Federal Register, Volume 88 Issue 244 (Thursday, December 21, 2023)

[Federal Register Volume 88, Number 244 (Thursday, December 21, 2023)]
[Proposed Rules]
[Pages 88338-88359]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-27873]

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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-R4-ES-2023-0220; FF09E21000 FXES1111090FEDR 245]
RIN 1018-BG92

Endangered and Threatened Wildlife and Plants; Threatened Species
Status for Coal Darter With Section 4(d) Rule

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), propose to
list the coal darter (Percina brevicauda), a small, benthic freshwater
fish native to the Mobile River Basin in Alabama, as a threatened
species under the Endangered Species Act of 1973, as amended (Act).
This determination also serves as our 12-month finding on a petition to
list the coal darter. After a review of the best available scientific
and commercial information, we find that listing the species is
warranted. Accordingly, we propose to list the coal darter as a
threatened species with a rule issued under section 4(d) of the Act
(``4(d) rule'') to provide for the conservation of the species. If we
finalize this rule as proposed, it would add this species to the List
of Endangered and Threatened Wildlife and extend the Act's protections
to the species.

DATES: We will accept comments received or postmarked on or before
February 20, 2024. Comments submitted electronically using the Federal
eRulemaking Portal (see ADDRESSES, below) must be received by 11:59
p.m. eastern time on the closing date. We must receive requests for a
public hearing, in writing, at the address shown in FOR FURTHER
INFORMATION CONTACT by February 5, 2024.

ADDRESSES:
Written comments: You may submit comments by one of the following
methods:
(1) Electronically: Go to the Federal eRulemaking Portal: https://www.regulations.gov. In the Search box, enter FWS-R4-ES-2023-0220,
which is the docket number for this rulemaking. Then, click on the
Search button. On the resulting page, in the panel on the left side of
the screen, under the Document Type heading, check the Proposed Rule
box to locate this document. You may submit a comment by clicking on
``Comment.''
(2) By hard copy: Submit by U.S. mail to: Public Comments
Processing, Attn: FWS-R4-ES-2023-0220, U.S. Fish and Wildlife Service,
MS: PRB/3W, 5275 Leesburg Pike, Falls Church, VA 22041-3803.
We request that you send comments only by the methods described
above. We will post all comments on https://www.regulations.gov. This
generally means that we will post any personal information you provide
us (see Information Requested, below, for more information).
Availability of supporting materials: Supporting materials, such as
the species status assessment report, are available on the Service's
website at https://www.fws.gov/office/alabama-ecological-services, at
https://ecos.fws.gov/ecp/species/9959, and at https://www.regulations.gov under Docket No. FWS-R4-ES-2023-0220.

FOR FURTHER INFORMATION CONTACT: William Pearson, Field Supervisor,
U.S. Fish and Wildlife Service, Alabama Ecological Services Field
Office, 1208 Main Street, Daphne, AL 36526; telephone 251-441-5181.
Individuals in the United States who are deaf, deafblind, hard of
hearing, or have a speech disability may dial 711 (TTY, TDD, or
TeleBraille) to access telecommunications relay services. Individuals
outside the United States should use the relay services offered within
their country to make international calls to the point-of-contact in
the United States. Please see Docket No. FWS-R4-ES-2023-0220 on https://www.regulations.gov for a document that summarizes this proposed rule.

SUPPLEMENTARY INFORMATION:

Executive Summary

Why we need to publish a rule. Under the Act (16 U.S.C. 1531 et
seq.), a species warrants listing if it meets the definition of an
endangered species (in danger of extinction throughout all or a
significant portion of its range) or a

[[Page 88339]]

threatened species (likely to become endangered within the foreseeable
future throughout all or a significant portion of its range). If we
determine that a species warrants listing, we must list the species
promptly and designate the species' critical habitat to the maximum
extent prudent and determinable. We have determined that the coal
darter meets the Act's definition of a threatened species; therefore,
we are proposing to list it as such. Listing a species as a threatened
species can be completed only by issuing a rule through the
Administrative Procedure Act rulemaking process (5 U.S.C. 551 et seq.).
What this document does. We propose to list the coal darter as a
threatened species with a rule issued under section 4(d) of the Act.
The basis for our action. Under the Act, we may determine that a
species is an endangered or threatened species because of any of five
factors: (A) The present or threatened destruction, modification, or
curtailment of its habitat or range; (B) overutilization for
commercial, recreational, scientific, or educational purposes; (C)
disease or predation; (D) the inadequacy of existing regulatory
mechanisms; or (E) other natural or manmade factors affecting its
continued existence. We have determined that the coal darter meets the
definition of a threatened species due to habitat loss or degradation
from the following activities or conditions: hydrologic alteration by
impoundments, including dams and other barriers; agriculture (poultry
farming); urban development or change in land cover, including
increased density of residential and commercial infrastructure;
resource extraction, including mining and silviculture operations that
do not follow State-approved best management practices (BMPs);
diminished water quality from point and nonpoint source chemical
contamination and sedimentation (Factor A); and climate change (Factor
E).

Information Requested

We intend that any final action resulting from this proposed rule
will be based on the best scientific and commercial data available and
be as accurate and as effective as possible. Therefore, we request
comments or information from other governmental agencies, Native
American Tribes, the scientific community, industry, or any other
interested parties concerning this proposed rule. We particularly seek
comments concerning:
(1) The species' biology, range, and population trends, including:
(a) Biological or ecological requirements of the species, including
habitat requirements for feeding, breeding, and sheltering;
(b) Genetics and taxonomy;
(c) Historical and current range, including distribution patterns
and the locations of any additional populations of this species;
(d) Historical and current population levels, and current and
projected trends; and
(e) Past and ongoing conservation measures for the species, its
habitat, or both.
(2) Threats and conservation actions affecting the species,
including:
(a) Factors that may be affecting the continued existence of the
species, which may include habitat modification or destruction,
overutilization, disease, predation, the inadequacy of existing
regulatory mechanisms, or other natural or manmade factors;
(b) Biological, commercial trade, or other relevant data concerning
any threats (or lack thereof) to this species; and
(c) Existing regulations or conservation actions that may be
addressing threats to this species.
(3) Additional information concerning the historical and current
status of this species.
(4) Information on regulations that may be necessary and advisable
to provide for the conservation of the coal darter and that we can
consider in developing a 4(d) rule for the species. In particular, we
seek information concerning the extent to which we should include any
of the Act's section 9 prohibitions in the 4(d) rule or whether we
should consider any additional exceptions from the prohibitions in the
4(d) rule.
Please include sufficient information with your submission (such as
scientific journal articles or other publications) to allow us to
verify any scientific or commercial information you include.
Please note that submissions merely stating support for, or
opposition to, the action under consideration without providing
supporting information, although noted, do not provide substantial
information necessary to support a determination. Section 4(b)(1)(A) of
the Act directs that determinations as to whether any species is an
endangered or a threatened species must be made solely on the basis of
the best scientific and commercial data available.
You may submit your comments and materials concerning this proposed
rule by one of the methods listed in ADDRESSES. We request that you
send comments only by the methods described in ADDRESSES.
If you submit information via https://www.regulations.gov, your
entire submission--including any personal identifying information--will
be posted on the website. If your submission is made via a hardcopy
that includes personal identifying information, you may request at the
top of your document that we withhold this information from public
review. However, we cannot guarantee that we will be able to do so. We
will post all hardcopy submissions on https://www.regulations.gov.
Comments and materials we receive, as well as supporting
documentation we used in preparing this proposed rule, will be
available for public inspection on https://www.regulations.gov.
Our final determination may differ from this proposal because we
will consider all comments we receive during the comment period as well
as any information that may become available after this proposal. Based
on the new information we receive (and, if relevant, any comments on
that new information), we may conclude that the species is endangered
instead of threatened, or we may conclude that the species does not
warrant listing as either an endangered species or a threatened
species. In addition, we may change the parameters of the prohibitions
or the exceptions to those prohibitions in the 4(d) rule if we conclude
it is appropriate in light of comments and new information received.
For example, we may expand the prohibitions to include prohibiting
additional activities if we conclude that those additional activities
are not compatible with conservation of the species. Conversely, we may
establish additional exceptions to the prohibitions in the final rule
if we conclude that the activities would facilitate or are compatible
with the conservation and recovery of the species. In our final rule,
we will clearly explain our rationale and the basis for our final
decision, including why we made changes, if any, that differ from this
proposal.

Public Hearing

Section 4(b)(5) of the Act provides for a public hearing on this
proposal, if requested. Requests must be received by the date specified
in DATES. Such requests must be sent to the address shown in FOR
FURTHER INFORMATION CONTACT. We will schedule a public hearing on this
proposal, if requested, and announce the date, time, and place of the
hearing, as well as how to obtain reasonable accommodations, in the
Federal Register and local newspapers

[[Page 88340]]

at least 15 days before the hearing. We may hold the public hearing in
person or virtually via webinar. We will announce any public hearing on
our website, in addition to the Federal Register. The use of virtual
public hearings is consistent with our regulations at 50 CFR
424.16(c)(3).

Previous Federal Actions

On April 20, 2010, we received a petition from the Center for
Biological Diversity (CBD), Alabama Rivers Alliance, Clinch Coalition,
Dogwood Alliance, Gulf Restoration Network, Tennessee Forests Council,
and West Virginia Highlands Conservancy to list 404 aquatic, riparian,
and wetland species, including the coal darter, as endangered or
threatened species under the Act. In response to the petition, we
published a partial 90-day finding on September 27, 2011 (76 FR 59836),
in which we announced our finding that the petition contained
substantial information indicating that listing may be warranted for
numerous species, including the coal darter.

Peer Review

A species status assessment (SSA) team prepared an SSA report for
the coal darter. The SSA team was composed of Service biologists, in
consultation with other species experts. The SSA report represents a
compilation of the best scientific and commercial data available
concerning the status of the species, including the impacts of past,
present, and future factors (both negative and beneficial) affecting
the species.
In accordance with our joint policy on peer review published in the
Federal Register on July 1, 1994 (59 FR 34270), and our August 22,
2016, memorandum updating and clarifying the role of peer review in
listing actions under the Act, we solicited independent scientific
review of the information contained in the coal darter SSA report. We
sent the SSA report to five independent peer reviewers and received one
response. Results of this structured peer review process can be found
at https://www.regulations.gov. In preparing this proposed rule, we
incorporated the results of these reviews, as appropriate, into the SSA
report, which is the foundation for this proposed rule.

Summary of Peer Reviewer Comments

As discussed in Peer Review, above, we received comments from one
peer reviewer on the draft SSA report. We reviewed the comment for
substantive issues and new information regarding the information
contained in the SSA report. The peer reviewer generally provided
constructive suggestions and was broadly supportive. No substantive
changes to our analysis and conclusions within the SSA report were
deemed necessary, and peer reviewer comments are addressed in version
1.1 of the SSA report.

I. Proposed Listing Determination

Background

A thorough review of the taxonomy, life history, and ecology of the
coal darter is presented in the SSA report (version 1.1; Service 2023,
pp. 11-15).
The coal darter (Percina brevicauda) is a small, benthic freshwater
fish native to the Mobile River Basin in Alabama. The species occurs in
small to medium-sized rivers and the larger tributaries of those rivers
with moderate to swift flowing water. It has been observed in riffle
and run habitat, as well as in glide and pool habitat with stable sand,
gravel, cobble, and bedrock substrates with low levels of siltation.
The coal darter is a member of the genus Percina in the family Percidae
(perches), and was originally described as the channel darter, first as
Etheostoma copelandi (Gilbert 1891) and subsequently, as Percina
copelandi (Moore 1957) when the channel darter was reclassified into
the genus Percina. In 1994, the coal darter was described as a unique
species, named Percina brevicauda, and placed with two other species
recognized within the subgenus Cottogaster (the channel darter (Percina
copelandi) and the pearl darter (Percina aurora)) (Suttkus and Bart
1994). Genetic analyses provided strong support of Cottogaster being a
monophyletic clade, with these three species being sister clades.
The coal darter is a small, elongated, slightly compressed
freshwater fish reaching up to 50 millimeters (mm) (1.96 inches (in))
in total length with smaller fins compared to other Cottogaster
members. It has dark lateral blotches and a continuous lateral stripe
pattern on the body. Nuptial males are heavily pigmented, including on
the ventral surface of the head and body, giving them a dusky
appearance, which is the reason for the common name, coal darter. They
are diurnal feeders and consume aquatic invertebrates (insects,
crustaceans, worms). Little is known about the specific life-history
characteristics of the coal darter. Most of the life-history knowledge
for the species is inferred from information known for the channel
darter and pearl darter.
The coal darter is endemic to the eastern and central part of the
Mobile River Basin in the State of Alabama. The species primarily
occupies habitat above the Fall Line within the Piedmont, Ridge and
Valley, and Southwestern Appalachians level III ecoregions.
Additionally, there are several historical records below the Fall Line
in the Cahaba River and Black Warrior River that are in the
Southeastern Plains ecoregion.
Presently, the species has a disjunct distribution, with
populations in the Cahaba River, the Locust Fork of the Black Warrior
River, and two tributaries in the lower Coosa River (Weogufka Creek and
Hatchet Creek). Within the Locust Fork watershed, occurrences are
mostly in the Locust Fork mainstem, but there are also occurrences in
Turkey Creek, the Little Warrior River, and Blackburn Fork. In the
Cahaba River system, the coal darter is predominantly found in the
mainstem of the Cahaba River with occurrences in Shades Creek and the
Little Cahaba River.

