (Youngs, Moccasin, and Bumbee Creeks). 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 had been extirpated from the stream (Skelton 1997, p. 13; Skelton 2001, p. 126; Skelton 2009, pers. comm.). The current distribution of laurel dace encompasses six of seven historical streams; the species is considered extirpated from Laurel Branch (see above). In these six streams, the species is known to occupy reaches ranging in length from 0.3 to 8.0 rkm (0.2 to 5 rmi). Laurel dace have been most often collected from pools or slow runs from undercut banks or beneath slab-rock boulders, typically in first or second order, clear, cool (maximum temperature 26 °C or 78.8 °F) streams. Substrates in laurel dace streams 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). The primary threat to laurel dace throughout its range is excessive siltation resulting from agriculture and extensive silviculture, especially those involving inadequate riparian buffers in harvest areas and the failure to use best management practices (BMPs) during road construction. Severe degradation from sedimentation, physical habitat disturbance, and contaminants threatens the habitat and water quality on which the laurel dace depends. Sedimentation negatively affects the laurel dace by reducing growth rates, disease tolerance, and gill function; reducing spawning habitat, reproductive success, and egg, larvae, and juvenile development; reducing food availability through reductions in prey; and reducing foraging efficiency. PO 00000 Frm 00004 Fmt 4701 Sfmt 4700 Summary of Comments and Recommendations We requested written comments from the public on the proposed designation of critical habitat for the Cumberland darter, rush darter, yellowcheek darter, Chucky madtom, and laurel dace during two comment periods. The first comment period associated with the publication of the proposed rule (76 FR 63360) opened on October 12, 2011, and closed on December 12, 2011. Based on a request made after the comment period had ended, we held a public informational meeting concerning the critical habitat designation for the yellowcheek darter on February 22, 2012, in Clinton, Arkansas, where we took comments on the proposed rule and notified the public that we would also take public comments on the rule through the end of the comment period for a draft economic analysis. That comment period opened May 24, 2012, and closed on June 25, 2012 (77 FR 30988). Based on a request received during the first comment period, we held a public hearing in Clinton, Arkansas, on June 7, 2012. We also contacted appropriate Federal, State, and local agencies; scientific organizations; and other interested parties and invited them to comment on the proposed rule and draft economic analysis during these comment periods. We issued press releases and published legal notices in The Times Tribune, Lexington Herald-Leader, Greenville Sun, Knoxville News Sentinel, The Herald News, Chattanooga Times Free Press, Birmingham News, Sand Mountain Reporter, NW Alabamian, Arkansas Democrat-Gazette, Van Buren County Democrat, The Sun Times, The Stone County Leader, and the Marshall Mountain Wave. However, the Marshall Mountain Wave declined to publish a legal notice announcing the first public comment period. During the first comment period, we received 66 comment letters directly addressing the proposed critical habitat designation. During the February 22, 2012, public informational meeting, 11 individuals or organizations made comments on the designation of critical habitat for the yellowcheek darter. During the second comment period, we received 54 comment letters addressing the proposed critical habitat designation or the draft economic analysis. During the June 7, 2012, public hearing, four individuals or organizations made comments on the designation of critical habitat for the yellowcheek darter. All substantive information provided during the comment periods has either been incorporated directly into this final E:\FR\FM\16OCR2.SGM 16OCR2 Federal Register / Vol. 77, No. 200 / Tuesday, October 16, 2012 / Rules and Regulations determination or is addressed below. Comments received were grouped into five general issues categories, and are addressed in the following summary and incorporated into the final rule as appropriate. tkelley on DSK3SPTVN1PROD with RULES2 Peer Review In accordance with our peer review policy published on July 1, 1994 (59 FR 34270), we solicited expert opinions from 15 knowledgeable individuals with scientific expertise that included familiarity with the five species and the geographic region in which the species occur. We received responses from three of the peer reviewers. We reviewed all comments received from the peer reviewers for substantive issues and new information regarding critical habitat for the five fishes. The peer reviewers generally concurred with our methods and conclusions, and provided additional information, clarifications, and suggestions to improve the final critical habitat rule. Peer reviewer comments are addressed in the following summary and incorporated into the final rule as appropriate. For the Cumberland darter, rush darter, and Chucky madtom, the peer reviewers agreed we relied on the best scientific information available, accurately described the species and its habitat requirements (primary constituent elements (PCEs)), accurately characterized the reasons for the species’ decline and the threats to its habitat, and concurred with our critical habitat selection criteria. We did not receive any comments from peer reviewers related to the yellowcheek darter or laurel dace. We respond to all substantive comments below. Peer Reviewer Comments (1) Comment: The Northern Beltline Corridor will cross and impact the proposed rush darter critical habitat throughout its range in Jefferson County, Alabama, and stimulate growth and development throughout the area. Our Response: The Northern Beltline Corridor has a Federal nexus through the Federal Highway Administration (FHA). The Service has provided official comment and evaluated the potential effects of the Beltline with respect to the vermilion darter (Etheostoma chermockii), watercress darter (Etheostoma nuchale), rush darter (Etheostoma phytophylum), and other trust resources in accordance with section 7 of the Act and the Fish and Wildlife Coordination Act (16 U.S.C. 661 et seq.). Species surveys were conducted during the period of August 29–30, 2011. No federally protected VerDate Mar<15>2010 17:42 Oct 15, 2012 Jkt 229001 species were found during this survey. The rush darter is located in a few scattered tributaries that drain into the south side of Turkey Creek, which is a considerable distance from the proposed beltway impact areas. The corridor will not cross any rush darter habitat. The Service determined that the project would have minimal to no effect on the rush darter, which occurs in a drainage removed from the action area (Everson 2012, pers. comm.). (2) Comment: Predicted effects of climate change on the rush darter and its habitat should include protection of aquifers and recharge areas of groundwater input and corresponding higher water temperatures. Our Response: The information currently available on the effects of global climate change and increasing temperatures does not make sufficiently precise estimates of the location and magnitude of the effects. We are also not currently aware of any climate change information specific to the habitat of the rush darter related to temperatures of groundwater outflows and stormwater inflows that are or would become important to the species in the future. Therefore, we are unable to determine what additional threats and corresponding appropriate actions to include in the final critical habitat for the rush darter or the other fishes in this rule to address the effects of this aspect of climate change. (3) Comment: The critical habitat designated for the rush darter in the headwaters in Unit 2 should be expanded to adjacent areas and include the wetland on the western edge. Our Response: Comment has been noted and after further analysis of the information within Service files and that provided by the commenter, the wetland on the western edge of Unit 2 has been included in the final critical habitat designation for the rush darter. This area contains the physical and biological features essential to the conservation of the species (PCEs 1–3) and which may require special management and protection. As a result of these changes, critical habitat designation has increased by an additional 85.8 m (0.05 mi.) and 0.13 ha (0.32 ac) in Unit 2 for the rush darter. (4) Comment: One peer reviewer mentions that there are active strip mines in the area of the proposed rush darter critical habitat in Doe and Wildcat Branch, Winston County, Alabama. In the Energy Supply, Distribution, or Use determination, the Service only mentions that coal mining occurs or could occur in Cumberland darter units. PO 00000 Frm 00005 Fmt 4701 Sfmt 4700 63607 Our Response: Historically, there was an abundance of coal mining in Winston County, Alabama. Recently, coal mining has accelerated south of the watershed containing critical habitat for the rush darter. However, there are no active mines that impact the surface water of the proposed critical habitat for the rush darter. The Poplar Springs Mine is active, but is outside the proposed critical habitat unit, and no impacts to the surface waters are believed to occur (Drennen 2011, pers. obs.). Although there are no obvious coal mining impacts to surface water, little is known about groundwater impacts within the aquifer. These types of effects are untimely in expressing themselves and may not be known for many years, if indeed they do occur. Comments from States Section 4(i) of the Act states, ‘‘the Secretary shall submit to the State agency a written justification for his failure to adopt regulations consistent with the agency’s comments or petition.’’ We received one comment from the Kentucky Department of Fish and Wildlife Resources (KDFWR) related to road crossings and culverts acting as threats to the Cumberland darter. This comment was incorporated into this final rule. We did not receive any other substantive comments from the States (Alabama, Arkansas, Kentucky, or Tennessee) regarding the proposed rule. No official position was expressed by the States on the critical habitat designation. (5) Comment: The KDFWR commented that culverts and impassable road crossings (fords) could act as barriers to dispersal for Cumberland darters, thereby contributing to population fragmentation and reduced gene flow among and between populations. Our Response: We agree that impassable road crossings and culverts can limit or prevent natural dispersal of Cumberland darters, which can lead to population fragmentation and reduced gene flow. We discussed this potential threat (Factor E) in the final listing and proposed critical habitat rules, and we summarized our current knowledge of Cumberland darter dispersal behavior in the Physical and Biological Features section of this final critical habitat rule. Public Comments Landowner Rights (6) Comment: The proposed designation will harm private landowners in Arkansas through increased government regulation, and E:\FR\FM\16OCR2.SGM 16OCR2 63608 Federal Register / Vol. 77, No. 200 / Tuesday, October 16, 2012 / Rules and Regulations tkelley on DSK3SPTVN1PROD with RULES2 will add unnecessary bureaucracy in the use of surface waters. Our Response: The designation of critical habitat will not increase government regulation of private land in Arkansas. The effects of private activities are not subject to the Act’s section 7 consultation requirements unless they are connected to a Federal action. Federal activities conducted in or adjacent to areas designated as critical habitat are already subject to section 7 consultation requirements of the Act because of the presence of one or more species currently listed under the Act. Most normal operations for rearing of livestock, or for other land uses common to the upper Little Red River watershed in Arkansas, do not require Federal permits or actions. We do not anticipate that this designation will impose any additional direct regulatory burdens to private landowners in Arkansas. (7) Comment: The designation of critical habitat for the yellowcheek darter will involve establishment of streamside buffers, exclusion of cattle from designated critical habitat through installation of new fencing, or taking of private land by the Federal government. Our Response: The designation of critical habitat does not affect land ownership or establish a refuge, wilderness, reserve, preserve, or other conservation area. Critical habitat designation does not regulate private actions on private lands or confiscate private property. It does not affect individuals, organizations, States, local governments or other non-Federal entities that do not require Federal permits or funding. Such designation does not allow the government or public to access private lands. The designation of critical habitat does not create streamside buffers or impose requirements to fence livestock or other animals from streams. Waters of navigable streams, such as those designated as critical habitat for the yellowcheek darter, are considered public waters by the State of Arkansas. The designation includes river channels within the ordinary high water line, which would not include adjacent private properties. Procedural and Legal Considerations (8) Comment: Landowners have not been contacted and given the opportunity to respond to the proposed designation. Most landowners (in the Little Red River watershed, Arkansas) and the people of Arkansas did not know of the comment deadline; therefore, the comment period should be extended and public hearings conducted. VerDate Mar<15>2010 17:42 Oct 15, 2012 Jkt 229001 Our Response: When we issue a proposed rule, we want to ensure widespread knowledge and opportunity for the public to comment, particularly among those who may be potentially affected by the action. The proposed designation for yellowcheek darter covered portions of four Arkansas counties; therefore, it was impossible to personally contact all landowners in the area. However, we attempted to ensure that as many people as possible would be aware of the proposed designation through distribution of press releases to all major media in the affected area, including those in State capitols and major cities; publication of newspaper notices; and direct notification of affected State and Federal agencies, environmental groups, major industries, State Governors, Federal and State elected officials, and representatives associated with the National Championship Chuck Wagon Races (see Previous Federal Actions, above). We continued to accept all comments received after the initial public comment period ended to ensure that all interested parties would have the opportunity to comment on the proposed designation. Further, although the request for a public hearing was made after the deadline for such requests, we held a public information meeting on February 22, 2012, and a public hearing on June 7, 2012, following the publication that made available the draft economic analysis (77 FR 30988). In short, we have complied with or exceeded all of the notification requirements of the Act. Economic Impacts and Economic Analysis (9) Comment: Multiple commenters state that designation of critical habitat for the yellowcheek darter would negatively affect the National Championship Chuck Wagon Races by preventing horses from crossing the river or by preventing the event from occurring in the future. Additional comments state that the draft economic analysis (DEA) fails to consider the impacts of designation on the local economy of Van Buren County, Arkansas, where the event takes place. The commenters state that if the event is cancelled, impacts would include loss of business for local restaurants, motels, grocery stores, gas stations, and feed stores, and corresponding losses in local and State tax revenues. Our Response: As stated in section 3.2.5 of the DEA, the Service anticipates that the landowner who hosts the 2012 National Championship Chuck Wagon Races could apply for a permit under section 404 of the Clean Water Act (33 PO 00000 Frm 00006 Fmt 4701 Sfmt 4700 U.S.C. 1251 et seq.) to construct a dam for the races, and may develop a habitat conservation plan that would allow incidental taking of the species under section 10(a)(1)(B) of the Act. Both of these actions would lead to section 7 consultations with the Service. However, conservation measures that the Service would recommend to prevent adverse effects to the species would also most likely prevent adverse modification of critical habitat and would occur regardless of critical habitat designation. It is, therefore, unlikely that critical habitat designation itself would affect the races by preventing horses from crossing the river or preventing the event from occurring. Therefore critical habitat designation is not expected to affect the regional economy. (10) Comment: Multiple commenters state generally that the DEA does not adequately address the economic impacts of proposed critical habitat designation for the yellowcheek darter on cattle ranching, farming, silviculture, natural gas and oil exploration and development, and recreational activities. The commenters request that more studies be done on the economic impacts of the proposed designation. Multiple commenters suggest that the conservation measures that may result from the rule would put a significant burden on small ranching operations and other economic activities. Commenters specifically mention the following measures as being costly and potentially detrimental to their economic well-being: installation of fencing along the river to prevent access by livestock; prohibition of bank stabilization activities; and prohibition on using river water for irrigation purposes. Our Response: As described in section 2.3.2 and Appendix D of the DEA, the incremental impacts of critical habitat designation are expected to be limited to any additional administrative costs of section 7 consultations. Voluntary conservation measures suggested by the Service would be recommended regardless of critical habitat designation, in order to avoid adverse effects to the species. Therefore, it is unlikely that critical habitat designation itself would affect ranching, farming, silviculture, natural gas and oil exploration and development, or recreational activities through conservation recommendations such as installing fencing, bank stabilization, or prohibiting use of water for irrigation purposes. (11) Comment: One commenter expresses concern that designation of critical habitat would hamper local fire E:\FR\FM\16OCR2.SGM 16OCR2 tkelley on DSK3SPTVN1PROD with RULES2 Federal Register / Vol. 77, No. 200 / Tuesday, October 16, 2012 / Rules and Regulations department use of river water for rural fire fighting and pump testing. Our Response: The local fire departments’ use of river water would be unlikely to result in adverse modification of critical habitat due to the small amounts of water used for such activities and the fact that no Federal permit is required for these actions. Because there is no Federal permit required, there is no Federal nexus and no section 7 consultation required for these actions. Therefore, it is unlikely that critical habitat would generate recommendations that would hamper local fire departments’ use of river water. (12) Comment: Multiple commenters express concern that their land values will be negatively impacted by the designation of critical habitat and that the DEA does not take into account the impact of critical habitat designation on livelihoods and property values. Our Response: The activities that may occur on a parcel of land are not expected to be limited by the designation of critical habitat because critical habitat is only designated below the ordinary high water mark of streams and most activities occurring on lands adjacent to streams do not require Federal actions that would require section 7 consultation. Therefore, direct reductions in land value due to the designation are not expected. However, it is true that section 2.3.2 of the DEA describes the potential indirect regulatory uncertainty or stigma effect that the designation of critical habitat may have on property values. However, due to uncertainty surrounding the likelihood and extent of such indirect impacts, these potential effects are considered speculative. The uncertainty regarding the regulatory requirements associated with critical habitat may diminish as section 7 consultations are completed and additional information becomes available on the effects of critical habitat on specific activities. (13) Comment: One commenter questioned how the DEA forecasts a value of $140,000 for impacts relating to the designation of critical habitat for the yellowcheek darter. Our Response: As noted in Exhibit ES–4 of the DEA, the present value of the total incremental costs of critical habitat designation for the yellowcheek darter is $134,000 over the next 20 years, assuming a 7 percent discount rate. These costs reflect additional administrative effort as part of future section 7 consultations in order to consider the potential for activities to result in adverse modification of critical habitat. No change in economic activity levels or the management of economic VerDate Mar<15>2010 17:42 Oct 15, 2012 Jkt 229001 activities is expected to result from the critical habitat designation. (14) Comment: Multiple commenters express support for the designation of critical habitat for the laurel dace in Tennessee as they believe the designation would help prevent the development of new coal operations near Dayton, TN. Specifically, the comments state that proposed coal mining operations in the area, if initiated, would negatively affect the laurel dace and other species. One comment states that the area where the laurel dace is found is located very close to a ‘‘proposed coal processing plant location on Ogden Road, Dayton TN by Iron Properties.’’ Our Response: The DEA discusses known coal mining activity in Tennessee in section 3.2.2. Data from the Office of Surface Mining Reclamation and Enforcement (OSMRE) indicate that there are two pending permits for coal mining activities in the Dayton area of Rhea County, TN. However, only one of these potential projects occurs within a watershed containing laurel dace critical habitat. As indicated in the DEA, this project is located in the watershed containing proposed critical habitat Unit 4 for the laurel dace. As indicated in Exhibit 3– 4 of the DEA, it is expected that the Service will consult on this project with OSMRE under the Local Interagency Working Agreement described in section 3.2.2 of the DEA. However, because conservation measures suggested by the Service would be recommended regardless of critical habitat, in order to avoid adverse effects to the species, it is unlikely that critical habitat will generate any additional recommendations that will prevent the development of new coal operations near Dayton, TN. (15) Comment: Multiple commenters elaborate on the potential benefits of the proposed designation. At least one of these commenters suggests that the long-term economic benefits of designation are not adequately addressed in the proposed rule and DEA. Commenters suggest the indirect benefits of critical habitat designation include: water quality and supply improvements, opportunities to generate additional recreation-based economic activities (park visits, hiking, biking, fishing, camping, boating, and service industry), regional small business growth (recreational equipment industry, lodging industry, food industry, gas stations, and other services), increased property values, and increased tax revenues. Our Response: As detailed in section 3.4 of the DEA, the analysis does not PO 00000 Frm 00007 Fmt 4701 Sfmt 4700 63609 expect any changes in economic activity levels or the management of economic activities to result from critical habitat designation for the five fishes. Absent these changes, we do not expect the designation to result in any incremental economic benefits, such as water quality improvements, recreational opportunities, and increased property values. The DEA does, however, note that conservation for these species undertaken due to the listing (even absent the designation of critical habitat) may generate the types of benefits described in these comments. Best Scientific Information (16) Comment: Critical habitat designation for the yellowcheek darter was not based on reliable scientific data and not enough habitat area was surveyed. Our Response: The Act requires the Secretary of the Interior to use the best scientific and commercial data available when designating critical habitat for a species. In fulfilling this requirement, we received and used information on the biology, ecology, distribution, abundance, status, and trends of species from a wide variety of sources. These sources include status surveys, biological assessments, and other unpublished material (that is, ‘‘gray literature’’) from State natural resource agencies and natural heritage programs, Tribal governments, other Federal agencies, consulting firms, contractors, and individuals associated with professional organizations and higher educational institutions. We also use published articles from professional journals. Service biologists are required to gather, review, and evaluate information from these sources prior to undertaking listing, recovery, consultation, and permitting actions. Additionally, Service biologists surveyed most of the areas proposed as critical habitat for the yellowcheek darter as part of a 2004 threats assessment for the endangered speckled pocketbook mussel (Lampsilis streckeri) and yellowcheek darter (Davidson and Wine 2004). Factors Affecting the Species (17) Comment: One commenter stated that the Cumberland darter is threatened by degradation of water quality from large surface coal mines in the northern coalfields of Scott and Campbell Counties, Tennessee. In addition to this general concern, the commenter was aware of selenium contamination within these same watersheds and was aware of several notices of violation from the Tennessee Department of Environment E:\FR\FM\16OCR2.SGM 16OCR2 tkelley on DSK3SPTVN1PROD with RULES2 63610 Federal Register / Vol. 77, No. 200 / Tuesday, October 16, 2012 / Rules and Regulations and the OSMRE regarding degradation of water quality and impacts to aquatic species within these watersheds. The commenter feared that current mining activities and issuance of new permits would cause further degradation to fish and wildlife habitats in Campbell and Scott Counties. Our Response: We concur with the commenter that large surface coal mine operations in Campbell and Scott Counties, Tennessee, are a potential threat to the Cumberland darter, and have the potential to degrade water quality of Cumberland darter streams in these watersheds. Streams associated with surface coal mining and valley fills are typically characterized by elevated conductivity, elevated total dissolved solids, and increased 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 final listing rule (75 FR 36035) provided a more detailed analysis of these and other water quality threats to the Cumberland darter under Summary of Factors Affecting the Species (75 FR 36042). (18) Comment: Two commenters raised the possibility that perched culverts or impassable road crossings (fords) represent a threat to the Cumberland darter and suggested that this potential threat may require special management considerations or protection. The commenters explained that perched culverts are common within the upper Cumberland River system, and they often restrict fish movements, as evidenced by lower species diversity observed by the commenters upstream of these culverts. The commenters also suggested that connectivity of Cumberland darter streams could be affected by these barriers, leading to further isolation of these populations and preventing the free exchange of genetic material between populations. Our Response: We agree with the commenters that perched culverts represent a potential threat to the Cumberland darter. We, too, have observed perched culverts in the upper Cumberland River system, and we often observe lower species diversity in reaches upstream of these culverts. To address the potential threat posed by these barriers, we have included additional text in the Special Management Considerations or Protection section (below) that identifies the threat and lists potential VerDate Mar<15>2010 17:42 Oct 15, 2012 Jkt 229001 management activities that could ameliorate the threat. (19) Comment: One commenter raised the possibility that agricultural practices pose a threat to the Chucky madtom by eliminating riparian buffers, warming stream temperatures, and introducing fertilizer into the water. Our Response: We agree with the commenter that agriculture can pose a threat to the Chucky madtom. We have included additional text in the Special Management Considerations or Protection section (below) that identifies the threat and lists potential management activities that could ameliorate the threat. (20) Comment: Two commenters raised the concern that coal exploration in the Rock Creek Lands Unsuitable for Mining area indicates a potential threat to the laurel dace from future coal mining in the southern coalfield areas of Tennessee. Our Response: We agree with the commenters that possible future coal mining in southern Tennessee represents a potential threat to the laurel dace. To address the potential threat posed by coal mining and acid mine drainage, we have included additional text in the Special Management Considerations or Protection section that identifies the threat and lists potential management activities that could ameliorate the threat. Summary of Changes From Proposed Rule In preparing this final critical habitat designation for the Cumberland darter, rush darter, yellowcheek darter, Chucky madtom, and laurel dace, we reviewed and considered comments from the public on the proposed designation of critical habitat published on October 12, 2011 (76 FR 63360) and our announcement of the availability of the DEA published on May 24, 2012 (77 FR 30988). We likewise reviewed and considered comments from a public informational meeting held on February 22, 2012, and a public hearing held on June 7, 2012, both in Clinton, Arkansas. As a result of public comments and peer review, we made changes to our designation of critical habitat for these five fishes. These changes are as follows: (1) We added additional threats information for the Cumberland darter, rush darter, Chucky madtom, and laurel dace. (2) We capitalized the common name of the Chucky madtom, to reflect the fact that it is named after Little Chucky Creek, and is therefore, a proper noun. We updated a reference for Chucky madtom habitat and threats, and PO 00000 Frm 00008 Fmt 4701 Sfmt 4700 clarified that Little Chucky Creek is the entire current range (but not the entire historic range) of the Chucky madtom in the Criteria Used to Identify Critical Habitat section. (3) We updated the total number of river kilometers for the Cumberland darter unit 1, and all four yellowcheek darter units, due to a change in mapping methodology. The beginning and ending points of critical habitat, as well as the unit descriptions (as described in the proposed critical habitat rule) remain the same. The change in mapping results from standardizing methods used to estimate the unit lengths designated as critical habitat for all five species. This methodology better follows the meander of the river channel and results in an additional 0.5 river kilometers (rkm) (0.3 river miles (rmi)) for the Cumberland darter, and an additional 6.6 rkm (4.1 rmi) for the yellowcheek darter. (4) We revised the ownership of one property for the yellowcheek darter critical habitat, resulting in a change of the total number of river kilometers in private ownership from 148 rkm (92 rmi) to 162.7 rkm (101.1 rmi), as well as a corresponding downward revision in the other ownership types. (5) We revised the Energy Supply, Distribution, or Use—Executive Order 13211 section to state that coal mining could potentially occur in one of six critical habitat units for the laurel dace. (6) We added a spring run and associated wetlands to Unit 2 as critical habitat for the rush darter. This 0.13 ha (0.32 ac) spring associated wetland and 85.8 m (0.05 mi) spring run is adjacent to the headwaters of the Unnamed Tributary to Beaver Creek and is privately owned. (7) We corrected errors in calculating total length and area in Table 2 for the rush darter. Critical Habitat Background Critical habitat is defined in section 3 of the Act as: (1) The specific areas within the geographical area occupied by the species, at the time it is listed in accordance with the Act, on which are found those physical or biological features (a) Essential to the conservation of the species and (b) Which may require special management considerations or protection; and (2) Specific areas outside the geographical area occupied by the species at the time it is listed, upon a determination that such areas are E:\FR\FM\16OCR2.SGM 16OCR2 tkelley on DSK3SPTVN1PROD with RULES2 Federal Register / Vol. 77, No. 200 / Tuesday, October 16, 2012 / Rules and Regulations essential for the conservation of the species. Conservation, as defined under section 3 of the Act, means to use and the use of all methods and procedures that are necessary to bring an endangered or threatened species to the point at which the measures provided under the Act are no longer necessary. Such methods and procedures include, but are not limited to, all activities associated with scientific resources management such as research, census, law enforcement, habitat acquisition and maintenance, propagation, live trapping, and transplantation, and, in the extraordinary case where population pressures within a given ecosystem cannot be otherwise relieved, may include regulated taking. Critical habitat receives protection under section 7 of the Act through the requirement that Federal agencies ensure, in consultation with the Service, that any action they authorize, fund, or carry out is not likely to result in the destruction or adverse modification of critical habitat. The designation of critical habitat does not affect land ownership or establish a refuge, wilderness, reserve, preserve, or other conservation area. Such designation does not allow the government or public to access private lands. Such designation does not require implementation of restoration, recovery, or enhancement measures by nonFederal landowners. Where a landowner seeks or requests Federal agency funding or authorization for an action that may affect a listed species or critical habitat, the consultation requirements of section 7(a)(2) would apply, but even in the event of a destruction or adverse modification finding, the obligation of the Federal action agency and the landowner is not to restore or recover the species, but to implement reasonable and prudent alternatives to avoid destruction or adverse modification of critical habitat. Under the first prong of the Act’s definition of critical habitat, areas within the geographical area occupied by the species at the time it was listed are included in a critical habitat designation if they contain physical or biological features (1) which are essential to the conservation of the species and (2) which may require special management considerations or protection. For these areas, critical habitat designations identify, to the extent known using the best scientific and commercial data available, those physical or biological features that are essential to the conservation of the species (such as space, food, cover, and protected habitat). In identifying those VerDate Mar<15>2010 17:42 Oct 15, 2012 Jkt 229001 physical and biological features within an area, we focus on the principal biological or physical constituent elements (primary constituent elements such as roost sites, nesting grounds, seasonal wetlands, water quality, tide, soil type) that are essential to the conservation of the species. Primary constituent elements are the elements of physical or biological features that, when laid out in the appropriate quantity and spatial arrangement to provide for a species’ life-history processes, are essential to the conservation of the species. Under the second prong of the Act’s definition of critical habitat, we can designate critical habitat in areas outside the geographical area occupied by the species at the time it is listed, upon a determination that such areas are essential for the conservation of the species. For example, an area currently occupied by the species but that was not occupied at the time of listing may be essential to the conservation of the species and may be included in the critical habitat designation. We designate critical habitat in areas outside the geographical area occupied by a species only when a designation limited to its range would be inadequate to ensure the conservation of the species. Section 4 of the Act requires that we designate critical habitat on the basis of the best scientific and commercial data available. Further, our Policy on Information Standards Under the Endangered Species Act (published in the Federal Register on July 1, 1994 (59 FR 34271)), the Information Quality Act (section 515 of the Treasury and General Government Appropriations Act for Fiscal Year 2001 (Pub. L. 106–554; H.R. 5658)), and our associated Information Quality Guidelines, provide criteria, establish procedures, and provide guidance to ensure that our decisions are based on the best scientific data available. They require our biologists, to the extent consistent with the Act and with the use of the best scientific data available, to use primary and original sources of information as the basis for recommendations to designate critical habitat. When we are determining which areas should be designated as critical habitat, our primary source of information is generally the information developed during the listing process for the species. Additional information sources may include the recovery plan for the species, articles in peer-reviewed journals, conservation plans developed by States and counties, scientific status surveys and studies, biological assessments, other unpublished PO 00000 Frm 00009 Fmt 4701 Sfmt 4700 63611 materials, or experts’ opinions or personal knowledge. Habitat is dynamic, and species may move from one area to another over time. We recognize that critical habitat designated at a particular point in time may not include all of the habitat areas that we may later determine are necessary for the recovery of the species. For these reasons, a critical habitat designation does not signal that habitat outside the designated area is unimportant or may not be needed for recovery of the species. Areas that are important to the conservation of the species, both inside and outside the critical habitat designation, will continue to be subject to: (1) Conservation actions implemented under section 7(a)(1) of the Act, (2) regulatory protections afforded by the requirement in section 7(a)(2) of the Act for Federal agencies to insure their actions are not likely to jeopardize the continued existence of any endangered or threatened species, and (3) the prohibitions of section 9 of the Act if actions occurring in these areas may affect the species. Federally funded or permitted projects affecting listed species outside their designated critical habitat areas may still result in jeopardy findings in some cases. These protections and conservation tools will continue to contribute to recovery of this species. Similarly, critical habitat designations made on the basis of the best available information at the time of designation will not control the direction and substance of future recovery plans, habitat conservation plans (HCPs), or other species conservation planning efforts if new information available at the time of these planning efforts calls for a different outcome. Physical and Biological Features In accordance with sections 3(5)(A)(i) and 4(b)(1)(A) of the Act and regulations at 50 CFR 424.12, in determining which areas within the geographical area occupied by the species at the time of listing to designate as critical habitat, we consider the physical or biological features essential to the conservation of the species and which may require special management considerations or protection. These include, but are not limited to: (1) Space for individual and population growth and for normal behavior; (2) Food, water, air, light, minerals, or other nutritional or physiological requirements; (3) Cover or shelter; E:\FR\FM\16OCR2.SGM 16OCR2 63612 Federal Register / Vol. 77, No. 200 / Tuesday, October 16, 2012 / Rules and Regulations (4) Sites for breeding, reproduction, or rearing (or development) of offspring; and (5) Habitats that are protected from disturbance or are representative of the historical, geographical, and ecological distribution of a species. We derive the specific physical or biological features essential for the Cumberland darter, rush darter, yellowcheek darter, Chucky madtom, and laurel dace from studies of these species’ habitats, ecology, and life history as described in the Critical Habitat section of the proposed rule to designate critical habitat published in the Federal Register on October 12, 2011 (76 FR 63360), and in the information presented below. Additional information can be found in the final listing rule published in the Federal Register on August 9, 2011 (76 FR 48722). We have determined that these five species require the physical or biological features described below. tkelley on DSK3SPTVN1PROD with RULES2 Space for Individual and Population Growth and for Normal Behavior Cumberland Darter Little is known about the specific space requirements of the Cumberland darter; however, the species is typically found in low to moderate gradient, second- to fourth-order, geomorphically stable streams, where it occupies shallow pools or runs with gentle current over sand or sand-covered bedrock substrates with patches of gravel or debris (O’Bara 1991, p. 10; Thomas 2007, p. 4). Geomorphically stable streams transport sediment while maintaining their horizontal and vertical dimensions (width to depth ratio and cross-sectional area), pattern (sinuosity), and longitudinal profile (riffles, runs, and pools), thereby conserving the physical characteristics of the stream, including bottom features such as riffles, runs, and pools and the transition zones between these features. The protection and maintenance of these habitat features accommodate spawning, rearing, growth, migration, and other normal behaviors of the Cumberland darter. Limited information exists with regard to upstream or downstream movements of Cumberland darters; however, Winn (1958a, pp. 163–164) reported considerable pre-spawn movements for its closest relative, the Johnny darter. In Beer Creek, Monroe County, Michigan, Johnny darters migrated several miles between temporary stream habitats and permanent pools in downstream reaches. Recent capture data for tagged individuals in Cogur Fork, McCreary VerDate Mar<15>2010 17:42 Oct 15, 2012 Jkt 229001 County, Kentucky, demonstrate that Cumberland darters may make similar movements (Thomas 2010, pers. comm.). Individuals tagged and released by the Kentucky Department of Fish and Wildlife Resources (KDFWR) and Conservation Fisheries, Inc. (CFI), traveled distances ranging from 0.4 to 0.7 rkm (0.2 to 0.4 rmi) between their release date of September 22, 2010, and their recapture date of November 9, 2010 (period of 48 days) (Thomas 2010, pers. comm.). Over longer periods, it is likely that Cumberland darters can utilize stream reaches longer than 0.7 rkm (0.4 rmi). The current range of the Cumberland darter has been reduced to 13 streams (15 occurrences) due to destruction and fragmentation of habitat. Fragmentation of the species’ habitat has subjected these small populations to genetic isolation, reduced space for rearing and reproduction, reduced adaptive capabilities, and an increased likelihood of local extinctions (Burkhead et al. 1997, pp. 397–399; Hallerman 2003, pp. 363–364). Genetic variation and diversity within a species are essential for recovery, adaptation to environmental change, and long-term viability (capability to live, reproduce, and develop) (Noss and Cooperrider 1994, pp. 282–297; Harris 1984, pp. 93– 107; Fluker et al. 2007, p. 2). The longterm viability of a species is founded on the conservation of numerous local populations throughout its geographic range (Harris 1984, pp. 93–104). Connectivity of these habitats is essential in preventing further fragmentation and isolation of Cumberland darter populations and promoting species movement and genetic flow between populations. Therefore, based on the information above, we identify shallow pools and runs and associated stream segments of geomorphically stable, second- to fourth-order streams to be an essential physical or biological feature for the Cumberland darter. The connectivity of these habitats is essential in accommodating feeding, breeding, growth, and other normal behaviors of the Cumberland darter and in promoting gene flow within the species. Rush Darter Little is known about the specific space requirements of the rush darter in the Turkey Creek, Little Cove-Bristow Creek, and Clear Creek systems (Boschung and Mayden 2004, p. 551); however, in general, darters depend on space within geomorphically stable streams with varying water quantities and flow. Specifically, rush darters appear to prefer springs and spring-fed PO 00000 Frm 00010 Fmt 4701 Sfmt 4700 reaches of relatively low-gradient, small streams (Bart and Taylor 1999, p. 32; Johnston and Kleiner 2001, pp. 3–4; Stiles and Blanchard 2001, pp. 1–4; Bart 2002, p. 1; Fluker et al. 2007, p. 1; Stiles and Mills 2008, pp. 1–4) and wetland pools (Stiles and Mills 2008, pp. 2–3). This species also relies heavily on aquatic vegetation (Fluker et al. 2007, p. 1) including: Root masses of emergent vegetation along the margins of springfed streams in very shallow, clear, cool, and flowing water; and both small clumps and dense stands of watercress (Nasturtium officinale), parrots feather (Myriophyllum sp.), rushes (Juncus spp.), sedges (Carex spp.), bur reed (Sparganium sp.), and coontail (Ceratophyllum sp.). The rush darter inhabits streams with substrates of silt, sand, sand and silt, muck and sand or some gravel with sand, and bedrock. Geomorphically stable streams transport sediment while maintaining their horizontal and vertical dimensions (width to depth ratio and cross-sectional area), pattern (sinuosity), and longitudinal profile (riffles, runs, and pools), thereby conserving the physical characteristics of the stream, including bottom features such as riffles, runs, and pools and the transition zones between these features that contain some silt, sand, and finer substrates. The riffles, runs, and pools not only provide space for the rush darter, but also provide space for emergent vegetation in shallow water along the margins of the small streams and springs for cover, and shelter necessary for breeding, reproduction, and growth of offspring. The current range of the rush darter within the entire Turkey Creek, Clear Creek, and Little Cove-Bristow Creek watersheds is reduced to localized sites due to fragmentation, separation, and destruction of rush darter habitats and populations. There are dispersal barriers (pipes and culverts for road crossings; channelized stream segments; and emergent aquatic plant control, which eliminates cover habitat for the species) and an increased amount of water extraction, which results in insufficient aquifer recharge zones that may contribute to the separation and isolation of rush darter populations and affect water quality. Fragmentation of the species’ habitat has isolated populations and reduced available spaces for rearing and reproduction, thereby reducing adaptive capability and increasing the likelihood of local extinctions (Burkhead et al. 1997, pp. 397–399; Hallerman 2003, pp. 363–364). Genetic variation and diversity within a species are essential for recovery, adaptation to environmental changes, and long-term viability (capability to E:\FR\FM\16OCR2.SGM 16OCR2 Federal Register / Vol. 77, No. 200 / Tuesday, October 16, 2012 / Rules and Regulations tkelley on DSK3SPTVN1PROD with RULES2 live, reproduce, and develop) (Harris 1984, pp. 93–107; Noss and Cooperrider 1994, pp. 282–297; Fluker et al. 2007, p. 2). Long-term viability is founded on numerous interbreeding, local populations throughout the range (Harris 1984, pp. 93–107). Continuity of water flow between suitable habitats is essential in preventing further fragmentation of the species’ habitat and populations, conserving the essential emergent vegetation in shallow water on the margins of small streams and springs, and promoting genetic flow throughout the populations. Continuity of habitat will maintain spawning, foraging, and resting sites, and allow for gene flow throughout the population. Connectivity of habitats, as a whole, also permits improvement in water quality and water quantity by allowing unobstructed water flow throughout the connected habitats. Therefore, based on the information above, we identify springs and springfed reaches of relatively low-gradient, geomorphically stable streams with emergent vegetation to be an essential physical or biological feature for the rush darter. The connectivity of these habitats is essential in accommodating feeding, breeding, growth, and other normal behaviors of the rush darter and in promoting gene flow within the species. Yellowcheek Darter The yellowcheek darter is typically found in clear, high-gradient, second- to fifth-order, geomorphically stable streams that maintain permanent yearround flows (Robison and Buchanan 1988, p. 429). The species occupies riffles with moderate to fast current over gravel, cobble, and boulder substrates (Robison and Buchanan 1988, p. 429). Geomorphically stable streams transport sediment while maintaining their horizontal and vertical dimensions (width to depth ratio and cross-sectional area), pattern (sinuosity), and longitudinal profile (riffles, runs, and pools), thereby conserving the physical characteristics of the stream, including bottom features such as riffles, runs, and pools and the transition zones between these features. The protection and maintenance of these habitat features accommodate spawning, rearing, growth, migration, and other normal behaviors of the yellowcheek darter. In 1962, the construction of Little Red River Dam to create Greers Ferry Reservoir impounded much of the range of the yellowcheek darter, including the lower reaches of Devil’s Fork, Middle Fork, South Fork, and portions of the main stem Little Red River, thus extirpating the species from these VerDate Mar<15>2010 17:42 Oct 15, 2012 Jkt 229001 reaches. The 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 genetic isolation of populations (McDaniel 1984, p. 1), with only the South and Archey forks of the Little Red River maintaining a noninundated confluence. As stated earlier, of the four streams supporting the yellowcheek darter, only the South and Archey forks maintain a non-inundated confluence. Instream habitat at the confluence of the two streams is suboptimal due to previous channelization, but restoration could provide an opportunity for vital population interactions between streams to maintain genetic diversity. Fragmentation of the species’ habitat has subjected these small populations to genetic isolation, reduced space for rearing and reproduction, reduced adaptive capabilities, and an increased likelihood of local extinctions (Burkhead et al. 1997, pp. 397–399; Hallerman 2003, pp. 363–364). Genetic variation and diversity within a species are essential for recovery, adaptation to environmental change, and long-term viability (capability to live, reproduce, and develop) (Harris 1984, pp. 93–107; Noss and Cooperrider 1994, pp. 282– 297; Fluker et al. 2007, p. 2). The longterm viability of a species is founded on the conservation of numerous local populations throughout its geographic range (Harris 1984, pp. 93–104). Connectivity of these habitats is essential to prevent further fragmentation and isolation of yellowcheek darter populations and to promote species movement and genetic flow between populations. Therefore, based on the information above, we identify riffles of geomorphically stable, second- to fifthorder streams to be an essential physical or biological feature for the yellowcheek darter. The connectivity of these habitats is essential to accommodate feeding, breeding, growth, and other normal behaviors of the yellowcheek darter and to promote gene flow within the species. Chucky Madtom Little is known about the specific space requirements of the Chucky madtom; however, all of the specimens collected in Little Chucky Creek have been found in shallow pool and run habitats with slow to moderate current over pea gravel, cobble, or slab-rock boulder substrates (Burr et al. 2005, p. 797). Geomorphically stable streams transport sediment while maintaining their horizontal and vertical dimensions PO 00000 Frm 00011 Fmt 4701 Sfmt 4700 63613 (width to depth ratio and cross-sectional area), pattern (sinuosity), and longitudinal profile (riffles, runs, and pools), thereby conserving the physical characteristics of the stream, including bottom features, such as riffles, runs, and pools and the transition zones between these features. The protection and maintenance of these habitat features accommodate spawning, rearing, growth, migration, and other normal behaviors of the Chucky madtom. The current range of the Chucky madtom has been reduced to only one stream due to fragmentation and destruction of habitat. Habitat fragmentation has subjected the small population to genetic isolation, reduced space for rearing and reproduction, reduced adaptive capabilities, and increased the likelihood of extinction (Burkhead et al. 1997, pp. 397–399; Hallerman 2003, pp. 363–364). Genetic variation and diversity within a species are essential for recovery, adaptation to environmental change, and long-term viability (capability to live, reproduce, and develop) (Harris 1984, pp. 93–107; Noss and Cooperrider 1994, pp. 282– 297; Fluker et al. 2007, p. 2). The longterm viability of a species is founded on the conservation of numerous local populations throughout its geographic range (Harris 1984, pp. 93–104). Connecting instream habitats is essential in preserving the genetic viability of the Chucky madtom in Little Chucky Creek. Therefore, based on the information above, we identify shallow pools and runs of geomorphically stable streams to be an essential physical or biological feature for the Chucky madtom. The connectivity of these habitats is essential to accommodate feeding, breeding, growth, and other normal behaviors of the Chucky madtom and to promote gene flow within the species. Laurel Dace Little is known about the specific space requirements of the laurel dace; however, the species is typically found in low to moderate gradient, first- to second-order, geomorphically stable streams. The laurel dace occupies pools or slow runs beneath undercut banks or slab-rock boulders in clear, cool (maximum temperature 26 °C (78.8 °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). Geomorphically stable streams transport sediment while maintaining E:\FR\FM\16OCR2.SGM 16OCR2 tkelley on DSK3SPTVN1PROD with RULES2 63614 Federal Register / Vol. 77, No. 200 / Tuesday, October 16, 2012 / Rules and Regulations their horizontal and vertical dimensions (width to depth ratio and cross-sectional area), pattern (sinuosity), and longitudinal profile (riffles, runs, and pools), thereby conserving the physical characteristics of the stream, including bottom features such as riffles, runs, and pools and the transition zones between these features. The protection and maintenance of these habitat features accommodate spawning, rearing, growth, migration, and other normal behaviors of the laurel dace. 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. The current range of the laurel dace has been reduced to short reaches (approximately 0.3 to 8 rkm (0.2 to 5 rmi) in length) of six streams due to fragmentation and destruction of habitat. Fragmentation of the species’ habitat has subjected these small populations to genetic isolation, reduced space for rearing and reproduction, reduced adaptive capabilities, and an increased likelihood of local extinctions (Burkhead et al. 1997, pp. 397–399; Hallerman 2003, pp. 363–364). Genetic variation and diversity within a species are essential for recovery, adaptation to environmental change, and long-term viability (capability to live, reproduce, and develop) (Harris 1984, pp. 93–107; Noss and Cooperrider 1994, pp. 282– 297; Fluker et al. 2007, p. 2). The longterm viability of a species is founded on the conservation of numerous local populations throughout its geographic range (Harris 1984, pp. 93–104). Connectivity of these habitats is essential in preventing further fragmentation and isolation of laurel dace populations. Therefore, based on the information above, we identify shallow pools and runs and associated stream segments of geomorphically stable, first- to secondorder streams with riparian vegetation to be an essential physical or biological feature for the laurel dace. The connectivity of these habitats is essential in accommodating feeding, breeding, growth, and other normal behaviors of the laurel dace and in promoting gene flow within the species. VerDate Mar<15>2010 17:42 Oct 15, 2012 Jkt 229001 Food, Water, Air, Light, Minerals, or Other Nutritional or Physiological Requirements Cumberland Darter Feeding habits of the Cumberland darter are unknown but are likely similar to that of its sister species, the Johnny darter (Etheostoma nigrum Rafinesque). Johnny darters are diurnal sight feeders, with prey items consisting of midge larvae, mayfly nymphs, caddisfly larvae, and microcrustaceans (Kuehne and Barbour 1983, p. 104; Etnier and Starnes 1993, p. 511). Similar to other darters, juvenile Cumberland darters likely feed on planktonic organisms or other small invertebrates. Like most other darters, the Cumberland darter depends on perennial stream flows that create suitable habitat conditions needed for successful completion of its life cycle. An ample supply of flowing water provides a means of transporting nutrients and food items, moderating water temperatures and dissolved oxygen levels, removing fine sediments that could damage spawning or foraging habitats, and diluting nonpoint source pollutants. Water withdrawals do not represent a significant threat to the species, but the species is faced with occasional low-flow conditions that occur during periods of drought. One such event occurred in the summer and fall of 2007, when recorded streamflows in the upper Cumberland River basin of Kentucky and Tennessee (USGS Station Number 03404000) were among the lowest monthly values of the last 67 years (Cinotto 2008, pers. comm.). Water quality is also important to the persistence of the Cumberland darter. The species requires relatively clean, cool, flowing water to successfully complete its life cycle, but specific water quality requirements (such as temperature, dissolved oxygen, pH, and conductivity) that define suitable habitat conditions for the Cumberland darter have not been determined. In general, optimal water quality conditions for fishes and other aquatic organisms are characterized by moderate stream temperatures, acceptable dissolved oxygen concentrations, and the lack of harmful levels of pollutants, such as inorganic contaminants like iron, manganese, selenium, and cadmium; organic contaminants such as human and animal waste products; pesticides and herbicides; nitrogen, potassium, and phosphorus fertilizers; and petroleum distillates. Sediment is the most common pollutant within the upper Cumberland River system (KDOW 1996, pp. 50–53, PO 00000 Frm 00012 Fmt 4701 Sfmt 4700 71–75; 2002, pp. 39–40; 2006, pp. 178– 185), and the primary sources of sediment include resource extraction (e.g., coal mining, silviculture, natural gas development), agriculture, road construction, and urban development (Waters 1995, pp. 2–3; Skelton 1997, pp. 17, 19; KDOW 2006, pp. 178–185; Thomas 2007, p. 5). Siltation (excess sediments suspended or deposited in a stream) has been shown to abrade and suffocate bottom-dwelling organisms; reduce aquatic insect diversity and abundance; impair fish feeding behavior by altering prey base and reducing visibility of prey; impair reproduction due to burial of nests; and, ultimately, negatively impact fish growth, survival, and reproduction (Waters 1995, pp. 5– 7, 55–62; Knight and Welch 2001, pp. 134–136). O’Bara (1991, p. 11) reported that Cumberland darter habitats are very susceptible to siltation because of the habitat’s low to moderate gradient, low velocity, and shallow depth. O’Bara (1991, p. 11) concluded that siltation was the major limiting factor for the species’ continued existence and its ability to colonize new stream systems. Cumberland darters are threatened by water quality degradation caused by a variety of nonpoint source pollutants. Coal mining represents a major source of nonpoint source pollutants (O’Bara 1991, p. 11; Thomas 2007, p. 5), because it has the potential to contribute high concentrations of dissolved metals and other solids that lower stream pH or lead to elevated levels of stream conductivity (Pond 2004, pp. 6–7, 38– 41; Mattingly et al. 2005, p. 59). These impacts have been shown to negatively affect fish species, including listed species, in the Clear Fork system of the Cumberland basin (Weaver 1997, pp. 29; Hartowicz 2008, pers. comm.). The direct effect of elevated stream conductivity on fishes, including the Cumberland darter, is poorly understood, but some species, such as blackside dace (Chrosomus cumberlandensis), have shown declines in abundance over time as conductivity increased in streams affected by mining (Hartowicz 2008, pers. comm.). Other nonpoint source pollutants that affect the Cumberland darter include domestic sewage (through septic tank leakage or straight pipe discharges); agricultural pollutants such as fertilizers, pesticides, herbicides, and animal waste; and other chemicals associated with oil and gas development. Nonpoint source pollutants can cause excess nutrification (increased levels of nitrogen and phosphorus), excessive algal growth, instream oxygen deficiencies, increased acidity and conductivity, and other E:\FR\FM\16OCR2.SGM 16OCR2 Federal Register / Vol. 77, No. 200 / Tuesday, October 16, 2012 / Rules and Regulations tkelley on DSK3SPTVN1PROD with RULES2 changes in water chemistry that can negatively impact aquatic species (KDOW 1996, pp. 48–50; 2006, pp. 70– 73). Therefore, based on the information above, we identify aquatic macroinvertebrate prey items; permanent surface flows, as measured during average rainfall years; and adequate water quality with substrates that are relatively silt-free to be an essential physical or biological feature for the Cumberland darter. Relatively silt-free is defined for the purpose of this rule as silt or fine sand within interstitial spaces of substrates in amounts low enough to have minimal impact to the species. Rush Darter Feeding habits of the rush darter are unknown but are likely similar to that of its sister species, the goldstripe darter (Etheostoma parvipinne). The goldstripe darter is a benthic (bottom) insectivore and is known to consume midge larvae, mayfly nymphs, blackfly larvae, beetles, and microcrustaceans (Mettee et al. 1996, p. 655). Extremes in variations in instream flows maintain the stream bottom substrates, providing oxygen and other attributes to various invertebrate life stages. Sedimentation has been shown to wear away and suffocate periphyton (organisms that live attached to objects underwater), disrupt aquatic insect communities (Waters 1995, pp. 53–86; Knight and Welch 2001, pp. 132–135), and reduce photosynthesis in aquatic vegetation. In addition, nutrification promotes heavy algal growth that covers and eliminates the clean rock, gravel, and vegetative habitats necessary for rush darter feeding. Thus, a decrease in water quality and instream flow would correspondingly cause a decline in the major food species for the rush darter. On the other hand, excessive instream flow can also damage and uproot aquatic vegetation necessary for foraging and feeding habitat. Much of the cool, clean water provided to the Turkey Creek system (Beaver Creek, Unnamed Tributary to Beaver Creek, Tapawingo or Penny Springs and the Highway 79 site; Jefferson County) and Cove Spring run of Little Cove Creek (Etowah County) comes from consistent and steady groundwater sources (springs and seeps). Clear, flowing water provides a means for transporting nutrients and food items, moderating water temperatures and dissolved oxygen levels, and diluting nonpoint and point source pollution. Without clean water sources, water quality and water quantity would be considerably lower VerDate Mar<15>2010 17:42 Oct 15, 2012 Jkt 229001 and would significantly impair the normal life stages and behavior of the rush darter. Favorable water quantity for the rush darter includes moderate water velocity in riffles and no flow or low flow in pools (Stiles and Mills 2008, pp. 1–4), a continuous daily discharge that allows for longitudinal connectivity within the species’ habitat (Instream Flow Council 2004, p. 117), and discharge from both surface water runoff and groundwater sources (springs and seepages). Along with the continuous daily discharge, both minimum and flushing flows are necessary to remove fine sediments and dilute other pollutants (Moffett and Moser 1978, pp. 20–21; Gilbert et al., eds. 1994, pp. 505–522; Instream Flow Council 2004, pp. 103–104; Drennen 2009, pers. obs.). At some sites, water depth ranges from 3.0 to 50 cm (0.1 to 1.6 ft). Groundwater provides a constant source of flows to dilute pollutants and maintain water quality for the persistence of the rush darter. Factors that can potentially alter water quality include: Droughts and periods of low seasonal flow, precipitation events, nonpoint source runoff, human activities within the watershed, random spills, unregulated stormwater discharge events (Instream Flow Council 2004, pp. 29–50), and water extraction. Instream pooling may also affect water quality by reducing water flow, altering temperatures, concentrating pollutants (Blanco and Mayden 1999, pp. 5–6, 36), and retarding aquatic and emergent vegetation growth. Fishes require acceptable levels of dissolved oxygen. Generally, among fishes, the young life forms require more dissolved oxygen and are the most sensitive. The amount of dissolved oxygen that is present in the water (the saturation level) depends upon water temperature. As water temperature increases, the saturated dissolved oxygen level decreases. The more oxygen there is in the water, the greater the assimilative capacity (ability to consume organic wastes with minimal impact) of that water; lower water flows have a reduced assimilative capacity (Pitt 2000, pp. 6–7). Low-flow conditions affect the chemical environment occupied by fishes; extended low-flow conditions coupled with higher pollutant levels could likely result in behavioral changes within all life stages, which could be particularly detrimental to early life stages (e.g., embryo, larvae, and juvenile). Optimal water quality lacks harmful levels of pollutants, such as inorganic contaminants like copper, arsenic, mercury, and cadmium; organic PO 00000 Frm 00013 Fmt 4701 Sfmt 4700 63615 contaminants such as human and animal waste products; endocrinedisrupting chemicals; pesticides; nitrogen, potassium, and phosphorous fertilizers; and petroleum distillates (Alabama Department of Environmental Management (ADEM) 1996, pp. 13–15). Sediment is the most abundant pollutant produced in the Mobile River Basin (ADEM 1996, pp. 13–15). Siltation (excess sediments suspended or deposited in a stream) contributes to turbidity of the water and has been shown to reduce photosynthesis in aquatic plants, suffocate aquatic insects, smother fish eggs, clog fish gills, and may fill in essential interstitial spaces (spaces between stream substrates) used by aquatic organisms for spawning and foraging; therefore, excessive siltation negatively impacts fish growth, physiology, behavior, reproduction, and survival. Nutrification (excessive nutrients present, such as nitrogen and phosphorous) promotes heavy algal growth that covers and eliminates clean rock or gravel habitats and aquatic and emergent vegetation, which are necessary for rush darter feeding and spawning. Generally, early life stages of fishes are less tolerant of environmental contamination than adults or juveniles (Little et al. 1993, p. 67). Appropriate water quality and quantity are necessary to dilute impacts from stormwater and other unnatural effluents. Harmful levels of pollutants impair critical behavior processes in fishes, as reflected in population-level responses (reduced population size, biomass, year class success, etc.). However, excessive water quantity in the form of substantial stormwater runoff may destabilize and move bottom and bankside substrates and increase instream sedimentation. Essential water quality attributes for darters and other fish species in fast to medium water flow streams include the following: Dissolved oxygen levels greater than 6 parts per million (ppm), temperatures between 7 and 26.7 °C (45 and 80 °F) with spring egg incubation temperatures from 12.2 to 18.3 °C (54 to 65 °F), a specific conductance (ability of water to conduct an electric current, based on dissolved solids in the water) of less than approximately 225 micro Siemens per cm at 26.7 °C (80 °F), and low concentrations of free or suspended solids (organic and inorganic sediments) less than 10 Nephelometric Turbidity Units (NTU; units used to measure sediment discharge) and 15 milligrams/ Liter (mg/L) total suspended solids (TSS; measured as mg/L of sediment in water) (Teels et al. 1975, pp. 8–9; Ultschet et al. 1978, pp. 99–101; Ingersoll et al. 1984, pp. 131–138; E:\FR\FM\16OCR2.SGM 16OCR2 63616 Federal Register / Vol. 77, No. 200 / Tuesday, October 16, 2012 / Rules and Regulations tkelley on DSK3SPTVN1PROD with RULES2 Kundell and Rasmussen 1995, pp. 211– 212; Henley et al. 2000, pp. 125–139; Meyer and Sutherland 2005, pp. 43–64). Therefore, based on the information above, we identify cool, clean, flowing water; shallow depths; moderate water velocity in riffles and low flow in pools; aquatic macroinvertebrate prey items; aquatic vegetation; and adequate water quality to be an essential physical or biological feature for the rush darter. Yellowcheek Darter Adult and juvenile yellowcheek darters’ prey items include blackfly larvae, stonefly larvae, mayfly nymphs, and caddisfly larvae among other stream insects (McDaniel 1984, p. 56). McDaniel (1984, p. 37) noted a strong selectivity by yellowcheek darters for fly larvae year round, while other prey taxa were consumed proportionally depending on seasonal availability. Larval stages of yellowcheek darters have not been studied in the field but are assumed to feed on planktonic organisms based on laboratory rearing efforts and known larval fish dietary habits. Drought conditions and low water levels have been identified as contributing factors in the decline of the yellowcheek darter (Wine et al. 2000, p. 11). Expanding natural gas development activities that began in the upper Little Red River watershed in 2005 require large quantities of water and pose a threat to the continued existence of the yellowcheek darter (75 FR 36045, June 24, 2010). Water diversion from the Middle and South forks has increased in recent years due to large-scale extraction of natural gas in the Fayetteville Shale (which encompasses nearly all of the upper Little Red River drainage). Natural gas development is imminent in the Archey and Devil’s forks as well and is predicted to affect numerous tributaries in all four watersheds. Because the yellowcheek darter requires permanent flows with moderate to strong current (Robison and Buchanan 1988, p. 429), seasonal fluctuations in stream flows exacerbated by water diversion for natural gas, agricultural, municipal, or other land uses represent a serious threat to the species. In addition to water quantity, water quality is also important to the persistence of the yellowcheek darter. Although the Middle Fork is designated as an Extraordinary Resource Water, it is listed as impaired along a 33.5-km (20.8-mi) reach due to fecal coliform bacteria contamination according to the Arkansas Department of Environmental Quality (ADEQ) List of Impaired Waterbodies. This same report listed a 3.2-km (2.0-mi) stretch of the South VerDate Mar<15>2010 17:42 Oct 15, 2012 Jkt 229001 Fork as impaired due to elevated mercury levels (ADEQ 2010, p. 22). Boston Mountain streams that support the yellowcheek darter are typically characterized by adequate water quality; however, increasing activity within the watersheds related to resource extraction, urban development, and other human-related activities is reason for concern regarding the recovery potential of the yellowcheek darter. Therefore, based on the information above, we identify aquatic macroinvertebrate prey items; permanent surface flows, as measured during average rainfall years; moderate to strong water velocity in riffles; and adequate water quality to be an essential physical or biological feature for the yellowcheek darter. Chucky Madtom The Chucky madtom’s prey items are unknown; however, least madtom (Noturus hildebrandi) 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, followed by fly, mosquito, 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. The TVA Index of Biological Integrity results indicate that Little Chucky Creek is biologically impaired (Middle Nolichucky Watershed Alliance 2006, p. 13). Given the predominantly agricultural land use within the Little Chucky Creek watershed, nonpoint source sediment and agrochemical discharges may pose a threat to the Chucky madtom by altering the physical characteristics of its habitat, thus potentially impeding its ability to feed, seek shelter from predators, and successfully reproduce. The City of Greeneville also discharges sediments and contaminants into the creek, thereby threatening the Chucky madtom. Wood and Armitage (1997, pp. 211–212) identify at least five impacts of sedimentation on fish, including: (1) Reduction of growth rate, disease tolerance, and gill function; (2) reduction of spawning habitat and egg, larvae, and juvenile development; (3) modification of migration patterns; (4) reduction of food availability through the blockage of primary production; and (5) reduction of foraging efficiency. Water quality is important to the persistence of the Chucky madtom. The species requires relatively clean, cool, flowing water to successfully complete PO 00000 Frm 00014 Fmt 4701 Sfmt 4700 its life cycle, but specific water quality requirements (such as temperature, dissolved oxygen, pH, and conductivity) that define suitable habitat conditions for the Chucky madtom have not been determined. In general, optimal water quality conditions for fishes and other aquatic organisms are characterized by moderate stream temperatures and acceptable dissolved oxygen concentrations, and they lack harmful levels of pollutants, such as inorganic contaminants like iron, manganese, selenium, and cadmium; organic contaminants such as human and animal waste products; pesticides and herbicides; nitrogen, potassium, and phosphorus fertilizers; and petroleum distillates. As relatively sedentary animals, madtoms must tolerate the full range of such parameters that occur naturally within the streams where they persist. Both the amount of water (flow) and its physical and chemical conditions (water quality) vary widely according to seasonal precipitation events and seasonal human activities within the watershed. In general, the species survives in areas where the magnitude, frequency, duration, and seasonality of water flow is adequate to remove fine particles and sediments (silt-free) without causing degradation, and where water quality is adequate for year-round survival (for example, moderate to high levels of dissolved oxygen, low to moderate input of nutrients, and relatively unpolluted water and sediments). Relatively silt-free is defined for the purpose of this rule as silt or fine sand within interstitial spaces of substrates in amounts low enough to have minimal impact to the species. Therefore, based on the information above, we identify aquatic macroinvertebrate prey items; cool, clean, flowing water; shallow depths; permanent surface flows, as measured during average rainfall years; and adequate water quality with substrates that are relatively silt-free to be an essential physical or biological feature for the Chucky madtom. Laurel Dace The laurel dace’s 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 a large mouth, short digestive tract, reduced number of pharyngeal (located within the throat) teeth, and primitively shaped basioccipital bone (bone that articulates the vertebra), are consistent with a diet consisting largely of animal material. E:\FR\FM\16OCR2.SGM 16OCR2 tkelley on DSK3SPTVN1PROD with RULES2 Federal Register / Vol. 77, No. 200 / Tuesday, October 16, 2012 / Rules and Regulations Strange and Skelton (2005, p. 7 and Appendix 2) identified siltation as a threat in all of the occupied Piney River tributaries (Youngs, Moccasin, and Bumbee Creeks). The Bumbee Creek type locality for the laurel dace is located within industrial forest that has been subjected to extensive clear-cutting and road construction in close proximity to the stream. Strange and Skelton (2005, p. 7) noted a heavy sediment load at this locality and commented that conditions there in 2005 had deteriorated since the site was visited by Skelton in 2002. In general, the species occupies areas that are relatively silt-free. Relatively silt-free is defined for the purpose of this rule as silt or fine sand within interstitial spaces of substrates in amounts low enough to have minimal impact to the species. Strange and Skelton (2005, pp. 7 and 8 and Appendix 2) also commented on excessive siltation in localities they sampled on Youngs and Moccasin creeks, and observed localized removal of riparian vegetation around residences in the headwaters of each of these streams. They considered the removal of riparian vegetation problematic not only for the potential for increased siltation, but also for the potential thermal alteration of these small headwater streams. Skelton (2001, p. 125) reported that laurel dace occupy cool streams with a maximum recorded temperature of 26 °C (78.8 °F). The removal of riparian vegetation could potentially increase temperatures above the laurel dace’s maximum tolerable limit. Water quality is important to the persistence of the laurel dace. The species requires relatively clean, cool, flowing water to successfully complete its life cycle, but specific water quality requirements (such as temperature, dissolved oxygen, pH, and conductivity) that define suitable habitat conditions for the laurel dace have not been determined. In general, optimal water quality conditions for fishes and other aquatic organisms are characterized by moderate stream temperatures and acceptable dissolved oxygen concentrations, and they lack harmful levels of pollutants, such as inorganic contaminants like iron, manganese, selenium, and cadmium; organic contaminants such as human and animal waste products; pesticides and herbicides; nitrogen, potassium, and phosphorus fertilizers; and petroleum distillates. Other factors that can potentially alter water quality and quantity are droughts and periods of low flow, nonpoint source run-off from adjacent land surfaces (for example, excessive VerDate Mar<15>2010 17:42 Oct 15, 2012 Jkt 229001 amounts of nutrients, pesticides, and sediment), and random spills or unregulated discharge events. Run-off or discharges could be particularly harmful during drought conditions when flows are depressed and pollutants are more concentrated. Adequate water quality is essential for normal behavior, growth, and viability during all life stages of the laurel dace. Adequate water quantity and flow and good to optimal water quality are essential for normal behavior, growth, and viability during all life stages. Culverts, pipes, and bridge or road maintenance sites within the watersheds serve as dispersal barriers and have altered stream flows from natural conditions. Other nonpoint source pollutants that affect the laurel dace include domestic sewage (through septic tank leakage or straight pipe discharges) and agricultural pollutants such as fertilizers, pesticides, herbicides, and animal waste. There are no active coal mines within the range of the laurel dace; however, coal mining represents a potential threat to the species in the foreseeable future. Coal mining represents a major source of nonpoint source pollutants because it has the potential to contribute high concentrations of dissolved metals and other solids that lower stream pH or lead to elevated levels of stream conductivity (Pond 2004, pp. 6–7, 38– 41; Mattingly et al. 2005, p. 59). The direct effect of elevated stream conductivity on fishes, including the laurel dace, is poorly understood, but some species, such as blackside dace, have shown declines in abundance over time as conductivity increased in streams affected by mining (Hartowicz 2008, pers. comm.). Water temperature may also be a limiting factor in the distribution of this species (Skelton 1997, pp. 17, 19). Canopy cover of laurel dace streams often consists of eastern hemlock (Tsuga canadensis), mixed hardwoods, pines (Pinus sp.), and mountain laurel (Kalmia latifolia). The hemlock woolly adelgid (Adelges tsugae) is a nonnative insect that infests hemlocks, causing damage or death to trees. The hemlock woolly adelgid was recently found in Hamilton County, Tennessee, and could impact eastern hemlock in floodplains and riparian buffers along laurel dace streams in the future (Simmons 2008, pers. comm.). Riparian buffers filter sediment and nutrients from overland runoff, allow water to soak into the ground, protect stream banks and lakeshores, and provide shade for streams. Because eastern hemlock is primarily found in riparian areas, the loss of this species adjacent to laurel PO 00000 Frm 00015 Fmt 4701 Sfmt 4700 63617 dace streams would be detrimental to fish habitat. Therefore, based on the information above, we identify aquatic macroinvertebrate prey items; cool, clean, flowing water; shallow depths; permanent surface flows, as measured during average rainfall years; and adequate water quality with substrates that are relatively silt-free to be an essential physical or biological feature for the laurel dace. Cover or Shelter Cumberland Darter Cumberland darters depend on specific habitats and bottom substrates for normal life processes such as spawning, rearing, resting, and foraging. As described above, the species’ preferred habitats (shallow pools and runs) are dominated by sand or sandcovered bedrock with patches of gravel or debris (Thomas 2007, p. 4). Individuals were observed by O’Bara (1991, p. 10) and Thomas (2007, p. 4) in gently flowing runs or pools at depths ranging from 20 to 76 cm (average 36.2 cm) (3.9 to 30 in, average 14.3 in). Most of these habitats contain isolated boulders and large cobble that the species likely uses as cover. According to O’Bara (1991, p. 11), areas used by the Cumberland darter for cover and shelter are very susceptible to the effects of siltation, and the presence of relatively silt-free substrates is the major limiting factor for both the species’ continued existence and its ability to colonize new habitats. Relatively siltfree is defined for the purpose of this rule as silt or fine sand within interstitial spaces of substrates in amounts low enough to have minimal impact to the species. Therefore, based on the information above, we identify stable, shallow pools and runs with relatively silt-free sand, sand-covered bedrock substrates, and isolated boulders and large cobble substrates to be an essential physical or biological feature for the Cumberland darter. Rush Darter Rush darters depend on specific stream substrates and stream margins consisting of aquatic vegetation for normal and robust life processes such as spawning, rearing, protection of young, protection of adults when threatened, foraging, and feeding. Preferred substrates are dominated by fine gravel, with lesser amounts of sand, fine silt, coarse gravel, cobble, and bedrock (Blanco and Mayden 1999, pp. 24–26; Drennen 2009, pers. obs.). In addition to these preferred substrates, rush darters E:\FR\FM\16OCR2.SGM 16OCR2 63618 Federal Register / Vol. 77, No. 200 / Tuesday, October 16, 2012 / Rules and Regulations tkelley on DSK3SPTVN1PROD with RULES2 generally prefer aquatic emergent vegetation such as watercress (Nasturtium officinale), parrots feather (Myriophyllum sp.), rushes (Juncus spp.), sedges (Carex spp.), burr reed (Sparganium sp.), and coontail (Ceratophyllum sp.). This emergent vegetation is utilized by the rush darter, especially in the quiet water along stream margins and in ephemeral pools and tributaries (Boschung and Mayden 2004, p. 552; Stiles 2011, pers. comm.). Excessive siltation of gravel substrates removes foraging and feeding sites for the rush darter (Sylte and Fischenich 2002, pp. 1–25), and eliminates conditions necessary for some aquatic plant species to flourish. Similarly, excessive nutrients promote dense filamentous algae growth on the substrate and within the water column (Drennen 2007, pers. obs.; Stiles 2011, pers. comm.), which may restrict rush darter habitat for foraging and spawning (Stiles 2011, pers. comm.). Stormwater flows may result in scouring and erosion of important cover, breeding, and sheltering sites for the rush darter. Conversely, drought conditions render the darter populations vulnerable to higher water temperatures and restricted habitat, especially during the breeding season when they concentrate in wetland pools and shallow pools of headwater streams (Fluker et al. 2007, p. 10). Therefore, based on the information above, we identify quiet water along stream margins and in shallow ephemeral pools and headwater tributaries; aquatic emergent vegetation; a combination of silt, sand, and gravel substrates; and seasonal stream flows sufficient to provide connectivity and to remove excessive sediment covering the vegetation and stream bottom substrates to be an essential physical or biological feature for the rush darter. Yellowcheek Darter Summertime habitat selected by the yellowcheek darter includes highvelocity (greater than 0.4 meters per second or 1.3 feet per second) water over 8 to 128 millimeters (mm) (0.3 to 5.0 in) gravel and cobble substrate at depths of 11 to 30 cm (4.3 to 11.8 in) (Brophy and Stoeckel 2006, p. 42), which lends evidence to the suggestion by other researchers that it is a ‘‘riffleobligate’’ species and is unlikely to occupy pool or run habitats when riffles are available. Preferred water depths for yellowcheek darters ranged between 11 and 30 cm (4.3 and 11.8 in), but yellowcheek darters have been found in shallower water, when greater depths with suitable velocities were scarce. Gravel and cobble from 8 to 128 mm VerDate Mar<15>2010 17:42 Oct 15, 2012 Jkt 229001 (0.3 to 5.0 in) median diameter appears to be the important substrate type for yellowcheek darter (Brophy and Stoeckel 2006, p. 42). Larger boulder substrates are important during spring spawning periods (McDaniel 1984, p. 82). Siltation (excess sediments suspended or deposited in a stream) contributes to turbidity of the water and has been shown to suffocate aquatic insects, smother fish eggs, clog fish gills, and may fill in essential interstitial spaces (spaces between stream substrates) used by aquatic organisms for spawning and foraging; therefore, excessive siltation negatively impacts fish growth, physiology, behavior, reproduction, and survival. In general, the species occupies areas that are relatively silt-free. Relatively silt-free is defined for the purpose of this rule as silt or fine sand within interstitial spaces of substrates in amounts low enough to have minimal impact to the species. Therefore, based on the information above, we identify high-quality riffle substrates that are relatively silt-free and contain a mixture of gravel, cobble, and boulder substrates to be an essential physical or biological feature for the yellowcheek darter. Chucky Madtom While nothing is known specifically about Chucky madtom habitat preferences, available information for other similar members of the Noturus group is known. Both smoky and elegant madtoms (N. elegans) were found to nest under flat rocks (slab-rock boulders) at or near the head of riffles (Burr and Dimmick 1981, p. 116; Dinkins and Shute 1996, p. 56). Smoky madtoms have also been observed using shallow pools and to select rocks of larger dimension for nesting than were used for shelter during other times of year (Dinkins and Shute 1996, p. 56). Siltation (excess sediments suspended or deposited in a stream) contributes to turbidity of the water and has been shown to smother fish eggs, clog fish gills, and may fill in essential interstitial spaces (spaces between stream substrates) used by aquatic organisms for spawning and foraging; therefore, excessive siltation negatively impacts fish growth, physiology, behavior, reproduction, and survival. Dinkins and Shute (1996, p. 50) found smoky madtoms underneath slab-rock boulders 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 °C (45 to 46 °F), and persisted from early November to May. Eisenhour et al. PO 00000 Frm 00016 Fmt 4701 Sfmt 4700 (1996, p. 43) collected saddled madtoms in gravel, cobble, and slab-rock boulder substrates in riffle habitats with depths ranging from 0.1 to 0.3 m (0.33 to 0.98 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. Therefore, based on the information above, we identify gently flowing runs and pools with relatively silt-free flat gravel, cobble, and slab-rock boulder substrates to be an essential physical or biological feature for the Chucky madtom. Laurel Dace Laurel dace have been most often collected from pools or slow runs from undercut banks or beneath slab-rock boulders, typically in first- or secondorder, clear, cool (maximum recorded temperature 26 °C or 78.8 °F) streams. Substrates in streams where laurel dace are found typically consist of a mixture of cobble, rubble, and boulder, and the streams tend to have a dense riparian zone consisting largely of mountain laurel (Skelton 2001, pp. 125–126). Siltation (excess sediments suspended or deposited in a stream) contributes to turbidity of the water and has been shown to smother fish eggs, clog fish gills, and may fill in essential interstitial spaces (spaces between stream substrates) used by aquatic organisms for spawning and foraging; therefore, excessive siltation negatively impacts fish growth, physiology, behavior, reproduction, and survival. Water temperature may be a limiting factor in the distribution of this species (Skelton 1997, pp. 17, 19). Canopy cover of laurel dace streams often consists of eastern hemlock (Tsuga canadensis), mixed hardwoods, pines (Pinus spp.), and mountain laurel (Kalmia latifolia). Riparian buffers filter sediment and nutrients from overland runoff, allow water to soak into the ground, protect stream banks and lakeshores, and provide shade for streams. The hemlock woolly adelgid is a nonnative insect that infests hemlocks, causing damage or death to trees. The woolly adelgid was recently found in Hamilton County, Tennessee, and could impact eastern hemlock in floodplains and riparian buffers along laurel dace streams in the future (Simmons 2008, pers. comm.). Because eastern hemlock is primarily found in riparian areas, the loss of this species adjacent to laurel dace streams would be detrimental to fish habitat. Habitat destruction and modification also stem from existing or proposed E:\FR\FM\16OCR2.SGM 16OCR2 Federal Register / Vol. 77, No. 200 / Tuesday, October 16, 2012 / Rules and Regulations infrastructure development in association with silvicultural activities. The presence of culverts at one or more road crossings in most of the streams inhabited by laurel dace may disrupt upstream dispersal within those systems (Chance 2008, pers. obs.). Such dispersal barriers could prevent reestablishment of laurel dace populations in reaches where they suffer localized extinctions due to natural or humancaused events. Therefore, based on the information above, we identify stream connectivity, gently flowing runs and pools with relatively silt-free cobble and slab-rock boulder substrates with undercut banks, and canopy cover to be an essential physical or biological feature for the laurel dace. Sites for Breeding, Reproduction, or Rearing (or Development) of Offspring tkelley on DSK3SPTVN1PROD with RULES2 Cumberland Darter Little is known regarding the reproductive habits of the Cumberland darter. Thomas (2007, p. 4) reported the collection of male Cumberland darters in breeding condition in April and May, with water temperatures ranging from 15 to 18 °C (59 to 64 °F). Extensive searches by Thomas (2007, p. 4) produced no evidence of nests or eggs at these sites. Reproductive habits of its closest relative, the Johnny darter, have been well studied by Winn (1958a, pp. 163–183; 1958b, pp. 205–207), Speare (1965, pp. 308–314), and Bart and Page (1991, pp. 80–86). Spawning occurs from April to June, with males migrating to spawning areas prior to females and establishing territories at selected spawning sites. Males establish a nest under a submerged object (boulder or woody debris) by using fin movements to remove silt and fine debris. Females enter the nests, the spawning pair inverts, and females deposit between 40 and 200 adhesive eggs on the underside of the nest object. Males care for the nest by periodically fanning the area to remove silt. The eggs hatch in about 6 to 16 days, depending on water temperature. Hatchlings are about 5 mm (0.2 in) and reach 29 to 38 mm (1.1 to 1.5 in) at age 1. Given these specialized reproductive behaviors, it is apparent that the Cumberland darter requires second- to fourth-order streams containing gently flowing run and pool habitats with sand and bedrock substrates, boulders, woody debris, or other cover and that are relatively siltfree. It is essential to maintain the connectivity of these sites, to accommodate breeding, growth, and other normal behaviors of the VerDate Mar<15>2010 17:42 Oct 15, 2012 Jkt 229001 Cumberland darter and to promote gene flow within the species. Therefore, based on the information above, we identify stable, second- to fourth-order streams containing gently flowing run and pool habitats with sand and bedrock substrates, boulders, large cobble, woody debris, or other cover and that are relatively silt-free and stream connectivity to be an essential physical or biological feature for the Cumberland darter. Rush Darter Rush darters depend on bottom substrates dominated by sand, fine silt, fine gravel and some coarse gravel, and that have significant amounts of emergent aquatic and overhanging terrestrial vegetation (Drennen 2009, pers. obs.). In July 2008, rush darter young-of-theyear were collected within areas of very little water in the headwaters of an unnamed tributary in Jefferson County (Kuhajda 2008, pers. comm.), and in January 2008, the same tributary was dry. In previous years, this area was a spawning and nursery site for rush darters (Kuhajda 2008, pers. comm.). During May and June, rush darters spawned at this site even though the area had been dewatered occasionally in the summer, fall, and winter (Kuhajda 2008, pers. comm.). Adult rush darters are present in headwater areas for spawning during May and June, and may leave these sites or become trapped in ephemeral pools during the summer. Adults may be migrating upstream from watered areas, or juveniles and adults may be moving downstream from the spring-fed wetland that constitutes the headwaters of the unnamed tributary (Kuhajda 2008, pers. comm.). Therefore, based on the information above, we identify permanent and ephemeral shallow streams with quiet water along stream margins and in shallow ephemeral pools and headwater tributaries, along with seasonal stream flows sufficient to provide connectivity and refugia to promote the emergent aquatic vegetation necessary for spawning and rearing of young, to be an essential physical or biological feature for the rush darter. Yellowcheek Darter Yellowcheek darter spawning occurs from late May through June in the swift to moderately swift portions of riffles, often around or under the largest rocks (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 PO 00000 Frm 00017 Fmt 4701 Sfmt 4700 63619 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, 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 suggest that yellowcheek darters deposit eggs on the undersides of larger rubble in swift water (McDaniel 1984, p. 82). Wine and Blumenshine (2002, p. 10) noted that during laboratory spawning, yellowcheek darter females bury themselves in fine gravel or sand substrates (often behind large, fist-sized cobble) with only their heads and caudal fin exposed. A yellowcheek darter male will then position himself upstream of the buried female and fertilize her eggs. Clutch size and nest defense behavior were not observed. Given these specialized reproductive behaviors, the importance of riffle habitats that are characterized by good water quality and sufficient substrates that are relatively silt-free is apparent. Therefore, based on the information above, we identify swift to moderately swift riffles with gravel, cobble, and boulder substrates that are characterized by good water quality and are relatively silt-free to be an essential physical or biological feature for the yellowcheek darter. Chucky Madtom Little is known regarding the reproductive habits of the Chucky madtom; however, both smoky and elegant madtoms were found to nest under flat slab-rock boulders at or near the head of riffles (Burr and Dimmick 1981, p. 116; Dinkins and Shute 1996, p. 56). Shallow pools were also used by the smoky madtom. Smoky madtoms selected larger rocks for nesting than were used for shelter during other times of year (Dinkins and Shute 1996, p. 56). A single male madtom guards the nest in the cases of smoky, elegant, Ozark (Noturus albater), and least madtoms (Mayden et al. 1980, p. 337; Burr and Dimmick 1981, p. 116; Mayden and Walsh 1984, p. 357; Dinkins and Shute 1996, p. 56). While guarding the nest, many were found to have empty stomachs suggesting that they do not feed during nest guarding, which can last as long as 3 weeks. E:\FR\FM\16OCR2.SGM 16OCR2 63620 Federal Register / Vol. 77, No. 200 / Tuesday, October 16, 2012 / Rules and Regulations tkelley on DSK3SPTVN1PROD with RULES2 Siltation (excess sediments suspended or deposited in a stream) contributes to turbidity of the water and has been shown to smother fish eggs, clog fish gills, and may fill in essential interstitial spaces (spaces between stream substrates) used by aquatic organisms for spawning and foraging; therefore, excessive siltation negatively impacts fish growth, physiology, behavior, reproduction, and survival. Therefore, based on the information above, we identify streams containing gently flowing run and pool habitats with flat or slab-rock boulder substrates that are relatively silt-free to be an essential physical or biological feature for the Chucky madtom. Laurel Dace Little is known regarding the reproductive habits of the laurel dace. Skelton (2001, p. 126) reported having collected nuptial individuals from late March until mid-June, although Call (2004, pers. obs.) observed males in waning nuptial color during surveys on July 22, 2004. Laurel dace may be a spawning nest associate with nestbuilding 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) collected a nest-building minnow with laurel dace. Skelton (2001, p. 127) observed laurel dace burying their noses in the gravel of largescale stoneroller (Campostoma oligolepis) nests. The nests used by blackside dace had moderate flow and consisted of gravel substrate at depths of 20 cm (7.9 in) (Starnes and Starnes 1981, p. 366). These nests were noted to be approximately 0.7 m (2.3 ft) from undercut banks (Starnes and Starnes 1981, p. 366). Siltation (excess sediments suspended or deposited in a stream) contributes to turbidity of the water and has been shown to smother fish eggs, clog fish gills, and may fill in essential interstitial spaces (spaces between stream substrates) used by aquatic organisms for spawning and foraging; therefore, excessive siltation negatively impacts fish growth, physiology, behavior, reproduction, and survival. Therefore, based on the information above, we identify headwater streams containing moderately flowing run and pool habitats with gravel substrates, containing undercut banks, and that are relatively silt-free to be an essential physical or biological feature for the laurel dace. Primary Constituent Elements Under the Act and its implementing regulations, we are required to identify VerDate Mar<15>2010 17:42 Oct 15, 2012 Jkt 229001 the physical or biological features essential to the conservation of the Cumberland darter, rush darter, yellowcheek darter, Chucky madtom, and laurel dace in areas occupied at the time of listing, focusing on the features’ primary constituent elements. Primary constituent elements are those specific elements of the physical or biological features that provide for a species’ lifehistory processes and are essential to the conservation of the species. Based on our current knowledge of the physical or biological features and habitat characteristics required to sustain the five species’ life history processes, we determine that the primary constituent elements specific to these five fishes are: Cumberland Darter (1) Primary Constituent Element 1— Shallow pools and gently flowing runs of geomorphically stable, second- to fourth-order streams with connectivity between spawning, foraging, and resting sites to promote gene flow throughout the species’ range. (2) Primary Constituent Element 2— Stable bottom substrates composed of relatively silt-free sand and sandcovered bedrock, boulders, large cobble, woody debris, or other cover. (3) Primary Constituent Element 3— An instream flow regime (magnitude, frequency, duration, and seasonality of discharge over time) sufficient to provide permanent surface flows, as measured during years with average rainfall, and to maintain benthic habitats utilized by the species. (4) Primary Constituent Element 4— Adequate water quality characterized by moderate stream temperatures, acceptable dissolved oxygen concentrations, moderate pH, and low levels of pollutants. Adequate water quality is defined for the purpose of this rule as the quality necessary for normal behavior, growth, and viability of all life stages of the Cumberland darter. (5) Primary Constituent Element 5— Prey base of aquatic macroinvertebrates, including midge larvae, mayfly nymphs, caddisfly larvae, and microcrustaceans. Rush Darter (1) Primary Constituent Element 1— Springs and spring-fed reaches of geomorphically stable, relatively lowgradient, headwater streams with appropriate habitat (bottom substrates) to maintain essential riffles, runs, and pools; emergent vegetation in shallow water and on the margins of small streams and spring runs; cool, clean, flowing water; and connectivity between spawning, foraging, and resting PO 00000 Frm 00018 Fmt 4701 Sfmt 4700 sites to promote gene flow throughout the species’ range. (2) Primary Constituent Element 2— Stable bottom substrates consisting of a combination of sand with silt, muck, gravel, or bedrock and adequate emergent vegetation in shallow water on the margins of small permanent and ephemeral streams and spring runs. (3) Primary Constituent Element 3— Instream flow with moderate velocity and a continuous daily discharge that allows for a longitudinal connectivity regime inclusive of both surface runoff and groundwater sources (springs and seepages) and exclusive of flushing flows caused by stormwater runoff. (4) Primary Constituent Element 4— Water quality with temperature not exceeding 26.7 °C (80 °F), dissolved oxygen 6.0 milligrams or greater per liter (mg/L), turbidity of an average monthly reading of 10 Nephelometric Turbidity Units (NTU; units used to measure sediment discharge) and 15mg/ L total suspended solids (TSS; measured as mg/L of sediment in water) or less; and a specific conductance (ability of water to conduct an electric current, based on dissolved solids in the water) of no greater than 225 micro Siemens per centimeter at 26.7 °C (80 °F). (5) Primary Constituent Element 5— Prey base of aquatic macroinvertebrates, including midge larvae, mayfly nymphs, blackfly larvae, beetles, and microcrustaceans. Yellowcheek Darter (1) Primary Constituent Element 1— Geomorphically stable, second- to fifthorder streams with riffle habitats, and connectivity between spawning, foraging, and resting sites to promote gene flow within the species’ range where possible. (2) Primary Constituent Element 2— Stable bottom composed of relatively silt-free, moderate to strong velocity riffles with gravel, cobble, and boulder substrates. (3) Primary Constituent Element 3— An instream flow regime (magnitude, frequency, duration, and seasonality of discharge over time) sufficient to provide permanent surface flows, as measured during years with average rainfall, and to maintain benthic habitats utilized by the species. (4) Primary Constituent Element 4— Adequate water quality characterized by moderate stream temperatures, acceptable dissolved oxygen concentrations, moderate pH, and low levels of pollutants. Adequate water quality is defined for the purpose of this rule as the quality necessary for normal behavior, growth, and viability of all life stages of the yellowcheek darter. E:\FR\FM\16OCR2.SGM 16OCR2 Federal Register / Vol. 77, No. 200 / Tuesday, October 16, 2012 / Rules and Regulations (5) Primary Constituent Element 5— Prey base of aquatic macroinvertebrates, including blackfly larvae, stonefly larvae, mayfly nymphs, and caddisfly larvae. tkelley on DSK3SPTVN1PROD with RULES2 Chucky Madtom (1) Primary Constituent Element 1— Gently flowing run and pool reaches of geomorphically stable streams with cool, clean, flowing water; shallow depths; and connectivity between spawning, foraging, and resting sites to promote gene flow throughout the species’ range. (2) Primary Constituent Element 2— Stable bottom substrates composed of relatively silt-free, flat gravel, cobble, and slab-rock boulders. (3) Primary Constituent Element 3— An instream flow regime (magnitude, frequency, duration, and seasonality of discharge over time) sufficient to provide permanent surface flows, as measured during years with average rainfall, and to maintain benthic habitats utilized by the species. (4) Primary Constituent Element 4— Adequate water quality characterized by moderate stream temperatures, acceptable dissolved oxygen concentrations, moderate pH, and low levels of pollutants. Adequate water quality is defined for the purpose of this rule as the quality necessary for normal behavior, growth, and viability of all life stages of the Chucky madtom. (5) Primary Constituent Element 5— Prey base of aquatic macroinvertebrates, including midge larvae, mayfly nymphs, caddisfly larvae, and stonefly larvae. Laurel Dace (1) Primary Constituent Element 1— Pool and run habitats of geomorphically stable, first- to second-order streams with riparian vegetation; cool, clean, flowing water; shallow depths; and connectivity between spawning, foraging, and resting sites to promote gene flow throughout the species’ range. (2) Primary Constituent Element 2— Stable bottom substrates composed of relatively silt-free gravel, cobble, and slab-rock boulder substrates with undercut banks and canopy cover. (3) Primary Constituent Element 3— An instream flow regime (magnitude, frequency, duration, and seasonality of discharge over time) sufficient to provide permanent surface flows, as measured during years with average rainfall, and to maintain benthic habitats utilized by the species. (4) Primary Constituent Element 4— Adequate water quality characterized by moderate stream temperatures, acceptable dissolved oxygen concentrations, moderate pH, and low VerDate Mar<15>2010 17:42 Oct 15, 2012 Jkt 229001 levels of pollutants. Adequate water quality is defined for the purpose of this rule as the quality necessary for normal behavior, growth, and viability of all life stages of the laurel dace. (5) Primary Constituent Element 5— Prey base of aquatic macroinvertebrates, including midge larvae, caddisfly larvae, and stonefly larvae. With this designation of critical habitat, we intend to identify the physical or biological features essential to the conservation of these five species, through the identification of the features’ primary constituent elements sufficient to support life-history processes of these species. Special Management Considerations or Protection When designating critical habitat, we assess whether the areas within the geographical area occupied by the species at the time of listing contain features that are essential to the conservation of the species and which may require special management considerations or protection. Cumberland Darter The 15 units we are designating as critical habitat for the Cumberland darter will require some level of management to address the current and future threats to the physical and biological features of the species. Due to their location on the Daniel Boone National Forest (DBNF), at least a portion of 13 of the 15 critical habitat units are being managed and protected under DBNF’s Land and Resource Management Plan (LRMP) (United States Forest Service (USFS) 2004, pp. 1–14). The LRMP is implemented through a series of project-level decisions based on appropriate sitespecific analysis and disclosure. It does not contain a commitment to select any specific project; rather, it sets up a framework of desired future conditions with goals, objectives, and standards to guide project proposals. Projects are proposed to solve resource management problems, move the forest environment toward desired future conditions, and supply goods and services to the public (USFS 2004, pp. 1–14). The LRMP contains a number of protective standards that in general are designed to avoid and minimize potential adverse effects to the Cumberland darter and other federally listed species; however, the DBNF will continue to conduct project-specific section 7 consultation under the Act when their activities may adversely affect streams supporting Cumberland darters. Two of the 15 critical habitat units are located entirely on private property and PO 00000 Frm 00019 Fmt 4701 Sfmt 4700 63621 are not presently under the special management or protection provided by a legally operative plan or agreement for the conservation of the species. Activities in or adjacent to these 15 critical habitat areas may affect one or more of the physical and biological features essential to the Cumberland darter. For example, features in this critical habitat designation may require special management due to threats posed by resource extraction (coal surface mining, silviculture, natural gas and oil exploration activities), agricultural activities (livestock), lack of adequate riparian buffers, presence of perched road culverts or impassable road crossings that restrict fish movement, construction and maintenance of State and county roads, nonpoint source pollution arising from stormwater runoff, and canopy loss caused by infestations of the hemlock woolly adelgid. These threats are in addition to adverse effects of drought, floods, or other natural phenomena. Other activities that may affect physical and biological features in the critical habitat units include those listed in the Effects of Critical Habitat Designation section below. Management activities that could ameliorate these threats include, but are not limited to: Use of BMPs designed to reduce sedimentation, erosion, and bank side destruction; moderation of surface and ground water withdrawals to maintain natural flow regimes; increase of stormwater management and reduction of stormwater flows into the systems; preservation of headwater springs and streams; regulation of offroad vehicle use; removal or replacement of perched culverts or fords that can restrict darter movements and reduce genetic exchange between populations; and reduction of other watershed and floodplain disturbances that release sediments, pollutants, or nutrients into the water. In summary, we find that the areas we are designating as critical habitat for the Cumberland darter contain the physical or biological features for the species, and that these features may require special management considerations or protection. Special management consideration or protection may be required to eliminate, or to reduce to negligible levels, the threats affecting the physical or biological features of each unit. Rush Darter The eight units we are designating as critical habitat for the rush darter will require some level of management to address the current and future threats to the physical and biological features of E:\FR\FM\16OCR2.SGM 16OCR2 tkelley on DSK3SPTVN1PROD with RULES2 63622 Federal Register / Vol. 77, No. 200 / Tuesday, October 16, 2012 / Rules and Regulations the rush darter. None of the critical habitat units (or their corresponding aquifer recharge zones, which are not designated as critical habitat) are presently under special management or protection provided by a legally operative plan or agreement for the conservation of the rush darter. However, 4.7 rkm (2.9 rmi) of the Turkey Creek watershed (Jefferson County) is designated critical habitat for the vermilion darter (Etheostoma chermocki) (75 FR 75913, December 7, 2010) which includes a portion of rush darter unit 2. Various activities in or adjacent to the critical habitat units described in this final rule may affect one or more of the physical and biological features. For example, features in the critical habitat designation may require special management due to threats posed by the following activities or disturbances: Urbanization activities and inadequate stormwater management (such as stream channel modification for flood control or gravel extraction) that could cause an increase in bank erosion; significant changes in the existing flow regime within the streams due to water diversion or withdrawal; significant alteration of water quality; significant alteration in the quantity of groundwater, prevention of water from percolating into the aquifer recharge zone, and alteration of spring discharge sites; significant changes in stream bed material composition and quality due to construction projects and maintenance activities; off-road vehicle use; sewer, gas, and water easements; bridge construction; culvert and pipe installation; and other watershed and floodplain disturbances that release sediments or nutrients into the water. Other activities that may affect physical and biological features in the critical habitat units include those listed in the Effects of Critical Habitat Designation section below. Management activities that could ameliorate these threats include, but are not limited to: Use of BMPs designed to reduce sedimentation, erosion, and bank side destruction; moderation of surface and ground water withdrawals to maintain natural flow regimes; increase of stormwater management and reduction of stormwater flows into the systems; preservation of headwater springs, spring runs, and ephemeral rivulets; regulation of off-road vehicle use; and reduction of other watershed and floodplain disturbances that release sediments, pollutants, or nutrients into the water. In summary, we find that the areas we are designating as critical habitat for the rush darter contain the physical or VerDate Mar<15>2010 17:42 Oct 15, 2012 Jkt 229001 biological features for the species, and that these features may require special management considerations or protection. Special management consideration or protection may be required to eliminate, or to reduce to negligible levels, the threats affecting the physical or biological features of each unit. Yellowcheek Darter The four units we are designating as critical habitat for the yellowcheek darter will require some level of management to address the current and future threats to the physical and biological features of the species. The yellowcheek darter is currently covered under a candidate conservation agreement with assurances (CCAA) in the upper Little Red River watershed in Arkansas, along with the endangered speckled pocketbook mussel, which does not have critical habitat designated. Of the 205,761 hectares (ha) (508,446 acres (ac)) within the upper Little Red River watershed known to support the yellowcheek darter, approximately 35,208 ha (87,000 ac) are owned by private parties (Service 2007, p. 4). To date, multiple landowners have enrolled 4,672 ha (11,544 ac) in the program since its inception in mid2007, and 10 more landowners with approximately 20,234 ha (50,000 ac) have pending draft agreements. Lands enrolled in these conservation programs include areas within the critical habitat as well as riparian and upland areas that are outside of the critical habitat boundary. Various activities in or adjacent to critical habitat may affect one or more of the physical and biological features. For example, features in this critical habitat designation may require special management due to threats posed by natural gas extraction; timber harvest; gravel mining; unrestricted cattle access into streams; water diversion for agriculture, industry, municipalities, or other purposes; lack of adequate riparian buffers; construction and maintenance of county and State roads; and nonpoint source pollution arising from development and a broad array of human activities. These threats are in addition to random effects of drought, floods, or other natural phenomena. Other activities that may affect physical and biological features in the critical habitat units include those listed in the Effects of Critical Habitat Designation section below. Management activities that could ameliorate these threats include, but are not limited to: Use of BMPs designed to reduce sedimentation, erosion, and bank side destruction; moderation of surface PO 00000 Frm 00020 Fmt 4701 Sfmt 4700 and ground water withdrawals to maintain natural flow regimes; increase of stormwater management and reduction of stormwater flows into the systems; preservation of headwater springs and streams; regulation of offroad vehicle use; and reduction of other watershed and floodplain disturbances that release sediments, pollutants, or nutrients into the water. In summary, we find that the areas we are designating as critical habitat for the yellowcheek darter contain the physical or biological features for the species, and that these features may require special management considerations or protection. Special management consideration or protection may be required to eliminate, or to reduce to negligible levels, the threats affecting the physical or biological features of each unit. Chucky Madtom The single unit we are designating as critical habitat for the Chucky madtom will require some level of management to address the current and future threats to the physical and biological features of the species. The critical habitat unit is located on private property and is not presently under the special management or protection provided by a legally operative plan or agreement for the conservation of the species. Various activities in or adjacent to the critical habitat unit described in this rule may affect one or more of the physical and biological features. For example, features in this critical habitat designation may require special management due to threats posed by agricultural activities (e.g., row crops and livestock), lack of adequate riparian buffers, construction and maintenance of State and county roads, gravel mining, and nonpoint source pollution (e.g., agrochemicals, sediment) arising from a wide variety of human activities. These threats are in addition to random effects of drought, floods, or other natural phenomena. Other activities that may affect physical and biological features in the critical habitat unit include those listed in the Effects of Critical Habitat Designation section below. Management activities that could ameliorate these threats include, but are not limited to: Use of BMPs designed to reduce sedimentation, erosion, and bank side destruction; moderate application of agrochemicals; moderation of surface and ground water withdrawals to maintain natural flow regimes; increase of stormwater management and reduction of stormwater flows into the systems; preservation of headwater streams; and reduction of other E:\FR\FM\16OCR2.SGM 16OCR2 Federal Register / Vol. 77, No. 200 / Tuesday, October 16, 2012 / Rules and Regulations tkelley on DSK3SPTVN1PROD with RULES2 watershed and floodplain disturbances that release sediments, pollutants, or nutrients into the water. In summary, we find that the area we are designating as critical habitat for the Chucky madtom contains the physical or biological features for the species, and that these features may require special management considerations or protection. Special management consideration or protection may be required to eliminate, or to reduce to negligible levels, the threats affecting the physical or biological features of the unit. Laurel Dace The six units we are designating as critical habitat will require some level of management to address the current and future threats to the physical and biological features of the laurel dace. These units are located on private property and are not presently under the special management or protection provided by a legally operative plan or agreement for the conservation of the species. Various activities in or adjacent to these areas of critical habitat may affect one or more of the physical and biological features. For example, features in this critical habitat designation may require special management due to threats posed by resource extraction (coal and gravel mining, silviculture, natural gas and oil exploration activities), agricultural activities (row crops and livestock), lack of adequate riparian buffers, construction and maintenance of State and county roads, nonpoint source pollution arising from a wide variety of human activities, and canopy loss caused by infestations of the hemlock woolly adelgid. These threats are in addition to random effects of drought, floods, or other natural phenomena. Other activities that may affect physical and biological features in the critical habitat units include those listed in the Effects of Critical Habitat Designation section below. Management activities that could ameliorate these threats include, but are not limited to: Use of BMPs designed to reduce sedimentation, erosion, and bank side destruction; moderation of surface and ground water withdrawals to maintain natural flow regimes; increase of stormwater management and reduction of stormwater flows into the systems; preservation of headwater streams; regulation of off-road vehicle use; and reduction of other watershed and floodplain disturbances that release sediments, acid mine drainage, pollutants, or nutrients into the water. In summary, we find that the areas we are designating as critical habitat for the VerDate Mar<15>2010 17:42 Oct 15, 2012 Jkt 229001 laurel dace contain the physical or biological features for the species, and that these features may require special management considerations or protection. Special management consideration or protection may be required to eliminate, or to reduce to negligible levels, the threats affecting the physical or biological features of each unit. Criteria Used To Identify Critical Habitat As required by section 4(b)(1)(A) of the Act, we used the best scientific and commercial data available to designate critical habitat. We reviewed available information pertaining to the habitat requirements of the species. In accordance with the Act and its implementing regulation at 50 CFR 424.12(e), we considered whether designating additional areas—outside those currently occupied as well as those occupied at the time of listing— are necessary to ensure the conservation of the species. We are designating critical habitat in areas within the geographical area occupied by the species at the time of listing in 2011. We also are designating specific areas outside the geographical area occupied by the Cumberland darter at the time of listing that are within the historical range of the species, but currently unoccupied, because we have determined that such areas are essential for the conservation of the species. Below is a discussion of the criteria used to identify critical habitat for each of the five species. Cumberland Darter We are designating critical habitat in areas within the geographical area occupied by the Cumberland darter at the time of listing in 2011. We also are designating specific areas outside the geographical area occupied by the species at the time of listing that were historically occupied but are presently unoccupied, because we have determined that: (1) Such areas are essential for the conservation of the species; and (2) designation of only occupied habitats is not sufficient to conserve this species. Unoccupied habitats provide additional habitat for population expansion and promote greater genetic diversity, which will decrease the risk of extinction for the species. We used information from surveys and reports prepared by the Kentucky Department of Fish and Wildlife Resources, Kentucky Division of Water, and Service records to identify specific locations occupied by the Cumberland darter. Delineations were based on the PO 00000 Frm 00021 Fmt 4701 Sfmt 4700 63623 best available scientific information indicating portions of streams containing necessary physical or biological features to support the Cumberland darter. We set the upstream and downstream limits of each critical habitat unit by identifying landmarks (bridges, confluences, road crossings, dams) above and below the upper and lowermost reported locations of the Cumberland darter in each stream reach to ensure incorporation of all potential sites of occurrence. We used ARCGIS to delineate the specific stream segments occupied by the Cumberland darter at the time of listing, and those locations outside the geographical area occupied by the species at the time it was listed that were determined to be essential for the conservation of the species. Areas designated as critical habitat for the Cumberland darter include only stream channels within the ordinary high water line and do not contain any developed areas or structures. We are designating as critical habitat all stream reaches in occupied habitat. These stream reaches comprise the entire known range of the species. As discussed above, currently occupied habitat for the Cumberland darter is limited to 13 streams in McCreary and Whitley Counties, Kentucky, and Campbell and Scott Counties, Tennessee. All currently occupied areas contain the physical or biological features of the species. To identify essential areas outside of the geographical area occupied at the time of listing, we identified areas historically occupied (currently unoccupied) in the upper Cumberland River basin in Kentucky (McCreary and Whitley Counties) and Tennessee (Campbell and Scott Counties). We then assessed the critical life-history components of the Cumberland darter, as they relate to the physical or biological features. We determined the appropriate length of stream segments by identifying the upstream and downstream limits of unoccupied sections necessary for the conservation of the Cumberland darter. In addition, we are designating as critical habitat reaches that were not occupied by the Cumberland darter at the time of listing, but that are located within the historical range of the species. During our evaluation of unoccupied stream reaches, we considered the availability of potential habitat throughout the historical range that may be essential to the survival and conservation of the species. We eliminated from consideration streams with degraded habitat and water quality conditions, and other streams with E:\FR\FM\16OCR2.SGM 16OCR2 63624 Federal Register / Vol. 77, No. 200 / Tuesday, October 16, 2012 / Rules and Regulations tkelley on DSK3SPTVN1PROD with RULES2 potentially suitable habitat but that are separated from basins with occupied habitats. This screening process produced two unoccupied stream reaches (Indian Creek and Kilburn Fork), which we are designating as critical habitat. These reaches are adjacent to currently occupied areas where there is potential for natural dispersal and reoccupation by the species. Currently occupied habitats of the Cumberland darter are highly localized and fragmented, with populations separated from one another by an average distance of 30.5 stream km (19 stream mi). As explained above, this fragmentation and isolation of populations reduces the amount of space for rearing and reproduction, reduces the connectivity between populations, and decreases genetic diversity. Long-term viability is founded on the conservation of numerous local populations that can move freely between habitats and exchange genetic information. These reaches are essential to the Cumberland darter because they provide additional habitat for population expansion and will promote connectivity and genetic exchange between populations; in addition, both streams support diverse fish assemblages, including federally listed and at-risk species. We are designating as critical habitat 13 units that we determined were occupied at the time of listing. These units are designated because sufficient elements of physical or biological features are present to support Cumberland darter life-history processes. Two additional units outside the geographical area occupied by the species at the time of listing are designated because we consider them to be essential to the conservation of the species. Rush Darter We are designating critical habitat in areas within the geographical area occupied by the rush darter at the time of listing in 2011. We are not designating any areas outside the geographical area occupied by the rush darter because occupied areas are sufficient for the conservation of the species. We used information from surveys and reports prepared by the Alabama Department of Conservation and Natural Resources, Alabama Geological Survey, Samford University, University of Alabama, the U.S. Forest Service, the Natural Resources Conservation Service, and the Service to identify the specific locations occupied by the rush darter. Currently, occupied habitat for the VerDate Mar<15>2010 17:42 Oct 15, 2012 Jkt 229001 species is limited and isolated. The species is currently located within tributaries of three watersheds in three counties in Alabama: the Turkey Creek watershed (Jefferson County) (Drennen 2008, pers. obs.); the Clear Creek watershed (Winston County); and the Little Cove-Bristow Creek watershed (Etowah County). In the Turkey Creek watershed, the species is found in four tributaries including Beaver Creek, an unnamed tributary to Beaver Creek and associated springs and wetland, the Highway 79 site, and Tapawingo or Penny Springs. In the Clear Creek watershed, it is found in Wildcat Branch, Doe Branch, and Mill Creek. In the Little Cove-Bristow Creek watershed, it is found in Little Cove Creek, Cove Spring and spring run, and Bristow Creek. Following the identification of the specific locations occupied by the rush darter, we determined the appropriate length of stream segments by identifying the upstream and downstream limits of these occupied sections necessary for the conservation of the rush darter. Because populations of rush darters are isolated due to dispersal barriers, to set the upstream and downstream limits of each critical habitat unit, we identified landmarks (bridges, confluences, road crossings, and dams), and in some instances latitude and longitude coordinates and section lines above and below the upper and lowermost reported locations of the rush darter, in each stream reach to ensure incorporation of all potential sites of occurrence. In addition, within the Cove Spring run and Tapawingo or Penny Spring run, the total area of water that is pooled, and is rush darter habitat, was calculated in hectares (acres). The critical habitat areas were then mapped using ARCGIS to produce the critical habitat map. We are designating as critical habitat all stream and spring reaches in occupied habitat. These stream reaches comprise the entire known range of the rush darter. We are not designating any areas outside the occupied range of the species because occupied areas are sufficient for the conservation of the species, and because the historical range of the rush darter, beyond currently occupied areas, is unknown and dispersal beyond the current range is not likely due to dispersal barriers. Areas designated for critical habitat for the rush darter below include only stream channels within the ordinary high water line and spring pool areas and do not contain any developed areas or structures. We are designating as critical habitat eight units that we have determined PO 00000 Frm 00022 Fmt 4701 Sfmt 4700 were occupied at the time of listing and contain sufficient elements of physical or biological features to support lifehistory processes essential to the conservation of rush darter. Some units contain all of the identified elements of physical or biological features and support multiple life-history processes. Some units contain only some elements of the physical or biological features necessary to support the rush darter’s particular use of that habitat. Yellowcheek Darter We are designating critical habitat in areas within the geographical area occupied by the yellowcheek darter at the time of listing in 2011. We are not designating any areas outside the geographical area occupied by the yellowcheek darter because occupied areas are sufficient for the conservation of the species. We used information from surveys and reports prepared by Arkansas State University, Arkansas Tech University, Arkansas Game and Fish Commission, Arkansas Department of Environmental Quality, and the Service to identify the specific locations occupied by the yellowcheek darter. We identified those areas for designation as critical habitat, within the geographical area occupied by the species at the time of listing, that contain the physical or biological features of the yellowcheek darter and which may require special management consideration or protection. All of the areas we are designating are currently part of ongoing recovery initiatives for this species and are targeted for special management considerations. We used ARCGIS to delineate the specific stream segments occupied by the yellowcheek darter at the time of listing, which contain the physical or biological features essential to the species. We assessed the critical lifehistory components of the yellowcheek darter, as they relate to habitat. Delineations were based on the best available scientific information indicating portions of streams containing necessary physical or biological features necessary to support the yellowcheek darter. We set the upstream and downstream limits of each critical habitat unit by identifying landmarks (bridges, confluences, road crossings, dams, reservoir inundation elevations) above and below the upper and lowermost reported locations of the yellowcheek darter in each stream reach to ensure incorporation of all potential sites of occurrence. Areas designated as yellowcheek darter critical habitat include only stream channels within the ordinary high water line and do not E:\FR\FM\16OCR2.SGM 16OCR2 Federal Register / Vol. 77, No. 200 / Tuesday, October 16, 2012 / Rules and Regulations tkelley on DSK3SPTVN1PROD with RULES2 contain any developed areas or structures. We are designating as critical habitat four units that we have determined were occupied at the time of listing and contain sufficient elements of physical or biological features to support lifehistory processes essential to the conservation of the yellowcheek darter. All units contain all of the identified elements of physical or biological features and support multiple lifehistory processes. Chucky Madtom We are designating critical habitat in areas within the geographical area occupied by the Chucky madtom at the time of listing in 2011. We are not designating any areas outside the geographical areas occupied by the Chucky madtom at the time of listing because the historical range, beyond currently occupied areas, is not well known. We used information from surveys and reports prepared by Conservation Fisheries, Inc., and the Tennessee Valley Authority to identify the specific locations occupied by the Chucky madtom. Currently, occupied habitat for the species is limited and isolated. At the time of listing, the current range of the Chucky madtom was restricted to an approximately 3-km (1.8-mi) reach of Little Chucky Creek in Greene County, Tennessee. Following the identification of the specific locations occupied by the Chucky madtom, we determined the appropriate length of stream segments by identifying the upstream and downstream limits of these occupied sections necessary for the conservation of the species. To set the upstream and downstream limits of the single critical habitat unit, we identified landmarks (bridges, confluences, and road crossings) above and below the upper and lowermost reported locations of the Chucky madtom in Little Chucky Creek to ensure incorporation of all potential sites of occurrence. The critical habitat areas were then mapped using ARCGIS to produce the critical habitat unit map. We are designating as critical habitat a single stream reach in Little Chucky Creek, which is occupied habitat. This stream reach comprises the entire current known range of the Chucky madtom. The unit contains one or more of the physical or biological features in the appropriate quantity and spatial arrangement essential to the conservation of this species and supports multiple life-history processes for the Chucky madtom. The area designated for critical habitat for the Chucky madtom includes only the VerDate Mar<15>2010 17:42 Oct 15, 2012 Jkt 229001 stream channel within the ordinary high water line and does not contain any developed areas or structures. Laurel Dace We are designating critical habitat in areas within the geographical area occupied by the laurel dace at the time of listing in 2011. We are not designating any areas outside the geographical area occupied by the laurel dace because occupied areas are sufficient for the conservation of the species. We used information from surveys and reports prepared by the Tennessee Valley Authority, Tennessee Wildlife Resources Agency, University of Tennessee, and the Service to identify the specific locations occupied by the laurel dace. Currently, occupied habitat for the species is limited and isolated. The species is currently located in three independent systems: Soddy Creek, the Sale Creek system, and the Piney River system. Following the identification of the specific locations occupied by the laurel dace, we determined the appropriate length of stream segments by identifying the upstream and downstream limits of these occupied sections necessary for the conservation of the laurel dace. Because populations of laurel dace are isolated due to dispersal barriers, to set the upstream and downstream limits of each critical habitat unit, we identified landmarks (bridges, confluences, and road crossings), and in some instances latitude and longitude coordinates and section lines above and below the upper and lowermost reported locations of the laurel dace, in each stream reach to ensure incorporation of all potential sites of occurrence. The designated critical habitat areas were then mapped using ARCGIS to produce the critical habitat unit maps. We are designating as critical habitat all stream reaches in occupied habitat. We have defined occupied habitat as those stream reaches occupied at the time of listing and still known to be occupied by the laurel dace; these stream reaches comprise the entire known range of the laurel dace. Areas designated as critical habitat for the laurel dace include only stream channels within the ordinary high water line and do not contain any developed areas or structures. We are designating as critical habitat six units that we determined were occupied at the time of listing and contain all of the identified elements of physical or biological features to support life-history processes essential to the conservation of the laurel dace. Six units are designated based on PO 00000 Frm 00023 Fmt 4701 Sfmt 4700 63625 sufficient elements of physical or biological features present to support laurel dace life-history processes. All units contain all of the identified elements of physical or biological features and support multiple lifehistory processes. When determining critical habitat boundaries, we made every effort to avoid including developed areas such as lands covered by buildings, pavement, and other structures because such lands usually lack physical and biological features for the listed species. The scale of the maps we prepared under the parameters for publication within the Code of Federal Regulations may not reflect the exclusion of such developed lands. Any such lands inadvertently left inside critical habitat boundaries shown on the maps of this final rule have been excluded by text in the rule and are not designated as critical habitat. Therefore, a Federal action involving these lands would not trigger section 7 consultation with respect to critical habitat and the requirement of no adverse modification unless the specific action would affect the physical and biological features in the adjacent critical habitat. The designation of critical habitat does not imply that lands outside of critical habitat do not play an important role in the conservation of the species. The critical habitat designation is defined by the map or maps, as modified by any accompanying regulatory text, presented at the end of this document in the rule portion. We include more detailed information on the boundaries of the critical habitat designation in the preamble of this document. We will make the coordinates or plot points or both on which each map is based available to the public on https://www.regulations. gov at Docket No. FWS–R4–ES–2011– 0074, on our Internet sites at https:// www.fws.gov/cookeville/, and at the field office responsible for the designation (see FOR FURTHER INFORMATION CONTACT above). We are designating as critical habitat lands that we have determined are occupied at the time of listing and contain sufficient physical or biological features to support life-history processes essential for the conservation of these five species, and lands outside of the geographical area occupied at the time of listing that we have determined are essential for the conservation of the Cumberland darter. Units are designated based on sufficient elements of physical or biological features being present to support the Cumberland darter, rush darter, yellowcheck darter, Chucky madtom, and laurel dace life processes. E:\FR\FM\16OCR2.SGM 16OCR2 63626 Federal Register / Vol. 77, No. 200 / Tuesday, October 16, 2012 / Rules and Regulations Some units contain all of the identified elements of physical or biological features and support multiple life processes. Some units contain only some elements of the physical or biological features necessary to support the five species’ particular use of that habitat. Final Critical Habitat Designation Cumberland Darter We are designating 15 units as critical habitat for the Cumberland darter. These units, which constitute our current best assessment of areas that meet the definition of critical habitat for the Cumberland darter, are: (1) Bunches Creek, (2) Calf Pen Fork, (3) Youngs Creek, (4) Barren Fork, (5) Indian Creek, (6) Cogur Fork, (7) Kilburn Fork, (8) Laurel Fork, (9) Laurel Creek, (10) Elisha Branch, (11) Jenneys Branch, (12) Wolf Creek, (13) Jellico Creek, (14) Rock Creek, and (15) Capuchin Creek. Table 1 shows the occupancy of the units and ownership of the designated areas for the Cumberland darter. TABLE 1—OCCUPANCY AND OWNERSHIP OF THE DESIGNATED CRITICAL HABITAT UNITS FOR THE CUMBERLAND DARTER Private ownership rkm (rmi) Federal, state, county, city ownership rkm (rmi) Location Occupied 1 ............................................. 2 ............................................. 3 ............................................. 4 ............................................. 5 ............................................. 6 ............................................. 7 ............................................. 8 ............................................. 9 ............................................. 10 ........................................... 11 ........................................... 12 ........................................... 13 ........................................... 14 ........................................... 15 ........................................... Bunches Creek ..................... Calf Pen Fork ....................... Youngs Creek ....................... Barren Fork ........................... Indian Creek ......................... Cogur Fork ............................ Kilburn Fork .......................... Laurel Fork ........................... Laurel Creek ......................... Elisha Branch ....................... Jenneys Branch .................... Wolf Creek ............................ Jellico Creek ......................... Rock Creek ........................... Capuchin Creek .................... Yes ........................................ Yes ........................................ Yes ........................................ Yes ........................................ No ......................................... Yes ........................................ No ......................................... Yes ........................................ Yes ........................................ Yes ........................................ Yes ........................................ Yes ........................................ Yes ........................................ Yes ........................................ Yes ........................................ 2.7 0.9 1.3 0.6 0 0 (4.6) 0 0 (1.7) (0.6) (0.8) (0.4) 0 0 (3.9) (5.1) (2.4) (2.1) 5.8 (3.6) 2.9 (1.8) 0 6.3 (3.9) 4.0 (2.5) 5.9 (3.7) 3.7 (2.3) 2.2 (1.4) 8.8 (5.5) 2.1 (1.3) 3.1 (1.9) 0 3.3 (2.1) 2.2 (1.4) 0.8 (0.5) Total ............................... tkelley on DSK3SPTVN1PROD with RULES2 Unit ............................................... ............................................... ........................ ........................ We present brief descriptions of all units and reasons why they meet the definition of critical habitat for the Cumberland darter. The designated critical habitat units include the stream channels of the creek within the ordinary high water line. As defined in 33 CFR 329.11, the ordinary high water mark on nontidal rivers is the line on the shore established by the fluctuations of water and indicated by physical characteristics, such as a clear, natural line impressed on the bank; shelving; changes in the character of soil; destruction of terrestrial vegetation; the presence of litter and debris; or other appropriate means that consider the characteristics of the surrounding areas. Critical habitat units are either in private ownership or public ownership. In Kentucky and Tennessee, the owners of adjacent land also own the land under non-navigable streams (e.g., the stream channel or bottom), but the water is under State jurisdiction. Portions of the public-to-private boundary for units 6, 7, 8, 9, and 13 were located along the mid-line of the stream channel; lengths for these segments were divided equally between public and private ownership. VerDate Mar<15>2010 17:42 Oct 15, 2012 Jkt 229001 7.4 6.3 8.2 3.9 3.4 Unit 1: Bunches Creek, Whitley County, Kentucky This unit is located between Kentucky Highway 90 (KY 90) and the Cumberland River and includes 5.8 rkm (3.6 rmi) of Bunches Creek from the confluence of Seminary Branch and Amos Falls Branch downstream to its confluence with the Cumberland River. Live Cumberland darters have been captured at two sites within Unit 1 (Thomas 2007, pp. 11–12), specifically at the mouth of Bunches Creek and just below its confluence with Calf Pen Fork. This unit was included in the geographical area occupied by the species at the time of listing and contains elements of essential physical or biological features. This unit is located entirely on Federal lands within the DBNF. Land and resource management decisions and activities within the DBNF are guided by DBNF’s LRMP (USFS 2004, pp. 1–14). The lower portion of Bunches Creek (stream rkm 0 to 0.3 (rmi 0 to 0.1)) flows through a designated Kentucky Wild River corridor (KRS 146.200 to 146.360) that extends along an approximately 25.7 km (16 mi) reach of the Cumberland River. This Wild River corridor extends from Summer Shoals downstream to the backwaters of Lake Cumberland (KRS PO 00000 Frm 00024 Fmt 4701 Sfmt 4700 Total length rkm (rmi) 5.8 2.9 7.4 6.3 4.0 8.6 4.6 3.5 9.4 2.1 3.1 6.3 11.5 6.1 4.2 (3.6) (1.8) (4.6) (3.9) (2.5) (5.4) (2.9) (2.2) (5.9) (1.3) (1.9) (3.9) (7.2) (3.8) (2.6) 85.8 (53.5) 146.241). The Bunches CreekCumberland River confluence is located approximately 3.0 km (1.9 mi) upstream of Cumberland Falls. The Bunches Creek watershed is relatively undisturbed, and access is limited (no road crossings). The channel within Unit 1 is relatively stable, with excellent instream habitat (PCE 1). There is an abundance of pool and run habitats (PCE 1), with relatively silt-free sand and bedrock substrates (PCE 2) and adequate instream flows (PCE 3). Water quality is good to excellent (PCE 4), as evidenced by diverse fish and macroinvertebrate communities (PCE 5). Within Unit 1, the Cumberland darter and its habitat may require special management considerations or protection to address potential adverse effects associated with silviculturerelated activities, natural gas and oil exploration activities in headwater reaches, illegal off-road vehicle use and other recreational activities, nonpoint source pollution originating in headwater reaches, and canopy loss caused by infestations of the hemlock woolly adelgid. Unit 2: Calf Pen Fork, Whitley County, Kentucky This unit includes 2.9 rkm (1.8 rmi) of Calf Pen Fork, a tributary of Bunches E:\FR\FM\16OCR2.SGM 16OCR2 Federal Register / Vol. 77, No. 200 / Tuesday, October 16, 2012 / Rules and Regulations tkelley on DSK3SPTVN1PROD with RULES2 Creek, from its confluence with Polly Hollow downstream to its confluence with Bunches Creek. Live Cumberland darters have been captured in Calf Pen Fork just above its confluence with Bunches Creek (Thomas 2007, pp. 11– 12). This unit was included in the geographical area occupied by the species at the time of listing and contains elements of essential physical or biological features. This unit is located entirely on Federal lands within the DBNF. Land and resource management decisions and activities within the DBNF are guided by DBNF’s LRMP (USFS 2004, pp. 1–14). Similar to the watershed of Unit 1, the Calf Pen Fork watershed is relatively undisturbed, and access is limited (no road crossings). Within Unit 2, the channel is relatively stable, with excellent instream habitat (PCE 1), an abundance of run and pool habitats (PCE 1), relatively silt-free sand and bedrock substrates (PCE 2), and adequate instream flows (PCE 3). Water quality is good to excellent (PCE 4), with diverse fish and macroinvertebrate communities (PCE 5). Within Unit 2, the Cumberland darter and its habitat may require special management considerations or protection to address potential adverse effects associated with silviculturerelated activities, natural gas and oil exploration activities, illegal off-road vehicle use and other recreational activities, nonpoint source pollution arising from headwater reaches, and canopy loss caused by infestations of the hemlock woolly adelgid. Unit 3: Youngs Creek, Whitley County, Kentucky Unit 3 includes 7.4 rkm (4.6 rmi) of Youngs Creek from Brays Chapel Road downstream to its confluence with the Cumberland River. Live Cumberland darters have been captured within Unit 3 (Thomas 2007, pp. 11–12), specifically at the KY 204 bridge crossing. This unit was included in the geographical area occupied by the species at the time of listing and contains elements of essential physical or biological features. This unit is located entirely on private land. The watershed of Youngs Creek is less forested than Units 1 and 2, with scattered residences and small farms. The channel is relatively stable (PCE 1), but activities associated with agriculture, silviculture, and residential development have contributed to a more open riparian zone, increased bank erosion, and some siltation of instream habitats. Despite these impacts, Unit 3 continues to provide pool and run habitats with suitable sand and bedrock substrates for Cumberland darters to use VerDate Mar<15>2010 17:42 Oct 15, 2012 Jkt 229001 in spawning, foraging, and other behaviors (PCEs 1 and 2). Flow is adequate as measured during years with average rainfall (PCE 3), water quality is adequate (PCE 4), and macroinvertebrate prey items are present (PCE 5). Within this unit, the Cumberland darter and its habitat may require special management considerations or protection to address potential adverse effects caused by resource extraction (mining, silviculture, natural gas and oil exploration activities), agricultural activities (livestock), lack of adequate riparian buffers, perched road culverts or impassable road crossings (fords), construction and maintenance of State and county roads, illegal off-road vehicle use, nonpoint source pollution arising from a wide variety of human activities, and canopy loss caused by infestations of the hemlock woolly adelgid. Unit 4: Barren Fork, McCreary County, Kentucky Unit 4 includes 6.3 rkm (3.9 rmi) of Barren Fork from its confluence with an unnamed tributary downstream to its confluence with Indian Creek. Based on survey results by Thomas (2007, pp. 11– 12) and Stephens (2009, pp. 10–23), Barren Fork supports the most robust population of Cumberland darters within the species’ range. Over the past 4 years, over 75 Cumberland darters have been observed within this unit (Thomas 2007, pp. 11–12; Stephens 2009, pp. 10–23). This unit was included in the geographical area occupied by the species at the time of listing and contains elements of essential physical or biological features. This unit is located entirely on Federal lands within the DBNF. Land and resource management decisions and activities within the DBNF are guided by DBNF’s LRMP (USFS 2004, pp. 1– 14). In the summer and fall of 2008, the Barren Fork watershed was adversely affected by several large sedimentation events originating from a county park construction site in the headwaters of the basin. Inadequate site planning and poor BMP implementation allowed significant quantities of sediment to leave the construction site and enter headwater tributaries of Barren Fork. The sediment was carried downstream into the mainstem of Barren Fork, eventually affecting the entire reach of Unit 4. Until the construction site was stabilized in 2009, important spawning and foraging habitats for the Cumberland darter were degraded. Despite these significant adverse effects, habitat conditions have improved since 2008, and are now similar to those described for Units 1 PO 00000 Frm 00025 Fmt 4701 Sfmt 4700 63627 and 2. The watershed is mostly forested, with relatively stable channels (PCE 1), abundant pool and run habitats (PCE 1), relatively silt-free sand and bedrock substrates (PCE 2), adequate flow (PCE 3), adequate water quality (PCE 4), and a diverse macroinvertebrate community (PCE 5). Within this unit, the Cumberland darter and its habitat may require special management considerations or protection to address potential adverse effects caused by resource extraction (mining, silviculture, natural gas and oil exploration activities), lack of adequate riparian buffers, construction and maintenance of county roads, illegal offroad vehicle use, nonpoint source pollution arising from a wide variety of human activities, and canopy loss caused by infestations of the hemlock woolly adelgid. Unit 5: Indian Creek, McCreary County, Kentucky Unit 5 includes 4.0 rkm (2.5 rmi) of Indian Creek from its confluence with Strunk Branch, downstream to its confluence with Barren Fork. Live Cumberland darters have not been captured within Unit 5. This unit was not included in the geographical area occupied by the species at the time of listing, and it is not currently occupied by the species. This unit is located entirely on Federal lands within the DBNF. Land and resource management decisions and activities within the DBNF are guided by DBNF’s LRMP (USFS 2004, pp. 1– 14). This unit is located within the historical range of the species, and is adjacent to currently occupied areas where there is potential for natural dispersal and reoccupation by the Cumberland darter. This unit is essential for the conservation of the Cumberland darter because it provides additional habitat for population expansion and will promote connectivity and genetic exchange between adjacent units to the south (Unit 4, Barren Fork) and to the north (Unit 6, Cogur Fork). Unit 6: Cogur Fork, McCreary County, Kentucky Unit 6 includes 8.6 rkm (5.4 rmi) of Cogur Fork from its confluence with an unnamed tributary downstream to its confluence with Indian Creek. Live Cumberland darters have been captured at several locations within an approximately 1-km (0.62-mi) reach upstream of the KY 1045 road crossing (Thomas 2010, pers. comm.). This unit was included in the geographical area occupied by the species at the time of E:\FR\FM\16OCR2.SGM 16OCR2 63628 Federal Register / Vol. 77, No. 200 / Tuesday, October 16, 2012 / Rules and Regulations listing and contains elements of essential physical or biological features. The majority of this unit (5.9 rkm (3.7 rmi)) is in public ownership (DBNF), with the remainder of the unit (2.7 rkm (1.7 rmi)) in private ownership. Land and resource management decisions and activities within the DBNF are guided by DBNF’s LRMP (USFS 2004, pp. 1– 14). Cumberland darters have been captured within Unit 6, but the population is considered to be small (Thomas 2010, pers. comm.). From 2008 to present, the fauna has been bolstered through propagation and augmentation efforts by KDFWR, Conservation Fisheries, Inc. (CFI), and the Service (Thomas et al. 2010, p. 107). Initial brood stock were collected in 2008, with subsequent releases of propagated darters in 2009 (60 individuals (inds)) and 2010 (335 inds). Both tagged (propagated, 50 inds) and non-tagged (native, 4 inds) darters were observed during recent surveys in November 2010. Individuals tagged and released by KDFWR and CFI traveled distances ranging from 0.4 to 0.7 rkm (0.2 to 0.4 rmi) between their release date of September 22, 2010, and their recapture date of November 9, 2010 (period of 48 days) (Thomas 2010, pers. comm.). Similar to other units located entirely or predominately on the DBNF (Units 1, 2, 4, and 5), this unit has relatively stable channels (PCE 1), abundant pool and run habitats (PCE 1), relatively siltfree sand and bedrock substrates (PCE 2), adequate flow (PCE 3), adequate water quality (PCE 4), and a diverse macroinvertebrate community (PCE 5). Within this unit, the Cumberland darter and its habitat may require special management considerations or protection to address potential adverse effects caused by resource extraction (mining, silviculture, natural gas and oil exploration activities), lack of adequate riparian buffers, construction and maintenance of county roads, illegal offroad vehicle use, nonpoint source pollution arising from a wide variety of human activities, and canopy loss caused by infestations of the hemlock woolly adelgid. tkelley on DSK3SPTVN1PROD with RULES2 Unit 7: Kilburn Fork, McCreary County, Kentucky Unit 7 includes 4.6 rkm (2.9 rmi) of Kilburn Fork from its confluence with an unnamed tributary downstream to its confluence with Laurel Fork. Live Cumberland darters have not been captured within Unit 7 over the last 15 years (Thomas 2007, pp. 11–12). This unit was not included in the geographical area occupied by the VerDate Mar<15>2010 17:42 Oct 15, 2012 Jkt 229001 species at the time of listing, and it is not currently occupied by the species. The majority of this unit (3.7 rkm (2.3 rmi)) is in public ownership (DBNF), with the remainder of the unit (0.9 rkm (0.6 rmi)) in private ownership. Land and resource management decisions and activities within the DBNF are guided by DBNF’s LRMP (USFS 2004, pp. 1– 14). This unit is located within the historical range of the species, and is adjacent to currently occupied areas where there is potential for natural dispersal and reoccupation by the Cumberland darter. This unit is essential for the conservation of the Cumberland darter because it provides additional habitat for population expansion and will promote connectivity and genetic exchange between adjacent units to the south (Unit 6, Cogur Fork) and to the north (Unit 8, Laurel Fork). Unit 8: Laurel Fork, McCreary County, Kentucky Unit 8 includes 3.5 rkm (2.2 rmi) of Laurel Fork from its confluence with Tom Fork downstream to its confluence with Indian Creek. Live Cumberland darters have been captured within Unit 8 (Thomas 2007, pp. 11–12), specifically just upstream of its confluence with Kilburn Fork. This unit was included in the geographical area occupied by the species at the time of listing and contains elements of essential physical or biological features. The majority of this unit (2.2 rkm (1.4 rmi)) is in public ownership (DBNF), with the remainder of the unit (1.3 rkm (0.8 rmi)) in private ownership. Land and resource management decisions and activities within the DBNF are guided by DBNF’s LRMP (USFS 2004, pp. 1– 14). Similar to other streams with major portions of their basins in the DBNF, the watershed of Laurel Fork is relatively intact, and access is limited (limited roads and residential development). The channel within Unit 8 is relatively stable (PCE 1), with suitable instream habitat to support the life-history functions of the Cumberland darter. There is an abundance of pool and run habitats (PCE 1), with relatively silt-free sand and bedrock substrates (PCE 2) and adequate flows (PCE 3). Water quality is good to excellent (PCE 4), as evidenced by diverse fish and macroinvertebrate communities (PCE 5). Within this unit, the Cumberland darter and its habitat may require special management considerations or protection to address potential adverse effects caused by resource extraction (mining, silviculture, natural gas and oil PO 00000 Frm 00026 Fmt 4701 Sfmt 4700 exploration activities), lack of adequate riparian buffers, construction and maintenance of county roads, illegal offroad vehicle use, nonpoint source pollution arising from a wide variety of human activities, and canopy loss caused by infestations of the hemlock woolly adelgid. Unit 9: Laurel Creek, McCreary County, Kentucky Unit 9 includes 9.4 rkm (5.9 rmi) of Laurel Fork Creek from Laurel Fork Reservoir downstream to its confluence with Jenneys Branch. Live Cumberland darters have been captured within Unit 9 (Thomas 2007, pp. 11–12), specifically just upstream of its confluence with Elisha Branch and at the KY 478 bridge crossing. This unit was included in the geographical area occupied by the species at the time of listing and contains elements of essential physical or biological features. The majority of this unit (8.8 rkm (5.5 rmi)) is in public ownership (DBNF), with the remainder of the unit (0.6 rkm (0.4 rmi)) in private ownership. Land and resource management decisions and activities within the DBNF are guided by DBNF’s LRMP (USFS 2004, pp. 1–14). The watershed of Laurel Creek is relatively intact, with extensive forest cover and few roads. The channel within Unit 9 is relatively stable (PCE 1), with suitable instream habitat to support the life-history functions of the Cumberland darter. There is an abundance of pool and run habitats (PCE 1), with relatively silt-free sand and bedrock substrates (PCE 2) and adequate instream flows (PCE 3). Water quality is good to excellent (PCE 4), with a diverse macroinvertebrate community (PCE 5). Within this unit, the Cumberland darter and its habitat may require special management considerations or protection to address potential adverse effects caused by resource extraction (mining, silviculture, natural gas and oil exploration activities), lack of adequate riparian buffers, construction and maintenance of county roads, illegal offroad vehicle use, nonpoint source pollution arising from a wide variety of human activities, and canopy loss caused by infestations of the hemlock woolly adelgid. Unit 10: Elisha Branch, McCreary County, Kentucky Unit 10 includes 2.1 rkm (1.3 rmi) of Elisha Branch from its confluence with an unnamed tributary (36.70132, –84.40843) downstream to its confluence with Laurel Creek. Live Cumberland darters have been captured within Unit 10 (Thomas 2007, pp. 11– E:\FR\FM\16OCR2.SGM 16OCR2 Federal Register / Vol. 77, No. 200 / Tuesday, October 16, 2012 / Rules and Regulations tkelley on DSK3SPTVN1PROD with RULES2 12), specifically just upstream of its confluence with Laurel Creek. This unit was included in the geographical area occupied by the species at the time of listing and contains elements of essential physical or biological features. This unit is located entirely on public lands within the DBNF. Land and resource management decisions and activities within the DBNF are guided by DBNF’s LRMP (USFS 2004, pp. 1– 14). The watershed of Elisha Branch is relatively intact, with extensive forest cover and no road crossings. Within Unit 10, the channel is relatively stable, with excellent instream habitat (PCE 1), an abundance of run and pool habitats (PCE 1), relatively silt-free sand and bedrock substrates (PCE 2), and adequate flows (PCE 3). Water quality is good to excellent (PCE 4), with diverse fish and macroinvertebrate communities (PCE 5). Within this unit, the Cumberland darter and its habitat may require special management considerations or protection to address potential adverse effects caused by resource extraction (mining, silviculture, natural gas and oil exploration activities), lack of adequate riparian buffers, illegal off-road vehicle use, nonpoint source pollution arising from a wide variety of human activities, and canopy loss caused by infestations of the hemlock woolly adelgid. Unit 11: Jenneys Branch, McCreary County, Kentucky Unit 11 includes 3.1 rkm (1.9 rmi) of Jenneys Branch from its confluence with an unnamed tributary (36.73680, –84.42420) downstream to its confluence with Laurel Creek. Live Cumberland darters have been captured within Unit 11 (Thomas 2007, pp. 11– 12), specifically just upstream of its confluence with Laurel Creek. This unit was included in the geographical area occupied by the species at the time of listing and contains elements of essential physical or biological features. This unit is located entirely on public lands within the DBNF. Land and resource management decisions and activities within the DBNF are guided by DBNF’s LRMP (USFS 2004, pp. 1– 14). The watershed of Jenneys Branch is relatively intact and remote, with extensive forest cover and only one road crossing in its headwaters. Within Unit 11, the stream channel is relatively stable, with excellent instream habitat (PCE 1), an abundance of run and pool habitats (PCE 1), relatively silt-free sand and bedrock substrates (PCE 2), and adequate instream flows (PCE 3). Water quality is good to excellent (PCE 4), VerDate Mar<15>2010 17:42 Oct 15, 2012 Jkt 229001 with diverse fish and macroinvertebrate communities (PCE 5). Within this unit, the Cumberland darter and its habitat may require special management considerations or protection to address potential adverse effects caused by resource extraction (mining, silviculture, natural gas and oil exploration activities), lack of adequate riparian buffers, illegal off-road vehicle use, nonpoint source pollution arising from a wide variety of human activities, and canopy loss caused by infestations of the hemlock woolly adelgid. Unit 12: Wolf Creek, Whitley County, Kentucky Unit 12 includes 6.3 rkm (3.9 rmi) of Wolf Creek from its confluence with Sheep Creek downstream to Wolf Creek River Road. Live Cumberland darters have been captured within Unit 12 just downstream of the Little Wolf Creek River Road bridge crossing (Thomas 2007, pp. 11–12). This unit was included in the geographical area occupied by the species at the time of listing and contains elements of essential physical or biological features. This unit is located entirely on private land. Land use within the watershed of Wolf Creek is similar to Unit 3, and Unit 12 is less forested than units within the DBNF. The channel is relatively stable (PCE 1), but activities associated with agriculture, silviculture, and residential development have contributed to a more open riparian zone, increased bank erosion, and some siltation of instream habitats. Despite these impacts, Unit 12 continues to provide pool and run habitats with suitable sand and bedrock substrates for Cumberland darters to use in spawning, foraging, and other behaviors (PCEs 1 and 2). Flow is adequate as measured during years with average rainfall (PCE 3), water quality is adequate (PCE 4), and macroinvertebrate prey items are present (PCE 5). Within this unit, the Cumberland darter and its habitat may require special management considerations or protection to address potential adverse effects caused by resource extraction (mining, silviculture, natural gas and oil exploration activities), agricultural activities (livestock), lack of adequate riparian buffers, perched road culverts or impassable road crossings (fords), construction and maintenance of State and county roads, illegal off-road vehicle use, and nonpoint source pollution arising from a wide variety of human activities. Unit 13: Jellico Creek, McCreary County, Kentucky, and Scott County, Tennessee Unit 13 includes 11.5 rkm (7.2 rmi) of Jellico Creek from its confluence with PO 00000 Frm 00027 Fmt 4701 Sfmt 4700 63629 Scott Branch, Scott County, Tennessee, downstream to its confluence with Capuchin Creek, McCreary County, Kentucky. Live Cumberland darters have been captured within Unit 13 at the Jellico Creek and Shut-In Branch confluence and at the Gum Fork and Jellico Creek confluence (O’Bara 1988, p. 12; Thomas 2007, pp. 11–12). This unit was included in the geographical area occupied by the species at the time of listing and contains elements of essential physical or biological features. A portion of this unit in Kentucky (3.3 rkm (2.1 rmi)) is in public ownership (DBNF), with the remainder of the unit (8.2 rkm (5.1 rmi)) in private ownership. Land and resource management decisions and activities within the DBNF are guided by DBNF’s LRMP (USFS 2004, pp. 1–14). Land use within the watershed of Jellico Creek is predominately forest, with scattered residences and small farms (cattle and hay production). The channel in Unit 13 is relatively stable (PCE 1), but activities associated with agriculture, silviculture, and residential development have contributed to a more open riparian zone, increased bank erosion, and some siltation of instream habitats. Despite these impacts, Unit 13 continues to provide pool and run habitats with suitable sand and bedrock substrates for Cumberland darters to use in spawning, foraging, and other behaviors (PCEs 1 and 2). Flow is adequate as measured during years with average rainfall (PCE 3), water quality is adequate (PCE 4), and macroinvertebrate prey items are present (PCE 5). Within this unit, the Cumberland darter and its habitat may require special management considerations or protection to address potential adverse effects caused by resource extraction (mining, silviculture, natural gas and oil exploration activities), agricultural activities (livestock), lack of adequate riparian buffers, perched road culverts or impassable road crossings (fords), construction and maintenance of State and county roads, illegal off-road vehicle use, and nonpoint source pollution arising from a wide variety of human activities. Unit 14: Rock Creek, McCreary County, Kentucky Unit 14 includes 6.1 rkm (3.8 rmi) of Rock Creek from its confluence with Sid Anderson Branch downstream to its confluence with Jellico Creek. Live Cumberland darters have been captured within Unit 14 just above the mouth of Rock Creek at its confluence with Jellico Creek (Thomas 2007, pp. 11–12). This unit was included in the geographical area occupied by the species at the time E:\FR\FM\16OCR2.SGM 16OCR2 63630 Federal Register / Vol. 77, No. 200 / Tuesday, October 16, 2012 / Rules and Regulations of listing and contains elements of essential physical or biological features. A portion of this unit (2.2 rkm (1.4 rmi)) is in public ownership (DBNF), but the majority (3.9 rkm (2.4 rmi)) is in private ownership. Land and resource management decisions and activities within the DBNF are guided by DBNF’s LRMP (USFS 2004, pp. 1–14). Most of the watershed is forested (especially along the ridge tops), but the valley floor has several open fields and is easily accessible via Little Rock Creek Road. Portions of the channel in Unit 14 have been modified by beaver (with some ponding), but it continues to be relatively stable, with excellent instream habitat (PCE 1), an abundance of run and pool habitats (PCE 1), relatively siltfree sand and bedrock substrates (PCE 2), and adequate instream flows (PCE 3). Water quality is good to excellent (PCE 4), with diverse fish and macroinvertebrate communities (PCE 5). Within this unit, the Cumberland darter and its habitat may require special management considerations or protection to address potential adverse effects caused by resource extraction (mining, silviculture, natural gas and oil exploration activities), agricultural activities (livestock), lack of adequate riparian buffers, perched road culverts or impassable road crossings (fords), construction and maintenance of State and county roads, illegal off-road vehicle use, nonpoint source pollution arising from a wide variety of human activities, and canopy loss caused by infestations of the hemlock woolly adelgid. Unit 15: Capuchin Creek, McCreary and Whitley Counties, Kentucky, and Campbell County, Tennessee Unit 15 includes 4.2 rkm (2.6 rmi) of Capuchin Creek from its confluence with Hatfield Creek downstream to its confluence with Jellico Creek. Live Cumberland darters have been captured within Unit 15 at the KentuckyTennessee State line (Thomas 2007, pp. 11–12). This unit was included in the geographical area occupied by the species at the time of listing and contains elements of essential physical or biological features. A portion of this unit in Kentucky (0.8 rkm (0.5 rmi)) is in public ownership (DBNF); the remainder in Kentucky and Tennessee (3.4 rkm (2.1 rmi)) is in private ownership. Land and resource management decisions and activities within the DBNF are guided by DBNF’s LRMP (USFS 2004, pp. 1–14). Land use within the watershed of Capuchin Creek is predominately forest, with scattered residences and small farms (cattle and hay production). The channel in Unit 15 is relatively stable (PCE 1), but activities associated with agriculture, silviculture, and residential development have contributed to a more open riparian zone, increased bank erosion, and some siltation of instream habitats. Despite these impacts, Unit 15 continues to provide pool and run habitats with suitable sand and bedrock substrates for Cumberland darters to use in spawning, foraging, and other behaviors (PCEs 1 and 2). Flow is adequate as measured during years with average rainfall (PCE 3), water quality is adequate (PCE 4), and macroinvertebrate prey items are present (PCE 5). Within this unit, the Cumberland darter and its habitat may require special management considerations or protection to address potential adverse effects caused by resource extraction (mining, silviculture, natural gas and oil exploration activities), agricultural activities (livestock), lack of adequate riparian buffers, perched road culverts or impassable road crossings (fords), construction and maintenance of State and county roads, illegal off-road vehicle use, and nonpoint source pollution arising from a wide variety of human activities. Rush Darter We are designating eight units as critical habitat for the rush darter. The below units, which constitute our current best assessment of areas that meet the definition of critical habitat for the rush darter, are: (1) Beaver Creek, (2) Unnamed Tributary to Beaver Creek and Highway 79 Spring Site, (3) Tapawingo or Penny Spring and Spring Run, (4) Wildcat Branch, (5) Mill Creek, (6) Doe Branch, (7) Little Cove Creek, Cove Spring Site, and (8) Bristow Creek. Table 2 shows the occupancy of the units and ownership of the designated areas for the rush darter. TABLE 2—OCCUPANCY AND OWNERSHIP OF THE DESIGNATED CRITICAL HABITAT UNITS FOR THE RUSH DARTER Private ownership rkm (rmi) Unit Location Occupied 1 ....................... 2 ....................... Yes ........................... Yes ........................... 0.9 (0.6) 3.7 (2.3) Yes ........................... 0.6 (0.4) 8 ....................... Beaver Creek .................... Unnamed Tributary to Beaver Creek and Highway 79 Spring Site. Tapawingo or Penny Spring and Spring Run. Wildcat Branch .................. Mill Creek .......................... Doe Branch ....................... Little Cove Creek, Cove Spring, Spring Run. Bristow Creek .................... Total* ........ ........................................... 3 ....................... 4 5 6 7 ....................... ....................... ....................... ....................... Yes Yes Yes Yes ........................... ........................... ........................... ........................... 6.6 5.9 4.3 11.2 (4.1) (3.7) (2.7) (6.1) Yes ........................... 10.2 (6.3) ................................... State, county, city ownership rkm (rmi) Total length rkm (rmi) Total area** ha (ac) <0.1 (<0.1) 0.7 (0.4) 1.0 (0.6) 4.4 (2.7) .................... 0.1 (0.3) <0.1 (<0.06) 0.6 (0.4) 6.7 (16.5) <0.1 <0.1 <0.1 <0.1 (<0.06) (<0.06) (<0.06) (<0.06) 6.6 5.9 4.3 11.2 .................... 44.2 (26.6) ........................ .................... .................... .................... 5.1 (12.7) 10.2 (6.3) <0.1 (<0.06) (4.1) (3.7) (2.7) (6.1) 11.9 (29.5) tkelley on DSK3SPTVN1PROD with RULES2 * Totals may not sum due to rounding. ** Total area in ha (ac) are in private ownership. We present brief descriptions of each unit and reasons why they meet the definition of critical habitat below. The designated critical habitat units include the stream channels of the creek within the ordinary high water line, and the VerDate Mar<15>2010 17:42 Oct 15, 2012 Jkt 229001 flooded spring pool in the case of Tapawingo or Penny Springs (Jefferson County), Unnamed Tributary to Beaver Creek (Jefferson County), and Cove Springs (Etowah County). As defined in 33 CFR 329.11, the ordinary high water PO 00000 Frm 00028 Fmt 4701 Sfmt 4700 line on nontidal rivers is the line on the shore established by the fluctuations of water and indicated by physical characteristics such as a clear, natural water line impressed on the bank; shelving; changes in the character of E:\FR\FM\16OCR2.SGM 16OCR2 Federal Register / Vol. 77, No. 200 / Tuesday, October 16, 2012 / Rules and Regulations tkelley on DSK3SPTVN1PROD with RULES2 soil; destruction of terrestrial vegetation; the presence of litter and debris; or other appropriate means that consider the characteristics of the surrounding areas. In Alabama, the riparian landowner owns the stream to the middle of the channel for non-navigable streams and rivers. For the spring pools, the area was determined and delineated by the presence of emergent vegetation patterns as noted on aerial photographs. Unit 1: Beaver Creek, Jefferson County, Alabama Unit 1 includes 1.0 rkm (0.6 rmi) of Beaver Creek from the confluence with Dry Creek, downstream to the confluence with Turkey Creek. This unit was included in the geographical area occupied by the species at the time of listing and contains elements of essential physical or biological features. Almost 0.9 rkm (0.6 rmi), or 94 percent of this area is privately owned. The remaining 0.1 rkm (< 0.1 rmi), or 6 percent, is publicly owned by the City of Pinson or Jefferson County in the form of bridge crossings and road easements. Beaver Creek contains adequate bottom substrate and emergent vegetation for rush darters to use in spawning, foraging, and other life processes (PCE 2). Beaver Creek makes available additional habitat and spawning sites, and offers connectivity with other rush darter populations within the Highway 79 Spring System site and the Unnamed Tributary to Beaver Creek (PCE 1). Beaver Creek provides habitat for the rush darters with adequate number of pools, riffles, runs (PCE 1), and emergent vegetation (PCE 2). These geomorphic structures provide the species with spawning, foraging, and resting areas (PCE 1), along with good water quality, quantity, and flow, which support the normal life stages and behavior of the rush darter (PCEs 3 and 4), the species’ prey sources (PCE 5), and associated aquatic vegetation. Threats to the rush darter and its habitat at Beaver Creek that may require special management of the PBFs include the potential of: Urbanization activities (such as channel modification for flood control, construction of impoundments, and gravel extraction) that could result in increased bank erosion; significant changes in the existing flow regime due to inadequate stormwater management, water diversion, or water withdrawal; significant alteration of water quality; and significant changes in stream bed material composition and quality as a result of construction projects and maintenance activities, destruction of emergent vegetation, off-road vehicle VerDate Mar<15>2010 17:42 Oct 15, 2012 Jkt 229001 use, sewer, gas and water easements, bridge and road construction and maintenance, culvert and pipe installation, and other watershed and floodplain disturbances that release sediments or nutrients into the water. There are three road crossings over Beaver Creek (Pinson Valley Parkway, Old Bradford Road, and Spring Street) that at times may limit the overall connectivity and movement of the species within this unit. Movement might be limited due to changes in flow regime and habitat, including emergent vegetation, water quality, water quantity, and stochastic events such as drought. Populations of rush darters are small and isolated within specific habitat sites of Beaver Creek. Unit 2: Unnamed Tributary to Beaver Creek and Highway 79 Spring Site, Jefferson County, Alabama Unit 2 includes 4.4 rkm (2.7 rmi) of the Unnamed Tributary of Beaver Creek and two spring runs. The site begins at the Section 1 and 2 (T16S, R2W) line, as taken from the U.S. Geological Survey 7.5 topographical map (Pinson quadrangle), downstream to its confluence with Dry Creek, and includes a spring run beginning at the springhead (33.67449, -86.69300) just northwest of Old Pinson Road and intersecting with the Unnamed Tributary to Beaver Creek on the west side of Highway 79, and a spring associated wetland (0.1 ha, 0.33 ac) within the headwaters, south of Pinson Heights Road, flowing 0.9 km (0.05 mi) from the northwest (33.668173, -86.708577) and adjoining to the Unnamed Tributary (33.667344,86.707429). This unit was included in the geographical area occupied by the species at the time of listing and contains elements of essential physical or biological features. Almost 3.7 rkm (2.3 rmi), or 85 percent, of this area is privately owned. The remaining 0.7 rkm (0.4 rmi), or 15 percent, is publicly owned by the City of Pinson or Jefferson County in the form of bridge crossings and road easements. The Unnamed Tributary to Beaver Creek supports populations of rush darters and is a feeder stream to Beaver Creek (PCEs 1 and 2). The Unnamed Tributary to Beaver Creek has been intensely geomorphically changed by man over the last 100 years. The majority of this reach has been channelized for flood control, as it runs parallel to Highway 79. There are several bridge crossings and culverts that interfere with connectivity, and the reach has a history of industrial uses along the bank. However, owing to the PO 00000 Frm 00029 Fmt 4701 Sfmt 4700 63631 groundwater that constantly supplies this reach with clean and flowing water (PCEs 3 and 4), the reach has been able to support significant emergent vegetation in shallow water on the margins to support several rush darter populations. The headwaters of the Unnamed Tributary to Beaver Creek is characterized by natural flows that are attributed to an abundance of spring groundwater discharges contributing adequate water quality, water quantity, emergent vegetation and appropriate substrates (PCEs 1, 2, 3, and 4). The 0.13 ha (0.33 ac) spring run and associated wetlands is characterized by adequate spring water flow and associated vegetation (PCEs 1 and 2). Increasing the connectivity of the rush darter populations (PCE 1) throughout the reaches of this tributary is an essential conservation requirement as it would decrease the vulnerability of these populations to stochastic threats. The Highway 79 Spring Site is the type locality for the species (Bart 2004, p. 194), supporting populations of rush darters and providing supplemental water quantity to the Unnamed Tributary to Beaver Creek (PCEs 1 and 3). The reach contains adequate bottom substrate and emergent vegetation for rush darters to use in spawning, foraging, and other life processes (PCE 2). The Highway 79 Spring site provides habitat and spawning sites, and offers connectivity with rush darter populations in the Unnamed Tributary to Beaver Creek (PCE 1). Threats to the rush darter and its habitat that may require special management and protection of PBFs are: Urbanization activities (such as channel modification for flood control, and gravel extraction) that could result in increased bank erosion; significant changes in the existing flow regime due to inadequate stormwater management and impoundment construction, water diversion, or water withdrawal; significant alteration of water quality; and significant changes in stream bed material composition and quality as a result of construction projects and road maintenance activities, off-road vehicle use, sewer, gas and water easements, bridge construction, culvert and pipe installation, and other watershed and floodplain disturbances that release sediments or nutrients into the water. Unit 3: Tapawingo or Penny Spring and Spring Run, Jefferson County, Alabama Unit 3 includes 0.6 rkm (0.4 rmi) of spring run, historically called Tapawingo Plunge, along with 6.7 ha (16.5 ac) of flooded spring basin making up Penny Springs. Unit 3 is located south of Turkey Creek, north of Bud E:\FR\FM\16OCR2.SGM 16OCR2 63632 Federal Register / Vol. 77, No. 200 / Tuesday, October 16, 2012 / Rules and Regulations tkelley on DSK3SPTVN1PROD with RULES2 Holmes Road, and just east of Tapawingo Trail Road. The east boundary is at (33.69903, -86.66528): 1.0 km (0.6 mi) west of Section Line 28 to 29 (T15S, R1W) (U.S. Geological Survey 7.5 topographical map (Pinson quadrangle)). This unit was included in the geographical area occupied by the species at the time of listing and contains elements of essential physical or biological features. All 0.6 rkm (0.4 rmi) and 6.7 ha (16.5 ac) of Unit 3 is privately owned except for that small amount that is publicly owned in the form of bridge crossings and road easements. The Tapawingo or Penny Spring complex consists of an abundance of springs that drain directly into Turkey Creek by means of a large spring run at the old railroad crossing and Tapawingo Springs Road (PCEs 1 and 2). The historical spring run discharge ranges from 0.03 to 2.4 cubic meters per second (m3/s) (500 to 38,800 gallons per minute (gal/min)) (Chandler and Moore 1987, p. 49), and there is an abundance of emergent vegetation (PCEs 1, 2, and 3). Historically small numbers of rush darter have been collected in the spring area. Threats to the rush darter and its habitat that may require special management and protection of physical and biological features are: Urbanization activities (such as channel modification for flood control, vegetation management, and gravel extraction) that could result in increased bank erosion; significant changes in the existing flow regime due to inadequate stormwater management and impoundment construction, water diversion, or water withdrawal; significant alteration of water quality; introduced species; significant alteration or destruction of aquatic and emergent vegetation; and significant changes in stream bed material composition and quality as a result of construction projects and maintenance activities, off-road vehicle use, sewer, gas and water easements, bridge construction, culvert and pipe installation, and other watershed and floodplain disturbances that release sediments or nutrients into the water. Unit 4: Wildcat Branch, Winston County, Alabama Unit 4 includes 6.6 rkm (4.1 rmi) of Wildcat Branch from the streams headwaters just east of Winston County Road 29 to the confluence with Clear Creek. This unit was included in the geographical area occupied by the species at the time of listing and contains elements of essential physical or biological features. Almost 6.6 rkm (4.1 rmi), or 100 percent, of this area is VerDate Mar<15>2010 17:42 Oct 15, 2012 Jkt 229001 privately owned except for that small amount that is publicly owned by Winston County in the form of bridge crossings and road easements. Wildcat Branch provides habitat for rush darters with a network of small pools and spring runs, along with an abundance of emergent vegetation (PCE 1 and 2). These geomorphic structures provide the species with spawning, foraging, and resting areas (PCE 1), along with good water quality, quantity, and flow (PCEs 3 and 4), which support the normal life stages and behavior of the rush darter and the species’ prey sources (PCE 5). Rush darters are consistently collected in Wildcat Branch, but not in large numbers. Threats that may require special management and protection of physical and biological features include: Poor silviculture and agriculture practices; road and roadside maintenance; local residential development and urbanization activities (such as channel modification for flood control and gravel extraction) that could result in increased bank erosion; significant changes in the existing flow regime due to inadequate stormwater management and impoundment construction, water diversion, or water withdrawal; significant alteration of water quality; significant alteration or destruction of aquatic and emergent vegetation; and significant changes in stream bed material composition and quality as a result of construction projects and maintenance activities, off-road vehicle use, sewer, gas and water easements, bridge construction, culvert and pipe installation, and other watershed and floodplain disturbances that release sediments or nutrients into the water. Unit 5: Mill Creek, Winston County, Alabama Unit 5 includes 5.9 rkm (3.7 rmi) of Mill Creek from the stream headwaters just east of Winston County Road 195 to the confluence with Clear Creek. This unit was included in the geographical area occupied by the species at the time of listing and contains elements of essential physical or biological features. Almost 5.9 rkm (3.7 rmi), or 100 percent, of this area is privately owned except for that small amount that is publicly owned by Winston County in the form of bridge crossings and road easements. Mill Creek provides habitat for the rush darter with a network of small pools, and spring runs, along with an abundance of emergent vegetation (PCE 1 and 2). These geomorphic structures provide the species with spawning, foraging, and resting areas (PCE 1), along with good water quality, quantity, PO 00000 Frm 00030 Fmt 4701 Sfmt 4700 and flow (PCEs 3 and 4), which support the normal life stages and behavior of the rush darter and the species’ prey sources (PCE 5). Rush darters are consistently collected in Mill Creek. Threats that may require special management and protection of PBFs include: Poor silviculture and agriculture practices; road and roadside maintenance; local residential development and urbanization activities (such as channel modification for flood control and gravel extraction) that could result in increased bank erosion; significant changes in the existing flow regime due to inadequate stormwater management and impoundment construction, water diversion, or water withdrawal; significant alteration of water quality; significant alteration or destruction of aquatic and emergent vegetation; and significant changes in stream bed material composition and quality as a result of construction projects and maintenance activities, offroad vehicle use, sewer, gas and water easements, bridge construction, culvert and pipe installation, and other watershed and floodplain disturbances that release sediments or nutrients into the water. Unit 6: Doe Branch, Winston County, Alabama Unit 6 includes 4.3 rkm (2.7 rmi) of Doe Branch from the stream headwaters north and west of Section Line 23 and 14 (R9W, T11S; Popular Springs Quadrangle) to the confluence with Wildcat Branch. This unit was included in the geographical area occupied by the species at the time of listing and contains elements of essential physical or biological features. Almost 4.3 rkm (2.7 rmi), or 100 percent, of this area is privately owned except for that small amount that is publicly owned by Winston County in the form of bridge crossings and road easements. Doe Branch provides habitat for the rush darter with a small network of small pools, and spring runs, along with adequate emergent vegetation (PCE 1 and 2). These geomorphic structures provide the species with spawning, foraging, and resting areas (PCE 1), along with good water quality, quantity, and flow (PCEs 3 and 4), which support the normal life stages and behavior of the rush darter and the species’ prey sources (PCE 5). Although the species is considered rare in Doe Branch, there have been few collection attempts in the stream with a few darters captured (Mettee et al. 1989, p. 61). Doe Branch contains habitat for the species and is considered occupied. The stream joins Wildcat Branch before flowing into Clear Creek. E:\FR\FM\16OCR2.SGM 16OCR2 Federal Register / Vol. 77, No. 200 / Tuesday, October 16, 2012 / Rules and Regulations Threats that may require special management and protection of physical and biological features include: Poor silviculture and agriculture practices; road and roadside maintenance; local residential development and urbanization activities (such as channel modification for flood control and gravel extraction) that could result in increased bank erosion; significant changes in the existing flow regime due to inadequate stormwater management and impoundment construction, water diversion, or water withdrawal; significant alteration of water quality; significant alteration or destruction of aquatic and emergent vegetation; and significant changes in stream bed material composition and quality as a result of construction projects and maintenance activities, off-road vehicle use, sewer, gas and water easements, bridge construction, culvert and pipe installation, and other watershed and floodplain disturbances that release sediments or nutrients into the water. tkelley on DSK3SPTVN1PROD with RULES2 Unit 7: Little Cove Creek, Cove Spring and Spring Run, Etowah County, Alabama Unit 7 includes 11.2 rkm (6.1 rmi) of Little Cove Creek and the Cove Spring run system along with 5.1 ha (12.7 ac) of the spring run floodplain. Specifically, the Little Cove Creek section (11.0 rkm (6.0 rmi)) is from the intersection of Etowah County Road 179 near the creek headwaters, downstream to its confluence with the Locust Fork River. The Cove Spring and spring run section includes 0.2 rkm (0.1 rmi) of the spring run from the springhead at the West Etowah Water and Fire Authority pumping station on Cove Spring Road to the confluence with Little Cove Creek and includes 5.1 ha (12.7 ac) of the spring run floodplain due south of the pumping facility. This unit was included in the geographical area occupied by the species at the time of listing and contains elements of essential physical or biological features. All 11.2 rkm (6.1 rmi) of Unit 7 is privately owned except for that small amount that is publicly owned by Etowah County in the form of bridge crossings and road easements. Little Cove Creek provides habitat for the rush darter with a network of small pools, and spring runs, along with an abundance of emergent aquatic vegetation (PCE 1 and 2). These VerDate Mar<15>2010 17:42 Oct 15, 2012 Jkt 229001 geomorphic structures provide the species with spawning, foraging, and resting areas (PCE 1), along with good water quality, quantity, and flow (PCEs 3 and 4), which support the normal life stages and behavior of the rush darter and the species’ prey sources (PCE 5). Rush darters are collected in Little Cove Creek, but not in large numbers. The Cove Spring and Spring Run site supports small populations of rush darters and provides supplemental water quantity to Little Cove Creek (PCEs 1 and 3). Water quantity from the spring averages 0.2 m3/s (3,000 gal/min) (Snead 2011, pers. comm.) (PCE 4). The spring contains an abundance of gravel and silt along with significant emergent vegetation for rush darters to use in spawning, foraging, and other life processes (PCE 2). The Cove Spring and Spring Run site provides habitat and spawning sites, and offers connectivity with rush darter populations to Little Cove Creek (PCE 1). Threats that may require special management and protection of physical and biological features include: Road and roadside maintenance; agricultural and silviculture activities that could result in increased bank erosion; significant changes in the existing flow regime due to inadequate stormwater management; impoundment construction, water diversion, or water withdrawal for livestock and irrigation; significant alteration or destruction of aquatic and emergent vegetation; significant alteration of water quality due to release of chlorinated water and other chemicals into the Cove Spring run or Little Cove Creek by the water pumping facility or other sources; and off-road vehicle use, sewer, gas and water easements, bridge construction, culvert and pipe installation, and other watershed and floodplain disturbances that release sediments or nutrients into the water. Unit 8: Bristow Creek, Etowah County, Alabama Unit 8 includes 10.2 rkm (6.3 rmi) of Bristow Creek beginning from its intersection with Fairview Cove Road, downstream to the confluence with the Locust Fork River. This unit was included in the geographical area occupied by the species at the time of listing and contains elements of essential physical or biological features. All 10.2 rkm (6.3 rmi) of Bristow Creek, PO 00000 Frm 00031 Fmt 4701 Sfmt 4700 63633 beginning at the bridge at Fairview Road, downstream to the confluence with the Locust Fork River is privately owned except for that small amount that is publicly owned by Etowah County in the form of bridge crossings and road easements. Bristow Creek, although channelized in some locations, provides habitat and connectivity for the rush darters (PCE 1). Locations within the creek have the necessary stream attributes of some small pools, and spring runs (PCE 1) along with emergent vegetation (PCE 2). These geomorphic structures provide the species with spawning, foraging, and resting areas (PCE 1), along with supplemental water quantity and flow (PCE 3), which support the normal life stages and behavior of the rush darter and the species’ prey sources (PCE 5). The rush darter is considered rare in Bristow Creek, but sampling has been limited. Threats that may require special management and protection of physical and biological features include: Road and roadside maintenance; agricultural and silviculture activities that could result in increased bank erosion; significant changes in the existing flow regime due to inadequate stormwater management; significant alteration or destruction of aquatic and emergent vegetation; impoundment construction, water diversion, or water withdrawal for livestock and irrigation; and off-road vehicle use, sewer, gas and water easements, septic tank drain fields, bridge construction and maintenance, culvert and pipe installation, and other watershed and floodplain disturbances that release sediments or nutrients into the water. Yellowcheek Darter We are designating four units as critical habitat for the yellowcheek darter. These units, all of which are on the Little Red River, constitute our current best assessment of areas that meet the definition of critical habitat for the yellowcheek darter and are as follows: (1) Middle Fork, (2) South Fork, (3) Archey Fork, and (4) Devil’s Fork (includes Turkey Creek and Beech Fork). Table 3 shows the occupancy of the units and ownership of the designated areas for the yellowcheek darter. E:\FR\FM\16OCR2.SGM 16OCR2 63634 Federal Register / Vol. 77, No. 200 / Tuesday, October 16, 2012 / Rules and Regulations TABLE 3—OCCUPANCY AND OWNERSHIP OF THE DESIGNATED CRITICAL HABITAT UNITS FOR THE YELLOWCHEEK DARTER Unit 1 2 3 4 Location Private ownership rkm (rmi) Occupied ............................................. ............................................. ............................................. ............................................. Middle Fork Little Red River South Fork Little Red River .. Archey Fork Little Red River Devil’s Fork Little Red River Yes Yes Yes Yes Total ............................... ............................................... ............................................... We present brief descriptions of all units and reasons why they meet the definition of critical habitat for the yellowcheek darter. The designated critical habitat units include the river channels within the ordinary high water line. As defined in 33 CFR 329.11, the ordinary high water mark on nontidal rivers is the line on the shore established by the fluctuations of water and indicated by physical characteristics, such as a clear, natural line impressed on the bank; shelving; changes in the character of soil; destruction of terrestrial vegetation; the presence of litter and debris; or other appropriate means that consider the characteristics of the surrounding areas. In Arkansas, the state owns the stream channel within the ordinary high water lines for navigable streams and rivers, including all streams within the critical habitat designation for yellowcheek darter. For each stream reach designated as a critical habitat unit, the upstream and downstream boundaries are described generally below. tkelley on DSK3SPTVN1PROD with RULES2 Unit 1: Middle Fork of the Little Red River, Searcy, Stone, and Van Buren Counties, Arkansas Unit 1 includes 73.2 rkm (45.5 rmi) of the Middle Fork of the Little Red River from Searcy County Road 167 approximately 3.4 km (2.1 mi) southwest of Leslie, Arkansas, to a point on the stream 7.7 rkm (4.8 rmi) downstream (35.66515, -92.25942) of the Arkansas Highway 9 crossing of the Middle Fork near Shirley, Arkansas. The lower boundary coincides with the 140.5-m (461-ft) elevation of the conservation pool for Greers Ferry Lake where suitable habitat becomes inundated by Greers Ferry Lake and no longer supports the yellowcheek darter. Live yellowcheek darters have been collected from four sites within Unit 1. The uppermost site is immediately below the Hwy 65 Bridge near Leslie, Arkansas, and the lowermost site is immediately below the Hwy 9 Bridge in Shirley, Arkansas (Wine and Blumenshine 2002, p. 18). This unit was included in the geographical area VerDate Mar<15>2010 17:42 Oct 15, 2012 Jkt 229001 ........................................ ........................................ ........................................ ........................................ occupied by the species at the time of listing and contains elements of essential physical or biological features. Approximately 100 percent of Unit 1 is privately owned. County and State road crossings exist in all three counties and account for less than one percent of total Unit 1 ownership. This unit contains stable riffle areas of moderate to swift velocity (PCE 1) that are relatively silt-free (PCE 2) and maintain surface flows year round (PCE 3). Such characteristics are necessary for reproductive and sheltering requirements of yellowcheek darters. Water quality within this unit is also characterized by moderate temperatures, relatively high dissolved oxygen concentrations, moderate pH, and low levels of pollutants (PCE 4), which support abundant populations of aquatic macroinvertebrates that serve as prey items for yellowcheek darters (PCE 5). Threats that may require special management and protection of physical and biological features include: Changes in the existing stream ecology due to activities associated with natural gas development, livestock grazing, county road maintenance, timber harvest, water diversion, gravel mining, and rock harvesting operations. Alteration of water quality and changes in streambed material composition from any other activities that would release sediments, nutrients, or toxins into the water also act as threats to the yellowcheek darter. Unit 2: South Fork of the Little Red River, Van Buren County, Arkansas Unit 2 includes 33.8 rkm (21.0 rmi) of the South Fork of the Little Red River from Van Buren County Road 9 three miles north of Scotland, Arkansas, to a point on the stream (35.57364, -92.42718) approximately 5.5 rkm (3.4 rmi) downstream of U.S. Highway 65 in Clinton, Arkansas, where suitable habitat becomes inundated by Greers Ferry Lake and no longer supports the yellowcheek darter. Live yellowcheek darters have been collected from four sites along the South Fork Little Red River, including the uppermost boundary at the County Road 9 Bridge PO 00000 Frm 00032 Fmt 4701 Sfmt 4700 73.2 33.3 28.2 28.0 State, county, city ownership rkm (rmi) (45.5) (20.7) (17.5) (17.4) 0 0.5 (0.3) 0.3 (0.2) 0 162.7 (101.1) 0.8 (0.5) Total length rkm (rmi) 73.2 33.8 28.5 28.0 (45.5) (21.0) (17.7) (17.4) 163.5 (101.6) and just above the Hwy 65 Bridge in Clinton, Arkansas. This unit was included in the geographical area occupied by the species at the time of listing and contains elements of essential physical or biological features. Approximately 33.3 rkm (20.7 rmi), or >99 percent, of Unit 2 is privately owned, and 0.5 rkm (0.3 rmi) is within the boundary of property owned by the city of Clinton, Arkansas. County and State road crossings account for less than one percent of total Unit 2 ownership. This unit contains stable riffle areas of moderate to swift velocity (PCE 1) that are relatively silt-free (PCE 2) and maintain surface flows year round (PCE 3). Such characteristics are necessary for reproductive and sheltering requirements of yellowcheek darters. Water quality within this unit is also characterized by moderate temperatures, relatively high dissolved oxygen concentrations, moderate pH, and low levels of pollutants (PCE 4), which support abundant populations of aquatic macroinvertebrates that serve as prey items for yellowcheek darters (PCE 5). Threats that may require special management and protection of physical and biological features include: Changes in the existing stream ecology due to activities associated with natural gas development, livestock grazing, county road maintenance, timber harvest, water diversion, and gravel mining. Alteration of water quality and changes in streambed material composition from any other activities that would release sediments, nutrients, or toxins into the water also act as threats to the yellowcheek darter. Unit 3: Archey Fork of the Little Red River, Van Buren County, Arkansas Unit 3 includes 28.5 rkm (17.7 rmi) of the Archey Fork of the Little Red River from its junction with South Castleberry Creek to its confluence with the South Fork of the Little Red River near Clinton, Arkansas. Live yellowcheek darters have been collected just above the confluence of the Archey and South Forks (Wine et al. 2000, p. 10) and at a E:\FR\FM\16OCR2.SGM 16OCR2 Federal Register / Vol. 77, No. 200 / Tuesday, October 16, 2012 / Rules and Regulations point 15.3 rkm (9.5 rmi) above the confluence (Brophy and Stoeckel 2006, p. 3). This unit was included in the geographical area occupied by the species at the time of listing and contains elements of essential physical or biological features. Unit 3 is nearly 100 percent privately owned with the exception of a small city park in Clinton, Arkansas. County and State road crossings and portions within the city of Clinton, Arkansas, account for less than one percent of total Unit 3 ownership. This unit contains stable riffle areas of moderate to swift velocity (PCE 1) that are relatively silt-free (PCE 2) and maintain surface flows year round (PCE 3). Such characteristics are necessary for reproductive and sheltering requirements of yellowcheek darters. Water quality within this unit is also characterized by moderate temperatures, relatively high dissolved oxygen concentrations, moderate pH, and low levels of pollutants (PCE 4), which support abundant populations of aquatic macroinvertebrates that serve as prey items for yellowcheek darters (PCE 5). Threats that may require special management and protection of physical and biological features include: Changes in the existing stream ecology due to activities associated with natural gas development, livestock grazing, county road maintenance, timber harvest, water diversion, and gravel mining. Alteration of water quality and changes in streambed material composition from any other activities that would release sediments, nutrients, or toxins into the water also act as threats to the yellowcheek darter. Unit 4: Devil’s Fork of the Little Red River (including Turkey Creek and Beech Fork), Stone and Cleburne Counties, Arkansas Unit 4 includes 28.0 rkm (17.4 rmi) of stream from Stone County Road 21 approximately 3 miles north of Prim, Arkansas, to a point (35.63556, -92.03400) on the Devil’s Fork approximately 5.1 km (3.2 mi) southeast of Woodrow, Arkansas, where suitable habitat becomes inundated by Greers Ferry Lake and no longer supports the yellowcheek darter. Live yellowcheek darters have not been collected at the uppermost site (Turkey Creek) since 1999 (Mitchell et al. 2002, p. 131). However, Wine and Blumenshine (2002, p. 11) did detect yellowcheek darters in the Beech Fork, and it is likely that the species persists in very low numbers within the upper portions of the watershed during normal flow years. This unit was included in the geographical area occupied by the species at the time of listing and contains elements of essential physical or biological features. Approximately 100 percent of Unit 4 is privately owned. County road crossings exist in both counties and account for less than one percent of total Unit 4 ownership. This unit contains stable riffle areas of moderate to swift velocity (PCE 1) that are relatively silt-free (PCE 2) and 63635 maintain surface flows year round (PCE 3). Such characteristics are necessary for reproductive and sheltering requirements of yellowcheek darters. Water quality within this unit is also characterized by moderate temperatures, relatively high dissolved oxygen concentrations, moderate pH, and low levels of pollutants (PCE 4), which support abundant populations of aquatic macroinvertebrates that serve as prey items for yellowcheek darters (PCE 5). Threats that may require special management and protection of physical and biological features include: Changes in the existing stream ecology due to activities associated with natural gas development, livestock grazing, county road maintenance, timber harvest, water diversion, and gravel mining. Alteration of water quality and changes in streambed material composition from any other activities that would release sediments, nutrients, or toxins into the water also act as threats to the yellowcheek darter. Chucky Madtom We are designating one unit as critical habitat for the Chucky madtom. The unit, which constitutes our current best assessment of the area that meets the definition of critical habitat for the Chucky madtom, is Little Chucky Creek, which was occupied at the time of listing. Table 4 shows the occupancy of the unit and ownership of the designated unit for the Chucky madtom. TABLE 4—OCCUPANCY AND OWNERSHIP OF THE DESIGNATED CRITICAL HABITAT UNIT FOR THE CHUCKY MADTOM Unit Private ownership rkm (rmi) State, county, city ownership rkm (rmi) Total length rkm (rmi) tkelley on DSK3SPTVN1PROD with RULES2 Occupied Little Chucky Creek .............. Total ............................... Location Yes ........................................ 31.8 (19.7) <0.1 (<0.06) 31.9 (19.8) ............................................... ............................................... ........................ ........................ 31.9 (19.8) We present a brief description of the unit and reasons why it meets the definition of critical habitat for the Chucky madtom. The critical habitat unit includes the river channel within the ordinary high water line. As defined in 33 CFR 329.11, the ordinary high water mark on nontidal rivers is the line on the shore established by the fluctuations of water and indicated by physical characteristics, such as a clear, natural line impressed on the bank; shelving; changes in the character of soil; destruction of terrestrial vegetation; the presence of litter and debris; or other appropriate means that consider the characteristics of the surrounding VerDate Mar<15>2010 17:42 Oct 15, 2012 Jkt 229001 areas. Lands in the critical habitat unit are either in private ownership or public ownership (Greene County road easements). In Tennessee, landowners own the land under non-navigable streams (e.g., the stream channel or bottom), but the water is under State jurisdiction. Unit 1: Little Chucky Creek, Greene County, Tennessee This unit includes 31.9 rkm (19.8 rmi) of Little Chucky Creek from its confluence with an unnamed tributary, downstream to its confluence with the Nolichucky River, at the Greene and Cocke County line, Tennessee. Although PO 00000 Frm 00033 Fmt 4701 Sfmt 4700 the Chucky madtom has not been observed since 2004, we still consider it to exist in Little Chucky Creek. Observations of the species have always been sporadic, and it is a cryptic species that is hard to locate. This unit was included in the geographical area occupied by the species at the time of listing and contains elements of essential physical or biological features. Almost 31.9 rkm (19.8 rmi), or 100 percent, of this area is privately owned except for that small amount that is publicly owned by Greene County in the form of bridge crossings and road easements. E:\FR\FM\16OCR2.SGM 16OCR2 63636 Federal Register / Vol. 77, No. 200 / Tuesday, October 16, 2012 / Rules and Regulations This unit contains stable riffle and run areas of moderate to swift velocity (PCE 1); flat gravel, cobble, and slabrock boulders that are relatively silt-free (PCE 2); and surface flows that are maintained year round (PCE 3). Such characteristics are necessary for reproductive and sheltering requirements of Chucky madtoms. Water quality within this unit is also characterized by moderate temperatures, relatively high dissolved oxygen concentrations, moderate pH, and low levels of pollutants (PCE 4), which support abundant populations of aquatic macroinvertebrates that serve as and county roads, gravel mining, and nonpoint source pollution arising from a wide variety of human activities. prey items for the Chucky madtom (PCE 5). This critical habitat unit is almost entirely located on private property and is not presently under the special management or protection provided by a legally operative plan or agreement for the conservation of the species. Various activities in or adjacent to the critical habitat unit described in this rule may affect one or more of the PBFs. Features in this critical habitat designation that may require special management are due to threats posed by agricultural activities (e.g., row crops and livestock), lack of adequate riparian buffers, construction and maintenance of State Laurel Dace We are designating six units as critical habitat for the laurel dace. The units, which constitute our current best assessment of areas that meet the definition of critical habitat for the laurel dace, are: (1) Bumbee Creek, (2) Youngs Creek, (3) Moccasin Creek, (4) Cupp Creek, (5) Horn Branch, and (6) Soddy Creek. Table 5 shows the occupancy of the units and ownership of the designated areas for the laurel dace. TABLE 5—OCCUPANCY AND OWNERSHIP OF THE DESIGNATED CRITICAL HABITAT UNITS FOR THE LAUREL DACE Unit 1 2 3 4 5 6 Location Private ownership rkm (rmi) Occupied ............................................. ............................................. ............................................. ............................................. ............................................. ............................................. Bumbee Creek ...................... Youngs Creek ....................... Moccasin Creek .................... Cupp Creek .......................... Horn Branch ......................... Soddy Creek ......................... Yes Yes Yes Yes Yes Yes Total ............................... ............................................... ............................................... tkelley on DSK3SPTVN1PROD with RULES2 We present brief descriptions of all units and reasons why they meet the definition of critical habitat for the laurel dace. The designated critical habitat units include the river channels within the ordinary high water line. As defined in 33 CFR 329.11, the ordinary high water mark on nontidal rivers is the line on the shore established by the fluctuations of water and indicated by physical characteristics, such as a clear, natural line impressed on the bank; shelving; changes in the character of soil; destruction of terrestrial vegetation; the presence of litter and debris; or other appropriate means that consider the characteristics of the surrounding areas. Lands in critical habitat units are either in private ownership or public ownership (county road easements). In Tennessee, landowners own the land under non-navigable streams (e.g., the stream channel or bottom), but the water is under State jurisdiction. Unit 1: Bumbee Creek, Bledsoe and Rhea Counties, Tennessee Unit 1 includes 7.8 rkm (4.8 rmi) of Bumbee Creek from its headwaters in Bledsoe County, downstream to its confluence with Mapleslush Branch in Rhea County, Tennessee. This unit was included in the geographical area occupied by the species at the time of listing and contains elements of essential physical or biological features. VerDate Mar<15>2010 17:42 Oct 15, 2012 Jkt 229001 ........................................ ........................................ ........................................ ........................................ ........................................ ........................................ 7.7 7.8 8.9 4.9 3.9 8.3 ........................ Almost 7.7 rkm (4.7 rmi), or 100 percent, of this area is privately owned except for that small amount that is publicly owned by Bledsoe and Rhea Counties in the form of bridge crossings and road easements. This unit contains stable headwater streams (PCE 1) that are relatively siltfree, contain cobble and slab-rock boulder substrates with canopy cover (PCE 2), and have surface flows that are maintained year round (PCE 3). Such characteristics are necessary for reproductive and sheltering requirements of laurel dace. Water quality within this unit is also characterized by moderate temperatures, relatively high dissolved oxygen concentrations, moderate pH, and low levels of pollutants (PCE 4), which support abundant populations of aquatic macroinvertebrates that serve as prey items for laurel dace (PCE 5). Various activities in or adjacent to these areas of critical habitat may affect one or more of the physical and biological features. Features in this critical habitat designation that may require special management are due to threats posed by resource extraction (coal and gravel mining, silviculture, natural gas and oil exploration activities), agricultural activities (row crops and livestock), lack of adequate riparian buffers, construction and maintenance of State and county roads, PO 00000 Frm 00034 Fmt 4701 Sfmt 4700 (4.7) (4.8) (5.5) (3.0) (2.4) (5.1) State, county, city ownership rkm (rmi) <0.1 <0.1 <0.1 <0.1 <0.1 <0.1 (<0.06) (<0.06) (<0.06) (<0.06) (<0.06) (<0.06) ........................ Total length rkm (rmi) 7.8 7.9 9.0 5.0 4.0 8.4 (4.8) (4.9) (5.6) (3.1) (2.5) (5.2) 42.2 (26.2) nonpoint source pollution arising from a wide variety of human activities, and canopy loss caused by infestations of the hemlock woolly adelgid. Unit 2: Youngs Creek, Bledsoe and Rhea Counties, Tennessee Unit 2 includes 7.9 rkm (4.9 rmi) of Youngs Creek from its headwaters in Bledsoe County, downstream to its confluence with Moccasin Creek in Rhea County, Tennessee. This unit was included in the geographical area occupied by the species at the time of listing and contains elements of essential physical or biological features. Almost 7.8 rkm (4.8 rmi), or 100 percent, of this area is privately owned except for that small amount that is publicly owned by Bledsoe and Rhea Counties in the form of bridge crossings and road easements. This unit contains stable headwater streams (PCE 1) that are relatively siltfree, contain cobble and slab-rock boulder substrates with canopy cover (PCE 2), and have surface flows that are maintained year round (PCE 3). Such characteristics are necessary for reproductive and sheltering requirements of laurel dace. Water quality within this unit is also characterized by moderate temperatures, relatively high dissolved oxygen concentrations, moderate pH, and low levels of pollutants (PCE 4), which E:\FR\FM\16OCR2.SGM 16OCR2 Federal Register / Vol. 77, No. 200 / Tuesday, October 16, 2012 / Rules and Regulations tkelley on DSK3SPTVN1PROD with RULES2 support abundant populations of aquatic macroinvertebrates that serve as prey items for laurel dace (PCE 5). Various activities in or adjacent to these areas of critical habitat may affect one or more of the physical and biological features. Features in this critical habitat designation that may require special management are due to threats posed by resource extraction (coal and gravel mining, silviculture, natural gas and oil exploration activities), agricultural activities (row crops and livestock), lack of adequate riparian buffers, construction and maintenance of State and county roads, nonpoint source pollution arising from a wide variety of human activities, and canopy loss caused by infestations of the hemlock woolly adelgid. Unit 3: Moccasin Creek, Bledsoe County, Tennessee Unit 3 includes 9.0 rkm (5.6 rmi) of Moccasin Creek from its headwaters downstream to 0.1 rkm (0.6 rmi) below its confluence with Lick Creek in Bledsoe County, Tennessee. This unit was included in the geographical area occupied by the species at the time of listing and contains elements of essential physical or biological features. Almost 8.9 rkm (5.5 rmi), or 100 percent, of this area is privately owned except for that small amount that is publicly owned by Bledsoe County in the form of bridge crossings and road easements. This unit contains stable headwater streams (PCE 1) that are relatively siltfree, contain cobble and slab-rock boulder substrates with canopy cover (PCE 2), and have surface flows that are maintained year round (PCE 3). Such characteristics are necessary for reproductive and sheltering requirements of laurel dace. Water quality within this unit is also characterized by moderate temperatures, relatively high dissolved oxygen concentrations, moderate pH, and low levels of pollutants (PCE 4), which support abundant populations of aquatic macroinvertebrates that serve as prey items for laurel dace (PCE 5). Various activities in or adjacent to these areas of critical habitat may affect one or more of the physical and biological features. Features in this critical habitat designation that may require special management are due to threats posed by resource extraction (coal and gravel mining, silviculture, natural gas and oil exploration activities), agricultural activities (row crops and livestock), lack of adequate riparian buffers, construction and maintenance of State and county roads, nonpoint source pollution arising from VerDate Mar<15>2010 17:42 Oct 15, 2012 Jkt 229001 a wide variety of human activities, and canopy loss caused by infestations of the hemlock woolly adelgid. Unit 4: Cupp Creek, Bledsoe County, Tennessee Unit 4 includes 5.0 rkm (3.1 rmi) of Cupp Creek from its headwaters downstream to its confluence with an unnamed tributary in Bledsoe County, Tennessee. This unit was included in the geographical area occupied by the species at the time of listing and contains elements of essential physical or biological features. Almost 4.9 rkm (3.0 rmi), or 100 percent, of this area is privately owned except for that small amount that is publicly owned by Bledsoe County in the form of bridge crossings and road easements. This unit contains stable headwater streams (PCE 1) that are relatively siltfree; contain cobble and slab-rock boulder substrates with canopy cover (PCE 2), and have surface flows that are maintained year round (PCE 3). Such characteristics are necessary for reproductive and sheltering requirements of laurel dace. Water quality within this unit is also characterized by moderate temperatures, relatively high dissolved oxygen concentrations, moderate pH, and low levels of pollutants (PCE 4), which support abundant populations of aquatic macroinvertebrates that serve as prey items for laurel dace (PCE 5). Various activities in or adjacent to these areas of critical habitat may affect one or more of the physical and biological features. Features in this critical habitat designation that may require special management are due to threats posed by resource extraction (coal and gravel mining, silviculture, natural gas and oil exploration activities), agricultural activities (row crops and livestock), lack of adequate riparian buffers, construction and maintenance of State and county roads, nonpoint source pollution arising from a wide variety of human activities, and canopy loss caused by infestations of the hemlock woolly adelgid. Unit 5: Horn Branch, Bledsoe County, Tennessee Unit 5 includes 4.0 rkm (2.5 rmi) of Horn Branch from its headwaters downstream to its confluence with Rock Creek in Bledsoe County, Tennessee. This unit was included in the geographical area occupied by the species at the time of listing and contains elements of essential physical or biological features. Almost 3.9 rkm (2.4 rmi), or 100 percent, of this area is privately owned except for that small amount that is publicly owned by PO 00000 Frm 00035 Fmt 4701 Sfmt 4700 63637 Bledsoe County in the form of bridge crossings and road easements. This unit contains stable headwater streams (PCE 1) that are relatively siltfree, contain cobble and slab-rock boulder substrates with canopy cover (PCE 2), and have surface flows that are maintained year round (PCE 3). Such characteristics are necessary for reproductive and sheltering requirements of laurel dace. Water quality within this unit is also characterized by moderate temperatures, relatively high dissolved oxygen concentrations, moderate pH, and low levels of pollutants (PCE 4), which support abundant populations of aquatic macroinvertebrates that serve as prey items for laurel dace (PCE 5). Various activities in or adjacent to these areas of critical habitat may affect one or more of the physical and biological features. Features in this critical habitat designation that may require special management are due to threats posed by resource extraction (coal and gravel mining, silviculture, natural gas and oil exploration activities), agricultural activities (row crops and livestock), lack of adequate riparian buffers, construction and maintenance of State and county roads, nonpoint source pollution arising from a wide variety of human activities, and canopy loss caused by infestations of the hemlock woolly adelgid. Unit 6: Soddy Creek, Sequatchie and Bledsoe Counties, Tennessee Unit 6 includes 8.4 rkm (5.2 rmi) of Soddy Creek from its headwaters in Sequatchie County, downstream to its confluence with Harvey Creek in Sequatchie County, Tennessee. This unit was included in the geographical area occupied by the species at the time of listing and contains elements of essential physical or biological features. Almost 8.3 rkm (5.1 rmi), or 100 percent, of this area is privately owned except for a small amount that is publicly owned by Sequatchie and Bledsoe Counties in the form of bridge crossings and road easements. This unit contains stable headwater streams (PCE 1) that are relatively siltfree, contain cobble and slab-rock boulder substrates with canopy cover (PCE 2), and have surface flows that are maintained year round (PCE 3). Such characteristics are necessary for reproductive and sheltering requirements of laurel dace. Water quality within this unit is also characterized by moderate temperatures, relatively high dissolved oxygen concentrations, moderate pH, and low levels of pollutants (PCE 4), which support abundant populations of E:\FR\FM\16OCR2.SGM 16OCR2 63638 Federal Register / Vol. 77, No. 200 / Tuesday, October 16, 2012 / Rules and Regulations aquatic macroinvertebrates that serve as prey items for laurel dace (PCE 5). Various activities in or adjacent to these areas of critical habitat may affect one or more of the physical and biological features. Features in this critical habitat designation that may require special management are due to threats posed by resource extraction (coal and gravel mining, silviculture, natural gas and oil exploration activities), agricultural activities (row crops and livestock), lack of adequate riparian buffers, construction and maintenance of State and county roads, nonpoint source pollution arising from a wide variety of human activities, and canopy loss caused by infestations of the hemlock woolly adelgid. tkelley on DSK3SPTVN1PROD with RULES2 Effects of Critical Habitat Designation Section 7 Consultation Section 7(a)(2) of the Act requires Federal agencies, including the Service, to ensure that any action they fund, authorize, or carry out is not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of designated critical habitat of such species. In addition, section 7(a)(4) of the Act requires Federal agencies to confer with the Service on any agency action which is likely to jeopardize the continued existence of any species proposed to be listed under the Act or result in the destruction or adverse modification of proposed critical habitat. Decisions by the 5th and 9th Circuits Court of Appeals have invalidated our regulatory definition of ‘‘destruction or adverse modification’’ (50 CFR 402.02) (see Gifford Pinchot Task Force v. U.S. Fish and Wildlife Service, 378 F.3d 1059 (9th Cir. 2004) and Sierra Club v. U.S. Fish and Wildlife Service et al., 245 F.3d 434, 442 (5th Cir. 2001)), and we do not rely on this regulatory definition when analyzing whether an action is likely to destroy or adversely modify critical habitat. Under the statutory provisions of the Act, we determine destruction or adverse modification on the basis of whether, with implementation of the proposed Federal action, the affected critical habitat would continue to serve its intended conservation role for the species. If a Federal action may affect a listed species or its critical habitat, the responsible Federal agency (action agency) must enter into consultation with us. Examples of actions that are subject to the section 7 consultation process are actions on State, tribal, local, or private lands that require a Federal permit (such as a permit from VerDate Mar<15>2010 17:42 Oct 15, 2012 Jkt 229001 the U.S. Army Corps of Engineers under section 404 of the Clean Water Act (33 U.S.C. 1251 et seq.) or a permit from the Service under section 10 of the Act) or that involve some other Federal action (such as funding from the Federal Highway Administration, Federal Aviation Administration, or the Federal Emergency Management Agency). Federal actions not affecting listed species or critical habitat, and actions on State, tribal, local, or private lands that are not Federally funded or authorized do not require section 7 consultation. As a result of section 7 consultation, we document compliance with the requirements of section 7(a)(2) through our issuance of: (1) A concurrence letter for Federal actions that may affect, but are not likely to adversely affect, listed species or critical habitat; or (2) A biological opinion for Federal actions that may affect, or are likely to adversely affect, listed species or critical habitat. When we issue a biological opinion concluding that a project is likely to jeopardize the continued existence of a listed species or destroy or adversely modify critical habitat, we provide reasonable and prudent alternatives to the project, if any are identifiable, that would avoid the likelihood of jeopardy or destruction or adverse modification of critical habitat. We define ‘‘reasonable and prudent alternatives’’ (at 50 CFR 402.02) as alternative actions identified during consultation that: (1) Can be implemented in a manner consistent with the intended purpose of the action, (2) Can be implemented consistent with the scope of the Federal agency’s legal authority and jurisdiction, (3) Are economically and technologically feasible, and (4) Would, in the Director’s opinion, avoid the likelihood of jeopardizing the continued existence of the listed species or avoid the likelihood of destroying or adversely modifying critical habitat. Reasonable and prudent alternatives can vary from slight project modifications to extensive redesign or relocation of the project. Costs associated with implementing a reasonable and prudent alternative are similarly variable. Regulations at 50 CFR 402.16 require Federal agencies to reinitiate consultation on previously reviewed actions in instances where we have listed a new species or subsequently designated critical habitat that may be affected and the Federal agency has retained discretionary involvement or control over the action (or the agency’s PO 00000 Frm 00036 Fmt 4701 Sfmt 4700 discretionary involvement or control is authorized by law). Consequently, Federal agencies sometimes may need to request reinitiation of consultation with us on actions for which formal consultation has been completed, if those actions with discretionary involvement or control may affect subsequently listed species or designated critical habitat. Application of the ‘‘Adverse Modification’’ Standard The key factor related to the adverse modification determination is whether, with implementation of the proposed Federal action, the affected critical habitat would continue to serve its intended conservation role for these species. Activities that may destroy or adversely modify critical habitat are those that alter the physical and biological features to an extent that appreciably reduces the conservation value of critical habitat for these species. As discussed above, the role of critical habitat is to support life-history needs of these species and provide for the conservation of these species. Section 4(b)(8) of the Act requires us to briefly evaluate and describe, in any proposed or final regulation that designates critical habitat, activities involving a Federal action that may destroy or adversely modify such habitat, or that may be affected by such designation. Activities that may affect critical habitat, when carried out, funded, or authorized by a Federal agency, should result in consultation for the Cumberland darter, rush darter, yellowcheek darter, Chucky madtom, and laurel dace. These activities include, but are not limited to: (1) Actions that would alter the geomorphology of stream habitats. Such activities could include, but are not limited to, instream excavation or dredging, impoundment, channelization, road and bridge construction, mining, and discharge of fill materials. These activities could cause aggradation or degradation of the channel bed elevation or significant bank erosion, result in entrainment or burial of these fishes, and cause other direct or cumulative adverse effects to these species. (2) Actions that would significantly alter the existing flow regime or water quantity. Such activities could include, but are not limited to, impoundment, water diversion, water withdrawal, and hydropower generation. These activities could eliminate or reduce the habitat necessary for growth and reproduction of these fishes. E:\FR\FM\16OCR2.SGM 16OCR2 Federal Register / Vol. 77, No. 200 / Tuesday, October 16, 2012 / Rules and Regulations 136) amended the Act to limit areas eligible for designation as critical habitat. Specifically, section 4(a)(3)(B)(i) of the Act (16 U.S.C. 1533(a)(3)(B)(i)) now provides: ‘‘The Secretary shall not designate as critical habitat any lands or other geographical areas owned or controlled by the Department of Defense, or designated for its use, that are subject to an integrated natural resources management plan prepared under section 101 of the Sikes Act (16 U.S.C. 670a), if the Secretary determines in writing that such plan provides a benefit to the species for which critical habitat is proposed for designation.’’ There were no Department of Defense lands with a completed INRMP within the proposed critical habitat designation. Therefore, we are not exempting lands from this final designation of critical habitat for the Cumberland darter, rush darter, yellowcheek darter, Chucky madtom, or laurel dace under section 4(a)(3)(B)(i) of the Act. Exemptions tkelley on DSK3SPTVN1PROD with RULES2 (3) Actions that would significantly alter water quantity or water quality (for example, temperature, pH, contaminants, and excess nutrients). Such activities could include, but are not limited to, hydropower discharges, or the release of chemicals, biological pollutants, or heated effluents into surface water or connected groundwater at a point source or by dispersed release (nonpoint source). These activities could alter water conditions that are beyond the tolerances of these fishes and result in direct or cumulative adverse effects to these species. (4) Actions that would significantly alter stream bed material composition and quality by increasing sediment deposition or filamentous algal growth. Such activities could include, but are not limited to, construction projects, livestock grazing, timber harvest, offroad vehicle use, and other watershed and floodplain disturbances that release sediments or nutrients into the water. These activities could eliminate or reduce habitats necessary for the growth and reproduction of these fishes by causing excessive sedimentation or nutrification. Section 4(b)(2) of the Act states that the Secretary shall designate and make revisions to critical habitat on the basis of the best available scientific data after taking into consideration the economic impact, national security impact, and any other relevant impact of specifying any particular area as critical habitat. The Secretary may exclude an area from critical habitat if he determines that the benefits of such exclusion outweigh the benefits of specifying such area as part of the critical habitat, unless he determines, based on the best scientific data available, that the failure to designate such area as critical habitat will result in the extinction of the species. In making that determination, the statute on its face, as well as the legislative history, is clear that the Secretary has broad discretion regarding which factor(s) to use and how much weight to give to any factor. In considering whether to exclude a particular area from the designation, we identify the benefits of including the area in the designation, identify the benefits of excluding the area from the designation, and evaluate whether the benefits of exclusion outweigh the benefits of inclusion. If the analysis indicates that the benefits of exclusion outweigh the benefits of inclusion, the Secretary may exercise his discretion to exclude the area only if such exclusion would not result in the extinction of the species. Application of Section 4(a)(3) of the Act The Sikes Act Improvement Act of 1997 (Sikes Act) (16 U.S.C. 670a) required each military installation that includes land and water suitable for the conservation and management of natural resources to complete an integrated natural resources management plan (INRMP) by November 17, 2001. An INRMP integrates implementation of the military mission of the installation with stewardship of the natural resources found on the base. Each INRMP includes: (1) An assessment of the ecological needs on the installation, including the need to provide for the conservation of listed species; (2) A statement of goals and priorities; (3) A detailed description of management actions to be implemented to provide for these ecological needs; and (4) A monitoring and adaptive management plan. Among other things, each INRMP must, to the extent appropriate and applicable, provide for fish and wildlife management; fish and wildlife habitat enhancement or modification; wetland protection, enhancement, and restoration where necessary to support fish and wildlife; and enforcement of applicable natural resource laws. The National Defense Authorization Act for Fiscal Year 2004 (Pub. L. 108– VerDate Mar<15>2010 17:42 Oct 15, 2012 Jkt 229001 Exclusions Application of Section 4(b)(2) of the Act PO 00000 Frm 00037 Fmt 4701 Sfmt 4700 63639 Exclusions Based on Economic Impacts Under section 4(b)(2) of the Act, we consider the economic impacts of specifying any particular area as critical habitat. In order to consider economic impacts, we prepared a draft economic analysis of the proposed critical habitat designation and related factors (Industrial Economics, Incorporated 2012). The draft analysis, dated May 1, 2012, was made available for public review from May 24, 2012, through June 25, 2012 (77 FR 30988). Following the close of the comment period, a final analysis (dated July 31, 2012) of the potential economic effects of the designation was developed taking into consideration the public comments and any new information (Industrial Economics, Incorporated 2012). The intent of the final economic analysis (FEA) is to identify and analyze the potential economic impacts associated with the critical habitat designation for these five species. The final economic analysis describes the economic impacts of all potential conservation efforts for the these five fishes; some of these costs will likely be incurred regardless of whether we designate critical habitat. The economic impact of the final critical habitat designation is analyzed by comparing scenarios both ‘‘with critical habitat’’ and ‘‘without critical habitat.’’ The ‘‘without critical habitat’’ scenario represents the baseline for the analysis, considering protections already in place for the species (e.g., under the Federal listing and other Federal, State, and local regulations). The baseline, therefore, represents the costs incurred regardless of whether critical habitat is designated. The ‘‘with critical habitat’’ scenario describes the incremental impacts associated specifically with the designation of critical habitat for the species. The incremental conservation efforts and associated impacts are those not expected to occur absent the designation of critical habitat for these species. In other words, the incremental costs are those attributable solely to the designation of critical habitat above and beyond the baseline costs; these are the costs we consider in the final designation of critical habitat when evaluating the benefits of excluding particular areas under section 4(b)(2) of the Act. The analysis looks retrospectively at baseline impacts incurred since these species were listed, and forecasts both baseline and incremental impacts likely to occur with the designation of critical habitat. For a further description of the methodology of the analysis, see the ‘‘Framework for E:\FR\FM\16OCR2.SGM 16OCR2 tkelley on DSK3SPTVN1PROD with RULES2 63640 Federal Register / Vol. 77, No. 200 / Tuesday, October 16, 2012 / Rules and Regulations the Analysis’’ section of the final economic analysis. The FEA also addresses how potential economic impacts are likely to be distributed, including an assessment of any local or regional impacts of habitat conservation and the potential effects of conservation activities on government agencies, private businesses, and individuals. The FEA measures lost economic efficiency associated with residential and commercial development and public projects and activities, such as economic impacts on water management and transportation projects, Federal lands, small entities, and the energy industry. Decisionmakers can use this information to assess whether the effects of the designation might unduly burden a particular group or economic sector. Finally, the FEA looks retrospectively at costs that have been incurred since 2011 (year of these species’ listing) (76 FR 48722), and considers those costs that may occur in the 20 years following the designation of critical habitat, which was determined to be the appropriate period for analysis because limited planning information was available for most activities to forecast activity levels for projects beyond a 20-year timeframe. The FEA quantifies economic impacts of the five fishes conservation efforts associated with the following categories of activity: coal mining; oil and natural gas development; agriculture, ranching, and silviculture; recreational uses; dredging, channelization, impoundments, dams, and diversions; transportation (roads, highways, bridges); and residential and commercial development. The FEA concluded that the types of conservation efforts requested by the Service during section 7 consultation regarding the five fishes were not expected to change due to critical habitat designation. The Service believes that results of consultation under the adverse modification and jeopardy standards are likely to be similar because: (1) The physical and biological features that define critical habitat are also essential for the survival of the five fishes; (2) the five fishes are limited or severely limited in their respective ranges; and (3) numbers of individuals in the surviving populations are small or very small. In addition, although two of the critical habitat units for the Cumberland darter are unoccupied, incremental impacts of the critical habitat designations will be limited for the following reasons: (1) Both units are currently occupied by the federally threatened blackside dace, Chrosomus cumberlandensis (listed as Phoxinus cumberlandensis); (2) both VerDate Mar<15>2010 17:42 Oct 15, 2012 Jkt 229001 units are situated at least partially within the DBNF, which is managed according to a land and resource management plan that includes specific measures to protect sensitive species; and (3) both unoccupied units are located within the same hydrologic unit as three other occupied critical habitat units (Cumberland darter units 4, 6, and 8). The FEA concludes that incremental impacts of critical habitat designation are limited to additional administrative costs of consultations and that indirect incremental impacts are unlikely to result from the designation of critical habitat for the five fishes. The present value of the total direct (administrative) incremental cost of critical habitat designation is $644,000 over the next 20 years assuming a 7 percent discount rate, or $56,800 on an annualized basis. Water quality management activities are likely to be subject to the greatest incremental impacts at $273,000 over the next 20 years, followed by transportation at $161,000; coal mining at $79,000; oil and natural gas development at $73,700; agriculture, ranching, and silviculture at $36,100; dredging, channelization, impoundments, dams, and diversions at $10,700; and recreation at $10,000 (Industrial Economics, Inc. 2012). In short, the FEA did not identify any disproportionate costs that are likely to result from the designation. Consequently, the Secretary is not exerting his discretion to exclude any areas from this designation of critical habitat for the five fishes based on economic impacts. A copy of the FEA with supporting documents may be obtained by contacting the Tennessee Ecological Services Field Office (see ADDRESSES) or by downloading from the Internet at https://www.regulations.gov. Exclusions Based on National Security Impacts Under section 4(b)(2) of the Act, we consider whether there are lands owned or managed by the Department of Defense where a national security impact might exist. In preparing this final rule, we have determined that the lands within the designation of critical habitat for the Cumberland darter, rush darter, yellowcheek darter, Chucky madtom, and laurel dace are not owned or managed by the Department of Defense, and, therefore, we anticipate no impact on national security. Consequently, the Secretary is not exerting his discretion to exclude any areas from this final designation based on impacts on national security. PO 00000 Frm 00038 Fmt 4701 Sfmt 4700 Exclusions Based on Other Relevant Impacts Under section 4(b)(2) of the Act, we consider any other relevant impacts, in addition to economic impacts and impacts on national security. We consider a number of factors, including whether the landowners have developed any HCPs or other management plans for the area, or whether there are conservation partnerships that would be encouraged by designation of, or exclusion from, critical habitat. In addition, we look at any tribal issues, and consider the government-togovernment relationship of the United States with tribal entities. We also consider any social impacts that might occur because of the designation. In preparing this final rule, we have determined that the yellowcheek darter is currently covered under a joint safe harbor agreement (SHA) and candidate conservation agreement with assurances (CCAA) in the upper Little Red River watershed in Arkansas along with the endangered speckled pocketbook mussel. The CCAA will convert to a SHA, as a result of the endangered status of the yellowcheek darter, and will be covered by an enhancement of survival permit, which expires January 1, 2044. The SHA is strictly voluntary on the part of participating private landowners, who can opt out of the agreement at any time. This agreement provides added benefits for the recovery of the yellowcheek darter, but does not guarantee long-term protection of habitat. The properties enrolled in the SHA are not technically included in the critical habitat designation, which includes only the stream channel within the ordinary high water line. Because these waters are technically state owned, we cannot exclude them from the designation. The CCAA provides assurances to enrolled landowners that if additional conservation measures are necessary to respond to changed circumstances, we will not require such measures in addition to those provided for in the agreement without the consent of the landowner if the species becomes listed. However like the SHA, the properties enrolled in the CCAA are not technically included in the critical habitat designation, which includes only the stream channel within the ordinary high water line. Because these waters are technically state owned, we cannot exclude them from the designation. There are currently no HCPs or other management plans for the Cumberland darter, rush darter, yellowcheek darter, Chucky madtom, or laurel dace, and the final designation does not include any E:\FR\FM\16OCR2.SGM 16OCR2 Federal Register / Vol. 77, No. 200 / Tuesday, October 16, 2012 / Rules and Regulations tribal lands or trust resources. We anticipate no impact on tribal lands, partnerships, or HCPs from this critical habitat designation. Accordingly, the Secretary is not exercising his discretion to exclude any areas from this final designation based on other relevant impacts. Required Determinations Regulatory Planning and Review— Executive Order 12866 and 13563 Executive Order 12866 provides that the Office of Information and Regulatory Affairs (OIRA) will review all significant rules. The Office of Information and Regulatory Affairs has determined that this rule is not significant. Executive Order 13563 reaffirms the principles of E.O. 12866 while calling for improvements in the nation’s regulatory system to promote predictability, to reduce uncertainty, and to use the best, most innovative, and least burdensome tools for achieving regulatory ends. The executive order directs agencies to consider regulatory approaches that reduce burdens and maintain flexibility and freedom of choice for the public where these approaches are relevant, feasible, and consistent with regulatory objectives. E.O. 13563 emphasizes further that regulations must be based on the best available science and that the rulemaking process must allow for public participation and an open exchange of ideas. We have developed this rule in a manner consistent with these requirements. tkelley on DSK3SPTVN1PROD with RULES2 Regulatory Flexibility Act (5 U.S.C. 601 et seq.) Under the Regulatory Flexibility Act (RFA; 5 U.S.C. 601 et seq.) as amended by the Small Business Regulatory Enforcement Fairness Act (SBREFA) of 1996 (5 U.S.C. 801 et seq.), whenever an agency must publish a notice of rulemaking for any proposed or final rule, it must prepare and make available for public comment a regulatory flexibility analysis that describes the effects of the rule on small entities (small businesses, small organizations, and small government jurisdictions). However, no regulatory flexibility analysis is required if the head of the agency certifies the rule will not have a significant economic impact on a substantial number of small entities. The SBREFA amended RFA to require Federal agencies to provide a certification statement of the factual basis for certifying that the rule will not have a significant economic impact on a substantial number of small entities. In this final rule, we are certifying that VerDate Mar<15>2010 17:42 Oct 15, 2012 Jkt 229001 the critical habitat designation for these five fishes will not have a significant economic impact on a substantial number of small entities. The following discussion explains our rationale. According to the Small Business Administration, small entities include small organizations, such as independent nonprofit organizations; small governmental jurisdictions, including school boards and city and town governments that serve fewer than 50,000 residents; as well as small businesses. Small businesses include manufacturing and mining concerns with fewer than 500 employees, wholesale trade entities with fewer than 100 employees, retail and service businesses with less than $5 million in annual sales, general and heavy construction businesses with less than $27.5 million in annual business, special trade contractors doing less than $11.5 million in annual business, and agricultural businesses with annual sales less than $750,000. To determine if potential economic impacts on these small entities are significant, we consider the types of activities that might trigger regulatory impacts under this rule, as well as the types of project modifications that may result. In general, the term ‘‘significant economic impact’’ is meant to apply to a typical small business firm’s business operations. To determine if the rule could significantly affect a substantial number of small entities, we consider the number of small entities affected within particular types of economic activities (e.g., coal mining; agriculture, ranching, and silviculture; oil and natural gas development; recreational uses; dredging, channelization, impoundments, dams, and diversions; and transportation (roads, highways, bridges)). We apply the ‘‘substantial number’’ test individually to each industry to determine if certification is appropriate. However, the SBREFA does not explicitly define ‘‘substantial number’’ or ‘‘significant economic impact.’’ Consequently, to assess whether a ‘‘substantial number’’ of small entities is affected by this designation, this analysis considers the relative number of small entities likely to be impacted in an area. In some circumstances, especially with critical habitat designations of limited extent, we may aggregate across all industries and consider whether the total number of small entities affected is substantial. In estimating the number of small entities potentially affected, we also consider whether their activities have any Federal involvement. PO 00000 Frm 00039 Fmt 4701 Sfmt 4700 63641 Designation of critical habitat only affects activities authorized, funded, or carried out by Federal agencies. Some kinds of activities are unlikely to have any Federal involvement and so will not be affected by critical habitat designation. In areas where the five fishes are present, Federal agencies already are required to consult with us under section 7 of the Act on activities they authorize, fund, or carry out that may affect the five fishes. Federal agencies also must consult with us if their activities may affect critical habitat. Designation of critical habitat, therefore, could result in an additional economic impact on small entities due to the requirement to reinitiate consultation for ongoing Federal activities (see Application of the ‘‘Adverse Modification’’ Standard section). In our FEA of the critical habitat designation (see ‘‘Exclusions Based on Economic Impacts’’ above) we evaluated the potential economic effects on small business entities resulting from conservation actions related to the designation of critical habitat of the five fishes. The analysis is based on the estimated impacts associated with the rulemaking as described in Appendix A of the FEA and evaluates the potential for economic impacts related to: Coal mining; oil and natural gas development; recreation; dredging, channelization, impoundments, dams, and diversions; and transportation (roads, highways, bridges). For activities related to coal mining, we anticipate that 10 small entities could be affected in a single year at a cost of $875 each, representing less than 3 percent of annual revenues. For oil and natural gas development, we estimate that two small entities could be affected within a single year at a cost of $875 each, representing less than 3 percent of annual revenues. For recreation activities, it is estimated that one small entity could be affected within a single year at a cost of $4,150. This cost to this entity is estimated to be 29 percent of the entity’s annual revenue from cattle sales; however, the entity has other revenues, and this percentage is likely overstated. For activities relating to by dredging, channelization, impoundments, dams, and diversions, one small entity could be affected within a single year, at a cost of $2,630, representing less than 1 percent of annual revenues. For transportation activities, one small entity could be affected within a single year, at a cost of $1,750, representing less than 1 percent of annual revenues. Please refer to the FEA of the critical habitat designation for a more detailed E:\FR\FM\16OCR2.SGM 16OCR2 63642 Federal Register / Vol. 77, No. 200 / Tuesday, October 16, 2012 / Rules and Regulations tkelley on DSK3SPTVN1PROD with RULES2 discussion of potential economic impacts. In summary, we considered whether this designation will result in a significant economic effect on a substantial number of small entities. Based on the above reasoning and currently available information, we concluded that this rule will not result in a significant economic impact on a substantial number of small entities. Therefore, we are certifying that the designation of critical habitat for the Cumberland darter, rush darter, yellowcheek darter, Chucky madtom, and laurel dace will not have a significant economic impact on a substantial number of small entities, and a regulatory flexibility analysis is not required. Energy Supply, Distribution, or Use— Executive Order 13211 Executive Order 13211 (Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use) requires agencies to prepare Statements of Energy Effects when undertaking certain actions. We do not expect this designation to significantly affect energy supplies, distribution, or use. Natural gas and oil exploration and development activities occur or could potentially occur within the Cumberland darter (13 of 15 critical habitat units) and yellowcheek darter (4 of 4 critical habitat units) critical habitat units. However, compliance with State regulatory requirements or voluntary BMPs would be expected to minimize impacts of natural gas and oil exploration and development in the areas of designated critical habitat for both species. The measures for natural gas and oil exploration and development are generally not considered a substantial cost compared to overall project costs and are already being implemented by oil and gas companies. Coal mining occurs or could potentially occur in 11 of the 15 proposed critical habitat units for the Cumberland darter, and coal mining could potentially occur in 1 of the 6 critical habitat units for the laurel dace. Incidental take for listed species associated with surface coal mining activities is currently covered under a programmatic, non-jeopardy biological opinion between the Office of Surface Mining and the Service completed in 1996 (Service 1996, entire). The biological opinion covers existing, proposed, and future endangered and threatened species that may be affected by the implementation and administration of surface coal mining programs under the Surface Mining VerDate Mar<15>2010 17:42 Oct 15, 2012 Jkt 229001 Control and Reclamation Act of 1977 (30 U.S.C. 1201 et seq.). Through its analysis, the Service concluded that the proposed action (surface coal mining and reclamation activities) was not likely to jeopardize the continued existence of any threatened, endangered, or proposed species or result in adverse modification of designated or proposed critical habitat. OMB has provided guidance for implementing this Executive Order that outlines nine outcomes that may constitute ‘‘a significant adverse effect’’ when compared to not taking the regulatory action under consideration. The potential effects of this designation on oil and gas development were considered in the economic analysis. The FEA finds that impacts to oil and gas development activities will be anticipated, but they will be limited to the administrative costs of consultation. Therefore, reductions in oil and gas production are not anticipated, and consultation costs are not anticipated to increase the cost of energy production or distribution in the United States in excess of 1 percent. Thus, none of the nine outcome thresholds of impacts is exceeded. The economic analysis finds that none of these criteria is relevant to this analysis. Thus, based on information in the economic analysis, energy-related impacts associated with these five fishes’ conservation activities within critical habitat are not expected. As such, the designation of critical habitat is not expected to significantly affect energy supplies, distribution, or use. Therefore, this action is not a significant energy action, and no Statement of Energy Effects is required. Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.) In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.), we make the following findings: (1) This rule will not produce a Federal mandate. In general, a Federal mandate is a provision in legislation, statute, or regulation that would impose an enforceable duty upon State, local, tribal governments, or the private sector and includes both ‘‘Federal intergovernmental mandates’’ and ‘‘Federal private sector mandates.’’ These terms are defined in 2 U.S.C. 658(5)–(7). ‘‘Federal intergovernmental mandate’’ includes a regulation that ‘‘would impose an enforceable duty upon State, local, or tribal governments’’ with two exceptions. It excludes ‘‘a condition of Federal assistance.’’ It also excludes ‘‘a duty arising from participation in a voluntary Federal program,’’ unless the regulation ‘‘relates to a then-existing Federal program PO 00000 Frm 00040 Fmt 4701 Sfmt 4700 under which $500,000,000 or more is provided annually to State, local, and tribal governments under entitlement authority,’’ if the provision would ‘‘increase the stringency of conditions of assistance’’ or ‘‘place caps upon, or otherwise decrease, the Federal Government’s responsibility to provide funding,’’ and the State, local, or tribal governments ‘‘lack authority’’ to adjust accordingly. At the time of enactment, these entitlement programs were: Medicaid; Aid to Families with Dependent Children work programs; Child Nutrition; Food Stamps; Social Services Block Grants; Vocational Rehabilitation State Grants; Foster Care, Adoption Assistance, and Independent Living; Family Support Welfare Services; and Child Support Enforcement. ‘‘Federal private sector mandate’’ includes a regulation that ‘‘would impose an enforceable duty upon the private sector, except (i) a condition of Federal assistance or (ii) a duty arising from participation in a voluntary Federal program.’’ The designation of critical habitat does not impose a legally binding duty on non-Federal Government entities or private parties. Under the Act, the only regulatory effect is that Federal agencies must ensure that their actions do not destroy or adversely modify critical habitat under section 7. While nonFederal entities that receive Federal funding, assistance, or permits, or that otherwise require approval or authorization from a Federal agency for an action, may be indirectly impacted by the designation of critical habitat, the legally binding duty to avoid destruction or adverse modification of critical habitat rests squarely on the Federal agency. Furthermore, to the extent that non-Federal entities are indirectly impacted because they receive Federal assistance or participate in a voluntary Federal aid program, the Unfunded Mandates Reform Act would not apply, nor would critical habitat shift the costs of the large entitlement programs listed above onto State governments. (2) We do not believe that this rule will significantly or uniquely affect small governments. The lands with Cumberland darter critical habitat designation are owned by the DBNF and private landowners. The lands with rush darter critical habitat designation are mostly owned by private landowners; a small portion of the City of Pinson; and road easements in Etowah, Jefferson, and Winston Counties, Alabama. The lands designated as critical habitat for the yellowcheek darter are mostly owned by private landowners and road easements E:\FR\FM\16OCR2.SGM 16OCR2 Federal Register / Vol. 77, No. 200 / Tuesday, October 16, 2012 / Rules and Regulations in Cleburne, Searcy, Stone, and Van Buren Counties, Arkansas. Most of the lands designated as critical habitat for the Chucky madtom are private, except for a small portion consisting of road easements in Greene County, Tennessee. Most of the lands designated as critical habitat for the laurel dace are located on private lands, except for a small portion consisting of road easements in Bledsoe, Rhea, and Sequatchie Counties, Tennessee. Consequently, we do not believe that the critical habitat designation would significantly or uniquely affect small government entities. As such, a Small Government Agency Plan is not required. tkelley on DSK3SPTVN1PROD with RULES2 Takings—Executive Order 12630 In accordance with Executive Order 12630 (Government Actions and Interference with Constitutionally Protected Private Property Rights), we have analyzed the potential takings implications of designating critical habitat for the Cumberland darter, rush darter, yellowcheek darter, Chucky madtom, and laurel dace in a takings implications assessment. As discussed above, the designation of critical habitat affects only Federal actions. Although private parties that receive Federal funding, assistance, or require approval or authorization from a Federal agency for an action may be indirectly impacted by the designation of critical habitat, the legally binding duty to avoid destruction or adverse modification of critical habitat rests squarely on the Federal agency. Therefore, the takings implications assessment concludes that this designation of critical habitat for these five species does not pose significant takings implications for lands within or affected by the designation. Federalism—Executive Order 13132 In accordance with Executive Order 13132 (Federalism), this rule does not have significant Federalism effects. A federalism impact summary statement is not required. In keeping with Department of the Interior and Department of Commerce policy, we requested information from, and coordinated development of, this critical habitat designation with appropriate State resource agencies in Kentucky, Alabama, Arkansas, and Tennessee. We received one comment from the Kentucky Department of Fish and Wildlife Resources related to road crossings and culverts acting as threats to the Cumberland darter. This comment was incorporated into this final rule. We did not receive any other comments from the four affected States. The designation of critical habitat in VerDate Mar<15>2010 17:42 Oct 15, 2012 Jkt 229001 areas currently occupied by these five fishes may impose nominal additional regulatory restrictions to those currently in place and, therefore, may have little incremental impact on State and local governments and their activities. The designation may have some benefit to these governments because the areas that contain the physical and biological features essential to the conservation of the species are more clearly defined, and the elements of the features of the habitat necessary to the conservation of these species are specifically identified. This information does not alter where and what Federally sponsored activities may occur. However, it may assist these local governments in long-range planning (rather than having them wait for case-by-case section 7 consultations to occur). Where State and local governments require approval or authorization from a Federal agency for actions that may affect critical habitat, consultation under section 7(a)(2) would be required. While non-Federal entities that receive Federal funding, assistance, or permits, or that otherwise require approval or authorization from a Federal agency for an action, may be indirectly impacted by the designation of critical habitat, the legally binding duty to avoid destruction or adverse modification of critical habitat rests squarely on the Federal agency. Civil Justice Reform—Executive Order 12988 In accordance with Executive Order 12988 (Civil Justice Reform), the Office of the Solicitor has determined that the rule does not unduly burden the judicial system and that it meets the requirements of sections 3(a) and 3(b)(2) of the Order. We are designating critical habitat in accordance with the provisions of the Act. This final rule uses standard property descriptions and identifies the elements of physical and biological features essential to the conservation of the Cumberland darter, rush darter, yellowcheek darter, Chucky madtom, and laurel dace within the designated areas to assist the public in understanding the habitat needs of these species. Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.) This rule does not contain any new collections of information that require approval by OMB under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.). This rule will not impose recordkeeping or reporting requirements on State or local governments, individuals, businesses, or organizations. An agency may not PO 00000 Frm 00041 Fmt 4701 Sfmt 4700 63643 conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number. National Environmental Policy Act (42 U.S.C. 4321 et seq.) It is our position that, outside the jurisdiction of the U.S. Court of Appeals for the Tenth Circuit, we do not need to prepare environmental analyses pursuant to the National Environmental Policy Act (NEPA; 42 U.S.C. 4321 et seq.) in connection with designating critical habitat under the Act. We published a notice outlining our reasons for this determination in the Federal Register on October 25, 1983 (48 FR 49244). This position was upheld by the U.S. Court of Appeals for the Ninth Circuit (Douglas County v. Babbitt, 48 F.3d 1495 (9th Cir. 1995), cert. denied 516 U.S. 1042 (1996)). Government-to-Government Relationship With Tribes In accordance with the President’s memorandum of April 29, 1994 (Government-to-Government Relations with Native American Tribal Governments; 59 FR 22951), Executive Order 13175 (Consultation and Coordination With Indian Tribal Governments), and the Department of Interior’s manual at 512 DM 2, we readily acknowledge our responsibility to communicate meaningfully with recognized Federal Tribes on a government-to-government basis. In accordance with Secretarial Order 3206 of June 5, 1997 (American Indian Tribal Rights, Federal-Tribal Trust Responsibilities, and the Endangered Species Act), we readily acknowledge our responsibilities to work directly with tribes in developing programs for healthy ecosystems, to acknowledge that tribal lands are not subject to the same controls as Federal public lands, to remain sensitive to Indian culture, and to make information available to tribes. We determined that there are no tribal lands that were occupied by the Cumberland darter, rush darter, yellowcheek darter, Chucky madtom, or laurel dace at the time of listing that contain the features essential for conservation of these species, and no tribal lands unoccupied by these five species that are essential for the conservation of these species. Therefore, we are not designating critical habitat for these five species on tribal lands. References Cited A complete list of references cited is available on the Internet at https:// www.regulations.gov and upon request E:\FR\FM\16OCR2.SGM 16OCR2 63644 Federal Register / Vol. 77, No. 200 / Tuesday, October 16, 2012 / Rules and Regulations from the Tennessee Ecological Services Field Office (see ADDRESSES). Authors The primary authors of this package are the staff members of the Arkansas, Kentucky, Mississippi, and Tennessee Ecological Services Field Offices. List of Subjects in 50 CFR Part 17 Endangered and threatened species, Exports, Imports, Reporting and recordkeeping requirements, Transportation. Regulation Promulgation Accordingly, we amend part 17, subchapter B of chapter I, title 50 of the Code of Federal Regulations, as set forth below: PART 17—[AMENDED] Authority: 16 U.S.C. 1361–1407; 16 U.S.C. 1531–1544; 16 U.S.C. 4201–4245; Pub. L. 99– 625, 100 Stat. 3500; unless otherwise noted. Historic range Common name Vertebrate population where endangered or threatened * * Scientific name * * § 17.11 Endangered and threatened wildlife. 1. The authority citation for part 17 continues to read as follows: ■ Species 2. Amend § 17.11(h) by revising the entries for ‘‘Dace, laurel,’’ ‘‘Darter, Cumberland,’’ ‘‘Darter, rush,’’ ‘‘Darter, yellowcheek,’’ and ‘‘Madtom, chucky’’ under FISHES in the List of Endangered and Threatened Wildlife to read as follows: ■ * Status * * (h) * * * * When listed * * Critical habitat * Special rules * FISHES * Dace, laurel ............. * Chrosomus saylori ... * U.S.A. (TN) .............. * * Entire ....................... E * 791 17.95(e) * Darter, Cumberland * Etheostoma susanae * U.S.A. (KY, TN) ....... * * Entire ....................... E * 791 17.95(e) * Darter, rush .............. * Etheostoma phytophilum. * U.S.A. (AL) .............. * * Entire ....................... E * 791 17.95(e) * Darter, yellowcheek * Etheostoma moorei * U.S.A. (AR) .............. * * Entire ....................... E * 791 17.95(e) * Madtom, Chucky ...... * Noturus crypticus ..... * U.S.A. (TN) .............. * * Entire ....................... E * 791 17.95(e) * * * 3. In § 17.95, amend paragraph (e) by adding entries for ‘‘Laurel Dace (Chrosomus saylori)’’, ‘‘Cumberland Darter (Etheostoma susanae)’’, ‘‘Rush Darter (Etheostoma phytophilum)’’, ‘‘Yellowcheek Darter (Etheostoma moorei)’’, and ‘‘Chucky Madtom (Noturus crypticus)’’ in the same order that those species appear in the table at § 17.11(h), to read as follows: ■ § 17.95 Critical habitat—fish and wildlife. * * * (e) Fishes. * * * * * * * tkelley on DSK3SPTVN1PROD with RULES2 Laurel Dace (Chrosomus saylori) (1) Critical habitat units are depicted for Bledsoe, Rhea, and Sequatchie Counties, Tennessee, on the maps below. (2) Within these areas, the primary constituent elements of the physical and biological features essential to the conservation of the laurel dace consist of five components: (i) Pool and run habitats of geomorphically stable, first- to secondorder streams with riparian vegetation; VerDate Mar<15>2010 17:42 Oct 15, 2012 Jkt 229001 * * cool, clean, flowing water; shallow depths; and connectivity between spawning, foraging, and resting sites to promote gene flow throughout the species’ range. (ii) Stable bottom substrates composed of relatively silt-free gravel, cobble, and slab-rock boulder substrates with undercut banks and canopy cover. Relatively silt-free is defined for the purpose of this rule as silt or fine sand within interstitial spaces of substrates in amounts low enough to have minimal impact to the species. (iii) An instream flow regime (magnitude, frequency, duration, and seasonality of discharge over time) sufficient to provide permanent surface flows, as measured during years with average rainfall, and to maintain benthic habitats utilized by the species. (iv) Adequate water quality characterized by moderate stream temperatures, acceptable dissolved oxygen concentrations, moderate pH, and low levels of pollutants. Adequate water quality is defined for the purpose of this rule as the quality necessary for PO 00000 Frm 00042 Fmt 4701 Sfmt 4700 * * NA * NA * NA * NA * NA * normal behavior, growth, and viability of all life stages of the laurel dace. (v) Prey base of aquatic macroinvertebrates, including midge larvae, caddisfly larvae, and stonefly larvae. (3) Critical habitat does not include manmade structures (such as buildings, aqueducts, runways, roads, and other paved areas) and the land on which they are located existing within the legal boundaries on November 15, 2012. (4) Critical habitat unit maps. Data layers defining map units were created on a base of USGS digital ortho-photo quarter-quadrangles, and critical habitat units were then mapped using Tennessee State Plane, Lambert Conformal Conic Projection, units feet. Upstream and downstream limits were then identified by longitude and latitude using decimal degrees and projected in WGS 1984. The maps in this entry, as modified by any accompanying regulatory text, establish the boundaries of the critical habitat designation. The coordinates or plot points or both on which each map is based are available to the public at the E:\FR\FM\16OCR2.SGM 16OCR2 Federal Register / Vol. 77, No. 200 / Tuesday, October 16, 2012 / Rules and Regulations VerDate Mar<15>2010 17:42 Oct 15, 2012 Jkt 229001 Service’s Tennessee Fish and Wildlife Office. You may obtain field office location information by contacting one of the Service regional offices, the PO 00000 Frm 00043 Fmt 4701 Sfmt 4725 addresses of which are listed at 50 CFR 2.2. (5) Index map follows: E:\FR\FM\16OCR2.SGM 16OCR2 ER16OC12.045</GPH> tkelley on DSK3SPTVN1PROD with RULES2 field office Internet site (https:// www.fws.gov/cookeville), https:// www.regulations.gov at Docket No. FWS–R4–ES–2011–0074, and at the 63645 Federal Register / Vol. 77, No. 200 / Tuesday, October 16, 2012 / Rules and Regulations tkelley on DSK3SPTVN1PROD with RULES2 (6) Units 1, 2, and 3: Bumbee Creek and Youngs Creek, Bledsoe and Rhea Counties, Tennessee; and Moccasin Creek, Bledsoe County, Tennessee. (i) Unit 1 includes 7.8 river kilometers (rkm) (4.8 river miles (rmi)) of Bumbee Creek from its headwaters in Bledsoe County, downstream to its confluence VerDate Mar<15>2010 17:42 Oct 15, 2012 Jkt 229001 with Mapleslush Branch in Rhea County, Tennessee. (ii) Unit 2 includes 7.9 rkm (4.9 rmi) of Youngs Creek from its headwaters in Bledsoe County, downstream to its confluence with Moccasin Creek in Rhea County, Tennessee. PO 00000 Frm 00044 Fmt 4701 Sfmt 4725 (iii) Unit 3 includes 9.0 rkm (5.6 rmi) of Moccasin Creek from its headwaters downstream to 0.1 rkm (0.6 rmi) below its confluence with Lick Creek in Bledsoe County, Tennessee. (iv) Map of Units 1, 2, and 3 of critical habitat for the laurel dace follows: E:\FR\FM\16OCR2.SGM 16OCR2 ER16OC12.046</GPH> 63646 Federal Register / Vol. 77, No. 200 / Tuesday, October 16, 2012 / Rules and Regulations VerDate Mar<15>2010 17:42 Oct 15, 2012 Jkt 229001 downstream to its confluence with an unnamed tributary in Bledsoe County, Tennessee. PO 00000 Frm 00045 Fmt 4701 Sfmt 4725 (ii) Map of Unit 4 of critical habitat for the laurel dace follows: E:\FR\FM\16OCR2.SGM 16OCR2 ER16OC12.047</GPH> tkelley on DSK3SPTVN1PROD with RULES2 (7) Unit 4: Cupp Creek, Bledsoe County, Tennessee. (i) Unit 4 includes 5.0 rkm (3.1 rmi) of Cupp Creek from its headwaters 63647 Federal Register / Vol. 77, No. 200 / Tuesday, October 16, 2012 / Rules and Regulations tkelley on DSK3SPTVN1PROD with RULES2 (8) Unit 5: Horn Branch, Bledsoe County, Tennessee. (i) Unit 5 includes 4.0 rkm (2.5 rmi) of Horn Branch from its headwaters VerDate Mar<15>2010 17:42 Oct 15, 2012 Jkt 229001 downstream to its confluence with Rock Creek, Bledsoe County, Tennessee. (ii) Map of Unit 5 of critical habitat for the laurel dace follows: PO 00000 Frm 00046 Fmt 4701 Sfmt 4725 E:\FR\FM\16OCR2.SGM 16OCR2 ER16OC12.048</GPH> 63648 Federal Register / Vol. 77, No. 200 / Tuesday, October 16, 2012 / Rules and Regulations 63649 Sequatchie County, downstream to its confluence with Harvey Creek in Sequatchie County, Tennessee. (ii) Map of Unit 6 of critical habitat for the laurel dace follows: * Kentucky, and Campbell and Scott Counties, Tennessee, on the maps below. (2) Within these areas, the primary constituent elements of the physical and biological features essential to the conservation of the Cumberland darter consist of five components: (i) Shallow pools and gently flowing runs of geomorphically stable, secondto fourth-order streams with connectivity between spawning, * * * * Cumberland Darter (Etheostoma susanae) (1) Critical habitat units are depicted for McCreary and Whitley Counties, VerDate Mar<15>2010 17:42 Oct 15, 2012 Jkt 229001 PO 00000 Frm 00047 Fmt 4701 Sfmt 4700 E:\FR\FM\16OCR2.SGM 16OCR2 ER16OC12.049</GPH> tkelley on DSK3SPTVN1PROD with RULES2 (9) Unit 6: Soddy Creek, Sequatchie and Bledsoe Counties, Tennessee. (i) Unit 6 includes 8.4 rkm (5.2 rmi) of Soddy Creek from its headwaters in 63650 Federal Register / Vol. 77, No. 200 / Tuesday, October 16, 2012 / Rules and Regulations tkelley on DSK3SPTVN1PROD with RULES2 foraging, and resting sites to promote gene flow throughout the species’ range. (ii) Stable bottom substrates composed of relatively silt-free sand and sand-covered bedrock, boulders, large cobble, woody debris, or other cover. (iii) An instream flow regime (magnitude, frequency, duration, and seasonality of discharge over time) sufficient to provide permanent surface flows, as measured during years with average rainfall, and to maintain benthic habitats utilized by the species. (iv) Adequate water quality characterized by moderate stream temperatures, acceptable dissolved oxygen concentrations, moderate pH, and low levels of pollutants. Adequate water quality is defined for the purpose of this rule as the quality necessary for normal behavior, growth, and viability VerDate Mar<15>2010 17:42 Oct 15, 2012 Jkt 229001 of all life stages of the Cumberland darter. (v) Prey base of aquatic macroinvertebrates, including midge larvae, mayfly nymphs, caddisfly larvae, and microcrustaceans. (3) Critical habitat does not include manmade structures (such as buildings, aqueducts, bridges, runways, roads, and other paved areas) and the land on which they are located existing within the legal boundaries on November 15, 2012. (4) Critical habitat map units. Data layers defining map units were created on a base of USGS digital ortho-photo quarter-quadrangles, and critical habitat units were then mapped using Tennessee State Plane, Lambert Conformal Conic Projection, units feet. Upstream and downstream limits were PO 00000 Frm 00048 Fmt 4701 Sfmt 4700 then identified by longitude and latitude using decimal degrees and projected in WGS 1984. The maps in this entry, as modified by any accompanying regulatory text, establish the boundaries of the critical habitat designation. The coordinates or plot points or both on which each map is based are available to the public at the field office Internet site (https:// www.fws.gov/cookeville), https:// www.regulations.gov at Docket No. FWS–R4–ES–2011–0074, and at the Service’s Tennessee Fish and Wildlife Office. You may obtain field office location information by contacting one of the Service regional offices, the addresses of which are listed at 50 CFR 2.2. E:\FR\FM\16OCR2.SGM 16OCR2 Federal Register / Vol. 77, No. 200 / Tuesday, October 16, 2012 / Rules and Regulations 63651 (6) Units 1 and 2: Bunches Creek and Calf Pen Fork, Whitley County, Kentucky. (i) Unit 1 includes 5.8 river kilometers (rkm) (3.6 river miles (rmi)) of Bunches VerDate Mar<15>2010 17:42 Oct 15, 2012 Jkt 229001 Creek from the Seminary Branch and Amos Falls Branch confluence downstream to its confluence with the Cumberland River. PO 00000 Frm 00049 Fmt 4701 Sfmt 4700 (ii) Unit 2 includes 2.9 rkm (1.8 rmi) of Calf Pen Fork from its confluence with Polly Branch downstream to its confluence with Bunches Creek. E:\FR\FM\16OCR2.SGM 16OCR2 ER16OC12.050</GPH> tkelley on DSK3SPTVN1PROD with RULES2 (5) Index map follows: 63652 Federal Register / Vol. 77, No. 200 / Tuesday, October 16, 2012 / Rules and Regulations VerDate Mar<15>2010 17:42 Oct 15, 2012 Jkt 229001 PO 00000 Frm 00050 Fmt 4701 Sfmt 4725 E:\FR\FM\16OCR2.SGM 16OCR2 ER16OC12.051</GPH> tkelley on DSK3SPTVN1PROD with RULES2 (iii) Map of Units 1 and 2 of critical habitat for the Cumberland darter follows: Federal Register / Vol. 77, No. 200 / Tuesday, October 16, 2012 / Rules and Regulations Road downstream to its confluence with the Cumberland River. (ii) Map of Unit 3 of critical habitat for the Cumberland darter follows: (8) Units 4, 5, 6, 7, and 8: Barren Fork, Indian Creek, Cogur Fork, Kilburn Fork, and Laurel Fork, McCreary County, Kentucky. (i) Unit 4 includes 6.3 rkm (3.9 rmi) of Barren Fork from its confluence with an unnamed tributary downstream to its confluence with Indian Creek. (ii) Unit 5 includes 4.0 rkm (2.5 rmi) of Indian Creek from its confluence with an unnamed tributary downstream to its confluence with Barren Fork. (iii) Unit 6 includes 8.6 rkm (5.4 rmi) of Cogur Fork from its confluence with Strunk Branch downstream to its confluence with Indian Creek. VerDate Mar<15>2010 17:42 Oct 15, 2012 Jkt 229001 PO 00000 Frm 00051 Fmt 4701 Sfmt 4700 (iv) Unit 7 includes 4.6 rkm (2.9 rmi) of Kilburn Fork from its confluence with an unnamed tributary downstream to its confluence with Laurel Fork. (v) Unit 8 includes 3.5 rkm (2.2 rmi) of Laurel Fork from its confluence with Toms Fork downstream to its confluence with Indian Creek. E:\FR\FM\16OCR2.SGM 16OCR2 ER16OC12.052</GPH> tkelley on DSK3SPTVN1PROD with RULES2 (7) Unit 3: Youngs Creek, Whitley County, Kentucky. (i) Unit 3 includes 7.4 rkm (4.6 rmi) of Youngs Creek from Brays Chapel 63653 63654 Federal Register / Vol. 77, No. 200 / Tuesday, October 16, 2012 / Rules and Regulations VerDate Mar<15>2010 17:42 Oct 15, 2012 Jkt 229001 PO 00000 Frm 00052 Fmt 4701 Sfmt 4725 E:\FR\FM\16OCR2.SGM 16OCR2 ER16OC12.053</GPH> tkelley on DSK3SPTVN1PROD with RULES2 (vi) Map of Units 4, 5, 6, 7, and 8 of critical habitat for the Cumberland darter follows: Federal Register / Vol. 77, No. 200 / Tuesday, October 16, 2012 / Rules and Regulations VerDate Mar<15>2010 17:42 Oct 15, 2012 Jkt 229001 (ii) Unit 10 includes 2.1 rkm (1.3 rmi) of Elisha Branch from its confluence with an unnamed tributary downstream to its confluence with Laurel Creek. (iii) Unit 11 includes 3.1 rkm (1.9 rmi) of Jenneys Branch from its confluence PO 00000 Frm 00053 Fmt 4701 Sfmt 4725 with an unnamed tributary downstream to its confluence with Laurel Creek. (iv) Map of Units 9, 10, and 11 of critical habitat for the Cumberland darter follows: E:\FR\FM\16OCR2.SGM 16OCR2 ER16OC12.054</GPH> tkelley on DSK3SPTVN1PROD with RULES2 (9) Units 9, 10, and 11: Laurel Creek, Elisha Branch, and Jenneys Branch, McCreary County, Kentucky. (i) Unit 9 includes 9.4 rkm (5.9 rmi) of Laurel Creek from Laurel Creek Reservoir downstream to its confluence with Jenneys Branch. 63655 63656 Federal Register / Vol. 77, No. 200 / Tuesday, October 16, 2012 / Rules and Regulations (ii) Map of Unit 12 of critical habitat for the Cumberland darter follows: Scott Branch, Scott County, Tennessee, downstream to its confluence with Capuchin Creek, McCreary County, Kentucky. (ii) Unit 14 includes 6.1 rkm (3.8 rmi) of Rock Creek from its confluence with Sid Anderson Branch downstream to its confluence with Jellico Creek. (iii) Unit 15 includes 4.2 rkm (2.6 rmi) of Capuchin Creek from its confluence with Hatfield Creek downstream to its confluence with Jellico Creek. VerDate Mar<15>2010 17:42 Oct 15, 2012 Jkt 229001 PO 00000 Frm 00054 Fmt 4701 Sfmt 4700 E:\FR\FM\16OCR2.SGM 16OCR2 ER16OC12.055</GPH> Sheep Creek downstream to its intersection with Wolf Creek River Road. (11) Units 13, 14, and 15: Jellico Creek, Rock Creek, and Capuchin Creek, McCreary and Whitley Counties, Kentucky, and Campbell and Scott Counties, Tennessee. (i) Unit 13 includes 11.5 rkm (7.2 rmi) of Jellico Creek from its confluence with tkelley on DSK3SPTVN1PROD with RULES2 (10) Unit 12: Wolf Creek, Whitley County, Kentucky. (i) Unit 12 includes 6.3 rkm (3.9 rmi) of Wolf Creek from its confluence with Federal Register / Vol. 77, No. 200 / Tuesday, October 16, 2012 / Rules and Regulations 63657 * * * * * tkelley on DSK3SPTVN1PROD with RULES2 Rush Darter (Etheostoma phytophilum) (1) The critical habitat units are depicted for Jefferson, Winston, and Etowah Counties in Alabama, on the maps below. (2) Within these areas, the primary constituent elements of the physical and biological features essential to the conservation of the rush darter consist of five components: (i) Springs and spring-fed reaches of geomorphically stable, relatively lowgradient, headwater streams with appropriate habitat (bottom substrates) to maintain essential riffles, runs, and pools; emergent vegetation in shallow water and on the margins of small streams and spring runs; cool, clean, flowing water; and connectivity VerDate Mar<15>2010 17:42 Oct 15, 2012 Jkt 229001 between spawning, foraging, and resting sites to promote gene flow throughout the species’ range. (ii) Stable bottom substrates consisting of a combination of sand with silt, muck, gravel, or bedrock and adequate emergent vegetation in shallow water on the margins of small permanent and ephemeral streams and spring runs. (iii) Instream flow with moderate velocity and a continuous daily discharge that allows for a longitudinal connectivity regime inclusive of both surface runoff and groundwater sources (springs and seepages) and exclusive of flushing flows caused by stormwater runoff. (iv) Water quality with temperature not exceeding 26.7 °C (80 °F), dissolved oxygen 6.0 milligrams or greater per PO 00000 Frm 00055 Fmt 4701 Sfmt 4700 liter (mg/L), turbidity of an average monthly reading of 10 Nephelometric Turbidity Units (NTU; units used to measure sediment discharge) and 15 mg/L total suspended solids (TSS; measured as mg/L of sediment in water) or less; and a specific conductance (ability of water to conduct an electric current, based on dissolved solids in the water) of no greater than 225 micro Siemens per centimeter at 26.7 °C (80 °F). (v) Prey base of aquatic macroinvertebrates, including midge larvae, mayfly nymphs, blackfly larvae, beetles, and microcrustaceans. (3) Critical habitat does not include manmade structures (such as buildings, aqueducts, runways, roads, and other paved areas) and the land on which they E:\FR\FM\16OCR2.SGM 16OCR2 ER16OC12.056</GPH> (iv) Map of Units 13, 14, and 15 of critical habitat for the Cumberland darter follows: Federal Register / Vol. 77, No. 200 / Tuesday, October 16, 2012 / Rules and Regulations tkelley on DSK3SPTVN1PROD with RULES2 are located existing within the legal boundaries on November 15, 2012. (4) Critical habitat map units. Data layers defining map units were created on a base of USGS digital ortho-photo quarter-quadrangles, and critical habitat units were then mapped using Universal Transverse Mercator (UTM) Zone 16N, NAD1983, coordinates. Upstream and downstream limits were then identified VerDate Mar<15>2010 17:42 Oct 15, 2012 Jkt 229001 by longitude and latitude using decimal degrees and projected in WGS 1984. The maps in this entry, as modified by any accompanying regulatory text, establish the boundaries of the critical habitat designation. The coordinates or plot points or both on which each map is based are available to the public at the field office Internet site (https://www.fws. gov/cookeville), https://www.regulations. PO 00000 Frm 00056 Fmt 4701 Sfmt 4725 gov at Docket No. FWS–R4–ES–2011– 0074, and at the Service’s Tennessee Fish and Wildlife Office. You may obtain field office location information by contacting one of the Service regional offices, the addresses of which are listed at 50 CFR 2.2. (5) Index map follows: BILLING CODE 4310–55–P E:\FR\FM\16OCR2.SGM 16OCR2 ER16OC12.057</GPH> 63658 Federal Register / Vol. 77, No. 200 / Tuesday, October 16, 2012 / Rules and Regulations VerDate Mar<15>2010 17:42 Oct 15, 2012 Jkt 229001 7.5 topographical map (Pinson quadrangle), downstream to its confluence with Dry Creek, and includes a spring run beginning at the springhead just northwest of Old Pinson Road and intersecting with an unnamed tributary to Beaver Creek on the west side of Highway 79, and a spring associated wetland (0.13 ha, 0.33 ac) within the headwaters, south of Pinson Heights Road, flowing 0.9 km (0.05 mi) from the northwest (33.668173, -86.708577) and adjoining to the Unnamed Tributary (33.667344, -86.707429). PO 00000 Frm 00057 Fmt 4701 Sfmt 4725 (iii) Unit 3 includes 0.6 rkm (0.4 rmi) of spring run, historically called Tapawingo Plunge, along with 6.7 ha (16.5 ac) of flooded spring basin making up Penny Springs, located south of Turkey Creek, north of Bud Holmes Road, east of Tapawingo Trail Road. The east boundary is at latitude 33° 41′ 56.50″ N and longitude 86° 39′ 55.01″ W: 1.0 km (0.6 mi) west of section line 28 and 29 (T15S, R1W) (U.S. Geological Survey 7.5 topographical map (Pinson quadrangle)). (iv) Map of Units 1, 2, and 3 of critical habitat for the rush darter follows: E:\FR\FM\16OCR2.SGM 16OCR2 ER16OC12.058</GPH> tkelley on DSK3SPTVN1PROD with RULES2 (6) Units 1, 2, and 3: Beaver Creek, Unnamed Tributary to Beaver Creek and Highway 79 Spring Site, and Tapawingo or Penny Spring and Spring Run, Jefferson County, Alabama. (i) Unit 1 includes 1.0 river kilometers (rkm) (0.6 river miles (rmi)) of Beaver Creek from the confluence with an unnamed tributary to Beaver Creek, downstream to the confluence with Turkey Creek. (ii) Unit 2 includes 4.4 rkm (2.7 rmi) of an unnamed tributary of Beaver Creek and two spring runs. The site begins at the section 1 and 2 (T16S, R2W) line, as taken from the U.S. Geological Survey 63659 Federal Register / Vol. 77, No. 200 / Tuesday, October 16, 2012 / Rules and Regulations tkelley on DSK3SPTVN1PROD with RULES2 (7) Units 4, 5, and 6: Wildcat Branch, Mill Creek, and Doe Branch, Winston County, Alabama. (i) Unit 4 includes 6.6 rkm (4.1 rmi) of Wildcat Branch from the streams headwaters just east of Winston County Road 29 to the confluence with Clear Creek. VerDate Mar<15>2010 17:42 Oct 15, 2012 Jkt 229001 (ii) Unit 5 includes 5.9 rkm (3.7 rmi) of Mill Creek from the streams headwaters just east of Winston County Road 195 to the confluence with Clear Creek. (iii) Unit 6 includes 4.3 rkm (2.7 rmi) of Doe Branch from the streams headwaters north and west of section PO 00000 Frm 00058 Fmt 4701 Sfmt 4725 line 23 and 14 (R9W, T11S; Popular Springs Quadrangle) to the confluence with Wildcat Branch. (iv) Map of Units 4, 5, and 6 of critical habitat for the rush darter follows: E:\FR\FM\16OCR2.SGM 16OCR2 ER16OC12.059</GPH> 63660 Federal Register / Vol. 77, No. 200 / Tuesday, October 16, 2012 / Rules and Regulations 63661 intersection of Etowah County Road 179 near the creek headwaters, downstream to its confluence with the Locust Fork River. The Cove Spring and spring run section includes 0.2 rkm (0.1 rmi) of the spring run from the springhead at the West Etowah Water and Fire Authority pumping station on Cove Spring Road to the confluence with Little Cove Creek and includes 5.1 ha (12.7 acres) of the spring run floodplain due south of the pumping facility. (ii) Unit 8 includes 10.2 rkm (6.3 rmi) of Bristow Creek beginning from the bridge at Fairview Cove Road, downstream to the confluence with the Locust Fork River. (iii) Map of Units 7 and 8 of critical habitat for the rush darter follows: * conservation of the yellowcheek darter consist of five components: (i) Geomorphically stable, second- to fifth-order streams with riffle habitats, and connectivity between spawning, foraging, and resting sites to promote gene flow within the species’ range where possible. (ii) Stable bottom composed of relatively silt-free, moderate to strong velocity riffles with gravel, cobble, and boulder substrates. (iii) An instream flow regime (magnitude, frequency, duration, and seasonality of discharge over time) sufficient to provide permanent surface flows, as measured during years with average rainfall, and to maintain benthic habitats utilized by the species. (iv) Adequate water quality characterized by moderate stream temperatures, acceptable dissolved oxygen concentrations, moderate pH, and low levels of pollutants. Adequate * * * * tkelley on DSK3SPTVN1PROD with RULES2 Yellowcheek darter (Etheostoma moorei) (1) Critical habitat units are depicted for Cleburne, Searcy, Stone, and Van Buren Counties, Arkansas, on the maps below. (2) Within these areas, the primary constituent elements of the physical and biological features essential to the VerDate Mar<15>2010 17:42 Oct 15, 2012 Jkt 229001 PO 00000 Frm 00059 Fmt 4701 Sfmt 4700 E:\FR\FM\16OCR2.SGM 16OCR2 ER16OC12.060</GPH> (8) Units 7 and 8: Little Cove Creek, Cove Spring and Spring Run; and Bristow Creek, Etowah County, Alabama. (i) Unit 7 includes 11.2 rkm (6.1 rmi) of Little Cove Creek and the Cove Spring run system along with 5.1 ha (12.7 ac) of the spring run floodplain. Specifically, the Little Cove Creek section (11.0 rkm (6.0 rmi)) is from the Federal Register / Vol. 77, No. 200 / Tuesday, October 16, 2012 / Rules and Regulations tkelley on DSK3SPTVN1PROD with RULES2 water quality is defined for the purpose of this rule as the quality necessary for normal behavior, growth, and viability of all life stages of the yellowcheek darter. (v) Prey base of aquatic macroinvertebrates, including blackfly larvae, stonefly larvae, mayfly nymphs, and caddisfly larvae. (3) Critical habitat does not include manmade structures (such as buildings, aqueducts, runways, roads, and other paved areas) and the land on which they VerDate Mar<15>2010 17:42 Oct 15, 2012 Jkt 229001 are located existing within the legal boundaries on November 15, 2012. (4) Critical habitat unit maps. Data layers defining map units were created on a base of USGS digital ortho-photo quarter-quadrangles, and critical habitat units were then mapped using Universal Transverse Mercator (UTM) Zone 15N, NAD1983, coordinates. Upstream and downstream limits were then identified by longitude and latitude using decimal degrees and projected in WGS 1984. The maps in this entry, as modified by any accompanying regulatory text, establish PO 00000 Frm 00060 Fmt 4701 Sfmt 4725 the boundaries of the critical habitat designation. The coordinates or plot points or both on which each map is based are available to the public at the field office Internet site (https://www.fws. gov/cookeville), https://www.regulations. gov at Docket No. FWS–R4–ES–2011– 0074, and at the Service’s Tennessee Fish and Wildlife Office. You may obtain field office location information by contacting one of the Service regional offices, the addresses of which are listed at 50 CFR 2.2. (5) Index map follows: E:\FR\FM\16OCR2.SGM 16OCR2 ER16OC12.061</GPH> 63662 Federal Register / Vol. 77, No. 200 / Tuesday, October 16, 2012 / Rules and Regulations VerDate Mar<15>2010 17:42 Oct 15, 2012 Jkt 229001 of the Middle Fork of the Little Red River from Searcy County Road 167 approximately 3.4 rkm (2.1 rmi) southwest of Leslie, Arkansas, to a point on the stream 7.7 rkm (4.8 rmi) PO 00000 Frm 00061 Fmt 4701 Sfmt 4725 downstream of the Arkansas Highway 9 crossing of the Middle Fork near Shirley, Arkansas. (ii) Map of Unit 1 of critical habitat for the yellowcheek darter follows: E:\FR\FM\16OCR2.SGM 16OCR2 ER16OC12.062</GPH> tkelley on DSK3SPTVN1PROD with RULES2 (6) Unit 1: Middle Fork Little Red River; Searcy, Stone and Van Buren Counties, Arkansas. (i) Unit 1 includes 73.2 river kilometers (rkm) (45.5 river miles (rmi)) 63663 Federal Register / Vol. 77, No. 200 / Tuesday, October 16, 2012 / Rules and Regulations tkelley on DSK3SPTVN1PROD with RULES2 (7) Unit 2: South Fork Little Red River; Van Buren County, Arkansas. (i) Unit 2 includes 33.8 rkm (21.0 rmi) of the South Fork of the Little Red River from Van Buren County Road 9 three VerDate Mar<15>2010 17:42 Oct 15, 2012 Jkt 229001 miles north of Scotland, Arkansas, to a point on the stream approximately 5.5 rkm (3.4 rmi) downstream of U.S. Highway 65 in Clinton, Arkansas, where PO 00000 Frm 00062 Fmt 4701 Sfmt 4725 it becomes inundated by Greers Ferry Lake. (ii) Map of Unit 2 of critical habitat for the yellowcheek darter follows: E:\FR\FM\16OCR2.SGM 16OCR2 ER16OC12.063</GPH> 63664 Federal Register / Vol. 77, No. 200 / Tuesday, October 16, 2012 / Rules and Regulations VerDate Mar<15>2010 17:42 Oct 15, 2012 Jkt 229001 River from its confluence with South Castleberry Creek to its confluence with the South Fork of the Little Red River near Clinton, Arkansas. PO 00000 Frm 00063 Fmt 4701 Sfmt 4725 (ii) Map of Unit 3 of critical habitat for the yellowcheek darter follows: E:\FR\FM\16OCR2.SGM 16OCR2 ER16OC12.064</GPH> tkelley on DSK3SPTVN1PROD with RULES2 (8) Unit 3: Archey Fork Little Red River; Van Buren County, Arkansas. (i) Unit 3 includes 28.5 rkm (17.7 rmi) of the Archey Fork of the Little Red 63665 63666 Federal Register / Vol. 77, No. 200 / Tuesday, October 16, 2012 / Rules and Regulations (i) Unit 4 includes 28.0 rkm (17.4 rmi) of stream from Stone County Road 21 approximately 3 miles north of Prim, Arkansas, to a point on the Devil’s Fork approximately 5.1 km (3.2 mi) southeast of Woodrow, Arkansas, at the point of inundation by Greers Ferry Lake. (ii) Map of Unit 4 of critical habitat for the yellowcheek darter follows: * sites to promote gene flow throughout the species’ range. (ii) Stable bottom substrates composed of relatively silt-free, flat gravel, cobble, and slab-rock boulders. (iii) An instream flow regime (magnitude, frequency, duration, and seasonality of discharge over time) sufficient to provide permanent surface flows, as measured during years with average rainfall, and to maintain benthic habitats utilized by the species. (iv) Adequate water quality characterized by moderate stream temperatures, acceptable dissolved oxygen concentrations, moderate pH, and low levels of pollutants. Adequate water quality is defined for the purpose of this rule as the quality necessary for normal behavior, growth, and viability of all life stages of the Chucky madtom. (v) Prey base of aquatic macroinvertebrates, including midge larvae, mayfly nymphs, caddisfly larvae, and stonefly larvae. (3) Critical habitat does not include manmade structures (such as buildings, aqueducts, runways, roads, and other paved areas) and the land on which they are located existing within the legal boundaries on November 15, 2012. (4) Critical habitat unit maps. Data layers defining map units were created on a base of USGS digital ortho-photo * * * * tkelley on DSK3SPTVN1PROD with RULES2 Chucky Madtom (Noturus crypticus) (1) The critical habitat unit is depicted for Greene County, Tennessee, on the maps below. (2) Within this area, the primary constituent elements of the physical and biological features essential to the conservation of the Chucky madtom consist of five components: (i) Gently flowing run and pool reaches of geomorphically stable streams with cool, clean, flowing water; shallow depths; and connectivity between spawning, foraging, and resting VerDate Mar<15>2010 17:42 Oct 15, 2012 Jkt 229001 PO 00000 Frm 00064 Fmt 4701 Sfmt 4700 E:\FR\FM\16OCR2.SGM 16OCR2 ER16OC12.065</GPH> (9) Unit 4: Devil’s Fork Little Red River (including Turkey Creek and Beech Fork); Cleburne and Stone Counties, Arkansas. Federal Register / Vol. 77, No. 200 / Tuesday, October 16, 2012 / Rules and Regulations VerDate Mar<15>2010 17:42 Oct 15, 2012 Jkt 229001 accompanying regulatory text, establish the boundaries of the critical habitat designation. The coordinates or plot points or both on which each map is based are available to the public at the field office Internet site (https:// www.fws.gov/cookeville), https:// www.regulations.gov at Docket No. FWS–R4–ES–2011–0074, and at the PO 00000 Frm 00065 Fmt 4701 Sfmt 4725 Service’s Tennessee Fish and Wildlife Office. You may obtain field office location information by contacting one of the Service regional offices, the addresses of which are listed at 50 CFR 2.2. (5) Index map follows: E:\FR\FM\16OCR2.SGM 16OCR2 ER16OC12.066</GPH> tkelley on DSK3SPTVN1PROD with RULES2 quarter-quadrangles, and critical habitat units were then mapped using Tennessee State Plane, Lambert Conformal Conic Projection, units feet. Upstream and downstream limits were then identified by longitude and latitude using decimal degrees and projected in WGS 1984. The maps in this entry, as modified by any 63667 63668 Federal Register / Vol. 77, No. 200 / Tuesday, October 16, 2012 / Rules and Regulations confluence with an unnamed tributary, downstream to its confluence with the Nolichucky River, at the Greene and Cocke County line, Tennessee. * Dated: September 25, 2012. Rachel Jacobson, Principal Deputy Assistant Secretary for Fish and Wildlife and Parks. * * * * (ii) Map of Little Chucky Creek Unit of critical habitat for the Chucky madtom follows: [FR Doc. 2012–24468 Filed 10–15–12; 8:45 am] BILLING CODE 4310–55–P VerDate Mar<15>2010 17:42 Oct 15, 2012 Jkt 229001 PO 00000 Frm 00066 Fmt 4701 Sfmt 9990 E:\FR\FM\16OCR2.SGM 16OCR2 ER16OC12.067</GPH> tkelley on DSK3SPTVN1PROD with RULES2 (6) Little Chucky Creek Unit, Greene County, Tennessee. (i) Little Chucky Creek Unit includes 31.9 river kilometers (19.8 river miles) of Little Chucky Creek from its

