2011 Federal Register, 76 FR 18087; Centralized Library: U.S. Fish and Wildlife Service - Federal Register, Volume 76 Issue 63 (Friday, April 1, 2011)

[Federal Register Volume 76, Number 63 (Friday, April 1, 2011)]
[Rules and Regulations]
[Pages 18087-18103]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-7668]

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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-R4-ES-2008-0071; 92220-1113-0000-C6]
RIN 1018--AW95

Endangered and Threatened Wildlife and Plants; Reclassification
of the Okaloosa Darter From Endangered to Threatened and Special Rule

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), are
reclassifying the Okaloosa darter (Etheostoma okaloosae) from
endangered to threatened under the authority of the Endangered Species
Act of 1973, as amended (Act). The endangered designation no longer
correctly reflects the current status of this fish due to a substantial
improvement in the species' status. This action is based on a thorough
review of the best available scientific and commercial data, which
indicate a substantial reduction in threats to the species, a
significant habitat restoration in most of the species' range, and a
stable or increasing trend of darters in all darter stream systems. We
also establish a special rule under section 4(d) of the Act. This
special rule allows Eglin Air Force Base to continue activities with a
reduced regulatory burden and will provide a net benefit to the
Okaloosa darter.

DATES: This final rule is effective May 2, 2011.

ADDRESSES: Comments and materials received, as well as supporting
documentation used in the preparation of this final rule, are available
for public inspection, by appointment, during normal business hours at
the Panama City Field Office, U.S. Fish and Wildlife Service, 1601
Balboa Avenue, Panama City, FL 32405.
You may obtain copies of this final rule from the address above, by
calling 850/769-0552, or at the Federal eRulemaking Portal: http://www.regulations.gov.

FOR FURTHER INFORMATION CONTACT: Don Imm, Field Supervisor, at the
Panama City Field Office (see ADDRESSES) (telephone 850/769-0552;
facsimile 850/763-2177). Individuals who are hearing-impaired or
speech-impaired may call the Federal Information Relay Service at 800/
877-8339 for TTY assistance 24 hours a day, 7 days a week.

SUPPLEMENTARY INFORMATION:

Previous Federal Actions

We proposed listing the Okaloosa darter as endangered on January
15, 1973 (38 FR 1521) and listed the species as endangered under the
Act (16 U.S.C. 1531 et seq.) on June 4, 1973 (38 FR 14678) due to its
extremely limited range, habitat degradation, and apparent competition
from a possibly introduced related species, the brown darter. We
completed a recovery plan for the species on October 23, 1981, and a
revised recovery plan on October 26, 1998.
On June 21, 2005, we provided notice in the Federal Register that
we were initiating a 5-year status review under the Act for the
Okaloosa darter (70 FR 35689).The 5-year status review was completed in
July 2007, and is available on our Web site at http://www.fws.gov/southeast/5yearReviews/5yearreviews/okaloosa_darterfinal.pdf.
On February 2, 2010, we published a proposed rule to reclassify the
Okaloosa darter from endangered to threatened and a proposed special
rule under section 4(d) of the Act (75 FR 5263). We requested that all
interested parties submit comments and information concerning the
proposed reclassification of the Okaloosa darter. We provided
notification of the publication of the proposed rule through e-mail,
facsimile, telephone calls, letters, and news releases sent to the
appropriate Federal, State, and local agencies; county governments;
elected officials; media outlets; local jurisdictions; scientific
organizations; interest groups; and other interested parties. We also
posted the proposed rule on the Service's Panama

[[Page 18088]]

City Field Office Internet Web site following the rule's publication.
We accepted public comments on the proposed rule for 60 days, ending
April 5, 2010.

Background

The Okaloosa darter, Etheostoma okaloosae, is a member of the
family Percidae. It is a small, perch-like fish (maximum size is 49
millimeters (mm) (1.93 inches (in.)) Standard Length) that is
characterized by a well-developed humeral spot, a series of five to
eight rows of small spots along the sides of the body, and the first
anal spine being longer than the second. General body coloration varies
from red-brown to green-yellow dorsally, and lighter ventrally,
although breeding males have a bright orange submarginal stripe on the
first dorsal fin (Burkhead et al. 1992, p. 23).
The endemic Okaloosa darter is known to occur in only six clear
stream systems that drain into two Choctawhatchee Bay bayous in Walton
and Okaloosa Counties in northwest Florida. Okaloosa darters are
currently found in the tributaries and the main channels of the
following six streams: Toms, Turkey, Mill, Swift, East Turkey, and
Rocky Creeks. Approximately 90 percent of the 457 square kilometer (176
square mile) watershed drainage area that historically supported the
Okaloosa darter is under the management of Eglin Air Force Base (AFB),
and we estimate that 98.7 percent of the stream length in the darter's
current range is within the boundaries of Eglin AFB. Eglin AFB
encompasses the headwaters of all six of these drainages, and the
remainder of the these streams flow out of Eglin AFB into the urban
complex of the Cities of Niceville and Valparaiso (USAF 2006, p. 3-1).
Longleaf pine-wiregrass-red oak sandhill communities dominate the
vegetation landscape in Okaloosa darter watershed basins. These areas
are characterized by high sand ridges where soil nutrients are low and
woodland fire is a regular occurrence. Where water seeps from these
hills, acid bog communities develop of Sphagnum sp. (sphagnum moss),
Sarracenia sp. (pitcher plants), and other plants adapted to low
nutrient soils. In other areas, the water emerges from seepage springs
directly into clear flowing streams where variation of both temperature
and flow is moderated by the deep layers of sand. The streams support a
mixture of Mayaca fluviatilis (bog moss), Scirpus etuberculatus
(bulrush), Orontium aquaticum (golden club), Sparganium americanum
(burr-weed), Potamogeton diversifolius (pondweed), Eleocharis sp.
(spikerush), and other aquatic and emergent plants.
Okaloosa darters typically inhabit the margins of moderate- to
fast-flowing streams where detritus, root mats, and vegetation are
present. Historic densities averaged about two darters per meter (3.28
feet) of stream length while more recent abundance estimates show an
increase to an average of 2.9 darters per meter (Jordan and Jelks 2004,
p. 3; USAF 2006, p. 3-1). They are only rarely collected in areas where
there is no current or in open sandy areas in the middle of the stream
channel. The creeks with Okaloosa darters are generally shaded over
most of their courses, with temperatures ranging from 7 to 22 degrees
Celsius ([deg]C) (44 to 72 degrees Fahrenheit ([deg]F)) in the winter
(Tate 2008, pers. comm.; Jelks 2010, pers. comm.) to 22 to 29 [deg]C
(72 to 84 [deg]F) in the summer (Mettee and Crittenden 1977, p. 5;
Jelks 2010, pers. comm).
Okaloosa darters feed primarily on fly larvae (Diptera sp.), mayfly
nymphs (Ephemeroptera sp.), and caddis fly (Trichoptera sp.) larvae
(Ogilvie 1980, as referenced in Burkhead et al. 1992, p. 26). The
breeding season extends from late March through October, although it
usually peaks in April. Spawning pairs have been videographed attaching
one or two eggs to vegetation, and observed attaching eggs to woody
debris and root mats (Collete and Yerger 1962, p. 226; Burkhead et al.
1994, p. 81). Ogilvie (1980, as referenced in Burkhead et al. 1992, p.
26) found a mean of 76 ova (unfertilized eggs) and 29 mature ova in 201
female Okaloosa darters, although these numbers may under-represent
annual fecundity as the prolonged spawning season is an indication of
fractional spawning (eggs develop and mature throughout the spawning
season). Estimates of longevity range from 2 to 5 years (Burkhead et
al. 1992, p. 27; Jordan 2010, pers. comm.).

Recovery

Section 4(f) of the Act directs us to develop and implement
recovery plans for the conservation and survival of endangered and
threatened species unless we determine that such a plan will not
promote the conservation of the species. The Act directs that, to the
maximum extent practicable, we incorporate into each plan:
(1) Site-specific management actions that may be necessary to
achieve the plan's goals for conservation and survival of the species;
(2) Objective, measurable criteria, which when met would result in
a determination, in accordance with the provisions of section 4 of the
Act, that the species be removed from the list; and
(3) Estimates of the time required and cost to carry out the plan.
However, revisions to the list (adding, removing, or reclassifying
a species) must reflect determinations made in accordance with sections
4(a)(1) and 4(b) of the Act. Section 4(a)(1) requires that the
Secretary determine whether a species is endangered or threatened (or
not) because of one or more of five threat factors. Therefore, recovery
criteria must indicate when a species is no longer endangered or
threatened by any of the five factors. In other words, objective,
measurable criteria, or recovery criteria contained in recovery plans,
must indicate when we would anticipate an analysis of the five threat
factors under 4(a)(1) would result in a determination that a species is
no longer endangered or threatened. Section 4(b) of the Act requires
the determination made be ``solely on the basis of the best scientific
and commercial data available.''
Thus, while recovery plans are intended to provide guidance to the
Service, States, and other partners on methods of minimizing threats to
listed species and on criteria that may be used to determine when
recovery is achieved, they are not regulatory documents and cannot
substitute for the determinations and promulgation of regulations
required under section 4(a)(1) of the Act. Determinations to remove a
species from the list made under section 4(a)(1) of the Act must be
based on the best scientific and commercial data available at the time
of the determination, regardless of whether that information differs
from the recovery plan.
In the course of implementing conservation actions for a species,
new information is often gained that requires recovery efforts to be
modified accordingly. There are many paths to accomplishing recovery of
a species, and recovery may be achieved without all criteria being
fully met. For example, one or more recovery criteria may have been
exceeded while other criteria may not have been accomplished, yet the
Service may judge that, overall, the threats have been minimized
sufficiently, and the species is robust enough, that the Service may
reclassify the species from endangered to threatened or perhaps delist
the species. In other cases, recovery opportunities may have been
recognized that were not known at the time the recovery plan was
finalized. These opportunities may be used instead of methods
identified in the recovery plan.
Likewise, information on the species may be learned that was not
known at

[[Page 18089]]

the time the recovery plan was finalized. The new information may
change the extent that criteria need to be met for recognizing recovery
of the species. Overall, recovery of species is a dynamic process
requiring adaptive management, planning, implementing, and evaluating
the degree of recovery of a species that may, or may not, fully follow
the guidance provided in a recovery plan.
Thus, while the recovery plan provides important guidance on the
direction and strategy for recovery, and indicates when a rulemaking
process may be initiated, the determination to remove a species from
the Federal List of Endangered and Threatened Wildlife is ultimately
based on an analysis of whether a species is no longer endangered or
threatened. The following discussion provides a brief review of
recovery planning for the Okaloosa darter as well as an analysis of the
recovery criteria and goals as they relate to evaluating the status of
the species.
The recovery plan for the Okaloosa darter was approved on October
23, 1981 (Service 1981, 18 pp.), and revised on October 26, 1998
(Service 1998, 42 pp.). The recovery plan identifies a recovery
objective of downlisting, and eventually delisting, the Okaloosa darter
by enabling wild populations capable of coping with natural habitat
fluctuations to persist indefinitely in the six stream systems they
inhabit by restoring and protecting stream habitat, water quality, and
water quantity. The Okaloosa darter may be considered for
reclassification from endangered to threatened (downlisted) when:
(1) Instream flows and historical habitat of stream systems have
been protected through management plans, conservation agreements,
easements, or acquisitions (or a combination of these);
(2) Eglin AFB has and is implementing an effective habitat
restoration program to control erosion from roads, clay pits, and open
ranges;
(3) The Okaloosa darter population is stable or increasing and
comprised of two plus age-classes in all six stream systems for 5
consecutive years;
(4) The range of the Okaloosa darter has not decreased at all
historical monitoring sites; and
(5) No foreseeable threats exist that would impact the survival of
the species.
For more information on the recovery plan for the Okaloosa darter,
a copy of the plan is posted on our Web site at http://ecos.fws.gov/docs/recovery_plan/970407.pdf.
Each of the above criteria for downlisting the Okaloosa darter to
threatened has been met, as described below.

