[Federal Register: June 24, 2010 (Volume 75, Number 121)]
[Proposed Rules]
[Page 36035-36057]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr24jn10-19]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
[Docket No. FWS-R4-ES-2010-0027]
[MO 92210-0-0008-B2]
RIN 1018-AV85
Endangered and Threatened Wildlife and Plants; Listing the
Cumberland Darter, Rush Darter, Yellowcheek Darter, Chucky Madtom, and
Laurel Dace as Endangered Throughout Their Ranges
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Proposed rule; request for public comments.
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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), propose to
list the Cumberland darter (Etheostoma susanae), rush darter
(Etheostoma phytophilum), yellowcheek darter (Etheostoma moorei),
chucky madtom (Noturus crypticus), and laurel dace (Phoxinus saylori)
as endangered under the Endangered Species Act of 1973, as amended
(Act). If we finalize this rule as proposed, it would extend the Act's
protections to these species throughout their ranges, including,
Cumberland darter in Kentucky and Tennessee, rush darter in Alabama,
yellowcheek darter in Arkansas, and chucky madtom and laurel dace in
Tennessee. We have determined that critical habitat for these species
is prudent, but not determinable at this time.
DATES: We will consider comments we receive on or before August 23,
2010. We must receive requests for public hearings, in writing, at the
address shown in the ADDRESSES section by August 9, 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:
[Docket No. FWS-R4-ES-2010-0027]; 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 Request for Public
Comments section below for more information).
FOR FURTHER INFORMATION CONTACT: For information regarding the
Cumberland darter, contact Lee Andrews, Field Supervisor, U.S. Fish and
Wildlife Service, Kentucky Ecological Services Field Office, J.C. Watts
Federal Building, 330 W. Broadway Rm. 265, Frankfort, KY 40601;
telephone 502-695-0468; facsimile 502-695-1024. For information
regarding the rush darter, contact Stephen Ricks, Field Supervisor,
U.S. Fish and Wildlife Service, Mississippi Ecological Services Field
Office, 6578 Dogwood View Parkway, Suite A, Jackson, MI 39213;
telephone 601-965-4900; facsimile 601-965-4340 or Bill Pearson, Field
Supervisor, U.S. Fish and Wildlife Service, Alabama Ecological Services
Field Office, 1208-B Main Street, Daphne AL 36526; telephone 251-441-
5181; fax 251-441-6222. For information regarding the yellowcheek
darter, contact Mark Sattelberg, Field Supervisor, U.S. Fish and
Wildlife Service, Arkansas Ecological Services Field Office, 110 South
Amity Road, Suite 300, Conway, AR 72032; telephone 501-513-4470;
facsimile 501-513-4480. For information regarding the chucky madtom or
laurel dace, contact Mary Jennings, Field Supervisor, U.S. Fish and
Wildlife Service, Tennessee Ecological Services Field Office, 446 Neal
Street, Cookeville, TN 38501; telephone 931-528-6481; facsimile 931-
528-7075. If you use a telecommunications device for the deaf (TDD),
call the Federal Information Relay Service (FIRS) at 800-877-8339.
SUPPLEMENTARY INFORMATION:
Request for 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
as accurate and effective as possible. Therefore, we request comments
or information from the public, other concerned governmental agencies,
the scientific community, industry, or any other interested party
concerning this proposed rule. We particularly seek comments
concerning:
(1) Biological, commercial trade, or other relevant data concerning
any threats (or lack thereof) to these species and regulations that may
be addressing those threats;
(2) Additional information concerning the ranges, distribution, and
population size of these species, including the locations of any
additional populations of the species;
(3) Any additional information on the biological or ecological
requirements of the species;
(4) Current or planned activities in the areas occupied by the
species and possible impacts of these activities on the species and
their habitat;
(5) Potential effects of climate change on the species and their
habitats;
(6) The reasons why areas should or should not be designated as
critical habitat as provided by section 4 of the Act (16 U.S.C. 1531,
et seq.), including whether the benefits of designation would outweigh
threats to the species that designation could cause (e.g., exacerbation
of existing threats, such as overcollection), such that the designation
of critical habitat is prudent; and .
(7) Specific information on:
What areas contain physical and biological features essential
for the conservation of the species;
What areas are essential to the conservation of the species;
and
Special management considerations or protection that proposed
critical habitat may require.
Please note that submissions merely stating support for or
opposition to the action under consideration without providing
supporting information, although noted, will not be considered in
making a determination, as section 4(b)(1)(A) of the Act directs that
determinations as to whether any species is a threatened or endangered
species mush be made ``solely on the basis of the best scientific and
commercial data available.''
You may submit your comments and materials concerning this proposed
rule 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 you provide
personal identifying information in your hard copy comments, such as
your street address, phone number, or e-mail address, you may request
at the top of your document that we withhold this information from
public review. However, we cannot guarantee that we will be able to do
so. We will post all hardcopy submissions on http://
www.regulations.gov. Please include sufficient information with your
comments to allow us to verify any scientific or commercial information
you include.
[[Page 36036]]
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, Tennessee Ecological Services Field Office (see FOR
FURTHER INFORMATION CONTACT section).
Background
Species Information
Cumberland darter
The Cumberland darter, Etheostoma susanae (Jordan and Swain), is a
medium-sized member of the fish tribe Etheostomatini (Family Percidae)
that reaches over 5.5 centimeters (cm) (2 inches (in)) standard length
(SL) (SL, length from tip of snout to start of the caudal peduncle
(slender region extending from behind the anal fin to the base of the
caudal fin)) (Etnier and Starnes 1993, pp. 512). The species has a
straw-yellow background body color with brown markings that form six
evenly spaced dorsal (back) saddles and a series of X-, C-, or W-shaped
markings on its sides (Etnier and Starnes 1993, p. 510). During
spawning season, the overall body color of breeding males darkens, and
the side markings become obscure or appear as a series of blotches
(Etnier and Starnes 1993, p. 510).
The Cumberland darter was first reported as Boleosoma susanae by
Jordan and Swain (1883, pp. 249-250) from tributaries of the Clear Fork
of the Cumberland River, Kentucky. Subsequent studies by Kuhne (1939,
p. 92) and Cole (1967, p. 29) formerly recognized the taxon as a
subspecies (Etheostoma nigrum susanae) of E. n. nigrum (Johnny darter).
Starnes and Starnes (1979, p. 427) clarified the subspecific status of
the Cumberland darter, differentiating it from the Johnny darter by
several diagnostic characteristics. Strange (1994, p. 14; 1998, p. 101)
recommended that E. n. susanae be elevated to specific status based on
the results of mitochondrial DNA analyses of E. n. susanae and E. n.
nigrum. The Cumberland darter was recognized as a valid species, E.
susanae (Cumberland darter), by Nelson et al. (2004, p. 233) based on
the work of Strange (1994, p. 14; 1998, p. 101) and a personal
communication with W. C. Starnes (May 2000), who suggested the common
name.
The Cumberland darter inhabits pools or shallow runs of low to
moderate gradient sections of streams with stable sand, silt, or sand-
covered bedrock substrates (O'Bara 1988, pp. 10-11; O'Bara 1991, p. 10;
Thomas 2007, p. 4). Thomas (2007, p. 4) did not encounter the species
in high-gradient sections of streams or areas dominated by cobble or
boulder substrates. Thomas (2007, p. 4) reported that streams inhabited
by Cumberland darters were second to fourth order, with widths ranging
from 4 to 9 meters (m) (11 to 30 feet (ft)) and depths ranging from 20
to 76 cm (8 to 30 in).
Little is known regarding the reproductive habits of the Cumberland
darter. Thomas (2007, p. 4) reported the collection of males in
breeding condition in April and May, with water temperatures ranging
from 15 to 18\o\ Celsius (C) (59 to 64\o\ Fahrenheit (F)). Extensive
searches by Thomas (2007, p. 4) produced no evidence of nests or eggs
at these sites. Species commonly associated with the Cumberland darter
during surveys by Thomas (2007, pp. 4-5) were creek chub (Semotilus
atromaculatus), northern hogsucker (Hypentelium nigricans), stripetail
darter (Etheostoma kennicotti), and Cumberland arrow darter (Etheostoma
sagitta sagitta). Thomas (2007, p. 5) collected individuals of the
Federally threatened blackside dace, Phoxinus cumberlandensis, from
three streams that also supported Cumberland darters.
The Cumberland darter is endemic to the upper Cumberland River
system above Cumberland Falls in Kentucky and Tennessee (O'Bara 1988,
p. 1; O'Bara 1991, p. 9; Etnier and Starnes 1993, p. 511). The earliest
known collections of the species were made by Jordan and Swain (1883,
pp. 249-250), who recorded it as abundant in tributaries of Clear Fork
of the Cumberland River, Kentucky. The species was later reported from
Gum Fork, Scott County, Tennessee, by Shoup and Peyton (1940, p. 11),
and seven additional tributaries of the Cumberland River by Burr and
Warren (1986, p. 310). More exhaustive surveys by O'Bara (1988, p. 6;
1991, pp. 9-10) and Laudermilk and Cicerello (1998; pp. 83-233, 303-
408) determined that the Cumberland darter was restricted to short
reaches of 20 small streams (23 sites) in the upper Cumberland River
system in Whitley and McCreary Counties, Kentucky, and Campbell and
Scott Counties, Tennessee. These studies suggested the extirpation of
the species from Little Wolf Creek, Whitley County, Kentucky, and Gum
Fork, Scott County, Tennessee. Preliminary reports of disjunct
populations in the Poor Fork Cumberland River and Martins Fork in
Letcher and Harlan Counties, Kentucky (Starnes and Starnes 1979, p.
427; O'Bara 1988, p. 6; O'Bara 1991, pp. 9-10), were evaluated
genetically and determined to be the Johnny darter (Strange 1998, p.
101). Thomas (2007, p. 3) provided the most recent information on
status and distribution of the species through completion of a range-
wide status assessment in the upper Cumberland River drainage in
Kentucky. Between June 2005 and April 2007, a total of 47 sites were
sampled qualitatively in the upper Cumberland River drainage. All
Kentucky sites with historic records were surveyed (20 sites), as well
as 27 others having potentially suitable habitat. Surveys by Thomas
(2007, p. 3) produced a total of 51 specimens from 13 localities (12
streams). Only one of the localities represented a new occurrence
record for the species.
Currently, the Cumberland darter is known from 14 localities in a
total of 12 streams in Kentucky (McCreary and Whitley Counties) and
Tennessee (Campbell and Scott Counties). All 14 extant occurrences of
the Cumberland darter are restricted to short stream reaches, with the
majority believed to be restricted to less than 1.6 kilometers (km) (1
mile (mi)) of stream (O'Bara 1991, pp. 9-10; Thomas 2007, p. 3). These
occurrences are thought to form six population clusters (Bunches Creek,
Indian Creek, Marsh Creek, Jellico Creek, Clear Fork, and Youngs
Creek), which are geographically separated from one another by an
average distance of 30.5 stream km (19 mi) (O'Bara 1988, p. 12; O'Bara
1991, p. 10; Thomas 2007, p. 3). Based on collection efforts by O'Bara
(1991, pp. 9-10), Laudermilk and Cicerello (1998, pp. 83-233, 303-408),
and Thomas (2007, p. 3), the species appears to be extirpated from 11
historic collection sites and a total of 9 streams: Cumberland River
mainstem, near mouth of Bunches Creek and Cumberland Falls (Whitley
County); Sanders Creek (Whitley County); Brier Creek (Whitley County);
Kilburn Fork of Indian Creek (McCreary County); Bridge Fork (McCreary
County); Marsh Creek, near mouth of Big Branch and Caddell Branch
(McCreary County); Cal Creek (McCreary County), Little Wolf Creek
(Whitley County); and Gum Fork (Scott County). No population estimates
or status trends are available for the Cumberland darter; however,
survey results by Thomas (2007, p. 3) suggest that the species is
uncommon or occurs in low densities across its range (Thomas (2007, p.
3).
The Cumberland darter is ranked by the Kentucky State Nature
Preserves Commission (2009, p. 38) as a G1G2S1 species: critically
imperiled or imperiled globally and critically imperiled in Kentucky.
The Kentucky Department of Fish and Wildlife Resources State Wildlife
Action Plan
[[Page 36037]]
identified the Cumberland darter as a species of Greatest Conservation
Need (KDFWR 2005, p. 2.2.2). The plan identified several top
conservation actions for the Cumberland darter and other species in its
Aquatic Guild (Upland Headwater Streams in Pools): acquisition or
conservation easements for critical habitat, development of financial
incentives to protect riparian corridors, development and
implementation of best management practices, and restoration of
degraded habitats through various State and Federal programs.
Rush Darter
The rush darter (Etheostoma phytophilum), a medium-sized darter in
the subgenus Fuscatelum, was described by Bart and Taylor in 1999 (pp.
27-33). The average size of the rush darter is 5 cm (2 in) SL (Bart and
Taylor 1999, p. 28; Johnston and Kleiner 2001, p. 3). The rush darter
is closely related to the goldstripe darter (Etheostoma parvipinne), a
drab-colored species with a thin golden stripe along the lateral line
(canal along the side of a fish with sensory capabilities) that is
surrounded by heavily mottled or stippled sides (Shaw 1996, p. 85).
However, the distinct golden stripe characteristic of goldstripe
darters is not well developed in rush darters (Bart and Taylor 1999, p.
29). Also, the brown pigment on the sides of the rush darter is usually
not as intense as in the goldstripe darter. Other characteristics of
the rush darter are described in Bart and Taylor (1999, p. 28).
Rush darters have been collected from various habitats (Stiles and
Mills 2008, pp. 1-4; Bart 2002, p. 1; Johnston and Kleiner 2001, pp. 3-
4; Stiles and Blanchard 2001, pp. 1-4; Bart and Taylor 1999, p. 32),
including root masses of emergent vegetation along the margins of
spring-fed streams in very shallow, clear, cool, and flowing water; and
from both small clumps and dense stands of bur reed (Sparganium sp.),
coontail (Ceratophyllum sp.), watercress (Nasturtium officinale), and
rush (Juncus sp.) in streams with substrates of silt, sand, sand and
silt, muck and sand or some gravel with sand, and bedrock. Rush darters
appear to prefer springs and spring-fed reaches of relatively low-
gradient small streams which are generally influenced by springs
(Stiles and Mills 2008, pp. 1-4; Fluker et al. 2007, p. 1; Bart 2002,
p. 1; Johnston and Kleiner 2001, pp. 3-4; Stiles and Blanchard 2001,
pp. 1-4; Bart and Taylor 1999, p. 32). Rush darters have also been
collected in wetland pools (Stiles and Mills 2008; pp. 2-3). Water
depth at collection sites ranged from 3.0 cm to 0.5 m ( 0.1 ft to 1.6
ft), with moderate water velocity in riffles and no flow or low flow in
pools. Rush darters have not been found in higher gradient streams with
bedrock substrates and sparse vegetation (Stiles and Mills 2008, pp. 1-
4; Bart 2002, p. 1; Johnston and Kleiner 2001, pp. 3-4; Stiles and
Blanchard 2001, pp. 1-4; Bart and Taylor 1999, p. 32).
Stiles and Mills (2008, p. 2) found gravid rush darter females in
February and fry (newly hatched larval fish) in late April from a
wetland pool in the Mill Creek watershed (Winston County, Alabama).
These pools act as nursery areas for the fry (Stiles and Mills 2008, p.
5). Even though the life history of the rush darter is poorly known, it
is likely similar to the closely related goldstripe darter. Spawning of
the goldstripe darter in Alabama occurs from mid March through June
(Mettee et al. 1996, p. 655). Goldstripe larvae reared in captivity
avoid downstream drift (Conservation Fisheries, Inc., 2005, p. 7). This
behavior alteration may inhibit dispersal capabilities between isolated
suitable habitat patches, and may reduce the success of captively bred
individuals in the wild. Preferred food items for the goldstripe darter
include midges, mayflies, blackflies, beetles, and microcrustaceans
(Mettee et al. 1996, p. 655). The life span of the goldstripe darter is
estimated to be 2 to 3 years.
The rush darter currently has a restricted distribution (Johnston
and Kleiner 2001, p. 1). All rush darter populations are located above
the Fall Line (the inland boundary of the Coastal Plain physiographic
region) and other ``highland regions'' where topography and elevation
changes are observed presenting a barrier for fish movement (Boshung
and Mayden 2004, p. 18)) in the Tombigbee-Black Warrior drainage
(Warren et al. 2000, pp. 9, 10, 24), in portions of the Appalachian
Plateau, and Valley and Ridge physiographic provinces of Alabama. The
closely related goldstripe darter in Alabama occurs essentially below
the Fall Line in all major systems except the Coosa system (Boshung and
Mayden 2004, p. 550). Reports of goldstripe darters from the 1960s and
1970s in Winston and Jefferson Counties, Alabama (Caldwell 1965, pp.