Agencies

[Federal Register Volume 77, Number 200 (Tuesday, October 16, 2012)]
[Rules and Regulations]
[Pages 63603-63668]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-24468]

[[Page 63603]]

Vol. 77

Tuesday,

No. 200

October 16, 2012

Part IV

Department of the Interior

-----------------------------------------------------------------------

Fish and Wildlife Service

-----------------------------------------------------------------------

50 CFR Part 17

Endangered and Threatened Wildlife and Plants; Designation of Critical
Habitat for the Cumberland Darter, Rush Darter, Yellowcheek Darter,
Chucky Madtom, and Laurel Dace; Final Rule

Federal Register / Vol. 77, No. 200 / Tuesday, October 16, 2012 /
Rules and Regulations

[[Page 63604]]

-----------------------------------------------------------------------

DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-R4-ES-2011-0074; 4500030114]
RIN 1018-AX76

Endangered and Threatened Wildlife and Plants; Designation of
Critical Habitat for the Cumberland Darter, Rush Darter, Yellowcheek
Darter, Chucky Madtom, and Laurel Dace

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: We, the U.S. Fish and Wildlife Service, designate critical
habitat 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. In total,
approximately 86 river kilometers (rkm) (54 river miles (rmi)) are
being designated as critical habitat for the Cumberland darter, 44 rkm
(27 rmi) and 12 hectares (ha) (29 acres (ac)) for the rush darter, 164
rkm (102 rmi) for the yellowcheek darter, 32 rkm (20 rmi) for the
Chucky madtom, and 42 rkm (26 rmi) for the laurel dace. The effect of
this regulation is to conserve the five species' habitat under the
Endangered Species Act.

