Endangered and Threatened Wildlife and Plants; Reclassification of the Relict Darter From Endangered to Threatened With a Section 4(d) Rule, 12056-12073 [2022-03315]
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Federal Register / Vol. 87, No. 42 / Thursday, March 3, 2022 / Proposed Rules
(c) Acceptance of payment from a
non–Federal source for travel expenses
(see chapter 304 of this title); and
(d) Travel expenses related to
attendance at a conference.
Appendix C to Chapter 301
■ 49. Amend appendix C to chapter 301
by—
■ a. Revising the entry for
‘‘Transportation Method Indicator’’ in
the table for ‘‘Commercial
Transportation Information’’; and
revising the entry for ‘‘Transportation
Method Indicator’’ in the table ‘‘Travel
Expense Information’’. The revisions
read as follows:
Appendix C to Chapter 301—Standard
Data Elements for Federal Travel
[Traveler Identification]
*
*
*
*
*
COMMERCIAL TRANSPORTATION INFORMATION
Group name
Data elements
*
*
Transportation Method Indicator ....
*
Description
*
*
*
*
Air (other than coach class) .......... Common carrier used as transportation to TDY location.
Air (coach class).
Non-contract Air, Train, Other.
*
*
*
*
*
*
*
TRAVEL EXPENSE INFORMATION
Group name
Data elements
*
*
Transportation Method Indicator ....
*
*
*
*
*
*
*
*
Air (other than coach class) .......... The amount of money the transportation actually cost the traveler, entered according to method of transportation.
Air (coach class).
Non-contract Air, Train.
Other .............................................. Bus or other form of transportation.
*
*
*
*
50. The authority citation for part
304–3 continues to read as follows:
■
Authority: 5 U.S.C. 5707; 31 U.S.C. 1353.
51. Revise § 304–3.9 to read as
follows:
■
§ 304–3.9 May I use other than coach class
accommodations on common carriers when
a non-Federal source pays in full for my
common carrier expenses to attend a
meeting?
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Yes, you may use other than coach
class accommodations on common
carriers if you meet one of the criteria
contained in § 301–10.103 of this title,
and are authorized to do so by your
agency in accordance with § 304–5.5 of
this chapter.
PART 304–5—AGENCY
RESPONSIBILITIES
*
Yes, you may authorize an employee
to use other than coach class
accommodations on common carriers as
long as the:
*
*
*
*
*
(c) Travel meets at least one of the
conditions in § 301–10.103 of this title.
[FR Doc. 2022–03068 Filed 3–2–22; 8:45 am]
BILLING CODE 6820–14–P
DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
[Docket No. FWS–R4–ES–2021–0093;
FF09E22000 FXES1113090FEDR 223]
RIN 1018–BF56
52. The authority citation for 41 CFR
part 304–5 continues to read as follows:
■
Authority: 5 U.S.C. 5707; 31 U.S.C. 1353.
52. Amend § 304–5.5 by revising the
section heading, introductory text, and
paragraph (c) to read as follows:
■
16:46 Mar 02, 2022
*
§ 304–5.5 May we authorize an employee
to use other than coach class
accommodations on common carriers if we
accept payment in full from a non-Federal
source for such transportation expenses?
*
PART 304–3—EMPLOYEE
RESPONSIBILITY
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Description
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Endangered and Threatened Wildlife
and Plants; Reclassification of the
Relict Darter From Endangered to
Threatened With a Section 4(d) Rule
AGENCY:
Fish and Wildlife Service,
Interior.
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*
*
Proposed rule; availability of
draft recovery plan and request for
public comment.
ACTION:
We, the U.S. Fish and
Wildlife Service (Service), propose to
reclassify (downlist) the relict darter
(Etheostoma chienense) from
endangered to threatened under the
Endangered Species Act of 1973, as
amended (Act). The relict darter is a fish
species that occupies the Bayou de
Chien stream system in western
Kentucky. Our evaluation of the best
available scientific and commercial
information indicates that the species’
status has improved such that it is not
currently in danger of extinction
throughout all or a significant portion of
its range, but that it is still likely to
become so in the foreseeable future. We
also propose a rule under section 4(d) of
the Act that provides for the
conservation of the relict darter. In
addition, we announce the availability
of the draft recovery plan for the relict
darter. The draft recovery plan includes
specific recovery objectives and criteria
based on the species status assessment.
We request review of this proposal and
of the draft recovery plan and comment
from local, State, and Federal agencies,
nongovernmental organizations, Tribes,
and the public.
SUMMARY:
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We will accept comments
received or postmarked on or before
May 2, 2022. Comments submitted
electronically using the Federal
eRulemaking Portal (see ADDRESSES,
below) must be received by 11:59 p.m.
Eastern Time on the closing date. We
must receive requests for a public
hearing, in writing, at the address
shown in FOR FURTHER INFORMATION
CONTACT by April 18, 2022.
ADDRESSES:
Written comments: You may submit
comments by one of the following
methods:
(1) Electronically: Go to the Federal
eRulemaking Portal: https://
www.regulations.gov. In the Search box,
enter FWS–R4–ES–2021–0093, which is
the docket number for this rulemaking.
Then, click on the Search button. On the
resulting page, in the panel on the left
side of the screen, under the Document
Type heading, check the Proposed Rule
box to locate this document. You may
submit a comment by clicking on
‘‘Comment.’’
(2) By hard copy: Submit by U.S. mail
to: Public Comments Processing, Attn:
FWS–R4–ES–2021–0093, U.S. Fish and
Wildlife Service, MS: PRB/3W, 5275
Leesburg Pike, Falls Church, VA 22041–
3803.
We request that you send comments
only by the methods described above.
We will post all comments on https://
www.regulations.gov. This generally
means that we will post any personal
information you provide us (see
Information Requested, below, for more
information).
Availability of supporting materials:
This proposed rule and supporting
documents, including the 5-year review,
the draft recovery plan, and the species
status assessment (SSA) report, are
available at https://www.regulations.gov
under Docket No. FWS–R4–ES–2021–
0093.
DATES:
Lee
Andrews, 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.
Persons who use a telecommunications
device for the deaf (TDD) may call the
Federal Relay Service at 800–877–8339.
SUPPLEMENTARY INFORMATION:
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FOR FURTHER INFORMATION CONTACT:
Executive Summary
Why we need to publish a rule. Under
the Act, a species warrants
reclassification from endangered to
threatened if it no longer meets the
definition of an endangered species (in
danger of extinction throughout all or a
significant portion of its range). The
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relict darter (Etheostoma chienense) is
listed as endangered, and we are
proposing to reclassify (downlist) the
relict darter as threatened because we
have determined it is not currently in
danger of extinction throughout all or a
significant portion of its range.
Reclassifying a species as a threatened
species can be completed only by
issuing a rulemaking.
What this document does. This
rulemaking proposes to reclassify the
relict darter from endangered to
threatened (i.e., to ‘‘downlist’’ the
species), with a rule issued under
section 4(d) of the Act (hereafter ‘‘a 4(d)
rule’’), based on the species’ current
status, which has been improved
through implementation of conservation
actions. This document also announces
the availability of the draft recovery
plan for the relict darter.
The basis for our action. Under the
Act, we may determine that a species is
an endangered species or a threatened
species because of 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 may reclassify a species if
the best available commercial and
scientific data indicate the species no
longer meets the applicable definition in
the Act. We have determined that the
relict darter is no longer in danger of
extinction throughout all or a significant
portion of its range and, therefore, does
not meet the definition of an
endangered species. However, it is still
affected by the following current and
ongoing threats to the extent that the
species meets the definition of a
threatened species under the Act:
• Habitat destruction and
modification caused by sedimentation,
stream channelization, removal of
riparian vegetation, drainage of riparian
wetlands, and point and nonpoint
source discharges.
• Drought, accidental spills, and
catastrophic events.
• Low genetic diversity resulting in
reduced adaptive capacity and the
inability to withstand stochastic
disturbances.
• Effects from climate change that are
likely to exacerbate the impacts of
drought, hurricanes, and flooding
associated with storms and hurricanes
in the future.
Proposed section 4(d) rule. Under
section 4(d) of the Act, we propose to
prohibit all take of the relict darter and
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specifically tailor the incidental take
exceptions under section 9(a)(1) of the
Act to the species to provide protective
mechanisms to State and Federal
partners so that they may continue with
certain activities that are not anticipated
to cause direct injury or mortality to the
relict darter and that will facilitate the
conservation and recovery of the
species.
Information Requested
We intend that any final action
resulting from this proposed rule will be
based on the best scientific and
commercial data available and be as
accurate and as effective as possible.
Therefore, we request comments or
information from other governmental
agencies, Native American Tribes, the
scientific community, industry, or any
other interested parties concerning this
proposed rule.
We particularly seek comments
concerning:
(1) Reasons we should or should not
reclassify the relict darter as a
threatened species.
(2) New information on the historical
and current status, range, distribution,
and population size of the relict darter.
(3) New information on the known
and potential threats to the relict darter,
including the species’ ability to survive
catastrophic events, sediment and
pollution tolerance, and potential
impacts of low effective population size
and low genetic diversity.
(4) New information regarding the life
history, ecology, and habitat use of the
relict darter.
(5) Current or planned activities
within the geographic range of the relict
darter that may have adverse impacts or
beneficial effects on the species.
(6) Information on regulations that are
necessary and advisable to provide for
the conservation of the relict darter and
that the Service can consider in
developing a 4(d) rule for the species.
(7) Information concerning the extent
to which we should include any of the
section 9 prohibitions in the 4(d) rule or
whether any other forms of take should
be excepted from the prohibitions in the
4(d) rule.
(8) We also request comments on the
draft recovery plan, which is a separate
effort from the proposed rulemaking.
Please include sufficient information
with your submission (such as scientific
journal articles or other publications) to
allow us to verify any scientific or
commercial information you include.
Please note that submissions merely
stating support for, or opposition to, the
proposed rule to reclassify the relict
darter without providing supporting
information, although noted, will not be
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considered in making a determination
on the reclassification, as section
4(b)(1)(A) of the Act directs that
determinations as to whether any
species is an endangered or a threatened
species must be made solely on the
basis of the best scientific and
commercial data available.
You may submit your comments and
materials concerning this proposed rule
and draft recovery plan by one of the
methods listed in ADDRESSES. We
request that you send comments only by
the methods described in ADDRESSES.
If you submit information via https://
www.regulations.gov, your entire
submission—including any personal
identifying information—will be posted
on the website. If your submission is
made via a hardcopy that includes
personal identifying information, you
may request at the top of your document
that we withhold this information from
public review. However, we cannot
guarantee that we will be able to do so.
We will post all hardcopy submissions
on https://www.regulations.gov.
Comments and materials we receive,
as well as supporting documentation we
used in preparing this proposed rule,
will be available for public inspection
on https://www.regulations.gov.
Because we will consider all
comments and information we receive
during the comment period, our final
determinations may differ from this
proposal. Based on the new information
we receive (and any comments on that
new information), we may conclude that
the species should remain listed as
endangered instead of being reclassified
as threatened, or we may conclude that
the species no longer warrants listing as
either an endangered species or a
threatened species. In addition, we may
change the parameters of the
prohibitions or the exceptions to those
prohibitions if we conclude it is
appropriate in light of comments and
new information received. For example,
we may expand the prohibitions to
include prohibiting additional activities
if we conclude that those additional
activities are not compatible with the
conservation of the species. Conversely,
we may establish additional exceptions
to the prohibitions in the final rule if we
conclude that the activities would
facilitate or are compatible with the
conservation and recovery of the
species.
Public Hearing
Section 4(b)(5) of the Act provides for
a public hearing on this proposal, if
requested. Requests must be received by
the date specified in DATES. Such
requests must be sent to the address
shown in FOR FURTHER INFORMATION
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CONTACT.
We will schedule a public
hearing on this proposal, if requested,
and announce the date, time, and place
of the hearing, as well as how to obtain
reasonable accommodations, in the
Federal Register and local newspapers
within the range of the species at least
15 days before the hearing. For the
immediate future, we will provide these
public hearings using webinars that will
be announced on the Service’s website,
in addition to the Federal Register. The
use of these virtual public hearings is
consistent with our regulations at 50
CFR 424.16(c)(3).
Supporting Documents
A species status assessment (SSA)
team prepared an SSA report for the
relict darter. The SSA team was
composed of Service biologists, in
consultation with other species experts.
The SSA report represents a
compilation of the best scientific and
commercial data available concerning
the status of the species, including the
impacts of past, present, and future
factors (both negative and beneficial)
affecting the species.
In accordance with our July 1, 1994,
peer review policy (59 FR 34270; July 1,
1994), our August 22, 2016, Director’s
Memo on the Peer Review Process, and
the Office of Management and Budget’s
December 16, 2004, Final Information
Quality Bulletin for Peer Review
(revised June 2012), we solicited
independent scientific reviews of the
information contained in the relict
darter SSA report. We sent the SSA
report to three independent peer
reviewers and received three responses.
Results of this structured peer review
process can be found as part of the
docket at https://www.regulations.gov
under Docket No. FWS–R4–ES–2021–
0093. The SSA report was also
submitted to our Federal and State
partners for scientific review. We
received review comments from four
partners, including the Kentucky
Department of Fish and Wildlife
Resources (KDFWR), the Office of
Kentucky Nature Preserves (OKNP), the
U.S. Department of Agriculture’s
Natural Resources Conservation Service
(NRCS), and The Nature Conservancy
(TNC). In preparing this proposed rule,
we incorporated the results of these
reviews, as appropriate, into the final
SSA report, which is the foundation for
this proposed rule and the draft
recovery plan.
Previous Federal Actions
The relict darter was proposed for
listing as an endangered species on
December 11, 1992 (57 FR 58774). On
December 27, 1993 (58 FR 68480), we
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finalized the listing as endangered due
to impacts from water quality and
habitat deterioration resulting from
stream channelization, siltation
contributed by poor land use practices,
and water pollutants. Designation of
critical habitat was found to be not
prudent based on the determination that
a critical habitat designation was
unlikely to benefit the relict darter and
that designation of critical habitat could
further threaten the species by exposing
the species to increased collection and
threat of vandalism.
On July 31, 1994, we published a
technical/agency draft recovery plan for
the relict darter, which was not
finalized. In 2019, as part of the
Department of the Interior’s agency
priority goal effort, we initiated
preparation of a revised draft recovery
plan for the relict darter. The current
draft (Service 2020b, entire) is available
for review at https://
www.regulations.gov under Docket No.
FWS–R4–ES–2021–0093.
We have completed two 5-year
reviews for the relict darter. In the
August 9, 2013, 5-year review, we
concluded that no change in relict
darter status was warranted. However,
the August 30, 2019, our 5-year review
recommended downlisting the relict
darter from endangered to threatened
status based on population size,
evidence of reproduction, discovery of a
new population, and improved habitat
conditions.
Proposed Reclassification
Determination
Background
A thorough review of the relict
darter’s taxonomy, life history, and
ecology is presented in the SSA report
(Service 2020a, pp. 8–15) and is
summarized below.
Species Information
The relict darter is a small, narrowly
endemic, benthic fish that occupies the
Bayou de Chien stream system in
western Kentucky. It can be
distinguished from other darters by the
number of dorsal fin rays (bony or
cartilaginous spines of first and second
fins along top of body), its breeding
behavior (egg-clustering with parental
care), and the color and morphology of
the dorsal fins of breeding males.
Females and nonbreeding males have
light-tan-colored backs and sides, with
brown mottling and six to eight dark
brown saddles. They have white,
unmarked undersides. Breeding males
have gray to dark brown sides and backs
and light tan undersides (Page et al.
1992, p. 628).
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Taxonomy
The relict darter, Etheostoma
chienense, is a member of the Class
Actinopterygii (ray-finned fishes), Order
Perciformes, Family Percidae (perches),
and Tribe Etheostomatini (darters)
(Etnier and Starnes 1993, pp. 18–25,
440–441). The relict darter was first
discovered in the Bayou de Chien
system in 1975 (Webb and Sisk 1975),
reported as E. squamiceps, but it was
not recognized as a distinct species and
described until 1992.
Genetics
A population bottleneck and
subsequent genetic drift likely explain
the species’ low genetic diversity and
low effective population size, which is
estimated at a mean of 221.5
individuals, lower than what is usually
sufficient (500) to retain a species’
evolutionary potential (Soule 1980, pp.
151–169; Kattawar and Piller 2020,
entire). Agricultural expansion within
the Bayou de Chien system during the
early to mid-20th century, including
widespread channelization and
straightening of stream channels, likely
led to a sharp reduction in the size of
the relict darter population. Populations
have likely stabilized some over time,
but the effects of a population
bottleneck and subsequent genetic drift
appears to have led to low levels of
genetic diversity across the range.
Recent field surveys (2010–2019)
suggest that relict darters in Little Bayou
de Chien are isolated from the rest of the
system; however, analyses indicate a
single panmictic population, where
random mating occurs among all
individuals in the Bayou de Chien
system (i.e., individuals can interbreed
without restrictions) (Kattawar and
Piller 2020, entire).
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Distribution
The relict darter’s historical range
included the Bayou de Chien stream
system, a 554-kilometer2 (km2) (214mile2 (mi2)) watershed located within
the Mississippi Valley Loess Plains
ecoregion (Woods et al. 2002, entire) in
Fulton, Graves, and Hickman Counties,
Kentucky (Webb and Sisk 1975, entire;
Warren et al. 1994, entire; Piller and
Burr 1998, entire). Bayou de Chien is a
low-gradient, sand, gravel, and siltbottomed stream that begins in
southwestern Graves County and flows
westward approximately 47 km (29.2
mi) through Hickman and Fulton
Counties, before ultimately emptying
into Obion Creek near Hickman,
Kentucky. All but the terminal 8–10 km
(5.0–6.2 mi) of Bayou de Chien have
been subjected to extensive
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channelization, and the dominant land
use is row-crop agriculture (Webb and
Sisk 1975, p. 63). Currently, the relict
darter continues to occupy portions of
the Bayou de Chien system in Fulton,
Graves, and Hickman counties,
Kentucky. The species is represented by
two geographically isolated populations:
Bayou de Chien/Jackson Creek and
Little Bayou de Chien (Service 2020a, p.
20).
Habitat
The species typically occupies slowflowing runs, glides, or pools of small to
medium-sized, lowland streams with
sand and gravel substrates. In these
habitats, the species is most commonly
observed near cover, such as undercut
banks, woody debris piles, or snags. An
abundance of woody debris provides a
sufficient supply of spawning substrates
and, consequently, the highest mean
densities of the species (Service 2020a,
p. 10).
Biology
The species feeds primarily on midge
larvae and other small invertebrates.
Spawning occurs from mid-March to
early June, and the species has a
maximum lifespan of 3 to 4 years. Like
all members of the Etheostoma
squamiceps complex, females deposit
eggs on the undersides of submerged
objects, and egg clusters are guarded by
the male until hatching occurs (Service
1994, p. 7). During a 1999 survey, most
nests were located on natural materials
such as small rocks, woody debris, and
live tree roots, but 37 percent of nests
were found on anthropogenic materials
such as rubber tires, plastic, roof
shingles, glass, concrete blocks, metal
road signs, and concrete slabs (Piller
and Burr 1999, pp. 147–151).
The species was characterized as
uncommon or rare at most collection
sites in the 1990s, generally consisting
of 1–23 individuals per site (Piller and
Burr 1998, pp. 66–71). Recent surveys
indicate the species continues to be rare
in some reaches but is more common in
others. Generally, the greatest number of
darters per sampling reach and the
highest mean densities (0.43 darters/
square meter) have been observed in
Jackson Creek and an approximately
22.6-km (14.1-mi) reach of Bayou de
Chien (0.30 darters/square meter),
extending from just downstream of the
U.S. 51 bridge crossing in Hickman
County upstream to the Pea Ridge Road
bridge crossing in Graves County
(Service 2020a, Appendix A).
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Recovery Criteria From Draft Recovery
Plan (2020)
Section 4(f) of the Act directs us to
develop and implement recovery plans
for the conservation and survival of
endangered and threatened species
unless we determine that such a plan
will not promote the conservation of the
species. Under section 4(f)(1)(B)(ii),
recovery plans must, to the maximum
extent practicable, include objective,
measurable criteria which, when met,
would result in a determination, in
accordance with the provisions of
section 4 of the Act, that the species be
removed from the Lists of Endangered
and Threatened Wildlife and Plants.
Recovery plans provide a roadmap for
us and our partners on methods of
enhancing conservation and minimizing
threats to listed species, as well as
measurable criteria against which to
evaluate progress towards recovery and
assess the species’ likely future
condition. However, they are not
regulatory documents and do not
substitute for the determinations and
promulgation of regulations required
under section 4(a)(1) of the Act. A
decision to revise the status of a species,
or to delist a species, is ultimately based
on an analysis of the best scientific and
commercial data available to determine
whether a species is no longer an
endangered species or a threatened
species, regardless of whether that
information differs from the recovery
plan.
There are many paths to
accomplishing recovery of a species,
and recovery may be achieved without
all of the criteria in a recovery plan
being fully met. For example, one or
more criteria may be exceeded while
other criteria may not yet be
accomplished. In that instance, we may
determine that the threats are
minimized sufficiently and that the
species is robust enough that it no
longer meets the definition of an
endangered species or a threatened
species. In other cases, we may discover
new recovery opportunities after having
finalized the recovery plan. Parties
seeking to conserve the species may use
these opportunities instead of methods
identified in the recovery plan.
Likewise, we may learn new
information about the species after we
finalize the recovery plan. The new
information may change the extent to
which existing criteria are appropriate
for identifying recovery of the species.
The recovery of a species is a dynamic
process requiring adaptive management
that may, or may not, follow all of the
guidance provided in a recovery plan.
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The revised draft recovery plan for the
relict darter (Service 2020b, p. 4) states
that the goal of the recovery plan is to
ensure the long-term viability of the
relict darter in the wild to the point that
it can be removed from the Federal List
of Endangered and Threatened Wildlife.
The draft plan provides two recovery/
delisting criteria for the relict darter.
Both of the recovery criteria have been
partially met. The following discussion
provides an assessment of the recovery
criteria as they relate to evaluating the
status of this species. We are seeking
review and comment of the draft
recovery plan from local, State, and
Federal agencies, nongovernmental
organizations, Tribes, and the public
(see ADDRESSES and reference Docket
No. FWS–R4–ES–2021–0093).
Recovery Criterion 1
Criterion 1 states that relict darter
populations occupying at least five
streams, including the Bayou de Chien
mainstem, Jackson Creek, Little Bayou
de Chien, South Fork Bayou de Chien,
and one other Bayou de Chien tributary
exhibit stable or increasing population
trends, natural recruitment, and
multiple age classes.
Populations that exhibit a stable or
increasing trend, natural recruitment,
and multiple age classes have higher
resiliency and are better able to
withstand stochastic disturbance. The
presence of sufficiently resilient
populations in multiple tributaries
increases the species’ redundancy,
thereby reducing its vulnerability to
catastrophic events. Conservation of
existing relict darter populations in the
Bayou de Chien and Little Bayou de
Chien watersheds will also help to
maintain the species’ current
representation, which although
currently low, maintenance will
therefore not reduce the species’ ability
to adapt to changing environmental
conditions.
The Bayou de Chien/Jackson Creek
population of relict darter occupies at
least six streams, including Bayou de
Chien, Jackson Creek, Little Bayou de
Chien, South Fork Bayou de Chien,
Cane Creek, and Sand Creek (Service
2020a, p. 20). However, only two of
these streams have exhibited stable or
increasing population trends,
recruitment, and multiple age classes—
Jackson Creek and Bayou de Chien.