13-14; Barclay 1971, p. 38; Dycus and Howell 1974, pp. 21-24; Mettee et
al. 1989, pp. 13, 61, 64), which are above the Fall Line, were made
prior to the description of the rush darter, but are now considered to
be rush darters (Kuhajda 2008, pers. comm.).
Historically, rush darters have been found in three distinct
watersheds in Alabama: Doe Branch, Wildcat Branch, and Mill Creek of
the Clear Creek drainage in Winston County; an unnamed spring run of
Beaver Creek and from Penny Springs of the Turkey Creek drainage in
Jefferson County; and Cove Spring (Little Cove Creek system) and
Bristow Creek of the Locust Fork drainage in Etowah County.
Currently, the three rush darter populations occur in the same
watersheds but in a more limited distribution. One population is
located in Wildcat Branch and Mill Creek in the Clear Creek drainage in
Winston County (Johnston and Kleiner 2001, p. 4); the second is located
in an unnamed spring run to Beaver Creek and in Penny Springs in the
Turkey Creek drainage in Jefferson County (Stiles and Blanchard 2001,
p. 2); and the third is in the Little Cove Creek drainage population.
The Little Cove Creek population in Etowah County was known from only a
single specimen collected in Cove Spring in 1975 (Bart and Taylor 1999,
p. 28) and one specimen from Bristow Creek collected in 1997 (Bart
2002, p. 7). Kuhajda (2008, pers. comm.) discovered a single specimen
of the species in 2005, at the confluence of the Cove Spring run where
it drains into an unnamed swamp.
Rush darter populations are separated from each other
geographically, and individual rush darters are only sporadically
collected at a particular site within their range. Where it occurs, the
rush darter is apparently an uncommon species that is usually collected
in low numbers (Bart and Taylor 1999, p. 32). Since 1969, approximately
100 rush darters have been collected or captured and released within
the species' range (compiled from Bart and Taylor 1999, pp. 31-32;
Johnston and Kleiner 2001, pp. 2-4; Stiles and Blanchard 2001, pp. 1-4;
Johnston 2003, pp.1-3; P. Rakes 2010, pers.comm.); however, there are
no population estimates at this time.
Cumulatively, the rush darter is only known from localized
collection sites within approximately 14 km (9 mi ) of streams in the
Clear Creek, Little Cove and Bristow Creek, and Turkey Creek drainages
in Winston, Etowah, and Jefferson Counties, respectively. Currently,
about 3 km (2 mi) of stream, or about 22 percent of the rush darter's
known range, is not occupied, which may be due to non-point source
pollution (e.g., sedimentation and chemicals) from agriculture,
urbanization, and road construction and maintenance.
Within the Clear Creek drainage, the rush darter has been collected
in Wildcat Branch, Mill Creek, and Doe Creek, which represents about 13
km (8 mi) of stream or about 94 percent of the species' total
cumulative range. Recent
[[Page 36038]]
surveys (Stiles and Mills 2008, pp. 1-4; Johnston and Kleiner 2001, p.
3) have documented the absence of the rush darter in Doe Creek,
possibly indicating a reduction of the species' known range within the
Clear Creek drainage by about 3 km (2 mi) of stream or 22 percent. Rush
darters were collected in October 2005 and again in June 2008 and 2009
in the Little Cove Creek drainage (Cove Spring run), a first since
1975, despite sporadic surveys over the last 30 years. This rediscovery
of the species confirms the continued existence of the species in
Etowah County and Cove Spring. However, the Little Cove Creek drainage
constitutes an increase of only 0.05 km (0.02 mi) of occupied stream
habitat or a 1.6 percent addition to the total range of the species. No
collections of the species have occurred at Bristow Creek since 1997.
Bristow Creek has since been channelized (straightened and deepened to
increase water velocity). In the Turkey Creek drainage, rush darters
have been collected sporadically within Penny Springs and at the type
locality for the species (an unnamed spring run in Jefferson County,
Alabama) (Bart and Taylor 1999, pp. 28, 33). This area contains about
0.5 km (0.3 mi) of occupied stream habitat or approximately 4 percent
of the rush darter's total range.
The rush darter is ranked by the Alabama Department of Conservation
and Natural Resources (2005) as a P1G1S1 species signifying its rarity
in Alabama and its status as critically imperiled globally. It is also
considered a species of Greatest Conservation Need (GCN) by the State.
The rush darter has a High Priority Conservation Actions Needed and Key
Partnership Opportunities ranking of ``CA 6,'' the highest of any fish
species listed. The plan states that the species consists of disjoint
populations and information is needed to determine genetic structuring
within the populations. Conservation Actions for the species may
require population augmentation and/or reintroduction of the species to
suitable habitats to maintain viability.
Yellowcheek Darter
The yellowcheek darter (Etheostoma moorei) is a small and
compressed fish which attains a maximum SL of about 64 mm (2.5 in), and
has a moderately sharp snout, deep body, and deep caudal peduncle
(Raney and Suttkus 1964, p. 130). The back and sides are grayish brown,
often with darker brown saddles and lateral bars. Breeding males are
brightly colored with a bright blue or brilliant turquoise breast, and
throat and light green belly, while breeding females possess orange and
red-orange spots but are not brightly colored (Robison and Buchanan
1988, pp. 427-429). First collected in 1959 from the Devils Fork Little
Red River, Cleburne County, Arkansas, this species was eventually
described by Raney and Suttkus in 1964, using 228 specimens from the
Middle, South, and Devils Forks of the Little Red River (Devils Fork,
Turkey Fork, and Beech Fork represent one stream with three different
names and are subsequently referred to in this proposed rule as
``Devils Fork''). Wood (1996, p. 305) verified the taxonomic status of
the yellowcheek darter within the subgenus Nothonotus. The yellowcheek
darter is one of only two members of the subgenus Nothonotus known to
occur west of the Mississippi River.
The yellowcheek darter inhabits high-gradient headwater tributaries
with clear water; permanent flow; moderate to strong riffles; and
gravel, rubble, and boulder substrates (Robison and Buchanan 1988, p.
429). Yellowcheek darter prey items include aquatic dipteran larvae,
stoneflies, mayflies, and caddisflies (McDaniel 1984, p. 56).
Male and female yellowcheek darters reach sexual maturity at one
year of age, and maximum life span is around five years (McDaniel 1984,
pp. 25, 76). Spawning occurs from late May through June in the swift to
moderately swift portions of riffles, often around or under the largest
substrate particles (McDaniel 1984, p. 82), although brooding females
have been found at the head of riffles in smaller gravel substrate
(Wine et al. 2000, p. 3). During non-spawning months, there is a
general movement to portions of the riffle with smaller substrate, such
as gravel or cobble, and less turbulence (Robison and Harp 1981, p. 3).
Weston and Johnson (2005, p. 24) observed that the yellowcheek darter
moved very little during a 1-year migration study. It was noted that
the yellowcheek darter appears to be a relatively non-mobile species,
with 19 of 22 recaptured darters found within 9 meters (29.5 feet) of
their original capture position after periods of several months. A
number of life history characteristics, including courtship patterns,
specific spawning behaviors, egg deposition sites, number of eggs per
nest, degree of nest protection by males, and degree of territoriality
are unknown at this time; however, researchers have suggested that the
yellowcheek darter deposit eggs on the undersides of larger rubble in
swift water (McDaniel 1984, p. 82). Wine and Blumenshine (2002, p. 10)
noted that during laboratory spawning, female yellowcheek darters bury
themselves in fine gravel/sand substrates (often behind large cobble or
boulders) with only their heads and caudal fin exposed. A male
yellowcheek darter will then position upstream of the buried female and
fertilize her eggs as she releases them in a vibrating motion. Clutch
size and nest defense behavior were not observed.
The yellowcheek darter is endemic to the Devils, Middle, South, and
Archey Forks of the Little Red River and main stem Little Red River in
Cleburne, Searcy, Stone, and Van Buren Counties, Arkansas (Robison and
Buchanan 1988, p. 429). In 1962, the construction of a dam on the
Little Red River to create Greers Ferry Reservoir impounded much of the
range of this species, including the lower reaches of Devils Fork,
Middle Fork, South Fork, and portions of the main stem Little Red
River, thus extirpating the species from these reaches. Yellowcheek
darter was also extirpated from the Little Red River downstream of
Greers Ferry Reservoir due to cold tailwater releases. The lake flooded
optimal habitat for the species, and caused the genetic isolation of
populations (McDaniel 1984, p. 1). The yellowcheek darter was known to
historically occur in portions of these streams that maintained
permanent year-round flows.
In the 1978-81 study by Robison and Harp (1981, pp. 15-16),
yellowcheek darter occurred in greatest numbers in the Middle and South
Forks of the Little Red River, with populations estimated at 36,000 and
13,500 individuals, respectively, while populations in both Devils Fork
and Archey Fork were estimated at approximately 10,000 individuals
(Robison and Harp 1981, pp. 5-11). During this study, the four forks of
the Little Red River supported an estimated yellowcheek darter
population of 60,000 individuals, and the species was considered the
most abundant riffle fish present (Robison and Harp 1981, p. 14).
Extensive sampling of the first two tributaries of the Little Red River
below Greers Ferry Dam (both named Big Creek) failed to find any
yellowcheek darters, and no darters were found in immediately adjacent
watersheds (Robison and Harp 1981, p. 5).
Two subsequent studies have failed to observe specimens of
yellowcheek darter in the Turkey Fork reach of the Devils Fork Little
Red River (Wine et al. 2000, p. 9; Wine and Blumenshine 2002, p. 11),
since four individuals were last collected by Arkansas State University
(ASU) researchers in 1999 (Mitchell et al. 2002, p. 129). They have
been observed downstream within that system in the Beech Fork reach,
where flows are more permanent. The reach
[[Page 36039]]
downstream of Raccoon Creek is influenced by inundation from Greers
Ferry Reservoir and no longer supports yellowcheek darter. The U.S.
Army Corps of Engineers channelized approximately 5.6-km (3.5 mi) of
the lower Archey and South Forks Little Red River located within the
city limits of Clinton, Arkansas, in 1985 for flood control purposes.
Yellowcheek darter has not been collected within this 5.6-km (3.5-mi)
reach since channelization. The yellowcheek darter otherwise inhabits
most of its historical range, although in greatly reduced numbers in
the Middle, South, Archey, and Devils Forks of the Little Red River.
While collecting specimens for the 1999 genetic study, ASU
researchers discovered that the yellowcheek darter was no longer the
most abundant riffle fish and was more difficult to find (Wine et al.
2000, p. 2). Because optimal habitat had been destroyed by the creation
of Greers Ferry Lake, yellowcheek darters were confined to upper stream
reaches with lower summer flow, smaller substrate particle size, and
reduced gradient. A thorough status survey conducted in 2000 found the
yellowcheek darter in three of four historic forks in greatly reduced
numbers (Wine et al. 2000, p. 9). Populations in the Middle Fork were
estimated at approximately 6,000 individuals, the South Fork at 2,300,
and the Archey Fork at 2,000. Yellowcheek darter was not collected from
the Devils Fork. Yellowcheek darter was the fifth most abundant riffle
fish rangewide, while historically it was the most abundant riffle
fish. Fish community composition was similar from 1978-1981 and 2000
studies, but the proportion of yellowcheek darter declined from
approximately 28 percent to 6 percent of the overall composition. Fish
known to co-exist with yellowcheek darter include the rainbow darter
(E. caeruleum) and greenside darter (E. blennioides), which can use
pool habitats during periods of low flow, as evidenced by the
collection of these two species from pools during electroshocking
activities. Electroshocking has not revealed yellowcheek darter in
pools, suggesting perhaps that they are unable to tolerate pool
conditions (deep, slow-moving water usually devoid of cobble
substrate). An inability to use pools during low flows would make them
much more vulnerable to seasonal fluctuations in flows that reduce
riffle habitat. As a result, researchers have suggested that
yellowcheek darter declines are more likely a species rather than
community phenomenon (Wine et al. 2000, p. 11).
Weston and Johnson (2005, p. 22) estimated yellowcheek darter
populations within the Middle Fork to be between 15,000 and 40,000
individuals, and between 13,000 and 17,000 individuals in the South
Fork. Such increases since the status survey done in 2000 would
indicate remarkable adaptability to changing environmental conditions.
However, it should be noted that estimates were based upon mark/
recapture estimates using the Jolly-Seber method which requires high
numbers of recaptured specimens for accurate estimations. Recaptures
were extremely low during that study; therefore, population estimates
were highly variable and confidence in the resulting estimates is low.
The yellowcheek darter is ranked by the Arkansas Natural Heritage
Commission (ANHC) (2007, pp. 2-118) as an S1G1 species: extremely rare
in Arkansas, and critically imperiled globally. The Arkansas Game and
Fish Commission's Arkansas Wildlife Action Plan assigns the yellowcheek
darter a score of 100 out of 100, representing a critically imperiled
species with declining populations (AGFC 2005, pp. 452-454).
Chucky Madtom
The chucky madtom (Noturus crypticus) is a small catfish, with the
largest specimen measuring 6.47 cm (2.55 in) SL (Burr et al. 2005, p.
795). Burr et al. (2005) described the chucky madtom, confirming
previous analyses (Burr and Eisenhour 1994), which indicated that the
chucky madtom is a unique species, a member of the Rabida subgenus
(i.e., the ``mottled'' or ``saddled'' madtoms), and a member of the
Noturus elegans species complex (i.e., N. elegans, N. albater, and N.
trautmani) ascribed by Taylor (1969 in Grady and LeGrande 1992). A
robust madtom, the chucky madtom body is wide at the pectoral fin
origins, greater than 23 percent of the SL. The dorsum (back) contains
three dark, nearly black blotches ending abruptly above the lateral
midline of the body, with a moderately contrasting, oval, pale saddle
anterior to each blotch (Burr et al. 2005, p. 795).
The chucky madtom is a rare catfish known from only 15 specimens
collected from two Tennessee streams. A lone individual was collected
in 1940 from Dunn Creek (a Little Pigeon River tributary) in Sevier
County, and 14 specimens have been encountered since 1991 in Little
Chucky Creek (a Nolichucky River tributary) in Greene County. Only 3
chucky madtom individuals have been encountered since 2000, 1 in 2000
(Lang et al. 2001, p. 2) and 2 in 2004 (Conservation Fisheries, Inc.
2008, unpublished data), despite surveys that have been conducted in
both historic localities at least twice a year since 2000 (Rakes and
Shute 2004 pp. 2-3; Weber and Layzer 2007, p. 4 Conservation Fisheries,
Inc. 2008, unpublished data). In addition, several streams in the
Nolichucky, Holston, and French Broad River watersheds of the upper
Tennessee River basin, which are similar in size and character to
Little Chucky Creek, have been surveyed with no success (Burr and
Eisenhour 1994 pp. 1-2; Shute et al. 1997 p. 5; Lang et al. 2001, pp.
2-3; Rakes and Shute 2004 p.1). Conservation Fisheries, Inc., did not
find chucky madtoms in 2007 after attempting new sampling techniques
(e.g., PVC ``jug'' traps) (Conservation Fisheries, Inc. 2008,
unpublished data).
Originally, museum specimens collected from the Roaring River
(Cumberland River drainage) and from the Paint Rock River system in
Alabama (a Tennessee River tributary well downstream of the Nolichucky
and Little Pigeon River sites) were first identified and catalogued as
Noturus elegans and thought to be chucky madtoms. The Roaring River
specimens are now considered to be a member of the N. elegans group,
but have not been assigned to a species. While the specimens from the
Paint Rock River system share typical anal ray counts with the chucky
madtom, they lack the distinctive cheek characteristics, differ in
pelvic ray counts, and are intermediately shaped between the chucky and
saddled madtoms, Noturus fasciatus, with respect to body width as a
proportion of SL (Burr et al. 2005, p. 796). Thus, the Little Chucky
and Dunn Creek forms are the only forms that are recognized as chucky
madtoms.
All of the specimens collected in Little Chucky Creek have been
found in stream runs with slow to moderate current over pea gravel,
cobble, or slab-rock substrates (Burr and Eisenhour 1994, p. 2).
Habitat of these types is sparse in Little Chucky Creek, and the stream
affords little loose, rocky cover suitable for madtoms (Shute et al.