Regulatory and Analytical Framework

Regulatory Framework

Section 4 of the Act (16 U.S.C. 1533) and the implementing
regulations in title 50 of the Code of Federal Regulations set forth
the procedures for determining whether a species is an endangered
species or a threatened species, issuing protective regulations for
threatened species, and designating critical habitat for endangered and
threatened species. In 2019, jointly with the National Marine Fisheries
Service, the Service issued a final rule that revised the regulations
in 50 CFR part 424 regarding how we add, remove, and reclassify
endangered and threatened species and the criteria for designating
listed species' critical habitat (84 FR 45020; August 27, 2019). On the
same day, the Service also issued final regulations that, for species
listed as threatened species after September 26, 2019, eliminated the
Service's general protective regulations automatically applying to
threatened species the prohibitions that section 9 of the Act applies
to endangered species (84 FR 44753; August 27, 2019). Our analysis for
this decision applied the regulations that are currently in effect,
which include the 2019 revisions. However, we proposed further
revisions to these regulations on June 22, 2023 (88 FR 40764). In case
those revisions are finalized before we make a final status
determination for this species, we have also undertaken an analysis of
whether the decision would be different if we were to apply those
proposed revisions. We concluded that the decision would have been the
same if we had applied the proposed 2023 regulations. The

[[Page 88341]]

analyses under both the regulations currently in effect and the
regulations after incorporating the June 22, 2023, proposed revisions
are included in our decision file.
The Act defines an ``endangered species'' as a species that is in
danger of extinction throughout all or a significant portion of its
range, and a ``threatened species'' as a species that is likely to
become an endangered species within the foreseeable future throughout
all or a significant portion of its range. The Act requires that we
determine whether any species is an endangered species or a threatened
species because of any of the following factors:
(A) The present or threatened destruction, modification, or
curtailment of its habitat or range;
(B) Overutilization for commercial, recreational, scientific, or
educational purposes;
(C) Disease or predation;
(D) The inadequacy of existing regulatory mechanisms; or
(E) Other natural or manmade factors affecting its continued
existence.
These factors represent broad categories of natural or human-caused
actions or conditions that could have an effect on a species' continued
existence. In evaluating these actions and conditions, we look for
those that may have a negative effect on individuals of the species, as
well as other actions or conditions that may ameliorate any negative
effects or may have positive effects.
We use the term ``threat'' to refer in general to actions or
conditions that are known to or are reasonably likely to negatively
affect individuals of a species. The term ``threat'' includes actions
or conditions that have a direct impact on individuals (direct
impacts), as well as those that affect individuals through alteration
of their habitat or required resources (stressors). The term ``threat''
may encompass--either together or separately--the source of the action
or condition or the action or condition itself.
However, the mere identification of any threat(s) does not
necessarily mean that the species meets the statutory definition of an
``endangered species'' or a ``threatened species.'' In determining
whether a species meets either definition, we must evaluate all
identified threats by considering the species' expected response and
the effects of the threats--in light of those actions and conditions
that will ameliorate the threats--on an individual, population, and
species level. We evaluate each threat and its expected effects on the
species, then analyze the cumulative effect of all of the threats on
the species as a whole. We also consider the cumulative effect of the
threats in light of those actions and conditions that will have
positive effects on the species, such as any existing regulatory
mechanisms or conservation efforts. The Secretary determines whether
the species meets the Act's definition of an ``endangered species'' or
a ``threatened species'' only after conducting this cumulative analysis
and describing the expected effect on the species now and in the
foreseeable future.
The Act does not define the term ``foreseeable future,'' which
appears in the statutory definition of ``threatened species.'' Our
implementing regulations at 50 CFR 424.11(d) set forth a framework for
evaluating the foreseeable future on a case-by-case basis. The term
``foreseeable future'' extends only so far into the future as we can
reasonably determine that both the future threats and the species'
responses to those threats are likely. In other words, the foreseeable
future is the period of time in which we can make reliable predictions.
``Reliable'' does not mean ``certain''; it means sufficient to provide
a reasonable degree of confidence in the prediction. Thus, a prediction
is reliable if it is reasonable to depend on it when making decisions.
It is not always possible or necessary to define the foreseeable
future as a particular number of years. Analysis of the foreseeable
future uses the best scientific and commercial data available and
should consider the timeframes applicable to the relevant threats and
to the species' likely responses to those threats in view of its life-
history characteristics. Data that are typically relevant to assessing
the species' biological response include species-specific factors such
as lifespan, reproductive rates or productivity, certain behaviors, and
other demographic factors.

Analytical Framework

The SSA report documents the results of our comprehensive
biological review of the best scientific and commercial data regarding
the status of the species, including an assessment of the potential
threats to the species. The SSA report does not represent our decision
on whether the species should be proposed for listing as an endangered
or threatened species under the Act. However, it does provide the
scientific basis that informs our regulatory decisions, which involve
the further application of standards within the Act and its
implementing regulations and policies.
To assess the coal darter's viability, we used the three
conservation biology principles of resiliency, redundancy, and
representation (Shaffer and Stein 2000, pp. 306-310). Briefly,
resiliency is the ability of the species to withstand environmental and
demographic stochasticity (for example, wet or dry, warm or cold
years); redundancy is the ability of the species to withstand
catastrophic events (for example, droughts, large pollution events);
and representation is the ability of the species to adapt to both near-
term and long-term changes in its physical and biological environment
(for example, climate conditions, pathogens). In general, species
viability will increase with increases in resiliency, redundancy, and
representation (Smith et al. 2018, p. 306). Using these principles, we
identified the species' ecological requirements for survival and
reproduction at the individual, population, and species levels, and
described the beneficial and risk factors influencing the species'
viability.
The SSA process can be categorized into three sequential stages.
During the first stage, we evaluated the individual species' life-
history needs. The next stage involved an assessment of the historical
and current condition of the species' demographics and habitat
characteristics, including an explanation of how the species arrived at
its current condition. The final stage of the SSA involved making
predictions about the species' responses to positive and negative
environmental and anthropogenic influences. Throughout all of these
stages, we used the best available information to characterize
viability as the ability of a species to sustain populations in the
wild over time. We use this information to inform our regulatory
decision.
The following is a summary of the key results and conclusions from
the SSA report; the full SSA report can be found at Docket No. FWS-R4-
ES-2023-0220 on https://www.regulations.gov and at https://ecos.fws.gov/ecp/species/9959.

Summary of Biological Status and Threats

In this discussion, we review the biological condition of the
species and its resources, and the threats that influence the species'
current and future condition, in order to assess the species' overall
viability and the risks to that viability.

Individual, Population, and Species Needs

A thorough review of the coal darter's resource needs is presented
in chapter

[[Page 88342]]

3 of the SSA report (version 1.1; Service 2023, pp. 17-18).
For the coal darter to survive and reproduce, individuals need
suitable habitat that supports essential life functions at all life
stages (see table 1, below). Four elements appear to be essential to
the survival and reproduction of individuals: sufficient water quality,
flowing water, stable substrates, and habitat heterogeneity.
For coal darter populations to be resilient, the needs of
individuals require sufficient water quality, flowing water, stable
substrates, and habitat heterogeneity to be met on a larger scale (see
table 1, below). Stream reaches with suitable habitat must be large
enough to support a sufficient reservoir of potential mates for coal
darters to breed with and maintain sufficient genetic health while
avoiding issues associated with small population sizes, such as genetic
drift and inbreeding depression.
Connectivity is also an important factor for populations because it
facilitates genetic health for populations and enables movement of
individuals to suitable habitats that can accommodate the life-history
needs for the species (i.e., spawning, refuge, feeding). Natural flow
regimes are an important resource need for coal darter populations, as
flows may help trigger spawning and are a habitat requirement for all
life stages.
At the species level, the coal darter needs a sufficient number and
distribution of healthy populations to withstand environmental
stochasticity (resiliency) and catastrophes (redundancy), and to adapt
to biological and physical changes in its environment (representation).
For the species to be viable, there must be adequate redundancy
(suitable number, distribution, and connectivity of populations to
allow the species to withstand catastrophic events) and representation
(genetic and environmental diversity to allow the species to adapt to
changing environmental conditions). Redundancy improves with increasing
numbers of resilient populations distributed across the species' range,
and connectivity (either natural or human-facilitated) allows connected
populations to ``rescue'' each other after catastrophes. Representation
improves with the persistence of populations having greater genetic and
ecological diversity across the species' range, resulting in an
increased ability to adapt to changing environmental conditions. Long-
term viability will require resilient populations; for the coal darter,
this will mean maintaining quality stream habitat (for example,
sufficient water quality, natural flow regime, stable substrate, and
adequate habitat heterogeneity) to support multiple populations across
the species' range (see table 1, below).

Table 1--Summary of Coal Darter Individual Resource Needs by Life Stage
------------------------------------------------------------------------
Life stage Resources needed
------------------------------------------------------------------------
Eggs.............................. Suitable gravel/cobble
substrate for egg deposition.
Low amounts of silt and
fine sediment.
Suitable water quality and
quantity.
Larvae............................ Connectivity to suitable
habitat for dispersal.
Sufficient water flow for
dispersal.
Juveniles......................... Sufficient gravel/cobble/
boulder substrate.
Aquatic invertebrate food
source.
Sufficient water flow.
Presence of habitat
heterogeneity (riffles, runs,
pools).
Suitable water quality and
quantity.
Adults............................ Sufficient gravel/cobble
substrate.
Sufficient structural
habitat (rock, aquatic vegetation).
Aquatic invertebrate food
source.
Sufficient water flow.
Presence of habitat
heterogeneity (riffles, runs,
pools).
Sufficient water quality
and quantity.
------------------------------------------------------------------------

At the species level, the coal darter requires sufficient
connectivity between populations to facilitate gene flow and ensure
adaptive potential. Genetic diversity should be high enough that the
species will be able to adapt to changing environmental factors through
the process of natural selection. Additionally, the species needs to
have sufficient connectivity between enough individuals to promote an
effective population size that is high enough to maintain evolutionary
potential and genetic adaptive capacity. To evaluate the current and
future viability of the coal darter, we assessed a range of conditions
to allow us to consider the species' resiliency, representation, and
redundancy.

Threats

A thorough review of the threats affecting the coal darter is
presented in chapter 4 of the SSA report (version 1.1, Service 2023,
pp. 23-31).
The coal darter is influenced by stressors affecting water quality,
water flow, stream connectivity, and genetic diversity. The main threat
is habitat loss or degradation from the following activities or
conditions: hydrologic alteration by impoundments, including dams and
other barriers; agriculture (poultry farming); diminished water quality
from point and nonpoint source chemical contamination and
sedimentation; urban development or change in land cover, including
increased density of residential and commercial infrastructure;
resource extraction, including mining and silviculture operations that
do not follow State-approved BMPs; and climate change (Service 2023, p.
23).
Impoundments
Impoundment of rivers is a primary threat to aquatic species in the
Southeast (Service 2023, pp. 23-24). Dams modify habitat conditions and
aquatic communities both upstream and downstream of an impoundment.
Upstream of dams, habitat is flooded and in-channel conditions change
from flowing to still water, with increased depth, decreased levels of
dissolved oxygen, and increased sedimentation. Downstream of dams, flow
regimes of the released tailwater vary with resulting fluctuations in
water temperature and dissolved oxygen levels, the substrate is
scoured, and downstream reaches are eroded. These negative tailwater
effects on habitat can extend many kilometers downstream. Dams fragment
habitat for the coal darter by blocking corridors for

[[Page 88343]]

migration and dispersal, resulting in population isolation and
increased risk of extirpation and extinction. All known populations of
the coal darter are separated from each other by large dams. The
virtually complete loss of the Coosa population and approximately 50
percent loss of the Black Warrior population are attributed to the
construction of dams, reservoir creation, and channelization that
occurred in these systems in the late 1800s to mid-1900s (see table 2,
below). Impoundments in the Black Warrior River system were created to
transport goods between Mobile and Tuscaloosa, and ultimately
Birmingham. Construction of these impoundments included removal and
clearing of overhanging trees and vegetation, blasting of rock and
shoal complexes, removal of submerged woody debris and logs, and
modification or removal of sand and gravel bars (Mettee 2019, pp. 10-
22). Impoundments in the Coosa River Systems for hydroelectric power
production were constructed by Alabama Power between the 1920s and
1960s. These impoundments are still in place today and significantly
reduced the amount of available habitat for coal darters in the Coosa
and Black Warrior River systems (Table 2).

Table 2--Comparison of Historically Occupied River Lengths and Currently
Occupied River Lengths of Coal Darters in Three Major River Systems
[Service 2023, p. 14]
------------------------------------------------------------------------
Historically
River systems occupied Currently occupy
------------------------------------------------------------------------
Black Warrior................... At least 130 river 65 rmi/104.7 rkm.
miles (rmi)/209.2
river kilometers
(rkm).
Cahaba.......................... 133 rmi/214 rkm... 114.9 rmi/184.9
rkm.
Coosa........................... At least 92.2 rmi/ 9 rmi/14.5 rkm in
148.4 rkm. Hatchet Creek,
one site in
Weogufka Creek.
------------------------------------------------------------------------

The Cahaba River, at 190 rmi/305.8 rkm long, is often referred to
as Alabama's longest free-flowing stream. However, two barriers have
impacted the flow of the river. The first is a low-head dam, located at
Highway 280 near Acton, Alabama, and built in 1891. It is 15 feet tall
and backs up water for withdrawal by Birmingham. This low-head dam is
significantly smaller than the dams on the Black Warrior River and
Coosa River, and as such, the Highway 280 dam has not converted vast
areas of habitat, meaning habitat for the coal darter is still present
and the species is still able to occupy habitat both upstream and
downstream of the dam. Although coal darters occur upstream and
downstream of the Highway 280 dam, this dam represents a significant
barrier to upstream movement of coal darters. Downstream dispersal
could be possible when larvae enter the water column and are carried
downstream during a process known as pelagic larval drift (PLD).
Because individuals upstream of the dam are isolated from those
downstream, the upstream subpopulation is at a higher risk of genetic
drift and inbreeding depression. The second barrier, the Marvel Slab,
was removed in 2004; it is discussed in more detail under Conservation
Efforts and Regulatory Mechanisms, below.
Water Quality
In general, darters tend to be sensitive to poor water quality
(Service 2023, pp. 24-26). According to the Fishery Index Biotic
Integrity (IBI) reports and related fish community survey work, coal
darters are consistently labeled as a ``disturbance-sensitive'' or an
``intolerant'' (of habitat impairments) species. Based on its narrow
distribution and habitat conditions (including water quality
parameters) where coal darters are found, the coal darter needs clean,
relatively clear, flowing water to survive and carry out its basic
life-history functions; thus, water quality degradation is considered a
threat to the species. Below, we discuss the causes of water quality
degradation in more detail.
Point and Nonpoint Source Pollution--Inputs of point source
pollution (discharge from an identifiable source) and nonpoint source
pollution (diffuse land surface runoff) across the coal darter's range
are numerous and widespread. Point source pollution originates from
inadequately treated effluent from industrial plants, sanitary
landfills, sewage treatment plants, active surface mining, drain fields
from individual private homes, and others.
Nonpoint source pollution may originate from agricultural
activities, poultry and cattle feedlots, abandoned mine runoff,
construction, silviculture operations that do not follow State-approved
BMPs, failing septic tanks, and contaminated runoff from urban areas.
These sources have the potential to contribute pollution, including
sediments, heavy metals, fertilizers, pesticides (e.g., herbicides,
insecticides, fungicides, and rodenticides), animal wastes, septic tank
and gray water leakage, and oils and greases, to streams. Water quality
declines resulting from this pollution cause nitrification, decreases
in dissolved oxygen (DO) concentration, increases in acidity and
conductivity, and introduction of toxicants. These alterations likely
have direct (decreased survival and/or reproduction) and indirect
(loss, degradation, and fragmentation of habitat) effects on coal
darters. For the coal darter, submerged vegetation provides spawning
habitat for adults, refugia from predators, and habitat for prey of all
life stages. Aquatic vegetation also provides substrate stability for
the species. Degraded water quality and high algal biomass that result
from pollutant inputs cause loss of these critical submerged plant
species (e.g., water willow (Justicia americana), river weed
(Podostemum ceratophyllum)), which are vital habitat for the coal
darter and its prey.
Sedimentation--Sedimentation has been linked to changes in fish
assemblages and community structure (Shepard et al. 1994; Onorato et
al. 2000, pp. 56-58). A wide range of current activities and land uses
can lead to excessive sedimentation within streams, which has occurred
throughout the coal darter's range, especially in Hatchet Creek.
Sources potentially include agricultural practices, construction
activities, stormwater runoff, unpaved roads, silvicultural activities,
utility crossings, and mining. Fine sediments are not only introduced
into streams during present day activities, but historical land-use
practices may have substantially altered hydrological and
geomorphological processes such that sediments continued to be input
into streams for several decades after those activities ceased.
Increases in sedimentation from sources such as agriculture,
silviculture operations that do not follow State-approved BMPs, mining,
and