Recent surveys (2017–2018) indicate
that estimates of relict darter
abundance, mean density, and
population size continue to be greatest
in Jackson Creek and middle to
headwater reaches of Bayou de Chien
(Service 2020a, pp. 35–36). There is also
evidence of reproduction and
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recruitment in Bayou de Chien and
Jackson Creek streams, and these trends
have remained relatively constant or
have improved based on surveys
completed in the past decade (Service
2019, p. 22). Therefore, we conclude
that this recovery criterion has been
partially met.
continues to be impacted by
sedimentation, pollution, a limited
range and linear distribution, and low
genetic diversity (Service 2020a, pp. 37–
38). Therefore, we consider this
recovery criterion to be partially met.
Recovery Criterion 2
Criterion 2 states that threats have
been addressed and/or managed in these
watersheds to the extent that the species
will maintain resiliency into the
foreseeable future.
Under this criterion, cooperative
conservation efforts by the Service and
its partners will reduce existing threats
posed by habitat disturbance, range
curtailment, and past inadequate
regulatory mechanisms. These threats
must be reduced to the extent that there
is a reasonable expectation the species
will maintain resiliency into the
foreseeable future. Evidence of threat
reduction will be demonstrated by the
species’ improved resiliency and
redundancy across its range.
Since 2002, we have worked with
multiple agencies and private partners
(e.g., NRCS, KDFWR, and TNC) to
implement conservation actions for the
relict darter in the Bayou de Chien
system (Service 2020a, p. 29). Our
Partners for Fish and Wildlife (PFW)
Program has taken the lead role in this
effort by providing technical and
financial assistance to agencies and
numerous private landowners. PFW
biologists have focused their efforts on
the use of best management practices
(BMPs) and instream conservation
practices that enhance and restore
riparian habitats and the instream
habitats used by the relict darter. PFW
projects have included a culvert
removal in the headwaters of Bayou de
Chien, installation of livestock alternate
watering systems, placement of artificial
spawning structures in Bayou de Chien
and Jackson Creek, installation of
livestock exclusion fencing along
several km of Bayou de Chien and
Jackson Creek, and restoration of over
20.2 hectares (50 acres) of native grasses
and wildflowers within riparian areas.
In addition to these efforts, PFW
biologists have provided over 10 years
of technical assistance to the U.S.
Department of Agriculture, Wetland
Reserve Easement Program, for projects
within the Bayou de Chien system
(Radomski 2019, pers. comm.).
While some of the stream habitats
within the Bayou de Chien watershed
have improved since the time of the
listing of the relict darter, the
improvements are often localized, and
several threats remain. The species
Regulatory Framework
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Regulatory and Analytical Framework
Section 4 of the Act (16 U.S.C. 1533)
and its implementing regulations (50
CFR part 424) set forth the procedures
for determining whether a species is an
‘‘endangered species’’ or a ‘‘threatened
species.’’ The Act defines an
endangered species as a species that is
in danger of extinction throughout all or
a significant portion of its range, and a
threatened species as a species that is
likely to become an endangered species
within the foreseeable future throughout
all or a significant portion of its range.
The Act requires that we determine
whether any species is an ‘‘endangered
species’’ or a ‘‘threatened species’’
because of any of the following 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.
These factors represent broad
categories of natural or human-caused
actions or conditions that could affect a
species’ continued existence. In
evaluating these actions and conditions,
we look for those that may have a
negative effect on individuals of the
species, as well as other actions or
conditions that may ameliorate any
negative effects or may have positive
effects. We consider these same five
factors in reclassifying a species from
endangered to threatened (50 CFR
424.11(c)–(e)).
We use the term ‘‘threat’’ to refer in
general to actions or conditions that are
known to or are reasonably likely to
negatively affect individuals of a
species. The term ‘‘threat’’ includes
actions or conditions that have a direct
impact on individuals (direct impacts),
as well as those that affect individuals
through alteration of their habitat or
required resources (stressors). The term
‘‘threat’’ may encompass—either
together or separately—the source of the
action or condition or the action or
condition itself.
However, the mere identification of
any threat(s) does not necessarily mean
that the species meets the statutory
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definition of an ‘‘endangered species’’ or
a ‘‘threatened species.’’ In determining
whether a species meets either
definition, we must evaluate all
identified threats by considering the
species’ expected response and the
effects of the threats—in light of those
actions and conditions that will
ameliorate the threats—on an
individual, population, and species
level. We evaluate each threat and its
expected effects on the species, then
analyze the cumulative effect of all of
the threats on the species as a whole.
We also consider the cumulative effect
of the threats in light of those actions
and conditions that will have positive
effects on the species—such as any
existing regulatory mechanisms or
conservation efforts. The Secretary
determines whether the species meets
the definition of an ‘‘endangered
species’’ or a ‘‘threatened species’’ only
after conducting this cumulative
analysis and describing the expected
effect on the species now and in the
foreseeable future.
The Act does not define the term
‘‘foreseeable future,’’ which appears in
the statutory definition of ‘‘threatened
species.’’ Our implementing regulations
at 50 CFR 424.11(d) set forth a
framework for evaluating the foreseeable
future on a case-by-case basis. The term
foreseeable future extends only so far
into the future as we can reasonably
determine that both the future threats
and the species’ responses to those
threats are likely. In other words, the
foreseeable future is the period of time
in which we can make reliable
predictions. ‘‘Reliable’’ does not mean
‘‘certain’’; it means sufficient to provide
a reasonable degree of confidence in the
prediction. Thus, a prediction is reliable
if it is reasonable to depend on it when
making decisions.
It is not always possible or necessary
to define foreseeable future as a
particular number of years. Analysis of
the foreseeable future uses the best
scientific and commercial data available
and should consider the timeframes
applicable to the relevant threats and to
the species’ likely responses to those
threats in view of its life-history
characteristics. Data that are typically
relevant to assessing the species’
biological response include speciesspecific factors such as lifespan,
reproductive rates or productivity,
certain behaviors, and other
demographic factors.
Analytical Framework
The SSA report documents the results
of our comprehensive biological review
of the best scientific and commercial
data regarding the status of the species,
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including an assessment of the potential
threats to the species. The SSA report
does not represent our decision on
whether the species should be
reclassified as a threatened species
under the Act. It does, however, provide
the scientific basis that informs our
regulatory decisions, which involve the
further application of standards within
the Act and its implementing
regulations and policies.
To assess relict darter viability, we
used the three conservation biology
principles of resiliency, redundancy,
and representation (Shaffer and Stein
2000, pp. 306–310). Briefly, resiliency
supports the ability of the species to
withstand environmental and
demographic stochasticity (for example,
wet or dry, warm or cold years);
redundancy supports the ability of the
species to withstand catastrophic events
(for example, droughts, large pollution
events), and representation supports the
ability of the species to adapt over time
to long-term changes in the environment
(for example, climate changes). In
general, the more resilient and
redundant a species is and the more
representation it has, the more likely it
is to sustain its populations over time,
even under changing environmental
conditions. Using these principles, we
identified the species’ ecological
requirements for survival and
reproduction at the individual,
population, and species levels, and
described the beneficial and risk factors
influencing the species’ viability.
The SSA process can be categorized
into three sequential stages. During the
first stage, we evaluated the species’
ecological and life-history needs. The
next stage involved an assessment of the
historical and current condition of the
species’ demographics and habitat
characteristics, including an
explanation of how the species arrived
at its current condition. The final stage
of the SSA involved making predictions
about the species’ responses to positive
and negative environmental and
anthropogenic influences. Throughout
all of these stages, we used the best
available information to characterize
viability as the ability of the species to
sustain its populations in the wild over
time. We use this information to inform
our regulatory decision. The following
is a summary of the key results and
conclusions from the SSA report; the
full SSA report can be found at Docket
No. FWS–R4–ES–2021–0093 on https://
www.regulations.gov.
Summary of Biological Status and
Threats
In this section, we review the
biological condition of the species and
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its resources, and we evaluate threats
influencing the species’ current and
future condition. These assessments
allow us to assess the species’ overall
viability and the risks to that viability.
Factors Influencing Relict Darter
Viability
At the time of listing in 1993, the
relict darter was known only from the
Bayou de Chien mainstem and Jackson
Creek, but it was later discovered in the
Little Bayou de Chien in 2017 (Service
2019, p. 11). Threats to the species at
the time of listing were water quality
and habitat deterioration resulting from
stream channelization, siltation
contributed by incompatible land use
practices, and water pollutants from
waste discharges. Relict darter
distribution was reduced by these
factors, and because the species was
known to inhabit only limited areas and
known to spawn in only one small
tributary, it was deemed vulnerable to
extirpation from toxic chemical spills
(58 FR 68481, December 27, 1993).
Additionally, because of its small
population size, the species’ long-term
genetic viability was determined
questionable at the time of listing.
While the relict darter’s viability has
improved over time (see Conservation
Efforts), three major factors are
influencing the viability of the species
now and are expected to affect it into
the future: Habitat loss and degradation,
restricted range/isolation, and climate
change. Habitat loss and degradation
resulting from siltation, channelization/
riparian vegetation removal, drainage of
riparian wetlands, and water quality
degradation (pollution) (Factor A) pose
the largest risk to the current and future
viability of the relict darter. Other
potential stressors to the species are the
restricted range of the species and
climate change (Factor E). We find the
species does not face threats from
overutilization (Factor B), disease or
predation (Factor C), or invasive species
(Factor E). A brief summary of relevant
stressors is presented below; for a full
description, refer to chapter 3 of the
SSA report (Service 2020a, entire).
Siltation
Siltation is the process whereby
excess sediments are suspended or
deposited in a stream. Excessive levels
of sediment accumulate and cover the
stream bottom, filling the interstitial
spaces with finer substrates and
homogenizing and decreasing the
available habitat for fishes. In severe
cases, sediment can bury larger
substrate particles such as gravel and
cobble, as well as woody debris.
Siltation can abrade or suffocate fish
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gills, eggs, and larvae; reduce disease
tolerance; degrade or destroy spawning
habitats, affecting egg, larval, and
juvenile development; modify migration
patterns; reduce food availability
through the blockage of primary
production; and reduce foraging
efficiency (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).
Thus, siltation is a threat to all life
stages of relict darter. In addition, relict
darter spawning substrates are usually
the undersides of fixed objects (e.g.,
wood, tree roots, cobble, tires) and are
vulnerable to the effects of siltation (i.e.,
embeddedness, or being completely
covered in sediment) (Service 2020a, p.
14).
Sediment (siltation) is one of the most
common stressors of aquatic
communities in the Bayou de Chien
system (Kentucky Division of Water
(KDOW) 2018, pp. 43–45). The primary
sources of sediment are as agriculture
(crop production) and habitat impacts
(channel erosion/incision from
upstream hydromodifications, dredging,
and loss of riparian habitat). The Bayou
de Chien system is extensively farmed
(e.g., row crops and livestock), and a
large portion of the system has been
deforested. These land use practices
result in a high silt load within the
system that continues to degrade
habitats and impact the species.
Croplands have the potential to
contribute large sediment loads during
storm events, thereby causing increased
siltation and potentially introducing
harmful agricultural pollutants such as
herbicides and pesticides. Unrestricted
livestock access to streams has the
potential to cause siltation and other
habitat disturbance (Fraley and Ahlstedt
2000, pp. 193–194). Grazing may reduce
water infiltration rates and increase
stormwater runoff; trampling and
vegetation removal increase the
probability of erosion and siltation
(Brim Box and Mossa 1999, p. 103).
Physical habitat disturbance from
sedimentation is less common in
Jackson Creek than in other portions of
the Bayou de Chien system.
Several streams within the Bayou de
Chien system have been identified as
impaired due to siltation and have been
included by the State of Kentucky on its
list of impaired waters required under
section 303(d) of the Clean Water Act
(33 U.S.C. 1313(d)) (KDOW 2018, pp.
43–45). Portions of several streams
occupied by the relict darter are on this
list, including Cane Creek (stream km 0–
8.5 (stream mi 0–5.3)) in Hickman
County, Little Bayou de Chien (stream
km 1.8–3.8 and 18.8–22.5 (stream mi
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1.1–2.4 and 11.7–14.0)) in Fulton and
Hickman Counties, and South Fork
Bayou de Chien (stream km 0–12.6
(stream mi 0–7.8)) in Graves County.
Channelization/Riparian Vegetation
Removal
Stream channelization is a common
practice used to reduce the effects of
flooding, increase the drainage rate of
agricultural land, and maximize the
amount of tillable land (Piller and Burr
1998, p. 65). These modified channels
are often managed through vegetation
removal and dredging to improve flood
conveyance or through placement of
quarried stone or gabion baskets to
protect against bank erosion (Allan and
Castillo 2007, p. 327).
Historically, Bayou de Chien was
presumably a free-flowing stream with
alternating areas of riffles, runs, and
pools. Since that time, many stream
reaches within the system have been
channelized and converted to deep
ditches with uniform depth, velocity,
and substrate (Piller and Burr 1998, p.
71). Channelization has impacted the
Bayou de Chien system by changing
stream flow patterns including reducing
instream flows (especially during drier
periods) that stress relict darters,
decreasing aquatic habitat complexity,
which affects sheltering and feeding for
relict darters, and reducing stream bank
and floodplain (riparian) vegetation
(Piller and Burr 1998, p. 71), which
affects relict darter feeding and breeding
resource needs. Channelized reaches
have higher stream velocities and shear
stress (a measure of the force of water
against the channel boundary) during
high flow periods (which leads to
channel instability and bank erosion),
less instream cover and habitat for
aquatic organisms including relict darter
(decreased habitat complexity), less
riparian vegetation and correspondingly
reduced canopies (reduced shade and
reduced woody debris input), and below
normal flows during drier periods
(Warren et al. 1994, p. 24; Piller and
Burr 1998, p. 71). Thus, the relict darter
is susceptible to impacts from
channelization and reductions in
riparian vegetation because these
stressors affect flows, habitat
complexity, and instream temperatures
and reduce the amount of woody
material, thus affecting sheltering and
reproduction needs of the species.
The reduction or loss of riparian
vegetation contributes to siltation
through bank destabilization and the
removal of submerged root systems that
help to hold sediments in place while
providing habitat for relict darters and
their macroinvertebrate prey (Barling
and Moore 1994, p. 544; Beeson and
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Doyle 1995, p. 989; Allan 2004, p. 262;
Hauer and Lamberti 2006, pp. 721–723;
Minshall and Rugenski 2006, pp. 721–
723). Removal of riparian vegetation can
also reduce the stream’s capacity for
trapping and removing contaminants
and nutrients from runoff; increase solar
exposure, resulting in higher water
temperatures; increase algal abundance
(primary production); and reduce inputs
of woody debris and leaf litter, thereby
reducing food sources for relict darters
and lowering overall stream production
(Brazier and Brown 1973, p. 4; Karr and
Schlosser 1978, p. 231; Peterjohn and
Correll 1984, p. 1473; Osborne and
Kovacic 1993, p. 255; Barling and Moore
1994, p. 555; Vought et al. 1994, p. 346;
Allan 1995, p. 109; Wallace et al. 1999,
p. 429; Pusey and Arthington 2003, p.
4). Where a reduction or loss of riparian
vegetation occurs, these impacts
negatively affect the quality of habitat
available to the relict darter for
breeding, feeding, and sheltering.
Drainage of Riparian Wetlands
With increased agricultural activity in
the Bayou de Chien basin over the last
century, much of the basin’s vegetation
has been cleared, and many riparian
wetlands have been drained to make
additional lands available for farming
(Piller and Burr 1998, p. 65). This
situation has caused an overall
reduction in the groundwater level and
base flows within Bayou de Chien and
its tributaries. Many small streams in
the system have completely dried or
consisted of isolated pools by the early
fall months (Warren et al. 1994, p. 24).
These conditions serve to isolate
populations and subject both the adult
and juvenile relict darters to increased
pressure from predators (Service 1994,
p. 14). Dispersal of the species upstream
of the Jackson Creek area or into many
downstream tributaries may be limited
by instream flow conditions (Warren et
al. 1994, p. 24).
Water Quality Degradation (Pollution)
Information is lacking on the relict
darter’s tolerance to specific pollutants,
but a variety of contaminants continue
to degrade stream water quality within
the Bayou de Chien drainage, and these
pollutants may affect the relict darter.
Several point-source and nonpointsource pollutants to aquatic life occur in
the Bayou de Chien (Service 2020a,
Appendix B) (KDOW 2018, pp. 43–45).
These pollutants include copper, iron,
lead, excess nutrients (total nitrogen and
phosphorus), and eutrophication
originating from two suspected
sources—municipal point source
discharges (e.g., sewage treatment) and
agriculture (e.g., crop production and
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animal feeding operations). Portions of
four streams that are occupied by relict
darter, specifically Bayou de Chien,
Cane Creek, Little Bayou de Chien, and
South Fork Bayou de Chien, were
identified as impaired due to these
pollutants (KDOW 2018, pp. 43–45).
The impacts of copper, lead, and iron
inputs are unknown, but nutrient inputs
and eutrophication can lead to excessive
algal growths and instream oxygen
deficiencies that can seriously impact
aquatic species, including the relict
darter.
Currently, 13 National Pollutant
Discharge Elimination System permits
have been issued authorizing the
discharge of pollutants within portions
of the Bayou de Chien system
(Fredenberg 2018, pers. comm.; Service
2020a, p. 27). Two sewage treatment
plants, the City of Fulton Treatment
Works (Kentucky Pollutant Discharge
Elimination System (KPDES)
#KY0026913) and the Hickman East
Sewage Treatment Plant (KPDES
#KY0028436), discharge treated
wastewater directly into Bayou de
Chien. Between January 2010 and April
2020, the Fulton facility received 13
violation notices from KDOW. The
notices were issued for permit
exceedances of a variety of chemical
parameters (e.g., Biochemical Oxygen
Demand (BOD), Total Suspended Solids
(TSS), pH) and for failures to meet
certain monitoring requirements
associated with the permit (Service
2020a, Appendix C). Insufficient
treatment of wastewater could harm
relict darter populations by introducing
pollutants (e.g., metals, bacteria) and
altering water quality conditions (e.g.,
decreased oxygen levels, elevated pH).
The Bayou de Chien system is also
affected by nonpoint-source pollutants,
arising from a variety of diffuse sources.
Examples of nonpoint-source pollutants
include sediment (e.g., stormwater
runoff from driveways, fields,
construction sites), raw sewage (e.g.,
septic tank leakage, straight pipe
discharges), animal waste from
livestock, fertilizers, pesticides,
herbicides, and road salt (KDOW 2013,
pp. 19–21; KDOW 2018, pp. 43–45).
Nonpoint-source pollutants can cause
excess nutrification (increased levels of
nitrogen and phosphorus), excessive
algal growths that clog the waterway
and affect swimming capability and
visual predation, instream oxygen
deficiencies that affect oxygen intake by
relict darters, and other changes in
water chemistry that can impact aquatic
species such as the relict darter.
Nonpoint-source pollution from land
surface runoff can originate from
virtually any land use activity and has
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been correlated with impervious
surfaces and storm water runoff (Allan
2004, pp. 266–267). Pollutants may
include sediments, fertilizers,
herbicides, pesticides, animal wastes,
septic tank and gray water leakage,
pharmaceuticals, and petroleum
products. These pollutants tend to
increase concentrations of nutrients and
toxins in the water and alter the
chemistry of affected streams such that
the habitat and food sources for species
like the relict darter are negatively
impacted.
Due to its linear distribution within
the Bayou de Chien mainstem and
Jackson Creek, the relict darter
continues to be vulnerable to accidental
chemical or animal waste spills and
releases that may result from traffic
accidents, agricultural activities, or
permitted discharges (Warren et al.1994,
p. 24). Events of this kind have affected
other aquatic communities in the
Southeastern United States during the
recent past (Ahlstedt et al. 2016, pp. 8–
9), so similar events have the potential
to affect relict darter populations in the
Bayou de Chien system. These events
could have devastating effects on darters
in these reaches (Piller and Burr 1996,
p. 74) and could pose a threat to the
long-term viability of the species.
Restricted Range/Isolation
The relict darter has always had a
limited geographic range, currently
consisting of approximately 52.5 stream
km (32.7 stream mi) within a single
stream system in western Kentucky
(Bayou de Chien system). The species
was characterized as uncommon or rare
at most collection sites in the 1990s
(Piller and Burr 1998, pp. 66–71), and
recent surveys indicate the species
continues to be rare in some reaches but
is more common in others.
The species’ restricted range and low
abundance in some reaches (e.g., Little
Bayou de Chien and Cane Creek) make
it more vulnerable to extirpation from
toxic chemical spills, habitat
modification, degradation from land
surface runoff (nonpoint-source
pollution), and natural catastrophic
changes to their habitat (e.g., flood
scour, drought). In particular, recent
survey data indicate that the relict
darter’s most successful reproduction
occurs in Jackson Creek and middle and
headwater reaches of Bayou de Chien,
which are vulnerable to stochastic
events, such as a single toxic chemical
spill or an extreme weather event such
as a drought or flash flood. These events
could have devastating effects on darters
in these reaches (Piller and Burr 1996,
p. 74) and could pose a threat to the
long-term viability of the species.
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The relict darter is represented by two
geographically isolated populations:
Bayou de Chien/Jackson Creek and
Little Bayou de Chien (Service 2020a, p.
20). The fact that the Little Bayou de
Chien population is small and isolated
from the larger Bayou de Chien/Jackson
Creek population makes it more
vulnerable to stochastic and
catastrophic events, thus affecting
overall relict darter viability.
Climate Change
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 (Byers
and Norris 2011, pp. 18–19); 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 relict darter to
random catastrophic events
(McLaughlin et al. 2002, pp. 6060–6074;
Thomas et al. 2004, pp. 145–148). An
increase in both severity and variation
in climate patterns is expected; extreme
floods, strong storms, and droughts will
become more common (Cook et al. 2004,
pp. 1015–1018; Ford et al. 2011, p.
2065; Intergovernmental Panel on
Climate Change 2014, pp. 58–83).
Frequency, duration, and intensity of
droughts are likely to increase in the
Southeast as a result of global climate
change (Thomas et al. 2004, pp. 145–
148). Stream temperatures in the
Southeast have increased roughly 0.2–
0.4 degrees Celsius (°C) (0.4–0.7 degrees
Fahrenheit (°F)) per decade over the
past 30 years, and as air temperature is
a strong predictor of water temperature,
stream temperatures are expected to
continue to rise (Kaushal et al. 2010, p.
465). Predicted impacts of climate
change on fishes include disruption to
their physiology (such as temperature
tolerance, dissolved oxygen needs, and
metabolic rates), life history (such as
timing of reproduction, growth rate),
and distribution (range shifts, migration
of new predators) (Jackson and Mandrak
2002, pp. 89–98; Heino et al. 2009, pp.
41–51; Strayer and Dudgeon 2010, pp.
350–351; Comte et al. 2013, pp. 627–
636).
Estimates of the effects of climate
change using available climate models
typically lack the geographic precision
needed to project the magnitude of
effects at a scale small enough to
discretely apply to the range of a given
species. However, data on recent trends
and projected changes for Kentucky
(Girvetz et al. 2009, pp. 1–19), and,
more specifically, the Bayou de Chien
system (Alder and Hostetler 2017,
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entire) provide some insight for
evaluating the potential impacts of
climate change to the relict darter.