1997, p. 8). It is notable that intact riparian buffers are present in
the locations where chucky madtoms have been found (Shute et al. 1997,
p. 9).
No studies to determine the life history and behavior of this
species have been conducted. While nothing is known specifically about
chucky madtom reproductive biology, recruitment, growth and longevity,
food habits, or mobility, available
[[Page 36040]]
information for other similar members of the Noturus group are known.
N. hildebrandi may reach sexual maturity at one or more years of age
(i.e., during their second summer) (Mayden and Walsh 1984, p. 351).
Only the largest females of N. albater were found to be sexually
mature, and males were found to be sexually mature primarily within the
second age class (Mayden et al. 1980, p. 339). Though, a single large
male of the first age class showed evidence of sexual maturity (Mayden
et al. 1980, p. 339). The breeding season in N. hildebrandi and N.
baileyi was primarily during June through July, though development of
breeding condition was initiated as early as April in N. hildebrandi
and May in N. baileyi (Mayden and Walsh 1984, p. 353; Dinkins and Shute
1996, p. 56). Fecundity varied among the species for which data were
available; however, it should be noted that fecundity in madtoms is
generally lower in comparison to other North American freshwater fishes
(Breder and Rosen 1966 in Dinkins and Shute 1996, p. 58). Dinkins and
Shute (1996, p. 58) commented that for N. baileyi the combination of
relatively large egg size and high level of parental care given to the
fertilized eggs and larvae reduce early mortality and therefore the
need to produce a large number of young. Sexual dimorphism (two
different forms for male and female individuals) has been observed only
in a single pair of specimens of N. baileyi collected during the month
of May; the male of this pair had swollen lips and enlarged mandibulae
(lower jaw) muscles behind the eyes, and the female had a distended
abdomen (Burr et al. 2005, p. 795).
Both Noturus baileyi and N. elegans were found to nest under flat
rocks at or near the head of riffles (Dinkins and Shute 1996, p. 56;
Burr and Dimmick 1981, p. 116). Shallow pools were also used by N.
baileyi, which was observed to select rocks of larger dimension for
nesting than were used for shelter during other times of year (Dinkins
and Shute 1996, p. 56). Single madtoms were found to guard nests in N.
baileyi and N. elegans, behavior also exhibited by N. albater and N.
hildebrandi (Dinkins and Shute 1996, p. 56; Burr and Dimmick 1981, p.
116; Mayden et al. 1980, p. 337; Mayden and Walsh 1984, p. 357). Males
of these species were the nest guardians and many were found to have
empty stomachs suggesting that they do not feed during nest guarding,
which can last as long as 3 weeks.
Conservation Fisheries, Inc., had one male chucky madtom in
captivity from 2004 through 2008. However, based on information from
other members of this genus for which longevity data are available,
Noturus hildebrandi and N. baileyi, it is unlikely that chucky madtoms
can survive this long in the wild. The shorter lived of these, N.
hildebrandi reached a maximum age of 18 months, though most individuals
lived little more than 12 months, dying soon after reproducing (Mayden
and Walsh 1984, p. 351). Based on length-frequency distributions, N.
baileyi exhibited a lifespan of 2 years, with two cohorts present in a
given year (Dinkins and Shute 1996, p. 53). Collection of two age
classes together provided evidence that life expectancy exceeds 1 year
in N. stanauli (Etnier and Jenkins 1980, p. 20). Noturus albater lives
as long as 3 years (Mayden et al. 1980, p. 337).
Invertebrate taxa form the primary food base for madtoms.
Chironomid (midge), trichopteran (caddisfly), plecopteran (stonefly),
and ephemeropteran (mayfly) larvae were frequently encountered in
stomach contents of Noturus hildebrandi (Mayden and Walsh 1984, p.
339). In N. baileyi, ephemeropteran nymphs comprised 70.7 percent of
stomach contents analyzed, dipterans (flies, mosquitoes, midges, and
gnats) 2.4 percent, trichopterans 4.4 percent, and plecopterans 1.0
percent (Dinkins and Shute 1996, p. 61). Significant daytime feeding
was observed in N. baileyi.
The only data on mobility were for Noturus baileyi, which were
found underneath slabrocks in swift to moderate current during May to
early November. Habitat use shifted to shallow pools over the course of
a 1-week period, coinciding with a drop in water temperature to 7 or
8[deg] C (45 to 46 [deg] F), and persisted from early November to May
(Dinkins and Shute 1996, p. 50).
The current range of the chucky madtom is believed to be restricted
to an approximately 3-km (1.8-mi) reach of Little Chucky Creek in
Greene County, Tennessee. Because this species was also collected from
Dunn Creek, a stream that is in a different watershed and physiographic
province than Little Chucky Creek, it is likely that the historic range
of the chucky madtom encompassed a wider area in the Ridge and Valley
and the Blue Ridge physiographic provinces in Tennessee than is
demonstrated by its current distribution. A survey for the chucky
madtom in Dunn Creek in 1996 was not successful at locating the species
(Shute et al. 1997, p. 8). The Dunn Creek population may be extirpated
(Shute et al. 1997, p. 6; Burr et al. 2005, p. 797), because adequate
habitat and a diverse fish community were present at the time of the
surveys, but no chucky madtoms were found. There are no population size
estimates or status trends for the chucky madtom due to low numbers and
only sporadic collections of specimens.
The chucky madtom is ranked by the Tennessee Natural Heritage
Program (Withers 2009, p. 58) as an S1G1 species: extremely rare in
Tennessee, and critically imperiled globally. In the Tennessee
Comprehensive Wildlife Conservation Strategy (CWCS), species of
Greatest Conservation Need (GCN) were selected based on their Global
imperilment (G1-G3; critically imperiled globally--very rare or
restricted throughout their range), knowledge of declining trends or
vulnerability, or due to significance of an otherwise wide-ranging
species (TWRA 2005, p. 36). Species of GCN were further prioritized
into three different tiers to distinguish their status within the State
and to determine conservation funding availability. The CWCS designated
the chucky madtom as a Tier 1 GCN species in the State, representing
species defined as wildlife (amphibians, birds, fish, mammals,
reptiles, crustaceans, and mollusks) under Tennessee Code Annotated 70-
8-101, and excluding Federally listed species (TWRA 2005, p. 44, 49).
Tier 1 species were the primary focus of the Tennessee CWCS (TWRA 2005,
p. 44).
Laurel Dace
The laurel dace (Phoxinus saylori) has two continuous black lateral
stripes and black pigment covering the breast and underside of the head
of nuptial (breeding) males (Skelton 2001, p. 120). While the belly,
breast, and lower half of the head are typically a whitish-silvery
color, at any time of the year laurel dace may develop red coloration
below the lateral stripe that extends from the base of the pectoral
fins to the base of the caudal fin (Skelton 2001, p. 121).
Nuptial males often acquire brilliant coloration during the
breeding season, as the two lateral stripes, breast, and underside of
head turn intensely black and the entire ventral (lower/abdominal)
portion of the body, contiguous with the lower black stripe and black
breast, becomes an intense scarlet color. All of the fins acquire a
yellow color, which is most intense in the paired fins and less intense
in the dorsal, anal, and caudal fins. Females also develop most of
these colors, though of lesser intensity (Skelton 2001, p. 121).
Broadly rounded pectoral fins of males are easily discerned from the
broadly pointed fins of females at any time during the year. The
maximum SL
[[Page 36041]]
observed is 5.1 cm (2 in) (Skelton 2001, p. 124).
Laurel dace have been most often collected from pools or slow runs
from undercut banks or beneath slab boulders, typically in first or
second order, clear, cool (maximum temperature 26[deg] C or 78.8[deg]
F) streams. Substrates in streams where laurel dace are found typically
consist of a mixture of cobble, rubble, and boulders, and the streams
tend to have a dense riparian zone consisting largely of mountain
laurel (Skelton 2001, pp. 125-126).
Skelton (2001, p. 126) reported having collected nuptial
individuals from late March until mid-June, though Call (Call 2004,
pers. obs.) observed males in waning nuptial color during surveys on
July 22, 2004. Laurel dace may be a spawning nest associate where
syntopic (sharing the same habitat) with nest-building minnow species,
as has been documented in Phoxinus cumberlandensis (Starnes and Starnes
1981, p. 366). Soddy Creek is the only location in which Skelton (2001,
p. 126) has collected a nest-building minnow with laurel dace. Skelton
(2001, p. 126) reports finding as many as three year classes in some
collections of laurel dace, though young-of-year fish are uncommon in
collections. Observations of three year classes indicate that laurel
dace live as long as 3 years.
Skelton (2001, p. 126) qualitatively analyzed stomach contents of
12 laurel dace and found the species eats a mixture of food items,
dominantly benthic invertebrates, including Trichopteran, Plecopteran,
and Dipteran larva. Some intestines contained plant material and sand
grains. Skelton observed that the morphological feeding traits of
laurel dace, including large mouth, short digestive tract, reduced
number of pharyngeal (located within the throat) teeth, and primitively
shaped basioccipital bone (bone that articulates the vertebra) are
consistent with a diet consisting largely of animal material.
Laurel dace are known historically from seven streams on the Walden
Ridge portion of the Cumberland Plateau, where drainages generally
meander eastward before dropping abruptly down the plateau escarpment
and draining into the Tennessee River. Specifically, these seven
streams occur in three independent systems: Soddy Creek; three streams
that are part of the Sale Creek system (the Horn and Laurel branch
tributaries to Rock Creek, and the Cupp Creek tributary to Roaring
Creek); and three streams that are part of the Piney River system
(Young's, Moccasin, and Bumbee creeks). Skelton (2001, p. 126)
considered collections by the Tennessee Valley Authority (TVA) during a
rotenone survey of Laurel Branch in 1976 to represent laurel dace that
were misidentified as southern redbelly dace, as was found to be true
for specimens collected by TVA from Horn Branch in 1976, but no
specimens are available for confirmation. In 1991, and in four other
surveys (in 1995, 1996 and 2004), laurel dace were not collected in
Laurel Branch, leading Skelton to the conclusion that laurel dace have
been extirpated from this stream (Skelton 1997, p. 13; 2001, p. 126,
Skelton 2009, pers. comm.). Skelton (2009, pers. comm.) also noted that
the site was impacted by silt.
The current distribution of laurel dace comprises six of the seven
streams that were historically occupied; the species is considered
extirpated from Laurel Branch (see above). In these six streams, they
are known to occupy reaches of approximately 0.3 to 8 km (0.2 to 5 mi)
in length. The laurel dace is known from a single reach in Soddy Creek,
and surveys in 2004 produced only a single, juvenile laurel dace
(Strange and Skelton 2005, pp. 5-6 and Appendices 1 and 2). In Horn
Branch, laurel dace are known from approximately 900 m (2,953 ft), but
have become increasingly difficult to collect (Skelton 1997, pp. 13-
14). Skelton (1997, p. 14) reports that minnow traps have been the most
successful method for collecting live laurel dace from Horn Branch, as
it is difficult to electroshock due to in-stream rock formations and
fallen trees. Only a single juvenile was caught in 2004 (Strange and
Skelton 2005, p. 6). A total of 19 laurel dace were collected from Cupp
Creek during 1995 and 1996 using an electroshocker (Skelton 1996, p.
14). However, Skelton found no laurel dace in this stream in 2004,
despite attempts to collect throughout an approximately 700-m (2,297-
ft) reach (Strange and Skelton 2005, p. 6).
Laurel dace were initially found in Young's, Moccasin, and Bumbee
creeks in the Piney River system in 1996 (Skelton 1997, pp. 14-15).
Sampling in 2004 led to the discovery of additional laurel dace
localities in Young's and Moccasin creeks, but the locality where
laurel dace were found in Young's Creek in 1996 was inaccessible due to
the presence of a locked gate (Strange and Skelton 2005, p. 6-7). The
new localities were in the headwaters of these two streams. Persistence
of laurel dace at the Bumbee Creek locality was confirmed in 2004 by
surveying from a nearby road using binoculars. Direct surveys were not
possible because the land had been leased to a hunt club for which
contact information was not available, and therefore survey permission
could not be obtained (Strange and Skelton 2005, p. 7). Nuptial males
are easily identified from other species present in Bumbee Creek due to
their brilliant coloration during the breeding season, as the two
lateral stripes, breast, and underside of head turn intensely black and
the entire ventral (lower/abdominal) portion of the body, contiguous
with the lower black stripe and black breast, becomes an intense
scarlet color. This brilliant coloration is easily seen through
binoculars at short distances by trained individuals.
No population estimates are available for laurel dace. However,
based on trends observed in surveys and collections since 1991, Strange
and Skelton (2005, p. 8) concluded that this species is persisting in
Young's, Moccasin, and Bumbee creeks in the Piney River watershed, but
is at risk of extirpation from the southern part of Walden Ridge in
Soddy Creek, and in the Horn Branch and Cupp Creek areas that are
tributaries to Sale Creek. As noted above, the species is considered to
be extirpated from Laurel Branch, which is part of the Sale Creek
system.
The laurel dace is ranked by the Tennessee Natural Heritage Program
(Withers 2009, p. 60) as an S1G1 species: extremely rare in Tennessee,
and critically imperiled globally.
In the Tennessee CWCS, species of GCN were selected based on their
Global imperilment (G1-G3; critically imperiled globally--very rare or
restricted throughout their range), knowledge of declining trends or
vulnerability, or due to significance of an otherwise wide-ranging
species (TWRA 2005, p. 36). Species of GCN were further prioritized
into three different tiers to distinguish their status within the State
and to determine conservation funding availability. The CWCS designated
the laurel dace as a Tier-1 GCN species in the State, representing
species defined as wildlife (amphibians, birds, fish, mammals,
reptiles, crustaceans, and mollusks) under Tennessee Code Annotated 70-
8-101, and excluding federally listed species (TWRA 2005, p. 44, 49).
Tier 1 species were the primary focus of the Tennessee CWCS(TWRA 2005,
p. 44).
Previous Federal Action
Cumberland Darter
On September 18, 1985, the Service announced that the Cumberland
darter was being considered for possible addition to the List of
Endangered and Threatened Wildlife (50 FR 37958). It was assigned a
Category 2 status, which was given to those species for which the
Service possessed information
[[Page 36042]]
indicating that proposing to list as endangered or threatened was
possibly appropriate, but for which conclusive data on biological
vulnerability and threat was not currently available to support
proposed rules. In the 1989, 1991, and 1994 Candidate Notices of
Review, the Cumberland darter was again assigned a Category 2 status
(54 FR 554, 56 FR 58804, 59 FR 58982).
Assigning categories to candidate species was discontinued in 1996,
and only species for which the Service had sufficient information on
biological vulnerability and threats to support issuance of a proposed
rule were regarded as candidate species (61 FR 7596). Candidate species
were also assigned listing priority numbers based on immediacy and the
magnitude of threat, as well as their taxonomic status. In the 1999,
2001, 2002, and 2004 Candidate Notices of Review, the Cumberland darter
was identified as a listing priority 6 candidate species (64 FR 57533,
66 FR 54807, 67 FR 40657, 69 FR 24875). We published a petition finding
for Cumberland darter in the 2005 Candidate Notice of Review (70 FR
24869) in response to a petition received on May 11, 2004. We continued
to assign the Cumberland darter a listing priority number of 6,
reflecting a threat magnitude and immediacy of high and non-imminent,
respectively. In the 2006 Candidate Notice of Review, we changed the
listing priority number for Cumberland darter from 6 to 5, because it
was formally described as a distinct species (71 FR 53755). Based on
new molecular evidence, the subspecies Etheostoma nigrum susanae was
elevated to specific status, Etheostoma susanae. The Cumberland darter
continued to be recognized as a listing priority 5 candidate in the
2009 Candidate Notice of Review (74 FR 57869).
Rush Darter
We first identified the rush darter as a candidate for listing in
the 2002 Candidate Notice of Review (67 FR 40657). The rush darter was
assigned a listing priority number of 5. In the 2004 (69 FR 24875) and
2005 (70 FR 24869) Candidate Notice of Review, the rush darter retained
a listing priority number of 5. We published a petition finding for
rush darter in the 2005 Candidate Notice of Review (70 FR 24869) in
response to a petition received on May 11, 2004. The rush darter
retained a listing priority number of 5 in the 2005 Candidate Notice of
Review (70 FR 24869), in accordance with our priority guidance
published on September 21, 1983 (48 FR 43098).
In 2006, we changed the listing priority number of the rush darter
from 5 to 2 based on the imminent threat of water quality deterioration
(i.e., increased sedimentation due to urbanization, road maintenance,
and silviculture practices) (71 FR 53755). In the 2009 Candidate Notice
of Review (74 FR 57869), the rush darter retained a listing priority of
2.
