[Federal Register Volume 77, Number 144 (Thursday, July 26, 2012)]
[Proposed Rules]
[Pages 43905-43939]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-17950]
[[Page 43905]]
Vol. 77
Thursday,
No. 144
July 26, 2012
Part II
Department of the Interior
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Fish and Wildlife Service
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50 CFR Part 17
Endangered and Threatened Wildlife and Plants; Endangered Status for
the Diamond Darter and Designation of Critical Habitat; Proposed Rule
Federal Register / Vol. 77, No. 144 / Thursday, July 26, 2012 /
Proposed Rules
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
[FWS-R5-ES-2012-0045; 4500030113]
RIN 1018-AY12
Endangered and Threatened Wildlife and Plants; Endangered Status
for the Diamond Darter and Designation of Critical Habitat
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Proposed rule.
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SUMMARY: We, the U.S. Fish and Wildlife Service, propose to list the
diamond darter (Crystallaria cincotta) as endangered under the
Endangered Species Act of 1973, as amended (Act); and propose to
designate critical habitat for the species. In total, approximately
197.1 river kilometers (122.5 river miles) are being proposed for
designation as critical habitat. The proposed critical habitat is
located in Kanawha and Clay Counties, West Virginia, and Edmonson,
Hart, and Green Counties, Kentucky.
DATES: We will consider comments received or postmarked on or before
September 24, 2012. Comments submitted electronically using the Federal
eRulemaking Portal (see ADDRESSES section, below) must be received by
11:59 p.m. Eastern Time on the closing date. We must receive requests
for public hearings, in writing, at the address shown in the ADDRESSES
section by September 10, 2012.
ADDRESSES: You may submit comments by one of the following methods:
(1) Electronically: Go to the Federal eRulemaking Portal: http://www.regulations.gov. In the Keyword box, enter Docket No. FWS-R5-ES-
2012-0045, which is the docket number for this rulemaking. Then, in the
Search panel on the left side of the screen, under the Document Type
heading, click on the Proposed Rules link to locate this document. You
may submit a comment by clicking on ``Send a Comment or Submission.''
(2) By hard copy: Submit by U.S. mail or hand-delivery to: Public
Comments Processing, Attn: FWS-R5-ES-2012-0045; Division of Policy and
Directives Management; U.S. Fish and Wildlife Service; 4401 N. Fairfax
Drive, MS 2042-PDM; Arlington, VA 22203.
We request that you send comments only by the methods described
above. We will post all comments on http://www.regulations.gov. This
generally means that we will post any personal information you provide
us (see the Public Comments section below for more information).
The coordinates or plot points or both from which the maps are
generated are included in the administrative record for this critical
habitat designation and are available at (http://www.fws.gov/westvirginiafieldoffice/index.html), www.regulations.gov at Docket No.
FWS-R5-ES-2012-0045, and at the West Virginia Field Office (see FOR
FURTHER INFROMATION CONTACT). Any additional tools or supporting
information that we may develop for this critical habitat designation
will also be available at the above locations.
FOR FURTHER INFORMATION CONTACT: Deborah Carter, Field Supervisor, U.S.
Fish and Wildlife Service, West Virginia Field Office, 694 Beverly
Pike, Elkins, WV 26241, by telephone (304) 636-6586 or by facsimile
(304) 636-7824. Persons who use a telecommunications device for the
deaf (TDD) may call the Federal Information Relay Service (FIRS) at
800-877-8339.
SUPPLEMENTARY INFORMATION:
Executive Summary
Why we need to publish a rule. Under the Endangered Species Act
(Act), a species may warrant protection through listing if it is
endangered throughout all or a significant portion of its range. We are
proposing to list the diamond darter as endangered under the Act
because of continued threats, and listing can only be done by issuing a
rule. The diamond darter occurs as a single population in the Elk River
in West Virginia. We are also proposing to designate critical habitat
under the Act for the species. Critical habitat represents geographical
areas that are essential to a species' conservation, and is designated
on the basis of the best scientific information available after taking
into consideration the economic impact, impact on national security,
and any other relevant impact of specifying any particular area as
critical habitat. A forthcoming draft economic analysis will evaluate
the potential economic impacts that may be attributable to the proposed
designation of critical habitat for the species.
The basis for our action. Under the Act, a species may be
determined to be endangered or threatened based on any of five factors:
(1) The present or threatened destruction, modification, or curtailment
of its habitat or range; (2) overutilization for commercial,
recreational, scientific, or educational purposes; (3) disease or
predation; (4) the inadequacy of existing regulations; or (5) other
natural or manmade factors affecting its continued existence. The Act
also requires that we designate critical habitat concurrently with
listing determinations, if designation is prudent and determinable.
We have made the following finding related to these criteria:
Diamond darter is endangered by water quality degradation;
habitat loss; inadequate existing regulatory mechanisms; a small
population size that makes the species vulnerable to the effects of the
spread of an invasive alga (Didymosphenia geminate); loss of genetic
fitness; and catastrophic events, such as oil and other toxic spills.
This rule proposes to designate critical habitat for the diamond
darter.
Critical habitat designation would not be expected to
increase threats to the species, and we have sufficient scientific
information on the diamond darter to determine the areas essential to,
and essential for, its conservation. Accordingly, we have determined
the designation of critical habitat is both prudent and determinable.
In total, we propose to designate approximately 197.1
river kilometers (122.5 miles) as critical habitat. The proposed
critical habitat is located in Kanawha and Clay Counties, West
Virginia, and Edmonson, Hart, and Green Counties, Kentucky.
Based on our interpretation of directly regulated entities
under the Regulatory Flexibility Act and relevant case law, this
designation of critical habitat will only directly regulate Federal
agencies, which are not by definition small business entities. However,
though not necessarily required by the Regulatory Flexibility Act, in
our draft economic analysis for this proposal, we will consider and
evaluate the potential effects to third parties that may be involved
with consultations with Federal action agencies related to this action.
Peer Review. We will seek the expert opinions of at least three
appropriate and independent specialists with scientific expertise to
ensure our determinations are based on scientifically sound data,
assumptions, and analyses.
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 the public, other concerned governmental
agencies, Native American tribes, the scientific community, industry,
or any other interested parties concerning this
[[Page 43907]]
proposed rule. We particularly seek comments concerning:
(1) Biological, commercial trade, or other relevant data concerning
any threats (or lack thereof) to this species and regulations that may
be addressing those threats.
(2) Additional information concerning the historical and current
status, range, distribution, and population size of this species,
including the locations of any additional populations of this species.
(3) The factors that are the basis for making a listing
determination for a species under section 4(a) of the Act, which are:
(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.
(4) Any information on the biological or ecological requirements of
the species and ongoing conservation measures for the species and its
habitat.
(5) Current or planned activities in the areas occupied by the
species and possible impacts of these activities on this species.
(6) The reasons why we should or should not designate habitat as
``critical habitat'' under section 4 of the Act (16 U.S.C. 1531 et
seq.) including whether there are threats to the species from human
activity, the degree of which can be expected to increase due to the
designation, and whether that increase in threat outweighs the benefit
of designation such that the designation of critical habitat may not be
prudent.
(7) Specific information on:
(a) The amount and distribution of diamond darter habitat;
(b) What areas, that were occupied at the time of listing (or are
currently occupied) and that contain features essential to the
conservation of the species, should be included in the designation and
why;
(c) Special management considerations or protection that may be
needed in critical habitat areas we are proposing, including managing
for the potential effects of climate change; and
(d) What areas not occupied at the time of listing are essential
for the conservation of the species and why.
(8) Land use designations and current or planned activities in the
subject areas and their possible impacts on proposed critical habitat.
(9) Information on the projected and reasonably likely impacts of
climate change on the diamond darter and proposed critical habitat.
(10) Any probable economic, national security, or other relevant
impacts of designating any area that may be included in the final
designation; in particular, any impacts on small entities or families,
and the benefits of including or excluding areas that exhibit these
impacts.
(11) Whether any specific areas we are proposing for critical
habitat designation should be considered for exclusion under section
4(b)(2) of the Act, and whether the benefits of potentially excluding
any specific area outweigh the benefits of including that area under
section 4(b)(2) of the Act.
(12) Whether we could improve or modify our approach to designating
critical habitat in any way to provide for greater public participation
and understanding, or to better accommodate public concerns and
comments.
Please note that submissions merely stating support for or
opposition to the action under consideration without providing
supporting information, although noted, will not be considered in
making a determination, as section 4(b)(1)(A) of the Act directs that
determinations as to whether any species is a threatened or endangered
species must be made solely on the basis of the best scientific and
commercial data available, and section 4(b)(2) directs that critical
habitat designations be made based on the best scientific data
available and after consideration of economic, national security, and
other relevant impacts.
You may submit your comments and materials concerning this proposed
rule by one of the methods listed in the ADDRESSES section. We request
that you send comments only by the methods described in ADDRESSES.
If you submit information via http://www.regulations.gov, your
entire submission--including any personal identifying information--will
be posted on the Web site. 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 http://www.regulations.gov.
Please include sufficient information with your comments to allow us to
verify any scientific or commercial information you include.
Comments and materials we receive, as well as supporting
documentation we used in preparing this proposed rule, will be
available for public inspection on http://www.regulations.gov, or by
appointment, during normal business hours, at the U.S. Fish and
Wildlife Service, West Virginia Field Office (see FOR FURTHER
INFORMATION CONTACT).
Previous Federal Actions
The diamond darter was first identified as a candidate for
protection under the Act in the November 9, 2009, Federal Register (74
FR 57804). As a candidate, it was assigned a listing priority number
(LPN) of 2. Candidate species are assigned LPNs based on the magnitude
and immediacy of threats, as well as their taxonomic status. The lower
the LPN, the higher priority that species is for us to determine
appropriate action using our available resources. An LPN of 2 reflects
threats that are both imminent and high in magnitude, as well as the
taxonomic classification of the diamond darter as a full species. We
retained the LPN of 2 in our subsequent Notices of Review dated
November 10, 2010 (75 FR 69222) and October 26, 2011 (76 FR 66370).
Status Assessment for Diamond Darter
Background
It is our intent to discuss below only those topics directly
relevant to the proposed listing of the diamond darter as endangered in
this section of the proposed rule. A summary of topics relevant to this
proposed rule is provided below. Additional information on this species
may be found in the Candidate Notice of Review, which was published
October 26, 2011 (76 FR 66370).
Species Description
The diamond darter (Crystallaria cincotta) is a member of the perch
family (Percidae), a group characterized by the presence of a dorsal
(top) fin separated into two parts, one spiny and the other soft
(Kuehne and Barbour 1983, p. 1). The darters differ from other percids
in being much smaller in overall size and having a more slender shape.
Some darters, including those in the genus Crystallaria, lack a swim
bladder. This characteristic increases the density of the fish and
facilitates their ability to remain near the bottom of their riverine
habitats with little effort (Evans and Page 2003, p. 64).
The diamond darter is overall translucent and is a silvery white on
the under side of the body and head and has four wide, olive-brown
saddles on the back and upper side (Welsh et al. 2008, p. 1). Between
the saddles, olive-brown colored pigments on the scale margins produce
a fragmented cross-hatch pattern. A blotch under and in front of the
eyes is dark and distinctly separated
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from the front margin of the orbital rim around the eye. The side
coloration includes 12 to 14 oblong, olive-brown blotches overlain by
an iridescent, olive-green stripe. Fins are clear with the exception of
sparse pigmentation on the tail fin.
Documented standard lengths measured from the tip of the snout to
the beginning of the tail fin range from 73 to 77.3 millimeters (mm)
(2.9 to 3.0 inches [in]) (Welsh and Wood 2008, pp. 64-66).
Characteristics that distinguish the diamond darter from the
related crystal darter (C. asprella) that occurs in freshwater rivers
in the Gulf Coast States of Alabama, Florida, Louisiana, and
Mississippi, and in the Mississippi and Wabash rivers, include: the
width of the mouth when opened is larger and is approximately equal to
or exceeding the width between the pelvic fins; a blotch under and in
front of the eyes that is distinctly separate from the front of the
orbital rim; a pair of fins located on the underside of the fish near
the pelvis girdle (pelvic fins) that are distinctly curved like a
sickle in both sexes; a reduced number of cheek scale rows (most
frequently 2); a reduced number of scale rows (most frequently 2) on
the opercle, which is a bone near the gills; a high count of mid-
lateral blotches (most frequently 13); a low count of rays (most
frequently 13) on the anal fin (a single fin located on the underside
of the fish behind the anus); a low count of dorsal-fin spines (most
frequently 12), and a high count of scales (most frequently 11) below
the lateral line, which is a sense organ fish use to detect movement
and vibration in the surrounding water (Welsh and Wood 2008, p. 66).
Taxonomy
Previously, Crystallaria was regarded as a subgenus within
Ammocrypta (Cincotta and Hoeft, 1987, p. 133; Simons 1991, p. 934).
However, in an evaluation of the species' evolutionary development
based on morphology, Simons (1991) elevated Crystallaria to a separate
genus. This taxonomic treatment has been adopted in other subsequent
works (Page and Burr 1991, Simons 1992, and Wiley 1992 in NatureServe
2008, p. 1). Allozyme data (variant forms of enzymes that are coded by
different forms of a gene at the same gene locus) also seem consistent
with this taxonomy (Wood and Mayden 1997, pp. 267-268).
When the diamond darter was first collected from the Elk River,
West Virginia, in 1980, the specimen was identified and reported as the
crystal darter (Crystallaria ne: Ammocrypta asprella) (Cincotta and
Hoeft 1987, pp. 133-136). This was the first collection of this species
from the Ohio River Basin in 41 years and the first time it was ever
collected in West Virginia (Cincotta and Hoeft 1987, p. 133). Although
the diagnostic characteristics of the specimen were within those
described for the crystal darter by Page (1983), even at the time of
collection some researchers believed that the species, as then
recognized, actually constituted more than one subspecies or species
(Cincotta and Hoeft 1987, p. 134), particularly given the disjunct
nature of existing crystal darter populations.
In order to explore this possibility, Wood and Raley (2000)
evaluated the genetic variation of five crystal darter populations by
sequencing a specific gene referred to as the cytochrome b gene.
Individuals were evaluated from populations in the Pearl River in
Louisiana, the Cahaba River in Alabama, the Saline River in Arkansas,
the Zumbro River in Minnesota, and the Elk River in West Virginia. This
analysis was conducted on these crystal darter specimens, as well as
individuals from eight other darter species (Wood and Raley 2000, p.
20). This study found that there was an 11.2 to 11.8 percent difference
between the cytochrome b sequence of the Elk River crystal darter
population and all other crystal darter populations evaluated (Wood and
Raley 2000, p. 24). This was one of the highest differences in
cytochrome b ever reported for a fish species (Wood and Raley 2000, p.
24), and was more typical of differences between species or genera
rather than subspecies (Wood and Raley 2000, p. 24).
Because differentiation observed at a single gene region is
generally not considered sufficient evidence to establish taxonomic
status, additional genetic and physical analyses were initiated by
Morrison et al. (2006, p. 129). In that study, the authors sampled
individuals from the same five disjunct crystal darter populations
previously surveyed and compared genetic variation between these
populations using additional genetic markers referred to as the
mitochondrial control region (mtDNA CR) and nuclear S7 ribosomal gene
(Morrison et al. 2006, p. 129). In addition, morphometric (a technique
of taxonomic analysis using measurements of the form of organisms)
measurements and meristic (divided into segments) counts between
individuals from these populations were compared (Morrison et al. 2006,
p. 130). Meristics are systematic counts of fish characteristics such
as the number of scales along the lateral line or the number of rays in
the anal fin. The results of this study confirmed the conclusions of
Wood and Raley (2000, pp. 20-26) in regard to the Elk River population.
The magnitude of divergence between the Elk River population and the
other populations sampled, as estimated from mtDNA CR data, was similar
in magnitude to mtDNA divergences measured between recognized species
of darters and was an order of magnitude greater than some mtDNA CR
divergence estimates for recognized subspecies (Morrison et al. 2006,
p. 139). Morphometric data were also consistent with molecular data
regarding the distinctiveness of the Elk River population (Morrison et
al. 2006, p. 129). The study concluded that the Elk River group likely
constituted a distinct species (Morrison et al. 2006, p. 143).
