[Federal Register: August 10, 2005 (Volume 70, Number 153)]
[Proposed Rules]               
[Page 46465-46467]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]



Fish and Wildlife Service

50 CFR Part 17

Endangered and Threatened Wildlife and Plants; 90-Day Finding on 
a Petition To Delist the Slackwater Darter and Initiation of a 5-Year 

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Notice of 90-day petition finding and initiation of 5-year 


SUMMARY: We, the U.S. Fish and Wildlife Service (Service), announce a 
90-day finding on a petition to remove the slackwater darter 
(Etheostoma boschungi) from the Federal List of Endangered and 
Threatened Wildlife and Plants pursuant to the Endangered Species Act 
of 1973, as amended (Act). We find that the petition does not present 
substantial scientific or commercial information indicating that 
delisting of the slackwater darter may be warranted. Accordingly, we 
are not required to take any further action in response to this 
petition. However, we believe the information in our files indicates a 
decline in the status of this species since its listing. Therefore, we 
ask the public to submit to us any new information that has become 
available concerning the status of or threats to the slackwater darter 
since it was listed in 1977. This information will help us more 
accurately assess its status and complete a 5-year review as required 
under section 4(c)(2)(A) of the Act.

DATES: The 90-day finding announced in this document was made on July 
7, 2005. To allow us adequate time to conduct this 5-year review, we 
request any new information and comments to be submitted to us by 
October 11, 2005. However, we will continue to accept new information 
about this listed species at any time.

ADDRESSES: Data, information, written comments and materials, or 
questions concerning this petition, our finding, or our 5-year review 
should be submitted to the Field Supervisor, Jackson Field Office, U.S. 
Fish and Wildlife Service, 6578 Dogwood View Parkway, Jackson, 
Mississippi, 39213. The petition finding, supporting data, and comments 
or information received in response to this notice will be available 
for public review, by appointment, during normal business hours at the 
above address. New information regarding the slackwater darter may be 
sent electronically to daniel_drennen@fws.gov.

FOR FURTHER INFORMATION CONTACT: Daniel J. Drennen, Fish and Wildlife 
Biologist, at the above address (telephone 601-321-1127; e-mail 


Public Information Solicited

    When we find that there is not substantial information indicating 
that the petitioned action may be warranted, initiation of a status 
review is not required by the Act. However, we continually assess the 
status of species listed as threatened or endangered to ensure that our 
information is complete and based on the best available scientific and 
commercial data. Therefore, we are soliciting new information for the 
slackwater darter.


    Section 4(b)(3)(A) of the Act requires that we make a finding on 
whether a petition to list, delist, or reclassify a species presents 
substantial scientific or commercial information indicating that the 
petitioned action may be warranted. The finding is to be based on all 
information available to us at the time the finding is made. To the 
maximum extent practicable, the finding is to be made within 90 days of 
our receipt of the petition, and published promptly in the Federal 
Register. If we find that substantial information was presented in the 
petition, we are required to promptly commence a review of the status 
of the species to determine whether the action is warranted.
    In making the 90-day finding, we rely on information provided by 
the petitioner and evaluate that information in accordance with 50 CFR 
424.14(b). The contents of this finding summarize that information 
included in the petition and that which was available to us at the time 
of the petition review. Under section 4(b)(3)(A) of the Act and 50 CFR 
424.14(b), our review is limited to a determination of whether the 
information in the petition meets the ``substantial information'' 
threshold. ``Substantial information'' is defined in 50 CFR 424.14(b) 
as ``that amount of information that would lead a reasonable person to 
believe that the measure proposed in the petition may be warranted.'' 
We do not conduct additional research at this point, nor do we subject 
the petition to rigorous critical review. Rather, in accordance with 
the Act and regulations, we accept the petitioner's sources and 
characterizations of the information unless we have specific 
information to the contrary. As explained below, applying this standard 
we find that the petition does not state a reasonable case for 
    The factors for listing, delisting, or reclassifying species are 
provided at 50 CFR 424.11. We may delist a species only if the best 
scientific and commercial data available substantiate that it is 
neither endangered nor threatened. Delisting may be warranted as a 
result of: (1) Extinction; (2) recovery; or (3) a determination that 
the original data used for classification of the species as endangered 
or threatened were in error.

Review of Petition

    The petition to delist the slackwater darter (Etheostoma 
boschungi), dated February 3, 1997, was submitted by the National 
Wilderness Institute. The petition requested that we remove the 
slackwater darter from the List of Endangered and Threatened Wildlife 
and Plants on the basis of data error.
    In response to the petitioner's request to delist the slackwater 
darter, we sent a letter to the petitioner on June 29, 1998, explaining 
our inability to act upon the petition due to low priorities assigned 
to delisting petitions in accordance with our Listing Priority Guidance 
for Fiscal Year 1997, which was published in the Federal Register on 
December 5, 1996 (61 FR 64475). That guidance identified delisting 
activities as the lowest priority (Tier 4). Due to the large number of 
higher priority listing actions and a limited listing budget, we did 
not conduct any delisting activities during the Fiscal Year 1997. On 
May 8, 1998, we published the Listing Priority Guidance for Fiscal 
Years 1998-1999 in the Federal Register (63 FR 25502) and, again, 
placed delisting activities at the bottom of our priority list. 
Subsequent to 1998, the delisting funding source was moved from the 
listing program to the recovery program, and delisting petitions no 
longer had to compete with other section 4 actions for funding. 
However, due to higher priority recovery workload, it has not been 
practicable to process this petition until recently.
    The petition requested that we delist the slackwater darter on the 
basis of data error; however, the petition did not provide any 
information explaining how the data used to classify the slackwater