Yellowcheek Darter
We first identified the yellowcheek darter as a candidate for
listing in the 2001 Candidate Notice of Review (66 FR 54807). The
yellowcheek darter was assigned a listing priority number of 2 and has
retained that status in the 2002, 2004, 2005, 2006, 2007, 2008, and
2009 Candidate Notices of Review (67 FR 40657, 69 FR 24875, 70 FR
24869, 71 FR 53755, 72 FR 69073, 73 FR 75175). We published a petition
finding for yellowcheek darter in the 2005 Candidate Notice of Review
in response to a petition received on May 11, 2004 (70 FR 24869). The
yellowcheek darter is covered by a 2007 programmatic Candidate
Conservation Agreement with Assurances (71 FR 53129) that covers the
entire range of the species.
Chucky Madtom
We first identified the chucky madtom as a possible candidate for
listing in the 1994 Candidate Notice of Review (59 FR 58982). It was
assigned a Category 2 status, which was given to those species for
which the Service possessed information indicating that proposing to
list as endangered or threatened was possibly appropriate, but for
which persuasive data on biological vulnerability and threat was not
currently available to support proposed rules. In the 2002, 2004, 2005,
2006, 2007, 2008, and 2009 Candidate Notices of Review, the chucky
madtom was again identified as a listing priority 2 candidate species
(67 FR 40657, 69 FR 24875, 70 FR 24869, 71 FR 53755, 72 FR 69033, 73 FR
75236, 74 FR 57869).
We published a petition finding for chucky madtom in the 2005
Candidate Notice of Review (70 FR 24869) in response to a petition
received on May 11, 2004, stating the chucky madtom would retain a
listing priority of 2.
In 1994, the chucky madtom was first added to the candidate list as
Noturus sp. (59 FR 58982). Subsequently, and based on morphological and
molecular evidence, the chucky madtom was formally described as a
distinct species, Noturus crypticus (Burr et al. 2005). We included
this new information in the 2006 Candidate Notice of Review (71 FR
53755).
Laurel Dace
We first identified the laurel dace as a new candidate for listing
in the 2007 Candidate Notice of Review (72 FR 69036). New candidates
are those taxa for which we have sufficient information on biological
vulnerability and threats to support preparation of a listing proposal,
but for which development of a listing regulation is precluded by other
higher priority listing activities.
In the 2007 Candidate Notice of Review, we assigned the laurel dace
a listing priority of 5 (72 FR 69036), and it was again identified as a
listing priority 5 candidate species in the 2008 and 2009 Candidate
Notices of Review (73 FR 75236, 74 FR 57869). This number reflects the
high magnitude and non-imminence of threats to the species.
Summary of Factors Affecting the Species
Section 4 of the Act (16 U.S.C 1533), and its implementing
regulations (50 CFR Part 424), set forth the procedures for adding
species to the Federal Lists of Endangered and Threatened Wildlife and
Plants. We may determine a species to be endangered or threatened due
to one or more of the five factors described in section 4(a)(1) of the
Act. The five listing factors are: (A) The present or threatened
destruction, modification, or curtailment of its habitat or range; (B)
overutilization for commercial, recreational, scientific, or
educational purposes; (C) disease or predation; (D) the inadequacy of
existing regulatory mechanisms; and (E) other natural or manmade
factors affecting its continued existence. Listing actions may be
warranted based on any of the above threat factors, singly or in
combination. Each of these factors is discussed below.
A. The Present or Threatened Destruction, Modification, or Curtailment
of Its Habitat or Range
The primary threat to the Cumberland darter, rush darter,
yellowcheek darter, chucky madtom, and laurel dace is physical habitat
destruction/modification resulting from a variety of human-induced
impacts such as siltation, disturbance of riparian corridors, and
changes in channel morphology (Waters 1995, pp. 2-3; Skelton 1997, pp.
17, 19; Thomas 2007, p. 5). The most significant of these impacts is
siltation (excess sediments suspended or deposited in a stream) caused
by excessive releases of sediment from activities such as resource
extraction (e.g., coal mining, silviculture, natural gas development),
agriculture, road construction, and
[[Page 36043]]
urban development (Waters 1995, pp. 2-3; KDOW 2006, pp. 178-185;
Skelton 1997, pp. 17, 19; Thomas 2007, p. 5).
Land use practices that affect sediment and water discharges into a
stream can also increase the erosion or sedimentation pattern of the
stream, which can lead to the destruction or modification of in-stream
habitat and riparian vegetation, stream bank collapse, and increased
water turbidity and temperature. Sediment has been shown to abrade and
or suffocate bottom-dwelling algae and other organisms by clogging
gills; reducing aquatic insect diversity and abundance; impairing fish
feeding behavior by altering prey base and reducing visibility of prey;
impairing reproduction due to burial of nests; and, ultimately,
negatively impacting fish growth, survival, and reproduction (Waters
1995, pp. 5-7, 55-62; Knight and Welch 2001, pp. 134-136). Wood and
Armitage (1997, pp. 211-212) identified at least five impacts of
sedimentation on fish, including (1) reduction of growth rate, disease
tolerance, and gill function; (2) reduction of spawning habitat and
egg, larvae, and juvenile development; (3) modification of migration
patterns; (4) reduction of food availability through the blockage of
primary production; and (5) reduction of foraging efficiency. The
effects of these types of threats will likely increase as development
increases in these watersheds.
Non-point source pollution from land surface runoff can originate
from virtually any land use activity and may be correlated with
impervious surfaces and storm water runoff. Pollutants may include
sediments, fertilizers, herbicides, pesticides, animal wastes, septic
tank and gray water leakage, pharmaceuticals, and petroleum products.
These pollutants tend to increase concentrations of nutrients and
toxins in the water and alter the chemistry of affected streams such
that the habitat and food sources for species like the Cumberland
darter, rush darter, yellowcheek darter, chucky madtom, and laurel dace
are negatively impacted. Construction and road maintenance activities
associated with urban development typically involve earth-moving
activities that increase sediment loads into nearby streams. Other
siltation sources, including timber harvesting, natural gas development
activities, clearing of riparian vegetation, mining, and agricultural
practices, allow exposed earth to enter streams during or after
precipitation events. These activities result in canopy removal,
elevated stream temperatures, and increased siltation, thereby
degrading habitats used by fishes for both feeding and reproduction
(Mattingly et al. 2005, p. 5). Undisturbed riparian corridors are
important because they prevent elevated stream temperatures due to
solar heating, serve as buffers against non-point source pollutants,
provide submerged root materials for cover and feeding, and help to
stabilize stream banks (Mattingly et al. 2005, p. 5).
Cumberland Darter
The Cumberland darter's preferred habitat characteristics (i.e.,
low- to moderate-gradient, low current velocity, backwater nature) make
it extremely susceptible to the effects of siltation (O'Bara 1991, p.
11). Sediment (siltation) has been listed repeatedly by the Kentucky
Natural Resources and Environmental Protection Cabinet (Division of
Water) as the most common stressor of aquatic communities in the upper
Cumberland River basin (KDOW 1996, pp. 50-53, 71-75; 2002, pp. 39-40;
2006, pp. 178-185). The primary source of sediment was identified as
resource extraction (e.g., coal mining, logging). The streams within
the Cumberland darter's current range that are identified as impaired
(due to siltation from mining, logging, and agricultural activities)
and have been included on Kentucky's 303(d) list of impaired waters
(KDOW 2007, pp. 155-166) include Jenneys Branch (Indian Creek basin),
an unnamed tributary of Jenneys Branch (Indian Creek basin), Ryans
Creek (Jellico Creek basin), Marsh Creek, and Wolf Creek (Clear Fork
basin).
Siltation can also occur in the Cumberland darter's known habitat
as a result of construction activities for human development. For
example, during the fall of 2007, an 8.4-km (5.2-mi) reach of Barren
Fork in McCreary County, Kentucky, was subjected to a severe
sedimentation event (Floyd 2008, pers. obs.). This event occurred
despite the fact that approximately 95 percent of the Barren Fork
watershed is under Federal ownership within the Daniel Boone National
Forest (DBNF). Construction activities associated with the development
of a 40.47-hectare (100-acre) park site caused excessive sedimentation
of two unnamed headwater tributaries of Barren Fork. Successive, large
rainfall events in September and October carried sediment off site and
impacted downstream areas of Barren Fork known to support Cumberland
darters and the Federally threatened blackside dace. Our initial site
visit on September 7, 2007, confirmed that sediment had been carried
off site, resulting in significant habitat degradation in the Barren
Fork mainstem and ``adverse effects'' on the blackside dace. Several
smaller sediment events have occurred despite Federal and State
attempts to resolve the issue, and on July 31, 2008, another large
rainfall event resulted in excessive sedimentation in two Barren Fork
watershed streams.
Another significant threat to the Cumberland darter is water
quality degradation caused by a variety of non-point source pollutants.
Coal mining represents a major source of these pollutants (O'Bara 1991,
p. 11; Thomas 2007, p. 5), because it has the potential to contribute
high concentrations of dissolved metals and other solids that lower
stream pH or lead to elevated levels of stream conductivity (Pond 2004,
pp. 6-7, 38-41; Mattingly et al. 2005, p. 59). These impacts have been
shown to negatively affect fish species, including listed species, in
the Clear Fork system of the Cumberland basin (Weaver 1997, pp. 29;
Hartowicz 2008, pers. comm.). The direct effect of elevated stream
conductivity on fishes, including the Cumberland darter, is poorly
understood, but some species, such as blackside dace, have shown
declines in abundance over time as conductivity increased in streams
affected by mining (Hartowicz 2008, pers. comm.). Studies indicate that
blackside dace are generally absent when conductivity values exceed 240
microSiemens ([micro]S) (Mattingly et al. 2005, p. 59; Black and
Mattingly 2007, p. 12).
Other non-point source pollutants that affect the Cumberland darter
include domestic sewage (through septic tank leakage or straight pipe
discharges); agricultural pollutants such as fertilizers, pesticides,
herbicides, and animal waste; and other chemicals associated with oil
and gas development. Non-point source pollutants can cause excess
nutrification (increased levels of nitrogen and phosphorus), excessive
algal growth, instream oxygen deficiencies, increased acidity and
conductivity, and other changes in water chemistry that can seriously
impact aquatic species (KDOW 1996, pp. 48-50; KDOW 2006, pp. 70-73).
In summary, habitat loss and modification represent significant
threats to the Cumberland darter. Severe degradation from
sedimentation, physical habitat disturbance, and contaminants threatens
the habitat and water quality on which the Cumberland darter depends.
Sedimentation from coal mining, silviculture, agriculture, and
development sites within the upper Cumberland basin negatively affect
the
[[Page 36044]]
Cumberland darter by reducing growth rates, disease tolerance, and gill
function; reducing spawning habitat, reproductive success, and egg,
larvae, and juvenile development; modifying migration patterns;
reducing food availability through reductions in prey; and reducing
foraging efficiency. Contaminants associated with coal mining (metals,
other dissolved solids), domestic sewage (bacteria, nutrients), and
agriculture (fertilizers, pesticides, herbicides, and animal waste)
cause degradation of water quality and habitats through increased
acidity and conductivity, instream oxygen deficiencies, excess
nutrification, and excessive algal growths. Furthermore, these threats
faced by the Cumberland darter from sources of sedimentation and
contaminants are imminent; the result of ongoing projects that are
expected to continue indefinitely. As a result of the imminence of
these threats combined with the vulnerability of the remaining small
populations to extirpation from natural and manmade threats, we have
determined that the present or threatened destruction, modification, or
curtailment of the Cumberland darter habitat and range represents a
significant threat of high magnitude. We have no information indicating
that the magnitude or imminence of this threat is likely to be
appreciably reduced in the foreseeable future.
Rush Darter
Sediment is the most abundant pollutant in the Mobile River Basin
(Alabama Department of Environmental Management 1996, pp. 14-15).
Within the Clear Creek drainage, Johnston and Kleiner (2001, p. 4)
reported that during August 2001, land uses in the Doe Branch and Mill
Creek area appeared to be dominated by forests, and that there were no
obvious threats to water quality. However, Johnston and Kleiner (2001,
p. 4) reported that clear cutting in the Wildcat Branch watershed may
have increased sedimentation into the stream. Approximately 84 percent
(i.e., 5 km or 3 mi) of Wildcat Branch is privately owned, and recent
land exchanges within the Bankhead National Forest have taken about 0.9
km (0.6 mi) of stream west of Clear Creek out of U.S. Forest Service
(USFS) management and protection. In 2001, Service and USFS personnel
noted heavy siltation at the County Road 329 Bridge over Doe Branch
during a modest spring rain and also noted heavy siltation at several
other road crossings and in other tributary streams in the immediate
area. Drennen (2005, pers. obs.) noted increasing erosion and deepening
of roadside ditches, and erosion of the gravel County Road 329 at Doe
and Wildcat branches, contributing to the sediment in these streams.
Blanco (2001, p. 68) identified siltation from development projects
as the greatest threat to the fauna of Turkey Creek. Point source
siltation sites have impacted the Turkey Creek watershed, including
four sites affecting Beaver Creek, a major tributary to Turkey Creek.
These sites included bridge, road, and sewer line construction sites
and a wood pallet plant (Drennen 1999, pers. obs.). In addition, Turkey
Creek at the confluence of Tapawingo and Penny Springs is often
sediment laden and completely turbid after medium to heavy rainfall.
Rapid urbanization in this area renders this population extremely
vulnerable during the breeding season when rush darters concentrate in
wetland pools and shallow pools with aquatic vegetation in headwater
streams (Stiles and Mills 2008, p. 5; Fluker et al. 2007, p. 10).
Four major soil types occur within the Turkey Creek watershed, and
all are considered highly erodible due to the steep topography (Spivey
1982, pp. 5, 7, 8, 14). Therefore, any activity that removes native
vegetation on these soils can be expected to lead to increased sediment
loads in Turkey Creek (USFWS 2001, p. 59370), including the areas near
Penny and Tapawingo Springs. Industrialization is extensive and
expanding throughout the watershed, particularly near the type locality
for the rush darter (Bart and Taylor 1999, p. 33; Drennen 2007, pers.
obs.).
Abundant water from springs throughout the rush darter's range,
especially in Pinson Valley, Alabama, is needed as a flushing effect to
provide constant cleansing of the streams with cool, fresh water.
However, ongoing destruction of spring heads and wetlands has
significantly reduced the species' movement and colonization. Little
Cove Creek and Bristow Creek spring heads have been channelized, and
the head of Cove Spring has a pumping facility built on it (Fluker et
al. 2007, p. 1). Spring water in these systems may be more impacted by
site-specific spring head disturbances rather than overall spring
drainage disturbances (Drennen 2005, per. obs.). Alteration of spring
head habitats has reduced water quality and increased sediment loads
into spring-fed tributary streams throughout the range of the rush
darter.
In summary, the most significant threat to rush darters is
siltation, caused by an increase in urbanization surrounding the
streams and springs, road maintenance and silviculture practices. This
threat is ongoing and thus considered imminent. The magnitude of the
threat is high due to the small population and high levels of siltation
in the springs and streams. We have no information indicating that the
magnitude or imminence of this threat is likely to be appreciably
reduced in the foreseeable future.
Yellowcheek Darter
Robison and Harp (1981, p. 17), McDaniel (1984, p. 92), and Robison
and Buchanan (1988, p. 429) have attributed the decline in populations
of yellowcheek darters in the four forks of the Little Red River and
main stem Little Red River to habitat alteration and degradation. The
suspected primary cause of the species' decline is the impoundment of
the Little Red River and lower reaches of the Devils, Middle, and South
Forks, areas that in the past provided optimal habitat for this
species. The creation of Greers Ferry Lake in 1962 converted optimal
yellowcheek darter habitat (clear, cool, perennial flow with large
substrate particle size (Robison and Buchanan 1988, p. 429)), to a
deep, standing water environment. This dramatic change in habitat
flooded spawning sites, altered habitat radically, and changed chemical
and physical characteristics in the streams which provide optimal
habitat for this species. Impoundments profoundly alter channel
characteristics, habitat availability, and flow regime with serious
consequences for biota (Allan and Flecker 1993, p. 36, Ward and
Stanford 1995, pp. 105-119). Some of these include converting flowing
to still waters, increasing depths and sedimentation, decreasing
dissolved oxygen, drastically altering resident fish populations (Neves
et al. 1997, p. 63), disrupting fish migration, and destroying spawning
habitat (Ligon et al. 1995, pp. 185-86). Channelization of the lower
5.6 km (3.5 miles) of Archey and South Forks in 1985 and subsequent
channel maintenance to this day by the U.S. Army Corps of Engineers and
City of Clinton, Arkansas, degraded habitat in this reach as well as
segments upstream of the project area. Based upon current knowledge and
a 2004-2005 threats assessment (Davidson and Wine 2004, pp. 6-13;
Davidson 2005, pp. 1-4), gravel mining, unrestricted cattle access into
streams, water withdrawal for agricultural and recreational purposes
(i.e., golf courses), lack of adequate riparian buffers, construction
and maintenance of county roads, and non-point source pollution arising
from a broad array of activities
[[Page 36045]]
also appear to be degrading suitable habitat for the species. The
threats assessment documented occurrences of the aforementioned
activities and found 52 sites on the Middle Fork, 28 sites on the South
Fork, 8 sites on Archey Fork (Davidson 2005, pp. 1-4), and 1 site in
the Turkey/Beech/Devils Fork system that are adversely affected by
these activities and likely contributors to the decline of the species.