Different emission scenarios have been
used to calculate estimates of average
annual increases in maximum and
minimum air temperature, precipitation,
snowfall, and other variables (Alder and
Hostetler 2017, entire). These scenarios,
called representative concentration
pathways (RCPs), are plausible
pathways toward reaching a target
radiative forcing (the change in energy
in the atmosphere due to greenhouse
gases) by the year 2100 (Moss et al.
2010, p. 752). Depending on the chosen
model and emission scenario (RCP8.5
(high) vs. 4.5 (moderate)), annual mean
maximum air temperatures for the
Bayou de Chien system are expected to
increase by 2.3–3.4 °C (4.1–6.1 °F) by
2074, while precipitation models
predict that the Bayou de Chien system
will experience a slight increase in
annual mean precipitation (0.5
centimeters/month (0.2 inches/month))
through 2074 (Girvetz et al. 2009, pp. 1–
19; Alder and Hostetler 2016, pp. 1–9).
There is uncertainty about the specific
effects of climate change (and their
magnitude) on the relict darter;
however, climate change is almost
certain to affect aquatic habitats in the
Bayou de Chien system of western
Kentucky through increased water
temperatures and more frequent
droughts (Alder and Hostetler 2017,
entire), and species with limited ranges,
fragmented distributions, and small
population size, such as the relict
darter, are thought to be especially
vulnerable to the effects of climate
change (Byers and Norris 2011, pp. 18–
19). Thus, we consider climate change
to be a threat to the relict darter.
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Regulatory Mechanisms
The relict darter and its habitats are
afforded some protection from water
quality and habitat degradation under
the Clean Water Act, Kentucky’s Forest
Conservation Act of 1998 (KRS
§§ 149.330–355), Kentucky’s Agriculture
Water Quality Act of 1994 (KRS
§§ 224.71–140), and additional
Kentucky statutes and regulations
regarding natural resources and
environmental protection (KRS § 224;
401 KAR §§ 5:026, 5:031). While it is
clear that the protections afforded by
these statutes and regulations have not
prevented the degradation of some
habitats used by the relict darter, the
species has undoubtedly benefited from
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improvements in water quality and
habitat conditions stemming from these
regulatory mechanisms.
Conservation Efforts
The relict darter is listed as
endangered in Kentucky (OKNP 2019, p.
16), making it unlawful to take the
species or damage its habitat without a
State permit. Additionally, the relict
darter is identified as a species of
greatest conservation need in the
Kentucky Wildlife Action Plan (KDFWR
2013, Chapter 2), which outlines actions
to promote species conservation.
Since listing the species, the Service
has worked with multiple agencies and
private partners (e.g., NRCS, KDFWR,
and TNC) to implement conservation
actions for the relict darter in the Bayou
de Chien system. The Service’s PFW
Program has taken the lead role in this
effort by providing technical and
financial assistance to agencies and
numerous private landowners. PFW has
focused its efforts on the use of best
management practices (BMPs) and
instream conservation practices that
enhance and restore riparian and
instream habitats used by the relict
darter. PFW projects have included a
culvert removal in the headwaters of
Bayou de Chien, installation of livestock
alternate watering systems, placement of
artificial spawning structures in Bayou
de Chien and Jackson Creek, installation
of livestock exclusion fencing along
several kilometers of Bayou de Chien
and Jackson Creek, and restoration of
more than 20.2 hectares (50 acres) of
native grasses and wildflowers within
riparian areas. In addition to these
efforts, PFW biologists have provided
over 10 years of technical assistance to
the U.S. Department of Agriculture,
Wetland Reserve Easement Program, for
projects within the Bayou de Chien
system (Radomski 2019, pers. comm.).
These efforts have resulted in
permanent easements covering more
than 1,700 acres (688 hectares) in the
upper Bayou de Chien system (Morris
2020, pers. comm.). These easements
will benefit the relict darter through
sediment and nutrient reduction,
shading of stream corridors (via riparian
plantings), hydrological restoration (via
plugging of agricultural ditches and
improved groundwater connections),
and general habitat creation, or wetland
restoration.
Species Viability
For relict darter populations to be
sufficiently resilient, the needs of
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individuals (slow-flowing riffles and
pools, appropriate substrate, food
availability, water quality, and aquatic
vegetation or large woody debris for
cover) must be met at a larger scale.
Stream reaches with suitable habitat
must be large enough to support an
appropriate number of individuals to
avoid issues associated with small
population size, such as inbreeding
depression and the Allee effect (low
population density reducing the
probability of encountering mates for
spawning). Connectivity of stream
reaches allows for immigration and
emigration between populations and
increases the likelihood of
recolonization should a population be
lost. At the species level, the relict
darter needs well-distributed healthy
populations to withstand environmental
stochasticity (resiliency) and
catastrophes (redundancy) and adapt to
biological and physical changes in its
environment (representation). To
evaluate the current and future viability
of the relict darter, we assessed a range
of conditions to allow us to estimate the
species’ resiliency, representation, and
redundancy.
We delineated analytical units
(populations) by dividing the relict
darter’s range into two units (Bayou de
Chien/Jackson Creek and Little Bayou
de Chien) based on known occurrence
records, the substantial distance (18.3
kilometers (km) (11.4 miles (mi))
separating known occurrence records in
both watersheds, and unsuitable habitat
conditions in downstream reaches of
both watersheds.
To assess resiliency, we evaluated
four components that relate to the
species’ habitat or its population
demography: Physical habitat, water
quality, mean density, and occurrence
complexity. We assessed habitat using
two components describing physical
habitat quality and water quality. The
demographic condition was assessed
using mean density and occurrence
complexity. We established parameters
for each condition category by
evaluating the range of existing data and
separating those data into categories
based on our understanding of the
species’ demographics and habitat (table
1, below). Individual component scores
were combined and averaged to produce
an overall condition score for each
population.
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TABLE 1—COMPONENT CONDITIONS USED TO ASSESS RESILIENCY FOR RELICT DARTER POPULATIONS
Condition
Component
Physical Habitat ..
Water Quality ......
Mean Density (#
darters/m2).
Occurrence Complexity.
High
Moderate
Low
0
Silt deposition low; no extensive
or significant habitat alterations
(e.g., recent channelization, riparian clearing); >75% of available habitat suitable for the
species.
Minimal or no known water quality (WQ) issues (i.e., no 303(d)
streams impacting the species *).
>0.15 ...........................................
Silt deposition moderate; habitat
alterations at moderate levels—channelization or other
habitat disturbance more widespread; 25–75% of available
habitat suitable for the species.
WQ issues recognized and may
impact species (i.e., 1–2
303(d) streams).
Silt deposition extensive; habitats
severely altered and recognized as impacting the species; <25% of habitats suitable
for the species.
Habitats unsuitable (species
absent).
Habitat unsuitable (species
absent).
0.05–0.15 ....................................
WQ issues prevalent within system, likely impacting populations (i.e., numerous 303(d)
streams).
<0.05 ...........................................
Occupies main channel and ≥3
tributaries.
Occupies main channel and maximum of 2 tributaries.
Occupies main channel and maximum of ≤1 tributaries.
Species absent.
Species absent.
* Signifies streams identified by the State of Kentucky on the list of impaired streams required by section 303(d) of the Clean Water Act (33
U.S.C. 1313(d)).
Our evaluation of representation for
the relict darter was based on the
species’ genetic diversity and the extent
and variability of environmental
diversity (habitat diversity) across the
species’ geographical range.
Additionally, we assessed relict darter
redundancy (ability of the species to
withstand catastrophic events) by
evaluating the number and distribution
of resilient populations throughout the
species’ range. Highly resilient
populations, coupled with a broad
distribution throughout the historical
range, have a positive relationship to
species-level redundancy.
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Current Conditions of the Relict Darter
The relict darter’s historical range
included the Bayou de Chien stream
system, a 554-kilometer2 (km2) (214mile2 (mi2) watershed located within
the Mississippi Valley Loess Plains
ecoregion (Woods et al. 2002, entire) in
Fulton, Graves, and Hickman Counties,
Kentucky (Webb and Sisk 1975, entire;
Warren et al. 1994, entire; Piller and
Burr 1998, entire). Bayou de Chien is a
low-gradient, sand, gravel, and siltbottomed stream that begins in
southwestern Graves County and flows
westward approximately 47 km (29.2
mi) through Hickman and Fulton
Counties, before ultimately emptying
into Obion Creek near Hickman,
Kentucky. Historically, Bayou de Chien
was presumably an undisturbed, freeflowing stream with alternating areas of
riffles, runs, and pools; however, only a
few of these reaches remain because
much of the stream has been
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channelized and converted to a deep
ditch with uniform depth, velocity, and
substrate (Piller and Burr 1998, pp. 64–
65).
The relict darter’s current range is
also limited to the Bayou de Chien
system in Fulton, Graves, and Hickman
Counties, Kentucky. Recent surveys
(2010–2019) indicate that the species is
now known by two geographically
separated populations: Bayou de Chien/
Jackson Creek and Little Bayou de
Chien. Within the Bayou de Chien/
Jackson Creek population, the species
occupies patches of suitable habitat
within a 30.4-km (18.9-mi) reach of
Bayou de Chien, a 3.6-km (2.3-mi) reach
of Jackson Creek, a 3.2-km (2.0-mi)
reach of South Fork Bayou de Chien, a
10.4-km (6.5-mi) reach of Cane Creek,
and a 2.3-km (1.4-mi) reach of Sand
Creek. Within the Little Bayou de Chien
population, the species occupies
patches of suitable habitat within a 2.6km (1.6-mi) reach. In total, the species
currently occupies 52.5 stream km (32.7
stream mi).
The Bayou de Chien/Jackson Creek
population exhibits moderate resiliency,
as evidenced by recent estimates of
mean density and mean population size,
recent monitoring data showing
evidence of reproduction and
recruitment, and our observations of
moderate to high physical habitat and
water quality conditions within the
watershed (table 2; Service 2020a, p.
35). Based on recent surveys, Jackson
Creek and Bayou de Chien have
moderate to high relict darter densities,
with population estimates of 1,888 and
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22,798 fish, respectively, indicating that
the population size has more than
doubled since a decade ago (Service
2019, p. 7; Service 2020a, p. 36).
Resiliency of the Little Bayou de Chien
population is lower due to its lower
mean density and less optimal habitat
conditions (table 2, below). The species
was only recently discovered in the
Little Bayou de Chien in July 2017.
Recent survey efforts have been limited
to two 100-m reaches and several
qualitative searches; population size has
not been estimated because of the
limited quantitative effort; however, 23
relict darters were observed. Low levels
of reproduction and recruitment are
assumed for the Little Bayou de Chien.
Overall, the range-wide mean
population estimate is 24,686 relict
darters (Service 2019, p. 7).
We consider redundancy and
representation of the relict darter to be
low due to the species’ small number of
populations, its low effective population
size (mean of 221.5, with a 95 percent
confidence interval of 143.3–448.3), and
its reduced genetic diversity (table 2;
Kattawar and Piller 2020, pp. 27–28).
We recognize that redundancy and
representation may be inherently low
for a narrow endemic like the relict
darter. The fact that the species exhibits
little genetic variation across its range
and has a very low effective population
size suggests a past population
bottleneck (e.g., range-wide habitat
disturbance) and subsequent genetic
drift (loss of rare alleles in a small
population) (Kattawar and Piller 2020,
entire).
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TABLE 2—3RS (RESILIENCY, REDUNDANCY, REPRESENTATION) SUMMARY FOR RELICT DARTER
Population
Resiliency
Redundancy
Representation
Bayou de Chien/Jackson Creek .....
Little Bayou de Chien.
Moderate ........
Low.
Naturally Low—the species is a narrowly distributed
endemic; populations appear to be separated, but
connectivity exists within Bayou de Chien, Jackson Creek, and other large tributaries.
Low—low genetic diversity and
low effective population size.
As a narrow endemic species located
in one watershed in southwestern
Kentucky, the relict darter has
inherently low redundancy, with only
one known population at the time of
listing, and currently there are two
populations. Representation is also
limited based on its restricted range, yet
the species has survived a likely
population bottleneck, and despite low
genetic diversity, genetic analyses
indicate a single panmictic population,
indicating some recent genetic exchange
between populations. Low species
redundancy and representation are
tempered by the moderate resiliency of
the Bayou de Chien/Jackson Creek
population. This historical population
continues to exhibit resiliency today,
with high relict darter abundance and
evidence of continued reproduction.
This moderately resilient population
has survived threats, primarily because
conservation efforts over the past three
decades have improved habitat within
the system, thus enabling the breeding,
feeding, and sheltering needs of the
relict darter to be met and thus
sustaining the population over time.
Future Conditions
In our SSA (Service 2020a, entire), we
defined viability as the ability of the
species to sustain populations in the
wild over time. To help address
uncertainty associated with the degree
and extent of potential future stressors
and their impacts on the species’ needs,
the concepts of resiliency, redundancy,
and representation were assessed using
three plausible future scenarios
(continuation of current trend,
improving trend, and worsening trend),
using the same analytical units and
components described above, in
Summary of Biological Status and
Threats. We devised these scenarios by
identifying data sources related to the
primary threats anticipated to affect the
relict darter in the future. For the habitat
loss and degradation threat, we looked
at land cover change and urbanization,
as well as conservation activity, and we
also included predicted impacts of
future climate change. The three
scenarios capture the range of
uncertainty in the changing landscape
and how relict darter will respond to the
changing conditions (table 3, below).
We used the best available data and
models to project out 50 years into the
future (i.e., 2070), a timeframe where we
were reasonably certain the land use
change, urbanization, and climate
models used could project patterns in
the species’ range relevant to the relict
darter and its habitat given the species’
lifespan. For each scenario, we provided
a summary of resiliency for each
population at 10, 30, and 50 years in the
future. For more information on the
models and their projections, please see
the SSA report (Service 2020a, entire).
TABLE 3—FUTURE CONDITION OF THE RELICT DARTER BY THE YEARS 2030, 2050, AND 2070 UNDER THREE FUTURE
SCENARIOS
Predicted future condition
Scenario
1 .....................
2 .....................
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3 .....................
Population
Bayou de Chien/Jackson .............................................................
Little Bayou de Chien ..................................................................
Bayou de Chien/Jackson .............................................................
Little Bayou de Chien ..................................................................
Bayou de Chien/Jackson .............................................................
Little Bayou de Chien ..................................................................
Under Scenario 1 (continuation of
current trend), small increases in
urbanization were predicted by 2050
and 2070 within the watersheds of both
extant populations (Service 2020a, pp.
41–43), but associated impacts on
habitat and population elements were
expected to be minimal. We also
predicted continued implementation of
conservation actions under KDFWR’s
conservation strategy and through the
Service’s PFW program. Using a
moderate level of climate change (RCP
4.5), within the next 10 years, portions
of the Bayou de Chien system were
impacted by either drought or floods,
with slightly warmer temperatures. Over
the long term (30–50 years), drought
affected all populations but at intervals
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10 Years
30 Years
Moderate ..............
Low ......................
Moderate ..............
Low ......................
Moderate ..............
Low ......................
Moderate ..............
Low ......................
Moderate–High .....
Low–Moderate .....
Low–Moderate .....
Extirpated .............
and severity levels similar to what has
occurred over the last 10 years.
Considering all of these factors, we
expect no change in resiliency for the
two known populations; however, the
low resiliency of the Little Bayou de
Chien population makes it much more
vulnerable to extirpation from the
effects of stochastic disturbance. Under
Scenario 1, both representation and
redundancy of the relict darter are
expected to remain at low levels. The
species is limited to one low resiliency
population and one moderate resiliency
population, both of which occupy
streams within a single ecoregion,
Mississippi Valley Loess Plains. Within
this ecoregion, relict darters occupy
second- to fourth-order reaches, but
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50 Years
Moderate.
Low.
Moderate–High.
Moderate.
Low.
Extirpated.
habitat diversity within these reaches
tends to be low. The species also has
low genetic diversity, which cannot be
increased through augmentations,
reintroductions, or other genetics-based
conservation actions because genetic
diversity cannot be created with a
species that has a limited gene pool. The
species’ low genetic diversity could
potentially limit its ability to adapt to
changing environmental conditions over
time. Furthermore, both populations
will remain vulnerable to catastrophic
events, such as an extreme drought or
chemical spill, because the species’
distribution is generally limited to a
single, continuous stream reach within
each population.
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Under Scenario 2 (improving trend),
we projected a number of improved
conditions and positive outcomes that
led to overall improved resiliency and
redundancy for the relict darter. We
projected both land use change and
urbanization to be lower than current
rates. The current trend in climate
improved, with lower annual increases
in temperature and less severe droughts
or floods in the short term (RCP 4.5).
Over the long term (30–50 years),
drought affected both populations but at
intervals and severity levels lower than
what occurred over the last 10 years.
Conservation efforts, including new
efforts along occupied reaches of Little
Bayou de Chien, increased through State
wildlife action plans, and other Service
partnerships with Federal, State, and
nongovernmental partners. These
actions contributed to improved water
quality conditions, increases in forest
and riparian cover, and reductions in
point source and nonpoint-source
pollutants in all historical tributary
systems.
Based on these habitat and water
quality improvements, we expect both
extant populations to increase in size,
with continued reproduction and
recruitment. We also expect these
populations to expand into unoccupied
historical tributaries, eventually
resulting in improved occurrence
complexity in both watersheds. All of
these actions and conditions will result
in increased resiliency for the Bayou de
Chien/Jackson and Little Bayou de
Chien populations over the next 30–50
years. Under Scenario 2, representation
of the relict darter is expected to remain
at a low level. The species’ expansion
within the Bayou de Chien and Little
Bayou de Chien watersheds will bolster
the species’ resiliency and redundancy,
but the species’ low genetic diversity
cannot be increased. Under Scenario 2,
redundancy of the relict darter will
increase due to the species’ expansion
and improved resiliency within the
Bayou de Chien and Little Bayou de
Chien watersheds and due to the
species’ recolonization of historical
tributaries such as South Fork Bayou de
Chien. This increased redundancy will
decrease the likelihood that a
catastrophic event, such as an extreme
drought or pollution event, would lead
to the species’ extinction. Under
Scenario 2, we expect the relict darter
to exhibit low–moderate redundancy.
Under Scenario 3 (worsening trend),
we projected rates of land use change
and urbanization to be higher than
current rates. The current trend in
climate worsened (high RCP of 8.5), and
within the next 10 years, populations
were impacted by either drought or
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floods, with warmer stream
temperatures and lower rainfall. Over
the long term (30–50 years), drought
affected both populations at intervals
and severity levels higher than what has
occurred over the last 10 years. Some
conservation actions continued in the
Bayou de Chien system, but there was
a net decrease in these activities due to
reduced agency funding. All of these
actions and conditions resulted in
declining habitat and water quality
conditions that will negatively affect
resiliency estimates for both extant
populations.
For this scenario, we project low
resiliency for the Bayou de Chien/
Jackson population and potential
extirpation of the Little Bayou de Chien
population by 2070. Under Scenario 3,
representation of the relict darter is
expected to remain at a low level.
Reduced resiliency of the Bayou de
Chien/Jackson Creek population and
extirpation of the Little Bayou de Chien
population will increase the species’
vulnerability to stochastic disturbance
and will likely reduce the species’
ability to adapt to changing
environmental conditions. Under
Scenario 3, redundancy of the relict
darter is expected to remain at a low
level; however, extirpation of the Little
Bayou de Chien population reduces the
species’ range, leaving it with a single
population (Bayou de Chien/Jackson
Creek) that is more vulnerable to a
catastrophic event such as an extreme
drought or chemical spill. The species’
redundancy is also weakened by lower
resiliency of the Bayou de Chien/
Jackson Creek population, which will be
faced with declining physical habitat
and water quality conditions.
Synergistic and Cumulative Effects
In addition to affecting the relict
darter individually, it is possible that
several of the risk factors summarized
above are acting synergistically or
cumulatively on the species. The
combined impact of multiple stressors is
likely more harmful than a single
stressor acting alone. The dual stressors
of climate change and direct human
impact have the potential to affect
aquatic ecosystems by altering stream
flows and nutrient cycles, eliminating
habitats, and changing community
structure (Moore et al. 1997, p. 942).
Increased water temperatures and a
reduction in stream flow are the climate
change effects that are most likely to
affect stream communities (Poff 1992,
entire), and each variable is strongly
influenced by land use patterns.
We note that, by using the SSA
framework to guide our analysis of the
scientific information documented in
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12067
the SSA report, we have not only
analyzed individual effects on the
species, but we have also analyzed their
potential cumulative effects. We
incorporate the cumulative effects into
our SSA analysis when we characterize
the current and future condition of the
species. To assess the current and future
condition of the species, we undertake
an iterative analysis that encompasses
and incorporates the threats
individually and then accumulates and
evaluates the effects of all the factors
that may be influencing the species,
including threats and conservation
efforts. Because the SSA framework
considers not just the presence of the
factors, but to what degree they
collectively influence risk to the entire
species, our assessment integrates the
cumulative effects of the factors and
replaces a standalone cumulative effects
analysis.
Determination of Relict Darter Status
Section 4 of the Act (16 U.S.C. 1533)
and its implementing regulations (50
CFR part 424) set forth the procedures
for determining whether a species meets
the definition of ‘‘endangered species’’
or ‘‘threatened species.’’ The Act defines
an endangered species as a species that
is in danger of extinction throughout all
or a significant portion of its range, and
a threatened species as a species that is
likely to become an endangered species
within the foreseeable future throughout
all or a significant portion of its range.
For a more detailed discussion on the
factors considered when determining
whether a species meets the definition
of an endangered species or a threatened
species and our analysis on how we
determine the foreseeable future in
making these decisions, please see
Regulatory and Analytical Framework.
Status Throughout All of Its Range
After evaluating threats to the species
and assessing the cumulative effect of
the threats under the section 4(a)(1)
factors, we conclude that the risk factors
acting on the relict darter and its
habitat, either singly or in combination,
are not of sufficient imminence,
intensity, or magnitude to indicate that
the species is in danger of extinction (an
endangered species) throughout all of its
range. As described in Current
Condition, the relict darter is naturally
a narrow endemic species. Its low
species redundancy and representation
are tempered by the moderate resiliency
of the Bayou de Chien/Jackson Creek
population, which has high relict darter
abundance and evidence of continued
reproduction. The increased population
size and successful recruitment trends
have improved based on surveys
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completed during the past decade.
Further, this moderately resilient
population has survived threats,
primarily because conservation efforts
over the past three decades have
improved and protected habitat within
the system, thus enabling the breeding,
feeding, and sheltering needs of the
relict darter to be met and thus
sustaining the population over time.
The Service continues to work with
partners on these projects. Additionally,
a second population in the Little Bayou
de Chein was discovered in 2017. While
this newly discovered population has
low resiliency, the addition of a second
population adds to the species’
redundancy. The current resiliency of
the Jackson Creek/Bayou de Chien
population, with a population size that
has doubled in the past decade to nearly
23,000 relict darters showing evidence
of reproduction and successful
recruitment, along with the added
redundancy of the newly discovered
Little Bayou de Chien population and
the reduced habitat threats, indicate that
the species is not currently in danger of
extinction. Therefore, after assessing the
best available information, we conclude
that the relict darter no longer meets the
Act’s definition of an endangered
species.