[[Page 88344]]

urbanization are of concern for the coal darter and can negatively
affect the species by reducing growth rates, disease tolerance, and
gill function; reducing spawning habitat, reproductive success, and egg
(embryo), larva, and juvenile development; reducing food availability
through reductions in prey; reducing foraging efficiency; and reducing
shelter (Service 2023, pp. 25-26).
Agriculture
Agricultural practices such as traditional farming, feedlot
operations, and associated land-use practices can contribute pollutants
to rivers. These practices can also degrade habitat by encouraging the
erosion of stream banks, which results in alterations to stream
hydrology and geomorphology. Nutrients, bacteria, pesticides, and other
organic compounds are generally found in higher concentrations in areas
around agriculture than in forested areas. Contaminants associated with
agriculture (fertilizers, pesticides, herbicides, and animal waste) can
cause degradation of water quality and habitats through instream oxygen
deficiencies, excess nutrification, and excessive algal growths, with a
related alteration in fish community composition. In the Alabama
Department of Environmental Management's (ADEM's) 2022 list of impaired
waters, which was prepared in accordance with section 303(d) of the
Clean Water Act (CWA; 33 U.S.C. 1251 et seq.) and submitted to the
Environmental Protection Agency (EPA), Hatchet Creek was designated as
impaired due the presence of pathogens from animal feeding operations
and pasture grazing, and Weogufka Creek was designated as impaired due
to the presence of pathogens from pasture grazing (ADEM 2022, p. 300).
Poultry farming, undertaken primarily in poultry houses, occurs
within the range of the coal darter, especially in and around the
Locust Fork watershed. Poultry houses have an estimated ability to
produce approximately 100 tons of litter a year (assuming a 20,000-
square-foot poultry house stocked at one bird per square foot and six
flocks produced per year, which is a probable underestimate of litter
production per broiler house). Poultry litter is a mixture of chicken
manure, feathers, spilled food, and bedding material that is used to
fertilize pastureland or row crops that frequently occur adjacent to
rivers and streams.
Runoff from heavy rains carries excess nutrients from chicken
manure into nearby streams as a result of surface-spreading of litter.
Litter can also contain arsenic, which is formed from a chemical
routinely used as a feed additive to prevent disease and stimulate
growth, and it enters streams through runoff (Stolze et al. 2007, p.
821). Other substances often found in poultry litter include fecal
coliform, Salmonella, and other pathogens; pesticide residue; and other
heavy metals (Bolan et al. 2010, pp. 676-683). In general, the inputs
from poultry litter into rivers and streams reduce water quality for
the coal darter, causing physiological stress. This is especially
evident in Locust Fork in the species' range (ADEM 1999, pp. 57-78,
147, 218; Deutsch et al. 1990, entire).
Resource Extraction: Mining and Oil/Gas
Coal mining in Alabama began in the early 1800s. Currently, there
are active and reclaimed mines operating throughout the Black Warrior
and Cahaba watersheds, and one proposed graphite mine permitted for
future operations in the Coosa watershed. Surface and subsurface coal
mines have the potential to degrade water quality from erosion and
sedimentation, and the presence of mines near rivers and streams
elevates the risk of water contamination. These mining processes expose
metallic minerals, which can then enter the surrounding waterways,
increasing conductivity, increasing acidity, and contaminating the
waterways with heavy metals, creating toxic conditions for aquatic
fauna (Stiefel and Busch 1983, pp. 187-212; Neves et al. 1997, pp. 69-
70).
In addition to surface and subsurface mining, oil and gasoline
extraction and transportation is also present within the range of the
coal darter. In 2016, there was a near disaster in the range of the
coal darter when 252,000 gallons of gasoline spilled from the Colonial
Pipeline into an old mining pond that feeds into a tributary of the
Cahaba (EPA 2016, unpaginated). The spill was contained before reaching
the Cahaba River; however, this incident illustrates that the risk of
threat to the species from resource extraction does exist.
Resource Extraction: Silviculture
The forestry industry, in the form of monoculture pine plantations,
is prevalent throughout the range of the coal darter. Forestry can have
negative implications for water quality in the form of nonpoint source
pollution, especially when BMPs are not implemented. Excessive
sedimentation in Hatchet Creek has been documented since the mid-1990s.
The excessive sedimentation and subsequent loss of clean gravel and
pool habitat has been attributed to forestry activities, including
removal of riparian vegetation (Alabama Department of Conservation and
Natural Resources (ADCNR) 2006, p. 3). Sedimentation of streams and
waterways has the potential to increase due to accelerated erosion from
logging roads and timber harvest. We recognize that modern
silvicultural operations are widely implemented in accordance with
State-approved BMPs, and the adherence to these BMPs broadly protects
water quality, particularly related to sedimentation. However, in many
cases, sedimentation in streams is a continuing legacy effect from past
eras of poor logging practices (Service 2023, p. 27).
Urbanization
Urbanization is a significant source of water quality degradation
that can reduce the survival of aquatic organisms, including the coal
darter. Urbanization refers to a change in land cover and land use from
forests or agriculture to increased density of residential and
commercial infrastructure. Urban development can stress aquatic systems
in a variety of ways, including increasing the frequency and magnitude
of high flows in streams, increasing sedimentation (construction
activities) and nutrient loads (lawn fertilization), increasing
contamination and toxicity (from household pesticides and herbicides),
altering flows because of an increase in impervious surfaces (i.e.,
flashier flows), and altering stream morphology, stability, and
chemistry, which can result in a decreased diversity of fishes, aquatic
insects, plants, and amphibians. Sources and risks of an acute or
catastrophic contamination event, such as a leak from an underground
storage tank, pipeline, or wastewater system, or a hazardous materials
spill on a highway, also increase as urbanization increases.
Changes to both frequency and magnitude of stream flows have direct
effects on important structural habitat for coal darters. Stream
channelization and higher flows reduce overall stream cover and other
natural substrates like boulders, cobble, and gravel, and they remove
large woody structures and other terrestrial plant materials. As a
result, urban streams have lower habitat heterogeneity, stable
substrates, and amounts of plant material, which negatively impacts the
coal darter's sheltering, breeding, and feeding.
Birmingham is the third largest city in the State of Alabama and
was ranked as the largest city until the 2020 census. It continues to
be one of the fastest growing metropolitan areas in the State.

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Despite the population of Birmingham decreasing between 1992 and 2011,
urban cover over that time period increased from 9.4 percent to 35.7
percent due to expansion of the metropolitan area (Dosdogru et al.
2020, p. 2). The upper part of the Cahaba River watershed and the
southeastern part of the Locust Fork watershed drain a significant
portion of the Birmingham metropolitan area. The overall degradation of
water and habitat quality because of increased urbanization has
negative implications for coal darter populations currently, and into
the future, as discussed below under Current Condition and Future
Condition.
Climate Change
Changing climate conditions can influence coal darter viability
through changes in water temperature and precipitation patterns that
result in increased flooding, prolonged droughts, or reduced stream
flows. Since the 1970s, moderate to severe droughts in the Southeast
have increased by 12 percent during spring months and by 14 percent
during summer months (Jones et al. 2015, p. 126). Reduced baseflows due
to droughts can cause population declines, habitat loss, and degraded
water quality (decreased dissolved oxygen and temperature alteration)
leading to death, crowding of individuals leading to stress, and
decreased reproduction in stream fish populations. Increased
groundwater withdrawal for agriculture or other human needs during
droughts may potentially exacerbate the impacts of reduced quantity or
frequency of precipitation.
Climate models for the southeastern United States project that
average annual temperatures will increase, cold days will become less
frequent, the freeze-free season will lengthen by up to a month, days
with temperatures exceeding 95 degrees Fahrenheit will increase, heat
waves will become longer, and the number of category 5 hurricanes will
increase (Ingram et al. 2013, p. 32; IPCC 2021, entire). While these
climate models predict variability into the future, they suggest that
the region will be subjected to more frequent large storms (hurricanes)
with severe flooding and extremely low flows during droughts. Average
and extreme precipitation is expected to increase, and subsequently,
river flooding is also expected to increase. Extreme weather events,
such as flash flooding associated with heavy precipitation events, are
projected to increase in the future within the range of the coal
darter, and these events can impact the coal darter through habitat
degradation and displacement, injury, or even mortality (Service 2023,
pp. 29-30).
Future changes in climate within the coal darter's range include
increases in temperatures, especially for summer and fall, and
increases in overall precipitation. Therefore, the watersheds occupied
by coal darters could experience moderate to significant changes in
climate by the 2050s, especially under scenarios run for representative
concentration pathway (RCP) 8.5 (corresponding to high levels of carbon
emissions). Increases in summer temperatures coupled with decreased
instream flow can increase water temperatures and reduce dissolved
oxygen levels, while flashier flows can increase soil erosion and
stream sedimentation.
Low Genetic Diversity
Low genetic diversity makes the coal darter vulnerable to threats.
Greater genetic diversity results in greater potential to adapt to a
changing environment through natural selection. Reduced genetic
diversity in a population can limit its adaptive potential. Small
populations often have lower genetic diversity because there are fewer
individuals. Small populations are also susceptible to genetic
phenomena of inbreeding depression, population bottlenecks, and genetic
drift, which can lead to a greater reduction in genetic diversity over
time and reduced fitness of the population, leaving it more vulnerable
to changing environmental conditions. The combination and interaction
of these negative demographic and genetic effects on a small population
can lead the population into an extinction vortex.
Effective population size (Ne) goes hand in hand with genetic
diversity. There are two heuristics relating effective population size
to conservation biology principles. The first is the 50/500 ``rule of
thumb,'' which states that if a population's estimated effective
population size is greater than 500, then it will maintain evolutionary
potential and adaptive capacity over time. However, an effective
population size of fewer than 50 would place the population in the
extinction vortex, and as the Ne falls below 500 and moves towards 50,
the population becomes increasingly at risk of loss in genetic
variation. The more conservative theory is the 100/1,000 ``rule of
thumb,'' which states that an estimated effective population size of
more than 1,000 is needed to maintain evolutionary potential, and an
effective population size of fewer than 100 would place the population
in the extinction vortex.
In 2018 to 2020, range-wide genetic analyses were carried out for
the coal darter, which included samples from the Cahaba River, Locust
Fork, and Hatchet Creek. No samples were included in the analysis from
Weogufka Creek, because individuals at that site were discovered in
2021, after this genetic work was completed. As such, the Coosa River
system is represented only by Hatchet Creek in the genetics analysis.
Results show that populations were historically connected and
shared gene flow, however they are currently functionally isolated,
showing no gene flow between the three watersheds (Jones and Sandel
2019, entire; Jones 2021, entire). Genetic diversity was relatively low
across all three watersheds as indicated by the observed and expected
heterozygosity (Ho and He) and percent
polymorphic loci. The Hatchet Creek population's genetic diversity is
considered very low (Jones and Sandel 2019, entire; Jones 2021,
entire). Effective population size (Ne), the number of
breeding individuals in an idealized population that would maintain
genetic diversity, was also reported for each of the watersheds. The
effective population size for the Black Warrior population is 2,759
(range of 2,158-3,823); Cahaba River population is 3,145 (range of
2,423-4,480); and Coosa River population is 268 (range of 252-290)
(Jones and Sandel 2019, pg. 5; Jones 2021, pg. 22). In the Coosa River,
Hatchet Creek's effective population size is an order of magnitude
lower than the other two populations (Jones 2021, entire).

Summary

A summary of the threats acting on coal darter populations in each
river system is presented below in table 3. The magnitude of each of
these threats varies from river system to river system. Details on the
impacts of the different threats on coal darter populations are
provided below under Current Condition.

