2009 Federal Register, 74 FR 63366; Centralized Library: U.S. Fish and Wildlife Service

[Federal Register: December 3, 2009 (Volume 74, Number 231)]
[Proposed Rules]
[Page 63366-63384]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr03de09-15]

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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

FWS-R4-ES-2009-0079 92210-1117-0000-B4
[RIN 1018-AW52]

Endangered and Threatened Wildlife and Plants; Designation of
Critical Habitat for the Vermilion Darter

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule.

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SUMMARY: We, the U.S. Fish and Wildlife Service, propose to designate
critical habitat for the vermilion darter (Etheostoma chermocki) under
the Endangered Species Act of 1973, as amended. We propose to designate
as critical habitat approximately 21.0 kilometers (13.0 stream miles)
in 5 units. The proposed critical habitat is

[[Page 63367]]

located within the Turkey Creek watershed in Jefferson County, Alabama.

DATES: We will accept comments from all interested parties until
February 1, 2010. We must receive requests for public hearings, in
writing, at the address shown in the FOR FURTHER INFORMATION CONTACT
section by January 19, 2010.

ADDRESSES: You may submit comments by one of the following methods:
Federal eRulemaking Portal: http://www.regulations.gov.
Follow the instructions for submitting comments.
U.S. mail or hand delivery: Public Comments Processing,
Attn: [FWS-R4-ES-2009-0079]; Division of Policy and Directives
Management; U.S. Fish and Wildlife Service; 4401 N. Fairfax Drive,
Suite 222; Arlington, VA 22203.
We will not accept e-mail or faxes. We will post all comments on
http://www.regulations.gov This generally means that we will post any
personal information you provide us (see the Public Comments section
below for more information).

FOR FURTHER INFORMATION CONTACT: Cary Norquist, Deputy Field
Supervisor, U.S. Fish and Wildlife Service, Mississippi Fish and
Wildlife Office, 6578 Dogwood View Parkway, Jackson, Mississippi,
39213; telephone: 601-321-1127; facsimile: 601-965-4340. If you use a
telecommunications device for the deaf (TDD), call the Federal
Information Relay Service (FIRS) at 800-877-8339.

SUPPLEMENTARY INFORMATION:

Public Comments

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 governmental agencies, the scientific
community, industry, or any other interested party concerning this
proposed rule. We particularly seek comments concerning:
(1) The reasons why we should or should not designate habitat as
``critical habitat'' under section 4 of the Endangered Species Act of
1973, as amended (Act) (16 U.S.C. 1531 et seq.), including whether
there are threats to the species from human activity, the degree of
which can be expected to increase due to the designation, and whether
the benefit of designation would be outweighed by threats to the
species caused by the designation, such that the designation of
critical habitat is not prudent.
(2) Comments or information that may assist us in identifying or
clarifying the primary constituent elements.
(3) Specific information on:
The amount and distribution of vermilion darter habitat,
What areas occupied at the time of listing and that
contain features essential to the conservation of the species which may
require special management considerations or protections we should
include in the designation and why, and
What areas not occupied at the time of listing are
essential for the conservation of the species and why.
(4) Land-use designations and current or planned activities in the
subject areas and their possible impacts on proposed critical habitat.
(5) Any probable economic, national security, or other relevant
impacts of designating any area that may be included in the final
designation. We are particularly interested in any impacts on small
entities (e.g., small businesses or small governments) or families, and
the benefits of including or excluding areas that exhibit these
impacts.
(6) Whether any specific areas we are proposing as critical habitat
should be excluded under section 4(b)(2) of the Act, and whether the
benefits of potentially excluding any particular area outweigh the
benefits of including that area under section 4(b)(2) of the Act.
(7) Information on any quantifiable economic costs or benefits of
the proposed designation of critical habitat.
(8) Whether we could improve or modify our approach to designating
critical habitat in any way to provide for greater public participation
and understanding, or to better accommodate public concern and
comments.
You may submit your comments and materials concerning this proposed
rule by one of the methods listed in the ADDRESSES section. We will not
accept comments sent by e-mail or fax or to an address not listed in
the ADDRESSES section.
We will post your entire comment--including your personal
identifying information--on http://www.regulations.gov. If your written
comments provide 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.
Comments and materials we receive, as well as supporting
documentation we used in preparing this proposed rule, will be
available for public inspection on http://www.regulations.gov, or by
appointment, during normal business hours, at the U.S. Fish and
Wildlife Service, Mississippi Fish and Wildlife Office (see FOR FURTHER
INFORMATION CONTACT).

Background

It is our intent to discuss only those topics directly relevant to
the designation of critical habitat in this proposed rule. For more
information on the vermilion darter, refer to the final listing rule
published in the Federal Register on November 28, 2001 (66 FR 59367)
and the Vermilion Darter Recovery Plan, available on the Internet at
http://ecos.fws.gov/docs/recovery_plan/070802.pdf. See also the
discussion of habitat in the Physical and Biological Features section
below.
The vermilion darter is a narrowly endemic fish species, occurring
in sparse, fragmented, and isolated populations. The species is only
known in parts of the upper mainstem reach of Turkey Creek and four
tributaries in Pinson, Jefferson County, Alabama (Boschung and Mayden
2004, p. 520). Suitable streams have pools of moderate current
alternating with riffles of moderately swift current, and low water
turbidity.
The vermilion darter was listed as endangered (66 FR 59367,
November 28, 2001) because of ongoing threats to the species and its
habitat from urbanization within the Turkey Creek watershed. The
primary threats to the species and its habitat are degradation of water
quality and substrate components due to sedimentation and other
pollutants, and altered flow regimes from activities such as
construction and maintenance activities; impoundments (five within the
Turkey Creek and Dry Creek system); instream gravel extractions; off-
road vehicle usage; road, culvert, bridge, gas, and water easement
construction; and stormwater management (Drennen personal observation
1999-2009; Blanco and Mayden 1999, pp.18-20). These activities lead to
water quality degradation and the production of pollutants (sediments,
nutrients from sewage, pesticides, fertilizers, and industrial and
stormwater effluents), stream channel instability, fragmentation, and
reduced connectivity of the habitat by altering the stream banks and
bottoms; degrading the riffles, runs, and pools; and producing changes
in water quantity and flow necessary for spawning, feeding, resting,
and other life history functions of the species.

[[Page 63368]]

Previous Federal Actions
The vermilion darter (Etheostoma chermocki) was listed as
endangered under the Act on November 28, 2001 (66 FR 59367). The
Service found that designation of critical habitat was prudent at the
time of listing. However, due to budgetary constraints, we did not
designate critical habitat at that time. We approved final recovery
plan for the vermilion darter on June 20, 2007 (U.S. Fish and Wildlife
Service 2007) and made it available to the public through a notice
published in the Federal Register on August 2, 2007 (72 FR 42426).
On November 27, 2007, the Center for Biological Diversity filed a
lawsuit against the Secretary of Interior for our failure to timely
designate critical habitat for the vermilion darter (Center for
Biological Diversity v. Kempthorne (07-CV-2928)). In a court-approved
settlement agreement, the Service agreed to submit to the Federal
Register a new prudency determination, and if the designation was found
to be prudent, a proposed designation of critical habitat, by November
30, 2009, and a final designation by November 30, 2010.

Critical Habitat

Background
Critical habitat is defined in section 3 of the Act as:
(1) The specific areas within the geographical area occupied by the
species, at the time it is listed in accordance with the Act, on which
are found those physical or biological features
(a) Essential to the conservation of the species, and
(b) Which may require special management considerations or
protection; and
(2) Specific areas outside the geographical area occupied by the
species at the time it is listed, upon a determination that such areas
are essential for the conservation of the species.
Conservation, as defined under section 3 of the Act, means to use
and the use of all methods and procedures that are necessary to bring
an endangered or threatened species to the point at which the measures
provided under the Act are no longer necessary. Such methods and
procedures include, but are not limited to, all activities associated
with scientific resources management such as research, census, law
enforcement, habitat acquisition and maintenance, propagation, live
trapping, and transplantation, and, in the extraordinary case where
population pressures within a given ecosystem cannot be otherwise
relieved, may include regulated taking.
Critical habitat receives protection under section 7(a)(2) of the
Act through the prohibition against Federal agencies carrying out,
funding, or authorizing the destruction or adverse modification of
critical habitat. Section 7(a)(2) requires consultation on Federal
actions that may affect critical habitat. The designation of critical
habitat does not affect land ownership or establish a refuge,
wilderness, reserve, preserve, or other conservation area. Such
designation does not allow the government or public to access private
lands. Such designation does not require implementation of restoration,
recovery, or enhancement measures by non-Federal landowners. Where a
landowner seeks or requests Federal agency funding or authorization for
an action that may affect a listed species or critical habitat, the
consultation requirements of section 7(a)(2) would apply, but even in
the event of a destruction or adverse modification finding, the Federal
action agency's and the landowner's obligation landowneris not to
restore or recover the species, but to implement reasonable and prudent
alternatives to avoid destruction or adverse modification of critical
habitat.
To be considered for inclusion in a critical habitat designation,
habitat within the geographical area occupied by the species at the
time it was listed must contain the physical or biological features
that are essential to the conservation of the species. Areas supporting
the essential physical or biological features are identified, to the
extent known using the best scientific data available, as the habitat
areas that provide essential life cycle needs of the species; (i.e.,
areas on which are found the primary constituent elements laid out in
the appropriate quantity and spatial arrangement essential to the
conservation of the species). Habitat within the geographical area
occupied by the species at the time of listing that contains features
essential to the conservation of the species meets the definition of
critical habitat only if these features may require special management
consideration or protection. Under the Act and regulations at 50 CFR
424.12, we can designate critical habitat in areas outside the
geographical area occupied by the species at the time it is listed only
when we determine that the best available scientific data demonstrate
that the designation of those areas is essential for the conservation
of the species.
Section 4 of the Act requires that we designate critical habitat on
the basis of the best scientific and commercial data available.
Further, our Policy on Information Standards Under the Endangered
Species Act (published in the Federal Register on July 1, 1994 (59 FR
34271)), the Information Quality Act (section 515 of the Treasury and
General Government Appropriations Act for Fiscal Year 2001 (Pub. L.
106-554; H.R. 5658)), and our associated information quality
guidelines, provide criteria, establish procedures, and provide
guidance to ensure that our decisions are based on the best scientific
data available. They require our biologists, to the extent consistent
with the Act and with the use of the best scientific data available, to
use primary and original sources of information as the basis for
recommendations to designate critical habitat.
When we are determining which areas we should designate as critical
habitat, our primary source of information is generally the information
developed during the listing process for the species. Additional
information sources may include the recovery plan for the species,
articles in peer-reviewed journals, conservation plans developed by
States and counties, scientific status surveys and studies, biological
assessments, or other unpublished materials and expert opinion or
personal knowledge.
Habitat is dynamic, and species may move from one area to another
over time. In particular, we recognize that climate change may cause
changes in the arrangement of occupied habitat stream reaches. Climate
change may lead to increased frequency and duration of severe storms
and droughts (Golladay et al. 2004, p. 504; McLaughlin et al. 2002, p.
6074; Cook et al. 2004, p. 1015). From 2006 to 2007, drought conditions
greatly reduced the habitat of the vermilion darter in Jefferson County
(Drennen, pers. obs. 2007). Flucker et al. (2007, p. 10) and Drennen
(pers. obs. 2007) reported that ongoing drought conditions, coupled
with rapid urbanization within watersheds containing imperiled darters,
render the populations vulnerable to anthropomorphic disturbances such
as water extraction, vehicles within Turkey Creek and its tributaries,
and increased clearing or draining of vulnerable wetlands and spring
seeps; especially during the breeding season when the darters
concentrate in specific habitat areas of Turkey Creek and its
tributaries.
The information currently available on the effects of global
climate change and increasing temperatures does not