[[Page 46466]]

darter as a threatened species were in error. Rather, the petition 
cited our 1993 Fiscal Year Budget Justification as its supporting 
information. The 1993 Fiscal Year Budget Justification identified 33 
species, including the slackwater darter, that appeared to be 
approaching the majority of their recovery objectives. The 
Justification stated the need to evaluate these species, including the 
slackwater darter, and determine the appropriateness of delisting them 
based on information obtained from status surveys. However, it did not 
contain any information showing that the original classification was in 
error, or that the darter had recovered to the point of delisting.
    We listed the slackwater darter as a threatened species, and 
designated critical habitat for this fish, on September 9, 1977, due to 
threats associated with spreading urbanization, pollution, and stream 
channel modifications (42 FR 45526 and 42 FR 47840). The recovery 
objective of the slackwater darter recovery plan is to delist the 
species. Our criteria for delisting this fish include the establishment 
and protection of one or more specific habitats areas in three 
different tributaries of the Tennessee River system, and evidence that 
these populations are stable or increasing in size (U.S. Fish and 
Wildlife Service 1984).

Summary of Factors Affecting the Species as Presented in the Petition

    Under section 4(a) of the Act, we may list, reclassify, or delist a 
species on the basis of any of the following 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; and (E) other natural or 
manmade factors affecting its continued existence. A brief discussion 
of how each of the listing factors applies to the petition and the 
information in our files follows.

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

    The slackwater darter is rare, sporadically distributed, and 
historically known from only five tributary streams to the south bend 
of the Tennessee River in the southwestern Highland Rim of the 
Nashville Basin in Tennessee and northern Alabama (Boschung and Nieland 
1986; Etnier and Starnes 1993). In Tennessee, the populations were 
documented from within the Buffalo River and Shoal Creek (Lawrence 
County) and Cypress Creek (Wayne County) watersheds. In Alabama, the 
slackwater darter has been found in the Flint River (Madison County), 
Swan Creek (Limestone County), and Cypress Creek (Lauderdale County).
    The slackwater darter is a migratory species and occurs in non-
breeding and breeding habitat (Boschung 1979; Boschung and Neiland 
1986; U.S. Fish and Wildlife Service 1984) consisting of gentle riffles 
and slackwater (slow moving) areas of upland tributary streams 
(Williams and Robison 1980; Etnier and Starnes 1993). The non-breeding 
habitat must periodically flood to give the species access to the 
breeding habitat (slackwater) adjacent to the non-breeding habitat.
    The petition stated that ``other new scientific information 
gathered since the time of listing which is in possession of the 
Service, support delisting due to data error.'' We have no such 
information in our files that would support delisting. The petition did 
not include any detailed narrative justification for the delisting, 
provide information regarding the status of the species throughout all 
or a significant portion of its range, or include any supporting 
documentation for the recommended regulatory action of delisting the 
slackwater darter. We have found no evidence or data in the petition or 
in our files supporting the petitioned action or indicating an error 
was committed in listing the slackwater darter.
    On the contrary, evidence in our files indicates that slackwater 
darters appear to have suffered a dramatic decline since the status 
surveys of Boshung (1976, 1979) and McGregor and Shepard (1992, 1995). 
Recent surveys indicate several historical spawning and breeding 
habitat sites have been destroyed or are not being used by slackwater 
darters, thus suggesting that reproductive success and recruitment may 
be declining (Dinkins and Dinkins 2003; Johnston and Hartup 2001, 
    Slackwater darters historically have been collected at a total of 
31 sites within the five tributary streams. Numerous surveys and fish 
collections in the 1970s and mid-1980s in the south bend of the 
Tennessee River failed to document the presence of the slackwater 
darter outside these five drainages (U.S. Fish and Wildlife Service 
1984; 42 FR 45526). At least 5 of the 31 original sites have been lost 
or degraded to point that they no longer provide suitable habitat for 
slackwater darters (U.S. Fish and Wildlife Service 1984; D. Drennen, 
U.S. Fish and Wildlife Service, pers. observ., 2003; S. McGregor, 
Geological Survey of Alabama, pers. comm. 2004).
    The slackwater darter is still sporadically present, in both 
breeding and non-breeding habitats, within the Buffalo River and Shoal 
Creek (Lawrence County) and Cypress Creek (Wayne County) watersheds of 
Tennessee (Johnson and Hartup 2001, 2002). However, recent surveys in 
2001, 2002, and 2004 indicate declines both in the number of sites 
being utilized by the slackwater darter and in actual numbers of 
individuals (Johnson and Hartup 2001, 2002; S. McGregor, Geological 
Survey of Alabama, pers. comm., 2004). For example, in 2002, slackwater 
darters were only found in 2 of 14 historical localities sampled in 
tributary streams in Tennessee (Johnston and Hartup 2002). Further, 
sampling conducted in 2004 at three historical localities in the 
watersheds of Tennessee resulted in the collection of a single male 
slackwater darter in total; and sampling at four historic localities in 
Alabama resulted in collection of only two individuals in total (S. 
McGregor, Geological Survey of Alabama, pers. comm., 2004).
    Furthermore, threats to the populations in Alabama and Tennessee 
have not decreased substantially and, in some cases, have increased. 
For example, Swan Creek in Alabama has been severely altered in the 
past decade. Much of the forest alongside the stream has been removed 
and heavy impacts to the stream bank continue to occur, resulting in 
channel modifications and the complete loss of in-stream aquatic 
vegetation. Repair and replacement of bridge crossings on the Natchez 
Trace Parkway, at sites known to have remnant populations of slackwater 
darters, have the potential to add significant sedimentation to Lindsey 
and Threet Creek in Lauderdale County, Alabama (Dinkins and Dinkins 
2003). Cattle impacts on slackwater darter spawning habitat have 
increased significantly. For example, the ``Dodd'' site in Middle 
Cypress Creek, Tennessee, has been seriously impacted by cattle 
degrading bank sides and stream bottoms and consuming streamside 
vegetation (D. Drennen, U.S. Fish and Wildlife Service, pers. observ. 