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Table 3--Summary of Threats in Each River System
----------------------------------------------------------------------------------------------------------------
Black Warrior Cahaba Coosa
----------------------------------------------------------------------------------------------------------------
Water quality degradation Water quality degradation Water quality degradation
from: from: from:
Urbanization; Urbanization; Agriculture.
Active and reclaimed mines; Silviculture--legacy Silviculture--legacy
and effects; effects; and
Agriculture (including Active and reclaimed mines; Future mining.
poultry operations); and and ~90% reduction in range.
Silviculture--legacy Agriculture. Very low genetic diversity.
effects Low genetic diversity. Low effective population
~50% reduction in range. Climate change. size.
Low genetic diversity. Climate change.
Climate change.
----------------------------------------------------------------------------------------------------------------

Conservation Efforts and Regulatory Mechanisms

The coal darter is not State-protected in Alabama but is included
in the Alabama State Wildlife Action Plan (SWAP), where it is assigned
a ``priority 2'' (``high conservation concern'') status (ADCNR 2015,
pg. 19). There have been no captive propagation efforts for the
species. The Geological Survey of Alabama (GSA) completed targeted
surveys for the species in the Locust Fork in 2001, and rangewide in
2022 in partnership with the Service. Additionally, GSA, ADEM, ADCNR,
and other partners have conducted fish Index of Biotic Integrity (IBI)
assessments, a fish community-based assessment of stream health, in
waterways throughout the State, including areas within the coal
darter's range (Service 2023, pp. 31-32).
Priority watersheds within the range of the coal darter have been
designated as ``strategic habitat units'' (SHUs) by the Alabama Rivers
and Streams Network (ARSN). The SHU concept was created to prioritize
efforts and leverage capacity among partners (government,
nongovernmental organizations, private industry) to implement
restoration and recovery of listed and rare aquatic species. Locust
Fork, the Cahaba River, and Hatchet Creek have all been designated as
SHUs. However, Weogufka Creek does not have an SHU designation.
Habitat restoration has been one of the most influential
conservation efforts positively affecting coal darters. Projects, such
as stream bank stabilization and dam removal, have been completed or
planned by State and Federal partners, nonprofit organizations, and
private landowners. These types of restoration projects are not
specifically targeting coal darter conservation, but they aim to
improve the habitat quality in general for the benefit of imperiled
aquatic species.
Cahaba
The Cahaba River has a long history of water quality declines and
subsequent remediation activities (Thom et al. 2013, pp. 60-62). In
recognition of these water quality challenges, EPA and the State of
Alabama began working on measures to improve the water quality of the
river under the auspices of the CWA. The CWA regulates water quality
standards for surface waters and discharges of pollutants into the
waters of the United States. The CWA made point source discharge into
navigable waters without a permit unlawful in 1972. The EPA has
authority to enforce the CWA, and with that authority, has developed
national water quality criteria recommendations for pollutants found in
surface waters and has implemented various pollution control programs
(i.e., wastewater standards for industry) (EPA 2021, entire).
Stormwater runoff containing pollutants is often transported
through municipal separate stormwater sewer systems (MS4s), which
discharge without treatment into local waterways (Service 2023, p. 33).
An MS4 is owned by a public entity and is designed to collect and
convey stormwater that discharges to waters of the United States. It is
not part of a combined sewer or a publicly owned treatment facility or
works (EPA 2023, entire). Administered under the National Pollution
Discharge Elimination System (NPDES) permit program, MS4 permits
require development and implementation of a comprehensive storm water
management program (SWMP) that addresses prevention, treatment,
removal, monitoring, and other measures to control the quality of
stormwater that travels through storm drains to waters of the United
States (EPA 2021, introduction). At present, several urban areas in the
Upper Cahaba are designated as part of the MS4 program. These permits
are regulated under the NPDES system, are treated as point sources by
the EPA, and receive waste load allocations (WLAs) under the total
maximum daily load (TMDL) program, which is a calculation of the
maximum amount of a particular pollutant that can enter a water body
and allow that water body to meet water quality standards (Service
2023, p. 34). Thereby, under the CWA, point source discharges of
pollutants (including stormwater) are currently being regulated.
In addition, there are processes in place to manage new discharges
into the river from industrial sources (e.g., industrial plants,
mining, and wastewater). Water quality has substantially improved in
recent decades due in part to the NPDES and the NPDES MS4 permits in
the upper watershed, the TMDL program, and a general trend towards
better stormwater management and soil retention measures in the
watershed. TMDLs establish pollution reduction targets, allocate load
reductions for pollutant sources, and include a margin of safety while
also accounting for seasonal variability of water quality. Currently,
the TMDL for Buck Creek, Cahaba Valley Creek, and the Cahaba River
adhere to ADEM's water quality standards for the designated use
classification of that stream. Overall, this has improved turbidity and
improved nutrient loading near the coal darter population (Service
2023, pp. 34-35).
Significant habitat restoration efforts have also taken place in
the Cahaba River. For example, in 2004, The Nature Conservancy, the
U.S. Army Corps of Engineers, and other partners removed a vented ford
dam named the Marvel Slab. Built in the 1960s and 1970s, the dam was
originally used for transporting coal and timber across the river. It
was 67 meters (219 feet) long, 1.8 meters (5.9 feet) tall, and 7.6
meters (24.9 feet) wide with 40 culverts through which water could
flow. Ecologically, the barrier functioned as a dam, blocking upstream
movement of aquatic fauna. Removal of the structure restored
connectivity between the river reaches. When compared with historical
records, fish monitoring conducted after the dam was removed indicated
that several fish species, including two that are Federally listed
under the Act, have extended their ranges as a result of the removal
(Bennett et al. 2015, pp. 51-61).

[[Page 88347]]

Black Warrior
Currently, within the Black Warrior River system, the coal darter
is restricted to the Locust Fork. The Locust Fork has its own history
of water quality issues and remediation. In 1998, it was added to the
EPA's list of impaired and threatened waters in Alabama (i.e.,
Alabama's 303(d) list) due to siltation and nutrient loading concerns
along with the presence of federally endangered and threatened species.
The ADEM performed monitoring of four 303(d) segments between 2012 and
2016 by assessing the macroinvertebrate community and habitat quality,
and evaluating water quality data (Service 2023, pp. 35-36).
From these assessments, the macroinvertebrate community was
characterized as ``fair'' for each of the four segments; habitat
quality was ``optimal'' at the most upstream segment, ``sub-optimal''
at the middle two segments, and ``marginal'' at the most downstream
segment; and the numerical water quality parameters (total suspended
solids and turbidity) were below the eco-reference guidelines for all
four segments (ADEM 2018, pp. 14-16). Based on these monitoring
results, in 2018, the Locust Fork was removed from the 303(d) list for
siltation, and it was also removed from the 303(d) list for nutrients
because a TMDL was established (Service 2023, p. 36).

Synergistic and Cumulative Effects

We note that, by using the SSA framework to guide our analysis of
the scientific information documented in the SSA report, we have not
only analyzed individual effects on the species, but we have also
analyzed their potential cumulative effects. We incorporate the
cumulative effects into our SSA analysis when we characterize the
current and future conditions of the species. Our assessment of the
current and future conditions encompasses and incorporates the threats
individually and primary threats cumulatively. Our current and future
conditions assessment is iterative because it accumulates and evaluates
the effects of all the factors that may be influencing the species,
including threats and conservation efforts. Because the SSA framework
considers not just the presence of the factors, but to what degree they
collectively influence risk to the entire species, our assessment
integrates the cumulative effects of the factors and replaces a
standalone cumulative effects analysis.

Current Condition

A thorough review of the coal darter's current condition is
presented in chapter 5 of the SSA report (version 1.1, Service 2023,
pp. 39-53).
Currently, the coal darter is known from three tributary systems of
the Mobile River Basin: Locust Fork of the Black Warrior River, Cahaba
River, and Hatchet and Weogufka Creeks of the Coosa River. Coal darter
movements and dispersal patterns within these systems are not well
understood. Recent population genetics work by University of West
Alabama supports gene flow within each river system. However, migration
rate estimates indicate no individuals migrating between river systems;
thus, no contemporary gene flow exists between systems. These results
indicate that each river system is demographically independent of each
other. Using these data, populations were delineated based on river
system, resulting in three populations that will serve as the
resiliency units for assessing population resiliency: the Black
Warrior, the Cahaba, and the Coosa. Currently, each population is found
in a different Level III ecoregion. Since no other biologically
meaningful boundaries are known to exist for the coal darter, we
determined the representative units to be the same as the resiliency
units (populations).
Based on the coal darter's individual and population needs, such as
adequate water quality and quantity, the availability of clean gravel/
cobble substrates, sufficient food sources, and appropriate population
size and connectivity to support reproduction and recruitment within a
population, we developed an approach using key habitat and demographic
factors to assess population resiliency. We assessed two demographic
condition parameters (genetic health and persistence through time) and
two habitat condition parameters (Human Disturbance Gradient Index and
habitat quantity) (see table 4, below). Based on the coal darter's
lifespan, we used the time period from 2007 to 2022 to inform the
current condition of the species.
For a population to be resilient in the context of genetic health,
a population should have sufficient standing genetic variation and
effective population size (Ne). The 50/500 and 100/1,000 ``rules of
thumb'' threshold were used to describe the minimum effective
population size needed for both short-term and long-term viability.
Greater genetic diversity in a population will improve the fitness of a
population, equating to higher survival and rebound potential in the
face of demographic and environmental stochasticity. An Ne greater than
50 or 100 is necessary to prevent the deleterious effects of inbreeding
depression and genetic drift (i.e., short-term viability) (Service
2023, p. 41). The upper thresholds of the Ne ``rule of thumb'' (500 or
1,000) will be important for our current condition representation
because above this upper threshold, a population is expected to be able
to maintain its adaptive capacity (i.e., long-term viability). However,
the upper threshold of 500 or 1,000 is important to consider for
resiliency as well, because when the Ne declines from 500 to 50, or
from 1,000 to 100, the risks of genetic diversity loss progressively
increase. Thus, an Ne below the upper thresholds of 500 or 1,000 are of
concern for both population resiliency and species representation.
We consider a population with high resiliency to have high or
moderate genetic diversity and an Ne that exceeds the 500/1,000
threshold. Thresholds for genetic diversity could not be quantified in
table 4, below, because the genetic data we have available represent a
snapshot of the current condition, and we do not have historical
genetic data to which we can compare them. What is considered high,
moderate, and low genetic diversity can vary from taxa to taxa.
However, after consulting with conservation genetics experts on the
coal darter's genetics and the scientific literature on genetic
diversity results of other similar species, we determined that the
Cahaba and Black Warrior populations exhibit ``low'' genetic diversity
and the Hatchet Creek population exhibits ``very low'' genetic
diversity. We used these expert opinions along with the Ne 500/1,000
``rules of thumb'' to differentiate our ranking of moderate resiliency
and low resiliency (Service 2023, pp. 41-42). We used research by
University of West Alabama, which provided range-wide genetic diversity
metrics and effective population size estimates for coal darter, in our
assessment of current genetic health.
When determining the current condition of the coal darter, the
extent of the current range in the context of the historical range was
important to consider (see table 4, below). Impoundments constructed in
the Black Warrior and Coosa Rivers in the late 1800s to the mid-1900s,
converted mainstem areas once occupied by coal darters to unsuitable
conditions, resulting in large-scale extirpation throughout the
species' historical range. This was an important consideration for the
species because coal darters are now restricted to smaller areas than
they were previously, which has

[[Page 88348]]

implications for maximum attainable population size, access to suitable
habitat, and the overall ability to move and disperse when conditions
are unfavorable at certain locations, all of which are important needs
of the species in order to successfully reproduce and maintain
populations (Service 2023, p. 42).
To better assess coal darter resiliency, thresholds were
standardized for each population by using a percentage of historical
range in each river system to represent potential habitat for the
species (see table 4, below). We determined that a population with high
resiliency would have lost no more than one third of its historical
range; a population with moderate resiliency would have lost between
one third and two thirds of its historical range; and a population with
low resiliency would have lost more than two thirds of its historical
range.
The coal darter's sensitivity to habitat alterations from human
activities were also used to assess resiliency. In order to describe
the level of impairment and risk to natural aquatic habitats that arise
from human activities, the Human Disturbance Gradient Index (HDGI) was
used (see table 4, below). The HDGI considers a variety of landscape
variables associated with disturbance to aquatic environments.
Specifically, these variables include: human density (population count/
kilometer of watershed), phosphorus load (kilograms/hectare/year),
percent developed (percentage of the watershed that is developed),
percent barren (percentage of the watershed that is barren due to human
activities), percent pasture (percentage of the watershed that is
pasture), percent crop (percentage of watershed that is used for row
crops), road density (kilometers of roads/square kilometer of
watershed), and road-stream crossings (number of road-stream crossings
per kilometer of road). Each landscape variable is weighted by a factor
known as the landscape development intensity (LDI) index, which ranges
between 0 and 10, and relates land-use classifications with the
intensity of nonrenewable energy consumption. An LDI of 0 corresponds
to natural environments, and an LDI of 10 corresponds to highly
developed urban environments. The sum of the weighted landscape
variables calculated for each hydrologic unit code (HUC) 12 watershed
in the range equates to the HDGI (Service 2023, pp. 42-43).
The final HDGI for each population of the coal darter was found by
averaging the HDGI of its constituent HUC 12 watersheds. Stream reaches
with HDGI values that exceed 200 were found to correspond to poor
biological condition with low diversity of fish species, mostly
inhabited by generalist species tolerant of habitat uneasiness (Service
2023, p. 43). Therefore, we expect the abundance and probability of
coal darter presence to decline when HDGI scores approach and exceed
200. However, we acknowledge that landscape heterogeneity within the
scale of a HUC 12 watershed may allow suitable environmental conditions
to persist within an otherwise largely disturbed landscape. Further,
based on our analysis, we are most confident that HDGI scores below 175
reflect good conditions and those above 300 reflect poor conditions.
For these reasons, HDGI scores below 175 were classified as high
condition or most suitable for the coal darter, with high probability
of occurrence and high abundance; scores between 176 and 300 as
moderate condition, with moderate probability of occurrence and
moderate abundance; and scores greater than 300 as low condition, with
the lowest probability of occurrence or very low abundance and posing
the highest levels of risk to the species (Service 2023, pp. 42-43; see
table 4, below).
Habitat quantity is another important metric to assess the current
condition of the coal darter using HUC 12 watersheds as our units. The
greater quantity of connected, suitable habitat available within a
population, the greater the population resiliency. Resiliency was
classified into one of three classes: High, Moderate, and Low.
Thresholds for habitat quantity were established by enumerating extent
of coal darter presence in the context of the historical range limits
(see table 4, below).

Table 4--Condition Categories for Demographic and Habitat Parameters Used To Assess Coal Darter Resiliency
[Service 2023, p. 45]
----------------------------------------------------------------------------------------------------------------
Condition category
Parameter --------------------------------------------------------------------------
High (3) Moderate (2) Low (1)
----------------------------------------------------------------------------------------------------------------
Genetic health....................... Genetic diversity Genetic diversity Genetic diversity
considered considered ``low''; N considered ``very
``moderate'' or exceeds the 500/1,000 low''; N does not
``high''; N exceeds ``rule of thumb'' exceed the 500/1,000
the 500/1,000 ``rule threshold. ``rule of thumb''
of thumb'' threshold. threshold.
Percentage of historical range with Greater than 66 percent 33-66 percent of Less than 33 percent of
current records. of historical range is historical range is historical range is
currently occupied. currently occupied. currently occupied.
Human Disturbance Gradient Index 0-175.................. 176-300................ Greater than 300.
(HDGI).
Habitat quantity..................... Greater than or equal 4-7 currently occupied Fewer than 4 currently
to 8 currently HUC 12 units. occupied HUC 12 units.
occupied HUC 12 units.
----------------------------------------------------------------------------------------------------------------

For each parameter, we assigned a score from 1 to 3 (1 = low, 2 =
moderate, 3 = high) based on condition categories that we developed in
coordination with species experts. For the overall resiliency of a
population, scores were summed for all parameters. The minimum possible
sum is 4 (a score of low for each of the four parameters), and the
maximum possible sum is 12 (a score of high for each of the four
parameters). We set thresholds for overall resiliency scores based on
the minimum and maximum possible sums and the number of categories (3:
high, moderate, low) (see table 5, below). The following discussion
describes our reasoning for each parameter, the condition categories,
and the methodology we used to derive an overall score for each factor.

