Endangered and Threatened Wildlife and Plants; Threatened Species Status for Kentucky Arrow Darter With 4(d) Rule, 68963-68985 [2016-23545]
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Federal Register / Vol. 81, No. 193 / Wednesday, October 5, 2016 / Rules and Regulations
68963
TABLE III—COMPARISON OF TOTAL PAYMENTS PER CASE—Continued
[FY 2016 payments compared to FY 2017 payments]
Average FY
2016
payments/case
Average FY
2017
payments/case
142
526
528
0.3
898
109
1,107
408
1,043
942
813
815
1,052
948
820
820
0.9
0.6
0.8
0.6
2,529
189
324
126
948
772
706
748
955
782
716
756
0.7
1.4
1.4
1.1
532
1,936
277
489
42
953
948
650
578
599
962
955
655
580
602
0.9
0.7
0.9
0.3
0.5
1,927
881
522
926
820
963
934
827
969
0.8
0.8
0.6
523
2,122
545
89
1,103
916
745
529
1,114
923
750
531
1.0
0.8
0.7
0.4
Number of
hospitals
Less than 100 beds ............................................................
Urban teaching and DSH:
Both teaching and DSH ....................................................................
Teaching and no DSH .......................................................................
No teaching and DSH .......................................................................
No teaching and no DSH ..................................................................
Rural Hospital Types:
Non special status hospitals ..............................................................
RRC/EACH ........................................................................................
SCH/EACH ........................................................................................
SCH, RRC and EACH .......................................................................
Hospitals Reclassified by the Medicare Geographic Classification Review
Board:
FY2017 Reclassifications:
All Urban Reclassified .......................................................................
All Urban Non-Reclassified ...............................................................
All Rural Reclassified ........................................................................
All Rural Non-Reclassified .................................................................
Other Reclassified Hospitals (Section 1886(d)(8)(B)) .......................
Type of Ownership:
Voluntary ...........................................................................................
Proprietary .........................................................................................
Government .......................................................................................
Medicare Utilization as a Percent of Inpatient Days:
0–25 ...................................................................................................
25–50 .................................................................................................
50–65 .................................................................................................
Over 65 ..............................................................................................
14. On page 57342—
a. Top of the page—
(1) First column, first full paragraph—
(a) Line 11, the figure ‘‘987’’ is
corrected to read ‘‘990’’.
(b) Line 23, the figure ‘‘809’’ is
corrected to read ‘‘811’’.
(2) Second column, first partial
paragraph—
(a) Line 12, the figure ‘‘809’’ is
corrected to read ‘‘811’’.
(b) Line 14, the figure’’680’’ is
corrected to read ‘‘683’’.
(c) Line 19, the figure ‘‘66’’ is
corrected to read ‘‘72’’.
Change
(d) Line 23, the figure ‘‘746’’ is
corrected to read ‘‘755’’.
b. Middle of the page, the table titled
‘‘TABLE V—ACCOUNTING
STATEMENT: CLASSIFICATION OF
ESTIMATED EXPENDITURES UNDER
THE IPPS FROM FY 2016 TO FY 2017’’
is corrected to read as follows:
TABLE V—ACCOUNTING STATEMENT: CLASSIFICATION OF ESTIMATED EXPENDITURES UNDER THE IPPS FROM FY 2016
TO FY 2017
Category
Transfers
Annualized Monetized Transfers ..............................................................
From Whom to Whom ..............................................................................
Dated: September 29, 2016.
Madhura Valverde,
Executive Secretary to the Department,
Department of Health and Human Services.
[FR Doc. 2016–24042 Filed 9–30–16; 11:15 am]
$755 million.
Federal Government to IPPS Medicare Providers.
ACTION:
Fish and Wildlife Service
SUMMARY:
50 CFR Part 17
[Docket No. FWS–R4–ES–2015–0132;
4500030113]
BILLING CODE 4120–01–P
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RIN 1018–AZ09
Endangered and Threatened Wildlife
and Plants; Threatened Species Status
for Kentucky Arrow Darter With 4(d)
Rule
AGENCY:
Fish and Wildlife Service,
Interior.
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Final rule.
DEPARTMENT OF THE INTERIOR
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We, the U.S. Fish and
Wildlife Service (Service), determine
threatened species status under the
Endangered Species Act of 1973 (Act),
as amended, for Kentucky arrow darter
(Etheostoma spilotum), a fish species
from the upper Kentucky River basin in
Kentucky. The effect of this regulation
will be to add this species to the List of
Endangered and Threatened Wildlife.
We are also adopting a rule under
section 4(d) of the Act (a ‘‘4(d) rule’’) to
further provide for the conservation of
the Kentucky arrow darter.
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This rule becomes effective
November 4, 2016.
ADDRESSES: This final rule is available
on the internet at https://
www.regulations.gov and https://
www.fws.gov/frankfort/. Comments and
materials we received, as well as
supporting documentation we used in
preparing this rule, are available for
public inspection at https://
www.regulations.gov. Comments,
materials, and documentation that we
considered in this rulemaking will be
available by appointment, during
normal business hours at: U.S. Fish and
Wildlife Service, Kentucky Ecological
Services Field Office (see FOR FURTHER
INFORMATION CONTACT).
FOR FURTHER INFORMATION CONTACT:
Virgil Lee Andrews, Jr., Field
Supervisor, U.S. Fish and Wildlife
Service, Kentucky Ecological Services
Field Office, 330 West Broadway, Suite
265, Frankfort, KY 40601; telephone
502–695–0468, x108; facsimile 502–
695–1024. Persons who use a
telecommunications device for the deaf
(TDD) may call the Federal Information
Relay Service (FIRS) at 800–877–8339.
SUPPLEMENTARY INFORMATION:
DATES:
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Executive Summary
Why we need to publish a rule. Under
the Endangered Species Act (Act), we
may list a species if it is endangered or
threatened throughout all or a
significant portion of its range. Listing a
species as an endangered or threatened
species can only be completed by
issuing a rule.
What this document does. This rule
finalizes the listing of the Kentucky
arrow darter (Etheostoma spilotum) as a
threatened species. It also includes
provisions published under section 4(d)
of the Act that are necessary and
advisable for the conservation of the
Kentucky arrow darter.
The basis for our action. Under the
Act, we may determine that a species is
an endangered or threatened species
based on any of five factors: (A) The
present or threatened destruction,
modification, or curtailment of its
habitat or range; (B) overutilization for
commercial, recreational, scientific, or
educational purposes; (C) disease or
predation; (D) the inadequacy of
existing regulatory mechanisms; or (E)
other natural or manmade factors
affecting its continued existence. This
decision to list the Kentucky arrow
darter as threatened is based on three of
the five factors (A, D, and E).
Under section 4(d) of the Act, the
Secretary of the Interior has discretion
to issue such regulations as she deems
necessary and advisable to provide for
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the conservation of threatened species.
The Secretary also has the discretion to
prohibit by regulation, with respect to a
threatened species, any act prohibited
by section 9(a)(1) of the Act.
Summary of the major provisions of
the 4(d) rule. The regulations in title 50
of the Code of Federal Regulations at 50
CFR 17.31(a) apply to threatened
wildlife all the general prohibitions for
endangered wildlife set forth at 50 CFR
17.21, and 50 CFR 17.31(c) states that
whenever a 4(d) rule applies to a
threatened species, the provisions of
§ 17.31(a) do not apply to that species.
The regulations at 50 CFR 17.32 contain
permit provisions for threatened
species.
Some activities that would normally
be prohibited under 50 CFR 17.31 and
17.32 will contribute to the conservation
of the Kentucky arrow darter because
habitat within some of the physically
degraded streams must be improved
before they are suitable for the species.
Therefore, the Service has authorized
certain species-specific exceptions for
the Kentucky arrow darter under section
4(d) of the Act that may be appropriate
to promote the conservation of this
species. This 4(d) rule also exempts
from the general prohibitions in 50 CFR
17.32 take that is incidental to the
following activities when conducted
within habitats currently occupied by
the Kentucky arrow darter:
(1) Channel reconfiguration or
restoration projects that create natural,
physically stable, ecologically
functioning streams (or stream and
wetland systems) that are reconnected
with their groundwater aquifers.
(2) Bank stabilization projects that use
bioengineering methods specified by the
Kentucky Energy and Environment
Cabinet and the Kentucky
Transportation Cabinet.
(3) Bridge and culvert replacement/
removal projects that remove migration
barriers (e.g., collapsing, blocked, or
perched culverts) or generally allow for
improved upstream and downstream
movements of Kentucky arrow darters.
(4) Repair and maintenance of U.S.
Forest Service (USFS) concrete plank
stream crossings in the Daniel Boone
National Forest (DBNF).
Peer review and public comment. We
sought comments from independent
specialists to ensure that our listing
determination is based on scientifically
sound data, assumptions, and analyses.
We invited these peer reviewers to
comment on our listing proposal. We
also considered all comments and
information received during the
comment period.
Elsewhere in this Federal Register,
we finalize designation of critical
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habitat for the Kentucky arrow darter
under the Act.
Previous Federal Action
Please refer to the proposed listing
rule for the Kentucky arrow darter (80
FR 60962, October 8, 2015) for a
detailed description of previous Federal
actions concerning this species.
Summary of Comments and
Recommendations
In the proposed rule published on
October 8, 2015 (80 FR 60962), we
requested that all interested parties
submit written comments on the
proposal by December 7, 2015. We also
contacted appropriate Federal and State
agencies, scientific experts and
organizations, and other interested
parties and invited them to comment on
the proposal. Newspaper notices
inviting general public comment were
published in the Lexington HeraldLeader and Louisville Courier Journal.
We did not receive any requests for a
public hearing. During the comment
period, we received 47 comment letters
in response to the proposed rule: 5 from
peer reviewers, 1 from a State agency,
and 41 from organizations or
individuals. Two comment letters from
organizations were accompanied by
petitions containing a total of 15,388
signatures of persons supporting the
proposed listing. Another organization
submitted a separate comment letter on
behalf of itself and 14 other
organizations. None of the 47 comment
letters objected to the proposed rule to
list the Kentucky arrow darter as
threatened. All substantive information
provided during the comment period
has either been incorporated directly
into this final determination or
addressed below.
Peer Reviewer Comments
In accordance with our peer review
policy published on July 1, 1994 (59 FR
34270), we solicited expert opinion
from seven knowledgeable individuals
with scientific expertise that included
familiarity with Kentucky arrow darter
and its habitat, biological needs, and
threats. We received responses from five
of the peer reviewers.
We reviewed all comments received
from the peer reviewers for substantive
issues and new information regarding
the listing of Kentucky arrow darter.
The peer reviewers all generally
concurred with our methods and
conclusions and provided additional
information on the taxonomy, life
history, and threats; technical
clarifications; and suggestions to
improve the final rule. The comments
and supplementary information
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provided by the peer reviewers
improved the final version of this
document, and we thank them for their
efforts. Peer reviewer comments are
addressed in the following summary
and incorporated into the final rule as
appropriate.
(1) Comment: One peer reviewer
stated that the Service should include
any new information on growth,
feeding, reproduction, or spawning of
the Kentucky arrow darter obtained
from recent captive-propagation efforts
by Conservation Fisheries, Inc. (CFI) in
Knoxville, Tennessee.
Our Response: New observations on
spawning behavior and the growth and
viability of eggs and larvae were made
by CFI during recent captivepropagation efforts (2010 to present).
We have incorporated language
summarizing these findings under the
Background—Habitat and Life History
section of this final listing
determination.
(2) Comment: Two of the peer
reviewers asked that we discuss the
detectability of the Kentucky arrow
darter during survey efforts and how
this could affect our conclusions
regarding the status of the species. More
specifically, the peer reviewers raised
the issue of imperfect detection, which
is the inability of the surveyor to detect
a species (even if present) due to
surveyor error, low-density or rareness
of the target species, or confounding
variables such as environmental
conditions (e.g., stream flow). The peer
reviewers asked the Service to explain
how it accounted for imperfect
detection when evaluating the species’
current distribution and status.
Our Response: We recognize the
importance and significance of
imperfect detection when conducting
surveys for rare or low-density species,
and we agree that is possible a species
can go undetected within a particular
survey reach when it is actually present.
However, we are also required, by
statute and regulation, to base our
determinations solely on the basis of the
best scientific and commercial data
available. We are confident that the
survey data available to us at the time
we prepared our proposed listing
determination represented the best
scientific and commercial data
available. These data were collected by
well-trained, professional biologists,
who employed similar sampling
techniques (single-pass electrofishing)
across the entire potential range of the
Kentucky arrow darter, which included
historical darter locations, random
locations, and locations associated with
regulatory permitting, such as mining or
transportation. Nearly 245 surveys were
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conducted for the species between 2007
and 2015, and the results of these
surveys revealed a clear trend of habitat
degradation and range curtailment for
the species. Kentucky arrow darters may
have gone undetected at a few sites (i.e.,
our detection of the species may have
been imperfect at a few collection sites),
but the species’ overall decline and
pattern of associated habitat degradation
(e.g., elevated conductivity) was clear
based on our review of available survey
data.
(3) Comment: One peer reviewer
pointed out that some information we
included on the reproductive behavior
of the Kentucky arrow darter was
actually based on research conducted on
its closest relative, the Cumberland
arrow darter (Etheostoma sagitta).
Our Response: We concur with the
peer reviewer and have incorporated
language to address this topic under the
Background—Habitat and Life History
section of this final listing
determination.
(4) Comment: Two peer reviewers
suggested we expand our discussion of
the effects of elevated conductivity on
aquatic communities by including
additional information related to the
vulnerability of salamanders or other
aquatic organisms.
Our Response: We have added
language to address this topic under the
Factor A. The Present or Threatened
Destruction, Modification, or
Curtailment of its Habitat or Range—
Water Quality Degradation section of
this final listing determination.
(5) Comment: One peer reviewer
recommended we discuss the potential
threat posed by anthropogenic barriers
(e.g., perched culverts).
Our Response: We added language to
address this topic under the Factor E.
Other Natural or Manmade Factors
Affecting Its Continued Existence—
Restricted Range and Population Size
section of this final listing
determination.
(6) Comment: One peer reviewer
suggested that the spatial degree of
impacts facing the Kentucky arrow
darter could be more accurately
estimated using the Kentucky Division
of Water’s probabilistic sampling data
from the upper Kentucky River basin, as
opposed to relying on data generated
from fixed monitoring sites across the
species’ range.
Our Response: We agree with the peer
reviewer and have added language to
address this topic under the Factor A.
The Present or Threatened Destruction,
Modification, or Curtailment of its
Habitat or Range section of this final
listing determination.
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(7) Comment: One peer reviewer
offered new information on gill
parasites and sewage bacteria,
suggesting that these organisms
represent potential threats to the
Kentucky arrow darter under Factor C.
Disease or Predation.
Our Response: We agree with the peer
reviewer that these organisms have the
potential to adversely affect the
Kentucky arrow darter, and we have
added language to address this topic
under the Factor C. Disease or Predation
section of this final listing
determination.
(8) Comment: One peer reviewer
commented that generalized natural
channel design projects (i.e., Rosgen)
may not be sufficient under provisions
of the proposed section 4(d) rule, and
individual designs would be needed to
benefit the Kentucky arrow darter.
Our Response: In the proposed listing
determination, we proposed a speciesspecific section 4(d) rule to further
promote the conservation of the
Kentucky arrow darter. We concluded
that activities such as stream
reconfiguration/riparian restoration,
bridge and culvert replacement or
removal, bank stabilization, and stream
crossing repair and maintenance would
improve or restore physical habitat
quality for the species and would
provide an overall conservation benefit
to the species. We concur with the peer
reviewer that, under the proposed 4(d)
rule, generalized stream restoration
designs may not be sufficient to benefit
the species. For this reason, the Service
provided references and detailed
descriptions of stream reconfigurations
in the proposed rule, with an emphasis
on stability, ecological function, and
reconnection with groundwater systems.
(9) Comment: One peer reviewer and
one other commenter stated that the
Service needed to clarify potentially
conflicting statements regarding threats
under Factor D (the inadequacy of the
Surface Mining Control and
Reclamation Act (SMCRA) as an
existing regulatory mechanism) and our
conclusion that surface coal mining and
reclamation activities conducted in
accordance with the 1996 biological
opinion (1996 BO) between the Service
and the Office of Surface Mining
Reclamation and Enforcement (OSM)
are unlikely to result in a violation of
section 9 of the Act.
Our Response: The peer reviewer and
commenter are correct in stating that we
considered existing regulatory
mechanisms such as SMCRA to be
inadequate in protecting the Kentucky
arrow darter and its habitats. Habitats
across the species’ range have been
degraded by water pollution and
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sedimentation associated with coal
mining (e.g., elevated conductivity), and
there is evidence of recent extirpations
in watersheds impacted by mining (16
historical streams since the mid-1990s).
In the Provisions of the 4(d) Rule
section of the proposed listing rule, we
also stated that surface coal mining and
reclamation activities, if conducted in
accordance with existing regulations
and permit conditions, would not result
in violations of section 9 of the ESA.
The 1996 BO is the result of a formal
section 7 consultation between OSM
and the Service on OSM’s approval of
State regulatory programs (primacy)
under SMCRA. In Kentucky, the State
has approved primacy under SMCRA
and, therefore, operates under the 1996
BO to address adverse effects to
federally listed species. Under the 1996
BO, SMCRA regulatory authorities are
exempt from prohibitions of section 9 of
the ESA if they comply with the terms
and conditions of the 1996 BO. The
terms and conditions of the 1996 BO
require that each SMCRA regulatory
authority implement and comply with
species-specific protective measures for
federally listed species as developed by
the Service and the regulatory authority.
These measures may not eliminate all
adverse effects (‘‘take’’) on the species or
its habitat, but they are intended to
minimize and avoid impacts to the
greatest extent practical and to ensure
that the proposed activity will not
jeopardize the species’ continued
existence.
(10) Comment: One peer reviewer
stated the Service needs to coordinate
with other agencies on protective
conductivity levels under Kentucky’s
narrative aquatic life standards in order
to protect the species.
Our Response: We continue to share
information with the Kentucky
Department of Environmental Protection
(KYDEP) on the species’ status and
threats; however, any future
modifications to Kentucky’s narrative
aquatic life standards will be the
responsibility of KYDEP and the U.S.
Environmental Protection Agency
(USEPA). We will continue to provide
technical assistance when requested.
(11) Comment: One peer reviewer
commented that the Service should
explain if recorded Kentucky arrow
darter movements in Elisha Branch,
Long Fork, and Hector Branch represent
simple movements within home ranges
(intrapopulational movements from
pool to pool) or dispersal events
(interpopulational movements).
Our Response: We can only speculate
as to whether the recorded movements
in these streams represent simple
movements within home ranges or
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dispersal events. Most are likely
intrapopulational (pool to pool within
the same stream), but a few observations
on Elisha Creek and Long Fork may
provide evidence of dispersal events
(interpopulational). We have added
language to address this topic under the
Background—Habitat and Life History
section of this final listing
determination.
(12) Comment: One peer reviewer
stated that the Service should explain
how we estimated abundance and
recruitment of Kentucky arrow darters.
Our Response: Kentucky arrow darter
abundance per sampling reach was
estimated based on observed captures
during single-pass electrofishing
surveys. As described in the proposed
rule, these surveys typically involved
qualitative searches of all available
habitats within a 100- to 150-meter
survey reach. Evidence of recruitment
was based on the presence of multiple
age-classes within a survey reach. All
captured Kentucky arrow darters were
measured (total length in millimeters),
allowing for the discrimination of age
classes.
(13) Comment: One peer reviewer
stated that the Service did not mention
or discuss the relationship between land
use and instream habitat conditions.
Our Response: We do not specifically
mention the influence of land use and
how it relates to instream habitat
conditions; however, the Factor A
discussion offers multiple examples of
how differing land uses (e.g., resource
extraction, residential development) can
affect water quality and physical habitat
conditions.
(14) Comment: One peer reviewer
asked us to clarify whether the
Kentucky arrow darter was sensitive to
high light conditions (loss of riparian
vegetation and stream canopy).
Our Response: Increased light
conditions have been shown to be a
threat to other aquatic organisms, but its
impact on the Kentucky arrow darter is
unknown. We have added language to
address this topic under the Factor A.
The Present or Threatened Destruction,
Modification, or Curtailment of its
Habitat or Range section of this final
listing determination.
(15) Comment: One peer reviewer
commented that nonnative rainbow
trout may compete with Kentucky arrow
darters for food resources and space.
Our Response: Within Big Double
Creek, the only stream occupied by both
species, nonnative rainbow trout and
Kentucky arrow darters could complete
for food and space as both feed on
aquatic insects and both occupy similar
habitats (pools). However, we do not
believe that competition from nonnative
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trout represents a widespread, highmagnitude threat to the species across
its range. Potential competition from
nonnative trout is limited to Big Double
Creek, and recent surveys in Big Double
Creek demonstrate that the Kentucky
arrow darter population is healthy and
stable (see Factor C: Disease or
Predation).
(16) Comment: One peer reviewer, the
Kentucky Division of Forestry, and
several other commenters provided
comments on the effectiveness of best
management practices (BMP) and
compliance issues related to the
Kentucky Forest Conservation Act. In
general, the peer reviewers and
commenters stated that BMPs were
effective at preventing sediment runoff
from logging sites, thereby protecting
water quality and instream habitats.
They also explained that BMP
implementation rates in the upper
Kentucky River basin were higher than
those reported in the proposed listing
determination. Based on these factors,
the reviewers stated the Service should
reconsider its claim that the Kentucky
Forest Conservation Act is an ineffective
regulatory mechanism. To support their
request, the reviewers provided updated
and revised inspection data and new
information related to BMP elements
designed to improve BMP effectiveness.
Our Response: We agree with the
commenters that BMP implementation
rates are relatively high in the upper
Kentucky River basin (greater than 70
percent), and forestry BMPs are effective
in protecting water quality and instream
habitats. However, as we discuss in the
Factor D. The Inadequacy of Existing
Regulatory Mechanisms section of this
final listing determination, BMP
compliance at inspected sites in the
upper Kentucky River basin was only 73
percent between May 2014 and October
2015. Remedial actions were
implemented at most noncompliant
sites (74 percent) within a few months,
but 26 percent of these sites remained
noncompliant. The primary reason for
noncompliance was related to the
inadequate control of sediment laden
runoff from skid trails, roads, and
landings. Therefore, we agree with the
commenters that forestry BMPs are
effective in protecting water quality and
preventing sedimentation; however,
these impacts continue to occur within
the upper Kentucky River basin due to
BMP noncompliance. We have
incorporated new compliance
information provided by the
commenters under the Factor D—The
Inadequacy of Existing Regulatory
Mechanisms section of this final listing
determination. We have also included
additional text regarding recent changes
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to Kentucky’s BMP standards, which
will be more protective of stream
habitats. We agree with the peer
reviewer and other commenters that
BMP compliance rates were higher than
those reported in the proposed listing
rule, and recent changes to Kentucky’s
BMP standards will be more protective
of stream habitats. However, BMP
noncompliance continues to occur at
some sites (about 26 percent), remedial
actions at these sites sometimes take
several months to complete, and some
of these sites (6.5 percent) are never
remediated.
(17) Comment: One peer reviewer
recommended that the Service modify
the discussion regarding genetic
variation and gene flow because a
detailed study of these factors is lacking.
Our Response: We concur with the
peer reviewer and have modified our
text accordingly in the Factor E. Other
Natural or Manmade Factors Affecting
Its Continued Existence—Restricted
Range and Population Size section of
this final listing determination.
Public Comments
(18) Comment: One commenter stated
that the Service failed to consider how
the Kentucky arrow darter’s habitat is
affected by the surrounding human
population. This same commenter also
suggested that mountaintop mining and
fracking were not considered as
potential threats to the species in the
proposed rule, but should have been.
Our Response: We discussed a variety
of human-induced habitat threats under
the Factor A. The Present or Threatened
Destruction, Modification, or
Curtailment of its Habitat or Range
section of this listing determination. In
that section, we also provided a detailed
summary of threats related to fracking
and described specific impacts
associated with a spill of chemicals
used during the drilling process.
Mountaintop coal mining is not
mentioned within the proposed rule,
but any potential impacts associated
with mountaintop mining are addressed
in our detailed discussion of impacts
associated with surface coal mining in
the Factor A. The Present or Threatened
Destruction, Modification, or
Curtailment of its Habitat or Range
section of this listing determination.
Surface coal mining is a broad category
of coal mining that includes a variety of
methods, such as area, auger, contour,
and mountaintop mining.
(19) Comment: One commenter had
concerns over perceived regulatory gaps
associated with oil and gas development
(and related infrastructure) on the
Redbird Ranger District of the DBNF.
Because some oil and gas resources
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within the Redbird Ranger District are
privately owned, the commenter
believed resource extraction activities in
these areas would be exempt from
National Environmental Policy Act
(NEPA) requirements, and these projects
would not be evaluated as closely for
potential adverse effects to natural
resources as activities occurring in areas
under public ownership.
Our Response: The commenter is
correct that mineral resources (i.e., coal,
natural gas, oil) underlying much of the
Redbird District of the DBNF are in
private ownership, and that no Federal
nexus exists with regard to actions
associated with these minerals
(including coal, oil/gas) in the DBNF.
Because these mineral resources are in
private ownership, oil and gas
exploration activities taking place
within them would not be subject to
NEPA, and there would be no
requirement for the DBNF to consult
with the Service under section 7 of the
ESA or apply standards of the DBNF’s
Land and Resource Management Plan
(Forest Plan) to these privately held
areas. The Service recognizes these
regulatory gaps (with respect to
privately held minerals) on the DBNF
and has added language to the Factor D.
The Inadequacy of Existing Regulatory
Mechanisms section in this final listing
determination.
(20) Comment: One commenter stated
that the recently signed Candidate
Conservation Agreement (CCA) between
the Service and U.S. Forest Service fails
to create new conservation measures
that will be implemented on the DBNF
to protect the Kentucky arrow darter.
Our Response: The CCA involves
several new conservation measures that
will benefit the species. Some of these
measures include (1) the development
and implementation of a long-term
management and monitoring program
for Kentucky arrow darter populations
on the DBNF; (2) an inventory and
mapping project of natural gas lines, oil
wells, roads, other facilities, land
ownership, and mineral ownership
within Kentucky arrow darter
watersheds on the DBNF; (3) the
identification of restoration or
enhancement opportunities for
Kentucky arrow darter streams in
coordination with Forest Plan
standards, implementing those
opportunities as funding and other
resources allow; and (4) the initiation of
an annual Kentucky arrow darter
conservation meeting between the
Service and DBNF to discuss the results
of implementing the CCA. These and
other conservation measures included
in the CCA will benefit the species;
however, these actions did not influence
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68967
our final listing determination. The
actions outlined in the CCA apply only
to portions of Kentucky arrow streams
located within the DBNF. The majority
of Kentucky arrow populations
(streams) and about 74 percent of the
species’ occupied habitat are located in
areas outside of the DBNF that are not
covered by the CCA. These populations
will not benefit from specific
conservation measures described in the
CCA and will continue to be vulnerable
to a variety of threats (see Factor A: The
Present or Threatened Destruction,
Modification, or Curtailment of Its
Habitat or Range).
(21) Comment: One commenter
disagreed with our description of roads
on Robinson Forest, a 59.9-km 2 (14,800acre (ac)) experimental forest owned
and managed by the University of
Kentucky (UK). The commenter stated
that the roads on Robinson Forest are
used for forest access and management
and should not be described as logging
roads. The same commenter also stated
that, in addition to protection from
mining provided through the Lands
Unsuitable for Mining designation in
the Kentucky Administrative
Regulations (405 KAR 24:040), habitats
within Robinson Forest are protected
from potential habitat disturbance
associated with private or recreational
all-terrain vehicle (ATV) use.
Our Response: We agree with the
commenter that roads on Robinson
Forest should not be described as
logging roads, and we have revised the
corresponding text under the Population
Estimates and Status section of this
final rule. Under the Factor D. The
Inadequacy of Existing Regulatory
Mechanisms section of this final listing
determination, we have added a
description of UK’s management
guidelines for Robinson Forest. Under
these guidelines, public access to
Robinson Forest is controlled, and
potential impacts from such activities as
recreational ATV use are avoided.