However, the species still faces
threats. Our analysis of the relict
darter’s current condition shows that
while the species has maintained
resiliency since it was listed in 1993, it
is now represented by only two
populations in one watershed, thus
redundancy is inherently low. The
species also has low representation
based on its reduced genetic diversity
and low effective population size
(Factor E), likely a result of a population
bottleneck caused by extensive
channelization and habitat disturbance
throughout the Bayou de Chien system
in the early 20th century. Habitat loss
and degradation through stream channel
disturbance, removal of riparian
vegetation, and pollution continue to
affect the species (Factor A), even
though conservation actions over the
past three decades have led to improved
habitat conditions in portions of the
Bayou de Chien mainstem and Jackson
Creek, contributing to moderate
resiliency for the larger population. The
relict darter has benefited from
protection as an endangered species
under the Act, and improvements in
water quality and habitat conditions
stemming from both national and
Kentucky statutes and regulations;
however, these regulations have not
prevented the degradation of some
habitats used by the species (Factor D).
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The primary threats that are currently
acting on the species are expected to
continue into the future, climate change
(Factor E) is expected to exacerbate
existing threats, and the species’ low
redundancy and low representation put
the species at risk of extinction
throughout all of its range in the
foreseeable future. Fifty years was
considered ‘‘foreseeable’’ in this case
because it included projections from
available models and was biologically
meaningful to the species. We can
reasonably determine within this 50year timeframe that both the threats as
presented in the models of predicted
urbanization, land use, and climate
change and the species’ responses to
those threats are likely.
The range of plausible future
scenarios of relict darter habitat
conditions and water quality factors
suggest slightly variable resilience into
the future. Under the continuation of
current trend scenario (Scenario 1),
resiliency remains low or moderate in
the two populations, with redundancy
and representation remaining low.
Under the improving trend scenario
(Scenario 2), resiliency improves for
both populations, with habitat
conditions predicted to improve
because of an increased percentage of
forested land with both reduced
percentages of agricultural land and
urbanization, along with reduced
climate change rates. Representation
remains low under this scenario, but
redundancy improves because of
reintroduction of the species into
historical habitats or natural expansion
within the system. There is greater
uncertainty regarding the species’ future
status, primarily due to conservation
action implementation with this
scenario than in the other two future
scenarios. Under the worsening trend
scenario (Scenario 3), resiliency is low
in the one remaining population, and
one population is likely extirpated
resulting in reduced redundancy and
low representation. This expected
reduction in both the number and
distribution of resilient populations is
likely to increase the species’
vulnerability to both stochastic and
catastrophic disturbances. Compared to
the other two scenarios, the conditions
from Scenario 3 were considered more
likely to contribute to the future
condition of the species, primarily
because of expected continued
sedimentation and water quality
degradation combined with the
expected synergistic effects of climate
change in the future.
In summary, while the relict darter’s
viability has improved over time (see
Conservation Efforts), three major
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factors that are influencing the viability
of the species are expected to affect it
into the future: Habitat loss and
degradation, restricted range/isolation,
and climate change. Habitat loss and
degradation resulting from siltation,
channelization/riparian vegetation
removal, drainage of riparian wetlands,
and water quality degradation
(pollution) pose the largest risk to the
current and future viability of the relict
darter. With the plausibility of future
land use changes that could impact
instream habitat and water quality, the
projected worsening climate conditions,
and given the inherently low
redundancy that increases vulnerability
to catastrophic events, the relict darter
is at risk of extinction within the next
50 years. Thus, after assessing the best
available information, we conclude that
the relict darter is not currently in
danger of extinction, but it is likely to
become in danger of extinction within
the foreseeable future throughout all of
its range.
Status Throughout a Significant Portion
of Its Range
Under the Act and our implementing
regulations, a species may warrant
listing if it is in danger of extinction or
likely to become so in the foreseeable
future throughout all or a significant
portion of its range. The court in Center
for Biological Diversity v. Everson, 2020
WL 437289 (D.D.C. Jan. 28, 2020)
(Center for Biological Diversity), vacated
the aspect of 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 37578; July 1, 2014)
that provided that the Service does not
undertake an analysis of significant
portions of a species’ range if the
species warrants listing as threatened
throughout all of its range. Therefore,
we proceed to evaluating whether the
species is endangered in a significant
portion of its range—that is, whether
there is any portion of the species’ range
for which both (1) the portion is
significant; and (2) the species is in
danger of extinction in that portion.
Depending on the case, it might be more
efficient for us to address either the
‘‘significance’’ question or the ‘‘status’’
question first. We can choose to address
either question first. Regardless of
which question we address first, if we
reach a negative answer with respect to
the first question that we address, we do
not need to evaluate the other question
for that portion of the species’ range.
Following the court’s holding in
Center for Biological Diversity, we now
consider whether there are any
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significant portions of the species’ range
where the species is in danger of
extinction now (i.e., endangered). In
undertaking this analysis for relict
darter, we choose to address the
significance question first. First we
assessed the two portions of the range
(Bayou de Chien/Jackson Creek and
Little Bayou de Chien). In the absence
of a definition of significance, we
determined significance on a case-bycase basis for the relict darter using a
reasonable interpretation of significance
and providing a rational basis for our
determination. In doing so, we
considered what is currently observed
about the contributions made by each
geographic portion in terms of biological
factors, focusing on the importance of
each in supporting the continued
viability of the species. We evaluated
whether these areas occupy relatively
large or particularly high-quality or
unique habitat. As a narrow ranging
endemic, both relict darter populations
occur within one 214-mi2 (554-km2)
watershed in three counties in
southwestern Kentucky (Service 2020a,
p. 17), and Little Bayou de Chien is a
tributary to Bayou de Chien. We
determined that the Bayou de Chien/
Jackson Creek portion is significant, as
it is large geographically relative to the
entire range of the species, it contains
high quality/high value habitat for the
species, and it contains habitat essential
to the relict darter’s life history, and
therefore is important for the overall
conservation of the species. We
determined that the Little Bayou de
Chien portion is not significant, as it
constitutes a very small portion of the
range and does not represent unique or
high quality habitat for the relict darter.
Since we determined that Bayou de
Chein/Jackson Creek is a significant
portion, we next evaluate whether the
relict darter is in danger of extinction
(i.e., endangered) in that portion. Since
there are only two portions, and since
Little Bayou de Chien was determined
to not be significant, then the Bayou de
Chien/Jackson Creek portion drove our
initial status determination of
threatened for the relict darter, and
therefore that portion does not have a
different status than the entire range.
Furthermore, the threats the relict darter
faces are not concentrated in any
portion of the range, rather the threats
affect the entire narrow range of the
species. Habitat loss and degradation
resulting from siltation, channelization/
riparian vegetation removal, drainage of
riparian wetlands, and water quality
degradation (pollution) pose the largest
risk to viability of the relict darter
throughout its entire range. Based on
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this, there are no portions of the species’
range that provide a basis for
determining that the species is in danger
of extinction in a significant portion of
its range, and we determine that the
species is likely to become in danger of
extinction within the foreseeable future
throughout all of its range. This is
consistent with the courts’ holdings in
Desert Survivors v. Department of the
Interior, No. 16–cv–01165–JCS, 2018
WL 4053447 (N.D. Cal. Aug. 24, 2018),
and Center for Biological Diversity v.
Jewell, 248 F. Supp. 3d, 946, 959 (D.
Ariz. 2017).
Determination of Status
Our review of the best scientific and
commercial data available indicates that
the relict darter meets the definition of
a threatened species. Therefore, we
propose to reclassify the relict darter as
a threatened species in accordance with
sections 3(20) and 4(a)(1) of the Act.
Proposed Rule Issued Under Section
4(d) of the Act
Background
Section 4(d) of the Act contains two
sentences. The first sentence states that
the Secretary shall issue such
regulations as she deems necessary and
advisable to provide for the
conservation of species listed as
threatened. The U.S. Supreme Court has
noted that statutory language like
‘‘necessary and advisable’’ demonstrates
a large degree of deference to the agency
(see Webster v. Doe, 486 U.S. 592
(1988)). Conservation is defined in the
Act to mean the use of all methods and
procedures which are necessary to bring
any endangered species or threatened
species to the point at which the
measures provided pursuant to the Act
are no longer necessary. Additionally,
the second sentence of section 4(d) of
the Act states that the Secretary may by
regulation prohibit with respect to any
threatened species any act prohibited
under section 9(a)(1), in the case of fish
or wildlife, or section 9(a)(2), in the case
of plants. Thus, the combination of the
two sentences of section 4(d) provides
the Secretary with wide latitude of
discretion to select and promulgate
appropriate regulations tailored to the
specific conservation needs of the
threatened species. The second sentence
grants particularly broad discretion to
us when adopting the prohibitions
under section 9 of the Act.
The courts have recognized the extent
of the Secretary’s discretion under this
standard to develop rules that are
appropriate for the conservation of a
species. For example, courts have
upheld rules developed under section
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12069
4(d) as a valid exercise of agency
authority where they prohibited take of
threatened wildlife, or include a limited
taking prohibition (see Alsea Valley
Alliance v. Lautenbacher, 2007 U.S.
Dist. Lexis 60203 (D. Or. 2007);
Washington Environmental Council v.
National Marine Fisheries Service, 2002
U.S. Dist. Lexis 5432 (W.D. Wash.
2002)). Courts have also upheld 4(d)
rules that do not address all of the
threats a species faces (see State of
Louisiana v. Verity, 853 F.2d 322 (5th
Cir. 1988)). As noted in the legislative
history when the Act was initially
enacted, once an animal is on the
threatened list, the Secretary has an
almost infinite number of options
available to her with regard to the
permitted activities for those species.
She may, for example, permit taking,
but not importation of such species, or
she may choose to forbid both taking
and importation but allow the
transportation of such species (H.R. Rep.
No. 412, 93rd Cong., 1st Sess. 1973).
Exercising this authority under
section 4(d), we have developed a
proposed rule that is designed to
address the relict darter’s specific
threats and conservation needs.
Although the statute does not require us
to make a ‘‘necessary and advisable’’
finding with respect to the adoption of
specific prohibitions under section 9,
we find that this rule as a whole satisfies
the requirement in section 4(d) of the
Act to issue regulations deemed
necessary and advisable to provide for
the conservation of the relict darter. As
discussed under Summary of Biological
Status and Threats, we have concluded
that the relict darter is no longer
currently at risk of extinction, but is still
likely to become in danger of extinction
within the foreseeable future, primarily
due to habitat degradation and loss
stemming from siltation, channelization
and riparian vegetation removal,
riparian wetland drainage, and water
quality degradation. These threats
contribute to the negative effects
associated with the species’ restricted
range and effects of climate change. The
provisions of this proposed 4(d) rule
would promote conservation of the
relict darter by providing continued
protection from take and encouraging
management of the landscape in ways
that meet both watershed and riparian
management considerations and the
conservation needs of the relict darter.
The provisions of this rule are one of
many tools that we would use to
promote the conservation of the relict
darter.
This proposed 4(d) rule would apply
only if and when we make final the
reclassification of the relict darter as a
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threatened species. Finally, the only
portion of this proposed rule that would
have regulatory effect if the rule is made
final is the text set forth in the rule
portion of this document (i.e., the text
we propose to revise § 17.44 in title 50
of the Code of Federal Regulations
(CFR)). The explanatory text in the
Provisions of the Proposed 4(d) Rule
section below merely clarifies the intent
of these proposed amendments to the
CFR.
Provisions of the Proposed 4(d) Rule
This proposed 4(d) rule would
provide for the conservation of the relict
darter by adopting the same
prohibitions that apply to an
endangered species under section 9 of
the Act and 50 CFR 17.21. Except as
otherwise authorized or permitted, this
proposed 4(d) rule would continue to
prohibit importing or exporting; take;
possession and other acts with
unlawfully taken specimens; delivering,
receiving, transporting, or shipping in
interstate or foreign commerce in the
course of commercial activity; and
selling or offering for sale in interstate
or foreign commerce. The prohibitions
would apply throughout the species’
range.
Identical to the regulations that apply
under endangered status, the
prohibitions in this proposed 4(d) rule
would prohibit all forms of take within
the United States. Under the Act, ‘‘take’’
means to harass, harm, pursue, hunt,
shoot, wound, kill, trap, capture, or
collect, or to attempt to engage in any
such conduct. Some of these provisions
have been further defined in regulations
at 50 CFR 17.3. Take can result
knowingly or otherwise, by direct and
indirect impacts, intentionally or
incidentally. Regulating intentional and
incidental take would help preserve the
species’ remaining populations, enable
beneficial management actions to occur,
and decrease synergistic, negative
effects from other stressors.
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. The intent of this
policy is to increase public awareness of
the effect of a proposed listing on
proposed and ongoing activities within
the range of the species proposed for
listing. The discussion below regarding
protective regulations under section 4(d)
of the Act complies with our policy.
In this 4(d) rule, we propose to
prohibit intentional take, including
capturing and handling, because these
activities require training and
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experience. Such activities include, but
are not limited to, monitoring and
research involving capturing and
handling relict darters. While these
activities are important to relict darter
recovery, there are proper techniques for
capturing and handling fish that require
training and experience. Improper
capture or handling can cause injury or
even result in death of relict darters.
Therefore, to ensure that these activities
continue to be conducted correctly by
properly trained personnel, the
proposed 4(d) rule would prohibit
intentional take; however, these
activities could be covered under a
section 10(a)(1)(A) permit.
Threats to the species are noted above
and described in detail under Summary
of Biological Status and Threats. The
most significant threat expected to affect
the species in the foreseeable future is
habitat loss and degradation from
siltation, channelization and riparian
vegetation removal, drainage of riparian
wetlands, and water quality
degradation. Some activities have the
potential to affect the relict darter,
including agriculture and land
development. These activities may
result in incidental take through
increases in siltation, diminishing water
quality, altering stream flow, and
reducing fish passage. Therefore, in this
4(d) rule, we propose prohibiting take to
help preserve the relict darter’s
remaining populations, slow the rate of
population decline, preserve and
potentially provide for expansion of the
population, and decrease synergistic,
negative effects from other stressors.
We may issue permits to carry out
otherwise prohibited activities,
including those described above,
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 the
following purposes: Scientific purposes,
to enhance propagation or survival, for
economic hardship, for zoological
exhibition, for educational purposes, for
incidental taking, or for special
purposes consistent with the purposes
of the Act.
Exceptions
The proposed 4(d) rule would also
provide for the conservation of the
species by incorporating several
exceptions to allow for routine
enforcement activities, allow for
assisting sick or injured fish, and
encourage the active habitat
management this species uniquely
requires. The statute also contains
certain statutory exemptions from the
prohibitions, which are found in
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sections 9 and 10 of the Act, and other
regulatory exceptions from the
prohibitions, which are found in our
regulations at 50 CFR part 17, subparts
C and D. Below, we describe these
exceptions to the prohibitions that we
are proposing for the relict darter.
To start, the proposed rule outlines
several regulatory exceptions to the
prohibitions for the relict darter. These
exceptions already apply while the
species is listed as endangered; they
would continue to apply if the Service
finalizes a rule to reclassify the species
as threatened because they advance the
recovery of the species. First, the
proposed rule excepts take associated
with activities that are authorized by
permits under § 17.32. This means that
if a manager has received or receives a
permit for a particular activity (e.g., a
section 10(a)(1)(A) permit for
monitoring relict darters), any take that
occurs as a result of activities covered
by this permit remains excepted from
the prohibitions on take under the
issued permit; in other words, the
manager would not be liable for any
take for which the manager already has
a permit.
Second, the proposed rule
incorporates certain regulatory
exceptions that allow take by
representatives of the Service or of a
State conservation agency to aid a sick
specimen or to dispose of, salvage, or
remove a dead specimen that is reported
to the Office of Law Enforcement; and
take by Federal and State law
enforcement officers performing their
official duties to possess, deliver, carry,
transport, or ship any relict darters
taken in violation of the Act, as
necessary. All of the proposed standard
exceptions for endangered species
currently apply while the species is
listed as endangered.
Next, the proposed 4(d) rule
incorporates a regulatory exception that
does not currently apply while the relict
darter is listed as endangered (the
exception from § 17.31(b)); the Service
can apply this standard exception only
to take prohibitions for threatened
species. The proposed rule allows
employees of State conservation
agencies operating under a cooperative
agreement with the Service in
accordance with section 6(c) of the Act
to take relict darters in order to carry out
conservation programs for the species.
We recognize the special and unique
relationship with our State natural
resource agency partners in contributing
to conservation of listed species. State
agencies often possess scientific data
and valuable expertise on the status and
distribution of endangered, threatened,
and candidate species of wildlife and
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plants. State agencies, because of their
authorities and their close working
relationships with local governments
and landowners, are in a unique
position to assist us in implementing all
aspects of the Act. In this regard, section
6 of the Act provides that we shall
cooperate to the maximum extent
practicable with the States in carrying
out programs authorized by the Act.
Therefore, any qualified employee or
agent of a State conservation agency that
is a party to a cooperative agreement
with us in accordance with section 6(c)
of the Act, who is designated by his or
her agency for such purposes, will be
able to conduct activities designed to
conserve the relict darter that may result
in otherwise prohibited take without
additional authorization.
Finally, unlike the regulations that
apply to the species under endangered
status, the proposed 4(d) rule provides
species-specific exceptions to the
standard take prohibitions in the
proposed rule; these species-specific
exceptions would facilitate continued
and increased implementation of
beneficial management practices that
provide for conservation of the species.
Within each occupied stream,
restoration actions will promote
expansion of the relict darter’s range
and reduce the fragmentation and
isolation of populations. These actions
can reduce stressors that impact the
relict darter, including runoff of
siltation and pollution, and may
(through riparian reforestation) mediate
local water temperatures expected to
increase with climate change. Incidental
take associated with habitat restoration
actions excepted by the proposed 4(d)
rule may result in some minimal level
of harm or temporary disturbance to the
relict darter. For example, a culvert
replacement project would likely
elevate suspended sediments for several
hours, and the darters would need to
move out of the sediment plume to
resume normal feeding behavior.
Because 4(d) rule exceptions would not
apply during the relict darter’s 4-month
spawning period, a critical phase of the
species’ life history, the potential for
incidental take is further minimized.
Overall, these activities benefit the
species by expanding suitable habitat
and reducing within-population
fragmentation, contributing to
conservation and recovery. Consistent
with all of the proposed exceptions and
based on the best available information,
our proposed 4(d) rule excepts
incidental take associated with the
following activities, if carried out in
accordance with existing regulations
and permit requirements, and
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conducted outside the March through
June spawning season:
• Channel restoration or
improvement projects that create
natural, physically stable, ecologically
functioning streams (or stream and
wetland systems) that are reconnected
with their groundwater aquifers and, if
the projects involve known relict darter
spawning habitat, take place between
June 30 and March 1. These projects can
be accomplished using a variety of
methods, but the desired outcome is a
natural channel with low shear stress
(force of water moving against the
channel); bank heights that enable
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.
• Streambank stabilization projects
that use bioengineering methods 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. Stream banks may be stabilized
using native live stakes (live, vegetative
cuttings inserted or tamped into the
ground in a manner that allows the
stake to take root and grow), native 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). Stream banks must not
be stabilized through the use of quarried
rock (rip-rap) or the use of rock baskets
or gabion structures.
• Bridge and culvert replacement/
removal projects or low head dam
removal projects that remove migration
barriers or generally allow for improved
upstream and downstream movements
of relict darters while maintaining
normal stream flows, preventing bed
and bank erosion, and improving habitat
conditions for the species.
• Transportation projects that
incorporate State-approved BMPs that
eliminate sedimentation, do not block
stream flow, do not channelize streams,
and that are for the purposes of
providing for fish passage under a wide
range of hydrologic conditions at stream
crossings (University of Kentucky
Transportation Center 2009, entire).
• Projects carried out in the species’
range by the U.S. Department of
Agriculture’s Natural Resources
Conservation Service that do not alter
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habitats known to be used by the relict
darter beyond the fish’s tolerances.
Nothing in this proposed 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 relict darter. However, interagency
cooperation may be further streamlined
through planned programmatic
consultations for the species between
Federal agencies and the Service, where
appropriate. We ask the public,
particularly State agencies and other
interested stakeholders that may be
affected by the proposed 4(d) rule, to
provide comments and suggestions
regarding additional guidance and
methods that the Service could provide
or use, respectively, to streamline the
implementation of this proposed 4(d)
rule (see Information Requested).
Required Determinations
Clarity of the Rule
We are required by Executive Orders
12866 and 12988 and by the
Presidential Memorandum of June 1,
1998, to write all rules in plain
language. This means that each rule we
publish must:
(1) Be logically organized;
(2) Use the active voice to address
readers directly;
(3) Use clear language rather than
jargon;
(4) Be divided into short sections and
sentences; and
(5) Use lists and tables wherever
possible.
If you feel that we have not met these
requirements, send us comments by one
of the methods listed in ADDRESSES. To
better help us revise the rule, your
comments should be as specific as
possible. For example, you should tell
us the numbers of the sections or
paragraphs that are unclearly written,
which sections or sentences are too
long, the sections where you feel lists or
tables would be useful, etc.
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
(NEPA; 42 U.S.C. 4321 et seq.), need not
be prepared in connection with
determining a species’ listing status
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
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49244). We also determine that 4(d)
rules that accompany regulations
adopted pursuant to section 4(a) of the
Act are not subject to the National
Environmental Policy Act.
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
Common name
*
FISHES
*
Darter, relict .....................
*
*
Authors
The primary authors of this proposed
rule are the staff members of the Fish
and Wildlife Service’s Species
Assessment Team and the Kentucky
Ecological Services Field Office.
List of Subjects in 50 CFR Part 17
Where listed
*
Special rules—fishes.
*
*
*
*
(hh) Relict darter (Etheostoma
chienense).
(1) Prohibitions. The following
prohibitions that apply to endangered
wildlife also apply to relict darter.
Except as provided under paragraph
(hh)(2) of this section and §§ 17.4 and
17.5, it is unlawful for any person
subject to the jurisdiction of the United
States to commit, to attempt to commit,
to solicit another to commit, or cause to
be committed, any of the following acts
in regard to this species:
(i) Import or export, as set forth at
§ 17.21(b) for endangered wildlife.
(ii) Take, as set forth at § 17.21(c)(1)
for endangered wildlife.
(iii) Possession and other acts with
unlawfully taken specimens, as set forth
at § 17.21(d)(1) for endangered wildlife.
16:46 Mar 02, 2022
Jkt 256001
*
Frm 00087
Fmt 4702
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, in paragraph (h), by
revising the entry for ‘‘Darter, relict’’
under Fishes on the List of Endangered
and Threatened Wildlife to read as
follows:
■
*
*
(h) * * *
*
T
*
*
*
*
*
58 FR 68480, 12/27/1993; [Federal Register citation of the final rule]; 50 CFR 17.44(hh) 4d.
*
Sfmt 4702
*
Listing citations and applicable rules
(iv) Interstate or foreign commerce in
the course of commercial activity, as set
forth at § 17.21(e) for endangered
wildlife.
(v) Sale or offer for sale, as set forth
at § 17.21(f) for endangered wildlife.
(2) Exceptions from prohibitions. In
regard to this species, you may:
(i) Conduct activities as authorized by
a permit under § 17.32.
(ii) Take, as set forth at § 17.21(c)(2)
through (4) for endangered wildlife.
(iii) Take as set forth at § 17.31(b).
(iv) Take incidental to an otherwise
lawful activity caused by:
(A) Channel restoration or
improvement projects that create
natural, physically stable, ecologically
functioning streams (or stream and
wetland systems) that are reconnected
with their groundwater aquifers and, if
the projects involve known relict darter
spawning habitat, that take place
between June 30 and March 1. These
projects can be accomplished using a
variety of methods, but the desired
outcome is a natural channel with low
shear stress (force of water moving
against the channel); bank heights that
PO 00000
PART 17—ENDANGERED AND
THREATENED WILDLIFE AND PLANTS
*
*
Wherever found ..............
