2011 Federal Register, 76 FR 63360; Centralized Library: U.S. Fish and Wildlife Service - Federal Register, Volume 76 Issue 197 (Wednesday, October 12, 2011)

[Federal Register Volume 76, Number 197 (Wednesday, October 12, 2011)]
[Proposed Rules]
[Pages 63360-63418]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-25655]

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Vol. 76

Wednesday,

No. 197

October 12, 2011

Part II

Department of the Interior

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Fish and Wildlife Service

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50 CFR Part 17

Endangered and Threatened Wildlife and Plants; Proposed Designation of
Critical Habitat for the Cumberland Darter, Rush Darter, Yellowcheek
Darter, Chucky Madtom, and Laurel Dace; Proposed Rule

Federal Register / Vol. 76 , No. 197 / Wednesday, October 12, 2011 /
Proposed Rules

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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-R4-ES-2011-0074; MO 92210-0-0009 B4]
RIN 1018-AX76

Endangered and Threatened Wildlife and Plants; Proposed
Designation of Critical Habitat for the Cumberland Darter, Rush Darter,
Yellowcheek Darter, Chucky Madtom, and Laurel Dace

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), propose
critical habitat for the Cumberland darter (Etheostoma susanae), rush
darter (Etheostoma phytophilum), yellowcheek darter (Etheostoma
moorei), chucky madtom (Noturus crypticus), and laurel dace (Chrosomus
saylori) under the Endangered Species Act of 1973, as amended (Act).
Approximately 85 river kilometers (rkm) (53 river miles (rmi)) are
being proposed for designation of critical habitat for the Cumberland
darter in McCreary and Whitley Counties, Kentucky, and Campbell and
Scott Counties, Tennessee; 42 rkm (27 rmi) and 19 hectares (ha) (22
acres (ac)) are being proposed for designation of critical habitat for
the rush darter in Etowah, Jefferson, and Winston Counties, Alabama;
157 rkm (98 rmi) are being proposed for designation of critical habitat
for the yellowcheek darter in Cleburne, Searcy, Stone, and Van Buren
Counties, Arkansas; 32 rkm (20 rmi) are being proposed for designation
of critical habitat for the chucky madtom in Greene County, Tennessee;
and 42 rkm (26 rmi) are being proposed for designation of critical
habitat for the laurel dace in Bledsoe, Rhea, and Sequatchie Counties,
Tennessee.

DATES: We will accept comments received or postmarked on or before
December 12, 2011. We must receive requests for public hearings, in
writing, at the address shown in the ADDRESSES section by November 28,
2011.

ADDRESSES: You may submit comments by one of the following methods:
(1) Federal eRulemaking Portal: http://www.regulations.gov. Follow
the instructions for submitting comments on Docket no. FWS-R4-ES-2011-
0074.
(2) U.S. mail or hand-delivery: Public Comments Processing, Attn:
FWS-R4-ES-2011-0074; Division of Policy and Directives Management; U.S.
Fish and Wildlife Service; 4401 N. Fairfax Drive, MS 2042-PDM;
Arlington, VA 22203.
We will post all comments on http://www.regulations.gov. This
generally means that we will post any personal information you provide
us (see the Public Comments section below for more information).

FOR FURTHER INFORMATION CONTACT: For information regarding the
Cumberland darter, contact Lee Andrews, Field Supervisor, U.S. Fish and
Wildlife Service, Kentucky Ecological Services Field Office, J.C. Watts
Federal Building, 330 W. Broadway, Room 265, Frankfort, KY 40601;
telephone 502-695-0468; facsimile 502-695-1024. For information
regarding the rush darter, contact Stephen Ricks, Field Supervisor,
U.S. Fish and Wildlife Service, Mississippi Ecological Services Field
Office, 6578 Dogwood View Parkway, Suite A, Jackson, MS 39213;
telephone 601-965-4900; facsimile 601-965-4340 or Bill Pearson, Field
Supervisor, U.S. Fish and Wildlife Service, Alabama Ecological Services
Field Office, 1208-B Main Street, Daphne, AL 36526; telephone 251-441-
5181; fax 251-441-6222. For information regarding the yellowcheek
darter, contact Jim Boggs, Field Supervisor, U.S. Fish and Wildlife
Service, Arkansas Ecological Services Field Office, 110 South Amity
Road, Suite 300, Conway, AR 72032; telephone 501-513-4470; facsimile
501-513-4480. For information regarding the chucky madtom or laurel
dace, contact Mary Jennings, Field Supervisor, U.S. Fish and Wildlife
Service, Tennessee Ecological Services Field Office, 446 Neal Street,
Cookeville, TN 38501; telephone 931-525-4973; facsimile 931-528-7075.
If you use a telecommunications device for the deaf (TDD), call the
Federal Information Relay Service (FIRS) at 800-877-8339.

SUPPLEMENTARY INFORMATION:

Public Comments

We intend that any final action resulting from this proposed rule
will be based on the best scientific and commercial data available and
be as accurate and effective as possible. Therefore, we request
comments or information from government agencies, the scientific
community, industry, or any other interested party concerning this
proposed rule. We particularly seek comments concerning:
(1) The reasons why we should or should not designate habitat as
``critical habitat'' under section 4 of the Act (16 U.S.C. 1531 et
seq.) including whether there are threats to any of the five species
from human activity, the degree of which can be expected to increase
due to the designation, and whether that increase in threat outweighs
the benefit of designation such that the designation of critical
habitat may not be prudent.
(2) Specific information on:
(a) The amount and distribution of each species' habitat;
(b) What areas, that were occupied at the time of listing (or are
currently occupied) and that contain features essential to the
conservation of any of the five species, should be included in the
designation and why;
(c) Special management considerations or protection that may be
needed in critical habitat areas we are proposing, including managing
for the potential effects of climate change, and
(d) What areas not occupied at the time of listing are essential
for the conservation of any of the five species and why.
(3) Land use designations and current or planned activities in the
subject areas and their possible impacts on proposed critical habitat.
(4) Information on the projected and reasonably likely impacts of
climate change on any of the five species or their proposed critical
habitat.
(5) Any probable economic, national security, or other relevant
impacts of designating any area that may be included in the final
designation; in particular, any impacts on small entities or families,
and the benefits of including or excluding areas that exhibit these
impacts.
(6) Whether any specific areas we are proposing for critical
habitat designation should be considered for exclusion under section
4(b)(2) of the Act, and whether the benefits of potentially excluding
any specific area outweigh the benefits of including that area under
section 4(b)(2) of the Act.
(7) Whether we could improve or modify our approach to designating
critical habitat in any way to provide for greater public participation
and understanding, or to better accommodate public concerns and
comments.
You may submit your comments and materials concerning this proposed
rule by one of the methods listed in the ADDRESSES section. We will
post your entire comment--including your personal identifying
information--on http://www.regulations.gov. You may request at the top
of your document that we withhold personal information such as your
street address, phone number, or e-mail address from public review;
however, we cannot guarantee that we will be able to do so.

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Comments and materials we receive, as well as supporting
documentation we used in preparing this proposed rule, will be
available for public inspection on http://www.regulations.gov, or by
appointment, during normal business hours, at the U.S. Fish and
Wildlife Service, Tennessee Ecological Services Field Office,
Cookeville, Tennessee (see FOR FURTHER INFORMATION CONTACT).

Background

It is our intent to discuss only those topics directly relevant to
the designation of critical habitat in this proposed rule. For more
information on the Cumberland darter (Etheostoma susanae), rush darter
(Etheostoma phytophilum), yellowcheek darter (Etheostoma moorei),
chucky madtom (Noturus crypticus), and laurel dace (Chrosomus saylori),
refer to the final listing rule published in the Federal Register on
August 9, 2011 (76 FR 48722). See also the discussion of habitat in the
Physical and Biological Features section below.

Cumberland Darter

The Cumberland darter (Etheostoma susanae) is a narrowly endemic
fish species, occurring in sparse, fragmented, and isolated populations
in the upper Cumberland River system of Kentucky and Tennessee. The
species inhabits pools or shallow runs of low to moderate gradient
sections of streams with stable sand, silt, or sand-covered bedrock
substrates (O'Bara 1988, pp. 10-11; O'Bara 1991, p. 10; Thomas 2007, p.
4). Thomas (2007, p. 4) did not encounter the species in high-gradient
sections of streams or areas dominated by cobble or boulder substrates.
Thomas (2007, p. 4) reported that streams inhabited by Cumberland
darters were second to fourth order, with widths ranging from 4 to 9
meters (m) (11 to 30 feet (ft)) and depths ranging from 20 to 76
centimeters (cm) (8 to 30 inches (in)).
The Cumberland darter's current distribution is limited to 13
streams in McCreary and Whitley Counties, Kentucky, and Campbell and
Scott Counties, Tennessee (Thomas 2007, pp. 11-12). Occurrences from
these streams are thought to form six population clusters (Bunches
Creek, Indian Creek, Marsh Creek, Jellico Creek, Wolf Creek, and Youngs
Creek), which are geographically separated from one another by an
average distance of 30.5 stream km (19 stream mi) (O'Bara 1988, p. 12;
O'Bara 1991, p. 10; Thomas 2007, p. 3).
The primary threat to the Cumberland darter is physical habitat
destruction or modification resulting from a variety of human-induced
impacts such as siltation, disturbance of riparian corridors, and
changes in channel morphology (Waters 1995, pp. 2-3; Skelton 1997, pp.
17, 19; Thomas 2007, p. 5). The most significant of these impacts is
siltation (excess sediments suspended or deposited in a stream) caused
by excessive releases of sediment from activities such as resource
extraction (e.g., coal mining, silviculture, natural gas development),
agriculture, road construction, and urban development (Waters 1995, pp.
2-3; Skelton 1997, pp. 17, 19; KDOW 2006, pp. 178-185; Thomas 2007, p.
5).

Rush Darter

The rush darter (Etheostoma phytophilum) is a narrowly endemic,
rare, and difficult to collect fish species in north-central Alabama.
The rush darter occurs in sparse, fragmented, and isolated populations.
The species is currently known from tributaries and associated spring
systems of the Turkey Creek (Jefferson County), Clear Creek (Winston
County), and Little Cove Creek watersheds (Etowah County). Most of
these tributaries contain sites with intact physical characteristics
such as riffles, runs, pools, transition zones, and emergent
vegetation. Rush darters prefer springs and spring-fed reaches of
relatively low-gradient, small streams (Bart and Taylor 1999, p. 32;
Johnston and Kleiner 2001, pp. 3-4; Stiles and Blanchard 2001, pp. 1-4;
Bart 2002, p. 1; Fluker et al. 2007, p. 1; Stiles and Mills 2008, pp.
1-4). Rush darters are also found in wetland pools and in some
ephemeral tributaries of the aforementioned watersheds (Stiles and
Mills 2008, pp. 2-3). This species also relies heavily on aquatic
vegetation (Fluker et al. 2007, p. 1), including both small clumps and
dense stands, and root masses of emergent vegetation along stream
margins. These habitats tend to be shallow, clear, and cool, with
moderate current and substrates composed of a combination of sand with
silt, muck, gravel, or bedrock.
The species is found in both urban and industrial zoned areas
(Jefferson County) and rural settings (Winston and Etowah Counties).
Within these areas, the rush darters' habitat has been degraded by
alteration of stream banks and bottoms; channelization; inadequate
storm water management; inappropriate placement of culverts, pipes, and
bridges; road maintenance; and haphazard silvicultural and agricultural
practices. The persistence of a constant flow of clean groundwater from
various springs has somewhat offset the destruction of the species'
habitat, water quality, and water quantity; however, the species'
status still appears to be declining.

Yellowcheek Darter

The yellowcheek darter (Etheostoma moorei) is endemic to the
Devil's, Middle, South, and Archey forks of the Little Red River in
Cleburne, Searcy, Stone, and Van Buren Counties in Arkansas (Robison
and Buchanan 1988, p. 429). These streams are located primarily within
the Boston Mountains subdivision of the Ozark Plateau. In 1962, the
construction of a dam on the Little Red River to create Greers Ferry
Reservoir impounded much of the range of this species, including the
lower reaches of Devil's Fork, Middle Fork, South Fork, and portions of
the main stem Little Red River, thus extirpating the species from these
reaches. Cold tailwater releases below the dam preclude the yellowcheek
darter from inhabiting the main stem Little Red River. The yellowcheek
darter inhabits high-gradient headwater tributaries with clear water;
permanent flow; moderate to strong riffles; and gravel, cobble, and
boulder substrates (Robison and Buchanan 1988, p. 429). Prey items
consumed by yellowcheek darters include blackfly larvae, stoneflies,
and mayflies.
Robison and Harp (1981, p. 5) estimated the range of the
yellowcheek darter in the South Fork to extend from 2.9 km (1.8 mi)
north northeast of Scotland, Arkansas, to U.S. Highway 65 in Clinton,
Arkansas. The Middle Fork population was estimated to extend from just
upstream of U.S. Highway 65 near Leslie, Arkansas, to 4.8 km (3.0 mi)
west of Shirley, Arkansas. The Archey Fork population extended from its
confluence with South Castleberry Creek to immediately downstream of
U.S. Highway 65 in Clinton, Arkansas. The Devil's Fork population
extended from 4.8 km (3.0 mi) north of Prim, Arkansas, to 6.1 km (3.8
mi) east southeast of Woodrow, Arkansas.
The yellowcheek darter is threatened primarily by factors
associated with the present destruction, modification, or curtailment
of its habitat or range. Threats include sedimentation and nutrient
enrichment from impoundment, water diversion, gravel mining,
channelization or channel instability, and natural gas development.

Chucky Madtom

The chucky madtom (Noturus crypticus) is a rare catfish found in
Greene County, Tennessee. Specimens collected in Little Chucky Creek
have been found in stream runs with slow to moderate current over pea
gravel,

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cobble, or slab-rock boulder substrates (Burr and Eisenhour 1994, p.
2). These habitats are sparse in Little Chucky Creek, and the stream
affords little loose, rocky cover suitable for madtoms (Shute et al.
1997, p. 8). It is notable that intact riparian buffers are present in
the locations where chucky madtoms have been found (Shute et al. 1997,
p. 9).
Little is known about chucky madtom lifehistory and behavior;
however, this information is available for other similar members of the
Noturus group. Dinkins and Shute (1996, p. 50) found smoky madtoms (N.
baileyi) underneath slab-rock boulders in swift to moderate current
during May to early November. Habitat use shifted to shallow pools over
the course of a 1-week period, coinciding with a drop in water
temperature to 7 or 8 [deg]C (45 to 46 [deg]F), and persisted from
early November to May. Eisenhour et al. (1996, p. 43) collected saddled
madtoms (N. fasciatus) in gravel, cobble, and slab-rock boulders in
riffle habitats with depths ranging from 0.1 to 0.3 m (0.3 to 1.0 ft).
Based on their limited number of observations, Eisenhour et al. (1996,
p. 43) hypothesized that saddled madtoms occupy riffles and runs in the
daylight hours and then move to pools at night and during crepuscular
hours (dawn and dusk) to feed.
The current range of the chucky madtom is restricted to an
approximate 3-km (1.8-mi) reach of Little Chucky Creek in Greene
County, Tennessee. Degradation from sedimentation, physical habitat
disturbance, and contaminants threaten the habitat and water quality on
which the chucky madtom depends. Sedimentation could negatively affect
the chucky madtom by reducing growth rates, disease tolerance, and gill
function; reducing spawning habitat, reproductive success, and egg,
larval, and juvenile development; reducing food availability through
reductions in prey; and reducing foraging efficiency. Contaminants
associated with agriculture (e.g., fertilizers, pesticides, herbicides,
and animal waste) can cause degradation of water quality and habitats
through instream oxygen deficiencies, excess nutrification, and
excessive algal growths.

Laurel Dace

The laurel dace (Chrosomus saylori) is endemic to seven streams on
the Walden Ridge portion of the Cumberland Plateau (Bledsoe, Rhea, and
Sequatchie Counties, Tennessee), where drainages generally meander
eastward before dropping abruptly down the plateau escarpment and
draining into the Tennessee River. Laurel dace are known historically
from seven streams in three disjunct systems: Soddy Creek; three
streams that are part of the Sale Creek system (the Horn and Laurel
branch tributaries to Rock Creek, and the Cupp Creek tributary to
Roaring Creek); and three streams that are part of the Piney River
system (Youngs, Moccasin, and Bumbee Creeks). In 1991, and in four
other surveys (two in 1995, one in 1996, and one in 2004), laurel dace
were not collected in Laurel Branch, leading Skelton to the conclusion
that laurel dace had been extirpated from the stream (Skelton 1997, p.
13; Skelton 2001, p. 126; Skelton 2009, pers. comm.).
The current distribution of laurel dace encompasses six of seven
historical streams; the species is considered extirpated from Laurel
Branch (see above). In these six streams, the species is known to
occupy reaches ranging in length from 0.3 to 8.0 km (0.2 to 5 mi).
Laurel dace have been most often collected from pools or slow runs from
undercut banks or beneath slab-rock boulders, typically in first or
second order, clear, cool (maximum temperature 26 [deg]C or 78.8
[deg]F) streams. Substrates in laurel dace streams typically consist of
a mixture of cobble, rubble, and boulders and the streams tend to have
a dense riparian zone consisting largely of mountain laurel (Skelton
2001, pp. 125-126).
The primary threat to laurel dace throughout its range is excessive
siltation resulting from agriculture and extensive silviculture,
especially those involving inadequate riparian buffers in harvest areas
and the failure to use best management practices (BMPs) during road
construction. Severe degradation from sedimentation, physical habitat
disturbance, and contaminants threaten the habitat and water quality on
which the laurel dace depends. Sedimentation negatively affects the
laurel dace by reducing growth rates, disease tolerance, and gill
function; reducing spawning habitat, reproductive success, and egg,
larvae, and juvenile development; reducing food availability through
reductions in prey; and reducing foraging efficiency.

Previous Federal Action

The Cumberland darter, rush darter, yellowcheek darter, chucky
madtom, and laurel dace were listed as endangered under the Act on
August 9, 2011 (76 FR 48722). In the June 24, 2010 proposed listing
rule (75 FR 36035) for the five species we determined that designation
of critical habitat was prudent for all five species. However, we found
that critical habitat was not determinable at the time and set forth
the steps we would undertake to obtain the information necessary to
develop a proposed designation of critical habitat. We were unable to
include a proposal to designate critical habitat with the final listing
rule of the five species (76 FR 48722) due to an internal publishing
requirement that proposed and final rules be separately published in
the Federal Register. For the full history of previous federal actions
regarding these five species, please refer to the final listing rule
(76 FR 48722).

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 ensure, 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

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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, the habitat within
the geographical area occupied by the species at the time it was listed
must contain the physical and 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 determine which areas should be designated 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 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. Climate change will be a particular challenge for
biodiversity because the interaction of additional stressors associated
with climate change and current stressors may push species beyond their
ability to survive (Lovejoy 2005, pp. 325-326). The synergistic
implications of climate change and habitat fragmentation are the most
threatening facet of climate change for biodiversity (Hannah et al.
2005, p. 4). Current climate change predictions for terrestrial areas
in the Northern Hemisphere indicate warmer air temperatures, more
intense precipitation events, and increased summer continental drying
(Field et al. 1999, pp. 1-3; Hayhoe et al. 2004, p. 12422; Cayan et al.
2005, p. 6; Intergovernmental Panel on Climate Change (IPCC) 2007, p.
1181). Climate change may lead to increased frequency and duration of
severe storms and droughts (McLaughlin et al. 2002, p. 6074; Golladay
et al. 2004, p. 504; Cook et al. 2004, p. 1015).
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 Cumberland darter, rush darter, yellowcheek darter,
chucky madtom, or laurel dace that would indicate what areas may become
important to the species in the future. Therefore, we are unable to
determine what additional areas, if any, may be appropriate to include
in the final critical habitat for these 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, in determining which areas within the
geographical area occupied by the species at the time of listing to
designate as critical habitat, we consider the physical and biological
features essential to the conservation of the species and which may
require special management considerations or

[[Page 63364]]

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
distribution of a species.
We derive the specific physical and biological features required
for the Cumberland darter, rush darter, yellowcheek darter, chucky
madtom, and laurel dace from studies of these species' habitats,
ecology, and life history as described below. Additional information
can be found in the final listing rule published in the Federal
Register on August 9, 2011 (76 FR 48722). To identify the physical and
biological features essential to the conservation of the these species,
we have relied on current conditions at locations where the species
survive, the limited information available on these species and their
close relatives, as well as factors associated with the decline of
other fishes that occupy similar habitats in the Southeast. We have
determined that these five species require the following physical and
biological features:
Space for Individual and Population Growth and for Normal Behavior

Cumberland Darter

Little is known about the specific space requirements of the
Cumberland darter; however, the species is typically found in low to
moderate gradient, second- to fourth-order, geomorphically stable
streams, where it occupies shallow pools or runs with gentle current
over sand or sand-covered bedrock substrates with patches of gravel or
debris (O'Bara 1991, p. 10; Thomas 2007, p. 4). Geomorphically stable
streams transport sediment while maintaining their horizontal and
vertical dimensions (width to depth ratio and cross-sectional area),
pattern (sinuosity), and longitudinal profile (riffles, runs, and
pools), thereby conserving the physical characteristics of the stream,
including bottom features such as riffles, runs, and pools and the
transition zones between these features. The protection and maintenance
of these habitat features accommodate spawning, rearing, growth,
migration, and other normal behaviors of the Cumberland darter.
Limited information exists with regard to upstream or downstream
movements of Cumberland darters; however, Winn (1958a, pp. 163-164)
reported considerable pre-spawn movements for its closest relative, the
Johnny darter. In Beer Creek, Monroe County, Michigan, Johnny darters
migrated several miles between temporary stream habitats and permanent
pools in downstream reaches. Recent capture data for tagged individuals
in Cogur Fork, McCreary County, Kentucky, demonstrate that Cumberland
darters may make similar movements (Thomas 2010, pers. comm.).
Individuals tagged and released by the Kentucky Department of Fish and
Wildlife Resources (KDFWR) and Conservation Fisheries, Inc. (CFI)
traveled distances ranging from 0.4 to 0.7 km (0.2 to 0.4 mi) between
their release date of September 22, 2010, and their recapture date of
November 9, 2010 (period of 48 days) (Thomas 2010, pers. comm.). Over
longer periods, it is likely that Cumberland darters can utilize stream
reaches longer than 0.7 km (0.4 mi).
The current range of the Cumberland darter has been reduced to 13
streams (15 occurrences) due to destruction and fragmentation of
habitat. Fragmentation of the species' habitat has subjected these
small populations to genetic isolation, reduced space for rearing and
reproduction, reduced adaptive capabilities, and an increased
likelihood of local extinctions (Burkhead et al. 1997, pp. 397-399;
Hallerman 2003, pp. 363-364). Genetic variation and diversity within a
species are essential for recovery, adaptation to environmental change,
and long-term viability (capability to live, reproduce, and develop)
(Noss and Cooperrider 1994, pp. 282-297; Harris 1984, pp. 93-107;
Fluker et al. 2007, p. 2). The long-term viability of a species is
founded on the conservation of numerous local populations throughout
its geographic range (Harris 1984, pp. 93-104). Connectivity of these
habitats is essential in preventing further fragmentation and isolation
of Cumberland darter populations and promoting species movement and
genetic flow between populations.
Therefore, based on the information above, we identify shallow
pools and runs and associated stream segments of geomorphically stable,
second- to fourth-order streams to be a physical or biological feature
for the Cumberland darter. The connectivity of these habitats is
essential in accommodating feeding, breeding, growth, and other normal
behaviors of the Cumberland darter and in promoting gene flow within
the species.

Rush Darter

Little is known about the specific space requirements of the rush
darter in the Turkey Creek, Little Cove Creek, and Clear Creek systems
(Boschung and Mayden 2004, p. 551); however, in general, darters depend
on space within geomorphically stable streams with varying water
quantities and flow. Specifically, rush darters appear to prefer
springs and spring-fed reaches of relatively low-gradient, small
streams (Bart and Taylor 1999, p. 32; Johnston and Kleiner 2001, pp. 3-
4; Stiles and Blanchard 2001, pp. 1-4; Bart 2002, p. 1; Fluker et al.
2007, p. 1; Stiles and Mills 2008, pp. 1-4) and wetland pools (Stiles
and Mills 2008, pp. 2-3). This species also relies heavily on aquatic
vegetation (Fluker et al. 2007, p. 1) including: root masses of
emergent vegetation along the margins of spring-fed streams in very
shallow, clear, cool, and flowing water; and both small clumps and
dense stands of bur reed (Sparganium sp.), coontail (Ceratophyllum
sp.), watercress (Nasturtium officinale), and rush (Juncus sp.). The
rush darter inhabits streams with substrates of silt, sand, sand and
silt, muck and sand or some gravel with sand, and bedrock.
Geomorphically stable streams transport sediment while maintaining
their horizontal and vertical dimensions (width to depth ratio and
cross-sectional area), pattern (sinuosity), and longitudinal profile
(riffles, runs, and pools), thereby conserving the physical
characteristics of the stream, including bottom features such as
riffles, runs, and pools and the transition zones between these
features that contain some silt, sand, and finer substrates. The
riffles, runs, and pools not only provide space for the rush darter,
but also provide space for emergent vegetation in shallow water along
the margins of the small streams and springs for cover, and shelter
necessary for breeding, reproduction, and growth of offspring.
The current range of the rush darter within the entire Turkey
Creek, Clear Creek, and Little Cove Creek watersheds is reduced to
localized sites due to fragmentation, separation, and destruction of
rush darter habitats and populations. There are dispersal barriers
(pipes and culverts for road crossings; channelized stream segments;
and emergent aquatic plant control, which eliminates cover habitat for
the species) that may contribute to the separation and isolation of
rush darter populations and affect water quality. Fragmentation

[[Page 63365]]

of the species' habitat has isolated populations and reduced available
spaces for rearing and reproduction, thereby reducing adaptive
capability and increasing the likelihood of local extinctions (Burkhead
et al. 1997, pp. 397-399; Hallerman 2003, pp. 363-364). 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) (Harris 1984, pp. 93-107;
Noss and Cooperrider 1994, pp. 282-297; Fluker et al. 2007, p. 2).
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 emergent vegetation in shallow water on the
margins of small streams and springs, and promoting genetic flow
throughout the populations. Continuity of habitat will maintain
spawning, foraging, and resting sites, and allow for gene flow
throughout the population. Connectivity of habitats, as a whole, also
permits improvement in water quality and water quantity by allowing
unobstructed water flow throughout the connected habitats.
Therefore, based on the information above, we identify springs and
spring-fed reaches of relatively low-gradient, geomorphically stable
streams with emergent vegetation to be a physical or biological feature
for the rush darter. The connectivity of these habitats is essential in
accommodating feeding, breeding, growth, and other normal behaviors of
the rush darter and in promoting gene flow within the species.