Summary of Changes From the
Proposed Rule
We have considered all comments
and information received during the
open comment period for the proposed
rule to list the Kentucky arrow darter as
threatened. In this final rule, we have
added species description and lifehistory information to the background
section, and we have revised and
updated the threats discussion
(Summary of Factors Affecting the
Species section). We added new
information on spawning behavior and
the development and viability of eggs,
based on observations made during
captive-propagation efforts by CFI. We
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also clarified information related to
darter movements, discussing the
difference between dispersal
(intertributary movement) and simple
movements within the same stream
(intratributary movement). We added a
more detailed description of feeding
behavior, relying on observations made
for the closely related Cumberland
arrow darter in Tennessee. With regard
to threats, we:
—Used new probabilistic data generated
by the Kentucky Division of Water
(KDOW) to demonstrate the spatial
degree of threats across the species’
range,
—Added new information summarizing
the vulnerability of salamanders and
other aquatic organisms to elevated
conductivity,
—Briefly discussed the potential impact
of high light conditions (stream
canopy loss),
—Discussed the potential threat posed
by sewage bacteria and parasites,
—Incorporated new forestry BMP
compliance information and
descriptions of new BMP standards in
Kentucky, and
—Added text summarizing the threat
posed by anthropogenic barriers (e.g.,
perched culverts).
Background
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Species Information
Species Description and Taxonomy
A thorough account of Kentucky
arrow darter life history is presented in
the preamble to the proposed rule
(October 8, 2015, 80 FR 60962), and that
information is incorporated here by
reference. The following is a summary
of that information. We have
incorporated new information into the
final rule, as appropriate (see Summary
of Changes from the Proposed Rule).
The Kentucky arrow darter,
Etheostoma spilotum Gilbert, is a small
and compressed fish, with a background
color of straw yellow to pale greenish
and a body covered by a variety of
stripes and blotches. During the
spawning season, breeding males
exhibit vibrant coloration. Most of the
body is blue-green in color, with
scattered scarlet spots and scarlet to
orange vertical bars laterally.
The Kentucky arrow darter belongs to
the Class Actinopterygii (ray-finned
fishes), Order Perciformes, and Family
Percidae (perches) (Etnier and Starnes
1993, pp. 18–25; Page and Burr 2011, p.
569). A similar darter species, the
Cumberland arrow darter, E. sagitta
(Jordan and Swain), is restricted to the
upper Cumberland River basin in
Kentucky and Tennessee, and the
Kentucky arrow darter is restricted to
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the upper Kentucky River basin in
Kentucky.
Habitat and Life History
Kentucky arrow darters typically
inhabit pools or transitional areas
between riffles and pools (glides and
runs) in moderate- to high-gradient,
first- to third-order streams with rocky
substrates (Thomas 2008, p. 6). The
species is most often observed near
some type of cover in depths ranging
from 10 to 45 centimeters (cm) (4 to 18
in) and in streams ranging from 1.5 to
20 meters (m) (4.9 to 65.6 feet (ft)) wide.
During spawning (April to June), the
species utilizes riffle habitats with
moderate flow (Kuehne and Barbour
1983, p. 71). Kentucky arrow darters
typically occupy streams with
watersheds of 25.9 square kilometers
(km2) (10 square miles (mi2)) or less,
and many of these habitats, especially in
first-order reaches, can be intermittent
in nature (Thomas 2008, pp. 6–9).
During drier periods (late summer or
fall), some Kentucky arrow darter
streams may cease flowing, but the
species appears to survive these
conditions by retreating into shaded,
isolated pools or by dispersing into
larger tributaries (Lotrich 1973, p. 394;
Lowe 1979, p. 26; Etnier and Starnes
1993, p. 523; ATS 2011, p. 7; Service
unpublished data).
Little information is available on the
reproductive behavior of the Kentucky
arrow darter; however, general details
were provided by Kuehne and Barbour
(1983, p. 71), and more specific
information can be inferred from studies
of the closely related Cumberland arrow
darter conducted by Bailey (1948, pp.
82–84) and Lowe (1979, pp. 44–50).
Male Kentucky arrow darters establish
territories over riffles and defend a
fanned out depression in the substrate.
After spawning, it is assumed the male
continues to defend the nest until the
eggs have hatched. The spawning period
extends from April to June, but peak
activity occurs when water temperatures
reach 13 degrees Celsius (°C) (55 degrees
Fahrenheit (°F)), typically in mid-April.
Females produce between 200 and 600
eggs per season, with tremendous
variation resulting from size, age,
condition of females, and stream
temperature (Rakes 2014, pers. comm.).
Captive-propagation efforts by CFI
(2010-present) have yielded
observations related to spawning
behavior and the development and
viability of eggs and larvae (Petty et al.
2015, pp. 4–7). The spawning period is
dependent on several factors, but
laboratory observations suggest that
water temperature is likely a significant
determinant of when spawning begins
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and how long it continues (Petty et al.
2015, p. 7). The appearance of larvae in
the laboratory appeared to be delayed by
cool water temperatures (less than
10 °C), suggesting that cooler
temperatures may (1) affect egg viability
and/or larval survivorship or (2) simply
increase development times of eggs and/
or larvae. Another potential factor
related to spawning period is the age
and size of breeding darters. In the
laboratory, large, older individuals
spawned earlier and terminated earlier,
while smaller, younger individuals
matured and spawned later. Petty et al.
(2015, p. 7) cautioned that hatchery
observations are necessarily biased by
the selection and use of mostly larger
individuals in attempts to maximize
production, so these larger individuals
may not reflect the natural variation in
wild populations with greater
demographic (and environmental)
diversity.
Kentucky arrow darters can reach 50
mm (2 in) in length by the end of the
first year (Lotrich 1973, pp. 384–385;
Lowe 1979, pp. 44–48; Kuehne and
Barbour 1983, p. 71). One-year-olds are
generally sexually mature and
participate in spawning with older age
classes (Etnier and Starnes 1993, p.
523). Juvenile Kentucky arrow darters
can be found throughout the channel
but are often observed in shallow water
along stream margins near root mats,
rock ledges, or some other cover. As
stream flow lessens and riffles begin to
shrink, most Kentucky arrow darters
move into pools and tend to remain
there even when late autumn and winter
rains restore stream flow (Kuehne and
Barbour 1983, p. 71).
Limited information exists with
regard to upstream or downstream
movements of Kentucky arrow darters;
however, a movement study at Eastern
Kentucky University (EKU) and a
reintroduction project in the DBNF
suggest that Kentucky arrow darters can
move considerable distances (Baxter
2015, entire; Thomas 2015a, pers.
comm.), which we summarize below.
The EKU study used PIT-tags
(electronic tags placed under the skin)
and placed antenna systems (installed
in the stream bottom) to monitor intraand inter-tributary movement of
Kentucky arrow darters in Gilberts Big
Creek and Elisha Creek, two secondorder tributaries of Red Bird River in
Clay and Leslie Counties (Baxter 2015,
pp. 9–11). PIT-tags were placed in a
total of 126 individuals, and Kentucky
arrow darter movements were tracked
from May 2013 to May 2014 (Baxter
2015, pp. 15, 19–21, 35–36). Recorded
movements ranged from 134 m (439 ft)
(upstream movement) to 4,078 m
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(13,379 ft or 2.5 mi) (downstream
movement by a female in Elisha Creek).
Intermediate recorded movements
included 328 m (1,076 ft) (downstream),
351 m (1,151 ft) (upstream), 900 m
(2,952 ft) (upstream/downstream), 950
m (3,116 ft) (downstream), 1,282 m
(4,028 ft) (downstream), and 1,708 m
(5,603 ft) (downstream). Based on this
research, we believe it is likely that
most of these documented movements
could best be described as
intrapopulational and represent
individual darters moving between
stream pools of Elisha Creek. In the case
of the female arrow darter that moved
unidirectionally from the headwaters of
Elisha Creek to its mouth (a distance of
more than 4,000 m (2.5 mi)), this
documented movement could represent
an interpopulational event (dispersal),
where an individual leaves one
population and travels to another
population (or stream). Further research
is needed to differentiate these
behaviors.
Since August 2012, the Kentucky
Department of Fish and Wildlife
Resources (KDFWR) and CFI have been
releasing captive-bred Kentucky arrow
darters into a 1.5-km (0.9 mi) reach of
Long Fork, a DBNF stream and firstorder tributary to Hector Branch in
eastern Clay County, Kentucky, where
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the species formerly occurred but has
been extirpated. Researchers have
tagged and released a total of 1,447
Kentucky arrow darters (about 50–55
mm TL) and have conducted monitoring
on 14 occasions since the initial release
using visual searches and seining
methods. Tagged darters have been
observed throughout the Long Fork
mainstem, and some individuals have
moved considerable distances (up to 1.0
km (0.4 mi)) downstream into Hector
Branch. Based on these results, it is
clear that young Kentucky arrow darters
can disperse both upstream and
downstream from their place of origin
and can move considerable distances.
Kentucky arrow darters feed primarily
on mayflies (Order Ephemeroptera),
with larger darters also feeding on small
crayfishes. Other food items include
larval blackflies, midges, caddisfly
larvae, stonefly nymphs, beetle larvae,
microcrustaceans, and dipteran larvae
(Lotrich 1973, p. 381; Etnier and Starnes
1993, p. 523).
Historical Range and Distribution
A thorough account of the Kentucky
arrow darter’s historical range is
presented in the preamble to the
proposed rule (October 8, 2015, 80 FR
60962), and that information is
incorporated here by reference. The
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68969
following is a summary of that
information with new information
added as appropriate (see Summary of
Changes from the Proposed Rule).
The Kentucky arrow darter occurred
historically in at least 74 streams in the
upper Kentucky River basin of eastern
Kentucky (Gilbert 1887, pp. 53–54;
Woolman 1892, pp. 275–281; Kuehne
and Bailey 1961, pp. 3–4; Kuehne 1962,
pp. 608–609; Branson and Batch 1972,
pp. 507–514; Lotrich 1973, p. 380;
Branson and Batch 1974, pp. 81–83;
Harker et al. 1979, pp. 523–761;
Greenberg and Steigerwald 1981, p. 37;
Branson and Batch 1983, pp. 2–13;
Branson and Batch 1984, pp. 4–8;
Kornman 1985, p. 28; Burr and Warren
1986, p. 316; Measel 1997, pp. 1–105;
Kornman 1999, pp. 118–133; Stephens
1999, pp. 159–174; Ray and Ceas 2003,
p. 8; Kentucky State Nature Preserves
Commission (KSNPC) unpublished
data). Its distribution spanned portions
of 6 smaller sub-basins or watersheds
(North Fork Kentucky River, Middle
Fork Kentucky River, South Fork
Kentucky River, Silver Creek, Sturgeon
Creek, and Red River) in 10 Kentucky
counties (Breathitt, Clay, Harlan,
Jackson, Knott, Lee, Leslie, Owsley,
Perry, and Wolfe) (Thomas 2008, p. 3)
(figure 1).
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Current Range and Distribution
Based on surveys completed since
2006, extant populations of the
Kentucky arrow darter are known from
47 streams in the upper Kentucky River
basin in eastern Kentucky. These
populations are scattered across 6 subbasins (North Fork Kentucky River,
Middle Fork Kentucky River, South
Fork Kentucky River, Silver Creek,
Sturgeon Creek, and Red River) in 10
Kentucky counties: Breathitt, Clay,
Harlan, Jackson, Knott, Lee, Leslie,
Owsley, Perry, and Wolfe Counties
(Thomas 2008, pp. 3–6; Service
unpublished data). Populations in eight
of these streams have been discovered
since 2006, and one additional
population (Long Fork, Clay County)
was reestablished through a
reintroduction project led by KDFWR.
Current populations occur in the
following Kentucky River sub-basins
(and smaller watersheds):
• North Fork Kentucky River
(Troublesome, Quicksand, Frozen,
Holly, Lower Devil, Walker, and Hell
Creek watersheds);
• Middle Fork Kentucky River (Big
Laurel, Rockhouse, Hell For Certain
Creek, and Squabble Creek watersheds);
• South Fork Kentucky River (Red
Bird River, Hector Branch, and Goose,
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Bullskin, Buffalo, and Lower Buffalo
Creek watersheds);
• Silver Creek;
• Sturgeon Creek (Travis, Wild Dog,
and Granny Dismal Creek watersheds);
and
• Red River (Rock Bridge Fork
watershed).
Population Estimates and Status
The species’ status in all streams of
historical or recent occurrence is
summarized in table 1, below, which is
organized by sub-basin, beginning at the
southeastern border (upstream end) of
the basin (North Fork Kentucky River)
and moving downstream. In this final
rule, the term ‘‘population’’ is used in
a geographical context and not in a
genetic context, and is defined as all
individuals of the species living in one
stream at a given time. Using the term
in this way allows the status, trends,
and threats to be discussed
comparatively across streams where the
species occurs. In using this term, we do
not imply that the populations are
currently reproducing and recruiting or
that they are distinct genetic units. We
considered populations of the Kentucky
arrow darter as extant if live specimens
have been observed or collected since
2006, and habitat conditions are
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favorable for reproduction (e.g., low
siltation, water chemistry at normal
levels).
We are using the following
generalized sets of criteria to categorize
the relative status of populations of 83
streams (74 historical and 9
nonhistorical, discovered or established
since 2006) included in table 1. Similar
criteria have been used by the Service
in previous proposed listing rules (76
FR 3392, January 19, 2011; 77 FR 63440,
October 16, 2012):
The status of a population is
considered ‘‘stable’’ if: (1) There is little
evidence of significant habitat loss or
degradation; (2) darter abundance has
remained relatively constant or
increased during recent surveys; or (3)
evidence of relatively recent recruitment
has been documented since 2006.
The status of a population is
considered ‘‘vulnerable’’ if: (1) There is
ample evidence of significant habitat
loss or degradation since the species’
original capture; (2) there is an obvious
decreasing trend in abundance since the
historical collection; or (3) no evidence
of relatively recent recruitment (since
2006) has been documented.
The status of a population is
considered ‘‘extirpated’’ if: (1) All
known suitable habitat has been
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destroyed or severely degraded; (2) no
live individuals have been observed
since 2006; or (3) live individuals have
been observed since 2006, but habitat
conditions do not appear to be suitable
for reproduction to occur (e.g., elevated
conductivity, siltation) and there is
supporting evidence that the observed
68971
individuals are transients (fishes
originating from another stream that
occupy a particular habitat for only a
short time).
TABLE 1—KENTUCKY ARROW DARTER STATUS IN ALL STREAMS OF HISTORICAL (74) OR RECENT OCCURRENCE 1 (9;
NOTED IN BOLD) IN THE UPPER KENTUCKY RIVER BASIN
Sub-basin
Sub-basin tributaries
Stream 1
County
Current
status
North Fork .............
Lotts Creek ................................
Troublesome Creek ...................
Lotts Creek ................................
Left Fork ....................................
Troublesome Creek ...................
Mill Creek ..................................
Laurel Fork (of Balls Fork) ........
Buckhorn Creek (Prince Fork) ...
Eli Fork 1 ...................................
Boughcamp Branch ...................
Coles Fork .................................
Snag Ridge Fork .......................
Clemons Fork ............................
Millseat Branch ..........................
Lewis Fork .................................
Long Fork ..................................
Bear Branch ..............................
Laurel Fork (of Buckhorn) .........
Lost Creek .................................
Laurel Fork ................................
Baker Branch .............................
Middle Fork ................................
Spring Fork 1 ............................
Wolf Creek .................................
Hunting Creek ...........................
Leatherwood Creek ...................
Bear Creek ................................
Smith Branch .............................
Frozen Creek .............................
Clear Fork ..................................
Negro Branch ............................
Davis Creek ...............................
Cope Fork ..................................
Boone Fork ................................
Holly Creek ................................
Lower Devil Creek .....................
Little Fork 1 ...............................
Walker Creek .............................
Hell Creek ..................................
Big Laurel Creek .......................
Greasy Creek ............................
Cutshin Creek ............................
Middle Fork ................................
Laurel Creek 1 ...........................
Hell For Certain Creek ..............
Squabble Creek .........................
Blue Hole Creek ........................
Upper Bear Creek .....................
Katies Creek ..............................
Spring Creek .............................
Bowen Creek .............................
Elisha Creek ..............................
Gilberts Big Creek .....................
Sugar Creek 1 ...........................
Big Double Creek ......................
Little Double Creek ....................
Big Creek ...................................
Jacks Creek ...............................
Hector Branch ...........................
Long Fork (of Hector Br.) 1 .....
Horse Creek ..............................
Laurel Creek ..............................
Bullskin Creek ...........................
Laurel Fork ................................
Cortland Fork 1 .........................
Lucky Fork .................................
Left Fork ....................................
Perry ......................
Knott ......................
Perry ......................
Knott ......................
Knott ......................
Knott ......................
Knott ......................
Knott ......................
Breathitt, Knott .......
Knott ......................
Breathitt .................
Breathitt .................
Breathitt .................
Breathitt .................
Breathitt .................
Breathitt .................
Breathitt .................
Knott ......................
Knott ......................
Knott ......................
Breathitt .................
Breathitt .................
Breathitt .................
Breathitt .................
Breathitt .................
Breathitt .................
Breathitt .................
Breathitt .................
Breathitt .................
Breathitt .................
Breathitt .................
Breathitt .................
Wolfe ......................
Lee, Wolfe .............
Lee, Wolfe .............
Lee, Wolfe .............
Lee .........................
Harlan ....................
Leslie .....................
Leslie .....................
Leslie .....................
Leslie .....................
Leslie .....................
Perry ......................
Clay ........................
Clay ........................
Clay ........................
Clay ........................
Leslie .....................
Leslie .....................
Clay, Leslie ............
Clay, Leslie ............
Clay ........................
Clay ........................
Clay ........................
Clay ........................
Clay ........................
Clay ........................
Clay ........................
Clay ........................
Clay, Leslie ............
Owsley ...................
Owsley ...................
Owsley ...................
Owsley ...................
Extirpated .....
Extirpated .....
Extirpated .....
Extirpated .....
Extirpated .....
Vulnerable ....
Vulnerable ....
Extirpated .....
Stable ...........
Stable ...........
Stable ...........
Extirpated .....
Extirpated .....
Extirpated .....
Extirpated .....
Extirpated .....
Extirpated .....
Stable ...........
Extirpated .....
Stable ...........
Vulnerable ....
Extirpated .....
Vulnerable ....
Extirpated .....
Extirpated .....
Extirpated .....
Stable ...........
Vulnerable ....
Vulnerable ....
Vulnerable ....
Extirpated .....
Extirpated .....
Vulnerable ....
Extirpated .....
Vulnerable ....
Stable ...........
Vulnerable ....
Vulnerable ....
Extirpated .....
Extirpated .....
Extirpated .....
Vulnerable ....
Stable ...........
Vulnerable ....
Stable ...........
Stable ...........
Stable ...........
Stable ...........
Stable ...........
Stable ...........
Stable ...........
Stable ...........
Stable ...........
Stable ...........
Extirpated .....
Vulnerable ....
Extirpated .....
Stable ...........
Vulnerable ....
Extirpated .....
Vulnerable ....
Stable ...........
Vulnerable ....
Stable ...........
Stable ...........
Quicksand Creek .......................
Frozen Creek .............................
Holly Creek ................................
Lower Devil Creek .....................
South Fork ............
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Middle Fork ...........
Walker Creek .............................
Hell Creek ..................................
Greasy Creek ............................
Cutshin Creek ............................
Middle Fork ................................
Rockhouse Creek ......................
Hell For Certain Creek ..............
Squabble Creek .........................
Red Bird River ...........................
Goose Creek .............................
Bullskin Creek ...........................
Buffalo Creek .............................
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Date of last
observation
1890
1890
1890
1995
1995
2011
2011
2011
2011
2008
2013
1976
1959
1959
2015
1976
1997
2014
1994
2015
2013
1995
2013
1982
1969
1995
2013
2008
2008
2008
1995
1998
2007
1998
2011
2013
2013
2009
1970
1890
1890
2013
2013
2015
2008
2013
2007
2007
2009
2014
2013
2008
2014
2008
1890
2009
2015
2014
2013
1970
2014
2014
2014
2014
2014
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TABLE 1—KENTUCKY ARROW DARTER STATUS IN ALL STREAMS OF HISTORICAL (74) OR RECENT OCCURRENCE 1 (9;
NOTED IN BOLD) IN THE UPPER KENTUCKY RIVER BASIN—Continued
Sub-basin
Stream 1
Sexton Creek .............................
Silver Creek ..........
Sturgeon Creek .....
Lower Island Creek ...................
Cow Creek .................................
Buck Creek ................................
Lower Buffalo Creek ..................
....................................................
....................................................
Red River ..............
Swift Camp Creek .....................
1Non-historical
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Current
status
Right Fork ..................................
Buffalo Creek .............................
Bray Creek ................................
Robinsons Creek .......................
Sexton Creek .............................
Lower Island Creek ...................
Right Fork Cow Creek ...............
Buck Creek ................................
Lower Buffalo Creek ..................
....................................................
Travis Creek 1 ...........................
Brushy Creek .............................
Little Sturgeon Creek ................
Wild Dog Creek .........................
Granny Dismal Creek 1 ............
Cooperas Cave Branch .............
Sturgeon Creek .........................
Rockbridge Fork ........................
Owsley ...................
Owsley ...................
Clay ........................
Clay ........................
Owsley ...................
Owsley ...................
Owsley ...................
Owsley ...................
Lee, Owsley ...........
Lee .........................
Jackson ..................
Jackson, Owsley ....
Owsley ...................
Jackson, Owsley ....
Lee, Owsley ...........
Lee .........................
Lee .........................
Wolfe ......................
Vulnerable ....
Vulnerable ....
Extirpated .....
Extirpated .....
Extirpated .....
Extirpated .....
Extirpated .....
Extirpated .....
Vulnerable ....
Vulnerable ....
Vulnerable ....
Extirpated .....
Extirpated .....
Stable ...........
Vulnerable ....
Extirpated .....
Extirpated .....
Vulnerable ....
Date of last
observation
2009
1969
1997
1997
1978
1997
1997
1978
2007
2008
2008
1996
1996
2007
2013
1996
1998
2013
occurrence discovered or established since 2006.
In the period 2007–2012, the Service,
KSNPC, and KDFWR conducted a status
review for the Kentucky arrow darter
(Thomas 2008, pp. 1–33; Service 2012,
pp. 1–4). Surveys were conducted
qualitatively using single-pass
electrofishing techniques (Smith-Root
backpack electrofishing unit) within an
approximate 100-m (328-ft) reach.
During these efforts, fish surveys were
conducted at 69 of 74 historical streams,
103 of 119 historical sites, and 40 new
(nonhistorical) sites (sites correspond to
individual sampling reaches and more
than one may be present on a given
stream). Kentucky arrow darters were
observed at 36 of 69 historical streams
(52 percent), 53 of 103 historical sites
(52 percent), and 4 of 40 new sites (10
percent). New sites were visited in an
effort to locate additional populations
and were specifically selected based on
habitat suitability and the availability of
previous collection records (sites
lacking previous collections were
chosen).
From June to September 2013, KSNPC
and the Service initiated a study that
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included quantitative surveys at 80
randomly chosen sites within the
species’ historical range (Service
unpublished data). Kentucky arrow
darters were observed at only seven
sites, including two new localities
(Granny Dismal Creek in Owsley County
and Spring Fork Quicksand Creek in
Breathitt County) and one historical
stream (Hunting Creek, Breathitt
County) where the species was not
observed during status surveys by
Thomas (2008, pp. 1–33) and Service
(2012, pp. 1–4).
During 2014–2015, additional
qualitative surveys (single-pass
electrofishing) were completed at more
than 20 sites within the basin. Kentucky
arrow darters were observed in Bear
Branch, Big Double Creek, Big Laurel
Creek, Bullskin Creek, Clemons Fork,
Coles Fork, Cortland Fork, Laurel Fork
Buffalo Creek, and Squabble Creek.
Based on the poor habitat conditions
observed in Bear Branch (e.g., elevated
conductivity, siltation, and embedded
substrates) and its close proximity to
Robinson Forest, we suspect that the
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few individuals observed in Bear
Branch were transients originating from
Clemons Fork.
Based on historical records and
survey data collected at more than 200
sites since 2006, the Kentucky arrow
darter has declined significantly
rangewide and has been eliminated
from large portions of its former range,
including 36 of 74 historical streams
(figure 2) and large portions of the basin
that would have been occupied
historically by the species (figure 3).
Forty-four percent of the species’
extirpations (16 streams) have occurred
since the mid-1990s, and the species has
disappeared completely from several
watersheds (e.g., Sexton Creek, South
Fork Quicksand Creek, Troublesome
Creek headwaters). Of the species’ 47
extant streams, we consider half of these
populations (23) to be ‘‘vulnerable’’
(table 1), and most remaining
populations are isolated and restricted
to short stream reaches.
BILLING CODE 4333–15–P
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Map Location
Kentucky
0
Middle Fork
Kentucky
10
30
20
I
I
I
I
0
10
20
30
I
40 Kilometers
40 Miles
j
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Figure 2. A summary of Kentucky arrow darter survey results at all historical sites
visited between 2007 and 2015. Circles indicate survey sites (reaches) where the species
was observed. Triangles indicate survey sites (reaches) where the species was not
observed. Black lines indicate sub-basin boundaries; grey lines indicate 4th to 6th order
streams.
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Federal Register / Vol. 81, No. 193 / Wednesday, October 5, 2016 / Rules and Regulations
Map Location
Sturgeon
Creek
NorthFork
Kentucky
Kentucky
0
Middle Fork
Kentucky
20
10
30
40 Maes
I
40 Kilometers
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BILLING CODE 4333–15–C
A synopsis of the Kentucky arrow
darter’s current range and status is
provided in the preamble to the
proposed rule, and that information is
incorporated here by reference.
Our recent survey data (Thomas 2008,
pp. 25–27; Service 2012, pp. 1–4)
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indicate that Kentucky arrow darters
occur in low densities. Sampling
reaches where arrow darters were
observed had an average of only 3
individuals per 100-m (328-ft) reach and
a median of 2 individuals per reach
(range of 1 to 10 individuals). ATS
(2011, pp. 4–6) observed similar
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densities at occupied sampling reaches
in the Buckhorn Creek watershed.
Surveys in 2011 by the DBNF from
Laurel Fork and Cortland Branch of Left
Fork Buffalo Creek (South Fork
Kentucky River sub-basin) produced
slightly higher capture rates (an average
of 5 darters per 100-m (328-ft) sampling
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Figure 3. A summary of Kentucky arrow darter survey results at all historical and new
sites visited between 2007 and 2014. Circles indicate survey sites (reaches) where the
species was observed. Triangles indicate survey sites (reaches) where the species was not
observed. Black lines indicate sub-basin boundaries; grey lines indicate 4th to 6th order
streams.
Federal Register / Vol. 81, No. 193 / Wednesday, October 5, 2016 / Rules and Regulations
reach) (Mulhall 2014, pers. comm.). The
low abundance values (compared to
other darters) are not surprising since
Kentucky arrow darters generally occur
in low densities, even in those streams
where disturbance has been minimal
(Thomas 2015b, pers. comm.).
Detailed information on population
size is generally lacking for the species,
but estimates have been completed for
three streams: Clemons Fork (Breathitt
County), Elisha Creek (Clay and Leslie
Counties), and Gilberts Big Creek (Clay
and Leslie Counties) (Service
unpublished data). Based on field
surveys completed in 2013 by EKU,
KSNPC, and the Service, population
estimates included 986–2,113
individuals (Clemons Fork), 592–1,429
individuals (Elisha Creek), and 175–358
individuals (Gilberts Big Creek) (ranges
reflect 95 percent confidence intervals)
(Baxter 2015, pp. 14–15, 18–19).
Based on observed catch rates and
habitat conditions throughout the upper
Kentucky River basin, the most stable
and largest populations of the Kentucky
arrow darter appear to be located in the
following streams:
• Hell For Certain Creek, Leslie
County;
• Laurel and Middle Forks of
Quicksand Creek, Knott County;
• Frozen and Walker Creeks, Breathitt
and Lee Counties;
• Clemons Fork and Coles Fork,
Breathitt and Knott Counties;
• Several direct tributaries (e.g.,
Bowen Creek, Elisha Creek, and Big
Double Creek) of the Red Bird River,
Clay and Leslie Counties; and
• Wild Dog Creek, Jackson and
Owsley Counties.
The Kentucky arrow darter is
considered ‘‘threatened’’ by the State of
Kentucky and has been ranked by
KSNPC as a G2G3/S2S3 species
(imperiled or vulnerable globally and
imperiled or vulnerable within the
State) (KSNPC 2014, p. 40). Kentucky’s
Comprehensive Wildlife Conservation
Strategy (KDFWR 2013, pp. 9–11)
identified the Kentucky arrow darter as
a Species of Greatest Conservation Need
(rare or declining species that requires
conservation actions to improve its
status).
Summary of Factors Affecting the
Species
Section 4 of the Act (16 U.S.C. 1533),
and its implementing regulations at 50
CFR part 424, set forth the procedures
for adding species to the Federal Lists
of Endangered and Threatened Wildlife
and Plants. Under section 4(a)(1) of the
Act, we may list a species based on (A)
the present or threatened destruction,
modification, or curtailment of its
habitat or range; (B) overutilization for
commercial, recreational, scientific, or
educational purposes; (C) disease or
predation; (D) the inadequacy of
existing regulatory mechanisms; or (E)
other natural or manmade factors
affecting its continued existence. Listing
may be warranted based on any of the
above threat factors, singly or in
combination.