Yellowcheek darter numbers have declined by 83 percent in both the
Middle Fork and South Fork of the Upper Little Red River watershed, and
60 percent in the Archey Fork in the past 20 years. Yellowcheek darter
was not found in the Turkey Fork reach of the Devils Fork during the
2000 status survey, and is presumed to be extirpated in this reach. A
comparison of inhabited stream reaches in the 1981 survey versus the
2000 survey reveals that the largest decline occurred in the South
Fork, where reaches formerly inhabited by the yellowcheek darter
declined by 70 percent. The second largest decline occurred in the
Archey Fork, where there was a 60 percent reduction in inhabited stream
reach. The Middle Fork showed the least decline in inhabited stream
reach, at 22 percent.
Ozark headwater streams typically exhibit seasonal fluctuations in
flows, with flow rates highest in spring, and lowest in late summer and
fall. The upper reaches of these small streams are most affected by
seasonally fluctuating water levels (Robison and Harp 1981, p. 17). As
a result, they often lack consistent and adequate flows, and by late
summer or fall are reduced to a series of isolated pools (Wine 2008,
pers. comm.). Expanding natural gas development activities that began
in the upper Little Red River watershed in 2006 require large
quantities of water and pose an imminent threat to the continued
existence of yellowcheek darter as these activities rapidly expand and
increase in the watersheds of all four forks (Davidson 2008, pers.
comm.). Because the yellowcheek darter requires permanent flows with
moderate to strong current (Robison and Buchanan 1988, p. 429), and
because downstream refugia have been lost, seasonal fluctuations in
stream flows that reduce moving water (lotic habitat) to a series of
isolated pool habitats are a serious threat.
Additional contributors to yellowcheek declines and continuing
threats include habitat degradation from land use activities in the
watershed, including agriculture and forestry. Traditional farming
practices, feed-lot operations, and associated poor land use practices
contribute many pollutants to rivers. Neves et al. (1997, p. 65)
suggest that agriculture affects 72 percent of impaired river reaches
in the United States. Nutrients, bacteria, pesticides, and other
organic compounds generally are found in higher concentrations in
agricultural areas than forested areas. Nutrient concentrations in
streams may result in increased algal growth in streams, and a related
alteration in fish community composition (Petersen et al. 1999, p. 16).
Major agricultural activities within the Little Red River watershed
include poultry, dairy, swine, and beef cattle operations.
The Arkansas Natural Resources Conservation Service has identified
animal wastes, nutrients, excessive erosion, loss of plant diversity,
and declining species as water quality concerns associated with
agricultural land use activities in the upper Little Red River
watershed (NRCS 1999). Large poultry and dairy operations increase
nutrient inputs to streams when producers apply animal waste to
pastures to stimulate vegetation growth for grazing and hay production.
Continuous grazing methods in the watershed allow unrestricted animal
access to grazing areas, and on steeper slopes this results in
increased runoff and erosion (NRCS 1999). Since pastures often extend
directly to the edge of the stream, and lack a riparian zone with
native vegetation, runoff from pastures carries pollutants directly
into streams. Eroding stream banks also result in alterations to stream
hydrology and geomorphology, degrading habitat. Livestock spend a
disproportionate amount of time in riparian areas during hot summer
months. Trampling and grazing can change and reduce vegetation and
eliminate riparian areas by channel widening, channel aggradation, or
lowering of the water table (Armour et al. 1991, pp. 7-11).
Additionally, earthen dams were constructed across a riffle in the
lower South Fork to create a pool for annual chuck wagon races for many
years leading up to 2003. The Service and U.S. Army Corps of Engineers
met with the responsible landowner in 2004 and suggested an alternative
to dam construction that would minimize impacts to the yellowcheek
darter. These recommendations were followed for several years; however,
another earthen dam was constructed in 2008 using material from the
South Fork to facilitate events associated with the annual chuck wagon
races. This dam, like its predecessors, was unpermitted and resulted in
significant habitat degradation and alteration for several miles
upstream and downstream of the site.
The chuck wagon race event draws approximately 20,000 to 30,000
people per year to the South Fork Little Red River for a 1-week period
around Labor Day. Horses and wagons traverse the river and its
tributaries for miles leading to increased habitat disturbance,
sedimentation, and trampling. The chuck wagon races continue to grow
annually and pose a significant threat to the continued existence of
yellowcheek darters in the South Fork Little Red River.
Timber harvesting activities involving clear-cutting entire steep
hillsides were observed during 1999-2000 in the Devils Fork watershed
(Wine 2008, pers. comm.). The failure to implement voluntary State best
management practices (BMPs) for intermittent and perennial streams
during timber harvests has resulted in water quality degradation and
habitat alteration in stream reaches adjacent to harvesting operations.
When timber harvests involve clear cutting to the water's edge, without
leaving a riparian buffer, silt and sediment enter streams lying at the
bottom of steep slopes. The lack of stream side vegetation also
promotes bank erosion that alters stream courses and introduces large
quantities of sediment into the channel (Allan 1995, p. 321). Timber
harvest operations that use roads on steep slopes to transport timber
can carry silt and sediment from the road into the stream at the bottom
of the slope. Logging impacts on sediment production are considerable,
but often erosion of access and haul roads produces more sediment than
the land harvested for timber (Brim Box and Mossa 1999, p. 102). These
activities have occurred historically and continue to occur in the
upper Little Red River watershed.
Natural gas exploration and development is a newly emerging threat
to yellowcheek darter populations. Significant erosion and
sedimentation issues associated with natural gas development
activities, particularly pipelines (herein defined as all flow lines,
gathering lines, and non-interstate pipelines), were first documented
by Service biologists during 2007 in the South Fork Little Red River
watershed. In June 2008, the Service began documenting significant
erosion and sedimentation issues associated with natural gas pipeline
construction and maintenance as natural gas development activities
expanded into the watershed. Service biologists documented significant
erosion and sedimentation at almost every new pipeline stream crossing
in the South Fork and Middle Fork Little Red River watersheds,
regardless of the diameter of the pipe.
[[Page 36046]]
Channel incision was documented at numerous stream crossings that are
tributaries to the South Fork Little Red River. The incision increased
erosion and sedimentation, as well as altering the hydrology and
geomorphology characteristics of the streams. Pipeline rights-of-way
were found to have one of the following conditions: (1) no BMPs (i.e.,
silt fences, grade breaks, non-erodible stream crossing materials)
installed to prevent erosion and sedimentation, (2) ineffective erosion
minimization practices in place, (3) effective erosion minimization
practices that had not been maintained and, thus, had become
ineffective, or (4) final reclamation of the pipeline right-of-way had
not occured for months and in some cases greater than a year after
construction activities ceased leading to prolonged periods of erosion
and sedimentation. The magnitude of the impacts to the South Fork and
Middle Fork Little Red River from 2007-2008 also was exacerbated due to
above average rainfall, which led to more frequent and larger pipeline
erosion events.
In summary, threats to the yellowcheek darter from the present
destruction, modification, or curtailment of its habitat or range
negatively impact the species. Threats include such activities as
impoundment, sedimentation (from a broad array of activities), nutrient
enrichment, gravel mining, channelization/channel instability, and
natural gas development. These threats are considered imminent and of
high magnitude throughout the species' entire range. We have no
information indicating that the magnitude or imminence of these threats
is likely to be appreciably reduced in the foreseeable future, and in
the case of pipeline disturbance, we expect this threat to become more
problematic over the next several years as natural gas development
continues to intensify.
Chucky Madtom
The current range of the chucky madtom is believed to be restricted
to an approximately 1.8-mi (3-km) reach of Little Chucky Creek in
Greene County, Tennessee. Land use data from the Southeast GAP Analysis
Program (SE-GAP) show that land use within the Little Chucky Creek
watershed is predominantly dominated by agricultural use, with the vast
majority of agricultural land being devoted to production of livestock
and their forage base (USGS 2008).
Traditional farming practices, feed-lot operations, and associated
land use practices contribute many pollutants to rivers. Neves et al.
(1997, p. 65) suggest that agriculture affects 72 percent of impaired
river reaches in the United States. These practices erode stream banks
and result in alterations to stream hydrology and geomorphology,
degrading habitat. Nutrients, bacteria, pesticides, and other organic
compounds generally are found in higher concentrations in agricultural
areas than forested areas. Nutrient concentrations in streams may
result in increased algal growth in streams, and a related alteration
in fish community composition (Petersen et al. 1999, p. 16).
The TVA Index of Biological Integrity results indicate that Little
Chucky Creek is biologically impaired (Middle Nolichucky Watershed
Alliance 2006, p. 13). Given the predominantly agricultural land use
within the Little Chucky Creek watershed, non-point source sediment and
agrochemical discharges may pose a threat to the chucky madtom by
altering the physical characteristics of its habitat, thus potentially
impeding its ability to feed, seek shelter from predators, and
successfully reproduce. The Little Chucky Creek watershed also contains
a portion of the city of Greeneville, providing an additional source
for input of sediments and contaminants into the creek and threatening
the chucky madtom. Wood and Armitage (1997, pp. 211-212) identify at
least five impacts of sedimentation on fish, including (1) reduction of
growth rate, disease tolerance, and gill function; (2) reduction of
spawning habitat and egg, larvae, and juvenile development; (3)
modification of migration patterns; (4) reduction of food availability
through the blockage of primary production; and (5) reduction of
foraging efficiency.
The chucky madtom is a bottom-dwelling species. Bottom-dwelling
fish species are especially susceptible to sedimentation and other
pollutants that degrade or eliminate habitat and food sources (Berkman
and Rabeni 1987, pp. 290-292; Richter et al. 1997, p. 1091; Waters
1995, p. 72). Etnier and Jenkins (1980, p. 20) suggested that madtoms,
which are heavily dependent on chemoreception (detection of chemicals)
for survival, are susceptible to human-induced disturbances, such as
chemical and sediment inputs, because the olfactory (sense of smell)
``noise'' they produce could interfere with a madtom's ability to
obtain food and otherwise monitor its environment.
In summary, threats to the chucky madtom from the present
destruction, modification, or curtailment of its habitat or range
negatively impact the species. Degradation from sedimentation, physical
habitat disturbance, and contaminants threaten the habitat and water
quality on which the chucky madtom depends. Sedimentation from
agricultural lands could negatively affect the chucky madtom by
reducing growth rates, disease tolerance, and gill function; reducing
spawning habitat, reproductive success, and egg, larvae, and juvenile
development; reducing food availability through reductions in prey; and
reducing foraging efficiency. Contaminants associated with agriculture
(e.g., fertilizers, pesticides, herbicides, and animal waste) can cause
degradation of water quality and habitats through instream oxygen
deficiencies, excess nutrification, and excessive algal growths.
Furthermore, these threats faced by the chucky madtom from sources of
sedimentation and contaminants are imminent; the result of ongoing
agricultural practices that are expected to continue indefinitely. As a
result of the imminence of these threats combined with the
vulnerability of the remaining small population to extirpation from
natural and manmade threats, we have determined that the present or
threatened destruction, modification, or curtailment of the chucky
madtom habitat and range represents a significant threat of high
magnitude. We have no information indicating that the magnitude or
imminence of these threats is likely to be appreciably reduced in the
foreseeable future.
Laurel Dace
Skelton (2001, p. 127) concluded that the laurel dace is
``presumably tolerant of some siltation.'' However, Strange and Skelton
(2005, p. 7 and Appendix 2) observed levels of siltation they
considered problematic during later surveys for the laurel dace and
concluded this posed a threat in several localities throughout the
range of the species. Sediment has been shown to abrade and or
suffocate bottom-dwelling fish and other organisms by clogging gills;
reducing aquatic insect diversity and abundance; impairing fish feeding
behavior by altering prey base and reducing visibility of prey;
impairing reproduction due to burial of nests; and, ultimately,
negatively impacting fish growth, survival, and reproduction (Waters
1995, pp. 5-7, 55-62; Knight and Welch 2001, pp. 134-136). However, we
do not currently know what levels of siltation laurel dace are able to
withstand before populations begin to decline due to these siltation-
related stressors. The apparent stability of the northern population of
laurel dace in the Piney River system suggests
[[Page 36047]]
that this species is at least moderately tolerant of siltation-related
stressors. We do not know the extent to which other factors might have
driven the decline of the southern populations in Sale and Soddy
Creeks.
Of the streams inhabited by the southern populations recognized by
Strange and Skelton (2005, p. Appendix 2), the reaches from which
laurel dace have been collected in Soddy Creek and Horn Branch approach
0.6 mi (1 km) in length. In Cupp Creek, collections of this species are
restricted to less than 984 ft (300 m) of stream, in spite of surveys
well beyond the reach known to be inhabited. In each of the streams
occupied by the southern populations, Strange and Skelton (2005,
Appendix 2) identified siltation as a factor that could alter the
habitat and render it unsuitable for laurel dace. The restricted
distribution of laurel dace in streams inhabited by the southern
populations leaves them highly vulnerable to potential deleterious
effects of excessive siltation or other localized disturbances.
A newly emerging threat to laurel dace in Soddy Creek is the
conversion of pine plantations to row crop agriculture. Two large
plantations within the Soddy Creek Watershed were harvested and then
converted to tomato farms. An irrigation impoundment was built on one
Soddy Creek tributary and another is under construction. As a result of
these activities, a large silt source was introduced into the Soddy
Creek headwaters. In addition to contributing sediment, crop fields
often allow runoff from irrigation water to flow directly into the
creek. This water contains fungicides, herbicides, and fertilizers
(Thurman 2010, pers. comm.).
Strange and Skelton (2005, p. 7 and Appendix 2) identified
siltation as a threat in all of the occupied Piney River tributaries
(Young's, Moccasin, and Bumbee Creeks). The Bumbee Creek type locality
for the laurel dace is located within industrial forest that has been
subjected to extensive clear-cutting and road construction in close
proximity to the stream. Strange and Skelton (2005, p. 7) noted a heavy
sediment load at this locality and commented that conditions there in
2005 had deteriorated since the site was visited by Skelton in 2002.
Strange and Skelton (2005, pp. 7 and 8 and Appendix 2) also commented
on excessive siltation in localities they sampled on Young's and
Moccasin Creeks, and observed localized removal of riparian vegetation
around residences in the headwaters of each of these streams. They
considered the removal of riparian vegetation problematic not only for
the potential for increased siltation, but also for the potential
thermal alteration of these small headwater streams. Skelton (2001, p.
125) reported that laurel dace occupy cool streams with a maximum
recorded temperature of 26[deg] C (78.8[deg] F). The removal of
riparian vegetation could potentially increase temperatures above the
laurel dace's maximum tolerable limit.
Water temperature may be a limiting factor in the distribution of
this species (Skelton 1997, pp. 17, 19). Canopy cover of laurel dace
streams often consists of eastern hemlock, mixed hardwoods, pine, and
mountain laurel. The hemlock woolly adelgid (Adelges tsugae) is a
nonnative insect that infests hemlocks, causing damage or death to
trees. The woolly adelgid was recently found in Hamilton County,
Tennessee, and could impact eastern hemlock in floodplains and riparian
buffers (land adjacent to stream channels) along laurel dace streams in
the future (Simmons 2008, pers. comm.). Riparian buffers filter
sediment and nutrients from overland runoff, allow water to soak into
the ground, protect stream banks and lakeshores, and provide shade for
streams. Because eastern hemlock is primarily found in riparian areas,
the loss of this species adjacent to laurel dace streams would be
detrimental to fish habitat.