Yellowcheek Darter

The yellowcheek darter is typically found in clear, high-gradient,
second- to fifth-order, geomorphically stable streams, maintaining
permanent year-round flows (Robison and Buchanan 1988, p. 429). The
species occupies riffles with moderate to fast current over gravel,
cobble, and boulder substrates (Robison and Buchanan 1988, p. 429).
Geomorphically stable streams transport sediment while maintaining
their horizontal and vertical dimensions (width to depth ratio and
cross-sectional area), pattern (sinuosity), and longitudinal profile
(riffles, runs, and pools), thereby conserving the physical
characteristics of the stream, including bottom features such as
riffles, runs, and pools and the transition zones between these
features. The protection and maintenance of these habitat features
accommodate spawning, rearing, growth, migration, and other normal
behaviors of the yellowcheek darter.
In 1962, the construction of Little Red River Dam to create Greers
Ferry Reservoir impounded much of the range of the yellowcheek darter,
including the lower reaches of Devil's Fork, Middle Fork, South Fork,
and portions of the main stem Little Red River, thus extirpating the
species from these reaches. The yellowcheek darter was also extirpated
from the Little Red River downstream of Greers Ferry Reservoir due to
cold tailwater releases. The lake flooded optimal habitat for the
species, and caused genetic isolation of populations (McDaniel 1984, p.
1), with only the South and Archey forks of the Little Red River
maintaining a non-inundated confluence.
As stated earlier, of the four streams supporting the yellowcheek
darter, only the South and Archey forks maintain a non-inundated
confluence. Instream habitat at the confluence of the two streams is
suboptimal due to previous channelization, but restoration could
provide an opportunity for vital population interactions between
streams to maintain genetic diversity. Fragmentation of the species'
habitat has subjected these small populations to genetic isolation,
reduced space for rearing and reproduction, reduced adaptive
capabilities, and an increased likelihood of local extinctions
(Burkhead et al. 1997, pp. 397-399; Hallerman 2003, pp. 363-364).
Genetic variation and diversity within a species are essential for
recovery, adaptation to environmental change, and long-term viability
(capability to live, reproduce, and develop) (Harris 1984, pp. 93-107;
Noss and Cooperrider 1994, pp. 282-297; Fluker et al. 2007, p. 2). The
long-term viability of a species is founded on the conservation of
numerous local populations throughout its geographic range (Harris
1984, pp. 93-104). Connectivity of these habitats is essential to
prevent further fragmentation and isolation of yellowcheek darter
populations and to promote species movement and genetic flow between
populations.
Therefore, based on the information above, we identify riffles of
geomorphically stable, second- to fifth-order streams to be a physical
or biological feature for the yellowcheek darter. The connectivity of
these habitats is essential to accommodate feeding, breeding, growth,
and other normal behaviors of the yellowcheek darter and to promote
gene flow within the species.

Chucky Madtom

Little is known about the specific space requirements of the chucky
madtom; however, all of the specimens collected in Little Chucky Creek
have been found in shallow pool and run habitats with slow to moderate
current over pea gravel, cobble, or slab-rock boulder substrates (Burr
and Eisenhour 1994, p. 2). Geomorphically stable streams transport
sediment while maintaining their horizontal and vertical dimensions
(width to depth ratio and cross-sectional area), pattern (sinuosity),
and longitudinal profile (riffles, runs, and pools), thereby conserving
the physical characteristics of the stream, including bottom features,
such as riffles, runs, and pools and the transition zones between these
features. The protection and maintenance of these habitat features
accommodate spawning, rearing, growth, migration, and other normal
behaviors of the chucky madtom.
The current range of the chucky madtom has been reduced to only one
stream due to fragmentation and destruction of habitat. Habitat
fragmentation has subjected the small population to genetic isolation,
reduced space for rearing and reproduction, reduced adaptive
capabilities, and increased the likelihood of extinction (Burkhead et
al. 1997, pp. 397-399; Hallerman 2003, pp. 363-364). Genetic variation
and diversity within a species are essential for recovery, adaptation
to environmental change, and long-term viability (capability to live,
reproduce, and develop) (Harris 1984, pp. 93-107; Noss and Cooperrider
1994, pp. 282-297; Fluker et al. 2007, p. 2). The long-term viability
of a species is founded on the conservation of numerous local
populations throughout its geographic range (Harris 1984, pp. 93-104).
Connecting instream habitats is essential in preserving the genetic
viability of the chucky madtom in Little Chucky Creek.
Therefore, based on the information above, we identify shallow
pools and runs of geomorphically stable streams to be a physical or
biological feature for the chucky madtom. The connectivity of these
habitats is essential to accommodate feeding, breeding, growth, and
other normal behaviors of the chucky madtom and to promote gene flow
within the species.

Laurel Dace

Little is known about the specific space requirements of the laurel
dace; however, the species is typically found in low to moderate
gradient, first- to second-order, geomorphically stable

[[Page 63366]]

streams. The laurel dace occupies pools or slow runs beneath undercut
banks or slab-rock boulders in clear, cool (maximum temperature 26
[deg]C (78.8 [deg]F)) streams. Substrates in streams where laurel dace
are found typically consist of a mixture of cobble, rubble, and
boulders and the streams tend to have a dense riparian zone consisting
largely of mountain laurel (Skelton 2001, pp. 125-126).
Geomorphically stable streams transport sediment while maintaining
their horizontal and vertical dimensions (width to depth ratio and
cross-sectional area), pattern (sinuosity), and longitudinal profile
(riffles, runs, and pools), thereby conserving the physical
characteristics of the stream, including bottom features such as
riffles, runs, and pools and the transition zones between these
features. The protection and maintenance of these habitat features
accommodate spawning, rearing, growth, migration, and other normal
behaviors of the laurel dace.
Strange and Skelton (2005, p. 8) assessed the genetic structure
within populations of laurel dace and, based on distribution of genetic
diversity among populations, they recognized two genetically distinct
management units: (1) The southern populations in Sale and Soddy
creeks, and (2) the northern population in the Piney River system.
The current range of the laurel dace has been reduced to short
reaches (approximately 0.3 to 8 km (0.2 to 5 mi) in length) of six
streams due to fragmentation and destruction of habitat. Fragmentation
of the species' habitat has subjected these small populations to
genetic isolation, reduced space for rearing and reproduction, reduced
adaptive capabilities, and an increased likelihood of local extinctions
(Burkhead et al. 1997, pp. 397-399; Hallerman 2003, pp. 363-364).
Genetic variation and diversity within a species are essential for
recovery, adaptation to environmental change, and long-term viability
(capability to live, reproduce, and develop) (Harris 1984, pp. 93-107;
Noss and Cooperrider 1994, pp. 282-297; Fluker et al. 2007, p. 2). The
long-term viability of a species is founded on the conservation of
numerous local populations throughout its geographic range (Harris
1984, pp. 93-104). Connectivity of these habitats is essential in
preventing further fragmentation and isolation of laurel dace
populations.
Therefore, based on the information above, we identify shallow
pools and runs and associated stream segments of geomorphically stable,
first- to second-order streams with riparian vegetation to be a
physical or biological feature for the laurel dace. The connectivity of
these habitats is essential in accommodating feeding, breeding, growth,
and other normal behaviors of the laurel dace and in promoting gene
flow within the species.
Food, Water, Air, Light, Minerals, or Other Nutritional or
Physiological Requirements

Cumberland Darter

Feeding habits of the Cumberland darter are unknown but are likely
similar to that of its sister species, the Johnny darter (E. nigrum
Rafinesque). Johnny darters are diurnal sight feeders, with prey items
consisting of midge larvae, mayfly nymphs, caddisfly larvae, and
microcrustaceans (Kuehne and Barbour 1983, p. 104; Etnier and Starnes
1993, p. 511). Similar to other darters, juvenile Cumberland darters
likely feed on planktonic organisms or other small invertebrates.
Like most other darters, the Cumberland darter depends on perennial
stream flows that create suitable habitat conditions needed for
successful completion of its life cycle. An ample supply of flowing
water provides a means of transporting nutrients and food items,
moderating water temperatures and dissolved oxygen levels, removing
fine sediments that could damage spawning or foraging habitats, and
diluting nonpoint source pollutants. Water withdrawals do not represent
a significant threat to the species, but the species is faced with
occasional low-flow conditions that occur during periods of drought.
One such event occurred in the summer and fall of 2007 when recorded
streamflows in the upper Cumberland River basin of Kentucky and
Tennessee (USGS Station Number 03404000) were among the lowest monthly
values of the last 67 years (Cinotto 2008, pers. comm.).
Water quality is also important to the persistence of the
Cumberland darter. The species requires relatively clean, cool, flowing
water to successfully complete its life cycle, but specific water
quality requirements (such as temperature, dissolved oxygen, pH, and
conductivity) that define suitable habitat conditions for the
Cumberland darter have not been determined. In general, optimal water
quality conditions for fishes and other aquatic organisms are
characterized by moderate stream temperatures, acceptable dissolved
oxygen concentrations, and the lack of harmful levels of pollutants,
such as inorganic contaminants like iron, manganese, selenium, and
cadmium; organic contaminants such as human and animal waste products;
pesticides and herbicides; nitrogen, potassium, and phosphorus
fertilizers; and petroleum distillates.
Sediment is the most common pollutant within the upper Cumberland
River system (KDOW 1996, pp. 50-53, 71-75; 2002, pp. 39-40; 2006, pp.
178-185), and the primary sources of sediment include resource
extraction (e.g., coal mining, silviculture, natural gas development),
agriculture, road construction, and urban development (Waters 1995, pp.
2-3; Skelton 1997, pp. 17, 19; KDOW 2006, pp. 178-185; Thomas 2007, p.
5). Siltation (excess sediments suspended or deposited in a stream) has
been shown to abrade and suffocate bottom-dwelling organisms; reduce
aquatic insect diversity and abundance; impair fish feeding behavior by
altering prey base and reducing visibility of prey; impair reproduction
due to burial of nests; and, ultimately, negatively impact fish growth,
survival, and reproduction (Waters 1995, pp. 5-7, 55-62; Knight and
Welch 2001, pp. 134-136). O'Bara (1991, p. 11) reported that Cumberland
darter habitats are very susceptible to siltation because of the
habitat's low to moderate gradient, low velocity, and shallow depth.
O'Bara (1991, p. 11) concluded that siltation was the major limiting
factor for the species' continued existence and its ability to colonize
new stream systems.
Cumberland darters are threatened by water quality degradation
caused by a variety of nonpoint source pollutants. Coal mining
represents a major source of nonpoint source pollutants (O'Bara 1991,
p. 11; Thomas 2007, p. 5), because it has the potential to contribute
high concentrations of dissolved metals and other solids that lower
stream pH or lead to elevated levels of stream conductivity (Pond 2004,
pp. 6-7, 38-41; Mattingly et al. 2005, p. 59). These impacts have been
shown to negatively affect fish species, including listed species, in
the Clear Fork system of the Cumberland basin (Weaver 1997, pp. 29;
Hartowicz 2008, pers. comm.). The direct effect of elevated stream
conductivity on fishes, including the Cumberland darter, is poorly
understood, but some species, such as blackside dace (Chrosomus
cumberlandensis), have shown declines in abundance over time as
conductivity increased in streams affected by mining (Hartowicz 2008,
pers. comm.). Other nonpoint source pollutants that affect the
Cumberland darter include domestic sewage (through septic tank leakage
or straight pipe discharges); agricultural pollutants such as
fertilizers, pesticides, herbicides, and animal waste; and other

[[Page 63367]]

chemicals associated with oil and gas development. Nonpoint source
pollutants can cause excess nutrification (increased levels of nitrogen
and phosphorus), excessive algal growth, instream oxygen deficiencies,
increased acidity and conductivity, and other changes in water
chemistry that can negatively impact aquatic species (KDOW 1996, pp.
48-50; 2006, pp. 70-73).
Therefore, based on the information above, we identify aquatic
macroinvertebrate prey items; permanent surface flows, as measured
during average rainfall years; and adequate water quality with
substrates that are relatively silt-free to be physical or biological
features for the Cumberland darter. Relatively silt-free is defined for
the purpose of this rule as silt or fine sand within interstitial
spaces of substrates in amounts low enough to have minimal impact to
the species.

Rush Darter

Feeding habits of the rush darter are unknown but are likely
similar to that of its sister species, the goldstripe darter
(Etheostoma parvipinnis). The goldstripe darter is a benthic (bottom)
insectivore and is known to consume midge larvae, mayfly nymphs,
blackfly larvae, beetles, and microcrustaceans (Mettee et al. 1996, p.
655). Variations in instream flows maintain the stream bottom
substrates, providing oxygen and other attributes to various
invertebrate life stages. Sedimentation has been shown to wear away and
suffocate periphyton (organisms that live attached to objects
underwater) and disrupt aquatic insect communities (Waters 1995, pp.
53-86; Knight and Welch 2001, pp. 132-135). In addition, nutrification
promotes heavy algal growth that covers and eliminates the clean rock
or gravel habitats necessary for rush darter feeding. Thus, a decrease
in water quality and instream flow would correspondingly cause a
decline in the major food species for the rush darter.
Much of the cool, clean water provided to the Turkey Creek system
(Beaver Creek, Unnamed Tributary to Beaver Creek, Tapawingo or Penny
Springs and the Highway 79 site; Jefferson County) and Cove Spring run
of Little Cove Creek (Etowah County) comes from consistent and steady
groundwater sources (springs and seeps). Clear, 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. 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 rush darter.
Favorable water quantity for the rush darter includes moderate
water velocity in riffles and no flow or low flow in pools (Stiles and
Mills 2008, pp. 1-4), a continuous daily discharge that allows for
longitudinal connectivity within the species' habitat (Instream Flow
Council 2004, p. 117), and discharge from both surface water runoff and
groundwater sources (springs and seepages). Along with the continuous
daily discharge, both minimum and flushing flows are necessary to
remove fine sediments and dilute other pollutants (Moffett and Moser
1978, pp. 20-21; Gilbert et al., eds. 1994, pp. 505-522; Instream Flow
Council 2004, pp.103-104; Drennen 2009, pers. obs.). At some sites,
water depth ranges from 3.0 to 50 cm (0.1 to 1.6 ft). Groundwater
provides a constant source of flows to dilute pollutants and maintain
water quality for the persistence of the rush darter.
Factors that can potentially alter water quality include: droughts
and periods of low seasonal flow, precipitation events, nonpoint source
runoff, human activities within the watershed, random spills,
unregulated stormwater discharge events (Instream Flow Council 2004,
pp. 29-50), and water extraction. Instream pooling may also affect
water quality by reducing water flow, altering temperatures,
concentrating pollutants (Blanco and Mayden 1999, pp. 5-6, 36), and
retarding aquatic and emergent vegetation growth.
Fishes require acceptable levels of dissolved oxygen. Generally,
among fishes, the young life forms require more dissolved oxygen and
are the most sensitive. The amount of dissolved oxygen that is present
in the water (the saturation level) depends upon water temperature. As
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 fishes; extended low-flow conditions coupled
with higher pollutant levels could likely result in behavioral changes
within all life stages, which 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 (Alabama Department
of Environmental Management (ADEM) 1996, pp. 13-15). Sediment is the
most abundant pollutant produced in the Mobile River Basin (ADEM 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 may fill in essential
interstitial spaces (spaces between stream substrates) used by aquatic
organisms for spawning and foraging; therefore, excessive siltation
negatively impacts fish growth, physiology, behavior, reproduction, and
survival. Nutrification (excessive nutrients present, such as nitrogen
and phosphorous) promotes heavy algal growth that covers and eliminates
clean rock or gravel habitats and aquatic and emergent vegetation,
necessary for rush darter feeding and spawning. Generally, early life
stages of fishes are less tolerant of environmental contamination than
adults or juveniles (Little et al. 1993, p. 67). Appropriate water
quality and quantity are necessary to dilute impacts from stormwater
and other non-natural effluents. Harmful levels of pollutants impair
critical behavior processes in fishes, as reflected in population-level
responses (reduced population size, biomass, year class success, etc.).
However, excessive water quantity in the form of substantial stormwater
runoff may destabilize and move bottom and bankside substrates and
increase instream sedimentation.
Essential water quality attributes for darters and other fish
species in fast to medium water flow streams include the following:
dissolved oxygen levels greater than 6 parts per million (ppm),
temperatures between 7 and 26.7 [deg]C (45 and 80 [deg]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 cm 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 milligrams/Liter (mg/L) Total
Suspended Solids (TSS; measured as mg/L of sediment in water) (Teels et
al. 1975, pp. 8-9;

[[Page 63368]]

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).
Therefore, based on the information above, we identify cool, clean,
flowing water; shallow depths; moderate water velocity in riffles and
low flow in pools; aquatic macroinvertebrate prey items; and adequate
water quality to be physical or biological features for the rush
darter.

Yellowcheek Darter

Adult and juvenile yellowcheek darters' prey items include blackfly
larvae, stonefly larvae, mayfly nymphs, and caddisfly larvae among
other stream insects (McDaniel 1984, p. 56). McDaniel (1984, p. 37)
noted a strong selectivity by yellowcheek darters for fly larvae year
round, while other prey taxa were consumed proportionally depending on
seasonal availability. Larval stages of yellowcheek darters have not
been studied in the field but are assumed to feed on planktonic
organisms based on laboratory rearing efforts and known larval fish
dietary habits.
Drought conditions and low water levels have been identified as
contributing factors in the decline of the yellowcheek darter (Wine et
al. 2000, p. 11). Expanding natural gas development activities that
began in the upper Little Red River watershed in 2005 require large
quantities of water and pose a threat to the continued existence of the
yellowcheek darter (75 FR 36045, June 24, 2010). Water diversion from
the Middle and South forks has increased in recent years due to large-
scale extraction of natural gas in the Fayetteville Shale (which
encompasses nearly all of the upper Little Red River drainage). Natural
gas development is imminent in the Archey and Devil's forks as well and
is predicted to affect numerous tributaries in all four watersheds.
Because the yellowcheek darter requires permanent flows with moderate
to strong current (Robison and Buchanan 1988, p. 429), seasonal
fluctuations in stream flows exacerbated by water diversion for natural
gas, agricultural, municipal or other land uses represent a serious
threat to the species.
In addition to water quantity, water quality is also important to
the persistence of the yellowcheek darter. Although the Middle Fork is
designated as an Extraordinary Resource Water, it is listed as impaired
along a 33.5-km (20.8-mi) reach due to fecal coliform bacteria
contamination according to the Arkansas Department of Environmental
Quality (ADEQ) List of Impaired Waterbodies. This same report listed a
3.2-km (2.0-mi) stretch of the South Fork as impaired due to elevated
mercury levels (ADEQ 2010, p. 22). Boston Mountain streams that support
the yellowcheek darter are typically characterized by adequate water
quality; however, increasing activity within the watersheds related to
resource extraction, urban development, and other human related
activities is reason for concern regarding the recovery potential of
the yellowcheek darter.
Therefore, based on the information above, we identify aquatic
macroinvertebrate prey items; permanent surface flows, as measured
during average rainfall years; moderate to strong water velocity in
riffles; and adequate water quality to be physical or biological
features for the yellowcheek darter.

Chucky Madtom

The chucky madtom's prey items are unknown; however, least madtom
(N. hildebrandi) prey items include midge larvae, caddisfly larvae,
stonefly larvae, and mayfly nymphs (Mayden and Walsh 1984, p. 339). In
smoky madtoms, mayfly nymphs comprised 70.7 percent of stomach contents
analyzed, followed by fly, mosquito, midge, and gnat larvae (2.4
percent); caddisfly larvae (4.4 percent); and stonefly larvae (1.0
percent) (Dinkins and Shute 1996, p. 61). Significant daytime feeding
was observed in smoky madtoms.
The TVA Index of Biological Integrity results indicate that Little
Chucky Creek is biologically impaired (Middle Nolichucky Watershed
Alliance 2006, p. 13). Given the predominantly agricultural land use
within the Little Chucky Creek watershed, nonpoint source sediment and
agrochemical discharges may pose a threat to the chucky madtom by
altering the physical characteristics of its habitat, thus potentially
impeding its ability to feed, seek shelter from predators, and
successfully reproduce. The City of Greeneville also discharges
sediments and contaminants into the creek, thereby threatening the
chucky madtom. Wood and Armitage (1997, pp. 211-212) identify at least
five impacts of sedimentation on fish, including: (1) Reduction of
growth rate, disease tolerance, and gill function; (2) reduction of
spawning habitat and egg, larvae, and juvenile development; (3)
modification of migration patterns; (4) reduction of food availability
through the blockage of primary production; and (5) reduction of
foraging efficiency.
Water quality is important to the persistence of the chucky madtom.
The species requires relatively clean, cool, flowing water to
successfully complete its life cycle, but specific water quality
requirements (such as temperature, dissolved oxygen, pH, and
conductivity) that define suitable habitat conditions for the chucky
madtom have not been determined. In general, optimal water quality
conditions for fishes and other aquatic organisms are characterized by
moderate stream temperatures and acceptable dissolved oxygen
concentrations, and they lack harmful levels of pollutants, such as
inorganic contaminants like iron, manganese, selenium, and cadmium;
organic contaminants such as human and animal waste products;
pesticides and herbicides; nitrogen, potassium, and phosphorus
fertilizers; and petroleum distillates.
As relatively sedentary animals, madtoms must tolerate the full
range of such parameters that occur naturally within the streams where
they persist. Both the amount of water (flow) and its physical and
chemical conditions (water quality) vary widely according to seasonal
precipitation events and seasonal human activities within the
watershed. In general, the species survives in areas where the
magnitude, frequency, duration, and seasonality of water flow is
adequate to remove fine particles and sediments (silt-free) without
causing degradation, and where water quality is adequate for year-round
survival (for example, moderate to high levels of dissolved oxygen, low
to moderate input of nutrients, and relatively unpolluted water and
sediments). Relatively silt-free is defined for the purpose of this
rule as silt or fine sand within interstitial spaces of substrates in
amounts low enough to have minimal impact to the species.
Therefore, based on the information above, we identify aquatic
macroinvertebrate prey items; cool, clean, flowing water; shallow
depths; permanent surface flows, as measured during average rainfall
years; and adequate water quality with substrates that are relatively
silt-free to be physical or biological features for the chucky madtom.

Laurel Dace

The laurel dace's preferred prey items include fly larvae, stonefly
larvae, and caddisfly larvae (Skelton 2001, p. 126). Skelton observed
that the morphological feeding traits of laurel dace, including a large
mouth, short digestive tract, reduced number of pharyngeal (located
within the throat) teeth, and primitively shaped basioccipital bone
(bone that articulates the vertebra), are consistent

[[Page 63369]]

with a diet consisting largely of animal material.
Strange and Skelton (2005, p. 7 and Appendix 2) identified
siltation as a threat in all of the occupied Piney River tributaries
(Youngs, Moccasin, and Bumbee Creeks). The Bumbee Creek type locality
for the laurel dace is located within industrial forest that has been
subjected to extensive clear-cutting and road construction in close
proximity to the stream. Strange and Skelton (2005, p. 7) noted a heavy
sediment load at this locality and commented that conditions there in
2005 had deteriorated since the site was visited by Skelton in 2002. In
general, the species occupies areas that are relatively silt-free.
Relatively silt-free is defined for the purpose of this rule as silt or
fine sand within interstitial spaces of substrates in amounts low
enough to have minimal impact to the species.
Strange and Skelton (2005, pp. 7 and 8 and Appendix 2) also
commented on excessive siltation in localities they sampled on Youngs
and Moccasin creeks, and observed localized removal of riparian
vegetation around residences in the headwaters of each of these
streams. They considered the removal of riparian vegetation problematic
not only for the potential for increased siltation, but also for the
potential thermal alteration of these small headwater streams. Skelton
(2001, p. 125) reported that laurel dace occupy cool streams with a
maximum recorded temperature of 26 [deg]C (78.8 [deg]F). The removal of
riparian vegetation could potentially increase temperatures above the
laurel dace's maximum tolerable limit.
Water quality is important to the persistence of the laurel dace.
The species requires relatively clean, cool, flowing water to
successfully complete its life cycle, but specific water quality
requirements (such as temperature, dissolved oxygen, pH, and
conductivity) that define suitable habitat conditions for the laurel
dace have not been determined. In general, optimal water quality
conditions for fishes and other aquatic organisms are characterized by
moderate stream temperatures and acceptable dissolved oxygen
concentrations, and they lack harmful levels of pollutants, such as
inorganic contaminants like iron, manganese, selenium, and cadmium;
organic contaminants such as human and animal waste products;
pesticides and herbicides; nitrogen, potassium, and phosphorus
fertilizers; and petroleum distillates.
Other factors that can potentially alter water quality and quantity
are droughts and periods of low flow, nonpoint source run-off from
adjacent land surfaces (for example, excessive amounts of nutrients,
pesticides, and sediment), and random spills or unregulated discharge
events. Run-off or discharges could be particularly harmful during
drought conditions when flows are depressed and pollutants are more
concentrated. Adequate water quality is essential for normal behavior,
growth, and viability during all life stages of the laurel dace.
Adequate water quantity and flow and good to optimal water quality are
essential for normal behavior, growth, and viability during all life
stages. Culverts, pipes, and bridge or road maintenance sites within
the watersheds serve as dispersal barriers and have altered stream
flows from natural conditions.
Other nonpoint source pollutants that affect the laurel dace
include domestic sewage (through septic tank leakage or straight pipe
discharges); agricultural pollutants such as fertilizers, pesticides,
herbicides, and animal waste. There are no active coal mines within the
range of the laurel dace; however, coal mining represents a potential
threat to the species in the foreseeable future. Coal mining represents
a major source of nonpoint source pollutants because it has the
potential to contribute high concentrations of dissolved metals and
other solids that lower stream pH or lead to elevated levels of stream
conductivity (Pond 2004, pp. 6-7, 38-41; Mattingly et al. 2005, p. 59).
The direct effect of elevated stream conductivity on fishes, including
the laurel dace, is poorly understood, but some species, such as
blackside dace, have shown declines in abundance over time as
conductivity increased in streams affected by mining (Hartowicz 2008,
pers. comm.).
Water temperature may also be a limiting factor in the distribution
of this species (Skelton 1997, pp. 17, 19). Canopy cover of laurel dace
streams often consists of eastern hemlock (Tsuga canadensis), mixed
hardwoods, pines (Pinus sp.), and mountain laurel (Kalmia latifolia).
The hemlock woolly adelgid (Adelges tsugae) is a nonnative insect that
infests hemlocks, causing damage or death to trees. The woolly adelgid
was recently found in Hamilton County, Tennessee, and could impact
eastern hemlock in floodplains and riparian buffers along laurel dace
streams in the future (Simmons 2008, pers. comm.). Riparian buffers
filter sediment and nutrients from overland runoff, allow water to soak
into the ground, protect stream banks and lakeshores, and provide shade
for streams. Because eastern hemlock is primarily found in riparian
areas, the loss of this species adjacent to laurel dace streams would
be detrimental to fish habitat.
Therefore, based on the information above, we identify aquatic
macroinvertebrate prey items; cool, clean, flowing water; shallow
depths; permanent surface flows, as measured during average rainfall
years; and adequate water quality with substrates that are relatively
silt-free to be physical or biological features for the laurel dace.
Cover or Shelter

Cumberland Darter

Cumberland darters depend on specific habitats and bottom
substrates for normal life processes such as spawning, rearing,
resting, and foraging. As described above, the species' preferred
habitats (shallow pools and runs) are dominated by sand or sand-covered
bedrock with patches of gravel or debris (Thomas 2007, p. 4).
Individuals were observed by O'Bara (1991, p. 10) and Thomas (2007, p.
4) in gently flowing runs or pools at depths ranging from 20 to 76 cm
(average 36.2 cm) (3.9 to 30 in, average 14.3 in). Most of these
habitats contain isolated boulders and large cobble that the species
likely uses as cover. According to O'Bara (1991, p. 11), areas used by
the Cumberland darter for cover and shelter are very susceptible to the
effects of siltation, and the presence of relatively silt-free
substrates is the major limiting factor for both the species' continued
existence and its ability to colonize new habitats. Relatively silt-
free is defined for the purpose of this rule as silt or fine sand--
within interstitial spaces of substrates in amounts low enough to have
minimal impact to the species.
Therefore, based on the information above, we identify stable,
shallow pools and runs with relatively silt-free sand, sand-covered
bedrock substrates, and isolated boulders and large cobble substrates
to be a physical or biological feature for the Cumberland darter.

