[Federal Register: December 7, 2010 (Volume 75, Number 234)]
[Rules and Regulations]
[Page 75913-75931]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr07de10-13]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
[Docket No. FWS-R4-ES-2009-0079; MO 92210-1117-0000-B4]
RIN 1018-AW52
Endangered and Threatened Wildlife and Plants; Designation of
Critical Habitat for the Vermilion Darter
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: We, the U.S. Fish and Wildlife Service (Service), designate
critical habitat for the vermilion darter (Etheostoma chermocki) under
the Endangered Species Act of 1973, as amended (Act). We designate as
critical habitat approximately 21.0 kilometers (km) (13.0 miles (mi))
of stream in 5 units within the Turkey Creek watershed in Jefferson
County, AL.
DATES: This rule becomes effective on January 6, 2011.
ADDRESSES: This final rule, the final economic analysis, comments and
materials received, as well as supporting documentation we used in
preparing this final rule, are available for viewing on the Internet at
http://regulations.gov at Docket No. FWS-R4-ES-2009-0079 and, by
appointment, during normal business hours, at the U.S. Fish and
Wildlife Service, Mississippi Fish and Wildlife Office, 6578 Dogwood
View Parkway, Jackson, MS 39213; telephone 601-321-1122; facsimile 601-
965-4340.
FOR FURTHER INFORMATION CONTACT: Stephen Ricks, Field Supervisor, U.S.
Fish and Wildlife Service, Mississippi Fish and Wildlife Office (see
ADDRESSES above). If you use a telecommunications device for the deaf
(TDD), call the Federal Information Relay Service (FIRS) at 800-877-
8339.
SUPPLEMENTARY INFORMATION:
Background
It is our intent to discuss only those topics directly relevant to
the designation of critical habitat for the vermilion darter under the
Act (16 U.S.C. 1531 et seq.), in this final rule. For more information
on the biology and ecology of the vermilion darter, refer to the final
listing rule published in the Federal Register on November 28, 2001 (66
FR 59367) and the Vermilion Darter Recovery Plan, available on the
Internet at http://ecos.fws.gov/docs/recovery_plan/070802.pdf. For
information on vermilion darter critical habitat, refer to the proposed
rule to designate critical habitat for the vermilion darter published
in the Federal Register on December 3, 2009 (74 FR 63366). Information
on the associated draft economic analysis for the proposed rule to
designate revised critical habitat was published in the Federal
Register on June 29, 2010 (75 FR 37350). See also the discussion of
habitat in the Physical and Biological Features section below.
Description and Taxonomy
The vermilion darter (Etheostoma chermocki (Teleostei: Percidae))
was officially described in 1992 from Turkey Creek, a tributary of the
Locust Fork, which is within the Black Warrior River drainage of
Jefferson County, Alabama. The vermilion darter belongs to the subgenus
Ulocentra (snubnose darters), which includes fish that are slightly
laterally compressed, have complete lateral lines, broadly connected
gill membranes, a short head, and a small pronounced mouth. The
vermilion darter is a medium-sized darter, reaching about 7.1
centimeters (2.8 inches) total length (length from tip of snout to
longest portion of tail fin).
Distribution and Habitat
The vermilion darter is a narrowly endemic fish species, occurring
in sparse, fragmented, and isolated populations. The species is only
known in parts of the upper mainstem reach of Turkey Creek and four
tributaries in Pinson, Jefferson County, Alabama (Boschung and Mayden
2004, p. 520). Suitable streams have pools of moderate current
alternating with riffles of moderately swift current, and low water
turbidity.
The vermilion darter was listed as endangered (66 FR 59367,
November 28, 2001) because of ongoing threats to the species and its
habitat from urbanization within the Turkey Creek watershed. The
primary threats to the species and its habitat are degradation of water
quality and substrate
[[Page 75914]]
components due to sedimentation and other pollutants, and altered flow
regimes from activities such as construction and maintenance
activities; impoundments (five within the Turkey Creek and Dry Creek
system); instream gravel extractions; off-road vehicle usage; road,
culvert, pipe, bridge, gas, sewer and water easement construction; and
inadequate stormwater management (Drennen pers. obs. 2007-2009; Blanco
and Mayden 1999, pp. 18-20). These activities lead to water quality
degradation; the production of pollutants (sediments, nutrients from
sewage, pesticides, fertilizers, and industrial and stormwater
effluents); stream channel instability; fragmentation; reduced
connectivity of the habitat from alteration of stream banks and
bottoms; degradation of riffles, runs, and pools; and changes in water
quantity and flow necessary for spawning, feeding, resting, and other
life-history processes of the species.
Previous Federal Actions
The vermilion darter (Etheostoma chermocki) was listed as
endangered under the Act on November 28, 2001 (66 FR 59367). At the
time of listing, we found that designation of critical habitat was
prudent. However, due to budgetary constraints, we did not designate
critical habitat at that time. We approved a final recovery plan for
the vermilion darter on June 20, 2007 (Service 2007), and announced its
availability to the public through a notice published in the Federal
Register on August 2, 2007 (72 FR 42426).
On November 27, 2007, the Center for Biological Diversity filed a
lawsuit against the Secretary of the Interior for our failure to timely
designate critical habitat for the vermilion darter (Center for
Biological Diversity v. Kempthorne (07-CV-2928)). In a court-approved
settlement agreement, the Service agreed to submit to the Federal
Register a new prudency determination, and if the designation was found
to be prudent, a proposed designation of critical habitat, by November
30, 2009, and a final designation by November 30, 2010. We published a
proposed critical habitat designation for the vermilion darter on
December 3, 2009 (74 FR 63366), and accepted public comments for 60
days.
Summary of Comments and Recommendations
We requested written comments from the public on the proposed
designation of critical habitat for the vermilion darter (74 FR 63366)
during the December 3, 2009, to February 1, 2010, comment period. We
contacted appropriate Federal, State, and local agencies; scientific
organizations; and other interested parties, and invited them to
comment on the proposed rule. We issued a press release and published a
legal notice in the Birmingham News. On June 29, 2010, we published a
notice reopening the comment period until July 29, 2010, as well as
announcing the availability of a draft economic analysis and amended
required determinations (75 FR 37350). We directly notified, and
requested comments from the State of Alabama. During the open comment
periods we received a total seven comments letters: five from
organizations and individuals and two from peer reviewers, one of whom
also represented the State of Alabama. All comments supported
designation of critical habitat for the vermilion darter. We reviewed
all comments for substantive issues and new data regarding vermilion
darter critical habitat and the economic analysis. Written comments are
addressed in the following summary. For readers' convenience, we have
combined similar comments into single comments and responses.
Peer Review
In accordance with our policy published in the Federal Register on
July 1, 1994 (59 FR 34270), we solicited expert opinions from three
knowledgeable individuals with scientific expertise that included
familiarity with the species, the geographic region in which the
species occurs, and conservation biology principles. The purpose of
such review is to ensure that the designation is based on
scientifically sound data, assumptions, and analysis, including input
of appropriate experts and specialists. We received written responses
from two of the three peer reviewers whom we contacted. The peer
reviewers generally agreed that the rule incorporated the best
scientific information available, accurately described the species and
its habitat requirements (primary constituent elements), accurately
characterized the reasons for the species' decline and the threats to
its habitat. Both peer reviewers concurred with our critical habitat
selection criteria and use of the Vermilion Darter Recovery Plan (USFWS
2007) as a foundation for the proposed designation. Both peer reviewers
provided additional information, clarifications, and suggestions to
improve the final critical habitat rule. These editorial revisions and
clarifications have been incorporated into the final rule, as
appropriate. One peer reviewer recommended an additional area for
critical habitat designation.
Peer Reviewer Comments
Comment 1: The six-lane Northern Beltline Corridor and the right-
of-way segment for the Northern Beltline Corridor between Alabama
Highway 79 and Alabama Highway 75 north of Pinson will have direct and
indirect impacts on the critical habitat of the vermilion darter and
the general water quality of the Turkey Creek watershed.
Our Response: The Northern Beltline crosses the northern portions
of Dry Creek. Only 0.6 km (0.4 mi) of Dry Creek below Innsbrook Lake is
designated as critical habitat and this is not within the immediate
area of the Northern Beltline. We reviewed and evaluated the Northern
Beltline Corridor in accordance with the Fish and Wildlife Coordination
Act (48 Stat. 401, as amended; 16 U.S.C. 661 et seq.) and the
Endangered Species Act. We found that the project would not adversely
affect the vermilion darter or any federally listed species. We will
reinitiate consultation if new information indicates that the Northern
Beltline is a threat to the species or its designated critical habitat,
or if the project is modified in a manner or extent not previously
considered.
Comment 2: Stormwater management is a much larger issue to critical
habitat than what is presented in the rule. There is no maximum
instream flow limit in reference to the impacts of stormwater on
critical habitat.
Our Response: Stormwater management and its implications to water
quality are addressed within the threats section of this rule. In
regard to water quantity and stormwater management, an instream flow
regime with a minimum average daily discharge over 50 cubic feet per
second (compiled from U.S. Geological Survey flow data) is critical to
the vitality of the critical habitat and is discussed in this rule.
However, at this time, we do not have sufficient scientific information
to determine a maximum stormwater management flow for the designated
critical habitat. Average discharges of greater than 100 cubic feet per
second, inclusive of both surface runoff and groundwater sources
(springs and seepages), occur sporadically throughout the hydrologic
cycle of the critical habitat and may be important maximum flow
benchmarks in the future for determining the maximum flow. However, it
is not known at this time at what point, or velocity in cubic feet per
second, a flow within the hydrological year changes from a
[[Page 75915]]
flushing flow to a flow that causes geomorphologic or biological
damage.
Comment 3: The commenter states that protection of aquifers and
groundwater recharge areas is especially important because of the
impacts of climate change on the habitat of the vermilion darter;
specifically those impacts ``resulting in higher stream water
temperatures and lower flows, and stormwater management needs and
higher flows.'' The Service should be consulted for disturbances within
the critical habitat area as well as beyond the immediate critical
habitat area within the recharge areas particularly in regard to
springs and seeps.
Our Response: Critical habitat only affects Federal agencies and
those projects which have a Federal nexus. All Federal agencies must
comply with section 7 of the Act. Section 7 requires consultation on
Federal actions that may adversely affect critical habitat. Under
section 7 of the Act, the Federal action agency must provide an
analysis of cumulative effects along with other information, when
requesting formal consultation. The Service will be consulted for
disturbances to areas both within the critical habitat units as well as
those within the recharge area, including springs and seeps that
contribute to the instream flow in the tributaries, especially during
times when stream flows are abnormally low. See the Effects of Critical
Habitat Designation section of this rule for additional information on
section 7 consultation.
Comment 4: The Service should include the spring run on the east
side of north bound Alabama Highway 79 as part of the critical habitat
designation. Vermilion darters have been collected there during the
spawning season.