Downlisting Criterion (1): Instream flows and historical habitat
of stream systems have been protected through management plans,
conservation agreements, easements, or acquisitions (or a
combination of these).

The management plans of several agencies apply to streams in the
range of the Okaloosa darter and are being implemented to protect this
fish's water quality and quantity and its overall habitat. Probably the
most influential of these is Eglin's integrated natural resources
management plan (INRMP) (USAF 2007; USAF 2009), including the
Threatened and Endangered Species Component Plan (USAF 2006). The INRMP
is updated annually and re-confirmed every 5 years in consultation with
the Service and the Florida Fish and Wildlife Conservation Commission
(FWC) (see Factor D. under the Summary of Factors Affecting the Species
section, below, for further detail and description of Department of
Defense (DOD) protections, and the Available Conservation Measures
section, below, for Act protections). The INRMP defines goals and
specific objectives for managing natural resources on the base. The
primary goal of Okaloosa darter management on Eglin AFB is to provide
the highest level of capability and flexibility to the military testing
and training mission while meeting the legal requirements of the Act,
the Clean Water Act (CWA; 33 U.S.C. 1251 et seq.), and other applicable
laws. Another goal of the 2009 INRMP is to maintain or restore
hydrologic processes in streams, floodplains, and wetlands when
feasible. The specific objectives of Okaloosa darter management on
Eglin AFB include:
(1) Downlist the Okaloosa darter from endangered to threatened by
the end of 2010, and delist the darter by the end of 2015;
(2) Annually restore 2 fish passage barriers from the 20 identified
sites in Okaloosa darter drainages as funding allows;
(3) Develop a public information and awareness program for
endangered and threatened species on Eglin AFB that have greater
potential to be impacted by public activities, such as Okaloosa
darters;
(4) Complete a program by 2010 that would include an Air Armament
Academy (A3) class (combined with Endangered Species Act class),
informational brochures, and portable display boards;
(5) Cooperate with the City of Niceville, Okaloosa County, and
private landowners adjacent to Eglin AFB to recover the Okaloosa
darter;
(6) Identify and rehabilitate 150 soil erosion sites that have the
potential to impact endangered and threatened species (Gulf sturgeon
(Acipenser oxyrhynchus desotoi) and Okaloosa darter) habitat by 2011;
and
(7) Train and use Okaloosa darter monitoring crews and aquatic
monitoring crews to survey and report the presence of invasive,
nonnative plants and animals during their regular monitoring activities
and treat invasive, nonnative plants as necessary.
Instream flows and historical habitat have been protected through
Eglin AFB's removal of fish passage barriers (INRMP Objective 2) and
rehabilitation of soil erosion sites that are impacting endangered and
threatened species (INRMP Objective 6). Further recovery efforts to
benefit stream flows and historic habitat have been planned, including
training darter monitoring crews to report invasive species found
during regular survey efforts (INRMP Objective 7).
In 2005, the Service, Eglin's Natural Resources Branch, The Nature
Conservancy (TNC), and the FWC signed an agreement to cooperate in the
stewardship of aquatic systems on lands of the Gulf Coastal Plain
Ecosystem Partnership (GCPEP) in western Florida. GCPEP's Aquatic Team
agreed to initially assign priority to strategies and projects that
contribute to the recovery of the Okaloosa darter. We are working with
GCPEP to use stream restoration techniques and management actions that
have been established for Okaloosa darter watersheds on partner lands.
The Three Rivers Resource Conservation and Development Council
(Council) is a nonprofit organization set up to conserve the natural
resources for, and to improve the overall economic condition of, rural
and urban citizens. The Council is composed of representatives from the
county Commissions and Soil and Water Conservation Districts, and
includes three members at large from Escambia, Santa Rosa, Okaloosa,
Walton, Bay, Washington, and Holmes Counties in Florida. The Council
has developed an Area Plan (2003-2008), which includes:
(1) A natural resources goal of encouraging proper management use
and protection of the natural resource base;
(2) An objective to assist local military bases in conservation
planning efforts;
(3) A strategy to continue a non-point project to control erosion
with Eglin AFB; and
(4) A strategy for habitat restoration, including four recently
completed

[[Page 18090]]

projects that replaced or rehabilitated undersized or improperly placed
culverts as well as eliminated sedimentation from roadway runoff.
The Eglin golf course dominates land use in the Mill Creek Basin.
Along with West Long Creek in the Rocky Creek Basin, these are the same
drainages where monitoring suggests darter numbers have been declining
in recent years. The Service and Eglin AFB have recently completed a
habitat restoration project in the portion of Mill Creek that runs
through the Eglin golf course. Work is ongoing to assess causes of
declines in East Turkey and West Long Creeks.
The Choctawhatchee Basin Alliance (a citizen's group), along with
supporting State and Federal agencies, is implementing a program called
``Breaking New Ground,'' which is a set of place-based air and
watershed action plans for the Choctawhatchee River and Bay watershed.
These plans address water quality monitoring, point and non-point
source pollution, growth management, water supply, education, and
citizen involvement in all Choctawhatchee Bay watersheds, including the
darter drainages. This planning effort has resulted in the funding of
studies to assess point and non-point source water pollution in the
basin, including darter watersheds, and is expected to continue to
assist in identifying and addressing potential long-term water quality
and supply issues in the watershed, which is a positive step towards
securing permanent protections for Okaloosa darter water quality and
quantity.
In addition, the Northwest Florida Water Management District
(NWFWMD) (in conjunction with the Florida Department of Environmental
Protection (DEP) has a Surface Water Improvement and Management (SWIM)
Plan that addresses water issues in the Choctawhatchee River and Bay
System, including the projected water supply needs of the coastal
portions of Okaloosa and Walton Counties. Protecting water-dependent
endangered species and their habitats are integral components of the
SWIM Plan. In its water supply plan for the counties that encompass the
range of the darter, the NWFWMD examines the water sources that could
supply growing human water demands in the region (Bartel et al. 2000).
Depending on its magnitude and spatial distribution, substantial new
use of the Sand and Gravel Aquifer could diminish stream flow in the
darter streams; however, the potential well fields that the NWFWMD
identified are located south and west of the darter drainages.
The opportunities for easements or acquisitions or both to protect
the Okaloosa darter are limited, because over 90 percent of its
historic range is on Federal land. The Service is currently working
with FWC and a private landowner to secure a conservation easement for
the portion of East Turkey Creek between the Eglin AFB boundary and
Choctawhatchee Bay. This easement would help to secure nearly all of
East Turkey Creek inhabited by Okaloosa darters outside the boundaries
of Eglin AFB. Because Eglin AFB and others have demonstrated a
commitment to recovery of the Okaloosa darter through natural resources
management planning and coordination with the Service, we consider this
downlisting criterion to be satisfied.

Downlisting Criterion (2): Eglin AFB has (and is implementing)
an effective habitat restoration program to control erosion from
roads, clay pits, and open ranges.

Accomplishments have been made in recovering Okaloosa darter
habitat, and the Service continues to work with Eglin AFB, the City of
Niceville, and Okaloosa and Walton Counties to restore additional
habitat through the removal and replacement of road crossings and
impoundments throughout the darter's range.
Eglin AFB is implementing an effective habitat restoration program
to control erosion from roads, borrow pits (areas where materials like
sand or gravel are removed for use at another location), and cleared
test ranges. Since 1995, Eglin AFB has restored 317 sites covering
196.2 hectares (ha) (484.8 acres (ac)) that were eroding into Okaloosa
darter streams. All 38 borrow pits within Okaloosa darter drainages are
now stabilized (59.3 ha; 146.5 ac) (USAF 2005, p. 3-18). The other 279
sites (136.9 ha; 338.3 ac) included in the total area are characterized
as non-point sources (pollution created from larger processes and not
from one concentrated point source, like excess sediment from a
construction site washing into a stream after a rain) of stream
sedimentation. Eglin AFB estimates that these efforts have reduced soil
loss from roughly 69,000 tons per year in darter watersheds in 1994, to
approximately 2,500 tons per year in 2010 (Pizzolato 2010, pers.
comm.). As of 2006, Eglin AFB had completed about 95 percent of the
erosion control projects identified for the darter watersheds (USAF
2006, p. 3-5). Restoration activities began earlier in the Boggy Bayou
drainages. Accordingly, darter numbers increased in the Boggy Bayou
drainages earlier than in the Rocky Bayou drainages. Increases in
darter numbers over the past 10 years generally track the cumulative
area restored during that timeframe (Jordan and Jelks 2004, p. 9).
Many road crossing structures have been eliminated as part of Eglin
AFB's restoration activities. Of the 152 road crossings that previously
existed in Okaloosa darter drainages, 57 have been eliminated: 28 in
Boggy Bayou streams, and 29 in Rocky Bayou streams. Most of these were
likely barriers to fish passage or problems for stream channel
stability, and removing them has improved habitat and reduced
population fragmentation. We have determined that 21 of the remaining
road crossings are barriers to fish passage. Many of these are culverts
with the downstream end perched above the stream bed, precluding the
upstream movement of fish during normal and low-flow conditions. Ten of
the 21 barriers are of little to no adverse consequence to darter
habitat connectivity because they occur on the outskirts of the current
range or are immediately adjacent to another barrier or impoundment.
However, darters downstream of the 11 remaining barriers cannot move
upstream during normal and low-flow conditions. To date, 7 of these
have been removed or replaced with appropriate structures and the
remaining 4 will be removed in 2011.
Impoundments may also fragment darter habitat and populations. As
of 2005, there were 32 impoundments within the darter's range. Most of
these are the result of beaver activity at road-stream crossings, and
some are located within reaches from which darters are extirpated or in
headwater regions of streams where darters are typically found only in
low densities. As part of the road-stream crossing rehabilitation work,
Eglin has prioritized restoration or replacement of road-stream
crossings where beaver activity has impounded stream flow. Major
projects under this program include multi-partner stream restoration
efforts in Little Rocky Creek and Toms Creek. These projects required
removal of historical railroad crossings that had been impounded by
beavers and included greater than 100 meters of natural channel design
and construction.
Manmade structures accounted for 12 of the 32 impoundments in
Okaloosa darter watersheds. Working with the Service, the Council, FWC,
and the Mid-Bay Bridge Authority (MBBA), Eglin AFB has removed six
recreational impoundments, including all impoundments in the Turkey
Creek watershed. Two major stream restoration projects have been

[[Page 18091]]

conducted on Eglin AFB, both utilizing natural channel design to
eliminate impoundments and fish passage barriers while promoting public
recreation.
In FY 2007, Eglin AFB restored portions of Mill Creek within the
Falcon and Eagle golf course. Staff from Eglin Natural Resources, the
Eglin golf course, and the Service determined that it was feasible to
restore all impoundments upstream of Plew Lake, the largest impoundment
on the system, to free-flowing streams and to remove all but one of the
culverts that convey the stream underneath fairways on the golf course.
Present in the smallest of the six darter watersheds, the darter
population in Mill Creek is probably most vulnerable to extirpation.
Within one year of completion, Okaloosa darters had colonized the
entire restoration project and recruitment had been observed. We
anticipate that restoration at Mill Creek will help maintain a viable
population in the Mill Creek system.
In 2009, a partnership including Eglin AFB, the Service, FWC, and
MBBA initiated a restoration of Anderson Pond and the adjacent
campground and recreation area. As part of this project, the
impoundment was removed, and over 1000 meters of stream channel were
constructed. A new pond was excavated in a portion of the original
impoundment to accommodate fishing and other recreational activities.
This project has reconnected darters isolated in the headwater reaches
of Anderson Branch with the Turkey Creek population and re-established
habitat for an estimated 1,500 to 2,000 darters. Both the Mill Creek
and Anderson Pond projects accomplished stream restoration while
promoting outdoor recreation and education opportunities for the
public.
Based on the observations shared above, Eglin AFB has effectively
implemented this downlisting criterion and continues to make additional
progress in reducing remaining erosion problems on the base. These
actions appear to be associated with identifiable increases in Okaloosa
darter numbers and occupied range. We will continue to partner with
Eglin AFB to find similar opportunities like Mill Creek and Anderson
Pond to restore habitat. Because Eglin AFB and others have demonstrated
a commitment to recovery of the Okaloosa darter through natural
resources management planning and coordination with the Service, we
consider this downlisting criterion to be satisfied.