DATES: This rule becomes effective on November 15, 2012.

ADDRESSES: This final rule and the associated final economic analysis
are available on the Internet at https://www.regulations.gov. Comments
and materials received, as well as supporting documentation used in
preparing this final rule, are available for public inspection, by
appointment, during normal business hours, at the 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.
The coordinates or plot points or both from which the maps are
generated are included in the administrative record for this critical
habitat designation and are available at https://www.fws.gov/cookeville,
https://www.regulations.gov at Docket No. FWS-R4-ES-2011-0074, and at
the Tennessee Fish and Wildlife Office (see FOR FURTHER INFORMATION
CONTACT). Any additional tools or supporting information that we may
develop for this critical habitat designation will also be available at
the Fish and Wildlife Service Web site and Field Office set out above,
and may also be included in the preamble and/or at https://www.regulations.gov.

FOR FURTHER INFORMATION CONTACT: For information regarding the
Cumberland darter, contact Lee Andrews, Field Supervisor, U.S. Fish and
Wildlife Service, Kentucky Fish and Wildlife Office, J.C. Watts Federal
Building, 330 W. Broadway, Room 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 Fish and Wildlife 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 Fish and Wildlife Office, 1208-B Main Street,
Daphne, AL 36526; telephone 251-441-5181; facsimile 251-441-6222. For
information regarding the yellowcheek darter, contact Jim Boggs, Field
Supervisor, U.S. Fish and Wildlife Service, Arkansas Fish and Wildlife
Office, 110 South Amity Road, Suite 300, Conway, AR 72032; telephone
501-513-4470; facsimile 501-513-4480. For information regarding the
Chucky madtom or laurel dace, contact Mary Jennings, Field Supervisor,
U.S. Fish and Wildlife Service, Tennessee Fish and Wildlife Office, 446
Neal Street, Cookeville, TN 38501; telephone 931-525-4973; 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:

Executive Summary

Why we need to publish a rule. Under the Endangered Species Act,
any species that is determined to be an endangered or threatened
species requires critical habitat to be designated, to the maximum
extent prudent and determinable. Designations and revisions of critical
habitat can only be completed by issuing a rule.
This rule will designate critical habitat for the Cumberland
Darter, Rush Darter, Yellowcheek Darter, Chucky Madtom, and Laurel
Dace. In total, approximately 86 river kilometers (rkm) (54 river miles
(rmi)) are being designated as critical habitat for the Cumberland
darter in McCreary and Whitley Counties, Kentucky, and Campbell and
Scott Counties, Tennessee; 44 rkm (27 rmi) and 12 hectares (ha) (29
acres (ac)) are being designated as critical habitat for the rush
darter in Etowah, Jefferson, and Winston Counties, Alabama; 164 rkm
(102 rmi) are being designated as critical habitat for the yellowcheek
darter in Cleburne, Searcy, Stone, and Van Buren Counties, Arkansas; 32
rkm (20 rmi) are being designated as critical habitat for the Chucky
madtom in Greene County, Tennessee; and 42 rkm (26 rmi) are being
designated as critical habitat for the laurel dace in Bledsoe, Rhea,
and Sequatchie Counties, Tennessee.
The basis for our action. The Act requires that the Service
designate critical habitat at the time of listing to the extent prudent
and determinable. We have determined that designation is prudent and
critical habitat is determinable (see Critical Habitat section below).
We prepared an economic analysis. To ensure that we consider the
economic impacts, we prepared an economic analysis of the designation
of critical habitat. We published an announcement and solicited public
comments on the draft economic analysis. The analysis found that the
present value of the total direct (administrative) incremental cost of
critical habitat designation is $644,000 over the next 20 years
assuming a seven percent discount rate. Primarily these costs are
associated with consultation for water quality management activities,
transportation; coal mining; oil and natural gas development;
agriculture, ranching, and silviculture; dredging, channelization,
impoundments, dams, and diversions; and recreation at $10,000
(Industrial Economics, Inc. 2012).
Peer review and public comment. We sought comments from independent
specialists to ensure that our designation is based on scientifically
sound data and analyses. We invited these peer reviewers to comment on
our conclusions in the critical habitat proposal. We also considered
all comments and information received during the comment period.

Background

It is our intent to discuss in this final rule only those topics
directly relevant to the development and designation of critical
habitat for the Cumberland darter, rush darter, yellowcheek darter,
Chucky madtom, and laurel dace under the Endangered Species Act of
1973, as amended (Act; 16 U.S.C. 1531 et seq.). For more information on
the biology and ecology of these five fishes, refer to the final
listing rule published in the Federal Register on August 9, 2011 (76 FR
48722). For information on the five fishes' critical habitat, refer to
the

[[Page 63605]]

proposed rule to designate critical habitat published in the Federal
Register on October 12, 2011 (76 FR 63360). Information on the
associated draft economic analysis for the proposed rule was published
in the Federal Register on May 24, 2012 (77 FR 30988).

Previous Federal Actions

The Cumberland darter, rush darter, yellowcheek darter, Chucky
madtom, and laurel dace were listed as endangered species under the Act
on August 9, 2011 (76 FR 48722). For the full history of previous
Federal actions regarding these five species, please refer to the final
listing rule (76 FR 48722). In the June 24, 2010, proposed listing rule
(75 FR 36035) we determined that designation of critical habitat was
prudent for all five species. However, we found that critical habitat
was not determinable at the time and set forth the steps we would
undertake to obtain the information necessary to develop a proposed
designation of critical habitat. The proposed rule to designate
critical habitat for these fishes published in the Federal Register on
October 12, 2011 (76 FR 63360). Information on the associated draft
economic analysis for the proposed rule to designate critical habitat
was published in the Federal Register on May 24, 2012 (77 FR 30988).

Species Information

Cumberland Darter

The Cumberland darter (Etheostoma susanae) is a narrowly endemic
fish species, occurring in sparse, fragmented, and isolated populations
in the upper Cumberland River system of Kentucky and Tennessee. The
species 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
centimeters (cm) (8 to 30 inches (in)).
The Cumberland darter's current distribution is limited to 13
streams in McCreary and Whitley Counties, Kentucky, and Campbell and
Scott Counties, Tennessee (Thomas 2007, pp. 11-12). Occurrences from
these streams are thought to form six population clusters (Bunches
Creek, Indian Creek, Marsh Creek, Jellico Creek, Wolf Creek, 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).
The primary threat to the Cumberland darter 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; Skelton 1997, pp. 17, 19; KDOW 2006, pp. 178-185; Thomas 2007, p.
5).

Rush Darter

The rush darter (Etheostoma phytophilum) is a narrowly endemic,
rare, and difficult to collect fish species in north-central Alabama.
The rush darter occurs in sparse, fragmented, and isolated populations.
The species is currently known from tributaries and associated spring
systems of the Turkey Creek (Jefferson County), Clear Creek (Winston
County), and Little Cove-Bristow Creek watersheds (Etowah County). Most
of these tributaries contain sites with intact physical characteristics
such as riffles, runs, pools, transition zones, and emergent
vegetation. Rush darters prefer springs and spring-fed reaches of
relatively low-gradient, small streams (Bart and Taylor 1999, p. 32;
Johnston and Kleiner 2001, pp. 3-4; Stiles and Blanchard 2001, pp. 1-4;
Bart 2002, p. 1; Fluker et al. 2007, p. 1; Stiles and Mills 2008, pp.
1-4). Rush darters are also found in wetland pools and in some
ephemeral tributaries of the aforementioned watersheds (Stiles and
Mills 2008, pp. 2-3). This species also relies heavily on aquatic
vegetation (Fluker et al. 2007, p. 1), including both small clumps and
dense stands, and root masses of emergent vegetation along stream
margins. These habitats tend to be shallow, clear, and cool, with
moderate current and substrates composed of a combination of sand with
silt, muck, gravel, or bedrock.
The species is found in both urban and industrial zoned areas
(Jefferson County) and rural settings (Winston and Etowah Counties).
Within these areas, the rush darters' habitat has been degraded by
alteration of stream banks and bottoms; channelization; inadequate
storm water management; inappropriate placement of culverts, pipes, and
bridges; road maintenance; inadequate protection of groundwater
recharge zones and aquifers; and haphazard silvicultural and
agricultural practices. The persistence of a constant flow of clean
groundwater from various springs has somewhat offset the destruction of
the species' habitat, water quality, and water quantity; however, the
species' status still appears to be declining.

Yellowcheek Darter

The yellowcheek darter (Etheostoma moorei) is endemic to the
Devil's, Middle, South, and Archey forks of the Little Red River in
Cleburne, Searcy, Stone, and Van Buren Counties in Arkansas (Robison
and Buchanan 1988, p. 429). These streams are located primarily within
the Boston Mountains subdivision of the Ozark Plateau. 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 Devil's Fork, Middle Fork, South Fork, and portions of
the main stem Little Red River, thus extirpating the species from these
reaches. Cold tailwater releases below the dam preclude the yellowcheek
darter from inhabiting the main stem Little Red River. The yellowcheek
darter inhabits high-gradient headwater tributaries with clear water;
permanent flow; moderate to strong riffles; and gravel, cobble, and
boulder substrates (Robison and Buchanan 1988, p. 429). Prey items
consumed by yellowcheek darters include blackfly larvae, stoneflies,
and mayflies.
Robison and Harp (1981, p. 5) estimated the range of the
yellowcheek darter in the South Fork to extend from 2.9 km (1.8 mi)
north northeast of Scotland, Arkansas, to U.S. Highway 65 in Clinton,
Arkansas. The Middle Fork population was estimated to extend from just
upstream of U.S. Highway 65 near Leslie, Arkansas, to 4.8 km (3.0 mi)
west of Shirley, Arkansas. The Archey Fork population extended from its
confluence with South Castleberry Creek to immediately downstream of
U.S. Highway 65 in Clinton, Arkansas. The Devil's Fork population
extended from 4.8 km (3.0 mi) north of Prim, Arkansas, to 6.1 km (3.8
mi) east southeast of Woodrow, Arkansas.
The yellowcheek darter is threatened primarily by factors
associated with the present destruction, modification, or curtailment
of its habitat or range. Threats include sedimentation and nutrient
enrichment from impoundment, water diversion, gravel mining,
channelization or channel

[[Page 63606]]

instability, and natural gas development.

Chucky Madtom

The Chucky madtom (Noturus crypticus) is a rare catfish found in
Greene County, Tennessee. Specimens collected in Little Chucky Creek
have been found in stream runs with slow to moderate current over pea
gravel, cobble, or slab-rock boulder substrates (Burr et al. 2005, p.
797). These habitats are 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).
Little is known about Chucky madtom life history and behavior;
however, this information is available for other similar members of the
Noturus group. Dinkins and Shute (1996, p. 50) found smoky madtoms (N.
baileyi) underneath slab-rock boulders 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 (N. fasciatus) in gravel, cobble, and slab-rock boulders 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 restricted to an
approximate 3-km (1.8-mi) reach of Little Chucky Creek in Greene
County, Tennessee. Degradation from sedimentation, physical habitat
disturbance, and contaminants threaten the habitat and water quality on
which the Chucky madtom depends. Sedimentation could negatively affect
the Chucky madtom by reducing growth rates, disease tolerance, and gill
function; reducing spawning habitat, reproductive success, and egg,
larval, and juvenile development; reducing food availability through
reductions in prey; and reducing foraging efficiency. Contaminants
associated with agriculture (e.g., fertilizers, pesticides, herbicides,
and animal waste) can cause degradation of water quality and habitats
through instream oxygen deficiencies, excess nutrification, and
excessive algal growths.

Laurel Dace

The laurel dace (Chrosomus saylori) is endemic to seven streams on
the Walden Ridge portion of the Cumberland Plateau (Bledsoe, Rhea, and
Sequatchie Counties, Tennessee), where drainages generally meander
eastward before dropping abruptly down the plateau escarpment and
draining into the Tennessee River. Laurel dace are known historically
from seven streams in three disjunct 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 (Youngs, Moccasin, and Bumbee Creeks). 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 had been extirpated from the stream (Skelton 1997, p.
13; Skelton 2001, p. 126; Skelton 2009, pers. comm.).
The current distribution of laurel dace encompasses six of seven
historical streams; the species is considered extirpated from Laurel
Branch (see above). In these six streams, the species is known to
occupy reaches ranging in length from 0.3 to 8.0 rkm (0.2 to 5 rmi).
Laurel dace have been most often collected from pools or slow runs from
undercut banks or beneath slab-rock boulders, typically in first or
second order, clear, cool (maximum temperature 26 [deg]C or 78.8
[deg]F) streams. Substrates in laurel dace streams 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).
The primary threat to laurel dace throughout its range is excessive
siltation resulting from agriculture and extensive silviculture,
especially those involving inadequate riparian buffers in harvest areas
and the failure to use best management practices (BMPs) during road
construction. Severe degradation from sedimentation, physical habitat
disturbance, and contaminants threatens the habitat and water quality
on which the laurel dace depends. Sedimentation negatively affects the
laurel dace by reducing growth rates, disease tolerance, and gill
function; reducing spawning habitat, reproductive success, and egg,
larvae, and juvenile development; reducing food availability through
reductions in prey; and reducing foraging efficiency.

Summary of Comments and Recommendations

We requested written comments from the public on the proposed
designation of critical habitat for the Cumberland darter, rush darter,
yellowcheek darter, Chucky madtom, and laurel dace during two comment
periods. The first comment period associated with the publication of
the proposed rule (76 FR 63360) opened on October 12, 2011, and closed
on December 12, 2011. Based on a request made after the comment period
had ended, we held a public informational meeting concerning the
critical habitat designation for the yellowcheek darter on February 22,
2012, in Clinton, Arkansas, where we took comments on the proposed rule
and notified the public that we would also take public comments on the
rule through the end of the comment period for a draft economic
analysis. That comment period opened May 24, 2012, and closed on June
25, 2012 (77 FR 30988). Based on a request received during the first
comment period, we held a public hearing in Clinton, Arkansas, on June
7, 2012. We also contacted appropriate Federal, State, and local
agencies; scientific organizations; and other interested parties and
invited them to comment on the proposed rule and draft economic
analysis during these comment periods. We issued press releases and
published legal notices in The Times Tribune, Lexington Herald-Leader,
Greenville Sun, Knoxville News Sentinel, The Herald News, Chattanooga
Times Free Press, Birmingham News, Sand Mountain Reporter, NW
Alabamian, Arkansas Democrat-Gazette, Van Buren County Democrat, The
Sun Times, The Stone County Leader, and the Marshall Mountain Wave.
However, the Marshall Mountain Wave declined to publish a legal notice
announcing the first public comment period.
During the first comment period, we received 66 comment letters
directly addressing the proposed critical habitat designation. During
the February 22, 2012, public informational meeting, 11 individuals or
organizations made comments on the designation of critical habitat for
the yellowcheek darter. During the second comment period, we received
54 comment letters addressing the proposed critical habitat designation
or the draft economic analysis. During the June 7, 2012, public
hearing, four individuals or organizations made comments on the
designation of critical habitat for the yellowcheek darter. All
substantive information provided during the comment periods has either
been incorporated directly into this final

[[Page 63607]]

determination or is addressed below. Comments received were grouped
into five general issues categories, and are addressed in the following
summary and incorporated into the final rule as appropriate.

Peer Review

In accordance with our peer review policy published on July 1, 1994
(59 FR 34270), we solicited expert opinions from 15 knowledgeable
individuals with scientific expertise that included familiarity with
the five species and the geographic region in which the species occur.
We received responses from three of the peer reviewers.
We reviewed all comments received from the peer reviewers for
substantive issues and new information regarding critical habitat for
the five fishes. The peer reviewers generally concurred with our
methods and conclusions, and provided additional information,
clarifications, and suggestions to improve the final critical habitat
rule. Peer reviewer comments are addressed in the following summary and
incorporated into the final rule as appropriate.
For the Cumberland darter, rush darter, and Chucky madtom, the peer
reviewers agreed we relied on the best scientific information
available, accurately described the species and its habitat
requirements (primary constituent elements (PCEs)), accurately
characterized the reasons for the species' decline and the threats to
its habitat, and concurred with our critical habitat selection
criteria. We did not receive any comments from peer reviewers related
to the yellowcheek darter or laurel dace. We respond to all substantive
comments below.

Peer Reviewer Comments

(1) Comment: The Northern Beltline Corridor will cross and impact
the proposed rush darter critical habitat throughout its range in
Jefferson County, Alabama, and stimulate growth and development
throughout the area.
Our Response: The Northern Beltline Corridor has a Federal nexus
through the Federal Highway Administration (FHA). The Service has
provided official comment and evaluated the potential effects of the
Beltline with respect to the vermilion darter (Etheostoma chermockii),
watercress darter (Etheostoma nuchale), rush darter (Etheostoma
phytophylum), and other trust resources in accordance with section 7 of
the Act and the Fish and Wildlife Coordination Act (16 U.S.C. 661 et
seq.). Species surveys were conducted during the period of August 29-
30, 2011. No federally protected species were found during this survey.
The rush darter is located in a few scattered tributaries that drain
into the south side of Turkey Creek, which is a considerable distance
from the proposed beltway impact areas. The corridor will not cross any
rush darter habitat.
The Service determined that the project would have minimal to no
effect on the rush darter, which occurs in a drainage removed from the
action area (Everson 2012, pers. comm.).
(2) Comment: Predicted effects of climate change on the rush darter
and its habitat should include protection of aquifers and recharge
areas of groundwater input and corresponding higher water temperatures.
Our Response: The information currently available on the effects of
global climate change and increasing temperatures does not make
sufficiently precise estimates of the location and magnitude of the
effects. We are also not currently aware of any climate change
information specific to the habitat of the rush darter related to
temperatures of groundwater outflows and stormwater inflows that are or
would become important to the species in the future. Therefore, we are
unable to determine what additional threats and corresponding
appropriate actions to include in the final critical habitat for the
rush darter or the other fishes in this rule to address the effects of
this aspect of climate change.
(3) Comment: The critical habitat designated for the rush darter in
the headwaters in Unit 2 should be expanded to adjacent areas and
include the wetland on the western edge.
Our Response: Comment has been noted and after further analysis of
the information within Service files and that provided by the
commenter, the wetland on the western edge of Unit 2 has been included
in the final critical habitat designation for the rush darter. This
area contains the physical and biological features essential to the
conservation of the species (PCEs 1-3) and which may require special
management and protection. As a result of these changes, critical
habitat designation has increased by an additional 85.8 m (0.05 mi.)
and 0.13 ha (0.32 ac) in Unit 2 for the rush darter.
(4) Comment: One peer reviewer mentions that there are active strip
mines in the area of the proposed rush darter critical habitat in Doe
and Wildcat Branch, Winston County, Alabama. In the Energy Supply,
Distribution, or Use determination, the Service only mentions that coal
mining occurs or could occur in Cumberland darter units.
Our Response: Historically, there was an abundance of coal mining
in Winston County, Alabama. Recently, coal mining has accelerated south
of the watershed containing critical habitat for the rush darter.
However, there are no active mines that impact the surface water of the
proposed critical habitat for the rush darter. The Poplar Springs Mine
is active, but is outside the proposed critical habitat unit, and no
impacts to the surface waters are believed to occur (Drennen 2011,
pers. obs.). Although there are no obvious coal mining impacts to
surface water, little is known about groundwater impacts within the
aquifer. These types of effects are untimely in expressing themselves
and may not be known for many years, if indeed they do occur.

Comments from States

Section 4(i) of the Act states, ``the Secretary shall submit to the
State agency a written justification for his failure to adopt
regulations consistent with the agency's comments or petition.'' We
received one comment from the Kentucky Department of Fish and Wildlife
Resources (KDFWR) related to road crossings and culverts acting as
threats to the Cumberland darter. This comment was incorporated into
this final rule. We did not receive any other substantive comments from
the States (Alabama, Arkansas, Kentucky, or Tennessee) regarding the
proposed rule. No official position was expressed by the States on the
critical habitat designation.
(5) Comment: The KDFWR commented that culverts and impassable road
crossings (fords) could act as barriers to dispersal for Cumberland
darters, thereby contributing to population fragmentation and reduced
gene flow among and between populations.
Our Response: We agree that impassable road crossings and culverts
can limit or prevent natural dispersal of Cumberland darters, which can
lead to population fragmentation and reduced gene flow. We discussed
this potential threat (Factor E) in the final listing and proposed
critical habitat rules, and we summarized our current knowledge of
Cumberland darter dispersal behavior in the Physical and Biological
Features section of this final critical habitat rule.

Public Comments

Landowner Rights
(6) Comment: The proposed designation will harm private landowners
in Arkansas through increased government regulation, and

[[Page 63608]]

will add unnecessary bureaucracy in the use of surface waters.
Our Response: The designation of critical habitat will not increase
government regulation of private land in Arkansas. The effects of
private activities are not subject to the Act's section 7 consultation
requirements unless they are connected to a Federal action. Federal
activities conducted in or adjacent to areas designated as critical
habitat are already subject to section 7 consultation requirements of
the Act because of the presence of one or more species currently listed
under the Act. Most normal operations for rearing of livestock, or for
other land uses common to the upper Little Red River watershed in
Arkansas, do not require Federal permits or actions. We do not
anticipate that this designation will impose any additional direct
regulatory burdens to private landowners in Arkansas.
(7) Comment: The designation of critical habitat for the
yellowcheek darter will involve establishment of streamside buffers,
exclusion of cattle from designated critical habitat through
installation of new fencing, or taking of private land by the Federal
government.
Our Response: The designation of critical habitat does not affect
land ownership or establish a refuge, wilderness, reserve, preserve, or
other conservation area. Critical habitat designation does not regulate
private actions on private lands or confiscate private property. It
does not affect individuals, organizations, States, local governments
or other non-Federal entities that do not require Federal permits or
funding. Such designation does not allow the government or public to
access private lands.
The designation of critical habitat does not create streamside
buffers or impose requirements to fence livestock or other animals from
streams. Waters of navigable streams, such as those designated as
critical habitat for the yellowcheek darter, are considered public
waters by the State of Arkansas. The designation includes river
channels within the ordinary high water line, which would not include
adjacent private properties.

Procedural and Legal Considerations

(8) Comment: Landowners have not been contacted and given the
opportunity to respond to the proposed designation. Most landowners (in
the Little Red River watershed, Arkansas) and the people of Arkansas
did not know of the comment deadline; therefore, the comment period
should be extended and public hearings conducted.
Our Response: When we issue a proposed rule, we want to ensure
widespread knowledge and opportunity for the public to comment,
particularly among those who may be potentially affected by the action.
The proposed designation for yellowcheek darter covered portions of
four Arkansas counties; therefore, it was impossible to personally
contact all landowners in the area. However, we attempted to ensure
that as many people as possible would be aware of the proposed
designation through distribution of press releases to all major media
in the affected area, including those in State capitols and major
cities; publication of newspaper notices; and direct notification of
affected State and Federal agencies, environmental groups, major
industries, State Governors, Federal and State elected officials, and
representatives associated with the National Championship Chuck Wagon
Races (see Previous Federal Actions, above). We continued to accept all
comments received after the initial public comment period ended to
ensure that all interested parties would have the opportunity to
comment on the proposed designation. Further, although the request for
a public hearing was made after the deadline for such requests, we held
a public information meeting on February 22, 2012, and a public hearing
on June 7, 2012, following the publication that made available the
draft economic analysis (77 FR 30988). In short, we have complied with
or exceeded all of the notification requirements of the Act.

Economic Impacts and Economic Analysis

(9) Comment: Multiple commenters state that designation of critical
habitat for the yellowcheek darter would negatively affect the National
Championship Chuck Wagon Races by preventing horses from crossing the
river or by preventing the event from occurring in the future.
Additional comments state that the draft economic analysis (DEA) fails
to consider the impacts of designation on the local economy of Van
Buren County, Arkansas, where the event takes place. The commenters
state that if the event is cancelled, impacts would include loss of
business for local restaurants, motels, grocery stores, gas stations,
and feed stores, and corresponding losses in local and State tax
revenues.
Our Response: As stated in section 3.2.5 of the DEA, the Service
anticipates that the landowner who hosts the 2012 National Championship
Chuck Wagon Races could apply for a permit under section 404 of the
Clean Water Act (33 U.S.C. 1251 et seq.) to construct a dam for the
races, and may develop a habitat conservation plan that would allow
incidental taking of the species under section 10(a)(1)(B) of the Act.
Both of these actions would lead to section 7 consultations with the
Service. However, conservation measures that the Service would
recommend to prevent adverse effects to the species would also most
likely prevent adverse modification of critical habitat and would occur
regardless of critical habitat designation. It is, therefore, unlikely
that critical habitat designation itself would affect the races by
preventing horses from crossing the river or preventing the event from
occurring. Therefore critical habitat designation is not expected to
affect the regional economy.
(10) Comment: Multiple commenters state generally that the DEA does
not adequately address the economic impacts of proposed critical
habitat designation for the yellowcheek darter on cattle ranching,
farming, silviculture, natural gas and oil exploration and development,
and recreational activities. The commenters request that more studies
be done on the economic impacts of the proposed designation. Multiple
commenters suggest that the conservation measures that may result from
the rule would put a significant burden on small ranching operations
and other economic activities. Commenters specifically mention the
following measures as being costly and potentially detrimental to their
economic well-being: installation of fencing along the river to prevent
access by livestock; prohibition of bank stabilization activities; and
prohibition on using river water for irrigation purposes.
Our Response: As described in section 2.3.2 and Appendix D of the
DEA, the incremental impacts of critical habitat designation are
expected to be limited to any additional administrative costs of
section 7 consultations. Voluntary conservation measures suggested by
the Service would be recommended regardless of critical habitat
designation, in order to avoid adverse effects to the species.
Therefore, it is unlikely that critical habitat designation itself
would affect ranching, farming, silviculture, natural gas and oil
exploration and development, or recreational activities through
conservation recommendations such as installing fencing, bank
stabilization, or prohibiting use of water for irrigation purposes.
(11) Comment: One commenter expresses concern that designation of
critical habitat would hamper local fire

[[Page 63609]]

department use of river water for rural fire fighting and pump testing.
Our Response: The local fire departments' use of river water would
be unlikely to result in adverse modification of critical habitat due
to the small amounts of water used for such activities and the fact
that no Federal permit is required for these actions. Because there is
no Federal permit required, there is no Federal nexus and no section 7
consultation required for these actions. Therefore, it is unlikely that
critical habitat would generate recommendations that would hamper local
fire departments' use of river water.
(12) Comment: Multiple commenters express concern that their land
values will be negatively impacted by the designation of critical
habitat and that the DEA does not take into account the impact of
critical habitat designation on livelihoods and property values.
Our Response: The activities that may occur on a parcel of land are
not expected to be limited by the designation of critical habitat
because critical habitat is only designated below the ordinary high
water mark of streams and most activities occurring on lands adjacent
to streams do not require Federal actions that would require section 7
consultation. Therefore, direct reductions in land value due to the
designation are not expected. However, it is true that section 2.3.2 of
the DEA describes the potential indirect regulatory uncertainty or
stigma effect that the designation of critical habitat may have on
property values. However, due to uncertainty surrounding the likelihood
and extent of such indirect impacts, these potential effects are
considered speculative. The uncertainty regarding the regulatory
requirements associated with critical habitat may diminish as section 7
consultations are completed and additional information becomes
available on the effects of critical habitat on specific activities.
(13) Comment: One commenter questioned how the DEA forecasts a
value of $140,000 for impacts relating to the designation of critical
habitat for the yellowcheek darter.
Our Response: As noted in Exhibit ES-4 of the DEA, the present
value of the total incremental costs of critical habitat designation
for the yellowcheek darter is $134,000 over the next 20 years, assuming
a 7 percent discount rate. These costs reflect additional
administrative effort as part of future section 7 consultations in
order to consider the potential for activities to result in adverse
modification of critical habitat. No change in economic activity levels
or the management of economic activities is expected to result from the
critical habitat designation.
(14) Comment: Multiple commenters express support for the
designation of critical habitat for the laurel dace in Tennessee as
they believe the designation would help prevent the development of new
coal operations near Dayton, TN. Specifically, the comments state that
proposed coal mining operations in the area, if initiated, would
negatively affect the laurel dace and other species. One comment states
that the area where the laurel dace is found is located very close to a
``proposed coal processing plant location on Ogden Road, Dayton TN by
Iron Properties.''
Our Response: The DEA discusses known coal mining activity in
Tennessee in section 3.2.2. Data from the Office of Surface Mining
Reclamation and Enforcement (OSMRE) indicate that there are two pending
permits for coal mining activities in the Dayton area of Rhea County,
TN. However, only one of these potential projects occurs within a
watershed containing laurel dace critical habitat. As indicated in the
DEA, this project is located in the watershed containing proposed
critical habitat Unit 4 for the laurel dace. As indicated in Exhibit 3-
4 of the DEA, it is expected that the Service will consult on this
project with OSMRE under the Local Interagency Working Agreement
described in section 3.2.2 of the DEA. However, because conservation
measures suggested by the Service would be recommended regardless of
critical habitat, in order to avoid adverse effects to the species, it
is unlikely that critical habitat will generate any additional
recommendations that will prevent the development of new coal
operations near Dayton, TN.
(15) Comment: Multiple commenters elaborate on the potential
benefits of the proposed designation. At least one of these commenters
suggests that the long-term economic benefits of designation are not
adequately addressed in the proposed rule and DEA. Commenters suggest
the indirect benefits of critical habitat designation include: water
quality and supply improvements, opportunities to generate additional
recreation-based economic activities (park visits, hiking, biking,
fishing, camping, boating, and service industry), regional small
business growth (recreational equipment industry, lodging industry,
food industry, gas stations, and other services), increased property
values, and increased tax revenues.
Our Response: As detailed in section 3.4 of the DEA, the analysis
does not expect any changes in economic activity levels or the
management of economic activities to result from critical habitat
designation for the five fishes. Absent these changes, we do not expect
the designation to result in any incremental economic benefits, such as
water quality improvements, recreational opportunities, and increased
property values. The DEA does, however, note that conservation for
these species undertaken due to the listing (even absent the
designation of critical habitat) may generate the types of benefits
described in these comments.

Best Scientific Information

(16) Comment: Critical habitat designation for the yellowcheek
darter was not based on reliable scientific data and not enough habitat
area was surveyed.
Our Response: The Act requires the Secretary of the Interior to use
the best scientific and commercial data available when designating
critical habitat for a species.
In fulfilling this requirement, we received and used information on
the biology, ecology, distribution, abundance, status, and trends of
species from a wide variety of sources. These sources include status
surveys, biological assessments, and other unpublished material (that
is, ``gray literature'') from State natural resource agencies and
natural heritage programs, Tribal governments, other Federal agencies,
consulting firms, contractors, and individuals associated with
professional organizations and higher educational institutions. We also
use published articles from professional journals. Service biologists
are required to gather, review, and evaluate information from these
sources prior to undertaking listing, recovery, consultation, and
permitting actions. Additionally, Service biologists surveyed most of
the areas proposed as critical habitat for the yellowcheek darter as
part of a 2004 threats assessment for the endangered speckled
pocketbook mussel (Lampsilis streckeri) and yellowcheek darter
(Davidson and Wine 2004).

Factors Affecting the Species

(17) Comment: One commenter stated that the Cumberland darter is
threatened by degradation of water quality from large surface coal
mines in the northern coalfields of Scott and Campbell Counties,
Tennessee. In addition to this general concern, the commenter was aware
of selenium contamination within these same watersheds and was aware of
several notices of violation from the Tennessee Department of
Environment

[[Page 63610]]

and the OSMRE regarding degradation of water quality and impacts to
aquatic species within these watersheds. The commenter feared that
current mining activities and issuance of new permits would cause
further degradation to fish and wildlife habitats in Campbell and Scott
Counties.
Our Response: We concur with the commenter that large surface coal
mine operations in Campbell and Scott Counties, Tennessee, are a
potential threat to the Cumberland darter, and have the potential to
degrade water quality of Cumberland darter streams in these watersheds.
Streams associated with surface coal mining and valley fills are
typically characterized by elevated conductivity, elevated total
dissolved solids, and increased 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 final listing rule (75 FR 36035)
provided a more detailed analysis of these and other water quality
threats to the Cumberland darter under Summary of Factors Affecting the
Species (75 FR 36042).
(18) Comment: Two commenters raised the possibility that perched
culverts or impassable road crossings (fords) represent a threat to the
Cumberland darter and suggested that this potential threat may require
special management considerations or protection. The commenters
explained that perched culverts are common within the upper Cumberland
River system, and they often restrict fish movements, as evidenced by
lower species diversity observed by the commenters upstream of these
culverts. The commenters also suggested that connectivity of Cumberland
darter streams could be affected by these barriers, leading to further
isolation of these populations and preventing the free exchange of
genetic material between populations.
Our Response: We agree with the commenters that perched culverts
represent a potential threat to the Cumberland darter. We, too, have
observed perched culverts in the upper Cumberland River system, and we
often observe lower species diversity in reaches upstream of these
culverts. To address the potential threat posed by these barriers, we
have included additional text in the Special Management Considerations
or Protection section (below) that identifies the threat and lists
potential management activities that could ameliorate the threat.
(19) Comment: One commenter raised the possibility that
agricultural practices pose a threat to the Chucky madtom by
eliminating riparian buffers, warming stream temperatures, and
introducing fertilizer into the water.
Our Response: We agree with the commenter that agriculture can pose
a threat to the Chucky madtom. We have included additional text in the
Special Management Considerations or Protection section (below) that
identifies the threat and lists potential management activities that
could ameliorate the threat.
(20) Comment: Two commenters raised the concern that coal
exploration in the Rock Creek Lands Unsuitable for Mining area
indicates a potential threat to the laurel dace from future coal mining
in the southern coalfield areas of Tennessee.
Our Response: We agree with the commenters that possible future
coal mining in southern Tennessee represents a potential threat to the
laurel dace. To address the potential threat posed by coal mining and
acid mine drainage, we have included additional text in the Special
Management Considerations or Protection section that identifies the
threat and lists potential management activities that could ameliorate
the threat.

Summary of Changes From Proposed Rule

In preparing this final critical habitat designation for the
Cumberland darter, rush darter, yellowcheek darter, Chucky madtom, and
laurel dace, we reviewed and considered comments from the public on the
proposed designation of critical habitat published on October 12, 2011
(76 FR 63360) and our announcement of the availability of the DEA
published on May 24, 2012 (77 FR 30988). We likewise reviewed and
considered comments from a public informational meeting held on
February 22, 2012, and a public hearing held on June 7, 2012, both in
Clinton, Arkansas. As a result of public comments and peer review, we
made changes to our designation of critical habitat for these five
fishes. These changes are as follows:
(1) We added additional threats information for the Cumberland
darter, rush darter, Chucky madtom, and laurel dace.
(2) We capitalized the common name of the Chucky madtom, to reflect
the fact that it is named after Little Chucky Creek, and is therefore,
a proper noun. We updated a reference for Chucky madtom habitat and
threats, and clarified that Little Chucky Creek is the entire current
range (but not the entire historic range) of the Chucky madtom in the
Criteria Used to Identify Critical Habitat section.
(3) We updated the total number of river kilometers for the
Cumberland darter unit 1, and all four yellowcheek darter units, due to
a change in mapping methodology. The beginning and ending points of
critical habitat, as well as the unit descriptions (as described in the
proposed critical habitat rule) remain the same. The change in mapping
results from standardizing methods used to estimate the unit lengths
designated as critical habitat for all five species. This methodology
better follows the meander of the river channel and results in an
additional 0.5 river kilometers (rkm) (0.3 river miles (rmi)) for the
Cumberland darter, and an additional 6.6 rkm (4.1 rmi) for the
yellowcheek darter.
(4) We revised the ownership of one property for the yellowcheek
darter critical habitat, resulting in a change of the total number of
river kilometers in private ownership from 148 rkm (92 rmi) to 162.7
rkm (101.1 rmi), as well as a corresponding downward revision in the
other ownership types.
(5) We revised the Energy Supply, Distribution, or Use--Executive
Order 13211 section to state that coal mining could potentially occur
in one of six critical habitat units for the laurel dace.
(6) We added a spring run and associated wetlands to Unit 2 as
critical habitat for the rush darter. This 0.13 ha (0.32 ac) spring
associated wetland and 85.8 m (0.05 mi) spring run is adjacent to the
headwaters of the Unnamed Tributary to Beaver Creek and is privately
owned.
(7) We corrected errors in calculating total length and area in
Table 2 for the rush darter.

Critical Habitat

Background

Critical habitat is defined in section 3 of the Act as:
(1) The specific areas within the geographical area occupied by the
species, at the time it is listed in accordance with the Act, on which
are found those physical or biological features
(a) Essential to the conservation of the species and
(b) Which may require special management considerations or
protection; and
(2) Specific areas outside the geographical area occupied by the
species at the time it is listed, upon a determination that such areas
are

[[Page 63611]]

essential for the conservation of the species.
Conservation, as defined under section 3 of the Act, means to use
and the use of all methods and procedures that are necessary to bring
an endangered or threatened species to the point at which the measures
provided under the Act are no longer necessary. Such methods and
procedures include, but are not limited to, all activities associated
with scientific resources management such as research, census, law
enforcement, habitat acquisition and maintenance, propagation, live
trapping, and transplantation, and, in the extraordinary case where
population pressures within a given ecosystem cannot be otherwise
relieved, may include regulated taking.
Critical habitat receives protection under section 7 of the Act
through the requirement that Federal agencies ensure, in consultation
with the Service, that any action they authorize, fund, or carry out is
not likely to result in the destruction or adverse modification of
critical habitat. The designation of critical habitat does not affect
land ownership or establish a refuge, wilderness, reserve, preserve, or
other conservation area. Such designation does not allow the government
or public to access private lands. Such designation does not require
implementation of restoration, recovery, or enhancement measures by
non-Federal landowners. Where a landowner seeks or requests Federal
agency funding or authorization for an action that may affect a listed
species or critical habitat, the consultation requirements of section
7(a)(2) would apply, but even in the event of a destruction or adverse
modification finding, the obligation of the Federal action agency and
the landowner is not to restore or recover the species, but to
implement reasonable and prudent alternatives to avoid destruction or
adverse modification of critical habitat.
Under the first prong of the Act's definition of critical habitat,
areas within the geographical area occupied by the species at the time
it was listed are included in a critical habitat designation if they
contain physical or biological features (1) which are essential to the
conservation of the species and (2) which may require special
management considerations or protection. For these areas, critical
habitat designations identify, to the extent known using the best
scientific and commercial data available, those physical or biological
features that are essential to the conservation of the species (such as
space, food, cover, and protected habitat). In identifying those
physical and biological features within an area, we focus on the
principal biological or physical constituent elements (primary
constituent elements such as roost sites, nesting grounds, seasonal
wetlands, water quality, tide, soil type) that are essential to the
conservation of the species. Primary constituent elements are the
elements of physical or biological features that, when laid out in the
appropriate quantity and spatial arrangement to provide for a species'
life-history processes, are essential to the conservation of the
species.
Under the second prong of the Act's definition of critical habitat,
we can designate critical habitat in areas outside the geographical
area occupied by the species at the time it is listed, upon a
determination that such areas are essential for the conservation of the
species. For example, an area currently occupied by the species but
that was not occupied at the time of listing may be essential to the
conservation of the species and may be included in the critical habitat
designation. We designate critical habitat in areas outside the
geographical area occupied by a species only when a designation limited
to its range would be inadequate to ensure the conservation of the
species.
Section 4 of the Act requires that we designate critical habitat on
the basis of the best scientific and commercial data available.
Further, our Policy on Information Standards Under the Endangered
Species Act (published in the Federal Register on July 1, 1994 (59 FR
34271)), the Information Quality Act (section 515 of the Treasury and
General Government Appropriations Act for Fiscal Year 2001 (Pub. L.
106-554; H.R. 5658)), and our associated Information Quality
Guidelines, provide criteria, establish procedures, and provide
guidance to ensure that our decisions are based on the best scientific
data available. They require our biologists, to the extent consistent
with the Act and with the use of the best scientific data available, to
use primary and original sources of information as the basis for
recommendations to designate critical habitat.
When we are determining which areas should be designated as
critical habitat, our primary source of information is generally the
information developed during the listing process for the species.
Additional information sources may include the recovery plan for the
species, articles in peer-reviewed journals, conservation plans
developed by States and counties, scientific status surveys and
studies, biological assessments, other unpublished materials, or
experts' opinions or personal knowledge.
Habitat is dynamic, and species may move from one area to another
over time. We recognize that critical habitat designated at a
particular point in time may not include all of the habitat areas that
we may later determine are necessary for the recovery of the species.
For these reasons, a critical habitat designation does not signal that
habitat outside the designated area is unimportant or may not be needed
for recovery of the species. Areas that are important to the
conservation of the species, both inside and outside the critical
habitat designation, will continue to be subject to: (1) Conservation
actions implemented under section 7(a)(1) of the Act, (2) regulatory
protections afforded by the requirement in section 7(a)(2) of the Act
for Federal agencies to insure their actions are not likely to
jeopardize the continued existence of any endangered or threatened
species, and (3) the prohibitions of section 9 of the Act if actions
occurring in these areas may affect the species. Federally funded or
permitted projects affecting listed species outside their designated
critical habitat areas may still result in jeopardy findings in some
cases. These protections and conservation tools will continue to
contribute to recovery of this species. Similarly, critical habitat
designations made on the basis of the best available information at the
time of designation will not control the direction and substance of
future recovery plans, habitat conservation plans (HCPs), or other
species conservation planning efforts if new information available at
the time of these planning efforts calls for a different outcome.

Physical and Biological Features

In accordance with sections 3(5)(A)(i) and 4(b)(1)(A) of the Act
and regulations at 50 CFR 424.12, in determining which areas within the
geographical area occupied by the species at the time of listing to
designate as critical habitat, we consider the physical or biological
features essential to the conservation of the species and which may
require special management considerations or protection. These include,
but are not limited to:
(1) Space for individual and population growth and for normal
behavior;
(2) Food, water, air, light, minerals, or other nutritional or
physiological requirements;
(3) Cover or shelter;

[[Page 63612]]

(4) Sites for breeding, reproduction, or rearing (or development)
of offspring; and
(5) Habitats that are protected from disturbance or are
representative of the historical, geographical, and ecological
distribution of a species.
We derive the specific physical or biological features essential
for the Cumberland darter, rush darter, yellowcheek darter, Chucky
madtom, and laurel dace from studies of these species' habitats,
ecology, and life history as described in the Critical Habitat section
of the proposed rule to designate critical habitat published in the
Federal Register on October 12, 2011 (76 FR 63360), and in the
information presented below. Additional information can be found in the
final listing rule published in the Federal Register on August 9, 2011
(76 FR 48722). We have determined that these five species require the
physical or biological features described below.

Space for Individual and Population Growth and for Normal Behavior

Cumberland Darter
Little is known about the specific space requirements of the
Cumberland darter; however, the species is typically found in low to
moderate gradient, second- to fourth-order, geomorphically stable
streams, where it occupies shallow pools or runs with gentle current
over sand or sand-covered bedrock substrates with patches of gravel or
debris (O'Bara 1991, p. 10; Thomas 2007, p. 4). Geomorphically stable
streams transport sediment while maintaining their horizontal and
vertical dimensions (width to depth ratio and cross-sectional area),
pattern (sinuosity), and longitudinal profile (riffles, runs, and
pools), thereby conserving the physical characteristics of the stream,
including bottom features such as riffles, runs, and pools and the
transition zones between these features. The protection and maintenance
of these habitat features accommodate spawning, rearing, growth,
migration, and other normal behaviors of the Cumberland darter.
Limited information exists with regard to upstream or downstream
movements of Cumberland darters; however, Winn (1958a, pp. 163-164)
reported considerable pre-spawn movements for its closest relative, the
Johnny darter. In Beer Creek, Monroe County, Michigan, Johnny darters
migrated several miles between temporary stream habitats and permanent
pools in downstream reaches. Recent capture data for tagged individuals
in Cogur Fork, McCreary County, Kentucky, demonstrate that Cumberland
darters may make similar movements (Thomas 2010, pers. comm.).
Individuals tagged and released by the Kentucky Department of Fish and
Wildlife Resources (KDFWR) and Conservation Fisheries, Inc. (CFI),
traveled distances ranging from 0.4 to 0.7 rkm (0.2 to 0.4 rmi) between
their release date of September 22, 2010, and their recapture date of
November 9, 2010 (period of 48 days) (Thomas 2010, pers. comm.). Over
longer periods, it is likely that Cumberland darters can utilize stream
reaches longer than 0.7 rkm (0.4 rmi).
The current range of the Cumberland darter has been reduced to 13
streams (15 occurrences) due to destruction and fragmentation of
habitat. Fragmentation of the species' habitat has subjected these
small populations to genetic isolation, reduced space for rearing and
reproduction, reduced adaptive capabilities, and an increased
likelihood of local extinctions (Burkhead et al. 1997, pp. 397-399;
Hallerman 2003, pp. 363-364). Genetic variation and diversity within a
species are essential for recovery, adaptation to environmental change,
and long-term viability (capability to live, reproduce, and develop)
(Noss and Cooperrider 1994, pp. 282-297; Harris 1984, pp. 93-107;
Fluker et al. 2007, p. 2). The long-term viability of a species is
founded on the conservation of numerous local populations throughout
its geographic range (Harris 1984, pp. 93-104). Connectivity of these
habitats is essential in preventing further fragmentation and isolation
of Cumberland darter populations and promoting species movement and
genetic flow between populations.
Therefore, based on the information above, we identify shallow
pools and runs and associated stream segments of geomorphically stable,
second- to fourth-order streams to be an essential physical or
biological feature for the Cumberland darter. The connectivity of these
habitats is essential in accommodating feeding, breeding, growth, and
other normal behaviors of the Cumberland darter and in promoting gene
flow within the species.
Rush Darter
Little is known about the specific space requirements of the rush
darter in the Turkey Creek, Little Cove-Bristow Creek, and Clear Creek
systems (Boschung and Mayden 2004, p. 551); however, in general,
darters depend on space within geomorphically stable streams with
varying water quantities and flow. Specifically, rush darters appear to
prefer springs and spring-fed reaches of relatively low-gradient, small
streams (Bart and Taylor 1999, p. 32; Johnston and Kleiner 2001, pp. 3-
4; Stiles and Blanchard 2001, pp. 1-4; Bart 2002, p. 1; Fluker et al.
2007, p. 1; Stiles and Mills 2008, pp. 1-4) and wetland pools (Stiles
and Mills 2008, pp. 2-3). This species also relies heavily on aquatic
vegetation (Fluker et al. 2007, p. 1) including: Root masses of
emergent vegetation along the margins of spring-fed streams in very
shallow, clear, cool, and flowing water; and both small clumps and
dense stands of watercress (Nasturtium officinale), parrots feather
(Myriophyllum sp.), rushes (Juncus spp.), sedges (Carex spp.), bur reed
(Sparganium sp.), and coontail (Ceratophyllum sp.). The rush darter
inhabits streams with substrates of silt, sand, sand and silt, muck and
sand or some gravel with sand, and bedrock.
Geomorphically stable streams transport sediment while maintaining
their horizontal and vertical dimensions (width to depth ratio and
cross-sectional area), pattern (sinuosity), and longitudinal profile
(riffles, runs, and pools), thereby conserving the physical
characteristics of the stream, including bottom features such as
riffles, runs, and pools and the transition zones between these
features that contain some silt, sand, and finer substrates. The
riffles, runs, and pools not only provide space for the rush darter,
but also provide space for emergent vegetation in shallow water along
the margins of the small streams and springs for cover, and shelter
necessary for breeding, reproduction, and growth of offspring.
The current range of the rush darter within the entire Turkey
Creek, Clear Creek, and Little Cove-Bristow Creek watersheds is reduced
to localized sites due to fragmentation, separation, and destruction of
rush darter habitats and populations. There are dispersal barriers
(pipes and culverts for road crossings; channelized stream segments;
and emergent aquatic plant control, which eliminates cover habitat for
the species) and an increased amount of water extraction, which results
in insufficient aquifer recharge zones that may contribute to the
separation and isolation of rush darter populations and affect water
quality. Fragmentation of the species' habitat has isolated populations
and reduced available spaces for rearing and reproduction, thereby
reducing adaptive capability and increasing the likelihood of local
extinctions (Burkhead et al. 1997, pp. 397-399; Hallerman 2003, pp.
363-364). Genetic variation and diversity within a species are
essential for recovery, adaptation to environmental changes, and long-
term viability (capability to

[[Page 63613]]

live, reproduce, and develop) (Harris 1984, pp. 93-107; Noss and
Cooperrider 1994, pp. 282-297; Fluker et al. 2007, p. 2). Long-term
viability is founded on numerous interbreeding, local populations
throughout the range (Harris 1984, pp. 93-107). Continuity of water
flow between suitable habitats is essential in preventing further
fragmentation of the species' habitat and populations, conserving the
essential emergent vegetation in shallow water on the margins of small
streams and springs, and promoting genetic flow throughout the
populations. Continuity of habitat will maintain spawning, foraging,
and resting sites, and allow for gene flow throughout the population.
Connectivity of habitats, as a whole, also permits improvement in water
quality and water quantity by allowing unobstructed water flow
throughout the connected habitats.
Therefore, based on the information above, we identify springs and
spring-fed reaches of relatively low-gradient, geomorphically stable
streams with emergent vegetation to be an essential physical or
biological feature for the rush darter. The connectivity of these
habitats is essential in accommodating feeding, breeding, growth, and
other normal behaviors of the rush darter and in promoting gene flow
within the species.
Yellowcheek Darter
The yellowcheek darter is typically found in clear, high-gradient,
second- to fifth-order, geomorphically stable streams that maintain
permanent year-round flows (Robison and Buchanan 1988, p. 429). The
species occupies riffles with moderate to fast current over gravel,
cobble, and boulder substrates (Robison and Buchanan 1988, p. 429).
Geomorphically stable streams transport sediment while maintaining
their horizontal and vertical dimensions (width to depth ratio and
cross-sectional area), pattern (sinuosity), and longitudinal profile
(riffles, runs, and pools), thereby conserving the physical
characteristics of the stream, including bottom features such as
riffles, runs, and pools and the transition zones between these
features. The protection and maintenance of these habitat features
accommodate spawning, rearing, growth, migration, and other normal
behaviors of the yellowcheek darter.
In 1962, the construction of Little Red River Dam to create Greers
Ferry Reservoir impounded much of the range of the yellowcheek darter,
including the lower reaches of Devil's Fork, Middle Fork, South Fork,
and portions of the main stem Little Red River, thus extirpating the
species from these reaches. The 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 genetic isolation of populations (McDaniel 1984, p.
1), with only the South and Archey forks of the Little Red River
maintaining a non-inundated confluence.
As stated earlier, of the four streams supporting the yellowcheek
darter, only the South and Archey forks maintain a non-inundated
confluence. Instream habitat at the confluence of the two streams is
suboptimal due to previous channelization, but restoration could
provide an opportunity for vital population interactions between
streams to maintain genetic diversity. Fragmentation of the species'
habitat has subjected these small populations to genetic isolation,
reduced space for rearing and reproduction, reduced adaptive
capabilities, and an increased likelihood of local extinctions
(Burkhead et al. 1997, pp. 397-399; Hallerman 2003, pp. 363-364).
Genetic variation and diversity within a species are essential for
recovery, adaptation to environmental change, and long-term viability
(capability to live, reproduce, and develop) (Harris 1984, pp. 93-107;
Noss and Cooperrider 1994, pp. 282-297; Fluker et al. 2007, p. 2). The
long-term viability of a species is founded on the conservation of
numerous local populations throughout its geographic range (Harris
1984, pp. 93-104). Connectivity of these habitats is essential to
prevent further fragmentation and isolation of yellowcheek darter
populations and to promote species movement and genetic flow between
populations.
Therefore, based on the information above, we identify riffles of
geomorphically stable, second- to fifth-order streams to be an
essential physical or biological feature for the yellowcheek darter.
The connectivity of these habitats is essential to accommodate feeding,
breeding, growth, and other normal behaviors of the yellowcheek darter
and to promote gene flow within the species.
Chucky Madtom
Little is known about the specific space requirements of the Chucky
madtom; however, all of the specimens collected in Little Chucky Creek
have been found in shallow pool and run habitats with slow to moderate
current over pea gravel, cobble, or slab-rock boulder substrates (Burr
et al. 2005, p. 797). Geomorphically stable streams transport sediment
while maintaining their horizontal and vertical dimensions (width to
depth ratio and cross-sectional area), pattern (sinuosity), and
longitudinal profile (riffles, runs, and pools), thereby conserving the
physical characteristics of the stream, including bottom features, such
as riffles, runs, and pools and the transition zones between these
features. The protection and maintenance of these habitat features
accommodate spawning, rearing, growth, migration, and other normal
behaviors of the Chucky madtom.
The current range of the Chucky madtom has been reduced to only one
stream due to fragmentation and destruction of habitat. Habitat
fragmentation has subjected the small population to genetic isolation,
reduced space for rearing and reproduction, reduced adaptive
capabilities, and increased the likelihood of extinction (Burkhead et
al. 1997, pp. 397-399; Hallerman 2003, pp. 363-364). Genetic variation
and diversity within a species are essential for recovery, adaptation
to environmental change, and long-term viability (capability to live,
reproduce, and develop) (Harris 1984, pp. 93-107; Noss and Cooperrider
1994, pp. 282-297; Fluker et al. 2007, p. 2). The long-term viability
of a species is founded on the conservation of numerous local
populations throughout its geographic range (Harris 1984, pp. 93-104).
Connecting instream habitats is essential in preserving the genetic
viability of the Chucky madtom in Little Chucky Creek.
Therefore, based on the information above, we identify shallow
pools and runs of geomorphically stable streams to be an essential
physical or biological feature for the Chucky madtom. The connectivity
of these habitats is essential to accommodate feeding, breeding,
growth, and other normal behaviors of the Chucky madtom and to promote
gene flow within the species.
Laurel Dace
Little is known about the specific space requirements of the laurel
dace; however, the species is typically found in low to moderate
gradient, first- to second-order, geomorphically stable streams. The
laurel dace occupies pools or slow runs beneath undercut banks or slab-
rock boulders in clear, cool (maximum temperature 26 [deg]C (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).
Geomorphically stable streams transport sediment while maintaining

[[Page 63614]]

their horizontal and vertical dimensions (width to depth ratio and
cross-sectional area), pattern (sinuosity), and longitudinal profile
(riffles, runs, and pools), thereby conserving the physical
characteristics of the stream, including bottom features such as
riffles, runs, and pools and the transition zones between these
features. The protection and maintenance of these habitat features
accommodate spawning, rearing, growth, migration, and other normal
behaviors of the laurel dace.
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.
The current range of the laurel dace has been reduced to short
reaches (approximately 0.3 to 8 rkm (0.2 to 5 rmi) in length) of six
streams due to fragmentation and destruction of habitat. Fragmentation
of the species' habitat has subjected these small populations to
genetic isolation, reduced space for rearing and reproduction, reduced
adaptive capabilities, and an increased likelihood of local extinctions
(Burkhead et al. 1997, pp. 397-399; Hallerman 2003, pp. 363-364).
Genetic variation and diversity within a species are essential for
recovery, adaptation to environmental change, and long-term viability
(capability to live, reproduce, and develop) (Harris 1984, pp. 93-107;
Noss and Cooperrider 1994, pp. 282-297; Fluker et al. 2007, p. 2). The
long-term viability of a species is founded on the conservation of
numerous local populations throughout its geographic range (Harris
1984, pp. 93-104). Connectivity of these habitats is essential in
preventing further fragmentation and isolation of laurel dace
populations.
Therefore, based on the information above, we identify shallow
pools and runs and associated stream segments of geomorphically stable,
first- to second-order streams with riparian vegetation to be an
essential physical or biological feature for the laurel dace. The
connectivity of these habitats is essential in accommodating feeding,
breeding, growth, and other normal behaviors of the laurel dace and in
promoting gene flow within the species.

Food, Water, Air, Light, Minerals, or Other Nutritional or
Physiological Requirements

Cumberland Darter
Feeding habits of the Cumberland darter are unknown but are likely
similar to that of its sister species, the Johnny darter (Etheostoma
nigrum Rafinesque). Johnny darters are diurnal sight feeders, with prey
items consisting of midge larvae, mayfly nymphs, caddisfly larvae, and
microcrustaceans (Kuehne and Barbour 1983, p. 104; Etnier and Starnes
1993, p. 511). Similar to other darters, juvenile Cumberland darters
likely feed on planktonic organisms or other small invertebrates.
Like most other darters, the Cumberland darter depends on perennial
stream flows that create suitable habitat conditions needed for
successful completion of its life cycle. An ample supply of flowing
water provides a means of transporting nutrients and food items,
moderating water temperatures and dissolved oxygen levels, removing
fine sediments that could damage spawning or foraging habitats, and
diluting nonpoint source pollutants. Water withdrawals do not represent
a significant threat to the species, but the species is faced with
occasional low-flow conditions that occur during periods of drought.
One such event occurred in the summer and fall of 2007, when recorded
streamflows in the upper Cumberland River basin of Kentucky and
Tennessee (USGS Station Number 03404000) were among the lowest monthly
values of the last 67 years (Cinotto 2008, pers. comm.).
Water quality is also important to the persistence of the
Cumberland darter. The species requires relatively clean, cool, flowing
water to successfully complete its life cycle, but specific water
quality requirements (such as temperature, dissolved oxygen, pH, and
conductivity) that define suitable habitat conditions for the
Cumberland darter have not been determined. In general, optimal water
quality conditions for fishes and other aquatic organisms are
characterized by moderate stream temperatures, acceptable dissolved
oxygen concentrations, and the lack of harmful levels of pollutants,
such as inorganic contaminants like iron, manganese, selenium, and
cadmium; organic contaminants such as human and animal waste products;
pesticides and herbicides; nitrogen, potassium, and phosphorus
fertilizers; and petroleum distillates.
Sediment is the most common pollutant within the upper Cumberland
River system (KDOW 1996, pp. 50-53, 71-75; 2002, pp. 39-40; 2006, pp.
178-185), and the primary sources of sediment include resource
extraction (e.g., coal mining, silviculture, natural gas development),
agriculture, road construction, and urban development (Waters 1995, pp.
2-3; Skelton 1997, pp. 17, 19; KDOW 2006, pp. 178-185; Thomas 2007, p.
5). Siltation (excess sediments suspended or deposited in a stream) has
been shown to abrade and suffocate bottom-dwelling organisms; reduce
aquatic insect diversity and abundance; impair fish feeding behavior by
altering prey base and reducing visibility of prey; impair reproduction
due to burial of nests; and, ultimately, negatively impact fish growth,
survival, and reproduction (Waters 1995, pp. 5-7, 55-62; Knight and
Welch 2001, pp. 134-136). O'Bara (1991, p. 11) reported that Cumberland
darter habitats are very susceptible to siltation because of the
habitat's low to moderate gradient, low velocity, and shallow depth.
O'Bara (1991, p. 11) concluded that siltation was the major limiting
factor for the species' continued existence and its ability to colonize
new stream systems.
Cumberland darters are threatened by water quality degradation
caused by a variety of nonpoint source pollutants. Coal mining
represents a major source of nonpoint source pollutants (O'Bara 1991,
p. 11; Thomas 2007, p. 5), because it has the potential to contribute
high concentrations of dissolved metals and other solids that lower
stream pH or lead to elevated levels of stream conductivity (Pond 2004,
pp. 6-7, 38-41; Mattingly et al. 2005, p. 59). These impacts have been
shown to negatively affect fish species, including listed species, in
the Clear Fork system of the Cumberland basin (Weaver 1997, pp. 29;
Hartowicz 2008, pers. comm.). The direct effect of elevated stream
conductivity on fishes, including the Cumberland darter, is poorly
understood, but some species, such as blackside dace (Chrosomus
cumberlandensis), have shown declines in abundance over time as
conductivity increased in streams affected by mining (Hartowicz 2008,
pers. comm.). Other nonpoint source pollutants that affect the
Cumberland darter include domestic sewage (through septic tank leakage
or straight pipe discharges); agricultural pollutants such as
fertilizers, pesticides, herbicides, and animal waste; and other
chemicals associated with oil and gas development. Nonpoint source
pollutants can cause excess nutrification (increased levels of nitrogen
and phosphorus), excessive algal growth, instream oxygen deficiencies,
increased acidity and conductivity, and other

[[Page 63615]]

changes in water chemistry that can negatively impact aquatic species
(KDOW 1996, pp. 48-50; 2006, pp. 70-73).
Therefore, based on the information above, we identify aquatic
macroinvertebrate prey items; permanent surface flows, as measured
during average rainfall years; and adequate water quality with
substrates that are relatively silt-free to be an essential physical or
biological feature for the Cumberland darter. Relatively silt-free is
defined for the purpose of this rule as silt or fine sand within
interstitial spaces of substrates in amounts low enough to have minimal
impact to the species.
Rush Darter
Feeding habits of the rush darter are unknown but are likely
similar to that of its sister species, the goldstripe darter
(Etheostoma parvipinne). The goldstripe darter is a benthic (bottom)
insectivore and is known to consume midge larvae, mayfly nymphs,
blackfly larvae, beetles, and microcrustaceans (Mettee et al. 1996, p.
655). Extremes in variations in instream flows maintain the stream
bottom substrates, providing oxygen and other attributes to various
invertebrate life stages. Sedimentation has been shown to wear away and
suffocate periphyton (organisms that live attached to objects
underwater), disrupt aquatic insect communities (Waters 1995, pp. 53-
86; Knight and Welch 2001, pp. 132-135), and reduce photosynthesis in
aquatic vegetation. In addition, nutrification promotes heavy algal
growth that covers and eliminates the clean rock, gravel, and
vegetative habitats necessary for rush darter feeding. Thus, a decrease
in water quality and instream flow would correspondingly cause a
decline in the major food species for the rush darter. On the other
hand, excessive instream flow can also damage and uproot aquatic
vegetation necessary for foraging and feeding habitat.
Much of the cool, clean water provided to the Turkey Creek system
(Beaver Creek, Unnamed Tributary to Beaver Creek, Tapawingo or Penny
Springs and the Highway 79 site; Jefferson County) and Cove Spring run
of Little Cove Creek (Etowah County) comes from consistent and steady
groundwater sources (springs and seeps). Clear, flowing water provides
a means for transporting nutrients and food items, moderating water
temperatures and dissolved oxygen levels, and diluting nonpoint and
point source pollution. Without clean water sources, water quality and
water quantity would be considerably lower and would significantly
impair the normal life stages and behavior of the rush darter.
Favorable water quantity for the rush darter includes moderate
water velocity in riffles and no flow or low flow in pools (Stiles and
Mills 2008, pp. 1-4), a continuous daily discharge that allows for
longitudinal connectivity within the species' habitat (Instream Flow
Council 2004, p. 117), and discharge from both surface water runoff and
groundwater sources (springs and seepages). Along with the continuous
daily discharge, both minimum and flushing flows are necessary to
remove fine sediments and dilute other pollutants (Moffett and Moser
1978, pp. 20-21; Gilbert et al., eds. 1994, pp. 505-522; Instream Flow
Council 2004, pp. 103-104; Drennen 2009, pers. obs.). At some sites,
water depth ranges from 3.0 to 50 cm (0.1 to 1.6 ft). Groundwater
provides a constant source of flows to dilute pollutants and maintain
water quality for the persistence of the rush darter.
Factors that can potentially alter water quality include: Droughts
and periods of low seasonal flow, precipitation events, nonpoint source
runoff, human activities within the watershed, random spills,
unregulated stormwater discharge events (Instream Flow Council 2004,
pp. 29-50), and water extraction. Instream pooling may also affect
water quality by reducing water flow, altering temperatures,
concentrating pollutants (Blanco and Mayden 1999, pp. 5-6, 36), and
retarding aquatic and emergent vegetation growth.
Fishes require acceptable levels of dissolved oxygen. Generally,
among fishes, the young life forms require more dissolved oxygen and
are the most sensitive. The amount of dissolved oxygen that is present
in the water (the saturation level) depends upon water temperature. As
water temperature increases, the saturated dissolved oxygen level
decreases. The more oxygen there is in the water, the greater the
assimilative capacity (ability to consume organic wastes with minimal
impact) of that water; lower water flows have a reduced assimilative
capacity (Pitt 2000, pp. 6-7). Low-flow conditions affect the chemical
environment occupied by fishes; extended low-flow conditions coupled
with higher pollutant levels could likely result in behavioral changes
within all life stages, which could be particularly detrimental to
early life stages (e.g., embryo, larvae, and juvenile).
Optimal water quality lacks harmful levels of pollutants, such as
inorganic contaminants like copper, arsenic, mercury, and cadmium;
organic contaminants such as human and animal waste products;
endocrine-disrupting chemicals; pesticides; nitrogen, potassium, and
phosphorous fertilizers; and petroleum distillates (Alabama Department
of Environmental Management (ADEM) 1996, pp. 13-15). Sediment is the
most abundant pollutant produced in the Mobile River Basin (ADEM 1996,
pp. 13-15). Siltation (excess sediments suspended or deposited in a
stream) contributes to turbidity of the water and has been shown to
reduce photosynthesis in aquatic plants, suffocate aquatic insects,
smother fish eggs, clog fish gills, and may fill in essential
interstitial spaces (spaces between stream substrates) used by aquatic
organisms for spawning and foraging; therefore, excessive siltation
negatively impacts fish growth, physiology, behavior, reproduction, and
survival. Nutrification (excessive nutrients present, such as nitrogen
and phosphorous) promotes heavy algal growth that covers and eliminates
clean rock or gravel habitats and aquatic and emergent vegetation,
which are necessary for rush darter feeding and spawning. Generally,
early life stages of fishes are less tolerant of environmental
contamination than adults or juveniles (Little et al. 1993, p. 67).
Appropriate water quality and quantity are necessary to dilute impacts
from stormwater and other unnatural effluents. Harmful levels of
pollutants impair critical behavior processes in fishes, as reflected
in population-level responses (reduced population size, biomass, year
class success, etc.). However, excessive water quantity in the form of
substantial stormwater runoff may destabilize and move bottom and
bankside substrates and increase instream sedimentation.
Essential water quality attributes for darters and other fish
species in fast to medium water flow streams include the following:
Dissolved oxygen levels greater than 6 parts per million (ppm),
temperatures between 7 and 26.7 [deg]C (45 and 80 [deg]F) with spring
egg incubation temperatures from 12.2 to 18.3 [deg]C (54 to 65 [deg]F),
a specific conductance (ability of water to conduct an electric
current, based on dissolved solids in the water) of less than
approximately 225 micro Siemens per cm at 26.7 [deg]C (80 [deg]F), and
low concentrations of free or suspended solids (organic and inorganic
sediments) less than 10 Nephelometric Turbidity Units (NTU; units used
to measure sediment discharge) and 15 milligrams/Liter (mg/L) total
suspended solids (TSS; measured as mg/L of sediment in water) (Teels et
al. 1975, pp. 8-9; Ultschet et al. 1978, pp. 99-101; Ingersoll et al.
1984, pp. 131-138;

[[Page 63616]]

Kundell and Rasmussen 1995, pp. 211-212; Henley et al. 2000, pp. 125-
139; Meyer and Sutherland 2005, pp. 43-64).
Therefore, based on the information above, we identify cool, clean,
flowing water; shallow depths; moderate water velocity in riffles and
low flow in pools; aquatic macroinvertebrate prey items; aquatic
vegetation; and adequate water quality to be an essential physical or
biological feature for the rush darter.
Yellowcheek Darter
Adult and juvenile yellowcheek darters' prey items include blackfly
larvae, stonefly larvae, mayfly nymphs, and caddisfly larvae among
other stream insects (McDaniel 1984, p. 56). McDaniel (1984, p. 37)
noted a strong selectivity by yellowcheek darters for fly larvae year
round, while other prey taxa were consumed proportionally depending on
seasonal availability. Larval stages of yellowcheek darters have not
been studied in the field but are assumed to feed on planktonic
organisms based on laboratory rearing efforts and known larval fish
dietary habits.
Drought conditions and low water levels have been identified as
contributing factors in the decline of the yellowcheek darter (Wine et
al. 2000, p. 11). Expanding natural gas development activities that
began in the upper Little Red River watershed in 2005 require large
quantities of water and pose a threat to the continued existence of the
yellowcheek darter (75 FR 36045, June 24, 2010). Water diversion from
the Middle and South forks has increased in recent years due to large-
scale extraction of natural gas in the Fayetteville Shale (which
encompasses nearly all of the upper Little Red River drainage). Natural
gas development is imminent in the Archey and Devil's forks as well and
is predicted to affect numerous tributaries in all four watersheds.
Because the yellowcheek darter requires permanent flows with moderate
to strong current (Robison and Buchanan 1988, p. 429), seasonal
fluctuations in stream flows exacerbated by water diversion for natural
gas, agricultural, municipal, or other land uses represent a serious
threat to the species.
In addition to water quantity, water quality is also important to
the persistence of the yellowcheek darter. Although the Middle Fork is
designated as an Extraordinary Resource Water, it is listed as impaired
along a 33.5-km (20.8-mi) reach due to fecal coliform bacteria
contamination according to the Arkansas Department of Environmental
Quality (ADEQ) List of Impaired Waterbodies. This same report listed a
3.2-km (2.0-mi) stretch of the South Fork as impaired due to elevated
mercury levels (ADEQ 2010, p. 22). Boston Mountain streams that support
the yellowcheek darter are typically characterized by adequate water
quality; however, increasing activity within the watersheds related to
resource extraction, urban development, and other human-related
activities is reason for concern regarding the recovery potential of
the yellowcheek darter.
Therefore, based on the information above, we identify aquatic
macroinvertebrate prey items; permanent surface flows, as measured
during average rainfall years; moderate to strong water velocity in
riffles; and adequate water quality to be an essential physical or
biological feature for the yellowcheek darter.
Chucky Madtom
The Chucky madtom's prey items are unknown; however, least madtom
(Noturus hildebrandi) 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, followed by fly, mosquito, 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.
The TVA Index of Biological Integrity results indicate that Little
Chucky Creek is biologically impaired (Middle Nolichucky Watershed
Alliance 2006, p. 13). Given the predominantly agricultural land use
within the Little Chucky Creek watershed, nonpoint source sediment and
agrochemical discharges may pose a threat to the Chucky madtom by
altering the physical characteristics of its habitat, thus potentially
impeding its ability to feed, seek shelter from predators, and
successfully reproduce. The City of Greeneville also discharges
sediments and contaminants into the creek, thereby threatening the
Chucky madtom. Wood and Armitage (1997, pp. 211-212) identify at least
five impacts of sedimentation on fish, including: (1) Reduction of
growth rate, disease tolerance, and gill function; (2) reduction of
spawning habitat and egg, larvae, and juvenile development; (3)
modification of migration patterns; (4) reduction of food availability
through the blockage of primary production; and (5) reduction of
foraging efficiency.
Water quality is important to the persistence of the Chucky madtom.
The species requires relatively clean, cool, flowing water to
successfully complete its life cycle, but specific water quality
requirements (such as temperature, dissolved oxygen, pH, and
conductivity) that define suitable habitat conditions for the Chucky
madtom have not been determined. In general, optimal water quality
conditions for fishes and other aquatic organisms are characterized by
moderate stream temperatures and acceptable dissolved oxygen
concentrations, and they lack harmful levels of pollutants, such as
inorganic contaminants like iron, manganese, selenium, and cadmium;
organic contaminants such as human and animal waste products;
pesticides and herbicides; nitrogen, potassium, and phosphorus
fertilizers; and petroleum distillates.
As relatively sedentary animals, madtoms must tolerate the full
range of such parameters that occur naturally within the streams where
they persist. Both the amount of water (flow) and its physical and
chemical conditions (water quality) vary widely according to seasonal
precipitation events and seasonal human activities within the
watershed. In general, the species survives in areas where the
magnitude, frequency, duration, and seasonality of water flow is
adequate to remove fine particles and sediments (silt-free) without
causing degradation, and where water quality is adequate for year-round
survival (for example, moderate to high levels of dissolved oxygen, low
to moderate input of nutrients, and relatively unpolluted water and
sediments). Relatively silt-free is defined for the purpose of this
rule as silt or fine sand within interstitial spaces of substrates in
amounts low enough to have minimal impact to the species.
Therefore, based on the information above, we identify aquatic
macroinvertebrate prey items; cool, clean, flowing water; shallow
depths; permanent surface flows, as measured during average rainfall
years; and adequate water quality with substrates that are relatively
silt-free to be an essential physical or biological feature for the
Chucky madtom.
Laurel Dace
The laurel dace's 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 a large
mouth, short digestive tract, reduced number of pharyngeal (located
within the throat) teeth, and primitively shaped basioccipital bone
(bone that articulates the vertebra), are consistent with a diet
consisting largely of animal material.