*
Accordingly, we propose to amend
part 17, subchapter B of chapter I, title
50 of the Code of Federal Regulations,
as set forth below:
*
Status
*
Proposed Regulation Promulgation
§ 17.11 Endangered and threatened
wildlife.
Endangered and threatened species,
Exports, Imports, Plants, Reporting and
recordkeeping requirements,
Transportation, Wildlife.
*
*
Etheostoma chienense ...
*
khammond on DSKJM1Z7X2PROD with PROPOSALS
A complete list of references cited in
this proposed rulemaking is available on
the internet at https://
www.regulations.gov.
*
3. Further amend § 17.44, as proposed
to be amended on November 19, 2020,
at at 85 FR 74050, on November 12,
2020, at 85 FR 71859, and on July 7,
2021, at 86 FR 35708, by adding a
paragraph (hh) to read as follows:
VerDate Sep<11>2014
References Cited
Scientific name
■
§ 17.44
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.
There are no known Tribes within the
range of the relict darter.
*
*
enable 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.
(B) Streambank stabilization projects
that use bioengineering methods 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 and, if the projects involve
known relict darter spawning habitat,
that take place between June 30 and
March 1. Stream banks may be
stabilized using native live stakes (live,
vegetative cuttings inserted or tamped
into the ground in a manner that allows
the stake to take root and grow), native
live fascines (live branch cuttings,
usually willows, bound together into
long, cigar-shaped bundles), or brush
layering (cuttings or branches of easily
E:\FR\FM\03MRP1.SGM
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Federal Register / Vol. 87, No. 42 / Thursday, March 3, 2022 / Proposed Rules
khammond on DSKJM1Z7X2PROD with PROPOSALS
rooted tree species layered between
successive lifts of soil fill). Stream banks
must not be stabilized through the use
of quarried rock (rip-rap) or the use of
rock baskets or gabion structures.
(C) Bridge and culvert replacement/
removal projects or low head dam
removal projects that remove migration
barriers or generally allow for improved
upstream and downstream movements
of relict darters while maintaining
normal stream flows, preventing bed
and bank erosion, and improving habitat
conditions for the species, if completed
between June 30 and March 1.
VerDate Sep<11>2014
16:46 Mar 02, 2022
Jkt 256001
(D) Transportation projects that follow
best management practices that
eliminate sedimentation, do not block
stream flow, do not channelize streams,
and provide for fish passage under a
wide range of hydrologic conditions at
stream crossings and that are done
between June 30 and March 1.
(E) Projects carried out in the species’
range by the Natural Resources
Conservation Service, U.S. Department
of Agriculture, that:
(1) Do not alter habitats known to be
used by the relict darter beyond the
fish’s tolerances; and
PO 00000
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Fmt 4702
Sfmt 9990
12073
(2) Are performed between June 30
and March 1 to avoid the time period
when the relict darter will be found
within its spawning habitat, if such
habitat is affected by the activity.
(v) Possess and engage in other acts
with unlawfully taken wildlife, as set
forth at § 17.21(d)(2) for endangered
wildlife.
Martha Williams,
Principal Deputy Director, Exercising the
Delegated Authority of the Director, U.S. Fish
and Wildlife Service.
[FR Doc. 2022–03315 Filed 3–2–22; 8:45 am]
BILLING CODE 4333–15–P
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Agencies
[Federal Register Volume 87, Number 42 (Thursday, March 3, 2022)]
[Proposed Rules]
[Pages 12056-12073]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-03315]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
[Docket No. FWS-R4-ES-2021-0093; FF09E22000 FXES1113090FEDR 223]
RIN 1018-BF56
Endangered and Threatened Wildlife and Plants; Reclassification
of the Relict Darter From Endangered to Threatened With a Section 4(d)
Rule
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Proposed rule; availability of draft recovery plan and request
for public comment.
-----------------------------------------------------------------------
SUMMARY: We, the U.S. Fish and Wildlife Service (Service), propose to
reclassify (downlist) the relict darter (Etheostoma chienense) from
endangered to threatened under the Endangered Species Act of 1973, as
amended (Act). The relict darter is a fish species that occupies the
Bayou de Chien stream system in western Kentucky. Our evaluation of the
best available scientific and commercial information indicates that the
species' status has improved such that it is not currently in danger of
extinction throughout all or a significant portion of its range, but
that it is still likely to become so in the foreseeable future. We also
propose a rule under section 4(d) of the Act that provides for the
conservation of the relict darter. In addition, we announce the
availability of the draft recovery plan for the relict darter. The
draft recovery plan includes specific recovery objectives and criteria
based on the species status assessment. We request review of this
proposal and of the draft recovery plan and comment from local, State,
and Federal agencies, nongovernmental organizations, Tribes, and the
public.
[[Page 12057]]
DATES: We will accept comments received or postmarked on or before May
2, 2022. Comments submitted electronically using the Federal
eRulemaking Portal (see ADDRESSES, below) must be received by 11:59
p.m. Eastern Time on the closing date. We must receive requests for a
public hearing, in writing, at the address shown in FOR FURTHER
INFORMATION CONTACT by April 18, 2022.
ADDRESSES:
Written comments: You may submit comments by one of the following
methods:
(1) Electronically: Go to the Federal eRulemaking Portal: https://www.regulations.gov. In the Search box, enter FWS-R4-ES-2021-0093,
which is the docket number for this rulemaking. Then, click on the
Search button. On the resulting page, in the panel on the left side of
the screen, under the Document Type heading, check the Proposed Rule
box to locate this document. You may submit a comment by clicking on
``Comment.''
(2) By hard copy: Submit by U.S. mail to: Public Comments
Processing, Attn: FWS-R4-ES-2021-0093, U.S. Fish and Wildlife Service,
MS: PRB/3W, 5275 Leesburg Pike, Falls Church, VA 22041-3803.
We request that you send comments only by the methods described
above. We will post all comments on https://www.regulations.gov. This
generally means that we will post any personal information you provide
us (see Information Requested, below, for more information).
Availability of supporting materials: This proposed rule and
supporting documents, including the 5-year review, the draft recovery
plan, and the species status assessment (SSA) report, are available at
https://www.regulations.gov under Docket No. FWS-R4-ES-2021-0093.
FOR FURTHER INFORMATION CONTACT: Lee Andrews, 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. Persons who use a telecommunications device for the deaf (TDD)
may call the Federal Relay Service at 800-877-8339.
SUPPLEMENTARY INFORMATION:
Executive Summary
Why we need to publish a rule. Under the Act, a species warrants
reclassification from endangered to threatened if it no longer meets
the definition of an endangered species (in danger of extinction
throughout all or a significant portion of its range). The relict
darter (Etheostoma chienense) is listed as endangered, and we are
proposing to reclassify (downlist) the relict darter as threatened
because we have determined it is not currently in danger of extinction
throughout all or a significant portion of its range. Reclassifying a
species as a threatened species can be completed only by issuing a
rulemaking.
What this document does. This rulemaking proposes to reclassify the
relict darter from endangered to threatened (i.e., to ``downlist'' the
species), with a rule issued under section 4(d) of the Act (hereafter
``a 4(d) rule''), based on the species' current status, which has been
improved through implementation of conservation actions. This document
also announces the availability of the draft recovery plan for the
relict darter.
The basis for our action. Under the Act, we may determine that a
species is an endangered species or a threatened species because of 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 may reclassify a species if the
best available commercial and scientific data indicate the species no
longer meets the applicable definition in the Act. We have determined
that the relict darter is no longer in danger of extinction throughout
all or a significant portion of its range and, therefore, does not meet
the definition of an endangered species. However, it is still affected
by the following current and ongoing threats to the extent that the
species meets the definition of a threatened species under the Act:
Habitat destruction and modification caused by
sedimentation, stream channelization, removal of riparian vegetation,
drainage of riparian wetlands, and point and nonpoint source
discharges.
Drought, accidental spills, and catastrophic events.
Low genetic diversity resulting in reduced adaptive
capacity and the inability to withstand stochastic disturbances.
Effects from climate change that are likely to exacerbate
the impacts of drought, hurricanes, and flooding associated with storms
and hurricanes in the future.
Proposed section 4(d) rule. Under section 4(d) of the Act, we
propose to prohibit all take of the relict darter and specifically
tailor the incidental take exceptions under section 9(a)(1) of the Act
to the species to provide protective mechanisms to State and Federal
partners so that they may continue with certain activities that are not
anticipated to cause direct injury or mortality to the relict darter
and that will facilitate the conservation and recovery of the species.
Information Requested
We intend that any final action resulting from this proposed rule
will be based on the best scientific and commercial data available and
be as accurate and as effective as possible. Therefore, we request
comments or information from other governmental agencies, Native
American Tribes, the scientific community, industry, or any other
interested parties concerning this proposed rule.
We particularly seek comments concerning:
(1) Reasons we should or should not reclassify the relict darter as
a threatened species.
(2) New information on the historical and current status, range,
distribution, and population size of the relict darter.
(3) New information on the known and potential threats to the
relict darter, including the species' ability to survive catastrophic
events, sediment and pollution tolerance, and potential impacts of low
effective population size and low genetic diversity.
(4) New information regarding the life history, ecology, and
habitat use of the relict darter.
(5) Current or planned activities within the geographic range of
the relict darter that may have adverse impacts or beneficial effects
on the species.
(6) Information on regulations that are necessary and advisable to
provide for the conservation of the relict darter and that the Service
can consider in developing a 4(d) rule for the species.
(7) Information concerning the extent to which we should include
any of the section 9 prohibitions in the 4(d) rule or whether any other
forms of take should be excepted from the prohibitions in the 4(d)
rule.
(8) We also request comments on the draft recovery plan, which is a
separate effort from the proposed rulemaking.
Please include sufficient information with your submission (such as
scientific journal articles or other publications) to allow us to
verify any scientific or commercial information you include.
Please note that submissions merely stating support for, or
opposition to, the proposed rule to reclassify the relict darter
without providing supporting information, although noted, will not be
[[Page 12058]]
considered in making a determination on the reclassification, as
section 4(b)(1)(A) of the Act directs that determinations as to whether
any species is an endangered or a threatened species must be made
solely on the basis of the best scientific and commercial data
available.
You may submit your comments and materials concerning this proposed
rule and draft recovery plan by one of the methods listed in ADDRESSES.
We request that you send comments only by the methods described in
ADDRESSES.
If you submit information via https://www.regulations.gov, your
entire submission--including any personal identifying information--will
be posted on the website. If your submission is made via a hardcopy
that includes personal identifying information, you may request at the
top of your document that we withhold this information from public
review. However, we cannot guarantee that we will be able to do so. We
will post all hardcopy submissions on https://www.regulations.gov.
Comments and materials we receive, as well as supporting
documentation we used in preparing this proposed rule, will be
available for public inspection on https://www.regulations.gov.
Because we will consider all comments and information we receive
during the comment period, our final determinations may differ from
this proposal. Based on the new information we receive (and any
comments on that new information), we may conclude that the species
should remain listed as endangered instead of being reclassified as
threatened, or we may conclude that the species no longer warrants
listing as either an endangered species or a threatened species. In
addition, we may change the parameters of the prohibitions or the
exceptions to those prohibitions if we conclude it is appropriate in
light of comments and new information received. For example, we may
expand the prohibitions to include prohibiting additional activities if
we conclude that those additional activities are not compatible with
the conservation of the species. Conversely, we may establish
additional exceptions to the prohibitions in the final rule if we
conclude that the activities would facilitate or are compatible with
the conservation and recovery of the species.
Public Hearing
Section 4(b)(5) of the Act provides for a public hearing on this
proposal, if requested. Requests must be received by the date specified
in DATES. Such requests must be sent to the address shown in FOR
FURTHER INFORMATION CONTACT. We will schedule a public hearing on this
proposal, if requested, and announce the date, time, and place of the
hearing, as well as how to obtain reasonable accommodations, in the
Federal Register and local newspapers within the range of the species
at least 15 days before the hearing. For the immediate future, we will
provide these public hearings using webinars that will be announced on
the Service's website, in addition to the Federal Register. The use of
these virtual public hearings is consistent with our regulations at 50
CFR 424.16(c)(3).
Supporting Documents
A species status assessment (SSA) team prepared an SSA report for
the relict darter. The SSA team was composed of Service biologists, in
consultation with other species experts. The SSA report represents a
compilation of the best scientific and commercial data available
concerning the status of the species, including the impacts of past,
present, and future factors (both negative and beneficial) affecting
the species.
In accordance with our July 1, 1994, peer review policy (59 FR
34270; July 1, 1994), our August 22, 2016, Director's Memo on the Peer
Review Process, and the Office of Management and Budget's December 16,
2004, Final Information Quality Bulletin for Peer Review (revised June
2012), we solicited independent scientific reviews of the information
contained in the relict darter SSA report. We sent the SSA report to
three independent peer reviewers and received three responses. Results
of this structured peer review process can be found as part of the
docket at https://www.regulations.gov under Docket No. FWS-R4-ES-2021-
0093. The SSA report was also submitted to our Federal and State
partners for scientific review. We received review comments from four
partners, including the Kentucky Department of Fish and Wildlife
Resources (KDFWR), the Office of Kentucky Nature Preserves (OKNP), the
U.S. Department of Agriculture's Natural Resources Conservation Service
(NRCS), and The Nature Conservancy (TNC). In preparing this proposed
rule, we incorporated the results of these reviews, as appropriate,
into the final SSA report, which is the foundation for this proposed
rule and the draft recovery plan.
Previous Federal Actions
The relict darter was proposed for listing as an endangered species
on December 11, 1992 (57 FR 58774). On December 27, 1993 (58 FR 68480),
we finalized the listing as endangered due to impacts from water
quality and habitat deterioration resulting from stream channelization,
siltation contributed by poor land use practices, and water pollutants.
Designation of critical habitat was found to be not prudent based on
the determination that a critical habitat designation was unlikely to
benefit the relict darter and that designation of critical habitat
could further threaten the species by exposing the species to increased
collection and threat of vandalism.
On July 31, 1994, we published a technical/agency draft recovery
plan for the relict darter, which was not finalized. In 2019, as part
of the Department of the Interior's agency priority goal effort, we
initiated preparation of a revised draft recovery plan for the relict
darter. The current draft (Service 2020b, entire) is available for
review at https://www.regulations.gov under Docket No. FWS-R4-ES-2021-
0093.
We have completed two 5-year reviews for the relict darter. In the
August 9, 2013, 5-year review, we concluded that no change in relict
darter status was warranted. However, the August 30, 2019, our 5-year
review recommended downlisting the relict darter from endangered to
threatened status based on population size, evidence of reproduction,
discovery of a new population, and improved habitat conditions.
Proposed Reclassification Determination
Background
A thorough review of the relict darter's taxonomy, life history,
and ecology is presented in the SSA report (Service 2020a, pp. 8-15)
and is summarized below.
Species Information
The relict darter is a small, narrowly endemic, benthic fish that
occupies the Bayou de Chien stream system in western Kentucky. It can
be distinguished from other darters by the number of dorsal fin rays
(bony or cartilaginous spines of first and second fins along top of
body), its breeding behavior (egg-clustering with parental care), and
the color and morphology of the dorsal fins of breeding males. Females
and nonbreeding males have light-tan-colored backs and sides, with
brown mottling and six to eight dark brown saddles. They have white,
unmarked undersides. Breeding males have gray to dark brown sides and
backs and light tan undersides (Page et al. 1992, p. 628).
[[Page 12059]]
Taxonomy
The relict darter, Etheostoma chienense, is a member of the Class
Actinopterygii (ray-finned fishes), Order Perciformes, Family Percidae
(perches), and Tribe Etheostomatini (darters) (Etnier and Starnes 1993,
pp. 18-25, 440-441). The relict darter was first discovered in the
Bayou de Chien system in 1975 (Webb and Sisk 1975), reported as E.
squamiceps, but it was not recognized as a distinct species and
described until 1992.
Genetics
A population bottleneck and subsequent genetic drift likely explain
the species' low genetic diversity and low effective population size,
which is estimated at a mean of 221.5 individuals, lower than what is
usually sufficient (500) to retain a species' evolutionary potential
(Soule 1980, pp. 151-169; Kattawar and Piller 2020, entire).
Agricultural expansion within the Bayou de Chien system during the
early to mid-20th century, including widespread channelization and
straightening of stream channels, likely led to a sharp reduction in
the size of the relict darter population. Populations have likely
stabilized some over time, but the effects of a population bottleneck
and subsequent genetic drift appears to have led to low levels of
genetic diversity across the range. Recent field surveys (2010-2019)
suggest that relict darters in Little Bayou de Chien are isolated from
the rest of the system; however, analyses indicate a single panmictic
population, where random mating occurs among all individuals in the
Bayou de Chien system (i.e., individuals can interbreed without
restrictions) (Kattawar and Piller 2020, entire).
Distribution
The relict darter's historical range included the Bayou de Chien
stream system, a 554-kilometer\2\ (km\2\) (214-mile\2\ (mi\2\))
watershed located within the Mississippi Valley Loess Plains ecoregion
(Woods et al. 2002, entire) in Fulton, Graves, and Hickman Counties,
Kentucky (Webb and Sisk 1975, entire; Warren et al. 1994, entire;
Piller and Burr 1998, entire). Bayou de Chien is a low-gradient, sand,
gravel, and silt-bottomed stream that begins in southwestern Graves
County and flows westward approximately 47 km (29.2 mi) through Hickman
and Fulton Counties, before ultimately emptying into Obion Creek near
Hickman, Kentucky. All but the terminal 8-10 km (5.0-6.2 mi) of Bayou
de Chien have been subjected to extensive channelization, and the
dominant land use is row-crop agriculture (Webb and Sisk 1975, p. 63).
Currently, the relict darter continues to occupy portions of the Bayou
de Chien system in Fulton, Graves, and Hickman counties, Kentucky. The
species is represented by two geographically isolated populations:
Bayou de Chien/Jackson Creek and Little Bayou de Chien (Service 2020a,
p. 20).
Habitat
The species typically occupies slow-flowing runs, glides, or pools
of small to medium-sized, lowland streams with sand and gravel
substrates. In these habitats, the species is most commonly observed
near cover, such as undercut banks, woody debris piles, or snags. An
abundance of woody debris provides a sufficient supply of spawning
substrates and, consequently, the highest mean densities of the species
(Service 2020a, p. 10).
Biology
The species feeds primarily on midge larvae and other small
invertebrates. Spawning occurs from mid-March to early June, and the
species has a maximum lifespan of 3 to 4 years. Like all members of the
Etheostoma squamiceps complex, females deposit eggs on the undersides
of submerged objects, and egg clusters are guarded by the male until
hatching occurs (Service 1994, p. 7). During a 1999 survey, most nests
were located on natural materials such as small rocks, woody debris,
and live tree roots, but 37 percent of nests were found on
anthropogenic materials such as rubber tires, plastic, roof shingles,
glass, concrete blocks, metal road signs, and concrete slabs (Piller
and Burr 1999, pp. 147-151).
The species was characterized as uncommon or rare at most
collection sites in the 1990s, generally consisting of 1-23 individuals
per site (Piller and Burr 1998, pp. 66-71). Recent surveys indicate the
species continues to be rare in some reaches but is more common in
others. Generally, the greatest number of darters per sampling reach
and the highest mean densities (0.43 darters/square meter) have been
observed in Jackson Creek and an approximately 22.6-km (14.1-mi) reach
of Bayou de Chien (0.30 darters/square meter), extending from just
downstream of the U.S. 51 bridge crossing in Hickman County upstream to
the Pea Ridge Road bridge crossing in Graves County (Service 2020a,
Appendix A).
Recovery Criteria From Draft Recovery Plan (2020)
Section 4(f) of the Act directs us to develop and implement
recovery plans for the conservation and survival of endangered and
threatened species unless we determine that such a plan will not
promote the conservation of the species. Under section 4(f)(1)(B)(ii),
recovery plans must, to the maximum extent practicable, include
objective, measurable criteria which, when met, would result in a
determination, in accordance with the provisions of section 4 of the
Act, that the species be removed from the Lists of Endangered and
Threatened Wildlife and Plants.
Recovery plans provide a roadmap for us and our partners on methods
of enhancing conservation and minimizing threats to listed species, as
well as measurable criteria against which to evaluate progress towards
recovery and assess the species' likely future condition. However, they
are not regulatory documents and do not substitute for the
determinations and promulgation of regulations required under section
4(a)(1) of the Act. A decision to revise the status of a species, or to
delist a species, is ultimately based on an analysis of the best
scientific and commercial data available to determine whether a species
is no longer an endangered species or a threatened species, regardless
of whether that information differs from the recovery plan.
There are many paths to accomplishing recovery of a species, and
recovery may be achieved without all of the criteria in a recovery plan
being fully met. For example, one or more criteria may be exceeded
while other criteria may not yet be accomplished. In that instance, we
may determine that the threats are minimized sufficiently and that the
species is robust enough that it no longer meets the definition of an
endangered species or a threatened species. In other cases, we may
discover new recovery opportunities after having finalized the recovery
plan. Parties seeking to conserve the species may use these
opportunities instead of methods identified in the recovery plan.
Likewise, we may learn new information about the species after we
finalize the recovery plan. The new information may change the extent
to which existing criteria are appropriate for identifying recovery of
the species. The recovery of a species is a dynamic process requiring
adaptive management that may, or may not, follow all of the guidance
provided in a recovery plan.
[[Page 12060]]
The revised draft recovery plan for the relict darter (Service
2020b, p. 4) states that the goal of the recovery plan is to ensure the
long-term viability of the relict darter in the wild to the point that
it can be removed from the Federal List of Endangered and Threatened
Wildlife. The draft plan provides two recovery/delisting criteria for
the relict darter. Both of the recovery criteria have been partially
met. The following discussion provides an assessment of the recovery
criteria as they relate to evaluating the status of this species. We
are seeking review and comment of the draft recovery plan from local,
State, and Federal agencies, nongovernmental organizations, Tribes, and
the public (see ADDRESSES and reference Docket No. FWS-R4-ES-2021-
0093).
Recovery Criterion 1
Criterion 1 states that relict darter populations occupying at
least five streams, including the Bayou de Chien mainstem, Jackson
Creek, Little Bayou de Chien, South Fork Bayou de Chien, and one other
Bayou de Chien tributary exhibit stable or increasing population
trends, natural recruitment, and multiple age classes.
Populations that exhibit a stable or increasing trend, natural
recruitment, and multiple age classes have higher resiliency and are
better able to withstand stochastic disturbance. The presence of
sufficiently resilient populations in multiple tributaries increases
the species' redundancy, thereby reducing its vulnerability to
catastrophic events. Conservation of existing relict darter populations
in the Bayou de Chien and Little Bayou de Chien watersheds will also
help to maintain the species' current representation, which although
currently low, maintenance will therefore not reduce the species'
ability to adapt to changing environmental conditions.
The Bayou de Chien/Jackson Creek population of relict darter
occupies at least six streams, including Bayou de Chien, Jackson Creek,
Little Bayou de Chien, South Fork Bayou de Chien, Cane Creek, and Sand
Creek (Service 2020a, p. 20). However, only two of these streams have
exhibited stable or increasing population trends, recruitment, and
multiple age classes--Jackson Creek and Bayou de Chien. Recent surveys
(2017-2018) indicate that estimates of relict darter abundance, mean
density, and population size continue to be greatest in Jackson Creek
and middle to headwater reaches of Bayou de Chien (Service 2020a, pp.