[[Page 63369]]

make sufficiently precise estimates of the location and magnitude of
the effects. Nor are we currently aware of any climate change
information specific to the habitat of the vermilion darter that would
indicate what areas may become important to the species in the future.
Therefore, we are unable to determine what additional areas, if any,
may be appropriate to include in the proposed critical habitat for this
species; however, we specifically request information from the public
on the currently predicted effects of climate change on the vermilion
darter and its habitat. Additionally, we recognize that critical
habitat designated at a particular point in time may not include all of
the habitat areas that we may later determine are necessary for the
recovery of the species. For these reasons, a critical habitat
designation does not signal that habitat outside the designated
critical habitat area is unimportant or may not be required for
recovery of the species.
Areas that are important to the conservation of the species, but
are outside the critical habitat designation, will continue to be
subject to conservation actions we implement under section 7(a)(1) of
the Act. They are also subject to the regulatory protections afforded
by the section 7(a)(2) jeopardy standard, as determined based on the
best available scientific information at the time of the agency action.
Federally funded or permitted projects affecting listed species outside
their designated critical habitat areas may still result in jeopardy
findings in some cases. Similarly, critical habitat designations made
on the basis of the best available information at the time of
designation will not control the direction and substance of future
recovery plans, habitat conservation plans (HCPs), section 7
consultations, or other species conservation planning efforts if new
information available at the time of these planning efforts calls for a
different outcome.
Prudency Determination
Section 4(a)(3) of the Act, as amended, and implementing
regulations (50 CFR 424.12) require that, to the maximum extent prudent
and determinable, the Secretary designate critical habitat at the time
the species is determined to be endangered or threatened. Our
regulations at 50 CFR 424.12(a)(1) state that the designation of
critical habitat is not prudent when one or both of the following
situations exist: (1) The species is threatened by taking or other
activity and the identification of critical habitat can be expected to
increase the degree of threat to the species; or (2) the designation of
critical habitat would not be beneficial to the species.
There is no documentation that the vermilion darter is threatened
by taking or other human activity. In the absence of finding that the
designation of critical habitat would increase threats to the species,
if there are any benefits to a critical habitat designation, then a
prudent finding is warranted. The potential benefits include: (1)
Triggering consultation, under section 7 of the Act, in new areas for
action in which there may be a Federal nexus where it would not
otherwise occur because, for example, it is or has become unoccupied or
the occupancy is in question; (2) identifying the physical and
biological features essential to the conservation of the vermilion
darter and focusing conservation activities on these essential features
and areas; (3) providing educational benefits to State or county
governments or private entities engaged in activities or long-range
planning in areas essential to the conservation of the species; and (4)
preventing people from causing inadvertent harm to the species.
Conservation of the vermilion darter and the essential features of the
habitat will require habitat protection and restoration, which will be
facilitated by knowledge of habitat locations and the physical and
biological features of those habitats.
Therefore, since we have determined that the designation of
critical habitat will not likely increase the degree of threat to the
species and may provide some measure of benefit, we find that the
designation of critical habitat for the vermilion darter is prudent.
Critical Habitat Determinability
As stated above, section 4(a)(3) of the Act requires the
designation of critical habitat concurrently with the species' listing
``to the maximum extent prudent and determinable.'' Our regulations at
50 CFR 424.12(a)(2) state that critical habitat is not determinable
when one or both of the following situations exist:
(1) Information sufficient to perform required analyses of the
impacts of the designation is lacking, or
(2) The biological needs of the species are not sufficiently well
known to permit identification of an area as critical habitat.
When critical habitat is not determinable, the Act provides for an
additional year to publish a critical habitat designation (16 U.S.C.
1533(b)(6)(C)(ii)).
We reviewed the available information pertaining to the biological
needs of the vermilion darter, the historical distribution of the
vermilion darter, and the habitat characteristics where they currently
survive. This and other information represent the best scientific and
commercial data available and led us to conclude that the designation
of critical habitat is determinable for the vermilion darter.
Methods
As required by section 4(b) of the Act, we used the best scientific
and commercial data available in determining which areas within the
geographical area occupied by the species at the time of listing
contain the features essential to the conservation of the vermilion
darter that may require special management considerations or
protections, and which areas outside of the geographical area occupied
at the time of listing are essential for the conservation of the
species.
We reviewed the available information pertaining to historical and
current distributions, life histories, and habitat requirements of this
species. Our sources included peer-reviewed scientific publications;
unpublished survey reports; unpublished field observations by Service,
State, and other experienced biologists; notes and communications from
qualified biologists or experts; and Service publications such as the
final listing rule for the vermilion darter and the Recovery Plan for
the Vermilion Darter.

Physical and Biological Features

In accordance with sections 3(5)(A)(i) and 4(b)(1)(A) of the Act
and the regulations at 50 CFR 424.12, in determining which areas within
the geographical area occupied at the time of listing to propose as
critical habitat, we consider the physical and biological features that
are essential to the conservation of the species which may require
special management considerations or protection. These include, but are
not limited to:
(1) Space for individual and population growth and for normal
behavior;
(2) Food, water, air, light, minerals, or other nutritional or
physiological requirements;
(3) Cover or shelter;
(4) Sites for breeding, reproduction, or rearing (or development)
of offspring; and
(5) Habitats that are protected from disturbance or are
representative of the historic, geographical, and ecological
distributions of a species.
We consider the specific physical and biological features to be the
primary constituent elements (PCEs) laid out in the appropriate
quantity and spatial

[[Page 63370]]