Factor A: The Present or Threatened
Destruction, Modification, or
Curtailment of Its Habitat or Range
A thorough discussion of Kentucky
arrow darter habitat destruction or
modification is presented in the
preamble to the proposed rule (October
8, 2015, 80 FR 60962), and that
information is incorporated here by
reference. The following is a summary
of that information.
The Kentucky arrow darter’s habitat
and range have been destroyed,
modified, and curtailed due to a variety
of anthropogenic activities in the upper
Kentucky River drainage. Resource
68975
extraction (e.g., coal mining, logging,
oil/gas well development), land
development, agricultural activities, and
inadequate sewage treatment have all
contributed to the degradation of
streams within the range of the species
(Branson and Batch 1972, pp. 513–516;
Branson and Batch 1974, pp. 82–83;
Thomas 2008, pp. 6–7; KDOW 2010, pp.
70–84; KDOW 2013a, pp. 189–214, 337–
376; KDOW 2013b, pp. 88–94). These
land use activities have led to chemical
and physical changes to stream habitats
that have adversely affected the species.
Specific stressors have included inputs
of dissolved solids and elevation of
instream conductivity, sedimentation/
siltation of stream substrates (excess
sediments deposited in a stream),
turbidity, inputs of nutrients and
organic enrichment, and elevation of
stream temperatures (KDOW 2010, p.
84; KDOW 2013a, pp. 189–214, 337–
376). KDOW (2013a, pp. 337–376)
provided a summary of specific threats
within the upper Kentucky River
drainage, identifying impaired reaches
in 21 streams within the Kentucky
arrow darter’s historical range (table 2).
Six of these streams continue to support
populations of the species, but only one
of these populations (Frozen Creek) is
considered to be stable (see table 1,
above). Results of probabilistic surveys
(i.e., surveys conducted at randomly
selected sites with sites selected in a
statistically valid way) by KDOW
demonstrate the spatial degree of threats
across the species’ range. Out of 22
probabilistic sites (streams) visited
within the upper Kentucky River basin
in 2003, 18 were considered to be
impaired (Payne 2016, pers. comm.),
suggesting habitats across the species’
range are impacted by the specific
stressors identified above.
TABLE 2—SUMMARY OF 303(d) LISTED STREAM SEGMENTS WITHIN THE HISTORICAL RANGE OF THE KENTUCKY ARROW
DARTER (KDOW 2013a, pp. 337–376)
County
Buckhorn Creek ...............................
Breathitt .....
Cope Fork (of Frozen Creek) ..........
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Stream
Impacted
stream segment(s)—
stream km
(stream mi)
Pollutant source
Pollutant
0–10.0
(0–6.8)
Abandoned Mine Lands, Unknown
Sources.
Breathitt .....
0–3.0
(0–1.9)
Fecal Coliform (FC), Sediment/Siltation, Total Dissolved Solids
(TDS).
Sediment/Siltation, TDS.
Cutshin Creek ..................................
Leslie .........
Frozen Creek * .................................
Breathitt .....
15.6–17.2
(9.7–10.7)
0–22.4
(0–13.9)
Channelization, Riparian Habitat
Loss,
Logging,
Agriculture,
Stream Bank Modification, Surface Coal Mining.
Riparian Habitat Loss, Stream Bank Sediment/Siltation.
Modification, Surface Coal Mining.
Riparian Habitat Loss, Post-Devel- Sediment/Siltation.
opment Erosion and Sedimentation.
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Federal Register / Vol. 81, No. 193 / Wednesday, October 5, 2016 / Rules and Regulations
TABLE 2—SUMMARY OF 303(d) LISTED STREAM SEGMENTS WITHIN THE HISTORICAL RANGE OF THE KENTUCKY ARROW
DARTER (KDOW 2013a, pp. 337–376)—Continued
Impacted
stream segment(s)—
stream km
(stream mi)
Stream
County
Goose Creek ...................................
Clay ............
Hector Branch ..................................
Clay ............
Holly Creek * ....................................
Wolfe ..........
Horse Creek * ..................................
Clay ............
0–13.4
(0–8.3)
Laurel Creek ....................................
Clay ............
Left Fork Island Creek .....................
Owsley .......
Long Fork ........................................
Breathitt .....
Lost Creek .......................................
Breathitt .....
6.1–7.7
(3.8–4.8)
0–8.0
(0–5.0)
0–7.4
(0–4.6)
0–14.3
(0–8.9)
Lotts Creek ......................................
Perry ..........
Quicksand Creek .............................
Breathitt .....
Sexton Creek ...................................
South Fork Quicksand Creek ..........
Clay,
Owsley.
Breathitt .....
Spring Fork (Quicksand Creek) * .....
Breathitt .....
5.0–11.1
(3.1–6.9)
Squabble Creek * .............................
Perry ..........
Sturgeon Creek ...............................
Lee .............
Swift Camp Creek ...........................
Wolfe ..........
Troublesome Creek .........................
Breathitt .....
0–7.6
(0–4.7)
12.9–19.6
(8.0–12.2)
0–22.4
(0–13.9)
0–72.6
(0–45.1)
0–13.4
(0–8.3)
0–8.8
(0–5.5)
0–9.8
(0–6.2)
0.6–1.6, 1.9–
9.6
(0.4–1.0, 1.2–
6.0)
0–27.4,
34.9–49.6
(0–17.0, 21.7–
30.8)
0–27.7
(0–17.2)
0–27.2
(0–16.9)
Pollutant source
Pollutant
Septic Systems ................................
FC.
Unknown ..........................................
Unknown.
Agriculture, Riparian Habitat Loss,
Stream Bank Modification, Surface Coal Mining.
Riparian Habitat Loss, Managed
Pasture Grazing, Surface Coal
Mining.
Managed Pasture Grazing, Crop
Production.
Crop Production ..............................
Sediment/Siltation, Unknown.
Sediment/Siltation.
Nutrients/Eutrophication.
Sediment/Siltation.
Surface Coal Mining ........................
Sediment/Siltation, TDS.
Coal Mining, Riparian Habitat Loss,
Logging, Stream Bank Modification.
Riparian Habitat Loss, Land Development, Surface Coal Mining,
Logging, Stream Bank Modification.
Surface Coal Mining, Riparian Habitat Loss, Logging, Stream Bank
Modification.
FC, Sedimentation, TDS, Turbidity.
Crop Production, Highway/Road/
Bridge Runoff.
Riparian Habitat Loss, Petroleum/
Natural Gas Production Activities,
Surface Coal Mining.
Abandoned Mine Lands (Inactive),
Riparian Habitat Loss, Logging,
Stream Bank Modification.
Land Development, Surface Coal
Mining.
Riparian Habitat Loss, Crop Production, Surface Coal Mining.
Unknown ..........................................
Sediment/Siltation, TDS.
Surface Coal Mining, Municipal
Point Source Discharges, Petroleum/Natural Gas Activities.
Sediment/Siltation, TDS, Turbidity.
FC, Turbidity,
TDS.
Sediment/Siltation,
Sediment/Siltation, TDS.
Sediment/Siltation, TDS, Turbidity.
Sediment/Siltation, TDS.
Sediment/Siltation.
Unknown.
Sediment/Siltation, Specific
ductance, TDS, Turbidity.
Con-
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* Stream segment still occupied by Kentucky arrow darters.
Water Quality Degradation
One threat to the Kentucky arrow
darter is water quality degradation
caused by a variety of nonpoint-source
pollutants (contaminants from many
diffuse and unquantifiable sources).
Within the upper Kentucky River
drainage, coal mining has been the most
significant historical source of these
pollutants, and this activity continues to
occur throughout the drainage.
Activities associated with coal mining
have the potential to contribute high
concentrations of dissolved salts,
metals, and other solids that (1) elevate
stream conductivity (a measure of
electrical conductance in the water
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column that increases as the
concentration of dissolved solids
increases), (2) increase sulfates (a
common dissolved ion with empirical
formula of SO4¥2), and (3) cause wide
fluctuations in stream pH (a measure of
the acidity or alkalinity of water) (Curtis
1973, pp. 153–155; Dyer and Curtis
1977, pp. 10–13; Dyer 1982, pp. 1–16;
Hren et al. 1984, pp. 5–34; USEPA 2003,
pp. 77–84; Hartman et al. 2005, p. 95;
Pond et al. 2008, pp. 721–723; Palmer
et al. 2010, pp. 148–149; USEPA 2011,
pp. 27–44). The coal mining process
also results in leaching of metals and
other dissolved solids that can result in
elevated conductivity, sulfates, and
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hardness in the receiving stream. Stream
conductivity in mined watersheds can
be significantly higher compared to
unmined watersheds, and conductivity
values can remain high for decades
(Merricks et al. 2007, pp. 365–373;
Johnson et al. 2010, pp. 1–2).
Elevated levels of metals and other
dissolved solids (i.e., elevated
conductivity) in Appalachian streams
have been shown to negatively impact
biological communities, including
losses of mayfly and caddisfly taxa
(Chambers and Messinger 2001, pp. 34–
51; Pond 2004, p. 7; Hartman et al. 2005,
p. 95; Pond et al. 2008, pp. 721–723;
Pond 2010, pp. 189–198), reduced
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Federal Register / Vol. 81, No. 193 / Wednesday, October 5, 2016 / Rules and Regulations
occupancy and conditional abundance
of salamanders (Price et al. 2015, pp. 6–
9), and decreases in fish diversity
(Kuehne 1962, pp. 608–614; Branson
and Batch 1972, pp. 507–512; Branson
and Batch 1974, pp. 81–83; Stauffer and
Ferreri 2002, pp. 11–21; Fulk et al. 2003,
pp. 55–64; Mattingly et al. 2005, pp. 59–
62; Thomas 2008, pp. 1–9; Service 2012,
pp. 1–4; Black et al. 2013, pp. 34–45;
Hitt 2014, pp. 5–7, 11–13; Hitt and
Chambers 2014, pp. 919–924; Daniel et
al. 2015, pp. 50–61; Hitt et al. 2016, pp.
46–52).
There is a pattern of increasing
conductivity and loss of arrow darter
populations that is evident in the fish
and water quality data from the
Buckhorn Creek basin (1962 to present)
in Breathitt and Knott Counties.
Kentucky arrow darters tend to be less
abundant in streams with elevated
conductivity levels (Service 2012, pp.
1–4; Service 2013, p. 9), and are
typically excluded from these streams as
conductivity increases (Branson and
Batch 1972, pp. 507–512; Branson and
Batch 1974, pp. 81–83; Thomas 2008,
pp. 3–6). Recent range-wide surveys of
historical sites by Thomas (2008, pp. 3–
6) and the Service (2012, pp. 1–4)
demonstrated that Kentucky arrow
darters are excluded from watersheds
when conductivity levels exceed about
250 mS/cm. The species was observed at
only two historical sites where
conductivity values exceeded 250 mS/
cm, and average conductivity values
were much lower at sites where
Kentucky arrow darters were observed
(115 mS/cm) than at sites where the
species was not observed (689 mS/cm).
Hitt et al. (2016, entire) reported that
conductivity was a strong predictor of
Kentucky arrow darter abundance in the
upper Kentucky River drainage, and
sharp declines in abundance were
observed at 258 mS/cm (95 percent
confidence intervals of 155–590 mS/cm).
Based on the research presented in the
preamble to the proposed rule and
incorporated by reference here, we
believe it is clear that the overall
conductivity level is important in
determining the Kentucky arrow darter’s
presence and vulnerability, but the
species’ presence is more likely tied to
what individual metals or dissolved
solids (e.g., sulfate) are present.
Determination of discrete conductivity
thresholds or the mechanisms through
which the Kentucky arrow darter is
influenced will require additional study
(KSNPC 2010, p. 3; Pond 2015, pers.
comm.); however, conductivity
thresholds have been evaluated for other
aquatic species. Elevated specific
conductance has been positively
correlated with decreased
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macroinvertebrate abundance (Pond et
al. 2008, pp. 725–726; Pond 2012, p.
111), and Johnson et al. (2015, pp. 170–
171) showed that daily growth rates and
development of a mayfly (Neocleon
triagnulifer) declined with increasing
ionic concentrations. Increased levels of
specific conductance have been shown
to influence the behavior (Karraker et al.
2008, pp. 728–732) and corticosterone
levels (a hormone secreted by the
adrenal cortex that regulates energy,
immune reactions, and stress responses)
of amphibians (Chambers 2011, pp.
220–222). Embryonic and larval survival
of amphibians were reduced
significantly at moderate (500 mS/cm)
and high (3,000 mS/cm) specific
conductance levels (Karraker et al. 2008,
pp. 728–732).
Mine drainage can also cause
chemical (and some physical) effects to
streams as a result of the precipitation
of entrained metals and sulfate, which
become unstable in solution (USEPA
2003, pp. 24–65; Pond 2004, p. 7).
Precipitants accumulate on substrates,
encrusting and cementing stream
sediments, making them unsuitable for
colonization by invertebrates and
rendering them unsuitable as foraging or
spawning habitat for the Kentucky
arrow darter.
Oil and gas exploration and drilling
activities represent another significant
source of harmful pollutants in the
upper Kentucky River basin (KDOW
2013a, pp. 189–214). Once used, fluid
wastes containing chemicals used in the
drilling and fracking process (e.g.,
hydrochloric acid, surfactants,
potassium chloride) are stored in open
pits (retention basins) or trucked away
to treatment plants or some other
storage facility. If spills occur during
transport or releases occur due to
retention basin failure or overflow, there
is a risk for surface and groundwater
contamination. Any such release can
cause significant adverse effects to water
quality and aquatic organisms that
inhabit these watersheds (Wiseman
2009, pp. 127–142; Kargbo et al. 2010,
pp. 5,680–5,681; Osborn et al. 2011, pp.
8,172–8,176; Papoulias and Velasco
2013, pp. 92–111).
Other nonpoint-source pollutants
common within the upper Kentucky
River drainage with potential to affect
the Kentucky arrow darter include
domestic sewage (through septic tank
leakage or straight pipe discharges) and
agricultural pollutants such as animal
waste, fertilizers, pesticides, and
herbicides (KDOW 2013a, pp. 189–214).
Nonpoint-source pollutants can cause
increased levels of nitrogen and
phosphorus, excessive algal growths,
oxygen deficiencies, and other changes
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68977
in water chemistry that can seriously
impact aquatic species (KDOW 2010,
pp. 70–84; KDOW 2013a, pp. 189–214;
KDOW 2013b, pp. 88–94). Nonpointsource pollution may be correlated with
impervious surfaces and storm water
runoff (Allan 2004, pp. 266–267) and
include sediments, fertilizers,
herbicides, pesticides, animal wastes,
septic tank and gray water leakage,
pharmaceuticals, and petroleum
products.
Physical Habitat Disturbance
Sedimentation (siltation) has been
listed repeatedly by KDOW as the most
common stressor of aquatic
communities in the upper Kentucky
River basin (KDOW 2010, pp. 70–84;
KDOW 2013a, pp. 189–214; KDOW
2013b, pp. 88–94). Sedimentation comes
from a variety of sources, but KDOW
identified the primary sources of
sediment as loss of riparian habitat,
surface coal mining, legacy coal
extraction, logging, and land
development (KDOW 2010, pp. 70–84;
KDOW 2013b, pp. 88–94). All of these
activities can result in canopy removal,
channel disturbance, and increased
siltation, thereby degrading habitats
used by Kentucky arrow darters for both
feeding and reproduction.
Resource extraction activities (e.g.,
surface coal mining, legacy coal
extraction, logging, oil and gas
exploration and drilling) are major
sources of sedimentation in streams
(Paybins et al. 2000, p. 1; Wiley et al.
2001, pp. 1–16; KDOW 2013a, pp. 189–
214). Similarly, logging activities can
adversely affect Kentucky arrow darters
and other fishes through removal of
riparian vegetation, direct channel
disturbance, and sedimentation of
instream habitats (Allan and Castillo
2007, pp. 332–333). Stormwater runoff
from unpaved roads, ATV trails, and
driveways represents a significant but
difficult to quantify source of sediment
that impacts streams in the upper
Kentucky River basin.
Sediment has been shown to damage
and suffocate fish gills and eggs, larval
fishes, bottom-dwelling algae, and other
organisms; reduce aquatic insect
diversity and abundance; and,
ultimately, negatively impact fish
growth, survival, and reproduction
(Berkman and Rabeni 1987, pp. 285–
294; Waters 1995, pp. 5–7; Wood and
Armitage 1997, pp. 211–212; Meyer and
Sutherland 2005, pp. 2–3).
Invasion of Hemlock Wooly Adelgid
The hemlock woolly adelgid (Adelges
tsugae), an aphid-like insect native to
Asia, represents a potential threat to the
Kentucky arrow darter because it has
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the potential to severely damage stands
of eastern hemlocks (Tsuga canadensis)
that occur within the species’ range.
Loss of hemlocks along Kentucky arrow
darter streams has the potential to result
in increased solar exposure and
subsequent elevated stream
temperatures, bank erosion, and
excessive inputs of woody debris that
will clog streams and cause channel
instability and erosion (Townsend and
Rieske-Kinney 2009, pp. 1–3). We
expect these impacts to occur in some
Kentucky arrow darter watersheds;
however, we do not believe these
impacts will be widespread or severe
because eastern hemlocks are not
abundant in all portions of the Kentucky
arrow darter’s range, and even where
hemlocks are more common, we expect
them to be replaced by other tree
species.
In summary, habitat loss and
modification represent threats to the
Kentucky arrow darter. Severe
degradation from contaminants,
sedimentation, and physical habitat
disturbance have contributed to
extirpations of Kentucky arrow darter
populations, and these threats continue
to impact water quality and habitat
conditions across the species’ range.
Contaminants associated with surface
coal mining (metals, other dissolved
solids), domestic sewage (bacteria,
nutrients), and agriculture (fertilizers,
pesticides, herbicides, and animal
waste) cause degradation of water
quality and habitats through increased
conductivity and sulfates, instream
oxygen deficiencies, excess
nutrification, and excessive algal
growths. Sedimentation from surface
coal mining, logging, agriculture, and
land development negatively affect the
Kentucky arrow darter by burying or
covering instream habitats used by the
species for foraging, reproduction, and
sheltering. These impacts can cause
reductions in growth rates, disease
tolerance, and gill function; reductions
in spawning habitat, reproductive
success, and egg, larval, and juvenile
development; modifications of
migration patterns; decreased food
availability through reductions in prey;
and reduction of foraging efficiency.
Furthermore, these threats faced by the
Kentucky arrow darter are the result of
ongoing land uses that are expected to
continue indefinitely.
Factor B: Overutilization for
Commercial, Recreational, Scientific, or
Educational Purposes
The Kentucky arrow darter is not
believed to be utilized for commercial,
recreational, scientific, or educational
purposes. Individuals may be collected
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occasionally in minnow traps by
recreational anglers and used as live
bait, but we believe these activities are
practiced infrequently and do not
represent a threat to the species. Our
review of the available information does
not indicate that overutilization is a
threat to the Kentucky arrow darter now
or likely to become so in the future.
Factor C: Disease or Predation
No specific information is available
suggesting that disease is a threat to the
Kentucky arrow darter; however, in
marginal Kentucky arrow darter streams
(those with impacts from industrial or
residential development), the
occurrence of sewage-bacteria
(Sphaerotilus) may a pose a threat with
respect to fish condition and health
(Pond 2015, pers. comm.). These
bacteria are prevalent in many eastern
Kentucky streams where straight-pipe
sewage discharges exist and can often
affect other freshwater organisms. The
presence of these bacteria could also
indicate the presence of other
pathogens. Gill and body parasites such
as flukes (flatworms) and nematodes
(roundworms) have been noted in other
species of Etheostoma (Page and
Mayden 1981, p. 8), but it is unknown
if these parasites infest or harm the
Kentucky arrow darter.
Although the Kentucky arrow darter
is undoubtedly consumed by native
predators (e.g., fishes, amphibians, and
birds), this predation is naturally
occurring and a normal aspect of the
species’ population dynamics.
Nonnative rainbow trout
(Oncorhynchus mykiss) represent a
potential predation threat (Etnier and
Starnes 1993, p. 346) in one Kentucky
arrow darter stream, Big Double Creek
(Clay County), because KDFWR stocks
up to 1,000 trout annually in the stream,
with releases occurring in March, April,
May, and October. To assess the
potential predation of rainbow trout on
Kentucky arrow darters or other fishes,
the Service and DBNF surveyed a 2.1km (1.3-mile) reach of Big Double Creek
on April 21, 2014, which was 17 days
after KDFWR’s April stocking event (250
trout). A total of seven rainbow trout
were captured, and the gut contents of
these individuals were examined. Food
items were dominated by
Ephemeroptera (mayflies), with lesser
amounts of Plecoptera (stoneflies),
Trichoptera (caddisflies), Diptera (flies),
Decapoda (crayfish), and terrestrial
Coleoptera (beetles). No fish remains
were observed. Based on all these
factors and the absence of rainbow trout
from the majority (98 percent) of
Kentucky arrow darter streams
demonstrates that predation by
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nonnative rainbow trout does not pose
a threat to the species.
In short, our review of available
information indicates that neither
disease nor predation is currently a
threat to the species or likely to become
a threat to the Kentucky arrow darter in
the future.
Factor D: The Inadequacy of Existing
Regulatory Mechanisms
The Kentucky arrow darter has been
identified as a threatened species within
Kentucky (KSNPC 2014, p. 40), but this
State designation conveys no legal
protection for the species or its habitat.
Kentucky law prohibits the collection of
the Kentucky arrow darter (or other
fishes) for scientific purposes without a
valid State-issued collecting permit
(Kentucky Revised Statutes (KRS) sec.
150.183). Kentucky regulations (301
KAR 1:130, sec. 1(3)) also allow persons
who hold a valid Kentucky fishing
license (obtained from KDFWR) to
collect up to 500 minnows per day (a
minnow is defined as any nongame fish
less than 6 inches in length, with the
exception of federally listed species).
These existing regulatory mechanisms
provide some protections for the
species.
Streams within UK’s Robinson Forest
(Coles Fork, Snag Ridge Fork, and
Clemons Fork) are currently protected
from the effects of surface coal mining
due to a 1990 ‘‘lands unsuitable for
mining’’ designation (405 KAR 24:040).
Streams within Robinson Forest (e.g.,
Clemons Fork and Coles Fork) are also
protected from general disturbance by
management guidelines approved by the
UK’s Board of Trustees in 2004 (Stringer
2015, pers. comm.). These guidelines
provide general land use allocations,
sustainable allowances for active
research and demonstration projects
involving overstory manipulation,
allocations of net revenues from
research and demonstration activities,
and management and oversight
responsibilities (Stringer 2015, pers.
comm.). Under these guidelines, public
access to Robinson Forest is controlled
and potential impacts from such
activities as recreational ATV use are
avoided.
A significant portion (about 47
percent) of the species’ remaining
populations are located on the DBNF
and receive management and protection
through DBNF’s land and resource
management plan (LRMP) (USFS 2004,
pp. 7–16) and a recently signed CCA
between the DBNF and the Service (see
Comment and Response #20 in the
Summary of Comments and
Recommendations section). Both of
these documents contain conservation
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measures and protective standards that
are intended to conserve the Kentucky
arrow darter on the DBNF. Populations
within the DBNF have benefited from
management goals, objectives, and
protective standards included in the
LRMP. Collectively, these streams
contain some of the best remaining
habitats for the species and support
some of the species’ most robust
populations.
The Kentucky arrow darter and its
habitats are afforded some protection
from water quality and habitat
degradation under the Federal Water
Pollution Control Act of 1977,
commonly referred to as the Clean
Water Act (33 U.S.C. 1251 et seq.); the
Federal Surface Mining Control and
Reclamation Act (SMCRA) (30 U.S.C.
1201 et seq.) of 1977; Kentucky’s Forest
Conservation Act of 1998 (KRS secs.
149.330–355); Kentucky’s Agriculture
Water Quality Act of 1994 (KRS secs.
224.71–140); and additional Kentucky
laws and regulations regarding natural
resources and environmental protection
(KRS secs. 146.200–360; KRS sec. 224;
401 KAR secs. 5:026, 5:031). While
these laws have undoubtedly resulted in
some improvements in water quality
and stream habitat for aquatic life,
including the Kentucky arrow darter,
sedimentation and other nonpointsource pollutants continue to pose a
threat to the species.
The KDOW has not established total
maximum daily load (TMDLs) pursuant
to the Clean Water Act for identified
pollutants within portions of the upper
Kentucky River basin historically
occupied by the Kentucky arrow darter.
TMDLs do not address chemical
pollutants or sedimentation of aquatic
habitats. The Service is also not aware
of any other current or future changes to
State or Federal water quality or mining
laws that will substantially address the
currently observed degradation of water
quality.
Despite the current laws to prevent
sediment and other pollutants from
entering waterways, nonpoint-source
pollution, originating from mine sites,
unpaved roads, ATV trails, driveways,
logging skid trails, and other disturbed
habitats is considered to be a continuing
threat to Kentucky arrow darter habitats.
Kentucky State laws and regulations
regarding oil and gas drilling are
generally designed to protect freshwater resources like the Kentucky arrow
darter’s habitat, but these regulatory
mechanisms do not contain specific
provisions requiring an analysis of
project impacts to fish and wildlife
resources (Kentucky Division of Oil and
Gas et al. 2012, entire). Current
regulations also do not contain or
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provide any formal mechanism
requiring coordination with, or input
from, the Service or the KDOW
regarding the presence of federally
endangered, threatened, or candidate
species, or other rare and sensitive
species.
In July of 2015, the Office of Surface
Mining Reclamation and Enforcement
published in the Federal Register a
notice of availability for a draft
environmental impact statement
regarding a proposed Stream Protection
Rule (80 FR 42535, July 17, 2015) and
the proposed Stream Protection Rule
itself (80 FR 44436, July 27, 2015). The
preamble for that proposed rule stated
that the rule would better protect
streams, fish, wildlife, and related
environmental values from the adverse
impacts of surface coal mining
operations and provide mine operators
with a regulatory framework to avoid
water pollution and the long-term costs
associated with water treatment (80 FR
44436, July 27, 2015; see SUMMARY).
While the OSM proposed rule may
provide benefits for the Kentucky arrow
darter in the future, until the rule is
finalized and implemented, we are
unable to evaluate its potential
effectiveness with regard to the
Kentucky arrow darter and its habitat.
In summary, degradation of habitat for
the Kentucky arrow darter is ongoing
despite existing regulatory mechanisms.
scour, drought), and other stochastic
´
disturbances (Soule 1980, pp. 157–158;
Hunter 2002, pp. 97–101; Allendorf and
Luikart 2007, pp. 117–146). Inbreeding
and loss of neutral genetic variation
associated with small population size
can further reduce the fitness of the
population (Reed and Frankham 2003,
pp. 230–237), subsequently accelerating
population decline (Fagan and Holmes
2006, pp. 51–60).
Species that are restricted in range
and population size are more likely to
suffer loss of genetic diversity due to
genetic drift, potentially increasing their
susceptibility to inbreeding depression,
decreasing their ability to adapt to
environmental changes, and reducing
´
the fitness of individuals (Soule 1980,
pp. 157–158; Hunter 2002, pp. 97–101;
Allendorf and Luikart 2007, pp. 117–
146). It is likely that some of the
Kentucky arrow darter populations are
below the effective population size
required to maintain long-term genetic
´
and population viability (Soule 1980,
pp. 162–164; Hunter 2002, pp. 105–
107). 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). These separate
populations are essential for the species
to recover and adapt to environmental
change (Noss and Cooperrider 1994, pp.
264–297; Harris 1984, pp. 93–104).
Factor E: Other Natural or Manmade
Factors Affecting Its Continued
Existence
Climate Change
The Intergovernmental Panel on
Climate Change (IPCC) concluded that
warming of the climate system is
unequivocal (IPCC 2014, p. 3). Species
that are dependent on specialized
habitat types, limited in distribution, or
at the extreme periphery of their range
may be most susceptible to the impacts
of climate change (see 75 FR 48911,
August 12, 2010); however, while
continued change is certain, the
magnitude and rate of change is
unknown in many cases.
Climate change has the potential to
increase the vulnerability of the
Kentucky arrow darter to random
catastrophic events (McLaughlin et al.
2002, pp. 6060–6074; Thomas et al.
2004, pp. 145–148) associated with an
expected increase in both severity and
variation in climate patterns with
extreme floods, strong storms, and
droughts becoming more common (Cook
et al. 2004, pp. 1015–1018; Ford et al.
2011, p. 2065; IPCC 2014, pp. 58–83).