Our Response: We acknowledge that there have been some sporadic
collections of the vermilion darter at this spring run. We did not
designate this site as critical habitat because the available
information demonstrated that it did not contain the physical and
biological features essential to the conservation of the species. See
the Primary Constituent Elements section of this rule for areas
essential to the conservation of the species. The spring run is located
in a road-side ditch about 30 feet long. The run is bordered on all
sides by pipes, roads, and a parking lot. It is disjunct and drains
into Unit 5 but first must traverse about 100 feet within a pipe under
Highway 79. However, although the spring run is not designated as
critical habitat, the site will continue to be subject to conservation
actions we implement under section 7 of the Act. See the Effects of
Critical Habitat Designation section of this rule for additional
information on section 7 consultation.
Public Comments
Comment 5: The size of the critical habitat for the vermilion
darter is inadequate. The entire watersheds of the proposed stream
units should be designated as critical habitat. At a minimum, the
Service should designate a 300- to 500-foot buffer zone along each bank
of all 5 stream units as critical habitat.
Our Response: The Act requires us to designate specific areas
within the geographical area occupied by a species at the time it is
listed which contain physical or biological features that are essential
to the conservation of the species, and that may require special
management considerations or protection. Specific areas outside the
geographical area occupied by a species at the time of listing may also
be designated critical habitat if it is determined that such areas are
essential for the conservation of the species. We believe the five
stream units that were proposed as critical habitat are occupied by the
vermilion darter, are essential to its conservation, and require
special management considerations or protection. As described in the
proposed rule (74 FR 63366), we considered additional areas; however,
they did not meet the criteria for designation as critical habitat.
When evaluating the effects of any Federal action subject to
section 7 consultation, all activities which have the potential to
destroy or adversely modify designated critical habitat must be
considered. Adverse impacts to vermilion darter critical habitat might
result from stormwater runoff, eutrophication, or potential changes in
hydrology, geomorphology, etc. (see Effects of Critical Habitat
Designation section below), that would include areas upstream of or
adjacent to areas of stream channels that were designated critical
habitat. Therefore, specific designation of these areas is unnecessary.
Identification of the stream channel as critical habitat provides
notice to Federal agencies to review activities conducted anywhere
within the drainage for their potential effects to the designated
portion of the channel. Critical habitat designation will alert third
parties of the importance of the area to the survival of the vermilion
darter.
Comment 6: The six-lane Northern Beltline Corridor will cross Dry
Creek and follow the hilly terrain within the Turkey Creek watershed.
Dry Creek will be placed in culverts at two locations and the general
water quality of the Turkey Creek watershed, along with the habitat of
the vermilion darter, will be impacted negatively.
Our Response: We evaluated the potential effects of the Northern
Beltline on the vermilion darter and other trust resources in
accordance with the Fish and Wildlife Coordination Act (48 Stat. 401,
as amended; 16 U.S.C. et seq.) and the Endangered Species Act and found
that the project would not adversely affect any federally listed
species. We will reinitiate consultation if new information indicates
that the Northern Beltline is a threat to the species or its designated
critical habitat, or if the project is modified in a manner or extent
not previously considered (See Comment 1 in the Peer Reviewer Comments
section).
Comment 7: Strip mines are occurring along the Locust Fork of the
Black Warrior River near Turkey Creek, outside of the vermilion
darter's range and the critical habitat, but within the lower portion
of the Turkey Creek watershed. The Majestic Mine is permitted to
discharge within Turkey Creek via the creek's tributaries. The Service
may want to consider extending the critical habitat of Turkey Creek
downstream (from the lower section) to the confluence with the Locust
Fork of the Black Warrior River, thus allowing the future downstream
migration or reintroduction of the species.
Our Response: The areas below the most downstream point of Turkey
Creek do not contain, at this time, the physical and biological
features essential to the conservation of the vermilion darter. Current
and proposed coal mining activities, along with current geomorphic
conditions, limit the expansion of the vermilion darter beyond this
point within Turkey Creek.
Comment 8: We are skeptical that the rule provides conservation
standards adequate for the vermilion darter because critical habitat
designation is based on data collected over a decade ago when the
species was listed. An updated assessment may have expanded critical
habitat to other areas.
Our Response: We utilized the most current information available
when preparing this designation, including information from studies
conducted since the vermilion darter listing in 2001 (i.e.,
Khudamrongsawat 2007, Khudamrongsawat et al. 2005, Rakes and Shute
2005, USFWS 2007). We have determined that sufficient information is
available to identify basic features essential to the conservation of
the species as well as specific areas that meet the definition of
critical habitat (see Critical Habitat section below).
[[Page 75916]]
Comment 9: Ensure the continuity in water flow in the Units to
promote genetic flow within Turkey Creek, to prevent the extinction of
the vermilion darter.
Our Response: We will implement the requirements of the Act and
continue to monitor all activities that might affect stream flow and
continuity within the designated area in light of their effects on
water quality or quantity (see Physical and Biological Features and
Effects of Critical Habitat Designation sections below).
Comments From States
We received two editorial comments to the critical habitat rule
from the Alabama Department of Conservation and Natural Resources,
which have been incorporated into this final rule. No official position
was expressed by the State on the critical habitat designation.
Critical Habitat
Background
Critical habitat is defined in section 3 of the Act as:
(1) The specific areas within the geographical area occupied by the
species, at the time it is listed in accordance with the Act, on which
are found those physical or biological features
(a) Essential to the conservation of the species, and
(b) Which may require special management considerations or
protection; and
(2) Specific areas outside the geographical area occupied by the
species at the time it is listed, upon a determination that such areas
are essential for the conservation of the species.
Conservation, as defined under section 3 of the Act, means to use
and the use of all methods and procedures that are necessary to bring
an endangered or threatened species to the point at which the measures
provided under the Act are no longer necessary. Such methods and
procedures include, but are not limited to, all activities associated
with scientific resources management such as research, census, law
enforcement, habitat acquisition and maintenance, propagation, live
trapping, and transplantation, and, in the extraordinary case where
population pressures within a given ecosystem cannot be otherwise
relieved, may include regulated taking.
Critical habitat receives protection under section 7 of the Act
through the requirement that Federal agencies insure, in consultation
with the Service, that any action they authorize, fund, or carry out is
not likely to result in the destruction or adverse modification of
critical habitat. The designation of critical habitat does not affect
land ownership or establish a refuge, wilderness, reserve, preserve, or
other conservation area. Such designation does not allow the government
or public to access private lands. Such designation does not require
implementation of restoration, recovery, or enhancement measures by
non-Federal landowners. Where a landowner seeks or requests Federal
agency funding or authorization for an action that may affect a listed
species or critical habitat, the consultation requirements of section
7(a)(2) would apply, but even in the event of a destruction or adverse
modification finding, the obligation of the Federal action agency and
the landowner is not to restore or recover the species, but to
implement reasonable and prudent alternatives to avoid destruction or
adverse modification of critical habitat.
For inclusion in a critical habitat designation, habitat within the
geographical area occupied by the species at the time it was listed
must contain the physical or biological features which are essential to
the conservation of the species, and which may require special
management considerations or protection. Critical habitat designations
identify, to the extent known using the best scientific and commercial
data available, those physical and biological features that are
essential to the conservation of the species (such as space, food,
cover, and protected habitat), focusing on the principal biological or
physical constituent elements (primary constituent elements) within an
area that are essential to the conservation of the species (such as
roost sites, nesting grounds, seasonal wetlands, water quality, tide,
soil type). Primary constituent elements are the elements of physical
and biological features that, when laid out in the appropriate quantity
and spatial arrangement to provide for a species' life-history
processes, are essential to the conservation of the species.
Under the Act, we can designate critical habitat in areas outside
the geographical area occupied by the species at the time it is listed,
upon a determination that such areas are essential for the conservation
of the species. We designate critical habitat in areas outside the
geographical area occupied by a species only when a designation limited
to its range would be inadequate to ensure the conservation of the
species. When the best available scientific data do not demonstrate
that the conservation needs of the species require such additional
areas, we will not designate critical habitat in areas outside the
geographical area occupied by the species. An area currently occupied
by the species but that was not occupied at the time of listing may,
however, be essential to the conservation of the species and may be
included in the critical habitat designation.
Section 4 of the Act requires that we designate critical habitat on
the basis of the best scientific and commercial data available.
Further, our Policy on Information Standards under the Endangered
Species Act (published in the Federal Register on July 1, 1994 (59 FR
34271)), the Information Quality Act (section 515 of the Treasury and
General Government Appropriations Act for Fiscal Year 2001 (Pub. L.
106-554; H.R. 5658)), and our associated Information Quality
Guidelines, provide criteria, establish procedures, and provide
guidance to ensure that our decisions are based on the best scientific
data available. They require our biologists, to the extent consistent
with the Act and with the use of the best scientific data available, to
use primary and original sources of information as the basis for
recommendations to designate critical habitat.
When we are determining which areas we should designate as critical
habitat, our primary source of information is generally the information
developed during the listing process for the species. Additional
information sources may include the recovery plan for the species,
articles in peer-reviewed journals, conservation plans developed by
States and counties, scientific status surveys and studies, biological
assessments, or other unpublished materials and expert opinion or
personal knowledge.
Habitat is dynamic, and species may move from one area to another
over time. In particular, we recognize that climate change may cause
changes in the arrangement of occupied habitat stream reaches. Climate
change may lead to increased frequency and duration of severe storms
and droughts (Golladay et al. 2004, p. 504; McLaughlin et al. 2002, p.
6074; Cook et al. 2004, p. 1015). From 2006 to 2007, drought conditions
greatly reduced the habitat of the vermilion darter in Jefferson County
(Drennen, pers. obs. 2007). Fluker et al. (2007, p. 10) and Drennen
(pers. obs. 2007) reported that ongoing drought conditions, coupled
with rapid urbanization within watersheds containing imperiled darters,
render the populations vulnerable to anthropomorphic
[[Page 75917]]
disturbances such as water extraction, vehicles within Turkey Creek and
its tributaries, and increased clearing or draining of vulnerable
wetlands and spring seeps; especially during the breeding season when
the darters concentrate in specific habitat areas of Turkey Creek and
its tributaries.
The information currently available on the effects of global
climate change and increasing temperatures does not make sufficiently
precise estimates of the location and magnitude of the effects. Nor are
we currently aware of any climate change information specific to the
habitat of the vermilion darter that would indicate what areas may
become important to the species in the future. Therefore, as explained
in the proposed rule (74 FR 63366), we are unable to determine what
additional areas, if any, may be appropriate to include in the final
critical habitat for this species to address the effects of climate
change.