arrangement for the conservation of the species. The PCEs required for
the vermilion darter are derived from biological needs of the species
as described in the Background section of this proposed rule and in the
final listing rule (66 FR 59367). Unfortunately, little is known of the
specific habitat requirements for this species other than that the
species requires adequate water quality, water quantity, water flow,
and a stable stream channel. To identify the physical and biological
needs of the vermilion darter, we have relied on current conditions at
locations where the species survives, the limited information available
on this species and its close relatives, and factors associated with
the decline and extirpation of fish species within the Mobile River
Basin (U.S. Fish and Wildlife Service 2000, pp.6-13) and other similar
watersheds.
Space for Individual and Population Growth and for Normal Behavior
Little is known about the specific space requirements of the
vermilion darter within the Turkey Creek system; however, in general,
darters depend on space from geomorphically stable streams with varying
water quantities and flow. Vermilion darters are found in the
transition zone between a riffle (shallow, fast water) or run (deeper,
fast water) and a pool (deep, slow water) (Blanco and Mayden 1999,
pp.18-20), usually at the head and foot of the riffles and downstream
of the run habitat. Construction of impoundments in the Turkey Creek
watershed has altered stream banks and bottoms; degraded the riffles,
runs, and pools; and altered the natural water quantity and flow of the
stream. A stable stream maintains its horizontal dimension and vertical
profile (stream banks and bottoms), thereby conserving the physical
characteristics of a stream, including bottom features such as riffles,
runs, and pools and the transition zones between these features. The
riffles, runs, and pools not only provide space for the vermilion
darter, but also provide cover and shelter for breeding, reproduction,
and growth of offspring.
In addition, the current range of the vermilion darter is reduced
to localized sites due to fragmentation, separation, and destruction of
vermilion darter populations. There are both natural (waterfall) and
manmade (impoundments) dispersal barriers that not only contribute to
the separation and isolation of vermilion darter populations, but also
affect water quality. Fragmentation of the species' habitat has
subjected these small isolated populations within the Turkey Creek
system to genetic isolation and reduction of space for rearing and
reproduction, population maintenance and reduction of adaptive
capabilities, and increased likelihood of local extinctions (Hallerman
2003, pp. 363-364; Burkhead et al. 1997, pp 397-399). Genetic variation
and diversity within a species are essential for recovery, adaptation
to environmental changes, and long-term viability (capability to live,
reproduce, and develop) (Noss and Cooperrider 1994, pp. 282-297; Harris
1984, pp. 93-107). Long-term viability is founded on numerous
interbreeding, local populations throughout the range (Harris 1984,
pp.93-107). Continuity of water flow between suitable habitats is
essential in preventing further fragmentation of the species' habitat
and populations; conserving the essential riffles, runs, and pools
needed by vermilion darters; and promoting genetic flow throughout the
populations. Continuity of habitat will maintain spawning, foraging,
and resting sites, as well as provide heterozygosity or gene flow
throughout the population. Connectivity of habitats, as a whole, also
permits improvement in water quality and water quantity by allowing an
unobstructed water flow throughout the connected habitats.
Based on the biological information and needs discussed above, it
is essential to protect riffles, runs, and pools, and the continuity of
these structures, to accommodate feeding, spawning, growth, and other
normal behaviors of the vermilion darter and to promote genetic flow
within the species.
Food, Water, Air, Light, Minerals, or Other Nutritional or
Physiological Requirements
Water Quantity and Flow
Much of the cool, clean water provided to the Turkey Creek main
stem comes from consistent and steady groundwater sources (springs)
that contribute to the flow and water quantity in the tributaries
(Beaver Creek, Dry Creek, Dry Branch, and the unnamed tributary to
Beaver Creek). Flowing water provides a means for transporting
nutrients and food items, moderating water temperatures and dissolved
oxygen levels, and diluting non-point and point source pollution.
Impoundments within Turkey and Dry creeks not only serve as dispersal
barriers but have also altered stream flows from natural conditions.
Without clean water sources, water quality and water quantity would be
considerably lower and would significantly impair the normal life
stages and behavior of the vermilion darter.
Favorable water quantity is an average daily discharge of over 50
cubic feet per second within the Turkey Creek main stem (U.S.
Geological Survey 2009, compiled from average annual statistics). Along
with this average daily discharge, both minimum and flushing flows are
necessary within the tributaries to maintain all life stages and to
remove fine sediments and dilute other pollutants (Drennen personal
observation, February 2009a; Instream Flow Council 2004, pp.103-104,
375; Gilbert et al. eds. 1994, pp. 505-522; Moffett and Moser 1978, pp.
20-21). These flows are supplemented by groundwater and contribute to
the overall stream cleansing effect by adding to the total flow of
high-quality water. This, in turn, helps in maintenance of stream banks
and bottoms, essential for normal life stages and behavior of the
vermilion darter.
Water Quality
Factors that can potentially alter water quality are decreases in
water quantity through droughts and periods of low seasonal flow,
precipitation events, non-point source runoff, human activities within
the watershed, random spills, and unregulated discharge events
(Instream Flow Council 2004, pp.29-50). These factors are particularly
harmful during drought conditions when flows are depressed and
pollutants are concentrated. Impoundments also affect water quality by
reducing water flow, altering temperatures, and concentrating
pollutants (Blanco and Mayden 1999, pp. 5-6, 36). Nonpoint-source
pollution and alteration of flow regimes are primary threats to the
vermilion darter in the Turkey Creek watershed.
Aquatic life, including fish, require acceptable levels of
dissolved oxygen. The type of organism and its life stage determine the
level of oxygen required. Generally, among fish, cold water species and
young life forms are the most sensitive. The amount of dissolved oxygen
that is present in the water (the saturation level) depends upon water
temperature. As the water temperature increases, the saturated
dissolved oxygen level decreases. The more oxygen there is in the
water, the greater the assimilative capacity (ability to consume
organic wastes with minimal impact) of that water; lower water flows
have a reduced assimilative capacity (Pitt 2000, pp. 6-7). Low-flow
conditions affect the chemical environment occupied by the fish, and
extended low-flow conditions coupled with higher pollutant levels would
likely result in behavior changes within all life stages, but could be
particularly detrimental to

[[Page 63371]]

early life stages (e.g., eggs, larvae, and juveniles).
Optimal water quality lacks harmful levels of pollutants, such as
inorganic contaminants like copper, arsenic, mercury, and cadmium;
organic contaminants such as human and animal waste products;
endocrine-disrupting chemicals; pesticides; nitrogen, potassium, and
phosphorous fertilizers; and petroleum distillates. Sediment is the
most abundant pollutant produced in the Mobile River Basin (Alabama
Department of Environmental Management 1996, pp.13-15). Siltation
(excess sediments suspended or deposited in a stream) contributes to
turbidity of the water and has been shown to suffocate aquatic insects,
smother fish eggs, clog fish gills, and fill in essential interstitial
spaces (spaces between stream substrates) used by aquatic organisms for
spawning and foraging; therefore, siltation negatively impacts fish
growth, physiology, behavior, reproduction, and survival. Nutrification
(excessive nutrients present, such as nitrogen and phosphorous)
promotes heavy algal growth that covers and eliminates clean rock or
gravel habitats necessary for vermilion darter feeding and spawning.
High conductivity values are an indicator of hardness and alkalinity
and may denote water nitrification (Hackney et al. 1999, pp.99-103).
Generally, early life stages of fishes are less tolerant of
environmental contamination than adults or juveniles (Little et al.
1993, pp. 67).
Appropriate water quality and quantity are necessary to dilute
impacts from storm water and other non-natural effluents. Harmful
levels of pollutants impair critical behavior functions in fish and are
reflected in population-level responses (reduced population size,
biomass, year class success, etc.). Adequate water quantity and flow
and good to optimal water quality are essential for normal behavior,
growth, and viability during all life stages.
The vermilion darter requires relatively clean, cool flowing water
within the Turkey Creek main stem and tributaries. The Clean Water Act
(33 U.S.C. 1251 et seq.), Water Quality Act (Pub. L. 100-4) and Alabama
Water Pollution Control Act (Ala. Code Sec. 22-22-1) establish
guidelines for water usage and standards of quality for the State's
waters necessary to preserve and protect aquatic life. Essential water
quality attributes for darters and other fish species in fast to middle
water flow streams include: dissolved oxygen levels greater than 6
parts per million (ppm), temperatures between 7 [deg] and 26.7
[deg]Celsius (C) (45 [deg] and 80 [deg]Fahrenheit (F)) with spring egg
incubation temperatures from 12.2 [deg] to 18.3 [deg]C (54 [deg] to 65
[deg]F), a specific conductance (ability of water to conduct an
electric current, based on dissolved solids in the water) of less than
approximately 225 micro Siemens per centimeter at 26.7 [deg]C (80
[deg]F), and low concentrations of free or suspended solids (organic
and inorganic sediments) less than 10 Nephelometric Turbidity Units
(NTU; units used to measure sediment discharge) and 15 mg/L Total
Suspended Solids (TSS; measured as mg/L of sediment in water ) (Teels
et al. 1975, pp. 8-9; Ultschet et al. 1978, pp. 99-101; Ingersoll et
al. 1984, pp. 131-138; Kundell and Rasmussen 1995, pp. 211-212; Henley
et al. 2000, pp. 125-139; Meyer and Sutherland 2005, pp. 43-64).
Food
The vermilion darter is a benthic (bottom) insectivore consuming
larval chironomids (midges), tipulids (crane flies), and hydropsychids
(caddisflies), along with occasional microcrustaceans (Boschung and
Mayden 2004, p. 520; Khudamrongsawat et al. 2005, p.472). Caddisflies
and crane flies are pollution sensitive organisms found in good to fair
water quality (Auburn University 1993, p.53). Variation in instream
flow maintains the stream bottom where food for the vermilion darter is
found, transports these organisms, and provides oxygen and other
attributes to various invertebrate life stages. Sedimentation has been
shown to wear away and suffocate periphyton (organisms that live
attached to objects underwater) and disrupt aquatic insect communities
(Waters 1995, pp. 53-86; Knight and Welch 2001, pp. 132-135). In
addition, nutrification promotes heavy algal growth that covers and
eliminates the clean rock or gravel habitats necessary for vermilion
darter feeding and spawning. A decrease in water quality and instream
flow will correspondingly decrease the major food species for the
vermilion darter. Thus, food availability for the vermilion darter is
affected by instream flow and water quality.
Based on the biological information and needs discussed above, we
believe it is essential that vermilion darter habitat consist of
unaltered, connected, stable streams to maintain flow, prevent
sedimentation, and promote good water quality absent harmful
pollutants.
Cover or Shelter (Sites for Breeding, Reproduction or Rearing)
Vermilion darters depend on specific bottom substrates for normal
and robust life processes such as spawning, rearing, protection of
young during life stages, protection of adults when threatened,
foraging, and feeding. These bottom substrates are dominated by fine
gravel, along with some sand, coarse gravel, cobble, and bedrock
(Blanco and Mayden 1999, pp. 24-26; Drennen personal observation,
February 2009b). The vermilion darter prefers small-sized gravel for
spawning substrates (Blanchard and Stiles 2005, pp.1-12). Occasionally,
there are also small sticks and limbs on the bottom substrate and
within the water column (Stiles pers. comm., September 1999; Drennen
personal observation, May 2007).
Excessive fine sediments of small sands, silt, and clay may embed
in the larger substrates, filling in interstitial spaces between these
structures. Loss of these interstitial areas removes spawning and
rearing areas, foraging and feeding sites, and escape and protection
localities (Sylte and Fischenich 2002, pp. 1-25). In addition, dense,
filamentous algae growth on the substrates may restrict or eliminate
the usefulness of the interstitial spaces by the vermilion darter.
Geomorphic instability within the streambed and along the banks
results in scouring and erosion of these areas, leading to
sedimentation and loss of shelter and cover for vermilion darters,
their eggs, and their young. This fine sediment deposition also reduces
the area available for food sources, such as macroinvertebrates and
periphyton (Tullos 2005, pp. 80-81).
Thus, based on the biological information and needs above,
essential vermilion darter habitat consists of stable streams with a
stream flow sufficient to remove sediment and eliminate the filling in
of interstitial spaces and substrate to accommodate spawning, rearing,
protection of young, protection of adults when threatened, foraging,
and feeding.
Primary Constituent Elements for Vermilion Darter
Under the Act and its implementing regulations, we are required to
identify the physical and biological features essential to the
conservation of vermilion darter. The physical and biological features
are the primary constituent elements (PCEs) laid out in the appropriate
quantity and spatial arrangement essential to the conservation of the
species. Areas designated as critical habitat for vermilion darter
contain only occupied areas within the species' historical geographic
range, and contain sufficient PCEs to support at least one life history
function.