Habitat destruction and modification also stem from existing or
proposed infrastructure development in association with timber
harvesting. The presence of culverts at one or more road crossings in
most of the streams inhabited by laurel dace may disrupt upstream
dispersal within those systems (Chance 2008, pers. obs.). Such
dispersal barriers could prevent re-establishment of laurel dace
populations in reaches where they suffer localized extinctions due to
natural or human-caused events.
In summary, the primary threat to laurel dace throughout its range
is excessive siltation resulting from agriculture and extensive timber
harvesting involving both inadequate riparian buffers in harvest areas
and the failure to use best management practices in road construction.
Severe degradation from sedimentation, physical habitat disturbance,
and contaminants threatens the habitat and water quality on which the
laurel dace depends. Sedimentation from negatively affects the laurel
dace by reducing growth rates, disease tolerance, and gill function;
reducing spawning habitat, reproductive success, and egg, larvae, and
juvenile development; reducing food availability through reductions in
prey; and reducing foraging efficiency. These threats faced by the
laurel dace from sources of sedimentation and contaminants are
imminent; the result of ongoing agriculture and forestry practices that
are expected to continue. As a result of the imminence of these
threats, we have determined that the present or threatened destruction,
modification, or curtailment of the laurel dace habitat and range
represents a significant threat of high magnitude. We have no
information indicating that the magnitude or imminence of these threats
is likely to be appreciably reduced in the foreseeable future.
B. Overutilization for Commercial, Recreational, Scientific, or
Educational Purposes
The Cumberland darter, rush darter, yellowcheek darter, chucky
madtom, and laurel dace are not commercially utilized. Individuals have
been taken for scientific and private collections in the past, but
collecting is not considered a factor in the decline of these species
and is not expected to be so in the future. The available information
does not indicate that overutilization is likely to become a threat to
any of these five fishes in the foreseeable future.
C. Disease or Predation
Disease is not considered to be a factor in the decline of the
Cumberland darter, rush darter, yellowcheek darter, chucky madtom, or
laurel dace. Although the Cumberland darter, rush darter, yellowcheek
darter, and laurel dace are undoubtedly consumed by predators, the
available information suggests that this predation is naturally
occurring, or a normal aspect of the population dynamics. As a result,
we do not believe that predation is considered to currently pose a
threat to these species. Furthermore, the information we do have, does
not indicate that disease or predation is likely to become a threat to
any of these five fishes in the foreseeable future.
D. The Inadequacy of Existing Regulatory Mechanisms
Cumberland Darter
The Cumberland darter and its habitats are afforded some protection
from water quality and habitat degradation under the Clean Water Act of
1977 (33 U.S.C. 1251 et seq.), Kentucky's Forest Conservation Act of
1998 (KRS 149.330-355), Kentucky's Agriculture Water Quality Act of
1994 (KRS 224.71-140), additional Kentucky laws and regulations
regarding natural resources and environmental protection (KRS 146.200-
360; KRS 224; 401 KAR 5:026, 5:031), and Tennessee's Water Quality
Control Act of 1977 (T.C.A. 69-
[[Page 36048]]
3-101). However, as demonstrated under Factor A, population declines
and degradation of habitat for this species are ongoing despite the
protection afforded by these laws and corresponding regulations. While
these laws have resulted in some improvements in water quality and
stream habitat for aquatic life, including the Cumberland darter, they
alone have not been adequate to fully protect this species;
sedimentation and non-point source pollutants continue to be a
significant problem.
States maintain water-use classifications through issuance of
National Pollutant Discharge Elimination System (NPDES) permits to
industries, municipalities, and others that set maximum limits on
certain pollutants or pollutant parameters. For water bodies on the
303(d) list, States are required under the Clean Water Act to establish
a total maximum daily load (TMDL) for the pollutants of concern that
will bring water quality into the applicable standard. Three Cumberland
darter streams, Jenneys Branch, Marsh Creek, and Wolf Creek, have been
identified as impaired by the Kentucky Division of Water and placed on
the State's 303(d) list (KDOW 2008). Causes of impairment were listed
as siltation/sedimentation from agriculture, coal mining, land
development, and silviculture and organic enrichment/eutrophication
from residential areas. TMDLs have not yet been developed for these
pollutants.
The Cumberland darter has been designated as an endangered species
by Tennessee (TWRA 2005, p. 240) and Kentucky (KSNPC 2005, p. 11), but
the designation in Kentucky conveys no legal protection. Under the
Tennessee Nongame and Endangered or Threatened Wildlife Species
Conservation Act of 1974 (Tennessee Code Annotated Sec. Sec. 70-8-101-
112), ``[I]t is unlawful for any person to take, attempt to take,
possess, transport, export, process, sell or offer for sale or ship
nongame wildlife, or for any common or contract carrier knowingly to
transport or receive for shipment nongame wildlife.'' Further,
regulations included in the Tennessee Wildlife Resources Commission
Proclamation 00-15 Endangered Or Threatened Species state the
following: ``Except as provided for in Tennessee Code Annotated,
Section 70-8-106 (d) and (e), it shall be unlawful for any person to
take, harass, or destroy wildlife listed as threatened or endangered or
otherwise to violate terms of Section 70-8-105 (c) or to destroy
knowingly the habitat of such species without due consideration of
alternatives for the welfare of the species listed in (1) of this
proclamation, or (2) the United States list of Endangered fauna.''
Under these regulations, potential collectors of this species are
required to have a State collection permit. However, in terms of
project management, this regulation only provides for the consideration
of alternatives, and does not require the level of project review
afforded by the Act.
In 7 of 12 streams where the Cumberland darter still occurs, the
species is indirectly provided some protection from Federal actions and
activities through the Endangered Species Act of 1973, as amended (16
U.S.C. 1531 et seq.), because these streams (or basins) also support
the Federally threatened blackside dace and occupy watersheds that are
at least partially owned by the Federal government (Daniel Boone
National Forest). The five remaining streams supporting populations of
the Cumberland darter are not afforded this protection.
In summary, population declines and degradation of habitat for the
Cumberland darter are ongoing despite the protection afforded by State
and Federal laws and corresponding regulations. Because of the
vulnerability of the small remaining populations of the Cumberland
darter and the imminence of these threats, we find the inadequacy of
existing regulatory mechanisms to be a significant threat of high
magnitude. Further, the information available to us at this time does
not indicate that the magnitude or imminence of this threat is likely
to be appreciably reduced in the foreseeable future.
Rush Darter
The rush darter and its habitats are afforded some protection from
water quality and habitat degradation under the Clean Water Act and the
Alabama Water Pollution Control Act, as amended, 1975 (Code of Alabama,
Sec. Sec. 22-22-1 to 22-22-14). However, as demonstrated under Factor
A, population declines and degradation of habitat for this species are
ongoing despite the protection afforded by these laws. While these laws
have resulted in some improvement in water quality and stream habitat
for aquatic life, including the rush darter, they alone have not been
adequate to fully protect this species; sedimentation and non-point
source pollutants continue to be a significant problem. Sediment is the
most abundant pollutant in the Mobile River Basin and the greatest
threat to the rush darter. There are currently no requirements within
the scope of other environmental laws within Alabama to specifically
consider the rush darter or ensure that a project will not jeopardize
its continued existence.
The State of Alabama maintains water-use classifications through
issuance of NPDES permits to industries, municipalities, and others
that set maximum limits on certain pollutants or pollutant parameters.
For water bodies on the 303(d) list, States are required under the
Clean Water Act to establish a TMDL for the pollutants of concern that
will bring water quality into the applicable standard. The State of
Alabama has not identified any impaired water bodies in Jefferson,
Winston, and Etowah Counties in the immediate or upstream portion of
the rush darter range or watersheds in Winston or Etowah County.
However, sedimentation events are usually related to the stormwater
runoff episodes, and are usually not captured by routine water quality
sampling. Although stormwater events are temporary, they are still very
significant and destructive to the species, habitat, vegetation and
food sources, as previously mentioned. When the stormwater water events
abate, the water becomes more hospitable to the species, due to the
spring influences and constant flushing from spring water. Thus, there
is no listing or label for these bodies as impaired and are generally
considered satisfactory for the species when stormwater is not
involved.
In summary, population declines and degradation of habitat for the
rush darter are ongoing despite the protection afforded by State and
Federal laws and corresponding regulations. Despite these laws,
sedimentation and non-point source pollution continue to adversely
affect the species. Because of the vulnerability of the small remaining
populations of the rush darter and the imminence of these threats, we
find the inadequacy of existing regulatory mechanisms to be a
significant threat of high magnitude. Further, the information
available to us at this time does not indicate that the magnitude or
imminence of this threat is likely to be appreciably reduced in the
foreseeable future.
Yellowcheek Darter
The Arkansas Department of Environmental Quality (ADEQ) has
established water quality standards for surface waters in Arkansas,
including specific standards for those streams designated as
``extraordinary resource waters'' (ERW) based on ``a combination of the
chemical, physical, and biological characteristics of a waterbody and
its watershed, which is characterized by
[[Page 36049]]
scenic beauty, aesthetics, scientific values, broad scope recreation
potential, and intangible social values'' (ADEQ Regulation 2, November
25, 2007). As described in ADEQ's Regulation 2, Section 2.203, ERW
``shall be protected by (1) water quality controls, (2) maintenance of
natural flow regime, (3) protection of in stream habitat, and (4)
pursuit of land management protective of the watershed.'' This
regulatory mechanism has precluded most large scale commercial gravel
mining in the watershed; however, illegal gravel mining is still
considered a cause of habitat degradation and a threat in the Little
Red River watershed. The Middle, Archey, and Devils (and its major
tributaries) forks are designated as ERW. The South Fork has not been
designated as an ERW. The applicable water quality standards have not
protected yellowcheek darter habitat from the damaging habitat
alterations and water quality degradation from traditional land use and
expanding natural gas development activities.
The Arkansas Forestry Commission is the State agency responsible
for establishing Best Management Practices (BMPs) for timber harvests
in Arkansas. BMPs for timber harvests in Arkansas are only
recommendations. There is no requirement that timber harvesters include
BMPs in timber operations. The BMPs are currently under revision, but
the Service does not know what effect these revisions will have on
aquatic habitats within the range of the species.
Natural gas production in the upper Little Red River watershed
presents a unique problem for yellowcheek darter conservation. In
Arkansas, mineral rights for properties supersede the surface rights.
Even where private landowners agree to implement certain BMPs or
conservation measures on their lands for yellowcheek darter
conservation, there is no guarantee that these BMPs or conservation
measures will be implemented by natural gas companies, their
subsidiaries, or contractors that lease and develop the mineral rights
for landowners. For this reason, the intended benefits of conservation
measures agreed to by landowners in agreements such as Candidate
Conservation Agreements with Assurances may never be realized.
Additionally, natural gas projects often do not contain a Federal nexus
that would allow the Service to comment on proposed or ongoing
projects.
The Arkansas Natural Resources Commission regulates water
withdrawal in Arkansas streams. To date, they have not precluded water
withdrawal for natural gas development activities in the upper Little
Red River watershed. The U.S. Army Corps of Engineers regulates
instream activities under the Clean Water Act. Their policy to date has
been to issue permits for instream activities associated with pipeline
construction and maintenance under Nationwide Permits rather than
Individual Permits that require more public involvement. ADEQ lacks
resources necessary to enforce existing regulations under the Clean
Water Act and Arkansas Water and Air Pollution Act for activities
associated with natural gas development.
The yellowcheek darter receives incidental protection under the Act
due to the coexistence of the federally endangered speckled pocketbook
mussel (Lampsilis streckeri), which occurs throughout the upper Little
Red River drainage.
In summary, the threats of inadequacy of existing regulatory
mechanisms are imminent and considered high in magnitude. This is of
particular concern in regard to the vulnerability of the species to
threats from natural gas development which is already impacting
populations in the South and Middle forks of the Little Red River and
is expected to intensify in the next several years throughout the range
of the species. Further, the information available to us at this time
does not indicate that the magnitude or imminence of this threat is
likely to be appreciably reduced in the foreseeable future.
Chucky Madtom
The chucky madtom and its habitats are afforded some protection
from water quality and habitat degradation under the Clean Water Act
and TDEC's Division of Water Pollution Control under the TWQCA.
However, as demonstrated under Factor A, population declines and
degradation of habitat for this species are ongoing despite the
protection afforded by these laws. While these laws have resulted in
improved water quality and stream habitat for aquatic life, including
the Chucky madtom, they alone have not been adequate to fully protect
this species; sedimentation and non-point source pollutants continue to
be a significant problem. Sediment is the most abundant pollutant in
the Little Chucky Creek watershed and is the greatest threat to the
Chucky madtom.
Portions of the Nolichucky River and its tributaries in Greene
County, Tennessee, are listed as impaired (303d) by the State of
Tennessee due to pasture grazing, irrigated crop production,
unrestricted cattle access, land development, municipal point source
discharges, septic tank failures, gravel mining, agriculture, and
channelization (Tennessee Department of Environment and Conservation
(TDEC) 2008, pp. 62-70). However, Little Chucky Creek is not listed as
``an impaired water'' by the State of Tennessee (TDEC 2008, pp. 62-70).
For water bodies on the 303(d) (impaired) list, States are required
under the Clean Water Act to establish a TMDL for the pollutants of
concern that will bring water quality into the applicable standard. The
Tennessee Department of Environment and Conservation has developed
TMDLs for the Nolichucky River watershed to address the problems of
fecal coliform loads, siltation, and habitat alteration by agriculture.
The chucky madtom receives incidental protection under the Act due
to the coexistence of the Federally endangered Cumberland bean (Villosa
trabalis), which is still thought to occur in Little Chucky Creek,
Greene County, Tennessee (Ahlstedt 2008, pers. comm.).
The chucky madtom was listed as Endangered by the State of
Tennessee in September of 2000. Under the Tennessee Nongame and
Endangered or Threatened Wildlife Species Conservation Act of 1974
(Tennessee Code Annotated Sec. Sec. 70-8-101-112), ``[I]t is unlawful
for any person to take, attempt to take, possess, transport, export,
process, sell or offer for sale or ship nongame wildlife, or for any
common or contract carrier knowingly to transport or receive for
shipment nongame wildlife.'' Further, regulations included in the
Tennessee Wildlife Resources Commission Proclamation 00-15 Endangered
Or Threatened Species state the following: ``Except as provided for in
Tennessee Code Annotated, Section 70-8-106 (d) and (e), it shall be
unlawful for any person to take, harass, or destroy wildlife listed as
threatened or endangered or otherwise to violate terms of Section 70-8-
105 (c) or to destroy knowingly the habitat of such species without due
consideration of alternatives for the welfare of the species listed in
(1) of this proclamation, or (2) the United States list of Endangered
fauna.'' Under these regulations, potential collectors of this species
are required to have a State collection permit. However, in terms of
project management, this regulation only provides for the consideration
of alternatives, and does not require the level of project review
afforded by the Act.
In summary, population declines and degradation of habitat for the
chucky madtom are ongoing despite the protection afforded by State and
Federal laws and corresponding regulations. Despite these laws,
sedimentation and
[[Page 36050]]
non-point source pollution continue to adversely affect the species.
Because of the vulnerability of the small remaining populations of the
chucky madtom and the imminence of these threats, we find the
inadequacy of existing regulatory mechanisms to be a significant threat
of high magnitude. Further, the information available to us at this
time does not indicate that the magnitude or imminence of this threat
is likely to be appreciably reduced in the foreseeable future.
Laurel Dace
The laurel dace and its habitats are afforded some protection from
water quality and habitat degradation under the Clean Water Act and by
TDEC's Division of Water Pollution Control under the TWQCA. However, as
demonstrated under Factor A, population declines and degradation of
habitat for this species are ongoing despite the protection afforded by
these laws. While these laws have resulted in improved water quality
and stream habitat for aquatic life, including the laurel dace, they
alone have not been adequate to fully protect this species;
sedimentation and non-point source pollutants continue to be a
significant problem. Sediment is the most abundant pollutant in the
watershed and one of the greatest threat to the laurel dace.
The State of Tennessee maintains water-use classifications through
issuance of NPDES permits to industries, municipalities, and others
that set maximum limits on certain pollutants or pollutant parameters.
For water bodies on the 303(d) list, States are required under the
Clean Water Act to establish a TMDL for the pollutants of concern that
will bring water quality into the applicable standard. The Tennessee
Department of Environment and Conservation has not identified any
impaired water bodies in the Soddy Creek, the Sale Creek system, or the
Piney River system (TDEC 2008).