We recognize that critical habitat designated at a particular point
in time may not include all of the habitat areas that we may later
determine are necessary for the recovery of the species. For these
reasons, a critical habitat designation does not signal that habitat
outside the designated area is unimportant or may not be required for
recovery of the species. Areas that are important to the conservation
of the species, both inside and outside the critical habitat
designation, will continue to be subject to: (1) Conservation actions
implemented under section 7(a)(1) of the Act, (2) regulatory
protections afforded by the requirement in section 7(a)(2) of the Act
for Federal agencies to insure their actions are not likely to
jeopardize the continued existence of any endangered or threatened
species, and (3) the prohibitions of section 9 of the Act if actions
occurring in these areas may affect the species. Federally funded or
permitted projects affecting listed species outside their designated
critical habitat areas may still result in jeopardy findings in some
cases. These protections and conservation tools will continue to
contribute to recovery of this species. Similarly, critical habitat
designations made on the basis of the best available information at the
time of designation will not control the direction and substance of
future recovery plans, habitat conservation plans (HCPs), or other
species conservation planning efforts if new information available at
the time of these planning efforts calls for a different outcome.
Physical and Biological Features
In accordance with sections 3(5)(A)(i) and 4(b)(1)(A) of the Act
and regulations at 50 CFR 424.12(b), in determining which areas within
the geographical area occupied at the time of listing to designate as
critical habitat, we considered the physical and biological features
that are essential to the conservation of the species and which may
require special management considerations or protection. These include,
but are not limited to:
(1) Space for individual and population growth and for normal
behavior;
(2) Food, water, air, light, minerals, or other nutritional or
physiological requirements;
(3) Cover or shelter;
(4) Sites for breeding, reproduction, or rearing (or development)
of offspring; and
(5) Habitats that are protected from disturbance or are
representative of the historical, geographical, and ecological
distributions of a species.
We derive the specific physical and biological features required
for the vermilion darter from the biological needs of the species as
described in the Critical Habitat section of the proposed rule to
designate critical habitat for the vermilion darter published in the
Federal Register on December 3, 2009 (74 FR 63366), and in the
information presented below. Additional information can be found in the
final listing rule published in the Federal Register on November 28,
2001 (66 FR 59367), and the Vermilion Darter Recovery Plan, available
on the Internet at http://ecos.fws.gov/docs/recovery_plan/070802.pdf.
We have determined that the vermilion darter requires the following
physical and biological features:
Space for Individual and Population Growth and for Normal Behavior
While little is known about the specific space requirements of the
vermilion darter within the Turkey Creek system, darters, in general,
depend on space from geomorphically stable streams with varying water
quantities and flow. Studies show that vermilion darters are found in
the transition zone between a riffle (shallow, fast water) or run
(deeper, fast water) and a pool (deep, slow water) (Blanco and Mayden
1999, pp. 18-20), usually at the head and foot of the riffles and
downstream of the run habitat. Construction of impoundments and
inadequate storm water management in the Turkey Creek watershed have
altered stream banks and bottoms; degraded the riffles, runs, and
pools; and altered the natural water quantity and flow of the stream. A
stable stream maintains its horizontal dimension and vertical profile
(stream banks and bottoms), thereby conserving the physical
characteristics, including bottom features such as riffles, runs, and
pools and the transition zones between these features. The riffles,
runs, and pools not only provide space for the vermilion darter, but
also provide cover and shelter for breeding, reproduction, and growth
of offspring.
In addition, the current range of the vermilion darter is reduced
to localized sites due to fragmentation, separation, and destruction of
vermilion darter populations. There are both natural (waterfall) and
manmade (impoundments) dispersal barriers that not only contribute to
the separation and isolation of vermilion darter populations, but also
affect water quality. Fragmentation of the species' habitat has
isolated the populations within the Turkey Creek system, reduced space
for rearing and reproduction and population maintenance, reduced
adaptive capabilities, and increased likelihood of local extinctions
(Hallerman 2003, pp. 363-364; Burkhead et al. 1997, pp. 397-399).
Genetic variation and diversity within a species are essential for
recovery, adaptation to environmental changes, and long-term viability
(capability to live, reproduce, and develop) (Noss and Cooperrider
1994, pp. 282-297; Harris 1984, pp. 93-107). Long-term viability is
founded on numerous interbreeding, local populations throughout the
range (Harris 1984, pp. 93-107). Continuity of water flow between
suitable habitats is essential in preventing further fragmentation of
the species' habitat and populations; conserving the essential riffles,
runs, and pools needed by vermilion darters; and promoting genetic flow
throughout the populations. Continuity of habitat will maintain
spawning, foraging, and resting sites, as well as provide gene flow
throughout the population. Connectivity of habitats, as a whole, also
permits improvement in water quality and water quantity by allowing an
unobstructed water flow throughout the connected habitats.
Based on the biological information and needs discussed above, it
is essential to protect riffles, runs, and pools, and the continuity of
these structures, to accommodate feeding, spawning, growth, and other
normal behaviors of the vermilion darter and to promote genetic flow
within the species.
[[Page 75918]]
Food, Water, Air, Light, Minerals, or Other Nutritional or
Physiological Requirements
Water Quantity and Flow
Much of the cool, clean water provided to the Turkey Creek main
stem comes from consistent and steady groundwater sources (springs)
that contribute to the flow and water quantity in the tributaries
(Beaver Creek, Dry Creek, Dry Branch, and the unnamed tributary to
Beaver Creek). Flowing water provides a means for transporting
nutrients and food items, moderating water temperatures and dissolved
oxygen levels, and diluting nonpoint- and point-source pollution.
Impoundments within Turkey and Dry Creeks not only serve as dispersal
barriers but also have altered stream flows from natural conditions.
Without clean water sources, water quality and water quantity would be
considerably lower and would significantly impair the normal life
stages and behavior of the vermilion darter.
Favorable water quantity is an average daily discharge of over 50
cubic feet per second within the Turkey Creek main stem (U.S.
Geological Survey 2009, compiled from average annual statistics),
inclusive of both surface runoff and groundwater sources (springs and
seepages) and exclusive of flushing flows. However, the favorable upper
limit for the average daily discharge is not known. Along with this
average daily discharge, both minimum and flushing flows are necessary
within the tributaries to maintain all life stages and to remove fine
sediments and dilute other pollutants (Drennen pers. obs., February
2009a; Instream Flow Council 2004, pp. 103-104, 375; Gilbert et al.
eds. 1994, pp. 505-522; Moffett and Moser 1978, pp. 20-21). These flows
are supplemented by groundwater and contribute to the overall stream-
cleansing effect by adding to the total flow of high-quality water.
This, in turn, helps in maintenance of stream banks and bottoms,
essential for normal life stages and behavior of the vermilion darter.
However, excessive stormwater flow can alter the geomorphology of the
existing stream by disturbing bottom substrate and banksides along with
dislodging vegetation.
Water Quality
Factors that can potentially alter water quality are decreases in
water quantity through droughts and periods of low seasonal flow,
precipitation events, nonpoint-source runoff, human activities within
the watershed, random spills, and unregulated stormwater discharge
events (Instream Flow Council 2004, pp. 29-50). These factors are
particularly harmful during drought conditions when flows are depressed
and pollutants are concentrated. Impoundments also affect water quality
by reducing water flow, altering temperatures, and concentrating
pollutants (Blanco and Mayden 1999, pp. 5-6, 36). Nonpoint-source
pollution and alteration of flow regimes are primary threats to the
vermilion darter in the Turkey Creek watershed.
Aquatic life, including fish, requires acceptable levels of
dissolved oxygen. The type of organism and its life stage determine the
level of oxygen required. Generally, among fish, the young life forms
are the most sensitive. The amount of dissolved oxygen that is present
in the water (the saturation level) depends upon water temperature. As
the water temperature increases, the saturated dissolved oxygen level
decreases. The more oxygen there is in the water, the greater the
assimilative capacity (ability to consume organic wastes with minimal
impact) of that water; lower water flows have a reduced assimilative
capacity (Pitt 2000, pp. 6-7). Low-flow conditions affect the chemical
environment occupied by the fish, and extended low-flow conditions
coupled with higher pollutant levels would likely result in behavior
changes within all life stages, but could be particularly detrimental
to early life stages (e.g., embryo, larvae, and juvenile).
Optimal water quality lacks harmful levels of pollutants such as
inorganic contaminants like copper, arsenic, mercury, and cadmium;
organic contaminants such as human and animal waste products;
endocrine-disrupting chemicals; pesticides; nitrogen, potassium, and
phosphorous fertilizers; and petroleum distillates. Sediment is the
most abundant pollutant produced in the Mobile River Basin (Alabama
Department of Environmental Management 1996, pp.13-15). Siltation
(excess sediments suspended or deposited in a stream) contributes to
turbidity of the water and has been shown to reduce photosynthesis in
aquatic plants, suffocate aquatic insects, smother fish eggs, clog fish
gills, and fill in essential interstitial spaces (spaces between stream
substrates) used by aquatic organisms for spawning and foraging;
therefore, siltation negatively impacts fish growth, physiology,
behavior, reproduction, and survival. Eutrophication (excessive
nutrients present, such as nitrogen and phosphorous) promotes heavy
algal growth that covers and eliminates clean rock or gravel habitats
necessary for vermilion darter feeding and spawning. High conductivity
values are an indicator of hardness and alkalinity and may denote water
nitrification (Hackney et al. 1992, pp.199-203). Generally, early life
stages of fishes are less tolerant of environmental contamination than
adults or juveniles (Little et al. 1993, p. 67).
Adequate water quality and good to optimal water quantity are
necessary to dilute impacts from storm water and other non-natural
effluents. Harmful levels of pollutants impair critical behavior
functions in fish and are reflected in population-level responses
(reduced population size, biomass, year class success, etc.). Adequate
water quantity and flow and good to optimal water quality are also
essential for normal behavior, growth, and viability during all life
stages. However, excessive water quantity as stormwater runoff may
destabilize and move bottom and bankside substrates as well as increase
instream sedimentation and decrease water quantity in general.
The vermilion darter requires relatively clean, cool, flowing water
within the Turkey Creek main stem and tributaries. The Clean Water Act
(33 U.S.C. 1251 et seq.), Water Quality Act (Pub. L. 100-4), and
Alabama Water Pollution Control Act (Ala. Code Sec. 22-22-1) establish
guidelines for water usage and standards of quality for the State's
waters necessary to preserve and protect aquatic life. Essential water
quality attributes for darters and other fish species in fast to middle
water flow streams include: dissolved oxygen levels greater than 6
parts per million (ppm), temperatures between 7 and 26.7 [deg]Celsius
(C) (45 and 80 [deg]Fahrenheit (F)) with spring egg incubation
temperatures from 12.2 to 18.3 [deg]C (54 to 65 [deg]F), a specific
conductance (ability of water to conduct an electric current, based on
dissolved solids in the water) of less than approximately 225 micro
Siemens per centimeter at 26.7 [deg]C (80 [deg]F), and low
concentrations of free or suspended solids (organic and inorganic
sediments) less than 10 Nephelometric Turbidity Units (NTU; units used
to measure sediment discharge) and 15 mg/L Total Suspended Solids (TSS;
measured as mg/L of sediment in water) (Teels et al. 1975, pp. 8-9;
Ultschet et al. 1978, pp. 99-101; Ingersoll et al. 1984, pp. 131-138;
Kundell and Rasmussen 1995, pp. 211-212; Henley et al. 2000, pp. 125-
139; Meyer and Sutherland 2005, pp. 43-64).