[[Page 63617]]

Strange and Skelton (2005, p. 7 and Appendix 2) identified
siltation as a threat in all of the occupied Piney River tributaries
(Youngs, Moccasin, and Bumbee Creeks). The Bumbee Creek type locality
for the laurel dace is located within industrial forest that has been
subjected to extensive clear-cutting and road construction in close
proximity to the stream. Strange and Skelton (2005, p. 7) noted a heavy
sediment load at this locality and commented that conditions there in
2005 had deteriorated since the site was visited by Skelton in 2002. In
general, the species occupies areas that are relatively silt-free.
Relatively silt-free is defined for the purpose of this rule as silt or
fine sand within interstitial spaces of substrates in amounts low
enough to have minimal impact to the species.
Strange and Skelton (2005, pp. 7 and 8 and Appendix 2) also
commented on excessive siltation in localities they sampled on Youngs
and Moccasin creeks, and observed localized removal of riparian
vegetation around residences in the headwaters of each of these
streams. They considered the removal of riparian vegetation problematic
not only for the potential for increased siltation, but also for the
potential thermal alteration of these small headwater streams. Skelton
(2001, p. 125) reported that laurel dace occupy cool streams with a
maximum recorded temperature of 26 [deg]C (78.8 [deg]F). The removal of
riparian vegetation could potentially increase temperatures above the
laurel dace's maximum tolerable limit.
Water quality is important to the persistence of the laurel dace.
The species requires relatively clean, cool, flowing water to
successfully complete its life cycle, but specific water quality
requirements (such as temperature, dissolved oxygen, pH, and
conductivity) that define suitable habitat conditions for the laurel
dace have not been determined. In general, optimal water quality
conditions for fishes and other aquatic organisms are characterized by
moderate stream temperatures and acceptable dissolved oxygen
concentrations, and they lack harmful levels of pollutants, such as
inorganic contaminants like iron, manganese, selenium, and cadmium;
organic contaminants such as human and animal waste products;
pesticides and herbicides; nitrogen, potassium, and phosphorus
fertilizers; and petroleum distillates.
Other factors that can potentially alter water quality and quantity
are droughts and periods of low flow, nonpoint source run-off from
adjacent land surfaces (for example, excessive amounts of nutrients,
pesticides, and sediment), and random spills or unregulated discharge
events. Run-off or discharges could be particularly harmful during
drought conditions when flows are depressed and pollutants are more
concentrated. Adequate water quality is essential for normal behavior,
growth, and viability during all life stages of the laurel dace.
Adequate water quantity and flow and good to optimal water quality are
essential for normal behavior, growth, and viability during all life
stages. Culverts, pipes, and bridge or road maintenance sites within
the watersheds serve as dispersal barriers and have altered stream
flows from natural conditions.
Other nonpoint source pollutants that affect the laurel dace
include domestic sewage (through septic tank leakage or straight pipe
discharges) and agricultural pollutants such as fertilizers,
pesticides, herbicides, and animal waste. There are no active coal
mines within the range of the laurel dace; however, coal mining
represents a potential threat to the species in the foreseeable future.
Coal mining represents a major source of nonpoint source pollutants
because it has the potential to contribute high concentrations of
dissolved metals and other solids that lower stream pH or lead to
elevated levels of stream conductivity (Pond 2004, pp. 6-7, 38-41;
Mattingly et al. 2005, p. 59). The direct effect of elevated stream
conductivity on fishes, including the laurel dace, is poorly
understood, but some species, such as blackside dace, have shown
declines in abundance over time as conductivity increased in streams
affected by mining (Hartowicz 2008, pers. comm.).
Water temperature may also be a limiting factor in the distribution
of this species (Skelton 1997, pp. 17, 19). Canopy cover of laurel dace
streams often consists of eastern hemlock (Tsuga canadensis), mixed
hardwoods, pines (Pinus sp.), and mountain laurel (Kalmia latifolia).
The hemlock woolly adelgid (Adelges tsugae) is a nonnative insect that
infests hemlocks, causing damage or death to trees. The hemlock woolly
adelgid was recently found in Hamilton County, Tennessee, and could
impact eastern hemlock in floodplains and riparian buffers along laurel
dace streams in the future (Simmons 2008, pers. comm.). Riparian
buffers filter sediment and nutrients from overland runoff, allow water
to soak into the ground, protect stream banks and lakeshores, and
provide shade for streams. Because eastern hemlock is primarily found
in riparian areas, the loss of this species adjacent to laurel dace
streams would be detrimental to fish habitat.
Therefore, based on the information above, we identify aquatic
macroinvertebrate prey items; cool, clean, flowing water; shallow
depths; permanent surface flows, as measured during average rainfall
years; and adequate water quality with substrates that are relatively
silt-free to be an essential physical or biological feature for the
laurel dace.

Cover or Shelter

Cumberland Darter
Cumberland darters depend on specific habitats and bottom
substrates for normal life processes such as spawning, rearing,
resting, and foraging. As described above, the species' preferred
habitats (shallow pools and runs) are dominated by sand or sand-covered
bedrock with patches of gravel or debris (Thomas 2007, p. 4).
Individuals were observed by O'Bara (1991, p. 10) and Thomas (2007, p.
4) in gently flowing runs or pools at depths ranging from 20 to 76 cm
(average 36.2 cm) (3.9 to 30 in, average 14.3 in). Most of these
habitats contain isolated boulders and large cobble that the species
likely uses as cover. According to O'Bara (1991, p. 11), areas used by
the Cumberland darter for cover and shelter are very susceptible to the
effects of siltation, and the presence of relatively silt-free
substrates is the major limiting factor for both the species' continued
existence and its ability to colonize new habitats. Relatively silt-
free is defined for the purpose of this rule as silt or fine sand
within interstitial spaces of substrates in amounts low enough to have
minimal impact to the species.
Therefore, based on the information above, we identify stable,
shallow pools and runs with relatively silt-free sand, sand-covered
bedrock substrates, and isolated boulders and large cobble substrates
to be an essential physical or biological feature for the Cumberland
darter.
Rush Darter
Rush darters depend on specific stream substrates and stream
margins consisting of aquatic vegetation for normal and robust life
processes such as spawning, rearing, protection of young, protection of
adults when threatened, foraging, and feeding. Preferred substrates are
dominated by fine gravel, with lesser amounts of sand, fine silt,
coarse gravel, cobble, and bedrock (Blanco and Mayden 1999, pp. 24-26;
Drennen 2009, pers. obs.). In addition to these preferred substrates,
rush darters

[[Page 63618]]

generally prefer aquatic emergent vegetation such as watercress
(Nasturtium officinale), parrots feather (Myriophyllum sp.), rushes
(Juncus spp.), sedges (Carex spp.), burr reed (Sparganium sp.), and
coontail (Ceratophyllum sp.). This emergent vegetation is utilized by
the rush darter, especially in the quiet water along stream margins and
in ephemeral pools and tributaries (Boschung and Mayden 2004, p. 552;
Stiles 2011, pers. comm.).
Excessive siltation of gravel substrates removes foraging and
feeding sites for the rush darter (Sylte and Fischenich 2002, pp. 1-
25), and eliminates conditions necessary for some aquatic plant species
to flourish. Similarly, excessive nutrients promote dense filamentous
algae growth on the substrate and within the water column (Drennen
2007, pers. obs.; Stiles 2011, pers. comm.), which may restrict rush
darter habitat for foraging and spawning (Stiles 2011, pers. comm.).
Stormwater flows may result in scouring and erosion of important
cover, breeding, and sheltering sites for the rush darter. Conversely,
drought conditions render the darter populations vulnerable to higher
water temperatures and restricted habitat, especially during the
breeding season when they concentrate in wetland pools and shallow
pools of headwater streams (Fluker et al. 2007, p. 10).
Therefore, based on the information above, we identify quiet water
along stream margins and in shallow ephemeral pools and headwater
tributaries; aquatic emergent vegetation; a combination of silt, sand,
and gravel substrates; and seasonal stream flows sufficient to provide
connectivity and to remove excessive sediment covering the vegetation
and stream bottom substrates to be an essential physical or biological
feature for the rush darter.
Yellowcheek Darter
Summertime habitat selected by the yellowcheek darter includes
high-velocity (greater than 0.4 meters per second or 1.3 feet per
second) water over 8 to 128 millimeters (mm) (0.3 to 5.0 in) gravel and
cobble substrate at depths of 11 to 30 cm (4.3 to 11.8 in) (Brophy and
Stoeckel 2006, p. 42), which lends evidence to the suggestion by other
researchers that it is a ``riffle-obligate'' species and is unlikely to
occupy pool or run habitats when riffles are available. Preferred water
depths for yellowcheek darters ranged between 11 and 30 cm (4.3 and
11.8 in), but yellowcheek darters have been found in shallower water,
when greater depths with suitable velocities were scarce. Gravel and
cobble from 8 to 128 mm (0.3 to 5.0 in) median diameter appears to be
the important substrate type for yellowcheek darter (Brophy and
Stoeckel 2006, p. 42). Larger boulder substrates are important during
spring spawning periods (McDaniel 1984, p. 82). Siltation (excess
sediments suspended or deposited in a stream) contributes to turbidity
of the water and has been shown to suffocate aquatic insects, smother
fish eggs, clog fish gills, and may fill in essential interstitial
spaces (spaces between stream substrates) used by aquatic organisms for
spawning and foraging; therefore, excessive siltation negatively
impacts fish growth, physiology, behavior, reproduction, and survival.
In general, the species occupies areas that are relatively silt-free.
Relatively silt-free is defined for the purpose of this rule as silt or
fine sand within interstitial spaces of substrates in amounts low
enough to have minimal impact to the species.
Therefore, based on the information above, we identify high-quality
riffle substrates that are relatively silt-free and contain a mixture
of gravel, cobble, and boulder substrates to be an essential physical
or biological feature for the yellowcheek darter.
Chucky Madtom
While nothing is known specifically about Chucky madtom habitat
preferences, available information for other similar members of the
Noturus group is known. Both smoky and elegant madtoms (N. elegans)
were found to nest under flat rocks (slab-rock boulders) at or near the
head of riffles (Burr and Dimmick 1981, p. 116; Dinkins and Shute 1996,
p. 56). Smoky madtoms have also been observed using shallow pools and
to select rocks of larger dimension for nesting than were used for
shelter during other times of year (Dinkins and Shute 1996, p. 56).
Siltation (excess sediments suspended or deposited in a stream)
contributes to turbidity of the water and has been shown to smother
fish eggs, clog fish gills, and may fill in essential interstitial
spaces (spaces between stream substrates) used by aquatic organisms for
spawning and foraging; therefore, excessive siltation negatively
impacts fish growth, physiology, behavior, reproduction, and survival.
Dinkins and Shute (1996, p. 50) found smoky madtoms underneath
slab-rock boulders 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 boulder substrates in riffle habitats with depths
ranging from 0.1 to 0.3 m (0.33 to 0.98 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.
Therefore, based on the information above, we identify gently
flowing runs and pools with relatively silt-free flat gravel, cobble,
and slab-rock boulder substrates to be an essential physical or
biological feature for the Chucky madtom.
Laurel Dace
Laurel dace have been most often collected from pools or slow runs
from undercut banks or beneath slab-rock boulders, typically in first-
or second- order, clear, cool (maximum recorded 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 boulder,
and the streams tend to have a dense riparian zone consisting largely
of mountain laurel (Skelton 2001, pp. 125-126). Siltation (excess
sediments suspended or deposited in a stream) contributes to turbidity
of the water and has been shown to smother fish eggs, clog fish gills,
and may fill in essential interstitial spaces (spaces between stream
substrates) used by aquatic organisms for spawning and foraging;
therefore, excessive siltation negatively impacts fish growth,
physiology, behavior, reproduction, and survival.
Water temperature may be a limiting factor in the distribution of
this species (Skelton 1997, pp. 17, 19). Canopy cover of laurel dace
streams often consists of eastern hemlock (Tsuga canadensis), mixed
hardwoods, pines (Pinus spp.), and mountain laurel (Kalmia latifolia).
Riparian buffers filter sediment and nutrients from overland runoff,
allow water to soak into the ground, protect stream banks and
lakeshores, and provide shade for streams. The hemlock woolly adelgid
is a nonnative insect that infests hemlocks, causing damage or death to
trees. The woolly adelgid was recently found in Hamilton County,
Tennessee, and could impact eastern hemlock in floodplains and riparian
buffers along laurel dace streams in the future (Simmons 2008, pers.
comm.). Because eastern hemlock is primarily found in riparian areas,
the loss of this species adjacent to laurel dace streams would be
detrimental to fish habitat.
Habitat destruction and modification also stem from existing or
proposed

[[Page 63619]]

infrastructure development in association with silvicultural
activities. The presence of culverts at one or more road crossings in
most of the streams inhabited by laurel dace may disrupt upstream
dispersal within those systems (Chance 2008, pers. obs.). Such
dispersal barriers could prevent re-establishment of laurel dace
populations in reaches where they suffer localized extinctions due to
natural or human-caused events.
Therefore, based on the information above, we identify stream
connectivity, gently flowing runs and pools with relatively silt-free
cobble and slab-rock boulder substrates with undercut banks, and canopy
cover to be an essential physical or biological feature for the laurel
dace.

Sites for Breeding, Reproduction, or Rearing (or Development) of
Offspring

Cumberland Darter
Little is known regarding the reproductive habits of the Cumberland
darter. Thomas (2007, p. 4) reported the collection of male Cumberland
darters in breeding condition in April and May, with water temperatures
ranging from 15 to 18 [deg]C (59 to 64 [deg]F). Extensive searches by
Thomas (2007, p. 4) produced no evidence of nests or eggs at these
sites. Reproductive habits of its closest relative, the Johnny darter,
have been well studied by Winn (1958a, pp. 163-183; 1958b, pp. 205-
207), Speare (1965, pp. 308-314), and Bart and Page (1991, pp. 80-86).
Spawning occurs from April to June, with males migrating to spawning
areas prior to females and establishing territories at selected
spawning sites. Males establish a nest under a submerged object
(boulder or woody debris) by using fin movements to remove silt and
fine debris. Females enter the nests, the spawning pair inverts, and
females deposit between 40 and 200 adhesive eggs on the underside of
the nest object. Males care for the nest by periodically fanning the
area to remove silt. The eggs hatch in about 6 to 16 days, depending on
water temperature. Hatchlings are about 5 mm (0.2 in) and reach 29 to
38 mm (1.1 to 1.5 in) at age 1. Given these specialized reproductive
behaviors, it is apparent that the Cumberland darter requires second-
to fourth-order streams containing gently flowing run and pool habitats
with sand and bedrock substrates, boulders, woody debris, or other
cover and that are relatively silt-free. It is essential to maintain
the connectivity of these sites, to accommodate breeding, growth, and
other normal behaviors of the Cumberland darter and to promote gene
flow within the species.
Therefore, based on the information above, we identify stable,
second- to fourth-order streams containing gently flowing run and pool
habitats with sand and bedrock substrates, boulders, large cobble,
woody debris, or other cover and that are relatively silt-free and
stream connectivity to be an essential physical or biological feature
for the Cumberland darter.
Rush Darter
Rush darters depend on bottom substrates dominated by sand, fine
silt, fine gravel and some coarse gravel, and that have significant
amounts of emergent aquatic and overhanging terrestrial vegetation
(Drennen 2009, pers. obs.).
In July 2008, rush darter young-of-the-year were collected within
areas of very little water in the headwaters of an unnamed tributary in
Jefferson County (Kuhajda 2008, pers. comm.), and in January 2008, the
same tributary was dry. In previous years, this area was a spawning and
nursery site for rush darters (Kuhajda 2008, pers. comm.). During May
and June, rush darters spawned at this site even though the area had
been dewatered occasionally in the summer, fall, and winter (Kuhajda
2008, pers. comm.). Adult rush darters are present in headwater areas
for spawning during May and June, and may leave these sites or become
trapped in ephemeral pools during the summer. Adults may be migrating
upstream from watered areas, or juveniles and adults may be moving
downstream from the spring-fed wetland that constitutes the headwaters
of the unnamed tributary (Kuhajda 2008, pers. comm.).
Therefore, based on the information above, we identify permanent
and ephemeral shallow streams with quiet water along stream margins and
in shallow ephemeral pools and headwater tributaries, along with
seasonal stream flows sufficient to provide connectivity and refugia to
promote the emergent aquatic vegetation necessary for spawning and
rearing of young, to be an essential physical or biological feature for
the rush darter.
Yellowcheek Darter
Yellowcheek darter spawning occurs from late May through June in
the swift to moderately swift portions of riffles, often around or
under the largest rocks (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 non-spawning 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, 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 suggest
that yellowcheek darters deposit eggs on the undersides of larger
rubble in swift water (McDaniel 1984, p. 82). Wine and Blumenshine
(2002, p. 10) noted that during laboratory spawning, yellowcheek darter
females bury themselves in fine gravel or sand substrates (often behind
large, fist-sized cobble) with only their heads and caudal fin exposed.
A yellowcheek darter male will then position himself upstream of the
buried female and fertilize her eggs. Clutch size and nest defense
behavior were not observed. Given these specialized reproductive
behaviors, the importance of riffle habitats that are characterized by
good water quality and sufficient substrates that are relatively silt-
free is apparent.
Therefore, based on the information above, we identify swift to
moderately swift riffles with gravel, cobble, and boulder substrates
that are characterized by good water quality and are relatively silt-
free to be an essential physical or biological feature for the
yellowcheek darter.
Chucky Madtom
Little is known regarding the reproductive habits of the Chucky
madtom; however, both smoky and elegant madtoms were found to nest
under flat slab-rock boulders at or near the head of riffles (Burr and
Dimmick 1981, p. 116; Dinkins and Shute 1996, p. 56). Shallow pools
were also used by the smoky madtom. Smoky madtoms selected larger rocks
for nesting than were used for shelter during other times of year
(Dinkins and Shute 1996, p. 56). A single male madtom guards the nest
in the cases of smoky, elegant, Ozark (Noturus albater), and least
madtoms (Mayden et al. 1980, p. 337; Burr and Dimmick 1981, p. 116;
Mayden and Walsh 1984, p. 357; Dinkins and Shute 1996, p. 56). While
guarding the nest, many were found to have empty stomachs suggesting
that they do not feed during nest guarding, which can last as long as 3
weeks.

[[Page 63620]]

Siltation (excess sediments suspended or deposited in a stream)
contributes to turbidity of the water and has been shown to smother
fish eggs, clog fish gills, and may fill in essential interstitial
spaces (spaces between stream substrates) used by aquatic organisms for
spawning and foraging; therefore, excessive siltation negatively
impacts fish growth, physiology, behavior, reproduction, and survival.
Therefore, based on the information above, we identify streams
containing gently flowing run and pool habitats with flat or slab-rock
boulder substrates that are relatively silt-free to be an essential
physical or biological feature for the Chucky madtom.
Laurel Dace
Little is known regarding the reproductive habits of the laurel
dace. Skelton (2001, p. 126) reported having collected nuptial
individuals from late March until mid-June, although Call (2004, pers.
obs.) observed males in waning nuptial color during surveys on July 22,
2004. Laurel dace may be a spawning nest associate 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) collected a nest-building minnow with laurel
dace. Skelton (2001, p. 127) observed laurel dace burying their noses
in the gravel of largescale stoneroller (Campostoma oligolepis) nests.
The nests used by blackside dace had moderate flow and consisted of
gravel substrate at depths of 20 cm (7.9 in) (Starnes and Starnes 1981,
p. 366). These nests were noted to be approximately 0.7 m (2.3 ft) from
undercut banks (Starnes and Starnes 1981, p. 366).
Siltation (excess sediments suspended or deposited in a stream)
contributes to turbidity of the water and has been shown to smother
fish eggs, clog fish gills, and may fill in essential interstitial
spaces (spaces between stream substrates) used by aquatic organisms for
spawning and foraging; therefore, excessive siltation negatively
impacts fish growth, physiology, behavior, reproduction, and survival.
Therefore, based on the information above, we identify headwater
streams containing moderately flowing run and pool habitats with gravel
substrates, containing undercut banks, and that are relatively silt-
free to be an essential physical or biological feature for the laurel
dace.

Primary Constituent Elements

Under the Act and its implementing regulations, we are required to
identify the physical or biological features essential to the
conservation of the Cumberland darter, rush darter, yellowcheek darter,
Chucky madtom, and laurel dace in areas occupied at the time of
listing, focusing on the features' primary constituent elements.
Primary constituent elements are those specific elements of the
physical or biological features that provide for a species' life-
history processes and are essential to the conservation of the species.
Based on our current knowledge of the physical or biological
features and habitat characteristics required to sustain the five
species' life history processes, we determine that the primary
constituent elements specific to these five fishes are:

Cumberland Darter

(1) Primary Constituent Element 1--Shallow pools and gently flowing
runs of geomorphically stable, second- to fourth-order streams with
connectivity between spawning, foraging, and resting sites to promote
gene flow throughout the species' range.
(2) Primary Constituent Element 2--Stable bottom substrates
composed of relatively silt-free sand and sand-covered bedrock,
boulders, large cobble, woody debris, or other cover.
(3) Primary Constituent Element 3--An instream flow regime
(magnitude, frequency, duration, and seasonality of discharge over
time) sufficient to provide permanent surface flows, as measured during
years with average rainfall, and to maintain benthic habitats utilized
by the species.
(4) Primary Constituent Element 4--Adequate water quality
characterized by moderate stream temperatures, acceptable dissolved
oxygen concentrations, moderate pH, and low levels of pollutants.
Adequate water quality is defined for the purpose of this rule as the
quality necessary for normal behavior, growth, and viability of all
life stages of the Cumberland darter.
(5) Primary Constituent Element 5--Prey base of aquatic
macroinvertebrates, including midge larvae, mayfly nymphs, caddisfly
larvae, and microcrustaceans.

Rush Darter

(1) Primary Constituent Element 1--Springs and spring-fed reaches
of geomorphically stable, relatively low-gradient, headwater streams
with appropriate habitat (bottom substrates) to maintain essential
riffles, runs, and pools; emergent vegetation in shallow water and on
the margins of small streams and spring runs; cool, clean, flowing
water; and connectivity between spawning, foraging, and resting sites
to promote gene flow throughout the species' range.
(2) Primary Constituent Element 2--Stable bottom substrates
consisting of a combination of sand with silt, muck, gravel, or bedrock
and adequate emergent vegetation in shallow water on the margins of
small permanent and ephemeral streams and spring runs.
(3) Primary Constituent Element 3--Instream flow with moderate
velocity and a continuous daily discharge that allows for a
longitudinal connectivity regime inclusive of both surface runoff and
groundwater sources (springs and seepages) and exclusive of flushing
flows caused by stormwater runoff.
(4) Primary Constituent Element 4--Water quality with temperature
not exceeding 26.7 [deg]C (80 [deg]F), dissolved oxygen 6.0 milligrams
or greater per liter (mg/L), turbidity of an average monthly reading of
10 Nephelometric Turbidity Units (NTU; units used to measure sediment
discharge) and 15mg/L total suspended solids (TSS; measured as mg/L of
sediment in water) or less; and a specific conductance (ability of
water to conduct an electric current, based on dissolved solids in the
water) of no greater than 225 micro Siemens per centimeter at 26.7
[deg]C (80 [deg]F).
(5) Primary Constituent Element 5--Prey base of aquatic
macroinvertebrates, including midge larvae, mayfly nymphs, blackfly
larvae, beetles, and microcrustaceans.

Yellowcheek Darter

(1) Primary Constituent Element 1--Geomorphically stable, second-
to fifth-order streams with riffle habitats, and connectivity between
spawning, foraging, and resting sites to promote gene flow within the
species' range where possible.
(2) Primary Constituent Element 2--Stable bottom composed of
relatively silt-free, moderate to strong velocity riffles with gravel,
cobble, and boulder substrates.
(3) Primary Constituent Element 3--An instream flow regime
(magnitude, frequency, duration, and seasonality of discharge over
time) sufficient to provide permanent surface flows, as measured during
years with average rainfall, and to maintain benthic habitats utilized
by the species.
(4) Primary Constituent Element 4--Adequate water quality
characterized by moderate stream temperatures, acceptable dissolved
oxygen concentrations, moderate pH, and low levels of pollutants.
Adequate water quality is defined for the purpose of this rule as the
quality necessary for normal behavior, growth, and viability of all
life stages of the yellowcheek darter.

[[Page 63621]]

(5) Primary Constituent Element 5--Prey base of aquatic
macroinvertebrates, including blackfly larvae, stonefly larvae, mayfly
nymphs, and caddisfly larvae.

Chucky Madtom

(1) Primary Constituent Element 1--Gently flowing run and pool
reaches of geomorphically stable streams with cool, clean, flowing
water; shallow depths; and connectivity between spawning, foraging, and
resting sites to promote gene flow throughout the species' range.
(2) Primary Constituent Element 2--Stable bottom substrates
composed of relatively silt-free, flat gravel, cobble, and slab-rock
boulders.
(3) Primary Constituent Element 3--An instream flow regime
(magnitude, frequency, duration, and seasonality of discharge over
time) sufficient to provide permanent surface flows, as measured during
years with average rainfall, and to maintain benthic habitats utilized
by the species.
(4) Primary Constituent Element 4--Adequate water quality
characterized by moderate stream temperatures, acceptable dissolved
oxygen concentrations, moderate pH, and low levels of pollutants.
Adequate water quality is defined for the purpose of this rule as the
quality necessary for normal behavior, growth, and viability of all
life stages of the Chucky madtom.
(5) Primary Constituent Element 5--Prey base of aquatic
macroinvertebrates, including midge larvae, mayfly nymphs, caddisfly
larvae, and stonefly larvae.

Laurel Dace

(1) Primary Constituent Element 1--Pool and run habitats of
geomorphically stable, first- to second-order streams with riparian
vegetation; cool, clean, flowing water; shallow depths; and
connectivity between spawning, foraging, and resting sites to promote
gene flow throughout the species' range.
(2) Primary Constituent Element 2--Stable bottom substrates
composed of relatively silt-free gravel, cobble, and slab-rock boulder
substrates with undercut banks and canopy cover.
(3) Primary Constituent Element 3--An instream flow regime
(magnitude, frequency, duration, and seasonality of discharge over
time) sufficient to provide permanent surface flows, as measured during
years with average rainfall, and to maintain benthic habitats utilized
by the species.
(4) Primary Constituent Element 4--Adequate water quality
characterized by moderate stream temperatures, acceptable dissolved
oxygen concentrations, moderate pH, and low levels of pollutants.
Adequate water quality is defined for the purpose of this rule as the
quality necessary for normal behavior, growth, and viability of all
life stages of the laurel dace.
(5) Primary Constituent Element 5--Prey base of aquatic
macroinvertebrates, including midge larvae, caddisfly larvae, and
stonefly larvae.
With this designation of critical habitat, we intend to identify
the physical or biological features essential to the conservation of
these five species, through the identification of the features' primary
constituent elements sufficient to support life-history processes of
these species.

Special Management Considerations or Protection

When designating critical habitat, we assess whether the areas
within the geographical area occupied by the species at the time of
listing contain features that are essential to the conservation of the
species and which may require special management considerations or
protection.
Cumberland Darter
The 15 units we are designating as critical habitat for the
Cumberland darter will require some level of management to address the
current and future threats to the physical and biological features of
the species. Due to their location on the Daniel Boone National Forest
(DBNF), at least a portion of 13 of the 15 critical habitat units are
being managed and protected under DBNF's Land and Resource Management
Plan (LRMP) (United States Forest Service (USFS) 2004, pp. 1-14). The
LRMP is implemented through a series of project-level decisions based
on appropriate site-specific analysis and disclosure. It does not
contain a commitment to select any specific project; rather, it sets up
a framework of desired future conditions with goals, objectives, and
standards to guide project proposals. Projects are proposed to solve
resource management problems, move the forest environment toward
desired future conditions, and supply goods and services to the public
(USFS 2004, pp. 1-14). The LRMP contains a number of protective
standards that in general are designed to avoid and minimize potential
adverse effects to the Cumberland darter and other federally listed
species; however, the DBNF will continue to conduct project-specific
section 7 consultation under the Act when their activities may
adversely affect streams supporting Cumberland darters.
Two of the 15 critical habitat units are located entirely on
private property and are not presently under the special management or
protection provided by a legally operative plan or agreement for the
conservation of the species. Activities in or adjacent to these 15
critical habitat areas may affect one or more of the physical and
biological features essential to the Cumberland darter. For example,
features in this critical habitat designation may require special
management due to threats posed by resource extraction (coal surface
mining, silviculture, natural gas and oil exploration activities),
agricultural activities (livestock), lack of adequate riparian buffers,
presence of perched road culverts or impassable road crossings that
restrict fish movement, construction and maintenance of State and
county roads, nonpoint source pollution arising from stormwater runoff,
and canopy loss caused by infestations of the hemlock woolly adelgid.
These threats are in addition to adverse effects of drought, floods, or
other natural phenomena. Other activities that may affect physical and
biological features in the critical habitat units include those listed
in the Effects of Critical Habitat Designation section below.
Management activities that could ameliorate these threats include,
but are not limited to: Use of BMPs designed to reduce sedimentation,
erosion, and bank side destruction; moderation of surface and ground
water withdrawals to maintain natural flow regimes; increase of
stormwater management and reduction of stormwater flows into the
systems; preservation of headwater springs and streams; regulation of
off-road vehicle use; removal or replacement of perched culverts or
fords that can restrict darter movements and reduce genetic exchange
between populations; and reduction of other watershed and floodplain
disturbances that release sediments, pollutants, or nutrients into the
water.
In summary, we find that the areas we are designating as critical
habitat for the Cumberland darter contain the physical or biological
features for the species, and that these features may require special
management considerations or protection. Special management
consideration or protection may be required to eliminate, or to reduce
to negligible levels, the threats affecting the physical or biological
features of each unit.
Rush Darter
The eight units we are designating as critical habitat for the rush
darter will require some level of management to address the current and
future threats to the physical and biological features of

[[Page 63622]]

the rush darter. None of the critical habitat units (or their
corresponding aquifer recharge zones, which are not designated as
critical habitat) are presently under special management or protection
provided by a legally operative plan or agreement for the conservation
of the rush darter. However, 4.7 rkm (2.9 rmi) of the Turkey Creek
watershed (Jefferson County) is designated critical habitat for the
vermilion darter (Etheostoma chermocki) (75 FR 75913, December 7, 2010)
which includes a portion of rush darter unit 2. Various activities in
or adjacent to the critical habitat units described in this final rule
may affect one or more of the physical and biological features. For
example, features in the critical habitat designation may require
special management due to threats posed by the following activities or
disturbances: Urbanization activities and inadequate stormwater
management (such as stream channel modification for flood control or
gravel extraction) that could cause an increase in bank erosion;
significant changes in the existing flow regime within the streams due
to water diversion or withdrawal; significant alteration of water
quality; significant alteration in the quantity of groundwater,
prevention of water from percolating into the aquifer recharge zone,
and alteration of spring discharge sites; significant changes in stream
bed material composition and quality due to construction projects and
maintenance activities; off-road vehicle use; sewer, gas, and water
easements; bridge construction; culvert and pipe installation; and
other watershed and floodplain disturbances that release sediments or
nutrients into the water. Other activities that may affect physical and
biological features in the critical habitat units include those listed
in the Effects of Critical Habitat Designation section below.
Management activities that could ameliorate these threats include,
but are not limited to: Use of BMPs designed to reduce sedimentation,
erosion, and bank side destruction; moderation of surface and ground
water withdrawals to maintain natural flow regimes; increase of
stormwater management and reduction of stormwater flows into the
systems; preservation of headwater springs, spring runs, and ephemeral
rivulets; regulation of off-road vehicle use; and reduction of other
watershed and floodplain disturbances that release sediments,
pollutants, or nutrients into the water.
In summary, we find that the areas we are designating as critical
habitat for the rush darter contain the physical or biological features
for the species, and that these features may require special management
considerations or protection. Special management consideration or
protection may be required to eliminate, or to reduce to negligible
levels, the threats affecting the physical or biological features of
each unit.
Yellowcheek Darter
The four units we are designating as critical habitat for the
yellowcheek darter will require some level of management to address the
current and future threats to the physical and biological features of
the species. The yellowcheek darter is currently covered under a
candidate conservation agreement with assurances (CCAA) in the upper
Little Red River watershed in Arkansas, along with the endangered
speckled pocketbook mussel, which does not have critical habitat
designated. Of the 205,761 hectares (ha) (508,446 acres (ac)) within
the upper Little Red River watershed known to support the yellowcheek
darter, approximately 35,208 ha (87,000 ac) are owned by private
parties (Service 2007, p. 4). To date, multiple landowners have
enrolled 4,672 ha (11,544 ac) in the program since its inception in
mid-2007, and 10 more landowners with approximately 20,234 ha (50,000
ac) have pending draft agreements. Lands enrolled in these conservation
programs include areas within the critical habitat as well as riparian
and upland areas that are outside of the critical habitat boundary.
Various activities in or adjacent to critical habitat may affect one or
more of the physical and biological features. For example, features in
this critical habitat designation may require special management due to
threats posed by natural gas extraction; timber harvest; gravel mining;
unrestricted cattle access into streams; water diversion for
agriculture, industry, municipalities, or other purposes; lack of
adequate riparian buffers; construction and maintenance of county and
State roads; and nonpoint source pollution arising from development and
a broad array of human activities. These threats are in addition to
random effects of drought, floods, or other natural phenomena. Other
activities that may affect physical and biological features in the
critical habitat units include those listed in the Effects of Critical
Habitat Designation section below.
Management activities that could ameliorate these threats include,
but are not limited to: Use of BMPs designed to reduce sedimentation,
erosion, and bank side destruction; moderation of surface and ground
water withdrawals to maintain natural flow regimes; increase of
stormwater management and reduction of stormwater flows into the
systems; preservation of headwater springs and streams; regulation of
off-road vehicle use; and reduction of other watershed and floodplain
disturbances that release sediments, pollutants, or nutrients into the
water.
In summary, we find that the areas we are designating as critical
habitat for the yellowcheek darter contain the physical or biological
features for the species, and that these features may require special
management considerations or protection. Special management
consideration or protection may be required to eliminate, or to reduce
to negligible levels, the threats affecting the physical or biological
features of each unit.
Chucky Madtom
The single unit we are designating as critical habitat for the
Chucky madtom will require some level of management to address the
current and future threats to the physical and biological features of
the species. The critical habitat unit is located on private property
and is not presently under the special management or protection
provided by a legally operative plan or agreement for the conservation
of the species. Various activities in or adjacent to the critical
habitat unit described in this rule may affect one or more of the
physical and biological features. For example, features in this
critical habitat designation may require special management due to
threats posed by agricultural activities (e.g., row crops and
livestock), lack of adequate riparian buffers, construction and
maintenance of State and county roads, gravel mining, and nonpoint
source pollution (e.g., agrochemicals, sediment) arising from a wide
variety of human activities. These threats are in addition to random
effects of drought, floods, or other natural phenomena. Other
activities that may affect physical and biological features in the
critical habitat unit include those listed in the Effects of Critical
Habitat Designation section below.
Management activities that could ameliorate these threats include,
but are not limited to: Use of BMPs designed to reduce sedimentation,
erosion, and bank side destruction; moderate application of
agrochemicals; moderation of surface and ground water withdrawals to
maintain natural flow regimes; increase of stormwater management and
reduction of stormwater flows into the systems; preservation of
headwater streams; and reduction of other

[[Page 63623]]

watershed and floodplain disturbances that release sediments,
pollutants, or nutrients into the water.
In summary, we find that the area we are designating as critical
habitat for the Chucky madtom contains the physical or biological
features for the species, and that these features may require special
management considerations or protection. Special management
consideration or protection may be required to eliminate, or to reduce
to negligible levels, the threats affecting the physical or biological
features of the unit.
Laurel Dace
The six units we are designating as critical habitat will require
some level of management to address the current and future threats to
the physical and biological features of the laurel dace. These units
are located on private property and are not presently under the special
management or protection provided by a legally operative plan or
agreement for the conservation of the species. Various activities in or
adjacent to these areas of critical habitat may affect one or more of
the physical and biological features. For example, features in this
critical habitat designation may require special management due to
threats posed by resource extraction (coal and gravel mining,
silviculture, natural gas and oil exploration activities), agricultural
activities (row crops and livestock), lack of adequate riparian
buffers, construction and maintenance of State and county roads,
nonpoint source pollution arising from a wide variety of human
activities, and canopy loss caused by infestations of the hemlock
woolly adelgid. These threats are in addition to random effects of
drought, floods, or other natural phenomena. Other activities that may
affect physical and biological features in the critical habitat units
include those listed in the Effects of Critical Habitat Designation
section below.
Management activities that could ameliorate these threats include,
but are not limited to: Use of BMPs designed to reduce sedimentation,
erosion, and bank side destruction; moderation of surface and ground
water withdrawals to maintain natural flow regimes; increase of
stormwater management and reduction of stormwater flows into the
systems; preservation of headwater streams; regulation of off-road
vehicle use; and reduction of other watershed and floodplain
disturbances that release sediments, acid mine drainage, pollutants, or
nutrients into the water.
In summary, we find that the areas we are designating as critical
habitat for the laurel dace contain the physical or biological features
for the species, and that these features may require special management
considerations or protection. Special management consideration or
protection may be required to eliminate, or to reduce to negligible
levels, the threats affecting the physical or biological features of
each unit.

Criteria Used To Identify Critical Habitat

As required by section 4(b)(1)(A) of the Act, we used the best
scientific and commercial data available to designate critical habitat.
We reviewed available information pertaining to the habitat
requirements of the species. In accordance with the Act and its
implementing regulation at 50 CFR 424.12(e), we considered whether
designating additional areas--outside those currently occupied as well
as those occupied at the time of listing--are necessary to ensure the
conservation of the species. We are designating critical habitat in
areas within the geographical area occupied by the species at the time
of listing in 2011. We also are designating specific areas outside the
geographical area occupied by the Cumberland darter at the time of
listing that are within the historical range of the species, but
currently unoccupied, because we have determined that such areas are
essential for the conservation of the species. Below is a discussion of
the criteria used to identify critical habitat for each of the five
species.
Cumberland Darter
We are designating critical habitat in areas within the
geographical area occupied by the Cumberland darter at the time of
listing in 2011. We also are designating specific areas outside the
geographical area occupied by the species at the time of listing that
were historically occupied but are presently unoccupied, because we
have determined that: (1) Such areas are essential for the conservation
of the species; and (2) designation of only occupied habitats is not
sufficient to conserve this species. Unoccupied habitats provide
additional habitat for population expansion and promote greater genetic
diversity, which will decrease the risk of extinction for the species.
We used information from surveys and reports prepared by the
Kentucky Department of Fish and Wildlife Resources, Kentucky Division
of Water, and Service records to identify specific locations occupied
by the Cumberland darter. Delineations were based on the best available
scientific information indicating portions of streams containing
necessary physical or biological features to support the Cumberland
darter. We set the upstream and downstream limits of each critical
habitat unit by identifying landmarks (bridges, confluences, road
crossings, dams) above and below the upper and lowermost reported
locations of the Cumberland darter in each stream reach to ensure
incorporation of all potential sites of occurrence.
We used ARCGIS to delineate the specific stream segments occupied
by the Cumberland darter at the time of listing, and those locations
outside the geographical area occupied by the species at the time it
was listed that were determined to be essential for the conservation of
the species. Areas designated as critical habitat for the Cumberland
darter include only stream channels within the ordinary high water line
and do not contain any developed areas or structures.
We are designating as critical habitat all stream reaches in
occupied habitat. These stream reaches comprise the entire known range
of the species. As discussed above, currently occupied habitat for the
Cumberland darter is limited to 13 streams in McCreary and Whitley
Counties, Kentucky, and Campbell and Scott Counties, Tennessee. All
currently occupied areas contain the physical or biological features of
the species.
To identify essential areas outside of the geographical area
occupied at the time of listing, we identified areas historically
occupied (currently unoccupied) in the upper Cumberland River basin in
Kentucky (McCreary and Whitley Counties) and Tennessee (Campbell and
Scott Counties). We then assessed the critical life-history components
of the Cumberland darter, as they relate to the physical or biological
features. We determined the appropriate length of stream segments by
identifying the upstream and downstream limits of unoccupied sections
necessary for the conservation of the Cumberland darter.
In addition, we are designating as critical habitat reaches that
were not occupied by the Cumberland darter at the time of listing, but
that are located within the historical range of the species. During our
evaluation of unoccupied stream reaches, we considered the availability
of potential habitat throughout the historical range that may be
essential to the survival and conservation of the species. We
eliminated from consideration streams with degraded habitat and water
quality conditions, and other streams with

[[Page 63624]]

potentially suitable habitat but that are separated from basins with
occupied habitats. This screening process produced two unoccupied
stream reaches (Indian Creek and Kilburn Fork), which we are
designating as critical habitat. These reaches are adjacent to
currently occupied areas where there is potential for natural dispersal
and reoccupation by the species.
Currently occupied habitats of the Cumberland darter are highly
localized and fragmented, with populations separated from one another
by an average distance of 30.5 stream km (19 stream mi). As explained
above, this fragmentation and isolation of populations reduces the
amount of space for rearing and reproduction, reduces the connectivity
between populations, and decreases genetic diversity. Long-term
viability is founded on the conservation of numerous local populations
that can move freely between habitats and exchange genetic information.
These reaches are essential to the Cumberland darter because they
provide additional habitat for population expansion and will promote
connectivity and genetic exchange between populations; in addition,
both streams support diverse fish assemblages, including federally
listed and at-risk species.
We are designating as critical habitat 13 units that we determined
were occupied at the time of listing. These units are designated
because sufficient elements of physical or biological features are
present to support Cumberland darter life-history processes. Two
additional units outside the geographical area occupied by the species
at the time of listing are designated because we consider them to be
essential to the conservation of the species.
Rush Darter
We are designating critical habitat in areas within the
geographical area occupied by the rush darter at the time of listing in
2011. We are not designating any areas outside the geographical area
occupied by the rush darter because occupied areas are sufficient for
the conservation of the species.
We used information from surveys and reports prepared by the
Alabama Department of Conservation and Natural Resources, Alabama
Geological Survey, Samford University, University of Alabama, the U.S.
Forest Service, the Natural Resources Conservation Service, and the
Service to identify the specific locations occupied by the rush darter.
Currently, occupied habitat for the species is limited and isolated.
The species is currently located within tributaries of three watersheds
in three counties in Alabama: the Turkey Creek watershed (Jefferson
County) (Drennen 2008, pers. obs.); the Clear Creek watershed (Winston
County); and the Little Cove-Bristow Creek watershed (Etowah County).
In the Turkey Creek watershed, the species is found in four tributaries
including Beaver Creek, an unnamed tributary to Beaver Creek and
associated springs and wetland, the Highway 79 site, and Tapawingo or
Penny Springs. In the Clear Creek watershed, it is found in Wildcat
Branch, Doe Branch, and Mill Creek. In the Little Cove-Bristow Creek
watershed, it is found in Little Cove Creek, Cove Spring and spring
run, and Bristow Creek.
Following the identification of the specific locations occupied by
the rush darter, we determined the appropriate length of stream
segments by identifying the upstream and downstream limits of these
occupied sections necessary for the conservation of the rush darter.
Because populations of rush darters are isolated due to dispersal
barriers, to set the upstream and downstream limits of each critical
habitat unit, we identified landmarks (bridges, confluences, road
crossings, and dams), and in some instances latitude and longitude
coordinates and section lines above and below the upper and lowermost
reported locations of the rush darter, in each stream reach to ensure
incorporation of all potential sites of occurrence. In addition, within
the Cove Spring run and Tapawingo or Penny Spring run, the total area
of water that is pooled, and is rush darter habitat, was calculated in
hectares (acres). The critical habitat areas were then mapped using
ARCGIS to produce the critical habitat map.
We are designating as critical habitat all stream and spring
reaches in occupied habitat. These stream reaches comprise the entire
known range of the rush darter. We are not designating any areas
outside the occupied range of the species because occupied areas are
sufficient for the conservation of the species, and because the
historical range of the rush darter, beyond currently occupied areas,
is unknown and dispersal beyond the current range is not likely due to
dispersal barriers. Areas designated for critical habitat for the rush
darter below include only stream channels within the ordinary high
water line and spring pool areas and do not contain any developed areas
or structures.
We are designating as critical habitat eight units that we have
determined were occupied at the time of listing and contain sufficient
elements of physical or biological features to support life-history
processes essential to the conservation of rush darter. Some units
contain all of the identified elements of physical or biological
features and support multiple life-history processes. Some units
contain only some elements of the physical or biological features
necessary to support the rush darter's particular use of that habitat.
Yellowcheek Darter
We are designating critical habitat in areas within the
geographical area occupied by the yellowcheek darter at the time of
listing in 2011. We are not designating any areas outside the
geographical area occupied by the yellowcheek darter because occupied
areas are sufficient for the conservation of the species.
We used information from surveys and reports prepared by Arkansas
State University, Arkansas Tech University, Arkansas Game and Fish
Commission, Arkansas Department of Environmental Quality, and the
Service to identify the specific locations occupied by the yellowcheek
darter. We identified those areas for designation as critical habitat,
within the geographical area occupied by the species at the time of
listing, that contain the physical or biological features of the
yellowcheek darter and which may require special management
consideration or protection. All of the areas we are designating are
currently part of ongoing recovery initiatives for this species and are
targeted for special management considerations.
We used ARCGIS to delineate the specific stream segments occupied
by the yellowcheek darter at the time of listing, which contain the
physical or biological features essential to the species. We assessed
the critical life-history components of the yellowcheek darter, as they
relate to habitat. Delineations were based on the best available
scientific information indicating portions of streams containing
necessary physical or biological features necessary to support the
yellowcheek darter. We set the upstream and downstream limits of each
critical habitat unit by identifying landmarks (bridges, confluences,
road crossings, dams, reservoir inundation elevations) above and below
the upper and lowermost reported locations of the yellowcheek darter in
each stream reach to ensure incorporation of all potential sites of
occurrence. Areas designated as yellowcheek darter critical habitat
include only stream channels within the ordinary high water line and do
not

[[Page 63625]]

contain any developed areas or structures.
We are designating as critical habitat four units that we have
determined were occupied at the time of listing and contain sufficient
elements of physical or biological features to support life-history
processes essential to the conservation of the yellowcheek darter. All
units contain all of the identified elements of physical or biological
features and support multiple life-history processes.
Chucky Madtom
We are designating critical habitat in areas within the
geographical area occupied by the Chucky madtom at the time of listing
in 2011. We are not designating any areas outside the geographical
areas occupied by the Chucky madtom at the time of listing because the
historical range, beyond currently occupied areas, is not well known.
We used information from surveys and reports prepared by
Conservation Fisheries, Inc., and the Tennessee Valley Authority to
identify the specific locations occupied by the Chucky madtom.
Currently, occupied habitat for the species is limited and isolated. At
the time of listing, the current range of the Chucky madtom was
restricted to an approximately 3-km (1.8-mi) reach of Little Chucky
Creek in Greene County, Tennessee.
Following the identification of the specific locations occupied by
the Chucky madtom, we determined the appropriate length of stream
segments by identifying the upstream and downstream limits of these
occupied sections necessary for the conservation of the species. To set
the upstream and downstream limits of the single critical habitat unit,
we identified landmarks (bridges, confluences, and road crossings)
above and below the upper and lowermost reported locations of the
Chucky madtom in Little Chucky Creek to ensure incorporation of all
potential sites of occurrence. The critical habitat areas were then
mapped using ARCGIS to produce the critical habitat unit map.
We are designating as critical habitat a single stream reach in
Little Chucky Creek, which is occupied habitat. This stream reach
comprises the entire current known range of the Chucky madtom. The unit
contains one or more of the physical or biological features in the
appropriate quantity and spatial arrangement essential to the
conservation of this species and supports multiple life-history
processes for the Chucky madtom. The area designated for critical
habitat for the Chucky madtom includes only the stream channel within
the ordinary high water line and does not contain any developed areas
or structures.
Laurel Dace
We are designating critical habitat in areas within the
geographical area occupied by the laurel dace at the time of listing in
2011. We are not designating any areas outside the geographical area
occupied by the laurel dace because occupied areas are sufficient for
the conservation of the species.
We used information from surveys and reports prepared by the
Tennessee Valley Authority, Tennessee Wildlife Resources Agency,
University of Tennessee, and the Service to identify the specific
locations occupied by the laurel dace. Currently, occupied habitat for
the species is limited and isolated. The species is currently located
in three independent systems: Soddy Creek, the Sale Creek system, and
the Piney River system. Following the identification of the specific
locations occupied by the laurel dace, we determined the appropriate
length of stream segments by identifying the upstream and downstream
limits of these occupied sections necessary for the conservation of the
laurel dace. Because populations of laurel dace are isolated due to
dispersal barriers, to set the upstream and downstream limits of each
critical habitat unit, we identified landmarks (bridges, confluences,
and road crossings), and in some instances latitude and longitude
coordinates and section lines above and below the upper and lowermost
reported locations of the laurel dace, in each stream reach to ensure
incorporation of all potential sites of occurrence. The designated
critical habitat areas were then mapped using ARCGIS to produce the
critical habitat unit maps.
We are designating as critical habitat all stream reaches in
occupied habitat. We have defined occupied habitat as those stream
reaches occupied at the time of listing and still known to be occupied
by the laurel dace; these stream reaches comprise the entire known
range of the laurel dace. Areas designated as critical habitat for the
laurel dace include only stream channels within the ordinary high water
line and do not contain any developed areas or structures.
We are designating as critical habitat six units that we determined
were occupied at the time of listing and contain all of the identified
elements of physical or biological features to support life-history
processes essential to the conservation of the laurel dace. Six units
are designated based on sufficient elements of physical or biological
features present to support laurel dace life-history processes. All
units contain all of the identified elements of physical or biological
features and support multiple life-history processes.
When determining critical habitat boundaries, we made every effort
to avoid including developed areas such as lands covered by buildings,
pavement, and other structures because such lands usually lack physical
and biological features for the listed species. The scale of the maps
we prepared under the parameters for publication within the Code of
Federal Regulations may not reflect the exclusion of such developed
lands. Any such lands inadvertently left inside critical habitat
boundaries shown on the maps of this final rule have been excluded by
text in the rule and are not designated as critical habitat. Therefore,
a Federal action involving these lands would not trigger section 7
consultation with respect to critical habitat and the requirement of no
adverse modification unless the specific action would affect the
physical and biological features in the adjacent critical habitat. The
designation of critical habitat does not imply that lands outside of
critical habitat do not play an important role in the conservation of
the species.
The critical habitat designation is defined by the map or maps, as
modified by any accompanying regulatory text, presented at the end of
this document in the rule portion. We include more detailed information
on the boundaries of the critical habitat designation in the preamble
of this document. We will make the coordinates or plot points or both
on which each map is based available to the public on https://www.regulations.gov at Docket No. FWS-R4-ES-2011-0074, on our Internet
sites at https://www.fws.gov/cookeville/, and at the field office
responsible for the designation (see FOR FURTHER INFORMATION CONTACT
above).
We are designating as critical habitat lands that we have
determined are occupied at the time of listing and contain sufficient
physical or biological features to support life-history processes
essential for the conservation of these five species, and lands outside
of the geographical area occupied at the time of listing that we have
determined are essential for the conservation of the Cumberland darter.
Units are designated based on sufficient elements of physical or
biological features being present to support the Cumberland darter,
rush darter, yellowcheck darter, Chucky madtom, and laurel dace life
processes.

[[Page 63626]]

Some units contain all of the identified elements of physical or
biological features and support multiple life processes. Some units
contain only some elements of the physical or biological features
necessary to support the five species' particular use of that habitat.

Final Critical Habitat Designation

Cumberland Darter

We are designating 15 units as critical habitat for the Cumberland
darter. These units, which constitute our current best assessment of
areas that meet the definition of critical habitat for the Cumberland
darter, are: (1) Bunches Creek, (2) Calf Pen Fork, (3) Youngs Creek,
(4) Barren Fork, (5) Indian Creek, (6) Cogur Fork, (7) Kilburn Fork,
(8) Laurel Fork, (9) Laurel Creek, (10) Elisha Branch, (11) Jenneys
Branch, (12) Wolf Creek, (13) Jellico Creek, (14) Rock Creek, and (15)
Capuchin Creek. Table 1 shows the occupancy of the units and ownership
of the designated areas for the Cumberland darter.