35-36). There is also evidence of reproduction and recruitment in Bayou
de Chien and Jackson Creek streams, and these trends have remained
relatively constant or have improved based on surveys completed in the
past decade (Service 2019, p. 22). Therefore, we conclude that this
recovery criterion has been partially met.
Recovery Criterion 2
Criterion 2 states that threats have been addressed and/or managed
in these watersheds to the extent that the species will maintain
resiliency into the foreseeable future.
Under this criterion, cooperative conservation efforts by the
Service and its partners will reduce existing threats posed by habitat
disturbance, range curtailment, and past inadequate regulatory
mechanisms. These threats must be reduced to the extent that there is a
reasonable expectation the species will maintain resiliency into the
foreseeable future. Evidence of threat reduction will be demonstrated
by the species' improved resiliency and redundancy across its range.
Since 2002, we have worked with multiple agencies and private
partners (e.g., NRCS, KDFWR, and TNC) to implement conservation actions
for the relict darter in the Bayou de Chien system (Service 2020a, p.
29). Our Partners for Fish and Wildlife (PFW) Program has taken the
lead role in this effort by providing technical and financial
assistance to agencies and numerous private landowners. PFW biologists
have focused their efforts on the use of best management practices
(BMPs) and instream conservation practices that enhance and restore
riparian habitats and the instream habitats used by the relict darter.
PFW projects have included a culvert removal in the headwaters of Bayou
de Chien, installation of livestock alternate watering systems,
placement of artificial spawning structures in Bayou de Chien and
Jackson Creek, installation of livestock exclusion fencing along
several km of Bayou de Chien and Jackson Creek, and restoration of over
20.2 hectares (50 acres) of native grasses and wildflowers within
riparian areas. In addition to these efforts, PFW biologists have
provided over 10 years of technical assistance to the U.S. Department
of Agriculture, Wetland Reserve Easement Program, for projects within
the Bayou de Chien system (Radomski 2019, pers. comm.).
While some of the stream habitats within the Bayou de Chien
watershed have improved since the time of the listing of the relict
darter, the improvements are often localized, and several threats
remain. The species continues to be impacted by sedimentation,
pollution, a limited range and linear distribution, and low genetic
diversity (Service 2020a, pp. 37-38). Therefore, we consider this
recovery criterion to be partially met.
Regulatory and Analytical Framework
Regulatory Framework
Section 4 of the Act (16 U.S.C. 1533) and its implementing
regulations (50 CFR part 424) set forth the procedures for determining
whether a species is an ``endangered species'' or a ``threatened
species.'' The Act defines an endangered species as a species that is
in danger of extinction throughout all or a significant portion of its
range, and a threatened species as a species that is likely to become
an endangered species within the foreseeable future throughout all or a
significant portion of its range. The Act requires that we determine
whether any species is an ``endangered species'' or a ``threatened
species'' because of any of the following 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.
These factors represent broad categories of natural or human-caused
actions or conditions that could affect a species' continued existence.
In evaluating these actions and conditions, we look for those that may
have a negative effect on individuals of the species, as well as other
actions or conditions that may ameliorate any negative effects or may
have positive effects. We consider these same five factors in
reclassifying a species from endangered to threatened (50 CFR
424.11(c)-(e)).
We use the term ``threat'' to refer in general to actions or
conditions that are known to or are reasonably likely to negatively
affect individuals of a species. The term ``threat'' includes actions
or conditions that have a direct impact on individuals (direct
impacts), as well as those that affect individuals through alteration
of their habitat or required resources (stressors). The term ``threat''
may encompass--either together or separately--the source of the action
or condition or the action or condition itself.
However, the mere identification of any threat(s) does not
necessarily mean that the species meets the statutory
[[Page 12061]]
definition of an ``endangered species'' or a ``threatened species.'' In
determining whether a species meets either definition, we must evaluate
all identified threats by considering the species' expected response
and the effects of the threats--in light of those actions and
conditions that will ameliorate the threats--on an individual,
population, and species level. We evaluate each threat and its expected
effects on the species, then analyze the cumulative effect of all of
the threats on the species as a whole. We also consider the cumulative
effect of the threats in light of those actions and conditions that
will have positive effects on the species--such as any existing
regulatory mechanisms or conservation efforts. The Secretary determines
whether the species meets the definition of an ``endangered species''
or a ``threatened species'' only after conducting this cumulative
analysis and describing the expected effect on the species now and in
the foreseeable future.
The Act does not define the term ``foreseeable future,'' which
appears in the statutory definition of ``threatened species.'' Our
implementing regulations at 50 CFR 424.11(d) set forth a framework for
evaluating the foreseeable future on a case-by-case basis. The term
foreseeable future extends only so far into the future as we can
reasonably determine that both the future threats and the species'
responses to those threats are likely. In other words, the foreseeable
future is the period of time in which we can make reliable predictions.
``Reliable'' does not mean ``certain''; it means sufficient to provide
a reasonable degree of confidence in the prediction. Thus, a prediction
is reliable if it is reasonable to depend on it when making decisions.
It is not always possible or necessary to define foreseeable future
as a particular number of years. Analysis of the foreseeable future
uses the best scientific and commercial data available and should
consider the timeframes applicable to the relevant threats and to the
species' likely responses to those threats in view of its life-history
characteristics. Data that are typically relevant to assessing the
species' biological response include species-specific factors such as
lifespan, reproductive rates or productivity, certain behaviors, and
other demographic factors.
Analytical Framework
The SSA report documents the results of our comprehensive
biological review of the best scientific and commercial data regarding
the status of the species, including an assessment of the potential
threats to the species. The SSA report does not represent our decision
on whether the species should be reclassified as a threatened species
under the Act. It does, however, provide the scientific basis that
informs our regulatory decisions, which involve the further application
of standards within the Act and its implementing regulations and
policies.
To assess relict darter viability, we used the three conservation
biology principles of resiliency, redundancy, and representation
(Shaffer and Stein 2000, pp. 306-310). Briefly, resiliency supports the
ability of the species to withstand environmental and demographic
stochasticity (for example, wet or dry, warm or cold years); redundancy
supports the ability of the species to withstand catastrophic events
(for example, droughts, large pollution events), and representation
supports the ability of the species to adapt over time to long-term
changes in the environment (for example, climate changes). In general,
the more resilient and redundant a species is and the more
representation it has, the more likely it is to sustain its populations
over time, even under changing environmental conditions. Using these
principles, we identified the species' ecological requirements for
survival and reproduction at the individual, population, and species
levels, and described the beneficial and risk factors influencing the
species' viability.
The SSA process can be categorized into three sequential stages.
During the first stage, we evaluated the species' ecological and life-
history needs. The next stage involved an assessment of the historical
and current condition of the species' demographics and habitat
characteristics, including an explanation of how the species arrived at
its current condition. The final stage of the SSA involved making
predictions about the species' responses to positive and negative
environmental and anthropogenic influences. Throughout all of these
stages, we used the best available information to characterize
viability as the ability of the species to sustain its populations in
the wild over time. We use this information to inform our regulatory
decision. The following is a summary of the key results and conclusions
from the SSA report; the full SSA report can be found at Docket No.
FWS-R4-ES-2021-0093 on https://www.regulations.gov.
Summary of Biological Status and Threats
In this section, we review the biological condition of the species
and its resources, and we evaluate threats influencing the species'
current and future condition. These assessments allow us to assess the
species' overall viability and the risks to that viability.
Factors Influencing Relict Darter Viability
At the time of listing in 1993, the relict darter was known only
from the Bayou de Chien mainstem and Jackson Creek, but it was later
discovered in the Little Bayou de Chien in 2017 (Service 2019, p. 11).
Threats to the species at the time of listing were water quality and
habitat deterioration resulting from stream channelization, siltation
contributed by incompatible land use practices, and water pollutants
from waste discharges. Relict darter distribution was reduced by these
factors, and because the species was known to inhabit only limited
areas and known to spawn in only one small tributary, it was deemed
vulnerable to extirpation from toxic chemical spills (58 FR 68481,
December 27, 1993). Additionally, because of its small population size,
the species' long-term genetic viability was determined questionable at
the time of listing.
While the relict darter's viability has improved over time (see
Conservation Efforts), three major factors are influencing the
viability of the species now and are expected to affect it into the
future: Habitat loss and degradation, restricted range/isolation, and
climate change. Habitat loss and degradation resulting from siltation,
channelization/riparian vegetation removal, drainage of riparian
wetlands, and water quality degradation (pollution) (Factor A) pose the
largest risk to the current and future viability of the relict darter.
Other potential stressors to the species are the restricted range of
the species and climate change (Factor E). We find the species does not
face threats from overutilization (Factor B), disease or predation
(Factor C), or invasive species (Factor E). A brief summary of relevant
stressors is presented below; for a full description, refer to chapter
3 of the SSA report (Service 2020a, entire).
Siltation
Siltation is the process whereby excess sediments are suspended or
deposited in a stream. Excessive levels of sediment accumulate and
cover the stream bottom, filling the interstitial spaces with finer
substrates and homogenizing and decreasing the available habitat for
fishes. In severe cases, sediment can bury larger substrate particles
such as gravel and cobble, as well as woody debris. Siltation can
abrade or suffocate fish
[[Page 12062]]
gills, eggs, and larvae; reduce disease tolerance; degrade or destroy
spawning habitats, affecting egg, larval, and juvenile development;
modify migration patterns; reduce food availability through the
blockage of primary production; and reduce foraging efficiency (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). Thus, siltation
is a threat to all life stages of relict darter. In addition, relict
darter spawning substrates are usually the undersides of fixed objects
(e.g., wood, tree roots, cobble, tires) and are vulnerable to the
effects of siltation (i.e., embeddedness, or being completely covered
in sediment) (Service 2020a, p. 14).
Sediment (siltation) is one of the most common stressors of aquatic
communities in the Bayou de Chien system (Kentucky Division of Water
(KDOW) 2018, pp. 43-45). The primary sources of sediment are as
agriculture (crop production) and habitat impacts (channel erosion/
incision from upstream hydromodifications, dredging, and loss of
riparian habitat). The Bayou de Chien system is extensively farmed
(e.g., row crops and livestock), and a large portion of the system has
been deforested. These land use practices result in a high silt load
within the system that continues to degrade habitats and impact the
species. Croplands have the potential to contribute large sediment
loads during storm events, thereby causing increased siltation and
potentially introducing harmful agricultural pollutants such as
herbicides and pesticides. Unrestricted livestock access to streams has
the potential to cause siltation and other habitat disturbance (Fraley
and Ahlstedt 2000, pp. 193-194). Grazing may reduce water infiltration
rates and increase stormwater runoff; trampling and vegetation removal
increase the probability of erosion and siltation (Brim Box and Mossa
1999, p. 103). Physical habitat disturbance from sedimentation is less
common in Jackson Creek than in other portions of the Bayou de Chien
system.
Several streams within the Bayou de Chien system have been
identified as impaired due to siltation and have been included by the
State of Kentucky on its list of impaired waters required under section
303(d) of the Clean Water Act (33 U.S.C. 1313(d)) (KDOW 2018, pp. 43-
45). Portions of several streams occupied by the relict darter are on
this list, including Cane Creek (stream km 0-8.5 (stream mi 0-5.3)) in
Hickman County, Little Bayou de Chien (stream km 1.8-3.8 and 18.8-22.5
(stream mi 1.1-2.4 and 11.7-14.0)) in Fulton and Hickman Counties, and
South Fork Bayou de Chien (stream km 0-12.6 (stream mi 0-7.8)) in
Graves County.
Channelization/Riparian Vegetation Removal
Stream channelization is a common practice used to reduce the
effects of flooding, increase the drainage rate of agricultural land,
and maximize the amount of tillable land (Piller and Burr 1998, p. 65).
These modified channels are often managed through vegetation removal
and dredging to improve flood conveyance or through placement of
quarried stone or gabion baskets to protect against bank erosion (Allan
and Castillo 2007, p. 327).
Historically, Bayou de Chien was presumably a free-flowing stream
with alternating areas of riffles, runs, and pools. Since that time,
many stream reaches within the system have been channelized and
converted to deep ditches with uniform depth, velocity, and substrate
(Piller and Burr 1998, p. 71). Channelization has impacted the Bayou de
Chien system by changing stream flow patterns including reducing
instream flows (especially during drier periods) that stress relict
darters, decreasing aquatic habitat complexity, which affects
sheltering and feeding for relict darters, and reducing stream bank and
floodplain (riparian) vegetation (Piller and Burr 1998, p. 71), which
affects relict darter feeding and breeding resource needs. Channelized
reaches have higher stream velocities and shear stress (a measure of
the force of water against the channel boundary) during high flow
periods (which leads to channel instability and bank erosion), less
instream cover and habitat for aquatic organisms including relict
darter (decreased habitat complexity), less riparian vegetation and
correspondingly reduced canopies (reduced shade and reduced woody
debris input), and below normal flows during drier periods (Warren et
al. 1994, p. 24; Piller and Burr 1998, p. 71). Thus, the relict darter
is susceptible to impacts from channelization and reductions in
riparian vegetation because these stressors affect flows, habitat
complexity, and instream temperatures and reduce the amount of woody
material, thus affecting sheltering and reproduction needs of the
species.
The reduction or loss of riparian vegetation contributes to
siltation through bank destabilization and the removal of submerged
root systems that help to hold sediments in place while providing
habitat for relict darters and their macroinvertebrate prey (Barling
and Moore 1994, p. 544; Beeson and Doyle 1995, p. 989; Allan 2004, p.
262; Hauer and Lamberti 2006, pp. 721-723; Minshall and Rugenski 2006,
pp. 721-723). Removal of riparian vegetation can also reduce the
stream's capacity for trapping and removing contaminants and nutrients
from runoff; increase solar exposure, resulting in higher water
temperatures; increase algal abundance (primary production); and reduce
inputs of woody debris and leaf litter, thereby reducing food sources
for relict darters and lowering overall stream production (Brazier and
Brown 1973, p. 4; Karr and Schlosser 1978, p. 231; Peterjohn and
Correll 1984, p. 1473; Osborne and Kovacic 1993, p. 255; Barling and
Moore 1994, p. 555; Vought et al. 1994, p. 346; Allan 1995, p. 109;
Wallace et al. 1999, p. 429; Pusey and Arthington 2003, p. 4). Where a
reduction or loss of riparian vegetation occurs, these impacts
negatively affect the quality of habitat available to the relict darter
for breeding, feeding, and sheltering.
Drainage of Riparian Wetlands
With increased agricultural activity in the Bayou de Chien basin
over the last century, much of the basin's vegetation has been cleared,
and many riparian wetlands have been drained to make additional lands
available for farming (Piller and Burr 1998, p. 65). This situation has
caused an overall reduction in the groundwater level and base flows
within Bayou de Chien and its tributaries. Many small streams in the
system have completely dried or consisted of isolated pools by the
early fall months (Warren et al. 1994, p. 24). These conditions serve
to isolate populations and subject both the adult and juvenile relict
darters to increased pressure from predators (Service 1994, p. 14).
Dispersal of the species upstream of the Jackson Creek area or into
many downstream tributaries may be limited by instream flow conditions
(Warren et al. 1994, p. 24).
Water Quality Degradation (Pollution)
Information is lacking on the relict darter's tolerance to specific
pollutants, but a variety of contaminants continue to degrade stream
water quality within the Bayou de Chien drainage, and these pollutants
may affect the relict darter. Several point-source and nonpoint-source
pollutants to aquatic life occur in the Bayou de Chien (Service 2020a,
Appendix B) (KDOW 2018, pp. 43-45). These pollutants include copper,
iron, lead, excess nutrients (total nitrogen and phosphorus), and
eutrophication originating from two suspected sources--municipal point
source discharges (e.g., sewage treatment) and agriculture (e.g., crop
production and
[[Page 12063]]
animal feeding operations). Portions of four streams that are occupied
by relict darter, specifically Bayou de Chien, Cane Creek, Little Bayou
de Chien, and South Fork Bayou de Chien, were identified as impaired
due to these pollutants (KDOW 2018, pp. 43-45). The impacts of copper,
lead, and iron inputs are unknown, but nutrient inputs and
eutrophication can lead to excessive algal growths and instream oxygen
deficiencies that can seriously impact aquatic species, including the
relict darter.
Currently, 13 National Pollutant Discharge Elimination System
permits have been issued authorizing the discharge of pollutants within
portions of the Bayou de Chien system (Fredenberg 2018, pers. comm.;
Service 2020a, p. 27). Two sewage treatment plants, the City of Fulton
Treatment Works (Kentucky Pollutant Discharge Elimination System
(KPDES) #KY0026913) and the Hickman East Sewage Treatment Plant (KPDES
#KY0028436), discharge treated wastewater directly into Bayou de Chien.
Between January 2010 and April 2020, the Fulton facility received 13
violation notices from KDOW. The notices were issued for permit
exceedances of a variety of chemical parameters (e.g., Biochemical
Oxygen Demand (BOD), Total Suspended Solids (TSS), pH) and for failures
to meet certain monitoring requirements associated with the permit
(Service 2020a, Appendix C). Insufficient treatment of wastewater could
harm relict darter populations by introducing pollutants (e.g., metals,
bacteria) and altering water quality conditions (e.g., decreased oxygen
levels, elevated pH).
The Bayou de Chien system is also affected by nonpoint-source
pollutants, arising from a variety of diffuse sources. Examples of
nonpoint-source pollutants include sediment (e.g., stormwater runoff
from driveways, fields, construction sites), raw sewage (e.g., septic
tank leakage, straight pipe discharges), animal waste from livestock,
fertilizers, pesticides, herbicides, and road salt (KDOW 2013, pp. 19-
21; KDOW 2018, pp. 43-45). Nonpoint-source pollutants can cause excess
nutrification (increased levels of nitrogen and phosphorus), excessive
algal growths that clog the waterway and affect swimming capability and
visual predation, instream oxygen deficiencies that affect oxygen
intake by relict darters, and other changes in water chemistry that can
impact aquatic species such as the relict darter. Nonpoint-source
pollution from land surface runoff can originate from virtually any
land use activity and has been correlated with impervious surfaces and
storm water runoff (Allan 2004, pp. 266-267). Pollutants may include
sediments, fertilizers, herbicides, pesticides, animal wastes, septic
tank and gray water leakage, pharmaceuticals, and petroleum products.
These pollutants tend to increase concentrations of nutrients and
toxins in the water and alter the chemistry of affected streams such
that the habitat and food sources for species like the relict darter
are negatively impacted.
Due to its linear distribution within the Bayou de Chien mainstem
and Jackson Creek, the relict darter continues to be vulnerable to
accidental chemical or animal waste spills and releases that may result
from traffic accidents, agricultural activities, or permitted
discharges (Warren et al.1994, p. 24). Events of this kind have
affected other aquatic communities in the Southeastern United States
during the recent past (Ahlstedt et al. 2016, pp. 8-9), so similar
events have the potential to affect relict darter populations in the
Bayou de Chien system. These events could have devastating effects on
darters in these reaches (Piller and Burr 1996, p. 74) and could pose a
threat to the long-term viability of the species.
Restricted Range/Isolation
The relict darter has always had a limited geographic range,
currently consisting of approximately 52.5 stream km (32.7 stream mi)
within a single stream system in western Kentucky (Bayou de Chien
system). The species was characterized as uncommon or rare at most
collection sites in the 1990s (Piller and Burr 1998, pp. 66-71), and
recent surveys indicate the species continues to be rare in some
reaches but is more common in others.
The species' restricted range and low abundance in some reaches
(e.g., Little Bayou de Chien and Cane Creek) make it more vulnerable to
extirpation from toxic chemical spills, habitat modification,
degradation from land surface runoff (nonpoint-source pollution), and
natural catastrophic changes to their habitat (e.g., flood scour,
drought). In particular, recent survey data indicate that the relict
darter's most successful reproduction occurs in Jackson Creek and
middle and headwater reaches of Bayou de Chien, which are vulnerable to
stochastic events, such as a single toxic chemical spill or an extreme
weather event such as a drought or flash flood. These events could have
devastating effects on darters in these reaches (Piller and Burr 1996,
p. 74) and could pose a threat to the long-term viability of the
species.
The relict darter is represented by two geographically isolated
populations: Bayou de Chien/Jackson Creek and Little Bayou de Chien
(Service 2020a, p. 20). The fact that the Little Bayou de Chien
population is small and isolated from the larger Bayou de Chien/Jackson
Creek population makes it more vulnerable to stochastic and
catastrophic events, thus affecting overall relict darter viability.
Climate Change
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 (Byers and Norris 2011,
pp. 18-19); 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 relict darter to random
catastrophic events (McLaughlin et al. 2002, pp. 6060-6074; Thomas et
al. 2004, pp. 145-148). An increase in both severity and variation in
climate patterns is expected; extreme floods, strong storms, and
droughts will become more common (Cook et al. 2004, pp. 1015-1018; Ford
et al. 2011, p. 2065; Intergovernmental Panel on Climate Change 2014,
pp. 58-83). Frequency, duration, and intensity of droughts are likely
to increase in the Southeast as a result of global climate change
(Thomas et al. 2004, pp. 145-148). Stream temperatures in the Southeast
have increased roughly 0.2-0.4 degrees Celsius ([deg]C) (0.4-0.7
degrees Fahrenheit ([deg]F)) per decade over the past 30 years, and as
air temperature is a strong predictor of water temperature, stream
temperatures are expected to continue to rise (Kaushal et al. 2010, p.
465). Predicted impacts of climate change on fishes include disruption
to their physiology (such as temperature tolerance, dissolved oxygen
needs, and metabolic rates), life history (such as timing of
reproduction, growth rate), and distribution (range shifts, migration
of new predators) (Jackson and Mandrak 2002, pp. 89-98; Heino et al.
2009, pp. 41-51; Strayer and Dudgeon 2010, pp. 350-351; Comte et al.
2013, pp. 627-636).
Estimates of the effects of climate change using available climate
models typically lack the geographic precision needed to project the
magnitude of effects at a scale small enough to discretely apply to the
range of a given species. However, data on recent trends and projected
changes for Kentucky (Girvetz et al. 2009, pp. 1-19), and, more
specifically, the Bayou de Chien system (Alder and Hostetler 2017,
[[Page 12064]]
entire) provide some insight for evaluating the potential impacts of
climate change to the relict darter. Different emission scenarios have
been used to calculate estimates of average annual increases in maximum
and minimum air temperature, precipitation, snowfall, and other
variables (Alder and Hostetler 2017, entire). These scenarios, called
representative concentration pathways (RCPs), are plausible pathways
toward reaching a target radiative forcing (the change in energy in the
atmosphere due to greenhouse gases) by the year 2100 (Moss et al. 2010,
p. 752). Depending on the chosen model and emission scenario (RCP8.5
(high) vs. 4.5 (moderate)), annual mean maximum air temperatures for
the Bayou de Chien system are expected to increase by 2.3-3.4 [deg]C
(4.1-6.1 [deg]F) by 2074, while precipitation models predict that the
Bayou de Chien system will experience a slight increase in annual mean
precipitation (0.5 centimeters/month (0.2 inches/month)) through 2074
(Girvetz et al. 2009, pp. 1-19; Alder and Hostetler 2016, pp. 1-9).
There is uncertainty about the specific effects of climate change
(and their magnitude) on the relict darter; however, climate change is
almost certain to affect aquatic habitats in the Bayou de Chien system
of western Kentucky through increased water temperatures and more
frequent droughts (Alder and Hostetler 2017, entire), and species with
limited ranges, fragmented distributions, and small population size,
such as the relict darter, are thought to be especially vulnerable to
the effects of climate change (Byers and Norris 2011, pp. 18-19). Thus,
we consider climate change to be a threat to the relict darter.