Welsh and Wood (2008) conducted additional morphological
comparisons between Crystallaria populations from 18 rivers within the
Ohio River Drainage; the upper, middle, and lower Mississippi River
drainages; and the Gulf Coast (Welsh and Wood 2008, p. 63). This
evaluation included specimens from extant populations, as well as
museum specimens from currently extirpated populations that were
gathered during the late 1800s to early 1900s. Nine specific
morphological characteristics were identified that distinguish the Elk
River population from other populations of the crystal darter (see
Species Description section). Based on the results of this analysis,
and the previous genetic studies, Welsh and Wood (2008, pp. 62-68)
formally named and described the Elk River population of the crystal
darter as a separate and distinct species, the diamond darter
(Crystallaria cincotta) (Welsh and Wood 2008, pp. 62-68). Welsh and
Wood (2008, pp. 62-68) further identified that specimens from
extirpated populations within the Cumberland, Green, and Muskingum
Rivers within the Ohio River Basin were consistent with the
characteristics defined for the diamond darter, thus establishing the
extent of the species' historical range. The crystal darter's current
range, as described above, does not appear to overlap with the diamond
darter's current or historical range (Grandmaison et al. 2003, p. 6;
Welsh and Wood 2008, pp. 62-68).
We carefully reviewed the available taxonomic information
summarized above and conclude that the species is a valid taxon based
upon considerations of genetic and morphological characteristics.
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Life History and Habitat
Due to its rarity, little research exists on the natural history of
this species (Osier 2005, p. 10). However, in some cases, potential
characteristics can be inferred from the information available on the
closely related crystal darter, as noted below.
The diamond darter is a species that inhabits medium to large,
warmwater streams with moderate current and clean sand and gravel
substrates (Simon and Wallus 2006, p. 52). In the Elk River, the
diamond darter has been collected from riffles and pools where swift
currents result in clean swept, predominately sand and gravel
substrates that lack silty depositions (Osier 2005, p. 11).
Diamond darters are more often collected at dusk or during the
night and are likely crepuscular (more active at dusk and dawn) (Welsh
2008, p. 10). They may stay partially buried in the sand during the day
and then come out to feed during the night (Welsh 2009c, p. 1). Adult
diamond darters are benthic invertivores, feeding primarily on stream
bottom-dwelling invertebrates (NatureServe 2008, p. 8). They may use an
ambush foraging tactic by burying in the sand and darting out at prey
(Robinson 1992 and Hatch 1997 in Osier 2005, pp. 12-13; NatureServe
2008, p. 1). The large teeth seen in juvenile diamond darters hatched
in captivity suggest that young diamond darters may feed on other
smaller fish larvae (Ruble et al. 2010, p. 15). However, because no
juveniles have been successfully reared to adulthood, this has not been
confirmed. The juveniles may also eat zooplankton prey, which is a more
typical behavior for pelagic (drifting in open water) larval percids
(Rakes 2011, p. 1).
Very little information is available on the reproductive biology
and early life history of the diamond darter (Welsh et al. 2008, p. 1;
Ruble and Welsh 2010, p. 1). When maintained in captivity, females
began to show signs of being gravid from late March to May. Spawning
likely occurs mid-April to May, and larvae hatch within 7 to 9 days
afterward (Ruble et al. 2010, pp. 11-12). Males appear to guard
spawning territories, but no guarding of eggs has been observed in
captivity (Ruble 2012, p. 1)
If the diamond darter's reproductive behavior is similar to crystal
darters in the wild, then females may be capable of multiple spawning
events and producing multiple clutches of eggs in one season (George et
al. 1996, p. 75). Crystal darters lay their eggs in side channel riffle
habitats over sand and gravel substrates in moderate current. Adult
crystal darters do not guard their eggs (Simon and Wallus 2006, p. 56).
Embryos develop in the clean interstitial spaces of the coarse
substrate (Simon and Wallus 2006, p. 56). After hatching, the larvae
are pelagic and drift within the water column (Osier 2005, p. 12; Simon
and Wallus 2006, p. 56; NatureServe 2008, p. 1). See the discussion
under Critical Habitat Designation--Physical and Biological Features
below under ``Sites for Breeding, Reproduction, or Rearing (or
Development) of Offspring'' for additional information.
Life expectancy of diamond darters is unknown in the wild. Diamond
darters have been maintained in captivity for 2 years. During that
time, it is suspected that one adult female died due to senescence (old
age). Because she was brought into captivity as an adult (approximately
2 years old) it is suspected that she was 4 years or older at death
(Ruble 2011b, p. 1). Life expectancy for the crystal darter has been
reported to range from 2 to 4 years (Osier 2005, pp. 10-11), although
some authors have suggested the potential to live up to 7 years (Simon
and Wallus 2006, p. 52). In Arkansas, sexual maturity for the crystal
darter may occur during the first year, with the first spawning event
occurring the season after hatching. However, in the Ohio River Basin
this may not occur until age 3 (George et al. 1996, p. 75; Simon and
Wallus 2006, p. 52). Reported differences in age and size at maturity
between northern and southern populations of crystal darters have been
attributed to environmental differences, such as flow regimes,
photoperiod, and temperature, with southern populations maturing and
reproducing at an earlier age and thus having shorter lifespans (George
et al. 1996, pp. 75-76).
Species Distribution and Status
Historical Range/Distribution
As shown in Table 1 below, historical records of the species
indicate that the diamond darter was distributed throughout the Ohio
River Basin and that the range included the Muskingum River in Ohio;
the Ohio River in Ohio, Kentucky and Indiana; the Green River in
Kentucky; and the Cumberland River Drainage in Kentucky and Tennessee.
There is some difference of opinion as to how common the species was
during the early portions of the 1900s. Trautman (1981, p. 645)
suggests that it is quite probable that before 1900 the species was
well distributed in the lower reaches of the southern Ohio tributaries
and the Ohio River. However in 1892, Woolman (in Cicerello 2003, p. 6)
noted that the species was likely neither widely distributed, nor
common anywhere in Kentucky.
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[GRAPHIC] [TIFF OMITTED] TP26JY12.045
Current Range/Distribution
The species is currently known to exist only within the lower Elk
River in Kanawha and Clay Counties, West Virginia, and is considered
extirpated from the remainder of the Ohio River Basin (Cicerello 2003,
p. 3; Welsh and Wood 2008, pp. 62, 68). The species was first collected
from the Elk River in November 1980, when one individual was collected
during boat electroshocking surveys conducted near Mink Shoals in
Kanawha County (Cincotta and Hoeft 1987, p. 133). This collection
marked the rediscovery of the species in the Ohio River Basin, where it
formerly had been considered extirpated from all states in which it had
previously been recorded (Cincotta and Hoeft 1987, pp. 133-134). The
species has not been collected since 1899 in Ohio, 1929 in Kentucky,
and 1939 in Tennessee (Grandmaison et al. 2003, p. 6).
Trautman (1981, p. 645) suggests that increased silt load and
subsequent smothering of suitable habitats likely caused the
extirpation of the species from the State of Ohio by 1925 and that
``the habitat of few other Ohio fishes seemed so vulnerable to
annihilation'' (Trautman 1981, p. 646). In addition, researchers at the
Ohio State University have conducted extensive sampling in the Ohio
River and its tributaries, starting with Ed Wickliff in the 1920s and
continuing through the present (Kibbey 2008, p. 1; Ohio State
University 2008, p. 1). Despite semiannual survey efforts in likely
diamond darter habitats, such as the riffles below Devola Dam on the
Muskingum River, no additional diamond darters have been located
[[Page 43911]]
(Kibbey 2008, p. 1). The Midwest Biodiversity Institute has also
conducted recent surveys in the Muskingum River using both trawls and
electroshocking. These surveys also failed to locate any Crystallaria
species (Kibbey 2008, p. 1). Furthermore, despite conducting over
20,000 individual sampling events at over 10,000 locations throughout
the State of Ohio, including sampling in both large rivers and small
creeks, the Ohio Environmental Protection Agency has never collected
any Crystallaria species (Mishne 2008, p. 1). As a result of these
efforts, the species is considered extirpated from both the State of
Ohio and the Ohio River (Mishne 2008, p. 1; Trautman 1981, p. 646).
Pearson and Krumholtz (1984, p. 252) state that the chances of the
diamond darter currently being present in the entire mainstem Ohio
River are ``remote at best.''
The species is also considered extirpated from Kentucky (Burr and
Warren 1986, p. 285; Evans 2008b, p. 1). Kentucky has been fairly well
surveyed by numerous researchers without resulting in any recent
collections of the species (Evans 2008, p. 1). All historical Green
River sites have been repeatedly but unsuccessfully sampled for the
diamond darter (Cicerello 2003, p. 6). Both the Kentucky State Nature
Preserves Commission (KSNPC) and Southern Illinois University have
conducted surveys targeting the species throughout the upper portion of
the Green River Basin (Cicerello 2003, p. 6). Most recently in 2007,
the Kentucky Department of Fish and Wildlife Resources, the Missouri
Department of Conservation, and KSNPC sampled below Lock and Dam 5 and
6 on the Green River, as well as in river reaches downstream of the
dams using a Hertzog trawl (Evans 2008a, p. 1). The Kentucky Department
of Fish and Wildlife Resources has also done some site monitoring in
the Green River at three sites below Green River dam and has not
collected the species.
The diamond darter has not been documented to occur in Tennessee
since 1939, and all previous records of the species within the State
were from the Cumberland River Drainage (Etnier and Starnes 1993, p.
443). Starting in the 1950s, dams were installed on the mainstem
Cumberland River that impounded much of its entire length from Barkley
Dam in Kentucky to Cumberland Falls near the headwaters (Tennessee
Wildlife Resources Agency (TWRA) 2005, p. 14). This dramatically
altered most of the riverine habitat qualities that made the river
suitable for the diamond darter and likely resulted in the extirpation
of the species (Etnier and Starnes, 1993, p. 443; TWRA 2005, p. 14;
Saylor, 2009, p. 1). Cold water discharges from many of these dams have
changed the natural temperature regimes so that the river no longer
functions as a warmwater fishery (TWRA 2005, p. 14; Fiss 2009, p. 1).
In addition, when the Cumberland River impoundments were being
constructed, a fish barrier was installed near the mouth of the Roaring
River in order to keep species that might frequent the impoundments,
such as carp, from moving into the Roaring River, thus impeding any
connectivity between the two systems (Fiss 2009, p. 1). Surveys in the
Roaring River between 1972 and 1986 noted a loss of silt-intolerant
fish species and increased disturbance from activities such as gravel
dredging, highway construction, and poor agricultural practices that
were degrading habitat quality in the stream. Although these surveys
included the reach of river where Crystallaria had previously been
documented, no diamond darters were captured during this effort (Crumby
et al. 1990, pp. 885-891).
Surveys conducted in 1939 in the Big South Fork Cumberland River
near where Crystallaria was previously documented noted that chemical
conditions of the drainage were so adverse to biological productivity
that the waters of the region are comparatively barren in contrast to
surrounding regions (Shoup and Peyton 1940, p. 106). Comprehensive
fisheries surveys were conducted in the Big South Fork Cumberland River
from 2003 to 2006. Collection methods included backpack
electroshocking, seines, dip nets, snorkeling, boat shocking, gill
nets, and minnow traps (Scott 2007, p. 2). No Crystallaria were
documented during this effort and the report concludes that the species
is one of six that will likely never be encountered in the area due to
extinction, extirpation, and being isolated from downstream populations
by Wolf Creek Dam (Scott 2007, p. 21). Those surveys document that
water quality within the Big South Fork Cumberland River has improved
since the 1970's and that fish-diversity in the system is in the
process of recovery (Scott 2007, pp. 14-19).
Currently, the Cumberland River watershed is subject to threats to
water quality from inadequate pasture and grazing management practices,
forest clearing, heavy navigation and recreational use, active mining,
historical mining and acid mine drainage issues, oil and gas drilling,
lack of riparian buffers, and poor stormwater and wastewater management
(TWRA 2005, pp. 135-136). Despite these threats, the Cumberland aquatic
region still contains some of the most diverse populations of fish,
mussel, and crayfish species in North America (TWRA 2005, p. 14), and
some ichthyologists have suggested that there is a ``remote
possibility'' that the diamond darter may still exist in the cleaner
large tributaries of the Cumberland or the lower Tennessee rivers
(Etnier and Starnes 1993, p. 444). Therefore, some targeted sampling
may be warranted (Fiss 2009, p. 1). The TWRA has conducted 111 fish
survey samples from 1996 to 2007 throughout the Cumberland River
system, although the gear used during some of these surveys was not
targeted towards capturing the diamond darter (Fiss 2009, p. 1),, and
has no recent records of recent diamond darter captures (Kirk 2009, p.
1). Despite extensive sampling in the Duck River, as well as the Blood
and Big Sandy Rivers, there are no current or historical records of the
diamond darter in those rivers either (Saylor 2009, p. 1).
Population Estimates/Status
Although there is currently not sufficient information available to
develop an overall population estimate for the species, the results of
numerous survey efforts confirm that the species is extremely rare.
Fish surveys have been conducted in the Elk River in 1936, 1971, 1973,
1978 to 1983, 1986, 1991, 1993, 1995, 1996, and every year since 1999
(Welsh et al. 2004, pp. 17-18; Welsh 2008, p. 2; Welsh 2009a, p. 1).
Survey methods included backpack and boat electrofishing, underwater
observation, kick seines, and bag seines (Welsh et al. 2004, p. 4).
Starting in early 1990s, the timing of sampling and specific methods
used were targeted towards those shown to be effective at capturing
similar darter species during previous efforts (Welsh et al. 2004, pp.
4-5; Hatch 1997, Shepard et al. 1999, and Katula 2000 in Welsh et al.
2004, p. 9; Ruble 2011a, p. 1). Despite these extensive and targeted
survey efforts within the species' known range and preferred habitat in
the Elk River, fewer than 50 individuals have been collected over the
last 30 years since the species was first collected in the Elk River
(SEFC 2008 p. 10; Cincotta 2009a, p. 1; Cincotta 2009b, p. 1; Welsh
2009b, p. 1, Ruble and Welsh 2010, p. 2). More than half of these
collections (n = 26) have occurred in the last 5 years as a result of
focused conservation efforts and sampling that targeted known or
suspected diamond darter locations based on habitat mapping (Cincotta
2009b, p. 1; Cincotta 2009c, p. 1; Ruble 2011a, pp. 1-2).
[[Page 43912]]
Welsh et al. (2004, p. 8) concludes that the number of individuals
in the Elk River is likely small given the low catch per unit effort
totals recorded in both previous and recent surveys. Independent
publications that have evaluated the status of the species further
corroborate the rarity of the species. For example, the diamond darter
was recently highlighted as a Threatened Fish of the World (Welsh et
al. 2008, pp. 1-2) and was listed by the Southeastern Fishes Council as
one of the 12 most imperiled fishes (i.e., the ``desperate dozen'') of
the southeastern United States (SEFC 2008, pp. 2-3).
Summary of Factors Affecting the Species
Section 4 of the Act (16 U.S.C. 1533), and its implementing
regulations at 50 CFR part 424, set forth the procedures for adding
species to the Federal Lists of Endangered and Threatened Wildlife and
Plants. Under section 4(a)(1) of the Act, we may list a species based
on 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. Listing actions may be
warranted based on any of the above threat factors, singly or in
combination. Each of these factors is discussed below.
Factor A. The Present or Threatened Destruction, Modification, or
Curtailment of Its Habitat or Range
As indicated by the continued persistence of the diamond darter,
the Elk River in West Virginia currently provides overall high-quality
aquatic habitat. The Elk River is one of the most ecologically diverse
rivers in the State (Green 1999, p. 2) supporting over 100 species of
fish and 30 species of mussels, including 5 federally listed mussel
species (Welsh 2009a, p. 1). The river, including those portions that
are within the range of the diamond darter, is listed as a ``high
quality stream'' by the West Virginia Division of Natural Resources
(WVDNR 2001, pp. 1, 2, 5). Streams in this category are defined as
having ``significant or irreplaceable fish, wildlife, and recreational
resources'' (WVDNR 2001, p. iii). In an evaluation of the watershed,
the West Virginia Department of Environmental Protection (WVDEP) noted
that all four sampling sites within the mainstem of the Elk River
scored well for benthic macroinvertebrates on the West Virginia Stream
Condition Index, with results of 77 or higher out of a potential 100
points (WVDEP 1997, p. 41).
Criteria for placement on the high-quality streams list are based
solely on the quality of fisheries populations and the utilization of
those populations by the public and do not include water quality or
threats to the watershed (WVDNR 2001, p. 36; Brown 2009, p. 1). Despite
the high quality of the fishery populations, there are continuing and
pervasive threats within the watershed. In fact, the WVDEP evaluation
also noted that because larger rivers offer a wider variety of
microhabitats, the high benthic macroinvertebrate scores may mask some
degradation in water quality (WVDEP 1997, p. 41). Noted threats to the
watershed include coal mining, oil and gas development, sedimentation
and erosion, timber harvesting, water quality degradation, and poor
wastewater treatment (WVDEP 1997, p. 15; Strager 2008, pp. 1-39; WVDEP
2008b, pp. 1-2).