Rush Darter

Rush darters depend on specific stream substrates and stream
margins consisting of aquatic vegetation for normal and robust life
processes such as spawning, rearing, protection of young, protection of
adults when threatened, foraging, and feeding. Preferred substrates are
dominated by fine gravel, with lesser amounts of sand, fine silt,
coarse gravel, cobble, and bedrock (Blanco and Mayden 1999, pp. 24-26;
Drennen 2009, pers. obs.). In addition to these preferred substrates,
rush darters generally prefer aquatic emergent

[[Page 63370]]

vegetation such as watercress (Nasturtium officinale), parrots feather
(Myriophyllum sp.), rushes (Juncus spp.), and sedges (Carex spp.). This
emergent vegetation is utilized by the rush darter, especially in the
quiet water along stream margins and in ephemeral pools and tributaries
(Boschung and Mayden 2004, p. 552; Stiles 2011, pers. comm.).
Excessive siltation of gravel substrates removes foraging and
feeding sites for the rush darter (Sylte and Fischenich 2002, pp. 1-
25), and eliminates conditions necessary for some aquatic plant species
to flourish. Similarly, excessive nutrients promote dense filamentous
algae growth on the substrate and within the water column (Drennen
2007, pers. obs.; Stiles 2011, pers. comm.), which may restrict rush
darter habitat for foraging and spawning (Stiles 2011, pers. comm.).
Stormwater flows may result in scouring and erosion of important
cover and shelter sites for the rush darter. Conversely, drought
conditions render the darter populations vulnerable to higher water
temperatures and restricted habitat, especially during the breeding
season when they concentrate in wetland pools and shallow pools of
headwater streams (Fluker et al 2007, p. 10).
Therefore, based on the information above, we identify quiet water
along stream margins and in shallow ephemeral pools and headwater
tributaries; aquatic emergent vegetation; a combination of silt, sand,
and gravel substrates; and seasonal stream flows sufficient to provide
connectivity and to remove excessive sediment covering the vegetation
and stream bottom substrates to be a physical or biological feature for
the rush darter.

Yellowcheek Darter

Summertime habitat selected by the yellowcheek darter includes
high-velocity (greater than 0.4 meters per second or 1.3 feet per
second) water over 8 to 128 millimeters (mm) (0.3 to 5.0 in) gravel and
cobble substrate at depths of 11 to 30 cm (4.3 to 11.8 in) (Brophy and
Stoeckel 2006, p. 42), which lends evidence to the suggestion by other
researchers that it is a ``riffle-obligate'' species and is unlikely to
occupy pool or run habitats when riffles are available. Preferred water
depths for yellowcheek darters ranged between 11 and 30 cm (4.3 and
11.8 in), but yellowcheek darters have been found in shallower water,
when greater depths with suitable velocities were scarce. Gravel and
cobble from 8 to 128 mm (0.3 to 5.0 in) median diameter appears to be
the important substrate type for yellowcheek darter (Brophy and
Stoeckel 2006, p. 42). Larger boulder substrates are important during
spring spawning periods (McDaniel 1984, p. 82). Siltation (excess
sediments suspended or deposited in a stream) contributes to turbidity
of the water and has been shown to suffocate aquatic insects, smother
fish eggs, clog fish gills, and may fill in essential interstitial
spaces (spaces between stream substrates) used by aquatic organisms for
spawning and foraging; therefore, excessive siltation negatively
impacts fish growth, physiology, behavior, reproduction, and survival.
In general, the species occupies areas that are relatively silt-free.
Relatively silt-free is defined for the purpose of this rule as silt or
fine sand within interstitial spaces of substrates in amounts low
enough to have minimal impact to the species.
Therefore, based on the information above, we identify high-quality
riffle substrates that are relatively silt-free and contain a mixture
of gravel, cobble, and boulder substrates to be a physical or
biological feature for the yellowcheek darter.

Chucky Madtom

While nothing is known specifically about chucky madtom habitat
preferences, available information for other similar members of the
Noturus group is known. Both smoky and elegant madtoms (N. elegans)
were found to nest under flat rocks (slab-rock boulders) at or near the
head of riffles (Burr and Dimmick 1981, p. 116; Dinkins and Shute 1996,
p. 56). Smoky madtoms have also been observed using shallow pools and
to select rocks of larger dimension for nesting than were used for
shelter during other times of year (Dinkins and Shute 1996, p. 56).
Siltation (excess sediments suspended or deposited in a stream)
contributes to turbidity of the water and has been shown to smother
fish eggs, clog fish gills, and may fill in essential interstitial
spaces (spaces between stream substrates) used by aquatic organisms for
spawning and foraging; therefore, excessive siltation negatively
impacts fish growth, physiology, behavior, reproduction, and survival.
Dinkins and Shute (1996, p. 50) found smoky madtoms underneath
slab-rock boulders in swift to moderate current during May to early
November. Habitat use shifted to shallow pools over the course of a 1-
week period, coinciding with a drop in water temperature to 7 or 8
[deg]C (45 to 46 [deg]F), and persisted from early November to May.
Eisenhour et al. (1996, p. 43) collected saddled madtoms in gravel,
cobble, and slab-rock boulder substrates in riffle habitats with depths
ranging from 0.1 to 0.3 m (0.33 to 0.98 ft). Based on their limited
number of observations, Eisenhour et al. (1996, p. 43) hypothesized
that saddled madtoms occupy riffles and runs in the daylight hours and
then move to pools at night and during crepuscular hours (dawn and
dusk) to feed.
Therefore, based on the information above, we identify gently
flowing runs and pools with relatively silt-free flat gravel, cobble,
and slab-rock boulder substrates to be a physical or biological feature
for the chucky madtom.

Laurel Dace

Laurel dace have been most often collected from pools or slow runs
from undercut banks or beneath slab-rock boulders, typically in first-
or second- order, clear, cool (maximum recorded temperature 26 [deg]C
or 78.8 [deg]F) streams. Substrates in streams where laurel dace are
found typically consist of a mixture of cobble, rubble, and boulder and
the streams tend to have a dense riparian zone consisting largely of
mountain laurel (Skelton 2001, pp. 125-126). Siltation (excess
sediments suspended or deposited in a stream) contributes to turbidity
of the water and has been shown to smother fish eggs, clog fish gills,
and may fill in essential interstitial spaces (spaces between stream
substrates) used by aquatic organisms for spawning and foraging;
therefore, excessive siltation negatively impacts fish growth,
physiology, behavior, reproduction, and survival.
Water temperature may be a limiting factor in the distribution of
this species (Skelton 1997, pp. 17, 19). Canopy cover of laurel dace
streams often consists of eastern hemlock (Tsuga canadensis), mixed
hardwoods, pines (Pinus spp.), and mountain laurel (Kalmia latifolia).
Riparian buffers filter sediment and nutrients from overland runoff,
allow water to soak into the ground, protect stream banks and
lakeshores, and provide shade for streams. The hemlock woolly adelgid
is a nonnative insect that infests hemlocks, causing damage or death to
trees. The woolly adelgid was recently found in Hamilton County,
Tennessee, and could impact eastern hemlock in floodplains and riparian
buffers along laurel dace streams in the future (Simmons 2008, pers.
comm.). Because eastern hemlock is primarily found in riparian areas,
the loss of this species adjacent to laurel dace streams would be
detrimental to fish habitat.
Habitat destruction and modification also stem from existing or
proposed infrastructure development in association with silvicultural
activities. The presence of culverts at one or more

[[Page 63371]]

road crossings in most of the streams inhabited by laurel dace may
disrupt upstream dispersal within those systems (Chance 2008, pers.
obs.). Such dispersal barriers could prevent re-establishment of laurel
dace populations in reaches where they suffer localized extinctions due
to natural or human-caused events.
Therefore, based on the information above, we identify stream
connectivity, gently flowing runs and pools with relatively silt-free
cobble and slab-rock boulder substrates with undercut banks, and canopy
cover to be a physical or biological feature for the laurel dace.
Sites for Breeding, Reproduction, or Rearing (or Development) of
Offspring

Cumberland Darter

Little is known regarding the reproductive habits of the Cumberland
darter. Thomas (2007, p. 4) reported the collection of male Cumberland
darters in breeding condition in April and May, with water temperatures
ranging from 15 to 18 [deg]C (59 to 64 [deg]F). Extensive searches by
Thomas (2007, p. 4) produced no evidence of nests or eggs at these
sites. Reproductive habits of its closest relative, the Johnny darter,
have been well studied by Winn (1958a, pp. 163-183; 1958b, pp. 205-
207), Speare (1965, pp. 308-314), and Bart and Page (1991, pp. 80-86).
Spawning occurs from April to June, with males migrating to spawning
areas prior to females and establishing territories at selected
spawning sites. Males establish a nest under a submerged object
(boulder or woody debris) by using fin movements to remove silt and
fine debris. Females enter the nests, the spawning pair inverts, and
females deposit between 40 and 200 adhesive eggs on the underside of
the nest object. Males care for the nest by periodically fanning the
area to remove silt. The eggs hatch in about 6 to 16 days, depending on
water temperature. Hatchlings are about 5 mm (0.2 in) and reach 29 to
38 mm (1.1 to 1.5 in) at age 1. Given these specialized reproductive
behaviors, it is apparent that the Cumberland darter requires second-
to fourth-order streams containing gently flowing run and pool habitats
with sand and bedrock substrates, boulders, woody debris, or other
cover and that are relatively silt-free. It is essential to maintain
the connectivity of these sites, to accommodate breeding, growth, and
other normal behaviors of the Cumberland darter and to promote gene
flow within the species.
Therefore, based on the information above, we identify stable,
second- to fourth-order streams containing gently flowing run and pool
habitats with sand and bedrock substrates, boulders, large cobble,
woody debris, or other cover and that are relatively silt-free and
stream connectivity to be a physical or biological feature for the
Cumberland darter.

Rush Darter

Rush darters depend on bottom substrates dominated by sand, fine
silt, fine gravel and some coarse gravel, and that have significant
amounts of emergent aquatic vegetation (Drennen 2009, pers. obs.).
In July 2008, rush darter young-of-the-year were collected within
areas of very little water in the headwaters of an unnamed tributary in
Jefferson County (Kuhajda 2008, pers. comm.), and in January 2008, the
same tributary was dry. In previous years, this area was a spawning and
nursery site for rush darters (Kuhajda 2008, pers. comm.). During May
and June, rush darters spawned at this site even though the area had
been dewatered occasionally in the summer, fall, and winter (Kuhajda
2008, pers. comm.). Adults may be migrating upstream from watered areas
or juveniles and adults may be moving downstream from the spring-fed
wetland that constitutes the headwaters of the unnamed tributary
(Kuhajda 2008, pers. comm.).
Therefore, based on the information above, we identify permanent
and ephemeral shallow streams with quiet water along stream margins and
in shallow ephemeral pools and headwater tributaries, along with
seasonal stream flows sufficient to provide connectivity and promote
the emergent aquatic vegetation necessary for spawning and rearing of
young, to be a physical or biological feature for the rush darter.

Yellowcheek Darter

Yellowcheek darter spawning occurs from late May through June in
the swift to moderately swift portions of riffles, often around or
under the largest rocks (McDaniel 1984, p. 82), although brooding
females have been found at the head of riffles in smaller gravel
substrate (Wine et al. 2000, p. 3). During non-spawning months, there
is a general movement to portions of the riffle with smaller substrate,
such as gravel or cobble, and less turbulence (Robison and Harp 1981,
p. 3). Weston and Johnson (2005, p. 24) observed that the yellowcheek
darter moved very little during a 1-year migration study, with 19 of 22
recaptured darters found within 9 m (29.5 ft) of their original capture
position after periods of several months.
A number of life-history characteristics, including courtship
patterns, specific spawning behaviors, egg deposition sites, number of
eggs per nest, degree of nest protection by males, and degree of
territoriality are unknown at this time; however, researchers suggest
that yellowcheek darters deposit eggs on the undersides of larger
rubble in swift water (McDaniel 1984, p. 82). Wine and Blumenshine
(2002, p. 10) noted that during laboratory spawning, yellowcheek darter
females bury themselves in fine gravel or sand substrates (often behind
large, fist-sized cobble) with only their heads and caudal fin exposed.
A yellowcheek darter male will then position himself upstream of the
buried female and fertilize her eggs. Clutch size and nest defense
behavior were not observed. Given these specialized reproductive
behaviors, the importance of riffle habitats that are characterized by
good water quality and sufficient substrates that are relatively silt-
free is apparent.
Therefore, based on the information above, we identify swift to
moderately swift riffles with gravel, cobble, and boulder substrates
that are characterized by good water quality and are relatively silt-
free to be a physical or biological feature for the yellowcheek darter.

Chucky Madtom

Little is known regarding the reproductive habits of the chucky
madtom; however, both smoky and elegant madtoms were found to nest
under flat slab-rock boulders at or near the head of riffles (Burr and
Dimmick 1981, p. 116; Dinkins and Shute 1996, p. 56). Shallow pools
were also used by the smoky madtom. Smoky madtoms selected larger rocks
for nesting than were used for shelter during other times of year
(Dinkins and Shute 1996, p. 56). A single male madtom guards the nest
in the cases of smoky, elegant, Ozark (N. albater), and least madtoms
(Mayden et al. 1980, p. 337; Burr and Dimmick 1981, p. 116; Mayden and
Walsh 1984, p. 357; Dinkins and Shute 1996, p. 56). While guarding the
nest, many were found to have empty stomachs suggesting that they do
not feed during nest guarding, which can last as long as 3 weeks.
Siltation (excess sediments suspended or deposited in a stream)
contributes to turbidity of the water and has been shown to smother
fish eggs, clog fish gills, and may fill in essential interstitial
spaces (spaces between stream substrates) used by aquatic organisms for
spawning and foraging; therefore, excessive siltation negatively
impacts fish growth, physiology, behavior, reproduction, and survival.
Therefore, based on the information above, we identify streams
containing

[[Page 63372]]

gently flowing run and pool habitats with flat or slab-rock boulder
substrates that are relatively silt-free to be a physical or biological
feature for the chucky madtom.

Laurel Dace

Little is known regarding the reproductive habits of the laurel
dace. Skelton (2001, p. 126) reported having collected nuptial
individuals from late March until mid-June, although Call (2004, pers.
obs.) observed males in waning nuptial color during surveys on July 22,
2004. Laurel dace may be a spawning nest associate with nest-building
minnow species, as has been documented in blackside dace (Starnes and
Starnes 1981, p. 366). Soddy Creek is the only location in which
Skelton (2001, p. 126) collected a nest-building minnow with laurel
dace. The nests used by blackside dace had moderate flow and consisted
of gravel substrate at depths of 20 cm (7.9 in) (Starnes and Starnes
1981, p. 366). These nests were noted to be approximately 0.7 m (2.3
ft) from undercut banks (Starnes and Starnes 1981, p. 366).
Siltation (excess sediments suspended or deposited in a stream)
contributes to turbidity of the water and has been shown to smother
fish eggs, clog fish gills, and may fill in essential interstitial
spaces (spaces between stream substrates) used by aquatic organisms for
spawning and foraging; therefore, excessive siltation negatively
impacts fish growth, physiology, behavior, reproduction, and survival.
Therefore, based on the information above, we identify headwater
streams containing moderately flowing run and pool habitats with gravel
substrates, containing undercut banks, and that are relatively silt-
free to be a physical or biological feature for the laurel dace.

Primary Constituent Elements

Under the Act and its implementing regulations, we are required to
identify the physical and biological features essential to the
conservation of the Cumberland darter, rush darter, yellowcheek darter,
chucky madtom, and laurel dace 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.
Based on our current knowledge of the physical or biological
features and habitat characteristics required to sustain the five
species' life history processes, we determine that the primary
constituent elements are:

Cumberland darter

(1) Primary Constituent Element 1--Shallow pools and gently flowing
runs of geomorphically stable second- to fourth-order streams with
connectivity between spawning, foraging, and resting sites to promote
gene flow throughout the species' range.
(2) Primary Constituent Element 2--Stable bottom substrates
composed of relatively silt-free sand and sand-covered bedrock,
boulders, large cobble, woody debris, or other cover.
(3) Primary Constituent Element 3--An instream flow regime
(magnitude, frequency, duration, and seasonality of discharge over
time) sufficient to provide permanent surface flows, as measured during
years with average rainfall, and maintain benthic habitats utilized by
the species.
(4) Primary Constituent Element 4--Adequate water quality
characterized by moderate stream temperatures, acceptable dissolved
oxygen concentrations, moderate pH, and low levels of pollutants.
Adequate water quality is defined for the purpose of this rule as the
quality necessary for normal behavior, growth, and viability of all
life stages of the Cumberland darter.
(5) Primary Constituent Element 5--Prey base of aquatic
macroinvertebrates, including midge larvae, mayfly nymphs, caddisfly
larvae, and microcrustaceans.

Rush Darter

(1) Primary Constituent Element 1--Springs and spring-fed reaches
of geomorphically stable, relatively low-gradient, headwater streams
with appropriate habitat (bottom substrates) to maintain essential
riffles, runs, and pools; emergent vegetation in shallow water and on
the margins of small streams and spring runs; cool, clean, flowing
water; and connectivity between spawning, foraging, and resting sites
to promote gene flow throughout the species' range.
(2) Primary Constituent Element 2--Stable bottom substrates
consisting of a combination of sand with silt, muck, gravel, or bedrock
and adequate emergent vegetation in shallow water on the margins of
small permanent and ephemeral streams and spring runs.
(3) Primary Constituent Element 3--Instream flow with moderate
velocity and a continuous daily discharge that allows for a
longitudinal connectivity regime inclusive of both surface runoff and
groundwater sources (springs and seepages) and exclusive of flushing
flows caused by stormwater runoff.
(4) Primary Constituent Element 4--Water quality with temperature
not exceeding 26.7 [deg]C (80 [deg]F), dissolved oxygen 6.0 milligrams
or greater per liter, turbidity of an average monthly reading of 10
Nephelometric Turbidity Units (NTU; units used to measure sediment
discharge) and 15mg/L Total Suspended Solids (TSS; measured as mg/L of
sediment in water) or less; and a specific conductance (ability of
water to conduct an electric current, based on dissolved solids in the
water) of no greater than 225 micro Siemens per centimeter at 26.7
[deg]C (80 [deg]F).
(5) Primary Constituent Element 5--Prey base of aquatic
macroinvertebrates, including midge larvae, mayfly nymphs, blackfly
larvae, beetles, and microcrustaceans.

Yellowcheek Darter

(1) Primary Constituent Element 1--Geomorphically stable second- to
fifth-order streams with riffle habitats; and connectivity between
spawning, foraging, and resting sites to promote gene flow within the
species' range where possible.
(2) Primary Constituent Element 2--Stable bottom composed of
relatively silt-free, moderate to strong velocity riffles with gravel,
cobble, and boulder substrates.
(3) Primary Constituent Element 3--An instream flow regime
(magnitude, frequency, duration, and seasonality of discharge over
time) sufficient to provide permanent surface flows, as measured during
years with average rainfall, and maintain benthic habitats utilized by
the species.
(4) Primary Constituent Element 4--Adequate water quality
characterized by moderate stream temperatures, acceptable dissolved
oxygen concentrations, moderate pH, and low levels of pollutants.
Adequate water quality is defined for the purpose of this rule as the
quality necessary for normal behavior, growth, and viability of all
life stages of the yellowcheek darter.
(5) Primary Constituent Element 5--Prey base of aquatic
macroinvertebrates, including blackfly larvae, stonefly larvae, mayfly
nymphs, and caddisfly larvae.

Chucky Madtom

(1) Primary Constituent Element 1--Gently flowing run and pool
reaches of geomorphically stable streams with cool, clean, flowing
water; shallow depths; and connectivity between spawning, foraging, and
resting sites to promote gene flow throughout the species' range.
(2) Primary Constituent Element 2--Stable bottom substrates
composed of

[[Page 63373]]

relatively silt-free, flat gravel, cobble, and slab-rock boulders.
(3) Primary Constituent Element 3--An instream flow regime
(magnitude, frequency, duration, and seasonality of discharge over
time) sufficient to provide permanent surface flows, as measured during
years with average rainfall, and maintain benthic habitats utilized by
the species.
(4) Primary Constituent Element 4--Adequate water quality
characterized by moderate stream temperatures, acceptable dissolved
oxygen concentrations, moderate pH, and low levels of pollutants.
Adequate water quality is defined for the purpose of this rule as the
quality necessary for normal behavior, growth, and viability of all
life stages of the chucky madtom.
(5) Primary Constituent Element 5--Prey base of aquatic
macroinvertebrates, including midge larvae, mayfly nymphs, caddisfly
larvae, and stonefly larvae.

Laurel Dace

(1) Primary Constituent Element 1--Pool and run habitats of
geomorphically stable first- to second-order streams with riparian
vegetation; cool, clean, flowing water; shallow depths; and
connectivity between spawning, foraging, and resting sites to promote
gene flow throughout the species' range.
(2) Primary Constituent Element 2--Stable bottom substrates
composed of relatively silt-free cobble and slab-rock boulder
substrates with undercut banks and canopy cover.
(3) Primary Constituent Element 3--An instream flow regime
(magnitude, frequency, duration, and seasonality of discharge over
time) sufficient to provide permanent surface flows, as measured during
years with average rainfall, and maintain benthic habitats utilized by
the species.
(4) Primary Constituent Element 4--Adequate water quality
characterized by moderate stream temperatures, acceptable dissolved
oxygen concentrations, moderate pH, and low levels of pollutants.
Adequate water quality is defined for the purpose of this rule as the
quality necessary for normal behavior, growth, and viability of all
life stages of the laurel dace.
(5) Primary Constituent Element 5--Prey base of aquatic
macroinvertebrates, including midge larvae, caddisfly larvae, and
stonefly larvae.
With this proposed designation of critical habitat, we intend to
identify the physical and biological features essential to the
conservation of these five 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. All units proposed to be designated as critical habitat are
currently occupied by these five species, except for Cumberland darter
Units 5 (Indian Creek) and 7 (Kilburn Fork). All occupied units for
these five species contain the primary constituent elements in the
appropriate quantity and spatial arrangement sufficient to support the
life-history needs of these species. All unoccupied units for the
Cumberland darter are considered essential to the conservation of the
species.
Special Management Considerations or Protection
When designating critical habitat, we assess whether the areas
within the geographical area occupied by the species at the time of
listing contain features that are essential to the conservation of the
species and which may require special management considerations or
protection.

Cumberland Darter

The 15 units we are proposing for designation as critical habitat
for the Cumberland darter will require some level of management to
address the current and future threats to the physical and biological
features of the species. Due to their location on the Daniel Boone
National Forest (DBNF), at least a portion of 13 of the 15 proposed
critical habitat units are being managed and protected under DBNF's
Land and Resource Management Plan (LRMP) (United States Forest Service
(USFS) 2004, pp. 1-14). The LRMP is implemented through a series of
project-level decisions based on appropriate site-specific analysis and
disclosure. It does not contain a commitment to select any specific
project; rather, it sets up a framework of desired future conditions
with goals, objectives, and standards to guide project proposals.
Projects are proposed to solve resource management problems, move the
forest environment toward desired future conditions, and supply goods
and services to the public (USFS 2004, pp. 1-14). The LRMP contains a
number of protective standards that in general are designed to avoid
and minimize potential adverse effects to the Cumberland darter and
other federally listed species; however, the DBNF will continue to
conduct project-specific section 7 consultation under the Act when
their activities may adversely affect streams supporting Cumberland
darters.
Two of the 15 proposed critical habitat units are located entirely
on private property and are not presently under the special management
or protection provided by a legally operative plan or agreement for the
conservation of the species. Activities in or adjacent to these areas
of proposed critical habitat may affect one or more of the physical and
biological features essential to the Cumberland darter. For example,
features in this proposed critical habitat designation may require
special management due to threats posed by resource extraction (coal
surface mining, silviculture, natural gas and oil exploration
activities), agricultural activities (livestock), lack of adequate
riparian buffers, construction and maintenance of State and county
roads, nonpoint source pollution arising from stormwater runoff, and
canopy loss caused by infestations of the hemlock wooly adelgid. These
threats are in addition to adverse effects of drought, floods, or other
natural phenomena. Other activities that may affect physical and
biological features in the proposed critical habitat units include
those listed in the Effects of Critical Habitat Designation section
below.
Management activities that could ameliorate these threats include,
but are not limited to: Use of BMPs designed to reduce sedimentation,
erosion, and bank side destruction; moderation of surface and ground
water withdrawals to maintain natural flow regimes; increase of
stormwater management and reduction of stormwater flows into the
systems; preservation of headwater springs and streams; regulation of
off-road vehicle use; and reduction of other watershed and floodplain
disturbances that release sediments, pollutants, or nutrients into the
water.
In summary, we find that the areas we are proposing as critical
habitat for the Cumberland darter contain the physical or biological
features for the species, and that these features may require special
management considerations or protection. Special management
consideration or protection may be required to eliminate, or to reduce
to negligible levels, the threats affecting the physical or biological
features of each unit. Additional discussion of threats facing
individual units is provided in the individual unit descriptions below.