Table 1--Occupancy and Ownership of the Designated Critical Habitat Units for the Cumberland Darter
----------------------------------------------------------------------------------------------------------------
Federal,
Private state, county, Total length
Unit Location Occupied ownership rkm city ownership rkm (rmi)
(rmi) rkm (rmi)
----------------------------------------------------------------------------------------------------------------
1............................ Bunches Creek... Yes............ 0 5.8 (3.6) 5.8 (3.6)
2............................ Calf Pen Fork... Yes............ 0 2.9 (1.8) 2.9 (1.8)
3............................ Youngs Creek.... Yes............ 7.4 (4.6) 0 7.4 (4.6)
4............................ Barren Fork..... Yes............ 0 6.3 (3.9) 6.3 (3.9)
5............................ Indian Creek.... No............. 0 4.0 (2.5) 4.0 (2.5)
6............................ Cogur Fork...... Yes............ 2.7 (1.7) 5.9 (3.7) 8.6 (5.4)
7............................ Kilburn Fork.... No............. 0.9 (0.6) 3.7 (2.3) 4.6 (2.9)
8............................ Laurel Fork..... Yes............ 1.3 (0.8) 2.2 (1.4) 3.5 (2.2)
9............................ Laurel Creek.... Yes............ 0.6 (0.4) 8.8 (5.5) 9.4 (5.9)
10........................... Elisha Branch... Yes............ 0 2.1 (1.3) 2.1 (1.3)
11........................... Jenneys Branch.. Yes............ 0 3.1 (1.9) 3.1 (1.9)
12........................... Wolf Creek...... Yes............ 6.3 (3.9) 0 6.3 (3.9)
13........................... Jellico Creek... Yes............ 8.2 (5.1) 3.3 (2.1) 11.5 (7.2)
14........................... Rock Creek...... Yes............ 3.9 (2.4) 2.2 (1.4) 6.1 (3.8)
15........................... Capuchin Creek.. Yes............ 3.4 (2.1) 0.8 (0.5) 4.2 (2.6)
----------------------------------------------------------------------------------
Total.................... ................ ............... .............. .............. 85.8 (53.5)
----------------------------------------------------------------------------------------------------------------

We present brief descriptions of all units and reasons why they
meet the definition of critical habitat for the Cumberland darter. The
designated critical habitat units include the stream channels of the
creek within the ordinary high water line. As defined in 33 CFR 329.11,
the ordinary high water mark on nontidal rivers is the line on the
shore established by the fluctuations of water and indicated by
physical characteristics, such as a clear, natural line impressed on
the bank; shelving; changes in the character of soil; destruction of
terrestrial vegetation; the presence of litter and debris; or other
appropriate means that consider the characteristics of the surrounding
areas. Critical habitat units are either in private ownership or public
ownership. In Kentucky and Tennessee, the owners of adjacent land also
own the land under non-navigable streams (e.g., the stream channel or
bottom), but the water is under State jurisdiction. Portions of the
public-to-private boundary for units 6, 7, 8, 9, and 13 were located
along the mid-line of the stream channel; lengths for these segments
were divided equally between public and private ownership.
Unit 1: Bunches Creek, Whitley County, Kentucky
This unit is located between Kentucky Highway 90 (KY 90) and the
Cumberland River and includes 5.8 rkm (3.6 rmi) of Bunches Creek from
the confluence of Seminary Branch and Amos Falls Branch downstream to
its confluence with the Cumberland River. Live Cumberland darters have
been captured at two sites within Unit 1 (Thomas 2007, pp. 11-12),
specifically at the mouth of Bunches Creek and just below its
confluence with Calf Pen Fork. This unit was included in the
geographical area occupied by the species at the time of listing and
contains elements of essential physical or biological features. This
unit is located entirely on Federal lands within the DBNF. Land and
resource management decisions and activities within the DBNF are guided
by DBNF's LRMP (USFS 2004, pp. 1-14). The lower portion of Bunches
Creek (stream rkm 0 to 0.3 (rmi 0 to 0.1)) flows through a designated
Kentucky Wild River corridor (KRS 146.200 to 146.360) that extends
along an approximately 25.7 km (16 mi) reach of the Cumberland River.
This Wild River corridor extends from Summer Shoals downstream to the
backwaters of Lake Cumberland (KRS 146.241). The Bunches Creek-
Cumberland River confluence is located approximately 3.0 km (1.9 mi)
upstream of Cumberland Falls. The Bunches Creek watershed is relatively
undisturbed, and access is limited (no road crossings). The channel
within Unit 1 is relatively stable, with excellent instream habitat
(PCE 1). There is an abundance of pool and run habitats (PCE 1), with
relatively silt-free sand and bedrock substrates (PCE 2) and adequate
instream flows (PCE 3). Water quality is good to excellent (PCE 4), as
evidenced by diverse fish and macroinvertebrate communities (PCE 5).
Within Unit 1, the Cumberland darter and its habitat may require
special management considerations or protection to address potential
adverse effects associated with silviculture-related activities,
natural gas and oil exploration activities in headwater reaches,
illegal off-road vehicle use and other recreational activities,
nonpoint source pollution originating in headwater reaches, and canopy
loss caused by infestations of the hemlock woolly adelgid.
Unit 2: Calf Pen Fork, Whitley County, Kentucky
This unit includes 2.9 rkm (1.8 rmi) of Calf Pen Fork, a tributary
of Bunches

[[Page 63627]]

Creek, from its confluence with Polly Hollow downstream to its
confluence with Bunches Creek. Live Cumberland darters have been
captured in Calf Pen Fork just above its confluence with Bunches Creek
(Thomas 2007, pp. 11-12). This unit was included in the geographical
area occupied by the species at the time of listing and contains
elements of essential physical or biological features. This unit is
located entirely on Federal lands within the DBNF. Land and resource
management decisions and activities within the DBNF are guided by
DBNF's LRMP (USFS 2004, pp. 1-14). Similar to the watershed of Unit 1,
the Calf Pen Fork watershed is relatively undisturbed, and access is
limited (no road crossings). Within Unit 2, the channel is relatively
stable, with excellent instream habitat (PCE 1), an abundance of run
and pool habitats (PCE 1), relatively silt-free sand and bedrock
substrates (PCE 2), and adequate instream flows (PCE 3). Water quality
is good to excellent (PCE 4), with diverse fish and macroinvertebrate
communities (PCE 5).
Within Unit 2, the Cumberland darter and its habitat may require
special management considerations or protection to address potential
adverse effects associated with silviculture-related activities,
natural gas and oil exploration activities, illegal off-road vehicle
use and other recreational activities, nonpoint source pollution
arising from headwater reaches, and canopy loss caused by infestations
of the hemlock woolly adelgid.
Unit 3: Youngs Creek, Whitley County, Kentucky
Unit 3 includes 7.4 rkm (4.6 rmi) of Youngs Creek from Brays Chapel
Road downstream to its confluence with the Cumberland River. Live
Cumberland darters have been captured within Unit 3 (Thomas 2007, pp.
11-12), specifically at the KY 204 bridge crossing. This unit was
included in the geographical area occupied by the species at the time
of listing and contains elements of essential physical or biological
features. This unit is located entirely on private land. The watershed
of Youngs Creek is less forested than Units 1 and 2, with scattered
residences and small farms. The channel is relatively stable (PCE 1),
but activities associated with agriculture, silviculture, and
residential development have contributed to a more open riparian zone,
increased bank erosion, and some siltation of instream habitats.
Despite these impacts, Unit 3 continues to provide pool and run
habitats with suitable sand and bedrock substrates for Cumberland
darters to use in spawning, foraging, and other behaviors (PCEs 1 and
2). Flow is adequate as measured during years with average rainfall
(PCE 3), water quality is adequate (PCE 4), and macroinvertebrate prey
items are present (PCE 5).
Within this unit, the Cumberland darter and its habitat may require
special management considerations or protection to address potential
adverse effects caused by resource extraction (mining, silviculture,
natural gas and oil exploration activities), agricultural activities
(livestock), lack of adequate riparian buffers, perched road culverts
or impassable road crossings (fords), construction and maintenance of
State and county roads, illegal off-road vehicle use, nonpoint source
pollution arising from a wide variety of human activities, and canopy
loss caused by infestations of the hemlock woolly adelgid.
Unit 4: Barren Fork, McCreary County, Kentucky
Unit 4 includes 6.3 rkm (3.9 rmi) of Barren Fork from its
confluence with an unnamed tributary downstream to its confluence with
Indian Creek. Based on survey results by Thomas (2007, pp. 11-12) and
Stephens (2009, pp. 10-23), Barren Fork supports the most robust
population of Cumberland darters within the species' range. Over the
past 4 years, over 75 Cumberland darters have been observed within this
unit (Thomas 2007, pp. 11-12; Stephens 2009, pp. 10-23). This unit was
included in the geographical area occupied by the species at the time
of listing and contains elements of essential physical or biological
features. This unit is located entirely on Federal lands within the
DBNF. Land and resource management decisions and activities within the
DBNF are guided by DBNF's LRMP (USFS 2004, pp. 1-14). In the summer and
fall of 2008, the Barren Fork watershed was adversely affected by
several large sedimentation events originating from a county park
construction site in the headwaters of the basin. Inadequate site
planning and poor BMP implementation allowed significant quantities of
sediment to leave the construction site and enter headwater tributaries
of Barren Fork. The sediment was carried downstream into the mainstem
of Barren Fork, eventually affecting the entire reach of Unit 4. Until
the construction site was stabilized in 2009, important spawning and
foraging habitats for the Cumberland darter were degraded.
Despite these significant adverse effects, habitat conditions have
improved since 2008, and are now similar to those described for Units 1
and 2. The watershed is mostly forested, with relatively stable
channels (PCE 1), abundant pool and run habitats (PCE 1), relatively
silt-free sand and bedrock substrates (PCE 2), adequate flow (PCE 3),
adequate water quality (PCE 4), and a diverse macroinvertebrate
community (PCE 5).
Within this unit, the Cumberland darter and its habitat may require
special management considerations or protection to address potential
adverse effects caused by resource extraction (mining, silviculture,
natural gas and oil exploration activities), lack of adequate riparian
buffers, construction and maintenance of county roads, illegal off-road
vehicle use, nonpoint source pollution arising from a wide variety of
human activities, and canopy loss caused by infestations of the hemlock
woolly adelgid.
Unit 5: Indian Creek, McCreary County, Kentucky
Unit 5 includes 4.0 rkm (2.5 rmi) of Indian Creek from its
confluence with Strunk Branch, downstream to its confluence with Barren
Fork. Live Cumberland darters have not been captured within Unit 5.
This unit was not included in the geographical area occupied by the
species at the time of listing, and it is not currently occupied by the
species.
This unit is located entirely on Federal lands within the DBNF.
Land and resource management decisions and activities within the DBNF
are guided by DBNF's LRMP (USFS 2004, pp. 1-14).
This unit is located within the historical range of the species,
and is adjacent to currently occupied areas where there is potential
for natural dispersal and reoccupation by the Cumberland darter. This
unit is essential for the conservation of the Cumberland darter because
it provides additional habitat for population expansion and will
promote connectivity and genetic exchange between adjacent units to the
south (Unit 4, Barren Fork) and to the north (Unit 6, Cogur Fork).
Unit 6: Cogur Fork, McCreary County, Kentucky
Unit 6 includes 8.6 rkm (5.4 rmi) of Cogur Fork from its confluence
with an unnamed tributary downstream to its confluence with Indian
Creek. Live Cumberland darters have been captured at several locations
within an approximately 1-km (0.62-mi) reach upstream of the KY 1045
road crossing (Thomas 2010, pers. comm.). This unit was included in the
geographical area occupied by the species at the time of

[[Page 63628]]

listing and contains elements of essential physical or biological
features. The majority of this unit (5.9 rkm (3.7 rmi)) is in public
ownership (DBNF), with the remainder of the unit (2.7 rkm (1.7 rmi)) in
private ownership. Land and resource management decisions and
activities within the DBNF are guided by DBNF's LRMP (USFS 2004, pp. 1-
14).
Cumberland darters have been captured within Unit 6, but the
population is considered to be small (Thomas 2010, pers. comm.). From
2008 to present, the fauna has been bolstered through propagation and
augmentation efforts by KDFWR, Conservation Fisheries, Inc. (CFI), and
the Service (Thomas et al. 2010, p. 107). Initial brood stock were
collected in 2008, with subsequent releases of propagated darters in
2009 (60 individuals (inds)) and 2010 (335 inds). Both tagged
(propagated, 50 inds) and non-tagged (native, 4 inds) darters were
observed during recent surveys in November 2010. Individuals tagged and
released by KDFWR and CFI traveled distances ranging from 0.4 to 0.7
rkm (0.2 to 0.4 rmi) between their release date of September 22, 2010,
and their recapture date of November 9, 2010 (period of 48 days)
(Thomas 2010, pers. comm.).
Similar to other units located entirely or predominately on the
DBNF (Units 1, 2, 4, and 5), this unit has relatively stable channels
(PCE 1), abundant pool and run habitats (PCE 1), relatively silt-free
sand and bedrock substrates (PCE 2), adequate flow (PCE 3), adequate
water quality (PCE 4), and a diverse macroinvertebrate community (PCE
5).
Within this unit, the Cumberland darter and its habitat may require
special management considerations or protection to address potential
adverse effects caused by resource extraction (mining, silviculture,
natural gas and oil exploration activities), lack of adequate riparian
buffers, construction and maintenance of county roads, illegal off-road
vehicle use, nonpoint source pollution arising from a wide variety of
human activities, and canopy loss caused by infestations of the hemlock
woolly adelgid.
Unit 7: Kilburn Fork, McCreary County, Kentucky
Unit 7 includes 4.6 rkm (2.9 rmi) of Kilburn Fork from its
confluence with an unnamed tributary downstream to its confluence with
Laurel Fork. Live Cumberland darters have not been captured within Unit
7 over the last 15 years (Thomas 2007, pp. 11-12). This unit was not
included in the geographical area occupied by the species at the time
of listing, and it is not currently occupied by the species.
The majority of this unit (3.7 rkm (2.3 rmi)) is in public
ownership (DBNF), with the remainder of the unit (0.9 rkm (0.6 rmi)) in
private ownership. Land and resource management decisions and
activities within the DBNF are guided by DBNF's LRMP (USFS 2004, pp. 1-
14).
This unit is located within the historical range of the species,
and is adjacent to currently occupied areas where there is potential
for natural dispersal and reoccupation by the Cumberland darter. This
unit is essential for the conservation of the Cumberland darter because
it provides additional habitat for population expansion and will
promote connectivity and genetic exchange between adjacent units to the
south (Unit 6, Cogur Fork) and to the north (Unit 8, Laurel Fork).
Unit 8: Laurel Fork, McCreary County, Kentucky
Unit 8 includes 3.5 rkm (2.2 rmi) of Laurel Fork from its
confluence with Tom Fork downstream to its confluence with Indian
Creek. Live Cumberland darters have been captured within Unit 8 (Thomas
2007, pp. 11-12), specifically just upstream of its confluence with
Kilburn Fork. This unit was included in the geographical area occupied
by the species at the time of listing and contains elements of
essential physical or biological features.
The majority of this unit (2.2 rkm (1.4 rmi)) is in public
ownership (DBNF), with the remainder of the unit (1.3 rkm (0.8 rmi)) in
private ownership. Land and resource management decisions and
activities within the DBNF are guided by DBNF's LRMP (USFS 2004, pp. 1-
14).
Similar to other streams with major portions of their basins in the
DBNF, the watershed of Laurel Fork is relatively intact, and access is
limited (limited roads and residential development). The channel within
Unit 8 is relatively stable (PCE 1), with suitable instream habitat to
support the life-history functions of the Cumberland darter. There is
an abundance of pool and run habitats (PCE 1), with relatively silt-
free sand and bedrock substrates (PCE 2) and adequate flows (PCE 3).
Water quality is good to excellent (PCE 4), as evidenced by diverse
fish and macroinvertebrate communities (PCE 5).
Within this unit, the Cumberland darter and its habitat may require
special management considerations or protection to address potential
adverse effects caused by resource extraction (mining, silviculture,
natural gas and oil exploration activities), lack of adequate riparian
buffers, construction and maintenance of county roads, illegal off-road
vehicle use, nonpoint source pollution arising from a wide variety of
human activities, and canopy loss caused by infestations of the hemlock
woolly adelgid.
Unit 9: Laurel Creek, McCreary County, Kentucky
Unit 9 includes 9.4 rkm (5.9 rmi) of Laurel Fork Creek from Laurel
Fork Reservoir downstream to its confluence with Jenneys Branch. Live
Cumberland darters have been captured within Unit 9 (Thomas 2007, pp.
11-12), specifically just upstream of its confluence with Elisha Branch
and at the KY 478 bridge crossing. This unit was included in the
geographical area occupied by the species at the time of listing and
contains elements of essential physical or biological features. The
majority of this unit (8.8 rkm (5.5 rmi)) is in public ownership
(DBNF), with the remainder of the unit (0.6 rkm (0.4 rmi)) in private
ownership. Land and resource management decisions and activities within
the DBNF are guided by DBNF's LRMP (USFS 2004, pp. 1-14).
The watershed of Laurel Creek is relatively intact, with extensive
forest cover and few roads. The channel within Unit 9 is relatively
stable (PCE 1), with suitable instream habitat to support the life-
history functions of the Cumberland darter. There is an abundance of
pool and run habitats (PCE 1), with relatively silt-free sand and
bedrock substrates (PCE 2) and adequate instream flows (PCE 3). Water
quality is good to excellent (PCE 4), with a diverse macroinvertebrate
community (PCE 5).
Within this unit, the Cumberland darter and its habitat may require
special management considerations or protection to address potential
adverse effects caused by resource extraction (mining, silviculture,
natural gas and oil exploration activities), lack of adequate riparian
buffers, construction and maintenance of county roads, illegal off-road
vehicle use, nonpoint source pollution arising from a wide variety of
human activities, and canopy loss caused by infestations of the hemlock
woolly adelgid.
Unit 10: Elisha Branch, McCreary County, Kentucky
Unit 10 includes 2.1 rkm (1.3 rmi) of Elisha Branch from its
confluence with an unnamed tributary (36.70132, -84.40843) downstream
to its confluence with Laurel Creek. Live Cumberland darters have been
captured within Unit 10 (Thomas 2007, pp. 11-

[[Page 63629]]

12), specifically just upstream of its confluence with Laurel Creek.
This unit was included in the geographical area occupied by the species
at the time of listing and contains elements of essential physical or
biological features. This unit is located entirely on public lands
within the DBNF. Land and resource management decisions and activities
within the DBNF are guided by DBNF's LRMP (USFS 2004, pp. 1-14).
The watershed of Elisha Branch is relatively intact, with extensive
forest cover and no road crossings. Within Unit 10, the channel is
relatively stable, with excellent instream habitat (PCE 1), an
abundance of run and pool habitats (PCE 1), relatively silt-free sand
and bedrock substrates (PCE 2), and adequate flows (PCE 3). Water
quality is good to excellent (PCE 4), with diverse fish and
macroinvertebrate communities (PCE 5).
Within this unit, the Cumberland darter and its habitat may require
special management considerations or protection to address potential
adverse effects caused by resource extraction (mining, silviculture,
natural gas and oil exploration activities), lack of adequate riparian
buffers, illegal off-road vehicle use, nonpoint source pollution
arising from a wide variety of human activities, and canopy loss caused
by infestations of the hemlock woolly adelgid.
Unit 11: Jenneys Branch, McCreary County, Kentucky
Unit 11 includes 3.1 rkm (1.9 rmi) of Jenneys Branch from its
confluence with an unnamed tributary (36.73680, -84.42420) downstream
to its confluence with Laurel Creek. Live Cumberland darters have been
captured within Unit 11 (Thomas 2007, pp. 11-12), specifically just
upstream of its confluence with Laurel Creek. This unit was included in
the geographical area occupied by the species at the time of listing
and contains elements of essential physical or biological features.
This unit is located entirely on public lands within the DBNF. Land and
resource management decisions and activities within the DBNF are guided
by DBNF's LRMP (USFS 2004, pp. 1-14).
The watershed of Jenneys Branch is relatively intact and remote,
with extensive forest cover and only one road crossing in its
headwaters. Within Unit 11, the stream channel is relatively stable,
with excellent instream habitat (PCE 1), an abundance of run and pool
habitats (PCE 1), relatively silt-free sand and bedrock substrates (PCE
2), and adequate instream flows (PCE 3). Water quality is good to
excellent (PCE 4), with diverse fish and macroinvertebrate communities
(PCE 5).
Within this unit, the Cumberland darter and its habitat may require
special management considerations or protection to address potential
adverse effects caused by resource extraction (mining, silviculture,
natural gas and oil exploration activities), lack of adequate riparian
buffers, illegal off-road vehicle use, nonpoint source pollution
arising from a wide variety of human activities, and canopy loss caused
by infestations of the hemlock woolly adelgid.
Unit 12: Wolf Creek, Whitley County, Kentucky
Unit 12 includes 6.3 rkm (3.9 rmi) of Wolf Creek from its
confluence with Sheep Creek downstream to Wolf Creek River Road. Live
Cumberland darters have been captured within Unit 12 just downstream of
the Little Wolf Creek River Road bridge crossing (Thomas 2007, pp. 11-
12). This unit was included in the geographical area occupied by the
species at the time of listing and contains elements of essential
physical or biological features.
This unit is located entirely on private land. Land use within the
watershed of Wolf Creek is similar to Unit 3, and Unit 12 is less
forested than units within the DBNF. The channel is relatively stable
(PCE 1), but activities associated with agriculture, silviculture, and
residential development have contributed to a more open riparian zone,
increased bank erosion, and some siltation of instream habitats.
Despite these impacts, Unit 12 continues to provide pool and run
habitats with suitable sand and bedrock substrates for Cumberland
darters to use in spawning, foraging, and other behaviors (PCEs 1 and
2). Flow is adequate as measured during years with average rainfall
(PCE 3), water quality is adequate (PCE 4), and macroinvertebrate prey
items are present (PCE 5).
Within this unit, the Cumberland darter and its habitat may require
special management considerations or protection to address potential
adverse effects caused by resource extraction (mining, silviculture,
natural gas and oil exploration activities), agricultural activities
(livestock), lack of adequate riparian buffers, perched road culverts
or impassable road crossings (fords), construction and maintenance of
State and county roads, illegal off-road vehicle use, and nonpoint
source pollution arising from a wide variety of human activities.
Unit 13: Jellico Creek, McCreary County, Kentucky, and Scott County,
Tennessee
Unit 13 includes 11.5 rkm (7.2 rmi) of Jellico Creek from its
confluence with Scott Branch, Scott County, Tennessee, downstream to
its confluence with Capuchin Creek, McCreary County, Kentucky. Live
Cumberland darters have been captured within Unit 13 at the Jellico
Creek and Shut-In Branch confluence and at the Gum Fork and Jellico
Creek confluence (O'Bara 1988, p. 12; Thomas 2007, pp. 11-12). This
unit was included in the geographical area occupied by the species at
the time of listing and contains elements of essential physical or
biological features. A portion of this unit in Kentucky (3.3 rkm (2.1
rmi)) is in public ownership (DBNF), with the remainder of the unit
(8.2 rkm (5.1 rmi)) in private ownership. Land and resource management
decisions and activities within the DBNF are guided by DBNF's LRMP
(USFS 2004, pp. 1-14).
Land use within the watershed of Jellico Creek is predominately
forest, with scattered residences and small farms (cattle and hay
production). The channel in Unit 13 is relatively stable (PCE 1), but
activities associated with agriculture, silviculture, and residential
development have contributed to a more open riparian zone, increased
bank erosion, and some siltation of instream habitats. Despite these
impacts, Unit 13 continues to provide pool and run habitats with
suitable sand and bedrock substrates for Cumberland darters to use in
spawning, foraging, and other behaviors (PCEs 1 and 2). Flow is
adequate as measured during years with average rainfall (PCE 3), water
quality is adequate (PCE 4), and macroinvertebrate prey items are
present (PCE 5).
Within this unit, the Cumberland darter and its habitat may require
special management considerations or protection to address potential
adverse effects caused by resource extraction (mining, silviculture,
natural gas and oil exploration activities), agricultural activities
(livestock), lack of adequate riparian buffers, perched road culverts
or impassable road crossings (fords), construction and maintenance of
State and county roads, illegal off-road vehicle use, and nonpoint
source pollution arising from a wide variety of human activities.
Unit 14: Rock Creek, McCreary County, Kentucky
Unit 14 includes 6.1 rkm (3.8 rmi) of Rock Creek from its
confluence with Sid Anderson Branch downstream to its confluence with
Jellico Creek. Live Cumberland darters have been captured within Unit
14 just above the mouth of Rock Creek at its confluence with Jellico
Creek (Thomas 2007, pp. 11-12). This unit was included in the
geographical area occupied by the species at the time

[[Page 63630]]

of listing and contains elements of essential physical or biological
features. A portion of this unit (2.2 rkm (1.4 rmi)) is in public
ownership (DBNF), but the majority (3.9 rkm (2.4 rmi)) is in private
ownership. Land and resource management decisions and activities within
the DBNF are guided by DBNF's LRMP (USFS 2004, pp. 1-14).
Most of the watershed is forested (especially along the ridge
tops), but the valley floor has several open fields and is easily
accessible via Little Rock Creek Road. Portions of the channel in Unit
14 have been modified by beaver (with some ponding), but it continues
to be relatively stable, with excellent instream habitat (PCE 1), an
abundance of run and pool habitats (PCE 1), relatively silt-free sand
and bedrock substrates (PCE 2), and adequate instream flows (PCE 3).
Water quality is good to excellent (PCE 4), with diverse fish and
macroinvertebrate communities (PCE 5).
Within this unit, the Cumberland darter and its habitat may require
special management considerations or protection to address potential
adverse effects caused by resource extraction (mining, silviculture,
natural gas and oil exploration activities), agricultural activities
(livestock), lack of adequate riparian buffers, perched road culverts
or impassable road crossings (fords), construction and maintenance of
State and county roads, illegal off-road vehicle use, nonpoint source
pollution arising from a wide variety of human activities, and canopy
loss caused by infestations of the hemlock woolly adelgid.
Unit 15: Capuchin Creek, McCreary and Whitley Counties, Kentucky, and
Campbell County, Tennessee
Unit 15 includes 4.2 rkm (2.6 rmi) of Capuchin Creek from its
confluence with Hatfield Creek downstream to its confluence with
Jellico Creek. Live Cumberland darters have been captured within Unit
15 at the Kentucky-Tennessee State line (Thomas 2007, pp. 11-12). This
unit was included in the geographical area occupied by the species at
the time of listing and contains elements of essential physical or
biological features. A portion of this unit in Kentucky (0.8 rkm (0.5
rmi)) is in public ownership (DBNF); the remainder in Kentucky and
Tennessee (3.4 rkm (2.1 rmi)) is in private ownership. Land and
resource management decisions and activities within the DBNF are guided
by DBNF's LRMP (USFS 2004, pp. 1-14).
Land use within the watershed of Capuchin Creek is predominately
forest, with scattered residences and small farms (cattle and hay
production). The channel in Unit 15 is relatively stable (PCE 1), but
activities associated with agriculture, silviculture, and residential
development have contributed to a more open riparian zone, increased
bank erosion, and some siltation of instream habitats. Despite these
impacts, Unit 15 continues to provide pool and run habitats with
suitable sand and bedrock substrates for Cumberland darters to use in
spawning, foraging, and other behaviors (PCEs 1 and 2). Flow is
adequate as measured during years with average rainfall (PCE 3), water
quality is adequate (PCE 4), and macroinvertebrate prey items are
present (PCE 5).
Within this unit, the Cumberland darter and its habitat may require
special management considerations or protection to address potential
adverse effects caused by resource extraction (mining, silviculture,
natural gas and oil exploration activities), agricultural activities
(livestock), lack of adequate riparian buffers, perched road culverts
or impassable road crossings (fords), construction and maintenance of
State and county roads, illegal off-road vehicle use, and nonpoint
source pollution arising from a wide variety of human activities.

Rush Darter

We are designating eight units as critical habitat for the rush
darter. The below units, which constitute our current best assessment
of areas that meet the definition of critical habitat for the rush
darter, are: (1) Beaver Creek, (2) Unnamed Tributary to Beaver Creek
and Highway 79 Spring Site, (3) Tapawingo or Penny Spring and Spring
Run, (4) Wildcat Branch, (5) Mill Creek, (6) Doe Branch, (7) Little
Cove Creek, Cove Spring Site, and (8) Bristow Creek. Table 2 shows the
occupancy of the units and ownership of the designated areas for the
rush darter.

Table 2--Occupancy and Ownership of the Designated Critical Habitat Units for the Rush Darter
--------------------------------------------------------------------------------------------------------------------------------------------------------
Private Total Total
Unit Location Occupied ownership rkm State, county, city length rkm area** ha
(rmi) ownership rkm (rmi) (rmi) (ac)
--------------------------------------------------------------------------------------------------------------------------------------------------------
1................................... Beaver Creek........... Yes................... 0.9 (0.6) <0.1 (<0.1) 1.0 (0.6) ...........
2................................... Unnamed Tributary to Yes................... 3.7 (2.3) 0.7 (0.4) 4.4 (2.7) 0.1 (0.3)
Beaver Creek and
Highway 79 Spring Site.
3................................... Tapawingo or Penny Yes................... 0.6 (0.4) <0.1 (<0.06) 0.6 (0.4) 6.7 (16.5)
Spring and Spring Run.
4................................... Wildcat Branch......... Yes................... 6.6 (4.1) <0.1 (<0.06) 6.6 (4.1) ...........
5................................... Mill Creek............. Yes................... 5.9 (3.7) <0.1 (<0.06) 5.9 (3.7) ...........
6................................... Doe Branch............. Yes................... 4.3 (2.7) <0.1 (<0.06) 4.3 (2.7) ...........
7................................... Little Cove Creek, Cove Yes................... 11.2 (6.1) <0.1 (<0.06) 11.2 (6.1) 5.1 (12.7)
Spring, Spring Run.
8................................... Bristow Creek.......... Yes................... 10.2 (6.3) <0.1 (<0.06) 10.2 (6.3) ...........
-------------------------------------------------------------------------------------------------------------------
Total*.......................... ....................... ...................... .............. ....................... 44.2 (26.6) 11.9 (29.5)
--------------------------------------------------------------------------------------------------------------------------------------------------------
* Totals may not sum due to rounding.
** Total area in ha (ac) are in private ownership.

We present brief descriptions of each unit and reasons why they
meet the definition of critical habitat below. The designated critical
habitat units include the stream channels of the creek within the
ordinary high water line, and the flooded spring pool in the case of
Tapawingo or Penny Springs (Jefferson County), Unnamed Tributary to
Beaver Creek (Jefferson County), and Cove Springs (Etowah County). As
defined in 33 CFR 329.11, the ordinary high water line on nontidal
rivers is the line on the shore established by the fluctuations of
water and indicated by physical characteristics such as a clear,
natural water line impressed on the bank; shelving; changes in the
character of

[[Page 63631]]

soil; destruction of terrestrial vegetation; the presence of litter and
debris; or other appropriate means that consider the characteristics of
the surrounding areas. In Alabama, the riparian landowner owns the
stream to the middle of the channel for non-navigable streams and
rivers. For the spring pools, the area was determined and delineated by
the presence of emergent vegetation patterns as noted on aerial
photographs.
Unit 1: Beaver Creek, Jefferson County, Alabama
Unit 1 includes 1.0 rkm (0.6 rmi) of Beaver Creek from the
confluence with Dry Creek, downstream to the confluence with Turkey
Creek. This unit was included in the geographical area occupied by the
species at the time of listing and contains elements of essential
physical or biological features. Almost 0.9 rkm (0.6 rmi), or 94
percent of this area is privately owned. The remaining 0.1 rkm (< 0.1
rmi), or 6 percent, is publicly owned by the City of Pinson or
Jefferson County in the form of bridge crossings and road easements.
Beaver Creek contains adequate bottom substrate and emergent
vegetation for rush darters to use in spawning, foraging, and other
life processes (PCE 2). Beaver Creek makes available additional habitat
and spawning sites, and offers connectivity with other rush darter
populations within the Highway 79 Spring System site and the Unnamed
Tributary to Beaver Creek (PCE 1).
Beaver Creek provides habitat for the rush darters with adequate
number of pools, riffles, runs (PCE 1), and emergent vegetation (PCE
2). These geomorphic structures provide the species with spawning,
foraging, and resting areas (PCE 1), along with good water quality,
quantity, and flow, which support the normal life stages and behavior
of the rush darter (PCEs 3 and 4), the species' prey sources (PCE 5),
and associated aquatic vegetation.
Threats to the rush darter and its habitat at Beaver Creek that may
require special management of the PBFs include the potential of:
Urbanization activities (such as channel modification for flood
control, construction of impoundments, and gravel extraction) that
could result in increased bank erosion; significant changes in the
existing flow regime due to inadequate stormwater management, water
diversion, or water withdrawal; significant alteration of water
quality; and significant changes in stream bed material composition and
quality as a result of construction projects and maintenance
activities, destruction of emergent vegetation, off-road vehicle use,
sewer, gas and water easements, bridge and road construction and
maintenance, culvert and pipe installation, and other watershed and
floodplain disturbances that release sediments or nutrients into the
water.
There are three road crossings over Beaver Creek (Pinson Valley
Parkway, Old Bradford Road, and Spring Street) that at times may limit
the overall connectivity and movement of the species within this unit.
Movement might be limited due to changes in flow regime and habitat,
including emergent vegetation, water quality, water quantity, and
stochastic events such as drought. Populations of rush darters are
small and isolated within specific habitat sites of Beaver Creek.
Unit 2: Unnamed Tributary to Beaver Creek and Highway 79 Spring Site,
Jefferson County, Alabama
Unit 2 includes 4.4 rkm (2.7 rmi) of the Unnamed Tributary of
Beaver Creek and two spring runs. The site begins at the Section 1 and
2 (T16S, R2W) line, as taken from the U.S. Geological Survey 7.5
topographical map (Pinson quadrangle), downstream to its confluence
with Dry Creek, and includes a spring run beginning at the springhead
(33.67449, -86.69300) just northwest of Old Pinson Road and
intersecting with the Unnamed Tributary to Beaver Creek on the west
side of Highway 79, and a spring associated wetland (0.1 ha, 0.33 ac)
within the headwaters, south of Pinson Heights Road, flowing 0.9 km
(0.05 mi) from the northwest (33.668173, -86.708577) and adjoining to
the Unnamed Tributary (33.667344,-86.707429). This unit was included in
the geographical area occupied by the species at the time of listing
and contains elements of essential physical or biological features.
Almost 3.7 rkm (2.3 rmi), or 85 percent, of this area is privately
owned. The remaining 0.7 rkm (0.4 rmi), or 15 percent, is publicly
owned by the City of Pinson or Jefferson County in the form of bridge
crossings and road easements.
The Unnamed Tributary to Beaver Creek supports populations of rush
darters and is a feeder stream to Beaver Creek (PCEs 1 and 2). The
Unnamed Tributary to Beaver Creek has been intensely geomorphically
changed by man over the last 100 years. The majority of this reach has
been channelized for flood control, as it runs parallel to Highway 79.
There are several bridge crossings and culverts that interfere with
connectivity, and the reach has a history of industrial uses along the
bank. However, owing to the groundwater that constantly supplies this
reach with clean and flowing water (PCEs 3 and 4), the reach has been
able to support significant emergent vegetation in shallow water on the
margins to support several rush darter populations. The headwaters of
the Unnamed Tributary to Beaver Creek is characterized by natural flows
that are attributed to an abundance of spring groundwater discharges
contributing adequate water quality, water quantity, emergent
vegetation and appropriate substrates (PCEs 1, 2, 3, and 4). The 0.13
ha (0.33 ac) spring run and associated wetlands is characterized by
adequate spring water flow and associated vegetation (PCEs 1 and 2).
Increasing the connectivity of the rush darter populations (PCE 1)
throughout the reaches of this tributary is an essential conservation
requirement as it would decrease the vulnerability of these populations
to stochastic threats. The Highway 79 Spring Site is the type locality
for the species (Bart 2004, p. 194), supporting populations of rush
darters and providing supplemental water quantity to the Unnamed
Tributary to Beaver Creek (PCEs 1 and 3). The reach contains adequate
bottom substrate and emergent vegetation for rush darters to use in
spawning, foraging, and other life processes (PCE 2). The Highway 79
Spring site provides habitat and spawning sites, and offers
connectivity with rush darter populations in the Unnamed Tributary to
Beaver Creek (PCE 1).
Threats to the rush darter and its habitat that may require special
management and protection of PBFs are: Urbanization activities (such as
channel modification for flood control, and gravel extraction) that
could result in increased bank erosion; significant changes in the
existing flow regime due to inadequate stormwater management and
impoundment construction, water diversion, or water withdrawal;
significant alteration of water quality; and significant changes in
stream bed material composition and quality as a result of construction
projects and road maintenance activities, off-road vehicle use, sewer,
gas and water easements, bridge construction, culvert and pipe
installation, and other watershed and floodplain disturbances that
release sediments or nutrients into the water.
Unit 3: Tapawingo or Penny Spring and Spring Run, Jefferson County,
Alabama
Unit 3 includes 0.6 rkm (0.4 rmi) of spring run, historically
called Tapawingo Plunge, along with 6.7 ha (16.5 ac) of flooded spring
basin making up Penny Springs. Unit 3 is located south of Turkey Creek,
north of Bud

[[Page 63632]]

Holmes Road, and just east of Tapawingo Trail Road. The east boundary
is at (33.69903, -86.66528): 1.0 km (0.6 mi) west of Section Line 28 to
29 (T15S, R1W) (U.S. Geological Survey 7.5 topographical map (Pinson
quadrangle)). This unit was included in the geographical area occupied
by the species at the time of listing and contains elements of
essential physical or biological features. All 0.6 rkm (0.4 rmi) and
6.7 ha (16.5 ac) of Unit 3 is privately owned except for that small
amount that is publicly owned in the form of bridge crossings and road
easements.
The Tapawingo or Penny Spring complex consists of an abundance of
springs that drain directly into Turkey Creek by means of a large
spring run at the old railroad crossing and Tapawingo Springs Road
(PCEs 1 and 2). The historical spring run discharge ranges from 0.03 to
2.4 cubic meters per second (m\3\/s) (500 to 38,800 gallons per minute
(gal/min)) (Chandler and Moore 1987, p. 49), and there is an abundance
of emergent vegetation (PCEs 1, 2, and 3). Historically small numbers
of rush darter have been collected in the spring area.
Threats to the rush darter and its habitat that may require special
management and protection of physical and biological features are:
Urbanization activities (such as channel modification for flood
control, vegetation management, and gravel extraction) that could
result in increased bank erosion; significant changes in the existing
flow regime due to inadequate stormwater management and impoundment
construction, water diversion, or water withdrawal; significant
alteration of water quality; introduced species; significant alteration
or destruction of aquatic and emergent vegetation; and significant
changes in stream bed material composition and quality as a result of
construction projects and maintenance activities, off-road vehicle use,
sewer, gas and water easements, bridge construction, culvert and pipe
installation, and other watershed and floodplain disturbances that
release sediments or nutrients into the water.
Unit 4: Wildcat Branch, Winston County, Alabama
Unit 4 includes 6.6 rkm (4.1 rmi) of Wildcat Branch from the
streams headwaters just east of Winston County Road 29 to the
confluence with Clear Creek. This unit was included in the geographical
area occupied by the species at the time of listing and contains
elements of essential physical or biological features. Almost 6.6 rkm
(4.1 rmi), or 100 percent, of this area is privately owned except for
that small amount that is publicly owned by Winston County in the form
of bridge crossings and road easements.
Wildcat Branch provides habitat for rush darters with a network of
small pools and spring runs, along with an abundance of emergent
vegetation (PCE 1 and 2). These geomorphic structures provide the
species with spawning, foraging, and resting areas (PCE 1), along with
good water quality, quantity, and flow (PCEs 3 and 4), which support
the normal life stages and behavior of the rush darter and the species'
prey sources (PCE 5). Rush darters are consistently collected in
Wildcat Branch, but not in large numbers.
Threats that may require special management and protection of
physical and biological features include: Poor silviculture and
agriculture practices; road and roadside maintenance; local residential
development and urbanization activities (such as channel modification
for flood control and gravel extraction) that could result in increased
bank erosion; significant changes in the existing flow regime due to
inadequate stormwater management and impoundment construction, water
diversion, or water withdrawal; significant alteration of water
quality; significant alteration or destruction of aquatic and emergent
vegetation; and significant changes in stream bed material composition
and quality as a result of construction projects and maintenance
activities, off-road vehicle use, sewer, gas and water easements,
bridge construction, culvert and pipe installation, and other watershed
and floodplain disturbances that release sediments or nutrients into
the water.
Unit 5: Mill Creek, Winston County, Alabama
Unit 5 includes 5.9 rkm (3.7 rmi) of Mill Creek from the stream
headwaters just east of Winston County Road 195 to the confluence with
Clear Creek. This unit was included in the geographical area occupied
by the species at the time of listing and contains elements of
essential physical or biological features. Almost 5.9 rkm (3.7 rmi), or
100 percent, of this area is privately owned except for that small
amount that is publicly owned by Winston County in the form of bridge
crossings and road easements.
Mill Creek provides habitat for the rush darter with a network of
small pools, and spring runs, along with an abundance of emergent
vegetation (PCE 1 and 2). These geomorphic structures provide the
species with spawning, foraging, and resting areas (PCE 1), along with
good water quality, quantity, and flow (PCEs 3 and 4), which support
the normal life stages and behavior of the rush darter and the species'
prey sources (PCE 5). Rush darters are consistently collected in Mill
Creek.
Threats that may require special management and protection of PBFs
include: Poor silviculture and agriculture practices; road and roadside
maintenance; local residential development and urbanization activities
(such as channel modification for flood control and gravel extraction)
that could result in increased bank erosion; significant changes in the
existing flow regime due to inadequate stormwater management and
impoundment construction, water diversion, or water withdrawal;
significant alteration of water quality; significant alteration or
destruction of aquatic and emergent vegetation; and significant changes
in stream bed material composition and quality as a result of
construction projects and maintenance activities, off-road vehicle use,
sewer, gas and water easements, bridge construction, culvert and pipe
installation, and other watershed and floodplain disturbances that
release sediments or nutrients into the water.
Unit 6: Doe Branch, Winston County, Alabama
Unit 6 includes 4.3 rkm (2.7 rmi) of Doe Branch from the stream
headwaters north and west of Section Line 23 and 14 (R9W, T11S; Popular
Springs Quadrangle) to the confluence with Wildcat Branch. This unit
was included in the geographical area occupied by the species at the
time of listing and contains elements of essential physical or
biological features. Almost 4.3 rkm (2.7 rmi), or 100 percent, of this
area is privately owned except for that small amount that is publicly
owned by Winston County in the form of bridge crossings and road
easements.
Doe Branch provides habitat for the rush darter with a small
network of small pools, and spring runs, along with adequate emergent
vegetation (PCE 1 and 2). These geomorphic structures provide the
species with spawning, foraging, and resting areas (PCE 1), along with
good water quality, quantity, and flow (PCEs 3 and 4), which support
the normal life stages and behavior of the rush darter and the species'
prey sources (PCE 5). Although the species is considered rare in Doe
Branch, there have been few collection attempts in the stream with a
few darters captured (Mettee et al. 1989, p. 61). Doe Branch contains
habitat for the species and is considered occupied. The stream joins
Wildcat Branch before flowing into Clear Creek.

[[Page 63633]]

Threats that may require special management and protection of
physical and biological features include: Poor silviculture and
agriculture practices; road and roadside maintenance; local residential
development and urbanization activities (such as channel modification
for flood control and gravel extraction) that could result in increased
bank erosion; significant changes in the existing flow regime due to
inadequate stormwater management and impoundment construction, water
diversion, or water withdrawal; significant alteration of water
quality; significant alteration or destruction of aquatic and emergent
vegetation; and significant changes in stream bed material composition
and quality as a result of construction projects and maintenance
activities, off-road vehicle use, sewer, gas and water easements,
bridge construction, culvert and pipe installation, and other watershed
and floodplain disturbances that release sediments or nutrients into
the water.
Unit 7: Little Cove Creek, Cove Spring and Spring Run, Etowah County,
Alabama
Unit 7 includes 11.2 rkm (6.1 rmi) of Little Cove Creek and the
Cove Spring run system along with 5.1 ha (12.7 ac) of the spring run
floodplain. Specifically, the Little Cove Creek section (11.0 rkm (6.0
rmi)) is from the intersection of Etowah County Road 179 near the creek
headwaters, downstream to its confluence with the Locust Fork River.
The Cove Spring and spring run section includes 0.2 rkm (0.1 rmi) of
the spring run from the springhead at the West Etowah Water and Fire
Authority pumping station on Cove Spring Road to the confluence with
Little Cove Creek and includes 5.1 ha (12.7 ac) of the spring run
floodplain due south of the pumping facility. This unit was included in
the geographical area occupied by the species at the time of listing
and contains elements of essential physical or biological features. All
11.2 rkm (6.1 rmi) of Unit 7 is privately owned except for that small
amount that is publicly owned by Etowah County in the form of bridge
crossings and road easements.
Little Cove Creek provides habitat for the rush darter with a
network of small pools, and spring runs, along with an abundance of
emergent aquatic vegetation (PCE 1 and 2). These geomorphic structures
provide the species with spawning, foraging, and resting areas (PCE 1),
along with good water quality, quantity, and flow (PCEs 3 and 4), which
support the normal life stages and behavior of the rush darter and the
species' prey sources (PCE 5). Rush darters are collected in Little
Cove Creek, but not in large numbers. The Cove Spring and Spring Run
site supports small populations of rush darters and provides
supplemental water quantity to Little Cove Creek (PCEs 1 and 3). Water
quantity from the spring averages 0.2 m\3\/s (3,000 gal/min) (Snead
2011, pers. comm.) (PCE 4). The spring contains an abundance of gravel
and silt along with significant emergent vegetation for rush darters to
use in spawning, foraging, and other life processes (PCE 2). The Cove
Spring and Spring Run site provides habitat and spawning sites, and
offers connectivity with rush darter populations to Little Cove Creek
(PCE 1).
Threats that may require special management and protection of
physical and biological features include: Road and roadside
maintenance; agricultural and silviculture activities that could result
in increased bank erosion; significant changes in the existing flow
regime due to inadequate stormwater management; impoundment
construction, water diversion, or water withdrawal for livestock and
irrigation; significant alteration or destruction of aquatic and
emergent vegetation; significant alteration of water quality due to
release of chlorinated water and other chemicals into the Cove Spring
run or Little Cove Creek by the water pumping facility or other
sources; and off-road vehicle use, sewer, gas and water easements,
bridge construction, culvert and pipe installation, and other watershed
and floodplain disturbances that release sediments or nutrients into
the water.
Unit 8: Bristow Creek, Etowah County, Alabama
Unit 8 includes 10.2 rkm (6.3 rmi) of Bristow Creek beginning from
its intersection with Fairview Cove Road, downstream to the confluence
with the Locust Fork River. This unit was included in the geographical
area occupied by the species at the time of listing and contains
elements of essential physical or biological features. All 10.2 rkm
(6.3 rmi) of Bristow Creek, beginning at the bridge at Fairview Road,
downstream to the confluence with the Locust Fork River is privately
owned except for that small amount that is publicly owned by Etowah
County in the form of bridge crossings and road easements.
Bristow Creek, although channelized in some locations, provides
habitat and connectivity for the rush darters (PCE 1). Locations within
the creek have the necessary stream attributes of some small pools, and
spring runs (PCE 1) along with emergent vegetation (PCE 2). These
geomorphic structures provide the species with spawning, foraging, and
resting areas (PCE 1), along with supplemental water quantity and flow
(PCE 3), which support the normal life stages and behavior of the rush
darter and the species' prey sources (PCE 5). The rush darter is
considered rare in Bristow Creek, but sampling has been limited.
Threats that may require special management and protection of
physical and biological features include: Road and roadside
maintenance; agricultural and silviculture activities that could result
in increased bank erosion; significant changes in the existing flow
regime due to inadequate stormwater management; significant alteration
or destruction of aquatic and emergent vegetation; impoundment
construction, water diversion, or water withdrawal for livestock and
irrigation; and off-road vehicle use, sewer, gas and water easements,
septic tank drain fields, bridge construction and maintenance, culvert
and pipe installation, and other watershed and floodplain disturbances
that release sediments or nutrients into the water.

Yellowcheek Darter

We are designating four units as critical habitat for the
yellowcheek darter. These units, all of which are on the Little Red
River, constitute our current best assessment of areas that meet the
definition of critical habitat for the yellowcheek darter and are as
follows: (1) Middle Fork, (2) South Fork, (3) Archey Fork, and (4)
Devil's Fork (includes Turkey Creek and Beech Fork). Table 3 shows the
occupancy of the units and ownership of the designated areas for the
yellowcheek darter.

[[Page 63634]]

TABLE 3--Occupancy and Ownership of the Designated Critical Habitat Units for the Yellowcheek Darter
----------------------------------------------------------------------------------------------------------------
State, county,
Private city Total length
Unit Location Occupied ownership rkm ownership rkm rkm (rmi)
(rmi) (rmi)
----------------------------------------------------------------------------------------------------------------
1............................ Middle Fork Yes............ 73.2 (45.5) 0 73.2 (45.5)
Little Red
River.
2............................ South Fork Yes............ 33.3 (20.7) 0.5 (0.3) 33.8 (21.0)
Little Red
River.
3............................ Archey Fork Yes............ 28.2 (17.5) 0.3 (0.2) 28.5 (17.7)
Little Red
River.
4............................ Devil's Fork Yes............ 28.0 (17.4) 0 28.0 (17.4)
Little Red
River.
----------------------------------------------------------------------------------
Total.................... ................ ............... 162.7 (101.1) 0.8 (0.5) 163.5 (101.6)
----------------------------------------------------------------------------------------------------------------

We present brief descriptions of all units and reasons why they
meet the definition of critical habitat for the yellowcheek darter. The
designated critical habitat units include the river channels within the
ordinary high water line. As defined in 33 CFR 329.11, the ordinary
high water mark on nontidal rivers is the line on the shore established
by the fluctuations of water and indicated by physical characteristics,
such as a clear, natural line impressed on the bank; shelving; changes
in the character of soil; destruction of terrestrial vegetation; the
presence of litter and debris; or other appropriate means that consider
the characteristics of the surrounding areas. In Arkansas, the state
owns the stream channel within the ordinary high water lines for
navigable streams and rivers, including all streams within the critical
habitat designation for yellowcheek darter. For each stream reach
designated as a critical habitat unit, the upstream and downstream
boundaries are described generally below.
Unit 1: Middle Fork of the Little Red River, Searcy, Stone, and Van
Buren Counties, Arkansas
Unit 1 includes 73.2 rkm (45.5 rmi) of the Middle Fork of the
Little Red River from Searcy County Road 167 approximately 3.4 km (2.1
mi) southwest of Leslie, Arkansas, to a point on the stream 7.7 rkm
(4.8 rmi) downstream (35.66515, -92.25942) of the Arkansas Highway 9
crossing of the Middle Fork near Shirley, Arkansas. The lower boundary
coincides with the 140.5-m (461-ft) elevation of the conservation pool
for Greers Ferry Lake where suitable habitat becomes inundated by
Greers Ferry Lake and no longer supports the yellowcheek darter. Live
yellowcheek darters have been collected from four sites within Unit 1.
The uppermost site is immediately below the Hwy 65 Bridge near Leslie,
Arkansas, and the lowermost site is immediately below the Hwy 9 Bridge
in Shirley, Arkansas (Wine and Blumenshine 2002, p. 18). This unit was
included in the geographical area occupied by the species at the time
of listing and contains elements of essential physical or biological
features. Approximately 100 percent of Unit 1 is privately owned.
County and State road crossings exist in all three counties and account
for less than one percent of total Unit 1 ownership.
This unit contains stable riffle areas of moderate to swift
velocity (PCE 1) that are relatively silt-free (PCE 2) and maintain
surface flows year round (PCE 3). Such characteristics are necessary
for reproductive and sheltering requirements of yellowcheek darters.
Water quality within this unit is also characterized by moderate
temperatures, relatively high dissolved oxygen concentrations, moderate
pH, and low levels of pollutants (PCE 4), which support abundant
populations of aquatic macroinvertebrates that serve as prey items for
yellowcheek darters (PCE 5).
Threats that may require special management and protection of
physical and biological features include: Changes in the existing
stream ecology due to activities associated with natural gas
development, livestock grazing, county road maintenance, timber
harvest, water diversion, gravel mining, and rock harvesting
operations. Alteration of water quality and changes in streambed
material composition from any other activities that would release
sediments, nutrients, or toxins into the water also act as threats to
the yellowcheek darter.
Unit 2: South Fork of the Little Red River, Van Buren County, Arkansas
Unit 2 includes 33.8 rkm (21.0 rmi) of the South Fork of the Little
Red River from Van Buren County Road 9 three miles north of Scotland,
Arkansas, to a point on the stream (35.57364, -92.42718) approximately
5.5 rkm (3.4 rmi) downstream of U.S. Highway 65 in Clinton, Arkansas,
where suitable habitat becomes inundated by Greers Ferry Lake and no
longer supports the yellowcheek darter. Live yellowcheek darters have
been collected from four sites along the South Fork Little Red River,
including the uppermost boundary at the County Road 9 Bridge and just
above the Hwy 65 Bridge in Clinton, Arkansas. This unit was included in
the geographical area occupied by the species at the time of listing
and contains elements of essential physical or biological features.
Approximately 33.3 rkm (20.7 rmi), or >99 percent, of Unit 2 is
privately owned, and 0.5 rkm (0.3 rmi) is within the boundary of
property owned by the city of Clinton, Arkansas. County and State road
crossings account for less than one percent of total Unit 2 ownership.
This unit contains stable riffle areas of moderate to swift
velocity (PCE 1) that are relatively silt-free (PCE 2) and maintain
surface flows year round (PCE 3). Such characteristics are necessary
for reproductive and sheltering requirements of yellowcheek darters.
Water quality within this unit is also characterized by moderate
temperatures, relatively high dissolved oxygen concentrations, moderate
pH, and low levels of pollutants (PCE 4), which support abundant
populations of aquatic macroinvertebrates that serve as prey items for
yellowcheek darters (PCE 5).
Threats that may require special management and protection of
physical and biological features include: Changes in the existing
stream ecology due to activities associated with natural gas
development, livestock grazing, county road maintenance, timber
harvest, water diversion, and gravel mining. Alteration of water
quality and changes in streambed material composition from any other
activities that would release sediments, nutrients, or toxins into the
water also act as threats to the yellowcheek darter.
Unit 3: Archey Fork of the Little Red River, Van Buren County, Arkansas
Unit 3 includes 28.5 rkm (17.7 rmi) of the Archey Fork of the
Little Red River from its junction with South Castleberry Creek to its
confluence with the South Fork of the Little Red River near Clinton,
Arkansas. Live yellowcheek darters have been collected just above the
confluence of the Archey and South Forks (Wine et al. 2000, p. 10) and
at a

[[Page 63635]]

point 15.3 rkm (9.5 rmi) above the confluence (Brophy and Stoeckel
2006, p. 3). This unit was included in the geographical area occupied
by the species at the time of listing and contains elements of
essential physical or biological features. Unit 3 is nearly 100 percent
privately owned with the exception of a small city park in Clinton,
Arkansas. County and State road crossings and portions within the city
of Clinton, Arkansas, account for less than one percent of total Unit 3
ownership.
This unit contains stable riffle areas of moderate to swift
velocity (PCE 1) that are relatively silt-free (PCE 2) and maintain
surface flows year round (PCE 3). Such characteristics are necessary
for reproductive and sheltering requirements of yellowcheek darters.
Water quality within this unit is also characterized by moderate
temperatures, relatively high dissolved oxygen concentrations, moderate
pH, and low levels of pollutants (PCE 4), which support abundant
populations of aquatic macroinvertebrates that serve as prey items for
yellowcheek darters (PCE 5).
Threats that may require special management and protection of
physical and biological features include: Changes in the existing
stream ecology due to activities associated with natural gas
development, livestock grazing, county road maintenance, timber
harvest, water diversion, and gravel mining. Alteration of water
quality and changes in streambed material composition from any other
activities that would release sediments, nutrients, or toxins into the
water also act as threats to the yellowcheek darter.
Unit 4: Devil's Fork of the Little Red River (including Turkey Creek
and Beech Fork), Stone and Cleburne Counties, Arkansas
Unit 4 includes 28.0 rkm (17.4 rmi) of stream from Stone County
Road 21 approximately 3 miles north of Prim, Arkansas, to a point
(35.63556, -92.03400) on the Devil's Fork approximately 5.1 km (3.2 mi)
southeast of Woodrow, Arkansas, where suitable habitat becomes
inundated by Greers Ferry Lake and no longer supports the yellowcheek
darter. Live yellowcheek darters have not been collected at the
uppermost site (Turkey Creek) since 1999 (Mitchell et al. 2002, p.
131). However, Wine and Blumenshine (2002, p. 11) did detect
yellowcheek darters in the Beech Fork, and it is likely that the
species persists in very low numbers within the upper portions of the
watershed during normal flow years. This unit was included in the
geographical area occupied by the species at the time of listing and
contains elements of essential physical or biological features.
Approximately 100 percent of Unit 4 is privately owned. County road
crossings exist in both counties and account for less than one percent
of total Unit 4 ownership.
This unit contains stable riffle areas of moderate to swift
velocity (PCE 1) that are relatively silt-free (PCE 2) and maintain
surface flows year round (PCE 3). Such characteristics are necessary
for reproductive and sheltering requirements of yellowcheek darters.
Water quality within this unit is also characterized by moderate
temperatures, relatively high dissolved oxygen concentrations, moderate
pH, and low levels of pollutants (PCE 4), which support abundant
populations of aquatic macroinvertebrates that serve as prey items for
yellowcheek darters (PCE 5).
Threats that may require special management and protection of
physical and biological features include: Changes in the existing
stream ecology due to activities associated with natural gas
development, livestock grazing, county road maintenance, timber
harvest, water diversion, and gravel mining. Alteration of water
quality and changes in streambed material composition from any other
activities that would release sediments, nutrients, or toxins into the
water also act as threats to the yellowcheek darter.

Chucky Madtom

We are designating one unit as critical habitat for the Chucky
madtom. The unit, which constitutes our current best assessment of the
area that meets the definition of critical habitat for the Chucky
madtom, is Little Chucky Creek, which was occupied at the time of
listing. Table 4 shows the occupancy of the unit and ownership of the
designated unit for the Chucky madtom.

Table 4--Occupancy and Ownership of the Designated Critical Habitat Unit for the Chucky Madtom
----------------------------------------------------------------------------------------------------------------
State, county,
Private city Total length
Unit Location Occupied ownership rkm ownership rkm rkm (rmi)
(rmi) (rmi)
----------------------------------------------------------------------------------------------------------------
Little Chucky Yes............ 31.8 (19.7) <0.1 (<0.06) 31.9 (19.8)
Creek.
----------------------------------------------------------------------------------
Total.................... ................ ............... .............. .............. 31.9 (19.8)
----------------------------------------------------------------------------------------------------------------

We present a brief description of the unit and reasons why it meets
the definition of critical habitat for the Chucky madtom. The critical
habitat unit includes the river channel within the ordinary high water
line. As defined in 33 CFR 329.11, the ordinary high water mark on
nontidal rivers is the line on the shore established by the
fluctuations of water and indicated by physical characteristics, such
as a clear, natural line impressed on the bank; shelving; changes in
the character of soil; destruction of terrestrial vegetation; the
presence of litter and debris; or other appropriate means that consider
the characteristics of the surrounding areas. Lands in the critical
habitat unit are either in private ownership or public ownership
(Greene County road easements). In Tennessee, landowners own the land
under non-navigable streams (e.g., the stream channel or bottom), but
the water is under State jurisdiction.
Unit 1: Little Chucky Creek, Greene County, Tennessee
This unit includes 31.9 rkm (19.8 rmi) of Little Chucky Creek from
its confluence with an unnamed tributary, downstream to its confluence
with the Nolichucky River, at the Greene and Cocke County line,
Tennessee. Although the Chucky madtom has not been observed since 2004,
we still consider it to exist in Little Chucky Creek. Observations of
the species have always been sporadic, and it is a cryptic species that
is hard to locate. This unit was included in the geographical area
occupied by the species at the time of listing and contains elements of
essential physical or biological features. Almost 31.9 rkm (19.8 rmi),
or 100 percent, of this area is privately owned except for that small
amount that is publicly owned by Greene County in the form of bridge
crossings and road easements.

[[Page 63636]]

This unit contains stable riffle and run areas of moderate to swift
velocity (PCE 1); flat gravel, cobble, and slab-rock boulders that are
relatively silt-free (PCE 2); and surface flows that are maintained
year round (PCE 3). Such characteristics are necessary for reproductive
and sheltering requirements of Chucky madtoms. Water quality within
this unit is also characterized by moderate temperatures, relatively
high dissolved oxygen concentrations, moderate pH, and low levels of
pollutants (PCE 4), which support abundant populations of aquatic
macroinvertebrates that serve as prey items for the Chucky madtom (PCE
5).
This critical habitat unit is almost entirely located on private
property and is not presently under the special management or
protection provided by a legally operative plan or agreement for the
conservation of the species. Various activities in or adjacent to the
critical habitat unit described in this rule may affect one or more of
the PBFs. Features in this critical habitat designation that may
require special management are due to threats posed by agricultural
activities (e.g., row crops and livestock), lack of adequate riparian
buffers, construction and maintenance of State and county roads, gravel
mining, and nonpoint source pollution arising from a wide variety of
human activities.

Laurel Dace

We are designating six units as critical habitat for the laurel
dace. The units, which constitute our current best assessment of areas
that meet the definition of critical habitat for the laurel dace, are:
(1) Bumbee Creek, (2) Youngs Creek, (3) Moccasin Creek, (4) Cupp Creek,
(5) Horn Branch, and (6) Soddy Creek. Table 5 shows the occupancy of
the units and ownership of the designated areas for the laurel dace.

Table 5--Occupancy and Ownership of the Designated Critical Habitat Units for the Laurel Dace
----------------------------------------------------------------------------------------------------------------
State, county,
Private city Total length
Unit Location Occupied ownership rkm ownership rkm rkm (rmi)
(rmi) (rmi)
----------------------------------------------------------------------------------------------------------------
1............................ Bumbee Creek.... Yes............ 7.7 (4.7) <0.1 (<0.06) 7.8 (4.8)
2............................ Youngs Creek.... Yes............ 7.8 (4.8) <0.1 (<0.06) 7.9 (4.9)
3............................ Moccasin Creek.. Yes............ 8.9 (5.5) <0.1 (<0.06) 9.0 (5.6)
4............................ Cupp Creek...... Yes............ 4.9 (3.0) <0.1 (<0.06) 5.0 (3.1)
5............................ Horn Branch..... Yes............ 3.9 (2.4) <0.1 (<0.06) 4.0 (2.5)
6............................ Soddy Creek..... Yes............ 8.3 (5.1) <0.1 (<0.06) 8.4 (5.2)
----------------------------------------------------------------------------------
Total.................... ................ ............... .............. .............. 42.2 (26.2)
----------------------------------------------------------------------------------------------------------------

We present brief descriptions of all units and reasons why they
meet the definition of critical habitat for the laurel dace. The
designated critical habitat units include the river channels within the
ordinary high water line. As defined in 33 CFR 329.11, the ordinary
high water mark on nontidal rivers is the line on the shore established
by the fluctuations of water and indicated by physical characteristics,
such as a clear, natural line impressed on the bank; shelving; changes
in the character of soil; destruction of terrestrial vegetation; the
presence of litter and debris; or other appropriate means that consider
the characteristics of the surrounding areas. Lands in critical habitat
units are either in private ownership or public ownership (county road
easements). In Tennessee, landowners own the land under non-navigable
streams (e.g., the stream channel or bottom), but the water is under
State jurisdiction.
Unit 1: Bumbee Creek, Bledsoe and Rhea Counties, Tennessee
Unit 1 includes 7.8 rkm (4.8 rmi) of Bumbee Creek from its
headwaters in Bledsoe County, downstream to its confluence with
Mapleslush Branch in Rhea County, Tennessee. This unit was included in
the geographical area occupied by the species at the time of listing
and contains elements of essential physical or biological features.
Almost 7.7 rkm (4.7 rmi), or 100 percent, of this area is privately
owned except for that small amount that is publicly owned by Bledsoe
and Rhea Counties in the form of bridge crossings and road easements.
This unit contains stable headwater streams (PCE 1) that are
relatively silt-free, contain cobble and slab-rock boulder substrates
with canopy cover (PCE 2), and have surface flows that are maintained
year round (PCE 3). Such characteristics are necessary for reproductive
and sheltering requirements of laurel dace. Water quality within this
unit is also characterized by moderate temperatures, relatively high
dissolved oxygen concentrations, moderate pH, and low levels of
pollutants (PCE 4), which support abundant populations of aquatic
macroinvertebrates that serve as prey items for laurel dace (PCE 5).
Various activities in or adjacent to these areas of critical
habitat may affect one or more of the physical and biological features.
Features in this critical habitat designation that may require special
management are due to threats posed by resource extraction (coal and
gravel mining, silviculture, natural gas and oil exploration
activities), agricultural activities (row crops and livestock), lack of
adequate riparian buffers, construction and maintenance of State and
county roads, nonpoint source pollution arising from a wide variety of
human activities, and canopy loss caused by infestations of the hemlock
woolly adelgid.
Unit 2: Youngs Creek, Bledsoe and Rhea Counties, Tennessee
Unit 2 includes 7.9 rkm (4.9 rmi) of Youngs Creek from its
headwaters in Bledsoe County, downstream to its confluence with
Moccasin Creek in Rhea County, Tennessee. This unit was included in the
geographical area occupied by the species at the time of listing and
contains elements of essential physical or biological features. Almost
7.8 rkm (4.8 rmi), or 100 percent, of this area is privately owned
except for that small amount that is publicly owned by Bledsoe and Rhea
Counties in the form of bridge crossings and road easements.
This unit contains stable headwater streams (PCE 1) that are
relatively silt-free, contain cobble and slab-rock boulder substrates
with canopy cover (PCE 2), and have surface flows that are maintained
year round (PCE 3). Such characteristics are necessary for reproductive
and sheltering requirements of laurel dace. Water quality within this
unit is also characterized by moderate temperatures, relatively high
dissolved oxygen concentrations, moderate pH, and low levels of
pollutants (PCE 4), which

[[Page 63637]]

support abundant populations of aquatic macroinvertebrates that serve
as prey items for laurel dace (PCE 5).
Various activities in or adjacent to these areas of critical
habitat may affect one or more of the physical and biological features.
Features in this critical habitat designation that may require special
management are due to threats posed by resource extraction (coal and
gravel mining, silviculture, natural gas and oil exploration
activities), agricultural activities (row crops and livestock), lack of
adequate riparian buffers, construction and maintenance of State and
county roads, nonpoint source pollution arising from a wide variety of
human activities, and canopy loss caused by infestations of the hemlock
woolly adelgid.
Unit 3: Moccasin Creek, Bledsoe County, Tennessee
Unit 3 includes 9.0 rkm (5.6 rmi) of Moccasin Creek from its
headwaters downstream to 0.1 rkm (0.6 rmi) below its confluence with
Lick Creek in Bledsoe County, Tennessee. This unit was included in the
geographical area occupied by the species at the time of listing and
contains elements of essential physical or biological features. Almost
8.9 rkm (5.5 rmi), or 100 percent, of this area is privately owned
except for that small amount that is publicly owned by Bledsoe County
in the form of bridge crossings and road easements.
This unit contains stable headwater streams (PCE 1) that are
relatively silt-free, contain cobble and slab-rock boulder substrates
with canopy cover (PCE 2), and have surface flows that are maintained
year round (PCE 3). Such characteristics are necessary for reproductive
and sheltering requirements of laurel dace. Water quality within this
unit is also characterized by moderate temperatures, relatively high
dissolved oxygen concentrations, moderate pH, and low levels of
pollutants (PCE 4), which support abundant populations of aquatic
macroinvertebrates that serve as prey items for laurel dace (PCE 5).
Various activities in or adjacent to these areas of critical
habitat may affect one or more of the physical and biological features.
Features in this critical habitat designation that may require special
management are due to threats posed by resource extraction (coal and
gravel mining, silviculture, natural gas and oil exploration
activities), agricultural activities (row crops and livestock), lack of
adequate riparian buffers, construction and maintenance of State and
county roads, nonpoint source pollution arising from a wide variety of
human activities, and canopy loss caused by infestations of the hemlock
woolly adelgid.
Unit 4: Cupp Creek, Bledsoe County, Tennessee
Unit 4 includes 5.0 rkm (3.1 rmi) of Cupp Creek from its headwaters
downstream to its confluence with an unnamed tributary in Bledsoe
County, Tennessee. This unit was included in the geographical area
occupied by the species at the time of listing and contains elements of
essential physical or biological features. Almost 4.9 rkm (3.0 rmi), or
100 percent, of this area is privately owned except for that small
amount that is publicly owned by Bledsoe County in the form of bridge
crossings and road easements.
This unit contains stable headwater streams (PCE 1) that are
relatively silt-free; contain cobble and slab-rock boulder substrates
with canopy cover (PCE 2), and have surface flows that are maintained
year round (PCE 3). Such characteristics are necessary for reproductive
and sheltering requirements of laurel dace. Water quality within this
unit is also characterized by moderate temperatures, relatively high
dissolved oxygen concentrations, moderate pH, and low levels of
pollutants (PCE 4), which support abundant populations of aquatic
macroinvertebrates that serve as prey items for laurel dace (PCE 5).
Various activities in or adjacent to these areas of critical
habitat may affect one or more of the physical and biological features.
Features in this critical habitat designation that may require special
management are due to threats posed by resource extraction (coal and
gravel mining, silviculture, natural gas and oil exploration
activities), agricultural activities (row crops and livestock), lack of
adequate riparian buffers, construction and maintenance of State and
county roads, nonpoint source pollution arising from a wide variety of
human activities, and canopy loss caused by infestations of the hemlock
woolly adelgid.
Unit 5: Horn Branch, Bledsoe County, Tennessee
Unit 5 includes 4.0 rkm (2.5 rmi) of Horn Branch from its
headwaters downstream to its confluence with Rock Creek in Bledsoe
County, Tennessee. This unit was included in the geographical area
occupied by the species at the time of listing and contains elements of
essential physical or biological features. Almost 3.9 rkm (2.4 rmi), or
100 percent, of this area is privately owned except for that small
amount that is publicly owned by Bledsoe County in the form of bridge
crossings and road easements.
This unit contains stable headwater streams (PCE 1) that are
relatively silt-free, contain cobble and slab-rock boulder substrates
with canopy cover (PCE 2), and have surface flows that are maintained
year round (PCE 3). Such characteristics are necessary for reproductive
and sheltering requirements of laurel dace. Water quality within this
unit is also characterized by moderate temperatures, relatively high
dissolved oxygen concentrations, moderate pH, and low levels of
pollutants (PCE 4), which support abundant populations of aquatic
macroinvertebrates that serve as prey items for laurel dace (PCE 5).
Various activities in or adjacent to these areas of critical
habitat may affect one or more of the physical and biological features.
Features in this critical habitat designation that may require special
management are due to threats posed by resource extraction (coal and
gravel mining, silviculture, natural gas and oil exploration
activities), agricultural activities (row crops and livestock), lack of
adequate riparian buffers, construction and maintenance of State and
county roads, nonpoint source pollution arising from a wide variety of
human activities, and canopy loss caused by infestations of the hemlock
woolly adelgid.
Unit 6: Soddy Creek, Sequatchie and Bledsoe Counties, Tennessee
Unit 6 includes 8.4 rkm (5.2 rmi) of Soddy Creek from its
headwaters in Sequatchie County, downstream to its confluence with
Harvey Creek in Sequatchie County, Tennessee. This unit was included in
the geographical area occupied by the species at the time of listing
and contains elements of essential physical or biological features.
Almost 8.3 rkm (5.1 rmi), or 100 percent, of this area is privately
owned except for a small amount that is publicly owned by Sequatchie
and Bledsoe Counties in the form of bridge crossings and road
easements.
This unit contains stable headwater streams (PCE 1) that are
relatively silt-free, contain cobble and slab-rock boulder substrates
with canopy cover (PCE 2), and have surface flows that are maintained
year round (PCE 3). Such characteristics are necessary for reproductive
and sheltering requirements of laurel dace. Water quality within this
unit is also characterized by moderate temperatures, relatively high
dissolved oxygen concentrations, moderate pH, and low levels of
pollutants (PCE 4), which support abundant populations of

[[Page 63638]]

aquatic macroinvertebrates that serve as prey items for laurel dace
(PCE 5).
Various activities in or adjacent to these areas of critical
habitat may affect one or more of the physical and biological features.
Features in this critical habitat designation that may require special
management are due to threats posed by resource extraction (coal and
gravel mining, silviculture, natural gas and oil exploration
activities), agricultural activities (row crops and livestock), lack of
adequate riparian buffers, construction and maintenance of State and
county roads, nonpoint source pollution arising from a wide variety of
human activities, and canopy loss caused by infestations of the hemlock
woolly adelgid.