Many sources have recognized that Crystallaria species appear to be
particularly susceptible to habitat alterations and changes in water
quality. Threats similar to those experienced in the Elk River
watershed have likely contributed to the extirpation of Crystallaria
within other watersheds (Clay 1975, p. 315; Trautman 1981, pp. 24-29,
646; Grandmaison 2003, pp. 16-19). In addition, the current range of
the diamond darter is restricted and isolated from other potential and
historical habitats by impoundments.
Coal Mining
Coal mining occurs throughout the entire Elk River watershed. Most
of the active mining occurs in the half of the watershed south of the
Elk River (see Unit 1 Map below), which flows east to west (Strager
2008, p. 17). The most recent summarized data, as of January 2008,
indicates more than 5,260 hectares (ha) (13,000 acres [ac]) of actively
mined areas including 91 surface mine permits, 79 underground mine
permits, 1,351 ha (3,339 ac) of valley fills, 582 km (362 mi) of haul
roads, 385 km (239 mi) of mine drainage structures, 473 National
Pollutant Discharge Elimination System (NPDES) discharge points
associated with mines, and 3 mining related dams (Strager 2008, pp. 19-
21). There are also 615 ha (1,519 ac) of abandoned mine lands and 155
mine permit sites that have forfeited their bonds and have not
adequately remediated the sites (Strager 2008, p. 18). Approximately 47
percent of the entire Elk River watershed is within the area that the
U.S. Environmental Protection Agency has identified as potentially
being subject to mountain top removal mining activities (Strager 2008,
p. 17).
Coal mining can contribute significant amounts of sediment to
streams and degrade their water quality. Impacts to instream water
quality (chemistry) occur through inputs of dissolved metals and other
solids that elevate stream conductivity, increase sulfate levels, alter
stream pH, or a combination of these (Curtis 1973, pp. 153-155; Pond
2004, pp. 6-7, 38-41; Hartman et al. 2005, p. 95; Mattingly et al.
2005, p. 59; Palmer et al. 2010, pp. 148-149). As rock strata and
overburden (excess material) are exposed to the atmosphere,
precipitation leaches metals and other solids (e.g., calcium,
magnesium, sulfates, iron, and manganese) from these materials and
carries them in solution to receiving streams (Pond 2004, p. 7). If
valley fills are used as part of the mining activity, precipitation and
groundwater percolate through the fill and dissolve minerals until they
discharge at the toe of the fill as surface water (Pond et al. 2008, p.
718). Both of these scenarios result in elevated conductivity,
sulfates, and hardness (increased pH) in the receiving stream.
Increased levels of these metals and other dissolved solids have been
shown to exclude other sensitive fish species and darters from streams,
including the federally threatened blackside dace (Chrosomus
cumberlandensis) in the upper Cumberland River Basin (Mattingly et al.
2005, pp. 59-62). The Kentucky arrow darter (Etheostoma sagitta
spilotum) was found to be excluded from mined watersheds when
conductivity exceeded 250 micro Siemens per cm ([mu]S/cm) (Thomas 2008,
pp. 3-6; U.S. Fish and Wildlife Service (Service) 2009, pp. 1-4).
Mining-associated water quality impacts have been noted in the Elk
River. For example, in the Jacks Run watershed, a tributary to the Elk
River, one third of the entire watershed had been subject to mining-
related land use changes that cleared previously existing vegetation.
In a sampling site downstream of mining, the WVDEP documented embedded
substrates with dark silt, most likely from manganese precipitate or
coal fines, and benthic scores that indicated severe impairment (WVDEP
1997, p. 60). Another Elk River tributary, Blue Creek, had low pH
levels associated with contour mining and acid drainage and three
sample sites had pH values of 4.2 or less (WVDEP 1997, p. 47; WVDEP
2008b, p. 6). At pH levels of 5.0 or less, most fish eggs cannot hatch
(USEPA 2009, p. 2).
Sampling sites below a large mining reclamation site in the Buffalo
Creek
[[Page 43913]]
drainage of the Elk River watershed had violations of the West Virginia
water quality criteria for acute aluminum and manganese water quality
criteria, poor habitat quality, and substrates that were heavily
embedded with coal fines and clay (WVDEP 1997, pp. 4, 56-57). Other
sites in the watershed, where topographic maps showed extensive surface
mining, had pH readings of 4.7, elevated aluminum levels, and benthic
communities that were dominated by acid-tolerant species (WVDEP 1997,
pp. 4, 56-57).
A U.S. Geological Survey (USGS) study of the Kanawha River Basin,
which includes the Elk River, found that streams draining basins that
have been mined since 1980 showed increased dissolved sulfate,
decreased median bed-sediment particle size, and impaired benthic
invertebrate communities when compared to streams not mined since 1980.
Stream-bottom sedimentation in mined basins was also greater than in
undisturbed basins (USGS 2000, p. 1). In streams that drained areas
where large quantities of coal had been mined, the benthic invertebrate
community was impaired in comparison to rural parts of the study area
where little or no coal had been mined since 1980 (USGS 2000, p. 7).
That report notes that benthic invertebrates are good indicators of
overall stream water quality and that an impaired invertebrate
community indicates that stream chemistry or physical habitat, or both,
are impaired, causing a disruption in the aquatic food web (USGS 2000,
p. 8).
In another study that specifically evaluated fish data, the Index
of Biotic Integrity (IBI) scores at sites downstream of valley fills
were significantly reduced by an average of 10 points when compared to
unmined sites, indicating that fish communities were degraded below
mined areas (Fulk et al. 2003, p. iv). In addition, that study noted a
significant correlation between the number of fishes that were benthic
invertivores and the amount of mining in the study watershed: the
number of those types of fish species decreased with increased mining
(Fulk et al. 2003, pp. 41-44). As described above in the Life History
section, the diamond darter is a benthic invertivore. The effects
described above are often more pronounced in smaller watersheds that do
not have the capacity to buffer or dilute degraded water quality (WVDEP
1997, p. 42; Fulk et al. 2003, pp. ii-iv). Because the mainstem Elk
River drains a relatively large watershed, these types of adverse
effects are more likely to be noticed near the confluences of
tributaries that are most severely altered by mining activities such as
Blue Creek, which occurs within the known range of the diamond darter,
and Buffalo Creek, which is upstream of the known diamond darter
locations.
In addition to chronic sediment releases and water quality effects
from coal mine areas, the potential exists for failure of large-scale
mine waste (coal slurry) impoundment structures contained by dams
constructed of earth, mining refuse, and various other materials, which
could release massive quantities of mine wastes that could cover the
stream bottoms. There are currently two coal slurry impoundments within
the Elk River watershed. These impoundments have a capacity of
6,258,023 and 1,415,842 cubic meters (m\3\) (221,000,000 and 50,000,000
cubic feet [cf]). The larger structure covers 19 ha (48 ac) and is
considered a ``class C'' dam which could result in the loss of human
life and serious damage to homes, and industrial and commercial
facilities in the event of failure (Strager 2008, pp. 21-22). A third
coal refuse disposal impoundment is permitted and planned for
construction with an additional 54,821 m\3\ (1,936,000 cf) of capacity
(Fala 2009, p. 1; WVDEP 2012, p. 1). These three impoundments are on
tributaries of the Elk River upstream of the reach of river known to
support the diamond darter. In October 2000, a coal slurry impoundment
near Inez, Kentucky breached, releasing almost 991,090 m\3\ (35,000,000
cf) of slurry into the Big Sandy Creek Watershed. ``The slurry left
fish, turtles, snakes and other aquatic species smothered as the slurry
covered the bottoms of the streams and rivers and extended out into the
adjacent floodplain'' (USEPA 2001a, p. 2). Over 161 km (100 mi) of
stream were impacted by the spill (USEPA 2001a, p. 2). If a similar dam
failure were to occur in the Elk River watershed, it could have
detrimental consequences for the diamond darter population.
There is also a potential for abandoned underground mines to fill
with water and ``blow out'' causing large discharges of sediment and
contaminated water. Similar events have happened in nearby areas,
including one in Kanawha County, West Virginia, in April 2009 that
discharged ``hundreds of thousands of gallons of water'' onto a nearby
highway, and caused a ``massive earth and rock slide'' (Marks 2009, p.
1). A second situation occurred in March 2009 in Kentucky where water
from the mine portal was discharged into a nearby creek at an estimated
rate of 37,854 liters (l) (10,000 gallons [ga]) a minute (Associated
Press 2009, p. 1). In addition to the increased levels of sediment and
potential smothering of stream habitats, discharges from abandoned mine
sites often have elevated levels of metals and low pH (Stoertz et al.
2001, p. 1). In 2010, a fish kill occurred in Blue Creek, a tributary
of the Elk River in Kanawha County, when a contractor working for WVDEP
attempted to cleanup an abandoned mine site. When they breached an
impoundment, the mine discharged highly acidic water that then flowed
into the stream. Approximately 14.5 km (9 mi) of Blue Creek was
affected by the fish kill (McCoy 2010, p. 1). The effects of the fish
kill were stopped by response crews 9.5 km (5.9 mi) upstream from where
Blue Creek enters the Elk River within the known range of the diamond
darter.
Oil and Gas Development
The Elk River watershed is also one of the more densely drilled
areas of the State, with over 5,800 oil or gas wells in the watershed
as of the most recent data in January 2011 (WVDEP 2011a, p. 1). The
lower section of the Elk River, which currently contains the diamond
darter, has the highest concentration of both active and total wells in
the watershed, with over 2,320 active wells and 285 abandoned wells
(WVDEP 2011a, p. 1).
Although limited data are available to quantify potential impacts,
development of oil and gas resources can increase sedimentation rates
in the stream and degrade habitat and water quality in a manner similar
to that described for coal mining. Oil and gas wells can specifically
cause elevated chloride levels through discharge of brine and runoff
from materials used at the site, and the erosion of roads associated
with these wells can contribute large amounts of sediment to the
streams (WVDEP 1997, p. 54). For example, WVDEP sampling sites within
Summers Fork, a tributary to the Elk River with a ``high density of oil
and gas wells,'' had elevated chloride and conductivity levels as well
as impaired benthic invertebrate scores despite ``good benthic
substrate'' (WVDEP 1997, p. 52). Within the Buffalo Creek watershed,
another Elk River tributary, the impaired benthic invertebrate scores
at sample sites were attributed to oil compressor stations next to the
creek, pipes running along the bank parallel to the stream, and
associated evidence of past stream channelization (WVDEP 1997, p. 55).
High levels of siltation have been noted in the impaired sections
of the Elk River (USEPA 2001b, pp. 3-6). Oil and gas access roads have
been identified as a source that contributes ``high'' levels of
sediment to the Elk River (USEPA
[[Page 43914]]
2001b, pp. 3-7). The WVDEP estimates the size of the average access
road associated with an oil or gas well to be 396 meters (m) (1,300
feet [ft]) long by 7.6 m (25 ft) wide or approximately .30 ha (0.75 ac)
per well site (WVDEP 2008b, p. 10). If each of the wells in the
watershed has this level of disturbance, there would be over 1,821 ha
(4,500 ac) of access roads contributing to increased sedimentation and
erosion in the basin. Lack of road maintenance, improper construction,
and subsequent use by the timber industry and all-terrain vehicles can
increase the amount of erosion associated with these roads (WVDEP
2008b, pp. 5-6).
Shale gas development is an emerging issue in the area. Although
this is currently not the most productive area of the State, the entire
current range of the diamond darter is underlain by the Marcellus and
Utica Shale formation and potentially could be affected by well
drilling and development (National Energy Technology Laboratory (NETL)
2010 pp. 6-10). The pace of drilling for Marcellus Shale gas wells is
expected to increase substantially in the future, growing to about 700
additional wells per year in West Virginia starting in 2012 (NETL 2010,
p. 27). This is consistent with what has been reported in the area
around the Elk River. In March 2011, there were 15 Marcellus Shale gas
wells reported within Kanawha County (West Virginia Geological and
Economic Survey (WVGES) 2011, p. 1). As of January 2012, there were 188
completed Marcellus Shale gas wells within Kanawha County and an
additional 27 wells that had been permitted (WVGES 2012, p. 1). Data
specific to the Elk River watershed are not available for previous
years, but there are currently at least 100 completed and 21 additional
permitted Marcellus Shale gas wells within the watershed (WVGES 2012, p
1).
Marcellus Shale gas wells require the use of different techniques
than previously used for most gas well development in the area. When
compared to more traditional methods, Marcellus Shale wells usually
require more land disturbance, and more water and chemicals for
operations. In addition to the size and length of any required access
roads, between 0.8 and 2.0 ha (2 and 5 ac) are generally disturbed per
well (Hazen and Sawyer 2009, p. 7). Each well also requires about 500
to 800 truck trips to the site (Hazen and Sawyer 2009, p. 7).
Construction of these wells in close proximity to the Elk River and its
tributaries could increase the amount of siltation in the area due to
erosion from the disturbed area, road usage, and construction.
Shale gas wells typically employ a technique called hydrofracking
which involves pumping a specially blended liquid mix of water and
chemicals down a well, into a geologic formation. The pumping occurs
under high pressure, causing the formation to crack open and form
passages through which gas can flow into the well. During the drilling
process, each well may utilize between 7 and 15 million liters (2 and 4
million ga) of water (Higginbotham et al. 2010, p. 40). This water is
typically withdrawn from streams and waterbodies in close proximity to
the location where the well is drilled. Excessive water withdrawals can
reduce the quality and quantity of habitat available to fish within the
streams, increase water temperatures, reduce dissolved oxygen
concentrations, and increase the concentration of any pollutants in the
remaining waters (Freeman and Marcinek 2006, p. 445; PSU 2010, p. 9).
Increasing water withdrawals has been shown to be associated with a
loss of native fish species that are dependent on flowing-water
habitats. Darters were one group of species that were noted to be
particularly vulnerable to this threat (Freeman and Marcinek 2006, p.
444).
In addition to water withdrawals, there is a potential for spills
and discharges from oil and gas wells, particularly Marcellus Shale
drilling operations. Pipelines and ponds being used to handle brine and
wastewaters from fracking operations can rupture, fail, or overflow and
discharge into nearby streams and waterways. In Pennsylvania,
accidental discharges of brine water from a well site have killed fish,
invertebrates, and amphibians up to 0.4 mi (0.64 km) downstream of the
discharge, even though the company immediately took measures to control
and respond to the spill (PADEP 2009, pp. 4-22). In 2011, the WVDEP
cited a company for a spill at a well site in Elkview, West Virginia.
Up to 50 barrels of oil leaked from a faulty line on the oil well site.
The spill entered a tributary of Indian Creek, traveled into Indian
Creek and then flowed into the Elk River (Charleston Gazette 2011, p.
1). This spill occurred within the reach of the Elk River known to be
occupied by the diamond darter, and therefore could have affected the
species and its habitat.
Siltation (Sedimentation)
Excess siltation has been specifically noted as a threat to the Elk
River system. Portions of the lower Elk River were previously listed as
impaired due to elevated levels of iron and aluminum (USEPA 2001b, p.
1-1; Strager 2008, p. 36; WVDEP 2008a, p. 18; WVDEP 2008b, p. 1). The
WVDEP has since revised those water quality criteria in order to
address bioavailability of those metals, and established maximum
amounts of these pollutants allowed to enter the waterbody (known as
Total Maximum Daily Loads [TMDL]) (WVDEP 2010, p. 26; WVDEP 2008a, p.
A-2). The WVDEP identified that impairment due to metals usually
indicates excess sediment conditions (WVDEP 2008b, p. 5), and
identified coal mining, oil and gas development, timber harvesting,
all-terrain vehicle usage, and stream bank erosion as sources of
increased sedimentation within the Elk River watershed (USEPA 2001b,
pp. 1-1, 3-4 and 6; WVDEP 2008b, p. 1). Within two subwatersheds that
make up approximately 11 percent of the total Elk River watershed area,
the WVDEP identified 433 km (269 miles) of unimproved dirt roads and 76
km (47 mi) of severely eroding stream banks (WVDEP 2008b, p. 5). There
was also an estimated 1,328 ha (3,283 ac) of lands being actively
timbered in those two watersheds in 2004 (WVDEP 2008b, p. 6). Although
data on timber harvesting for the entire Elk River watershed are not
available, it is likely that these types of activities are common
because there are 11 known sawmills within the watershed, and forested
land is the predominant land-use category in the area (Strager 2008,
pp. 13, 29).