Downlisting Criterion (3): Okaloosa darter population is stable
or increasing and comprised of two plus age-classes in all six
stream systems for 5 consecutive years.

We had no estimate of population size at the time of listing,
although the historic range of the Okaloosa darter is fairly well
documented. Relative abundance estimates were determined annually from
1987-88 to 1998 at Eglin AFB. Bortone (1999, p.15) compared the
relative abundance (number per sampling hour) of darters at 16 to 18
stations over 10 sampling seasons. The mean number of Okaloosa darters
per sample (in those samples that yielded darters) was slightly lower
in the earlier sampling period (1987 to1991), higher during the middle
sampling years (1992 to 1997), and distinctly lower in 1998 and 1999.
Bortone (1999, p. 9) concluded that this may not have indicated an
overall trend in the reduction in Okaloosa darters as much as it may be
indicative of changes that specifically reduced preferable habitat and
increased sampling effectiveness at certain sites, as several sites
were altered by beaver activity while others became more rooted with
undergrowth. Generally, the data do not indicate any overall major
trends in decline or increase during the 10-year sampling period
(Bortone 1999, p.10).
The U.S. Geological Survey (USGS) and Loyola University New Orleans
has surveyed between 12 and 60 sites for Okaloosa darters annually
since 1995 (Jordan and Jelks 2004, p. 2). Their methodology has evolved
into counting darters in 20-m (66-ft) segments using mask and snorkel
visual surveys, and includes collection of habitat conditions such as
water depth, stream discharge, substrate type, and canopy cover.
Collectively, Jordan and Jelks' data show an almost tripling of darter
numbers in a 10-year timeframe, from an average of about 20 darters per
20-m (66-ft) segment sampled in 1995, to about 55 darters per segment
in 2004. Dips in Okaloosa darter densities occurred in 2001-02 and in
2009, which corresponded with years of regional drought conditions.
Even during these years, however, darter numbers were almost double
those of 1995 and 1996.
The current rangewide total population estimate, estimated by
applying Jordan and Jelks (2004, p. 3) study area-wide density estimate
of 3.1 darters per meter (m) (or per 3.28 feet) to our estimates of
occupied stream length in each of the six Okaloosa darter basins, is
802,668 darters with an estimated 625,279 mature individuals (Service
2007, Table 2). In order to expand the surveyed range of the species,
69 sites were seine surveyed in 50-m (164-ft) segments by the Service
in 2004-05, with many of those being outside the area surveyed by
Jordan and Jelks (2004). Observed segment densities were transformed to
local abundance estimates based upon the Jordan et al. (2008, pp. 316-
318) comparison of seine versus visual counts and depletion sampling.
These surveys produced an overall density estimate of 1.28 darters per
meter (or per 3.28 ft) and an abundance estimate of 259,355 mature
individuals (Service 2007, Table 3). This estimate is very conservative
because seining typically only recovers about a third of the Okaloosa
darters detected visually (Jordan et al. 2008, p. 318) For more
information on sampling methods, see the Service's 2007 5-year status
review of the Okaloosa darter (Service 2007).
Standardized sampling since the status review continues to show
robust numbers of Okaloosa darters. A visual survey conducted in 2009
showed an average density of 3.1 2.3 Okaloosa darters per
linear meter (Jelks pers. comm. 2010).
Downlisting criterion number (3) is further defined in Appendix A
of the Okaloosa darter recovery plan to include a specific standardized
sampling methodology. An operational definition of a ``stable''
population is also provided in Appendix A of the recovery plan. The
definition of a ``stable'' population applies to 26 long-term
monitoring sites and has three parts:
(1) Okaloosa darter numbers remain above 1.75 standard deviations
below the cumulative long-term average at each of the monitoring sites;
(2) The long-term trend in the average counts at each monitoring
site is increasing, or neutral; and
(3) The range that the species inhabits is not decreased by more
than a 500-meter (1,640.4-ft) stream reach within any of the six stream
systems.
Although the darter meets the criterion for a stable population,
the validity of the criteria in the operational definition of
``stable'' has come into question since 1998, when the recovery plan
was prepared. As identified in our 2007 5-year status review of the
Okaloosa darter (Service 2007, p. 6), monitoring has shown that natural
variation coupled with sampling method (seining versus visual survey)
might result in a variation greater than 1.75 standard deviations while
still maintaining a stable or increasing trend. Therefore, we have
found that this operational definition may no longer reflect the true
status of the species. We plan to revise the recovery criteria to
incorporate advances in population assessment that use variation at
specific localities while incorporating adjustments for sampling error.

[[Page 18092]]

Current estimates of Okaloosa darter numbers were calculated using
two different methods of standardizing monitoring and survey data. The
first method used visual surveys in 28 20-m (66-ft) segments of stream
encompassing the six principal basins; a study area-wide density
estimate was applied to the known occupied stream length for a 2004
total population estimate of 802,668 darters with 95 percent confidence
interval (CI) ranging from 503,457 to 1,323,597 (Service 2007, Table
2). The second method transformed seine sample density estimates to
local abundance estimates, based upon the Jordan et al. (2008)
comparison of seine versus visual counts and depletion sampling, to
calculate a 2004-05 population estimate of 259,355 with 95 percent CI
ranging from 216,120 to 302,590 darters (Service 2007, Table 3).
Acknowledging the greater error likely associated with the seine-based
calculations, they provide a more conservative population estimate;
however, both estimates are large given the naturally small range of
the species.
As identified in our 2007 5-year status review (Service 2007, p. 6-
7), the long-term trend in the average counts at each monitoring site
indicated that the four smallest darter watersheds (Toms, Swift, Mill,
and East Turkey), as well as West Long Creek and East Long Creek, were
decreasing while the watersheds of Rocky Creek and Turkey Creek were
increasing. However, sampling conducted since restoration activities on
Mill Creek were completed indicates that darter numbers are now
increasing. Using the estimated length of occupied habitat for these
creeks, darter numbers are stable or increasing in 86 percent of their
current range and decreasing in 14 percent of their current range. All
of the declining trends were sampled by seining, not visual surveys,
and may reflect variable sampling efficiency over time. For example,
one site has become almost impossible to seine due to the exposure of
tree roots resulting from stream bed degradation. Because seining
detects only about 32 percent as many Okaloosa darters as visual
surveys (Jordan et al. 2008, p. 313), the long-term trends in darter
counts at sites sampled by seine may not reflect actual trends.
Furthermore, there appears to be a reduction in numbers at many of the
sites in 1998 to 2000, prior to which counts appear to be relatively
consistent or generally increasing, which correspond to a drought that
began in 1998. Following 1998, the darter counts at these sites follow
a stable or increasing trend at reduced densities (Service 2007, Figure
6). Because recovery criteria were based on data collected in years
with normal rainfall, variation associated with droughts could not be
accounted for and strict interpretation of criteria is likely not
biologically appropriate.
The range of the Okaloosa darter is represented as the cumulative
stream length of occupancy in a basin. However, the annual monitoring
identified in the recovery plan is not specifically designed to measure
the length of a range reduction. Therefore, we are unable to determine
whether part (3) of the operational definition of ``stable'' (A
population will be considered stable if * * * (3) the range that the
species inhabits is not decreased by more than a 500-meter (1,640.4-ft)
stream reach within any of the six stream systems) has been met.
Further, as noted previously, seining has been shown to detect only
about 32 percent as many darters as visual surveys (Jordan et al. 2008,
p. 313), increasing the probability of incorrectly concluding that
darters are absent when using this survey method. Therefore, we do not
feel that this aspect of the definition of ``stable'' is appropriate.
Okaloosa darters population numbers have increased since 1995, and
have remained consistently stable at all sites where current sampling
techniques are utilized. Annual population monitoring by USGS and
Loyola University New Orleans has detected young-of-the-year and adult
fish in all six stream systems for the past 13 years (Service 2007).
Okaloosa darters appear to have expanded their range in Mill Creek
following habitat restoration activities in 2007, and have been
collected in the southern/western tributary of Toms Creek previously
thought to be uninhabited. We have not observed extirpation at any of
the monitoring sites since 1998, and sampling conducted in 2009
continues to show robust numbers of Okaloosa darters. Acknowledging the
limitations in the criteria outlined in Appendix A of the recovery
plan, we consider this downlisting criterion to be satisfied.

Downlisting Criterion (4): The range of the Okaloosa darter has
not decreased at all historical monitoring sites.

As noted above, trends in the range of the Okaloosa darter are
difficult to interpret. Darters have expanded their range in Mill Creek
as a result of habitat restoration. A recent collection of darters from
the southern/western tributary of Toms Creek may represent an
additional range expansion; however, additional field surveys will be
necessary to determine the extent and stability of the occupied
habitat. If Okaloosa darters are established in this tributary, this
would represent a range expansion of about 2.25 kilometers (1.4 miles).
The Okaloosa darter has been extirpated from about 9 percent of the 402
km (249.8 mi) of streams that comprise its total historical range.
Nearly all of these impacts occurred prior to the original recovery
plan in 1984, and most were likely prior to the species listing in
1973. The Swift Creek monitoring site is the only established
monitoring site where an extirpation appears to have occurred. This is
evidenced by a single collection of 2 individuals in 1987; otherwise
Okaloosa darters have not been collected at this site. Because local
extirpation occurred more than 20 years ago, the darter has expanded
its range in Mill Creek and Toms Creek, and we have not witnessed a
reduction in range since the revision of the recovery plan in 1998, we
consider this criterion to be met.

Downlisting Criterion (5): No foreseeable threats exist that
would impact the survival of the species.

At this stage of the recovery of Okaloosa darter, threats remain
under Listing Factor A: the present or threatened destruction,
modification, or curtailment of the species' habitat or range. Resource
stewardship on Eglin AFB is generally reducing the threat of habitat
destruction and range reduction from sedimentation from unpaved roads
and areas adjacent to poorly designed or maintained paved roads. As of
2006, about 95 percent of the erosion control projects identified in
darter watersheds had been completed (USAF 2007, pp. 3-5). Eglin AFB is
continuing to fund these projects to completely eliminate the threat.
We will continue to work with Eglin AFB to remove remaining erosion
sources or point and non-point pollution sources in Okaloosa darter
habitat. In addition, stream restoration projects have been completed,
and new projects are being considered on Eglin AFB. We will work with
Elgin AFB to ensure Okaloosa darter habitat is protected.
Although water quality issues associated with the Niceville
landfill and sprayfield continue to threaten the darter, they are being
examined in a research project, which began in 2007. We recently worked
with the City of Niceville to improve its wastewater collection system
and install more appropriate culverts at a number of road crossings. In
addition, as stated above, a few of the Okaloosa darter's streams have
been indicated as potentially impaired due to biological indicators. We
will continue to work with Eglin AFB and the city of Niceville to

[[Page 18093]]

determine the causes of impairment and remove them.
Proposed plans to assign additional military forces to Eglin AFB
may alter the military mission and could potentially impact Okaloosa
darter populations; however, we do not anticipate any increase in
threats from this action as the new ranges have been moved outside of
Okaloosa darter habitat. Eglin AFB has also agreed to provide a 300-ft.
buffer along all darter streams when conducting any troop maneuvers. On
the smaller creeks, where we noted a general long-term decline in
average counts, we will continue to investigate using survey protocols
whether habitat attributes at these sites are the cause.
The Okaloosa darter was listed in 1973 as an endangered species. At
the time of listing, the species faced significantly greater threats
than it does today, as evidenced by the numerous recovery actions to
date that have improved and restored its habitat conditions. These
recovery actions include completing 95 percent of the erosion control
projects identified in darter watersheds, thereby significantly
reducing the most intense threat to the species (see the Summary of
Factors Affecting the Species section below for further details). Now,
more than 35 years after it was listed under the Act, the Okaloosa
darter's overall status has improved. Given that the threats to the
species have been significantly reduced, we have determined that the
Okaloosa darter has recovered to the point where it now meets the
definition of a threatened species--one that is ``likely to become an
endangered species within the foreseeable future throughout all or a
significant portion of its range.'' In other words, although some
threats to the Okaloosa darter continue to exist, these threats are not
likely to cause the species to become extinct throughout all or a
significant portion of its range within the foreseeable future. Data
collected on the distribution and abundance of the species indicate
that the species' range has expanded and overall population numbers are
increasing. The Okaloosa darter has met all five downlisting criteria
in its recovery plan.