[[Page 88349]]

Table 5--Thresholds for Overall Population Resiliency
[Service 2023, p. 45]
----------------------------------------------------------------------------------------------------------------
Overall population resiliency
--------------------------------------------------
High Moderate Low
----------------------------------------------------------------------------------------------------------------
Parameter Score Sum.......................................... 10-12 7-9 4-6
----------------------------------------------------------------------------------------------------------------

Resiliency
Black Warrior--The overall resiliency for the Black Warrior
population is moderate (see table 6, below). Genetic diversity, as
expressed by observed and expected heterozygosity and percent
polymorphic loci, is considered low for this population by experts.
Additionally, the effective population size is higher than the 500 or
1,000 ``rules of thumb'' threshold at 2,759 (range of 2,158-3,823)
(Jones and Sandel 2019, pg. 5; Jones 2021, pg. 22). Due to the low
genetic diversity but high effective population size (exceeding the
500/1,000 threshold), a score of moderate is assigned for genetic
health of the Black Warrior population. The Black Warrior population
has experienced a 50 percent reduction, at minimum, in occupied range
due to the installation of impoundments in the late 1800s and early
1900s, resulting in a moderate score for the percentage of historical
range with current records metric. The HDGI for the Black Warrior
population is most heavily influenced by a combination of moderate
amounts of development and urbanization in northern Jefferson County
and more intensive livestock agriculture in the area. The averaged HDGI
for currently occupied HUC 12 watersheds is 207, which results in a
classification of moderate. With nine HUC 12 watersheds currently
occupied, this population scores high for habitat quantity. However,
despite the effects of these impacts, the Black Warrior population
currently has an adequate effective population size and connectivity to
support reproduction and recruitment.
Cahaba--The Cahaba River is considered the stronghold for the
species, reflected by consistent catch records from the 1960s to
present day. Trends in population numbers can be difficult to discern
due to differences in sampling methods and purpose over the years, but
there continues to be evidence of reproduction and recruitment.
However, there is evidence that population numbers of the coal darter
may be declining in the Cahaba River, especially in the upper portion
of the watershed around the Birmingham metropolitan area. A comparison
by experts of historical fish community records spanning from 1964-1983
to records obtained in 1994-1997 at 12 sites in the upper Cahaba River
watershed in the Birmingham area indicated an overall decrease in fish
species diversity, pointing to habitat degradation related to
urbanization as the primary reason. Coal darters were found to have the
greatest decline of all darter species, with 330 total specimens
collected from historical samples (out of 46 samples) and only 6
collected from the same sites in the 1995-1997 samples (out of 48
samples). Along with coal darters, the study found disturbance-
sensitive species, in general, to have decreased in percent relative
abundance (Service 2023, p. 47).
The overall resiliency for the Cahaba population is moderate (see
table 6, below). Genetic diversity of the Cahaba population is low, and
the effective population size is higher than 500 or 1,000 ``rules of
thumb'' threshold at 3,145 (range of 2,423-4,480) (Jones and Sandel
2019, pg. 5; Jones 2021, pg. 22). Due to the low genetic diversity but
high effective population size (exceeding the 500/1,000 threshold), the
Cahaba population scores moderate for genetic health (see table 6,
below). The population genetic results indicate that the Cahaba
population currently has a lower expected heterozygosity and percent
polymorphic loci when compared to the Black Warrior population, yet a
higher effective population size than the Black Warrior population
(Service 2023, p. 46). One explanation for this could be a decrease in
population size because of degraded water quality in the Cahaba River
beginning in the early 1900s up to the enactment of the CWA (1972). A
significant decrease in the number of individuals in this population
would have resulted in a loss of genetic diversity. Because of their
short generation time, coal darter numbers may have been able to
rebound faster than it would take to increase genetic diversity since
the latter would be dependent on the accumulation of novel mutations
which would be expected to occur over thousands of years.
The Cahaba population has experienced the least reduction in range
of the three populations. No major impoundments were constructed within
the mainstem of the Cahaba River. However, a single low head dam
located at Highway 280 currently prevents movement of coal darters
upstream. While the species still occupies sites approximately 20 miles
upstream of this dam, those individuals are isolated from downstream
individuals and gene flow is likely unidirectional, creating a greater
risk of further loss in genetic diversity in this portion of the river
(Zarri et al. 2022, entire). To date, no range reduction of the species
due to this dam has been observed. The Cahaba population scores high
for the percentage of historical range with current records metric (see
table 6, below).
The Cahaba River HDGI score is largely influenced by intense
urbanization associated with the City of Birmingham and its suburbs.
The averaged HDGI for currently occupied HUC 12 watersheds is 356
(Service 2023, p. 46), which results in a score of low for the Cahaba
population (see table 6, below). Eight HUC 12 watersheds are currently
occupied, which results in a score of high for habitat quantity (see
table 6, below).
Coosa--The overall resiliency for the Coosa population is low (see
table 6, below). Genetic diversity is considered very low for this
population. Since Weogufka Creek discovered individuals in 2021
following the completion of the genetic analysis, only the Hatchet
Creek population was used in the Coosa River system genetics results,
The effective population size is above the ``rule of thumb'' threshold
of 50 or 100 that is necessary to prevent deleterious effects of
inbreeding depression and genetic drift. However, the effective
population size is still considered low at 268 (range of 252-290)
(Jones and Sandel 2019, pg. 5; Jones 2021, pg. 22) and is an order of
magnitude lower than the other two populations. Furthermore, the
effective population for Hatchet Creek falls in between the upper and
lower bounds of the 50/500 and 100/1,000 rule thresholds, indicating
that the population is at high risk of continual loss of genetic
diversity. This low effective population size may also reflect the
ongoing deleterious genetic effects of a population bottleneck or the

[[Page 88350]]

ongoing habitat limitations that prevent population sizes reaching
those found in the other two populations or both (Franklin 1980, pp.
135-149; Frankham et al. 2014, pp. 56-63; Franklin et al. 2014, pp.
284-285). Based on the lower effective population size in Hatchet Creek
coupled with the very low genetic diversity, the Coosa population
results in a score of low for genetic health (see table 6, below).
The Coosa population has experienced the greatest range reduction
of the three coal darter populations. With a 90 percent reduction in
range compared to pre-impoundment historical condition, this population
is assessed a score of low for the percentage of historical range with
current records metric (see table 6, below).
The HDGI for the Lower Weogufka Creek HUC 12 had a value of 51.5,
and the HDGI for the Lower Hatchet Creek HUC 12 had a value of 40.7
(Service 2023, p. 49). The averaged HDGI score for currently occupied
HUC 12 watersheds is 46, which results in a score of high for the HDGI
metric for this population (see table 6, below).
Regarding the habitat quantity metric for the Coosa population,
only two HUC 12 watersheds are currently occupied: Lower Hatchet Creek
and Lower Weogufka Creek. Within these two HUC 12 boundaries, the coal
darter is only known from one site in Weogufka Creek and 14.5 rkm (9
rmi) of Hatchet Creek. Because of the low quantity of occupied habitat,
this population scores low for the habitat quantity factor.

Table 6--Current Condition Resiliency Results by Population for the Coal Darter
[Service 2023, p. 50]
----------------------------------------------------------------------------------------------------------------
Population
Factor ------------------------------------------------------------------------------
Black Warrior Cahaba Coosa
----------------------------------------------------------------------------------------------------------------
Genetic health................... Moderate (2)........ Moderate (2)....... Low (1).
Percentage of historical range 50 percent: Moderate 90 percent: High 10 percent: Low (1).
with current records. (2). (3).
Human Disturbance Gradient Index 207: Moderate (2)... 356: Low (1)....... 46: High (3).
(HDGI).
Habitat quantity................. 9: High (3)......... 8: High (3)........ 2: Low (1).
Overall resiliency............... Moderate (9)........ Moderate (9)....... Low (6).
----------------------------------------------------------------------------------------------------------------

Representation
Representation is the ability of a species to adapt to both near-
term and long-term changes in its physical and biological environment.
The best available scientific information suggests using population
genetic analyses to characterize the coal darter's current adaptive
capacity. Due to the current isolation of coal darter populations, it
is unlikely that gene flow exists among rivers (to increase genetic
diversity), or that darter populations are able to shift to track
suitable habitat conditions. Isolated coal darter populations must
adapt to changing conditions in place, requiring sufficient genetic
variation in order to respond to shifting selection pressures and any
unexpected selection events, such as introduction of a novel disease or
invasive species (Service 2023, p. 52).
The Cahaba River and Black Warrior populations meet the effective
population size threshold ``rule of thumb'' of 500 or 1,000 to maintain
evolutionary potential and adaptive capacity over time. By contrast,
the Coosa population does not meet these effective population size
thresholds for retaining adaptive potential. Coupled with its low
genetic diversity, this population is at high risk of ongoing losses of
standing genetic variation, lowering its capacity to respond to
changing selection pressures.
We estimate that the coal darter has low adaptive capacity based on
the poor genetic condition of the Coosa population; the low genetic
diversity, yet sufficient effective population sizes, of the Black
Warrior and Cahaba populations; and the lack of connectivity between
populations. Overall representation for the coal darter is currently
low.
Redundancy
Redundancy refers to the ability of a species to withstand
catastrophic events and is measured by the amount and distribution of
resilient populations across the species' range. Catastrophic events
that could severely affect or extirpate entire coal darter populations
include gas pipeline bursts and associated spills, changes in upstream
land use that alter stream characteristics and water quality, and
potential effects of climate change such as drought and increases in
occurrence of flash-flooding events.
Redundancy is characterized by having multiple, resilient and
representative populations of the coal darter distributed throughout
the species' range. While there remain three populations distributed
throughout the range and at a scale for which it would be unlikely for
a single event to catastrophically affect all, one population (Coosa)
has low resiliency to stochastic events and a higher risk of
extirpation. The remaining two populations (Black Warrior and Cahaba)
were found to be moderately resilient to stochastic events. Each
population's reduced resiliency prevents them from fully contributing
to a high level of redundancy; therefore, the coal darter currently
exhibits a moderate level of redundancy.

Future Condition

A thorough review of the coal darter's future condition is
presented in chapter 6 of the SSA report (version 1.1, Service 2023,
pp. 54-58).
In our SSA report (version 1.1, Service 2023, entire), we define
viability as the ability of the coal darter to sustain natural
populations in river and stream systems over time. In our assessments
of factors influencing viability and current condition, we found that
disturbance on the landscape negatively affects the coal darter's
ability to sustain natural populations and these disturbances can be
attributed and measured by quantifying land use and cover types. To
help address uncertainty associated with the degree and extent of
potential future stressors and their impacts on the species' needs, the
concepts of resiliency, redundancy, and representation were assessed
using two scenarios and time stepped them at years 2040 and 2050. We
devised these scenarios by identifying information on primary threat
factors arising from increasing human populations and resulting
alterations to the habitat. The four scenarios use the EPA's Integrated
Climate and Land Use (ICLUS; version 2.1.1, EPA 2017) model, which uses
human demography as a primary means to project local land-use changes
in the future with consideration of climate change. It is consistent
with updated global socioeconomic scenarios (shared

[[Page 88351]]

socioeconomic pathways (SSPs)) and global climate change model targets
(representative concentration pathways (RCPs)). Using the ICLUS models,
we projected the future resiliency of coal darter populations using two
future scenarios that consider a range of impacts from future
urbanization and land-use change along with climate change effects.
Data from the ICLUS model was used to predict future HDGI scores, which
can be compared with the HDGI scores of each population from our
current condition analysis. While other stressors were identified as
factors influencing viability, such as impoundments and genetic health,
we were unable to model these factors into the future. However, these
stressors are expected to continue to limit the species' viability into
the future. Dams and impoundments are expected to constrain population
extent, and genetic health is not expected to improve due to the long
period of time required for mutations to occur that would improve
genetic diversity (Service 2023, pp. 23-31).
We used the best available data and models to project changes in
human disturbance under a high impact scenario and a moderate impact
scenario at year 2040 and 2050 (20 and 30 years). This timeframe was
reasonably certain to predict patterns of urbanization and agriculture,
and how these land uses forecast patterns in the species' range
relevant to the coal darter and its habitat given the species' short
lifespan. In addition, catastrophic events (for example, invasive
species, disease, and chemical spills) could have an immediate impact
on the species, especially on the Coosa population due to its limited
abundance and distribution.
Results of HDGI under the two future scenarios did not vary greatly
between the two scenarios within each population (Black Warrior: 610
and 635; Cahaba: 636 and 661; Coosa: 77 and 141) (Service 2023, pp. 56-
59). As stated above under Current Condition, HDGI scores below 175 are
classified as high condition or most suitable for the coal darter, with
high probability of occurrence and high abundance; scores of between
176 and 300 correspond to moderate condition, with moderate probability
of occurrence and moderate abundance; and scores greater than 300 are
classified as low condition, with the lowest probability of occurrence
or very low abundance and posing the highest levels of risk to the
species.
When compared to the current condition's HDGI, the Black Warrior
and Cahaba populations' future HDGI scores nearly tripled and doubled,
respectively. Therefore, aquatic habitats currently occupied by the
coal darter will experience substantial levels of disturbance due to
human urbanization activities, and the species' likelihood of presence
and abundance will continue to decline. Furthermore, the habitat
quantity will also decrease. Due to the significant projected increase
in human disturbance within the Black Warrior and Cahaba populations,
resiliency of each of these populations is projected to decrease from
moderate to low under all future scenarios (Service 2023, p. 56).
While the future HDGI did not indicate poor habitat condition in
the Coosa population, no habitat improvements are projected. The Coosa
population of the coal darter is confined to small reaches of Hatchet
and Weogufka creeks. These two tributaries of the Coosa River likely
represent peripheral habitat that was sustained by now extirpated
source populations in the Coosa River. As flow appears to be a
predictor of species presence, population expansion in these streams is
constrained by the lack of suitable flows and habitat in the upstream
reaches. Further, given the natural state of these streams, it is
unlikely density could increase. That is, the populations are likely at
carrying capacity within these refugia. The Coosa population's poor
genetic health is projected to decline without the influx of any new
genetic material. Therefore, projected resiliency of the Coosa
population remains low (Service 2023, p. 56).
The overall projected decline in resiliency decreases the Black
Warrior and Cahaba populations' contribution to future redundancy.
Therefore, catastrophic events that occur across the regional or State
scale could cause extirpation in both populations. Furthermore, the
current low resiliency in the Coosa population leaves it susceptible to
extirpation, and with heavy land-use changes projected to occur on the
landscape surrounding this population, this population is likely to be
extirpated by the 2040 and 2050 time steps. For these reasons, the
overall redundancy under all future scenarios is low.
We do not anticipate any improvement to the connectivity or
adaptive capacity of the species. While our current condition
assessment finds sufficient effective population size in the Black
Warrior and Cahaba populations, the amount of habitat disturbance
projected to occur, and probable range contraction, will reduce the
effective population size and genetic diversity of these two
populations. The overall representation for the coal darter under all
future scenarios is assessed as low.