Siltation has long been recognized as a pollutant that alters
aquatic habitats by reducing light penetration, changing heat
radiation, increasing turbidity, and covering the stream bottom (Ellis
1936 in Grandmaison et al. 2003, p. 17). Increased siltation has also
been shown to abrade and suffocate bottom-dwelling organisms, reduce
aquatic insect diversity and abundance, and, ultimately, negatively
impact fish growth, survival, and reproduction (Berkman and Rabeni
1987, p. 285). Siltation directly affects the availability of food for
the diamond darter by reducing the diversity and abundance of aquatic
invertebrates on which the diamond darter feeds (Powell 1999, pp. 34-
35), and by increasing turbidity, which reduces foraging efficiency
(Berkman and Rabeni 1987, pp. 285-294). Research has found that when
the percentage of fine substrates increases in a stream, the abundance
of benthic insectivorous fishes decreases (Berkamn and Rabeni 1987, p.
285). Siltation also affects the ability of diamond darters to
successfully breed by filling the small interstitial spaces between
sand and
[[Page 43915]]
gravel substrates with silt. Diamond darters lay their eggs within
these interstitial spaces. The complexity and abundance of interstitial
spaces is reduced dramatically with increasing sediment inputs and the
resulting increase in substrate embeddedness. Consequently, the amount
of suitable breeding microhabitat for species such as the diamond
darter is reduced (Bhowmik and Adams 1989, Kessler and Thorp 1993,
Waters 1995, and Osier and Welsh 2007 all in Service 2008, pp. 15-16).
Many researchers have noted that Crystallaria species are
particularly susceptible to the effects of siltation, and Grandmaison
et al. (2003, pp. 17-18) summarize the information as follows:
``Bhowmik and Adams (1989) provide an example of how sediment
deposition has altered aquatic habitat in the Upper Mississippi River
system, where the construction of locks and dams has resulted in
siltation leading to a successional shift from open water to habitats
dominated by submergent and emergent vegetation. This successional
process is not likely to favor species such as the crystal darter which
rely on extensive clean sand and gravel raceways for population
persistence (Page 1983). For example, the crystal darter was broadly
distributed in tributaries of the Ohio River until high silt loading
and the subsequent smothering of sandy substrates occurred (Trautman
1981). In the Upper Mississippi River, the relative rarity of crystal
darters has been hypothesized as a response to silt deposition over
sand and gravel substrates (Hatch 1998)''. Although the Trautman (1981)
citation within the above quote mentions the crystal darter, we now
know that he was referring to individuals that have since been
identified as diamond darters. In summary, Crystallaria species,
including both the diamond darter and the crystal darter, are known to
be particularly susceptible to the effects of sedimentation, and
populations of these species have likely become extirpated or severely
reduced in size as a result of this threat.
Water Quality/Sewage Treatment
One common source of chemical water quality impairments is
untreated or poorly treated wastewater (sewage). Municipal wastewater
treatment has improved dramatically since passage of the 1972
amendments to the Federal Water Pollution Control Act (which was
amended to become the Clean Water Act in 1977), but some wastewater
treatment plants, especially smaller plants, continue to experience
maintenance and operation problems that lead to discharge of poorly
treated sewage into streams and rivers (OEPA 2004 in Service 2008, p.
23). According to the data available in 2008, there were a total of 30
sewage treatment plants within the Elk River watershed (Strager 2008,
p. 30).
Untreated domestic sewage (straight piping) and poorly operating
septic systems are still problems within the Elk River watershed (WVDEP
1997, p. 54; WVDEP 2008b, p. 3). Untreated or poorly treated sewage
contributes a variety of chemical contaminants to a stream including
ammonia, pathogenic bacteria, nutrients (e.g., phosphorous and
nitrogen), and organic matter that can increase biochemical oxygen
demand (BOD) (Chu-Fa Tsai 1973, pp. 282-292; Cooper 1993, p. 405). The
BOD is a measure of the oxygen consumed through aerobic respiration of
micro-organisms that break down organic matter in the sewage waste.
Excessive BOD and nutrients in streams can lead to low dissolved oxygen
(DO) levels in interstitial areas of the substrate where a high level
of decomposition and, consequently, oxygen depletion takes place
(Whitman and Clark 1982, p. 653). Low interstitial DO has the potential
to be particularly detrimental to fish such as the diamond darter which
live on and under the bottom substrates of streams and lay eggs in
interstitial areas (Whitman and Clark 1982, p. 653). Adequate oxygen is
an important aspect of egg development, and reduced oxygen levels can
lead to increased egg mortality, reduced hatching success, and delayed
hatching (Keckeis et al. 1996, p. 436).
Elevated nutrients in substrates can also make these habitats
unsuitable for fish spawning, breeding, or foraging and reduce aquatic
insect diversity which may impact availability of prey and ultimately
fish growth (Chu-Fa Tsai 1973, pp. 282-292; Wynes and Wissing 1981, pp.
259-267). Darters are noted to be ``highly sensitive'' to nutrient
increases associated with sewage discharges, and studies have
demonstrated that the abundance and distribution of darter species
decreases downstream of these effluents (Katz and Gaufin 1953, p. 156;
Wynes and Wissing 1981, p. 259). Elevated levels of fecal coliform
signal the presence of improperly treated wastes (WVDEP 2008a, p. 7)
that can cause the types of spawning, breeding, and foraging problems
discussed above.
The reach of the Elk River from the mouth to River Mile 102.5,
which includes the area supporting the diamond darter, is currently on
the State's CWA section 303(d) list of impaired waters due to
violations of fecal coliform levels (WVDEP 2008a, p. 18; WVDEP 2010, p.
26). There have been noticeable increases in fecal coliform near
population centers adjacent to the Elk River, including the cities of
Charleston, Elkview, Frametown, Gassaway, Sutton, and Clay (WVDEP
2008b, p. 8). Elk River tributaries near Clendenin also show evidence
of organic enrichment and elevated levels of fecal coliform (WVDEP
1997, p. 48). The WVDEP notes that failing or nonexistent septic
systems are prevalent throughout the lower Elk River watershed (WVDEP
2008b, p. 1). In order to address water quality problems, the WVDEP
conducted a more detailed analysis of two major tributary watersheds to
the lower Elk River. They found that all residences in these watersheds
were ``unsewered'' (WVDEP 2008b, p. 7). The Kanawha County Health
Department Sanitarians estimate that the probable failure rate for
these types of systems is between 25 and 30 percent, and monitoring
suggests it may be as high as 70 percent (WVDEP 2008b, p. 7).
In another study, it was noted that straight pipe and grey water
discharges are often found in residences within the Elk River watershed
because the extra grey water would overburden septic systems. These
untreated wastes are discharged directly into streams. This grey water
can contain many household cleaning and disinfectant products that can
harm stream biota (WVDEP 1997, p. 54). Finally, there is the potential
for inadvertent spills and discharges of sewage waste. In 2010, a
section of stream bank along the Elk River near Clendenin failed and
fell into the river, damaging a sewerline when it fell. The line then
discharged raw sewage into the river (Marks 2010, p. 1). The diamond
darter is known to occur in the Elk River near Clendenin; therefore,
this discharge could have likely affected the species.
Impoundment
One of the reasons the diamond darter may have been able to persist
in the Elk River is because the river remains largely unimpounded.
Although there is one dam on the Elk River near Sutton, approximately
161 km (100 mi) of the river downstream of the dam retains natural,
free-flowing riffle and pool characteristics, including the portion
that supports the diamond darter (Strager 2008, p. 5; Service 2008).
All the other rivers with documented historical diamond darter
occurrences are now either partially or completely impounded. There are
4 dams on the Green River, 8 dams on the Cumberland River, and 11 locks
and dams on the
[[Page 43916]]
Muskingum River. A series of 20 locks and dams have impounded the
entire Ohio River for navigation. Construction of most of these
structures was completed between 1880 and 1950; however, the most
recent dam constructed on the Cumberland River was completed in 1973
(Clay 1975, p. 3; Trautman 1981, p. 25; Tennessee Historical Society
2002, p. 4; American Canal Society 2009, p. 1; Ohio Division of Natural
Resources 2009, p. 1).
These impoundments have permanently altered habitat suitability in
the affected reaches and fragmented stream habitats, blocking fish
immigration and emigration between the river systems, and preventing
recolonization (Grandmaison et al. 2003, p. 18). Trautman (1981, p. 25)
notes that the impoundment of the Muskingum and Ohio Rivers for
navigation purposes almost entirely eliminated riffle habitat in these
rivers, increased the amount of silt settling on the bottom which
covered former sand and gravel substrates, and affected the ability of
the diamond darter to survive in these systems. In addition, almost the
entire length of the Kanawha River, including the 53 km (33 mi)
upstream of the confluence with the Elk River and an additional 93 km
(58 mi) downstream to Kanawha's confluence with the Ohio River, has
been impounded for navigation (U.S. Army Corps of Engineers (ACOE)
1994, pp. 1, 13, 19). The series of dams and impoundments on this
system likely impede movement between the only remaining population of
the diamond darter in the Elk River and the larger Ohio River
watershed, including the other known river systems with historical
populations. Range fragmentation and isolation (see Factor E below) is
noted to be a significant threat to the persistence of the diamond
darter (Warren et al. 2000 in Grandmaison et al. 2003, p. 18).
Direct Habitat Disturbance
There is the potential for direct disturbance, alteration, and fill
of diamond darter habitat in the Elk River. Since 2009, there have been
at least three proposed projects that had the potential to directly
disturb habitat in the Elk River in reaches that are known to support
the species. Plans for these projects have not yet been finalized.
Project types have included bridges and waterline crossings. Direct
disturbances to the habitat containing the diamond darter could kill or
injure adult individuals, young, or eggs. Waterline construction that
involves direct trenching through the diamond darter's habitat could
destabilize the substrates, leading to increased sedimentation or
erosion. Placement of fill in the river could result in the overall
reduction of habitat that could support the species, and could alter
flows and substrate conditions, making the area less suitable for the
species (Welsh 2009d, p. 1).
In addition, the expansion of gas development in the basin will
likely lead to additional requests for new or upgraded gas transmission
lines across the river. Pipeline stream crossings can affect fish
habitat; food availability; and fish behavior, health, reproduction,
and survival. The most immediate effect of instream construction is the
creation of short-term pulses of highly turbid water and total
suspended solids (TSS) downstream of construction (Levesque and Dube
2007, pp. 399-400). Although these pulses are usually of relatively
short duration and there is typically a rapid return to background
conditions after activities cease, instream construction has been shown
to have considerable effects on stream substrates and benthic
invertebrate communities that persist after construction has been
completed (Levesque and Dube 2007, p. 396-397). Commonly documented
effects include substrate compaction, as well as silt deposition within
the direct impact area and downstream that fills interstitial spaces
and reduces water flow through the substrate, increasing substrate
embeddedness and reducing habitat quality (Reid and Anderson 1999, p.
243; Levesque and Dube 2007, pp. 396-397; Penkal and Phillips 2011, pp.
6-7). Construction also directly alters stream channels, beds, and
banks resulting in changes in cover, channel morphology, and sediment
transport dynamics. Stream bank alterations can lead to increased water
velocities, stream degradation, and stream channel migrations. Removal
of vegetation from the banks can change temperature regimes, and
increase sediment and nutrient loads (Penkal and Phillips 2011, pp. 6-
7).
These instream changes not only directly affect the suitability of
fish habitat, they also affect the availability and quality of fish
forage by altering the composition and reducing the density of benthic
invertebrate communities within and downstream of the construction area
(Reid and Anderson 1999, pp. 235, 244; Levesque and Dube 2007, pp. 396-
399; Penkal and Phillips 2011, pp. 6-7). Various studies have
documented adverse effects to the benthic community that have been
apparent for between 6 months and 4 years post-construction (Reid and
Anderson 1999, pp. 235, 244; Levesque and Dube 2007, pp. 399-400).
Stream crossings have also been shown to affect fish physiology,
survival, growth, and reproductive success (Levesque and Dube 2007, p.
399). Studies have found decreased abundance of fish downstream of
crossings, as well as signs of physiological stress such as increased
oxygen consumption and loss of equilibrium in remaining fish downstream
of crossings (Reid and Anderson 1999, pp. 244-245; Levesque and Dube
2007, pp. 399-401). Increased sediment deposition and substrate
compaction from pipeline crossing construction can degrade spawning
habitat, result in the production of fewer and smaller fish eggs,
impair egg and larvae development, limit food availability for young-
of-the-year fish, and increase stress and reduce disease resistance of
fish (Reid and Anderson 1999, pp. 244-245; Levesque and Dube 2007, pp.
401-402).
The duration and severity of these effects depends on factors such
as the duration of disturbance, the length of stream segment directly
impacted by construction, and whether there are repeated disturbances
(Yount and Niemi 1990, p. 557). Most studies documented recovery of the
affected stream reach within 1 to 3 years after construction (Yount and
Niemi 1990, pp. 557-558, 562; Reid and Anderson 1999, p. 247). However,
caution should be used when interpreting results of short-term studies.
Yount and Niemi (1990, p. 558) cite an example of one study that made a
preliminary determination of stream recovery within 1 year, but when
the site was reexamined 6 years later, fish biomass, fish populations,
macroinvertebrate densities, and species composition were still
changing. It was suspected that shifts in sediment and nutrient inputs
to the site as a result of construction in and around the stream
contributed to the long-term lack of recovery. In another study,
alterations in channel morphology, such as increased channel width and
reduced water depth, were evident 2 to 4 years post-construction at
sites that lacked an intact forest canopy (Reid and Anderson 1999, p.
243).
There is also the potential for cumulative effects. While a single
crossing may have only short-term or minor effects, multiple crossings
or multiple sources of disturbance and sedimentation in a watershed can
have cumulative effects on fish survival and reproduction that exceed
the recovery capacity of the river, resulting in permanent detrimental
effects (Levesque and Dube 2007, pp. 406-407). Whether or how quickly a
stream population recovers depends on factors such as the life-history
characteristics of the species, and the availability of
[[Page 43917]]
unaffected populations upstream and downstream as a source of organisms
for recolonization (Yount and Niemi 1990, p. 547). Species such as the
diamond darter that are particularly susceptible to the effects of
sedimentation and substrate embeddedness, and that have limited
distribution and population numbers, are likely to be more severely
affected by instream disturbances than other more common and resilient
species.
Summary of Factor A
In summary, there are significant threats to the diamond darter
from the present and threatened destruction, modification, or
curtailment of its habitat. Threats include discharges from activities
such as coal mining and oil and gas development, sedimentation from a
variety of sources, pollutants originating from inadequate wastewater
treatment, habitat changes caused by impoundments, and direct habitat
disturbance. These threats are ongoing, severe, and occur throughout
the species' entire range. We have no information indicating that these
threats are likely to be appreciably reduced in the future, and in the
case of gas development, we expect this threat to increase over the
next several years as shale gas development continues to intensify.
Factor B. Overutilization for Commercial, Recreational, Scientific, or
Educational Purposes
Due to the small size and limited distribution of the only
remaining population, the diamond darter is potentially vulnerable to
overutilization. Particular care must be used to ensure that collection
for scientific purposes does not become a long-term or substantial
threat. It is possible that previous scientific studies may have
impacted the population. Of the fewer than 50 individuals captured to
date, 14 either died as a result of the capture or were sacrificed for
use in scientific studies. Nineteen were removed from the system and
were used for the establishment of a captive breeding program. Two have
died in captivity. It should be noted that there were valid scientific
purposes for most of these collections. In order to verify the
identification and permanently document the first record of the species
in West Virginia, the specimen captured in 1980 was preserved as a
voucher specimen consistent with general scientific protocols of the
time. Subsequent surveys in the 1990s were conducted for the specific
purpose of collecting additional specimens to be used in the genetic
and morphological analyses required to determine the taxonomic and
conservation status of the species. The extent and scope of these
studies were determined and reviewed by a variety of entities including
the WVDNR, the Service, USGS, university scientists, and professional
ichthyologists (Tolin 1995, p. 1; Wood and Raley 2000, pp. 20-26;
Lemarie 2004, pp. 1-57; Welsh and Wood 2008, pp. 62-68).
In addition, when these collections were initiated, insufficient
data were available to establish the overall imperiled and unique
status of the species. Because these studies are now complete, there
should be limited need to sacrifice additional individuals for
scientific analysis. The captive breeding program was established after
a review of the conservation status of the species identified that
there were imminent threats to the last remaining population, and
species experts identified the need to establish a captive ``ark''
population in order to avert extinction in the event of a spill or
continued chronic threats to the species. The establishment of this
program should contribute to the overall conservation of the species
and may lead to the eventual augmentation of populations. However,
caution must still be used to ensure that any additional collections do
not affect the status of wild populations.