Estimates of the effects of climate
change using available climate models
typically lack the geographic precision
needed to predict the magnitude of
effects at a scale small enough to
discretely apply to the range of a given
Restricted Range and Population Size
The disjunct nature of some Kentucky
arrow darter populations (figures 2 and
3, above) likely restricts the natural
exchange of genetic material between
populations and could make natural
repopulation following localized
extirpations of the species unlikely
without human intervention.
Populations can be further isolated by
anthropogenic barriers, such as dams,
perched culverts, and fords, which can
limit natural dispersal and restrict or
eliminate connectivity among
populations (Eisenhour and Floyd 2013,
pp. 82–83). Such dispersal barriers can
prevent reestablishment of Kentucky
arrow populations in reaches where
they suffer localized extinctions due to
natural or human-caused events. The
localized nature and small size of many
populations also likely makes them
vulnerable to extirpation from
intentional or accidental toxic chemical
spills, habitat modification, progressive
degradation from runoff (nonpointsource pollutants), natural catastrophic
changes to their habitat (e.g., flood
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species. However, data on recent trends
and predicted changes for Kentucky
(Girvetz et al. 2009, pp. 1–19), and,
more specifically, the upper Kentucky
River drainage (Alder and Hostetler
2013, entire), provide some insight for
evaluating the potential threat of climate
change to the Kentucky arrow darter.
These models provide estimates of
average annual increases in maximum
and minimum temperature,
precipitation, snowfall, and other
variables.
There is uncertainty about the specific
effects of climate change (and their
magnitude) on the Kentucky arrow
darter; however, climate change is
almost certain to affect aquatic habitats
in the upper Kentucky River drainage of
Kentucky through increased water
temperatures and more frequent
droughts (Alder and Hostetler 2013,
entire), and species with limited ranges,
fragmented distributions, and small
population size are thought to be
especially vulnerable to the effects of
climate change (Byers and Norris 2011,
p. 18). Thus, we consider climate
change to be a threat to the Kentucky
arrow darter.
In summary, we have determined that
other natural and manmade factors,
such as geographical isolation, small
population size, and climate change, are
threats to remaining populations of the
Kentucky arrow darter across its range.
The severity of these threats is high
because of the species’ reduced range
and population size, which result in a
reduced ability to adapt to
environmental change. Further, our
review of the best available scientific
and commercial information indicates
that these threats are likely to continue
or increase in the future.
Determination
We have carefully assessed the best
scientific and commercial information
available regarding the past, present,
and future threats to the Kentucky arrow
darter. As described in detail above, the
Kentucky arrow darter has been
extirpated from about 49 percent of its
historical range (36 of 74 historical
streams), 16 of these extirpations have
occurred since the mid-1990s,
populations in nearly half of the
species’ occupied streams are ranked as
vulnerable (see table 1, above), and
remaining populations are fragmented
and isolated. Despite existing regulatory
mechanisms (Factor D) and
conservation efforts, the species
continues to be at risk throughout all of
its range due to the immediacy, severity,
and scope of threats from habitat
degradation and range curtailment
(Factor A and other natural or manmade
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factors affecting its continued existence
(Factor E).
Anthropogenic activities such as
surface coal mining, logging, oil/gas
development, land development,
agriculture, and inadequate sewage
treatment have all contributed to the
degradation of stream habitats within
the species’ range (Factor A). These land
use activities have led to chemical and
physical changes to stream habitats that
continue to affect the species. Specific
stressors include inputs of dissolved
solids and elevation of instream
conductivity, sedimentation/siltation of
stream substrates, turbidity, and inputs
of nutrients and organic enrichment.
These high-magnitude stressors,
especially the inputs of dissolved solids
and sedimentation, have had profound
negative effects on Kentucky arrow
darter populations and have been the
primary factor in the species’ decline.
Existing regulatory mechanisms (e.g.,
the Clean Water Act) have provided for
some improvements in water quality
and habitat conditions across the
species’ range; however, recent
extirpations have occurred (16 streams
since the 1990s), and 21 streams within
the species’ historical range have been
added to Kentucky’s 303(d) list of
impaired streams. The Kentucky arrow
darter’s vulnerability to these threats is
even greater due to its reduced range,
fragmented populations, and small or
declining population sizes (Factor E)
(Primack 2012, pp. 146–150). The
effects of certain threats, particularly
habitat degradation and loss, increase in
magnitude when population size is
small (Primack 2012, pp. 150–152).
The Act defines an endangered
species as any species that is ‘‘in danger
of extinction throughout all or a
significant portion of its range’’ and a
threatened species as any species ‘‘that
is likely to become endangered
throughout all or a significant portion of
its range within the foreseeable future.’’
We find that the Kentucky arrow darter
meets the definition of a threatened
species based on the immediacy,
severity, and scope of the threats
identified above. The species’ overall
range has been reduced substantially,
most of the species’ historical habitat
has been degraded, and much of the
remaining habitat exists primarily in
fragmented patches. Despite existing
regulatory mechanisms and
conservation efforts, current Kentucky
arrow darter habitats continue to be lost
or degraded due to surface coal mining,
logging, oil/gas development, land
development, agriculture, and
inadequate sewage treatment, and it
appears this trend will continue in the
future. Extant populations are known
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from 47 streams, but these populations
continue to be threatened by small
population size, isolation,
fragmentation, climate change, and the
habitat degradation summarized above.
All of these factors make the species
particularly susceptible to extinction in
the future.
We find that endangered status is not
appropriate for the Kentucky arrow
darter because we do not consider the
species’ threats to be so severe that
extinction is imminent. Although
threats to the species are ongoing, often
severe, and occurring across the range,
populations continue to occupy 47
scattered streams, 23 of which appear to
support stable populations (see table 1,
above). Additionally, a significant
number of extant Kentucky arrow darter
populations (49 percent) occur
primarily on public lands (i.e., DBNF
and Robinson Forest) that are at least
partially managed to protect habitats
used by the species. For example, the
CCA with the U.S. Forest Service
(USFS) for DBNF should provide an
elevated level of focused management
and conservation for portions of 20
streams that support populations of the
Kentucky arrow darter. Based on all
these factors, the Kentucky arrow darter
does not meet the definition of an
endangered species. Therefore, on the
basis of the best available scientific and
commercial information, we are listing
the Kentucky arrow darter as a
threatened species in accordance with
sections 3(19) and 4(a)(1) of the Act.
Under the Act and our implementing
regulations, a species may warrant
listing if it is an endangered or
threatened species throughout all or a
significant portion of its range. Because
we have determined that the Kentucky
arrow darter is a threatened species
throughout all of its range, no portion of
its range can be ‘‘significant’’ for
purposes of the definitions of
‘‘endangered species’’ and ‘‘threatened
species.’’ See the Final Policy on
Interpretation of the Phrase ‘‘Significant
Portion of Its Range’’ in the Endangered
Species Act’s Definitions of
‘‘Endangered Species’’ and ‘‘Threatened
Species’’ (79 FR 37577, July 1, 2014).
Available Conservation Measures
Conservation measures provided to
species listed as endangered or
threatened under the Act include
recognition, recovery actions,
requirements for Federal protection, and
prohibitions against certain practices.
Recognition through listing results in
public awareness and conservation by
Federal, State, Tribal, and local
agencies; private organizations; and
individuals. The Act encourages
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cooperation with the States and calls for
recovery actions to be carried out for
listed species. The protection required
by Federal agencies and the prohibitions
against certain activities are discussed,
in part, below.
The primary purpose of the Act is the
conservation of endangered and
threatened species and the ecosystems
upon which they depend. The ultimate
goal of such conservation efforts is the
recovery of these listed species, so that
they no longer need the protective
measures of the Act. Subsection 4(f) of
the Act calls for the Service to develop
and implement recovery plans for the
conservation of endangered and
threatened species. The recovery
planning process involves the
identification of actions that are
necessary to halt or reverse the species’
decline by addressing the threats to its
survival and recovery. The goal of this
process is to restore listed species to a
point where they are secure, selfsustaining, and functioning components
of their ecosystems.
Recovery planning includes the
development of a recovery outline
shortly after a species is listed and
preparation of a draft and final recovery
plan. The recovery outline guides the
immediate implementation of urgent
recovery actions and describes the
process to be used to develop a recovery
plan. The plan may be revised to
address continuing or new threats to the
species, as new substantive information
becomes available. The recovery plan
also identifies recovery criteria for
review of when a species may be ready
for reclassification from endangered to
threatened or for delisting and methods
for monitoring recovery progress.
Recovery plans also establish a
framework for agencies to coordinate
their recovery efforts and provide
estimates of the cost of implementing
recovery tasks. Recovery teams
(composed of species experts, Federal
and State agencies, nongovernmental
organizations, and stakeholders) are
often established to develop recovery
plans. When completed, the recovery
outline, draft recovery plan, and the
final recovery plan will be available on
our Web site (https://www.fws.gov/
endangered), or from our Kentucky
Ecological Services Field Office (see FOR
FURTHER INFORMATION CONTACT).
Implementation of recovery actions
generally requires the participation of a
broad range of partners, including other
Federal agencies, States, Tribes,
nongovernmental organizations,
businesses, and private landowners.
Examples of recovery actions include
habitat restoration (e.g., restoration of
native vegetation), research, captive
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propagation and reintroduction, and
outreach and education. The recovery of
many listed species cannot be
accomplished solely on Federal lands
because their range may occur primarily
or solely on non-Federal lands. To
achieve recovery of these species
requires cooperative conservation efforts
on private, State, and Tribal lands.
Following publication of this final
rule, funding for recovery actions will
be available from a variety of sources,
including Federal budgets, State
programs, and cost-share grants for nonFederal landowners, the academic
community, and nongovernmental
organizations. In addition, pursuant to
section 6 of the Act, the State of
Kentucky would be eligible for Federal
funds to implement management
actions that promote the protection or
recovery of the Kentucky arrow darter.
Information on our grant programs that
are available to aid species recovery can
be found at: https://www.fws.gov/grants.
Please let us know if you are
interested in participating in recovery
efforts for the Kentucky arrow darter.
Additionally, we invite you to submit
any new information on this species
whenever it becomes available and any
information you may have for recovery
planning purposes (see FOR FURTHER
INFORMATION CONTACT).
Section 7(a) of the Act requires
Federal agencies to evaluate their
actions with respect to any species that
is listed as an endangered or threatened
species and with respect to its critical
habitat, if any is designated. Regulations
implementing this interagency
cooperation provision of the Act are
codified at 50 CFR part 402. Section
7(a)(2) of the Act requires Federal
agencies to ensure that activities they
authorize, fund, or carry out are not
likely to jeopardize the continued
existence of the species or destroy or
adversely modify its critical habitat. If a
Federal action may affect a listed
species or its critical habitat, the
responsible Federal agency must enter
into consultation with the Service.
Federal agency actions within the
species’ habitat that may require
consultation as described in the
preceding paragraph include
management and any other landscapealtering activities on Federal lands
administered by the USFS; issuance of
section 404 Clean Water Act permits by
the U.S. Army Corps of Engineers;
construction and maintenance of gas
pipeline and power line rights-of-way
by the Federal Energy Regulatory
Commission; USEPA pesticide
registration; construction and
maintenance of roads or highways by
the Federal Highway Administration;
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and projects funded through Federal
loan programs, which may include, but
are not limited to, roads and bridges,
utilities, recreation sites, and other
forms of development.
The Service, in cooperation with
KDFWR, KSNPC, the U.S. Geological
Survey (USGS), KDOW, DBNF, CFI, and
The Appalachian Wildlife Foundation,
Inc., completed a conservation strategy
for the Kentucky arrow darter in 2014
(Service 2014, entire). The strategy was
developed as a guidance document that
would assist the Service and its partners
in their conservation efforts for the
species. The strategy is divided into four
major sections: (1) Biology and status,
(2) listing factors/current threats, (3)
current conservation efforts, and (4)
conservation objectives/actions. The
strategy’s first conservation objective
addresses current informational needs
on the species’ biology, ecology,
viability, and survey methods, while the
remaining three conservation objectives
address specific threats facing the
species (Factors A and E, respectively).
Several conservation efforts have been
completed or are ongoing for the
Kentucky arrow darter, and some of
these efforts have been described
previously in this listing determination.
Previously mentioned efforts include
the development of a CCA with the
USFS (see Public Comments, Comment
20), a propagation and reintroduction
study by KDFWR and CFI (see
Background—Habitat and Life History),
field investigations to determine the
predatory risk posed by nonnative trout
(see Factor C: Disease or Predation), and
a movement and ecological study by
EKU, KDFWR, and the Service (Baxter
2015, entire). Other important
conservation actions include studies on
the species’ distribution, status, and
population size; movement and
microhabitat characteristics; genetics;
and response to changes in water
quality (e.g., conductivity). Details of
these efforts are provided below.
In 2013, KSNPC and the Service
initiated a study to investigate the
distribution, status, population size, and
habitat use of the Kentucky arrow darter
within the upper Kentucky River basin.
One important aspect of the study was
to account for imperfect detection when
surveying for the species. Studies that
do not account for imperfect detection
can often lead to an underestimation of
the true proportion of sites occupied by
a species and can bias assessments and
sampling efforts (MacKenzie et al. 2002,
entire; MacKenzie et al. 2005, entire).
From June to September 2013, KSNPC
and the Service visited 80 randomly
chosen sites (ranging from first- to thirdorder) across the upper Kentucky River
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basin in order to address these concerns
and meet project objectives. As
expected, Kentucky arrow darters were
rare during the study and were observed
at only 7 of the 80 sites, including two
new localities (Granny Dismal Creek in
Owsley County and Spring Fork
Quicksand Creek in Breathitt County)
and one historical stream (Hunting
Creek, Breathitt County) where the
species was not observed during status
surveys by Thomas (2008, pp. 1–33) and
the Service (2012, pp. 1–4). Presently,
KSNPC and the Service are in the data
analysis stage of this project.
In July 2013, EKU, the Service, and
KSNPC initiated a population estimate
and microhabitat characterization study
on Clemons Fork, Breathitt County. The
study was designed to estimate the
Kentucky arrow darter’s current
population size and average density
within Clemons Fork and to compare
current densities with historical
densities reported by Lotrich (1973).
Additionally, population densities and
habitat parameters will be compared to
data from Gilberts Big Creek and Elisha
Creek (both DBNF) to aid in delineation
of essential habitat characteristics and
development and implementation of
conservation efforts. Field surveys were
completed in August 2013. Data
analyses are incomplete, but initial
results include a mean density of 9.69
Kentucky arrow darters per sampling
reach and a population estimate of 986
to 2,113 darters in Clemons Fork (95
percent confidence intervals).
Preliminary findings of this study were
presented at the 2013 Southeastern
Fishes Council Meeting, Lake
Guntersville, Alabama (November 14–
15, 2013).
Austin Peay State University is
currently working with KDFWR and the
Service on the first comprehensive
assessment of genetic variation and gene
flow patterns across the range of the
Kentucky arrow darter (Johansen et al.
2013, pp. 1–3). Approximately 25
individuals per population from up to
12 populations across the range of the
species will be genotyped using
microsatellite markers. Resulting data
will be used to generate robust estimates
of effective population sizes and overall
population and species’ variability. This
information is essential to the
development of effective conservation
and recovery measures to ensure the
long-term persistence of the species.
Funding for this project is being
provided through the Service’s section 6
program.
Through Service-USGS Quick
Response funding, the USGS Leetown
Science Center evaluated the
relationship between Kentucky arrow
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darter abundance and stream
conductivity in the upper Kentucky
River basin (Hitt 2014, entire).
Nonlinear regression techniques were
used to evaluate significant thresholds
and associated confidence intervals for
Kentucky arrow darter abundance
related to conductivity levels. As a
contrast to Kentucky arrow darter, Dr.
Hitt also evaluated blackside dace
occurrence in this regard. Data for the
study were supplied by the Service’s
Kentucky and Tennessee field offices,
KDFWR, and KSNPC. Nonlinear
regressions indicated a distinct decline
in Kentucky arrow darter abundance at
258 mS/cm (95 percent confidence
intervals 155–590 mS/cm), above which
abundances were negligible. Nonlinear
threshold declines for blackside dace
were observed at 343 mS/cm, and 95
percent confidence intervals bounded
this relationship between 123–632 mS/
cm. Boosted regression results indicated
that stream conductivity was the
strongest predictor in separate analyses
of Kentucky arrow darter and blackside
dace abundance. Hitt (2014, pp. 7–8)
concluded that the similar responses of
these ecologically distinct taxa suggest
the general importance of this water
quality attribute for stream fish ecology
in central Appalachia.
4(d) Rule
Under section 4(d) of the Act, the
Service has discretion to issue
regulations that we find necessary and
advisable to provide for the
conservation of threatened wildlife. We
may also prohibit by regulation, with
respect to threatened wildlife, any act
that is prohibited by section 9(a)(1) of
the Act for endangered wildlife.
Exercising this discretion, the Service
has developed general prohibitions that
are appropriate for most threatened
species at 50 CFR 17.31 and exceptions
to those prohibitions at 50 CFR 17.32.
While most of the prohibitions of
§§ 17.31 and 17.32 are appropriate for
the Kentucky arrow darter, we find that
some activities that would normally be
prohibited under §§ 17.31 and 17.32 are
necessary for the conservation of this
species because the species could
benefit from habitat improvements in
first- to third-order streams that are
physically degraded (e.g., unstable
stream channels, eroding banks, no
canopy cover). Therefore, the Service
has determined that a species-specific
section 4(d) rule is appropriate to
promote the conservation of the
Kentucky arrow darter. As discussed in
the Summary of Factors Affecting the
Species section of this rule, the primary
threat to the species is the continuing
loss and degradation of habitat. Physical
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habitat degradation is widespread
within the species’ range, and sediment
has been identified as the most common
stressor (KDOW 2013a, pp. 189–214;
KDOW 2013b, pp. 88–94).
Sedimentation may originate from areas
outside of the stream channel as a result
of land use activities associated with
surface coal mining, legacy coal
extraction, logging, land development,
channel relocations, and riparian
clearing. All of these activities can cause
sedimentation, but they may also lead to
canopy removal, clearing of riparian
vegetation, and elevation of stream
temperatures, thereby degrading
habitats used by Kentucky arrow darters
for feeding, sheltering, and
reproduction. Sedimentation may also
originate from areas within the stream
channel as a result of channel instability
and bank or stream bed erosion.
Numerous streams within the species’
current range have been identified as
impaired (primarily due to siltation) and
have been included on Kentucky’s
303(d) list of impaired waters (see table
2, above). Activities such as stream
reconfiguration/riparian restoration,
bridge and culvert replacement or
removal, bank stabilization, and stream
crossing repair and maintenance that
follow the provisions of the speciesspecific 4(d) rule below will improve or
restore physical habitat quality for the
Kentucky arrow darter and will provide
an overall conservation benefit to the
species.
The 4(d) rule will not remove or alter
in any way the consultation requirement
under section 7 of the Act. However, we
expect the 4(d) rule to provide greater
certainty to Federal agencies and any
third parties (e.g., permit applicants) in
the consultation process for activities
conducted in accordance with the
provisions of the 4(d) rule. The
consultation process may be further
streamlined through programmatic
consultations between Federal agencies
and the Service for these activities.
Provisions of the 4(d) Rule
This 4(d) rule exempts from the
general prohibitions in 50 CFR 17.32
take that is incidental to the following
activities when conducted within
habitats currently occupied by the
Kentucky arrow darter. All of the
activities listed below must be
conducted in a manner that (1)
maintains connectivity of suitable
Kentucky arrow darter habitats,
allowing for dispersal between streams;
(2) minimizes instream disturbance by
conducting activities during low-flow
periods when possible; and (3)
maximizes the amount of instream cover
that is available for the species:
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(1) Channel reconfiguration or
restoration projects that create natural,
physically stable, ecologically
functioning streams (or stream and
wetland systems) that are reconnected
with their groundwater aquifers (Parola
and Biebighauser 2011, pp. 8–13; Parola
and Hansen 2011, pp. 2–7; Floyd et al.
2013, pp. 129–135). These projects can
be accomplished using a variety of
methods, but the desired outcome is a
natural, sinuous channel with low shear
stress (force of water moving against the
channel); low bank heights and
reconnection to the floodplain; a
reconnection of surface and
groundwater systems, resulting in
perennial flows in the channel; riffles
and pools composed of existing soil,
rock, and wood instead of large
imported materials; low compaction of
soils within adjacent riparian areas; and
inclusion of riparian wetlands. First- to
third-order, headwater streams
reconstructed in this way would offer
suitable habitats for the Kentucky arrow
darter and contain stable channel
features, such as pools, glides, runs, and
riffles, which could be used by the
species for spawning, rearing, growth,
feeding, migration, and other normal
behaviors.
(2) Bank stabilization projects that
utilize bioengineering methods outlined
by the Kentucky Energy and
Environment Cabinet and Kentucky
Transportation Cabinet (Kentucky
Environmental and Public Protection
Cabinet and Kentucky Transportation
Cabinet 2005, pp. 116–128) to replace
pre-existing, bare, eroding stream banks
with vegetated, stable stream banks,
thereby reducing bank erosion and
instream sedimentation and improving
habitat conditions for the species.
Following these methods, stream banks
may be stabilized using live stakes (live,
vegetative cuttings inserted or tamped
into the ground in a manner that allows
the stake to take root and grow), live
fascines (live branch cuttings, usually
willows, bound together into long, cigarshaped bundles), or brush layering
(cuttings or branches of easily rooted
tree species layered between successive
lifts of soil fill). These methods would
not include the sole use of quarried rock
(rip-rap) or the use of rock baskets or
gabion structures.
(3) Bridge and culvert replacement/
removal projects that remove migration
barriers (e.g., collapsing, blocked, or
perched culverts) or generally allow for
improved upstream and downstream
movements of Kentucky arrow darters
while maintaining normal stream flows,
preventing bed and bank erosion, and
improving habitat conditions for the
species.
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(4) Repair and maintenance of USFS
concrete plank stream crossings in the
DBNF that allow for safe vehicle passage
while maintaining instream habitats,
reducing bank and stream bed erosion
and instream sedimentation, and
improving habitat conditions for the
species. These concrete plank crossings
have been an effective stream crossing
structure in the DBNF and have been
used for decades. Over time, the planks
can be buried by sediment or undercut
during storm events, or simply break
down and decay. If these situations
occur, the DBNF must make repairs or
replace the affected plank.
We believe that these actions and
activities, while they may have some
minimal level of mortality, harm, or
disturbance to the Kentucky arrow
darter, are not expected to adversely
affect the species’ conservation and
recovery efforts. In fact, we believe that
they would have a net beneficial effect
on the species. Across the species’
range, instream habitats have been
degraded physically by sedimentation
and by direct channel disturbance. The
activities identified in this rule will
correct some of these problems, creating
more favorable habitat conditions for
the species.
Based on the rationale above, the
provisions included in this 4(d) rule are
necessary and advisable to provide for
the conservation of the Kentucky arrow
darter. Nothing in this 4(d) rule would
change in any way the recovery
planning provisions of section 4(f) of the
Act, the consultation requirements
under section 7 of the Act, or the ability
of the Service to enter into partnerships
for the management and protection of
the Kentucky arrow darter.
We may issue permits to carry out
otherwise prohibited activities
involving threatened wildlife under
certain circumstances. Regulations
governing permits are codified at 50
CFR 17.32. With regard to threatened
wildlife, a permit may be issued for
scientific purposes, to enhance the
propagation or survival of the species,
economic hardship, zoological
exhibition, educational purposes, and
for incidental take in connection with
otherwise lawful activities. There are
also certain statutory exemptions from
the prohibited activities, which are
found in sections 9 and 10 of the Act.
It is our policy, as published in the
Federal Register on July 1, 1994 (59 FR
34272), to identify to the maximum
extent practicable at the time a species
is listed, those activities that would or
would not constitute a violation of
section 9 of the Act (for this species,
those section 9 prohibitions adopted
through the 4(d) rule). The intent of this
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68983
policy is to increase public awareness of
the effect of a final listing on proposed
and ongoing activities within the range
of a listed species. Based on the best
available information, the following
actions are unlikely to result in a
violation of section 9, if these activities
are carried out in accordance with
existing regulations and permit
requirements, although this list is not
comprehensive:
(1) Normal agricultural and
silvicultural practices, including
herbicide and pesticide use, which are
carried out in accordance with any
existing regulations, permit and label
requirements, and best management
practices; and
(2) Surface coal mining and
reclamation activities conducted in
accordance with the 1996 BO between
the Service and OSM.
However, we believe the following
activities may potentially result in a
violation of section 9 of the Act,
although this list is not comprehensive:
(1) Unauthorized collecting or
handling of the species.
(2) Destruction or alteration of the
habitat of the Kentucky arrow darter
(e.g., unpermitted instream dredging,
impoundment, water diversion or
withdrawal, channelization, discharge
of fill material) that impairs essential
behaviors such as breeding, feeding, or
sheltering, or results in killing or
injuring a Kentucky arrow darter.
(3) Discharges or dumping of toxic
chemicals, contaminants, or other
pollutants into waters supporting the
Kentucky arrow darter that kills or
injures individuals, or otherwise
impairs essential life-sustaining
behaviors such as breeding, feeding, or
sheltering.
Questions regarding whether specific
activities would constitute a violation of
section 9 of the Act should be directed
to the Kentucky Ecological Services
Field Office (see FOR FURTHER
INFORMATION CONTACT).
Required Determinations
National Environmental Policy Act (42
U.S.C. 4321 et seq.)
We have determined that
environmental assessments and
environmental impact statements, as
defined under the authority of the
National Environmental Policy Act,
need not be prepared in connection
with listing a species as an endangered
or threatened species under the
Endangered Species Act. We published
a notice outlining our reasons for this
determination in the Federal Register
on October 25, 1983 (48 FR 49244).
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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
the 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
References Cited
A complete list of references cited in
this rulemaking is available on the
Internet at https://www.regulations.gov
in Docket No. FWS–R4–ES–2015–0132
and upon request from the Kentucky
Ecological Services Field Office (see FOR
FURTHER INFORMATION CONTACT).
Authors
The primary authors of this final rule
are the staff members of the Kentucky
Ecological Services Field Office.
List of Subjects in 50 CFR Part 17
Endangered and threatened species,
Exports, Imports, Reporting and
recordkeeping requirements,
Transportation.
Scientific
name
Common name
*
controls as Federal public lands, to
remain sensitive to Indian culture, and
to make information available to tribes.
No tribal lands or other interests are
affected by the rule.
*
Where
listed
Status
*
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—ENDANGERED AND
THREATENED WILDLIFE AND PLANTS
1. The authority citation for part 17
continues to read as follows:
■
Authority: 16 U.S.C. 1361–1407; 1531–
1544; and 4201–4245, unless otherwise
noted.
2. Amend § 17.11(h) by adding an
entry for ‘‘Darter, Kentucky arrow’’ to
the List of Endangered and Threatened
Wildlife in alphabetical order under
FISHES to read as set forth below:
■
§ 17.11 Endangered and threatened
wildlife.
*
*
*
(h) * * *
*
*
Listing citations and applicable rules
*
*
*
*
FISHES
*
*
Darter, Kentucky arrow ................
*
*
Etheostoma
spilotum.
*
3. Amend § 17.44 by adding paragraph
(p) to read as follows:
Special rules—fishes.
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*
*
*
*
*
(p) Kentucky arrow darter
(Etheostoma spilotum).
(1) Prohibitions. Except as noted in
paragraph (p)(2) of this section, all
prohibitions and provisions of 50 CFR
17.31 and 17.32 apply to the Kentucky
arrow darter.
(2) Exceptions from prohibitions.
(i) All of the activities listed in
paragraph (p)(2)(ii) of this section must
be conducted in a manner that:
(A) Maintains connectivity of suitable
Kentucky arrow darter habitats,
allowing for dispersal between streams;
(B) Minimizes instream disturbance
by occurring during low-flow periods
when possible; and
(C) Maximizes the amount of instream
cover that is available for the species.
(ii) Incidental take of the Kentucky
arrow darter will not be considered a
violation of section 9 of the Act if the
take results from any of the following
when conducted within habitats
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*
T ............
*
■
§ 17.44
Wherever
found.
Jkt 241001
*
*
*
81 FR [Insert Federal Register page where the document begins];
October 5, 2016, 50 CFR 17.44(p)4d, 50 CFR 17.95(e) CH.
*
*
currently occupied by the Kentucky
arrow darter:
(A) Channel reconfiguration or
restoration projects that create natural,
physically stable, ecologically
functioning streams (or stream and
wetland systems) that are reconnected
with their groundwater aquifers. These
projects can be accomplished using a
variety of methods, but the desired
outcome is a natural, sinuous channel
with low shear stress (force of water
moving against the channel); low bank
heights and reconnection to the
floodplain; a reconnection of surface
and groundwater systems, resulting in
perennial flows in the channel; riffles
and pools composed of existing soil,
rock, and wood instead of large
imported materials; low compaction of
soils within adjacent riparian areas; and
inclusion of riparian wetlands. First- to
third-order headwater streams
reconstructed in this way would offer
suitable habitats for the Kentucky arrow
darter and contain stable channel
features, such as pools, glides, runs, and
riffles, which could be used by the
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*
*
species for spawning, rearing, growth,
feeding, migration, and other normal
behaviors.