Summary of Comments and Responses

During the 60-day comment period on the proposed rule, which began
on February 2, 2010, and ended on April 5, 2010 (75 FR 5263), we
received only two written comments, both of which supported both
reclassification of the Okaloosa darter from endangered to threatened
and the special rule. The proponents of the reclassification included
the FWC and TNC. We received no public hearing requests. In accordance
with our peer review policy published on July 1, 1994 (59 FR 34270), we
solicited independent opinions from three knowledgeable individuals who
have expertise with the species and the geographic region where the
species occurs and are familiar with conservation biology principles.
We received comments from all three of the peer reviewers. The
reviewers were affiliated with the State of Florida, a Louisiana
university, and a Federal Government agency. Reviewers provided
additional factual information, as well as minor corrections and input
on our interpretation of existing information. In general, all peer
reviewers concurred with the downlisting of the Okaloosa darter to
threatened status and the special rule. We reviewed all comments
received from the peer reviewers and the public for substantive issues
and new information regarding the proposed reclassification.
Substantive comments we received during the comment period have been
addressed below and, where appropriate, incorporated directly into this
final rule. The comments are grouped below according to peer review or
public comments.

Peer Review/State Comments

(1) Comment: One reviewer expressed concern for the population of
Okaloosa darters in Shaw Still Branch, a tributary to Swift Creek, due
to isolation resulting from College Pond and habitat degradation.
Response: We agree that the population in Shaw Still Branch should
be closely monitored and that restoration of College Pond should be
considered; however, the Okaloosa darter population and suitable
habitat persist in this stream. In addition, there has been a stable or
increasing trend of darters in all darter stream systems, including
Swift Creek. We do not feel that the genetic isolation of the Shaw
Still Branch darter population precludes reclassification from
endangered to threatened, which is based on an assessment of the
species' status and threats as a whole.
(2) Comment: Two reviewers expressed concern over the Mid-Bay
Bridge Connector Road and long-term secondary and cumulative effects to
the Okaloosa darter.
Response: We recently completed consultation under section 7(a)(2)
of the Act on this road project and have updated the discussion of this
project in this rule (see Summary of Factors Affecting the Species;
Factor A. discussion). We found that the proposed Mid-Bay Bridge
Connector Road is not likely to jeopardize the continued existence of
the Okaloosa darter. There are many conservation measures in place to
minimize the impacts of the roadway, and the potential secondary and
cumulative effects will be minimized through efforts to work with with
private property owners to protect floodplain and riparian habitat and
reduce threats along Okaloosa darter streams. Given the specific
extensive conservation measures included in the project, we do not
consider the Mid-Bay Bridge Connector Road to be a significant threat
to Okaloosa darters.
(3) Comment: Although the sand and gravel aquifer that feeds the
darter drainages is not currently used for human consumption, one
reviewer expressed concern that plans for wellfields have been proposed
within Okaloosa darter drainages.
Response: We are not aware of any proposals to directly use the
sand and gravel aquifer for human consumption. The NWFWMD has recently
announced plans for an offline reservoir in the Shoal River (Yellow
River watershed) to supply drinking water to Okaloosa County. This
action will use surface water and is outside the primary recharge area
for streams inhabited by the Okaloosa darter; therefore, we believe
there will be little to no impact on Okaloosa darters related to this
offline reservoir. Eglin AFB, the cities of Niceville and Valparaiso,
and Okaloosa County have not indicated plans to establish wellfields in
the foreseeable future.
(4) Comment: One reviewer expressed concern that the proposed rule
recommended delisting by 2012.
Response: The proposed rule actually noted that Eglin AFB's INRMP
goals for darter management recommended delisting by 2012. The proposed
rule was updated to reflect the most recent annual update of the INRMP,
which now recommends delisting by 2015. In any case, this is Eglin
AFB's recommendation, and does not reflect the views of the Service. A
determination to remove a species from the Federal List of Endangered
and Threatened Wildlife is made by the Service and is based on an
analysis of whether a species is no longer endangered or threatened.
(5) Comment: One reviewer was concerned that our population
estimate was inflated because we assumed that all stream segments
within the six darter drainages are suitable for Okaloosa darters.
Response: We did not assume that all stream segments within the six
Okaloosa darter drainages are suitable

[[Page 18094]]

for Okaloosa darters when we derived the population estimate of 802,668
darters. A complete description of the methods we used to derive the
amount of suitable habitat can be found in Service 2007, pages 16-18.
In general, we calculated the total stream length within the Okaloosa
darter drainages and then subtracted the impoundments and the segments
that we believe no longer support Okaloosa darters from total stream
length. However, we still believed that not all portions of the
remaining stream length were necessarily suited for Okaloosa darters.
To correct for this bias, we applied darter/habitat relationships to
estimate the proportion of potential habitat that may be occupied. We
estimated that for the roughly 365 km of potential darter habitat,
about 261 km would be occupied, and estimated the population
accordingly.
(6) Comment: One reviewer noted that the fixed station sampling
methodology may only be capturing a localized density increase, not a
true population increase.
Response: We agree with the reviewer that alternative study designs
to fixed station sampling, such as random site selection, can provide
more robust conclusions about population trends. The critique of fixed
site sampling is that nonrepresentative data may be collected, thereby
increasing the chance of incorrect conclusions. In the case of fixed
station sampling of Okaloosa darters, we believe the chances of
collecting nonrepresentative data are fairly low. The fixed stations
occur across multiple sites in all six darter drainages. The number of
sites has been high, with anywhere from 12 to 60 sites sampled annually
since 1995, and collectively these data show an almost tripling of
darter numbers in a 10-year timeframe. In addition, Okaloosa darters
appear to have expanded their range in Mill Creek and possibly in a
tributary of Toms Creek previously thought to be uninhabited.
Therefore, we believe it is reasonable to conclude that the overall
increasing trend in the fixed station sampling data is likely
reflecting an increase in the Okaloosa darter population as a whole.
(7) Comment: One reviewer was concerned that the Service redefined
recovery criteria so as to minimize the importance of population
declines and extirpations in areas outside of Eglin AFB in order to
expedite the reclassification process.
Response: This comment was first directed at the language under the
Recovery section of the proposed rule (75 FR 5265; February 2, 2010)
that describes how precise attainment of all recovery criteria is not a
prerequisite for downlisting. In addition, within each recovery
criterion, the reviewer believes we have redefined the Okaloosa darter
population to be those darters on Eglin AFB and thereby implied that
the 1.3 percent of the current geographic range that is outside of
Eglin AFB is of marginal importance. We do not agree with this comment
because we manage the Okaloosa darter as a whole across its range and
have to address its status and threats it faces across its range. A
determination to reclassify a species' status on the Federal List of
Endangered and Threatened Wildlife is ultimately based on an analysis
of whether a species is no longer endangered or no longer threatened.
Based on the best available scientific information, the population as a
whole has increased, and its threats have decreased within 98.7 percent
of its current range and 90 percent of its historic range. We agree
with the reviewer that the populations of Okaloosa darters outside of
Eglin AFB are important to the overall population resiliency and for
full recovery and delisting of the species.
(8) Comment: One reviewer expressed concern that we did not use the
best scientific data available because we did not rely on a recent
unpublished study on the degree of genetic distinction in Okaloosa
darters among streams. The study found that each of the six Okaloosa
darter drainages support genetically unique populations. The reviewer
felt that the populations outside Eglin AFB in Mill, Swift, and East
Turkey creeks are in danger of extinction and recommended that the
Service consider reclassifying only populations of Okaloosa darters in
the Toms, Turkey, and Rocky creek drainages and leave populations in
the Mill, Swift, and East Turkey creek drainages as endangered.
Response: We did not include the findings of this study in our
analysis because at the time the proposed rule was published, this
study was not available. The authors only very recently completed a
final report and submitted it for publication in a peer-reviewed
journal (Austin et al. 2010, unpublished data). In summary, the authors
conducted mitochondrial and nuclear DNA analyses to determine the
degree of genetic distinction among streams. They found that Toms
Bayou, Boggy Bayou, and Rocky Bayou are three evolutionarily
significant units and, to a lesser extent than the bayous, all six
streams are genetically unique. They also found that robust historical
genetic estimates of abundance and recent census estimates support the
decision to reclassify the Okaloosa darter to threatened.
Based on the subtly different genetic characteristics of these six
streams, it is conceivable that extirpation of Okaloosa darters in any
of the six streams would result in a loss of genetic variation. While
we acknowledge there have been localized declines in the populations in
Mill, Swift, and East Turkey creeks, we do not agree that darters are
in danger of extirpation from these creeks. Darter populations in Mill
Creek have been increasing since restoration was completed, and we
expect this restoration will result in a viable, sustainable
population. In addition, significant parts of all three of these
streams are located on Eglin AFB, where resource stewardship and
protection is generally reducing the threat of habitat destruction and
range reduction. Outside of Eglin's borders, we are working with the
City of Niceville and private landowners to reduce threats to Okaloosa
darters. The status of the species as a whole has improved and threats
have decreased in all six streams. We will continue to work with the
authors as we work towards recovery of the Okaloosa darter.
(9) Comment: One reviewer disagreed with how we defined
``significant portion of the range,'' noting that if we considered the
six drainages separately based on genetic differences noted in Austin
et al. (2010, unpublished data), there is considerable likelihood that
Okaloosa darter is in danger of extinction in a significant portion of
its range due to the more pronounced threat in the areas outside of
Eglin AFB.
Response: The Okaloosa darter was listed due to threats across its
entire range. In our evaluation of significant portion of the range for
this species, we assessed threats across the landscape to determine if
any areas were experiencing unique impacts. We then determined if those
areas were significant to the species as a whole as further described
below in the Significant Portion of the Range section of this rule. In
evaluating this comment, we determined that, although each drainage may
possess slightly different genetics (Austin et al. 2010, unpublished
data), the drainages are all subject to similar threats. The area
outside of the Eglin AFB was not considered a significant portion of
the range, because this area is small and is similar in structure to
habitat found throughout the rest of the species' range. We have
determined that there are no portions of the range that qualify as a
significant portion of the range for the darter.