Determination of Coal Darter's Status

Section 4 of the Act (16 U.S.C. 1533) and its implementing
regulations (50 CFR part 424) set forth the procedures for determining
whether a species meets the definition of an endangered species or a
threatened species. The Act defines an ``endangered species'' as a
species in danger of extinction throughout all or a significant portion
of its range, and a ``threatened species'' as a species likely to
become an endangered species within the foreseeable future throughout
all or a significant portion of its range. The Act requires that we
determine whether a species meets the definition of an endangered
species or a threatened species because of any of the following
factors: (A) The present or threatened destruction, modification, or
curtailment of its habitat or range; (B) overutilization for
commercial, recreational, scientific, or educational purposes; (C)
disease or predation; (D) the inadequacy of existing regulatory
mechanisms; or (E) other natural or manmade factors affecting its
continued existence.

Status Throughout All of Its Range

We have carefully assessed the best scientific and commercial
information available regarding the past, present, and future threats
to the coal darter. We considered whether the coal darter is presently
in danger of extinction. Our review of the best available information
indicates there are three populations across the known historical range
in the Locust Fork of the Black Warrior River system, the Cahaba River
system, and the Hatchet and Weogufka Creeks of the Coosa River system
in Alabama. Genetic analysis indicates that the three populations were
previously connected but are currently isolated and uniquely
identifiable populations. Based on the coal darter's individual and
population needs, an approach including two key habitat (Human
Disturbance Gradient Index (HDGI) and habitat quantity) factors and two
demographic (genetic health and persistence through time) factors was
used to assess population resiliency with an assigned score of high,
moderate, or low.
The current resiliency for both the Black Warrior and Cahaba
populations is moderate. Impacts from habitat destruction and
modification; the reduction of range as a result of impoundments (Black
Warrior); and water quality degradation resulting from urbanization,
mining, and agriculture (Factors A and E) appear to be affecting the
coal darter at the population level

[[Page 88352]]

for these two resiliency units. Both also have low genetic diversity.
The Black Warrior population has experienced at least a 50 percent
reduction in occupied range due to the installation of impoundments in
the late 1800s and early 1900s. However, despite the effects of these
impacts, the Black Warrior and Cahaba populations currently have
adequate effective population sizes and connectivity to support
reproduction and recruitment. The Cahaba population has experienced the
smallest range reduction (14 percent) of the three populations and has
had no major impoundments constructed within the mainstem of the Cahaba
River. It is considered the stronghold for the species.
The Coosa population has low resiliency due to habitat destruction
and degradation resulting from dams and impoundments (Factors A and E).
Only two HUC 12 watersheds are currently occupied in the Coosa
population: Lower Hatchet Creek and Lower Weogufka Creek. Within these
two HUC 12 boundaries, the coal darter is only known from one site in
lower Weogufka Creek and 9 rmi (14.5 rkm) of lower Hatchet Creek. The
genetic diversity is currently very low for this population (an order
of magnitude lower than the other two populations), and its inadequate
effective population size is vulnerable to the deleterious effects of
inbreeding depression and genetic drift. This low effective population
size may also reflect the ongoing harmful genetic effects of a
population bottleneck or the ongoing habitat limitations that prevent
population sizes reaching those found in the other two populations or
both.
The species is currently extant in all three representation units,
with two resiliency units (Black Warrior and Cahaba) having moderate
resiliency. Both units with moderate resiliency contain effective
populations sizes necessary for retaining adaptive potential. In
contrast, the one unit (Coosa) with low resiliency does not meet the
effective population size threshold for retaining adaptive potential.
Coupled with low genetic diversity, the Coosa unit is currently at high
risk of ongoing losses of standing genetic variation, lowering its
capacity to respond to changing selection pressures.
The three populations are distributed across northern Alabama, and
two of the three units across the range currently have moderate
resiliency, which bolsters the species' ability to withstand
catastrophic events. However, a catastrophic event (such as a chemical
spill, change in upstream land use that alters stream characteristics
and water quality, new impoundment, drought, or flash flood) could
severely affect or extirpate coal darter populations such that the
species is affected as a whole. This is exacerbated by one population
(Coosa) having low resiliency to stochastic events and being at a
higher risk of extirpation, while the remaining two populations (Black
Warrior and Cahaba) have moderate resiliency to respond to stochastic
events. Connectivity does not exist between any of the extant units.
However, the species is not presently facing threats that place it at
risk of extinction throughout all its range. Further, while multiple
populations exist, each population's low or moderate resiliency
contributes to a moderate level of redundancy for the species.
Therefore, we find that the species does not meet the definition of an
endangered species.
We forecasted the viability of the coal darter under four plausible
scenarios into the future (summarized above under Future Condition). We
assessed relevant risk factors that may be acting on the coal darter in
the future and whether we could make reliable predictions about these
factors and how they may impact the viability of the species. Since the
main threats arise from increasing human populations and resultant
alterations to the habitat, we used human demography as a means to
project land-use changes in the future with consideration of climate
change. We projected changes in human disturbance under two scenarios
at year 2040 and 2050 (i.e., 20 and 30 years). In considering the
foreseeable future as it relates to the status of the coal darter, we
considered the relevant risk factors (threats/stressors) acting on the
species and whether we could draw reliable predictions about the
species' response to these factors. Our analysis in the SSA report of
future scenarios over an approximately 30-year timeframe encompasses
the best available information for future projections of land-use
change. We determined that this approximately 30-year timeframe enables
us to consider the threats/stressors acting on the species and draw
reliable predictions about the species' response to these factors. This
30-year timeframe allows multiple generations of the short-lived coal
darter to respond to potential land-use changes.
Taking into account the primary factors influencing the species in
the future (habitat destruction and degradation caused by land uses,
and loss of connectivity between populations) and the potential impacts
to the species' needs, we project a decline in resiliency for the coal
darter throughout its range. The current low resiliency in the Coosa
population leaves it vulnerable to extirpation, especially considering
the major land-use changes expected to occur to this landscape, and
this population is projected to remain in low condition. Furthermore,
the Black Warrior and Cahaba populations are projected to decline in
resiliency, as will their projected contribution to redundancy over the
next 30 years. Therefore, potential catastrophic events occurring
across the Southeast or in the State of Alabama could result in
extirpation of any of the populations. Given the scenarios assessed, it
is projected that aquatic habitats currently occupied by the coal
darter will experience substantial levels of disturbance due to human
activities, reducing the amount of habitat available to the species and
corresponding to declines in the species' likelihood of presence and
abundance. For these reasons, the overall projected redundancy for the
coal darter under all future scenarios is low.
Future projections also indicate that the coal darter will continue
to have low adaptive capacity (low representation) based on (1) the
poor genetic condition of the Coosa population, if it remains extant in
the future; (2) the low genetic diversity of the Black Warrior and
Cahaba populations; and (3) the lack of connectivity between
populations. Further, while the current condition assessment found
sufficient effective population sizes in the Black Warrior and the
Cahaba populations, the amount of habitat disturbance and range
contractions that are projected to occur would likely reduce the
effective population sizes and genetic diversity of these two
populations. For these reasons, the overall projected representation
for the coal darter under all future scenarios is low. From our future
scenario assessment, we find that the coal darter will be at risk of
extinction, and therefore is likely to become endangered, within the
foreseeable future (i.e., within the next 30 years) throughout all of
its range.
Based on projected future threats, the coal darter will not have
sufficient resiliency, redundancy, and representation to support
species' viability. Overall, the future threats are projected to
increase in magnitude and severity such that the coal darter is at risk
of extinction throughout all of its range. Thus, after assessing the
best available information, we conclude that the coal darter is likely
to become in danger of extinction within the foreseeable future
throughout all of its range.

[[Page 88353]]

Status Throughout a Significant Portion of Its Range

Under the Act and our implementing regulations, a species may
warrant listing if it is in danger of extinction or likely to become so
within the foreseeable future throughout all or a significant portion
of its range. The court in Center for Biological Diversity v. Everson,
435 F. Supp. 3d 69 (D.D.C. 2020) (Everson), vacated the provision of
the Final Policy on Interpretation of the Phrase ``Significant Portion
of Its Range'' in the Endangered Species Act's Definitions of
``Endangered Species'' and ``Threatened Species'' (hereafter ``Final
Policy''; 79 FR 37578, July 1, 2014) that provided if the Service
determines that a species is threatened throughout all of its range,
the Service will not analyze whether the species is endangered in a
significant portion of its range.
Therefore, we proceed to evaluating whether the species is
endangered in a significant portion of its range--that is, whether
there is any portion of the species' range for which both (1) the
portion is significant; and (2) the species is in danger of extinction
in that portion. Depending on the case, it might be more efficient for
us to address the ``significance'' question or the ``status'' question
first. We can choose to address either question first. Regardless of
which question we address first, if we reach a negative answer with
respect to the first question that we address, we do not need to
evaluate the other question for that portion of the species' range.
Following the court's holding in Everson, we now consider whether
there are any significant portions of the species' range where the
species is in danger of extinction now (i.e., endangered). In
undertaking this analysis for coal darter, we choose to address the
status question first--we consider information pertaining to the
geographic distribution of both the species and the threats that the
species faces to identify portions of the range where the species may
be endangered.
We evaluated the range of the coal darter to determine if the
species is in danger of extinction now in any portion of its range. The
range of a species can theoretically be divided into portions in an
infinite number of ways. We focused our analysis on portions of the
species' range that may meet the definition of an endangered species.
For the coal darter, we considered whether the threats or their effects
on the species are greater in any biologically meaningful portion of
the species' range than in other portions such that the species is in
danger of extinction now in that portion.
The statutory difference between an endangered species and a
threatened species is the timeframe in which the species becomes in
danger of extinction; an endangered species is in danger of extinction
now while a threatened species is not in danger of extinction now but
is likely to become so within the foreseeable future. Thus, we
considered the time horizon for the threats that are driving the coal
darter to warrant listing as a threatened species throughout all of its
range. We then considered whether these threats or their effects are
occurring in any portion of the species' range such that the species is
in danger of extinction now in that portion of its range. We examined
the following threats: habitat degradation or loss stemming from
hydrologic alteration by impoundments, including dams and other
barriers; habitat degradation or loss stemming from urban development
or change in land cover, including increased density of residential and
commercial infrastructure; resource extraction, including mining and
timber operations; agriculture, including poultry farming; and
diminished water quality from point and nonpoint source chemical
contamination and siltation, including cumulative effects.
We identified that the Coosa portion of the species' range is
experiencing a concentration of the following threat at a biologically
meaningful scale: habitat destruction and degradation from land uses
and impoundments resulting in poor water quality (Factor A). Currently,
the Coosa population unit has low resiliency, with only two HUC 12
watersheds currently occupied: Lower Hatchet Creek and Lower Weogufka
Creek. This population unit has experienced the greatest range
reduction (a loss of 90 percent of its historical range) of the three
coal darter populations, and its low effective population size is an
order of magnitude lower than the other two populations. Overall, the
Coosa population lacks any adaptive potential, and it is likely that a
single catastrophic event would result in the extirpation of the
species from this portion. Based on this information, we conclude that
the impacts are having a biologically meaningful effect on the Coosa
population. Therefore, the best scientific and commercial information
indicates that the Coosa population may have a different status than
the other two populations in the species' range.
We then proceeded to consider whether this portion of the range
(i.e., the Coosa population) is significant. The Service's most recent
definition of ``significant'' within agency policy guidance has been
invalidated by court order (see Desert Survivors v. U.S. Department of
the Interior, 321 F. Supp. 3d 1011, 1070-74 (N.D. Cal. 2018)). In
undertaking this analysis for the coal darter, we considered whether
the Coosa population portion of the species' range may be significant.
Therefore, for the purposes of this analysis, when considering whether
this portion is significant, we considered whether the portion may (1)
occur in a unique habitat or ecoregion for the species; (2) contain
high-quality or high-value habitat relative to the remaining portions
of the range, for the species' continued viability in light of the
existing threats; (3) contain habitat that is essential to a specific
life-history function for the species and that is not found in the
other portions (for example, the principal breeding ground for the
species); or (4) contain a large geographic portion of the suitable
habitat relative to the remaining portions of the range for the
species.
Currently, the Coosa population represents a small portion (less
than 5 percent based on current occurrences and occupied stream
reaches) of the coal darter's range. In addition, this portion does not
have any areas of habitat that are unique or that contain high-quality
or high-value habitat relative to the remaining portions of the range.
The Coosa population also does not contain habitat that is essential to
a specific life-history function. Overall, we found no information that
would indicate that the Coosa population constitutes a portion of the
range that may be significant in terms of its geographic portion of
suitable habitat, or that it is significant in terms of high-quality
habitat or otherwise important for the species' life history.
The best scientific and commercial data available indicate that no
portion of the species' range provides a basis for determining that the
species is in danger of extinction in a significant portion of its
range, and we determine that the species is likely to become in danger
of extinction within the foreseeable future throughout all of its
range. This does not conflict with the courts' holdings in Desert
Survivors v. U.S. Department of the Interior, 321 F. Supp. 3d 1011,
1070-74 (N.D. Cal. 2018) and Center for Biological Diversity v. Jewell,
248 F. Supp. 3d 946, 959 (D. Ariz. 2017) because, in reaching this
conclusion, we did not apply the aspects of the Final Policy, including
the definition of ``significant,'' that those court decisions held to
be invalid.