It is possible that future surveys conducted within the range of
the species could inadvertently result in mortality of additional
individuals. For example, during some types of inventory work, fish
captured are preserved in the field and brought back to the lab for
identification. Young-of-the-year diamond darters are not easily
distinguished from other species, and their presence within these
samples may not be realized until after the samples are processed. This
was the case during studies recently conducted by a local university
(Cincotta 2009a, p. 1). Future surveys should be designed with
protocols in place to minimize the risk that diamond darters will be
inadvertently taken during nontarget studies. The WVDNR currently
issues collecting permits for all surveys and scientific collections
conducted within the State and incorporates appropriate conditions into
any permits issued for studies that will occur within the potential
range of the species. This limits the overall potential for
overutilization for scientific purposes.
Although the species has no present commercial value, it is
possible that live specimens may be collected for the aquarium trade
(Walsh et al. 2003 in Grandmaison et al. 2003 p. 19), and that once its
rarity becomes more widely known, it may become attractive to
collectors. However, there is no information available to suggest that
this is currently a threat. There are no known recreational or
educational uses for the species.
As a result, we find that overutilization for commercial,
recreational, scientific, or educational purposes is not an imminent
threat to the diamond darter at this time. For a species with a limited
range and population size, there is the potential that overutilization
for scientific purposes could have an effect on the viability of the
species. However, there is limited need for additional research that
would require the sacrifice of individuals. Based on our review of the
best available scientific and commercial information, overutilization
is not currently or likely to become a significant threat to the
species in the future.
Factor C. Disease or Predation
There is no specific information available to suggest that disease
or predation present an unusual threat to diamond darters. Although
some natural predation by fish and wildlife may occur, darters usually
constitute only an almost incidental component in the diet of predators
(Page 1983, p. 172). This incidental predation is not considered to
currently pose a significant threat to the species.
Commonly reported parasites and diseases of darters, in general,
include black-spot disease, flukes, nematodes, leeches, spiny-headed
worms, and copepods (Page 1983, p. 173). None of the best available
information regarding diamond darters captured to date, or reports on
the related crystal darter, note any incidences of these types of
issues. As a result, we find that disease or predation does not
currently pose a threat to the species, and we found no available
information that indicates disease or predation is currently or likely
to become a threat to the diamond darter in the future.
Factor D. The Inadequacy of Existing Regulatory Mechanisms
There are few existing Federal or State regulatory mechanisms that
specifically protect the diamond darter or its aquatic habitat where it
currently occurs. The diamond darter and its habitats are afforded some
protection from water quality and habitat degradation under the Clean
Water Act of 1977 (33 U.S.C. 1251 et seq.), Surface Mining Control and
Reclamation Act of 1977 (30 U.S.C. 1234-1328), West Virginia Logging
and Sediment Control Act (WVSC Sec. 19-1B), and additional West
Virginia laws and
[[Page 43918]]
regulations regarding natural resources and environmental protection
(WVSC Sec. 20-2-50; Sec. 22-6A; Sec. 22-26-3). However, as
demonstrated under Factor A, degradation of habitat for this species is
ongoing despite the protection afforded by these laws and corresponding
regulations. While these laws have resulted in some improvements in
water quality and stream habitat for aquatic life, including the
diamond darter, they alone have not been adequate to fully protect this
species. Water quality degradation, sedimentation, nonpoint-source
pollutants, and habitat alteration continue to threaten the species.
Although water quality has generally improved since 1977 when the
Clean Water Act (33 U.S.C. 1251 et seq.) and Surface Mining Control and
Reclamation Act (30 U.S.C. 1234-1328) were enacted or amended in 1977,
there is continuing, ongoing degradation of water quality within the
range of the diamond darter. A total of 214 streams within the Elk
River watershed have been identified as impaired by the WVDEP and
placed on the State's 303(d) list (WVDEP 2011b, p. viii). Causes of
impairment that were identified include existing mining operations,
abandoned mine lands, fecal coliform from sewage discharges, roads, oil
and gas operations, timbering, land use disturbance (urban,
residential, or agriculture), and stream bank erosion (WVDEP 2011b, pp.
viii-ix). For water bodies on the 303(d) list, States are required
under the Clean Water Act to establish a TMDL for the pollutants of
concern that will improve water quality to meet the applicable
standards. The WVDEP has established TMDLs for total iron, dissolved
aluminum, total selenium, pH, and fecal coliform bacteria. The total
iron TMDL is used as a surrogate to address impacts associated with
excess sediments (WVDEP 2011b, p. 47). Because these TMDLs have just
recently been established, it is not known how effective they will be
at reducing the levels of these pollutants, or how long streams within
the Elk River watershed will remain impaired. In addition, TMDLs apply
primarily to point-source discharge permits, and since nonpoint sources
may also contribute to sediment loading in the watershed, TMDLs are
not, at this time, an adequate mechanism to address sedimentation. The
Service is also not aware of any other current or future changes to
State or Federal water quality or mining laws that will substantially
affect the currently observed degradation of water quality.
Nonpoint-source pollution, originating from many sources at
different locations, is considered to be a continuing threat to diamond
darter habitats. Current laws do not adequately protect diamond darter
and its habitats from nonpoint-source pollution, because there is
limited compliance with existing laws to prevent sediment entering
waterways. For example, forestry operations do not have permitting
requirements under the Clean Water Act because there is a silvicultural
exemption as long as best management practices (BMPs) are used to help
control nonpoint-source pollution (Ryder and Edwards 2006, p. 272). The
West Virginia Logging Sediment Control Act was developed to protect
aquatic resources, such as the diamond darter's habitat, in response to
the requirements of the Clean Water Act and mandates the use of BMPS in
order to reduce the amount of sediment from logging operations that
enters nearby waterways (West Virginia Division of Forestry (WVDOF)
undated, p. 1). Without properly installed BMPs, logging operations can
increase sediment loading into streams (WVDEP 2011b, p. 35).
A survey of randomly selected logging operations throughout West
Virginia estimated that overall compliance with these BMPs averaged 74
percent, and compliance with specific categories of BMPs varied from 81
percent compliance with BMPs related to construction of haul roads, to
only 55 percent compliance with BMPs related to the establishment and
protection of streamside management zones (Wang et al. 2007, p. 60).
Another study evaluating the effects of forestry haul roads documented
that watershed turbidities increased significantly following road
construction and that silt fences installed to control erosion became
ineffectual near stream crossings and allowed substantial amounts of
sediment to reach the channel (Wang et al. 2010, p. 1). Because the
BMPs are not always strictly applied and logging activities can still
be a significant nonpoint-source of water quality impairment, the West
Virginia Logging Sediment Control Act is currently considered an
inadequate regulatory mechanism for the protection of aquatic habitats
that support the diamond darter.
West Virginia State laws regarding oil and gas drilling, including
recently enacted changes to West Virginia State Code Sec. 22-6A, are
generally designed to protect fresh water resources like the diamond
darter's habitat, but the laws do not contain specific provisions
requiring an analysis of project impacts to fish and wildlife
resources. They also do not contain or provide any formal mechanism
requiring coordination with, or input from, the Service or the WVDNR
regarding the presence of federally threatened, endangered, or
candidate species, or other rare and sensitive species. Thus, although
the State Code is designed to protect fresh water resources and the
environment, compliance with this existing oil and gas development
regulatory mechanism is insufficient to protect the diamond darter or
its habitat.
West Virginia State Code Sec. 20-2-50 prohibits taking fish
species for scientific purposes without a permit. The WVDNR currently
issues collecting permits for surveys conducted within the State and
incorporates appropriate conditions into any permits issued for studies
that will occur within the potential range of the species. While this
should limit the number of individuals impacted by survey and research
efforts, this requirement does not provide any protection to the
species' habitat.
The diamond darter is indirectly provided some protection from
Federal actions and activities through the Federal Endangered Species
Act because the Elk River also supports five federally endangered
mussel species. The reach of the Elk River currently known to support
the diamond darter also supports the pink mucket (Lampsilis abrupta),
the northern riffleshell (Epioblasma torulosa rangiana), the rayed bean
(Villosa fabalis), and the snuffbox (Epioblasma triquetra). The
clubshell mussel (Pleurobema clava) occurs in the reach of the Elk
River upstream of the diamond darter. However, protective measures for
listed freshwater mussels have generally involved surveys for mussel
species presence and minimization of direct habitat disturbance in
areas with confirmed presence. The diamond darter is more mobile and
therefore is likely to be present within a less restricted area than
most mussel species. Surveys for mussels will not detect diamond
darters. As a result, these measures provide some limited protection
for the diamond darter, but only in specific locations where it co-
occurs with these mussel species.
In summary, degradation of habitat for the diamond darter is
ongoing despite existing regulatory mechanisms. These regulatory
measures have been insufficient to significantly reduce or remove the
threats to the diamond darter.
[[Page 43919]]
Factor E. Other Natural or Manmade Factors Affecting Its Continued
Existence
Didymosphenia geminate
The presence of Didymosphenia geminate, an alga known as ``didymo''
or ``rock snot'' has the potential to adversely affect diamond darter
populations in the Elk River. This alga, historically reported to occur
in cold, northern portions of North America (e.g., British Columbia),
has been steadily expanding its range within the last 10 to 20 years,
and has now been reported to occur in watersheds as far east and south
as Arkansas and North Carolina (Spaulding and Elwell 2007, pp. 8-21).
The species has also begun occurring in large nuisance blooms that can
dominate stream surfaces by covering 100 percent of the substrate with
mats up to 20 cm (8 in) thick, extending over 1 km (0.6 mi) and
persisting for several months (Spaulding and Elwell 2007, pp. 3, 6).
Didymo can greatly alter the physical and biological conditions of
streams in which it occurs and cause changes to algal, invertebrate,
and fish species diversity and population sizes; stream foodweb
structure; and stream hydraulics (Spaulding and Elwell 2007, pp. 3,
12). Didymo is predicted to have particularly detrimental effects on
fish, such as the diamond darter, that inhabit stream bottom habitats
or consume bottom-dwelling prey (Spaulding and Elwell 2007, p. 15).
While didymo was previously thought to be restricted to cold water
streams, it is now known to occur in a wider range of temperatures, and
it has been documented in waters that were up as high as 27 [deg]C
(80[emsp14][deg]F) (Spaulding and Elwell 2007, pp. 8, 10, 16). It can
also occur in a wide range of hydraulic conditions including slow-
moving, shallow areas, and areas with high depths and velocities
(Spaulding and Elwell 2007, pp. 16-17). Didymo can be spread large
distances either through the water column or when items such as fishing
equipment, boots, neoprene waders, and boats are moved between affected
and unaffected sites (Spaulding and Elwell 2007, pp. 19-20). For
example, in New Zealand, didymo spread to two sites over 100 km (62.1
mi) and 450 km (279.6 mi) away from the location of the first
documented bloom within 1 year (Kilroy and Unwin 2011, p. 254).
Although it has not been documented to occur in the lower Elk River
where the diamond darter occurs, in 2008 the WVDNR documented the
presence of didymo in the upper Elk River, above Sutton Dam near
Webster Springs, which is over 120 km (74.5 mi) upstream from known
diamond darter locations (WVDNR 2008, p. 1). Anglers have also reported
seeing heavy algal mats, assumed to be didymo, in the upstream reach of
the river (WVDNR 2008, p. 1). Therefore, there is potential that the
species could spread downstream to within the current range of the
diamond darter in the future. If it does spread into the diamond darter
habitat, it could degrade habitat quality and pose a significant threat
to the species.
Geographic Isolation, Loss of Genetic Variation, and Climate Change
The one existing diamond darter population is small in size and
range, and it is geographically isolated from other areas that
previously supported the species. The diamond darter's distribution is
restricted to a short stream reach, and its small population size makes
it extremely susceptible to extirpation from a single catastrophic
event (such as a toxic chemical spill or storm event that destroys its
habitat). Therefore, reducing the potential ability to recover from the
cumulative effects of smaller chronic impacts to the population and
habitat such as progressive degradation from runoff (nonpoint source
pollutants), and direct disturbances.
Species that are restricted in range and population size are more
likely to suffer loss of genetic diversity due to genetic drift,
potentially increasing their susceptibility to inbreeding depression,
and reducing the fitness of individuals (Soule 1980, pp. 157-158;
Hunter 2002, pp. 97-101; Allendorf and Luikart 2007, pp. 117-146).
Similarly, the random loss of adaptive genes through genetic drift may
limit the ability of diamond darters to respond to changes in their
environment such as climate change, or the catastrophic events and
chronic impacts described above (Noss and Cooperrider 1994, p. 61).
Small population sizes and inhibited gene flow between populations may
increase the likelihood of local extirpation (Gilpin and Soul[eacute]
1986, pp. 32-34). The long-term viability of a species is founded on
the conservation of numerous local populations throughout its
geographic range (Harris 1984, pp. 93-104). These separate populations
are essential for the species to recover and adapt to environmental
change (Harris 1984, pp. 93-104; Noss and Cooperrider 1994, pp. 264-
297). The current population of the diamond darter is restricted to one
section of one stream. This population is isolated from other suitable
and historical habitats by dams that are barriers to fish movement. The
level of isolation and restricted range seen in this species makes
natural repopulation of historical habitats or other new areas
following previous localized extirpations virtually impossible without
human intervention.
Climate change has the potential to increase the vulnerability of
the diamond darter to random catastrophic events and to compound the
effects of restricted genetic variation and isolation. Current climate
change predictions for the central Appalachians indicate that aquatic
habitats will be subject to increased temperatures and increased
drought stress, especially during the summer and early fall (Buzby and
Perry 2000, p. 1774; Byers and Norris 2011, p. 20). There will likely
be an increase in the variability of stream flow, and the frequency of
extreme events such as drought, severe storms, and flooding is likely
to increase statewide (Buzby and Perry 2000, p. 1774; Byers and Norris
2011, p. 20). While the currently available information on the effects
of climate change is not precise enough to predict the extent to which
climate change will degrade diamond darter habitat, species with
limited ranges that are faced with either natural or anthropomorphic
barriers to movement, such as the dams that fragmented and isolated the
historical diamond darter habitat, have been found to be especially
vulnerable to the effects of climate change (Byers and Norris 2011, p.
18). Thus, the small population size and distribution of the diamond
darter makes the species particularly susceptible to risks from
catastrophic events, loss of genetic variation, and climate change.
Summary of Factor E
In summary, because the diamond darter has a limited geographic
range and small population size, it is subject to several other
ongoing, natural and manmade threats. These threats include the spread
of Didymosphenia geminate; loss of genetic fitness; and susceptibility
to spills, catastrophic events, and impacts from climate change. These
threats to the diamond darter are current and are expected to continue
rangewide into the future. The severity of these threats is high
because of the reduced range and population size which result in a
reduced ability to adapt to environmental change. Further, our review
of the best available scientific and commercial information indicates
that these threats are likely to continue or increase in the future.
Proposed Determination
We have carefully assessed the best scientific and commercial
information
[[Page 43920]]
available regarding the past, present, and future threats to the
diamond darter. The primary threats to the diamond darter are related
to the present or threatened destruction, modification, or curtailment
of its habitat or range (Factor A). The species is currently known to
exist only in the lower Elk River, West Virginia. This portion of the
watershed is currently impacted by ongoing water quality degradation
and habitat loss from activities associated with coal mining and oil
and gas development, siltation from these and other sources, inadequate
sewage and wastewater treatment, and direct habitat loss and
alteration. The impoundment of rivers in the Ohio River Basin, such as
the Kanawha, Ohio, and Cumberland Rivers, has eliminated much of the
species' habitat and isolated the existing population from other
watersheds that the species historically occupied.
The species could potentially be vulnerable to overutilization for
scientific purposes (Factor B), but the significance of this threat is
adequately regulated through the State's administration of scientific
collecting permits. There are no known threats to the diamond darter
from disease or predation (Factor C). Existing Federal and State
regulatory mechanisms such as the Clean Water Act, Surface Mining
Control and Reclamation Act, and the West Virginia Sediment Logging
Control Act do not provide adequate protections for the diamond darter
or its aquatic habitat (Factor D). The small size and restricted range
of the remaining diamond darter population makes it particularly
susceptible to the spread of didymo and effects of genetic inbreeding,
and extirpation from spills and other catastrophic events (Factor E).
In addition to the individual threats discussed under Factors A and E,
each of which is sufficient to warrant the species' listing, the
cumulative effect of Factors A, D, and E is such that the magnitude and
imminence of threats to the diamond darter are significant throughout
its entire current range.
The Act defines an endangered species as any species that is ``in
danger of extinction throughout all or a significant portion of its
range'' and a threatened species as any species ``that is likely to
become endangered throughout all or a significant portion of its range
within the foreseeable future.'' We find that the diamond darter, which
consists of only one population (occurrence), is presently in danger of
extinction throughout its entire range, due to the immediacy, severity,
and scope of the threats described above. Because the species is
currently limited to one small, isolated population in an aquatic
environment that is currently facing numerous, severe, and ongoing
water quality threats which are likely to increase over time, we find
that the diamond darter does not meet the definition of a threatened
species. Therefore, on the basis of the best available scientific and
commercial information, we propose listing the diamond darter as
endangered in accordance with sections 3(6) and 4(a)(1) of the Act.