[[Page 63372]]

Based on our current knowledge of the life history, biology, and
ecology of vermilion darter and the requirements of the habitat to
sustain the essential life history functions of the species, we
determined that the PCEs specific to vermilion darter are:
(1) Geomorphically stable stream bottoms and banks (stable
horizontal dimension and vertical profile) in order to maintain t
bottom features (riffles, runs, and pools) and transition zones between
bottom features , to continue appropriate habitat to maintain essential
riffles, runs, and pools, to promote connectivity between spawning,
foraging and resting sites, and to maintain gene flow throughout the
population.
(2) Instream flow regime with an average daily discharge over 50
cubic feet per second, inclusive of both surface runoff and groundwater
sources (springs and seepages).
(3) Water quality with temperature not exceeding 26.7 [deg]C (80
[deg]F), dissolved oxygen 6.0 milligrams or greater per liter,
turbidity of an average monthly reading of 10 Nephelometric Turbidity
Units (NTU; units used to measure sediment discharge) and 15mg/l Total
Suspended Solids (TSS; measured as mg/l of sediment in water ) or less;
and a specific conductance (ability of water to conduct an electric
current, based on dissolved solids in the water) of no greater than 225
micro Siemens per centimeter at 26.7 [deg] C (80 [deg]F).
(4) Bottom substrates consisting of fine gravel with coarse gravel
or cobble, or bedrock with sand and gravel, with low amounts of fine
sand and sediments within the interstitial spaces of the substrates.
With this proposed designation of critical habitat, we intend to
conserve the physical and biological features essential to the
conservation of the species, through the identification of the
appropriate quantity and spatial arrangement of the PCEs sufficient to
support the life history functions of the species. Each of the areas
proposed as critical habitat in this rule contains sufficient PCEs to
provide for one or more of the life history functions of the vermilion
darter.

Special Management Considerations or Protections

When designating critical habitat, we assess whether the specific
areas within the geographical area occupied by the species at the time
of listing contain the physical and biological features that are
essential to the conservation of the species and whether those features
may require special management considerations or protection.
The five units we are proposing for designation as critical habitat
will require some level of management to address the current and future
threats to the physical and biological features essential to the
conservation of the species. None of the proposed critical habitat
units are presently under special management or protection provided by
a legally operative plan or agreement for the conservation of the
vermilion darter. Various activities in or adjacent to the critical
habitat units described in this proposed rule may affect one or more of
the PCEs. For example, features in the proposed critical habitat
designation may require special management due to threats posed by
urbanization activities (such as stream channel modification for flood
control or gravel extraction) that could cause an increase in bank
erosion; by significant changes in the existing flow regime within the
streams due to water diversion or withdrawal; by significant alteration
of water quality; by significant alteration in the quantity of
groundwater and alteration of spring discharge sites; by significant
changes in stream bed material composition and quality due to
construction projects and maintenance activities; by off-road vehicle
use; by gas and water easements; by bridge construction; by culvert
installation; by stormwater management; and by other watershed and
floodplain disturbances that release sediments or nutrients into the
water. Other activities that may affect PCEs in the proposed critical
habitat units include those listed in the ``Effects of Critical
Habitat'' section below.
As stated above, designation of critical habitat does not imply
that lands outside of critical habitat do not play an important role in
the conservation of the vermilion darter. Activities with a Federal
nexus that may affect areas outside of critical habitat, such as
development; road construction and maintenance; oil, gas, and utility
easements; and effluent discharges, are still subject to review under
section 7 of the Act if they may affect the vermilion darter, because
Federal agencies must consider both effects to the species and effects
to critical habitat independently. The Service should be consulted for
disturbances to areas both within the proposed critical habitat unist
as well as upstream of those areas known to support vermilion darter,
including springs and seeps that contribute to the instream flow in the
tributaries, especially during times when stream flows are abnormally
low (i.e., during droughts). The prohibitions of section 9 of the Act
against the take of listed species also continue to apply both inside
and outside of designated critical habitat.

Criteria Used to Identify Proposed Critical Habitat

Using the best scientific and commercial data available, as
required by section 4(b)(1)(A) of the Act, we identified those areas to
propose for designation as critical habitat that, within the
geographical area occupied by the species at the time of listing,
possess those physical and biological features essential to the
conservation of the vermilion darter which may require special
management considerations or protection. We also considered the area
outside the geographical area occupied by the species at the time of
listing for any areas that are essential for the conservation of the
vermilion darter.
We used information from surveys and reports prepared by the
Alabama Department of Conservation and Natural Resources, Alabama
Geological Survey, Samford University, University of Alabama, and the
Service to identify the specific locations occupied by the vermilion
darter. Currently, occupied habitat for the species is limited and
isolated. The species is currently located within the upper mainstem
reaches of Turkey Creek and four tributaries: unnamed tributary to
Beaver Creek, Beaver Creek, Dry Creek, and Dry Branch in Pinson,
Jefferson County, Alabama (Blanco and Mayden 1999, pp.18-20; Drennen
pers. observ. March 2008).
Following the identification of the specific locations occupied by
the vermilion darter, we determined the appropriate length of stream
segments by identifying the upstream and downstream limits of these
occupied sections necessary for the conservation of the vermilion
darter. Because populations of vermilion darters are isolated due to
dispersal barriers, to set the upstream and downstream limits of each
critical habitat unit, we identified landmarks (bridges, confluences,
road crossings, and dams) above and below the upper and lowermost
reported locations of the vermilion darter in each stream reach to
ensure incorporation of all potential sites of occurrence. These stream
reaches were then digitized using 7.5' topographic maps and ARCGIS to
produce the critical habitat map.
We are proposing to designate as critical habitat all stream
reaches in occupied habitat. We have defined ``occupied habitat'' as
those stream reaches occupied at the time of listing and still known to
be occupied by the vermilion darter ; these stream reaches comprise the
entire known range of the

[[Page 63373]]

vermilion darter. We are not proposing to designate any areas outside
the known range of the species because the historical range of the
vermilion darter, beyond currently occupied areas, is unknown and
dispersal beyond the current range is not likely due to dispersal
barriers.
The five proposed units contain one or more of the PCEs in the
appropriate quantity and spatial arrangement essential to the
conservation of this species and support multiple life processes for
the vermilion darter.
When identifying proposed critical habitat boundaries, we make
every effort to avoid including developed areas such as lands covered
by buildings, pavement, and other structures because such lands usually
lack PCEs for endangered or threatened species. Areas proposed for
critical habitat for the vermilion darter below include only stream
channels within the ordinary high water line and do not contain any
developed areas or structures.

Proposed Critical Habitat Designation

We are proposing to designate 5 units, totaling approximately 21.0
km (13.0 mi), as critical habitat for the vermilion darter. The
critical habitat units described below constitute our best assessment
of areas that currently meet the definition of critical habitat for the
vermilion darter. Table 1 identifies the proposed units for the
species; shows the occupancy of the units; the approximate extent
proposed as critical habitat for the vermilion darter; and ownership of
the proposed designated areas.

TABLE 1--Occupancy and Ownership of Proposed Critical Habitat Units for the Vermilion Darter.
--------------------------------------------------------------------------------------------------------------------------------------------------------
Private Ownership State, County, City
Unit Location Occupied Stream Kilometers Ownership Stream Total
(Miles) Kilometers (Miles)
--------------------------------------------------------------------------------------------------------------------------------------------------------
1 Turkey Creek Yes 14.9 0.3 15.2
(9.2)................ (0.2)................ (9.4)
--------------------------------------------------------------------------------------------------------------------------------------------------------
2 Dry Branch Yes 0.7 - 0.7
(0.4)................ (0.4)
--------------------------------------------------------------------------------------------------------------------------------------------------------
3 Beaver Yes 0.9 0.1 1.0
Creek................. (0.6)................ (< 0.1).............. (0.6)
--------------------------------------------------------------------------------------------------------------------------------------------------------
4 Dry Creek Yes 0.6 - 0.6
(0.4)................ (0.4)
--------------------------------------------------------------------------------------------------------------------------------------------------------
5 Unnamed Tributary to Yes 3.3 0.4
Beaver Creek (2.0)................ (0.2)................ 3.7
(2.2)
--------------------------------------------------------------------------------------------------------------------------------------------------------
TOTAL 20.4 0.8 21.2
(12.6)............... (0.5)................ (13.1)
--------------------------------------------------------------------------------------------------------------------------------------------------------

We present brief descriptions of each unit and reasons why they
meet the definition of critical habitat below. The proposed critical
habitat units include the stream channels of the creek and tributaries
within the ordinary high water line. As defined in 33 CFR 329.11, the
ordinary high water line on nontidal rivers is the line on the shore
established by the fluctuations of water and indicated by physical
characteristics such as a clear, natural water line impressed on the
bank; shelving; changes in the character of soil; destruction of
terrestrial vegetation; the presence of litter and debris; or other
appropriate means that consider the characteristics of the surrounding
areas. In Alabama, the riparian landowner owns the stream to the middle
of the channel.
For each stream reach proposed as a critical habitat, the upstream
and downstream boundaries are described generally below; more precise
descriptions are provided in the Regulation Promulgation at the end of
this proposed rule.