Effects of Critical Habitat Designation

Section 7 Consultation

Section 7(a)(2) of the Act requires Federal agencies, including the
Service, to ensure that any action they fund, authorize, or carry out
is not likely to jeopardize the continued existence of any endangered
species or threatened species or result in the destruction or adverse
modification of designated critical habitat of such species. In
addition, section 7(a)(4) of the Act requires Federal agencies to
confer with the Service on any agency action which is likely to
jeopardize the continued existence of any species proposed to be listed
under the Act or result in the destruction or adverse modification of
proposed critical habitat.
Decisions by the 5th and 9th Circuits Court of Appeals have
invalidated our regulatory definition of ``destruction or adverse
modification'' (50 CFR 402.02) (see Gifford Pinchot Task Force v. U.S.
Fish and Wildlife Service, 378 F.3d 1059 (9th Cir. 2004) and Sierra
Club v. U.S. Fish and Wildlife Service et al., 245 F.3d 434, 442 (5th
Cir. 2001)), and we do not rely on this regulatory definition when
analyzing whether an action is likely to destroy or adversely modify
critical habitat. Under the statutory provisions of the Act, we
determine destruction or adverse modification on the basis of whether,
with implementation of the proposed Federal action, the affected
critical habitat would continue to serve its intended conservation role
for the species.
If a Federal action may affect a listed species or its critical
habitat, the responsible Federal agency (action agency) must enter into
consultation with us. Examples of actions that are subject to the
section 7 consultation process are actions on State, tribal, local, or
private lands that require a Federal permit (such as a permit from the
U.S. Army Corps of Engineers under section 404 of the Clean Water Act
(33 U.S.C. 1251 et seq.) or a permit from the Service under section 10
of the Act) or that involve some other Federal action (such as funding
from the Federal Highway Administration, Federal Aviation
Administration, or the Federal Emergency Management Agency). Federal
actions not affecting listed species or critical habitat, and actions
on State, tribal, local, or private lands that are not Federally funded
or authorized do not require section 7 consultation.
As a result of section 7 consultation, we document compliance with
the requirements of section 7(a)(2) through our issuance of:
(1) A concurrence letter for Federal actions that may affect, but
are not likely to adversely affect, listed species or critical habitat;
or
(2) A biological opinion for Federal actions that may affect, or
are likely to adversely affect, listed species or critical habitat.
When we issue a biological opinion concluding that a project is
likely to jeopardize the continued existence of a listed species or
destroy or adversely modify critical habitat, we provide reasonable and
prudent alternatives to the project, if any are identifiable, that
would avoid the likelihood of jeopardy or destruction or adverse
modification of critical habitat. We define ``reasonable and prudent
alternatives'' (at 50 CFR 402.02) as alternative actions identified
during consultation that:
(1) Can be implemented in a manner consistent with the intended
purpose of the action,
(2) Can be implemented consistent with the scope of the Federal
agency's legal authority and jurisdiction,
(3) Are economically and technologically feasible, and
(4) Would, in the Director's opinion, avoid the likelihood of
jeopardizing the continued existence of the listed species or avoid the
likelihood of destroying or adversely modifying critical habitat.
Reasonable and prudent alternatives can vary from slight project
modifications to extensive redesign or relocation of the project. Costs
associated with implementing a reasonable and prudent alternative are
similarly variable.
Regulations at 50 CFR 402.16 require Federal agencies to reinitiate
consultation on previously reviewed actions in instances where we have
listed a new species or subsequently designated critical habitat that
may be affected and the Federal agency has retained discretionary
involvement or control over the action (or the agency's discretionary
involvement or control is authorized by law). Consequently, Federal
agencies sometimes may need to request reinitiation of consultation
with us on actions for which formal consultation has been completed, if
those actions with discretionary involvement or control may affect
subsequently listed species or designated critical habitat.

Application of the ``Adverse Modification'' Standard

The key factor related to the adverse modification determination is
whether, with implementation of the proposed Federal action, the
affected critical habitat would continue to serve its intended
conservation role for these species. Activities that may destroy or
adversely modify critical habitat are those that alter the physical and
biological features to an extent that appreciably reduces the
conservation value of critical habitat for these species. As discussed
above, the role of critical habitat is to support life-history needs of
these species and provide for the conservation of these species.
Section 4(b)(8) of the Act requires us to briefly evaluate and
describe, in any proposed or final regulation that designates critical
habitat, activities involving a Federal action that may destroy or
adversely modify such habitat, or that may be affected by such
designation.
Activities that may affect critical habitat, when carried out,
funded, or authorized by a Federal agency, should result in
consultation for the Cumberland darter, rush darter, yellowcheek
darter, Chucky madtom, and laurel dace. These activities include, but
are not limited to:
(1) Actions that would alter the geomorphology of stream habitats.
Such activities could include, but are not limited to, instream
excavation or dredging, impoundment, channelization, road and bridge
construction, mining, and discharge of fill materials. These activities
could cause aggradation or degradation of the channel bed elevation or
significant bank erosion, result in entrainment or burial of these
fishes, and cause other direct or cumulative adverse effects to these
species.
(2) Actions that would significantly alter the existing flow regime
or water quantity. Such activities could include, but are not limited
to, impoundment, water diversion, water withdrawal, and hydropower
generation. These activities could eliminate or reduce the habitat
necessary for growth and reproduction of these fishes.

[[Page 63639]]

(3) Actions that would significantly alter water quantity or water
quality (for example, temperature, pH, contaminants, and excess
nutrients). Such activities could include, but are not limited to,
hydropower discharges, or the release of chemicals, biological
pollutants, or heated effluents into surface water or connected
groundwater at a point source or by dispersed release (nonpoint
source). These activities could alter water conditions that are beyond
the tolerances of these fishes and result in direct or cumulative
adverse effects to these species.
(4) Actions that would significantly alter stream bed material
composition and quality by increasing sediment deposition or
filamentous algal growth. Such activities could include, but are not
limited to, construction projects, livestock grazing, timber harvest,
off-road vehicle use, and other watershed and floodplain disturbances
that release sediments or nutrients into the water. These activities
could eliminate or reduce habitats necessary for the growth and
reproduction of these fishes by causing excessive sedimentation or
nutrification.

Exemptions

Application of Section 4(a)(3) of the Act

The Sikes Act Improvement Act of 1997 (Sikes Act) (16 U.S.C. 670a)
required each military installation that includes land and water
suitable for the conservation and management of natural resources to
complete an integrated natural resources management plan (INRMP) by
November 17, 2001. An INRMP integrates implementation of the military
mission of the installation with stewardship of the natural resources
found on the base. Each INRMP includes:
(1) An assessment of the ecological needs on the installation,
including the need to provide for the conservation of listed species;
(2) A statement of goals and priorities;
(3) A detailed description of management actions to be implemented
to provide for these ecological needs; and
(4) A monitoring and adaptive management plan.
Among other things, each INRMP must, to the extent appropriate and
applicable, provide for fish and wildlife management; fish and wildlife
habitat enhancement or modification; wetland protection, enhancement,
and restoration where necessary to support fish and wildlife; and
enforcement of applicable natural resource laws.
The National Defense Authorization Act for Fiscal Year 2004 (Pub.
L. 108-136) amended the Act to limit areas eligible for designation as
critical habitat. Specifically, section 4(a)(3)(B)(i) of the Act (16
U.S.C. 1533(a)(3)(B)(i)) now provides: ``The Secretary shall not
designate as critical habitat any lands or other geographical areas
owned or controlled by the Department of Defense, or designated for its
use, that are subject to an integrated natural resources management
plan prepared under section 101 of the Sikes Act (16 U.S.C. 670a), if
the Secretary determines in writing that such plan provides a benefit
to the species for which critical habitat is proposed for
designation.''
There were no Department of Defense lands with a completed INRMP
within the proposed critical habitat designation. Therefore, we are not
exempting lands from this final designation of critical habitat for the
Cumberland darter, rush darter, yellowcheek darter, Chucky madtom, or
laurel dace under section 4(a)(3)(B)(i) of the Act.

Exclusions

Application of Section 4(b)(2) of the Act

Section 4(b)(2) of the Act states that the Secretary shall
designate and make revisions to critical habitat on the basis of the
best available scientific data after taking into consideration the
economic impact, national security impact, and any other relevant
impact of specifying any particular area as critical habitat. The
Secretary may exclude an area from critical habitat if he determines
that the benefits of such exclusion outweigh the benefits of specifying
such area as part of the critical habitat, unless he determines, based
on the best scientific data available, that the failure to designate
such area as critical habitat will result in the extinction of the
species. In making that determination, the statute on its face, as well
as the legislative history, is clear that the Secretary has broad
discretion regarding which factor(s) to use and how much weight to give
to any factor.
In considering whether to exclude a particular area from the
designation, we identify the benefits of including the area in the
designation, identify the benefits of excluding the area from the
designation, and evaluate whether the benefits of exclusion outweigh
the benefits of inclusion. If the analysis indicates that the benefits
of exclusion outweigh the benefits of inclusion, the Secretary may
exercise his discretion to exclude the area only if such exclusion
would not result in the extinction of the species.
Exclusions Based on Economic Impacts
Under section 4(b)(2) of the Act, we consider the economic impacts
of specifying any particular area as critical habitat. In order to
consider economic impacts, we prepared a draft economic analysis of the
proposed critical habitat designation and related factors (Industrial
Economics, Incorporated 2012). The draft analysis, dated May 1, 2012,
was made available for public review from May 24, 2012, through June
25, 2012 (77 FR 30988). Following the close of the comment period, a
final analysis (dated July 31, 2012) of the potential economic effects
of the designation was developed taking into consideration the public
comments and any new information (Industrial Economics, Incorporated
2012).
The intent of the final economic analysis (FEA) is to identify and
analyze the potential economic impacts associated with the critical
habitat designation for these five species. The final economic analysis
describes the economic impacts of all potential conservation efforts
for the these five fishes; some of these costs will likely be incurred
regardless of whether we designate critical habitat. The economic
impact of the final critical habitat designation is analyzed by
comparing scenarios both ``with critical habitat'' and ``without
critical habitat.'' The ``without critical habitat'' scenario
represents the baseline for the analysis, considering protections
already in place for the species (e.g., under the Federal listing and
other Federal, State, and local regulations). The baseline, therefore,
represents the costs incurred regardless of whether critical habitat is
designated. The ``with critical habitat'' scenario describes the
incremental impacts associated specifically with the designation of
critical habitat for the species. The incremental conservation efforts
and associated impacts are those not expected to occur absent the
designation of critical habitat for these species. In other words, the
incremental costs are those attributable solely to the designation of
critical habitat above and beyond the baseline costs; these are the
costs we consider in the final designation of critical habitat when
evaluating the benefits of excluding particular areas under section
4(b)(2) of the Act. The analysis looks retrospectively at baseline
impacts incurred since these species were listed, and forecasts both
baseline and incremental impacts likely to occur with the designation
of critical habitat. For a further description of the methodology of
the analysis, see the ``Framework for

[[Page 63640]]

the Analysis'' section of the final economic analysis.
The FEA also addresses how potential economic impacts are likely to
be distributed, including an assessment of any local or regional
impacts of habitat conservation and the potential effects of
conservation activities on government agencies, private businesses, and
individuals. The FEA measures lost economic efficiency associated with
residential and commercial development and public projects and
activities, such as economic impacts on water management and
transportation projects, Federal lands, small entities, and the energy
industry. Decision-makers can use this information to assess whether
the effects of the designation might unduly burden a particular group
or economic sector. Finally, the FEA looks retrospectively at costs
that have been incurred since 2011 (year of these species' listing) (76
FR 48722), and considers those costs that may occur in the 20 years
following the designation of critical habitat, which was determined to
be the appropriate period for analysis because limited planning
information was available for most activities to forecast activity
levels for projects beyond a 20-year timeframe. The FEA quantifies
economic impacts of the five fishes conservation efforts associated
with the following categories of activity: coal mining; oil and natural
gas development; agriculture, ranching, and silviculture; recreational
uses; dredging, channelization, impoundments, dams, and diversions;
transportation (roads, highways, bridges); and residential and
commercial development.
The FEA concluded that the types of conservation efforts requested
by the Service during section 7 consultation regarding the five fishes
were not expected to change due to critical habitat designation. The
Service believes that results of consultation under the adverse
modification and jeopardy standards are likely to be similar because:
(1) The physical and biological features that define critical habitat
are also essential for the survival of the five fishes; (2) the five
fishes are limited or severely limited in their respective ranges; and
(3) numbers of individuals in the surviving populations are small or
very small. In addition, although two of the critical habitat units for
the Cumberland darter are unoccupied, incremental impacts of the
critical habitat designations will be limited for the following
reasons: (1) Both units are currently occupied by the federally
threatened blackside dace, Chrosomus cumberlandensis (listed as
Phoxinus cumberlandensis); (2) both units are situated at least
partially within the DBNF, which is managed according to a land and
resource management plan that includes specific measures to protect
sensitive species; and (3) both unoccupied units are located within the
same hydrologic unit as three other occupied critical habitat units
(Cumberland darter units 4, 6, and 8).
The FEA concludes that incremental impacts of critical habitat
designation are limited to additional administrative costs of
consultations and that indirect incremental impacts are unlikely to
result from the designation of critical habitat for the five fishes.
The present value of the total direct (administrative) incremental cost
of critical habitat designation is $644,000 over the next 20 years
assuming a 7 percent discount rate, or $56,800 on an annualized basis.
Water quality management activities are likely to be subject to the
greatest incremental impacts at $273,000 over the next 20 years,
followed by transportation at $161,000; coal mining at $79,000; oil and
natural gas development at $73,700; agriculture, ranching, and
silviculture at $36,100; dredging, channelization, impoundments, dams,
and diversions at $10,700; and recreation at $10,000 (Industrial
Economics, Inc. 2012).
In short, the FEA did not identify any disproportionate costs that
are likely to result from the designation. Consequently, the Secretary
is not exerting his discretion to exclude any areas from this
designation of critical habitat for the five fishes based on economic
impacts.
A copy of the FEA with supporting documents may be obtained by
contacting the Tennessee Ecological Services Field Office (see
ADDRESSES) or by downloading from the Internet at https://www.regulations.gov.
Exclusions Based on National Security Impacts
Under section 4(b)(2) of the Act, we consider whether there are
lands owned or managed by the Department of Defense where a national
security impact might exist. In preparing this final rule, we have
determined that the lands within the designation of critical habitat
for the Cumberland darter, rush darter, yellowcheek darter, Chucky
madtom, and laurel dace are not owned or managed by the Department of
Defense, and, therefore, we anticipate no impact on national security.
Consequently, the Secretary is not exerting his discretion to exclude
any areas from this final designation based on impacts on national
security.
Exclusions Based on Other Relevant Impacts
Under section 4(b)(2) of the Act, we consider any other relevant
impacts, in addition to economic impacts and impacts on national
security. We consider a number of factors, including whether the
landowners have developed any HCPs or other management plans for the
area, or whether there are conservation partnerships that would be
encouraged by designation of, or exclusion from, critical habitat. In
addition, we look at any tribal issues, and consider the government-to-
government relationship of the United States with tribal entities. We
also consider any social impacts that might occur because of the
designation.
In preparing this final rule, we have determined that the
yellowcheek darter is currently covered under a joint safe harbor
agreement (SHA) and candidate conservation agreement with assurances
(CCAA) in the upper Little Red River watershed in Arkansas along with
the endangered speckled pocketbook mussel. The CCAA will convert to a
SHA, as a result of the endangered status of the yellowcheek darter,
and will be covered by an enhancement of survival permit, which expires
January 1, 2044. The SHA is strictly voluntary on the part of
participating private landowners, who can opt out of the agreement at
any time. This agreement provides added benefits for the recovery of
the yellowcheek darter, but does not guarantee long-term protection of
habitat. The properties enrolled in the SHA are not technically
included in the critical habitat designation, which includes only the
stream channel within the ordinary high water line. Because these
waters are technically state owned, we cannot exclude them from the
designation. The CCAA provides assurances to enrolled landowners that
if additional conservation measures are necessary to respond to changed
circumstances, we will not require such measures in addition to those
provided for in the agreement without the consent of the landowner if
the species becomes listed. However like the SHA, the properties
enrolled in the CCAA are not technically included in the critical
habitat designation, which includes only the stream channel within the
ordinary high water line. Because these waters are technically state
owned, we cannot exclude them from the designation.
There are currently no HCPs or other management plans for the
Cumberland darter, rush darter, yellowcheek darter, Chucky madtom, or
laurel dace, and the final designation does not include any

[[Page 63641]]

tribal lands or trust resources. We anticipate no impact on tribal
lands, partnerships, or HCPs from this critical habitat designation.
Accordingly, the Secretary is not exercising his discretion to
exclude any areas from this final designation based on other relevant
impacts.

Required Determinations

Regulatory Planning and Review--Executive Order 12866 and 13563

Executive Order 12866 provides that the Office of Information and
Regulatory Affairs (OIRA) will review all significant rules. The Office
of Information and Regulatory Affairs has determined that this rule is
not significant.
Executive Order 13563 reaffirms the principles of E.O. 12866 while
calling for improvements in the nation's regulatory system to promote
predictability, to reduce uncertainty, and to use the best, most
innovative, and least burdensome tools for achieving regulatory ends.
The executive order directs agencies to consider regulatory approaches
that reduce burdens and maintain flexibility and freedom of choice for
the public where these approaches are relevant, feasible, and
consistent with regulatory objectives. E.O. 13563 emphasizes further
that regulations must be based on the best available science and that
the rulemaking process must allow for public participation and an open
exchange of ideas. We have developed this rule in a manner consistent
with these requirements.

Regulatory Flexibility Act (5 U.S.C. 601 et seq.)

Under the Regulatory Flexibility Act (RFA; 5 U.S.C. 601 et seq.) as
amended by the Small Business Regulatory Enforcement Fairness Act
(SBREFA) of 1996 (5 U.S.C. 801 et seq.), whenever an agency must
publish a notice of rulemaking for any proposed or final rule, it must
prepare and make available for public comment a regulatory flexibility
analysis that describes the effects of the rule on small entities
(small businesses, small organizations, and small government
jurisdictions). However, no regulatory flexibility analysis is required
if the head of the agency certifies the rule will not have a
significant economic impact on a substantial number of small entities.
The SBREFA amended RFA to require Federal agencies to provide a
certification statement of the factual basis for certifying that the
rule will not have a significant economic impact on a substantial
number of small entities. In this final rule, we are certifying that
the critical habitat designation for these five fishes will not have a
significant economic impact on a substantial number of small entities.
The following discussion explains our rationale.
According to the Small Business Administration, small entities
include small organizations, such as independent nonprofit
organizations; small governmental jurisdictions, including school
boards and city and town governments that serve fewer than 50,000
residents; as well as small businesses. Small businesses include
manufacturing and mining concerns with fewer than 500 employees,
wholesale trade entities with fewer than 100 employees, retail and
service businesses with less than $5 million in annual sales, general
and heavy construction businesses with less than $27.5 million in
annual business, special trade contractors doing less than $11.5
million in annual business, and agricultural businesses with annual
sales less than $750,000. To determine if potential economic impacts on
these small entities are significant, we consider the types of
activities that might trigger regulatory impacts under this rule, as
well as the types of project modifications that may result. In general,
the term ``significant economic impact'' is meant to apply to a typical
small business firm's business operations.
To determine if the rule could significantly affect a substantial
number of small entities, we consider the number of small entities
affected within particular types of economic activities (e.g., coal
mining; agriculture, ranching, and silviculture; oil and natural gas
development; recreational uses; dredging, channelization, impoundments,
dams, and diversions; and transportation (roads, highways, bridges)).
We apply the ``substantial number'' test individually to each industry
to determine if certification is appropriate. However, the SBREFA does
not explicitly define ``substantial number'' or ``significant economic
impact.'' Consequently, to assess whether a ``substantial number'' of
small entities is affected by this designation, this analysis considers
the relative number of small entities likely to be impacted in an area.
In some circumstances, especially with critical habitat designations of
limited extent, we may aggregate across all industries and consider
whether the total number of small entities affected is substantial. In
estimating the number of small entities potentially affected, we also
consider whether their activities have any Federal involvement.
Designation of critical habitat only affects activities authorized,
funded, or carried out by Federal agencies. Some kinds of activities
are unlikely to have any Federal involvement and so will not be
affected by critical habitat designation. In areas where the five
fishes are present, Federal agencies already are required to consult
with us under section 7 of the Act on activities they authorize, fund,
or carry out that may affect the five fishes. Federal agencies also
must consult with us if their activities may affect critical habitat.
Designation of critical habitat, therefore, could result in an
additional economic impact on small entities due to the requirement to
reinitiate consultation for ongoing Federal activities (see Application
of the ``Adverse Modification'' Standard section).
In our FEA of the critical habitat designation (see ``Exclusions
Based on Economic Impacts'' above) we evaluated the potential economic
effects on small business entities resulting from conservation actions
related to the designation of critical habitat of the five fishes. The
analysis is based on the estimated impacts associated with the
rulemaking as described in Appendix A of the FEA and evaluates the
potential for economic impacts related to: Coal mining; oil and natural
gas development; recreation; dredging, channelization, impoundments,
dams, and diversions; and transportation (roads, highways, bridges).
For activities related to coal mining, we anticipate that 10 small
entities could be affected in a single year at a cost of $875 each,
representing less than 3 percent of annual revenues. For oil and
natural gas development, we estimate that two small entities could be
affected within a single year at a cost of $875 each, representing less
than 3 percent of annual revenues. For recreation activities, it is
estimated that one small entity could be affected within a single year
at a cost of $4,150. This cost to this entity is estimated to be 29
percent of the entity's annual revenue from cattle sales; however, the
entity has other revenues, and this percentage is likely overstated.
For activities relating to by dredging, channelization, impoundments,
dams, and diversions, one small entity could be affected within a
single year, at a cost of $2,630, representing less than 1 percent of
annual revenues. For transportation activities, one small entity could
be affected within a single year, at a cost of $1,750, representing
less than 1 percent of annual revenues. Please refer to the FEA of the
critical habitat designation for a more detailed

[[Page 63642]]

discussion of potential economic impacts.
In summary, we considered whether this designation will result in a
significant economic effect on a substantial number of small entities.
Based on the above reasoning and currently available information, we
concluded that this rule will not result in a significant economic
impact on a substantial number of small entities. Therefore, we are
certifying that the designation of critical habitat for the Cumberland
darter, rush darter, yellowcheek darter, Chucky madtom, and laurel dace
will not have a significant economic impact on a substantial number of
small entities, and a regulatory flexibility analysis is not required.

Energy Supply, Distribution, or Use--Executive Order 13211

Executive Order 13211 (Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use) requires
agencies to prepare Statements of Energy Effects when undertaking
certain actions. We do not expect this designation to significantly
affect energy supplies, distribution, or use. Natural gas and oil
exploration and development activities occur or could potentially occur
within the Cumberland darter (13 of 15 critical habitat units) and
yellowcheek darter (4 of 4 critical habitat units) critical habitat
units. However, compliance with State regulatory requirements or
voluntary BMPs would be expected to minimize impacts of natural gas and
oil exploration and development in the areas of designated critical
habitat for both species. The measures for natural gas and oil
exploration and development are generally not considered a substantial
cost compared to overall project costs and are already being
implemented by oil and gas companies.
Coal mining occurs or could potentially occur in 11 of the 15
proposed critical habitat units for the Cumberland darter, and coal
mining could potentially occur in 1 of the 6 critical habitat units for
the laurel dace. Incidental take for listed species associated with
surface coal mining activities is currently covered under a
programmatic, non-jeopardy biological opinion between the Office of
Surface Mining and the Service completed in 1996 (Service 1996,
entire). The biological opinion covers existing, proposed, and future
endangered and threatened species that may be affected by the
implementation and administration of surface coal mining programs under
the Surface Mining Control and Reclamation Act of 1977 (30 U.S.C. 1201
et seq.). Through its analysis, the Service concluded that the proposed
action (surface coal mining and reclamation activities) was not likely
to jeopardize the continued existence of any threatened, endangered, or
proposed species or result in adverse modification of designated or
proposed critical habitat.
OMB has provided guidance for implementing this Executive Order
that outlines nine outcomes that may constitute ``a significant adverse
effect'' when compared to not taking the regulatory action under
consideration. The potential effects of this designation on oil and gas
development were considered in the economic analysis. The FEA finds
that impacts to oil and gas development activities will be anticipated,
but they will be limited to the administrative costs of consultation.
Therefore, reductions in oil and gas production are not anticipated,
and consultation costs are not anticipated to increase the cost of
energy production or distribution in the United States in excess of 1
percent. Thus, none of the nine outcome thresholds of impacts is
exceeded. The economic analysis finds that none of these criteria is
relevant to this analysis. Thus, based on information in the economic
analysis, energy-related impacts associated with these five fishes'
conservation activities within critical habitat are not expected. As
such, the designation of critical habitat is not expected to
significantly affect energy supplies, distribution, or use. Therefore,
this action is not a significant energy action, and no Statement of
Energy Effects is required.

Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.)

In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501
et seq.), we make the following findings:
(1) This rule will not produce a Federal mandate. In general, a
Federal mandate is a provision in legislation, statute, or regulation
that would impose an enforceable duty upon State, local, tribal
governments, or the private sector and includes both ``Federal
intergovernmental mandates'' and ``Federal private sector mandates.''
These terms are defined in 2 U.S.C. 658(5)-(7). ``Federal
intergovernmental mandate'' includes a regulation that ``would impose
an enforceable duty upon State, local, or tribal governments'' with two
exceptions. It excludes ``a condition of Federal assistance.'' It also
excludes ``a duty arising from participation in a voluntary Federal
program,'' unless the regulation ``relates to a then-existing Federal
program under which $500,000,000 or more is provided annually to State,
local, and tribal governments under entitlement authority,'' if the
provision would ``increase the stringency of conditions of assistance''
or ``place caps upon, or otherwise decrease, the Federal Government's
responsibility to provide funding,'' and the State, local, or tribal
governments ``lack authority'' to adjust accordingly. At the time of
enactment, these entitlement programs were: Medicaid; Aid to Families
with Dependent Children work programs; Child Nutrition; Food Stamps;
Social Services Block Grants; Vocational Rehabilitation State Grants;
Foster Care, Adoption Assistance, and Independent Living; Family
Support Welfare Services; and Child Support Enforcement. ``Federal
private sector mandate'' includes a regulation that ``would impose an
enforceable duty upon the private sector, except (i) a condition of
Federal assistance or (ii) a duty arising from participation in a
voluntary Federal program.''
The designation of critical habitat does not impose a legally
binding duty on non-Federal Government entities or private parties.
Under the Act, the only regulatory effect is that Federal agencies must
ensure that their actions do not destroy or adversely modify critical
habitat under section 7. While non-Federal entities that receive
Federal funding, assistance, or permits, or that otherwise require
approval or authorization from a Federal agency for an action, may be
indirectly impacted by the designation of critical habitat, the legally
binding duty to avoid destruction or adverse modification of critical
habitat rests squarely on the Federal agency. Furthermore, to the
extent that non-Federal entities are indirectly impacted because they
receive Federal assistance or participate in a voluntary Federal aid
program, the Unfunded Mandates Reform Act would not apply, nor would
critical habitat shift the costs of the large entitlement programs
listed above onto State governments.
(2) We do not believe that this rule will significantly or uniquely
affect small governments. The lands with Cumberland darter critical
habitat designation are owned by the DBNF and private landowners. The
lands with rush darter critical habitat designation are mostly owned by
private landowners; a small portion of the City of Pinson; and road
easements in Etowah, Jefferson, and Winston Counties, Alabama. The
lands designated as critical habitat for the yellowcheek darter are
mostly owned by private landowners and road easements

[[Page 63643]]

in Cleburne, Searcy, Stone, and Van Buren Counties, Arkansas. Most of
the lands designated as critical habitat for the Chucky madtom are
private, except for a small portion consisting of road easements in
Greene County, Tennessee. Most of the lands designated as critical
habitat for the laurel dace are located on private lands, except for a
small portion consisting of road easements in Bledsoe, Rhea, and
Sequatchie Counties, Tennessee. Consequently, we do not believe that
the critical habitat designation would significantly or uniquely affect
small government entities. As such, a Small Government Agency Plan is
not required.

Takings--Executive Order 12630

In accordance with Executive Order 12630 (Government Actions and
Interference with Constitutionally Protected Private Property Rights),
we have analyzed the potential takings implications of designating
critical habitat for the Cumberland darter, rush darter, yellowcheek
darter, Chucky madtom, and laurel dace in a takings implications
assessment. As discussed above, the designation of critical habitat
affects only Federal actions. Although private parties that receive
Federal funding, assistance, or require approval or authorization from
a Federal agency for an action may be indirectly impacted by the
designation of critical habitat, the legally binding duty to avoid
destruction or adverse modification of critical habitat rests squarely
on the Federal agency. Therefore, the takings implications assessment
concludes that this designation of critical habitat for these five
species does not pose significant takings implications for lands within
or affected by the designation.

Federalism--Executive Order 13132

In accordance with Executive Order 13132 (Federalism), this rule
does not have significant Federalism effects. A federalism impact
summary statement is not required. In keeping with Department of the
Interior and Department of Commerce policy, we requested information
from, and coordinated development of, this critical habitat designation
with appropriate State resource agencies in Kentucky, Alabama,
Arkansas, and Tennessee. We received one comment from the Kentucky
Department of Fish and Wildlife Resources related to road crossings and
culverts acting as threats to the Cumberland darter. This comment was
incorporated into this final rule. We did not receive any other
comments from the four affected States. The designation of critical
habitat in areas currently occupied by these five fishes may impose
nominal additional regulatory restrictions to those currently in place
and, therefore, may have little incremental impact on State and local
governments and their activities. The designation may have some benefit
to these governments because the areas that contain the physical and
biological features essential to the conservation of the species are
more clearly defined, and the elements of the features of the habitat
necessary to the conservation of these species are specifically
identified. This information does not alter where and what Federally
sponsored activities may occur. However, it may assist these local
governments in long-range planning (rather than having them wait for
case-by-case section 7 consultations to occur).
Where State and local governments require approval or authorization
from a Federal agency for actions that may affect critical habitat,
consultation under section 7(a)(2) would be required. While non-Federal
entities that receive Federal funding, assistance, or permits, or that
otherwise require approval or authorization from a Federal agency for
an action, may be indirectly impacted by the designation of critical
habitat, the legally binding duty to avoid destruction or adverse
modification of critical habitat rests squarely on the Federal agency.

Civil Justice Reform--Executive Order 12988

In accordance with Executive Order 12988 (Civil Justice Reform),
the Office of the Solicitor has determined that the rule does not
unduly burden the judicial system and that it meets the requirements of
sections 3(a) and 3(b)(2) of the Order. We are designating critical
habitat in accordance with the provisions of the Act. This final rule
uses standard property descriptions and identifies the elements of
physical and biological features essential to the conservation of the
Cumberland darter, rush darter, yellowcheek darter, Chucky madtom, and
laurel dace within the designated areas to assist the public in
understanding the habitat needs of these species.

Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.)

This rule does not contain any new collections of information that
require approval by OMB under the Paperwork Reduction Act of 1995 (44
U.S.C. 3501 et seq.). This rule will not impose recordkeeping or
reporting requirements on State or local governments, individuals,
businesses, or organizations. An agency may not conduct or sponsor, and
a person is not required to respond to, a collection of information
unless it displays a currently valid OMB control number.

National Environmental Policy Act (42 U.S.C. 4321 et seq.)

It is our position that, outside the jurisdiction of the U.S. Court
of Appeals for the Tenth Circuit, we do not need to prepare
environmental analyses pursuant to the National Environmental Policy
Act (NEPA; 42 U.S.C. 4321 et seq.) in connection with designating
critical habitat under the Act. We published a notice outlining our
reasons for this determination in the Federal Register on October 25,
1983 (48 FR 49244). This position was upheld by the U.S. Court of
Appeals for the Ninth Circuit (Douglas County v. Babbitt, 48 F.3d 1495
(9th Cir. 1995), cert. denied 516 U.S. 1042 (1996)).

Government-to-Government Relationship With Tribes

In accordance with the President's memorandum of April 29, 1994
(Government-to-Government Relations with Native American Tribal
Governments; 59 FR 22951), Executive Order 13175 (Consultation and
Coordination With Indian Tribal Governments), and the Department of
Interior's manual at 512 DM 2, we readily acknowledge our
responsibility to communicate meaningfully with recognized Federal
Tribes on a government-to-government basis. In accordance with
Secretarial Order 3206 of June 5, 1997 (American Indian Tribal Rights,
Federal-Tribal Trust Responsibilities, and the Endangered Species Act),
we readily acknowledge our responsibilities to work directly with
tribes in developing programs for healthy ecosystems, to acknowledge
that tribal lands are not subject to the same controls as Federal
public lands, to remain sensitive to Indian culture, and to make
information available to tribes.
We determined that there are no tribal lands that were occupied by
the Cumberland darter, rush darter, yellowcheek darter, Chucky madtom,
or laurel dace at the time of listing that contain the features
essential for conservation of these species, and no tribal lands
unoccupied by these five species that are essential for the
conservation of these species. Therefore, we are not designating
critical habitat for these five species on tribal lands.

References Cited

A complete list of references cited is available on the Internet at
https://www.regulations.gov and upon request

[[Page 63644]]

from the Tennessee Ecological Services Field Office (see ADDRESSES).

Authors

The primary authors of this package are the staff members of the
Arkansas, Kentucky, Mississippi, and Tennessee Ecological Services
Field Offices.

List of Subjects in 50 CFR Part 17

Endangered and threatened species, Exports, Imports, Reporting and
recordkeeping requirements, Transportation.

Regulation Promulgation

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

PART 17--[AMENDED]

0
1. The authority citation for part 17 continues to read as follows:

Authority: 16 U.S.C. 1361-1407; 16 U.S.C. 1531-1544; 16 U.S.C.
4201-4245; Pub. L. 99-625, 100 Stat. 3500; unless otherwise noted.

0
2. Amend Sec. 17.11(h) by revising the entries for ``Dace, laurel,''
``Darter, Cumberland,'' ``Darter, rush,'' ``Darter, yellowcheek,'' and
``Madtom, chucky'' under FISHES in the List of Endangered and
Threatened Wildlife to read as follows:

Sec. 17.11 Endangered and threatened wildlife.

* * * * *
(h) * * *

--------------------------------------------------------------------------------------------------------------------------------------------------------
Species Vertebrate
-------------------------------------------------------- population where Critical Special
Historic range endangered or Status When listed habitat rules
Common name Scientific name threatened
--------------------------------------------------------------------------------------------------------------------------------------------------------

* * * * * * *
Fishes

* * * * * * *
Dace, laurel..................... Chrosomus saylori... U.S.A. (TN)......... Entire.............. E 791 17.95(e) NA

* * * * * * *
Darter, Cumberland............... Etheostoma susanae.. U.S.A. (KY, TN)..... Entire.............. E 791 17.95(e) NA

* * * * * * *
Darter, rush..................... Etheostoma U.S.A. (AL)......... Entire.............. E 791 17.95(e) NA
phytophilum.

* * * * * * *
Darter, yellowcheek.............. Etheostoma moorei... U.S.A. (AR)......... Entire.............. E 791 17.95(e) NA

* * * * * * *
Madtom, Chucky................... Noturus crypticus... U.S.A. (TN)......... Entire.............. E 791 17.95(e) NA

* * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------

0
3. In Sec. 17.95, amend paragraph (e) by adding entries for ``Laurel
Dace (Chrosomus saylori)'', ``Cumberland Darter (Etheostoma susanae)'',
``Rush Darter (Etheostoma phytophilum)'', ``Yellowcheek Darter
(Etheostoma moorei)'', and ``Chucky Madtom (Noturus crypticus)'' in the
same order that those species appear in the table at Sec. 17.11(h), to
read as follows:

Sec. 17.95 Critical habitat--fish and wildlife.

* * * * *
(e) Fishes.
* * * * *
Laurel Dace (Chrosomus saylori)
(1) Critical habitat units are depicted for Bledsoe, Rhea, and
Sequatchie Counties, Tennessee, on the maps below.
(2) Within these areas, the primary constituent elements of the
physical and biological features essential to the conservation of the
laurel dace consist of five components:
(i) Pool and run habitats of geomorphically stable, first- to
second-order streams with riparian vegetation; cool, clean, flowing
water; shallow depths; and connectivity between spawning, foraging, and
resting sites to promote gene flow throughout the species' range.
(ii) Stable bottom substrates composed of relatively silt-free
gravel, cobble, and slab-rock boulder substrates with undercut banks
and canopy cover. Relatively silt-free is defined for the purpose of
this rule as silt or fine sand within interstitial spaces of substrates
in amounts low enough to have minimal impact to the species.
(iii) An instream flow regime (magnitude, frequency, duration, and
seasonality of discharge over time) sufficient to provide permanent
surface flows, as measured during years with average rainfall, and to
maintain benthic habitats utilized by the species.
(iv) Adequate water quality characterized by moderate stream
temperatures, acceptable dissolved oxygen concentrations, moderate pH,
and low levels of pollutants. Adequate water quality is defined for the
purpose of this rule as the quality necessary for normal behavior,
growth, and viability of all life stages of the laurel dace.
(v) Prey base of aquatic macroinvertebrates, including midge
larvae, caddisfly larvae, and stonefly larvae.
(3) Critical habitat does not include manmade structures (such as
buildings, aqueducts, runways, roads, and other paved areas) and the
land on which they are located existing within the legal boundaries on
November 15, 2012.
(4) Critical habitat unit maps. Data layers defining map units were
created on a base of USGS digital ortho-photo quarter-quadrangles, and
critical habitat units were then mapped using Tennessee State Plane,
Lambert Conformal Conic Projection, units feet. Upstream and downstream
limits were then identified by longitude and latitude using decimal
degrees and projected in WGS 1984. The maps in this entry, as modified
by any accompanying regulatory text, establish the boundaries of the
critical habitat designation. The coordinates or plot points or both on
which each map is based are available to the public at the

[[Page 63645]]

field office Internet site (https://www.fws.gov/cookeville), https://www.regulations.gov at Docket No. FWS-R4-ES-2011-0074, and at the
Service's Tennessee Fish and Wildlife Office. You may obtain field
office location information by contacting one of the Service regional
offices, the addresses of which are listed at 50 CFR 2.2.
(5) Index map follows:
[GRAPHIC] [TIFF OMITTED] TR16OC12.045

[[Page 63646]]

(6) Units 1, 2, and 3: Bumbee Creek and Youngs Creek, Bledsoe and
Rhea Counties, Tennessee; and Moccasin Creek, Bledsoe County,
Tennessee.
(i) Unit 1 includes 7.8 river kilometers (rkm) (4.8 river miles
(rmi)) of Bumbee Creek from its headwaters in Bledsoe County,
downstream to its confluence with Mapleslush Branch in Rhea County,
Tennessee.
(ii) Unit 2 includes 7.9 rkm (4.9 rmi) of Youngs Creek from its
headwaters in Bledsoe County, downstream to its confluence with
Moccasin Creek in Rhea County, Tennessee.
(iii) Unit 3 includes 9.0 rkm (5.6 rmi) of Moccasin Creek from its
headwaters downstream to 0.1 rkm (0.6 rmi) below its confluence with
Lick Creek in Bledsoe County, Tennessee.
(iv) Map of Units 1, 2, and 3 of critical habitat for the laurel
dace follows:
[GRAPHIC] [TIFF OMITTED] TR16OC12.046

[[Page 63647]]

(7) Unit 4: Cupp Creek, Bledsoe County, Tennessee.
(i) Unit 4 includes 5.0 rkm (3.1 rmi) of Cupp Creek from its
headwaters downstream to its confluence with an unnamed tributary in
Bledsoe County, Tennessee.
(ii) Map of Unit 4 of critical habitat for the laurel dace follows:
[GRAPHIC] [TIFF OMITTED] TR16OC12.047

[[Page 63648]]

(8) Unit 5: Horn Branch, Bledsoe County, Tennessee.
(i) Unit 5 includes 4.0 rkm (2.5 rmi) of Horn Branch from its
headwaters downstream to its confluence with Rock Creek, Bledsoe
County, Tennessee.
(ii) Map of Unit 5 of critical habitat for the laurel dace follows:
[GRAPHIC] [TIFF OMITTED] TR16OC12.048

[[Page 63649]]

(9) Unit 6: Soddy Creek, Sequatchie and Bledsoe Counties,
Tennessee.
(i) Unit 6 includes 8.4 rkm (5.2 rmi) of Soddy Creek from its
headwaters in Sequatchie County, downstream to its confluence with
Harvey Creek in Sequatchie County, Tennessee.
(ii) Map of Unit 6 of critical habitat for the laurel dace follows:
[GRAPHIC] [TIFF OMITTED] TR16OC12.049

* * * * *
Cumberland Darter (Etheostoma susanae)
(1) Critical habitat units are depicted for McCreary and Whitley
Counties, Kentucky, and Campbell and Scott Counties, Tennessee, on the
maps below.
(2) Within these areas, the primary constituent elements of the
physical and biological features essential to the conservation of the
Cumberland darter consist of five components:
(i) Shallow pools and gently flowing runs of geomorphically stable,
second- to fourth-order streams with connectivity between spawning,

[[Page 63650]]

foraging, and resting sites to promote gene flow throughout the
species' range.
(ii) Stable bottom substrates composed of relatively silt-free sand
and sand-covered bedrock, boulders, large cobble, woody debris, or
other cover.
(iii) An instream flow regime (magnitude, frequency, duration, and
seasonality of discharge over time) sufficient to provide permanent
surface flows, as measured during years with average rainfall, and to
maintain benthic habitats utilized by the species.
(iv) Adequate water quality characterized by moderate stream
temperatures, acceptable dissolved oxygen concentrations, moderate pH,
and low levels of pollutants. Adequate water quality is defined for the
purpose of this rule as the quality necessary for normal behavior,
growth, and viability of all life stages of the Cumberland darter.
(v) Prey base of aquatic macroinvertebrates, including midge
larvae, mayfly nymphs, caddisfly larvae, and microcrustaceans.
(3) Critical habitat does not include manmade structures (such as
buildings, aqueducts, bridges, runways, roads, and other paved areas)
and the land on which they are located existing within the legal
boundaries on November 15, 2012.
(4) Critical habitat map units. Data layers defining map units were
created on a base of USGS digital ortho-photo quarter-quadrangles, and
critical habitat units were then mapped using Tennessee State Plane,
Lambert Conformal Conic Projection, units feet. Upstream and downstream
limits were then identified by longitude and latitude using decimal
degrees and projected in WGS 1984. The maps in this entry, as modified
by any accompanying regulatory text, establish the boundaries of the
critical habitat designation. The coordinates or plot points or both on
which each map is based are available to the public at the field office
Internet site (https://www.fws.gov/cookeville), https://www.regulations.gov at Docket No. FWS-R4-ES-2011-0074, and at the
Service's Tennessee Fish and Wildlife Office. You may obtain field
office location information by contacting one of the Service regional
offices, the addresses of which are listed at 50 CFR 2.2.

[[Page 63651]]

(5) Index map follows:
[GRAPHIC] [TIFF OMITTED] TR16OC12.050

(6) Units 1 and 2: Bunches Creek and Calf Pen Fork, Whitley County,
Kentucky.
(i) Unit 1 includes 5.8 river kilometers (rkm) (3.6 river miles
(rmi)) of Bunches Creek from the Seminary Branch and Amos Falls Branch
confluence downstream to its confluence with the Cumberland River.
(ii) Unit 2 includes 2.9 rkm (1.8 rmi) of Calf Pen Fork from its
confluence with Polly Branch downstream to its confluence with Bunches
Creek.

[[Page 63652]]

(iii) Map of Units 1 and 2 of critical habitat for the Cumberland
darter follows:
[GRAPHIC] [TIFF OMITTED] TR16OC12.051

[[Page 63653]]

(7) Unit 3: Youngs Creek, Whitley County, Kentucky.
(i) Unit 3 includes 7.4 rkm (4.6 rmi) of Youngs Creek from Brays
Chapel Road downstream to its confluence with the Cumberland River.
(ii) Map of Unit 3 of critical habitat for the Cumberland darter
follows:
[GRAPHIC] [TIFF OMITTED] TR16OC12.052

(8) Units 4, 5, 6, 7, and 8: Barren Fork, Indian Creek, Cogur Fork,
Kilburn Fork, and Laurel Fork, McCreary County, Kentucky.
(i) Unit 4 includes 6.3 rkm (3.9 rmi) of Barren Fork from its
confluence with an unnamed tributary downstream to its confluence with
Indian Creek.
(ii) Unit 5 includes 4.0 rkm (2.5 rmi) of Indian Creek from its
confluence with an unnamed tributary downstream to its confluence with
Barren Fork.
(iii) Unit 6 includes 8.6 rkm (5.4 rmi) of Cogur Fork from its
confluence with Strunk Branch downstream to its confluence with Indian
Creek.
(iv) Unit 7 includes 4.6 rkm (2.9 rmi) of Kilburn Fork from its
confluence with an unnamed tributary downstream to its confluence with
Laurel Fork.
(v) Unit 8 includes 3.5 rkm (2.2 rmi) of Laurel Fork from its
confluence with Toms Fork downstream to its confluence with Indian
Creek.

[[Page 63654]]

(vi) Map of Units 4, 5, 6, 7, and 8 of critical habitat for the
Cumberland darter follows:
[GRAPHIC] [TIFF OMITTED] TR16OC12.053

[[Page 63655]]

(9) Units 9, 10, and 11: Laurel Creek, Elisha Branch, and Jenneys
Branch, McCreary County, Kentucky.
(i) Unit 9 includes 9.4 rkm (5.9 rmi) of Laurel Creek from Laurel
Creek Reservoir downstream to its confluence with Jenneys Branch.
(ii) Unit 10 includes 2.1 rkm (1.3 rmi) of Elisha Branch from its
confluence with an unnamed tributary downstream to its confluence with
Laurel Creek.
(iii) Unit 11 includes 3.1 rkm (1.9 rmi) of Jenneys Branch from its
confluence with an unnamed tributary downstream to its confluence with
Laurel Creek.
(iv) Map of Units 9, 10, and 11 of critical habitat for the
Cumberland darter follows:
[GRAPHIC] [TIFF OMITTED] TR16OC12.054

[[Page 63656]]

(10) Unit 12: Wolf Creek, Whitley County, Kentucky.
(i) Unit 12 includes 6.3 rkm (3.9 rmi) of Wolf Creek from its
confluence with Sheep Creek downstream to its intersection with Wolf
Creek River Road.
(ii) Map of Unit 12 of critical habitat for the Cumberland darter
follows:
[GRAPHIC] [TIFF OMITTED] TR16OC12.055

(11) Units 13, 14, and 15: Jellico Creek, Rock Creek, and Capuchin
Creek, McCreary and Whitley Counties, Kentucky, and Campbell and Scott
Counties, Tennessee.
(i) Unit 13 includes 11.5 rkm (7.2 rmi) of Jellico Creek from its
confluence with Scott Branch, Scott County, Tennessee, downstream to
its confluence with Capuchin Creek, McCreary County, Kentucky.
(ii) Unit 14 includes 6.1 rkm (3.8 rmi) of Rock Creek from its
confluence with Sid Anderson Branch downstream to its confluence with
Jellico Creek.
(iii) Unit 15 includes 4.2 rkm (2.6 rmi) of Capuchin Creek from its
confluence with Hatfield Creek downstream to its confluence with
Jellico Creek.

[[Page 63657]]

(iv) Map of Units 13, 14, and 15 of critical habitat for the
Cumberland darter follows:
[GRAPHIC] [TIFF OMITTED] TR16OC12.056

* * * * *
Rush Darter (Etheostoma phytophilum)
(1) The critical habitat units are depicted for Jefferson, Winston,
and Etowah Counties in Alabama, on the maps below.
(2) Within these areas, the primary constituent elements of the
physical and biological features essential to the conservation of the
rush darter consist of five components:
(i) Springs and spring-fed reaches of geomorphically stable,
relatively low-gradient, headwater streams with appropriate habitat
(bottom substrates) to maintain essential riffles, runs, and pools;
emergent vegetation in shallow water and on the margins of small
streams and spring runs; cool, clean, flowing water; and connectivity
between spawning, foraging, and resting sites to promote gene flow
throughout the species' range.
(ii) Stable bottom substrates consisting of a combination of sand
with silt, muck, gravel, or bedrock and adequate emergent vegetation in
shallow water on the margins of small permanent and ephemeral streams
and spring runs.
(iii) Instream flow with moderate velocity and a continuous daily
discharge that allows for a longitudinal connectivity regime inclusive
of both surface runoff and groundwater sources (springs and seepages)
and exclusive of flushing flows caused by stormwater runoff.
(iv) Water quality with temperature not exceeding 26.7 [deg]C (80
[deg]F), dissolved oxygen 6.0 milligrams or greater per liter (mg/L),
turbidity of an average monthly reading of 10 Nephelometric Turbidity
Units (NTU; units used to measure sediment discharge) and 15 mg/L total
suspended solids (TSS; measured as mg/L of sediment in water) or less;
and a specific conductance (ability of water to conduct an electric
current, based on dissolved solids in the water) of no greater than 225
micro Siemens per centimeter at 26.7 [deg]C (80 [deg]F).
(v) Prey base of aquatic macroinvertebrates, including midge
larvae, mayfly nymphs, blackfly larvae, beetles, and microcrustaceans.
(3) Critical habitat does not include manmade structures (such as
buildings, aqueducts, runways, roads, and other paved areas) and the
land on which they

[[Page 63658]]

are located existing within the legal boundaries on November 15, 2012.
(4) Critical habitat map units. Data layers defining map units were
created on a base of USGS digital ortho-photo quarter-quadrangles, and
critical habitat units were then mapped using Universal Transverse
Mercator (UTM) Zone 16N, NAD1983, coordinates. Upstream and downstream
limits were then identified by longitude and latitude using decimal
degrees and projected in WGS 1984. The maps in this entry, as modified
by any accompanying regulatory text, establish the boundaries of the
critical habitat designation. The coordinates or plot points or both on
which each map is based are available to the public at the field office
Internet site (https://www.fws.gov/cookeville), https://www.regulations.gov at Docket No. FWS-R4-ES-2011-0074, and at the
Service's Tennessee Fish and Wildlife Office. You may obtain field
office location information by contacting one of the Service regional
offices, the addresses of which are listed at 50 CFR 2.2.
(5) Index map follows:
BILLING CODE 4310-55-P
[GRAPHIC] [TIFF OMITTED] TR16OC12.057

[[Page 63659]]

(6) Units 1, 2, and 3: Beaver Creek, Unnamed Tributary to Beaver
Creek and Highway 79 Spring Site, and Tapawingo or Penny Spring and
Spring Run, Jefferson County, Alabama.
(i) Unit 1 includes 1.0 river kilometers (rkm) (0.6 river miles
(rmi)) of Beaver Creek from the confluence with an unnamed tributary to
Beaver Creek, downstream to the confluence with Turkey Creek.
(ii) Unit 2 includes 4.4 rkm (2.7 rmi) of an unnamed tributary of
Beaver Creek and two spring runs. The site begins at the section 1 and
2 (T16S, R2W) line, as taken from the U.S. Geological Survey 7.5
topographical map (Pinson quadrangle), downstream to its confluence
with Dry Creek, and includes a spring run beginning at the springhead
just northwest of Old Pinson Road and intersecting with an unnamed
tributary to Beaver Creek on the west side of Highway 79, and a spring
associated wetland (0.13 ha, 0.33 ac) within the headwaters, south of
Pinson Heights Road, flowing 0.9 km (0.05 mi) from the northwest
(33.668173, -86.708577) and adjoining to the Unnamed Tributary
(33.667344, -86.707429).
(iii) Unit 3 includes 0.6 rkm (0.4 rmi) of spring run, historically
called Tapawingo Plunge, along with 6.7 ha (16.5 ac) of flooded spring
basin making up Penny Springs, located south of Turkey Creek, north of
Bud Holmes Road, east of Tapawingo Trail Road. The east boundary is at
latitude 33[deg] 41' 56.50'' N and longitude 86[deg] 39' 55.01'' W: 1.0
km (0.6 mi) west of section line 28 and 29 (T15S, R1W) (U.S. Geological
Survey 7.5 topographical map (Pinson quadrangle)).
(iv) Map of Units 1, 2, and 3 of critical habitat for the rush
darter follows:
[GRAPHIC] [TIFF OMITTED] TR16OC12.058

[[Page 63660]]

(7) Units 4, 5, and 6: Wildcat Branch, Mill Creek, and Doe Branch,
Winston County, Alabama.
(i) Unit 4 includes 6.6 rkm (4.1 rmi) of Wildcat Branch from the
streams headwaters just east of Winston County Road 29 to the
confluence with Clear Creek.
(ii) Unit 5 includes 5.9 rkm (3.7 rmi) of Mill Creek from the
streams headwaters just east of Winston County Road 195 to the
confluence with Clear Creek.
(iii) Unit 6 includes 4.3 rkm (2.7 rmi) of Doe Branch from the
streams headwaters north and west of section line 23 and 14 (R9W, T11S;
Popular Springs Quadrangle) to the confluence with Wildcat Branch.
(iv) Map of Units 4, 5, and 6 of critical habitat for the rush
darter follows:
[GRAPHIC] [TIFF OMITTED] TR16OC12.059

[[Page 63661]]

(8) Units 7 and 8: Little Cove Creek, Cove Spring and Spring Run;
and Bristow Creek, Etowah County, Alabama.
(i) Unit 7 includes 11.2 rkm (6.1 rmi) of Little Cove Creek and the
Cove Spring run system along with 5.1 ha (12.7 ac) of the spring run
floodplain. Specifically, the Little Cove Creek section (11.0 rkm (6.0
rmi)) is from the intersection of Etowah County Road 179 near the creek
headwaters, downstream to its confluence with the Locust Fork River.
The Cove Spring and spring run section includes 0.2 rkm (0.1 rmi) of
the spring run from the springhead at the West Etowah Water and Fire
Authority pumping station on Cove Spring Road to the confluence with
Little Cove Creek and includes 5.1 ha (12.7 acres) of the spring run
floodplain due south of the pumping facility.
(ii) Unit 8 includes 10.2 rkm (6.3 rmi) of Bristow Creek beginning
from the bridge at Fairview Cove Road, downstream to the confluence
with the Locust Fork River.
(iii) Map of Units 7 and 8 of critical habitat for the rush darter
follows:
[GRAPHIC] [TIFF OMITTED] TR16OC12.060

* * * * *
Yellowcheek darter (Etheostoma moorei)
(1) Critical habitat units are depicted for Cleburne, Searcy,
Stone, and Van Buren Counties, Arkansas, on the maps below.
(2) Within these areas, the primary constituent elements of the
physical and biological features essential to the conservation of the
yellowcheek darter consist of five components:
(i) Geomorphically stable, second- to fifth-order streams with
riffle habitats, and connectivity between spawning, foraging, and
resting sites to promote gene flow within the species' range where
possible.
(ii) Stable bottom composed of relatively silt-free, moderate to
strong velocity riffles with gravel, cobble, and boulder substrates.
(iii) An instream flow regime (magnitude, frequency, duration, and
seasonality of discharge over time) sufficient to provide permanent
surface flows, as measured during years with average rainfall, and to
maintain benthic habitats utilized by the species.
(iv) Adequate water quality characterized by moderate stream
temperatures, acceptable dissolved oxygen concentrations, moderate pH,
and low levels of pollutants. Adequate

[[Page 63662]]

water quality is defined for the purpose of this rule as the quality
necessary for normal behavior, growth, and viability of all life stages
of the yellowcheek darter.
(v) Prey base of aquatic macroinvertebrates, including blackfly
larvae, stonefly larvae, mayfly nymphs, and caddisfly larvae.
(3) Critical habitat does not include manmade structures (such as
buildings, aqueducts, runways, roads, and other paved areas) and the
land on which they are located existing within the legal boundaries on
November 15, 2012.
(4) Critical habitat unit maps. Data layers defining map units were
created on a base of USGS digital ortho-photo quarter-quadrangles, and
critical habitat units were then mapped using Universal Transverse
Mercator (UTM) Zone 15N, NAD1983, coordinates. Upstream and downstream
limits were then identified by longitude and latitude using decimal
degrees and projected in WGS 1984. The maps in this entry, as modified
by any accompanying regulatory text, establish the boundaries of the
critical habitat designation. The coordinates or plot points or both on
which each map is based are available to the public at the field office
Internet site (https://www.fws.gov/cookeville), https://www.regulations.gov at Docket No. FWS-R4-ES-2011-0074, and at the
Service's Tennessee Fish and Wildlife Office. You may obtain field
office location information by contacting one of the Service regional
offices, the addresses of which are listed at 50 CFR 2.2.
(5) Index map follows:
[GRAPHIC] [TIFF OMITTED] TR16OC12.061

[[Page 63663]]

(6) Unit 1: Middle Fork Little Red River; Searcy, Stone and Van
Buren Counties, Arkansas.
(i) Unit 1 includes 73.2 river kilometers (rkm) (45.5 river miles
(rmi)) of the Middle Fork of the Little Red River from Searcy County
Road 167 approximately 3.4 rkm (2.1 rmi) southwest of Leslie, Arkansas,
to a point on the stream 7.7 rkm (4.8 rmi) downstream of the Arkansas
Highway 9 crossing of the Middle Fork near Shirley, Arkansas.
(ii) Map of Unit 1 of critical habitat for the yellowcheek darter
follows:
[GRAPHIC] [TIFF OMITTED] TR16OC12.062

[[Page 63664]]

(7) Unit 2: South Fork Little Red River; Van Buren County,
Arkansas.
(i) Unit 2 includes 33.8 rkm (21.0 rmi) of the South Fork of the
Little Red River from Van Buren County Road 9 three miles north of
Scotland, Arkansas, to a point on the stream approximately 5.5 rkm (3.4
rmi) downstream of U.S. Highway 65 in Clinton, Arkansas, where it
becomes inundated by Greers Ferry Lake.
(ii) Map of Unit 2 of critical habitat for the yellowcheek darter
follows:
[GRAPHIC] [TIFF OMITTED] TR16OC12.063

[[Page 63665]]

(8) Unit 3: Archey Fork Little Red River; Van Buren County,
Arkansas.
(i) Unit 3 includes 28.5 rkm (17.7 rmi) of the Archey Fork of the
Little Red River from its confluence with South Castleberry Creek to
its confluence with the South Fork of the Little Red River near
Clinton, Arkansas.
(ii) Map of Unit 3 of critical habitat for the yellowcheek darter
follows:
[GRAPHIC] [TIFF OMITTED] TR16OC12.064

[[Page 63666]]

(9) Unit 4: Devil's Fork Little Red River (including Turkey Creek
and Beech Fork); Cleburne and Stone Counties, Arkansas.
(i) Unit 4 includes 28.0 rkm (17.4 rmi) of stream from Stone County
Road 21 approximately 3 miles north of Prim, Arkansas, to a point on
the Devil's Fork approximately 5.1 km (3.2 mi) southeast of Woodrow,
Arkansas, at the point of inundation by Greers Ferry Lake.
(ii) Map of Unit 4 of critical habitat for the yellowcheek darter
follows:
[GRAPHIC] [TIFF OMITTED] TR16OC12.065

* * * * *
Chucky Madtom (Noturus crypticus)
(1) The critical habitat unit is depicted for Greene County,
Tennessee, on the maps below.
(2) Within this area, the primary constituent elements of the
physical and biological features essential to the conservation of the
Chucky madtom consist of five components:
(i) Gently flowing run and pool reaches of geomorphically stable
streams with cool, clean, flowing water; shallow depths; and
connectivity between spawning, foraging, and resting sites to promote
gene flow throughout the species' range.
(ii) Stable bottom substrates composed of relatively silt-free,
flat gravel, cobble, and slab-rock boulders.
(iii) An instream flow regime (magnitude, frequency, duration, and
seasonality of discharge over time) sufficient to provide permanent
surface flows, as measured during years with average rainfall, and to
maintain benthic habitats utilized by the species.
(iv) Adequate water quality characterized by moderate stream
temperatures, acceptable dissolved oxygen concentrations, moderate pH,
and low levels of pollutants. Adequate water quality is defined for the
purpose of this rule as the quality necessary for normal behavior,
growth, and viability of all life stages of the Chucky madtom.
(v) Prey base of aquatic macroinvertebrates, including midge
larvae, mayfly nymphs, caddisfly larvae, and stonefly larvae.
(3) Critical habitat does not include manmade structures (such as
buildings, aqueducts, runways, roads, and other paved areas) and the
land on which they are located existing within the legal boundaries on
November 15, 2012.
(4) Critical habitat unit maps. Data layers defining map units were
created on a base of USGS digital ortho-photo

[[Page 63667]]

quarter-quadrangles, and critical habitat units were then mapped using
Tennessee State Plane, Lambert Conformal Conic Projection, units feet.
Upstream and downstream limits were then identified by longitude and
latitude using decimal degrees and projected in WGS 1984. The maps in
this entry, as modified by any accompanying regulatory text, establish
the boundaries of the critical habitat designation. The coordinates or
plot points or both on which each map is based are available to the
public at the field office Internet site (https://www.fws.gov/cookeville), https://www.regulations.gov at Docket No. FWS-R4-ES-2011-
0074, and at the Service's Tennessee Fish and Wildlife Office. You may
obtain field office location information by contacting one of the
Service regional offices, the addresses of which are listed at 50 CFR
2.2.
(5) Index map follows:
[GRAPHIC] [TIFF OMITTED] TR16OC12.066

[[Page 63668]]

(6) Little Chucky Creek Unit, Greene County, Tennessee.
(i) Little Chucky Creek Unit includes 31.9 river kilometers (19.8
river miles) of Little Chucky Creek from its confluence with an unnamed
tributary, downstream to its confluence with the Nolichucky River, at
the Greene and Cocke County line, Tennessee.
(ii) Map of Little Chucky Creek Unit of critical habitat for the
Chucky madtom follows:
[GRAPHIC] [TIFF OMITTED] TR16OC12.067

* * * * *

Dated: September 25, 2012.
Rachel Jacobson,
Principal Deputy Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 2012-24468 Filed 10-15-12; 8:45 am]
BILLING CODE 4310-55-P

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.