Rush Darter

The eight units we are proposing for designation as critical
habitat will require some level of management to address the current
and future threats to the physical and biological features of the rush
darter. None of the proposed critical habitat units are presently under
special management or protection provided by a legally operative plan
or agreement for the conservation of the

[[Page 63374]]

rush darter. However, 4.7 km (2.9 mi) of the Turkey Creek watershed
(Jefferson County) is designated critical habitat for the vermilion
darter (Etheostoma chermocki) (75 FR 75913, December 7, 2010) which
includes a portion of proposed rush darter unit 2. Various activities
in or adjacent to the critical habitat units described in this proposed
rule may affect one or more of the physical and biological features.
For example, features in the proposed 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; 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 proposed critical habitat units include
those listed in the Effects of Critical Habitat Designation section
below.
Management activities that could ameliorate these threats include,
but are not limited to: Use of BMPs designed to reduce sedimentation,
erosion, and bank side destruction; moderation of surface and ground
water withdrawals to maintain natural flow regimes; increase of
stormwater management and reduction of stormwater flows into the
systems; preservation of headwater springs, spring runs, and ephemeral
rivulets; regulation of off-road vehicle use; and reduction of other
watershed and floodplain disturbances that release sediments,
pollutants, or nutrients into the water.
In summary, we find that the areas we are proposing as critical
habitat for the rush darter contain the physical or biological features
for the species, and that these features may require special management
considerations or protection. Special management consideration or
protection may be required to eliminate, or to reduce to negligible
levels, the threats affecting the physical or biological features of
each unit. Additional discussion of threats facing individual units is
provided in the individual unit descriptions below.

Yellowcheek Darter

The four units we are proposing for designation as critical habitat
for the yellowcheek darter will require some level of management to
address the current and future threats to the physical and biological
features of the species. The yellowcheek darter is currently covered
under a Candidate Conservation Agreement with Assurances (CCAA) in the
upper Little Red River watershed in Arkansas, along with the endangered
speckled pocketbook mussel, which does not have critical habitat
designated. Of the 205,761 hectares (ha) (508,446 acres (ac)) within
the upper Little Red River watershed and known to support the
yellowcheek darter, approximately 35,208 ha (87,000 ac) are owned by
private parties (Service 2007, p. 4). To date, multiple landowners have
enrolled 4,672 ha (11,544 ac) in the program since its inception in
mid-2007 and 10 more landowners with approximately 20,234 ha (50,000
ac) have pending draft agreements. Lands enrolled in these conservation
programs include areas within the proposed critical habitat as well as
riparian and upland areas that are outside of the proposed critical
habitat boundary. Various activities in or adjacent to proposed
critical habitat may affect one or more of the physical and biological
features. For example, features in this proposed critical habitat
designation may require special management due to threats posed by
natural gas extraction; timber harvest; gravel mining; unrestricted
cattle access into streams; water diversion for agriculture, industry,
municipalities, or other purposes; lack of adequate riparian buffers;
construction and maintenance of county and State roads; and nonpoint
source pollution arising from development and a broad array of human
activities. These threats are in addition to random effects of drought,
floods, or other natural phenomena. Other activities that may affect
physical and biological features in the proposed critical habitat units
include those listed in the Effects of Critical Habitat Designation
section below.
Management activities that could ameliorate these threats include,
but are not limited to: Use of BMPs designed to reduce sedimentation,
erosion, and bank side destruction; moderation of surface and ground
water withdrawals to maintain natural flow regimes; increase of
stormwater management and reduction of stormwater flows into the
systems; preservation of headwater springs and streams; regulation of
off-road vehicle use; and reduction of other watershed and floodplain
disturbances that release sediments, pollutants, or nutrients into the
water.
In summary, we find that the areas we are proposing as critical
habitat for the yellowcheek darter contain the physical or biological
features for the species, and that these features may require special
management considerations or protection. Special management
consideration or protection may be required to eliminate, or to reduce
to negligible levels, the threats affecting the physical or biological
features of each unit. Additional discussion of threats facing
individual units is provided in the individual unit descriptions below.

Chucky Madtom

The single unit we are proposing for designation of critical
habitat for the chucky madtom will require some level of management to
address the current and future threats to the physical and biological
features of the species. The critical habitat unit is located on
private property and is not presently under the special management or
protection provided by a legally operative plan or agreement for the
conservation of the species. Various activities in or adjacent to the
critical habitat unit described in this proposed rule may affect one or
more of the physical and biological features. For example, features in
this proposed critical habitat designation may require special
management due to threats posed by agricultural activities (e.g., row
crops and livestock), lack of adequate riparian buffers, construction
and maintenance of State and county roads, gravel mining, and nonpoint
source pollution arising from a wide variety of human activities. These
threats are in addition to random effects of drought, floods, or other
natural phenomena. Other activities that may affect physical and
biological features in the proposed critical habitat unit include those
listed in the Effects of Critical Habitat Designation section below.
Management activities that could ameliorate these threats include,
but are not limited to: Use of BMPs designed to reduce sedimentation,
erosion, and bank side destruction; moderation of surface and ground
water withdrawals to maintain natural flow regimes; increase of
stormwater management and reduction of stormwater flows into the
systems; preservation of headwater springs and streams; regulation of
off-road vehicle use; and reduction of other watershed and floodplain
disturbances that release sediments, pollutants, or nutrients into the
water.

[[Page 63375]]

In summary, we find that the area we are proposing as critical
habitat for the chucky madtom contains the physical or biological
features for the species, and that these features may require special
management considerations or protection. Special management
consideration or protection may be required to eliminate, or to reduce
to negligible levels, the threats affecting the physical or biological
features of the unit. Additional discussion of threats facing the unit
is provided in the unit description below.

Laurel Dace

The six units we are proposing for designation as critical habitat
will require some level of management to address the current and future
threats to the physical and biological features of the laurel dace.
These units are located on private property and are not presently under
the special management or protection provided by a legally operative
plan or agreement for the conservation of the species. Various
activities in or adjacent to these areas of proposed critical habitat
may affect one or more of the physical and biological features. For
example, features in this proposed critical habitat designation may
require special management due to threats posed by resource extraction
(coal and gravel mining, silviculture, natural gas and oil exploration
activities), agricultural activities (row crops and livestock), lack of
adequate riparian buffers, construction and maintenance of State and
county roads, nonpoint source pollution arising from a wide variety of
human activities, and canopy loss caused by infestations of the hemlock
wooly adelgid. These threats are in addition to random effects of
drought, floods, or other natural phenomena. Other activities that may
affect physical and biological features in the proposed critical
habitat units include those listed in the Effects of Critical Habitat
Designation section below.
Management activities that could ameliorate these threats include,
but are not limited to: Use of BMPs designed to reduce sedimentation,
erosion, and bank side destruction; moderation of surface and ground
water withdrawals to maintain natural flow regimes; increase of
stormwater management and reduction of stormwater flows into the
systems; preservation of headwater springs and streams; regulation of
off-road vehicle use; and reduction of other watershed and floodplain
disturbances that release sediments, pollutants, or nutrients into the
water.
In summary, we find that the areas we are proposing as critical
habitat for the laurel dace contain the physical or biological features
for the species, and that these features may require special management
considerations or protection. Special management consideration or
protection may be required to eliminate, or to reduce to negligible
levels, the threats affecting the physical or biological features of
each unit. Additional discussion of threats facing individual units is
provided in the individual unit descriptions below.
Criteria Used To Identify Proposed Critical Habitat
As required by section 4(b)(1)(A) of the Act, we use the best
scientific and commercial data available to designate critical habitat.
We review available information pertaining to the habitat requirements
of the species. In accordance with the Act and its implementing
regulation at 50 CFR 424.12(e), we consider 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.
When determining proposed critical habitat boundaries, we made
every effort to avoid including developed areas such as lands covered
by buildings, pavement, and other structures because such lands usually
lack physical and biological features for endangered species. The scale
of the maps we prepared under the parameters for publication within the
Code of Federal Regulations may not reflect the exclusion of such
developed lands. Any such lands inadvertently left inside critical
habitat boundaries shown on the maps of this proposed rule have been
excluded by text in the proposed rule and are not proposed for
designation as critical habitat. Therefore, if the critical habitat is
finalized as proposed, a Federal action involving these lands would not
trigger section 7 consultation with respect to critical habitat and the
requirement of no adverse modification unless the specific action would
affect the physical and biological features in the adjacent critical
habitat. The designation of critical habitat does not imply that lands
outside of critical habitat do not play an important role in the
conservation of the species.

Cumberland Darter

We are proposing to designate critical habitat in areas within the
geographical area occupied by the Cumberland darter at the time of
listing in 2011. We also are proposing to designate specific areas
outside the geographical area occupied by the species at the time of
listing because we have determined that: (1) Such areas are essential
for the conservation of the species; and (2) designation of only
occupied habitats is not sufficient to conserve this species.
Unoccupied habitats provide additional habitat for population expansion
and promote greater genetic diversity, which will decrease the risk of
extinction for the species.
We used information from surveys and reports prepared by the
Kentucky Department of Fish and Wildlife Resources, Kentucky Division
of Water, and Service records to identify specific locations occupied
by the Cumberland darter. Delineations were based on the best available
scientific information indicating portions of streams containing
necessary physical and biological features to support the Cumberland
darter. We set the upstream and downstream limits of each critical
habitat unit by identifying landmarks (bridges, confluences, road
crossings, dams) above and below the upper and lowermost reported
locations of the Cumberland darter in each stream reach to ensure
incorporation of all potential sites of occurrence.
We used ARCGIS to delineate the specific stream segments occupied
by the Cumberland darter at the time of listing, and those locations
outside the geographical area occupied by the species at the time it
was listed that were determined to be essential for the conservation of
the species. Areas proposed for critical habitat for the Cumberland
darter include only stream channels within the ordinary high water line
and do not contain any developed areas or structures. The designation
of critical habitat does not imply that lands outside of critical
habitat do not play an important role in the conservation of the
Cumberland darter.
We are proposing to designate as critical habitat all stream
reaches in occupied habitat. We have defined occupied habitat as those
stream reaches occupied at the time of listing and still known to be
occupied by the Cumberland darter. These stream reaches comprise the
entire known range of the species. As discussed above, currently
occupied habitat for the Cumberland darter is limited to 13 streams in
McCreary and Whitley Counties, Kentucky, and Campbell and Scott
Counties, Tennessee. All currently occupied areas contain the physical
and biological features of the species.
To identify essential areas outside of the geographical area
occupied at the time of listing, we focused on identifying areas
historically occupied (currently unoccupied) in the upper Cumberland
River basin in Kentucky

[[Page 63376]]

(McCreary and Whitley Counties) and Tennessee (Campbell and Scott
Counties). We then assessed the critical life-history components of the
Cumberland darter, as they relate to the physical and biological
features. We determined the appropriate length of stream segments by
identifying the upstream and downstream limits of unoccupied sections
necessary for the conservation of the Cumberland darter.
The unoccupied reaches we are proposing as critical habitat were
not occupied by the Cumberland darter at the time of listing, but they
are located within the historical range of the species. During our
evaluation of unoccupied stream reaches that could be essential for the
conservation of the Cumberland darter, we considered the availability
of potential habitat throughout the historical range that may be
essential to the survival and conservation of the species. We
eliminated from consideration streams with degraded habitat and water
quality conditions and other streams with potentially suitable habitat,
but separated from basins with occupied habitats. This screening
process produced two unoccupied stream reaches (Indian Creek and
Kilburn Fork), which we are proposing as critical habitat. These
reaches are adjacent to currently occupied areas where there is
potential for natural dispersal and reoccupation by the species.
Currently occupied habitats of the Cumberland darter are highly
localized and fragmented, with populations separated from one another
by an average distance of 30.5 stream km (19 stream mi). As explained
above, this fragmentation and isolation of populations reduces the
amount of space for rearing and reproduction, reduces the connectivity
between populations, and decreases genetic diversity. Long-term
viability is founded on the conservation of numerous local populations
that can move freely between habitats and exchange genetic information.
These reaches are essential to the Cumberland darter because they
provide additional habitat for population expansion and will promote
connectivity and genetic exchange between populations; in addition both
streams support diverse fish assemblages, including federally listed
and at-risk species.
We are proposing for designation as critical habitat streams that
we determined were occupied at the time of listing and contain
sufficient elements of physical and biological features to support
life-history processes essential for the conservation of the species,
and lands outside of the geographical area occupied at the time of
listing that we determined are essential to the conservation of the
Cumberland darter. Thirteen units are proposed for designation based on
sufficient elements of physical and biological features present to
support Cumberland darter life-history processes. We consider these
thirteen units to contain all of the identified elements of physical
and biological features and to support multiple life-history processes
for the Cumberland darter. Two additional units are proposed for
designation because we consider them to be essential to the
conservation of the species, and they may require special management
considerations or protection.

Rush Darter

We are proposing to designate critical habitat in areas within the
geographical area occupied by the rush darter at the time of listing in
2011. We are not currently proposing to designate any areas outside the
geographical area occupied by the rush darter because occupied areas
are sufficient for the conservation of the species.
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, the U.S.
Forest Service, the Natural Resources Conservation Service, and the
Service to identify the specific locations occupied by the rush darter.
Currently, occupied habitat for the species is limited and isolated.
The species is currently located within tributaries of three watersheds
in three counties in Alabama: the Turkey Creek watershed (Jefferson
County) (Drennen 2008, pers. obs.); the Clear Creek watershed (Winston
County); and the Cove Creek watershed (Etowah County). In the Turkey
Creek watershed, the species is found in four tributaries including
Beaver Creek, an unnamed tributary to Beaver Creek, the Highway 79
site, and Tapawingo or Penny Springs. In the Clear Creek watershed, it
is found in Wildcat Branch, Doe Branch, and Mill Creek. In the Cove
Creek watershed, it found in Little Cove Creek, Cove Spring and spring
run, and Bristow Creek.
Following the identification of the specific locations occupied by
the rush darter, we determined the appropriate length of stream
segments by identifying the upstream and downstream limits of these
occupied sections necessary for the conservation of the rush darter.
Because populations of rush darters are isolated due to dispersal
barriers, to set the upstream and downstream limits of each critical
habitat unit, we identified landmarks (bridges, confluences, road
crossings, and dams), and in some instances latitude and longitude
coordinates and section lines above and below the upper and lowermost
reported locations of the rush darter, in each stream reach to ensure
incorporation of all potential sites of occurrence. In addition, within
the Cove Spring run and Tapawingo or Penny Spring run, the total area
of water that is pooled, and is rush darter habitat, was calculated in
hectares (acres). The proposed critical habitat areas were then mapped
using ARCGIS to produce the critical habitat map.
We are proposing to designate as critical habitat all stream and
spring reaches in occupied habitat. We have defined occupied habitat as
those stream reaches occupied at the time of listing and still known to
be occupied by the rush darter; these stream reaches comprise the
entire known range of the rush darter. We are not proposing to
designate any areas outside the occupied range of the species because
occupied areas are sufficient for the conservation of the species, and
because the historical range of the rush darter, beyond currently
occupied areas, is unknown and dispersal beyond the current range is
not likely due to dispersal barriers. Areas proposed for critical
habitat for the rush darter below include only stream channels within
the ordinary high water line and spring pool areas and do not contain
any developed areas or structures.
We are proposing for designation as critical habitat streams that
we have determined were occupied at the time of listing and contain
sufficient elements of physical and biological features to support
life-history processes essential to the conservation of rush darter.
Eight units are proposed for designation based on sufficient elements
of physical and biological features present to support rush darter
life-history processes. Some units contain all of the identified
elements of physical and biological features and support multiple life-
history processes. Some units contain only some elements of the
physical and biological features necessary to support the rush darter's
particular use of that habitat.

Yellowcheek Darter

We are proposing to designate critical habitat in areas within the
geographical area occupied by the yellowcheek darter at the time of
listing in 2011. We are not currently proposing to designate any areas
outside the geographical area occupied by the yellowcheek darter

[[Page 63377]]

because occupied areas are sufficient for the conservation of the
species.
We used information from surveys and reports prepared by Arkansas
State University, Arkansas Tech University, Arkansas Game and Fish
Commission, Arkansas Department of Environmental Quality, and the
Service to identify the specific locations occupied by the yellowcheek
darter. We identified those areas to propose for designation as
critical habitat, within the geographical area occupied by the species
at the time of listing, that contain the physical and biological
features of the yellowcheek darter and which may require special
management consideration or protection. All of the areas we considered
for designation are currently part of ongoing recovery initiatives for
this species and are targeted for special management considerations.
We used ARCGIS to delineate the specific stream segments occupied
by the yellowcheek darter at the time of listing, which contain the
physical and biological features essential to the species. We assessed
the critical life-history components of the yellowcheek darter, as they
relate to habitat. Delineations were based on the best available
scientific information indicating portions of streams containing
necessary physical and biological features necessary to support the
yellowcheek darter. We set the upstream and downstream limits of each
critical habitat unit by identifying landmarks (bridges, confluences,
road crossings, dams, reservoir inundation elevations) above and below
the upper and lowermost reported locations of the yellowcheek darter in
each stream reach to ensure incorporation of all potential sites of
occurrence. Areas proposed as yellowcheek darter critical habitat
include only stream channels within the ordinary high water line and do
not contain any developed areas or structures.
We are proposing for designation as critical habitat streams that
we have determined were occupied at the time of listing and contain
sufficient elements of physical and biological features to support
life-history processes essential to the conservation of the yellowcheek
darter. Four units are proposed for designation based on sufficient
elements of physical and biological features present to support
yellowcheek darter life-history processes. All units contain all of the
identified elements of physical and biological features and support
multiple life-history processes.

Chucky Madtom

We are proposing to designate critical habitat in areas within the
geographical area occupied by the chucky madtom darter at the time of
listing in 2011. We are not currently proposing to designate any areas
outside the geographical areas occupied by the chucky madtom at the
time of listing because the historical range, beyond currently occupied
areas, is not well known.
We used information from surveys and reports prepared by
Conservation Fisheries, Inc., and the Tennessee Valley Authority to
identify the specific locations occupied by the chucky madtom.
Currently, occupied habitat for the species is limited and isolated. At
the time of listing, the current range of the chucky madtom was
restricted to an approximately 3-km (1.8-mi) reach of Little Chucky
Creek in Greene County, Tennessee.
Following the identification of the specific locations occupied by
the chucky madtom, we determined the appropriate length of stream
segments by identifying the upstream and downstream limits of these
occupied sections necessary for the conservation of the species. To set
the upstream and downstream limits of the single critical habitat unit,
we identified landmarks (bridges, confluences, and road crossings)
above and below the upper and lowermost reported locations of the
chucky madtom in Little Chucky Creek to ensure incorporation of all
potential sites of occurrence. The proposed critical habitat areas were
then mapped using ARCGIS to produce the critical habitat unit map.
We are proposing to designate as critical habitat a single stream
reach in Little Chucky Creek, which is occupied habitat. This stream
reach comprises the entire known range of the chucky madtom. The
proposed unit contains one or more of the physical and biological
features in the appropriate quantity and spatial arrangement essential
to the conservation of this species and support multiple life processes
for the chucky madtom. The area proposed for critical habitat for the
chucky madtom includes only the stream channel within the ordinary high
water line and does not contain any developed areas or structures.
We are proposing for designation as critical habitat a stream that
we have determined was occupied at the time of listing and contain
sufficient elements of physical and biological features to support
life-history processes essential to the conservation of the chucky
madtom. One unit is proposed for designation based on sufficient
elements of physical and biological features present to support chucky
madtom life-history processes.

Laurel Dace

We are proposing to designate critical habitat in areas within the
geographical area occupied by the laurel dace at the time of listing in
2011. We are not currently proposing to designate any areas outside the
geographical area occupied by the laurel dace because occupied areas
are sufficient for the conservation of the species.
We used information from surveys and reports prepared by the
Tennessee Valley Authority, Tennessee Wildlife Resources Agency,
University of Tennessee, and the Service to identify the specific
locations occupied by the laurel dace. Currently, occupied habitat for
the species is limited and isolated. The species is currently located
in three independent systems: Soddy Creek, the Sale Creek system, and
the Piney River system. Following the identification of the specific
locations occupied by the laurel dace, we determined the appropriate
length of stream segments by identifying the upstream and downstream
limits of these occupied sections necessary for the conservation of the
laurel dace. Because populations of laurel dace are isolated due to
dispersal barriers, to set the upstream and downstream limits of each
critical habitat unit, we identified landmarks (bridges, confluences,
and road crossings), and in some instances latitude and longitude
coordinates and section lines above and below the upper and lowermost
reported locations of the laurel dace, in each stream reach to ensure
incorporation of all potential sites of occurrence. The proposed
critical habitat areas were then mapped using ARCGIS to produce the
critical habitat unit maps.
We are proposing to designate as critical habitat all stream
reaches in occupied habitat. We have defined occupied habitat as those
stream reaches occupied at the time of listing and still known to be
occupied by the laurel dace; these stream reaches comprise the entire
known range of the laurel dace. The six proposed units contain one or
more of the physical and biological features in the appropriate
quantity and spatial arrangement essential to the conservation of this
species and support multiple life-history processes for the laurel
dace. Areas proposed for critical habitat for the laurel dace include
only stream channels within the ordinary high water line and do not
contain any developed areas or structures.
We are proposing for designation of critical habitat streams that
we determined were occupied at the time of listing and contain
sufficient elements of physical and biological features to

[[Page 63378]]

support life-history processes essential to the conservation of the
laurel dace. Six units are proposed for designation based on sufficient
elements of physical and biological features present to support laurel
dace life-history processes. All units contain all of the identified
elements of physical and biological features and support multiple life-
history processes.

Proposed Critical Habitat Designation

Cumberland Darter

We are proposing 15 units as critical habitat for the Cumberland
darter. The critical habitat areas we describe below constitute our
current best assessment of areas that meet the definition of critical
habitat for the Cumberland darter. The 15 areas we propose as critical
habitat are as follows: (1) Bunches Creek, (2) Calf Pen Fork, (3)
Youngs Creek, (4) Barren Fork, (5) Indian Creek, (6) Cogur Fork, (7)
Kilburn Fork, (8) Laurel Fork, (9) Laurel Creek, (10) Elisha Branch,
(11) Jenneys Branch, (12) Wolf Creek, (13) Jellico Creek, (14) Rock
Creek, and (15) Capuchin Creek. Critical habitat units are either in
private ownership or public ownership (DBNF). In Kentucky and
Tennessee, landowners own the land under non-navigable streams (e.g.,
the stream channel or bottom), but the water is under State
jurisdiction. Portions of the public-to-private boundary for units 6,
7, 8, 9, and 13 were located along the mid-line of the stream channel;
lengths for these segments were divided equally between public and
private ownership. Table 1 shows the occupancy of the units and
ownership of the proposed designated areas for the Cumberland darter.

Table 1--Occupancy and Ownership of the Proposed Critical Habitat Units for the Cumberland Darter
----------------------------------------------------------------------------------------------------------------
Federal,
Private State, County, Total length
Unit Location Occupied ownership km City ownership km (miles)
(mi) km (mi)
----------------------------------------------------------------------------------------------------------------
1................... Bunches Creek........ Yes................ 0 5.3 (3.3) 5.3 (3.3)
2................... Calf Pen Fork........ Yes................ 0 2.9 (1.8) 2.9 (1.8)
3................... Youngs Creek......... Yes................ 7.4 (4.6) 0 7.4 (4.6)
4................... Barren Fork.......... Yes................ 0 6.3 (3.9) 6.3 (3.9)
5................... Indian Creek......... No................. 0 4.0 (2.5) 4.0 (2.5)
6................... Cogur Fork........... Yes................ 2.7 (1.7) 5.9 (3.7) 8.6 (5.4)
7................... Kilburn Fork......... No................. 0.9 (0.6) 3.7 (2.3) 4.6 (2.9)
8................... Laurel Fork.......... Yes................ 1.3 (0.8) 2.2 (1.4) 3.5 (2.2)
9................... Laurel Creek......... Yes................ 0.6 (0.4) 8.8 (5.5) 9.4 (5.9)
10.................. Elisha Branch........ Yes................ 0 2.1 (1.3) 2.1 (1.3)
11.................. Jenneys Branch....... Yes................ 0 3.1 (1.9) 3.1 (1.9)
12.................. Wolf Creek........... Yes................ 6.3 (3.9) 0 6.3 (3.9)
13.................. Jellico Creek........ Yes................ 8.2 (5.1) 3.3 (2.1) 11.5 (7.2)
14.................. Rock Creek........... Yes................ 3.9 (2.4) 2.2 (1.4) 6.1 (3.8)
15.................. Capuchin Creek....... Yes................ 3.4 (2.1) 0.8 (0.5) 4.2 (2.6)
-----------------------------------------------
Total........... ..................... ................... .............. .............. 85.3 (53.2)
----------------------------------------------------------------------------------------------------------------

We present brief descriptions of all units and reasons why they
meet the definition of critical habitat for the Cumberland darter. The
proposed critical habitat units include the stream channels of the
creek within the ordinary high water line. As defined in 33 CFR 329.11,
the ordinary high water mark 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 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. For each stream reach proposed as a critical habitat unit, the
upstream and downstream boundaries are described generally below. More
precise definitions are provided in the Proposed Regulation
Promulgation at the end of this proposed rule.
Unit 1: Bunches Creek, Whitley County, Kentucky
This unit is located between Kentucky Highway 90 (KY 90) and the
Cumberland River and includes 5.3 km (3.3 mi) of Bunches Creek from the
confluence of Seminary Branch and Amos Falls Branch downstream to its
confluence with the Cumberland River. Live Cumberland darters have been
captured at two sites within proposed Unit 1 (Thomas 2007, pp. 11-12),
specifically at the mouth of Bunches Creek and just below its
confluence with Calf Pen Fork. This unit was included in the
geographical area occupied by the species at the time of listing. This
unit is located entirely on federal lands within the DBNF. Land and
resource management decisions and activities within the DBNF are guided
by DBNF's LRMP (USFS 2004, pp. 1-14). The lower portion of Bunches
Creek (stream km 0 to 0.3 (mi 0 to 0.1)) flows through a designated
Kentucky Wild River corridor (KRS 146.200 to 146.360) that extends
along an approximately 25.7-km (16-mi) reach of the Cumberland River.
This Wild River corridor extends from Summer Shoals downstream to the
backwaters of Lake Cumberland (KRS 146.241). The Bunches Creek-
Cumberland River confluence is located approximately 3.0 km (1.9 mi)
upstream of Cumberland Falls. The Bunches Creek watershed is relatively
undisturbed and access is limited (no road crossings). The channel
within proposed Unit 1 is relatively stable, with excellent instream
habitat (PCE 1). There is an abundance of pool and run habitats (PCE
1), with relatively silt-free sand and bedrock substrates (PCE 2) and
adequate instream flows (PCE 3). Water quality is good to excellent
(PCE 4), as evidenced by diverse fish and macroinvertebrate communities
(PCE 5).
Within proposed Unit 1, the Cumberland darter and its habitat may
require special management considerations or protection to address
potential adverse effects associated with silviculture-related
activities, natural gas and oil exploration activities in headwater
reaches, illegal off-road