Regulatory Mechanisms
The relict darter and its habitats are afforded some protection
from water quality and habitat degradation under the Clean Water Act,
Kentucky's Forest Conservation Act of 1998 (KRS Sec. Sec. 149.330-
355), Kentucky's Agriculture Water Quality Act of 1994 (KRS Sec. Sec.
224.71-140), and additional Kentucky statutes and regulations regarding
natural resources and environmental protection (KRS Sec. 224; 401 KAR
Sec. Sec. 5:026, 5:031). While it is clear that the protections
afforded by these statutes and regulations have not prevented the
degradation of some habitats used by the relict darter, the species has
undoubtedly benefited from improvements in water quality and habitat
conditions stemming from these regulatory mechanisms.
Conservation Efforts
The relict darter is listed as endangered in Kentucky (OKNP 2019,
p. 16), making it unlawful to take the species or damage its habitat
without a State permit. Additionally, the relict darter is identified
as a species of greatest conservation need in the Kentucky Wildlife
Action Plan (KDFWR 2013, Chapter 2), which outlines actions to promote
species conservation.
Since listing the species, the Service has worked with multiple
agencies and private partners (e.g., NRCS, KDFWR, and TNC) to implement
conservation actions for the relict darter in the Bayou de Chien
system. The Service's PFW Program has taken the lead role in this
effort by providing technical and financial assistance to agencies and
numerous private landowners. PFW has focused its efforts on the use of
best management practices (BMPs) and instream conservation practices
that enhance and restore riparian and instream habitats used by the
relict darter. PFW projects have included a culvert removal in the
headwaters of Bayou de Chien, installation of livestock alternate
watering systems, placement of artificial spawning structures in Bayou
de Chien and Jackson Creek, installation of livestock exclusion fencing
along several kilometers of Bayou de Chien and Jackson Creek, and
restoration of more than 20.2 hectares (50 acres) of native grasses and
wildflowers within riparian areas. In addition to these efforts, PFW
biologists have provided over 10 years of technical assistance to the
U.S. Department of Agriculture, Wetland Reserve Easement Program, for
projects within the Bayou de Chien system (Radomski 2019, pers. comm.).
These efforts have resulted in permanent easements covering more than
1,700 acres (688 hectares) in the upper Bayou de Chien system (Morris
2020, pers. comm.). These easements will benefit the relict darter
through sediment and nutrient reduction, shading of stream corridors
(via riparian plantings), hydrological restoration (via plugging of
agricultural ditches and improved groundwater connections), and general
habitat creation, or wetland restoration.
Species Viability
For relict darter populations to be sufficiently resilient, the
needs of individuals (slow-flowing riffles and pools, appropriate
substrate, food availability, water quality, and aquatic vegetation or
large woody debris for cover) must be met at a larger scale. Stream
reaches with suitable habitat must be large enough to support an
appropriate number of individuals to avoid issues associated with small
population size, such as inbreeding depression and the Allee effect
(low population density reducing the probability of encountering mates
for spawning). Connectivity of stream reaches allows for immigration
and emigration between populations and increases the likelihood of
recolonization should a population be lost. At the species level, the
relict darter needs well-distributed healthy populations to withstand
environmental stochasticity (resiliency) and catastrophes (redundancy)
and adapt to biological and physical changes in its environment
(representation). To evaluate the current and future viability of the
relict darter, we assessed a range of conditions to allow us to
estimate the species' resiliency, representation, and redundancy.
We delineated analytical units (populations) by dividing the relict
darter's range into two units (Bayou de Chien/Jackson Creek and Little
Bayou de Chien) based on known occurrence records, the substantial
distance (18.3 kilometers (km) (11.4 miles (mi)) separating known
occurrence records in both watersheds, and unsuitable habitat
conditions in downstream reaches of both watersheds.
To assess resiliency, we evaluated four components that relate to
the species' habitat or its population demography: Physical habitat,
water quality, mean density, and occurrence complexity. We assessed
habitat using two components describing physical habitat quality and
water quality. The demographic condition was assessed using mean
density and occurrence complexity. We established parameters for each
condition category by evaluating the range of existing data and
separating those data into categories based on our understanding of the
species' demographics and habitat (table 1, below). Individual
component scores were combined and averaged to produce an overall
condition score for each population.
[[Page 12065]]
Table 1--Component Conditions Used To Assess Resiliency for Relict Darter Populations
----------------------------------------------------------------------------------------------------------------
Condition
Component ----------------------------------------------------------------------------------
High Moderate Low 0
----------------------------------------------------------------------------------------------------------------
Physical Habitat............. Silt deposition low; Silt deposition Silt deposition Habitats
no extensive or moderate; habitat extensive; habitats unsuitable
significant habitat alterations at severely altered (species
alterations (e.g., moderate levels-- and recognized as absent).
recent channelization or impacting the
channelization, other habitat species; <25% of
riparian clearing); disturbance more habitats suitable
>75% of available widespread; 25-75% for the species.
habitat suitable of available
for the species. habitat suitable
for the species.
Water Quality................ Minimal or no known WQ issues recognized WQ issues prevalent Habitat
water quality (WQ) and may impact within system, unsuitable
issues (i.e., no species (i.e., 1-2 likely impacting (species
303(d) streams 303(d) streams). populations (i.e., absent).
impacting the numerous 303(d)
species *). streams).
Mean Density (# darters/m\2\) >0.15............... 0.05-0.15........... <0.05............... Species absent.
Occurrence Complexity........ Occupies main Occupies main Occupies main Species absent.
channel and >=3 channel and maximum channel and maximum
tributaries. of 2 tributaries. of <=1 tributaries.
----------------------------------------------------------------------------------------------------------------
* Signifies streams identified by the State of Kentucky on the list of impaired streams required by section
303(d) of the Clean Water Act (33 U.S.C. 1313(d)).
Our evaluation of representation for the relict darter was based on
the species' genetic diversity and the extent and variability of
environmental diversity (habitat diversity) across the species'
geographical range. Additionally, we assessed relict darter redundancy
(ability of the species to withstand catastrophic events) by evaluating
the number and distribution of resilient populations throughout the
species' range. Highly resilient populations, coupled with a broad
distribution throughout the historical range, have a positive
relationship to species-level redundancy.
Current Conditions of the Relict Darter
The relict darter's historical range included the Bayou de Chien
stream system, a 554-kilometer\2\ (km\2\) (214-mile\2\ (mi\2\)
watershed located within the Mississippi Valley Loess Plains ecoregion
(Woods et al. 2002, entire) in Fulton, Graves, and Hickman Counties,
Kentucky (Webb and Sisk 1975, entire; Warren et al. 1994, entire;
Piller and Burr 1998, entire). Bayou de Chien is a low-gradient, sand,
gravel, and silt-bottomed stream that begins in southwestern Graves
County and flows westward approximately 47 km (29.2 mi) through Hickman
and Fulton Counties, before ultimately emptying into Obion Creek near
Hickman, Kentucky. Historically, Bayou de Chien was presumably an
undisturbed, free-flowing stream with alternating areas of riffles,
runs, and pools; however, only a few of these reaches remain because
much of the stream has been channelized and converted to a deep ditch
with uniform depth, velocity, and substrate (Piller and Burr 1998, pp.
64-65).
The relict darter's current range is also limited to the Bayou de
Chien system in Fulton, Graves, and Hickman Counties, Kentucky. Recent
surveys (2010-2019) indicate that the species is now known by two
geographically separated populations: Bayou de Chien/Jackson Creek and
Little Bayou de Chien. Within the Bayou de Chien/Jackson Creek
population, the species occupies patches of suitable habitat within a
30.4-km (18.9-mi) reach of Bayou de Chien, a 3.6-km (2.3-mi) reach of
Jackson Creek, a 3.2-km (2.0-mi) reach of South Fork Bayou de Chien, a
10.4-km (6.5-mi) reach of Cane Creek, and a 2.3-km (1.4-mi) reach of
Sand Creek. Within the Little Bayou de Chien population, the species
occupies patches of suitable habitat within a 2.6-km (1.6-mi) reach. In
total, the species currently occupies 52.5 stream km (32.7 stream mi).
The Bayou de Chien/Jackson Creek population exhibits moderate
resiliency, as evidenced by recent estimates of mean density and mean
population size, recent monitoring data showing evidence of
reproduction and recruitment, and our observations of moderate to high
physical habitat and water quality conditions within the watershed
(table 2; Service 2020a, p. 35). Based on recent surveys, Jackson Creek
and Bayou de Chien have moderate to high relict darter densities, with
population estimates of 1,888 and 22,798 fish, respectively, indicating
that the population size has more than doubled since a decade ago
(Service 2019, p. 7; Service 2020a, p. 36). Resiliency of the Little
Bayou de Chien population is lower due to its lower mean density and
less optimal habitat conditions (table 2, below). The species was only
recently discovered in the Little Bayou de Chien in July 2017. Recent
survey efforts have been limited to two 100-m reaches and several
qualitative searches; population size has not been estimated because of
the limited quantitative effort; however, 23 relict darters were
observed. Low levels of reproduction and recruitment are assumed for
the Little Bayou de Chien. Overall, the range-wide mean population
estimate is 24,686 relict darters (Service 2019, p. 7).
We consider redundancy and representation of the relict darter to
be low due to the species' small number of populations, its low
effective population size (mean of 221.5, with a 95 percent confidence
interval of 143.3-448.3), and its reduced genetic diversity (table 2;
Kattawar and Piller 2020, pp. 27-28). We recognize that redundancy and
representation may be inherently low for a narrow endemic like the
relict darter. The fact that the species exhibits little genetic
variation across its range and has a very low effective population size
suggests a past population bottleneck (e.g., range-wide habitat
disturbance) and subsequent genetic drift (loss of rare alleles in a
small population) (Kattawar and Piller 2020, entire).
[[Page 12066]]
Table 2--3Rs (Resiliency, Redundancy, Representation) Summary for Relict Darter
----------------------------------------------------------------------------------------------------------------
Population Resiliency Redundancy Representation
----------------------------------------------------------------------------------------------------------------
Bayou de Chien/Jackson Creek........ Moderate.................. Naturally Low--the Low--low genetic
Little Bayou de Chien............... Low....................... species is a narrowly diversity and low
distributed endemic; effective population
populations appear to size.
be separated, but
connectivity exists
within Bayou de
Chien, Jackson Creek,
and other large
tributaries.
----------------------------------------------------------------------------------------------------------------
As a narrow endemic species located in one watershed in
southwestern Kentucky, the relict darter has inherently low redundancy,
with only one known population at the time of listing, and currently
there are two populations. Representation is also limited based on its
restricted range, yet the species has survived a likely population
bottleneck, and despite low genetic diversity, genetic analyses
indicate a single panmictic population, indicating some recent genetic
exchange between populations. Low species redundancy and representation
are tempered by the moderate resiliency of the Bayou de Chien/Jackson
Creek population. This historical population continues to exhibit
resiliency today, with high relict darter abundance and evidence of
continued reproduction. This moderately resilient population has
survived threats, primarily because conservation efforts over the past
three decades have improved habitat within the system, thus enabling
the breeding, feeding, and sheltering needs of the relict darter to be
met and thus sustaining the population over time.
Future Conditions
In our SSA (Service 2020a, entire), we defined viability as the
ability of the species to sustain populations in the wild over time. To
help address uncertainty associated with the degree and extent of
potential future stressors and their impacts on the species' needs, the
concepts of resiliency, redundancy, and representation were assessed
using three plausible future scenarios (continuation of current trend,
improving trend, and worsening trend), using the same analytical units
and components described above, in Summary of Biological Status and
Threats. We devised these scenarios by identifying data sources related
to the primary threats anticipated to affect the relict darter in the
future. For the habitat loss and degradation threat, we looked at land
cover change and urbanization, as well as conservation activity, and we
also included predicted impacts of future climate change. The three
scenarios capture the range of uncertainty in the changing landscape
and how relict darter will respond to the changing conditions (table 3,
below). We used the best available data and models to project out 50
years into the future (i.e., 2070), a timeframe where we were
reasonably certain the land use change, urbanization, and climate
models used could project patterns in the species' range relevant to
the relict darter and its habitat given the species' lifespan. For each
scenario, we provided a summary of resiliency for each population at
10, 30, and 50 years in the future. For more information on the models
and their projections, please see the SSA report (Service 2020a,
entire).
Table 3--Future Condition of the Relict Darter by the Years 2030, 2050, and 2070 Under Three Future Scenarios
----------------------------------------------------------------------------------------------------------------
Predicted future condition
Scenario Population --------------------------------------------------------------------------
10 Years 30 Years 50 Years
----------------------------------------------------------------------------------------------------------------
1.................. Bayou de Chien/ Moderate............... Moderate............... Moderate.
Jackson.
Little Bayou de Low.................... Low.................... Low.
Chien.
2.................. Bayou de Chien/ Moderate............... Moderate-High.......... Moderate-High.
Jackson.
Little Bayou de Low.................... Low-Moderate........... Moderate.
Chien.
3.................. Bayou de Chien/ Moderate............... Low-Moderate........... Low.
Jackson.
Little Bayou de Low.................... Extirpated............. Extirpated.
Chien.
----------------------------------------------------------------------------------------------------------------
Under Scenario 1 (continuation of current trend), small increases
in urbanization were predicted by 2050 and 2070 within the watersheds
of both extant populations (Service 2020a, pp. 41-43), but associated
impacts on habitat and population elements were expected to be minimal.
We also predicted continued implementation of conservation actions
under KDFWR's conservation strategy and through the Service's PFW
program. Using a moderate level of climate change (RCP 4.5), within the
next 10 years, portions of the Bayou de Chien system were impacted by
either drought or floods, with slightly warmer temperatures. Over the
long term (30-50 years), drought affected all populations but at
intervals and severity levels similar to what has occurred over the
last 10 years.
Considering all of these factors, we expect no change in resiliency
for the two known populations; however, the low resiliency of the
Little Bayou de Chien population makes it much more vulnerable to
extirpation from the effects of stochastic disturbance. Under Scenario
1, both representation and redundancy of the relict darter are expected
to remain at low levels. The species is limited to one low resiliency
population and one moderate resiliency population, both of which occupy
streams within a single ecoregion, Mississippi Valley Loess Plains.
Within this ecoregion, relict darters occupy second- to fourth-order
reaches, but habitat diversity within these reaches tends to be low.
The species also has low genetic diversity, which cannot be increased
through augmentations, reintroductions, or other genetics-based
conservation actions because genetic diversity cannot be created with a
species that has a limited gene pool. The species' low genetic
diversity could potentially limit its ability to adapt to changing
environmental conditions over time. Furthermore, both populations will
remain vulnerable to catastrophic events, such as an extreme drought or
chemical spill, because the species' distribution is generally limited
to a single, continuous stream reach within each population.
[[Page 12067]]
Under Scenario 2 (improving trend), we projected a number of
improved conditions and positive outcomes that led to overall improved
resiliency and redundancy for the relict darter. We projected both land
use change and urbanization to be lower than current rates. The current
trend in climate improved, with lower annual increases in temperature
and less severe droughts or floods in the short term (RCP 4.5). Over
the long term (30-50 years), drought affected both populations but at
intervals and severity levels lower than what occurred over the last 10
years. Conservation efforts, including new efforts along occupied
reaches of Little Bayou de Chien, increased through State wildlife
action plans, and other Service partnerships with Federal, State, and
nongovernmental partners. These actions contributed to improved water
quality conditions, increases in forest and riparian cover, and
reductions in point source and nonpoint-source pollutants in all
historical tributary systems.
Based on these habitat and water quality improvements, we expect
both extant populations to increase in size, with continued
reproduction and recruitment. We also expect these populations to
expand into unoccupied historical tributaries, eventually resulting in
improved occurrence complexity in both watersheds. All of these actions
and conditions will result in increased resiliency for the Bayou de
Chien/Jackson and Little Bayou de Chien populations over the next 30-50
years. Under Scenario 2, representation of the relict darter is
expected to remain at a low level. The species' expansion within the
Bayou de Chien and Little Bayou de Chien watersheds will bolster the
species' resiliency and redundancy, but the species' low genetic
diversity cannot be increased. Under Scenario 2, redundancy of the
relict darter will increase due to the species' expansion and improved
resiliency within the Bayou de Chien and Little Bayou de Chien
watersheds and due to the species' recolonization of historical
tributaries such as South Fork Bayou de Chien. This increased
redundancy will decrease the likelihood that a catastrophic event, such
as an extreme drought or pollution event, would lead to the species'
extinction. Under Scenario 2, we expect the relict darter to exhibit
low-moderate redundancy.
Under Scenario 3 (worsening trend), we projected rates of land use
change and urbanization to be higher than current rates. The current
trend in climate worsened (high RCP of 8.5), and within the next 10
years, populations were impacted by either drought or floods, with
warmer stream temperatures and lower rainfall. Over the long term (30-
50 years), drought affected both populations at intervals and severity
levels higher than what has occurred over the last 10 years. Some
conservation actions continued in the Bayou de Chien system, but there
was a net decrease in these activities due to reduced agency funding.
All of these actions and conditions resulted in declining habitat and
water quality conditions that will negatively affect resiliency
estimates for both extant populations.
For this scenario, we project low resiliency for the Bayou de
Chien/Jackson population and potential extirpation of the Little Bayou
de Chien population by 2070. Under Scenario 3, representation of the
relict darter is expected to remain at a low level. Reduced resiliency
of the Bayou de Chien/Jackson Creek population and extirpation of the
Little Bayou de Chien population will increase the species'
vulnerability to stochastic disturbance and will likely reduce the
species' ability to adapt to changing environmental conditions. Under
Scenario 3, redundancy of the relict darter is expected to remain at a
low level; however, extirpation of the Little Bayou de Chien population
reduces the species' range, leaving it with a single population (Bayou
de Chien/Jackson Creek) that is more vulnerable to a catastrophic event
such as an extreme drought or chemical spill. The species' redundancy
is also weakened by lower resiliency of the Bayou de Chien/Jackson
Creek population, which will be faced with declining physical habitat
and water quality conditions.
Synergistic and Cumulative Effects
In addition to affecting the relict darter individually, it is
possible that several of the risk factors summarized above are acting
synergistically or cumulatively on the species. The combined impact of
multiple stressors is likely more harmful than a single stressor acting
alone. The dual stressors of climate change and direct human impact
have the potential to affect aquatic ecosystems by altering stream
flows and nutrient cycles, eliminating habitats, and changing community
structure (Moore et al. 1997, p. 942). Increased water temperatures and
a reduction in stream flow are the climate change effects that are most
likely to affect stream communities (Poff 1992, entire), and each
variable is strongly influenced by land use patterns.
We note that, by using the SSA framework to guide our analysis of
the scientific information documented in the SSA report, we have not
only analyzed individual effects on the species, but we have also
analyzed their potential cumulative effects. We incorporate the
cumulative effects into our SSA analysis when we characterize the
current and future condition of the species. To assess the current and
future condition of the species, we undertake an iterative analysis
that encompasses and incorporates the threats individually and then
accumulates and evaluates the effects of all the factors that may be
influencing the species, including threats and conservation efforts.
Because the SSA framework considers not just the presence of the
factors, but to what degree they collectively influence risk to the
entire species, our assessment integrates the cumulative effects of the
factors and replaces a standalone cumulative effects analysis.
Determination of Relict Darter Status
Section 4 of the Act (16 U.S.C. 1533) and its implementing
regulations (50 CFR part 424) set forth the procedures for determining
whether a species meets the definition of ``endangered species'' or
``threatened species.'' The Act defines an endangered species as a
species that is in danger of extinction throughout all or a significant
portion of its range, and a threatened species as a species that is
likely to become an endangered species within the foreseeable future
throughout all or a significant portion of its range. For a more
detailed discussion on the factors considered when determining whether
a species meets the definition of an endangered species or a threatened
species and our analysis on how we determine the foreseeable future in
making these decisions, please see Regulatory and Analytical Framework.
Status Throughout All of Its Range
After evaluating threats to the species and assessing the
cumulative effect of the threats under the section 4(a)(1) factors, we
conclude that the risk factors acting on the relict darter and its
habitat, either singly or in combination, are not of sufficient
imminence, intensity, or magnitude to indicate that the species is in
danger of extinction (an endangered species) throughout all of its
range. As described in Current Condition, the relict darter is
naturally a narrow endemic species. Its low species redundancy and
representation are tempered by the moderate resiliency of the Bayou de
Chien/Jackson Creek population, which has high relict darter abundance
and evidence of continued reproduction. The increased population size
and successful recruitment trends have improved based on surveys
[[Page 12068]]
completed during the past decade. Further, this moderately resilient
population has survived threats, primarily because conservation efforts
over the past three decades have improved and protected habitat within
the system, thus enabling the breeding, feeding, and sheltering needs
of the relict darter to be met and thus sustaining the population over
time. The Service continues to work with partners on these projects.
Additionally, a second population in the Little Bayou de Chein was
discovered in 2017. While this newly discovered population has low
resiliency, the addition of a second population adds to the species'
redundancy. The current resiliency of the Jackson Creek/Bayou de Chien
population, with a population size that has doubled in the past decade
to nearly 23,000 relict darters showing evidence of reproduction and
successful recruitment, along with the added redundancy of the newly
discovered Little Bayou de Chien population and the reduced habitat
threats, indicate that the species is not currently in danger of
extinction. Therefore, after assessing the best available information,
we conclude that the relict darter no longer meets the Act's definition
of an endangered species.
However, the species still faces threats. Our analysis of the
relict darter's current condition shows that while the species has
maintained resiliency since it was listed in 1993, it is now
represented by only two populations in one watershed, thus redundancy
is inherently low. The species also has low representation based on its
reduced genetic diversity and low effective population size (Factor E),
likely a result of a population bottleneck caused by extensive
channelization and habitat disturbance throughout the Bayou de Chien
system in the early 20th century. Habitat loss and degradation through
stream channel disturbance, removal of riparian vegetation, and
pollution continue to affect the species (Factor A), even though
conservation actions over the past three decades have led to improved
habitat conditions in portions of the Bayou de Chien mainstem and
Jackson Creek, contributing to moderate resiliency for the larger
population. The relict darter has benefited from protection as an
endangered species under the Act, and improvements in water quality and
habitat conditions stemming from both national and Kentucky statutes
and regulations; however, these regulations have not prevented the
degradation of some habitats used by the species (Factor D). The
primary threats that are currently acting on the species are expected
to continue into the future, climate change (Factor E) is expected to
exacerbate existing threats, and the species' low redundancy and low
representation put the species at risk of extinction throughout all of
its range in the foreseeable future. Fifty years was considered
``foreseeable'' in this case because it included projections from
available models and was biologically meaningful to the species. We can
reasonably determine within this 50-year timeframe that both the
threats as presented in the models of predicted urbanization, land use,
and climate change and the species' responses to those threats are
likely.
The range of plausible future scenarios of relict darter habitat
conditions and water quality factors suggest slightly variable
resilience into the future. Under the continuation of current trend
scenario (Scenario 1), resiliency remains low or moderate in the two
populations, with redundancy and representation remaining low. Under
the improving trend scenario (Scenario 2), resiliency improves for both
populations, with habitat conditions predicted to improve because of an
increased percentage of forested land with both reduced percentages of
agricultural land and urbanization, along with reduced climate change
rates. Representation remains low under this scenario, but redundancy
improves because of reintroduction of the species into historical
habitats or natural expansion within the system. There is greater
uncertainty regarding the species' future status, primarily due to
conservation action implementation with this scenario than in the other
two future scenarios. Under the worsening trend scenario (Scenario 3),
resiliency is low in the one remaining population, and one population
is likely extirpated resulting in reduced redundancy and low
representation. This expected reduction in both the number and
distribution of resilient populations is likely to increase the
species' vulnerability to both stochastic and catastrophic
disturbances. Compared to the other two scenarios, the conditions from
Scenario 3 were considered more likely to contribute to the future
condition of the species, primarily because of expected continued
sedimentation and water quality degradation combined with the expected
synergistic effects of climate change in the future.