[[Page 18095]]

(10) Comment: One reviewer disagrees that almost all of the human
activities that may affect the existing darter population are Federal
actions.
Response: Of the darter's current range, 98.7 percent is on Federal
lands, and the remaining 1.3 percent occurs downstream of the
boundaries of Eglin AFB. We agree that there are human activities that
impact the darter in the 1.3 percent of the darter's range outside of
Eglin AFB; however, almost all of the darter's range is within Federal
lands and subject to Federal statutes and regulations, including the
Sikes Act and Sikes Improvement Act, the Act, and the CWA, as well as
other applicable State laws. Furthermore, any State, local, and private
projects outside of Eglin AFB that use Federal funds or require Federal
permits must undergo section 7 consultation under the Act.
(11) Comment: One reviewer expressed concern for delisting by
asking how the Okaloosa darter can be delisted given that the species
was primarily listed due to a restricted geographic range and that will
never change.
Response: The Service is not considering delisting the species at
this time. The determination to remove a species from the Federal List
of Endangered and Threatened Wildlife is based on an analysis of
whether a species is no longer endangered or threatened by any of the
five factors: (1) Habitat modification, destruction, or curtailment;
(2) overutilization of the species for commercial, recreational,
scientific, or educational purposes; (3) disease or predation; (4)
inadequacy of existing regulatory mechanisms; or (5) other natural or
manmade factors affecting its continued existence. The Okaloosa darter
was initially listed not only due to its restricted range but also
because of habitat degradation from roads, dams, and land clearing, and
the threat of competition with brown darters. Delisting the species
would involve a full assessment of these and other threats impacting
the Okaloosa darter in consideration of its restricted range. As
discussed throughout this rule, there has been a substantial reduction
in threats to the species' habitat, and brown darters do not appear to
be a significant threat to its recovery. There are still actions needed
for the Okaloosa darter to continue to recover, including cooperative
agreements to protect and restore habitat, water quality, and water
quantity outside of Eglin AFB, and the continued improvement and
maintenance of water quality and riparian habitat on Eglin AFB.
(12) Comment: One reviewer expressed concern regarding the
enforcement of the Act as it relates to Okaloosa darter in areas that
occur outside of Eglin AFB.
Response: All State, local, and private projects outside of Eglin
AFB that use Federal funds or require Federal permits (for example CWA
section 404 dredge-and-fill permits) must undergo section 7
consultation under the Act. In addition, under section 9 of the Act,
``take'' (defined as to harass, harm, pursue, hunt, shoot, wound, kill,
trap, capture, or collect, or to attempt to engage in any such conduct
in section 3(19) of the Act) will still be prohibited on private lands
as it was when the species was listed as endangered. The special rule
under section 4(d) of the Act does not remove the prohibitions against
take outside of Eglin AFB's habitat restoration projects. The Service
also works proactively with the Florida Fish and Wildlife Conservation
Commission and private landowners to facilitate darter habitat
restoration off of Eglin AFB.

Public Comments

The following public comment addresses issues that were not raised
by the peer reviewers. If an issue brought up by a peer reviewer was
also raised by the public, it is discussed above in the peer review
comment section rather than below.
(13) Comment: In relation to additional subpopulations of Okaloosa
darters, one commenter suggested we conduct an assessment of other
stream systems within the Rocky Bayou drainage that may have
historically contained the Okaloosa darter. The commenter also
described a stream restoration project in Puddin Head Lake, a steephead
stream system adjacent to the Rocky Creek watershed, noting that this
stream may have historically contained Okaloosa darters and recommended
that the Service consider this stream restoration project as a current
activity that may benefit the Okaloosa darter.
Response: We agree and plan to evaluate other streams within all
three bayous that may have historically contained Okaloosa darters to
locate suitable habitat and possible additional populations. Okaloosa
darters do not occur in Puddin Head Lake, but we plan to evaluate
restored habitat within the Puddin Head stream and other locations that
may have historically contained Okaloosa darters as potential sites for
reintroduction.

Summary of Factors Affecting the Species

Section 4 of the Act and its implementing regulations (50 CFR part
424) set forth the procedures for listing, reclassifying, or removing
species from the Federal Lists of Endangered and Threatened Wildlife
and Plants. ``Species'' is defined by the Act as including any species
or subspecies of fish or wildlife or plants, and any distinct
vertebrate population segment of fish or wildlife that interbreeds when
mature (16 U.S.C. 1532(16)). Once the ``species'' is determined, we
then evaluate whether that species may be endangered or threatened
because of one or more of the five factors described in section 4(a)(1)
of the Act. Those factors are: (1) Habitat modification, destruction,
or curtailment; (2) overutilization of the species for commercial,
recreational, scientific, or educational purposes; (3) disease or
predation; (4) inadequacy of existing regulatory mechanisms; or (5)
other natural or manmade factors affecting its continued existence. We
must consider these same five factors in reclassifying or delisting a
species. Listing, reclassifying, or delisting may be warranted based on
any of the above threat factors, either singly or in combination.
For species that are already listed as endangered or threatened,
this analysis of threats is an evaluation of both the threats currently
facing the species and the threats that are reasonably likely to affect
the species in the foreseeable future following the delisting or
downlisting.
The following threats analysis examines the five factors currently
affecting, or that are likely to affect, the Okaloosa darter within the
foreseeable future. For the purposes of this analysis, we will first
evaluate whether the currently listed species, the Okaloosa darter,
should be considered endangered or threatened throughout its range.
Then we will consider whether there are any portions of the species'
range where it is in danger of extinction or likely to become
endangered within the foreseeable future.

Factor A. The Present or Threatened Destruction, Modification, or
Curtailment of Its Habitat or Range

The Okaloosa darter was listed under the Act in 1973, because of
its extremely limited range and potential problems resulting from
erosion, water impoundment, and competition with brown darters. The
Okaloosa darter has been extirpated from about 9 percent of the 402 km
(249.8 mi) of streams that

[[Page 18096]]

comprise its total historical range. This historic loss of range is
most likely due to physical and chemical habitat degradation from
sediment and pollutant loading and the urbanization of the City of
Niceville coupled with historic impacts originating on what is now
Eglin AFB. Recent surveys in a southern/western tributary of Toms
Creek, however, have established the darter's presence in a stretch of
stream previously thought to be uninhabited. At present, all but 5 km
(3.1 mi), or 1.3 percent, of the current range is also currently within
Eglin AFB.
Sedimentation and Erosion
Sediment loading is perhaps the most intense and uniform factor
continuing to threaten the Okaloosa darter. A report (Rainer et al.
2005, pp. 3-13) identified the following primary sources of sediment to
aquatic ecosystems on Eglin AFB: accelerated streamside erosion, borrow
pits, developed areas, land test areas, silviculture, and roads. Of
these, the stream crossings of unpaved roads and subsequent bank
erosion probably have the greatest impact because of their distribution
on Eglin AFB, relative permanence as base infrastructure, and long-term
soil disturbance characteristics. The largest remaining source of
sediment input to darter streams is the unpaved road network. As of
2005, 87 percent (4,348 km or 2,701.7 mi) of Eglin's road network was
unpaved.
As of 2010, Eglin AFB had completed about 95 percent of the erosion
control projects identified in darter watersheds, substantially
reducing runoff and sedimentation within the road network (USAF 2006,
pp. 3-5; Pizzolato 2010, pers. comm.). From 1995 to 2004, 317 borrow
pits and non-point erosion sites (485 ac) were rehabilitated and
maintained. Although most of the erosion control projects have already
been completed, Eglin has a continuing objective of identifying and
rehabilitating an additional 150 soil erosion sites beyond the 317
sites that have already been restored. These soil erosion sites have
the potential to impact endangered and threatened species like the
listed Okaloosa darter. These remaining soil erosion sites pose a
continuing threat to the darter and its habitat. For example, five road
crossings in the Turkey Creek drainage have repeatedly exceeded State
water quality standards for turbidity. Recent funding has been secured
to replace or eliminate the remaining road-stream crossings identified
as impairing waterways within the range of the Okaloosa darter on Eglin
AFB. These projects are currently being designed or awaiting permits,
and all are scheduled for construction in 2011.
Of the 153 road crossings that previously existed in Okaloosa
darter drainages, 57 have been eliminated: 28 in Boggy Bayou streams,
and 29 in Rocky Bayou streams. Eglin AFB estimates that these and other
restoration efforts have reduced soil loss from roughly 69,000 tons per
year in darter watersheds in 1994, to approximately 2,500 tons per year
in 2010 (Pizzolato 2010, pers. comm.).
Borrow pits were a major source of sediment loading to darter
streams cited in the 1998 darter recovery plan. At that time, 29 of 39
borrow pits located within or immediately adjacent to Okaloosa darter
drainages had been restored so that they no longer posed sedimentation
threats. As of 2004, all of the remaining borrow pits within Okaloosa
darter drainages have been restored and no longer pose sedimentation
threats (Rainer et al. 2005, pp. 3-18).
While sedimentation and erosion problems still exist on Eglin AFB,
they have been significantly reduced through improvements such as
bottomless culverts, bridges over streams, and bank restoration and
revegetation. There are other areas where sedimentation remains a
higher magnitude threat to the continued existence of the Okaloosa
darter. Primarily in the downstream-most portion of the darter's range,
urban development and construction activity pose a threat to the darter
due to poor stormwater runoff control and ineffective pollution
prevention measures that degrade habitat and may pose potential
barriers to movement between basins. This threat is present primarily
in the 5 km (3.1 mi) of historic habitat located outside of Eglin AFB.
With improvement and reduction of sediment erosion on Eglin AFB (98.7
percent of the darter's current range), we believe that we can continue
to work with off-base partners in recovery efforts that will enable
delisting of this fish.
Road Development Projects
Additionally, road development projects present new potential
threats that may negatively impact the Okaloosa darter. The Northwest
Florida Transportation Corridor Authority has proposed a new, high-
speed, toll bypass road that crosses Eglin AFB, extending from U.S. 331
in Walton County to SR 87 in Santa Rosa County. It includes the MBBA's
Mid-Bay Bridge Connector Road, a new road from the northern terminus of
the Mid-Bay Bridge to SR 85 north of Niceville. In addition, the
Florida Department of Transportation is planning a capacity improvement
project to expand SR 123 from two to four lanes across Toms and Turkey
creeks. However, the roads would not prevent implementation of
management actions for the Okaloosa darter in Eglin AFB's INRMP, which
will continue to provide a benefit to the darter.
Eglin AFB has granted the MBBA conceptual agreement for the Mid-Bay
Bridge Connector Road, and construction of Phase I of the project has
begun. Although the remaining phases of the project cross darter
drainages, the agreement includes 19 stipulations that will minimize
impacts to darter drainages. For example, the project will use
environmentally-sensitive bridge construction techniques, and
conservation measures that minimize erosion and ground disturbance at
each stream crossing and that maintain stream channel stability. By
designing the bridges to maintain natural stream geomorphology, and
with the use of appropriate methods to stabilize stream banks and
erosion control measures along the stream, we do not anticipate long-
term erosion and degradation of darter habitat.
The project also includes specific stream restoration projects to
improve currently degraded habitat conditions in Okaloosa darter basins
including Mill Creek, Swift Creek, East Turkey Creek, Turkey Creek, and
Toms Creek. Importantly, the potential secondary and cumulative effects
of a new roadway, including threats to Okaloosa darter from new
development, will be addressed through discussions with private
property owners regarding easements and agreements to protect
floodplain and riparian habitat and reduce threats along Okaloosa
darter streams.
We recently completed consultation under the Act on this project
and found that the proposed Mid-Bay Bridge Connector Road is not likely
to jeopardize the continued existence of the Okaloosa darter. Most
direct and indirect effects will occur within the 122-meter (400-foot)
study corridor and are considered temporary and reversible. Given the
specific extensive conservation measures included in the project, we do
not consider the Mid-Bay Bridge Connector Road to be a significant
threat to Okaloosa darters. As plans progress for the other road
projects, the applicants will need to consult with the Service under
section 7 of the Act to avoid and minimize impacts to the Okaloosa
darter and other federally protected species, and assure that the
species' continued existence and recovery is not jeopardized.