Food
The vermilion darter is a benthic (bottom) insectivore consuming
larval chironomids (midges), tipulids (crane
[[Page 75919]]
flies), and hydropsychids (caddisflies), along with occasional
microcrustaceans (Boschung and Mayden 2004, p. 520; Khudamrongsawat et
al. 2005, p. 472). Caddisflies and crane flies are pollution-sensitive
organisms found in good to fair water quality (Auburn University 1993,
p. 53). Variation in instream flow maintains the stream bottom where
food for the vermilion darter is found, transports these organisms, and
provides oxygen and other attributes to various invertebrate life
stages. Sedimentation has been shown to wear away and suffocate
periphyton (organisms that live attached to objects underwater) and
disrupt aquatic insect communities (Waters 1995, pp. 53-86; Knight and
Welch 2001, pp. 132-135). In addition, eutrophication promotes heavy
algal growth that covers and eliminates the clean rock or gravel
habitats necessary for vermilion darter feeding and spawning. A
decrease in water quality and instream flow will correspondingly
decrease the major food species for the vermilion darter. Excessive
water quantity as stormwater runoff may destabilize and move bottom and
bankside substrates as well as increase instream sedimentation and
decrease water quantity in general. Thus, food availability for the
vermilion darter is affected by instream flow and water quality.
Based on the biological information and needs discussed above, we
believe it is essential that vermilion darter habitat consist of
unaltered, connected, stable streams to maintain flow, prevent
sedimentation, and promote good water quality absent harmful
pollutants.
Cover or Shelter (Sites for Breeding, Reproduction or Rearing)
Vermilion darters depend on specific bottom substrates for normal
and robust life processes such as spawning, rearing, protection of
young during life stages, protection of adults when threatened,
foraging, and feeding. These bottom substrates are dominated by fine
gravel, along with some sand, coarse gravel, cobble, and bedrock
(Blanco and Mayden 1999, pp. 24-26; Drennen pers. obs., February
2009b). The vermilion darter prefers small-sized gravel for spawning
substrates (Blanchard and Stiles 2005, pp. 1-12). Occasionally, there
are also small sticks and limbs on the bottom substrate and within the
water column (Stiles pers. comm., September 1999; Drennen pers. obs.,
May 2007).
Excessive fine sediments of small sands, silt, and clay may embed
in the larger substrates, filling in interstitial spaces between these
structures. Loss of these interstitial areas removes spawning and
rearing areas, foraging and feeding sites, and escape and protection
localities (Sylte and Fischenich 2002, pp. 1-25). In addition, dense,
filamentous algae growth on the substrates may restrict or eliminate
the usefulness of the interstitial spaces by the vermilion darter.
Excessive fine sediment can also impact aquatic vegetation by reducing
sunlight due to turbid water or by covering the vegetation with fine
silt. Aquatic vegetation is likely also used by vermilion darters as a
spawning substrate (Kuhajda pers. comm., May 2007).
Geomorphic instability within the streambed and along the banks
from high stormwater flow results in scouring and erosion of these
areas, leading to sedimentation and loss of vegetation and substrate
for shelter and cover for vermilion darters, their eggs, and their
young. This fine sediment deposition also reduces the area available
for food sources, such as macroinvertebrates and periphyton (Tullos
2005, pp. 80-81).
Thus, based on the biological information and needs above,
essential vermilion darter habitat consists of stable streams with a
stream flow sufficient to remove sediment and eliminate the filling in
of interstitial spaces and substrate to accommodate spawning, rearing,
protection of young, protection of adults when threatened, foraging,
and feeding.
Primary Constituent Elements for Vermilion Darter
Under the Act and its implementing regulations, we are required to
identify the physical and biological features essential to the
conservation of the vermilion darter in areas occupied at the time of
listing, focusing on the features' primary constituent elements. We
consider primary constituent elements to be the elements of physical
and biological features that, when laid out in the appropriate quantity
and spatial arrangement to provide for a species' life-history
processes, are essential to the conservation of the species. Areas
designated as critical habitat for vermilion darter contain only
occupied areas within the species' historical geographic range, and
contain sufficient primary constituent elements to support at least one
life-history process.
Based on our current knowledge of the life history, biology, and
ecology of vermilion darter and the requirements of the habitat to
sustain the life-history processes of the species, we determined that
the primary constituent elements specific to vermilion darter are:
Primary Constituent Element 1. Geomorphically stable stream bottoms
and banks (stable horizontal dimension and vertical profile) in order
to maintain the bottom features (riffles, runs, and pools) and
transition zones between bottom features, to promote connectivity
between spawning, foraging, and resting sites, and to maintain gene
flow throughout the species' range.
Primary Constituent Element 2. Instream flow regime with an average
daily discharge over 50 cubic feet per second, inclusive of both
surface runoff and groundwater sources (springs and seepages) and
exclusive of flushing flows.
Primary Constituent Element 3. Water quality with temperature not
exceeding 26.7 [deg]C (80 [deg]F), dissolved oxygen 6.0 milligrams or
greater per liter, turbidity of an average monthly reading of 10 NTUs
and 15mg/l TSS or less; and a specific conductance of no greater than
225 micro Siemens per centimeter at 26.7 [deg]C (80 [deg]F).
Primary Constituent Element 4. Stable bottom substrates consisting
of fine gravel with coarse gravel or cobble, or bedrock with sand and
gravel, with low amounts of fine sand and sediments within the
interstitial spaces of the substrates along with adequate aquatic
vegetation.
With this designation of critical habitat, we intend to identify
the physical and biological features essential to the conservation of
the species, through the identification of the appropriate quantity and
spatial arrangement of the primary constituent elements sufficient to
support the life-history processes of the species. Each of the areas
identified as critical habitat in this rule contains sufficient primary
constituent elements to provide for one or more of the life-history
processes of the vermilion darter.
Criteria Used To Identify Final Critical Habitat
As required by section 4(b)(1)(A) of the Act, we used the best
scientific and commercial data available to designate critical habitat.
We reviewed available information pertaining to the habitat
requirements of this species. In accordance with the Act and its
implementing regulation at 50 CFR 424.12(e), we considered whether
designating additional areas--outside those currently occupied as well
as those occupied at the time of listing--are necessary to ensure the
conservation of the species. We are designating all stream reaches in
occupied habitat as critical habitat. We have defined ``occupied
habitat'' as those stream reaches occupied at the time of listing, all
of which are still known as of the publication date of this rulemaking
to be
[[Page 75920]]
occupied by the vermilion darter; these stream reaches comprise the
entire known range of the vermilion darter. We are not designating any
areas outside the known range of the species because the historical
range of the vermilion darter, beyond currently occupied areas, is
unknown, and dispersal beyond the current range is not likely due to
dispersal barriers.
We used information from surveys and reports prepared by the
Alabama Department of Conservation and Natural Resources, Alabama
Geological Survey, Samford University, University of Alabama, and the
Service to identify the specific locations occupied by the vermilion
darter. Currently, occupied habitat for the species is limited and
isolated. The species is currently located within the upper mainstem
reaches of Turkey Creek and four tributaries: unnamed tributary to
Beaver Creek, Beaver Creek, Dry Creek, and Dry Branch in Pinson,
Jefferson County, Alabama (Blanco and Mayden 1999, pp.18-20; Drennen
pers. obs. March 2008).
Following the identification of the specific locations occupied by
the vermilion darter, we determined the appropriate length of stream
segments to designate by identifying the upstream and downstream limits
of these occupied sections necessary for the conservation of the
vermilion darter. Populations of vermilion darters are isolated due to
dispersal barriers. Accordingly, we set the upstream and downstream
limits of each critical habitat unit by identifying landmarks (bridges,
confluences, road crossings, and dams) above and below the upper- and
lower-most reported locations of the vermilion darter in each stream
reach to ensure incorporation of all potential sites of occurrence.
These stream reaches were then digitized using 7.5-minute topographic
maps and ARCGIS to produce the critical habitat map.
The five final critical habitat units contain physical and
biological features with one or more of the primary constituent
elements in the appropriate quantity and spatial arrangement for the
features to support multiple life processes for the vermilion darter
and to be essential to the conservation of this species.
When identifying final critical habitat boundaries, we make every
effort to avoid including developed areas such as lands covered by
buildings, pavement, and other structures because such lands usually
lack primary constituent elements for endangered or threatened species.
Areas identified as critical habitat for the vermilion darter below
include only stream channels within the ordinary high-water line and do
not contain any developed areas or structures.
Special Management Considerations or Protections
When designating critical habitat, we assess whether the specific
areas within the geographical area occupied by the species at the time
of listing contain the features that are essential to the conservation
of the species and which may require special management considerations
or protection.
The five units we are designating as critical habitat will require
some level of management to address the current and future threats to
the physical and biological features essential to the conservation of
the species. None of the final critical habitat units are presently
under special management or protection provided by a legally operative
plan or agreement for the conservation of the vermilion darter. Various
activities in or adjacent to the critical habitat units described in
this final rule may affect one or more of the physical and biological
features. For example, features in the final critical habitat
designation may require special management due to threats posed by the
following activities or disturbances: urbanization activities and
inadequate stormwater management (such as stream channel modification
for flood control or gravel extraction) that could cause an increase in
bank erosion; significant changes in the existing flow regime within
the streams due to water diversion or withdrawal; significant
alteration of water quality; significant alteration in the quantity of
groundwater and alteration of spring discharge sites; significant
changes in stream bed material composition and quality due to
construction projects and maintenance activities; off-road vehicle use;
sewer, gas, and water easements; bridge construction; culvert and pipe
installation; stormwater management; and other watershed and floodplain
disturbances that release sediments or nutrients into the water. Other
activities that may affect physical and biological features in the
final critical habitat units include those listed in the Effects of
Critical Habitat Designation section below.
Final Critical Habitat Designation
We are designating 5 units, totaling approximately 21.2 stream km
(13.1 stream mi), as critical habitat for the vermilion darter. The
critical habitat units described below constitute our best assessment
of areas that currently meet the definition of critical habitat for the
vermilion darter. Table 1 identifies the final units for the species,
the occupancy of the units, the final extent of critical habitat for
the vermilion darter, and ownership of the final designated areas.
Table 1--Occupancy and Ownership of the Final Critical Habitat Units for the Vermilion Darter
----------------------------------------------------------------------------------------------------------------
Private State, county,
ownership city ownership
Unit Location Occupied stream stream Total
kilometers kilometers
(miles) (miles)
----------------------------------------------------------------------------------------------------------------
1............................ Turkey Creek.... Yes............ 14.9 0.3 15.2
(9.2) (0.2) (9.4)
2............................ Dry Branch...... Yes............ 0.7 .............. 0.7
(0.4) (0.4)
3............................ Beaver Creek.... Yes............ 0.9 0.1 1.0
(0.6) (< 0.1) (0.6)
4............................ Dry Creek....... Yes............ 0.6 .............. 0.6
(0.4) (0.4)
5............................ Unnamed Yes............ 3.3 0.4 3.7
Tributary to (2.0) (0.2) (2.2)
Beaver Creek.