Unit 1: Turkey Creek, Jefferson County, Alabama

Unit 1 includes 15.2 km (9.4 mi) in Turkey Creek from Shadow Lake
Dam downstream to the Section 13/14 (T15S, R2W) line, as taken from the
U.S. Geological Survey 7.5 topographical map (Pinson quadrangle).
Approximately 14.9 km (9.2 mi), or 98 percent of this area is
privately owned. The remaining 0.3 km (0.2 mi), or 2 percent is
publicly owned by the City of Pinson or Jefferson County in the form of
bridge crossings and road easements.
Turkey Creek supports the most abundant and robust populations of
the vermilion darter in the watershed. Populations of vermilion darters
are small and isolated within specific habitat sites of Turkey Creek
from Shadow Lake dam downstream to the old strip mine pools (13/14 S
T15S R2W section line, as taken from the U.S. Geological Survey 7.5
topographical map (Pinson quadrangle)). We consider the entire reach of
Turkey Creek that composes Unit 1 to be occupied.
One of the three known spawning sites for the species is located
within the confluence of Turkey Creek and Tapawingo Spring run (PCE 4).
In addition, Turkey Creek provides the most darter habitat for the
vermilion darters with an abundance of pools, riffles, and runs (PCE
1). These geomorphic structures provide the species with spawning,
foraging, and resting areas (PCEs 1 and 4), along with good water
quality, quantity, and flow, which support the normal life stages and
behavior of the vermilion darter and the species' prey sources (PCEs 2
and 3).
There are five impoundments in Turkey Creek (Blanco and Mayden
1999, pp. 5-6, 36, 63) limiting the connectivity of the range and
expansion of the species into other units and posing a risk of
extinction to the species due to changes in flow regime, habitat, water
quality, water quantity, and stochastic events such as drought. These
impoundments accumulate nutrients and undesirable fish species that
could propose threats to vermilion darters and the species' habitat.
Other threats to the

[[Page 63374]]

vermilion darter and its habitat in Turkey Creek that may require
special management and protection of PCEs include the potential of:
urbanization activities (such as channel modification for flood control
or gravel extraction) that could result in increased bank erosion;
significant changes in the existing flow regime due to water diversion
or withdrawal; significant alteration of water quality; and significant
changes in stream bed material composition and quality as a result of
construction projects and maintenance activities, off-road vehicle use,
gas and water easements, bridge construction, culvert installation,
stormwater management, and other watershed and floodplain disturbances
that release sediments or nutrients into the water.

Unit 2: Dry Branch, Jefferson County, Alabama

Unit 2 includes 0.7 km (0.4 mi) of Dry Branch from the bridge at
Glenbrook Road downstream to the confluence with Beaver Creek.
Almost all of the 0.7 km (0.4 mi) or close to 100 percent of this
area is privately owned. Less than 1 percent of the area is publicly
owned by the City of Pinson or Jefferson County in the form of bridge
crossings and road easements.
Dry Branch provides supplemental water quantity to Turkey Creek
proper (Unit 1) and provides connectivity to additional bottom
substrate habitat and possible spawning sites (PCEs 1, 3, and 4). One
of the three known spawning sites for the species is located within the
confluence of this reach (PCE 1 and 4) and Beaver Creek.
Threats to the vermilion darter and its habitat at Dry Branch that
may require special management and protection of PCEs 1, 3, and 4
include the potential of: urbanization activities (such as channel
modification for flood control, impoundments, gravel extraction) that
could result in increased bank erosion; significant changes in the
existing flow regime due to construction of impoundments, water
diversion, or water withdrawal; significant alteration of water
quality; and significant changes in stream bed material composition and
quality as a result of construction projects and maintenance
activities, off-road vehicle use, gas and water easements, bridge
construction, culvert installation, stormwater management, and other
watershed and floodplain disturbances that release sediments or
nutrients into the water.

Unit 3: Beaver Creek, Jefferson County, Alabama

Unit 3 includes 1.0 km (0.6 mi) of Beaver Creek from the confluence
with the unnamed tributary to Beaver Creek downstream to the confluence
with Turkey Creek.
Almost 0.9 km (0.6 mi), or 94 percent of this area is privately
owned. The remaining 0.1 km (< 0.1 mi), or 6 percent is publicly owned
by the City of Pinson or Jefferson County in the form of bridge
crossings and road easements.
Beaver Creek supports populations of vermilion darters, and
provides supplemental water quantity to Turkey Creek proper (PCEs 1 and
2). The reach also contains adequate bottom substrate for vermilion
darters to use in spawning, foraging, and other life processes (PCE 4).
Beaver Creek makes available additional habitat and spawning sites, and
offers connectivity with other vermilion darter populations within
Turkey Creek, Dry Branch, and the unnamed tributary to Beaver Creek
(PCEs 1 and 4).
Threats to the vermilion darter and its habitat at Beaver Creek
that may require special management of PCEs 1, 2, and 4 include the
potential of: urbanization activities (such as channel modification for
flood control, impoundments, gravel extraction) that could result in
increased bank erosion; significant changes in the existing flow
regime, water diversion, or water withdrawal; significant alteration of
water quality; and significant changes in stream bed material
composition and quality as a result of construction projects and
maintenance activities, off-road vehicle use, gas and water easements,
bridge construction, culvert installation, stormwater management, and
other watershed and floodplain disturbances that release sediments or
nutrients into the water.

Unit 4: Dry Creek, Jefferson County, Alabama

Unit 4 includes 0.6 km (0.4 mi) of Dry Creek from Innsbrook Road
downstream to the confluence with Turkey Creek.
Almost 0.6 km (0.4 mi), or 100 percent of this area is privately
owned.
Dry Creek supports populations of vermilion darters and provides
supplemental water quantity to Turkey Creek proper (PCEs 1 and 2). The
reach also contains adequate bottom substrate for vermilion darters to
use in spawning, foraging, and other life processes (PCE 4). Dry Creek
makes available additional habitat and spawning sites, and offers
connectivity with vermilion darter populations in Turkey Creek (PCE 1).
There are two impoundments in Dry Creek (Blanco and Mayden 1999,
pp. 56, 62) which limit the range and expansion of the species within
the unit and increases the risk of extinction due to changes in flow
regime, habitat or water quality, water quantity, and stochastic events
such as drought. These impoundments amass nutrients and undesirable
fish species that could propose threats to vermilion darters and to its
habitat. Threats that may require special management and protection of
PCEs include: urbanization activities (such as channel modification for
flood control and gravel extraction) that could result in increased
bank erosion; significant changes in the existing flow regime due to
future impoundment construction, water diversion, or water withdrawal;
significant alteration of water quality; and significant changes in
stream bed material composition and quality as a result of construction
projects and maintenance activities, off-road vehicle use, gas and
water easements, bridge construction, culvert installation, stormwater
management, and other watershed and floodplain disturbances that
release sediments or nutrients into the water.

Unit 5: Unnamed Tributary to Beaver Creek, Jefferson County, Alabama

Unit 5 includes 3.7 km (2.3 mi) of the unnamed tributary of Beaver
Creek from the Section 12/11 (T16S, R2W) line, as taken from the U.S.
Geological Survey 7.5 topographical map (Pinson quadrangle), downstream
to its confluence with Beaver Creek.
Almost 3.3 km (2.1 mi), or 89 percent of this area is privately
owned. The remaining 0.4 km (0.2 mi), or 11 percent is publicly owned
by the City of Pinson or Jefferson County in the form of bridge
crossings and road easements.
The unnamed tributary to Beaver Creek supports populations of
vermilion darters and provides supplemental water quantity to Turkey
Creek proper (PCEs 1 and 2). The unnamed tributary to Beaver Creek has
been intensely geomorphically changed by man over the last 100 years.
The majority of this reach has been modified for flood control, as it
runs parallel to Highway 79. There are several bridge crossings, and
the reach has a history of industrial uses along the bank. However,
owing to the groundwater effluent that constantly supplies this reach
with clean and flowing water (PCEs 2 and 3), the reach has been able to
cleanse itself and maintain a population of vermilion darters at
several locations. One of the three known spawning sites for the
species is located within this reach (PCE 4).
The headwaters of the unnamed tributary to Beaver Creek is

[[Page 63375]]

characterized by natural flows that are attributed to an abundance of
spring groundwater discharges contributing adequate water quality,
water quantity, and substrates (PCEs 1, 2, and 3). Increasing the
connectivity of the vermilion darter populations (PCE 1) into the upper
reaches of this tributary is an essential conservation requirement as
it would expand the range and decrease the vulnerability of these
populations to stochastic threats.
Threats to the vermilion darter and its habitat that may require
special management and protection of PCEs are: urbanization activities
(such as channel modification for flood control, and gravel extraction)
that could result in increased bank erosion; significant changes in the
existing flow regime due to future impoundment construction, water
diversion, or water withdrawal; significant alteration of water
quality; and significant changes in stream bed material composition and
quality as a result of construction projects and maintenance
activities, off-road vehicle use, gas and water easements, bridge
construction, culvert installation, stormwater management, and other
watershed and floodplain disturbances that release sediments or
nutrients into the water.