(B) Bank stabilization projects that use
State-approved bioengineering methods
(specified by the Kentucky Energy and
Environment Cabinet and the Kentucky
Transportation Cabinet) to replace
preexisting, bare, eroding stream banks
with vegetated, stable stream banks,
thereby reducing bank erosion and
instream sedimentation and improving
habitat conditions for the species.
Following these methods, stream banks
may be stabilized using live stakes (live,
vegetative cuttings inserted or tamped
into the ground in a manner that allows
the stake to take root and grow), live
fascines (live branch cuttings, usually
willows, bound together into long, cigarshaped bundles), or brush layering
(cuttings or branches of easily rooted
tree species layered between successive
lifts of soil fill). These methods would
not include the sole use of quarried rock
(rip-rap) or the use of rock baskets or
gabion structures.
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(C) Bridge and culvert replacement/
removal projects that remove migration
barriers (e.g., collapsing, blocked, or
perched culverts) or generally allow for
improved upstream and downstream
movements of Kentucky arrow darters
while maintaining normal stream flows,
preventing bed and bank erosion, and
improving habitat conditions for the
species.
(D) Repair and maintenance of U.S.
Forest Service concrete plank stream
crossings on the Daniel Boone National
Forest (DBNF) that allow for safe vehicle
passage while maintaining instream
habitats, reducing bank and stream bed
erosion and instream sedimentation,
and improving habitat conditions for the
species. These concrete plank crossings
have been an effective stream crossing
structure on the DBNF and have been
used for decades. Over time, the planks
can be buried by sediment, undercut
during storm events, or simply break
down and decay. If these situations
occur, the DBNF must make repairs or
replace the affected plank.
*
*
*
*
*
Dated: September 19, 2016.
Stephen Guertin,
Acting Director, U.S. Fish and Wildlife
Service.
Executive Summary
[FR Doc. 2016–23545 Filed 10–4–16; 8:45 am]
BILLING CODE 4333–15–P
DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
[Docket No. FWS–R4–ES–2015–0164;
4500030113]
RIN 1018–BA16
Endangered and Threatened Wildlife
and Plants; Endangered Species
Status for the Miami Tiger Beetle
(Cicindelidia floridana)
Fish and Wildlife Service,
Interior.
ACTION: Final rule.
AGENCY:
We, the U.S. Fish and
Wildlife Service (Service), determine
endangered species status under the
Endangered Species Act of 1973 (Act),
as amended, for the Miami tiger beetle
(Cicindelidia floridana), a beetle species
from Miami-Dade County, Florida. The
effect of this regulation will be to add
this species to the Federal List of
Endangered and Threatened Wildlife
and extend the Act’s protections to this
species.
DATES: This rule becomes effective
November 4, 2016.
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SUMMARY:
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This final rule is available
on the internet at https://
www.regulations.gov and at https://
www.fws.gov/verobeach/. Comments
and materials we received, as well as
supporting documentation we used in
preparing this rule, are available for
public inspection at https://
www.regulations.gov. Comments,
materials, and documentation that we
considered in this rulemaking will be
available by appointment, during
normal business hours at: U.S. Fish and
Wildlife Service, South Florida
Ecological Services Office, 1339 20th
Street, Vero Beach, FL 32960; telephone
772–562–3909; facsimile 772–562–4288.
FOR FURTHER INFORMATION CONTACT:
Roxanna Hinzman, Field Supervisor,
U.S. Fish and Wildlife Service, South
Florida Ecological Services Office, 1339
20th Street, Vero Beach, FL 32960, by
telephone 772–562–3909 or by facsimile
772–562–4288. Persons who use a
telecommunications device for the deaf
(TDD) may call the Federal Information
Relay Service (FIRS) at 800–877–8339.
SUPPLEMENTARY INFORMATION:
ADDRESSES:
Why we need to publish a rule. Under
the Endangered Species Act, a species
may warrant protection through listing
if it is endangered or threatened
throughout all or a significant portion of
its range. Listing a species as an
endangered or threatened species can
only be completed by issuing a rule.
The basis for our action. Under the
Endangered Species Act, we may
determine that a species is an
endangered or threatened species based
on any of five factors: (A) The present
or threatened destruction, modification,
or curtailment of its habitat or range; (B)
overutilization for commercial,
recreational, scientific, or educational
purposes; (C) disease or predation; (D)
the inadequacy of existing regulatory
mechanisms; or (E) other natural or
manmade factors affecting its continued
existence. We have determined that the
threats to the Miami tiger beetle consist
of habitat loss, degradation, and
fragmentation, and proposed future
development of habitat (Factor A);
collection, trade, and sale (Factor B);
inadequate protection from existing
regulatory mechanisms (Factor D); and a
small isolated population with a
restricted geographical range, limited
genetic exchange, and restricted
dispersal potential that is subject to
demographic and environmental
stochasticity, including climate change
and sea level rise (Factor E).
Peer review and public comment. We
sought comments from independent
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68985
specialists to ensure that our
designation is based on scientifically
sound data, assumptions, and analyses.
We invited these peer reviewers to
comment on our listing proposal. We
also considered all other comments and
information received during the
comment period.
Previous Federal Action
Please refer to the proposed listing
rule for the Miami tiger beetle (80 FR
79533), published on December 22,
2015, for a detailed description of
previous Federal actions concerning this
species. We will also be proposing a
designation of critical habitat for the
Miami tiger beetle under the Act in the
near future.
Background
The discussion below incorporates
revisions to the discussion in the
proposed listing rule for the Miami tiger
beetle (80 FR 79533; December 22, 2015)
on taxonomy, distribution, and
population estimates and status based
on internal and peer review and public
comments. Please refer to the proposed
listing rule for discussion of the species’
description, habitat, and biology.
Taxonomy
Determining the taxonomy of a plant
or animal and the relationship that this
plant or animal has with similar, closely
related members of its taxon involves
the review of comparative morphology
and descriptive characteristics,
geographic range and separation of
members, reproductive capabilities
between members, and the genetic
distinctiveness between them. Together
the available information is assessed to
determine the validity of a species.
The Miami tiger beetle (Cicindelidia
floridana Cartwright) is a described
species in the Subfamily Cicindelinae of
the Family Carabidae (ground beetles).
Previously, tiger beetles were
considered a separate family, but are
now classified as a subfamily of the
family Carabidae on the basis of recent
genetic studies and other characters
(Bousquet 2012, p. 30). The Miami tiger
beetle is in the C. abdominalis group
that also includes the eastern
pinebarrens tiger beetle (C.
abdominalis), scabrous tiger beetle (C.
scabrosa), and Highlands tiger beetle (C.
highlandensis). New treatments of tiger
beetles (Bousquet 2012, p. 30; Pearson et
al. 2015, p. 138) have also elevated most
of the previous subgenera of tiger
beetles to genera, resulting in a change
of the genus of the tiger beetles in the
C. abdominalis group from Cicindela to
Cicindelidia. These genera were
originally proposed by Rivalier (1954,
E:\FR\FM\05OCR1.SGM
05OCR1
]]>Agencies
[Federal Register Volume 81, Number 193 (Wednesday, October 5, 2016)]
[Rules and Regulations]
[Pages 68963-68985]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-23545]
=======================================================================
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
[Docket No. FWS-R4-ES-2015-0132; 4500030113]
RIN 1018-AZ09
Endangered and Threatened Wildlife and Plants; Threatened Species
Status for Kentucky Arrow Darter With 4(d) Rule
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: We, the U.S. Fish and Wildlife Service (Service), determine
threatened species status under the Endangered Species Act of 1973
(Act), as amended, for Kentucky arrow darter (Etheostoma spilotum), a
fish species from the upper Kentucky River basin in Kentucky. The
effect of this regulation will be to add this species to the List of
Endangered and Threatened Wildlife. We are also adopting a rule under
section 4(d) of the Act (a ``4(d) rule'') to further provide for the
conservation of the Kentucky arrow darter.
[[Page 68964]]
DATES: This rule becomes effective November 4, 2016.
ADDRESSES: This final rule is available on the internet at https://www.regulations.gov and https://www.fws.gov/frankfort/. Comments and
materials we received, as well as supporting documentation we used in
preparing this rule, are available for public inspection at https://www.regulations.gov. Comments, materials, and documentation that we
considered in this rulemaking will be available by appointment, during
normal business hours at: U.S. Fish and Wildlife Service, Kentucky
Ecological Services Field Office (see FOR FURTHER INFORMATION CONTACT).
FOR FURTHER INFORMATION CONTACT: Virgil Lee Andrews, Jr., Field
Supervisor, U.S. Fish and Wildlife Service, Kentucky Ecological
Services Field Office, 330 West Broadway, Suite 265, Frankfort, KY
40601; telephone 502-695-0468, x108; facsimile 502-695-1024. Persons
who use a telecommunications device for the deaf (TDD) may 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
(Act), we may list a species if it is endangered or threatened
throughout all or a significant portion of its range. Listing a species
as an endangered or threatened species can only be completed by issuing
a rule.
What this document does. This rule finalizes the listing of the
Kentucky arrow darter (Etheostoma spilotum) as a threatened species. It
also includes provisions published under section 4(d) of the Act that
are necessary and advisable for the conservation of the Kentucky arrow
darter.
The basis for our action. Under the Act, we may determine that a
species is an endangered or threatened species based on any of five
factors: (A) The present or threatened destruction, modification, or
curtailment of its habitat or range; (B) overutilization for
commercial, recreational, scientific, or educational purposes; (C)
disease or predation; (D) the inadequacy of existing regulatory
mechanisms; or (E) other natural or manmade factors affecting its
continued existence. This decision to list the Kentucky arrow darter as
threatened is based on three of the five factors (A, D, and E).
Under section 4(d) of the Act, the Secretary of the Interior has
discretion to issue such regulations as she deems necessary and
advisable to provide for the conservation of threatened species. The
Secretary also has the discretion to prohibit by regulation, with
respect to a threatened species, any act prohibited by section 9(a)(1)
of the Act.
Summary of the major provisions of the 4(d) rule. The regulations
in title 50 of the Code of Federal Regulations at 50 CFR 17.31(a) apply
to threatened wildlife all the general prohibitions for endangered
wildlife set forth at 50 CFR 17.21, and 50 CFR 17.31(c) states that
whenever a 4(d) rule applies to a threatened species, the provisions of
Sec. 17.31(a) do not apply to that species. The regulations at 50 CFR
17.32 contain permit provisions for threatened species.
Some activities that would normally be prohibited under 50 CFR
17.31 and 17.32 will contribute to the conservation of the Kentucky
arrow darter because habitat within some of the physically degraded
streams must be improved before they are suitable for the species.
Therefore, the Service has authorized certain species-specific
exceptions for the Kentucky arrow darter under section 4(d) of the Act
that may be appropriate to promote the conservation of this species.
This 4(d) rule also exempts from the general prohibitions in 50 CFR
17.32 take that is incidental to the following activities when
conducted within habitats currently occupied by the Kentucky arrow
darter:
(1) Channel reconfiguration or restoration projects that create
natural, physically stable, ecologically functioning streams (or stream
and wetland systems) that are reconnected with their groundwater
aquifers.
(2) Bank stabilization projects that use bioengineering methods
specified by the Kentucky Energy and Environment Cabinet and the
Kentucky Transportation Cabinet.
(3) Bridge and culvert replacement/removal projects that remove
migration barriers (e.g., collapsing, blocked, or perched culverts) or
generally allow for improved upstream and downstream movements of
Kentucky arrow darters.
(4) Repair and maintenance of U.S. Forest Service (USFS) concrete
plank stream crossings in the Daniel Boone National Forest (DBNF).
Peer review and public comment. We sought comments from independent
specialists to ensure that our listing determination is based on
scientifically sound data, assumptions, and analyses. We invited these
peer reviewers to comment on our listing proposal. We also considered
all comments and information received during the comment period.
Elsewhere in this Federal Register, we finalize designation of
critical habitat for the Kentucky arrow darter under the Act.
Previous Federal Action
Please refer to the proposed listing rule for the Kentucky arrow
darter (80 FR 60962, October 8, 2015) for a detailed description of
previous Federal actions concerning this species.
Summary of Comments and Recommendations
In the proposed rule published on October 8, 2015 (80 FR 60962), we
requested that all interested parties submit written comments on the
proposal by December 7, 2015. We also contacted appropriate Federal and
State agencies, scientific experts and organizations, and other
interested parties and invited them to comment on the proposal.
Newspaper notices inviting general public comment were published in the
Lexington Herald-Leader and Louisville Courier Journal. We did not
receive any requests for a public hearing. During the comment period,
we received 47 comment letters in response to the proposed rule: 5 from
peer reviewers, 1 from a State agency, and 41 from organizations or
individuals. Two comment letters from organizations were accompanied by
petitions containing a total of 15,388 signatures of persons supporting
the proposed listing. Another organization submitted a separate comment
letter on behalf of itself and 14 other organizations. None of the 47
comment letters objected to the proposed rule to list the Kentucky
arrow darter as threatened. All substantive information provided during
the comment period has either been incorporated directly into this
final determination or addressed below.
Peer Reviewer Comments
In accordance with our peer review policy published on July 1, 1994
(59 FR 34270), we solicited expert opinion from seven knowledgeable
individuals with scientific expertise that included familiarity with
Kentucky arrow darter and its habitat, biological needs, and threats.
We received responses from five of the peer reviewers.
We reviewed all comments received from the peer reviewers for
substantive issues and new information regarding the listing of
Kentucky arrow darter. The peer reviewers all generally concurred with
our methods and conclusions and provided additional information on the
taxonomy, life history, and threats; technical clarifications; and
suggestions to improve the final rule. The comments and supplementary
information
[[Page 68965]]
provided by the peer reviewers improved the final version of this
document, and we thank them for their efforts. Peer reviewer comments
are addressed in the following summary and incorporated into the final
rule as appropriate.
(1) Comment: One peer reviewer stated that the Service should
include any new information on growth, feeding, reproduction, or
spawning of the Kentucky arrow darter obtained from recent captive-
propagation efforts by Conservation Fisheries, Inc. (CFI) in Knoxville,
Tennessee.
Our Response: New observations on spawning behavior and the growth
and viability of eggs and larvae were made by CFI during recent
captive-propagation efforts (2010 to present). We have incorporated
language summarizing these findings under the Background--Habitat and
Life History section of this final listing determination.
(2) Comment: Two of the peer reviewers asked that we discuss the
detectability of the Kentucky arrow darter during survey efforts and
how this could affect our conclusions regarding the status of the
species. More specifically, the peer reviewers raised the issue of
imperfect detection, which is the inability of the surveyor to detect a
species (even if present) due to surveyor error, low-density or
rareness of the target species, or confounding variables such as
environmental conditions (e.g., stream flow). The peer reviewers asked
the Service to explain how it accounted for imperfect detection when
evaluating the species' current distribution and status.
Our Response: We recognize the importance and significance of
imperfect detection when conducting surveys for rare or low-density
species, and we agree that is possible a species can go undetected
within a particular survey reach when it is actually present. However,
we are also required, by statute and regulation, to base our
determinations solely on the basis of the best scientific and
commercial data available. We are confident that the survey data
available to us at the time we prepared our proposed listing
determination represented the best scientific and commercial data
available. These data were collected by well-trained, professional
biologists, who employed similar sampling techniques (single-pass
electrofishing) across the entire potential range of the Kentucky arrow
darter, which included historical darter locations, random locations,
and locations associated with regulatory permitting, such as mining or
transportation. Nearly 245 surveys were conducted for the species
between 2007 and 2015, and the results of these surveys revealed a
clear trend of habitat degradation and range curtailment for the
species. Kentucky arrow darters may have gone undetected at a few sites
(i.e., our detection of the species may have been imperfect at a few
collection sites), but the species' overall decline and pattern of
associated habitat degradation (e.g., elevated conductivity) was clear
based on our review of available survey data.
(3) Comment: One peer reviewer pointed out that some information we
included on the reproductive behavior of the Kentucky arrow darter was
actually based on research conducted on its closest relative, the
Cumberland arrow darter (Etheostoma sagitta).
Our Response: We concur with the peer reviewer and have
incorporated language to address this topic under the Background--
Habitat and Life History section of this final listing determination.
(4) Comment: Two peer reviewers suggested we expand our discussion
of the effects of elevated conductivity on aquatic communities by
including additional information related to the vulnerability of
salamanders or other aquatic organisms.
Our Response: We have added language to address this topic under
the Factor A. The Present or Threatened Destruction, Modification, or
Curtailment of its Habitat or Range--Water Quality Degradation section
of this final listing determination.
(5) Comment: One peer reviewer recommended we discuss the potential
threat posed by anthropogenic barriers (e.g., perched culverts).
Our Response: We added language to address this topic under the
Factor E. Other Natural or Manmade Factors Affecting Its Continued
Existence--Restricted Range and Population Size section of this final
listing determination.
(6) Comment: One peer reviewer suggested that the spatial degree of
impacts facing the Kentucky arrow darter could be more accurately
estimated using the Kentucky Division of Water's probabilistic sampling
data from the upper Kentucky River basin, as opposed to relying on data
generated from fixed monitoring sites across the species' range.
Our Response: We agree with the peer reviewer and have added
language to address this topic under the Factor A. The Present or
Threatened Destruction, Modification, or Curtailment of its Habitat or
Range section of this final listing determination.
(7) Comment: One peer reviewer offered new information on gill
parasites and sewage bacteria, suggesting that these organisms
represent potential threats to the Kentucky arrow darter under Factor
C. Disease or Predation.
Our Response: We agree with the peer reviewer that these organisms
have the potential to adversely affect the Kentucky arrow darter, and
we have added language to address this topic under the Factor C.
Disease or Predation section of this final listing determination.
(8) Comment: One peer reviewer commented that generalized natural
channel design projects (i.e., Rosgen) may not be sufficient under
provisions of the proposed section 4(d) rule, and individual designs
would be needed to benefit the Kentucky arrow darter.
Our Response: In the proposed listing determination, we proposed a
species-specific section 4(d) rule to further promote the conservation
of the Kentucky arrow darter. We concluded that activities such as
stream reconfiguration/riparian restoration, bridge and culvert
replacement or removal, bank stabilization, and stream crossing repair
and maintenance would improve or restore physical habitat quality for
the species and would provide an overall conservation benefit to the
species. We concur with the peer reviewer that, under the proposed 4(d)
rule, generalized stream restoration designs may not be sufficient to
benefit the species. For this reason, the Service provided references
and detailed descriptions of stream reconfigurations in the proposed
rule, with an emphasis on stability, ecological function, and
reconnection with groundwater systems.
(9) Comment: One peer reviewer and one other commenter stated that
the Service needed to clarify potentially conflicting statements
regarding threats under Factor D (the inadequacy of the Surface Mining
Control and Reclamation Act (SMCRA) as an existing regulatory
mechanism) and our conclusion that surface coal mining and reclamation
activities conducted in accordance with the 1996 biological opinion
(1996 BO) between the Service and the Office of Surface Mining
Reclamation and Enforcement (OSM) are unlikely to result in a violation
of section 9 of the Act.
Our Response: The peer reviewer and commenter are correct in
stating that we considered existing regulatory mechanisms such as SMCRA
to be inadequate in protecting the Kentucky arrow darter and its
habitats. Habitats across the species' range have been degraded by
water pollution and
[[Page 68966]]
sedimentation associated with coal mining (e.g., elevated
conductivity), and there is evidence of recent extirpations in
watersheds impacted by mining (16 historical streams since the mid-
1990s).
In the Provisions of the 4(d) Rule section of the proposed listing
rule, we also stated that surface coal mining and reclamation
activities, if conducted in accordance with existing regulations and
permit conditions, would not result in violations of section 9 of the
ESA. The 1996 BO is the result of a formal section 7 consultation
between OSM and the Service on OSM's approval of State regulatory
programs (primacy) under SMCRA. In Kentucky, the State has approved
primacy under SMCRA and, therefore, operates under the 1996 BO to
address adverse effects to federally listed species. Under the 1996 BO,
SMCRA regulatory authorities are exempt from prohibitions of section 9
of the ESA if they comply with the terms and conditions of the 1996 BO.
The terms and conditions of the 1996 BO require that each SMCRA
regulatory authority implement and comply with species-specific
protective measures for federally listed species as developed by the
Service and the regulatory authority. These measures may not eliminate
all adverse effects (``take'') on the species or its habitat, but they
are intended to minimize and avoid impacts to the greatest extent
practical and to ensure that the proposed activity will not jeopardize
the species' continued existence.
(10) Comment: One peer reviewer stated the Service needs to
coordinate with other agencies on protective conductivity levels under
Kentucky's narrative aquatic life standards in order to protect the
species.
Our Response: We continue to share information with the Kentucky
Department of Environmental Protection (KYDEP) on the species' status
and threats; however, any future modifications to Kentucky's narrative
aquatic life standards will be the responsibility of KYDEP and the U.S.
Environmental Protection Agency (USEPA). We will continue to provide
technical assistance when requested.
(11) Comment: One peer reviewer commented that the Service should
explain if recorded Kentucky arrow darter movements in Elisha Branch,
Long Fork, and Hector Branch represent simple movements within home
ranges (intrapopulational movements from pool to pool) or dispersal
events (interpopulational movements).
Our Response: We can only speculate as to whether the recorded
movements in these streams represent simple movements within home
ranges or dispersal events. Most are likely intrapopulational (pool to
pool within the same stream), but a few observations on Elisha Creek
and Long Fork may provide evidence of dispersal events
(interpopulational). We have added language to address this topic under
the Background--Habitat and Life History section of this final listing
determination.
(12) Comment: One peer reviewer stated that the Service should
explain how we estimated abundance and recruitment of Kentucky arrow
darters.
Our Response: Kentucky arrow darter abundance per sampling reach
was estimated based on observed captures during single-pass
electrofishing surveys. As described in the proposed rule, these
surveys typically involved qualitative searches of all available
habitats within a 100- to 150-meter survey reach. Evidence of
recruitment was based on the presence of multiple age-classes within a
survey reach. All captured Kentucky arrow darters were measured (total
length in millimeters), allowing for the discrimination of age classes.
(13) Comment: One peer reviewer stated that the Service did not
mention or discuss the relationship between land use and instream
habitat conditions.
Our Response: We do not specifically mention the influence of land
use and how it relates to instream habitat conditions; however, the
Factor A discussion offers multiple examples of how differing land uses
(e.g., resource extraction, residential development) can affect water
quality and physical habitat conditions.
(14) Comment: One peer reviewer asked us to clarify whether the
Kentucky arrow darter was sensitive to high light conditions (loss of
riparian vegetation and stream canopy).
Our Response: Increased light conditions have been shown to be a
threat to other aquatic organisms, but its impact on the Kentucky arrow
darter is unknown. We have added language to address this topic under
the Factor A. The Present or Threatened Destruction, Modification, or
Curtailment of its Habitat or Range section of this final listing
determination.
(15) Comment: One peer reviewer commented that nonnative rainbow
trout may compete with Kentucky arrow darters for food resources and
space.
Our Response: Within Big Double Creek, the only stream occupied by
both species, nonnative rainbow trout and Kentucky arrow darters could
complete for food and space as both feed on aquatic insects and both
occupy similar habitats (pools). However, we do not believe that
competition from nonnative trout represents a widespread, high-
magnitude threat to the species across its range. Potential competition
from nonnative trout is limited to Big Double Creek, and recent surveys
in Big Double Creek demonstrate that the Kentucky arrow darter
population is healthy and stable (see Factor C: Disease or Predation).
(16) Comment: One peer reviewer, the Kentucky Division of Forestry,
and several other commenters provided comments on the effectiveness of
best management practices (BMP) and compliance issues related to the
Kentucky Forest Conservation Act. In general, the peer reviewers and
commenters stated that BMPs were effective at preventing sediment
runoff from logging sites, thereby protecting water quality and
instream habitats. They also explained that BMP implementation rates in
the upper Kentucky River basin were higher than those reported in the
proposed listing determination. Based on these factors, the reviewers
stated the Service should reconsider its claim that the Kentucky Forest
Conservation Act is an ineffective regulatory mechanism. To support
their request, the reviewers provided updated and revised inspection
data and new information related to BMP elements designed to improve
BMP effectiveness.
Our Response: We agree with the commenters that BMP implementation
rates are relatively high in the upper Kentucky River basin (greater
than 70 percent), and forestry BMPs are effective in protecting water
quality and instream habitats. However, as we discuss in the Factor D.
The Inadequacy of Existing Regulatory Mechanisms section of this final
listing determination, BMP compliance at inspected sites in the upper
Kentucky River basin was only 73 percent between May 2014 and October
2015. Remedial actions were implemented at most noncompliant sites (74
percent) within a few months, but 26 percent of these sites remained
noncompliant. The primary reason for noncompliance was related to the
inadequate control of sediment laden runoff from skid trails, roads,
and landings. Therefore, we agree with the commenters that forestry
BMPs are effective in protecting water quality and preventing
sedimentation; however, these impacts continue to occur within the
upper Kentucky River basin due to BMP noncompliance. We have
incorporated new compliance information provided by the commenters
under the Factor D--The Inadequacy of Existing Regulatory Mechanisms
section of this final listing determination. We have also included
additional text regarding recent changes
[[Page 68967]]
to Kentucky's BMP standards, which will be more protective of stream
habitats. We agree with the peer reviewer and other commenters that BMP
compliance rates were higher than those reported in the proposed
listing rule, and recent changes to Kentucky's BMP standards will be
more protective of stream habitats. However, BMP noncompliance
continues to occur at some sites (about 26 percent), remedial actions
at these sites sometimes take several months to complete, and some of
these sites (6.5 percent) are never remediated.
(17) Comment: One peer reviewer recommended that the Service modify
the discussion regarding genetic variation and gene flow because a
detailed study of these factors is lacking.
Our Response: We concur with the peer reviewer and have modified
our text accordingly in the Factor E. Other Natural or Manmade Factors
Affecting Its Continued Existence--Restricted Range and Population Size
section of this final listing determination.
Public Comments
(18) Comment: One commenter stated that the Service failed to
consider how the Kentucky arrow darter's habitat is affected by the
surrounding human population. This same commenter also suggested that
mountaintop mining and fracking were not considered as potential
threats to the species in the proposed rule, but should have been.
Our Response: We discussed a variety of human-induced habitat
threats under the Factor A. The Present or Threatened Destruction,
Modification, or Curtailment of its Habitat or Range section of this
listing determination. In that section, we also provided a detailed
summary of threats related to fracking and described specific impacts
associated with a spill of chemicals used during the drilling process.
Mountaintop coal mining is not mentioned within the proposed rule, but
any potential impacts associated with mountaintop mining are addressed
in our detailed discussion of impacts associated with surface coal
mining in the Factor A. The Present or Threatened Destruction,
Modification, or Curtailment of its Habitat or Range section of this
listing determination. Surface coal mining is a broad category of coal
mining that includes a variety of methods, such as area, auger,
contour, and mountaintop mining.
(19) Comment: One commenter had concerns over perceived regulatory
gaps associated with oil and gas development (and related
infrastructure) on the Redbird Ranger District of the DBNF. Because
some oil and gas resources within the Redbird Ranger District are
privately owned, the commenter believed resource extraction activities
in these areas would be exempt from National Environmental Policy Act
(NEPA) requirements, and these projects would not be evaluated as
closely for potential adverse effects to natural resources as
activities occurring in areas under public ownership.
Our Response: The commenter is correct that mineral resources
(i.e., coal, natural gas, oil) underlying much of the Redbird District
of the DBNF are in private ownership, and that no Federal nexus exists
with regard to actions associated with these minerals (including coal,
oil/gas) in the DBNF. Because these mineral resources are in private
ownership, oil and gas exploration activities taking place within them
would not be subject to NEPA, and there would be no requirement for the
DBNF to consult with the Service under section 7 of the ESA or apply
standards of the DBNF's Land and Resource Management Plan (Forest Plan)
to these privately held areas. The Service recognizes these regulatory
gaps (with respect to privately held minerals) on the DBNF and has
added language to the Factor D. The Inadequacy of Existing Regulatory
Mechanisms section in this final listing determination.
(20) Comment: One commenter stated that the recently signed
Candidate Conservation Agreement (CCA) between the Service and U.S.
Forest Service fails to create new conservation measures that will be
implemented on the DBNF to protect the Kentucky arrow darter.