----------------------------------------------------------------------------------
Total.................... ................ ............... 20.4 0.8 21.2
(12.6) (0.5) (13.1)
----------------------------------------------------------------------------------------------------------------
[[Page 75921]]
We present brief descriptions of each unit and reasons why they
meet the definition of critical habitat below. The final critical
habitat units include the stream channels of the creek and tributaries
within the ordinary high-water line. As defined in 33 CFR 329.11, the
ordinary high-water line on nontidal rivers is the line on the shore
established by the fluctuations of water and indicated by physical
characteristics such as a clear, natural water line impressed on the
bank; shelving; changes in the character of soil; destruction of
terrestrial vegetation; the presence of litter and debris; or other
appropriate means that consider the characteristics of the surrounding
areas. In Alabama, for nonnavigable waterways, the riparian landowner
owns the stream to the middle of the channel.
For each stream reach of final critical habitat, the upstream and
downstream boundaries are described generally below; more precise
descriptions are provided in the Regulation Promulgation section at the
end of this final rule.
Unit 1: Turkey Creek, Jefferson County, Alabama:
Unit 1 includes 15.2 km (9.4 mi) in Turkey Creek from Shadow Lake
Dam downstream to the Section 13/14 (T15S, R2W) line, as taken from the
U.S. Geological Survey 7.5-minute topographical map (Pinson
quadrangle).
Approximately 14.9 km (9.2 mi), or 98 percent of this area is
privately owned. The remaining 0.3 km (0.2 mi), or 2 percent is
publicly owned by the City of Pinson or Jefferson County in the form of
bridge crossings and road easements.
Turkey Creek supports the most abundant and robust populations of
the vermilion darter in the watershed. Populations of vermilion darters
are small and isolated within specific habitat sites of Turkey Creek
from Shadow Lake dam downstream to the old strip mine pools (13/14 S
T15S R2W section line, as taken from the U.S. Geological Survey 7.5-
minute topographical map (Pinson quadrangle)). We consider the entire
reach of Turkey Creek that composes Unit 1 to be occupied.
One of the three known spawning sites for the species (Stiles,
pers. comm. 1999) is located within the confluence of Turkey Creek and
Tapawingo Spring run (Primary Constituent Element 4). In addition,
Turkey Creek provides the most darter habitat for the vermilion darters
with an abundance of pools, riffles, and runs (Primary Constituent
Element 1). These geomorphic structures provide the species with
spawning, foraging, and resting areas (Primary Constituent Elements 1
and 4), along with good water quality, quantity, and flow, which
support the normal life stages and behavior of the vermilion darter and
the species' prey sources (Primary Constituent Elements 2 and 3).
There are five impoundments in Turkey Creek (Blanco and Mayden
1999, pp. 5-6, 36, 63) limiting the connectivity of the range and
expansion of the species into other units and posing a risk of
extinction to the species due to changes in flow regime, habitat, water
quality, water quantity, and stochastic events such as drought. These
impoundments accumulate nutrients and undesirable fish species that
could propose threats to vermilion darters and the species' habitat.
Other threats to the vermilion darter and its habitat in Turkey Creek
which may require special management and protection of primary
constituent elements include the potential of: urbanization activities
(such as channel modification for flood control, inadequate stormwater
management, or gravel extraction) that could result in increased bank
erosion; significant changes in the existing flow regime due to water
diversion or water withdrawal; significant alteration of water quality;
and significant changes in stream bed material composition and quality
as a result of construction projects and maintenance activities; off-
road vehicle use; sewer, gas, and water easements; bridge construction;
culvert and pipe installation; and other watershed and floodplain
disturbances that release sediments or nutrients into the water.
Unit 2: Dry Branch, Jefferson County, Alabama:
Unit 2 includes 0.7 km (0.4 mi) of Dry Branch from the bridge at
Glenbrook Road downstream to the confluence with Beaver Creek.
Most of the 0.7 km (0.4 mi) or close to 100 percent of this area is
privately owned. Less than 1 percent of the area is publicly owned by
the City of Pinson or Jefferson County in the form of bridge crossings
and road easements.
Dry Branch provides supplemental water quantity to Turkey Creek
proper (Unit 1) and provides connectivity to additional bottom
substrate habitat and possible spawning sites (Primary Constituent
Elements 1, 3, and 4). One of the three known spawning sites for the
species is located within the confluence of this reach (Primary
Constituent Element 1 and 4) and Beaver Creek (Stiles, pers. comm.
2009).
Threats to the vermilion darter and its habitat at Dry Branch which
may require special management and protection of Primary Constituent
Elements 1, 3, and 4 include the potential of: urbanization activities
(such as channel modification for flood control, inadequate stormwater
management, construction of impoundments, and gravel extraction) that
could result in increased bank erosion; significant changes in the
existing flow regime due to construction of impoundments, water
diversion, or water withdrawal; significant alteration of water
quality; and significant changes in stream bed material composition and
quality as a result of construction projects and maintenance
activities; off-road vehicle use; sewer, gas, and water easements;
bridge construction; culvert and pipe installation; and other watershed
and floodplain disturbances that release sediments or nutrients into
the water.
Unit 3: Beaver Creek, Jefferson County, Alabama:
Unit 3 includes 1.0 km (0.6 mi) of Beaver Creek from the confluence
with the unnamed tributary to Beaver Creek and Dry Branch downstream to
the confluence with Turkey Creek.
Almost 0.9 km (0.6 mi), or 94 percent of this area, is privately
owned. The remaining 0.1 km (under 0.1 mi), or 6 percent is publicly
owned by the City of Pinson or Jefferson County in the form of bridge
crossings and road easements.
Beaver Creek supports populations of vermilion darters, and
provides supplemental water quantity to Turkey Creek proper (Primary
Constituent Elements 1 and 2). The reach also contains adequate bottom
substrate for vermilion darters to use in spawning, foraging, and other
life processes (Primary Constituent Element 4). Beaver Creek makes
available additional habitat and spawning sites, and offers
connectivity with other vermilion darter populations within Turkey
Creek, Dry Branch, and the unnamed tributary to Beaver Creek (Primary
Constituent Elements 1 and 4).
Threats to the vermilion darter and its habitat at Beaver Creek
which may require special management of Primary Constituent Elements 1,
2, and 4 include the potential of: urbanization activities (such as
channel modification for flood control, construction of impoundments,
gravel extraction) that could result in increased bank erosion;
significant changes in the existing flow regime due to inadequate
stormwater management, water diversion, or water withdrawal;
significant alteration of water quality; and significant changes in
stream bed material composition and quality as a result of construction
projects and maintenance activities; off-road vehicle use; sewer, gas,
and water easements; bridge construction; culvert and pipe
installation; and other watershed and
[[Page 75922]]
floodplain disturbances that release sediments or nutrients into the
water.
Unit 4: Dry Creek, Jefferson County, Alabama:
Unit 4 includes 0.6 km (0.4 mi) of Dry Creek from Innsbrook Road
downstream to the confluence with Turkey Creek.
One hundred percent of this area, is privately owned.
Dry Creek supports populations of vermilion darters and provides
supplemental water quantity to Turkey Creek proper (Primary Constituent
Elements 1 and 2). The reach also contains adequate bottom substrate
for vermilion darters to use in spawning, foraging, and other life
processes (Primary Constituent Element 4). Dry Creek makes available
additional habitat and spawning sites, and offers connectivity with
vermilion darter populations in Turkey Creek (Primary Constituent
Element 1).
There are two impoundments in Dry Creek (Blanco and Mayden 1999,
pp. 56, 62) which limit the range and expansion of the species within
the unit and increases the risk of extinction due to changes in flow
regime, habitat or water quality, water quantity, and stochastic events
such as drought. These impoundments amass nutrients and undesirable
fish species that could propose threats to vermilion darters and to its
habitat. Threats that may require special management and protection of
primary constituent elements include: urbanization activities (such as
channel modification for flood control and gravel extraction) that
could result in increased bank erosion; significant changes in the
existing flow regime due to inadequate stormwater management and
impoundment construction, water diversion, or water withdrawal;
significant alteration of water quality; and significant changes in
stream bed material composition and quality as a result of construction
projects and maintenance activities, off-road vehicle use, sewer, gas
and water easements, bridge construction, culvert and pipe
installation, and other watershed and floodplain disturbances that
release sediments or nutrients into the water.
Unit 5: Unnamed Tributary to Beaver Creek, Jefferson County,
Alabama:
Unit 5 includes 3.7 km (2.3 mi) of the unnamed tributary of Beaver
Creek from the Section \1/2\ (T16S, R2W) line, as taken from the U.S.
Geological Survey 7.5-minute topographical map (Pinson quadrangle),
downstream to its confluence with Beaver Creek.
Almost 3.3 km (2.1 mi), or 89 percent of this area, is privately
owned. The remaining 0.4 km (0.2 mi), or 11 percent, is publicly owned
by the City of Pinson or Jefferson County in the form of bridge
crossings and road easements.
The unnamed tributary to Beaver Creek supports populations of
vermilion darters and provides supplemental water quantity to Turkey
Creek proper (Primary Constituent Elements 1 and 2). The unnamed
tributary to Beaver Creek has been intensely geomorphically changed by
man over the last 100 years. The majority of this reach has been
channelized for flood control, as it runs parallel to Highway 79. There
are several bridge crossings, and the reach has a history of industrial
uses along the bank. However, owing to the groundwater effluent that
constantly supplies this reach with clean and flowing water (Primary
Constituent Elements 2 and 3), the reach has been able to support
significant aquatic vegetation and a population of vermilion darters at
several locations. One of the three known spawning sites for the
species is located within this reach (Primary Constituent Element 4)
(Kuhajda, pers. comm. May 2007).
The headwaters of the unnamed tributary to Beaver Creek is
characterized by natural flows that are attributed to an abundance of
spring groundwater discharges contributing adequate water quality,
water quantity, and substrates (Primary Constituent Elements 1, 2, and
3). Increasing the connectivity of the vermilion darter populations
(Primary Constituent Element 1) into the upper reaches of this
tributary is an essential conservation requirement as it would expand
the range and decrease the vulnerability of these populations to
stochastic threats.
Threats to the vermilion darter and its habitat which may require
special management and protection of primary constituent elements are:
urbanization activities (such as channel modification for flood
control, and gravel extraction) that could result in increased bank
erosion; significant changes in the existing flow regime due to
inadequate stormwater management and impoundment construction, water
diversion, or water withdrawal; significant alteration of water
quality; and significant changes in stream bed material composition and
quality as a result of construction projects and maintenance
activities; off-road vehicle use; sewer, gas, and water easements;
bridge construction; culvert and pipe installation; and other watershed
and floodplain disturbances that release sediments or nutrients into
the water.