Under the Act and our implementing regulations, a species may
warrant listing if it is threatened or endangered throughout all or a
significant portion of its range. The diamond darter proposed for
listing in this rule is highly restricted in its range and the threats
to the survival of the species are not restricted to any particular
significant portion of that range. Therefore, we assessed the status of
the species throughout its entire range. Accordingly, our assessment
and proposed determination apply to the species throughout its entire
range.
Available Conservation Measures
Conservation measures provided to species listed as endangered or
threatened under the Act include recognition, recovery actions,
requirements for Federal protection, and prohibitions against certain
practices. Recognition of the species through its 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 requires that recovery actions be
carried out for all listed species. The protection measures required of
Federal agencies and the prohibitions against certain activities are
discussed in Effects of Critical Habitat Designation and are further
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, such that they no longer need the protective measures
of the Act. Subsection 4(f) of the Act requires the Service to develop
and implement recovery plans for the conservation of endangered and
threatened species, unless we find that such a plan will not promote
the conservation of the species. The recovery planning process involves
the identification of actions that are necessary to halt or reverse the
species' decline by addressing the threats to its survival and
recovery. 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.
Recovery planning includes the development of a recovery outline
shortly after a species is listed, and preparation of a draft and final
recovery plan. The recovery outline guides the immediate implementation
of urgent recovery actions and describes the process to be used to
develop a recovery plan. Revisions of the plan may be done to address
continuing or new threats to the species, as new substantive
information becomes available. The recovery plan identifies site-
specific management actions that will achieve recovery of the species,
measurable criteria that set a trigger for review of the five factors
that control whether a species remains endangered or may be downlisted
or delisted, 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. Recovery teams (comprising species experts, Federal and
State agencies, nongovernmental organizations, and stakeholders) are
often established to develop recovery plans. When completed, the
recovery outline, draft recovery plan, and the final recovery plan will
be available on our Web site (http://www.fws.gov/endangered), or from
our West Virginia 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 range 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 States of West Virginia,
Kentucky, Tennessee, and Ohio would be eligible for Federal funds to
implement management actions that promote the protection or recovery of
[[Page 43921]]
the diamond darter. Information on our grant programs that are
available to aid species recovery can be found at: http://www.fws.gov/grants.
Although the diamond darter is only proposed for listing under the
Act at this time, please inform us of your interest 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(a) of the Act requires Federal agencies to evaluate their
actions with respect to any species that is proposed or listed as
endangered or threatened and with respect to its critical habitat, if
any is designated. Regulations implementing this interagency
cooperation provision of the Act are codified at 50 CFR part 402.
Section 7(a)(4) of the Act requires Federal agencies to confer with the
Service on any action that is likely to jeopardize the continued
existence of a species proposed for listing or result in destruction or
adverse modification of proposed critical habitat. If a species is
listed, section 7(a)(2) of the Act requires Federal agencies to ensure
that activities they authorize, fund, or carry out are not likely to
jeopardize the continued existence of the species or destroy or
adversely modify its critical habitat. If a Federal action may affect a
listed species or its critical habitat, the responsible Federal agency
must enter into formal consultation with the Service.
Federal agency actions within the species' habitat that may require
conference or consultation or both as described in the preceding
paragraph include the issuance of section 404 Clean Water Act permits
by the Army Corps of Engineers; construction and management of gas
pipeline and power line rights-of-way or hydropower facilities by the
Federal Energy Regulatory Commission; construction and maintenance of
roads, highways, and bridges by the Federal Highway Administration;
pesticide regulation by the U.S. Environmental Protection Agency; and
issuance of coal mining permits by the Office of Surface Mining.
The Act and its implementing regulations set forth a series of
general prohibitions and exceptions that apply to all endangered
wildlife. The prohibitions of section 9(a)(2) of the Act, codified at
50 CFR 17.21 for endangered wildlife, in part, make it illegal for any
person subject to the jurisdiction of the United States to take
(includes harass, harm, pursue, hunt, shoot, wound, kill, trap,
capture, or collect; or to attempt any of these), import, export, ship
in interstate commerce in the course of commercial activity, or sell or
offer for sale in interstate or foreign commerce any listed species.
Under the Lacey Act (18 U.S.C. 42-43; 16 U.S.C. 3371-3378), it is also
illegal to possess, sell, deliver, carry, transport, or ship any such
wildlife that has been taken illegally. Certain exceptions apply to
agents of the Service and state conservation agencies.
We may issue permits to carry out otherwise prohibited activities
involving endangered and threatened wildlife species under certain
circumstances. Regulations governing permits are codified at 50 CFR
17.22 for endangered species, and at 17.32 for threatened species. With
regard to endangered wildlife, a permit must be issued for the
following purposes: for scientific purposes, to enhance the propagation
or survival of the species, and for incidental take in connection with
otherwise lawful activities.
It is our policy, as published in the Federal Register on July 1,
1994 (59 FR 34272), to identify to the maximum extent practicable at
the time a species is listed, those activities that would or would not
constitute a violation of section 9 of the Act. 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 species
proposed for listing. The following activities could potentially result
in a violation of section 9 of the Act; this list is not comprehensive:
(1) Unauthorized collecting, handling, possessing, selling,
delivering, carrying, or transporting of the species, including import
or export across State lines and international boundaries, except for
properly documented antique specimens at least 100 years old, as
defined by section 10(h)(1) of the Act.
(2) Violation of any permit that results in harm or death to any
individuals of this species or that results in degradation of its
habitat to an extent that essential behaviors such as breeding, feeding
and sheltering are impaired.
(3) Unlawful destruction or alteration of diamond darter habitats
(e.g., unpermitted instream dredging, impoundment, water diversion or
withdrawal, channelization, discharge of fill material) that impairs
essential behaviors such as breeding, feeding, or sheltering, or
results in killing or injuring a diamond darter.
(4) Unauthorized discharges or dumping of toxic chemicals or other
pollutants into waters supporting the diamond darter that kills or
injures individuals, or otherwise impairs essential life-sustaining
behaviors such as breeding, feeding, or finding shelter.
Other activities not identified above will be reviewed on a case-
by-case basis to determine if a violation of section 9 of the Act may
be likely to result from such activity should we list the diamond
darter as endangered. Compliance with a State permit, or lack of need
for a State permit, does not necessarily provide coverage against
violations of section 9 of the Act, particularly if the State review
has not yet included protections to ensure that adverse effects to
federally listed species are avoided. The Service does not consider the
description of future and ongoing activities provided above to be
exhaustive; we provide them simply as information to the public.
Questions regarding whether specific activities would constitute a
violation of section 9 of the Act should be directed to the West
Virginia Field Office (see FOR FURTHER INFORMATION CONTACT). Requests
for copies of the regulations concerning listed animals and general
inquiries regarding prohibitions and permits may be addressed to the
U.S. Fish and Wildlife Service, Endangered Species Permits, 300
Westgate Center Drive, Hadley, MA 01035-9589 (Phone 413-253-8200; Fax
413-253-8482) or information can be viewed at our permit Web site at
http://www.fws.gov/endangered/permits/how-to-apply.html.
Critical Habitat Designation for Diamond Darter
Background
It is our intent to discuss below only those topics directly
relevant to the designation of critical habitat for the diamond darter
in this section of the proposed rule.
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;
(b) Which may require special management considerations or
protection; and
(2) Specific areas outside the geographical area occupied by the
species at the time it is listed, upon a determination that such areas
are essential for the conservation of the species.
Conservation, as defined under section 3 of the Act, means to use
and the use of all methods and procedures
[[Page 43922]]
that are necessary to bring an endangered or threatened species to the
point at which the measures provided pursuant to the Act are no longer
necessary. Such methods and procedures include, but are not limited to,
all activities associated with scientific resources management such as
research, census, law enforcement, habitat acquisition and maintenance,
propagation, live trapping, and transplantation, and in the
extraordinary case where population pressures within a given ecosystem
cannot be otherwise relieved, may include regulated taking.
Critical habitat receives protection under section 7 of the Act
through the requirement that Federal agencies ensure, in consultation
with the Service, that any action they authorize, fund, or carry out is
not likely to result in the destruction or adverse modification of
critical habitat. The designation of critical habitat does not affect
land ownership or establish a refuge, wilderness, reserve, preserve, or
other conservation area. Such designation does not allow the government
or public to access private lands. Such designation does not require
implementation of restoration, recovery, or enhancement measures by
non-Federal landowners. Where a landowner requests Federal agency
funding or authorization for an action that may affect a listed species
or critical habitat, the consultation requirements of section 7(a)(2)
of the Act would apply, but even in the event of a destruction or
adverse modification finding, the obligation of the Federal action
agency and the landowner is not to restore or recover the species, but
to implement reasonable and prudent alternatives to avoid destruction
or adverse modification of critical habitat.
Under the first prong of the Act's definition of critical habitat,
areas within the geographical area occupied by the species at the time
it was listed are included in a critical habitat designation if they
contain physical or biological features (1) which are essential to the
conservation of the species, and (2) which may require special
management considerations or protection. For these areas, critical
habitat designations identify, to the extent known using the best
scientific and commercial data available, those physical or biological
features that are essential to the conservation of the species (such as
space, food, cover, and protected habitat). In identifying those
physical and biological features within an area, we focus on the
principal biological or physical constituent elements (primary
constituent elements such as roost sites, nesting grounds, seasonal
wetlands, water quality, tide, soil type) that are essential to the
conservation of the species. Primary constituent elements are those
specific elements of physical or biological features that provide for a
species' life-history processes, and are essential to the conservation
of the species.
Under the second prong of the Act's definition of critical habitat,
we can designate critical habitat in areas outside the geographical
area occupied by the species at the time it is listed, upon a
determination that such areas are essential for the conservation of the
species. For example, an area currently occupied by the species but
that was not occupied at the time of listing may be essential to the
conservation of the species and may be included in the critical habitat
designation. We designate critical habitat in areas outside the
geographical area occupied by a species only when a designation limited
to its range would be inadequate to ensure the conservation of the
species.
Section 4 of the Act requires that we designate critical habitat on
the basis of the best scientific data available. Further, our Policy on
Information Standards Under the Endangered Species Act (published in
the Federal Register on July 1, 1994 (59 FR 34271)), the Information
Quality Act (section 515 of the Treasury and General Government
Appropriations Act for Fiscal Year 2001 (Pub. L. 106-554; H.R. 5658)),
and our associated Information Quality Guidelines, provide criteria,
establish procedures, and provide guidance to ensure that our decisions
are based on the best scientific data available. They require our
biologists, to the extent consistent with the Act and with the use of
the best scientific data available, to use primary and original sources
of information as the basis for recommendations to designate critical
habitat.
When we are determining which areas should be designated as
critical habitat, our primary source of information is generally the
information developed during the listing process for the species.
Additional information sources may include the recovery plan for the
species, articles in peer-reviewed journals, conservation plans
developed by States and counties, scientific status surveys and
studies, biological assessments, other unpublished materials, or
experts' opinions or personal knowledge.
Habitat is dynamic, and species may move from one area to another
over time. Climate change will be a particular challenge for
biodiversity because the interaction of additional stressors associated
with climate change and current stressors may push species beyond their
ability to survive (Lovejoy 2005, pp. 325-326). The synergistic
implications of climate change and habitat fragmentation are the most
threatening facet of climate change for biodiversity (Hannah and
Lovejoy 2003, p. 4). In particular, we recognize that climate change
may cause changes in the arrangement of occupied habitat and stream
reaches. Current climate change predictions for the central
Appalachians indicate that aquatic habitats will be subject to
increased temperatures and increased drought stress, especially during
the summer and early fall. There will likely be an increase in the
variability of stream flow, and the frequency of extreme events, such
as drought, severe storms, and flooding, is likely to increase
statewide (Buzby and Perry 2000, p. 1774; Byers and Norris 2011, p.
20). Species with limited ranges and that are faced with either natural
or anthropomorphic barriers to movement, such as the dams that fragment
and isolate diamond darter habitat, have been found to be especially
vulnerable to the effects of climate change (Byers and Norris 2011, p.
18).
Precise estimates of the location and magnitude of impacts from
global climate change and increasing temperatures cannot be made from
the currently available information. Nor are we currently aware of any
climate change information specific to the habitat of the diamond
darter that would indicate what areas may become important to the
species in the future. However, among the most powerful strategies for
the long-term conservation of biodiversity is establishment of networks
of intact habitats and conservation areas that represent a full range
of ecosystems, and include multiple, robust examples of each type. The
principles of resiliency and redundancy are at the core of many
conservation planning efforts, and are increasingly important as the
stresses of climate change erode existing habitats (Byers and Norris
2011, p. 24). Therefore, we have attempted to incorporate these
principles into our proposed determination of critical habitat by
delineating two units that are representative of the range of habitats
currently and previously occupied by the species.
We recognize that critical habitat designated at a particular point
in time may not include all of the habitat areas that we may later
determine are necessary for the recovery of the species. For these
reasons, a critical habitat designation does not signal that
[[Page 43923]]
habitat outside the designated area is unimportant or may not be needed
for recovery of the species. Areas that are important to the
conservation of the species, both inside and outside the critical
habitat designation, will continue to be subject to: (1) Conservation
actions implemented under section 7(a)(1) of the Act, (2) regulatory
protections afforded by the requirement in section 7(a)(2) of the Act
for Federal agencies to ensure their actions are not likely to
jeopardize the continued existence of any endangered or threatened
species, and (3) section 9's prohibition on taking any individual of
the species, including taking caused by actions that affect habitat.
Federally funded or permitted projects affecting listed species outside
their designated critical habitat areas may still result in jeopardy
findings in some cases. These protections and conservation tools will
continue to contribute to recovery of this species. Similarly, critical
habitat designations made on the basis of the best available
information at the time of designation will not control the direction
and substance of future recovery plans, habitat conservation plans
(HCPs), or other species conservation planning efforts if new
information available at the time of these planning efforts calls for a
different outcome.
Prudency Determination
Section 4(a)(3) of the Act, as amended, and implementing
regulations (50 CFR 424.12), require that, to the maximum extent
prudent and determinable, the Secretary designate critical habitat at
the time the species is determined to be endangered or threatened. Our
regulations (50 CFR 424.12(a)(1)) state that the designation of
critical habitat is not prudent when one or both of the following
situations exist: (1) The species is threatened by taking or other
human activity, and identification of critical habitat can be expected
to increase the degree of threat to the species; or (2) such
designation of critical habitat would not be beneficial to the species.
There is no documentation of commercial or private collection of
the diamond darter. Although that activity is identified as a possible
but unlikely threat to the species, the significance of collection to
the viability of the species' populations is not known. In the absence
of a finding that the designation of critical habitat would increase
threats to a species, if there are any benefits to a critical habitat
designation, then a prudent finding is warranted. The potential
benefits include: (1) Triggering consultation under section 7 of the
Act, in new areas for actions in which there may be a Federal nexus
where it would not otherwise occur because, for example, it is or has
become unoccupied or the occupancy is in question; (2) focusing
conservation activities on the most essential features and areas; (3)
providing educational benefits to State or county governments or
private entities; and (4) preventing people from causing inadvertent
harm to the species.
The primary regulatory effect of critical habitat is the section
7(a)(2) requirement that Federal agencies refrain from taking any
action that destroys or adversely modifies critical habitat. At this
time, the diamond darter occurs on State and private lands along the
Elk River in West Virginia. Lands proposed for designation as critical
habitat would be subject to Federal actions that trigger section 7
consultation requirements. These include land management planning and
Federal agency actions. There may also be educational or outreach
benefits to the designation of critical habitat. These benefits include
the notification of lessees and the general public of the importance of
protecting the habitats of both of these rare species.
In the case of the diamond darter, these aspects of critical
habitat designation would potentially benefit the conservation of the
species. Therefore, if the threat of commercial or private collection
exists for the species, it is outweighed by the conservation benefits
derived from the designation of critical habitat. We therefore find
that designation of critical habitat is prudent for the diamond darter.
Critical Habitat Determinability
Having determined that designation is prudent, under section
4(a)(3) of the Act we must find whether critical habitat for the eight
species is determinable. Our regulations at 50 CFR 424.12(a)(2) state
that critical habitat is not determinable when one or both of the
following situations exist:
(i) Information sufficient to perform required analyses of the
impacts of the designation is lacking, or
(ii) The biological needs of the species are not sufficiently well
known to permit identification of an area as critical habitat.