Effects of Critical Habitat Designation

Section 7 Consultation
Section 7(a)(2) of the Act requires Federal agencies, including the
Service, to ensure that actions they fund, authorize, or carry out are
not likely to destroy or adversely modify critical habitat. Decisions
by the Fifth and Ninth Circuits Courts of Appeals have invalidated our
definition of ``destruction or adverse modification'' (50 CFR 402.02)
(see Gifford Pinchot Task Force v. U.S. Fish and Wildlife Service, 378
F.3d 1059 (9\th\ Cir. 2004) and Sierra Club v. U.S. Fish and Wildlife
Service, 245 F.3d 434, 442 (5\th\ Cir. 2001)), and we do not rely on
this regulatory definition when analyzing whether an action is likely
to destroy or adversely modify critical habitat. Under the statutory
provisions of the Act, we determine destruction or adverse modification
on the basis of whether, with implementation of the proposed Federal
action, the affected critical habitat would remain functional (or
retain the current ability for the PCEs to be functionally established)
to serve its intended conservation role for the species.
Section 7(a)(4) of the Act requires Federal agencies to confer with
the Service on any action that is likely to jeopardize the continued
existence of a species proposed for listing or result in destruction or
adverse modification of proposed critical habitat. Conference reports
provide conservation recommendations to assist the agency in
eliminating conflicts that may be caused by the proposed action. We may
issue a formal conference report if requested by a Federal agency.
Formal conference reports on proposed critical habitat contain an
opinion that is prepared according to 50 CFR 402.14, as if critical
habitat were designated. We may adopt the formal conference report as
the biological opinion when the critical habitat is designated, if no
substantial new information or changes in the action alter the content
of the opinion (see 50 CFR 402.10(d)). The conservation recommendations
in a conference report or opinion are strictly advisory.
If a species is listed or critical habitat is designated, section
7(a)(2) of the Act requires Federal agencies to ensure that activities
they authorize, fund, or carry out are not likely to jeopardize the
continued existence of the species or to destroy or adversely modify
its critical habitat. If a Federal action may affect a listed species
or its critical habitat, the responsible Federal agency (action agency)
must enter into consultation with us. As a result of this consultation,
we document compliance with the requirements of section 7(a)(2) through
our issuance of:
(1) A concurrence letter for Federal actions that may affect, but
are not likely to adversely affect, listed species or critical habitat;
or
(2) A biological opinion for Federal actions that may affect, and
are likely to adversely affect, listed species or critical habitat.
When we issue a biological opinion concluding that a project is
likely to jeopardize the continued existence of a listed species or
destroy or adversely modify critical habitat, we also provide
reasonable and prudent alternatives to the project, if any are
identifiable. We define ``reasonable and prudent alternatives'' at 50
CFR 402.02 as alternative actions identified during consultation that:
Can be implemented in a manner consistent with the
intended purpose of the action,
Can be implemented consistent with the scope of the
Federal agency's legal authority and jurisdiction,
Are economically and technologically feasible, and
Would, in the Director's opinion, avoid jeopardizing the
continued existence of the listed species or destroying or adversely
modifying critical habitat.
Reasonable and prudent alternatives can vary from slight project
modifications to extensive redesign or relocation of the project. Costs
associated with implementing a reasonable and prudent alternative are
similarly variable.
Regulations at 50 CFR 402.16 require Federal agencies to reinitiate
consultation on previously reviewed actions in instances where we have
listed a new species or subsequently designated critical habitat that
may be affected and the Federal agency has retained discretionary
involvement or control over the action (or the agency's discretionary
involvement or control is authorized by law). Consequently, Federal
agencies may sometimes need to request to reinitiate of consultation
with us on actions for which formal consultation has been completed, if
those actions with discretionary involvement or control may affect
subsequently listed species or designated critical habitat.
Federal activities that may affect the vermilion darter or its
designated critical habitat will require section 7 consultation under
the Act. Activities on State, Tribal, local, or private lands requiring
a Federal permit (such as a permit from the U.S. Army Corps of
Engineers under section 404 of the Clean Water Act (33 U.S.C. 1251 et
seq.) or a permit from us under section 10 of the Act or involving some
other Federal action (such as funding from the Federal Highway
Administration, Federal Aviation Administration, or the Federal
Emergency Management Agency)) are subject to the section 7 consultation
process. Federal actions not affecting listed species or critical
habitat, and actions on State, Tribal, local, or private lands that are
not Federally funded, authorized, or permitted, do not require section
7 consultation.

Application of the ``Adverse Modification'' Standard

The key factor related to the adverse modification determination is
whether, with implementation of the proposed Federal action, the
affected critical habitat would continue to serve its intended
conservation role for the species, or would retain its current ability
for the PCEs to be functionally established. Activities that may
destroy or adversely modify critical habitat are those that alter the
PCEs to an extent that appreciably reduces the conservation value of
critical habitat for the vermilion darter.
Section 4(b)(8) of the Act requires us to briefly evaluate and
describe, in any proposed or final regulation that designates critical
habitat, activities

[[Page 63376]]

involving a Federal action that may destroy or adversely modify such
habitat, or that may be affected by such designation.
Activities that, when carried out, funded, or authorized by a
Federal agency, may affect critical habitat and therefore result in
consultation for the vermilion darter include, but are not limited to:
(1) Actions that would alter the geomorphology of the stream
habitats. Such activities could include, but are not limited to,
instream excavation or dredging, impoundment, channelization, and
discharge of fill materials. These activities could cause aggradation
or degradation of the channel bed elevation or significant bank erosion
and could result in entrainment or burial of this species, as well as
other direct or cumulative adverse effects to this species and its life
cycle.
(2) Actions that would significantly alter the existing flow
regime. Such activities could include, but are not limited to,
impoundment, water diversion, water withdrawal, and hydropower
generation. These activities could eliminate or reduce the habitat
necessary for growth and reproduction of the vermilion darter.
(3) Actions that would significantly alter water chemistry or
water quality (for example, changes to temperature or pH, introduced
contaminants, or excess nutrients). Such activities could include, but
are not limited to, the release of chemicals, biological pollutants, or
heated effluents into surface water or connected groundwater at a point
source or by dispersed release (non-point source). These activities
could alter water conditions that are beyond the tolerances of the
species and result in direct or cumulative adverse effects on the
species and its life cycle.
(4) Actions that would significantly alter stream bed material
composition and quality by increasing sediment deposition or
filamentous algal growth. Such activities could include, but are not
limited to, construction projects; road and bridge maintenance
activities; livestock grazing; timber harvest; off-road vehicle use;
underground gas, water, and electric lines; and other watershed and
floodplain disturbances that release sediments or nutrients into the
water. These activities could eliminate or reduce habitats necessary
for the growth and reproduction of the species by causing excessive
sedimentation and burial of the species or their habitats, or
nutrification leading to excessive filamentous algal growth. Excessive
filamentous algal growth can cause extreme decreases in nighttime
dissolved oxygen levels through vegetation respiration, and cover the
bottom substrates and the interstitial spaces between cobble and
gravel.

Exemptions

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

Exclusions

Application of Section 4(b)(2) of the Act
Section 4(b)(2) of the Act states that the Secretary shall
designate or make revisions to critical habitat on the basis of the
best available scientific data after taking into consideration the
economic impact, national security impact, and any other relevant
impact of specifying any particular area as critical habitat. The
Secretary may exclude an area from critical habitat if he determines
that the benefits of such exclusion outweigh the benefits of specifying
such area as part of the critical habitat, unless he determines, based
on the best scientific and commercial data available, that the failure
to designate such area as critical habitat will result in the
extinction of the species concerned. In making that determination, the
legislative history is clear that the Secretary has broad discretion
regarding which factor(s) to use and how much weight to give to any
factor.
Economic Impacts
Under section 4(b)(2) of the Act, we consider the economic impacts
of specifying any particular area as critical habitat. In order to
consider economic impacts, we are preparing an analysis of the economic
impacts of the proposed critical habitat designation and related
factors.
We will announce the availability of the draft economic analysis
as soon as it is completed, at which time we will seek public review
and comment. At that time, copies of the draft economic analysis will
be available for downloading from the Internet at the Federal
eRulemaking Portal: http://www.regulations.gov, or by contacting the
Mississippi Fish and Wildlife Office directly (see FOR FURTHER
INFORMATION CONTACT ). During the development of a final designation,
we will consider economic impacts, public comments, and other new
information, and we may exclude areas may be excluded from the final
critical habitat designation under section 4(b)(2) of the Act and our
implementing regulations at 50 CFR 424.19.
National Security Impacts
Under section 4(b)(2) of the Act, we consider whether there are
lands owned or managed by the Department of Defense (DOD) where a
national security impact might exist. In preparing this proposal, we
have determined that the lands within the proposed designation of
critical habitat for the vermilion darter are not owned or managed by
the DOD, and we therefore anticipate no impact to national security.
There are no areas proposed for exclusion based on impacts to national
security.
Other Relevant Impacts
Under section 4(b)(2) of the Act, we consider any other relevant
impacts, in

[[Page 63377]]

addition to economic impacts and impacts on national security. We
consider a number of factors including whether landowners have
developed any conservation plans or other management plans for the
area, or whether there are conservation partnerships that would be
encouraged by designation of, or exclusion of lands from, critical
habitat. In addition, we look at any Tribal issues, and consider the
government-to-government relationship of the United States with tribal
entities. We also consider any social impacts that might occur because
of the designation.
In preparing this proposed rule, we have determined that there are
currently no conservation plans or other management plans for the
species, and the proposed designation does not include any Tribal lands
or trust resources. We anticipate no impact to Tribal lands,
partnerships, or management plans from this proposed critical habitat
designation. There are no areas proposed for exclusion from this
proposed designation based on other relevant impacts.
Notwithstanding these decisions, as stated under the Public
Comments section above, we are seeking specific comments on whether we
should exclude any areas proposed for designation under section 4(b)(2)
of the Act.