Effects of Critical Habitat Designation
Section 7 Consultation
Section 7(a)(2) of the Act requires Federal agencies, including the
Service, to insure that actions they fund, authorize, or carry out are
not likely to destroy or adversely modify critical habitat. Decisions
by the Fifth and Ninth Circuits Courts of Appeals have invalidated our
definition of ``destruction or adverse modification'' (50 CFR 402.02)
(see Gifford Pinchot Task Force v. U.S. Fish and Wildlife Service, 378
F.3d 1059 (9th Cir. 2004) and Sierra Club v. U.S. Fish and Wildlife
Service, 245 F.3d 434, 442 (5th Cir. 2001)), and we do not rely on this
regulatory definition when analyzing whether an action is likely to
destroy or adversely modify critical habitat. Under the statutory
provisions of the Act, we determine destruction or adverse modification
on the basis of whether, with implementation of the final Federal
action, the affected critical habitat would continue to serve its
intended conservation role for the species.
If a species is listed or critical habitat is designated, section
7(a)(2) of the Act requires Federal agencies to insure that activities
they authorize, fund, or carry out are not likely to jeopardize the
continued existence of the species or to destroy or adversely modify
its critical habitat. If a Federal action may affect a listed species
or its critical habitat, the responsible Federal agency (action agency)
must enter into consultation with us. As a result of this consultation,
we document compliance with the requirements of section 7(a)(2) through
our issuance of:
(1) A concurrence letter for Federal actions that may affect, but
are not likely to adversely affect, listed species or critical habitat;
or
(2) A biological opinion for Federal actions that may affect, or
are likely to adversely affect, listed species or critical habitat.
When we issue a biological opinion concluding that a project is
likely to jeopardize the continued existence of a listed species or
destroy or adversely modify critical habitat, we also provide
reasonable and prudent alternatives to the project, if any are
identifiable. We define ``reasonable and prudent alternatives'' at 50
CFR 402.02 as alternative actions identified during consultation that:
(1) Can be implemented in a manner consistent with the intended
purpose of the action;
(2) Can be implemented consistent with the scope of the Federal
agency's legal authority and jurisdiction;
[[Page 75923]]
(3) Are economically and technologically feasible; and
(4) Would, in the Director's opinion, avoid jeopardizing the
continued existence of the listed species or destroying or adversely
modifying critical habitat.
Reasonable and prudent alternatives can vary from slight project
modifications to extensive redesign or relocation of the project. Costs
associated with implementing a reasonable and prudent alternative are
similarly variable.
Regulations at 50 CFR 402.16 require Federal agencies to reinitiate
consultation on previously reviewed actions in instances where we have
listed a new species or subsequently designated critical habitat that
may be affected and the Federal agency has retained discretionary
involvement or control over the action (or the agency's discretionary
involvement or control is authorized by law). Consequently, Federal
agencies may sometimes need to request reinitiation of consultation
with us on actions for which formal consultation has been completed, if
those actions with discretionary involvement or control may affect
subsequently listed species or designated critical habitat.
Federal activities that may affect the vermilion darter or its
designated critical habitat require section 7 consultation under the
Act. Activities on State, tribal, local, or private lands requiring a
Federal permit (such as a permit from the U.S. Army Corps of Engineers
under section 404 of the Clean Water Act (33 U.S.C. 1251 et seq.) or a
permit from us under section 10 of the Act) or involving some other
Federal action (such as funding from the Federal Highway
Administration, Federal Aviation Administration, or the Federal
Emergency Management Agency) are subject to the section 7 consultation
process. For instance, the Service should be consulted for disturbances
to areas both within the final critical habitat units as well as
upstream of those areas known to support vermilion darter, including
springs and seeps that contribute to the instream flow in the
tributaries, especially during times when stream flows are abnormally
low (i.e., during droughts). Federal actions not affecting listed
species or critical habitat, and actions on State, tribal, local, or
private lands that are not federally funded, authorized, or permitted
do not require section 7 consultations.
Application of the ``Adverse Modification'' Standard
The key factor related to the adverse modification determination is
whether, with implementation of the proposed Federal action, the
affected critical habitat would continue to serve its intended
conservation role for the species. Activities that may destroy or
adversely modify critical habitat are those that alter the physical and
biological features to an extent that appreciably reduces the
conservation value of critical habitat for the vermilion darter. As
discussed above, the role of critical habitat is to support life-
history needs of the species and provide for the conservation of the
species.
Section 4(b)(8) of the Act requires us to briefly evaluate and
describe, in any proposed or final regulation that designates critical
habitat, activities involving a Federal action that may destroy or
adversely modify such habitat, or that may be affected by such
designation.
Activities that, when carried out, funded, or authorized by a
Federal agency, may affect critical habitat and therefore should result
in consultation for the vermilion darter include, but are not limited
to:
(1) Actions that would alter the geomorphology of the stream
habitats. Such activities could include, but are not limited to,
inadequate stormwater management, instream excavation or dredging,
impoundments, channelization, and discharge of fill materials. These
activities could cause aggradation or degradation of the channel bed
elevation or significant bank erosion and could result in entrainment
or burial of this species, as well as other direct or cumulative
adverse effects to this species and its life cycle.
(2) Actions that would significantly alter the existing flow
regime. Such activities could include, but are not limited to,
inadequate stormwater management, impoundments, water diversion, water
withdrawal, and hydropower generation. These activities could eliminate
or reduce the habitat necessary for growth and reproduction of the
vermilion darter.
(3) Actions that would significantly alter water chemistry or water
quality (for example, changes to temperature or pH, introduced
contaminants, or excess nutrients). Such activities could include, but
are not limited to, inadequate stormwater management, the release of
chemicals, biological pollutants, or heated effluents into surface
water or connected groundwater at a point source or by dispersed
release (nonpoint source). These activities could alter water
conditions that are beyond the tolerances of the species and result in
direct or cumulative adverse effects on the species and its life cycle.
(4) Actions that would significantly alter stream bed material
composition and quality by increasing sediment deposition or
filamentous algal growth. Such activities could include, but are not
limited to, inadequate stormwater management; construction projects;
road and bridge maintenance activities; livestock grazing; timber
harvest; off-road vehicle use; underground gas, sewer, water, and
electric lines; and other watershed and floodplain disturbances that
release sediments or nutrients into the water. These activities could
eliminate or reduce habitats necessary for the growth and reproduction
of the species by causing excessive sedimentation and burial of the
species or their habitats, or eutrophication leading to excessive
filamentous algal growth. Excessive filamentous algal growth can cause
extreme decreases in nighttime dissolved oxygen levels through
vegetation respiration, and cover the bottom substrates and the
interstitial spaces between cobble and gravel.
Exemptions
Application of Section 4(a)(3) of the Act
The Sikes Act Improvement Act of 1997 (Sikes Act) (16 U.S.C. 670a)
required each military installation that includes land and water
suitable for the conservation and management of natural resources to
complete an integrated natural resource management plan (INRMP) by
November 17, 2001. An INRMP integrates implementation of the military
mission of the installation with stewardship of the natural resources
found on the base. Each INRMP includes:
(1) An assessment of the ecological needs on the installation,
including the need to provide for the conservation of listed species;
(2) A statement of goals and priorities;
(3) A detailed description of management actions to be implemented
to provide for these ecological needs; and
(4) A monitoring and adaptive management plan.
Among other things, each INRMP must, to the extent appropriate and
applicable, provide for fish and wildlife management; fish and wildlife
habitat enhancement or modification; wetland protection, enhancement,
and restoration where necessary to support fish and wildlife; and
enforcement of applicable natural resource laws.
[[Page 75924]]
The National Defense Authorization Act for Fiscal Year 2004 (Pub.
L. 108-136) amended the Act to limit areas eligible for designation as
critical habitat. Specifically, section 4(a)(3)(B)(i) of the Act (16
U.S.C. 1533(a)(3)(B)(i)) now provides: ``The Secretary shall not
designate as critical habitat any lands or other geographical areas
owned or controlled by the Department of Defense, or designated for its
use, that are subject to an integrated natural resources management
plan prepared under section 101 of the Sikes Act (16 U.S.C. 670a), if
the Secretary determines in writing that such plan provides a benefit
to the species for which critical habitat is proposed for
designation.''
There are no Department of Defense lands with a completed INRMP
within the final critical habitat designation. Therefore, there are no
specific lands that meet the criteria for being exempted from the
designation of critical habitat under section 4(a)(3) of the Act.
Exclusions
Application of Section 4(b)(2) of the Act
Section 4(b)(2) of the Act states that the Secretary shall
designate or make revisions to critical habitat on the basis of the
best available scientific data after taking into consideration the
economic impact, national security impact, and any other relevant
impact of specifying any particular area as critical habitat. The
Secretary may exclude an area from critical habitat if he determines
that the benefits of such exclusion outweigh the benefits of specifying
such area as part of the critical habitat, unless he determines, based
on the best scientific and commercial data available, that the failure
to designate such area as critical habitat will result in the
extinction of the species concerned. In making that determination, the
statute on its face, as well as the legislative history, are clear that
the Secretary has broad discretion regarding which factor(s) to use and
how much weight to give to any factor.
Under section 4(b)(2) of the Act, we may exclude an area from
designated critical habitat based on economic impacts, national
security impacts, and any other relevant impacts. In considering
whether to exclude a particular area from the designation, we must
identify the benefits of including the area in the designation,
identify the benefits of excluding the area from the designation, and
determine whether the benefits of exclusion outweigh the benefits of
inclusion. If based on this analysis, we make this determination; we
can exclude the area only if such exclusion would not result in the
extinction of the species.
Exclusions Based on Economic Impacts
Under section 4(b)(2) of the Act, we consider the economic impacts
of specifying any particular areas as critical habitat. In order to
consider economic impacts, we prepared a draft economic analysis of the
proposed critical habitat designation and related factors (RTI
International 2010a). The draft analysis (dated June 29, 2010) was made
available for public review from June 29, 2010, through July 29, 2010
(75 FR 37350). No comments were received on the draft economic
analysis. Following the close of the comment period, a final analysis
(dated July 2010) of the potential economic effects of the designation
was developed, taking into consideration any new information (RTI
International 2010b).
The intent of the final economic analysis (FEA) is to quantify the
economic impacts of all potential conservation efforts for the
vermilion darter. Some of these costs will likely be incurred
regardless of whether we designate critical habitat (baseline). The
economic impact of the final critical habitat designation is analyzed
by comparing scenarios both ``with critical habitat'' and ``without
critical habitat.'' The ``without critical habitat'' scenario
represents the baseline for the analysis, considering protections
already in place for the species (e.g., under the Federal listing and
other Federal, State, and local regulations). The baseline, therefore,
represents the costs incurred regardless of whether critical habitat is
designated. The ``with critical habitat'' scenario describes the
incremental impacts associated specifically with the designation of
critical habitat for the species. The incremental conservation efforts
and associated impacts are those not expected to occur absent the
designation of critical habitat for the species. In other words, the
incremental costs are those attributable solely to the designation of
critical habitat above and beyond the baseline costs; these are the
costs we consider in the final designation of critical habitat. The
analysis looks retrospectively at baseline impacts incurred since the
species was listed, and forecasts both baseline and incremental impacts
likely to occur with the designation of critical habitat.