Our Response: The CCA involves several new conservation measures
that will benefit the species. Some of these measures include (1) the
development and implementation of a long-term management and monitoring
program for Kentucky arrow darter populations on the DBNF; (2) an
inventory and mapping project of natural gas lines, oil wells, roads,
other facilities, land ownership, and mineral ownership within Kentucky
arrow darter watersheds on the DBNF; (3) the identification of
restoration or enhancement opportunities for Kentucky arrow darter
streams in coordination with Forest Plan standards, implementing those
opportunities as funding and other resources allow; and (4) the
initiation of an annual Kentucky arrow darter conservation meeting
between the Service and DBNF to discuss the results of implementing the
CCA. These and other conservation measures included in the CCA will
benefit the species; however, these actions did not influence our final
listing determination. The actions outlined in the CCA apply only to
portions of Kentucky arrow streams located within the DBNF. The
majority of Kentucky arrow populations (streams) and about 74 percent
of the species' occupied habitat are located in areas outside of the
DBNF that are not covered by the CCA. These populations will not
benefit from specific conservation measures described in the CCA and
will continue to be vulnerable to a variety of threats (see Factor A:
The Present or Threatened Destruction, Modification, or Curtailment of
Its Habitat or Range).
(21) Comment: One commenter disagreed with our description of roads
on Robinson Forest, a 59.9-km \2\ (14,800-acre (ac)) experimental
forest owned and managed by the University of Kentucky (UK). The
commenter stated that the roads on Robinson Forest are used for forest
access and management and should not be described as logging roads. The
same commenter also stated that, in addition to protection from mining
provided through the Lands Unsuitable for Mining designation in the
Kentucky Administrative Regulations (405 KAR 24:040), habitats within
Robinson Forest are protected from potential habitat disturbance
associated with private or recreational all-terrain vehicle (ATV) use.
Our Response: We agree with the commenter that roads on Robinson
Forest should not be described as logging roads, and we have revised
the corresponding text under the Population Estimates and Status
section of this final rule. Under the Factor D. The Inadequacy of
Existing Regulatory Mechanisms section of this final listing
determination, we have added a description of UK's management
guidelines for Robinson Forest. Under these guidelines, public access
to Robinson Forest is controlled, and potential impacts from such
activities as recreational ATV use are avoided.
Summary of Changes From the Proposed Rule
We have considered all comments and information received during the
open comment period for the proposed rule to list the Kentucky arrow
darter as threatened. In this final rule, we have added species
description and life-history information to the background section, and
we have revised and updated the threats discussion (Summary of Factors
Affecting the Species section). We added new information on spawning
behavior and the development and viability of eggs, based on
observations made during captive-propagation efforts by CFI. We
[[Page 68968]]
also clarified information related to darter movements, discussing the
difference between dispersal (intertributary movement) and simple
movements within the same stream (intratributary movement). We added a
more detailed description of feeding behavior, relying on observations
made for the closely related Cumberland arrow darter in Tennessee. With
regard to threats, we:
--Used new probabilistic data generated by the Kentucky Division of
Water (KDOW) to demonstrate the spatial degree of threats across the
species' range,
--Added new information summarizing the vulnerability of salamanders
and other aquatic organisms to elevated conductivity,
--Briefly discussed the potential impact of high light conditions
(stream canopy loss),
--Discussed the potential threat posed by sewage bacteria and
parasites,
--Incorporated new forestry BMP compliance information and descriptions
of new BMP standards in Kentucky, and
--Added text summarizing the threat posed by anthropogenic barriers
(e.g., perched culverts).
Background
Species Information
Species Description and Taxonomy
A thorough account of Kentucky arrow darter life history is
presented in the preamble to the proposed rule (October 8, 2015, 80 FR
60962), and that information is incorporated here by reference. The
following is a summary of that information. We have incorporated new
information into the final rule, as appropriate (see Summary of Changes
from the Proposed Rule).
The Kentucky arrow darter, Etheostoma spilotum Gilbert, is a small
and compressed fish, with a background color of straw yellow to pale
greenish and a body covered by a variety of stripes and blotches.
During the spawning season, breeding males exhibit vibrant coloration.
Most of the body is blue-green in color, with scattered scarlet spots
and scarlet to orange vertical bars laterally.
The Kentucky arrow darter belongs to the Class Actinopterygii (ray-
finned fishes), Order Perciformes, and Family Percidae (perches)
(Etnier and Starnes 1993, pp. 18-25; Page and Burr 2011, p. 569). A
similar darter species, the Cumberland arrow darter, E. sagitta (Jordan
and Swain), is restricted to the upper Cumberland River basin in
Kentucky and Tennessee, and the Kentucky arrow darter is restricted to
the upper Kentucky River basin in Kentucky.
Habitat and Life History
Kentucky arrow darters typically inhabit pools or transitional
areas between riffles and pools (glides and runs) in moderate- to high-
gradient, first- to third-order streams with rocky substrates (Thomas
2008, p. 6). The species is most often observed near some type of cover
in depths ranging from 10 to 45 centimeters (cm) (4 to 18 in) and in
streams ranging from 1.5 to 20 meters (m) (4.9 to 65.6 feet (ft)) wide.
During spawning (April to June), the species utilizes riffle habitats
with moderate flow (Kuehne and Barbour 1983, p. 71). Kentucky arrow
darters typically occupy streams with watersheds of 25.9 square
kilometers (km\2\) (10 square miles (mi\2\)) or less, and many of these
habitats, especially in first-order reaches, can be intermittent in
nature (Thomas 2008, pp. 6-9). During drier periods (late summer or
fall), some Kentucky arrow darter streams may cease flowing, but the
species appears to survive these conditions by retreating into shaded,
isolated pools or by dispersing into larger tributaries (Lotrich 1973,
p. 394; Lowe 1979, p. 26; Etnier and Starnes 1993, p. 523; ATS 2011, p.
7; Service unpublished data).
Little information is available on the reproductive behavior of the
Kentucky arrow darter; however, general details were provided by Kuehne
and Barbour (1983, p. 71), and more specific information can be
inferred from studies of the closely related Cumberland arrow darter
conducted by Bailey (1948, pp. 82-84) and Lowe (1979, pp. 44-50). Male
Kentucky arrow darters establish territories over riffles and defend a
fanned out depression in the substrate. After spawning, it is assumed
the male continues to defend the nest until the eggs have hatched. The
spawning period extends from April to June, but peak activity occurs
when water temperatures reach 13 degrees Celsius ([deg]C) (55 degrees
Fahrenheit ([deg]F)), typically in mid-April. Females produce between
200 and 600 eggs per season, with tremendous variation resulting from
size, age, condition of females, and stream temperature (Rakes 2014,
pers. comm.).
Captive-propagation efforts by CFI (2010-present) have yielded
observations related to spawning behavior and the development and
viability of eggs and larvae (Petty et al. 2015, pp. 4-7). The spawning
period is dependent on several factors, but laboratory observations
suggest that water temperature is likely a significant determinant of
when spawning begins and how long it continues (Petty et al. 2015, p.
7). The appearance of larvae in the laboratory appeared to be delayed
by cool water temperatures (less than 10 [deg]C), suggesting that
cooler temperatures may (1) affect egg viability and/or larval
survivorship or (2) simply increase development times of eggs and/or
larvae. Another potential factor related to spawning period is the age
and size of breeding darters. In the laboratory, large, older
individuals spawned earlier and terminated earlier, while smaller,
younger individuals matured and spawned later. Petty et al. (2015, p.
7) cautioned that hatchery observations are necessarily biased by the
selection and use of mostly larger individuals in attempts to maximize
production, so these larger individuals may not reflect the natural
variation in wild populations with greater demographic (and
environmental) diversity.
Kentucky arrow darters can reach 50 mm (2 in) in length by the end
of the first year (Lotrich 1973, pp. 384-385; Lowe 1979, pp. 44-48;
Kuehne and Barbour 1983, p. 71). One-year-olds are generally sexually
mature and participate in spawning with older age classes (Etnier and
Starnes 1993, p. 523). Juvenile Kentucky arrow darters can be found
throughout the channel but are often observed in shallow water along
stream margins near root mats, rock ledges, or some other cover. As
stream flow lessens and riffles begin to shrink, most Kentucky arrow
darters move into pools and tend to remain there even when late autumn
and winter rains restore stream flow (Kuehne and Barbour 1983, p. 71).
Limited information exists with regard to upstream or downstream
movements of Kentucky arrow darters; however, a movement study at
Eastern Kentucky University (EKU) and a reintroduction project in the
DBNF suggest that Kentucky arrow darters can move considerable
distances (Baxter 2015, entire; Thomas 2015a, pers. comm.), which we
summarize below.
The EKU study used PIT-tags (electronic tags placed under the skin)
and placed antenna systems (installed in the stream bottom) to monitor
intra- and inter-tributary movement of Kentucky arrow darters in
Gilberts Big Creek and Elisha Creek, two second-order tributaries of
Red Bird River in Clay and Leslie Counties (Baxter 2015, pp. 9-11).
PIT-tags were placed in a total of 126 individuals, and Kentucky arrow
darter movements were tracked from May 2013 to May 2014 (Baxter 2015,
pp. 15, 19-21, 35-36). Recorded movements ranged from 134 m (439 ft)
(upstream movement) to 4,078 m
[[Page 68969]]
(13,379 ft or 2.5 mi) (downstream movement by a female in Elisha
Creek). Intermediate recorded movements included 328 m (1,076 ft)
(downstream), 351 m (1,151 ft) (upstream), 900 m (2,952 ft) (upstream/
downstream), 950 m (3,116 ft) (downstream), 1,282 m (4,028 ft)
(downstream), and 1,708 m (5,603 ft) (downstream). Based on this
research, we believe it is likely that most of these documented
movements could best be described as intrapopulational and represent
individual darters moving between stream pools of Elisha Creek. In the
case of the female arrow darter that moved unidirectionally from the
headwaters of Elisha Creek to its mouth (a distance of more than 4,000
m (2.5 mi)), this documented movement could represent an
interpopulational event (dispersal), where an individual leaves one
population and travels to another population (or stream). Further
research is needed to differentiate these behaviors.
Since August 2012, the Kentucky Department of Fish and Wildlife
Resources (KDFWR) and CFI have been releasing captive-bred Kentucky
arrow darters into a 1.5-km (0.9 mi) reach of Long Fork, a DBNF stream
and first-order tributary to Hector Branch in eastern Clay County,
Kentucky, where the species formerly occurred but has been extirpated.
Researchers have tagged and released a total of 1,447 Kentucky arrow
darters (about 50-55 mm TL) and have conducted monitoring on 14
occasions since the initial release using visual searches and seining
methods. Tagged darters have been observed throughout the Long Fork
mainstem, and some individuals have moved considerable distances (up to
1.0 km (0.4 mi)) downstream into Hector Branch. Based on these results,
it is clear that young Kentucky arrow darters can disperse both
upstream and downstream from their place of origin and can move
considerable distances.
Kentucky arrow darters feed primarily on mayflies (Order
Ephemeroptera), with larger darters also feeding on small crayfishes.
Other food items include larval blackflies, midges, caddisfly larvae,
stonefly nymphs, beetle larvae, microcrustaceans, and dipteran larvae
(Lotrich 1973, p. 381; Etnier and Starnes 1993, p. 523).
Historical Range and Distribution
A thorough account of the Kentucky arrow darter's historical range
is presented in the preamble to the proposed rule (October 8, 2015, 80
FR 60962), and that information is incorporated here by reference. The
following is a summary of that information with new information added
as appropriate (see Summary of Changes from the Proposed Rule).
The Kentucky arrow darter occurred historically in at least 74
streams in the upper Kentucky River basin of eastern Kentucky (Gilbert
1887, pp. 53-54; Woolman 1892, pp. 275-281; Kuehne and Bailey 1961, pp.
3-4; Kuehne 1962, pp. 608-609; Branson and Batch 1972, pp. 507-514;
Lotrich 1973, p. 380; Branson and Batch 1974, pp. 81-83; Harker et al.
1979, pp. 523-761; Greenberg and Steigerwald 1981, p. 37; Branson and
Batch 1983, pp. 2-13; Branson and Batch 1984, pp. 4-8; Kornman 1985, p.
28; Burr and Warren 1986, p. 316; Measel 1997, pp. 1-105; Kornman 1999,
pp. 118-133; Stephens 1999, pp. 159-174; Ray and Ceas 2003, p. 8;
Kentucky State Nature Preserves Commission (KSNPC) unpublished data).
Its distribution spanned portions of 6 smaller sub-basins or watersheds
(North Fork Kentucky River, Middle Fork Kentucky River, South Fork
Kentucky River, Silver Creek, Sturgeon Creek, and Red River) in 10
Kentucky counties (Breathitt, Clay, Harlan, Jackson, Knott, Lee,
Leslie, Owsley, Perry, and Wolfe) (Thomas 2008, p. 3) (figure 1).
[[Page 68970]]
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Current Range and Distribution
Based on surveys completed since 2006, extant populations of the
Kentucky arrow darter are known from 47 streams in the upper Kentucky
River basin in eastern Kentucky. These populations are scattered across
6 sub-basins (North Fork Kentucky River, Middle Fork Kentucky River,
South Fork Kentucky River, Silver Creek, Sturgeon Creek, and Red River)
in 10 Kentucky counties: Breathitt, Clay, Harlan, Jackson, Knott, Lee,
Leslie, Owsley, Perry, and Wolfe Counties (Thomas 2008, pp. 3-6;
Service unpublished data). Populations in eight of these streams have
been discovered since 2006, and one additional population (Long Fork,
Clay County) was reestablished through a reintroduction project led by
KDFWR. Current populations occur in the following Kentucky River sub-
basins (and smaller watersheds):
North Fork Kentucky River (Troublesome, Quicksand, Frozen,
Holly, Lower Devil, Walker, and Hell Creek watersheds);
Middle Fork Kentucky River (Big Laurel, Rockhouse, Hell
For Certain Creek, and Squabble Creek watersheds);
South Fork Kentucky River (Red Bird River, Hector Branch,
and Goose, Bullskin, Buffalo, and Lower Buffalo Creek watersheds);
Silver Creek;
Sturgeon Creek (Travis, Wild Dog, and Granny Dismal Creek
watersheds); and
Red River (Rock Bridge Fork watershed).
Population Estimates and Status
The species' status in all streams of historical or recent
occurrence is summarized in table 1, below, which is organized by sub-
basin, beginning at the southeastern border (upstream end) of the basin
(North Fork Kentucky River) and moving downstream. In this final rule,
the term ``population'' is used in a geographical context and not in a
genetic context, and is defined as all individuals of the species
living in one stream at a given time. Using the term in this way allows
the status, trends, and threats to be discussed comparatively across
streams where the species occurs. In using this term, we do not imply
that the populations are currently reproducing and recruiting or that
they are distinct genetic units. We considered populations of the
Kentucky arrow darter as extant if live specimens have been observed or
collected since 2006, and habitat conditions are favorable for
reproduction (e.g., low siltation, water chemistry at normal levels).
We are using the following generalized sets of criteria to
categorize the relative status of populations of 83 streams (74
historical and 9 nonhistorical, discovered or established since 2006)
included in table 1. Similar criteria have been used by the Service in
previous proposed listing rules (76 FR 3392, January 19, 2011; 77 FR
63440, October 16, 2012):
The status of a population is considered ``stable'' if: (1) There
is little evidence of significant habitat loss or degradation; (2)
darter abundance has remained relatively constant or increased during
recent surveys; or (3) evidence of relatively recent recruitment has
been documented since 2006.
The status of a population is considered ``vulnerable'' if: (1)
There is ample evidence of significant habitat loss or degradation
since the species' original capture; (2) there is an obvious decreasing
trend in abundance since the historical collection; or (3) no evidence
of relatively recent recruitment (since 2006) has been documented.
The status of a population is considered ``extirpated'' if: (1) All
known suitable habitat has been
[[Page 68971]]
destroyed or severely degraded; (2) no live individuals have been
observed since 2006; or (3) live individuals have been observed since
2006, but habitat conditions do not appear to be suitable for
reproduction to occur (e.g., elevated conductivity, siltation) and
there is supporting evidence that the observed individuals are
transients (fishes originating from another stream that occupy a
particular habitat for only a short time).
Table 1--Kentucky Arrow Darter Status in All Streams of Historical (74) or Recent Occurrence \1\ (9; noted in bold) in the Upper Kentucky River Basin
--------------------------------------------------------------------------------------------------------------------------------------------------------
Date of last
Sub-basin Sub-basin tributaries Stream \1\ County Current status observation
--------------------------------------------------------------------------------------------------------------------------------------------------------
North Fork.................. Lotts Creek.............. Lotts Creek.............. Perry........................ Extirpated........... 1890
Troublesome Creek........ Left Fork................ Knott........................ Extirpated........... 1890
Troublesome Creek........ Perry........................ Extirpated........... 1890
Mill Creek............... Knott........................ Extirpated........... 1995
Laurel Fork (of Balls Knott........................ Extirpated........... 1995
Fork).
Buckhorn Creek (Prince Knott........................ Vulnerable........... 2011
Fork).
Eli Fork \1\............. Knott........................ Vulnerable........... 2011
Boughcamp Branch......... Knott........................ Extirpated........... 2011
Coles Fork............... Breathitt, Knott............. Stable............... 2011
Snag Ridge Fork.......... Knott........................ Stable............... 2008
Clemons Fork............. Breathitt.................... Stable............... 2013
Millseat Branch.......... Breathitt.................... Extirpated........... 1976
Lewis Fork............... Breathitt.................... Extirpated........... 1959
Long Fork................ Breathitt.................... Extirpated........... 1959
Bear Branch.............. Breathitt.................... Extirpated........... 2015
Laurel Fork (of Buckhorn) Breathitt.................... Extirpated........... 1976
Lost Creek............... Breathitt.................... Extirpated........... 1997
Quicksand Creek.......... Laurel Fork.............. Knott........................ Stable............... 2014
Baker Branch............. Knott........................ Extirpated........... 1994
Middle Fork.............. Knott........................ Stable............... 2015
Spring Fork \1\.......... Breathitt.................... Vulnerable........... 2013
Wolf Creek............... Breathitt.................... Extirpated........... 1995
Hunting Creek............ Breathitt.................... Vulnerable........... 2013
Leatherwood Creek........ Breathitt.................... Extirpated........... 1982
Bear Creek............... Breathitt.................... Extirpated........... 1969
Smith Branch............. Breathitt.................... Extirpated........... 1995
Frozen Creek............. Frozen Creek............. Breathitt.................... Stable............... 2013
Clear Fork............... Breathitt.................... Vulnerable........... 2008
Negro Branch............. Breathitt.................... Vulnerable........... 2008
Davis Creek.............. Breathitt.................... Vulnerable........... 2008
Cope Fork................ Breathitt.................... Extirpated........... 1995
Boone Fork............... Breathitt.................... Extirpated........... 1998
Holly Creek.............. Holly Creek.............. Wolfe........................ Vulnerable........... 2007
Lower Devil Creek........ Lower Devil Creek........ Lee, Wolfe................... Extirpated........... 1998
Little Fork \1\.......... Lee, Wolfe................... Vulnerable........... 2011
Walker Creek............. Walker Creek............. Lee, Wolfe................... Stable............... 2013
Hell Creek............... Hell Creek............... Lee.......................... Vulnerable........... 2013
Middle Fork................. Greasy Creek............. Big Laurel Creek......... Harlan....................... Vulnerable........... 2009
Greasy Creek............. Leslie....................... Extirpated........... 1970
Cutshin Creek............ Cutshin Creek............ Leslie....................... Extirpated........... 1890
Middle Fork.............. Middle Fork.............. Leslie....................... Extirpated........... 1890
Rockhouse Creek.......... Laurel Creek \1\......... Leslie....................... Vulnerable........... 2013
Hell For Certain Creek... Hell For Certain Creek... Leslie....................... Stable............... 2013
Squabble Creek........... Squabble Creek........... Perry........................ Vulnerable........... 2015
South Fork.................. Red Bird River........... Blue Hole Creek.......... Clay......................... Stable............... 2008
Upper Bear Creek......... Clay......................... Stable............... 2013
Katies Creek............. Clay......................... Stable............... 2007
Spring Creek............. Clay......................... Stable............... 2007
Bowen Creek.............. Leslie....................... Stable............... 2009
Elisha Creek............. Leslie....................... Stable............... 2014
Gilberts Big Creek....... Clay, Leslie................. Stable............... 2013
Sugar Creek \1\.......... Clay, Leslie................. Stable............... 2008
Big Double Creek......... Clay......................... Stable............... 2014
Little Double Creek...... Clay......................... Stable............... 2008
Big Creek................ Clay......................... Extirpated........... 1890
Jacks Creek.............. Clay......................... Vulnerable........... 2009
Hector Branch............ Clay......................... Extirpated........... 2015
Long Fork (of Hector Br.) Clay......................... Stable............... 2014
\1\.
Goose Creek.............. Horse Creek.............. Clay......................... Vulnerable........... 2013
Laurel Creek............. Clay......................... Extirpated........... 1970
Bullskin Creek........... Bullskin Creek........... Clay, Leslie................. Vulnerable........... 2014
Buffalo Creek............ Laurel Fork.............. Owsley....................... Stable............... 2014
Cortland Fork \1\........ Owsley....................... Vulnerable........... 2014
Lucky Fork............... Owsley....................... Stable............... 2014
Left Fork................ Owsley....................... Stable............... 2014
[[Page 68972]]
Right Fork............... Owsley....................... Vulnerable........... 2009
Buffalo Creek............ Owsley....................... Vulnerable........... 1969
Sexton Creek............. Bray Creek............... Clay......................... Extirpated........... 1997
Robinsons Creek.......... Clay......................... Extirpated........... 1997
Sexton Creek............. Owsley....................... Extirpated........... 1978
Lower Island Creek....... Lower Island Creek....... Owsley....................... Extirpated........... 1997
Cow Creek................ Right Fork Cow Creek..... Owsley....................... Extirpated........... 1997
Buck Creek............... Buck Creek............... Owsley....................... Extirpated........... 1978
Lower Buffalo Creek...... Lower Buffalo Creek...... Lee, Owsley.................. Vulnerable........... 2007
Silver Creek................ ......................... ......................... Lee.......................... Vulnerable........... 2008
Sturgeon Creek.............. ......................... Travis Creek \1\......... Jackson...................... Vulnerable........... 2008
Brushy Creek............. Jackson, Owsley.............. Extirpated........... 1996
Little Sturgeon Creek.... Owsley....................... Extirpated........... 1996
Wild Dog Creek........... Jackson, Owsley.............. Stable............... 2007
Granny Dismal Creek \1\.. Lee, Owsley.................. Vulnerable........... 2013
Cooperas Cave Branch..... Lee.......................... Extirpated........... 1996
Sturgeon Creek........... Lee.......................... Extirpated........... 1998
Red River................... Swift Camp Creek......... Rockbridge Fork.......... Wolfe........................ Vulnerable........... 2013
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\Non-historical occurrence discovered or established since 2006.
In the period 2007-2012, the Service, KSNPC, and KDFWR conducted a
status review for the Kentucky arrow darter (Thomas 2008, pp. 1-33;
Service 2012, pp. 1-4). Surveys were conducted qualitatively using
single-pass electrofishing techniques (Smith-Root backpack
electrofishing unit) within an approximate 100-m (328-ft) reach. During
these efforts, fish surveys were conducted at 69 of 74 historical
streams, 103 of 119 historical sites, and 40 new (nonhistorical) sites
(sites correspond to individual sampling reaches and more than one may
be present on a given stream). Kentucky arrow darters were observed at
36 of 69 historical streams (52 percent), 53 of 103 historical sites
(52 percent), and 4 of 40 new sites (10 percent). New sites were
visited in an effort to locate additional populations and were
specifically selected based on habitat suitability and the availability
of previous collection records (sites lacking previous collections were
chosen).
From June to September 2013, KSNPC and the Service initiated a
study that included quantitative surveys at 80 randomly chosen sites
within the species' historical range (Service unpublished data).
Kentucky arrow darters were observed at only seven sites, including two
new localities (Granny Dismal Creek in Owsley County and Spring Fork
Quicksand Creek in Breathitt County) and one historical stream (Hunting
Creek, Breathitt County) where the species was not observed during
status surveys by Thomas (2008, pp. 1-33) and Service (2012, pp. 1-4).
During 2014-2015, additional qualitative surveys (single-pass
electrofishing) were completed at more than 20 sites within the basin.
Kentucky arrow darters were observed in Bear Branch, Big Double Creek,
Big Laurel Creek, Bullskin Creek, Clemons Fork, Coles Fork, Cortland
Fork, Laurel Fork Buffalo Creek, and Squabble Creek. Based on the poor
habitat conditions observed in Bear Branch (e.g., elevated
conductivity, siltation, and embedded substrates) and its close
proximity to Robinson Forest, we suspect that the few individuals
observed in Bear Branch were transients originating from Clemons Fork.
Based on historical records and survey data collected at more than
200 sites since 2006, the Kentucky arrow darter has declined
significantly rangewide and has been eliminated from large portions of
its former range, including 36 of 74 historical streams (figure 2) and
large portions of the basin that would have been occupied historically
by the species (figure 3). Forty-four percent of the species'
extirpations (16 streams) have occurred since the mid-1990s, and the
species has disappeared completely from several watersheds (e.g.,
Sexton Creek, South Fork Quicksand Creek, Troublesome Creek
headwaters). Of the species' 47 extant streams, we consider half of
these populations (23) to be ``vulnerable'' (table 1), and most
remaining populations are isolated and restricted to short stream
reaches.
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[[Page 68974]]
[GRAPHIC] [TIFF OMITTED] TR05OC16.031
BILLING CODE 4333-15-C
A synopsis of the Kentucky arrow darter's current range and status
is provided in the preamble to the proposed rule, and that information
is incorporated here by reference.
Our recent survey data (Thomas 2008, pp. 25-27; Service 2012, pp.
1-4) indicate that Kentucky arrow darters occur in low densities.
Sampling reaches where arrow darters were observed had an average of
only 3 individuals per 100-m (328-ft) reach and a median of 2
individuals per reach (range of 1 to 10 individuals). ATS (2011, pp. 4-
6) observed similar densities at occupied sampling reaches in the
Buckhorn Creek watershed. Surveys in 2011 by the DBNF from Laurel Fork
and Cortland Branch of Left Fork Buffalo Creek (South Fork Kentucky
River sub-basin) produced slightly higher capture rates (an average of
5 darters per 100-m (328-ft) sampling
[[Page 68975]]
reach) (Mulhall 2014, pers. comm.). The low abundance values (compared
to other darters) are not surprising since Kentucky arrow darters
generally occur in low densities, even in those streams where
disturbance has been minimal (Thomas 2015b, pers. comm.).
Detailed information on population size is generally lacking for
the species, but estimates have been completed for three streams:
Clemons Fork (Breathitt County), Elisha Creek (Clay and Leslie
Counties), and Gilberts Big Creek (Clay and Leslie Counties) (Service
unpublished data). Based on field surveys completed in 2013 by EKU,
KSNPC, and the Service, population estimates included 986-2,113
individuals (Clemons Fork), 592-1,429 individuals (Elisha Creek), and
175-358 individuals (Gilberts Big Creek) (ranges reflect 95 percent
confidence intervals) (Baxter 2015, pp. 14-15, 18-19).
Based on observed catch rates and habitat conditions throughout the
upper Kentucky River basin, the most stable and largest populations of
the Kentucky arrow darter appear to be located in the following
streams:
Hell For Certain Creek, Leslie County;
Laurel and Middle Forks of Quicksand Creek, Knott County;
Frozen and Walker Creeks, Breathitt and Lee Counties;
Clemons Fork and Coles Fork, Breathitt and Knott Counties;
Several direct tributaries (e.g., Bowen Creek, Elisha
Creek, and Big Double Creek) of the Red Bird River, Clay and Leslie
Counties; and
Wild Dog Creek, Jackson and Owsley Counties.
The Kentucky arrow darter is considered ``threatened'' by the State
of Kentucky and has been ranked by KSNPC as a G2G3/S2S3 species
(imperiled or vulnerable globally and imperiled or vulnerable within
the State) (KSNPC 2014, p. 40). Kentucky's Comprehensive Wildlife
Conservation Strategy (KDFWR 2013, pp. 9-11) identified the Kentucky
arrow darter as a Species of Greatest Conservation Need (rare or
declining species that requires conservation actions to improve its
status).
Summary of Factors Affecting the Species
Section 4 of the Act (16 U.S.C. 1533), and its implementing
regulations at 50 CFR part 424, set forth the procedures for adding
species to the Federal Lists of Endangered and Threatened Wildlife and
Plants. Under section 4(a)(1) of the Act, we may list a species based
on (A) the present or threatened destruction, modification, or
curtailment of its habitat or range; (B) overutilization for
commercial, recreational, scientific, or educational purposes; (C)
disease or predation; (D) the inadequacy of existing regulatory
mechanisms; or (E) other natural or manmade factors affecting its
continued existence. Listing may be warranted based on any of the above
threat factors, singly or in combination.