Peer Review

In accordance with our joint policy published in the Federal
Register on July 1, 1994 (59 FR 34270), we are obtaining the expert
opinions of at least three appropriate independent specialists
regarding this proposed rule. The purpose of peer review is to ensure
that our proposed actions are based on scientifically sound data,
assumptions, and analyses. We will invite these peer reviewers to
comment, during the public comment period, on our specific assumptions
and conclusions in this proposed designation of critical habitat.
We will consider all comments and information we receive during
this comment period on this proposed rule during our preparation of a
final determination. Accordingly, our final decision may differ from
this proposal.

Public Hearings

The Act provides for one or more public hearings on this proposal,
if we receive any requests for hearings. We must receive your request
for a public hearing by the date listed in the DATES section of this
rule. We will schedule public hearings on this proposal, if any are
requested, and announce the dates, times, and places of those hearings
in the Federal Register and local newspapers at least 15 days before
the first hearing.

Required Determinations

Regulatory Planning and Review -- Executive Order 12866
The Office of Management and Budget (OMB) has determined that this
rule is not significant under Executive Order 12866 (E.O. 12866). OMB
bases its determination upon the following four criteria:
(a) Whether the rule will have an annual effect of $100 million or
more on the economy or adversely affect an economic sector,
productivity, jobs, the environment, or other units of the government.
(b) Whether the rule will create inconsistencies with other
Federal agencies' actions.
(c) Whether the rule will materially affect entitlements, grants,
user fees, loan programs, or the rights and obligations of their
recipients.
(d) Whether the rule raises novel legal or policy issues.
Regulatory Flexibility Act (5 U.S.C. 601 et seq.)
Under the Regulatory Flexibility Act (RFA; 5 U.S.C. 601 et seq., as
amended by the Small Business Regulatory Enforcement Fairness Act
(SBREFA) of 1996), whenever an agency must publish a notice of
rulemaking for any proposed or final rule, it must prepare and make
available for public comment a regulatory flexibility analysis that
describes the effects of the rule on small entities (small businesses,
small organizations, and small government jurisdictions). However, no
regulatory flexibility analysis is required if the head of the agency
certifies the rule will not have a significant economic impact on a
substantial number of small entities. The SBREFA amended RFA to require
Federal agencies to provide a statement of the factual basis for
certifying that the rule will not have a significant economic impact on
a substantial number of small entities.
At this time, we lack the specific information necessary to provide
an adequate factual basis for determining the potential incremental
regulatory effects of the designation of critical habitat for the
vermilion darter to either develop the required RFA finding or provide
the necessary certification statement that the designation will not
have a significant impact on a substantial number of small business
entities. On the basis of the development of our proposal, we have
identified certain sectors and activities that may potentially be
affected by a designation of critical habitat for the vermilion darter.
These sectors include industrial development and urbanization along
with the accompanying infrastructure associated with such projects such
as road, stormwater drainage, bridge and culvert construction and
maintenance. We recognize that not all of these sectors may qualify as
small business entities. However, while recognizing that these sectors
and activities may be affected by this designation, we are collecting
information and initiating our analysis to determine (1) which of these
sectors or activities are or involve small business entities and (2)
what extent the effects are related to the vermilion darter being
listed as an endangered species under the Act (baseline effects) or
whether the effects are attributable to the designation of critical
habitat (incremental). We believe that the potential incremental
effects resulting from a designation will be small. As a consequence,
following an initial evaluation of the information available to us, we
do not believe that there will be a significant impact on a substantial
number of small business entities resulting from this designation of
critical habitat for the vermilion darter. However, we will be
conducting a thorough analysis to determine if this may in fact be the
case. As such, we are requesting any specific economic information
related to small business entities that may be affected by this
designation and how the designation may impact their business.
Therefore, we defer our RFA finding on this proposal designation until
completion of the draft economic analysis prepared under section
4(b)(2) of the Act and E.O. 12866.
As discussed above, this draft economic analysis will provide the
required factual basis for the RFA finding. Upon completion of the
draft economic analysis, we will announce availability of the draft
economic analysis of the proposed designation in the Federal Register
and reopen the public comment period for the proposed designation. We
will include with this announcement, as appropriate, an initial
regulatory flexibility analysis or a certification that the rule will
not have a significant economic impact on a substantial number of small
entities accompanied by the factual basis for that determination. We
have concluded that deferring the RFA finding until completion of the
draft economic analysis is necessary to meet the purposes and
requirements of the RFA. Deferring the RFA finding in this

[[Page 63378]]

manner will ensure that we make a sufficiently informed determination
based on adequate economic information and provide the necessary
opportunity for public comment.
Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.)
In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501
et seq.), we make the following findings:
(a) This rule would not produce a Federal mandate. In general, a
Federal mandate is a provision in legislation, statute or regulation
that would impose an enforceable duty upon State, local, tribal
governments, or the private sector and includes both ``Federal
intergovernmental mandates'' and ``Federal private sector mandates.''
These terms are defined in 2 U.S.C. 658(5)-(7). ``Federal
intergovernmental mandate'' includes a regulation that ``would impose
an enforceable duty upon State, local, or tribal governments'' with two
exceptions. It excludes ``a condition of Federal assistance.'' It also
excludes ``a duty arising from participation in a voluntary Federal
program,'' unless the regulation ``relates to a then-existing Federal
program under which $500,000,000 or more is provided annually to State,
local, and tribal governments under entitlement authority,'' if the
provision would ``increase the stringency of conditions of assistance''
or ``place caps upon, or otherwise decrease, the Federal Government's
responsibility to provide funding,'' and the State, local, or tribal
governments ``lack authority'' to adjust accordingly. At the time of
enactment, these entitlement programs were: Medicaid; AFDC work
programs; Child Nutrition; Food Stamps; Social Services Block Grants;
Vocational Rehabilitation State Grants; Foster Care, Adoption
Assistance, and Independent Living; Family Support Welfare Services;
and Child Support Enforcement. ``Federal private sector mandate''
includes a regulation that ``would impose an enforceable duty upon the
private sector, except (i) a condition of Federal assistance or (ii) a
duty arising from participation in a voluntary Federal program.''
The designation of critical habitat does not impose a legally
binding duty on non-Federal government entities or private parties.
Under the Act, the only regulatory effect is that Federal agencies must
ensure that their actions do not jeopardize the continued existence of
the species, or destroy or adversely modify critical habitat under
section 7 of the Act. While non-Federal entities that receive Federal
funding, assistance, or permits, or that otherwise require approval or
authorization from a Federal agency for an action, may be indirectly
impacted by the designation of critical habitat, the legally binding
duty to avoid destruction or adverse modification of critical habitat
rests squarely on the Federal agency. Furthermore, to the extent that
non-Federal entities are indirectly impacted because they receive
Federal assistance or participate in a voluntary Federal aid program,
the Unfunded Mandates Reform Act would not apply; nor would listing
these species or designating critical habitat shift the costs of the
large entitlement programs listed above on to State governments.
(b) We do not believe that this rule would significantly or
uniquely affect small governments because the vermilion darter
primarily occurs in privately owned stream channels. As such, a Small
Government Agency Plan is not required. We will, however, further
evaluate this issue as we conduct our economic analysis and revise this
assessment if appropriate.
Takings--Executive Order 12630
In accordance with E. O. 12630 (``Government Actions and
Interference with Constitutionally Protected Private Property
Rights''), we have analyzed the potential takings implications of
designating critical habitat for the vermilion darter in a takings
implications assessment. The takings implications assessment concludes
that this designation of critical habitat for the vermilion darter does
not pose significant takings implications.
Federalism--Executive Order 13132
In accordance with E. O. 13132 (Federalism), the rule does not have
significant Federalism effects. A Federalism assessment is not
required. In keeping with Department of the Interior and Department of
Commerce policy, we requested information from, and coordinated
development of this proposed critical habitat designation with
appropriate State resource agencies in Alabama. The critical habitat
designation may have some benefit to this government in that the areas
that contain the features essential to the conservation of the species
are more clearly defined, and the PCEs of the habitat necessary to the
conservation of the species are specifically identified. While making
this definition and identification does not alter where and what
federally sponsored activities may occur, it may assist these local
governments in long-range planning (rather than waiting for case-by-
case section 7 consultations to occur).
Where State and local governments require approval or authorization
from a Federal agency for actions that may affect critical habitat,
consultation under section 7(a)(2) of the Act would be required. While
non-Federal entities that receive Federal funding, assistance, or
permits, or that otherwise require approval or authorization from a
Federal agency for an action, may be indirectly impacted by the
designation of critical habitat, the legally binding duty to avoid
destruction or adverse modification of critical habitat rests squarely
on the Federal agency.
Civil Justice Reform--Executive Order 12988
In accordance with E.O. 12988 (Civil Justice Reform), the Office of
the Solicitor has determined that the rule does not unduly burden the
judicial system and meets the requirements of sections 3(a) and 3(b)(2)
of the Order. We have proposed designating critical habitat in
accordance with the provisions of the Act. This proposed rule uses
standard property descriptions and identifies the physical and
biological features within the designated areas to assist the public in
understanding the habitat needs of the vermilion darter.
Paperwork Reduction Act of 1995
This rule does not contain any new collections of information that
require approval by OMB under the Paperwork Reduction Act of 1995 (44
U.S.C. 3501 et seq.). This rule will not impose recordkeeping or
reporting requirements on State or local governments, individuals,
businesses, or organizations. An agency may not conduct or sponsor, and
a person is not required to respond to, a collection of information
unless it displays a currently valid OMB control number.
National Environmental Policy Act (NEPA)
It is our position that, outside the jurisdiction of the U.S. Court
of Appeals for the Tenth Circuit, we do not need to prepare
environmental analyses as defined by NEPA (42 U.S.C. 4321 et seq.) in
connection with designating critical habitat under the Act. We
published a notice outlining our reasons for this determination in the
Federal Register on October 25, 1983 (48 FR 49244). This position was
upheld by the U.S. Court of Appeals for the Ninth Circuit (Douglas
County v. Babbitt, 48 F.3d 1495 (9th Cir. 1995), cert. denied 516 U.S.
1042 (1996)).