Determination of Status

Our review of the best available scientific and commercial
information

[[Page 88354]]

indicates that the coal darter meets the Act's definition of a
threatened species. Therefore, we propose to list the coal darter as a
threatened species in accordance with sections 3(20) and 4(a)(1) of the
Act.

Available Conservation Measures

Conservation measures provided to species listed as endangered or
threatened species under the Act include recognition as a listed
species, planning and implementation of recovery actions, requirements
for Federal protection, and prohibitions against certain practices.
Recognition through listing results in public awareness, and
conservation by Federal, State, Tribal, and local agencies, private
organizations, and individuals. The Act encourages cooperation with the
States and other countries and calls for recovery actions to be carried
out for listed species. The protection required by Federal agencies,
including the Service, and the prohibitions against certain activities
are discussed, in part, below.
The primary purpose of the Act is the conservation of endangered
and threatened species and the ecosystems upon which they depend. The
ultimate goal of such conservation efforts is the recovery of these
listed species, so that they no longer need the protective measures of
the Act. Section 4(f) of the Act calls for the Service to develop and
implement recovery plans for the conservation of endangered and
threatened species. The goal of this process is to restore listed
species to a point where they are secure, self-sustaining, and
functioning components of their ecosystems.
The recovery planning process begins with development of a recovery
outline made available to the public soon after a final listing
determination. The recovery outline guides the immediate implementation
of urgent recovery actions while a recovery plan is being developed.
Recovery teams (composed of species experts, Federal and State
agencies, nongovernmental organizations, and stakeholders) may be
established to develop and implement recovery plans. The recovery
planning process involves the identification of actions that are
necessary to halt and reverse the species' decline by addressing the
threats to its survival and recovery. The recovery plan identifies
recovery criteria for review of when a species may be ready for
reclassification from endangered to threatened (``downlisting'') or
removal from protected status (``delisting''), and methods for
monitoring recovery progress. Recovery plans also establish a framework
for agencies to coordinate their recovery efforts and provide estimates
of the cost of implementing recovery tasks. Revisions of the plan may
be done to address continuing or new threats to the species, as new
substantive information becomes available. The recovery outline, draft
recovery plan, final recovery plan, and any revisions will be available
on our website as they are completed (https://www.fws.gov/program/endangered-species), or from our Alabama Ecological Services Field
Office (see FOR FURTHER INFORMATION CONTACT).
Implementation of recovery actions generally requires the
participation of a broad range of partners, including other Federal
agencies, States, Tribes, nongovernmental organizations, businesses,
and private landowners. Examples of recovery actions include habitat
restoration (e.g., restoration of native vegetation), research, captive
propagation and reintroduction, and outreach and education. The
recovery of many listed species cannot be accomplished solely on
Federal lands because their ranges may occur primarily or solely on
non-Federal lands. To achieve recovery of these species requires
cooperative conservation efforts on private, State, and Tribal lands.
If this species is listed, funding for recovery actions will be
available from a variety of sources, including Federal budgets, State
programs, and cost-share grants for non-Federal landowners, the
academic community, and nongovernmental organizations. In addition,
pursuant to section 6 of the Act, the State of Alabama would be
eligible for Federal funds to implement management actions that promote
the protection or recovery of the coal darter. Information on our grant
programs that are available to aid species recovery can be found at:
https://www.fws.gov/service/financial-assistance.
Although the coal darter is only proposed for listing under the Act
at this time, please let us know if you are interested in participating
in recovery efforts for this species. Additionally, we invite you to
submit any new information on this species whenever it becomes
available and any information you may have for recovery planning
purposes (see FOR FURTHER INFORMATION CONTACT).
Section 7 of the Act is titled, ``Interagency Cooperation,'' and it
mandates all Federal action agencies to use their existing authorities
to further the conservation purposes of the Act and to ensure that
their actions are not likely to jeopardize the continued existence of
listed species or adversely modify critical habitat. Regulations
implementing section 7 are codified at 50 CFR part 402.
Section 7(a)(2) states that each Federal action agency shall, in
consultation with the Secretary, ensure that any action they authorize,
fund, or carry out is not likely to jeopardize the continued existence
of a listed species or result in the destruction or adverse
modification of designated critical habitat. Each Federal agency shall
review its action at the earliest possible time to determine whether it
may affect listed species or critical habitat. If a determination is
made that the action may affect listed species or critical habitat,
formal consultation is required (see 50 CFR 402.14(a)), unless the
Service concurs in writing that the action is not likely to adversely
affect listed species or critical habitat. At the end of a formal
consultation, the Service issues a biological opinion, containing its
determination of whether the Federal action is likely to result in
jeopardy or adverse modification.
In contrast, section 7(a)(4) of the Act requires Federal agencies
to confer with the Service on any action which is likely to jeopardize
the continued existence of any species proposed to be listed under the
Act or result in the destruction or adverse modification of critical
habitat proposed to be designated for such species. Although the
conference procedures are required only when an action is likely to
result in jeopardy or adverse modification, action agencies may
voluntarily confer with the Service on actions that may affect species
proposed for listing or critical habitat proposed to be designated. In
the event that the subject species is listed or the relevant critical
habitat is designated, a conference opinion may be adopted as a
biological opinion and serve as compliance with section 7(a)(2) of the
Act.
Examples of discretionary actions for the coal darter that may be
subject to conference and consultation procedures under section 7 of
the Act are land management or other landscape-altering activities on
Federal lands administered by the U.S. Department of Agriculture's U.S.
Forest Service or Natural Resources Conservation Service, the U.S.
Geological Survey, and the U.S. Army Corps of Engineers, as well as
actions on State, Tribal, local, or private lands that require a
Federal permit (such as a permit from the U.S. Army Corps of Engineers
under section 404 of the CWA or a permit from the Service under section
10 of the Act) or that involve some other Federal action (such as
funding from the Federal Highway Administration, Federal Aviation

[[Page 88355]]

Administration, or Federal Emergency Management Agency). Federal
actions not affecting listed species or critical habitat--and actions
on State, Tribal, local, or private lands that are not funded,
authorized, or carried out by a Federal agency--do not require section
7 consultation. Federal agencies should coordinate with the local
Service Field Office (see FOR FURTHER INFORMATION CONTACT) with any
specific questions on section 7 consultation and conference
requirements.
It is the policy of the Service, as published in the Federal
Register on July 1, 1994 (59 FR 34272), to identify to the extent known
at the time a species is listed, specific activities that will not be
considered likely to result in violation of section 9 of the Act. To
the extent possible, activities that will be considered likely to
result in violation will also be identified in as specific a manner as
possible. The intent of this policy is to increase public awareness of
the effect of a proposed listing on proposed and ongoing activities
within the range of the species proposed for listing. Although most of
the prohibitions in section 9 of the Act apply to endangered species,
sections 9(a)(1)(G) and 9(a)(2)(E) of the Act prohibit the violation of
any regulation, including a rule issued under section 4(d) of the Act
pertaining to any threatened species of fish or wildlife, or threatened
species of plant, respectively. Section 4(d) of the Act directs the
Secretary to promulgate protective regulations that are necessary and
advisable for the conservation of threatened species. As a result, we
interpret our policy to mean that, when we list a species as a
threatened species, to the extent possible, we identify activities that
will or will not be considered likely to result in violation of the
protective regulations under section 4(d) for that species.
At this time, we are unable to identify specific activities that
will or will not be considered likely to result in violation of section
9 of the Act beyond what is already clear from the descriptions of
prohibitions and exceptions we would establish by protective regulation
under section 4(d) of the Act (see Provisions of the Proposed 4(d)
Rule, below).
Questions regarding whether specific activities would constitute
violation of section 9 of the Act should be directed to the Alabama
Ecological Services Field Office (see FOR FURTHER INFORMATION CONTACT).

II. Proposed Rule Issued Under Section 4(d) of the Act

Background

Section 4(d) of the Act contains two sentences. The first sentence
states that the Secretary shall issue such regulations as she deems
necessary and advisable to provide for the conservation of species
listed as threatened species. The U.S. Supreme Court has noted that
statutory language similar to the language in section 4(d) of the Act
authorizing the Secretary to take action that she ``deems necessary and
advisable'' affords a large degree of deference to the agency (see
Webster v. Doe, 486 U.S. 592, 600 (1988)). Conservation is defined in
the Act to mean the use of all methods and procedures which are
necessary to bring any endangered species or threatened species to the
point at which the measures provided pursuant to the Act are no longer
necessary. Additionally, the second sentence of section 4(d) of the Act
states that the Secretary may by regulation prohibit with respect to
any threatened species any act prohibited under section 9(a)(1), in the
case of fish or wildlife, or section 9(a)(2), in the case of plants.
Thus, the combination of the two sentences of section 4(d) provides the
Secretary with wide latitude of discretion to select and promulgate
appropriate regulations tailored to the specific conservation needs of
the threatened species. The second sentence grants particularly broad
discretion to the Service when adopting one or more of the prohibitions
under section 9.
The courts have recognized the extent of the Secretary's discretion
under this standard to develop rules that are appropriate for the
conservation of a species. For example, courts have upheld, as a valid
exercise of agency authority, rules developed under section 4(d) that
included limited prohibitions against takings (see Alsea Valley
Alliance v. Lautenbacher, 2007 WL 2344927 (D. Or. 2007); Washington
Environmental Council v. National Marine Fisheries Service, 2002 WL
511479 (W.D. Wash. 2002)). Courts have also upheld 4(d) rules that do
not address all of the threats a species faces (see State of Louisiana
v. Verity, 853 F.2d 322 (5th Cir. 1988)). As noted in the legislative
history when the Act was initially enacted, ``once an animal is on the
threatened list, the Secretary has an almost infinite number of options
available to [her] with regard to the permitted activities for those
species. [She] may, for example, permit taking, but not importation of
such species, or [she] may choose to forbid both taking and importation
but allow the transportation of such species'' (H.R. Rep. No. 412, 93rd
Cong., 1st Sess. 1973).
The provisions of this proposed 4(d) rule would promote
conservation of the coal darter by encouraging management of the
landscape in ways that meet both watershed and riparian management
purposes and facilitate the conservation of the species. The provisions
of this proposed 4(d) rule are one of many tools that we would use to
promote the conservation of the coal darter. This proposed 4(d) rule
would apply only if and when we make final the listing of the coal
darter as a threatened species.
As mentioned previously in Available Conservation Measures, section
7(a)(2) of the Act requires Federal agencies, including the Service, to
ensure that any action they authorize, fund, or carry out is not likely
to jeopardize the continued existence of any endangered species or
threatened species or result in the destruction or adverse modification
of designated critical habitat of such species. In addition, even
before the listing of any species or the designation of its critical
habitat is finalized, section 7(a)(4) of the Act requires Federal
agencies to confer with the Service on any agency action which is
likely to jeopardize the continued existence of any species proposed to
be listed under the Act or result in the destruction or adverse
modification of critical habitat proposed to be designated for such
species.
These requirements are the same for a threatened species with a
species-specific 4(d) rule. For example, as with an endangered species,
if a Federal agency determines that an action is ``not likely to
adversely affect'' a threatened species, it will require the Service's
written concurrence (see 50 CFR 402.13(c)). Similarly, if a Federal
agency determinates that an action is ``likely to adversely affect'' a
threatened species, the action will require formal consultation with
the Service and the formulation of a biological opinion (see 50 CFR
402.14(a)).

Provisions of the Proposed 4(d) Rule

Exercising the Secretary's authority under section 4(d) of the Act,
we have developed a proposed rule that is designed to address the coal
darter's conservation needs. As discussed previously under Summary of
Biological Status and Threats, we have concluded that the darter is
likely to become in danger of extinction within the foreseeable future
primarily due to habitat loss or degradation from the following
activities or conditions: hydrologic alteration by impoundments,
including dams and other barriers;

[[Page 88356]]