When critical habitat is not determinable, the Act allows the
Service an additional year to publish a critical habitat designation
(16 U.S.C. 1533(b)(6)(C)(ii)).
We reviewed the available information pertaining to the biological
needs of the species and habitat characteristics where these species
are located. This and other information represent the best scientific
data available and led us to conclude that the designation of critical
habitat is determinable for diamond darter.
Physical or Biological Features
In accordance with section 3(5)(A)(i) and 4(b)(2) of the Act and
regulations at 50 CFR 424.12, in determining which areas within the
geographical area occupied by the species at the time of listing to
designate as critical habitat, we consider the physical or biological
features that are essential to the conservation of the species and
which may require special management considerations or protection (50
CFR 424.12(b)). These include, but are not limited to:
(1) Space for individual and population growth and for normal
behavior;
(2) Food, water, air, light, minerals, or other nutritional or
physiological requirements;
(3) Cover or shelter;
(4) Sites for breeding, reproduction, or rearing (or development)
of offspring; and
(5) Habitats that are protected from disturbance or are
representative of the historical, geographical, and ecological
distributions of a species.
We derive the specific physical or biological features required for
the diamond darter from studies of this species' habitat, ecology, and
life history as described below. Because diamond darters are so rare,
there is very little information available with which to quantitatively
define the optimal or range of suitable conditions for a specific
biological or physical feature needed by the species. However, the
available, species-specific information, in combination with
information from the closely related crystal darter and other similar
darter species, provides sufficient information to qualitatively
discuss the physical and biological features needed to support the
species. Based on this review, we have determined that the following
physical and biological features are essential for the diamond darter:
Space for Individual and Population Growth and for Normal Behavior
The diamond darter inhabits moderate to large, warmwater streams
with clean sand and gravel substrates (Simon and Wallus 2006, p. 52).
Moderate to large warmwater streams are defined as fourth to eighth
order streams with a drainage area exceeding 518 km\2\ (200 mi\2\) and
temperatures exceeding 20 [deg]C (68 [deg]F) at some point during the
year (Winger 1981, p. 40;
[[Page 43924]]
Oliverio and Anderson 2008, p. 12). In the Elk River, the diamond
darter has been collected in transition areas between riffles and pools
where substrates were greater than 40 percent sand and gravel (Welsh et
al. 2004, p. 6; Osier 2005, p. 11; Welsh and Wood 2008, pp. 62-68).
These habitat characteristics are similar to those described for the
crystal darter (Welsh et al. 2008, p. 1). Many studies have found that
the crystal darter does not occur in areas with large amounts of mud,
clay, detritus, or submerged vegetation (George et al. 1996, p. 71;
Shepard et al. 1999 in Osier 2005, p. 11; NatureServe 2008, p. 1). The
presence of clean sand and gravel substrates with low levels of silt
appears to be a critical component of diamond darter habitat.
Siltation (excess sediments suspended or deposited in a stream) has
been shown to negatively impact fish growth, survival, and reproduction
(Berkman and Rabeni 1987, p. 285). Both the diamond darter and the
crystal darter are noted to be particularly susceptible to the effects
of siltation and may have been extirpated from historical habitats due
to excessive siltation (Grandmaison et al. 2003, pp. 17-18). Siltation
can result from increased erosion along stream banks and roads and
deposition caused by land-based disturbances (Rosgen 1996, p. 1-3).
Coal mining, oil and gas development, timber harvesting, and all-
terrain vehicle usage have been identified as land-based disturbances
that are sources of increased siltation within the Elk River watershed
(USEPA 2001b, pp. 1-1, 3-4, 6; WVDEP 2008b, p. 1). Increased siltation
can also result from stream bank erosion and channel instability
(Rosgen 1996, p. 1-3). Geomorphically stable streams transport sediment
while maintaining their horizontal and vertical dimensions (width/depth
ratio and cross-sectional area), pattern (sinuosity), longitudinal
profile (riffles, runs, and pools), and substrate composition (Rosgen
1996, pp. 1-3 to 1-6). Thus, geomorphically stable streams maintain the
riffles and pools and silt-free substrates necessary to provide typical
habitats for the diamond darter.
Fragmentation and destruction of habitat has reduced the current
range of the diamond darter to only one stream and has isolated the
last remaining population, reducing the currently available space for
rearing and reproduction. Small, isolated populations may have reduced
adaptive capability and an increased likelihood of extinction (Gilpin
and Soul[eacute] 1986, pp. 32-34; Noss and Cooperrider 1994, p. 61).
Continuity of water flow and connectivity between remaining suitable
habitats is essential in preventing further fragmentation of the
species' habitat and population. Free movement of water within the
stream allows darters to move between available habitats. This is
necessary to provide sufficient space for the population to grow and to
promote genetic flow throughout the population. Continuity of habitat
helps to maintain space for spawning, foraging, and resting sites, and
also permits improvement in water quality and water quantity by
allowing unobstructed water flow throughout the connected habitats.
Thus, free movement of water that provides connectivity between
habitats is necessary to support diamond darter populations.
There is little information available on the amount of space needed
by either the diamond darter or the crystal darter for population
growth and normal behavior. Many individuals of other darter species
that use similar habitat types have been found to remain in one habitat
area during short-term mark and recapture studies. However upstream and
downstream movements of other darters between riffles and between
riffles and pools have been documented. Within-year movements typically
ranged from 36 to 420 meters (118.1 to 1,378.0 ft), and movements of up
to 4.8 km (3.0 mi) have been documented (May 1969, pp. 86-87, 91;
Freeman 1995, p. 363; Roberts and Angermeier 2007, pp. 422, 424-427).
In addition, a number of researchers have suggested that
Crystallaria move upstream to reproduce when they mature, and that
free-floating young-of-the-year disperse considerable distances
downstream during spring high water where they eventually find suitable
habitat to grow and mature (Stewart et al. 2005, p. 472; Hrabik 2012,
p. 1). This suggests that Crystallaria may make long-distance movements
in large rivers. This type of migratory behavior has been documented in
bluebreast darters (Etheostoma camurum) (Trautman 1981, pp. 673-675).
This species inhabits moderate to large-sized streams with low
turbidity and is typically found in riffles, similar to the diamond
darter. Trautman (1981, pp. 673-675) found that bluebreast darters were
well distributed throughout a 51-km (32-mile) reach of river during the
breeding season, but that there was a reduction in numbers in the upper
half of this reach starting in September and continuing through late
winter to early spring. There was a corresponding increase in numbers
in the lower half of the reach during this time. Individual darters
captured in the spring were documented to have moved 152 m (500 ft) in
a single day. In September and October, Trautman captured bluebreast
darters in deep, low-velocity pools, which are not typical habitats for
the species. He concluded that bluebreast and other darter species
migrated upstream in spring and downstream in the fall (Trautman 1981,
pp. 673-675). Based on this information, free movement between habitat
types within a significant length of stream may be important to provide
sufficient space to support normal behavior and genetic mixing of the
diamond darter.
Based on the biological information and needs discussed above, we
identify riffle-pool complexes in moderate to large-sized (fourth to
eighth order), warmwater streams that are geomorphically stable with
moderate current, clean sand and gravel substrates, and low levels of
siltation to be physical or biological features essential to the
conservation of the diamond darter.
Food, Water, Air, Light, Minerals, or Other Nutritional or
Physiological Requirements
Feeding habits of the diamond darter in the wild are not known.
However, it is expected that, similar to the crystal darter, adult
diamond darters are benthic invertivores (NatureServe 2008, p. 8).
Crystal darters eat midge and caddisfly larvae, and water mites in
lesser quantities (Osier 2005, p. 13). Juvenile and young crystal
darters feed on immature stages of aquatic insects such as mayflies,
craneflies, blackflies, caddisflies, and midges (Simon and Wallus 2006,
pp. 56-57). Diamond darters kept in captivity were fed and survived on
live blackworms, daphnia, and dragonfly larvae, frozen bloodworms, and
adult brine shrimp (Ruble et al. 2010, p. 4). Diamond darters may use
an ambush foraging tactic by burying in the sand and darting out at
prey (Robinson 1992 and Hatch 1997 in Osier 2005, pp. 12-13;
NatureServe 2008, p. 1; Ruble 2011c, p. 1). When in captivity, diamond
darters were also observed resting on the bottom of the tank and taking
food from slightly above their position, in front of them, or off the
bottom (Welsh 2009c, p. 1). Juvenile diamond darters hatched in
captivity had teeth and a large gape width, which suggests that the
larvae may feed on other smaller fish larvae (Ruble et al. 2010, p.
15).
Researchers were unable to confirm this hypothesis due to poor
survivorship of the diamond darter larvae and lack of available smaller
fish larvae to provide as a potential food source (Ruble et al. 2010,
pp. 12-14). As explained in the Life History and Habitat section above,
[[Page 43925]]
the juveniles may also eat zooplankton prey, which is more typical for
pelagic larval percids (Rakes 2011, p. 1). This information suggests
that loose sandy substrates suitable for ambush feeding behavior and
healthy populations of benthic invertebrates and fish larvae for prey
items are required to support the feeding requirements of the diamond
darter.
Like most other darters, the diamond darter depends on clean water
and perennial stream flows to successfully complete its life cycle
(Page 1983, pp. 160-170). Sufficient water quality and quantity is
required to support normal reproduction, growth, and survival. Because
so few diamond darters have been captured, there are insufficient data
available to quantitatively define the standards for water quantity or
quality that are suitable to support the species. However, some data
are available from areas that are known to support the diamond darter
or the closely related crystal darter that provide examples of suitable
conditions.
Water quantity, including depth and current velocity, are known to
be important habitat characteristics that determine whether an area is
suitable to support a specific species of fish (Osier 2005, p. 3).
Sites where Crystallaria have been captured are consistently described
as having moderate to strong velocities (Grandmaison et al. 2003, p. 4;
Osier 2005, p. 15). Moderate to strong velocities contribute to the
clean swept substrates and lack of silt commonly reported in documented
crystal darter habitat (Osier 2005, p. 11). In the Elk River, the
diamond darter has been collected from transition areas between riffles
and pools at depths from 50 to 150 cm (20 to 59 in) and in moderate to
strong velocities that are typically greater than 20 cm/sec (8 in/sec)
(Osier 2005, p. 31). Similarly, the crystal darter has been described
as generally inhabiting waters deeper than 60 cm (24 inches) with
strong currents typically greater than 32 cm/sec (13 inch/sec)
(Grandmaison et al. 2003, p. 4). Crystal darters were collected in
Arkansas in water from 114 to 148 cm (45 to 58 in) deep with current
velocities between 46 and 90 cm/sec (18 and 35 in/sec) (George et al.
1996 in Grandmaison et al. 2003, p. 4). Many of the measurements were
taken at base or low flows when it is easiest to conduct fish surveys.
Current velocity, water depth, and stream discharge are interrelated
and variable, dependent on seasonal and daily patterns of rainfall
(Bain and Stevenson 1999, p. 77; Grandmaison et al. 2003, p. 4).
Therefore, velocities and depths at suitable habitat sites may change
over time, or diamond darters may also move to other locations within a
stream as seasonal and daily velocity and depth conditions change.
Water quality is also important to the persistence of the diamond
darter. Specific water quality requirements (such as temperature,
dissolved oxygen, pH, and conductivity) for the species have not been
determined, but existing data provide some examples of conditions where
Crystallaria were present. Diamond darters were successfully maintained
in captivity when water temperatures did not go below 2 [deg]C (35.6
[deg]F) in the winter or above 25 [deg]C (77 [deg]F) in the summer
(Ruble et al. 2010, p. 4). In Arkansas, crystal darter capture areas
had dissolved oxygen levels that ranged from 6.81 to 11.0 parts per
million; pH levels from 5.7 to 6.6; specific conductivities from 175 to
250 [mu]S/cm, and water temperatures from 14.5 to 26.8 [deg]C (58 to 80
[deg]F) (George et al. 1996, p. 71). In general, optimal water quality
conditions for warmwater fishes are characterized as having moderate
stream temperatures, high dissolved oxygen concentrations, and near-
neutral pH levels. They are also characterized as lacking harmful
levels of conductivity or pollutants including inorganic contaminants
like iron, manganese, selenium, and cadmium; and organic contaminants
such as human and animal waste products, pesticides and herbicides,
fertilizers, and petroleum distillates (Winger 1981, pp. 36-38; Alabama
Department of Environmental Management 1996, pp. 13-15; Maum and
Moulton undated, pp. 1-2).
Good water quality that is not degraded by inorganic or organic
pollutants, low dissolved oxygen, or excessive conductivity is an
important habitat component for the diamond darter.
As described in the Summary of Factors Affecting the Species
section above, impoundment of many rivers that historically supported
the diamond darter has altered the quantity and flow of water in those
rivers. This has reduced or eliminated riffle habitats, reduced current
velocities, and increased the amount of fine particles in the substrate
(Rinne et al. 2005, pp. 3-5, 432-433). Diamond darters have been
extirpated from many areas as a result (Grandmaison et al. 2003, p. 18;
Trautman 1981, p. 25). Excessive water withdrawals can also reduce
current velocities, reduce water depth, increase temperatures,
concentrate pollution levels, and result in deposition of fine
particles in the substrate, making the areas less suitable to support
the diamond darter (PSU 2010, p. 9; Freeman and Marcinek 2006, p. 445).
An ample and unimpeded supply of flowing water that closely resembles
natural peaks and lows typically provides a means of maintaining riffle
habitats, transporting nutrients and food items, moderating water
temperatures and dissolved oxygen levels, removing fine sediments that
could damage spawning or foraging habitats, and diluting nonpoint-
source pollutants, and is thus essential to the diamond darter.
Based on the biological information and needs discussed above, we
identify perennial streams containing riffle-pool transition areas with
moderate velocities, seasonally moderated temperatures, and good water
quality with healthy populations of benthic invertebrates and fish
larvae for prey items and loose, sandy substrates to be physical or
biological features essential to the conservation for the diamond
darter.
Cover or Shelter
Diamond darters and crystal darters typically have been captured in
riffle-pool transition areas with predominately (greater than 20
percent each) sand and gravel substrates (Osier 2005, pp. 51-52).
Diamond darters will bury in these types of substrates for cover and
shelter. Individuals observed in captivity were frequently seen either
completely buried in the sand during the day or partially buried with
only the head (eyes and top of the snout) out of the sand. However,
individuals were often on top of the sand at night time (Welsh 2009c,
p. 1). Burying occurred by the individual rising slightly up above the
substrate and then plunging headfirst into the sand and using its tail
motion to burrow (Welsh 2009c, p. 1). This type of burying behavior has
also been reported in the crystal darter (Osier 2005, p. 11;
NatureServe 2008, p. 1). Heavily embedded substrates may impede this
behavior. Embeddedness is the degree that cobble or gravel substrates
are impacted by being surrounded or covered by fine silty materials
(Shipman 2000, p. 12). Embedded substrates are not easily dislodged,
and would therefore be difficult for the diamond darter to burrow into
for cover. Heavily embedded substrates can be the result of human
activities increasing the amount of siltation occurring in the stream
(Shipman 2000, p. 12). While diamond darter capture sites in the Elk
River have had a sparse (25-50 percent) to low (less than 25 percent)
degree of embeddedness, these sites were less embedded than other
surrounding areas (Shipman 2000, p. 12; Welsh et al. 2004, p. 7; Osier
2005, p. 57), and lower levels
[[Page 43926]]
of embeddedness are preferred by the diamond darter.
Variability in the substrate and available habitat is also an
important sheltering requirement for the diamond darter. Darters may
shift to different habitat types due to changing environmental
conditions such as high water or warm temperatures (Osier 2005, p. 7).
Deeper or sheltered habitats may provide refuge during warm weather and
it has been suggested that Crystallaria species may use deeper pools
during the day (Osier 2005, p. 10). Substrate variety, such as the
presence of boulders or woody materials, provides velocity shelters for
young darters during high flows (Osier 2005, p. 4).
Based on the biological information and needs discussed above, we
identify riffle-pool transition areas with relatively sand and gravel
substrates, as well as access to a variety of other substrate and
habitat types, including pool habitats, to be physical or biological
cover and shelter features essential to the conservation for the
diamond darter.