In summary, while the relict darter's viability has improved over
time (see Conservation Efforts), three major factors that are
influencing the viability of the species are expected to affect it into
the future: Habitat loss and degradation, restricted range/isolation,
and climate change. Habitat loss and degradation resulting from
siltation, channelization/riparian vegetation removal, drainage of
riparian wetlands, and water quality degradation (pollution) pose the
largest risk to the current and future viability of the relict darter.
With the plausibility of future land use changes that could impact
instream habitat and water quality, the projected worsening climate
conditions, and given the inherently low redundancy that increases
vulnerability to catastrophic events, the relict darter is at risk of
extinction within the next 50 years. Thus, after assessing the best
available information, we conclude that the relict darter is not
currently in danger of extinction, but it is likely to become in danger
of extinction within the foreseeable future throughout all of its
range.
Status Throughout a Significant Portion of Its Range
Under the Act and our implementing regulations, a species may
warrant listing if it is in danger of extinction or likely to become so
in the foreseeable future throughout all or a significant portion of
its range. The court in Center for Biological Diversity v. Everson,
2020 WL 437289 (D.D.C. Jan. 28, 2020) (Center for Biological
Diversity), vacated the aspect of 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 37578; July 1, 2014) that provided that the Service
does not undertake an analysis of significant portions of a species'
range if the species warrants listing as threatened throughout all of
its range. Therefore, we proceed to evaluating whether the species is
endangered in a significant portion of its range--that is, whether
there is any portion of the species' range for which both (1) the
portion is significant; and (2) the species is in danger of extinction
in that portion. Depending on the case, it might be more efficient for
us to address either the ``significance'' question or the ``status''
question first. We can choose to address either question first.
Regardless of which question we address first, if we reach a negative
answer with respect to the first question that we address, we do not
need to evaluate the other question for that portion of the species'
range.
Following the court's holding in Center for Biological Diversity,
we now consider whether there are any
[[Page 12069]]
significant portions of the species' range where the species is in
danger of extinction now (i.e., endangered). In undertaking this
analysis for relict darter, we choose to address the significance
question first. First we assessed the two portions of the range (Bayou
de Chien/Jackson Creek and Little Bayou de Chien). In the absence of a
definition of significance, we determined significance on a case-by-
case basis for the relict darter using a reasonable interpretation of
significance and providing a rational basis for our determination. In
doing so, we considered what is currently observed about the
contributions made by each geographic portion in terms of biological
factors, focusing on the importance of each in supporting the continued
viability of the species. We evaluated whether these areas occupy
relatively large or particularly high-quality or unique habitat. As a
narrow ranging endemic, both relict darter populations occur within one
214-mi\2\ (554-km\2\) watershed in three counties in southwestern
Kentucky (Service 2020a, p. 17), and Little Bayou de Chien is a
tributary to Bayou de Chien. We determined that the Bayou de Chien/
Jackson Creek portion is significant, as it is large geographically
relative to the entire range of the species, it contains high quality/
high value habitat for the species, and it contains habitat essential
to the relict darter's life history, and therefore is important for the
overall conservation of the species. We determined that the Little
Bayou de Chien portion is not significant, as it constitutes a very
small portion of the range and does not represent unique or high
quality habitat for the relict darter.
Since we determined that Bayou de Chein/Jackson Creek is a
significant portion, we next evaluate whether the relict darter is in
danger of extinction (i.e., endangered) in that portion. Since there
are only two portions, and since Little Bayou de Chien was determined
to not be significant, then the Bayou de Chien/Jackson Creek portion
drove our initial status determination of threatened for the relict
darter, and therefore that portion does not have a different status
than the entire range. Furthermore, the threats the relict darter faces
are not concentrated in any portion of the range, rather the threats
affect the entire narrow range of the species. Habitat loss and
degradation resulting from siltation, channelization/riparian
vegetation removal, drainage of riparian wetlands, and water quality
degradation (pollution) pose the largest risk to viability of the
relict darter throughout its entire range. Based on this, there are no
portions of the species' range that provide a basis for determining
that the species is in danger of extinction in a significant portion of
its range, and we determine that the species is likely to become in
danger of extinction within the foreseeable future throughout all of
its range. This is consistent with the courts' holdings in Desert
Survivors v. Department of the Interior, No. 16-cv-01165-JCS, 2018 WL
4053447 (N.D. Cal. Aug. 24, 2018), and Center for Biological Diversity
v. Jewell, 248 F. Supp. 3d, 946, 959 (D. Ariz. 2017).
Determination of Status
Our review of the best scientific and commercial data available
indicates that the relict darter meets the definition of a threatened
species. Therefore, we propose to reclassify the relict darter as a
threatened species in accordance with sections 3(20) and 4(a)(1) of the
Act.
Proposed Rule Issued Under Section 4(d) of the Act
Background
Section 4(d) of the Act contains two sentences. The first sentence
states that the Secretary shall issue such regulations as she deems
necessary and advisable to provide for the conservation of species
listed as threatened. The U.S. Supreme Court has noted that statutory
language like ``necessary and advisable'' demonstrates a large degree
of deference to the agency (see Webster v. Doe, 486 U.S. 592 (1988)).
Conservation is defined in the Act to mean the use of all methods and
procedures which are necessary to bring any endangered species or
threatened species to the point at which the measures provided pursuant
to the Act are no longer necessary. Additionally, the second sentence
of section 4(d) of the Act states that the Secretary may by regulation
prohibit with respect to any threatened species any act prohibited
under section 9(a)(1), in the case of fish or wildlife, or section
9(a)(2), in the case of plants. Thus, the combination of the two
sentences of section 4(d) provides the Secretary with wide latitude of
discretion to select and promulgate appropriate regulations tailored to
the specific conservation needs of the threatened species. The second
sentence grants particularly broad discretion to us when adopting the
prohibitions under section 9 of the Act.
The courts have recognized the extent of the Secretary's discretion
under this standard to develop rules that are appropriate for the
conservation of a species. For example, courts have upheld rules
developed under section 4(d) as a valid exercise of agency authority
where they prohibited take of threatened wildlife, or include a limited
taking prohibition (see Alsea Valley Alliance v. Lautenbacher, 2007
U.S. Dist. Lexis 60203 (D. Or. 2007); Washington Environmental Council
v. National Marine Fisheries Service, 2002 U.S. Dist. Lexis 5432 (W.D.
Wash. 2002)). Courts have also upheld 4(d) rules that do not address
all of the threats a species faces (see State of Louisiana v. Verity,
853 F.2d 322 (5th Cir. 1988)). As noted in the legislative history when
the Act was initially enacted, once an animal is on the threatened
list, the Secretary has an almost infinite number of options available
to her with regard to the permitted activities for those species. She
may, for example, permit taking, but not importation of such species,
or she may choose to forbid both taking and importation but allow the
transportation of such species (H.R. Rep. No. 412, 93rd Cong., 1st
Sess. 1973).
Exercising this authority under section 4(d), we have developed a
proposed rule that is designed to address the relict darter's specific
threats and conservation needs. Although the statute does not require
us to make a ``necessary and advisable'' finding with respect to the
adoption of specific prohibitions under section 9, we find that this
rule as a whole satisfies the requirement in section 4(d) of the Act to
issue regulations deemed necessary and advisable to provide for the
conservation of the relict darter. As discussed under Summary of
Biological Status and Threats, we have concluded that the relict darter
is no longer currently at risk of extinction, but is still likely to
become in danger of extinction within the foreseeable future, primarily
due to habitat degradation and loss stemming from siltation,
channelization and riparian vegetation removal, riparian wetland
drainage, and water quality degradation. These threats contribute to
the negative effects associated with the species' restricted range and
effects of climate change. The provisions of this proposed 4(d) rule
would promote conservation of the relict darter by providing continued
protection from take and encouraging management of the landscape in
ways that meet both watershed and riparian management considerations
and the conservation needs of the relict darter. The provisions of this
rule are one of many tools that we would use to promote the
conservation of the relict darter.
This proposed 4(d) rule would apply only if and when we make final
the reclassification of the relict darter as a
[[Page 12070]]
threatened species. Finally, the only portion of this proposed rule
that would have regulatory effect if the rule is made final is the text
set forth in the rule portion of this document (i.e., the text we
propose to revise Sec. 17.44 in title 50 of the Code of Federal
Regulations (CFR)). The explanatory text in the Provisions of the
Proposed 4(d) Rule section below merely clarifies the intent of these
proposed amendments to the CFR.
Provisions of the Proposed 4(d) Rule
This proposed 4(d) rule would provide for the conservation of the
relict darter by adopting the same prohibitions that apply to an
endangered species under section 9 of the Act and 50 CFR 17.21. Except
as otherwise authorized or permitted, this proposed 4(d) rule would
continue to prohibit importing or exporting; take; possession and other
acts with unlawfully taken specimens; delivering, receiving,
transporting, or shipping in interstate or foreign commerce in the
course of commercial activity; and selling or offering for sale in
interstate or foreign commerce. The prohibitions would apply throughout
the species' range.
Identical to the regulations that apply under endangered status,
the prohibitions in this proposed 4(d) rule would prohibit all forms of
take within the United States. Under the Act, ``take'' means to harass,
harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or
to attempt to engage in any such conduct. Some of these provisions have
been further defined in regulations at 50 CFR 17.3. Take can result
knowingly or otherwise, by direct and indirect impacts, intentionally
or incidentally. Regulating intentional and incidental take would help
preserve the species' remaining populations, enable beneficial
management actions to occur, and decrease synergistic, negative effects
from other stressors.
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. The intent of this
policy is to increase public awareness of the effect of a proposed
listing on proposed and ongoing activities within the range of the
species proposed for listing. The discussion below regarding protective
regulations under section 4(d) of the Act complies with our policy.
In this 4(d) rule, we propose to prohibit intentional take,
including capturing and handling, because these activities require
training and experience. Such activities include, but are not limited
to, monitoring and research involving capturing and handling relict
darters. While these activities are important to relict darter
recovery, there are proper techniques for capturing and handling fish
that require training and experience. Improper capture or handling can
cause injury or even result in death of relict darters. Therefore, to
ensure that these activities continue to be conducted correctly by
properly trained personnel, the proposed 4(d) rule would prohibit
intentional take; however, these activities could be covered under a
section 10(a)(1)(A) permit.
Threats to the species are noted above and described in detail
under Summary of Biological Status and Threats. The most significant
threat expected to affect the species in the foreseeable future is
habitat loss and degradation from siltation, channelization and
riparian vegetation removal, drainage of riparian wetlands, and water
quality degradation. Some activities have the potential to affect the
relict darter, including agriculture and land development. These
activities may result in incidental take through increases in
siltation, diminishing water quality, altering stream flow, and
reducing fish passage. Therefore, in this 4(d) rule, we propose
prohibiting take to help preserve the relict darter's remaining
populations, slow the rate of population decline, preserve and
potentially provide for expansion of the population, and decrease
synergistic, negative effects from other stressors.
We may issue permits to carry out otherwise prohibited activities,
including those described above, 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 the following purposes: Scientific purposes, to enhance propagation
or survival, for economic hardship, for zoological exhibition, for
educational purposes, for incidental taking, or for special purposes
consistent with the purposes of the Act.
Exceptions
The proposed 4(d) rule would also provide for the conservation of
the species by incorporating several exceptions to allow for routine
enforcement activities, allow for assisting sick or injured fish, and
encourage the active habitat management this species uniquely requires.
The statute also contains certain statutory exemptions from the
prohibitions, which are found in sections 9 and 10 of the Act, and
other regulatory exceptions from the prohibitions, which are found in
our regulations at 50 CFR part 17, subparts C and D. Below, we describe
these exceptions to the prohibitions that we are proposing for the
relict darter.
To start, the proposed rule outlines several regulatory exceptions
to the prohibitions for the relict darter. These exceptions already
apply while the species is listed as endangered; they would continue to
apply if the Service finalizes a rule to reclassify the species as
threatened because they advance the recovery of the species. First, the
proposed rule excepts take associated with activities that are
authorized by permits under Sec. 17.32. This means that if a manager
has received or receives a permit for a particular activity (e.g., a
section 10(a)(1)(A) permit for monitoring relict darters), any take
that occurs as a result of activities covered by this permit remains
excepted from the prohibitions on take under the issued permit; in
other words, the manager would not be liable for any take for which the
manager already has a permit.
Second, the proposed rule incorporates certain regulatory
exceptions that allow take by representatives of the Service or of a
State conservation agency to aid a sick specimen or to dispose of,
salvage, or remove a dead specimen that is reported to the Office of
Law Enforcement; and take by Federal and State law enforcement officers
performing their official duties to possess, deliver, carry, transport,
or ship any relict darters taken in violation of the Act, as necessary.
All of the proposed standard exceptions for endangered species
currently apply while the species is listed as endangered.
Next, the proposed 4(d) rule incorporates a regulatory exception
that does not currently apply while the relict darter is listed as
endangered (the exception from Sec. 17.31(b)); the Service can apply
this standard exception only to take prohibitions for threatened
species. The proposed rule allows employees of State conservation
agencies operating under a cooperative agreement with the Service in
accordance with section 6(c) of the Act to take relict darters in order
to carry out conservation programs for the species. We recognize the
special and unique relationship with our State natural resource agency
partners in contributing to conservation of listed species. State
agencies often possess scientific data and valuable expertise on the
status and distribution of endangered, threatened, and candidate
species of wildlife and
[[Page 12071]]
plants. State agencies, because of their authorities and their close
working relationships with local governments and landowners, are in a
unique position to assist us in implementing all aspects of the Act. In
this regard, section 6 of the Act provides that we shall cooperate to
the maximum extent practicable with the States in carrying out programs
authorized by the Act. Therefore, any qualified employee or agent of a
State conservation agency that is a party to a cooperative agreement
with us in accordance with section 6(c) of the Act, who is designated
by his or her agency for such purposes, will be able to conduct
activities designed to conserve the relict darter that may result in
otherwise prohibited take without additional authorization.
Finally, unlike the regulations that apply to the species under
endangered status, the proposed 4(d) rule provides species-specific
exceptions to the standard take prohibitions in the proposed rule;
these species-specific exceptions would facilitate continued and
increased implementation of beneficial management practices that
provide for conservation of the species. Within each occupied stream,
restoration actions will promote expansion of the relict darter's range
and reduce the fragmentation and isolation of populations. These
actions can reduce stressors that impact the relict darter, including
runoff of siltation and pollution, and may (through riparian
reforestation) mediate local water temperatures expected to increase
with climate change. Incidental take associated with habitat
restoration actions excepted by the proposed 4(d) rule may result in
some minimal level of harm or temporary disturbance to the relict
darter. For example, a culvert replacement project would likely elevate
suspended sediments for several hours, and the darters would need to
move out of the sediment plume to resume normal feeding behavior.
Because 4(d) rule exceptions would not apply during the relict darter's
4-month spawning period, a critical phase of the species' life history,
the potential for incidental take is further minimized.
Overall, these activities benefit the species by expanding suitable
habitat and reducing within-population fragmentation, contributing to
conservation and recovery. Consistent with all of the proposed
exceptions and based on the best available information, our proposed
4(d) rule excepts incidental take associated with the following
activities, if carried out in accordance with existing regulations and
permit requirements, and conducted outside the March through June
spawning season:
Channel restoration or improvement projects that create
natural, physically stable, ecologically functioning streams (or stream
and wetland systems) that are reconnected with their groundwater
aquifers and, if the projects involve known relict darter spawning
habitat, take place between June 30 and March 1. These projects can be
accomplished using a variety of methods, but the desired outcome is a
natural channel with low shear stress (force of water moving against
the channel); bank heights that enable 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.
Streambank stabilization projects that use bioengineering
methods 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. Stream banks may be stabilized using native live stakes (live,
vegetative cuttings inserted or tamped into the ground in a manner that
allows the stake to take root and grow), native 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).
Stream banks must not be stabilized through the use of quarried rock
(rip-rap) or the use of rock baskets or gabion structures.
Bridge and culvert replacement/removal projects or low
head dam removal projects that remove migration barriers or generally
allow for improved upstream and downstream movements of relict darters
while maintaining normal stream flows, preventing bed and bank erosion,
and improving habitat conditions for the species.
Transportation projects that incorporate State-approved
BMPs that eliminate sedimentation, do not block stream flow, do not
channelize streams, and that are for the purposes of providing for fish
passage under a wide range of hydrologic conditions at stream crossings
(University of Kentucky Transportation Center 2009, entire).
Projects carried out in the species' range by the U.S.
Department of Agriculture's Natural Resources Conservation Service that
do not alter habitats known to be used by the relict darter beyond the
fish's tolerances.
Nothing in this proposed 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 relict darter. However, interagency cooperation may
be further streamlined through planned programmatic consultations for
the species between Federal agencies and the Service, where
appropriate. We ask the public, particularly State agencies and other
interested stakeholders that may be affected by the proposed 4(d) rule,
to provide comments and suggestions regarding additional guidance and
methods that the Service could provide or use, respectively, to
streamline the implementation of this proposed 4(d) rule (see
Information Requested).
Required Determinations
Clarity of the Rule
We are required by Executive Orders 12866 and 12988 and by the
Presidential Memorandum of June 1, 1998, to write all rules in plain
language. This means that each rule we publish must:
(1) Be logically organized;
(2) Use the active voice to address readers directly;
(3) Use clear language rather than jargon;
(4) Be divided into short sections and sentences; and
(5) Use lists and tables wherever possible.
If you feel that we have not met these requirements, send us
comments by one of the methods listed in ADDRESSES. To better help us
revise the rule, your comments should be as specific as possible. For
example, you should tell us the numbers of the sections or paragraphs
that are unclearly written, which sections or sentences are too long,
the sections where you feel lists or tables would be useful, etc.
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 (NEPA; 42 U.S.C. 4321 et seq.), need not be
prepared in connection with determining a species' listing status 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
[[Page 12072]]
49244). We also determine that 4(d) rules that accompany regulations
adopted pursuant to section 4(a) of the Act are not subject to the
National Environmental Policy Act.
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. There are no known Tribes within the
range of the relict darter.
References Cited
A complete list of references cited in this proposed rulemaking is
available on the internet at https://www.regulations.gov.
Authors
The primary authors of this proposed rule are the staff members of
the Fish and Wildlife Service's Species Assessment Team and the
Kentucky Ecological Services Field Office.
List of Subjects in 50 CFR Part 17
Endangered and threatened species, Exports, Imports, Plants,
Reporting and recordkeeping requirements, Transportation, Wildlife.
Proposed Regulation Promulgation
Accordingly, we propose to 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, in paragraph (h), by revising the entry for
``Darter, relict'' under Fishes on the List of Endangered and
Threatened Wildlife to read as follows:
Sec. 17.11 Endangered and threatened wildlife.
* * * * *
(h) * * *
----------------------------------------------------------------------------------------------------------------
Listing citations and
Common name Scientific name Where listed Status applicable rules
----------------------------------------------------------------------------------------------------------------
* * * * * * *
Fishes
* * * * * * *
Darter, relict.................. Etheostoma Wherever found.... T 58 FR 68480, 12/27/
chienense. 1993; [Federal
Register citation of
the final rule]; 50
CFR 17.44(hh) \4d\.
* * * * * * *
----------------------------------------------------------------------------------------------------------------
0
3. Further amend Sec. 17.44, as proposed to be amended on November 19,
2020, at at 85 FR 74050, on November 12, 2020, at 85 FR 71859, and on
July 7, 2021, at 86 FR 35708, by adding a paragraph (hh) to read as
follows:
Sec. 17.44 Special rules--fishes.
* * * * *
(hh) Relict darter (Etheostoma chienense).
(1) Prohibitions. The following prohibitions that apply to
endangered wildlife also apply to relict darter. Except as provided
under paragraph (hh)(2) of this section and Sec. Sec. 17.4 and 17.5,
it is unlawful for any person subject to the jurisdiction of the United
States to commit, to attempt to commit, to solicit another to commit,
or cause to be committed, any of the following acts in regard to this
species:
(i) Import or export, as set forth at Sec. 17.21(b) for endangered
wildlife.
(ii) Take, as set forth at Sec. 17.21(c)(1) for endangered
wildlife.
(iii) Possession and other acts with unlawfully taken specimens, as
set forth at Sec. 17.21(d)(1) for endangered wildlife.
(iv) Interstate or foreign commerce in the course of commercial
activity, as set forth at Sec. 17.21(e) for endangered wildlife.
(v) Sale or offer for sale, as set forth at Sec. 17.21(f) for
endangered wildlife.
(2) Exceptions from prohibitions. In regard to this species, you
may:
(i) Conduct activities as authorized by a permit under Sec. 17.32.
(ii) Take, as set forth at Sec. 17.21(c)(2) through (4) for
endangered wildlife.
(iii) Take as set forth at Sec. 17.31(b).
(iv) Take incidental to an otherwise lawful activity caused by:
(A) Channel restoration or improvement projects that create
natural, physically stable, ecologically functioning streams (or stream
and wetland systems) that are reconnected with their groundwater
aquifers and, if the projects involve known relict darter spawning
habitat, that take place between June 30 and March 1. These projects
can be accomplished using a variety of methods, but the desired outcome
is a natural channel with low shear stress (force of water moving
against the channel); bank heights that enable 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.
(B) Streambank stabilization projects that use bioengineering
methods 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
and, if the projects involve known relict darter spawning habitat, that
take place between June 30 and March 1. Stream banks may be stabilized
using native live stakes (live, vegetative cuttings inserted or tamped
into the ground in a manner that allows the stake to take root and
grow), native live fascines (live branch cuttings, usually willows,
bound together into long, cigar-shaped bundles), or brush layering
(cuttings or branches of easily
[[Page 12073]]
rooted tree species layered between successive lifts of soil fill).
Stream banks must not be stabilized through the use of quarried rock
(rip-rap) or the use of rock baskets or gabion structures.
(C) Bridge and culvert replacement/removal projects or low head dam
removal projects that remove migration barriers or generally allow for
improved upstream and downstream movements of relict darters while
maintaining normal stream flows, preventing bed and bank erosion, and
improving habitat conditions for the species, if completed between June
30 and March 1.
(D) Transportation projects that follow best management practices
that eliminate sedimentation, do not block stream flow, do not
channelize streams, and provide for fish passage under a wide range of
hydrologic conditions at stream crossings and that are done between
June 30 and March 1.
(E) Projects carried out in the species' range by the Natural
Resources Conservation Service, U.S. Department of Agriculture, that:
(1) Do not alter habitats known to be used by the relict darter
beyond the fish's tolerances; and
(2) Are performed between June 30 and March 1 to avoid the time
period when the relict darter will be found within its spawning
habitat, if such habitat is affected by the activity.
(v) Possess and engage in other acts with unlawfully taken
wildlife, as set forth at Sec. 17.21(d)(2) for endangered wildlife.
Martha Williams,
Principal Deputy Director, Exercising the Delegated Authority of the
Director, U.S. Fish and Wildlife Service.
[FR Doc. 2022-03315 Filed 3-2-22; 8:45 am]
BILLING CODE 4333-15-P