The FEA also addresses how potential economic impacts are likely to
be distributed, including an assessment of any local or regional
impacts of habitat conservation and the potential effects of
conservation activities on government agencies, private businesses, and
individuals. The FEA measures lost economic efficiency associated with
residential and commercial development and public projects and
activities, such as economic impacts on water management and
transportation projects, Federal lands, small entities, and the energy
industry. Decision-makers can use this information to assess whether
the effects of the designation might unduly burden a particular group
or economic sector. Finally, the FEA looks retrospectively at costs
that have been incurred since 2001, when the vermilion darter was
listed under the Act (66 FR 59367), and considers those costs that may
occur in the 25 years following the designation of critical habitat,
which was determined to be the appropriate period for analysis because
limited planning information was available for most activities to
forecast activity levels for projects beyond a 25-year timeframe. The
FEA quantifies economic impacts of vermilion darter conservation
efforts associated with the following categories of activity: Water
management, activities that impact water quality, dredging activities
and other impacts (e.g., bridge replacement, management plans, and
natural gas pipelines).
Total baseline impacts (costs attributable to listing alone) are
estimated to be $550,000 annually over the next 25 years, assuming a 7
percent discount rate, and the total incremental costs (costs
attributable to designation alone) associated with this rule are
estimated to be $39.24 annually over the next 25 years, assuming a 7
percent discount rate (RTI International 2010b).
The critical habitat designation will result in minimal incremental
costs because any adverse modification decision would likely be
coincident to a jeopardy determination for the same action due to the
species' narrow range. Therefore, the only incremental costs are those
resulting from the additional administrative costs by the Service and
the action agency to include an adverse modification finding within the
biological opinion and biological assessment as part of a formal
consultation.
Our economic analysis did not identify any disproportionate costs
that are likely to result from the designation. Consequently, we have
determined not to exert our discretion to exclude any areas from this
designation of critical habitat for the vermilion darter based on
economic impacts. A copy of the FEA with supporting documents may be
obtained by contacting the Mississippi Fish and Wildlife Field Office
(see ADDRESSES) or by downloading from the Internet at http://
www.regulations.gov.
[[Page 75925]]
Exclusions Based on National Security Impacts
Under section 4(b)(2) of the Act, we consider whether there are
lands owned or managed by the Department of Defense where a national
security impact might exist. In preparing this final rule, we have
determined that the lands within the designation of critical habitat
for the vermilion darter are not owned or managed by the Department of
Defense, and, therefore, we anticipate no impact to national security.
Consequently, we have determined not to exert our discretion to exclude
any areas from this final designation based on impacts to national
security.
Exclusions Based on Other Relevant Impacts
Under section 4(b)(2) of the Act, we consider any other relevant
impacts, in addition to economic impacts and impacts on national
security. We consider a number of factors, including whether landowners
have developed any HCPs or other management plans for the area, or
whether there are conservation partnerships that would be encouraged by
designation of, or exclusion of lands from, critical habitat. In
addition, we look at any tribal issues, and consider the government-to-
government relationship of the United States with tribal entities. We
also consider any social impacts that might occur because of the
designation.
In preparing this final rule, we have determined that there are
currently no completed HCPs or other management plans for the species,
and the final designation does not include any tribal lands or trust
resources. We anticipate no impact to tribal lands, partnerships, or
management plans from this final critical habitat designation.
Consequently, we are not considering any areas for exclusion from this
final designation based on other relevant impacts.
Required Determinations
Regulatory Planning and Review--Executive Order 12866
The Office of Management and Budget (OMB) has determined that this
rule is not significant under Executive Order 12866. OMB bases its
determination upon the following four criteria:
(1) Whether the rule will have an annual effect of $100 million or
more on the economy or adversely affect an economic sector,
productivity, jobs, the environment, or other units of the government.
(2) Whether the rule will create inconsistencies with other Federal
agencies' actions.
(3) Whether the rule will materially affect entitlements, grants,
user fees, loan programs, or the rights and obligations of their
recipients.
(4) Whether the rule raises novel legal or policy issues.
Regulatory Flexibility Act (5 U.S.C. 601 et seq.)
Under the Regulatory Flexibility Act (RFA; 5 U.S.C. 601 et seq., as
amended by the Small Business Regulatory Enforcement Fairness Act
(SBREFA) of 1996), whenever an agency must publish a notice of
rulemaking for any final rule, it must prepare and make available for
public comment a regulatory flexibility analysis that describes the
effects of the rule on small entities (small businesses, small
organizations, and small government jurisdictions). However, no
regulatory flexibility analysis is required if the head of the agency
certifies the rule will not have a significant economic impact on a
substantial number of small entities. The SBREFA amended the RFA to
require Federal agencies to provide a statement of the factual basis
for certifying that the rule will not have a significant economic
impact on a substantial number of small entities. In this final rule,
we are certifying that the critical habitat designation for the
vermilion darter will not have a significant economic impact on a
substantial number of small entities. The following discussion explains
our rationale.
According to the Small Business Administration, small entities
include small organizations, such as independent nonprofit
organizations; small governmental jurisdictions, including school
boards and city and town governments that serve fewer than 50,000
residents; as well as small businesses. Small businesses include
manufacturing and mining concerns with fewer than 500 employees,
wholesale trade entities with fewer than 100 employees, retail and
service businesses with less than $5 million in annual sales, general
and heavy construction businesses with less than $27.5 million in
annual business, special trade contractors doing less than $11.5
million in annual business, and agricultural businesses with annual
sales less than $750,000. To determine if potential economic impacts to
these small entities are significant, we consider the types of
activities that might trigger regulatory impacts under this rule, as
well as the types of project modifications that may result. In general,
the term ``significant economic impact'' is meant to apply to a typical
small business firm's business operations.
To determine if the rule could significantly affect a substantial
number of small entities, we consider the number of small entities
affected within particular types of economic activities (e.g., housing
development, grazing, oil and gas production, timber harvesting). We
apply the ``substantial number'' test individually to each industry to
determine if certification is appropriate. However, the SBREFA does not
explicitly define ``substantial number'' or ``significant economic
impact.'' Consequently, to assess whether a ``substantial number'' of
small entities is affected by this designation, this analysis considers
the relative number of small entities likely to be impacted in an area.
In some circumstances, especially with critical habitat designations of
limited extent, we may aggregate across all industries and consider
whether the total number of small entities affected is substantial. In
estimating the number of small entities potentially affected, we also
consider whether their activities have any Federal involvement.
Designation of critical habitat only affects activities authorized,
funded, or carried out by Federal agencies. Some kinds of activities
are unlikely to have any Federal involvement and so will not be
affected by critical habitat designation. In areas where the species is
present, Federal agencies already are required to consult with us under
section 7 of the Act on activities they authorize, fund, or carry out
that may affect the vermilion darter. Federal agencies also must
consult with us if their activities may affect critical habitat.
Designation of critical habitat, therefore, could result in an
additional economic impact on small entities due to the requirement to
reinitiate consultation for ongoing Federal activities (see Application
of the ``Adverse Modification Standard'' section).
In our final economic analysis of the proposed critical habitat
designation, we evaluated the potential economic effects on small
business entities resulting from conservation actions related to the
listing of the vermilion darter and the proposed designation of
critical habitat (see Section 6 in RTI International 2010b). The
analysis is based on the estimated impacts associated with the
rulemaking as described in sections 2 through 4 of the analysis, and
evaluated the potential economic impacts related to future development,
road construction, wastewater treatment, stream alteration, and water
withdrawal.
[[Page 75926]]
According to the FEA, the Service and action agency are the only
entities with direct compliance costs expected to be assessed with the
critical habitat designation. Thus, based on the above reasoning and
currently available information, we concluded that this rule would not
result in a significant economic impact on a substantial number of
small entities. Therefore, we are certifying that the designation of
critical habitat for the vermilion darter will not have a significant
economic impact on a substantial number of small entities, and a
regulatory flexibility analysis is not required.
Energy Supply, Distribution, or Use--Executive Order 13211
Executive Order 13211 (Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use) requires
agencies to prepare Statements of Energy Effects when undertaking
certain actions. We do not expect this rule to significantly affect
energy supplies, distribution, or use. Although two of the final units
are below hydropower reservoirs, current and proposed operating regimes
have been deemed adequate for the species, and therefore their
operations will not be affected by the final designation of critical
habitat. All other final units are remote from energy supply,
distribution, or use activities. Therefore, this action is not a
significant energy action, and no Statement of Energy Effects is
required.
Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.)
In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501
et seq.), we make the following findings:
(1) This rule would not produce a Federal mandate. In general, a
Federal mandate is a provision in legislation, statute or regulation
that would impose an enforceable duty upon State, local, tribal
governments, or the private sector and includes both ``Federal
intergovernmental mandates'' and ``Federal private sector mandates.''
These terms are defined in 2 U.S.C. 658(5)-(7). ``Federal
intergovernmental mandate'' includes a regulation that ``would impose
an enforceable duty upon State, local, or tribal governments'' with two
exceptions. It excludes ``a condition of Federal assistance.'' It also
excludes ``a duty arising from participation in a voluntary Federal
program,'' unless the regulation ``relates to a then-existing Federal
program under which $500,000,000 or more is provided annually to State,
local, and tribal governments under entitlement authority,'' if the
provision would ``increase the stringency of conditions of assistance''
or ``place caps upon, or otherwise decrease, the Federal Government's
responsibility to provide funding,'' and the State, local, or tribal
governments ``lack authority'' to adjust accordingly. At the time of
enactment, these entitlement programs were: Medicaid; AFDC work
programs; Child Nutrition; Food Stamps; Social Services Block Grants;
Vocational Rehabilitation State Grants; Foster Care, Adoption
Assistance, and Independent Living; Family Support Welfare Services;
and Child Support Enforcement. ``Federal private sector mandate''
includes a regulation that ``would impose an enforceable duty upon the
private sector, except (i) a condition of Federal assistance or (ii) a
duty arising from participation in a voluntary Federal program.''
The designation of critical habitat does not impose a legally
binding duty on non-Federal government entities or private parties.
Under the Act, the only regulatory effect is that Federal agencies must
ensure that their actions do not jeopardize the continued existence of
the species, or destroy or adversely modify critical habitat under
section 7 of the Act. While non-Federal entities that receive Federal
funding, assistance, or permits, or that otherwise require approval or
authorization from a Federal agency for an action, may be indirectly
impacted by the designation of critical habitat, the legally binding
duty to avoid destruction or adverse modification of critical habitat
rests squarely on the Federal agency. Furthermore, to the extent that
non-Federal entities are indirectly impacted because they receive
Federal assistance or participate in a voluntary Federal aid program,
the Unfunded Mandates Reform Act would not apply; nor would listing
these species or designating critical habitat shift the costs of the
large entitlement programs listed above on to State governments.