[[Page 63379]]

vehicle use and other recreational activities, nonpoint source
pollution originating in headwater reaches, and canopy loss caused by
infestations of the hemlock wooly adelgid.
Unit 2: Calf Pen Fork, Whitley County, Kentucky
This unit includes 2.9 km (1.8 mi) of Calf Pen Fork, a tributary of
Bunches Creek, from its confluence with Polly Hollow downstream to its
confluence with Bunches Creek. Live Cumberland darters have been
captured in Calf Pen Fork just above its confluence with Bunches Creek
(Thomas 2007, pp. 11-12). This unit was included in the geographical
area occupied by the species at the time of listing. This unit is
located entirely on federal lands within the DBNF. Land and resource
management decisions and activities within the DB proposed NF are
guided by DBNF's LRMP (USFS 2004, pp. 1-14). Similar to the watershed
of Unit 1, the Calf Pen Fork watershed is relatively undisturbed and
access is limited (no road crossings). Within proposed Unit 2, the
channel is relatively stable, with excellent instream habitat (PCE 1),
an abundance of run and pool habitats (PCE 1), relatively silt-free
sand and bedrock substrates (PCE 2), and adequate instream flows (PCE
3). Water quality is good to excellent (PCE 4), with diverse fish and
macroinvertebrate communities (PCE 5).
Within proposed Unit 2, the Cumberland darter and its habitat may
require special management considerations or protection to address
potential adverse effects associated with silviculture-related
activities, natural gas and oil exploration activities, illegal off-
road vehicle use and other recreational activities, nonpoint source
pollution arising from headwater reaches, and canopy loss caused by
infestations of the hemlock wooly adelgid.
Unit 3: Youngs Creek, Whitley County, Kentucky
Proposed Unit 3 includes 7.4 km (4.6 mi) of Youngs Creek from Brays
Chapel Road downstream to its confluence with the Cumberland River.
Live Cumberland darters have been captured within proposed Unit 3
(Thomas 2007, pp. 11-12), specifically at the KY 204 bridge crossing.
This unit was included in the geographical area occupied by the species
at the time of listing. This unit is located entirely on private land.
The watershed of Youngs Creek is less forested than proposed Units 1
and 2, with scattered residences and small farms. The channel is
relatively stable (PCE 1), but activities associated with agriculture,
silviculture, and residential development have contributed to a more
open riparian zone, increased bank erosion, and some siltation of
instream habitats. Despite these impacts, proposed Unit 3 continues to
provide pool and run habitats with suitable sand and bedrock substrates
for Cumberland darters to use in spawning, foraging, and other
behaviors (PCEs 1 and 2). Flow is adequate as measured during years
with average rainfall (PCE 3), water quality is adequate (PCE 4), and
macroinvertebrate prey items are present (PCE 5).
Within this unit, the Cumberland darter and its habitat may require
special management considerations or protection to address potential
adverse effects caused by resource extraction (mining, silviculture,
natural gas and oil exploration activities), agricultural activities
(livestock), lack of adequate riparian buffers, construction and
maintenance of State and county roads, illegal off-road vehicle use,
nonpoint source pollution arising from a wide variety of human
activities, and canopy loss caused by infestations of the hemlock wooly
adelgid.
Unit 4: Barren Fork, McCreary County, Kentucky
Proposed Unit 4 includes 6.3 km (3.9 mi) of Barren Fork from its
confluence with an unnamed tributary downstream to its confluence with
Indian Creek. Based on survey results by Thomas (2007, pp. 11-12) and
Stephens (2009, pp. 10-23), Barren Fork supports the most robust
population of Cumberland darters within the species' range. Over the
past 4 years, over 75 Cumberland darters have been observed within this
unit (Thomas 2007, pp. 11-12; Stephens 2009, pp. 10-23). This unit was
included in the geographical area occupied by the species at the time
of listing. This unit is located entirely on federal lands within the
DBNF. Land and resource management decisions and activities within the
DBNF are guided by DBNF's LRMP (USFS 2004, pp. 1-14). In the summer and
fall of 2008, the Barren Fork watershed was adversely affected by
several large sedimentation events originating from a county park
construction site in the headwaters of the basin. Inadequate site
planning and poor BMP implementation allowed significant quantities of
sediment to leave the construction site and enter headwater tributaries
of Barren Fork. The sediment was carried downstream into the mainstem
of Barren Fork, eventually affecting the entire reach of proposed Unit
4. Until the construction site was stabilized in 2009, important
spawning and foraging habitats for the Cumberland darter were degraded.
Despite these significant adverse effects, habitat conditions have
improved since 2008, and are now similar to those described for
proposed Units 1 and 2. The watershed is mostly forested, with
relatively stable channels (PCE 1), abundant pool and run habitats (PCE
1), relatively silt-free sand and bedrock substrates (PCE 2), adequate
flow (PCE 3), adequate water quality (PCE 4), and a diverse
macroinvertebrate community (PCE 5).
Within this unit, the Cumberland darter and its habitat may require
special management considerations or protection to address potential
adverse effects caused by resource extraction (mining, silviculture,
natural gas and oil exploration activities), lack of adequate riparian
buffers, construction and maintenance of county roads, illegal off-road
vehicle use, nonpoint source pollution arising from a wide variety of
human activities, and canopy loss caused by infestations of the hemlock
wooly adelgid.
Unit 5: Indian Creek, McCreary County, Kentucky
Proposed Unit 5 includes 4.0 km (2.5 mi) of Indian Creek from its
confluence with an unnamed tributary, downstream to its confluence with
Barren Fork. Live Cumberland darters have not been captured within
proposed Unit 5. This unit was not included in the geographical area
occupied by the species at the time of listing and it is not currently
occupied by the species.
This unit is located entirely on federal lands within the DBNF.
Land and resource management decisions and activities within the DBNF
are guided by DBNF's LRMP (USFS 2004, pp. 1-14).
This unit is located within the historical range of the species,
and is adjacent to currently occupied areas where there is potential
for natural dispersal and reoccupation by the Cumberland darter. This
unit is essential to the conservation of the Cumberland darter because
it provides additional habitat for population expansion and will
promote connectivity and genetic exchange between adjacent units to the
south (Unit 4, Barren Fork) and to the north (Unit 6, Cogur Fork).
Unit 6: Cogur Fork, McCreary County, Kentucky
Proposed Unit 6 includes 8.6 km (5.4 mi) of Cogur Fork from its
confluence with an unnamed tributary downstream to its confluence with
Indian Creek. Live Cumberland darters have been captured at several
locations within an approximately 1-km (0.62-mi) reach

[[Page 63380]]

upstream of the KY 1045 road crossing (Thomas 2010, pers. comm.). This
unit was included in the geographical area occupied by the species at
the time of listing. The majority of this unit (5.9 km (3.7 mi)) is in
public ownership (DBNF), with the remainder of the unit (2.7 km (1.7
mi)) in private ownership. Land and resource management decisions and
activities within the DBNF are guided by DBNF's LRMP (USFS 2004, pp. 1-
14).
Cumberland darters have been captured within proposed Unit 6, but
the population is considered to be small (Thomas 2010, pers. comm.).
From 2008 to present, the fauna has been bolstered through propagation
and augmentation efforts by KDFWR, Conservation Fisheries, Inc. (CFI),
and the Service (Thomas et al. 2010, p. 107). Initial brood stock were
collected in 2008, with subsequent releases of propagated darters in
2009 (60 individuals (inds)) and 2010 (335 inds). Both tagged
(propagated, 50 inds) and non-tagged (native, 4 inds) darters were
observed during recent surveys in November 2010. Individuals tagged and
released by KDFWR and CFI traveled distances ranging from 0.4 to 0.7 km
(0.2 to 0.4 mi) between their release date of September 22, 2010, and
their recapture date of November 9, 2010 (period of 48 days) (Thomas
2010, pers. comm.).
Similar to other units located entirely or predominately on the
DBNF (Units 1, 2, 4, and 5), this unit has relatively stable channels
(PCE 1), abundant pool and run habitats (PCE 1), relatively silt-free
sand and bedrock substrates (PCE 2), adequate flow (PCE 3), adequate
water quality (PCE 4), and a diverse macroinvertebrate community (PCE
5).
Within this unit, the Cumberland darter and its habitat may require
special management considerations or protection to address potential
adverse effects caused by resource extraction (mining, silviculture,
natural gas and oil exploration activities), lack of adequate riparian
buffers, construction and maintenance of county roads, illegal off-road
vehicle use, nonpoint source pollution arising from a wide variety of
human activities, and canopy loss caused by infestations of the hemlock
wooly adelgid.
Unit 7: Kilburn Fork, McCreary County, Kentucky
Proposed Unit 7 includes 4.6 km (2.9 mi) of Kilburn Fork from its
confluence with an unnamed tributary downstream to its confluence with
Laurel Fork. Live Cumberland darters have not been captured within
proposed Unit 7 over the last 15 years (Thomas 2007, pp. 11-12). This
unit was not included in the geographical area occupied by the species
at the time of listing, and it is not currently occupied by the
species.
The majority of this unit (3.7 km (2.3 mi)) is in public ownership
(DBNF), with the remainder of the unit (0.9 km (0.6 mi)) in private
ownership. Land and resource management decisions and activities within
the DBNF are guided by DBNF's LRMP (USFS 2004, pp. 1-14).
This unit is located within the historical range of the species,
and is adjacent to currently occupied areas where there is potential
for natural dispersal and reoccupation by the Cumberland darter. This
unit is essential to the conservation of the Cumberland darter because
it provides additional habitat for population expansion and will
promote connectivity and genetic exchange between adjacent units to the
south (Unit 6, Cogur Fork) and to the north (Unit 8, Laurel Fork).
Unit 8: Laurel Fork, McCreary County, Kentucky
Proposed Unit 8 includes 3.5 km (2.2 mi) of Laurel Fork from its
confluence with Tom Fork downstream to its confluence with Indian
Creek. Live Cumberland darters have been captured within proposed Unit
8 (Thomas 2007, pp. 11-12), specifically just upstream of its
confluence with Kilburn Fork. This unit was included in the
geographical area occupied by the species at the time of listing.
The majority of this unit (2.2 km (1.4 mi)) is in public ownership
(DBNF), with the remainder of the unit (1.3 km (0.8 mi)) in private
ownership. Land and resource management decisions and activities within
the DBNF are guided by DBNF's LRMP (USFS 2004, pp. 1-14).
Similar to other streams with major portions of their basins in the
DBNF, the watershed of Laurel Fork is relatively intact and access is
limited (limited roads and residential development). The channel within
proposed Unit 8 is relatively stable (PCE 1), with suitable instream
habitat to support the life-history functions of the Cumberland darter.
There is an abundance of pool and run habitats (PCE 1), with relatively
silt-free sand and bedrock substrates (PCE 2) and adequate flows (PCE
3). Water quality is good to excellent (PCE 4), as evidenced by diverse
fish and macroinvertebrate communities (PCE 5).
Within this unit, the Cumberland darter and its habitat may require
special management considerations or protection to address potential
adverse effects caused by resource extraction (mining, silviculture,
natural gas and oil exploration activities), lack of adequate riparian
buffers, construction and maintenance of county roads, illegal off-road
vehicle use, nonpoint source pollution arising from a wide variety of
human activities, and canopy loss caused by infestations of the hemlock
wooly adelgid.
Unit 9: Laurel Creek, McCreary County, Kentucky
Proposed Unit 9 includes 9.4 km (5.9 mi) of Laurel Fork Creek from
Laurel Fork Reservoir downstream to its confluence with Jenneys Branch.
Live Cumberland darters have been captured within proposed Unit 9
(Thomas 2007, pp. 11-12), specifically just upstream of its confluence
with Elisha Branch and at the KY 478 bridge crossing. This unit was
included in the geographical area occupied by the species at the time
of listing. The majority of this unit (8.8 km (5.5 mi)) is in public
ownership (DBNF), with the remainder of the unit (0.6 km (0.4 mi)) in
private ownership. Land and resource management decisions and
activities within the DBNF are guided by DBNF's LRMP (USFS 2004, pp. 1-
14).
The watershed of Laurel Creek is relatively intact, with extensive
forest cover and few roads. The channel within Proposed Unit 9 is
relatively stable (PCE 1), with suitable instream habitat to support
the life-history functions of the Cumberland darter. There is an
abundance of pool and run habitats (PCE 1), with relatively silt-free
sand and bedrock substrates (PCE 2) and adequate instream flows (PCE
3). Water quality is good to excellent (PCE 4), with a diverse
macroinvertebrate community (PCE 5).
Within this unit, the Cumberland darter and its habitat may require
special management considerations or protection to address potential
adverse effects caused by resource extraction (mining, silviculture,
natural gas and oil exploration activities), lack of adequate riparian
buffers, construction and maintenance of county roads, illegal off-road
vehicle use, nonpoint source pollution arising from a wide variety of
human activities, and canopy loss caused by infestations of the hemlock
wooly adelgid.
Unit 10: Elisha Branch, McCreary County, Kentucky
Proposed Unit 10 includes 2.1 km (1.3 mi) of Elisha Branch from its
confluence with an unnamed tributary (36.70132, -84.40843) downstream
to its confluence with Laurel Creek. Live Cumberland darters have been
captured within proposed Unit 10 (Thomas 2007, pp. 11-12), specifically
just upstream of

[[Page 63381]]

its confluence with Laurel Creek. This unit was included in the
geographical area occupied by the species at the time of listing. This
unit is located entirely on public lands within the DBNF. Land and
resource management decisions and activities within the DBNF are guided
by DBNF's LRMP (USFS 2004, pp. 1-14).
The watershed of Elisha Branch is relatively intact, with extensive
forest cover and no road crossings. Within proposed Unit 10, the
channel is relatively stable, with excellent instream habitat (PCE 1),
an abundance of run and pool habitats (PCE 1), relatively silt-free
sand and bedrock substrates (PCE 2), and adequate flows (PCE 3). Water
quality is good to excellent (PCE 4), with diverse fish and
macroinvertebrate communities (PCE 5).
Within this unit, the Cumberland darter and its habitat may require
special management considerations or protection to address potential
adverse effects caused by resource extraction (mining, silviculture,
natural gas and oil exploration activities), lack of adequate riparian
buffers, illegal off-road vehicle use, nonpoint source pollution
arising from a wide variety of human activities, and canopy loss caused
by infestations of the hemlock wooly adelgid.
Unit 11: Jenneys Branch, McCreary County, Kentucky
Proposed Unit 11 includes 3.1 km (1.9 mi) of Jenneys Branch from
its confluence with an unnamed tributary (36.73680, -84.42420)
downstream to its confluence with Laurel Creek. Live Cumberland darters
have been captured within proposed Unit 11 (Thomas 2007, pp. 11-12),
specifically just upstream of its confluence with Laurel Creek. This
unit was included in the geographical area occupied by the species at
the time of listing. This unit is located entirely on public lands
within the DBNF. Land and resource management decisions and activities
within the DBNF are guided by DBNF's LRMP (USFS 2004, pp. 1-14).
The watershed of Jenneys Branch is relatively intact and remote,
with extensive forest cover and only one road crossing in its
headwaters. Within proposed Unit 11, the stream channel is relatively
stable, with excellent instream habitat (PCE 1), an abundance of run
and pool habitats (PCE 1), relatively silt-free sand and bedrock
substrates (PCE 2), and adequate instream flows (PCE 3). Water quality
is good to excellent (PCE 4), with diverse fish and macroinvertebrate
communities (PCE 5).
Within this unit, the Cumberland darter and its habitat may require
special management considerations or protection to address potential
adverse effects caused by resource extraction (mining, silviculture,
natural gas and oil exploration activities), lack of adequate riparian
buffers, illegal off-road vehicle use, nonpoint source pollution
arising from a wide variety of human activities, and canopy loss caused
by infestations of the hemlock wooly adelgid.
Unit 12: Wolf Creek, Whitley County, Kentucky
Proposed Unit 12 includes 6.3 km (3.9 mi) of Wolf Creek from its
confluence with Sheep Creek downstream to Wolf Creek River Road. Live
Cumberland darters have been captured within proposed Unit 12 just
downstream of the Little Wolf Creek River Road bridge crossing (Thomas
2007, pp. 11-12). This unit was included in the geographical area
occupied by the species at the time of listing.
This unit is located entirely on private land. Land use within the
watershed of Wolf Creek is similar to proposed Unit 3 and is less
forested than units within the DBNF. The channel is relatively stable
(PCE 1), but activities associated with agriculture, silviculture, and
residential development have contributed to a more open riparian zone,
increased bank erosion, and some siltation of instream habitats.
Despite these impacts, proposed Unit 12 continues to provide pool and
run habitats with suitable sand and bedrock substrates for Cumberland
darters to use in spawning, foraging, and other behaviors (PCEs 1 and
2). Flow is adequate as measured during years with average rainfall
(PCE 3), water quality is adequate (PCE 4), and macroinvertebrate prey
items are present (PCE 5).
Within this unit, the Cumberland darter and its habitat may require
special management considerations or protection to address potential
adverse effects caused by resource extraction (mining, silviculture,
natural gas and oil exploration activities), agricultural activities
(livestock), lack of adequate riparian buffers, construction and
maintenance of State and county roads, illegal off-road vehicle use,
and nonpoint source pollution arising from a wide variety of human
activities.
Unit 13: Jellico Creek, McCreary County, Kentucky, and Scott County,
Tennessee
Proposed Unit 13 includes 11.5 km (7.2 mi) of Jellico Creek from
its confluence with Scott Branch, Scott County, Tennessee downstream to
its confluence with Capuchin Creek, McCreary County, Kentucky. Live
Cumberland darters have been captured within proposed Unit 13 at the
Jellico Creek and Shut-In Branch confluence and at the Gum Fork and
Jellico Creek confluence (O'Bara 1988, p. 12; Thomas 2007, pp. 11-12).
This unit was included in the geographical area occupied by the species
at the time of listing. A portion of this unit in Kentucky (3.3 km (2.1
mi)) is in public ownership (DBNF), with the remainder of the unit (8.2
km (5.1 mi)) in private ownership. Land and resource management
decisions and activities within the DBNF are guided by DBNF's LRMP
(USFS 2004, pp. 1-14).
Land use within the watershed of Jellico Creek is predominately
forest, with scattered residences and small farms (cattle and hay
production). The channel in proposed Unit 13 is relatively stable (PCE
1), but activities associated with agriculture, silviculture, and
residential development have contributed to a more open riparian zone,
increased bank erosion, and some siltation of instream habitats.
Despite these impacts, proposed Unit 13 continues to provide pool and
run habitats with suitable sand and bedrock substrates for Cumberland
darters to use in spawning, foraging, and other behaviors (PCEs 1 and
2). Flow is adequate as measured during years with average rainfall
(PCE 3), water quality is adequate (PCE 4), and macroinvertebrate prey
items are present (PCE 5).
Within this unit, the Cumberland darter and its habitat may require
special management considerations or protection to address potential
adverse effects caused by resource extraction (mining, silviculture,
natural gas and oil exploration activities), agricultural activities
(livestock), lack of adequate riparian buffers, construction and
maintenance of State and county roads, illegal off-road vehicle use,
and nonpoint source pollution arising from a wide variety of human
activities.
Unit 14: Rock Creek, McCreary County, Kentucky
Proposed Unit 14 includes 6.1 km (3.8 mi) of Rock Creek from its
confluence with Sid Anderson Branch downstream to its confluence with
Jellico Creek. Live Cumberland darters have been captured within
proposed Unit 14 just above the mouth of Rock Creek at its confluence
with Jellico Creek (Thomas 2007, pp. 11-12). This unit was included in
the geographical area occupied by the species at the time of listing. A
portion of this unit (2.2 km (1.4 mi)) is in public ownership (DBNF),
but the majority (3.9 km (2.4 mi)) is in private ownership. Land and
resource management decisions and activities within the DBNF are guided
by DBNF's LRMP (USFS 2004, pp. 1-14).

[[Page 63382]]

Most of the watershed is forested (especially along the ridge
tops), but the valley floor has several open fields and is easily
accessible via Little Rock Creek Road. Portions of the channel in Unit
14 have been modified by beaver (with some ponding), but it continues
to be relatively stable, with excellent instream habitat (PCE 1), an
abundance of run and pool habitats (PCE 1), relatively silt-free sand
and bedrock substrates (PCE 2), and adequate instream flows (PCE 3).
Water quality is good to excellent (PCE 4), with diverse fish and
macroinvertebrate communities (PCE 5).
Within this unit, the Cumberland darter and its habitat may require
special management considerations or protection to address potential
adverse effects caused by resource extraction (mining, silviculture,
natural gas and oil exploration activities), agricultural activities
(livestock), lack of adequate riparian buffers, construction and
maintenance of State and county roads, illegal off-road vehicle use,
nonpoint source pollution arising from a wide variety of human
activities, and canopy loss caused by infestations of the hemlock wooly
adelgid.
Unit 15: Capuchin Creek, McCreary County, Kentucky, and Campbell
County, Tennessee
Proposed Unit 15 includes 4.2 km (2.6 mi) of Capuchin Creek from
its confluence with Hatfield Creek downstream to its confluence with
Jellico Creek. Live Cumberland darters have been captured within
proposed Unit 15 at the Kentucky-Tennessee State line (Thomas 2007, pp.
11-12). This unit was included in the geographical area occupied by the
species at the time of listing. A portion of this unit in Kentucky (0.8
km (0.5 mi)) is in public ownership (DBNF); the remainder in Kentucky
and Tennessee (3.4 km (2.1 mi)) is in private ownership. Land and
resource management decisions and activities within the DBNF are guided
by DBNF's LRMP (USFS 2004, pp. 1-14).
Land use within the watershed of Capuchin Creek is predominately
forest, with scattered residences and small farms (cattle and hay
production). The channel in proposed Unit 15 is relatively stable (PCE
1), but activities associated with agriculture, silviculture, and
residential development have contributed to a more open riparian zone,
increased bank erosion, and some siltation of instream habitats.
Despite these impacts, proposed Unit 15 continues to provide pool and
run habitats with suitable sand and bedrock substrates for Cumberland
darters to use in spawning, foraging, and other behaviors (PCEs 1 and
2). Flow is adequate as measured during years with average rainfall
(PCE 3), water quality is adequate (PCE 4), and macroinvertebrate prey
items are present (PCE 5).
Within this unit, the Cumberland darter and its habitat may require
special management considerations or protection to address potential
adverse effects caused by resource extraction (mining, silviculture,
natural gas and oil exploration activities), agricultural activities
(livestock), lack of adequate riparian buffers, construction and
maintenance of State and county roads, illegal off-road vehicle use,
and nonpoint source pollution arising from a wide variety of human
activities.

Rush Darter

We are proposing eight units as critical habitat for the rush
darter. The critical habitat areas described below constitute our
current best assessment of areas that meet the definition of critical
habitat for the rush darter. The eight areas we propose as critical
habitat are as follows: (1) Beaver Creek, (2) Unnamed Tributary to
Beaver Creek and Highway 79 Spring Site, (3) Tapawingo or Penny Spring
and Spring Run, (4) Wildcat Branch, (5) Mill Creek, (6) Doe Branch, (7)
Little Cove Creek, Cove Spring Site, and (8) Bristow Creek. Table 2
shows the occupancy of the units and ownership of the proposed
designated areas for the rush darter.

Table 2--Occupancy and Ownership of the Proposed Critical Habitat Units for the Rush Darter
----------------------------------------------------------------------------------------------------------------
Private State, county,
Unit Location Occupied ownership km city ownership Total length Total area**
(mi) km (mi) km (mi) ha (ac)
----------------------------------------------------------------------------------------------------------------
1............. Beaver Creek.... Yes........... 0.9 (0.6) < 0.1 (< 0.1) 1.0 (0.6) ..............
2............. Unnamed Yes........... 3.6 (2.2) 0.7 (0.4) 4.3 (2.6) ..............
Tributary to
Beaver Creek
and Highway 79
Spring Site.
3............. Tapawingo or Yes........... 0.6 (0.4) < 0.1 (< 0.06) 0.6 (0.4) 6.7 (16.5)
Penny Spring
and Spring Run.
4............. Wildcat Branch.. Yes........... 6.6 (4.1) < 0.1 (< 0.06) 6.6 (4.1) ..............
5............. Mill Creek...... Yes........... 5.9 (3.7) < 0.1 (< 0.06) 5.9 (3.7) ..............
6............. Doe Branch...... Yes........... 4.3 (2.7) < 0.1 (< 0.06) 4.3 (2.7) ..............
7............. Little Cove Yes........... 11.2 (6.1) < 0.1 (< 0.06) 11.2 (6.1) 5.1 (12.7)
Creek, Cove
Spring, Spring
Run.
8............. Bristow Creek... Yes........... 10.2 (6.3) < 0.1 (< 0.06) 10.2 (6.3) ..............
---------------------------------------------------------------
Total *... ................ .............. .............. .............. 42.3 (26.9) 19.4 (21.7)
----------------------------------------------------------------------------------------------------------------
* Totals may not sum due to rounding.
** Total area in ha (ac) are in private ownership.

We present brief descriptions of each unit and reasons why they
meet the definition of critical habitat below. The proposed critical
habitat units include the stream channels of the creek within the
ordinary high water line, and the flooded spring pool in the case of
Tapawingo or Penny Springs (Jefferson County) and Cove Springs (Etowah
County). As defined in 33 CFR 329.11, the ordinary high water line on
nontidal rivers is the line on the shore established by the
fluctuations of water and indicated by physical characteristics such as
a clear, natural water line impressed on the bank; shelving; changes in
the character of soil; destruction of terrestrial vegetation; the
presence of litter and debris; or other appropriate means that consider
the characteristics of the surrounding areas. In Alabama, the riparian
landowner owns the stream to the middle of the channel for non-
navigable streams and rivers. For the spring pools, the area was
determined and delineated by the presence of emergent vegetation
patterns as noted on aerial photographs.
For each stream reach of proposed critical habitat, the upstream
and downstream boundaries are described generally below; more precise
descriptions are provided in the Proposed Regulation Promulgation at
the end of this proposed rule.