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

    The petition did not provide any information pertaining to Factor 
B. The original listing rule cited this factor as not applicable. No 
new information in our files suggests a change to this determination.

[[Page 46467]]

Factor C: Disease or Predation

    The petition did not provide any information pertaining to Factor 
C. The original listing rule cited this factor as not applicable. No 
new information in our files suggests a change to this determination.

Factor D: The Inadequacy of Existing Regulatory Mechanisms

    The petition did not provide any information pertaining to Factor 
D. The original listing rule cited this factor as not applicable. No 
new information in our files suggests a change to this determination.

Factor E: Other Natural or Manmade Factors Affecting Its Continued 

    The petition did not provide any information pertaining to Factor 
E. The original listing rule cited this factor as not applicable. No 
new information in our files suggests a change to this determination.


    We have reviewed the petition and its supporting documentation, as 
well as our agency files. On the basis of our review, we find that no 
substantial information has been presented or found that would indicate 
that delisting of the slackwater darter may be warranted.

Five-Year Review

    Section 4(c)(2)(A) of the Act requires that we conduct a review of 
listed species at least once every five years. Under section 
4(c)(2)(B), we are then required to determine, on the basis of such a 
review, whether or not any species should be removed from the List 
(delisted), or reclassified from endangered to threatened, or 
threatened to endangered. Our regulations at 50 CFR 424.21 require that 
we publish a notice in the Federal Register announcing those species 
currently under active review. This notice announces our active review 
of the slackwater darter.
    The 5-year review for the slackwater darter will consider the best 
scientific and commercial data that has become available since the 
species was listed, such as:
    A. Species biology, including, but not limited to, population 
trends, distribution, abundance, demographics, and genetics;
    B. Habitat conditions, including, but not limited to, amount, 
distribution, and suitability;
    C. Conservation measures that have been implemented that benefit 
the species;
    D. Threat status and trends;
    E. Other new information, data, or corrections, including, but not 
limited to, taxonomic or nomenclatural changes, identification of 
erroneous information contained in the List, and improved analytical 
    To fully understand the apparent dramatic decline of the slackwater 
darter and its impact on this fish's current status, we believe 
initiating this 5-year review is appropriate.
    New information and comments should be sent to the Field Supervisor 
of the Jackson Field Office (see ADDRESSES section). Our practice is to 
make comments, including names and home addresses of respondents, 
available for public review during regular business hours. Respondents 
may request that we withhold a respondent's identity, as allowable by 
law. If you wish us to withhold your name or address, you must state 
this request prominently at the beginning of your comment. However, we 
will not consider anonymous comments. To the extent consistent with 
applicable law, we will make all submissions from organizations or 
businesses, and from individuals identifying themselves as 
representatives or officials of organizations or businesses, available 
for public inspection in their entirety. Comments and materials 
received will be available for public inspection, by appointment, 
during normal business hours (see ADDRESSES section).

References Cited

    A complete list of all references is available, upon request, from 
the Jackson Field Office (see ADDRESSES section).


    The author of this document is Daniel J. Drennen (see ADDRESSES 

    Authority: The authority for this action is the Endangered 
Species Act of 1973, as amended (16 U.S.C. 1531 et seq.).

    Dated: July 7, 2005.
Marshall P. Jones, Jr.,
Acting Director, Fish and Wildlife Service.
[FR Doc. 05-15720 Filed 8-9-05; 8:45 am]