[[Page 18097]]

Elgin AFB and Its Programs
Eglin AFB is a military training facility and is divided into 37
land test areas where weapons testing and training operations are
conducted, 12 of which are wholly or partially within darter drainages
(SAIC 2001, pp. 2 and 7). Eglin AFB maintains large portions of the
test areas in an early stage of plant succession with few mature trees
and varying degrees of soil disturbance as a result of maintenance or
military missions. Since 1998, only one section 7 consultation with
Eglin AFB (related to test area activities) has resulted in the
issuance of an incidental take statement.
There is a proposal to increase the military personnel and use at
Eglin AFB through the 2005 Defense Base Realignment and Closure (BRAC).
The BRAC action involves establishing the Joint Strike Fighter
Integrated Training Center and relocating the Army 7th Special Forces
Group (Airborne) to Eglin AFB, increasing the number of personnel
present on base, the number of test ranges, and the frequency of test
area activities. The Service has provided preliminary comments on the
military's Notice of Intent to Prepare an Environmental Impact
Statement under the National Environmental Policy Act (NEPA; 42 U.S.C.
4321 et seq.) and completed a formal consultation for other species but
not the Okaloosa darter. We do not anticipate any increase in threats
to the Okaloosa darter from this action, as the new ranges have been
moved outside of Okaloosa darter habitat and Eglin AFB has agreed to
provide a 300-ft. buffer along all darter streams when conducting any
troop maneuvers.
While poorly designed silvicultural programs can result in
accelerated soil erosion and stream sedimentation, Eglin AFB has
designed its silviculture program within darter habitat to avoid and
minimize impacts to the aquatic ecosystems such that the program is not
likely to adversely affect the Okaloosa darter.
Pollution
Pollution other than sedimentation poses a potential threat to
darters in six stream segments. While no streams in the darter's range
are designated by DEP as impaired, 6 of the 13 segments sampled using
three biological indicators were considered potentially impaired and
are on the ``3c planning list,'' which means that ``enough data and
information are present to determine that one or more designated uses
may not be attained according to the Planning List methodology.'' One
stream site has been characterized as ``severely limited by pollutants
from the landfill.''
Using comparable aquatic insect sampling methods, the Service (Thom
and Herod 2005, Table 4-1) found 12 out of the 42 sites sampled within
the darter's range to be impaired. An impaired water body is one where
the biological integrity of the system as determined through indicators
has been compromised because of pollutants, indicating that Okaloosa
darter habitat is degraded. Based on these data, it appears likely that
the wastewater treatment sprayfields located near the headwaters of
East Turkey Creek and Swift Creek are adversely affecting water
quality. Although water quality issues associated with the Niceville
landfill and sprayfield continue to threaten the darter, they are being
examined in a research project.
Water Withdrawals
Water withdrawals for human consumption in and around the range of
the Okaloosa darter are presently served by wells that tap the Floridan
Aquifer, which is declining substantially in the most populated areas
near the coast. However, at this time, there is no evidence that
pumping from the Floridan Aquifer has reduced flows in darter streams.
The darter drainages are spring-fed from a shallow sand and gravel
aquifer that is not used for human consumption. Additionally, the low
permeability of the Pensacola Clay confining bed probably severely
limits hydraulic connectivity between the two aquifers (Fisher et al.
1994, p. 86). Therefore, we do not anticipate that local population
growth would adversely affect water flows in the darter's drainages.
Climate Change
The Intergovernmental Panel on Climate Change (IPCC) concluded that
warming of the climate system is unequivocal (IPCC 2007a, p. 30).
Numerous long-term changes have been observed including changes in
arctic temperatures and ice, and widespread changes in precipitation
amounts, ocean salinity, wind patterns, and aspects of extreme weather
including droughts, heavy precipitation, heat waves, and the intensity
of tropical cyclones (IPCC 2007b, p. 7). While continued change is
certain, the magnitude and rate of change is unknown in many cases.
The currently occupied range of the darter is restricted to
approximately 402 km (249.8 mi) of streams in Walton and Okaloosa
Counties, Florida. While we acknowledge the general scientific
consensus that global scale increases in temperatures have occurred, we
do not have sufficient data to determine that climate change poses a
significant threat to the Okaloosa darter. Streams within the Okaloosa
darter's range are spring-fed, and thus many are thermally moderated.
However, thermal mediation varies considerably among nearby Okaloosa
darter streams (Jordan 2010, pers. comm.), and some streams that
support Okaloosa darters may be affected by increases in air
temperature. We lack the data to evaluate whether increased
temperatures in some streams will adversely affect Okaloosa darters.
The information currently available on the effects of climate change
and the available climate change models do not make sufficiently
accurate estimates of location and magnitude of effects at a scale
small enough to apply to the range of the Okaloosa darter. At present,
we have insufficient data to determine that climate changes observed to
date have had any adverse impact on the Okaloosa darter or its habitat.
Summary of Factor A
About 51,397 hectares (127,000 acres), or 457 square kilometers
(176 square miles), of the darter's drainage basins (90 percent) are
managed by Eglin AFB, while 485.6 hectares or 12,000 acres (10 percent)
of the drainage basins are situated within the Niceville-Valparaiso
urban complex. Urban runoff continues to degrade darter habitat in 1.3
percent of the linear stream distance that occurs outside of Eglin AFB
through pollution and sedimentation. Additionally, there is a continued
threat of further development in the darter's drainages outside of
Elgin AFB.
The military mission or mandate of Eglin AFB, which holds 98.7
percent of the darter's current range and 90 percent of the drainage
basins for the darter, will lead to foreseeable actions that could
impact the darter's range. Potential impacts resulting from a road
development project within the darter's range have been minimized, and
that project is not considered a significant threat to the species.
However, the growing coastline human population in Florida that is
pressing into the boundaries of Eglin AFB will have foreseeable needs
that could cross Eglin AFB's boundaries and impact the darter's range.
Stream sedimentation and erosion control problems still exist on
Eglin AFB, and we will continue to cooperatively work with our partner
to resolve these. Habitat restoration efforts completed on the base to
date have reduced 95 percent of the sedimentation into streams occupied
by the Okaloosa darter, nearly eliminating the largest threat to the
species.

[[Page 18098]]

At present, we do not have data to indicate that climate change
poses a significant threat to the Okaloosa darter.
Okaloosa darter populations are stable or increasing in the
majority of the species' range. The current rangewide population is
estimated at 802,668 darters with an estimated 625,279 mature
individuals (Service 2007, Table 2). Therefore, we believe the
rangewide threat of habitat destruction, modification, or fragmentation
over this large area from sources like sedimentation and pollution has
been reduced to a point where the Okaloosa darter no longer meets the
definition of an endangered species. We find that the present or
threatened destruction, modification, or curtailment of its habitat or
range is not likely to place the Okaloosa darter in danger of
extinction throughout all or a significant portion of its range.
However, although the threats under this factor have been reduced, they
have not been entirely eliminated. Accordingly we find that the
Okaloosa darter meets the definition of a threatened species because it
is likely to become an endangered species within the foreseeable future
throughout all or a significant portion of its range.

Factor B. Overutilization for Commercial, Recreational, Scientific, or
Educational Purposes

Overutilization for commercial, recreational, scientific, or
educational purposes is not, nor has it ever been, a significant threat
to the Okaloosa darter anywhere within the species' range. Any
utilization for recreational purposes is limited to the occasional
mistaken use as a bait fish. Therefore, we find that this factor is not
likely to cause the Okaloosa darter to become an endangered species
within the foreseeable future throughout all or a significant portion
of its range. We do not have any data to suggest that this threat will
increase in any portion of the darter's range now or within the
foreseeable future.

Factor C. Disease or Predation

Neither disease nor predation is considered a threat to the
Okaloosa darter. The six basins of the darter's range are relatively
free of introduced aquatic predators, and the native predators, such as
the largemouth bass, are relatively low in numbers due to the generally
low productivity of the groundwater-fed streams. We have no indications
that terrestrial predation is a problem. It is possible that diseases
or parasites were indirectly associated with the extirpation of the
darter from various stream segments as a result of physical or chemical
habitat degradation. However, apart from this potential association, we
do not otherwise suspect that disease or predation unduly limits the
distribution or abundance of the darter. Therefore, we find that this
factor is not likely to cause the Okaloosa darter to become an
endangered species within the foreseeable future throughout all or a
significant portion of its range. We do not have any data to suggest
that this threat will increase in any portion of the darter's range now
or within the foreseeable future; however, vigilance for nonindigenous
predators is needed as potential introductions of flathead catfish or
cichlids might prove to be problems for the Okaloosa darter in the
future.

Factor D. The Inadequacy of Existing Regulatory Mechanisms

The Act requires that any State, local, and private project outside
of Eglin AFB that uses Federal funds or requires a Federal permit must
undergo section 7 consultation to ensure that the species is not
jeopardized. In addition, the State of Florida has listed the Okaloosa
darter as an endangered species under its protected species statute
since 1976. Recently, the FWC incorporated the IUCN Red List Criteria
(http://www.iucnredlist.org) in its procedures for classifying species
(Florida Administrative Code 68A-27.0012), but the FWC has not yet
evaluated the Okaloosa darter using the new procedures (Knight 2010,
pers. comm.). Our application of the Red List Criteria classifies the
darter as ``near threatened'' (Service 2007, p. 43).
In addition, land management on DOD lands is governed by the Sikes
Act (16 U.S.C. 670 et seq.) and the Sikes Improvement Act, which
provide for the conservation and rehabilitation of natural resources
and require DOD to periodically prepare an INRMP in consultation with
the Service and the applicable State wildlife agency. Because the
Okaloosa darter's current range occurs almost exclusively on Eglin AFB,
the species is afforded considerable protections from large-scale
habitat disturbance. Its habitat is further conserved and
rehabilitated, through fish and wildlife and land management actions,
consistent with the use of the military installation, as required by
the Sikes Act, as amended by the Sikes Act Improvement Act. Federal
actions must also comply with the National Environmental Policy Act,
the CWA, and applicable State laws. These laws also help with avoiding
or minimizing impacts to the Okaloosa darter and its habitat.
Department of Defense Instruction (DODI) 4715.3, Environmental
Conservation Program, is the overarching instruction for DOD natural
and cultural resources management, and is the primary agent for
implementing policy (including the Sikes Act), assigning
responsibility, and prescribing procedures for the integrated
management of natural and cultural resources on DOD properties. In
compliance with these programs, Eglin AFB has taken a proactive role in
the recovery of the Okaloosa darter by managing its lands to provide
for the recovery of the darter and assuring that the species' recovery
is integrated with the military training purposes of the base.
Air Force Policy Directive (AFPD) 32-70, Environmental Quality,
establishes policy to responsibly manage natural and cultural resources
on Air Force properties, clean up past environmental damage, meet
current environmental standards, plan future activities to minimize
impacts, and eliminate pollution from Air Force activities whenever
possible. Under this Directive, an Air Force Environmental Quality
Program was developed. This program includes the following activities:
Cleanup, compliance, conservation, and pollution prevention.
Additionally, this directive states that the Air Force will pursue
adequate funding to meet environmental legal obligations. Compliance
with this directive has resulted in funding and implementation of
considerable erosion control measures and fish barrier removals, which
have significantly reduced runoff and sedimentation in Okaloosa darter
streams and expanded the range of the species.
Air Force Instruction (AFI) 32-7064, Integrated Natural Resources
Management, implements AFPD 32-70 and DODI 4715.3. This instruction
provides details on how to manage natural resources on Air Force
installations to comply with applicable Federal, State, and local laws
and regulations. The current INRMP and Threatened and Endangered
Species Component Plan for Eglin AFB identify management practices to
benefit the Okaloosa darter. The purpose of the INRMP for Eglin AFB is
to provide interdisciplinary strategic guidance for the management of
the base's natural resources, while the primary objective of the Air
Force Natural Resources Program is to ensure continued access to land
and air space required to accomplish the Air Force mission while
maintaining these resources in a healthy condition. The INRMP for Eglin
AFB facilitates compliance with Federal,

[[Page 18099]]

State, and local environmental requirements. These requirements deal
with analysis of: Potential environmental impacts, water and air
quality, wetlands, endangered species, marine mammals, migratory birds,
other wildlife, forest and fire management, and public access and
recreation. The INRMP and Threatened and Endangered Species Component
Plan also identify conservation objectives for the Okaloosa darter as
described under Downlisting Criterion 1 under item (2) in the Recovery
section above.
Summary of Factor D
We estimate that 98.7 percent of the darter's current range is
within the boundaries of Eglin AFB; the remaining 1.3 percent of the
range is downstream of Eglin AFB. For this reason, almost all human
activities that may affect the existing darter population are Federal
actions, including actions implemented, funded, or approved by the DOD.
The INRMP prepared for Eglin AFB under the Sikes Act and Sikes
Improvement Act requires habitat improvements that will continue to
benefit the darter. Federal actions must also comply with the National
Environmental Policy Act, the CWA, and applicable State laws. These
regulatory mechanisms will remain in place when the Okaloosa darter is
downlisted to threatened. Therefore, the existing regulatory mechanisms
are substantial, and they will be adequate to protect the darter and
its habitat in the majority of its range now and within the foreseeable
future. We do not have any data to suggest that this threat will
increase in any portion of the darter's range now or within the
foreseeable future.