The TWRA lists the laurel dace as endangered. Under the Tennessee
Nongame and Endangered or Threatened Wildlife Species Conservation Act
of 1974 (Tennessee Code Annotated Sec. Sec. 70-8-101-112), ``[I]t is
unlawful for any person to take, attempt to take, possess, transport,
export, process, sell or offer for sale or ship nongame wildlife, or
for any common or contract carrier knowingly to transport or receive
for shipment nongame wildlife.'' Further, regulations included in the
Tennessee Wildlife Resources Commission Proclamation 00-15 Endangered
Or Threatened Species state the following: ``Except as provided for in
Tennessee Code Annotated, Section 70-8-106 (d) and (e), it shall be
unlawful for any person to take, harass, or destroy wildlife listed as
threatened or endangered or otherwise to violate terms of Section 70-8-
105 (c) or to destroy knowingly the habitat of such species without due
consideration of alternatives for the welfare of the species listed in
(1) of this proclamation, or (2) the United States list of Endangered
fauna.'' Under these regulations, potential collectors of this species
are required to have a State collection permit. However, in terms of
project management, this regulation only provides for the consideration
of alternatives, and does not require the level of project review
afforded by the Act.
In summary, population declines and degradation of habitat for the
laurel dace are ongoing despite the protection afforded by State and
Federal water quality laws. While these laws have resulted in improved
water quality and stream habitat for aquatic life, including the laurel
dace, they alone have not been adequate to fully protect this species;
sedimentation and non-point source pollutants continue to be a
significant problem. Non-point pollution is not regulated by the Clean
Water Act. Due to the vulnerability of the laurel dace, we find the
threat of inadequate regulatory mechanisms to be imminent and of high
magnitude. Further, the information available to us at this time does
not indicate that the magnitude or imminence of this threat is likely
to be appreciably reduced in the foreseeable future.
E. Other Natural or Manmade Factors Affecting Its Continued Existence
The Cumberland darter, rush darter, yellowcheek darter, chucky
madtom, and laurel dace have limited geographic ranges and small
population sizes. Their existing populations are extremely localized,
and geographically isolated from one another, leaving them vulnerable
to localized extinctions from intentional or accidental toxic chemical
spills, habitat modification, progressive degradation from runoff (non-
point source pollutants), natural catastrophic changes to their habitat
(e.g., flood scour, drought), other stochastic disturbances, and to
decreased fitness from reduced genetic diversity. Potential sources of
unintentional spills include accidents involving vehicles transporting
chemicals over road crossings of streams inhabited by one of these five
fish, or the accidental or intentional release into streams of
chemicals used in agricultural or residential applications.
Species that are restricted in range and population size are more
likely to suffer loss of genetic diversity due to genetic drift,
potentially increasing their susceptibility to inbreeding depression,
decreasing their ability to adapt to environmental changes, and
reducing the fitness of individuals (Soule 1980, pp. 157-158; Hunter
2002, pp. 97-101; Allendorf and Luikart 2007, pp. 117-146). It is
likely that some of the Cumberland darter, rush darter, yellowcheek
darter, chucky madtom, and laurel dace populations are below the
effective population size required to maintain long-term genetic and
population viability (Soule 1980, pp. 162-164; Hunter 2002, pp. 105-
107). The long-term viability of a species is founded on the
conservation of numerous local populations throughout its geographic
range (Harris 1984, pp. 93-104). These separate populations are
essential for the species to recover and adapt to environmental change
(Noss and Cooperrider 1994, pp. 264-297; Harris 1984, pp. 93-104). The
level of isolation seen in these five species makes natural
repopulation following localized extirpations virtually impossible
without human intervention.
Climate change has the potential to increase the vulnerability of
the Cumberland darter, rush darter, yellowcheek darter, chucky madtom,
and laurel dace to random catastrophic events (e.g., McLaughlin et al.
2002; Thomas et al. 2004). Climate change is expected to result in
increased frequency and duration of droughts and the strength of storms
(e.g., Cook et al. 2004). During 2007, a severe drought affected the
upper Cumberland River basin in Kentucky and Tennessee. Streamflow
values for the Cumberland River at Williamsburg, Kentucky (USGS Station
Number 03404000), in September and October of 2007 were among the
lowest recorded monthly values (99th percentile for low-flow periods)
during the last 67 years (Cinotto 2008, pers. comm.). Climate change
could intensify or increase the frequency of drought events, such as
the one that occurred in 2007. Thomas et al. (2009, p. 112) report that
the frequency, duration, and intensity of droughts are likely to
increase in the southeast as a result of global climate change.
Fluker et al. (2007, p. 10) reported that drought conditions,
coupled with rapid urbanization in watersheds that contain rush
darters, render the populations vulnerable, especially during the
breeding season when they concentrate in wetland pools and shallow
pools of headwater streams. Drought conditions from 2006 to 2007
greatly reduced spawning habitat for
[[Page 36051]]
rush darter in Jefferson County (Drennen 2007, pers. obs.). Survey
numbers for the rush darter within the spring-fed headwaters for the
unnamed tributary to Turkey Creek during 2007 were reduced due to a
lack of water (Kuhajda 2008, pers. comm.). In Winston County, Stiles
and Mills (2008, pp. 5-6) noted that Doe Branch almost completely dried
up during the summer of 2007. (Stiles 2008, pers. comm.).
The federally endangered watercress darter (Etheostoma nuchale) was
translocated outside of its native range by the Service into Tapawingo
Springs in 1988 in order to assist in the species, recovery by
expanding its range (Moss 1995, p. 5). The watercress darter is now
reproducing and may be competing with rush darters in Tapawingo Springs
(USFWS 1993, p. 1; Drennen 2004, pers. obs.). More recently, a
population of watercress darters was found in the Penny Springs site
(Stiles and Blanchard 2001, p. 3). We require further investigation to
determine whether interspecific competition is occurring between the
watercress darter and the rush darter at this site. (Stiles 2008, pers.
comm.).
The Little Red River watershed in Arkansas experienced moderate
drought conditions during 1997-2000 (Southern Regional Climate Center
2000), which reduced flows in its tributaries and affected yellowcheek
darter populations. Stage height was 1 foot lower during the sampling
period for the 2000 status survey than during the 1979-1980 study (Wine
et al. 2000, p. 7). Stream flow is strongly correlated with important
physical and chemical parameters that limit the distribution and
abundance of riverine species (Power et al. 1995, p. 159, Resh et al.
1988, p. 437) and regulates the ecological integrity of flowing water
systems (Poff et al. 1997, p. 769). Yellowcheek darter was not found in
the upper reaches of any study streams or in the Turkey/Beech Fork
reach of Devils Fork, a likely result of drought conditions, and
indicates a contraction of yellowcheek darter range to stream reaches
lower in the watershed where flows are maintained for a greater portion
of the year (Wine et al. 2000, p. 11). The threat immediacy and
magnitude of drought is imminent and moderate to high, respectively, in
all four watersheds for the yellowcheek darter. Exacerbation of natural
drought cycles as a result of global climate change could have
detrimental effects on the species which could continue for the
foreseeable future.
The low fecundity rates exhibited by many madtom catfishes (Breder
and Rosen 1966 in Dinkins and Shute 1996, p. 58) could limit the
potential for populations to rebound from disturbance events. The short
life span exhibited by members of the N. hildebrandi clade (a taxonomic
group of organisms classified together on the basis of homologous
features traced to a common ancestor) of madtoms, if also true of
chucky madtoms, would further limit the species' viability by rendering
it vulnerable to severe demographic shifts from disturbances that
prevent reproduction in even a single year, and could be devastating to
the population if the disturbance persists for successive years.
In summary, because the Cumberland darter, rush darter, yellowcheek
darter, chucky madtom, and laurel dace all have limited geographic
ranges and small population sizes, they are subject to several ongoing
natural and manmade threats. Since these threats are ongoing, they are
considered to be imminent. Exacerbation of natural drought cycles as a
result of global climate change could have detrimental effects on these
five species which is expected to continue or increase in the future.
The magnitude of these threats is high for each of these species
because of their reduced ranges and population sizes which result in a
reduced ability to adapt to environmental change. Further, the
information available to us at this time does not indicate that the
magnitude or imminence of this threat is likely to be appreciably
reduced in the foreseeable future.
Proposed Determination
We have carefully assessed the best scientific and commercial
information available regarding the past, present, and future threats
to the Cumberland darter, rush darter, yellowcheek darter, chucky
madtom, and laurel dace. Based on the immediate and ongoing significant
threats to these species throughout their entire ranges, as described
above in the five-factor analyses, we consider these species to be in
danger of extinction throughout all of their ranges. The Endangered
Species Act (Sec. 3(5)(C)(6)) defines an endangered species as ``any
species which is in danger of extinction throughout all or a
significant portion of its range.'' Therefore, on the basis of the best
available scientific and commercial information, we are proposing to
list these five fishes as endangered species, in accordance with
Section 4(a)(1) of the Act.
The Cumberland darter is threatened with range curtailment,
specifically its disappearance from 9 streams and 11 historic sites,
and its small population size (only 51 individuals observed during the
most recent surveys by Thomas (2007, p. 3)). Rush darter populations
are isolated from each other, and individual rush darters are only
sporadically collected within their range. Where it occurs, the rush
darter is an uncommon species that is usually collected in low numbers.
Yellowcheek darter populations are restricted to portions of four
headwater streams, have declined drastically over the last 30 years and
are effectively isolated as a result of reservoir construction. Only
three specimens of the chucky madtom have been encountered since 2000
(one in 2000 and two in 2004), despite several surveys that have been
conducted in Little Chucky Creek and several streams in the Nolichucky,
Holston, and French Broad River watersheds of the upper Tennessee River
basin, which are similar in size and character to Little Chucky Creek.
The laurel dace is restricted to six streams, where they are only known
to occupy reaches of approximately 0.3 to 8 km (0.2 to 5 mi) in length.
These isolated species have a limited ability to recolonize
historically occupied stream and river reaches and are vulnerable to
natural or human-caused changes in their stream and river habitats.
Their range curtailment, small population size, and isolation make
these five species more vulnerable to threats such as sedimentation,
disturbance of riparian corridors, changes in channel morphology, point
and non-point source pollutants, urbanization, and introduced species.
Therefore, as described above, these five species are in danger of
extinction throughout their highly localized ranges due to their
reduction of habitat and ranges, small population sizes, current
habitat threats, and resulting vulnerability due to lack of regulatory
mechanisms and natural or human induced catastrophic events. Efforts to
control excessive sedimentation and improve general water quality
throughout their ranges coupled with efforts to increase population
levels will be essential for these species' survival.
Available Conservation Measures
Conservation measures provided to species listed as endangered or
threatened under the Act include recognition, recovery actions,
requirements for Federal protection, and prohibitions against certain
practices. Recognition through listing encourages and results in public
awareness and conservation by Federal, State, and local agencies,
private organizations, and individuals. The Act encourages cooperation
with the States and requires that recovery actions be carried out for
[[Page 36052]]
all listed species. The protection required of Federal agencies and the
prohibitions against take and harm are discussed, in part, below.
The primary purpose of the Act is the conservation of endangered
and threatened species and the ecosystems upon which they depend. The
ultimate goal of such conservation efforts is the recovery of these
listed species, so that they no longer need the protective measures of
the Act. Subsection 4(f) of the Act requires the Service to develop and
implement recovery plans for the conservation of endangered and
threatened species. The recovery planning process involves the
identification of actions that are necessary to halt or reverse the
species' decline by addressing the threats to its survival and
recovery. The goal of this process is to restore listed species to a
point where they are secure, self-sustaining, and functioning
components of their ecosystems.
Recovery planning includes the development of a recovery outline
shortly after a species is listed, preparation of a draft and final
recovery plan, and revisions to the plan as significant new information
becomes available. The recovery outline guides the immediate
implementation of urgent recovery actions and describes the process to
be used to develop a recovery plan. The recovery plan identifies site-
specific management actions that will achieve recovery of the species,
measurable criteria that determine when a species may be downlisted or
delisted, and methods for monitoring recovery progress. Recovery plans
also establish a framework for agencies to coordinate their recovery
efforts and provide estimates of the cost of implementing recovery
tasks. Recovery teams (comprised of species experts, Federal and State
agencies, non-government organizations, and stakeholders) are often
established to develop recovery plans. When completed, the recovery
outline, draft recovery plan, and the final recovery plan will be
available on our website (http://www.fws.gov/endangered), or from our
Fish and Wildlife Service Field Office (see FOR FURTHER INFORMATION
CONTACT).
Implementation of recovery actions generally requires the
participation of a broad range of partners, including other Federal
agencies, States, Tribal, nongovernmental organizations, businesses,
and private landowners. Examples of recovery actions include habitat
restoration (e.g., restoration of native vegetation), research, captive
propagation and reintroduction, and outreach and education. The
recovery of many listed species cannot be accomplished solely on
Federal lands because their range may occur primarily or solely on non-
Federal lands. To achieve recovery of these species requires
cooperative conservation efforts on private, State, and Tribal lands.
Listing will also require the Service to review any actions on
Federal lands and activities under Federal jurisdiction that may
adversely affect the five species; allow State plans to be developed
under section 6 of the Act; encourage scientific investigations of
efforts to enhance the propagation or survival of the animals under
section 10(a)(1)(A) of the Act; and promote habitat conservation plans
on non-Federal lands and activities under section 10(a)(1)(B) of the
Act.
Section 7(a) of the Act, as amended, requires Federal agencies to
evaluate their actions with respect to any species that is proposed or
listed as endangered or threatened and with respect to its critical
habitat, if any is designated. Regulations implementing this
interagency cooperation provision of the Act are codified at 50 CFR
part 402. Federal agencies are required to confer with us informally on
any action that is likely to jeopardize the continued existence of a
proposed species. Section 7(a)(4) 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. If a
species is listed subsequently, section 7(a)(2) requires Federal
agencies to ensure that activities they authorize, fund, or carry out
are not likely to jeopardize the continued existence of the species or
destroy or adversely modify its critical habitat. If a Federal action
may adversely affect a listed species or its critical habitat, the
responsible Federal agency must enter into formal consultation with the
Service.
Federal activities that may affect the Cumberland darter, rush
darter, yellowcheek darter, chucky madtom, and laurel dace include, but
are not limited to, the funding, carrying out, or the issuance of
permits for reservoir construction, natural gas extraction, stream
alterations, discharges, wastewater facility development, water
withdrawal projects, pesticide registration, mining, and road and
bridge construction.
Jeopardy Standard
Prior to and following listing and designation of critical habitat,
if prudent and determinable, the Service applies an analytical
framework for jeopardy analyses that relies heavily on the importance
of core area populations to the survival and recovery of the species.
The section 7(a)(2) analysis is focused not only on these populations
but also on the habitat conditions necessary to support them.
The jeopardy analysis usually expresses the survival and recovery
needs of the species in a qualitative fashion without making
distinctions between what is necessary for survival and what is
necessary for recovery. Generally, if a proposed Federal action is
incompatible with the viability of the affected core area
populations(s), inclusive of associated habitat conditions, a jeopardy
finding is considered to be warranted, because of the relationship of
each core area population to the survival and recovery of the species
as a whole.
Section 9 Take
Section 9(a)(2) of the Act, and its implementing regulations found
at 50 CFR 17.21, set forth a series of general prohibitions and
exceptions that apply to all endangered wildlife. These prohibitions,
in part, make it illegal for any person subject to the jurisdiction of
the United States to take (includes harass, harm, pursue, hunt, shoot,
wound, kill, trap, or collect, or to attempt any of these), import or
export, ship in interstate commerce in the course of commercial
activity, or sell or offer for sale in interstate or foreign commerce
any listed species. It also is illegal to knowingly possess, sell,
deliver, carry, transport, or ship any wildlife that has been taken
illegally. Certain exceptions apply to agents of the Service and State
conservation agencies.
We may issue permits to carry out otherwise prohibited activities
involving endangered wildlife species under certain circumstances.
Regulations governing permits are at 50 CFR 17.22 for endangered
species. Such permits are available for scientific purposes, to enhance
the propagation or survival of the species or for incidental take in
connection with otherwise lawful activities. The yellowcheek darter is
currently covered under a joint Safe Harbor/Candidate Conservation
Agreement with Assurances (SHA/CCAA) in the upper Little Red River
watershed in Arkansas along with the endangered speckled pocketbook
mussel. Seven landowners have enrolled 3,845 hectares (9,500 acres) in
the program since its inception in mid-2007 and 10 more landowners with
approximately 19, 420 hectares (48,000 acres) are pending with draft
agreements. The CCAA would convert to a SHA if the species becomes
listed as threatened or endangered and would be covered by an
enhancement of
[[Page 36053]]
survival permit, which expires January 1, 2044.