[[Page 63383]]

Unit 1: Beaver Creek, Jefferson County, Alabama
Proposed Unit 1 includes 1.0 km (0.6 mi) of Beaver Creek from the
confluence with Dry Creek, downstream to the confluence with Turkey
Creek. This unit was included in the geographical area occupied by the
species at the time of listing. Almost 0.9 km (0.6 mi), or 94 percent
of this area is privately owned. The remaining 0.1 km (< 0.1 mi), or 6
percent, is publicly owned by the City of Pinson or Jefferson County in
the form of bridge crossings and road easements.
Beaver Creek contains adequate bottom substrate and emergent
vegetation for rush darters to use in spawning, foraging, and other
life processes (PCE 2). Beaver Creek makes available additional habitat
and spawning sites, and offers connectivity with other rush darter
populations within the Highway 79 Spring System site and the Unnamed
Tributary to Beaver Creek (PCE 1).
Beaver Creek provides habitat for the rush darters with adequate
number of pools, riffles, runs (PCE 1), and emergent vegetation (PCE
2). These geomorphic structures provide the species with spawning,
foraging, and resting areas (PCE 1), along with good water quality,
quantity, and flow, which support the normal life stages and behavior
of the rush darter (PCEs 3 and 4), the species' prey sources (PCE 5),
and associated aquatic vegetation.
Threats to the rush darter and its habitat at Beaver Creek that may
require special management of the PCEs include the potential of:
urbanization activities (such as channel modification for flood
control, construction of impoundments, and 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, destruction of emergent vegetation, off-road vehicle use,
sewer, gas and water easements, bridge and road construction and
maintenance, culvert and pipe installation, and other watershed and
floodplain disturbances that release sediments or nutrients into the
water.
There are three road crossings over Beaver Creek (Pinson Valley
Parkway, Old Bradford Road, and Spring Street) that at times may limit
the overall connectivity and movement of the species within this unit.
Movement might be limited due to changes in flow regime and habitat
including: emergent vegetation, water quality, water quantity, and
stochastic events such as drought. Populations of rush darters are
small and isolated within specific habitat sites of Beaver Creek.
Unit 2: Unnamed Tributary to Beaver Creek and Highway 79 Spring Site,
Jefferson County, Alabama
Proposed Unit 2 includes 4.3 km (2.6 mi) of the Unnamed Tributary
of Beaver Creek and a spring run. The site begins at the Section 1 and
2 (T16S, R2W) line, as taken from the U.S. Geological Survey 7.5
topographical map (Pinson quadrangle), downstream to its confluence
with Dry Creek, and includes a spring run beginning at the springhead
(33.67449, -86.69300) just northwest of Old Pinson Road and
intersecting with the Unnamed Tributary to Beaver Creek on the west
side of Highway 79. This unit was included in the geographical area
occupied by the species at the time of listing.
Almost 3.6 km (2.2 mi), or 85 percent, of this area is privately
owned. The remaining 0.7 km (0.4 mi), or 15 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 rush
darters and is a feeder stream to Beaver Creek (PCEs 1 and 2). The
Unnamed Tributary to Beaver Creek has been intensely geomorphically
changed by man over the last 100 years. The majority of this reach has
been 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 that
constantly supplies this reach with clean and flowing water (PCEs 3 and
4), the reach has been able to support significant emergent vegetation
in shallow water on the margins to support several rush darter
populations. 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, emergent vegetation and appropriate substrates (PCEs 1,
2, 3, and 4). Increasing the connectivity of the rush darter
populations (PCE 1) throughout the reaches of this tributary is an
essential conservation requirement as it would decrease the
vulnerability of these populations to stochastic threats. The Highway
79 Spring Site is the type locality for the species (Bart 2004, p.
194), supporting populations of rush darters and providing supplemental
water quantity to the Unnamed Tributary to Beaver Creek (PCEs 1 and 3).
The reach contains adequate bottom substrate and emergent vegetation
for rush darters to use in spawning, foraging, and other life processes
(PCE 2). The Highway 79 Spring site provides habitat and spawning
sites, and offers connectivity with rush darter populations in the
Unnamed Tributary to Beaver Creek (PCE 1).
Threats to the rush darter and its habitat that may require special
management and protection of PCEs are: Urbanization activities (such as
channel modification for flood control, and gravel extraction) that
could result in increased bank erosion; significant changes in the
existing flow regime due to 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 road 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: Tapawingo or Penny Spring and Spring Run, Jefferson County,
Alabama
Proposed Unit 3 includes 0.6 km (0.4 mi) of spring run,
historically called Tapawingo Plunge, along with 6.7 ha (16.5 ac) of
flooded spring basin making up Penny Springs. Unit 3 is located south
of Turkey Creek, north of Bud Holmes Road, and just east of Tapawingo
Trail Road. The east boundary is at (33.69903, -86.66528): 1.0 km (0.6
mi) west of Section Line 28 to 29 (T15S, R1W) (U.S. Geological Survey
7.5 topographical map (Pinson quadrangle)). This unit was included in
the geographical area occupied by the species at the time of listing.
All 0.6 km (0.4 mi) stream miles and 6.7 ha (16.5 ac) of Unit 3 is
privately owned except for that small amount that is publicly owned in
the form of bridge crossings and road easements.
The Tapawingo or Penny Spring complex consists of an abundance of
springs that drain directly into Turkey Creek by means of a large
spring run at the old railroad crossing and Tapawingo Springs Road
(PCEs 1 and 2). The historical spring run discharge ranges from 0.03 to
2.4 cubic meters per second (m\3\/s) (500 to 38,800 gallons per minute
(gal/min)) (Chandler and Moore 1987, p. 49), and there is an abundance
of emergent vegetation (PCEs 1, 2, and 3).

[[Page 63384]]

Historically small numbers of rush darter have been collected in the
spring area.
Threats to the rush darter and its habitat that may require special
management and protection of physical and biological features are:
Urbanization activities (such as channel modification for flood
control, vegetation management, 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; significant alteration or destruction of
aquatic and emergent vegetation, 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 4: Wildcat Branch, Winston County, Alabama
Proposed Unit 4 includes 6.6 km (4.1 mi) of Wildcat Branch from the
streams headwaters just east of Winston County Road 29 to the
confluence with Clear Creek. This unit was included in the geographical
area occupied by the species at the time of listing. Almost 6.6 km (4.1
mi), or 100 percent, of this area is privately owned except for that
small amount that is publicly owned by Winston County in the form of
bridge crossings and road easements.
Wildcat Branch provides habitat for rush darters with a network of
small pools and spring runs, along with an abundance of emergent
vegetation (PCE 1 and 2). These geomorphic structures provide the
species with spawning, foraging, and resting areas (PCE 1), along with
good water quality, quantity, and flow (PCEs 3 and 4), which support
the normal life stages and behavior of the rush darter, the species'
prey sources (PCE 5). Rush darters are consistently collected in
Wildcat Branch, but not in large numbers.
Threats that may require special management and protection of
physical and biological features include: Road and roadside
maintenance, 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; significant alteration or destruction of aquatic and emergent
vegetation, 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: Mill Creek, Winston County, Alabama
Proposed Unit 5 includes 5.9 km (3.7 mi) of Mill Creek from the
stream headwaters just east of Winston County Road 195 to the
confluence with Clear Creek. This unit was included in the geographical
area occupied by the species at the time of listing. Almost 5.9 km (3.7
mi), or 100 percent, of this area is privately owned except for that
small amount that is publicly owned by Winston County in the form of
bridge crossings and road easements.
Mill Creek provides habitat for the rush darter with a network of
small pools, and spring runs, along with an abundance of emergent
vegetation (PCE 1 and 2). These geomorphic structures provide the
species with spawning, foraging, and resting areas (PCE 1), along with
good water quality, quantity, and flow (PCEs 3 and 4), which support
the normal life stages and behavior of the rush darter, the species'
prey sources (PCE 5). Rush darters are consistently collected in Mill
Creek.
Threats that may require special management and protection of PCEs
include: Road and roadside maintenance, 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; significant alteration or
destruction of aquatic and emergent vegetation, 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 6: Doe Branch, Winston County, Alabama
Proposed Unit 6 includes 4.3 km (2.7 mi) of Doe Branch from the
stream headwaters North and West of Section Line 23 and 14 (R9W, T11S;
Popular Springs Quadrangle) to the confluence with Wildcat Branch. This
unit was included in the geographical area occupied by the species at
the time of listing. Almost 4.3 km (2.7 mi), or 100 percent, of this
area is privately owned except for that small amount that is publicly
owned by Winston County in the form of bridge crossings and road
easements.
Doe Branch provides habitat for the rush darter with a small
network of small pools, and spring runs, along with adequate emergent
vegetation (PCE 1 and 2). These geomorphic structures provide the
species with spawning, foraging, and resting areas (PCE 1), along with
good water quality, quantity, and flow (PCEs 3 and 4), which support
the normal life stages and behavior of the rush darter, the species'
prey sources (PCE 5). Although the species is considered rare in Doe
Branch, there have been few collection attempts in the stream with a
few darters captured (Mettee et al. 1989, p. 61). Doe Branch contains
habitat for the species and is considered occupied. The stream joins
Wildcat Branch before flowing into Clear Creek.
Threats that may require special management and protection of
physical and biological features include: road and roadside
maintenance, 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; significant alteration or destruction of aquatic and emergent
vegetation, 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 7: Little Cove Creek, Cove Spring and Spring Run, Etowah County,
Alabama
Proposed Unit 7 includes 11.2 km (6.1 mi) of Little Cove Creek and
the Cove Spring run system along with 5.1 ha (12.7 ac) of the spring
run floodplain. Specifically, the Little Cove Creek section (11.0 km
(6.0 mi)) is from the intersection of Etowah County Road 179 near the
creek headwaters, downstream to its confluence with the Locust Fork

[[Page 63385]]

River. The Cove Spring and spring run section includes 0.2 km (0.1 mi)
of the spring run from the springhead at the West Etowah Water and Fire
Authority pumping station on Cove Spring Road to the confluence with
Little Cove Creek and includes 5.1 ha (12.7 ac) of the spring run
floodplain due south of the pumping facility. This unit was included in
the geographical area occupied by the species at the time of listing.
All 11.2 km (6.1 mi) of Unit 7 is privately owned except for that small
amount that is publicly owned by Etowah County in the form of bridge
crossings and road easements.
Little Cove Creek provides habitat for the rush darter with a
network of small pools, and spring runs, along with an abundance of
emergent aquatic vegetation (PCE 1 and 2). These geomorphic structures
provide the species with spawning, foraging, and resting areas (PCE 1),
along with good water quality, quantity, and flow (PCEs 3 and 4), which
support the normal life stages and behavior of the rush darter, the
species' prey sources (PCE 5). Rush darters are collected in Little
Cove Creek, but not in large numbers. The Cove Spring and Spring Run
site supports small populations of rush darters and provides
supplemental water quantity to Little Cove Creek (PCEs 1 and 3). Water
quantity from the spring averages 0.2 m\3\/s (3,000 gal/min) (Snead
2011, pers. comm.) (PCE 4). The spring contains an abundance of gravel
and silt along with significant emergent vegetation for rush darters to
use in spawning, foraging, and other life processes (PCE 2). The Cove
Spring and Spring Run site provides habitat and spawning sites, and
offers connectivity with rush darter populations to Little Cove Creek
(PCE 1).
Threats that may require special management and protection of
physical and biological features include: road and roadside
maintenance, agricultural and silviculture activities that could result
in increased bank erosion; significant changes in the existing flow
regime due to inadequate stormwater management; impoundment
construction, water diversion, or water withdrawal for livestock and
irrigation; significant alteration or destruction of aquatic and
emergent vegetation, significant alteration of water quality due to
release of chlorinated water and other chemicals into the Cove Spring
run or Little Cove Creek by the water pumping facility or other
sources; 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 8: Bristow Creek, Etowah County, Alabama
Proposed Unit 8 includes 10.2 km (6.3 mi) of Bristow Creek
beginning from its intersection with Fairview Cove Road, downstream to
the confluence with the Locust Fork River. This unit was included in
the geographical area occupied by the species at the time of listing.
All 10.2 km (6.3 mi) of Bristow Creek, beginning at the bridge at
Fairview Road, downstream to the confluence with the Locust Fork River
is privately owned except for that small amount that is publicly owned
by Etowah County in the form of bridge crossings and road easements.
Bristow Creek, although channelized in some locations, provides
habitat and connectivity for the rush darters (PCE 1). Locations within
the creek have the necessary stream attributes of some small pools, and
spring runs (PCE 1) along with emergent vegetation (PCE 2). These
geomorphic structures provide the species with spawning, foraging, and
resting areas (PCE 1), along with supplemental water quantity and flow
(PCE 3), which support the normal life stages and behavior of the rush
darter, the species' prey sources (PCE 5). The rush darter is
considered rare in Bristow Creek, but sampling has been limited.
Threats that may require special management and protection of
physical and biological features include: road and roadside
maintenance, agricultural and silviculture activities that could result
in increased bank erosion; significant changes in the existing flow
regime due to inadequate stormwater management; significant alteration
or destruction of aquatic and emergent vegetation, impoundment
construction, water diversion, or water withdrawal for livestock and
irrigation; off-road vehicle use, sewer, gas and water easements,
septic tank drain fields, bridge construction and maintenance, culvert
and pipe installation, and other watershed and floodplain disturbances
that release sediments or nutrients into the water.

Yellowcheek Darter

We are proposing four units as critical habitat for the yellowcheek
darter. The critical habitat areas we describe below constitute our
current best assessment of areas that meet the definition of critical
habitat for the yellowcheek darter. The four areas on the Little Red
River that we propose as critical habitat are as follows: (1) Middle
Fork, (2) South Fork, (3) Archey Fork, and (4) Devil's Fork (Includes
Turkey Creek and Beech Fork). Table 3 shows the occupancy of the units
and ownership of the proposed designated areas for the yellowcheek
darter.

Table 3--Occupancy and Ownership of the Proposed Critical Habitat Units for the Yellowcheek Darter
----------------------------------------------------------------------------------------------------------------
Private State, county,
Unit Location Occupied ownership km city ownership Total length
(mi) km (mi) km (mi)
----------------------------------------------------------------------------------------------------------------
1................... Middle Fork of Little Yes................ 64.2 (39.9) 6.0 (3.7) 70.2 (43.6)
Red River.
2................... South Fork of Little Yes................ 30.3 (18.8) 1.6 (1.0) 31.9 (19.8)
Red River.
3................... Archey Fork of Little Yes................ 27.1 (16.8) <= .3(.2) 27.4 (17.0)
Red River.
4................... Devil's Fork of Yes................ 26.4 (16.4) 1.1 (0.7) 27.5 (17.1)
Little Red River.
---------------
Total........... ..................... ................... .............. .............. 157.0 (97.5)
----------------------------------------------------------------------------------------------------------------

We present brief descriptions of all units and reasons why they
meet the definition of critical habitat for the yellowcheek darter. The
proposed critical habitat units include the river channels within the
ordinary high water line. As defined in 33 CFR 329.11, the ordinary
high water mark 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 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 Arkansas, the riparian
landowner owns the stream to the middle of the channel for non-
navigable streams and

[[Page 63386]]

rivers. For each stream reach proposed as a critical habitat unit, the
upstream and downstream boundaries are described generally below.
Unit 1: Middle Fork of the Little Red River, Searcy, Stone, and Van
Buren Counties, Arkansas
Proposed Unit 1 includes 70.2 km (43.6 mi) of the Middle Fork of
the Little Red River from Searcy County Road 167 approximately 3.4 km
(2.1 miles) southwest of Leslie, Arkansas, to a point on the stream 7.7
river km (4.8 mi) downstream (35.66515, -92.25942) of the Arkansas
Highway 9 crossing of the Middle Fork near Shirley, Arkansas. The lower
boundary coincides with the 140.5-m (461-ft) elevation of the
conservation pool for Greers Ferry Lake where suitable habitat becomes
inundated by Greers Ferry Lake and no longer supports the yellowcheek
darter. Live yellowcheek darters have been collected from four sites
within proposed Unit 1. The uppermost site is immediately below the Hwy
65 Bridge near Leslie, Arkansas, and the lowermost site is immediately
below the Hwy 9 Bridge in Shirley, Arkansas (Wine and Blumenshine 2002,
p. 18). This unit was included in the geographical area occupied by the
species at the time of listing. Approximately 64.2 km (39.9 mi), or 92
percent, of proposed Unit 1 is privately owned, and 6.0 km (3.7 mi) is
within the Cherokee Wildlife Management Area owned by the State of
Arkansas. County and State road crossings exist in all three counties
and account for less than one percent of total proposed Unit 1
ownership.
This unit contains stable riffle areas of moderate to swift
velocity (PCE 1) that are relatively silt-free (PCE 2) and maintain
surface flows year round (PCE 3). Such characteristics are necessary
for reproductive and sheltering requirements of yellowcheek darters.
Water quality within this unit is also characterized by moderate
temperatures, relatively high dissolved oxygen concentrations, moderate
pH, and low levels of pollutants (PCE 4), which support abundant
populations of aquatic macroinvertebrates that serve as prey items for
yellowcheek darters (PCE 5).
The yellowcheek darter and its habitat may require special
management considerations or protection to address changes in the
existing stream ecology due to activities as associated with natural
gas development, livestock grazing, county road maintenance, timber
harvest, water diversion, gravel mining, and rock harvesting
operations. Alteration of water quality and changes in streambed
material composition from any other activities that would release
sediments, nutrients, or toxins into the water also threaten the
yellowcheek darter.
Unit 2: South Fork of the Little Red River, Van Buren County, Arkansas
Proposed Unit 2 includes 31.9 km (19.8 mi) of the South Fork of the
Little Red River from Van Buren County Road 9 three miles north of
Scotland, Arkansas, to a point on the stream (35.57364, -92.42718)
approximately 5.5 river km (3.4 mi) downstream of U.S. Highway 65 in
Clinton, Arkansas, where suitable habitat becomes inundated by Greers
Ferry Lake and no longer supports the yellowcheek darter. Live
yellowcheek darters have been collected from four sites along the South
Fork Little Red River, including the uppermost boundary at the County
Road 9 Bridge and just above the Hwy 65 Bridge in Clinton, Arkansas.
This unit was included in the geographical area occupied by the species
at the time of listing. Approximately 30.3 km (18.8 mi), or 95 percent,
of proposed Unit 2 is privately owned, and 1.6 km (1.0 mi) is within
the Cherokee Wildlife Management Area owned by the State of Arkansas or
the city limits of Clinton, Arkansas. County and State road crossings
account for less than one percent of total Unit 2 ownership.
This unit contains stable riffle areas of moderate to swift
velocity (PCE 1) that are relatively silt-free (PCE 2) and maintain
surface flows year round (PCE 3). Such characteristics are necessary
for reproductive and sheltering requirements of yellowcheek darters.
Water quality within this unit is also characterized by moderate
temperatures, relatively high dissolved oxygen concentrations, moderate
pH, and low levels of pollutants (PCE 4), which support abundant
populations of aquatic macroinvertebrates that serve as prey items for
yellowcheek darters (PCE 5).
The yellowcheek darter and its habitat may require special
management considerations or protection to address changes in the
existing stream ecology due to activities as associated with natural
gas development, livestock grazing, county road maintenance, timber
harvest, water diversion, and gravel mining. Alteration of water
quality and changes in streambed material composition from any other
activities that would release sediments, nutrients, or toxins into the
water also threaten the yellowcheek darter.
Unit 3: Archey Fork of the Little Red River, Van Buren County, Arkansas
Proposed Unit 3 includes 27.4 km (17.0 mi) of the Archey Fork of
the Little Red River from its junction with South Castleberry Creek to
its confluence with the South Fork of the Little Red River near
Clinton, Arkansas. Live yellowcheek darters have been collected just
above the confluence of the Archey and South Forks (Wine et al. 2000,
p. 10) and at a point 15.3 km (9.5 mi) above the confluence (Brophy and
Stoeckel 2006, p. 3). This unit was included in the geographical area
occupied by the species at the time of listing. Proposed Unit 3 is
nearly 100 percent privately owned. County and state road crossings and
portions within the city of Clinton, Arkansas, account for less than
one percent of total Unit 3 ownership.
This unit contains stable riffle areas of moderate to swift
velocity (PCE 1) that are relatively silt-free (PCE 2) and maintain
surface flows year round (PCE 3). Such characteristics are necessary
for reproductive and sheltering requirements of yellowcheek darters.
Water quality within this unit is also characterized by moderate
temperatures, relatively high dissolved oxygen concentrations, moderate
pH, and low levels of pollutants (PCE 4), which support abundant
populations of aquatic macroinvertebrates that serve as prey items for
yellowcheek darters (PCE 5).
The yellowcheek darter and its habitat may require special
management considerations or protection to address changes in the
existing stream ecology due to activities as associated with natural
gas development, livestock grazing, county road maintenance, timber
harvest, water diversion, and gravel mining. Alteration of water
quality and changes in streambed material composition from any other
activities that would release sediments, nutrients, or toxins into the
water also threaten the yellowcheek darter.
Unit 4: Devil's Fork of the Little Red River (Including Turkey Creek
and Beech Fork), Stone and Cleburne Counties, Arkansas
Proposed Unit 4 includes 27.5 km (17.1 mi) of stream from Stone
County Road 21 approximately 3 miles north of Prim, Arkansas, to a
point (35.63556, -92.03400) on the Devil's Fork approximately 5.1 km
(3.2 mi) southeast of Woodrow, Arkansas, where suitable habitat becomes
inundated by Greers Ferry Lake and no longer supports the yellowcheek
darter. Live yellowcheek darters have not been collected at the

[[Page 63387]]

uppermost site (Turkey Creek) since 1999 (Mitchell et al. 2002, p.
131). However, Wine and Blumenshine (2002, p. 11) did detect
yellowcheek darters in the Beech Fork and it is likely that the species
persists in very low numbers within the upper portions of the watershed
during normal flow years. This unit was included in the geographical
area occupied by the species at the time of listing. Approximately 26.4
km (16.4 mi), or 96 percent, of proposed Unit 4 is privately owned, and
1.1 km (0.7 mi) is within the Cherokee Wildlife Management Area owned
by the State of Arkansas. County road crossings exist in both counties
and account for less than one percent of total Unit 4 ownership.
This unit contains stable riffle areas of moderate to swift
velocity (PCE 1) that are relatively silt-free (PCE 2) and maintain
surface flows year round (PCE 3). Such characteristics are necessary
for reproductive and sheltering requirements of yellowcheek darters.
Water quality within this unit is also characterized by moderate
temperatures, relatively high dissolved oxygen concentrations, moderate
pH, and low levels of pollutants (PCE 4), which support abundant
populations of aquatic macroinvertebrates that serve as prey items for
yellowcheek darters (PCE 5).
The yellowcheek darter and its habitat may require special
management considerations or protection to address changes in the
existing stream ecology due to activities as associated with natural
gas development, livestock grazing, county road maintenance, timber
harvest, water diversion, and gravel mining. Alteration of water
quality and changes in streambed material composition from any other
activities that would release sediments, nutrients, or toxins into the
water also threaten the yellowcheek darter.

Chucky Madtom

We are proposing one unit as critical habitat for the chucky
madtom. The critical habitat area we describe below constitutes our
current best assessment of the area that meets the definition of
critical habitat for the chucky madtom. Lands in the critical habitat
unit are either in private ownership or public ownership (Greene County
road easements). In Tennessee, landowners own the land under non-
navigable streams (e.g., the stream channel or bottom), but the water
is under State jurisdiction. The area we propose as critical habitat
is: Little Chucky Creek, and was occupied at the time of listing. Table
4 shows the occupancy of the unit and ownership of the proposed
designated area for the chucky madtom.

Table 4--Occupancy and Ownership of the Proposed Critical Habitat Unit for the Chucky Madtom
----------------------------------------------------------------------------------------------------------------
Private State, county,
Unit Location Occupied ownership km city ownership Total length
(mi) km (mi) km (mi)
----------------------------------------------------------------------------------------------------------------
Little Chucky Creek.. Yes................ 31.8 (19.7) < 0.1 (< 0.06) 31.9 (19.8)
---------------
Total........... ..................... ................... .............. .............. 31.9 (19.8)
----------------------------------------------------------------------------------------------------------------

We present a brief description of the unit and reasons why it meets
the definition of critical habitat for the chucky madtom. The proposed
critical habitat unit includes the river channel within the ordinary
high water line. As defined in 33 CFR 329.11, the ordinary high water
mark 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 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. For the stream reach
proposed as a critical habitat unit, the upstream and downstream
boundaries are described generally below; a more precise description is
provided in the Proposed Regulation Promulgation at the end of this
proposed rule.
Unit 1: Little Chucky Creek, Greene County, Tennessee
This unit includes 31.9 km (19.8 mi) of Little Chucky Creek from
its confluence with an unnamed tributary, downstream to its confluence
with the Nolichucky River, at the Greene and Cocke County line,
Tennessee. Although the chucky madtom has not been observed since 2004,
we still consider it to exist in Little Chucky Creek. Observations of
the species have always been sporadic, and it is a cryptic species that
is hard to locate. This unit was included in the geographical area
occupied by the species at the time of listing. Almost 31.9 km (19.8
mi), or 100 percent, of this area is privately owned except for that
small amount that is publicly owned by Greene County in the form of
bridge crossings and road easements.
This proposed unit contains stable riffle and run areas of moderate
to swift velocity (PCE 1); flat gravel, cobble, and slab-rock boulders
that are relatively silt-free (PCE 2); and surface flows that are
maintained year round (PCE 3). Such characteristics are necessary for
reproductive and sheltering requirements of chucky madtoms. Water
quality within this unit is also characterized by moderate
temperatures, relatively high dissolved oxygen concentrations, moderate
pH, and low levels of pollutants (PCE 4), which support abundant
populations of aquatic macroinvertebrates that serve as prey items for
the chucky madtom (PCE 5).
This critical habitat unit is located on private property and is
not presently under the special management or protection provided by a
legally operative plan or agreement for the conservation of the
species. Various activities in or adjacent to the critical habitat unit
described in this proposed rule may affect one or more of the PCEs. For
example, features in this proposed critical habitat designation may
require special management due to threats posed by agricultural
activities (e.g., row crops and livestock), lack of adequate riparian
buffers, construction and maintenance of State and county roads, gravel
mining, and nonpoint source pollution arising from a wide variety of
human activities.

Laurel Dace

We are proposing six units as critical habitat for the laurel dace.
The critical habitat areas we describe below constitute our current
best assessment of areas that meet the definition of critical habitat
for the laurel dace. The six areas we propose as critical habitat are
as follows: (1) Bumbee Creek, (2) Youngs Creek, (3) Moccasin Creek, (4)
Cupp Creek, (5) Horn Branch, and (6) Soddy Creek. Lands in critical
habitat units are either in private ownership or public

[[Page 63388]]

ownership (county road easements). In Tennessee, landowners own the
land under non-navigable streams (e.g., the stream channel or bottom),
but the water is under State jurisdiction. Table 5 shows the occupancy
of the units and ownership of the proposed designated areas for the
laurel dace.