Factor E. Other Natural or Manmade Factors Affecting The Species'
Continued Existence

Okaloosa darters were not adversely affected by the active
hurricane and storm seasons of 2004 and 2005, which brought numerous
severe storm events to the southern boundaries of Eglin AFB (Jordan and
Jelks 2009, p. 9). Darter numbers declined slightly during the recent
2007-2008 drought affecting much of Florida; however survey data from
previous droughts suggest resilience to these events with elevated
recruitment during wet years (Jordan and Jelks 2009, p. 2).
Two natural factors are identified in the recovery plan as possibly
affecting the Okaloosa darter: the brown darter as an introduced
competitor species, and the beaver as an agent adversely modifying
darter habitat.
Brown Darter
In 1964, a potential competitor of the Okaloosa darter, the brown
darter (Etheostoma edwini), was found in the lower reaches of Swift
Creek. The brown darter is a widespread species in drainages that
surround the streams containing the Okaloosa darter, but had not
previously been documented in any Okaloosa darter drainages. Early
indications were that the brown darter may have been introduced into
Okaloosa darter drainages from releases from bait buckets by fishermen
or by incidental stocking with game fish from fish hatcheries (Burkhead
et al. 1992, pp. 23-30). Others thought that brown darters dispersed
from Eagle Creek along the shoreline of Choctawhatchee Bay and were
simply overlooked in early collections (Jelks 2010, pers. comm.).
Recent genetics analyses of the brown darter shows high genetic
structure, and little support for introductions from eastern Florida
(Austin 2007, pers. comm.), supporting the theory that they were
overlooked in early collections.
Although annual monitoring (1995-2004) of Okaloosa and brown darter
populations shows a weak negative correlation between the abundance of
the two species, the relative abundance of Okaloosa darters at sites
where both species occur has generally increased or remained constant
in this timeframe, and the range of the brown darter has not expanded
(Jordan and Jelks 2004, p. 3). Earlier comparisons of microhabitat use
found little evidence of competitive displacement (Burkhead et al.
1994, p. 60). Therefore, at this time, we do not believe the brown
darter is an introduced species or that it poses a significant threat
to the recovery of the Okaloosa darter because it has not been shown to
impair Okaloosa darter populations.
Beavers
Okaloosa darters do not appear to tolerate impounded conditions and
are generally absent in the relatively still water upstream of manmade
dams, beaver dams, culverts, and other instream obstructions that act
like dams. Jordan and Jelks (2004, p. 29) observed the effects of a
beaver dam and a culvert at two locations on Rogue Creek that supported
Okaloosa darters before these structures were placed in the stream.
Both structures had similar effects on darters and important darter
habitat features, including increased water temperature, accumulation
of flocculent substrate, loss of typical microhabitat features, and
virtual elimination of darters in the impounded areas. However, Jordan
and Jelks (2004, p. 29) also observed that darters returned to these
locations within a year following removal of the beaver dam and the
culvert, the former by Eglin AFB resource managers and the latter by a
hurricane.
Because beavers often alter areas in a manner contrary to human
intentions for those areas, and also because beaver ponds displace
Okaloosa darter habitat, resource managers, with the assistance of the
U.S. Department of Agriculture's Wildlife Services, control beaver
numbers in some areas on Eglin AFB (USAF 2007, pp. 1-6). Although a
nuisance in the urban environment, beavers are a natural feature of the
landscape in the range of the Okaloosa darter. It is possible that
impacts from beavers may be more pronounced than they were historically
given that the natural predators of beavers may be greatly reduced.
Beaver dams are also problematic when they are constructed upstream of
poorly designed river crossings and culverts because they result in
more permanent impoundments.
While the waters impounded behind a beaver dam do not support
Okaloosa darters, darter densities in ``beaver meadows'' were among the
highest observed in monitoring surveys. Beaver meadows occur in the
vicinity of beaver ponds where the dam and pond induces the stream to
assume a braided (multi-channel) form, sometimes in the pond itself
following dam blowout or removal. Floodplain trees are killed by the
year-round high water level maintained near the pond and by the beavers
themselves, and herbaceous vegetation thrives in the resulting open
canopy, which apparently creates favorable habitat conditions for the
darter as aquatic macrophytes thrive under the open canopy and in
higher nutrient substrates. We suspect that a beaver meadow supports as
many or more darters than were displaced from the beaver pond itself.
Beaver dams are not permanent structures and may be broken by the
high flows associated with hurricanes and other major storm events. The
organic matter that accumulates in a beaver pond is suddenly released
when the dam blows out, which provides a pulse of nutrients in the
otherwise nutrient-poor darter streams. The pond is gone immediately,
of course, and over time the braided channel through the beaver meadow
returns to a single channel form. This channel is eventually shaded by
riparian trees and shrubs, and the concentrated patch of darter habitat
that the meadow provided is also gone. Given the balance of the

[[Page 18100]]

effects beavers have on their habitats, we do not know at this time
whether their numbers pose a threat to Okaloosa darters. However, even
if they do pose localized impacts, we do not believe these to be
significant to the Okaloosa darter rangewide.
Summary of Factor E
Okaloosa darters appear not to be affected by hurricanes and seem
to be resilient to droughts. While brown darters may not impact the
Okaloosa darter and beavers may pose only localized impacts, there is
no evidence indicating that these impacts are significantly affecting
the species on a rangewide or population level. Therefore, we find that
this factor is not likely to cause the Okaloosa darter to become an
endangered species within the foreseeable future throughout all or a
significant portion of its range. We do not have any data to suggest
that this threat will increase in any portion of the darter's range now
or within the foreseeable future.

Conclusion of the 5-Factor Analysis

In developing this rule, we have carefully assessed the best
scientific and commercial data available regarding the threats facing
this species, as well as the ongoing conservation efforts.
Under section 3 of the Act, a species is ``endangered'' if it is in
danger of extinction throughout all or a significant portion of its
range and is ``threatened'' if it is likely to become an endangered
species within the foreseeable future throughout all or a significant
portion of its range. For the purposes of this rule, the word ``range''
refers to the range in which the species currently exists, and the word
``significant'' refers to the value of that portion of the range being
considered to the conservation of the species. The ``foreseeable
future'' is the period of time over which events or effects reasonably
can or should be anticipated, or trends extrapolated.
As identified above, only one of the five listing factors currently
poses a known threat to the Okaloosa darter, namely, Factor A--the
present or threatened destruction, modification, or curtailment of its
habitat or range. Eglin AFB manages the vast majority of the Okaloosa
darter's current range, 98.7 percent. We have seen substantial progress
on Eglin AFB addressing threats to the darter's habitat under the
base's INRMP and general ongoing habitat restoration. Resource
stewardship on Eglin AFB is generally reducing the threat of habitat
destruction and range reduction (for example, restoring erosive, near-
stream borrow pits). Eglin AFB is addressing the threat of
sedimentation from unpaved roads and from areas adjacent to poorly
designed and maintained paved roads. Similarly, restoration of Mill
Creek on the Eglin Golf Course, which had been substantially altered by
culverts and manmade impoundments, has been completed. As the smallest
of the six darter watersheds, the darter population in Mill Creek is
probably most vulnerable to extirpation. We anticipate that restoration
at Mill Creek will secure a viable population in this system. Eglin has
worked diligently to generally improve habitat quality within its
boundaries. Outside of Eglin's borders, we have been working with the
City of Niceville to improve their wastewater collection system and
install more appropriate culverts at a number of road crossings.
However, additional improvements are necessary before this threat of
sedimentation and pollution is completely removed.
Brown darters and habitat loss from beaver activity were identified
as other natural and manmade factors affecting the continued existence
of darters. After several years of monitoring and recent genetics work,
it does not appear that the brown darter is either expanding its range
or displacing Okaloosa darters in most sympatric areas. The overall
effect of beaver activity on the darter is poorly understood. However,
even if brown darters and habitat loss from beaver activity do pose
localized threats, we do not believe these to be significant to the
Okaloosa darter rangewide.
The 1998 Recovery Plan for the Okaloosa darter identifies five
downlisting criteria. We believe that the intent of all five of the
downlisting criteria have been fulfilled; however, the delisting
criteria have not been met at this time. Specifically, while
significantly reduced, sedimentation and pollution, as well as
development, remain a threat in portions of the darter's range.
Based on the analysis above and given the substantial reduction in
threats to its habitat, the Okaloosa darter does not currently meet the
definition of endangered in that it is not ``in danger of extinction
throughout all or a significant portion of its range.'' Instead, it
meets the definition of threatened in that it is ``likely to become
endangered in the foreseeable future throughout all or a significant
portion of its range.'' Actions still needed for the Okaloosa darter to
continue to recover (for example, actions to remove threats to the
point that the species no longer meets the definition of threatened)
include:
(1) Cooperative agreements to protect and restore habitat, water
quality, and water quantity for the Okaloosa darter outside of Eglin
AFB to protect the species in the foreseeable future; and
(2) Improved and maintained water quality and riparian habitat on
Eglin AFB, minimizing erosion at clay pits, road crossings, and steep
slopes to the extent that resembles historic, predisturbance
conditions.

Significant Portion of the Range

Having determined that the Okaloosa darter is no longer endangered
throughout its range as a consequence of the threats evaluated under
the five factors in the Act, we must next consider whether there are
any significant portions of its range where the species is currently
endangered. A portion of a species' range is significant if it is part
of the current range of the species and is important to the
conservation of the species because it contributes meaningfully to the
representation, resiliency, or redundancy of the species. The
contribution must be at a level such that its loss would result in a
decrease in the ability to conserve the species.
The first step in determining whether a species is endangered in a
significant portion of its range is to identify any portions of the
range that warrant further consideration. The range of a species can
theoretically be divided into portions in an infinite number of ways.
However, there is no purpose to analyzing portions of the range that
are not reasonably likely to be significant and endangered. To identify
only those portions that warrant further consideration, we determine
whether there is substantial information indicating that: (1) The
portions may be significant, and (2) the species may be in danger of
extinction there. In practice, a key part of this analysis is whether
the threats are geographically concentrated in some way. If the threats
to the species are essentially uniform throughout its range, no portion
is likely to warrant further consideration. Moreover, if any
concentration of threats applies only to portions of the range that are
not significant to the conservation of the species, such portions will
not warrant further consideration.
If we identify any portions that warrant further consideration, we
then determine whether in fact the species is endangered in any
significant portion of its range. Depending on the biology of the
species, its range, and the threats it faces, it may be more efficient
for the Service to address the significance question first, and in
others the status question first. Thus, if the Service determines that
a portion of the range is

[[Page 18101]]

not significant, the Service need not determine whether the species is
endangered there. Conversely, if the Service determines that the
species is not endangered in a portion of its range, the Service need
not determine if that portion is significant.
The threats identified above are fairly uniform throughout the
range of the Okaloosa darter. In a small percentage of the range that
occurs outside the Eglin AFB (10 percent of the drainage area, and 1.3
percent of the instream habitat), the threat of urbanization is more
pronounced. However, this is a small portion of the total range of the
species, is similar to the rest of the species' habitat, and does not
appear in other ways to have a significant impact on the overall status
of the species. Therefore, we have determined that there are no
portions of the range that qualify as a significant portion of the
range in which the darter is in danger of extinction.
In summary, the threats to Okaloosa darter habitat have been
significantly reduced as a result of Eglin AFB implementing habitat
improvement measures on the AFB's lands. Okaloosa darter populations
remain stable throughout most of their range, and have even expanded
their range in some areas. Based on the darter's improved status
throughout its range and the reduction in threats, we have determined
that none of the threats result in the darter being in danger of
extinction throughout all or a significant portion of its range.
However, certain threats to the darter and its habitat remain. We have
determined that, based on the status of the species and these remaining
threats, the Okaloosa darter meets the definition of threatened in that
it is likely to become endangered within the foreseeable future
throughout all or a significant portion of its range. Therefore, we are
reclassifying the darter's status from endangered to threatened under
the Act.