(2) We do not believe that this rule would significantly or
uniquely affect small governments because it will not produce a Federal
mandate of $100 million or greater in any year, that is, it is not a
``significant regulatory action'' under the Unfunded Mandates Reform
Act. The designation of critical habitat imposes no obligations on
State or local governments and, as such, a Small Government Agency Plan
is not required.
Takings--Executive Order 12630
In accordance with Executive Order 12630 (Government Actions and
Interference with Constitutionally Protected Private Property Rights),
we have analyzed the potential takings implications of designating
critical habitat for the vermilion darter in a takings implications
assessment. The takings implications assessment concludes that this
designation of critical habitat for the vermilion darter does not pose
significant takings implications.
Federalism--Executive Order 13132
In accordance with Executive Order 13132 (Federalism), the rule
does not have significant Federalism effects. A Federalism assessment
is not required. In keeping with Department of the Interior and
Department of Commerce policy, we requested information from, and
coordinated development of this critical habitat designation with
appropriate State resource agencies in Alabama. The critical habitat
designation may have some benefit to this government in that the areas
that contain the features essential to the conservation of the species
are more clearly defined, and the primary constituent elements of the
habitat necessary to the conservation of the species are specifically
identified. While making this definition and identification does not
alter where and what federally sponsored activities may occur, it may
assist these local governments in long-range planning (rather than
waiting for case-by-case section 7 consultations to occur).
Where State and local governments require approval or authorization
from a Federal agency for actions that may affect critical habitat,
consultation under section 7(a)(2) of the Act would be required. While
non-Federal entities that receive Federal funding, assistance, or
permits, or that otherwise require approval or authorization from a
Federal agency for an action, may be indirectly impacted by the
designation of critical habitat, the legally binding duty to avoid
destruction or adverse modification of critical habitat rests squarely
on the Federal agency.
Civil Justice Reform--Executive Order 12988
In accordance with Executive Order 12988 (Civil Justice Reform),
the regulation meets the applicable standards set forth in sections
3(a) and 3(b)(2) of the Order. We are designating critical habitat in
accordance with the provisions of the Act. This final rule uses
standard property descriptions and identifies the physical and
biological features essential to the conservation of the vermilion
darter within the designated areas to assist the public in
understanding the habitat needs of the species.
[[Page 75927]]
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.)
This rule does not contain any new collections of information that
require approval by OMB under the Paperwork Reduction Act (44 U.S.C.
3501 et seq.). This rule will not impose recordkeeping or reporting
requirements on State or local governments, individuals, businesses, or
organizations. An agency may not conduct or sponsor, and a person is
not required to respond to, a collection of information unless it
displays a currently valid OMB control number.
National Environmental Policy Act (42 U.S.C. 4321 et seq.)
It is our position that, outside the jurisdiction of the U.S. Court
of Appeals for the Tenth Circuit, we do not need to prepare
environmental analyses pursuant to the National Environmental Policy
Act (NEPA; 42 U.S.C. 4321 et seq.) in connection with designating
critical habitat under the Act. We published a notice outlining our
reasons for this determination in the Federal Register on October 25,
1983 (48 FR 49244). This position was upheld by the U.S. Court of
Appeals for the Ninth Circuit (Douglas County v. Babbitt, 48 F.3d 1495
(9th Cir. 1995), cert. denied 516 U.S. 1042 (1996)).
Government-to-Government Relationship With Tribes
In accordance with the President's memorandum of April 29, 1994
(Government-to-Government Relations with Native American Tribal
Governments; 59 FR 22951), Executive Order 13175 (Consultation and
Coordination With Indian Tribal Governments), and the Department of the
Interior's manual at 512 DM 2, we readily acknowledge our
responsibility to communicate meaningfully with recognized Federal
Tribes on a government-to-government basis. In accordance with
Secretarial Order 3206 of June 5, 1997 (American Indian Tribal Rights,
Federal-Tribal Trust Responsibilities, and the Endangered Species Act),
we readily acknowledge our responsibilities to work directly with
Tribes in developing programs for healthy ecosystems, to acknowledge
that tribal lands are not subject to the same controls as Federal
public lands, to remain sensitive to Indian culture, and to make
information available to Tribes.
We have determined that there are no tribal lands occupied by the
vermilion darter at the time of listing that contain the features
essential for the conservation of the species, and no tribal lands that
are unoccupied by the vermilion darter that are essential for the
conservation of the species. Therefore, we have not designated critical
habitat for the vermilion darter on tribal lands.
References Cited
A complete list of all references cited in this rulemaking is
available on the Internet at http://www.regulations.gov and upon
request from the Field Supervisor, Mississippi Fish and Wildlife Office
(see FOR FURTHER INFORMATION CONTACT section).
Author(s)
The primary authors of this package are staff members of the
Mississippi Fish and Wildlife Office.
List of Subjects in 50 CFR Part 17
Endangered and threatened species, Exports, Imports, Reporting and
recordkeeping requirements, Transportation.
Regulation Promulgation
0
Accordingly, we amend part 17, subchapter B of chapter I, title 50 of
the Code of Federal Regulations, as set forth below:
PART 17--[AMENDED]
0
1. The authority citation for part 17 continues to read as follows:
Authority: 16 U.S.C. 1361-1407; 16 U.S.C. 1531-1544; 16 U.S.C.
4201-4245; Pub. L. 99-625, 100 Stat. 3500; unless otherwise noted.
0
2. In Sec. 17.11(h), revise the entry for ``Darter, vermilion'' under
FISHES in the List of Endangered and Threatened Wildlife to read as
follows:
Sec. 17.11 Endangered and threatened wildlife.
* * * * *
(h) * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
Species Vertebrate
-------------------------------------------------------- population where Critical Special
Historic range endangered or Status When listed habitat rules
Common name Scientific name threatened
--------------------------------------------------------------------------------------------------------------------------------------------------------
* * * * * * *
Fishes
* * * * * * *
Darter, vermilion................ Etheostoma chermocki U.S.A. (AL)........ Entire............. E 715 17.95(e) NA
* * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
0
3. In Sec. 17.95(e), add an entry for ``Vermilion Darter (Etheostoma
chermocki),'' in the same alphabetical order as the species appears in
the table at Sec. 17.11(h), to read as follows:
Sec. 17.95 Critical habitat--fish and wildlife.
* * * * *
(e) Fishes.
* * * * *
Vermilion Darter (Etheostoma chermocki)
(1) Critical habitat units are depicted for Jefferson County,
Alabama, on the map below.
(2) Within these areas, the primary constituent elements of the
physical and biological features essential to the conservation of the
vermilion darter consist of four components:
(i) Geomorphically stable stream bottoms and banks (stable
horizontal dimension and vertical profile) in order to maintain bottom
features (riffles, runs, and pools) and transition zones between bottom
features, to promote connectivity between spawning, foraging, and
resting sites, and to maintain gene flow throughout the species range.
(ii) Instream flow regime with an average daily discharge over 50
cubic feet per second, inclusive of both surface runoff and groundwater
sources (springs and seepages) and exclusive of flushing flows.
(iii) Water quality with temperature not exceeding 26.7 [deg]C (80
[deg]F), dissolved oxygen 6.0 milligrams or greater per
[[Page 75928]]
liter, turbidity of an average monthly reading of 10 NTU and 15mg/l TSS
(Nephelometric Turbidity Units; units used to measure sediment
discharge; Total Suspended Solids measured as mg/l of sediment in
water) or less; and a specific conductance (ability of water to conduct
an electric current, based on dissolved solids in the water) of no
greater than 225 micro Siemens per centimeter at 26.7 [deg]C (80
[deg]F).
(iv) Stable bottom substrates consisting of fine gravel with coarse
gravel or cobble, or bedrock with sand and gravel, with low amounts of
fine sand and sediments within the interstitial spaces of the
substrates along with adequate aquatic vegetation.
(3) Critical habitat does not include manmade structures existing
on the effective date of this rule and not containing one or more of
the primary constituent elements, such as buildings, bridges,
aqueducts, airports, and roads, and the land on which such structures
are located.
(4) Critical habitat unit map. The map was developed from USGS 7.5'
quadrangles. Critical habitat unit upstream and downstream limits were
then identified by longitude and latitude using decimal degrees.
(5) Note: Index map of critical habitat units for the vermilion
darter follows:
BILLING CODE 4310-55-P
[[Page 75929]]
[GRAPHIC] [TIFF OMITTED] TR07DE10.005
BILLING CODE 4310-55-C
(6) Unit 1: Turkey Creek, Jefferson County, Alabama.
(i) Unit 1 includes the channel in Turkey Creek from Shadow Lake
Dam (086[deg]38'22.50'' W long., 033[deg]40'44.78'' N lat.) downstream
to the Section 13/14 (T15S, R2W) line (086[deg]42'31.81'' W long.,
033[deg]43'23.61'' N lat.).
(ii) Map of Unit 1 is provided at paragraph (10)(ii) of this entry.
[[Page 75930]]
(7) Unit 2: Dry Branch, Jefferson County, Alabama.
(i) Unit 2 includes the channel in Dry Branch from the bridge at
Glenbrook Road (086[deg]41'6.05'' W long., 033[deg]41'10.65'' N lat)
downstream to the confluence with Beaver Creek (86[deg]41'17.39'' W
long., 033[deg]41'26.94'' N lat.).
(ii) Map of Unit 2 is provided at paragraph (10)(ii) of this entry.
(8) Unit 3: Beaver Creek, Jefferson County, Alabama.
(i) Unit 3 includes the channel of Beaver Creek from the confluence
with the unnamed tributary to Beaver Creek and Dry Branch
(086[deg]41'17.54'' W long., 033[deg]41'26.94'' N lat.) downstream to
its confluence with Turkey Creek (086[deg]41'9.16'' W long.,
033[deg]41'55.86 N lat.).
(ii) Map of Unit 3 is provided at paragraph (10)(ii) of this entry.
(9) Unit 4: Dry Creek, Jefferson County, Alabama.
(i) Unit 4 includes the channel of Dry Creek, from Innsbrook Road
(086[deg]39'53.78'' W long., 033[deg]42'19.11'' N lat) downstream to
the confluence with Turkey Creek (086[deg]40'3.72'' W long.,
033[deg]42'1.39'' N lat).
(ii) Map of Unit 4 is provided at paragraph (10)(ii) of this entry.
(10) Unit 5: Unnamed Tributary to Beaver Creek, Jefferson County,
Alabama.
(i) Unit 5 includes the channel of the Unnamed Tributary from its
confluence with Beaver Creek (086[deg]41'17.54'' W long.,
033[deg]41'26.94'' N lat.), upstream to the 1/2(T16S, R2W) section line
(086[deg]42'31.70'' W long., 033[deg]39'54.15'' N lat.)
(ii) Map of Units 1, 2, 3, 4, and 5 (Map 2) follows:
[GRAPHIC] [TIFF OMITTED] TR07DE10.006
[[Page 75931]]
* * * * *
Dated: November 26, 2010.
Jane Lyder,
Acting Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 2010-30420 Filed 12-6-10; 8:45 am]
BILLING CODE 4310-55-C