Table 5--Occupancy and Ownership of the Proposed Critical Habitat Units for the Laurel Dace
----------------------------------------------------------------------------------------------------------------
Private State, county,
Unit Location Occupied ownership km city ownership Total length
(mi) km (mi) km (mi)
----------------------------------------------------------------------------------------------------------------
1................... Bumbee Creek......... Yes................ 7.7 (4.7) < 0.1 (< 0.06) 7.8 (4.8)
2................... Youngs Creek......... Yes................ 7.8 (4.8) < 0.1 (< 0.06) 7.9 (4.9)
3................... Moccasin Creek....... Yes................ 8.9 (5.5) < 0.1 (< 0.06) 9.0 (5.6)
4................... Cupp Creek........... Yes................ 4.9 (3.0) < 0.1 (< 0.06) 5.0 (3.1)
5................... Horn Branch.......... Yes................ 3.9 (2.4) < 0.1 (< 0.06) 4.0 (2.5)
6................... Soddy Creek.......... Yes................ 8.3 (5.1) < 0.1 (< 0.06) 8.4 (5.2)
---------------
Total........... ..................... ................... .............. .............. 42.2 (26.2)
----------------------------------------------------------------------------------------------------------------

We present brief descriptions of all units and reasons why they
meet the definition of critical habitat for the laurel dace. The
proposed critical habitat units include the river channels within the
ordinary high water line. As defined in 33 CFR 329.11, the ordinary
high water mark 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 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. For each stream reach
proposed as a critical habitat unit, the upstream and downstream
boundaries are described generally below; more precise descriptions are
provided in the Proposed Regulation Promulgation at the end of this
proposed rule.
Unit 1: Bumbee Creek, Bledsoe and Rhea Counties, Tennessee
Proposed Unit 1 includes 8.0 km (5.0 mi) of Bumbee Creek from its
headwaters in Bledsoe County, downstream to its confluence with
Mapleslush Branch in Rhea County, Tennessee. This unit was included in
the geographical area occupied by the species at the time of listing.
Almost 7.9 km (4.9 mi), or 100 percent, of this area is privately owned
except for that small amount that is publicly owned by Bledsoe and Rhea
Counties in the form of bridge crossings and road easements.
This unit contains stable headwater streams (PCE 1) that are
relatively silt-free, contain cobble and slab-rock boulder substrates
with canopy cover (PCE 2), and surface flows that are maintained year
round (PCE 3). Such characteristics are necessary for reproductive and
sheltering requirements of laurel dace. Water quality within this unit
is also characterized by moderate temperatures, relatively high
dissolved oxygen concentrations, moderate pH, and low levels of
pollutants (PCE 4), which support abundant populations of aquatic
macroinvertebrates that serve as prey items for laurel dace (PCE 5).
Various activities in or adjacent to these areas of proposed
critical habitat may affect one or more of the physical and biological
features. For example, features in this proposed critical habitat
designation may require special management due to threats posed by
resource extraction (coal and gravel mining, silviculture, natural gas
and oil exploration activities), agricultural activities (row crops and
livestock), lack of adequate riparian buffers, construction and
maintenance of State and county roads, nonpoint source pollution
arising from a wide variety of human activities, and canopy loss caused
by infestations of the hemlock wooly adelgid. These threats are in
addition to random effects of drought, floods, or other natural
phenomena.
Unit 2: Youngs Creek, Bledsoe and Rhea Counties, Tennessee
Proposed Unit 2 includes 7.8 km (4.8 mi) of Youngs Creek from its
headwaters in Bledsoe County, downstream to its confluence with
Moccasin Creek in Rhea County, Tennessee. This unit was included in the
geographical area occupied by the species at the time of listing.
Almost 7.7 km (4.7 mi), or 100 percent, of this area is privately owned
except for that small amount that is publicly owned by Bledsoe and Rhea
Counties in the form of bridge crossings and road easements.
This unit contains stable headwater streams (PCE 1) that are
relatively silt-free, contain cobble and slab-rock boulder substrates
with canopy cover (PCE 2), and surface flows that are maintained year
round (PCE 3). Such characteristics are necessary for reproductive and
sheltering requirements of laurel dace. Water quality within this unit
is also characterized by moderate temperatures, relatively high
dissolved oxygen concentrations, moderate pH, and low levels of
pollutants (PCE 4), which support abundant populations of aquatic
macroinvertebrates that serve as prey items for laurel dace (PCE 5).
Various activities in or adjacent to these areas of proposed
critical habitat may affect one or more of the physical and biological
features. For example, features in this proposed critical habitat
designation may require special management due to threats posed by
resource extraction (coal and gravel mining, silviculture, natural gas
and oil exploration activities), agricultural activities (row crops and
livestock), lack of adequate riparian buffers, construction and
maintenance of State and county roads, nonpoint source pollution
arising from a wide variety of human activities, and canopy loss caused
by infestations of the hemlock wooly adelgid. These threats are in
addition to random effects of drought, floods, or other natural
phenomena.
Unit 3: Moccasin Creek, Bledsoe County, Tennessee
Proposed Unit 3 includes 9.0 km (5.6 mi) of Moccasin Creek from its
headwaters downstream to 0.1 km (0.6 mi) below its confluence with Lick
Creek in Bledsoe County, Tennessee. This unit was included in the
geographical area occupied by the species at the time of listing.
Almost 8.9 km (5.5 mi), or 100 percent, of this area is privately owned
except for that small amount that is publicly owned by Bledsoe County
in the form of bridge crossings and road easements.
This unit contains stable headwater streams (PCE 1) that are
relatively silt-free, contain cobble and slab-rock boulder substrates
with canopy cover

[[Page 63389]]

(PCE 2), and surface flows that are maintained year round (PCE 3). Such
characteristics are necessary for reproductive and sheltering
requirements of laurel dace. Water quality within this unit is also
characterized by moderate temperatures, relatively high dissolved
oxygen concentrations, moderate pH, and low levels of pollutants (PCE
4), which support abundant populations of aquatic macroinvertebrates
that serve as prey items for laurel dace (PCE 5).
Various activities in or adjacent to these areas of proposed
critical habitat may affect one or more of the physical and biological
features. For example, features in this proposed critical habitat
designation may require special management due to threats posed by
resource extraction (coal and gravel mining, silviculture, natural gas
and oil exploration activities), agricultural activities (row crops and
livestock), lack of adequate riparian buffers, construction and
maintenance of State and county roads, nonpoint source pollution
arising from a wide variety of human activities, and canopy loss caused
by infestations of the hemlock wooly adelgid. These threats are in
addition to random effects of drought, floods, or other natural
phenomena.
Unit 4: Cupp Creek, Bledsoe County, Tennessee
Proposed Unit 4 includes 5.0 km (3.1 mi) of Cupp Creek from its
headwaters downstream to its confluence with an unnamed tributary in
Bledsoe County, Tennessee. This unit was included in the geographical
area occupied by the species at the time of listing. Almost 4.9 km (3.0
mi), or 100 percent, of this area is privately owned except for that
small amount that is publicly owned by Bledsoe County in the form of
bridge crossings and road easements.
This unit contains stable headwater streams (PCE 1) that are
relatively silt-free; contain cobble and slab-rock boulder substrates
with canopy cover (PCE 2), and surface flows that are maintained year
round (PCE 3). Such characteristics are necessary for reproductive and
sheltering requirements of laurel dace. Water quality within this unit
is also characterized by moderate temperatures, relatively high
dissolved oxygen concentrations, moderate pH, and low levels of
pollutants (PCE 4), which support abundant populations of aquatic
macroinvertebrates that serve as prey items for laurel dace (PCE 5).
Various activities in or adjacent to these areas of proposed
critical habitat may affect one or more of the physical and biological
features. For example, features in this proposed critical habitat
designation may require special management due to threats posed by
resource extraction (coal and gravel mining, silviculture, natural gas
and oil exploration activities), agricultural activities (row crops and
livestock), lack of adequate riparian buffers, construction and
maintenance of State and county roads, nonpoint source pollution
arising from a wide variety of human activities, and canopy loss caused
by infestations of the hemlock wooly adelgid. These threats are in
addition to random effects of drought, floods, or other natural
phenomena.
Unit 5: Horn Branch, Bledsoe County, Tennessee
Proposed Unit 5 includes 4.0 km (2.5 mi) of Horn Branch from its
headwaters downstream to its confluence with Rock Creek in Bledsoe
County, Tennessee. This unit was included in the geographical area
occupied by the species at the time of listing. Almost 3.9 km (2.4 mi),
or 100 percent, of this area is privately owned except for that small
amount that is publicly owned by Bledsoe County in the form of bridge
crossings and road easements.
This unit contains stable headwater streams (PCE 1) that are
relatively silt-free, contain cobble and slab-rock boulder substrates
with canopy cover (PCE 2), and surface flows that are maintained year
round (PCE 3). Such characteristics are necessary for reproductive and
sheltering requirements of laurel dace. Water quality within this unit
is also characterized by moderate temperatures, relatively high
dissolved oxygen concentrations, moderate pH, and low levels of
pollutants (PCE 4), which support abundant populations of aquatic
macroinvertebrates that serve as prey items for laurel dace (PCE 5).
Various activities in or adjacent to these areas of proposed
critical habitat may affect one or more of the physical and biological
features. For example, features in this proposed critical habitat
designation may require special management due to threats posed by
resource extraction (coal and gravel mining, silviculture, natural gas
and oil exploration activities), agricultural activities (row crops and
livestock), lack of adequate riparian buffers, construction and
maintenance of State and county roads, nonpoint source pollution
arising from a wide variety of human activities, and canopy loss caused
by infestations of the hemlock wooly adelgid. These threats are in
addition to random effects of drought, floods, or other natural
phenomena.
Unit 6: Soddy Creek, Sequatchie and Bledsoe Counties, Tennessee
Proposed Unit 6 includes 8.4 km (5.2 mi) of Soddy Creek from its
headwaters in Sequatchie County, downstream to its confluence with
Harvey Creek in Sequatchie County, Tennessee. This unit was included in
the geographical area occupied by the species at the time of listing.
Almost 8.3 km (5.1 mi), or 100 percent, of this area is privately owned
except for a small amount that is publicly owned by Sequatchie and
Bledsoe Counties in the form of bridge crossings and road easements.
This unit contains stable headwater streams (PCE 1) that are
relatively silt-free, contain cobble and slab-rock boulder substrates
with canopy cover (PCE 2), and surface flows that are maintained year
round (PCE 3). Such characteristics are necessary for reproductive and
sheltering requirements of laurel dace. Water quality within this unit
is also characterized by moderate temperatures, relatively high
dissolved oxygen concentrations, moderate pH, and low levels of
pollutants (PCE 4), which support abundant populations of aquatic
macroinvertebrates that serve as prey items for laurel dace (PCE 5).
Various activities in or adjacent to these areas of proposed
critical habitat may affect one or more of the physical and biological
features. For example, features in this proposed critical habitat
designation may require special management due to threats posed by
resource extraction (coal and gravel mining, silviculture, natural gas
and oil exploration activities), agricultural activities (row crops and
livestock), lack of adequate riparian buffers, construction and
maintenance of State and county roads, nonpoint source pollution
arising from a wide variety of human activities, and canopy loss caused
by infestations of the hemlock wooly adelgid. These threats are in
addition to random effects of drought, floods, or other natural
phenomena.

Effects of Critical Habitat Designation

Section 7 Consultation
Section 7(a)(2) of the Act requires Federal agencies, including the
Service, to ensure that any action they fund, authorize, or carry out
is not likely to jeopardize the continued existence of any endangered
species or threatened species or result in the destruction or adverse
modification of designated critical habitat of such species. In
addition, section 7(a)(4) of the Act requires Federal agencies to
confer with the Service on any agency action which is likely to
jeopardize the continued

[[Page 63390]]

existence of any species proposed to be listed under the Act or result
in the destruction or adverse modification of proposed critical
habitat.
Decisions by the 5th and 9th Circuits Court of Appeals have
invalidated our regulatory 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 et al., 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 proposed Federal action, the affected
critical habitat would continue to serve its intended conservation role
for the species.
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. Examples of actions that are subject to the
section 7 consultation process are actions on State, tribal, local, or
private lands that require 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 the Service under section 10
of the Act) or that involve some other Federal action (such as funding
from the Federal Highway Administration, Federal Aviation
Administration, or the Federal Emergency Management Agency). Federal
actions not affecting listed species or critical habitat, and actions
on State, tribal, local, or private lands that are not federally funded
or authorized do not require section 7 consultation.
As a result of section 7 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 provide reasonable and
prudent alternatives to the project, if any are identifiable, that
would avoid the likelihood of jeopardy or destruction or adverse
modification of critical habitat. 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,
(3) Are economically and technologically feasible, and
(4) Would, in the Director's opinion, avoid the likelihood of
jeopardizing the continued existence of the listed species or avoid the
likelihood of 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 sometimes may 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.
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 species. 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 may affect critical habitat, when carried out,
funded, or authorized by a Federal agency, should result in
consultation for the Cumberland darter, rush darter, yellowcheek
darter, chucky madtom, and laurel dace. These activities include, but
are not limited to:
(1) Actions that would alter the geomorphology of stream habitats.
Such activities could include, but are not limited to, instream
excavation or dredging, impoundment, channelization, road and bridge
construction, mining, and discharge of fill materials. These activities
could cause aggradation or degradation of the channel bed elevation or
significant bank erosion, result in entrainment or burial of these
fishes, and cause other direct or cumulative adverse effects to these
species.
(2) Actions that would significantly alter the existing flow regime
or water quantity. Such activities could include, but are not limited
to, impoundment, water diversion, water withdrawal, and hydropower
generation. These activities could eliminate or reduce the habitat
necessary for growth and reproduction of these fishes.
(3) Actions that would significantly alter water quantity or water
quality (for example, temperature, pH, contaminants, and excess
nutrients). Such activities could include, but are not limited to,
hydropower discharges, or 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 these fishes and result in direct or cumulative
adverse effects to the species.
(4) Actions that would significantly alter stream bed material
composition and quality by increasing sediment deposition or
filamentous algal growth. Such activities could include, but are not
limited to, construction projects, livestock grazing, timber harvest,
off-road vehicle use, 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 these fishes by causing excessive sedimentation or
nutrification.

Exemptions

Application of Section 4(a)(3) of the Act
The Sikes Act Improvement Act of 1997 (Sikes Act) (16 U.S.C. 670a)

[[Page 63391]]

required each military installation that includes land and water
suitable for the conservation and management of natural resources to
complete an integrated natural resources 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.
The National Defense Authorization Act for Fiscal Year 2004 (Pub.
L. 108-136) amended the Act to limit areas eligible for designation as
critical habitat. Specifically, section 4(a)(3)(B)(i) of the Act (16
U.S.C. 1533(a)(3)(B)(i)) now provides: ``The Secretary shall not
designate as critical habitat any lands or other geographical areas
owned or controlled by the Department of Defense, or designated for its
use, that are subject to an integrated natural resources management
plan prepared under section 101 of the Sikes Act (16 U.S.C. 670a), if
the Secretary determines in writing that such plan provides a benefit
to the species for which critical habitat is proposed for
designation.''
There are no Department of Defense lands with a completed INRMP
within the proposed critical habitat designation.

Exclusions

Application of Section 4(b)(2) of the Act
Section 4(b)(2) of the Act states that the Secretary shall
designate and 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 data available, that the failure to designate
such area as critical habitat will result in the extinction of the
species. 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, impacts on
national security, 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 the analysis indicates that the benefits of exclusion
outweigh the benefits of inclusion, the Secretary may exercise his
discretion to 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 area as critical habitat. In order to
consider economic impacts, we are preparing an analysis of the economic
impacts of the proposed critical habitat designation and related
factors.
We will announce the availability of the draft economic analysis as
soon as it is completed, at which time we will seek public review and
comment. At that time, copies of the draft economic analysis will be
available for downloading from the Internet at http://www.regulations.gov, or by contacting the Tennessee Ecological Services
Field Office directly (see FOR FURTHER INFORMATION CONTACT section).
During the development of a final designation, we will consider
economic impacts, public comments, and other new information, and areas
may be excluded from the final critical habitat designation under
section 4(b)(2) of the Act and our implementing regulations at 50 CFR
424.19.

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 proposal, we have
determined that the lands within the proposed designation of critical
habitat for the Cumberland darter, rush darter, yellowcheek darter,
chucky madtom, and laurel dace are not owned or managed by the
Department of Defense, and, therefore, we anticipate no impact on
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 the
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 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 proposal, we have determined that there is one
conservation agreement that exists for the yellowcheek darter in the
upper Little Red River, Arkansas. The yellowcheek darter is currently
covered under a joint Candidate Conservation Agreement with Assurances
(CCAA) in the upper Little Red River watershed in Arkansas along with
the endangered speckled pocketbook mussel. The CCAA will convert to a
SHA, as the yellowcheek darter is listed as endangered and would be
covered by an enhancement of survival permit, which expires January 1,
2044. We welcome comments pertaining to designation of critical habitat
in the CCAA coverage area. Designation of critical habitat for the
yellowcheek darter may be also beneficial to the federally endangered
speckled pocketbook mussel given that extensive range overlap and water
quality requirements occurs between the two species.
There are no HCPs or other management plans for the Cumberland
darter, rush darter, yellowcheek darter, chucky madtom, or laurel dace,
and the proposed designation does not include any tribal lands or trust
resources. We anticipate no impact on tribal lands, partnerships, or
HCPs from this proposed critical habitat designation.

Peer Review

In accordance with our joint policy published in the Federal
Register on July 1, 1994 (59 FR 34270), we will seek the expert
opinions of at least 1 to 2 appropriate and independent specialists for
each species regarding this proposed

[[Page 63392]]

rule. The purpose of peer review is to ensure that our critical habitat
designation is based on scientifically sound data, assumptions, and
analyses. We will invite these peer reviewers to comment during this
public comment period on our specific assumptions and conclusions in
this proposed designation of critical habitat.
We will consider all comments and information we receive during
this comment period on this proposed rule during our preparation of a
final determination. Accordingly, the final decision may differ from
this proposal.

Public Hearings

Section 4(b)(5) of the Act provides for one or more public hearings
on this proposal, if requested. Requests must be received within 45
days after the date of publication of this proposed rule in the Federal
Register. Such requests must be sent to the Tennessee Ecological
Services Field Office (see FOR FURTHER INFORMATION CONTACT). We will
schedule public hearings on this proposal, if any are requested, and
announce the dates, times, and places of those hearings, as well as how
to obtain reasonable accommodations, in the Federal Register and local
newspapers at least 15 days before the hearing.

Required Determinations

Regulatory Planning and Review-- Executive Order 12866
The Office of Management and Budget (OMB) has determined that this
rule is not significant and has not reviewed this proposed rule under
Executive Order 12866 (Regulatory Planning and Review). 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 (5 U.S.C. 801 et seq.), whenever an agency must
publish a notice of rulemaking for any proposed or final rule, it must
prepare and make available for public comment a regulatory flexibility
analysis that describes the effects of the rule on small entities
(small businesses, small organizations, and small government
jurisdictions). However, no regulatory flexibility analysis is required
if the head of the agency certifies the rule will not have a
significant economic impact on a substantial number of small entities.
The SBREFA amended RFA to require Federal agencies to provide a
certification statement of the factual basis for certifying that the
rule will not have a significant economic impact on a substantial
number of small entities.
At this time, we lack the available economic information necessary
to provide an adequate factual basis for the required RFA finding.
Therefore, we defer the RFA finding until completion of the draft
economic analysis prepared under section 4(b)(2) of the Act and
Executive Order 12866. This draft economic analysis will provide the
required factual basis for the RFA finding. Upon completion of the
draft economic analysis, we will announce availability of the draft
economic analysis of the proposed designation in the Federal Register
and reopen the public comment period for the proposed designation. We
will include with this announcement, as appropriate, an initial
regulatory flexibility analysis or a certification that the rule will
not have a significant economic impact on a substantial number of small
entities accompanied by the factual basis for that determination. On
the basis of the development of our proposal, we have identified
certain sectors and activities that may potentially be affected by a
designation of critical habitat for these five fishes. These sectors
include coal, oil, and natural gas operations; timber operations;
industrial development; urbanization; and the accompanying
infrastructure associated with such projects such as road, storm water
drainage, and bridge and culvert construction and maintenance.
We have concluded that deferring the RFA finding until completion
of the draft economic analysis is necessary to meet the purposes and
requirements of the RFA. Deferring the RFA finding in this manner will
ensure that we make a sufficiently informed determination based on
adequate economic information and provide the necessary opportunity for
public comment.
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 the designation of this proposed
critical habitat to significantly affect energy supplies, distribution,
or use. Natural gas and oil exploration and development activities
occur or could potentially occur in the Cumberland darter (13 of 15
critical habitat units) and Yellowcheek darter (4 of 4 critical habitat
units) proposed critical habitat. However, compliance with State
regulatory requirements or voluntary BMPs would be expected to minimize
impacts of natural gas and oil exploration and development in the areas
of proposed critical habitat for both species. The measures for natural
gas and oil exploration and development are generally not considered a
substantial cost compared with overall project costs and are already
being implemented by oil and gas companies.
Coal mining occurs or could potentially occur in 11 of the 15
proposed critical habitat units for the Cumberland darter. Incidental
take for listed species associated with surface coal mining activities
is currently covered under a programmatic, non-jeopardy biological
opinion between the Office of Surface Mining and the Service completed
in 1996 (Service 1996, entire). The biological opinion covers existing,
proposed, and future endangered and threatened species that may be
affected by the implementation and administration of surface coal
mining programs under the Surface Mining Control and Reclamation Act of
1977. Through its analysis, the Service concluded that the proposed
action (surface coal mining and reclamation activities) was not likely
to jeopardize the continued existence of any threatened, endangered, or
proposed species or result in adverse modification of designated or
proposed critical habitat. Therefore, this action is not a significant
energy action, and no Statement of Energy Effects is required. However,
we will further evaluate this issue as we conduct our economic
analysis, and review and revise this assessment as warranted.
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,

[[Page 63393]]

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; Aid to Families
with Dependent Children 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 destroy or adversely modify critical
habitat under section 7. 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
critical habitat shift the costs of the large entitlement programs
listed above onto State governments.
(2) This rule would not significantly or uniquely affect small
governments. The lands being proposed for Cumberland darter critical
habitat designation are owned by the DBNF and private landowners. The
lands being proposed for rush darter critical habitat designation are
mostly owned by private landowners; a small portion of the City of
Pinson; and road easements in Etowah, Jefferson, and Winston Counties,
Alabama. The lands being proposed for yellowcheek darter are mostly
owned by private landowners; a small portion are owned by the State of
Arkansas (Cherokee Wildlife Management Area and road easements); and
road easements in Cleburne, Searcy, Stone, and Van Buren Counties,
Arkansas. Most of the lands being proposed for chucky madtom are
private, a small portion consisting of road easements in Greene County,
Tennessee. Most of the lands being proposed for laurel dace are located
on private lands, a small portion consisting of road easements in
Bledsoe, Rhea, and Sequatchie Counties, Tennessee. Therefore, a Small
Government Agency Plan is not required. However, we will further
evaluate this issue as we conduct our economic analysis, and review and
revise this assessment if appropriate.
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 Cumberland darter, rush darter, yellowcheek
darter, chucky madtom, and laurel dace in a takings implications
assessment. Critical habitat designation does not affect landowner
actions that do not require Federal funding or permits, nor does it
preclude development of habitat conservation programs or issuance of
incidental take permits to permit actions that do require Federal
funding or permits to go forward. The takings implications assessment
concludes that this designation of critical habitat for these five
species does not pose significant takings implications for lands within
or affected by the designation.
Federalism--Executive Order 13132
In accordance with Executive Order 13132 (Federalism), this
proposed rule does not have significant Federalism effects. A
Federalism summary impact statement is not required. In keeping with
Department of the Interior and Department of Commerce policy, we
requested information from, and coordinated development of, this
proposed critical habitat designation with appropriate State resource
agencies in Kentucky, Alabama, Arkansas, and Tennessee. The designation
of critical habitat in areas currently occupied by these five fishes
may impose nominal additional regulatory restrictions to those
currently in place and, therefore, may have little incremental impact
on State and local governments and their activities. The designation
may have some benefit to these governments because the areas that
contain the physical and biological features essential to the
conservation of the species are more clearly defined, and the elements
of the features of the habitat necessary to the conservation of the
species are specifically identified. This information does not alter
where and what federally sponsored activities may occur. However, it
may assist these local governments in long-range planning (rather than
having them wait 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) 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 Office of the Solicitor has determined that the rule does not
unduly burden the judicial system and that it meets the requirements of
sections 3(a) and 3(b)(2) of the Order. We have proposed designating
critical habitat in accordance with the provisions of the Act. This
proposed rule uses standard property descriptions and identifies the
elements of physical and biological features essential to the
conservation of the Cumberland darter, rush darter, yellowcheek darter,
chucky madtom, and laurel dace within the designated areas to assist
the public in understanding the habitat needs of the species.

[[Page 63394]]

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 of 1995 (44
U.S.C. 3501 et seq.). This rule will not impose recordkeeping or
reporting requirements on State or local governments, individuals,
businesses, or organizations. An agency may not conduct or sponsor, and
a person is not required to respond to, a collection of information
unless it displays a currently valid OMB control number.
National Environmental Policy Act (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)).
Clarity of the Rule
We are required by Executive Orders 12866 and 12988 and by the
Presidential Memorandum of June 1, 1998, to write all rules in plain
language. This means that each rule we publish must:
(1) Be logically organized;
(2) Use the active voice to address readers directly;
(3) Use clear language rather than jargon;
(4) Be divided into short sections and sentences; and
(5) Use lists and tables wherever possible.
If you feel that we have not met these requirements, send us
comments by one of the methods listed in the ADDRESSES section. To
better help us revise this rule, your comments should be as specific as
possible. For example, you should tell us the numbers of the sections
or paragraphs that are unclearly written, which sections or sentences
are too long, the sections where you feel lists or tables would be
useful, etc.
Government-to-Government Relationship With Tribes
In accordance with the President's memorandum of April 29, 1994
(Government-to-Government Relations with Native American Tribal
Governments; 59 FR 22951), Executive Order 13175 (Consultation and
Coordination With Indian Tribal Governments), and the Department of
Interior's manual at 512 DM 2, we readily acknowledge our
responsibility to communicate meaningfully with recognized Federal
Tribes on a government-to-government basis. In accordance with
Secretarial Order 3206 of June 5, 1997 (American Indian Tribal Rights,
Federal-Tribal Trust Responsibilities, and the Endangered Species Act),
we readily acknowledge our responsibilities to work directly with
tribes in developing programs for healthy ecosystems, to acknowledge
that tribal lands are not subject to the same controls as Federal
public lands, to remain sensitive to Indian culture, and to make
information available to tribes.
We determined that there are no tribal lands that were occupied by
the Cumberland darter, rush darter, yellowcheek darter, chucky madtom,
or laurel dace at the time of listing that contain the features
essential for conservation of these species, and no tribal lands
unoccupied by these five species that are essential for the
conservation of these species. Therefore, we are not proposing to
designate critical habitat for these five species on tribal lands.

References Cited

A complete list of references cited in this proposed rulemaking is
available on the Internet at http://www.regulations.gov and upon
request from the Tennessee Ecological Services Field Office (see FOR
FURTHER INFORMATION CONTACT).

Author(s)

The primary authors of this package are the staff members of the
Arkansas, Kentucky, Mississippi, and Tennessee Ecological Services
Field Offices.