Available Conservation Measures

Conservation measures provided to species listed as endangered or
threatened under the Act include recognition, recovery actions,
requirements for Federal protection, and prohibitions against certain
practices. Recognition through listing increases public awareness of
threats to the Okaloosa darter, and promotes conservation actions by
Federal, State, and local agencies; private organizations; and
individuals. The Act provides for possible land acquisition and
cooperation with the State, and provides for recovery planning and
implementation. The protection required of Federal agencies and the
prohibitions against taking and harm are discussed, in part, below.
Section 7(a) of the Act, as amended, requires Federal agencies to
evaluate their actions with respect to the Okaloosa darter. Regulations
implementing this interagency cooperation provision of the Act are
codified at 50 CFR part 402. If a Federal action may affect the
Okaloosa darter or its habitat, the responsible Federal agency must
consult with the Service to ensure that any action authorized, funded,
or carried out by such agency is not likely to jeopardize the continued
existence of the Okaloosa darter. Federal agency actions that may
require consultation include: Eglin AFB mission activities, new
construction, culvert replacements, stream restoration, sediment
control projects, vegetation control, and right-of-way permitting for
pipelines and cables; U.S. Army Corps of Engineers involvement in
projects such as dredge-and-fill permits for roads, bridges, and
culverts; and Federal Highway Administration road projects.
The Act and its implementing regulations set forth a series of
general prohibitions and exceptions that apply to all endangered and
threatened wildlife. These prohibitions, codified at 50 CFR 17.21 and
50 CFR 17.31, in part, make it illegal for any person subject to the
jurisdiction of the United States to take (includes harm, harass,
pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to
attempt to engage in any such conduct), import or export, ship in
interstate commerce in the course of commercial activity, or sell or
offer for sale in interstate or foreign commerce any listed species. It
is also illegal to possess, sell, deliver, carry, transport, or ship
any such wildlife that has been taken in violation of the Act. Certain
exceptions apply to Service agents and agents of State conservation
agencies.
We may issue permits to carry out otherwise prohibited activities
involving endangered and threatened species under certain
circumstances. Regulations governing permits are codified at 50 CFR
part 13 and at 50 CFR 17.32 for threatened wildlife species. Such
permits are available for scientific purposes, to enhance the
propagation or survival of the species, and for incidental take in the
course of otherwise lawful activities. For threatened species, permits
are also available for zoological exhibition, educational purposes, or
special purposes consistent with the purposes of the Act.
Because the Okaloosa darter's extant range occurs almost
exclusively on Eglin AFB, the species is afforded considerable
protections from large-scale habitat disturbance. Those protections
have already been discussed under Factor D. above, and are added here
by reference.
Questions regarding whether specific activities will constitute a
violation of section 9 of the Act and applicable regulations should be
directed to Don Imm, Field Supervisor, Panama City Field Office (see
FOR FURTHER INFORMATION CONTACT). Requests for copies of the
regulations regarding listed species and inquiries about prohibitions
and permits may be addressed to the U.S. Fish and Wildlife Service,
Ecological Services Division, 1875 Century Boulevard, Suite 200,
Atlanta, GA 30345; telephone (404) 679-7313; facsimile (404) 679-7081.

Special Rule

The information presented above generally applies to threatened
species of fish and wildlife. However, the Service has the discretion
under section 4(d) of the Act to issue special regulations for a
threatened species that are necessary and advisable for the
conservation of the species. Threatened species implementing
regulations at 50 CFR 17.31 incorporate the prohibitions of section 9
of the Act for endangered species, except when a ``special rule'' is
promulgated under section 4(d) of the Act for a particular threatened
species. A special rule for a particular threatened species defines the
specific take prohibitions and exceptions that apply for that species
rather than incorporating all of the prohibitions of section 9 of the
Act. The prohibitions under section 9 of the Act currently make it
illegal to import, export, take, possess, deliver, receive, carry,
transport, ship in interstate commerce, or sell or offer for sale in
interstate or foreign commerce species listed under the Act. Take, as
defined in section 3 of the Act, means to harass, harm, pursue, hunt,
shoot, wound, kill, trap, capture, or collect, or to attempt to engage
in any such conduct. Threatened species that have special rules under
section 4(d) of the Act are listed in our regulations at 50 CFR 17.40
through 17.48.
Because we originally listed the Okaloosa darter as endangered, we
did not promulgate a special rule. However, now that we are
reclassifying the darter to threatened status, a special rule is
appropriate to provide for the continued conservation of the species.
Therefore, a special rule is included as part of this reclassification
from endangered to threatened status.
Although the range of the species is small, it is almost entirely
(98.7 percent) on Eglin AFB Federal lands. Darter drainages comprise 24
percent of Eglin

[[Page 18102]]

AFB, subjecting almost all actions undertaken on 24 percent of the base
to the interagency cooperation requirements of section 7 of the Act,
including habitat management and restoration specifically targeted at
darter conservation and as required by the Sikes Act and Sikes
Improvement Act through the Eglin INRMP. This special rule:
(1) Recognizes the positive recovery efforts and accomplishments of
Eglin AFB and the DOD in recovering the Okaloosa darter to the extent
that the darter no longer meets the definition of endangered;
(2) Provides increased regulatory and mission flexibility for Eglin
AFB;
(3) Helps streamline or eliminate review and permitting
requirements for habitat management and restoration activities, thus
providing a net benefit to the Okaloosa darter; and
(4) Enables the Service and Eglin AFB to better target limited
resources to other, more vulnerable areas or species.
Therefore, under section 4(d) of the Act, we determine, through
this special rule, that it is necessary and advisable to provide for
the conservation of the Okaloosa darter by allowing the take in
accordance with applicable Federal, State, and local laws, during the
following activities on Eglin AFB that are consistent with a Service-
approved INRMP and the Threatened and Endangered Species Component
Plan:
(1) Prescribed fire for land management to promote a healthy
ecosystem;
(2) Instream habitat restoration;
(3) Unpaved range road stabilization;
(4) Removal or replacement of culverts for the purpose of road
decommissioning, improving fish passage, or enhancing stream habitat;
and
(5) Scientific research and monitoring activities consistent with
an approved Okaloosa darter recovery plan, or otherwise approved by the
Service, both on and off of Eglin AFB.
All other activities resulting in take of Okaloosa darter remain
prohibited.
This special rule provides for the continued conservation of
Okaloosa darter by reducing the regulatory burden under the Act, and
thereby encouraging further recovery efforts on DOD lands. Minor
adverse impacts to the Okaloosa darter that are consistent with
provisions of this final 4(d) special rule will not appreciably
diminish the likelihood of recovery of the Okaloosa darter.

Effects of This Rule

This rule will revise our regulations at 50 CFR 17.11(h) to
reclassify the Okaloosa darter from endangered to threatened throughout
its range on the Federal List of Endangered and Threatened Wildlife.
This rule formally recognizes that this species is no longer in
imminent danger of extinction throughout all or a significant portion
of its range. However, this reclassification does not significantly
change the protection afforded this species under the Act. The
regulatory protections of section 9 and section 7 of the Act remain in
place. Anyone taking, attempting to take, or otherwise possessing an
Okaloosa darter, or parts thereof, in violation of section 9 of the Act
is still subject to a penalty under section 11 of the Act, unless their
action is covered under a special rule under section 4(d) of the Act.
Under section 7 of the Act, Federal agencies must ensure that any
actions they authorize, fund, or carry out are not likely to jeopardize
the continued existence of the Okaloosa darter.
Recovery actions directed at the darter will continue to be
implemented as outlined in the recovery plan for the Okaloosa darter
(Service 1998), including:
(1) Restoring and protecting habitat in the six Okaloosa darter
stream watersheds;
(2) Protecting water quality and quantity in the six Okaloosa
darter streams;
(3) Monitoring and annually assessing populations and habitat
conditions of Okaloosa and brown darters, and water quality and
quantity in the streams; and
(4) Establishing a public information and education program and
evaluating its effectiveness.

Required Determinations

Section 7 Consultation

A special rule under section 4(d) of the Act is included in this
downlisting rule. The Service is not required to consult on this rule
under section 7(a)(2) of the Act. The development of protective
regulations for a threatened species are an inherent part of the
section 4 listing process. The Service must make this determination
considering only the ``best scientific and commercial data available.''
A necessary part of this listing decision is also determining what
protective regulations are ``necessary and advisable to provide for the
conservation of [the] species.'' Determining what prohibitions and
authorizations are necessary to conserve the species, like the listing
determination of whether the species meets the definition of endangered
or threatened, is not a decision that Congress intended to undergo
section 7 consultation.

National Environmental Policy Act

We have determined that we do not need to prepare an Environmental
Assessment, or an Environmental Impact Statement, as defined under the
authority of the National Environmental Policy Act of 1969 (42 U.S.C.
4321 et seq.), in connection with regulations adopted under section
4(a) of the Act. We published a notice outlining our reasons for this
determination in the Federal Register on October 25, 1983 (48 FR
49244).

References Cited

A complete list of the references used to develop this rule is
available upon request from Don Imm, Field Supervisor, Panama City
Field Office (see FOR FURTHER INFORMATION CONTACT).

Author

The primary author of this document is Karen Herrington of the
Panama City Field Office (see ADDRESSES).

List of Subjects in 50 CFR Part 17

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

Regulation Promulgation

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

PART 17--[AMENDED]

0
1. The authority citation for part 17 continues to read as follows:

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

0
2. Amend Sec. 17.11(h) by revising the entry for ``Darter, Okaloosa''
under ``FISHES'' in the List of Endangered and Threatened Wildlife to
read as follows:

Sec. 17.11 Endangered and threatened wildlife.

* * * * *
(h) * * *

[[Page 18103]]

--------------------------------------------------------------------------------------------------------------------------------------------------------
Species Vertebrate
-------------------------------------------------------- population where Critical Special
Historic range endangered or Status When listed habitat rules
Common name Scientific name threatened
--------------------------------------------------------------------------------------------------------------------------------------------------------

* * * * * * *
Fishes .................... .................... ................... ............. ........... ........... ...........

* * * * * * *
Darter, Okaloosa................. Etheostoma okaloosae U.S.A. (FL)......... Entire............. T 6, 787 NA 17.44(bb)

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

0
3. Amend Sec. 17.44 by adding a paragraph (bb) to read as follows:

Sec. 17.44 Special rules--fishes.

* * * * *
(bb) Okaloosa darter (Etheostoma okaloosae).
(1) Except as noted in paragraphs (bb)(2) and (bb)(3) of this
section, all prohibitions of 50 CFR 17.31 and exemptions of 50 CFR
17.32 apply to the Okaloosa darter.
(i) No person may possess, sell, deliver, carry, transport, ship,
import, or export, by any means whatsoever, any Okaloosa darters taken
in violation of this section or in violation of applicable State fish
and wildlife conservation laws or regulations.
(ii) It is unlawful for any person to attempt to commit, solicit
another to commit, or cause to be committed, any offense listed in this
special rule.
(2) The following activities, which may result in incidental take
of the Okaloosa darter, are allowed on Eglin Air Force Base (AFB),
provided that the activities occur in accordance with applicable
Federal, State, and local laws, and are consistent with a Service-
approved Integrated Natural Resources Management Plan by Eglin AFB and
with Eglin AFB's Threatened and Endangered Species Component Plan:
(i) Prescribed fire for land management to promote a healthy
ecosystem;
(ii) Instream habitat restoration;
(iii) Unpaved range road stabilization; and
(iv) Removal or replacement of culverts for the purpose of road
decommissioning, improving fish passage, or enhancing stream habitat.
(3) Scientific research and monitoring activities that may result
in incidental take of the Okaloosa darter are allowed, provided these
activities are consistent with a Service-approved Okaloosa darter
recovery plan, or otherwise approved by the Service, whether those
activities occur on or off of Eglin AFB.
(4) Take caused by any activities not listed in paragraph (bb)(2)
and (bb)(3) of this section is prohibited.

Dated: March 21, 2011.
Rowan W. Gould,
Acting Director, Fish and Wildlife Service.
[FR Doc. 2011-7668 Filed 3-31-11; 8:45 am]
BILLING CODE 4310-55-P