Factor A: The Present or Threatened Destruction, Modification, or
Curtailment of Its Habitat or Range
A thorough discussion of Kentucky arrow darter habitat destruction
or modification is presented in the preamble to the proposed rule
(October 8, 2015, 80 FR 60962), and that information is incorporated
here by reference. The following is a summary of that information.
The Kentucky arrow darter's habitat and range have been destroyed,
modified, and curtailed due to a variety of anthropogenic activities in
the upper Kentucky River drainage. Resource extraction (e.g., coal
mining, logging, oil/gas well development), land development,
agricultural activities, and inadequate sewage treatment have all
contributed to the degradation of streams within the range of the
species (Branson and Batch 1972, pp. 513-516; Branson and Batch 1974,
pp. 82-83; Thomas 2008, pp. 6-7; KDOW 2010, pp. 70-84; KDOW 2013a, pp.
189-214, 337-376; KDOW 2013b, pp. 88-94). These land use activities
have led to chemical and physical changes to stream habitats that have
adversely affected the species. Specific stressors have included inputs
of dissolved solids and elevation of instream conductivity,
sedimentation/siltation of stream substrates (excess sediments
deposited in a stream), turbidity, inputs of nutrients and organic
enrichment, and elevation of stream temperatures (KDOW 2010, p. 84;
KDOW 2013a, pp. 189-214, 337-376). KDOW (2013a, pp. 337-376) provided a
summary of specific threats within the upper Kentucky River drainage,
identifying impaired reaches in 21 streams within the Kentucky arrow
darter's historical range (table 2). Six of these streams continue to
support populations of the species, but only one of these populations
(Frozen Creek) is considered to be stable (see table 1, above). Results
of probabilistic surveys (i.e., surveys conducted at randomly selected
sites with sites selected in a statistically valid way) by KDOW
demonstrate the spatial degree of threats across the species' range.
Out of 22 probabilistic sites (streams) visited within the upper
Kentucky River basin in 2003, 18 were considered to be impaired (Payne
2016, pers. comm.), suggesting habitats across the species' range are
impacted by the specific stressors identified above.
Table 2--Summary of 303(d) Listed Stream Segments Within the Historical Range of the Kentucky Arrow Darter (KDOW
2013a, pp. 337-376)
----------------------------------------------------------------------------------------------------------------
Impacted stream
Stream County segment(s)--stream Pollutant source Pollutant
km (stream mi)
----------------------------------------------------------------------------------------------------------------
Buckhorn Creek.................. Breathitt......... 0-10.0 Abandoned Mine Fecal Coliform
(0-6.8) Lands, Unknown (FC), Sediment/
Sources. Siltation, Total
Dissolved Solids
(TDS).
Cope Fork (of Frozen Creek)..... Breathitt......... 0-3.0 Channelization, Sediment/
(0-1.9) Riparian Habitat Siltation, TDS.
Loss, Logging,
Agriculture,
Stream Bank
Modification,
Surface Coal
Mining.
Cutshin Creek................... Leslie............ 15.6-17.2 Riparian Habitat Sediment/
(9.7-10.7) Loss, Stream Bank Siltation.
Modification,
Surface Coal
Mining.
Frozen Creek *.................. Breathitt......... 0-22.4 Riparian Habitat Sediment/
(0-13.9) Loss, Post- Siltation.
Development
Erosion and
Sedimentation.
[[Page 68976]]
Goose Creek..................... Clay.............. 0-13.4 Septic Systems.... FC.
(0-8.3)
Hector Branch................... Clay.............. 0-8.8 Unknown........... Unknown.
(0-5.5)
Holly Creek *................... Wolfe............. 0-9.8 Agriculture, Sediment/
(0-6.2) Riparian Habitat Siltation,
Loss, Stream Bank Unknown.
Modification,
Surface Coal
Mining.
Horse Creek *................... Clay.............. 0-13.4 Riparian Habitat Sediment/
(0-8.3) Loss, Managed Siltation.
Pasture Grazing,
Surface Coal
Mining.
Laurel Creek.................... Clay.............. 6.1-7.7 Managed Pasture Nutrients/
(3.8-4.8) Grazing, Crop Eutrophication.
Production.
Left Fork Island Creek.......... Owsley............ 0-8.0 Crop Production... Sediment/
(0-5.0) Siltation.
Long Fork....................... Breathitt......... 0-7.4 Surface Coal Sediment/
(0-4.6) Mining. Siltation, TDS.
Lost Creek...................... Breathitt......... 0-14.3 Coal Mining, FC, Sedimentation,
(0-8.9) Riparian Habitat TDS, Turbidity.
Loss, Logging,
Stream Bank
Modification.
Lotts Creek..................... Perry............. 0.6-1.6, 1.9-9.6 Riparian Habitat Sediment/
(0.4-1.0, 1.2-6.0) Loss, Land Siltation, TDS,
Development, Turbidity.
Surface Coal
Mining, Logging,
Stream Bank
Modification.
Quicksand Creek................. Breathitt......... 0-27.4, Surface Coal FC, Turbidity,
34.9-49.6 Mining, Riparian Sediment/
(0-17.0, 21.7- Habitat Loss, Siltation, TDS.
30.8) Logging, Stream
Bank Modification.
Sexton Creek.................... Clay, Owsley...... 0-27.7 Crop Production, Sediment/
(0-17.2) Highway/Road/ Siltation, TDS.
Bridge Runoff.
South Fork Quicksand Creek...... Breathitt......... 0-27.2 Riparian Habitat Sediment/
(0-16.9) Loss, Petroleum/ Siltation, TDS.
Natural Gas
Production
Activities,
Surface Coal
Mining.
Spring Fork (Quicksand Creek) *. Breathitt......... 5.0-11.1 Abandoned Mine Sediment/
(3.1-6.9) Lands (Inactive), Siltation, TDS,
Riparian Habitat Turbidity.
Loss, Logging,
Stream Bank
Modification.
Squabble Creek *................ Perry............. 0-7.6 Land Development, Sediment/
(0-4.7) Surface Coal Siltation, TDS.
Mining.
Sturgeon Creek.................. Lee............... 12.9-19.6 Riparian Habitat Sediment/
(8.0-12.2) Loss, Crop Siltation.
Production,
Surface Coal
Mining.
Swift Camp Creek................ Wolfe............. 0-22.4 Unknown........... Unknown.
(0-13.9)
Troublesome Creek............... Breathitt......... 0-72.6 Surface Coal Sediment/
(0-45.1) Mining, Municipal Siltation,
Point Source Specific
Discharges, Conductance, TDS,
Petroleum/Natural Turbidity.
Gas Activities.
----------------------------------------------------------------------------------------------------------------
* Stream segment still occupied by Kentucky arrow darters.
Water Quality Degradation
One threat to the Kentucky arrow darter is water quality
degradation caused by a variety of nonpoint-source pollutants
(contaminants from many diffuse and unquantifiable sources). Within the
upper Kentucky River drainage, coal mining has been the most
significant historical source of these pollutants, and this activity
continues to occur throughout the drainage.
Activities associated with coal mining have the potential to
contribute high concentrations of dissolved salts, metals, and other
solids that (1) elevate stream conductivity (a measure of electrical
conductance in the water column that increases as the concentration of
dissolved solids increases), (2) increase sulfates (a common dissolved
ion with empirical formula of SO4-2), and (3)
cause wide fluctuations in stream pH (a measure of the acidity or
alkalinity of water) (Curtis 1973, pp. 153-155; Dyer and Curtis 1977,
pp. 10-13; Dyer 1982, pp. 1-16; Hren et al. 1984, pp. 5-34; USEPA 2003,
pp. 77-84; Hartman et al. 2005, p. 95; Pond et al. 2008, pp. 721-723;
Palmer et al. 2010, pp. 148-149; USEPA 2011, pp. 27-44). The coal
mining process also results in leaching of metals and other dissolved
solids that can result in elevated conductivity, sulfates, and hardness
in the receiving stream. Stream conductivity in mined watersheds can be
significantly higher compared to unmined watersheds, and conductivity
values can remain high for decades (Merricks et al. 2007, pp. 365-373;
Johnson et al. 2010, pp. 1-2).
Elevated levels of metals and other dissolved solids (i.e.,
elevated conductivity) in Appalachian streams have been shown to
negatively impact biological communities, including losses of mayfly
and caddisfly taxa (Chambers and Messinger 2001, pp. 34-51; Pond 2004,
p. 7; Hartman et al. 2005, p. 95; Pond et al. 2008, pp. 721-723; Pond
2010, pp. 189-198), reduced
[[Page 68977]]
occupancy and conditional abundance of salamanders (Price et al. 2015,
pp. 6-9), and decreases in fish diversity (Kuehne 1962, pp. 608-614;
Branson and Batch 1972, pp. 507-512; Branson and Batch 1974, pp. 81-83;
Stauffer and Ferreri 2002, pp. 11-21; Fulk et al. 2003, pp. 55-64;
Mattingly et al. 2005, pp. 59-62; Thomas 2008, pp. 1-9; Service 2012,
pp. 1-4; Black et al. 2013, pp. 34-45; Hitt 2014, pp. 5-7, 11-13; Hitt
and Chambers 2014, pp. 919-924; Daniel et al. 2015, pp. 50-61; Hitt et
al. 2016, pp. 46-52).
There is a pattern of increasing conductivity and loss of arrow
darter populations that is evident in the fish and water quality data
from the Buckhorn Creek basin (1962 to present) in Breathitt and Knott
Counties.
Kentucky arrow darters tend to be less abundant in streams with
elevated conductivity levels (Service 2012, pp. 1-4; Service 2013, p.
9), and are typically excluded from these streams as conductivity
increases (Branson and Batch 1972, pp. 507-512; Branson and Batch 1974,
pp. 81-83; Thomas 2008, pp. 3-6). Recent range-wide surveys of
historical sites by Thomas (2008, pp. 3-6) and the Service (2012, pp.
1-4) demonstrated that Kentucky arrow darters are excluded from
watersheds when conductivity levels exceed about 250 [mu]S/cm. The
species was observed at only two historical sites where conductivity
values exceeded 250 [mu]S/cm, and average conductivity values were much
lower at sites where Kentucky arrow darters were observed (115 [mu]S/
cm) than at sites where the species was not observed (689 [mu]S/cm).
Hitt et al. (2016, entire) reported that conductivity was a strong
predictor of Kentucky arrow darter abundance in the upper Kentucky
River drainage, and sharp declines in abundance were observed at 258
[mu]S/cm (95 percent confidence intervals of 155-590 [mu]S/cm). Based
on the research presented in the preamble to the proposed rule and
incorporated by reference here, we believe it is clear that the overall
conductivity level is important in determining the Kentucky arrow
darter's presence and vulnerability, but the species' presence is more
likely tied to what individual metals or dissolved solids (e.g.,
sulfate) are present. Determination of discrete conductivity thresholds
or the mechanisms through which the Kentucky arrow darter is influenced
will require additional study (KSNPC 2010, p. 3; Pond 2015, pers.
comm.); however, conductivity thresholds have been evaluated for other
aquatic species. Elevated specific conductance has been positively
correlated with decreased macroinvertebrate abundance (Pond et al.
2008, pp. 725-726; Pond 2012, p. 111), and Johnson et al. (2015, pp.
170-171) showed that daily growth rates and development of a mayfly
(Neocleon triagnulifer) declined with increasing ionic concentrations.
Increased levels of specific conductance have been shown to influence
the behavior (Karraker et al. 2008, pp. 728-732) and corticosterone
levels (a hormone secreted by the adrenal cortex that regulates energy,
immune reactions, and stress responses) of amphibians (Chambers 2011,
pp. 220-222). Embryonic and larval survival of amphibians were reduced
significantly at moderate (500 [mu]S/cm) and high (3,000 [mu]S/cm)
specific conductance levels (Karraker et al. 2008, pp. 728-732).
Mine drainage can also cause chemical (and some physical) effects
to streams as a result of the precipitation of entrained metals and
sulfate, which become unstable in solution (USEPA 2003, pp. 24-65; Pond
2004, p. 7). Precipitants accumulate on substrates, encrusting and
cementing stream sediments, making them unsuitable for colonization by
invertebrates and rendering them unsuitable as foraging or spawning
habitat for the Kentucky arrow darter.
Oil and gas exploration and drilling activities represent another
significant source of harmful pollutants in the upper Kentucky River
basin (KDOW 2013a, pp. 189-214). Once used, fluid wastes containing
chemicals used in the drilling and fracking process (e.g., hydrochloric
acid, surfactants, potassium chloride) are stored in open pits
(retention basins) or trucked away to treatment plants or some other
storage facility. If spills occur during transport or releases occur
due to retention basin failure or overflow, there is a risk for surface
and groundwater contamination. Any such release can cause significant
adverse effects to water quality and aquatic organisms that inhabit
these watersheds (Wiseman 2009, pp. 127-142; Kargbo et al. 2010, pp.
5,680-5,681; Osborn et al. 2011, pp. 8,172-8,176; Papoulias and Velasco
2013, pp. 92-111).
Other nonpoint-source pollutants common within the upper Kentucky
River drainage with potential to affect the Kentucky arrow darter
include domestic sewage (through septic tank leakage or straight pipe
discharges) and agricultural pollutants such as animal waste,
fertilizers, pesticides, and herbicides (KDOW 2013a, pp. 189-214).
Nonpoint-source pollutants can cause increased levels of nitrogen and
phosphorus, excessive algal growths, oxygen deficiencies, and other
changes in water chemistry that can seriously impact aquatic species
(KDOW 2010, pp. 70-84; KDOW 2013a, pp. 189-214; KDOW 2013b, pp. 88-94).
Nonpoint-source pollution may be correlated with impervious surfaces
and storm water runoff (Allan 2004, pp. 266-267) and include sediments,
fertilizers, herbicides, pesticides, animal wastes, septic tank and
gray water leakage, pharmaceuticals, and petroleum products.
Physical Habitat Disturbance
Sedimentation (siltation) has been listed repeatedly by KDOW as the
most common stressor of aquatic communities in the upper Kentucky River
basin (KDOW 2010, pp. 70-84; KDOW 2013a, pp. 189-214; KDOW 2013b, pp.
88-94). Sedimentation comes from a variety of sources, but KDOW
identified the primary sources of sediment as loss of riparian habitat,
surface coal mining, legacy coal extraction, logging, and land
development (KDOW 2010, pp. 70-84; KDOW 2013b, pp. 88-94). All of these
activities can result in canopy removal, channel disturbance, and
increased siltation, thereby degrading habitats used by Kentucky arrow
darters for both feeding and reproduction.
Resource extraction activities (e.g., surface coal mining, legacy
coal extraction, logging, oil and gas exploration and drilling) are
major sources of sedimentation in streams (Paybins et al. 2000, p. 1;
Wiley et al. 2001, pp. 1-16; KDOW 2013a, pp. 189-214). Similarly,
logging activities can adversely affect Kentucky arrow darters and
other fishes through removal of riparian vegetation, direct channel
disturbance, and sedimentation of instream habitats (Allan and Castillo
2007, pp. 332-333). Stormwater runoff from unpaved roads, ATV trails,
and driveways represents a significant but difficult to quantify source
of sediment that impacts streams in the upper Kentucky River basin.
Sediment has been shown to damage and suffocate fish gills and
eggs, larval fishes, bottom-dwelling algae, and other organisms; reduce
aquatic insect diversity and abundance; and, ultimately, negatively
impact fish growth, survival, and reproduction (Berkman and Rabeni
1987, pp. 285-294; Waters 1995, pp. 5-7; Wood and Armitage 1997, pp.
211-212; Meyer and Sutherland 2005, pp. 2-3).
Invasion of Hemlock Wooly Adelgid
The hemlock woolly adelgid (Adelges tsugae), an aphid-like insect
native to Asia, represents a potential threat to the Kentucky arrow
darter because it has
[[Page 68978]]
the potential to severely damage stands of eastern hemlocks (Tsuga
canadensis) that occur within the species' range. Loss of hemlocks
along Kentucky arrow darter streams has the potential to result in
increased solar exposure and subsequent elevated stream temperatures,
bank erosion, and excessive inputs of woody debris that will clog
streams and cause channel instability and erosion (Townsend and Rieske-
Kinney 2009, pp. 1-3). We expect these impacts to occur in some
Kentucky arrow darter watersheds; however, we do not believe these
impacts will be widespread or severe because eastern hemlocks are not
abundant in all portions of the Kentucky arrow darter's range, and even
where hemlocks are more common, we expect them to be replaced by other
tree species.
In summary, habitat loss and modification represent threats to the
Kentucky arrow darter. Severe degradation from contaminants,
sedimentation, and physical habitat disturbance have contributed to
extirpations of Kentucky arrow darter populations, and these threats
continue to impact water quality and habitat conditions across the
species' range. Contaminants associated with surface coal mining
(metals, other dissolved solids), domestic sewage (bacteria,
nutrients), and agriculture (fertilizers, pesticides, herbicides, and
animal waste) cause degradation of water quality and habitats through
increased conductivity and sulfates, instream oxygen deficiencies,
excess nutrification, and excessive algal growths. Sedimentation from
surface coal mining, logging, agriculture, and land development
negatively affect the Kentucky arrow darter by burying or covering
instream habitats used by the species for foraging, reproduction, and
sheltering. These impacts can cause reductions in growth rates, disease
tolerance, and gill function; reductions in spawning habitat,
reproductive success, and egg, larval, and juvenile development;
modifications of migration patterns; decreased food availability
through reductions in prey; and reduction of foraging efficiency.
Furthermore, these threats faced by the Kentucky arrow darter are the
result of ongoing land uses that are expected to continue indefinitely.
Factor B: Overutilization for Commercial, Recreational, Scientific, or
Educational Purposes
The Kentucky arrow darter is not believed to be utilized for
commercial, recreational, scientific, or educational purposes.
Individuals may be collected occasionally in minnow traps by
recreational anglers and used as live bait, but we believe these
activities are practiced infrequently and do not represent a threat to
the species. Our review of the available information does not indicate
that overutilization is a threat to the Kentucky arrow darter now or
likely to become so in the future.
Factor C: Disease or Predation
No specific information is available suggesting that disease is a
threat to the Kentucky arrow darter; however, in marginal Kentucky
arrow darter streams (those with impacts from industrial or residential
development), the occurrence of sewage-bacteria (Sphaerotilus) may a
pose a threat with respect to fish condition and health (Pond 2015,
pers. comm.). These bacteria are prevalent in many eastern Kentucky
streams where straight-pipe sewage discharges exist and can often
affect other freshwater organisms. The presence of these bacteria could
also indicate the presence of other pathogens. Gill and body parasites
such as flukes (flatworms) and nematodes (roundworms) have been noted
in other species of Etheostoma (Page and Mayden 1981, p. 8), but it is
unknown if these parasites infest or harm the Kentucky arrow darter.
Although the Kentucky arrow darter is undoubtedly consumed by
native predators (e.g., fishes, amphibians, and birds), this predation
is naturally occurring and a normal aspect of the species' population
dynamics. Nonnative rainbow trout (Oncorhynchus mykiss) represent a
potential predation threat (Etnier and Starnes 1993, p. 346) in one
Kentucky arrow darter stream, Big Double Creek (Clay County), because
KDFWR stocks up to 1,000 trout annually in the stream, with releases
occurring in March, April, May, and October. To assess the potential
predation of rainbow trout on Kentucky arrow darters or other fishes,
the Service and DBNF surveyed a 2.1-km (1.3-mile) reach of Big Double
Creek on April 21, 2014, which was 17 days after KDFWR's April stocking
event (250 trout). A total of seven rainbow trout were captured, and
the gut contents of these individuals were examined. Food items were
dominated by Ephemeroptera (mayflies), with lesser amounts of
Plecoptera (stoneflies), Trichoptera (caddisflies), Diptera (flies),
Decapoda (crayfish), and terrestrial Coleoptera (beetles). No fish
remains were observed. Based on all these factors and the absence of
rainbow trout from the majority (98 percent) of Kentucky arrow darter
streams demonstrates that predation by nonnative rainbow trout does not
pose a threat to the species.
In short, our review of available information indicates that
neither disease nor predation is currently a threat to the species or
likely to become a threat to the Kentucky arrow darter in the future.
Factor D: The Inadequacy of Existing Regulatory Mechanisms
The Kentucky arrow darter has been identified as a threatened
species within Kentucky (KSNPC 2014, p. 40), but this State designation
conveys no legal protection for the species or its habitat. Kentucky
law prohibits the collection of the Kentucky arrow darter (or other
fishes) for scientific purposes without a valid State-issued collecting
permit (Kentucky Revised Statutes (KRS) sec. 150.183). Kentucky
regulations (301 KAR 1:130, sec. 1(3)) also allow persons who hold a
valid Kentucky fishing license (obtained from KDFWR) to collect up to
500 minnows per day (a minnow is defined as any nongame fish less than
6 inches in length, with the exception of federally listed species).
These existing regulatory mechanisms provide some protections for the
species.
Streams within UK's Robinson Forest (Coles Fork, Snag Ridge Fork,
and Clemons Fork) are currently protected from the effects of surface
coal mining due to a 1990 ``lands unsuitable for mining'' designation
(405 KAR 24:040). Streams within Robinson Forest (e.g., Clemons Fork
and Coles Fork) are also protected from general disturbance by
management guidelines approved by the UK's Board of Trustees in 2004
(Stringer 2015, pers. comm.). These guidelines provide general land use
allocations, sustainable allowances for active research and
demonstration projects involving overstory manipulation, allocations of
net revenues from research and demonstration activities, and management
and oversight responsibilities (Stringer 2015, pers. comm.). Under
these guidelines, public access to Robinson Forest is controlled and
potential impacts from such activities as recreational ATV use are
avoided.
A significant portion (about 47 percent) of the species' remaining
populations are located on the DBNF and receive management and
protection through DBNF's land and resource management plan (LRMP)
(USFS 2004, pp. 7-16) and a recently signed CCA between the DBNF and
the Service (see Comment and Response #20 in the Summary of Comments
and Recommendations section). Both of these documents contain
conservation
[[Page 68979]]
measures and protective standards that are intended to conserve the
Kentucky arrow darter on the DBNF. Populations within the DBNF have
benefited from management goals, objectives, and protective standards
included in the LRMP. Collectively, these streams contain some of the
best remaining habitats for the species and support some of the
species' most robust populations.
The Kentucky arrow darter and its habitats are afforded some
protection from water quality and habitat degradation under the Federal
Water Pollution Control Act of 1977, commonly referred to as the Clean
Water Act (33 U.S.C. 1251 et seq.); the Federal Surface Mining Control
and Reclamation Act (SMCRA) (30 U.S.C. 1201 et seq.) of 1977;
Kentucky's Forest Conservation Act of 1998 (KRS secs. 149.330-355);
Kentucky's Agriculture Water Quality Act of 1994 (KRS secs. 224.71-
140); and additional Kentucky laws and regulations regarding natural
resources and environmental protection (KRS secs. 146.200-360; KRS sec.
224; 401 KAR secs. 5:026, 5:031). While these laws have undoubtedly
resulted in some improvements in water quality and stream habitat for
aquatic life, including the Kentucky arrow darter, sedimentation and
other nonpoint-source pollutants continue to pose a threat to the
species.
The KDOW has not established total maximum daily load (TMDLs)
pursuant to the Clean Water Act for identified pollutants within
portions of the upper Kentucky River basin historically occupied by the
Kentucky arrow darter. TMDLs do not address chemical pollutants or
sedimentation of aquatic habitats. The Service is also not aware of any
other current or future changes to State or Federal water quality or
mining laws that will substantially address the currently observed
degradation of water quality.
Despite the current laws to prevent sediment and other pollutants
from entering waterways, nonpoint-source pollution, originating from
mine sites, unpaved roads, ATV trails, driveways, logging skid trails,
and other disturbed habitats is considered to be a continuing threat to
Kentucky arrow darter habitats.
Kentucky State laws and regulations regarding oil and gas drilling
are generally designed to protect fresh-water resources like the
Kentucky arrow darter's habitat, but these regulatory mechanisms do not
contain specific provisions requiring an analysis of project impacts to
fish and wildlife resources (Kentucky Division of Oil and Gas et al.
2012, entire). Current regulations also do not contain or provide any
formal mechanism requiring coordination with, or input from, the
Service or the KDOW regarding the presence of federally endangered,
threatened, or candidate species, or other rare and sensitive species.
In July of 2015, the Office of Surface Mining Reclamation and
Enforcement published in the Federal Register a notice of availability
for a draft environmental impact statement regarding a proposed Stream
Protection Rule (80 FR 42535, July 17, 2015) and the proposed Stream
Protection Rule itself (80 FR 44436, July 27, 2015). The preamble for
that proposed rule stated that the rule would better protect streams,
fish, wildlife, and related environmental values from the adverse
impacts of surface coal mining operations and provide mine operators
with a regulatory framework to avoid water pollution and the long-term
costs associated with water treatment (80 FR 44436, July 27, 2015; see
SUMMARY). While the OSM proposed rule may provide benefits for the
Kentucky arrow darter in the future, until the rule is finalized and
implemented, we are unable to evaluate its potential effectiveness with
regard to the Kentucky arrow darter and its habitat.
In summary, degradation of habitat for the Kentucky arrow darter is
ongoing despite existing regulatory mechanisms.
Factor E: Other Natural or Manmade Factors Affecting Its Continued
Existence
Restricted Range and Population Size
The disjunct nature of some Kentucky arrow darter populations
(figures 2 and 3, above) likely restricts the natural exchange of
genetic material between populations and could make natural
repopulation following localized extirpations of the species unlikely
without human intervention. Populations can be further isolated by
anthropogenic barriers, such as dams, perched culverts, and fords,
which can limit natural dispersal and restrict or eliminate
connectivity among populations (Eisenhour and Floyd 2013, pp. 82-83).
Such dispersal barriers can prevent reestablishment of Kentucky arrow
populations in reaches where they suffer localized extinctions due to
natural or human-caused events. The localized nature and small size of
many populations also likely makes them vulnerable to extirpation from
intentional or accidental toxic chemical spills, habitat modification,
progressive degradation from runoff (nonpoint-source pollutants),
natural catastrophic changes to their habitat (e.g., flood scour,
drought), and other stochastic disturbances (Soul[eacute] 1980, pp.
157-158; Hunter 2002, pp. 97-101; Allendorf and Luikart 2007, pp. 117-
146). Inbreeding and loss of neutral genetic variation associated with
small population size can further reduce the fitness of the population
(Reed and Frankham 2003, pp. 230-237), subsequently accelerating
population decline (Fagan and Holmes 2006, pp. 51-60).
Species that are restricted in range and population size are more
likely to suffer loss of genetic diversity due to genetic drift,
potentially increasing their susceptibility to inbreeding depression,
decreasing their ability to adapt to environmental changes, and
reducing the fitness of individuals (Soul[eacute] 1980, pp. 157-158;
Hunter 2002, pp. 97-101; Allendorf and Luikart 2007, pp. 117-146). It
is likely that some of the Kentucky arrow darter populations are below
the effective population size required to maintain long-term genetic
and population viability (Soul[eacute] 1980, pp. 162-164; Hunter 2002,
pp. 105-107). 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). These separate populations are
essential for the species to recover and adapt to environmental change
(Noss and Cooperrider 1994, pp. 264-297; Harris 1984, pp. 93-104).
Climate Change
The Intergovernmental Panel on Climate Change (IPCC) concluded that
warming of the climate system is unequivocal (IPCC 2014, p. 3). Species
that are dependent on specialized habitat types, limited in
distribution, or at the extreme periphery of their range may be most
susceptible to the impacts of climate change (see 75 FR 48911, August
12, 2010); however, while continued change is certain, the magnitude
and rate of change is unknown in many cases.
Climate change has the potential to increase the vulnerability of
the Kentucky arrow darter to random catastrophic events (McLaughlin et
al. 2002, pp. 6060-6074; Thomas et al. 2004, pp. 145-148) associated
with an expected increase in both severity and variation in climate
patterns with extreme floods, strong storms, and droughts becoming more
common (Cook et al. 2004, pp. 1015-1018; Ford et al. 2011, p. 2065;
IPCC 2014, pp. 58-83). Estimates of the effects of climate change using
available climate models typically lack the geographic precision needed
to predict the magnitude of effects at a scale small enough to
discretely apply to the range of a given
[[Page 68980]]
species. However, data on recent trends and predicted changes for
Kentucky (Girvetz et al. 2009, pp. 1-19), and, more specifically, the
upper Kentucky River drainage (Alder and Hostetler 2013, entire),
provide some insight for evaluating the potential threat of climate
change to the Kentucky arrow darter. These models provide estimates of
average annual increases in maximum and minimum temperature,
precipitation, snowfall, and other variables.