agriculture (poultry farming); urban development or change in land
cover, including increased density of residential and commercial
infrastructure; resource extraction, including mining and silviculture
operations that do not follow State-approved BMPs; diminished water
quality from point and nonpoint source chemical contamination and
sedimentation; and climate change. Section 4(d) requires the Secretary
to issue such regulations as she deems necessary and advisable to
provide for the conservation of each threatened species and authorizes
the Secretary to include among those protective regulations any of the
prohibitions that section 9(a)(1) of the Act prescribes for endangered
species. We find that, if finalized, the protections, prohibitions, and
exceptions in this proposed 4(d) rule as a whole satisfy the
requirement in section 4(d) of the Act to issue regulations deemed
necessary and advisable to provide for the conservation of the coal
darter.
The protective regulations we are proposing for the coal darter
incorporate prohibitions from section 9(a)(1) of the Act to address the
threats to the species. Section 9(a)(1) prohibits the following
activities for endangered wildlife: importing or exporting; take;
possession and other acts with unlawfully taken specimens; delivering,
receiving, carrying, transporting, or shipping in interstate or foreign
commerce in the course of commercial activity; or selling or offering
for sale in interstate or foreign commerce. This protective regulation
includes all of these prohibitions because the coal darter is at risk
of extinction within the foreseeable future and putting these
prohibitions in place would help to preserve the species' remaining
populations and decrease synergistic, negative effects from other
ongoing or future threats.
In particular, this proposed 4(d) rule would provide for the
conservation of the coal darter by prohibiting the following
activities, unless they fall within specific exceptions or are
otherwise authorized or permitted: import or export; take; possession
and other acts with unlawfully taken specimens; delivery, receipt,
carriage, transport, or shipment in interstate or foreign commerce in
the course of commercial activity; and sale or offer for sale in
interstate or foreign commerce. We also include several exceptions to
these prohibitions, which, along with the prohibitions, are set forth
below.
Under the Act, ``take'' means to harass, harm, pursue, hunt, shoot,
wound, kill, trap, capture, or collect, or to attempt to engage in any
such conduct. Some of these provisions have been further defined in
regulations at 50 CFR 17.3. Take can result knowingly or otherwise, by
direct and indirect impacts, intentionally or incidentally. Regulating
take would help preserve the species' remaining populations and slow
their rate of decline. Therefore, we propose to prohibit take of the
coal darter, except for take resulting from those actions and
activities specifically excepted by the 4(d) rule. Exceptions to the
prohibition on take would include all of the general exceptions to the
prohibition on take of endangered wildlife, as set forth in 50 CFR
17.21, and additional exceptions, as described below.
The proposed 4(d) rule would also provide for the conservation of
the species by allowing exceptions that incentivize conservation
actions or that, while they may have some minimal level of take of the
coal darter, are not expected to rise to the level that would have a
negative impact (i.e., would have only de minimis impacts) on the
species' conservation. The proposed exceptions to the prohibitions
include: take incidental to any otherwise lawful activity caused by
channel restoration; streambank restoration; habitat improvement
activities; and silviculture and forestry activities that follow best
management practices (described below). These are expected to have
negligible impacts to the coal darter and its habitat.
Channel Restoration--Channel restoration is used as a technique to
restore degraded, physically unstable streams back to natural,
physically stable, ecologically functioning streams. When done
correctly, these projects reduce, ameliorate, or fix unnatural erosion,
head cutting, and/or sedimentation. Thus, channel restoration projects
result in geomorphically stable stream channels that maintain the
appropriate lateral dimensions, longitudinal profiles, and sinuosity
patterns over time without an aggrading or degrading bed elevation and
include stable riffle-run-pool complexes that consist of silt-free
gravel, coarse sand, cobble, boulders, woody structure, and river weed
(Podostemum ceratophyllum). This provision of the proposed 4(d) rule
for channel restoration would promote conservation of the coal darter
by excepting incidental take resulting from activities that would
improve channel conditions and restore degraded, physically unstable
streams or stream segments. We anticipate these activities will advance
ecological conditions within a watershed to a more natural state that
would benefit the coal darter.
Streambank Stabilization--Streambank stabilization is used as a
habitat restoration technique to restore degraded and eroded
streambanks back to natively vegetated, stable streambanks. When done
correctly, these projects reduce bank erosion and instream
sedimentation, resulting in improved habitat conditions for aquatic
species. Therefore, we would allow streambanks to be stabilized using
the following bioengineering methods: native live stakes (live,
vegetative cuttings inserted or tamped into the ground in a manner that
allows the stake to take root and grow), native live fascines (live
branch cuttings, usually willows, bound together into long, cigar-
shaped bundles), planting of bare-root seedlings or native brush
layering (cuttings or branches of easily rooted tree species layered
between successive lifts of soil fill). All methods should use plant
species native to the region where the project is being conducted.
These methods would not include the sole use of quarried rock (riprap)
or the use of rock baskets or gabion structures, but quarried rock
(riprap), rock baskets, or gabion structures could be used in
conjunction with the allowed bioengineering methods described above.
This provision of the proposed 4(d) rule would promote conservation of
the coal darter by excepting from the prohibition on incidental take
those streambank stabilization activities that would improve habitat
conditions by reducing bank erosion and instream sedimentation.
Habitat Improvement Activities--Activities that improve watershed,
riparian, or habitat conditions within the range of the coal darter
would provide for the conservation of the species. Activities carried
out under the Working Lands for Wildlife program of the Natural
Resources Conservation Service, U.S. Department of Agriculture, or
similar projects, which may include projects funded by the Service's
Partners for Fish and Wildlife Program or the EPA's 319 grant program,
would benefit the species if they do not alter habitats known to be
used by the species beyond its tolerances and are implemented with a
primary objective of improving environmental conditions to support the
aquatic biodiversity of flowing water habitats. This provision of the
proposed 4(d) rule would promote conservation of the coal darter by
excepting from the prohibition on incidental take those activities
described above that improve conditions for the species and that would
likely increase resiliency in the

[[Page 88357]]

Black Warrior, Cahaba, and Coosa Rivers resiliency units.
Silviculture and Forestry Management Activities--Silviculture and
forest management activities that use State-approved BMPs to protect
water and sediment quality and stream and riparian habitat would
provide for the conservation of the coal darter. Best management
practices would have to be designed to reduce sedimentation, erosion,
and bank destruction, thereby protecting instream habitat for the
species. We recognize that silvicultural operations are widely
implemented in accordance with State-approved BMPs (as reviewed by
Cristan et al. 2018, entire), and the adherence to these BMPs broadly
protects water quality, particularly related to sedimentation (as
reviewed by Cristan et al. 2016, entire; Warrington et al. 2017,
entire; Schilling et al. 2021, entire). This provision of the 4(d) rule
would promote conservation of the coal darter by excepting from the
prohibition on incidental take those silviculture and forest management
activities that use State-approved BMPs because this exception would
allow these activities to continue while protecting the coal darter's
habitat.
Despite these prohibitions regarding threatened species, we may
under certain circumstances issue permits to carry out one or more
otherwise-prohibited activities, including those described above. The
regulations that govern permits for threatened wildlife state that the
Director may issue a permit authorizing any activity otherwise
prohibited with regard to threatened species. These include permits
issued for the following purposes: for scientific purposes, to enhance
propagation or survival, for economic hardship, for zoological
exhibition, for educational purposes, for incidental taking, or for
special purposes consistent with the purposes of the Act (50 CFR
17.32). The statute also contains certain exemptions from the
prohibitions, which are found in sections 9 and 10 of the Act.
We recognize the special and unique relationship with our State
natural resource agency partners in contributing to conservation of
listed species. State agencies often possess scientific data and
valuable expertise on the status and distribution of endangered,
threatened, and candidate species of wildlife and plants. State
agencies, because of their authorities and their close working
relationships with local governments and landowners, are in a unique
position to assist us in implementing all aspects of the Act. In this
regard, section 6 of the Act provides that we must cooperate to the
maximum extent practicable with the states in carrying out programs
authorized by the Act. Therefore, any qualified employee or agent of a
State conservation agency that is a party to a cooperative agreement
with us in accordance with section 6(c) of the Act, who is designated
by his or her agency for such purposes, would be able to conduct
activities designed to conserve coal darter that may result in
otherwise prohibited take without additional authorization.
Nothing in this proposed 4(d) rule would change in any way the
recovery planning provisions of section 4(f) of the Act, the
consultation requirements under section 7 of the Act, or the ability of
the Service to enter into conservation partnerships for the management
and protection of the coal darter. However, interagency cooperation may
be further streamlined through planned programmatic consultations for
the species between Federal agencies and the Service, where
appropriate. We ask the public, particularly State agencies and other
interested stakeholders that may be affected by the proposed 4(d) rule,
to provide comments and suggestions regarding additional guidance and
methods that the Service could provide or use, respectively, to
streamline the implementation of this proposed 4(d) rule (see
Information Requested, above).

III. Critical Habitat

Background

Critical habitat is defined in section 3 of the Act as:
(1) The specific areas within the geographical area occupied by the
species, at the time it is listed in accordance with the Act, on which
are found those physical or biological features
(a) Essential to the conservation of the species, and
(b) Which may require special management considerations or
protection; and
(2) Specific areas outside the geographical area occupied by the
species at the time it is listed, upon a determination that such areas
are essential for the conservation of the species.
We have found critical habitat to be prudent and determinable for
the coal darter and have developed a proposed critical habitat rule for
this species. On October 25, 2023, we were informed that the Office of
Information and Regulatory Affairs (OIRA) in the Office of Management
and Budget (OMB) determined that our proposed critical habitat rule is
significant under Executive Order 12866. Therefore, we will publish a
proposed critical habitat rule for the coal darter following
interagency review of the proposed critical habitat rule.

Required Determinations

Clarity of the Rule

We are required by E.O.s 12866 and 12988 and by the Presidential
Memorandum of June 1, 1998, to write all rules in plain language. This
means that each rule we publish must:
(1) Be logically organized;
(2) Use the active voice to address readers directly;
(3) Use clear language rather than jargon;
(4) Be divided into short sections and sentences; and
(5) Use lists and tables wherever possible.
If you feel that we have not met these requirements, send us
comments by one of the methods listed in ADDRESSES. To better help us
revise the rule, your comments should be as specific as possible. For
example, you should tell us the numbers of the sections or paragraphs
that are unclearly written, which sections or sentences are too long,
the sections where you feel lists or tables would be useful, etc.

National Environmental Policy Act (42 U.S.C. 4321 et seq.)

Regulations adopted pursuant to section 4(a) of the Act are exempt
from the National Environmental Policy Act (NEPA; 42 U.S.C. 4321 et
seq.) and do not require an environmental analysis under NEPA. We
published a notice outlining our reasons for this determination in the
Federal Register on October 25, 1983 (48 FR 49244). This includes
listing, delisting, and reclassification rules, as well as critical
habitat designations and species-specific protective regulations
promulgated concurrently with a decision to list or reclassify a
species as threatened. The courts have upheld this position (e.g.,
Douglas County v. Babbitt, 48 F.3d 1495 (9th Cir. 1995) (critical
habitat); Center for Biological Diversity v. U.S. Fish and Wildlife
Service, 2005 WL 2000928 (N.D. Cal. Aug. 19, 2005) (concurrent 4(d)
rule)).

Government-to-Government Relationship With Tribes

In accordance with the President's memorandum of April 29, 1994
(Government-to-Government Relations with Native American Tribal
Governments; 59 FR 22951), E.O. 13175 (Consultation and Coordination
with Indian Tribal Governments), and the Department of the Interior's
manual at

[[Page 88358]]

512 DM 2, we readily acknowledge our responsibility to communicate
meaningfully with federally recognized Tribes on a government-to-
government basis. In accordance with Secretary's Order 3206 of June 5,
1997 (American Indian Tribal Rights, Federal-Tribal Trust
Responsibilities, and the Endangered Species Act), we readily
acknowledge our responsibilities to work directly with Tribes in
developing programs for healthy ecosystems, to acknowledge that Tribal
lands are not subject to the same controls as Federal public lands, to
remain sensitive to Indian culture, and to make information available
to Tribes. We have determined that no Tribal lands fall within the
occupied range of the coal darter, so no Tribes would be affected by
the listing of the species.

References Cited

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

Authors

The primary authors of this proposed rule are the staff members of
the Fish and Wildlife Service's Species Assessment Team and the Alabama
Ecological Services Field Office.

List of Subjects in 50 CFR Part 17

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

Proposed Regulation Promulgation

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

PART 17--ENDANGERED AND THREATENED WILDLIFE AND PLANTS

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

Authority: 16 U.S.C. 1361-1407; 1531-1544; and 4201-4245, unless
otherwise noted.

0
2. In Sec. 17.11, amend paragraph (h) by adding an entry for ``Darter,
coal'' to the List of Endangered and Threatened Wildlife in
alphabetical order under FISHES to read as follows:

Sec. 17.11 Endangered and threatened wildlife.

* * * * *
(h) * * *

----------------------------------------------------------------------------------------------------------------
Listing citations and
Common name Scientific name Where listed Status applicable rules
----------------------------------------------------------------------------------------------------------------

* * * * * * *
----------------------------------------------------------------------------------------------------------------
Fishes
----------------------------------------------------------------------------------------------------------------

* * * * * * *
Darter, coal.................... Percina brevicauda Wherever found.... T [Federal Register
citation when
published as a final
rule]; 50 CFR
17.44(ii).\4d\

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

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3. Amend Sec. 17.44 by adding paragraph (ii) to read as follows:

Sec. 17.44 Special rules--fishes.

* * * * *
(ii) Coal darter (Percina brevicauda).
(1) Prohibitions. The following prohibitions that apply to
endangered wildlife also apply to the coal darter. Except as provided
under paragraph (ii)(2) of this section and Sec. Sec. 17.4 and 17.5,
it is unlawful for any person subject to the jurisdiction of the United
States to commit, to attempt to commit, to solicit another to commit,
or cause to be committed, any of the following acts in regard to this
species:
(i) Import or export, as set forth at Sec. 17.21(b) for endangered
wildlife.
(ii) Take, as set forth at Sec. 17.21(c)(1) for endangered
wildlife.
(iii) Possession and other acts with unlawfully taken wildlife, as
set forth at Sec. 17.21(d)(1) for endangered wildlife.
(iv) Interstate or foreign commerce in the course of commercial
activity, as set forth at Sec. 17.21(e) for endangered wildlife.
(v) Sale or offer for sale, as set forth at Sec. 17.21(f) for
endangered wildlife.
(2) Exceptions from prohibitions. In regard to this species, you
may:
(i) Conduct activities as authorized by a permit under Sec. 17.32.
(ii) Take, as set forth at Sec. 17.21(c)(2) through (c)(4) for
endangered wildlife.
(iii) Take, as set forth at Sec. 17.31(b).
(iv) Possess and engage in other acts with unlawfully taken
wildlife, as set forth at Sec. 17.21(d)(2) for endangered wildlife.
(v) Take incidental to an otherwise lawful activity caused by:
(A) Channel restoration projects that create natural, physically
stable, ecologically functioning streams. These projects can be
accomplished using a variety of methods, but the desired outcome is a
natural channel with geomorphically stable stream channels that
maintain the appropriate lateral dimensions, longitudinal profiles, and
sinuosity patterns over time without an aggrading or degrading bed
elevation and include stable riffle-run-pool complexes that consist of
silt-free gravel, coarse sand, cobble, boulders, woody structure, and
river weed (Podostemum ceratophyllum).
(B) Streambank stabilization projects that use bioengineering
methods to replace pre-existing, bare, eroding stream banks with
natively vegetated, stable stream banks, thereby reducing bank erosion
and instream sedimentation, and improving habitat conditions for the
coal darter. Stream banks may be stabilized using native live stakes
(live, vegetative cuttings inserted or tamped into the ground in a
manner that allows the stake to take root and grow), native live
fascines (live branch cuttings, usually willows, bound together into
long, cigar-shaped bundles), planting of bare-root seedlings or native
brush layering (cuttings or branches of easily rooted tree species
layered between successive lifts of soil fill). Stream banks must not
be stabilized solely through the use of quarried rock (riprap) or the
use of rock baskets or gabion structures.
(C) Activities that improve the watershed, riparian, or habitat
conditions for the coal darter within the range of the species.
Activities carried out under the Working Lands for Wildlife program of
the Natural Resources Conservation Service, U.S.

[[Page 88359]]

Department of Agriculture, or similar projects, which may include
projects funded by the Service's Partners for Fish and Wildlife Program
or the Environmental Protection Agency's 319 grant program, benefit the
species if they do not alter habitats known to be used by the species
beyond its tolerances and are implemented with a primary objective of
improving environmental conditions to support the aquatic biodiversity
of flowing water habitats.
(D) Silviculture and forest management activities that use State-
approved best management practices to protect water and sediment
quality and stream and riparian habitat. Best management practices must
be designed to reduce sedimentation, erosion, and bank destruction,
thereby protecting instream habitat for the coal darter.

Martha Williams,
Director, U.S. Fish and Wildlife Service.
[FR Doc. 2023-27873 Filed 12-20-23; 8:45 am]
BILLING CODE 4333-15-P