Under the Interagency Cooperative Policy for Endangered Species Act
Section 9 Prohibitions, published in the Federal Register on July 1,
1994 (59 FR 34272), we identify to the maximum extent practicable those
activities that would or would not constitute a violation of section 9
of the Act if the Cumberland darter, rush darter, yellowcheek darter,
chucky madtom, and laurel dace are listed. The intent of this policy is
to increase public awareness as to the effects of these proposed
listings on future and ongoing activities within a species' range. We
believe, based on the best available information, that the following
actions will not result in a violation of the provisions of section 9
of the Act, provided these actions are carried out in accordance with
existing regulations and permit requirements:
(1) Possession, delivery, or movement, including interstate
transport that does not involve commercial activity, of specimens of
these species that were legally acquired prior to the publication in
the Federal Register of the Federal List of Endangered or Threatened
Wildlife and Plants;
(2) Discharges into waters supporting the Cumberland darter, rush
darter, yellowcheek darter, chucky madtom, and laurel dace, provided
these activities are carried out in accordance with existing
regulations and permit requirements (e.g., activities subject to
section 404 of the Clean Water Act and discharges regulated under the
National Pollutant Discharge Elimination System (NPDES));
(3) Development and construction activities designed and
implemented under State and local water quality regulations and
implemented using approved Best Management Practices; and
(4) Any actions that may affect the Cumberland darter, rush darter,
yellowcheek darter, chucky madtom, and laurel dace that are authorized,
funded, or carried out by a Federal agency (e.g., bridge and highway
construction, pipeline construction, hydropower licensing, etc.), when
the action is conducted in accordance with the consultation and
planning requirements for listed species pursuant to sections 7 and 10
of the Act.
Potential activities that we believe will likely be considered a
violation of section 9 if these species become listed, include, but are
not limited to, the following:
(1) Unauthorized possession, collecting, trapping, capturing,
killing, harassing, sale, delivery, or movement, including interstate
and foreign commerce, or harming, or attempting any of these actions,
of the Cumberland darter, rush darter, yellowcheek darter, chucky
madtom, and laurel dace;
(2) Unlawful destruction or alteration of their habitats (e.g.,
unpermitted instream dredging, impoundment, channelization, discharge
of fill material) that impairs essential behaviors such as breeding,
feeding, or sheltering, or results in killing or injuring any of these
species;
(3) Violation of any discharge or water withdrawal permit that
results in harm or death to any of these species or that results in
degradation of their occupied habitat to an extent that essential
behaviors such as breeding, feeding and sheltering are impaired; and
(4) Unauthorized discharges or dumping of toxic chemicals or other
pollutants into waters supporting the Cumberland darter, rush darter,
yellowcheek darter, chucky madtom, and laurel dace that kills or
injures these species, or otherwise impairs essential life-sustaining
requirements such as breeding, feeding, or shelter.
Other activities not identified above will be reviewed on a case-
by-case basis to determine if a violation of section 9 of the Act may
be likely to result from such activity should these fishes become
listed. The Service does not consider these lists to be exhaustive and
provides them as information to the public.
If you have questions regarding whether specific activities will
likely violate the provisions of section 9 of the Act, contact the
Alabama, Arkansas, Tennessee, Kentucky, or Mississippi Ecological
Services Field Office (see FOR FURTHER INFORMATION CONTACT section).
Requests for copies of regulations regarding listed species and
inquiries about prohibitions and permits should be addressed to the
U.S. Fish and Wildlife Service, Ecological Services Division, 1875
Century Boulevard, Atlanta, GA 30345 (Phone 404/679-7313; Fax 404/679-
7081).
Critical Habitat
Background
Critical habitat is defined in section 3 of the Act as:
(i) the specific areas within the geographical area occupied by a
species, at the time it is listed in accordance with the Act, on which
are found those physical or biological features
(I) essential to the conservation of the species, and
(II) that may require special management considerations or
protection; and
(ii) specific areas outside the geographic area occupied by a
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 pursuant to the Act are no longer necessary.
Critical habitat receives protection under section 7 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) of the Act would apply, but even in the event of a
destruction or adverse modification finding, the obligation of the
Federal action agency and the applicant is not to restore or recover
the species, but to implement reasonable and prudent alternatives to
avoid destruction or adverse modification of critical habitat.
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, we designate critical habitat at the time the
species is determined to be endangered or threatened. Our regulations
(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 human activity, and
identification of critical habitat can be expected to increase the
degree of threat to the species, or (2) such designation of critical
habitat would not be beneficial to the species.
There is no documentation that the Cumberland darter, rush darter,
yellowcheek darter, chucky madtom, or laurel dace are threatened by
taking or
[[Page 36054]]
other human activity such that identification of critical habitat for
each of these species could be expected to increase the degree of
threat to them. In the absence of finding that the designation of
critical habitat would increase threats to a species, if there are any
benefits to a critical habitat designation, then we would determine
that the designation of critical habitat is prident. For these species,
the potential benefits include: (1) Triggering consultation under
section 7 of the Act, in new areas for actions 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)
focusing conservation activities on the most essential features and
areas; (3) providing educational benefits to State or county
governments, private entities, and the public as a whole; and (4)
preventing people from causing inadvertent harm to the species.
The primary regulatory effect of critical habitat is the section
7(a)(2) requirement that Federal agencies refrain from taking any
action that destroys or adversely affects critical habitat. Extant
populations of the Cumberland darter occur in watersheds that are
roughly 60 percent privately owned and 40 percent publicly-owned (U.S.
Forest Service (USFS), DBNF). The U.S. Forest Service's ownership is
typically fragmented and often occurs on only one side of the stream.
The rush darter occupies streams that are approximately 96 percent
privately owned industrial, forestry, agricultural, and urbanized
lands. The State of Alabama, Jefferson County, and the Freshwater Land
Trust own and maintain about two percent of the rush darter's habitat;
and the USFS manages approximately two percent of habitat in the
Bankhead National Forest. The U.S. Forest Service owns two percent of
yellowcheek darter habitat in Arkansas, while the Arkansas Game and
Fish Commission owns one percent. The remaining 97 percent is privately
owned. In the Little Chucky Creek watershed, the chucky madtom occupies
habitat that is primarily privately owned. Approximately five percent
of the Dunn Creek watershed is owned by the National Park Service
(i.e., portions of the Great Smoky Mountains National Park and
Foothills Parkway), but the majority of the watershed is privately
owned habitat for the madtom. The laurel dace is only known to occur in
waters within privately owned lands. Any of the abovementioned lands
that may be designated as critical habitat in the future for these
species may be subject to Federal actions that trigger the section 7
consultation requirement, such as the granting of Federal monies for
conservation projects and/or the need for Federal permits for projects
(e.g., construction and maintenance of roads and bridges subject to
section 404 of the Clean Water Act).
There may also be some educational or informational benefits to the
designation of critical habitat. Educational benefits include the
notification of land owners, land managers, and the general public of
the importance of protecting the habitat of these species. In the case
of these species, this aspect of critical habitat designation would
potentially benefit the conservation of these species.
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
designation of critical habitat is prudent for the Cumberland darter,
rush darter, yellowcheek darter, chucky madtom, and laurel dace.
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:
(i) Information sufficient to perform required analyses of the
impacts of the designation is lacking, or
(ii) 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)).
In accordance with section 3(5)(A)(i) and 4(b)(1)(A) of the Act and
the regulations at 50 CFR 424.12, in determining which areas occupied
by the species at the time of listing to designate as critical habitat,
we consider the physical and biological features 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, and rearing (or development)
of offspring; and
(5) Habitats that are protected from disturbance or are
representative of the historical geographical and ecological
distributions of a species.
We are currently unable to identify the physical and biological
features for the Cumberland darter, rush darter, yellowcheek darter,
chucky madtom, and laurel dace, because information on the physical and
biological features that are considered essential to the conservation
of these species is not known at this time. As discussed in the
``Species Information'' section of this proposed rule, the life
histories of these species are poorly known. Although, as described
above, we can surmise that habitat degradation from a variety of
factors has contributed to the decline of these species, we do not know
specifically the essential physical or biological features the habitat
is currently lacking. As we are unable to identify the physical and
biological features essential to the conservation of these species, we
are unable to identify areas that contain these features. Therefore,
although we have determined that the designation of critical habitat is
prudent for the Cumberland darter, rush darter, yellowcheek darter,
chucky madtom, and laurel dace, since the biological requirements of
these species are not sufficiently known, we find that critical habitat
for these species is not determinable at this time.
How the Service Intends to Proceed
We intend to begin preparation of proposed rulemaking in Fiscal
Year 2011 and publish a proposed critical habitat designation for
Cumberland darter, rush darter, yellowcheek darter, chucky madtom, and
laurel dace in June 2011. We will take the following steps to develop a
proposal of critical habitat for the Cumberland darter, rush darter,
yellowcheek darter, chucky madtom, and laurel dace: (1) Determine the
geographical area occupied by the species at the time of listing; (2)
identify the physical or biological features essential to the
conservation of the species; (3) delineate areas within the
geographical area occupied by the species that contain these features,
and identify the special management considerations or protections the
features may require; (4) delineate any areas outside of the
geographical area occupied by the species at the time of listing that
are essential for the conservation of the species; and (5) conduct
appropriate analyses under section 4(b)(2) of the Act.
[[Page 36055]]
To aid us in completing these steps, we will use the best science
available. We also solicit the public for additional information (see
Request for Public Information section below) and will consult experts
on the Cumberland darter, rush darter, yellowcheek darter, chucky
madtom, and laurel dace.
While the proposed designation of critical habitat for these fishes
is under preparation, the areas occupied by these species in the United
States will continue to be subject to conservation actions implemented
under section 7(a)(1) of the Act, as well as consultation pursuant to
section 7(a)(2) of the Act for Federal activities that may affect any
of these species, as determined on the basis of the best available
scientific information at the time of the action. In addition, the
prohibition of taking Cumberland darter, rush darter, yellowcheek
darter, chucky madtom, and laurel dace under section 9 of the Act
(e.g., prohibitions against killing, harming, harassing, and capturing
endangered species) continues to apply.
We will also continue to use our authorities to work with agencies
and other partners in the to conserve and recover these species. We are
working with the partners to develop and implement a framework for the
conservation of the Cumberland darter, rush darter, yellowcheek darter,
chucky madtom, and laurel dace.
Request for Public Information
We intend that any designation of critical habitat for the
Cumberland darter, rush darter, yellowcheek darter, chucky madtom, and
laurel dace be as accurate as possible. Therefore, we will continue to
accept additional information and comments from all concerned
governmental agencies, the scientific community, industry, or any other
interested party concerning this finding. We are particularly
interested in information concerning:
(1)The reasons why areas should or should not be designated as
critical habitat as provided by section 4 of the Act (16 U.S.C. 1531,
et seq.), including whether the benefits of designation would outweigh
threats to the species that designation could cause (e.g., exacerbation
of existing threats, such as overcollection), such that the designation
of critical habitat is prudent; and
(2)Specific information on:
What areas contain physical and biological features essential
for the conservation of the species;
What areas are essential to the conservation of the species;
and
Special management considerations or protection that proposed
critical habitat may require;
Conservation programs and plans that protect these species and
their habitat; and;
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 concerns and
comments.
Public Comment Procedures
To ensure that any final action resulting from this finding will be
as accurate and as effective as possible, we request that you send
relevant information for our consideration. The comments that will be
most useful and likely to influence our decisions are those that you
support by quantitative information or studies and those that include
citations to, and analyses of, the applicable laws and regulations.
Please make your comments as specific as possible and explain the bases
for them. In addition, please include sufficient information with your
comments to allow us to authenticate any scientific or commercial data
you include. For instructions on how to submit comments, please see the
Request for Public Comments
Section.
Public Availability of Comments
As stated above in more detail, before including your address,
phone number, e-mail address, or other personal identifying information
in your comment, you should be aware that your entire comment--
including your personal identifying information--may be made publicly
available at any time. While you can ask us in your comment to withhold
your personal identifying information from public review, we cannot
guarantee that we will be able to do so.
Peer Review
In accordance with our joint policy published in the Federal
Register on July 1, 1994 (59 FR 34270), we will seek the expert
opinions of at least three appropriate and independent specialists
regarding this proposed rule. The purpose of such review is to ensure
that our proposed rule is based on scientifically sound data,
assumptions, and analyses. We will send these peer reviewers copies of
this proposed rule immediately following publication in the Federal
Register. We will invite these peer reviewers to comment, during the
public comment period, on the specific assumptions and the data that
are the basis for our conclusions regarding the proposal to list
Cumberland darter (Etheostoma susanae), rush darter (Etheostoma
phytophilum), yellowcheek darter (Etheostoma moorei), chucky madtom
(Noturus crypticus), and laurel dace (Phoxinus saylori) as endangered
and our proposal regarding critical habitat for this species.
We will consider all comments and information we receive during the
comment period on this proposed rule during preparation of a final
rulemaking. Accordingly, our final decision may differ from this
proposal.
Public Hearings
The Act provides for one or more public hearings on this proposal,
if requested. Requests must be received within 45 days after the date
of publication of this proposal in the Federal Register. Such requests
must be made in writing and be addressed to the Field Supervisor at the
address in the FOR FURTHER INFORMATION CONTACT section. We will
schedule public hearings on this proposal, if any are requested, and
announce the dates, times, and places of those hearings, as well as how
to obtain reasonable accommodations, in the Federal Register and local
newspapers at least 15 days before the hearing.
Persons needing reasonable accommodations to attend and participate
in a public hearing should contact the Tennessee Ecological Services
Field Office by telephone at 931-528-6481, as soon as possible. To
allow sufficient time to process requests, please call no later than
one week before the hearing date. Information regarding this proposed
rule is available in alternative formats upon request.
Required Determinations
Clarity of the Rule
We are required by Executive Orders 12866 and 12988 and by the
Presidential Memorandum of June 1, 1998, to write all rules in plain
language. This means that each rule we publish must:
(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
[[Page 36056]]
section. To better help us revise the rule, your comments should be as
specific as possible. For example, you should tell us the names 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.
Paperwork Reduction Act of 1995 (44 U.S.C. 3501, et seq.)
This rule does not contain any new collections of information that
require approval by Office of Management and Budget (OMB) under the
Paperwork Reduction Act. 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
We have determined that environmental assessments and environmental
impact statements, as defined under the authority of the National
Environmental Policy Act of 1969, need not be prepared in connection
with regulations adopted pursuant to section 4(a) of the Act. We
published a notice outlining our reasons for this determination in the
Federal Register on October 25, 1983 (48 FR 49244).
References Cited
A complete list of all references cited in this rule is available
on the Internet at http://www.regulations.govor upon request from the
Field Supervisor, Tennessee Ecological Services Field Office (see FOR
FURTHER INFORMATION CONTACT section).
Author(s)
The primary authors of this document are staff members of the U.S.
Fish and Wildlife Service's Tennessee Ecological Services Field Office,
Kentucky Ecological Services Field Office, Arkansas Ecological Services
Office, and the Mississippi Ecological Services Field 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; Public Law 99-625, 100 Stat. 3500; unless otherwise
noted.
2. In Sec. 17.11(h) add the following to the List of Endangered and
Threatened Wildlife in alphabetical order under Fishes:
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
--------------------------------------------------------------------------------------------------------------------------------------------------------
* * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
Dace, laurel Phoxinus saylori U.S.A (TN) Entire E TBD NA NA
--------------------------------------------------------------------------------------------------------------------------------------------------------
* * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
Darter, Cumberland Etheostoma U.S.A. (KY, TN) Entire E TBD NA NA
susanae
--------------------------------------------------------------------------------------------------------------------------------------------------------
* * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
Darter, rush Etheostoma U.S.A. (AL) Entire E TBD NA NA
phytophilum
--------------------------------------------------------------------------------------------------------------------------------------------------------
* * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
Darter, yellowcheek Etheostoma U.S.A. (AR) Entire E TBD NA NA
moorei
--------------------------------------------------------------------------------------------------------------------------------------------------------
* * * * * * *
Madtom, chucky Noturus U.S.A. (TN) Entire E TBD NA NA
crypticus
--------------------------------------------------------------------------------------------------------------------------------------------------------
* * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
[[Page 36057]]
* * * * *
Dated: June 2, 2010
Jeffrey L. Underwood,
Acting Director, U.S. Fish and Wildlife Service.
[FR Doc. 2010-15240 Filed 6-23- 10; 8:45 am]
BILLING CODE 4310-55-S