There is uncertainty about the specific effects of climate change
(and their magnitude) on the Kentucky arrow darter; however, climate
change is almost certain to affect aquatic habitats in the upper
Kentucky River drainage of Kentucky through increased water
temperatures and more frequent droughts (Alder and Hostetler 2013,
entire), and species with limited ranges, fragmented distributions, and
small population size are thought to be especially vulnerable to the
effects of climate change (Byers and Norris 2011, p. 18). Thus, we
consider climate change to be a threat to the Kentucky arrow darter.
In summary, we have determined that other natural and manmade
factors, such as geographical isolation, small population size, and
climate change, are threats to remaining populations of the Kentucky
arrow darter across its range. The severity of these threats is high
because of the species' reduced range and population size, which result
in a reduced ability to adapt to environmental change. Further, our
review of the best available scientific and commercial information
indicates that these threats are likely to continue or increase in the
future.
Determination
We have carefully assessed the best scientific and commercial
information available regarding the past, present, and future threats
to the Kentucky arrow darter. As described in detail above, the
Kentucky arrow darter has been extirpated from about 49 percent of its
historical range (36 of 74 historical streams), 16 of these
extirpations have occurred since the mid-1990s, populations in nearly
half of the species' occupied streams are ranked as vulnerable (see
table 1, above), and remaining populations are fragmented and isolated.
Despite existing regulatory mechanisms (Factor D) and conservation
efforts, the species continues to be at risk throughout all of its
range due to the immediacy, severity, and scope of threats from habitat
degradation and range curtailment (Factor A and other natural or
manmade factors affecting its continued existence (Factor E).
Anthropogenic activities such as surface coal mining, logging, oil/
gas development, land development, agriculture, and inadequate sewage
treatment have all contributed to the degradation of stream habitats
within the species' range (Factor A). These land use activities have
led to chemical and physical changes to stream habitats that continue
to affect the species. Specific stressors include inputs of dissolved
solids and elevation of instream conductivity, sedimentation/siltation
of stream substrates, turbidity, and inputs of nutrients and organic
enrichment. These high-magnitude stressors, especially the inputs of
dissolved solids and sedimentation, have had profound negative effects
on Kentucky arrow darter populations and have been the primary factor
in the species' decline. Existing regulatory mechanisms (e.g., the
Clean Water Act) have provided for some improvements in water quality
and habitat conditions across the species' range; however, recent
extirpations have occurred (16 streams since the 1990s), and 21 streams
within the species' historical range have been added to Kentucky's
303(d) list of impaired streams. The Kentucky arrow darter's
vulnerability to these threats is even greater due to its reduced
range, fragmented populations, and small or declining population sizes
(Factor E) (Primack 2012, pp. 146-150). The effects of certain threats,
particularly habitat degradation and loss, increase in magnitude when
population size is small (Primack 2012, pp. 150-152).
The Act defines an endangered species as any species that is ``in
danger of extinction throughout all or a significant portion of its
range'' and a threatened species as any species ``that is likely to
become endangered throughout all or a significant portion of its range
within the foreseeable future.'' We find that the Kentucky arrow darter
meets the definition of a threatened species based on the immediacy,
severity, and scope of the threats identified above. The species'
overall range has been reduced substantially, most of the species'
historical habitat has been degraded, and much of the remaining habitat
exists primarily in fragmented patches. Despite existing regulatory
mechanisms and conservation efforts, current Kentucky arrow darter
habitats continue to be lost or degraded due to surface coal mining,
logging, oil/gas development, land development, agriculture, and
inadequate sewage treatment, and it appears this trend will continue in
the future. Extant populations are known from 47 streams, but these
populations continue to be threatened by small population size,
isolation, fragmentation, climate change, and the habitat degradation
summarized above. All of these factors make the species particularly
susceptible to extinction in the future.
We find that endangered status is not appropriate for the Kentucky
arrow darter because we do not consider the species' threats to be so
severe that extinction is imminent. Although threats to the species are
ongoing, often severe, and occurring across the range, populations
continue to occupy 47 scattered streams, 23 of which appear to support
stable populations (see table 1, above). Additionally, a significant
number of extant Kentucky arrow darter populations (49 percent) occur
primarily on public lands (i.e., DBNF and Robinson Forest) that are at
least partially managed to protect habitats used by the species. For
example, the CCA with the U.S. Forest Service (USFS) for DBNF should
provide an elevated level of focused management and conservation for
portions of 20 streams that support populations of the Kentucky arrow
darter. Based on all these factors, the Kentucky arrow darter does not
meet the definition of an endangered species. Therefore, on the basis
of the best available scientific and commercial information, we are
listing the Kentucky arrow darter as a threatened species in accordance
with sections 3(19) and 4(a)(1) of the Act.
Under the Act and our implementing regulations, a species may
warrant listing if it is an endangered or threatened species throughout
all or a significant portion of its range. Because we have determined
that the Kentucky arrow darter is a threatened species throughout all
of its range, no portion of its range can be ``significant'' for
purposes of the definitions of ``endangered species'' and ``threatened
species.'' See the Final Policy on Interpretation of the Phrase
``Significant Portion of Its Range'' in the Endangered Species Act's
Definitions of ``Endangered Species'' and ``Threatened Species'' (79 FR
37577, July 1, 2014).
Available Conservation Measures
Conservation measures provided to species listed as endangered or
threatened under the Act include recognition, recovery actions,
requirements for Federal protection, and prohibitions against certain
practices. Recognition through listing results in public awareness and
conservation by Federal, State, Tribal, and local agencies; private
organizations; and individuals. The Act encourages
[[Page 68981]]
cooperation with the States and calls for recovery actions to be
carried out for listed species. The protection required by Federal
agencies and the prohibitions against certain activities are discussed,
in part, below.
The primary purpose of the Act is the conservation of endangered
and threatened species and the ecosystems upon which they depend. The
ultimate goal of such conservation efforts is the recovery of these
listed species, so that they no longer need the protective measures of
the Act. Subsection 4(f) of the Act calls for the Service to develop
and implement recovery plans for the conservation of endangered and
threatened species. The recovery planning process involves the
identification of actions that are necessary to halt or reverse the
species' decline by addressing the threats to its survival and
recovery. The goal of this process is to restore listed species to a
point where they are secure, self-sustaining, and functioning
components of their ecosystems.
Recovery planning includes the development of a recovery outline
shortly after a species is listed and preparation of a draft and final
recovery plan. The recovery outline guides the immediate implementation
of urgent recovery actions and describes the process to be used to
develop a recovery plan. The plan may be revised to address continuing
or new threats to the species, as new substantive information becomes
available. The recovery plan also identifies recovery criteria for
review of when a species may be ready for reclassification from
endangered to threatened or for delisting and methods for monitoring
recovery progress. Recovery plans also establish a framework for
agencies to coordinate their recovery efforts and provide estimates of
the cost of implementing recovery tasks. Recovery teams (composed of
species experts, Federal and State agencies, nongovernmental
organizations, and stakeholders) are often established to develop
recovery plans. When completed, the recovery outline, draft recovery
plan, and the final recovery plan will be available on our Web site
(https://www.fws.gov/endangered), or from our Kentucky Ecological
Services Field Office (see FOR FURTHER INFORMATION CONTACT).
Implementation of recovery actions generally requires the
participation of a broad range of partners, including other Federal
agencies, States, Tribes, nongovernmental organizations, businesses,
and private landowners. Examples of recovery actions include habitat
restoration (e.g., restoration of native vegetation), research, captive
propagation and reintroduction, and outreach and education. The
recovery of many listed species cannot be accomplished solely on
Federal lands because their range may occur primarily or solely on non-
Federal lands. To achieve recovery of these species requires
cooperative conservation efforts on private, State, and Tribal lands.
Following publication of this final rule, funding for recovery
actions will be available from a variety of sources, including Federal
budgets, State programs, and cost-share grants for non-Federal
landowners, the academic community, and nongovernmental organizations.
In addition, pursuant to section 6 of the Act, the State of Kentucky
would be eligible for Federal funds to implement management actions
that promote the protection or recovery of the Kentucky arrow darter.
Information on our grant programs that are available to aid species
recovery can be found at: https://www.fws.gov/grants.
Please let us know if you are interested in participating in
recovery efforts for the Kentucky arrow darter. Additionally, we invite
you to submit any new information on this species whenever it becomes
available and any information you may have for recovery planning
purposes (see FOR FURTHER INFORMATION CONTACT).
Section 7(a) of the Act requires Federal agencies to evaluate their
actions with respect to any species that is listed as an endangered or
threatened species and with respect to its critical habitat, if any is
designated. Regulations implementing this interagency cooperation
provision of the Act are codified at 50 CFR part 402. Section 7(a)(2)
of the Act requires Federal agencies to ensure that activities they
authorize, fund, or carry out are not likely to jeopardize the
continued existence of the species or destroy or adversely modify its
critical habitat. If a Federal action may affect a listed species or
its critical habitat, the responsible Federal agency must enter into
consultation with the Service.
Federal agency actions within the species' habitat that may require
consultation as described in the preceding paragraph include management
and any other landscape-altering activities on Federal lands
administered by the USFS; issuance of section 404 Clean Water Act
permits by the U.S. Army Corps of Engineers; construction and
maintenance of gas pipeline and power line rights-of-way by the Federal
Energy Regulatory Commission; USEPA pesticide registration;
construction and maintenance of roads or highways by the Federal
Highway Administration; and projects funded through Federal loan
programs, which may include, but are not limited to, roads and bridges,
utilities, recreation sites, and other forms of development.
The Service, in cooperation with KDFWR, KSNPC, the U.S. Geological
Survey (USGS), KDOW, DBNF, CFI, and The Appalachian Wildlife
Foundation, Inc., completed a conservation strategy for the Kentucky
arrow darter in 2014 (Service 2014, entire). The strategy was developed
as a guidance document that would assist the Service and its partners
in their conservation efforts for the species. The strategy is divided
into four major sections: (1) Biology and status, (2) listing factors/
current threats, (3) current conservation efforts, and (4) conservation
objectives/actions. The strategy's first conservation objective
addresses current informational needs on the species' biology, ecology,
viability, and survey methods, while the remaining three conservation
objectives address specific threats facing the species (Factors A and
E, respectively).
Several conservation efforts have been completed or are ongoing for
the Kentucky arrow darter, and some of these efforts have been
described previously in this listing determination. Previously
mentioned efforts include the development of a CCA with the USFS (see
Public Comments, Comment 20), a propagation and reintroduction study by
KDFWR and CFI (see Background--Habitat and Life History), field
investigations to determine the predatory risk posed by nonnative trout
(see Factor C: Disease or Predation), and a movement and ecological
study by EKU, KDFWR, and the Service (Baxter 2015, entire). Other
important conservation actions include studies on the species'
distribution, status, and population size; movement and microhabitat
characteristics; genetics; and response to changes in water quality
(e.g., conductivity). Details of these efforts are provided below.
In 2013, KSNPC and the Service initiated a study to investigate the
distribution, status, population size, and habitat use of the Kentucky
arrow darter within the upper Kentucky River basin. One important
aspect of the study was to account for imperfect detection when
surveying for the species. Studies that do not account for imperfect
detection can often lead to an underestimation of the true proportion
of sites occupied by a species and can bias assessments and sampling
efforts (MacKenzie et al. 2002, entire; MacKenzie et al. 2005, entire).
From June to September 2013, KSNPC and the Service visited 80 randomly
chosen sites (ranging from first- to third-order) across the upper
Kentucky River
[[Page 68982]]
basin in order to address these concerns and meet project objectives.
As expected, Kentucky arrow darters were rare during the study and were
observed at only 7 of the 80 sites, including two new localities
(Granny Dismal Creek in Owsley County and Spring Fork Quicksand Creek
in Breathitt County) and one historical stream (Hunting Creek,
Breathitt County) where the species was not observed during status
surveys by Thomas (2008, pp. 1-33) and the Service (2012, pp. 1-4).
Presently, KSNPC and the Service are in the data analysis stage of this
project.
In July 2013, EKU, the Service, and KSNPC initiated a population
estimate and microhabitat characterization study on Clemons Fork,
Breathitt County. The study was designed to estimate the Kentucky arrow
darter's current population size and average density within Clemons
Fork and to compare current densities with historical densities
reported by Lotrich (1973). Additionally, population densities and
habitat parameters will be compared to data from Gilberts Big Creek and
Elisha Creek (both DBNF) to aid in delineation of essential habitat
characteristics and development and implementation of conservation
efforts. Field surveys were completed in August 2013. Data analyses are
incomplete, but initial results include a mean density of 9.69 Kentucky
arrow darters per sampling reach and a population estimate of 986 to
2,113 darters in Clemons Fork (95 percent confidence intervals).
Preliminary findings of this study were presented at the 2013
Southeastern Fishes Council Meeting, Lake Guntersville, Alabama
(November 14-15, 2013).
Austin Peay State University is currently working with KDFWR and
the Service on the first comprehensive assessment of genetic variation
and gene flow patterns across the range of the Kentucky arrow darter
(Johansen et al. 2013, pp. 1-3). Approximately 25 individuals per
population from up to 12 populations across the range of the species
will be genotyped using microsatellite markers. Resulting data will be
used to generate robust estimates of effective population sizes and
overall population and species' variability. This information is
essential to the development of effective conservation and recovery
measures to ensure the long-term persistence of the species. Funding
for this project is being provided through the Service's section 6
program.
Through Service-USGS Quick Response funding, the USGS Leetown
Science Center evaluated the relationship between Kentucky arrow darter
abundance and stream conductivity in the upper Kentucky River basin
(Hitt 2014, entire). Nonlinear regression techniques were used to
evaluate significant thresholds and associated confidence intervals for
Kentucky arrow darter abundance related to conductivity levels. As a
contrast to Kentucky arrow darter, Dr. Hitt also evaluated blackside
dace occurrence in this regard. Data for the study were supplied by the
Service's Kentucky and Tennessee field offices, KDFWR, and KSNPC.
Nonlinear regressions indicated a distinct decline in Kentucky arrow
darter abundance at 258 [micro]S/cm (95 percent confidence intervals
155-590 [micro]S/cm), above which abundances were negligible. Nonlinear
threshold declines for blackside dace were observed at 343 [micro]S/cm,
and 95 percent confidence intervals bounded this relationship between
123-632 [micro]S/cm. Boosted regression results indicated that stream
conductivity was the strongest predictor in separate analyses of
Kentucky arrow darter and blackside dace abundance. Hitt (2014, pp. 7-
8) concluded that the similar responses of these ecologically distinct
taxa suggest the general importance of this water quality attribute for
stream fish ecology in central Appalachia.
4(d) Rule
Under section 4(d) of the Act, the Service has discretion to issue
regulations that we find necessary and advisable to provide for the
conservation of threatened wildlife. We may also prohibit by
regulation, with respect to threatened wildlife, any act that is
prohibited by section 9(a)(1) of the Act for endangered wildlife.
Exercising this discretion, the Service has developed general
prohibitions that are appropriate for most threatened species at 50 CFR
17.31 and exceptions to those prohibitions at 50 CFR 17.32. While most
of the prohibitions of Sec. Sec. 17.31 and 17.32 are appropriate for
the Kentucky arrow darter, we find that some activities that would
normally be prohibited under Sec. Sec. 17.31 and 17.32 are necessary
for the conservation of this species because the species could benefit
from habitat improvements in first- to third-order streams that are
physically degraded (e.g., unstable stream channels, eroding banks, no
canopy cover). Therefore, the Service has determined that a species-
specific section 4(d) rule is appropriate to promote the conservation
of the Kentucky arrow darter. As discussed in the Summary of Factors
Affecting the Species section of this rule, the primary threat to the
species is the continuing loss and degradation of habitat. Physical
habitat degradation is widespread within the species' range, and
sediment has been identified as the most common stressor (KDOW 2013a,
pp. 189-214; KDOW 2013b, pp. 88-94). Sedimentation may originate from
areas outside of the stream channel as a result of land use activities
associated with surface coal mining, legacy coal extraction, logging,
land development, channel relocations, and riparian clearing. All of
these activities can cause sedimentation, but they may also lead to
canopy removal, clearing of riparian vegetation, and elevation of
stream temperatures, thereby degrading habitats used by Kentucky arrow
darters for feeding, sheltering, and reproduction. Sedimentation may
also originate from areas within the stream channel as a result of
channel instability and bank or stream bed erosion. Numerous streams
within the species' current range have been identified as impaired
(primarily due to siltation) and have been included on Kentucky's
303(d) list of impaired waters (see table 2, above). Activities such as
stream reconfiguration/riparian restoration, bridge and culvert
replacement or removal, bank stabilization, and stream crossing repair
and maintenance that follow the provisions of the species-specific 4(d)
rule below will improve or restore physical habitat quality for the
Kentucky arrow darter and will provide an overall conservation benefit
to the species.
The 4(d) rule will not remove or alter in any way the consultation
requirement under section 7 of the Act. However, we expect the 4(d)
rule to provide greater certainty to Federal agencies and any third
parties (e.g., permit applicants) in the consultation process for
activities conducted in accordance with the provisions of the 4(d)
rule. The consultation process may be further streamlined through
programmatic consultations between Federal agencies and the Service for
these activities.
Provisions of the 4(d) Rule
This 4(d) rule exempts from the general prohibitions in 50 CFR
17.32 take that is incidental to the following activities when
conducted within habitats currently occupied by the Kentucky arrow
darter. All of the activities listed below must be conducted in a
manner that (1) maintains connectivity of suitable Kentucky arrow
darter habitats, allowing for dispersal between streams; (2) minimizes
instream disturbance by conducting activities during low-flow periods
when possible; and (3) maximizes the amount of instream cover that is
available for the species:
[[Page 68983]]
(1) Channel reconfiguration or restoration projects that create
natural, physically stable, ecologically functioning streams (or stream
and wetland systems) that are reconnected with their groundwater
aquifers (Parola and Biebighauser 2011, pp. 8-13; Parola and Hansen
2011, pp. 2-7; Floyd et al. 2013, pp. 129-135). These projects can be
accomplished using a variety of methods, but the desired outcome is a
natural, sinuous channel with low shear stress (force of water moving
against the channel); low bank heights and reconnection to the
floodplain; a reconnection of surface and groundwater systems,
resulting in perennial flows in the channel; riffles and pools composed
of existing soil, rock, and wood instead of large imported materials;
low compaction of soils within adjacent riparian areas; and inclusion
of riparian wetlands. First- to third-order, headwater streams
reconstructed in this way would offer suitable habitats for the
Kentucky arrow darter and contain stable channel features, such as
pools, glides, runs, and riffles, which could be used by the species
for spawning, rearing, growth, feeding, migration, and other normal
behaviors.
(2) Bank stabilization projects that utilize bioengineering methods
outlined by the Kentucky Energy and Environment Cabinet and Kentucky
Transportation Cabinet (Kentucky Environmental and Public Protection
Cabinet and Kentucky Transportation Cabinet 2005, pp. 116-128) to
replace pre-existing, bare, eroding stream banks with vegetated, stable
stream banks, thereby reducing bank erosion and instream sedimentation
and improving habitat conditions for the species. Following these
methods, stream banks may be stabilized using live stakes (live,
vegetative cuttings inserted or tamped into the ground in a manner that
allows the stake to take root and grow), live fascines (live branch
cuttings, usually willows, bound together into long, cigar-shaped
bundles), or brush layering (cuttings or branches of easily rooted tree
species layered between successive lifts of soil fill). These methods
would not include the sole use of quarried rock (rip-rap) or the use of
rock baskets or gabion structures.
(3) Bridge and culvert replacement/removal projects that remove
migration barriers (e.g., collapsing, blocked, or perched culverts) or
generally allow for improved upstream and downstream movements of
Kentucky arrow darters while maintaining normal stream flows,
preventing bed and bank erosion, and improving habitat conditions for
the species.
(4) Repair and maintenance of USFS concrete plank stream crossings
in the DBNF that allow for safe vehicle passage while maintaining
instream habitats, reducing bank and stream bed erosion and instream
sedimentation, and improving habitat conditions for the species. These
concrete plank crossings have been an effective stream crossing
structure in the DBNF and have been used for decades. Over time, the
planks can be buried by sediment or undercut during storm events, or
simply break down and decay. If these situations occur, the DBNF must
make repairs or replace the affected plank.
We believe that these actions and activities, while they may have
some minimal level of mortality, harm, or disturbance to the Kentucky
arrow darter, are not expected to adversely affect the species'
conservation and recovery efforts. In fact, we believe that they would
have a net beneficial effect on the species. Across the species' range,
instream habitats have been degraded physically by sedimentation and by
direct channel disturbance. The activities identified in this rule will
correct some of these problems, creating more favorable habitat
conditions for the species.
Based on the rationale above, the provisions included in this 4(d)
rule are necessary and advisable to provide for the conservation of the
Kentucky arrow darter. Nothing in this 4(d) rule would change in any
way the recovery planning provisions of section 4(f) of the Act, the
consultation requirements under section 7 of the Act, or the ability of
the Service to enter into partnerships for the management and
protection of the Kentucky arrow darter.
We may issue permits to carry out otherwise prohibited activities
involving threatened wildlife under certain circumstances. Regulations
governing permits are codified at 50 CFR 17.32. With regard to
threatened wildlife, a permit may be issued for scientific purposes, to
enhance the propagation or survival of the species, economic hardship,
zoological exhibition, educational purposes, and for incidental take in
connection with otherwise lawful activities. There are also certain
statutory exemptions from the prohibited activities, which are found in
sections 9 and 10 of the Act.
It is our policy, as published in the Federal Register on July 1,
1994 (59 FR 34272), to identify to the maximum extent practicable at
the time a species is listed, those activities that would or would not
constitute a violation of section 9 of the Act (for this species, those
section 9 prohibitions adopted through the 4(d) rule). The intent of
this policy is to increase public awareness of the effect of a final
listing on proposed and ongoing activities within the range of a listed
species. Based on the best available information, the following actions
are unlikely to result in a violation of section 9, if these activities
are carried out in accordance with existing regulations and permit
requirements, although this list is not comprehensive:
(1) Normal agricultural and silvicultural practices, including
herbicide and pesticide use, which are carried out in accordance with
any existing regulations, permit and label requirements, and best
management practices; and
(2) Surface coal mining and reclamation activities conducted in
accordance with the 1996 BO between the Service and OSM.
However, we believe the following activities may potentially result
in a violation of section 9 of the Act, although this list is not
comprehensive:
(1) Unauthorized collecting or handling of the species.
(2) Destruction or alteration of the habitat of the Kentucky arrow
darter (e.g., unpermitted instream dredging, impoundment, water
diversion or withdrawal, channelization, discharge of fill material)
that impairs essential behaviors such as breeding, feeding, or
sheltering, or results in killing or injuring a Kentucky arrow darter.
(3) Discharges or dumping of toxic chemicals, contaminants, or
other pollutants into waters supporting the Kentucky arrow darter that
kills or injures individuals, or otherwise impairs essential life-
sustaining behaviors such as breeding, feeding, or sheltering.
Questions regarding whether specific activities would constitute a
violation of section 9 of the Act should be directed to the Kentucky
Ecological Services Field Office (see FOR FURTHER INFORMATION CONTACT).
Required Determinations
National Environmental Policy Act (42 U.S.C. 4321 et seq.)
We have determined that environmental assessments and environmental
impact statements, as defined under the authority of the National
Environmental Policy Act, need not be prepared in connection with
listing a species as an endangered or threatened species under the
Endangered Species Act. We published a notice outlining our reasons for
this determination in the Federal Register on October 25, 1983 (48 FR
49244).
[[Page 68984]]
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 the
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. No tribal lands or other interests are
affected by the rule.
References Cited
A complete list of references cited in this rulemaking is available
on the Internet at https://www.regulations.gov in Docket No. FWS-R4-ES-
2015-0132 and upon request from the Kentucky Ecological Services Field
Office (see FOR FURTHER INFORMATION CONTACT).
Authors
The primary authors of this final rule are the staff members of the
Kentucky Ecological Services Field Office.
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--ENDANGERED AND THREATENED WILDLIFE AND PLANTS
0
1. The authority citation for part 17 continues to read as follows:
Authority: 16 U.S.C. 1361-1407; 1531-1544; and 4201-4245, unless
otherwise noted.
0
2. Amend Sec. 17.11(h) by adding an entry for ``Darter, Kentucky
arrow'' to the List of Endangered and Threatened Wildlife in
alphabetical order under FISHES to read as set forth below:
Sec. 17.11 Endangered and threatened wildlife.
* * * * *
(h) * * *
----------------------------------------------------------------------------------------------------------------
Listing citations and
Common name Scientific name Where listed Status applicable rules
----------------------------------------------------------------------------------------------------------------
* * * * * * *
----------------------------------------------------------------------------------------------------------------
FISHES
----------------------------------------------------------------------------------------------------------------
* * * * * * *
Darter, Kentucky arrow......... Etheostoma spilotum.. Wherever found. T.............. 81 FR [Insert Federal
Register page where
the document begins];
October 5, 2016, 50
CFR 17.44(p)\4d\, 50
CFR 17.95(e) \CH\.
* * * * * * *
----------------------------------------------------------------------------------------------------------------
0
3. Amend Sec. 17.44 by adding paragraph (p) to read as follows:
Sec. 17.44 Special rules--fishes.
* * * * *
(p) Kentucky arrow darter (Etheostoma spilotum).
(1) Prohibitions. Except as noted in paragraph (p)(2) of this
section, all prohibitions and provisions of 50 CFR 17.31 and 17.32
apply to the Kentucky arrow darter.
(2) Exceptions from prohibitions.
(i) All of the activities listed in paragraph (p)(2)(ii) of this
section must be conducted in a manner that:
(A) Maintains connectivity of suitable Kentucky arrow darter
habitats, allowing for dispersal between streams;
(B) Minimizes instream disturbance by occurring during low-flow
periods when possible; and
(C) Maximizes the amount of instream cover that is available for
the species.
(ii) Incidental take of the Kentucky arrow darter will not be
considered a violation of section 9 of the Act if the take results from
any of the following when conducted within habitats currently occupied
by the Kentucky arrow darter:
(A) Channel reconfiguration or restoration projects that create
natural, physically stable, ecologically functioning streams (or stream
and wetland systems) that are reconnected with their groundwater
aquifers. These projects can be accomplished using a variety of
methods, but the desired outcome is a natural, sinuous channel with low
shear stress (force of water moving against the channel); low bank
heights and reconnection to the floodplain; a reconnection of surface
and groundwater systems, resulting in perennial flows in the channel;
riffles and pools composed of existing soil, rock, and wood instead of
large imported materials; low compaction of soils within adjacent
riparian areas; and inclusion of riparian wetlands. First- to third-
order headwater streams reconstructed in this way would offer suitable
habitats for the Kentucky arrow darter and contain stable channel
features, such as pools, glides, runs, and riffles, which could be used
by the species for spawning, rearing, growth, feeding, migration, and
other normal behaviors.
(B) Bank stabilization projects that use State-approved
bioengineering methods (specified by the Kentucky Energy and
Environment Cabinet and the Kentucky Transportation Cabinet) to replace
preexisting, bare, eroding stream banks with vegetated, stable stream
banks, thereby reducing bank erosion and instream sedimentation and
improving habitat conditions for the species. Following these methods,
stream banks may be stabilized using live stakes (live, vegetative
cuttings inserted or tamped into the ground in a manner that allows the
stake to take root and grow), live fascines (live branch cuttings,
usually willows, bound together into long, cigar-shaped bundles), or
brush layering (cuttings or branches of easily rooted tree species
layered between successive lifts of soil fill). These methods would not
include the sole use of quarried rock (rip-rap) or the use of rock
baskets or gabion structures.
[[Page 68985]]
(C) Bridge and culvert replacement/removal projects that remove
migration barriers (e.g., collapsing, blocked, or perched culverts) or
generally allow for improved upstream and downstream movements of
Kentucky arrow darters while maintaining normal stream flows,
preventing bed and bank erosion, and improving habitat conditions for
the species.
(D) Repair and maintenance of U.S. Forest Service concrete plank
stream crossings on the Daniel Boone National Forest (DBNF) that allow
for safe vehicle passage while maintaining instream habitats, reducing
bank and stream bed erosion and instream sedimentation, and improving
habitat conditions for the species. These concrete plank crossings have
been an effective stream crossing structure on the DBNF and have been
used for decades. Over time, the planks can be buried by sediment,
undercut during storm events, or simply break down and decay. If these
situations occur, the DBNF must make repairs or replace the affected
plank.
* * * * *
Dated: September 19, 2016.
Stephen Guertin,
Acting Director, U.S. Fish and Wildlife Service.
[FR Doc. 2016-23545 Filed 10-4-16; 8:45 am]
BILLING CODE 4333-15-P