List of Subjects in 50 CFR Part 17

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

Proposed Regulation Promulgation

Accordingly, we propose to amend part 17, subchapter B of chapter
I, title 50 of the Code of Federal Regulations, as set forth below:

PART 17--ENDANGERED AND THREATENED WILDLIFE AND PLANTS

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

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

2. In Sec. 17.11(h) revise the entries for ``Dace, laurel,''
``Darter, Cumberland,'' ``Darter, rush,'' ``Darter, yellowcheek,'' and
``Madtom, chucky'' 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 When Critical Special
Historic range endangered or Status listed habitat rules
Common name Scientific name threatened
--------------------------------------------------------------------------------------------------------------------------------------------------------

* * * * * * *
Fishes

* * * * * * *
Dace, laurel..................... Chrosomus saylori... U.S.A (TN).......... Entire.............. E 791 17.95(e) NA

* * * * * * *
Darter, Cumberland............... Etheostoma susanae.. U.S.A. (KY, TN)..... Entire.............. E 791 17.95(e) NA

* * * * * * *
Darter, rush..................... Etheostoma U.S.A. (AL)......... Entire.............. E 791 17.95(e) NA
phytophilum.

[[Page 63395]]

* * * * * * *
Darter, yellowcheek.............. Etheostoma moorei... U.S.A. (AR)......... Entire.............. E 791 17.95(e) NA

* * * * * * *
Madtom, chucky................... Noturus crypticus... U.S.A. (TN)......... Entire.............. E 791 17.95(e) NA

* * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------

3. In Sec. 17.95, amend paragraph (e) by adding entries for
``Laurel Dace (Chrosomus saylori)'', ``Cumberland Darter (Etheostoma
susanae)'', ``Rush Darter (Etheostoma phytophilum)'', ``Yellowcheek
Darter (Etheostoma moorei)'', and ``Chucky madtom (Noturus crypticus)''
in the same alphabetical order that those species appear in the table
at Sec. 17.11(h), to read as follows:

Sec. 17.95 Critical habitat--fish and wildlife.

* * * * *
(e) Fishes.
* * * * *
Laurel Dace (Chrosomus saylori)
(1) Critical habitat units are depicted for Bledsoe, Rhea, and
Sequatchie Counties, Tennessee, on the maps below.
(2) Within these areas, the primary constituent elements of the
physical and biological features essential to the conservation of the
laurel dace consist of five components:
(i) Pool and run habitats of geomorphically stable first- to
second-order streams with riparian vegetation; cool, clean, flowing
water; shallow depths; and connectivity between spawning, foraging, and
resting sites to promote gene flow throughout the species' range.
(ii) Stable bottom substrates composed of relatively silt-free
cobble and slab-rock boulder substrates with undercut banks and canopy
cover. Relatively silt-free is defined for the purpose of this rule as
silt or fine sand within interstitial spaces of substrates in amounts
low enough to have minimal impact to the species.
(iii) An instream flow regime (magnitude, frequency, duration, and
seasonality of discharge over time) sufficient to provide permanent
surface flows, as measured during years with average rainfall, and
maintain benthic habitats utilized by the species.
(iv) Adequate water quality characterized by moderate stream
temperatures, acceptable dissolved oxygen concentrations, moderate pH,
and low levels of pollutants. Adequate water quality is defined for the
purpose of this rule as the quality necessary for normal behavior,
growth, and viability of all life stages of the laurel dace.
(v) Prey base of aquatic macroinvertebrates, including midge
larvae, caddisfly larvae, and stonefly larvae.
(3) Critical habitat does not include manmade structures (such as
buildings, aqueducts, runways, roads, and other paved areas) and the
land on which they are located existing within the legal boundaries on
the effective date of this rule.
(4) Critical habitat unit maps. Data layers defining map units were
created on a base of USGS digital ortho-photo quarter-quadrangles, and
critical habitat units were then mapped using Tennessee State Plane,
Lambert Conformal Conic Projection, units feet. Upstream and downstream
limits were then identified by longitude and latitude using decimal
degrees and projected in WGS 1984.
(5) Note: Overview of Critical Habitat Locations for Laurel Dace in
Tennessee follows:

[[Page 63396]]

[GRAPHIC] [TIFF OMITTED] TP12OC11.000

(6) Units 1, 2, and 3: Bumbee Creek and Youngs Creek, Bledsoe and
Rhea Counties, Tennessee; and Moccasin Creek, Bledsoe County,
Tennessee.
(i) Unit 1 includes 8.0 km (5.0 mi) of Bumbee Creek from its
headwaters at (35.68933, -84.99763) in Bledsoe County, downstream to
its confluence with Mapleslush Branch (35.66833, -84.94714) in Rhea
County, Tennessee.
(ii) Unit 2 includes 7.8 km (4.8 mi) of Youngs Creek from its
headwaters at (35.68745, -85.00261) and (35.67015, -85.00935) in
Bledsoe County, downstream to its confluence with Moccasin Creek
(35.65003, -84.98665) in Rhea County, Tennessee.
(iii) Unit 3 includes 9.0 km (5.6 mi) of Moccasin Creek from its
headwaters at (35.71313, -85.02109) and (35.71179, -85.02662)
downstream to 0.1 km (0.6 mi) below its confluence with Lick Creek
(35.07462, -85.02876) in Bledsoe County, Tennessee.
(iv) Note: Map of Units 1 (Bumbee Creek), 2 (Youngs Creek), and 3
(Moccasin Creek) of critical habitat for the laurel dace follows:

[[Page 63397]]

[GRAPHIC] [TIFF OMITTED] TP12OC11.001

(7) Unit 4: Cupp Creek, Bledsoe County, Tennessee.
(i) Unit 4 includes 5.0 km (3.1 mi) of Cupp Creek from its
headwaters at (35.49533, -85.19120) downstream to its confluence with
an unnamed tributary (35.48597, -85.15334) in Bledsoe County,
Tennessee.
(ii) Note: Map of Unit 4 (Cupp Creek) of critical habitat for the
laurel dace follows:

[[Page 63398]]

[GRAPHIC] [TIFF OMITTED] TP12OC11.002

(8) Unit 5: Horn Branch, Bledsoe County, Tennessee.
(i) Unit 5 includes 4.0 km (2.5 mi) of Horn Branch from its
headwaters (35.43605, -85.25560) downstream to its confluence with Rock
Creek (35.40999, -85.23731), Bledsoe County, Tennessee.
(ii) Note: Map of Unit 5 (Horn Branch) of critical habitat for the
laurel dace follows:

[[Page 63399]]

[GRAPHIC] [TIFF OMITTED] TP12OC11.003

(9) Unit 6: Soddy Creek, Sequatchie and Bledsoe Counties,
Tennessee.
(i) Unit 6 includes 8.4 km (5.2 mi) of Soddy Creek from its
headwaters at (35.39107, -85.28803) and (35.37926, -85.28331),
Sequatchie County, downstream to its confluence with Harvey Creek
(35.35422, -85.25133), in Sequatchie County, Tennessee.
(ii)Note: Map of Unit 6 (Soddy Creek) of critical habitat for the
laurel dace follows:

[[Page 63400]]

[GRAPHIC] [TIFF OMITTED] TP12OC11.004

* * * * *
Cumberland Darter (Etheostoma susanae)
(1) Critical habitat units are depicted for McCreary and Whitley
Counties, Kentucky, and Campbell and Scott Counties, Tennessee, on the
maps below.
(2) Within these areas, the primary constituent elements of the
physical and biological features essential to the conservation of the
Cumberland darter consist of five components:
(i) Shallow pools and gently flowing runs of geomorphically stable
second- to fourth-order streams with connectivity between spawning,
foraging, and resting sites to promote gene flow throughout the
species' range.
(ii) Stable bottom substrates composed of relatively silt-free sand
and sand-covered bedrock, boulders, large cobble, woody debris, or
other cover.
(iii) An instream flow regime (magnitude, frequency, duration, and
seasonality of discharge over time) sufficient to provide permanent
surface flows, as measured during years with average rainfall, and
maintain benthic habitats utilized by the species.
(iv) Adequate water quality characterized by moderate stream
temperatures, acceptable dissolved oxygen concentrations, moderate pH,
and low levels of pollutants. Adequate water quality is defined for the
purpose of this rule as the quality necessary for normal behavior,
growth, and viability of all life stages of the Cumberland darter.
(v) Prey base of aquatic macroinvertebrates, including midge
larvae, mayfly nymphs, caddisfly larvae, and microcrustaceans.
(3) Critical habitat does not include manmade structures (such as
buildings, aqueducts, bridges, runways, roads, and other paved areas)
and the land on which they are located existing within the legal
boundaries on the effective date of this rule.
(4) Critical habitat map units. Data layers defining map units were
created on a base of USGS digital ortho-photo quarter-quadrangles, and
critical habitat units were then mapped using Tennessee State Plane,
Lambert Conformal Conic Projection, units feet. Upstream and downstream
limits were then identified by longitude and latitude using decimal
degrees and projected in WGS 1984.
Note: Overview of Critical Habitat Locations for the Cumberland
Darter in Tennessee and Kentucky follows:
BILLING CODE 4310-55-P

[[Page 63401]]

[GRAPHIC] [TIFF OMITTED] TP12OC11.005

(6) Units 1 and 2: Bunches Creek and Calf Pen Fork, Whitley County,
Kentucky.
(i) Unit 1 includes 5.3 km (3.3 mi) of Bunches Creek from the
Seminary Branch and Amos Falls Branch confluence (36.82754, -84.26958)
downstream to its confluence with the Cumberland River (36.83270, -
84.31787).
(ii) Unit 2 includes 2.9 km (1.8 mi) of Calf Pen Fork from its
confluence with Polly Branch (36.82955, -84.30191) downstream to its
confluence with Bunches Creek (36.82935, -83.30215).
(iii) Note: Map of Units 1 (Bunches Creek) and 2 (Calf Pen Fork) of
critical habitat for the Cumberland darter follows:

[[Page 63402]]

[GRAPHIC] [TIFF OMITTED] TP12OC11.006

(7) Unit 3: Youngs Creek, Whitley County, Kentucky.
(i) Unit 3 includes 7.4 km (4.6 mi) of Youngs Creek from Brays
Chapel Road (36.83902, -84.22657) downstream to its confluence with the
Cumberland River (36.81601, -84.21902).
(ii)Note: Map of Unit 3 (Youngs Creek) of critical habitat for the
Cumberland darter follows:

[[Page 63403]]

[GRAPHIC] [TIFF OMITTED] TP12OC11.007

(8) Units 4, 5, 6, 7, and 8: Barren Fork, Indian Creek, Cogur Fork,
Kilburn Fork, and Laurel Fork, McCreary County, Kentucky.
(i) Unit 4 includes 6.3 km (3.9 mi) of Barren Fork from its
confluence with an unnamed tributary (36.76642, -84.46574) downstream
to its confluence with Indian Creek (36.78652, -84.41622).
(ii) Unit 5 includes 4.0 km (2.5 mi) of Indian Creek from its
confluence with an unnamed tributary (36.79511, -84.45084) downstream
to its confluence with Barren Fork (36.78652, -84.41622).
(iii) Unit 6 includes 8.6 km (5.4 mi) of Cogur Fork from its
confluence with an unnamed tributary (36.81645, -84.46389) downstream
to its confluence with Indian Creek (36.79965, -84.39775).
(iv) Unit 7 includes 4.6 km (2.9 mi) of Kilburn Fork from its
confluence with an unnamed tributary (36.82518, -84.41411) downstream
to its confluence with Laurel Fork (36.81527, -84.38298).
(v) Unit 8 includes 3.5 km (2.2 mi) of Laurel Fork from its
confluence with Toms Fork (36.83115, -84.38582) downstream to its
confluence with Indian Creek (36.80482, -84.37966).
(vi) Note: Map of Units 4 (Barren Fork), 5 (Indian Creek), 6 (Cogur
Fork), 7 (Kilburn Fork), and 8 (Laurel Fork) of critical habitat for
the Cumberland darter follows:

[[Page 63404]]

[GRAPHIC] [TIFF OMITTED] TP12OC11.008

(9) Units 9, 10, and 11: Laurel Creek, Elisha Branch, and Jenneys
Branch, McCreary County, Kentucky.
(i) Unit 9 includes 9.4 km (5.9 mi) of Laurel Creek from Laurel
Creek Reservoir (36.69028, -84.44313) downstream to its confluence with
Jenneys Branch (36.73485, -84.39951).
(ii) Unit 10 includes 2.1 km (1.3 mi) of Elisha Branch from its
confluence with an unnamed tributary (36.70132, -84.40843) downstream
to its confluence with Laurel Creek.
(iii) Unit 11 includes 3.1 km (1.9 mi) of Jenneys Branch from its
confluence with an unnamed tributary (36.73701, -84.43159) downstream
to its confluence with Laurel Creek.
(iv) Note: Map of Units 9 (Laurel Creek), 10 (Elisha Branch), and
11 (Jenneys Branch) of critical habitat for the Cumberland darter
follows:

[[Page 63405]]

[GRAPHIC] [TIFF OMITTED] TP12OC11.009

(10) Unit 12: Wolf Creek, Whitley County, Kentucky.
(i) Unit 12 includes 6.3 km (3.9 mi) of Wolf Creek from its
confluence with Sheep Creek downstream to its intersection with Wolf
Creek River Road.
(ii) Note: Map of Unit 12 (Wolf Creek) of critical habitat for the
Cumberland darter follows:

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(11) Units 13, 14, and 15: Jellico Creek, Rock Creek, and Capuchin
Creek, McCreary and Whitley Counties, Kentucky, and Campbell and Scott
Counties, Tennessee.
(i) Unit 13 includes 11.5 km (7.2 mi) of Jellico Creek from its
confluence with Scott Branch, Scott County, Tennessee, downstream to
its confluence with Capuchin Creek, McCreary County, Kentucky.
(ii) Unit 14 includes 6.1 km (3.8 mi) of Rock Creek from its
confluence with Sid Anderson Branch downstream to its confluence with
Jellico Creek.
(iii) Unit 15 includes 4.2 km (2.6 mi) of Capuchin Creek from its
confluence with Hatfield Creek downstream to its confluence with
Jellico Creek.
(iv) Note: Map of Units 13 (Jellico Creek), 14 (Rock Creek), and 15
(Capuchin Creek) of critical habitat for the Cumberland darter follows:

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* * * * *
Rush Darter (Etheostoma phytophilum)
(1) The critical habitat units are depicted for Jefferson, Winston,
and Etowah Counties in Alabama, on the maps below.
(2) Within these areas, the primary constituent elements of the
physical and biological features essential to the conservation of the
rush darter consist of five components:
(i) Springs and spring-fed reaches of geomorphically stable,
relatively low-gradient, headwater streams with appropriate habitat
(bottom substrates) to maintain essential riffles, runs, and pools;
emergent vegetation in shallow water and on the margins of small
streams and spring runs; cool, clean, flowing water; and connectivity
between spawning, foraging, and resting sites to promote gene flow
throughout the species' range.
(ii) Stable bottom substrates consisting of a combination of sand
with silt, muck, gravel, or bedrock and adequate emergent vegetation in
shallow water on the margins of small permanent and ephemeral streams
and spring runs.
(iii) Instream flow with moderate velocity and a continuous daily
discharge that allows for a longitudinal connectivity regime inclusive
of both surface runoff and groundwater sources (springs and seepages)
and exclusive of flushing flows caused by stormwater runoff.
(iv) Water quality with temperature not exceeding 26.7 [deg]C (80
[deg]F), dissolved oxygen 6.0 milligrams or greater per liter,
turbidity of an average monthly reading of 10 Nephelometric Turbidity
Units (NTU; units used to measure sediment discharge) and 15mg/L Total
Suspended Solids (TSS; measured as mg/L of sediment in water) or less;
and a specific conductance (ability of water to conduct an electric
current, based on dissolved solids in the water) of no greater than 225
micro Siemens per centimeter at 26.7 [deg]C (80 [deg]F).
(v) Prey base of aquatic macroinvertebrates, including midge
larvae, mayfly nymphs, blackfly larvae, beetles, and microcrustaceans.
(3) Critical habitat does not include manmade structures (such as
buildings, aqueducts, runways, roads, and other paved areas) and the
land on which they are located existing within the legal boundaries on
the effective date of this rule.
(4) Critical habitat map units. Data layers defining map units were
created on a base of USGS digital ortho-photo quarter-quadrangles, and
critical habitat units were then mapped using Universal Transverse
Mercator (UTM) Zone 16N, NAD1983, coordinates. Upstream and downstream
limits were then identified by longitude and latitude using decimal
degrees and projected in WGS 1984.
(5) Note: Overview of Critical Habitat Locations for the Rush
Darter in Alabama follows:

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(6) Units 1, 2, and 3: Beaver Creek, Unnamed Tributary to Beaver
Creek and Highway 79 Spring Site, and Tapawingo or Penny Spring and
Spring Run, Jefferson County, Alabama.
(i) Unit 1 includes 1.0 km (0.62 mi) of Beaver Creek from the
confluence with an unnamed tributary to Beaver Creek, downstream to the
confluence with Turkey Creek.
(ii) Unit 2 includes 4.3 km (2.57 mi) of an unnamed tributary of
Beaver Creek and a spring run. The site begins at the section 1 and 2
(T16S, R2W) line, as taken from the U.S. Geological Survey 7.5
topographical map (Pinson quadrangle), downstream to its confluence
with Dry Creek, and includes a spring run beginning at the springhead
(latitude 33[deg]40'28.15'' N, longitude 86[deg]41'34.81'' W) just
northwest of Old Pinson Road and intersecting with an unnamed tributary
to Beaver Creek on the west side of Highway 79.
(iii) Unit 3 includes 0.63 km (0.39 mi) of spring run, historically
called Tapawingo Plunge, along with 16.5 acres (6.68 ha) of flooded
spring basin making up Penny Springs, located south of Turkey Creek,
north of Bud Holmes Road, east of Tapawingo Trail Road. The east
boundary is at latitude 33[deg]41'56.50'' N and longitude
86[deg]39'55.01'' W: 1.0 km (0.63 mi) west of section line 28 and 29
(T15S, R1W) (U.S. Geological Survey 7.5 topographical map (Pinson
quadrangle)).
(iv) Note: Map of Units 1 (Beaver Creek), 2 (unnamed tributary to
Beaver Creek and Highway 79 Spring Site), and 3 (Tapawingo or Penny
Spring and Spring Run) of critical habitat for the rush darter follows:

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(7) Units 4, 5, and 6: Wildcat Branch, Mill Creek, and Doe Branch,
Winston County, Alabama.
(i) Unit 4 includes 6.63 km (4.12 mi) of Wildcat Branch from the
streams headwaters just east of Winston County Road 29 to the
confluence with Clear Creek.
(ii) Unit 5 includes 5.89 km (3.66 mi) of Mill Creek from the
streams headwaters just east of Winston County Road 195 to the
confluence with Clear Creek.
(iii) Unit 6 includes 4.28 km (2.66 mi) of Doe Branch from the
streams headwaters north and west of section line 23 and 14 (R9W, T11S;
Popular Springs Quadrangle) to the confluence with Wildcat Branch.
(iv) Note: Map of Units 4 (Wildcat Branch), 5 (Mill Creek), and 6
(Doe Branch) of critical habitat for the rush darter follows:

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(8) Units 7 and 8: Little Cove Creek, Cove Spring and Spring Run,
County, Alabama; and Bristow Creek, Etowah County, Alabama.
(i) Unit 7 includes 11.22 km (6.13 mi) of Little Cove Creek and the
Cove Spring run system along with 12.7 acres (5.1 ha) of the spring run
floodplain. Specifically, the Little Cove Creek section (11.01 km (6.00
mi)) is from the intersection of Etowah County Road 179 near the creek
headwaters, downstream to its confluence with the Locust Fork River.
The Cove Spring and spring run section includes 0.21 km (0.13 mi) of
the spring run from the springhead at the West Etowah Water and Fire
Authority pumping station on Cove Spring Road to the confluence with
Little Cove Creek and includes 12.7 acres (5.1 ha) of the spring run
floodplain due south of the pumping facility.
(ii) Unit 8 includes 10.12 km (6.29 mi) of Bristow Creek beginning
from the bridge at Fairview Cove Road, downstream to the confluence
with the Locust Fork River.
(iii) Map of Units 7 (Little Cove Creek, Cove Spring Site) and 8
(Bristow Creek) of critical habitat for the rush darter follows:

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* * * * *
Yellowcheek darter (Etheostoma moorei)
(1) Critical habitat units are depicted for Cleburne, Searcy,
Stone, and Van Buren Counties, Arkansas, on the maps below.
(2) Within these areas, the primary constituent elements of the
physical and biological features essential to the conservation of the
yellowcheek darter consist of five components:
(i) Geomorphically stable second- to fifth-order streams with
riffle habitats; and connectivity between spawning, foraging, and
resting sites to promote gene flow within the species' range where
possible.
(ii) Stable bottom composed of relatively silt-free, moderate to
strong velocity riffles with gravel, cobble, and boulder substrates.
(iii) An instream flow regime (magnitude, frequency, duration, and
seasonality of discharge over time) sufficient to provide permanent
surface flows, as measured during years with average rainfall, and
maintain benthic habitats utilized by the species.
(iv) Adequate water quality characterized by moderate stream
temperatures, acceptable dissolved oxygen concentrations, moderate pH,
and low levels of pollutants. Adequate water quality is defined for the
purpose of this rule as the quality necessary for normal behavior,
growth, and viability of all life stages of the yellowcheek darter.
(v) Prey base of aquatic macroinvertebrates, including blackfly
larvae, stonefly larvae, mayfly nymphs, and caddisfly larvae.
(3) Critical habitat does not include manmade structures (such as
buildings, aqueducts, runways, roads, and other paved areas) and the
land on which they are located existing within the legal boundaries on
the effective date of this rule.
(4) Critical habitat unit maps. Data layers defining map units were
created on a base of USGS digital ortho-photo quarter-quadrangles, and
critical habitat units were then mapped using Universal Transverse
Mercator (UTM) Zone 15N, NAD1983, coordinates. Upstream and downstream
limits were then identified by longitude and latitude using decimal
degrees and projected in WGS 1984.
(5) Note: Overview of Critical Habitat Locations for Yellowcheek
Darter in Arkansas follows:

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(6) Unit 1: Middle Fork Little Red River; Searcy, Stone and Van
Buren Counties, Arkansas.
(i) Unit 1 includes 70.2 km (43.6 mi) of the Middle Fork of the
Little Red River from Searcy County Road 167 approximately 3.4 km (2.1
miles) southwest of Leslie, Arkansas, to a point on the stream 7.7
river km (4.8 mi) downstream (35.665146, -92.259415) of the Arkansas
Highway 9 crossing of the Middle Fork near Shirley, Arkansas
(ii) Note: Map of Unit 1 (Middle Fork) of critical habitat for the
yellowcheek darter follows:

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(7) Unit 2: South Fork Little Red River; Van Buren County,
Arkansas.
(i) Unit 2 includes 31.9 km (19.8 mi) of the South Fork of the
Little Red River from Van Buren County Road 9 three miles north of
Scotland, Arkansas, to a point on the stream (35.573636, -92.427176)
approximately 5.5 river km (3.4 mi) downstream of U.S. Highway 65 in
Clinton, Arkansas, where it becomes inundated by Greers Ferry Lake.
(ii) Note: Map of Unit 2 (South Fork) of critical habitat for the
yellowcheek darter follows:

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(8) Unit 3: Archey Fork Little Red River; Van Buren County,
Arkansas.
(i) Unit 3 includes 27.4 km (17.0 mi) of the Archey Fork of the
Little Red River from its confluence with South Castleberry Creek to
its confluence with the South Fork of the Little Red River near
Clinton, Arkansas.
(ii) Note: Map of Unit 3 (Archey Fork) of critical habitat for the
yellowcheek darter follows:

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(9) Unit 4: Devil's Fork Little Red River (including Turkey Creek
and Beech Fork); Cleburne and Stone Counties, Arkansas.
(i) Unit 4 includes 27.5 km (17.1 mi) of stream from Stone County
Road 21 approximately three miles north of Prim, Arkansas, to a point
on the Devil's Fork approximately 5.1 km (3.2 mi) southeast of Woodrow,
Arkansas, at the point of inundation by Greers Ferry Lake (35.635557, -
92.034003).
(ii) Note: Map of Unit 4 (Devil's Fork) of critical habitat for the
yellowcheek darter follows:

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* * * * *
Chucky Madtom (Noturus crypticus)
(1) Critical habitat units are depicted for Greene County,
Tennessee, on the maps below.
(2) Within these areas, the primary constituent elements of the
physical and biological features essential to the conservation of the
chucky madtom consist of five components:
(i) Gently flowing run and pool reaches of geomorphically stable
streams with cool, clean, flowing water; shallow depths; and
connectivity between spawning, foraging, and resting sites to promote
gene flow throughout the species' range.
(ii) Stable bottom substrates composed of relatively silt-free,
flat gravel, cobble, and slab-rock boulders.
(iii) An instream flow regime (magnitude, frequency, duration, and
seasonality of discharge over time) sufficient to provide permanent
surface flows, as measured during years with average rainfall, and
maintain benthic habitats utilized by the species.
(iv) Adequate water quality characterized by moderate stream
temperatures, acceptable dissolved oxygen concentrations, moderate pH,
and low levels of pollutants. Adequate water quality is defined for the
purpose of this rule as the quality necessary for normal behavior,
growth, and viability of all life stages of the chucky madtom.
(v) Prey base of aquatic macroinvertebrates, including midge
larvae, mayfly nymphs, caddisfly larvae, and stonefly larvae.
(3) Critical habitat does not include manmade structures (such as
buildings, aqueducts, runways, roads, and other paved areas) and the
land on which they are located existing within the legal boundaries on
the effective date of this rule.
(4) Critical habitat unit maps. Data layers defining map units were
created on a base of USGS digital ortho-photo quarter-quadrangles, and
critical habitat units were then mapped using Tennessee State Plane,
Lambert Conformal Conic Projection, units feet. Upstream and downstream
limits were then identified by longitude and latitude using decimal
degrees and projected in WGS 1984.
(5) Note: Overview of Critical Habitat Locations for the Chucky
Madtom in Tennessee follows:

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(6) Little Chucky Creek Unit, Greene County, Tennessee.
(i) Little Chucky Creek Unit includes 31.9 km (19.8 mi) of Little
Chucky Creek from its confluence with an unnamed tributary (36.15810, -
82.88996), downstream to its confluence with the Nolichucky River
(36.12095, -83.10665), at the Greene and Cocke County line, Tennessee.
(ii) Note: Map of Little Chucky Creek Unit of critical habitat for
the chucky madtom follows:

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* * * * *

Dated: September 23, 2011.
Eileen Sobeck,
Acting Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 2011-25655 Filed 10-11-11; 8:45 am]
BILLING CODE 4310-55-P