[[Page 63379]]

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:
(a) Be logically organized;
(b) Use the active voice to address readers directly;
(c) Use clear language rather than jargon;
(d) Be divided into short sections and sentences; and
(e) 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 the ADDRESSES section. 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.
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), E. O. 13175, and the Department of
Interior's manual at 512 DM 2, we readily acknowledge our
responsibility to communicate meaningfully with recognized Federal
Tribes on a government-to-government basis. In accordance with
Secretarial Order 3206 of June 5, 1997 ``American Indian Tribal Rights,
Federal-Tribal Trust Responsibilities, and the Endangered Species
Act'', we readily acknowledge our responsibilities to work directly
with Tribes in developing programs for healthy ecosystems, to
acknowledge that tribal lands are not subject to the same controls as
Federal public lands, to remain sensitive to Indian culture, and to
make information available to Tribes.
We have determined that there are no tribal lands occupied at the
time of listing that contain the features essential for the
conservation and no tribal lands that are unoccupied areas that are
essential for the conservation of the vermilion darter. Therefore, we
have not proposed designation of critical habitat for the vermilion
darter on Tribal lands.
Energy Supply, Distribution, or Use--Executive Order 13211
On May 18, 2001, the President issued an Executive Order (E.O.
13211; Actions Concerning Regulations That Significantly Affect Energy
Supply, Distribution, or Use) on regulations that significantly affect
energy supply, distribution, and use. E.O. 13211 requires agencies to
prepare Statements of Energy Effects when undertaking certain actions.
We do not expect this rule to significantly affect energy supplies,
distribution, or use. Although two of the proposed units are below
hydropower reservoirs, current and proposed operating regimes have been
deemed adequate for the species, and therefore their operations will
not be affected by the proposed designation of critical habitat. All
other proposed units are remote from energy supply, distribution, or
use activities. Therefore, this action is not a significant energy
action, and no Statement of Energy Effects is required. However, we
will further evaluate this issue as we conduct our economic analysis,
and review and revise this assessment as warranted.

References Cited

A complete list of all references cited in this rulemaking is
available on the Internet at http://www.regulations.gov and upon
request from the Field Supervisor, Mississippi Fish and Wildlife Office
(see FOR FURTHER INFORMATION CONTACT section).

Author(s)

The primary authors of this package are staff members of the
Mississippi Fish and Wildlife Office.

List of Subjects in 50 CFR Part 17

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

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--[AMENDED]

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

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

2.In Sec. 17.11(h), revise the entry for ``Darter, vermilion''
under FISHES in the List of Endangered and Threatened Wildlife to read
as follows:

Sec. 17.11 Endangered and threatened wildlife.

* * * * *
(h) * * *

--------------------------------------------------------------------------------------------------------------------------------------------------------
Species Vertebrate
------------------------------------------------ population where Critical
Historic range endangered or Status When listed habitat Special rules
Common name Scientific name threatened
--------------------------------------------------------------------------------------------------------------------------------------------------------
* * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
FISHES
--------------------------------------------------------------------------------------------------------------------------------------------------------
* * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
Darter, vermilion Etheostoma U.S.A. (AL) Entire E 715 17.95(e) NA
chermocki
--------------------------------------------------------------------------------------------------------------------------------------------------------
...............
--------------------------------------------------------------------------------------------------------------------------------------------------------

* * * * *
3. In Sec. 17.95(e), add an entry for ``Vermilion Darter
(Etheostoma chermocki),'' in the same alphabetical order as the species
appears in the table at Sec. 17.11(h), to read as follows:

Sec. 17.95 Critical habitat--fish and wildlife

* * * * *
(e) Fishes
* * * * *
Vermilion Darter (Etheostoma chermocki)
(1) The critical habitat units are depicted for Jefferson County,
Alabama, on the map below.

[[Page 63380]]

(2) The primary constituent elements (PCEs) of critical habitat for
the vermilion darter are the habitat components that provide:
(i) Geomorphically stable stream bottoms and banks (stable
horizontal dimension and vertical profile) in order to maintain bottom
features (riffles, runs, and pools) and transition zones between bottom
features, to continue appropriate habitat to maintain essential
riffles, runs, and pools, to promote connectivity between spawning,
foraging, and resting sites, and to maintain gene flow throughout the
population.
(ii) Instream flow regime with an average daily discharge over 50
cubic feet per second inclusive of both surface runoff and groundwater
sources (springs and seepages).
(iii) Water quality with temperature not exceeding 26.7 [deg]C (80
[deg]F), dissolved oxygen 6.0 milligrams or greater per liter,
turbidity of an average monthly reading of 10 NTU and 15mg/l
(Nephelometric Turbidity Units; units used to measure sediment
discharge; Total Suspended Solids measured as mg/l of sediment in
water) or less; and a specific conductance (ability of water to conduct
an electric current, based on dissolved solids in the water) of no
greater than 225 micro Siemens per centimeter at 26.7 [deg]C (80
[deg]F).
(iv) Bottom substrates consisting of fine gravel with coarse
gravel or cobble, or bedrock with sand and gravel, with low amounts of
fine sand and sediments within the interstitial spaces of the
substrates.
(3) Critical habitat does not include manmade structures existing
on the effective date of this rule and not containing one or more of
the PCEs, such as buildings, bridges, aqueducts, airports, and roads,
and the land on which such structures are located.
(4) Critical habitat unit map. The map was developed from USGS
7.5' quadrangles. Critical habitat unit upstream and downstream limits
were then identified by longitude and latitude using decimal degrees.
(5) Note: Index map of critical habitat units for the vermilion
darter follows:
BILLING CODE 4310-55-S

[[Page 63381]]

[GRAPHIC] [TIFF OMITTED] TP03DE09.080

(6) Unit 1: Turkey Creek, Jefferson County, Alabama.
(i) Unit 1 includes the channel in Turkey Creek from Shadow Lake
Dam (086[deg] 38' 22.50'' W long., 033[deg] 40' 44.78'' N lat.)
downstream to the Section 13/14 (T15S, R2W) line (086[deg] 42' 31.81''
W long., 033[deg] 43' 23.61'' N lat.).
(ii) Map of Unit 1 is provided at paragraph (10)(ii) of this
entry.

[[Page 63382]]

(7) Unit 2: Dry Branch, Jefferson County, Alabama.
(i) Unit 2 includes the channel in Dry Branch from the bridge at
Glenbrook Road (086[deg] 41' 6.05'' W long., 033[deg] 41' 10.65'' N
lat) downstream to the confluence with Beaver Creek (86[deg] 41'
17.39'' W long., 033[deg] 41' 26.94'' N lat.).
(ii) Map of Unit 2 is provided at paragraph (10)(ii) of this
entry.
(8) Unit 3: Beaver Creek, Jefferson County, Alabama.
(i) Unit 3 includes the channel of Beaver Creek from the
confluence with the unnamed tributary to Beaver Creek (086[deg] 41'
17.54'' W long., 033[deg] 41' 26.94'' N lat.) downstream to its
confluence with Turkey Creek (086[deg] 41' 9.16'' W long., 033[deg] 41'
55.86 N lat.).
(ii) Map of Unit 3 is provided at paragraph (10)(ii) of this
entry.
(9) Unit 4: Dry Creek, Jefferson County, Alabama.
(i) Unit 4 includes the channel of Dry Creek, from Innsbrook Road
(086[deg] 39' 53.78'' W long., 033[deg] 42' 19.11'' N lat) downstream
to the confluence with Turkey Creek (086[deg] 40' 3.72'' W long.,
033[deg] 42' 1.39'' N lat).
(ii) Map of Unit 4 is provided at paragraph (10)(ii) of this
entry.
(10) Unit 5: Unnamed Tributary to Beaver Creek, Jefferson County,
Alabama.
(i) Unit 5 includes the channel of the Unnamed Tributary from its
confluence with Beaver Creek (086[deg] 41' 17.54'' W long., 033[deg]
41' 26.94'' N lat.), upstream to the 12/11 (T16S, R2W) section line
(086[deg] 42' 31.70'' W long., 033[deg] 39' 54.15'' N lat.)
(ii) Map of Units 1, 2, 3, 4, and 5 (Map 2) follows:

[[Page 63383]]

[GRAPHIC] [TIFF OMITTED] TP03DE09.081

[[Page 63384]]

* * * * *

Dated: November 16, 2009.
Tom Strickland,
Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. E9-28855 Filed 12-2-09; 8:45 am]

BILLING CODE 4310-55-C