Sites for Breeding, Reproduction, or Rearing (or Development) of
Offspring
Very little information is available on reproductive biology and
early life history of the diamond darter (Welsh et al. 2008, p. 1;
Ruble and Welsh 2010, p. 1), and to date, only one young-of-the-year of
this species has been found in the wild. We have not been able to
obtain specific information on this collection, which probably occurred
in 2007 in the Elk River near the confluence with the Kanawha River,
West Virginia (Cincotta 2009a, p. 1). However, research on reproductive
biology of the species was recently initiated by Conservation Fisheries
Inc. (CFI) in partnership with the USGS West Virginia Cooperative Fish
and Wildlife Research Unit at West Virginia University (WVU). Five
individual diamond darters, consisting of at least three females, one
male, and one of undetermined sex, have been held in captivity at the
CFI facility and were maintained in simulated stream conditions. Water
temperature and daylight were also adjusted throughout the seasons to
simulate natural fluctuations that would be experienced in the wild
(Ruble and Welsh 2010, p. 2).
Spawning began when water temperatures were consistently above 15
[deg]C and ceased when temperatures reached 22 [deg]C (Ruble 2011b, p.
2). Females showed signs of being gravid from late March to May (Ruble
et al. 2010, p. 11-12). Both eggs and hatched larvae were observed in
April (Ruble et al. 2010, p. 11-12; Ruble 2011, p. 1). Peak breeding
time is likely mid-April when water temperatures range from 15 to 20
[deg]C (59 to 68[emsp14] [deg]F) (Ruble et al. 2010, p. 12). Although
incubation time is difficult to determine because most eggs that
survived already showed considerable development, it is estimated that
at 15 [deg]C (59[emsp14] [deg]F), hatch time is 7 to 9 days (Ruble et
al. 2010, p. 11). Although eggs were produced in both years, no young
survived and matured during either year (Ruble et al. 2010, pp. 11-12;
Ruble 2011b, p. 1).
Because no young have been successfully maintained in captivity and
no studies of wild populations are available, we are not able to
quantify the range of water quality conditions needed for successful
reproduction. Factors that can impair egg viability include high
temperatures, low oxygen levels, siltation, and other water quality
conditions (Ruble 2011, p. 2). Inadequate water flow through the
substrate or low oxygen levels within the substrate can lead to poor
egg development or poor larval condition (Ruble 2011, p. 2).
There is also some information available on reproduction of the
crystal darter (Welsh et al. 2008, p. 1). In Arkansas, the reproductive
season was from late January through mid-April, roughly correlating
with early April in the Ohio River Basin (George et al. 1996, p. 75;
Simon and Wallus 2006, p. 52). Evidence suggests that females are
capable of multiple spawning events and producing multiple clutches of
eggs in one season (George et al. 1996, p. 75). Spawning occurs in the
spring when the crystal darters lay their eggs in side channel riffle
habitats over sand and gravel substrates in moderate current. Adult
darters do not guard their eggs (Simon and Wallus 2006, p. 56). Embryos
develop in the clean interstitial spaces of the coarse substrate (Simon
and Wallus 2006, p. 56). After hatching, the larvae are pelagic and
drift within the water column (Osier 2005, p. 12; Simon and Wallus
2006, p. 56; NatureServe 2008, p. 1).
Based on the biological information and needs discussed above, we
identify streams with naturally fluctuating and seasonally moderated
water temperatures, high dissolved oxygen levels, and clean, relatively
silt-free sand and gravel substrates to be physical or biological
breeding, reproduction, or rearing of offspring features essential to
the conservation for the diamond darter.
Habitats That Are Protected From Disturbance or Are Representative of
the Historical, Geographical, and Ecological Distributions of a Species
As described above, clean, stable substrates, good water quality,
and healthy benthic invertebrate populations are habitat features
essential to the diamond darter. Direct disturbance, alteration, or
fill of instream habitat can degrade these essential features.
Disturbance, alteration, and instream fill can kill or injure adult
fish, young, or eggs; destabilize the substrates leading to increased
sedimentation or erosion; and reduce the amount of available food and
habitat to support fish populations. These impacts make the area less
suitable for the fish such as the diamond darter (Reid and Anderson
1999, pp. 235-245; Levesque and Dube 2007, pp. 396-402; Welsh 2009d, p.
1; Penkal and Phillips 2011, pp. 6-7). Direct disturbance and instream
construction can also increase substrate compaction and silt deposition
within the direct impact area and downstream, reducing water flow
through the substrate, and increasing substrate embeddedness (Reid and
Anderson 1999, p. 243; Levesque and Dube 2007, pp. 396-397; Penkal and
Phillips 2011, pp. 6-7). This can impede the normal burrowing behavior
of the diamond darter required for successful foraging and shelter,
degrade spawning habitat, result in the production of fewer and smaller
eggs, and impair egg and larvae development (Reid and Anderson 1999,
pp. 244-245; Levesque and Dube 2007, pp. 401-402). Intact riparian
vegetation is also an important component of aquatic habitats that
support the diamond darter. Darters are particularly susceptible to
impacts associated with disturbance to riparian vegetation such as
increased sedimentation and alteration of instream habitat
characteristics (Jones et al. 1999, pp. 1461-1462; Pusey and Arthington
2003, p. 1). Removal of riparian vegetation can lead to decreases in
fish species, such as the diamond darter, that do not guard eggs or
that are dependent on swift, shallow water that flows over relatively
sediment-free substrates (Jones et al. 1999, p. 1462). Thus, avoiding
disturbances to stream beds and banks is important to maintaining
stable substrates, food availability, successful reproduction, and
habitat suitability for the diamond darter.
All current and historical capture locations of the diamond darter
are from moderate to large, fourth to eighth order, warmwater streams
within the Ohio River Watershed (Welsh 2008, p. 3;
[[Page 43927]]
SARP 2011, pp. 1-19). The species was historically distributed in at
least four major drainages throughout the watershed and is now likely
extirpated from Ohio, Kentucky, and Tennessee. The current range is
restricted to a small segment of one river within West Virginia.
Therefore, the current range of the species is not representative of
the historical or geographical distribution of the species and not
sufficient for the conservation of the diamond darter. Given the
distribution is restricted to approximately 45 km (27.96 mi) within one
river, the species is vulnerable to the threats of reduced fitness
through genetic inbreeding, and extinction from a combination of
cumulative effects or a single catastrophic event such as a toxic
chemical spill (Gilpin and Soule 1986, pp. 23-33; Noss and Cooperrider
1994, p. 61). In addition, because the current range is isolated from
other suitable habitats due to the presence of dams and impoundments,
the species has limited ability to naturally expand its current range
and recolonize previously occupied habitats (Warren et al. 2000 in
Grandmaison et al. 2003, p. 18). A species distribution that includes
populations in more than one moderate to large river within the Ohio
River watershed would provide some protection against these threats and
would be more representative of the historical geographic distribution
of the species.
Based on the biological information and needs discussed above, we
identify stable, undisturbed stream beds and banks, and ability for
populations to be distributed in multiple moderate-to-large (fourth to
eighth order) streams throughout the Ohio River watershed to be
physical or biological features protected from disturbance or are
representative of the historical, geographical, and ecological
distributions that are essential to the conservation for the diamond
darter.
Primary Constituent Elements for the Diamond Darter
Under the Act and its implementing regulations, we are required to
identify the physical or biological features essential to the
conservation of the diamond darter in areas occupied at the time of
listing, focusing on the features' primary constituent elements.
Primary constituent elements are those specific elements of physical or
biological features that provide for a species' life-history processes
and are essential to the conservation of the species.
Based on our current knowledge of the physical or biological
features and habitat characteristics required to sustain the species'
life-history processes, we determine that the primary constituent
elements specific to the diamond darter are:
(1) Primary Constituent Element 1--A series of connected riffle-
pool complexes with moderate velocities in moderate to large-sized
(fourth to eighth order), geomorphically stable streams within the Ohio
River watershed.
(2) Primary Constituent Element 2--Stable, undisturbed bottom
substrates composed of relatively silt-free, unembedded sand and
gravel.
(3) Primary Constituent Element 3--An instream flow regime
(magnitude, frequency, duration, and seasonality of discharge over
time) that is relatively unimpeded by impoundment or diversions such
that there is minimal departure from a natural hydrograph.
(4) Primary Constituent Element 4--Adequate water quality
characterized by seasonally moderated temperatures, high dissolved
oxygen levels, and moderate pH, and low levels of pollutants and
siltation. Adequate water quality is defined as the quality necessary
for normal behavior, growth, and viability of all life stages of the
diamond darter.
(5) Primary Constituent Element 5--A prey base of other fish larvae
and benthic invertebrates including midge, caddisfly, and mayfly
larvae.
With this proposed designation of critical habitat, we intend to
identify the physical or biological features essential to the
conservation of the species, through the identification of the primary
constituent elements sufficient to support the life-history processes
of the species.
Special Management Considerations or Protection
When designating critical habitat, we assess whether the specific
areas within the geographical area occupied by the species at the time
of listing contain features which are essential to the conservation of
the species and which may require special management considerations or
protection. The area we are proposing for designation as currently
occupied critical habitat for the diamond darter is not under special
management or protection provided by a legally operative management
plan or agreement specific to conservation of the diamond darter and
has not been designated as critical habitat for other species under the
Act. This unit will require some level of management to address the
current and future threats to the physical and biological features
(PBFs) of the species. Various activities in or adjacent to the
critical habitat unit described in this proposed rule may affect one or
more of the primary constituent elements (PCEs) and may require special
management considerations or protection. Some of these activities
include, but are not limited to, those discussed in the ``Summary of
Factors Affecting the Species,'' above. Other activities that may
affect PCEs in the proposed critical habitat unit include those listed
in the ``Available Conservation Measures'' section and include resource
extraction (coal mining, timber harvests, natural gas and oil
development activities); construction and maintenance projects; stream
bottom disturbance from sewer, gas, and water lines; lack of adequate
riparian buffers; and other sources of nonpoint-source pollution.
Management activities that could ameliorate these threats include,
but are not limited to: use of BMPs designed to reduce sedimentation,
erosion, and stream bank destruction; development of alternatives that
avoid and minimize streambed disturbances; implementation of
regulations that control the amount and quality of point-source
discharges; and reduction of other watershed and floodplain
disturbances that release sediments or other pollutants. Special
management consideration or protection may be required to eliminate, or
to reduce to negligible levels, the threats affecting the physical or
biological features of each unit. Additional discussion of threats
facing individual units is provided in the individual unit descriptions
below.
Criteria Used To Identify Critical Habitat
As required by section 4(b)(2)(A) of the Act, we use the best
scientific data available to designate critical habitat. We review
available information pertaining to the habitat requirements of the
species. In accordance with the Act and its implementing regulation at
50 CFR 424.12(e), we consider whether designating additional areas,
outside those currently occupied as well as those occupied at the time
of listing, are necessary to ensure the conservation of the species. We
are proposing to designate as critical habitat all habitat that is
currently occupied by the species; that is, the lower Elk River. This
one river reach constitutes the entire current range of the species. We
are also proposing to designate a specific area that is not currently
occupied by the diamond darter but was historically occupied, because
we have determined this area (i.e., the Green River) is essential for
the conservation of the diamond darter and designating only occupied
habitat is not sufficient to conserve this species.
[[Page 43928]]
For our evaluation of potential critical habitat, we reviewed
available literature, reports, and field notes prepared by biologists,
as well as historical and current survey results. We also spoke to
fisheries experts and conservation professionals that are familiar with
darters or the current status of aquatic systems within the current and
historical range of the species.
In order to identify currently occupied habitats, we delineated
known capture sites and reviewed habitat assessments and mapping
efforts that have been conducted on the Elk River. Known occurrences of
the diamond darter are extremely localized, and the species can be
difficult to locate. Because it is reasonably likely that this rare and
cryptic species is present in suitable habitats outside the immediate
locations of the known captures, we considered the entire reach between
the uppermost and lowermost locations as occupied habitat. We also
included some areas of the mainstem Elk River that have not been
specifically surveyed for diamond darters but have been determined to
have suitable habitat for the species based on diamond darter species-
specific habitat assessments (Osier 2005, pp. ii-50). These areas are
contiguous with known capture sites, have similar habitat
characteristics, have no barriers to dispersal, and are within general
darter dispersal capabilities. In addition, river habitats are highly
dependent upon upstream and downstream habitat conditions for their
maintenance, so these contiguous areas upstream and downstream are
critical to maintaining habitat conditions of known capture sites.
Areas of the Elk River downstream of the proposed unit near the
confluence with the Kanawha River that do not currently provide the
PCEs required to support the species, and no longer have suitable
habitat characteristics because they are affected by impoundment or
routine navigation dredging, were not included. The downstream reach of
the Elk River to the confluence with the Kanawha River is affected by
impoundment from the Winfield Lock and Dam on the Kanawha River. It is
also routinely dredged for commercial navigation by the ACOE.
The portion of the Elk River upstream of the proposed unit may
provide suitable habitat for the diamond darter, but we have no records
of diamond darters being captured in this reach or diamond darter
species-specific habitat assessments like there have been in the lower
Elk River. The upper Elk River reach does contain the favorable general
habitat characteristics of riffle-pool complexes with sand and gravel
substrates, and there are no barriers to upstream fish movement
(Service 2008, entire). However, only limited survey efforts and no
diamond darter species-specific habitat assessments have been conducted
that would allow us to further refine our assessment of whether this
area contains any of the PCEs necessary to support the species.
Additional survey efforts are being planned that may further define
whether the upstream area is occupied by the diamond darter or which,
if any, PCEs are present that may require special management
considerations. As a result, we are not proposing to designate
additional critical habitat upstream of King Shoals.
We have not included Elk River tributaries as part of the proposed
designation because we have no records of the diamond darter occurring
in those locations, and there have been no species-specific habitat
assessments in the tributaries documenting that these areas are
suitable to support the species.
We then considered whether occupied habitat was adequate for the
conservation of the species. Currently occupied habitats of the diamond
darter are highly localized and isolated, and are restricted to one
reach of the Elk River. The range has been severely curtailed, and
population size is small. Small isolated aquatic populations are
subject to chance catastrophic events and to changes in human
activities and land use practices that may result in their elimination.
Threats to the diamond darter are imminent and are present throughout
the entire range of the species. As described under Factor E, these
threats are compounded by its limited distribution and isolation making
the species extremely vulnerable to extinction; therefore, it is
unlikely that currently occupied habitat is adequate for its
conservation (Soule 1980, pp. 157-158; Noss and Cooperrider 1994, p.
61; Hunter 2002, pp. 97-101; Allendorf and Luikart 2007, pp. 117-146).
Larger, more dispersed populations can reduce the threat of extinction
due to habitat fragmentation and isolation (Harris 1984, pp. 93-104;
Noss and Cooperrider 1994, pp. 264-297; Warren et al. 2000 in
Grandmaison et al. 2003, p. 18). For these reasons, we find that
conservation of the diamond darter requires expanding its range into
suitable, currently unoccupied portions of its historical habitat. The
inclusion of essential, unoccupied areas will provide habitat for
population reintroduction and will improve the species' status through
added redundancy, resiliency, and representation.
In order to identify areas of unoccupied habitat that should be
designated as critical habitat, we focused on rivers that had
historical records confirmed to be diamond darter through the
examination of available museum specimens. For rivers that had more
than one historical capture, approximate capture locations were mapped
so that the minimal, previously occupied extent could be established.
We then identified areas of contiguous habitat that still contained the
habitat characteristics sufficient to support the life history of the
species. Areas that no longer provided suitable habitat were impounded,
or did not contain a series of connected riffle-pool complexes were
eliminated from consideration. We then applied the following criteria
to identify the unoccupied, potential critical habitat: (1) The reach
supports fish species with habitat preferences similar to the diamond
darter such as the shoal chub (Macrhybopsis hyostoma) and the
streamline chub (Erimystax dissimilis); (2) the reach supports diverse
populations of fish and mussels including other sensitive, rare, or
threatened and endangered species; and (3) the reach has special
management or protections in place such as being a designated wild
river or exceptional use waters under State law. The reach that we
identified in the Green River of Kentucky met all three criteria. These
factors helped to confirm that the identified area had high-quality
habitats sufficient to support the species and could be managed for the
conservation of the species. No other areas were identified that met
the full screening process.
We delineated the upstream and downstream boundaries of the
proposed unit on the Green River based on the following information.
The Green River immediately downstream of Green River Lake (River Mile
308.8 to 294.8) is excluded from the proposed critical habitat unit due
to artificially variable flow, temperature, and dissolved oxygen
conditions resulting from periodic discharges from Green River Dam.
Fish community data collected between Greensburg and Green River Dam
indicate a general trend of increasing species richness and abundance
from Tebb's Bend (approximately 2.7 km [1.7 mi] below the dam)
downstream to Roachville Ford (approximately 22.7 km [14.1 mi] below
the dam). Also, some relatively intolerant benthic fish species present
at Roachville Ford and other sites downstream within the Bioreserve are
absent at Tebb's Bend, including mountain madtom (Noturus eleutherus),
spotted darter (Etheostoma maculatum),
[[Page 43929]]
and Tippecanoe darter (E. Tippecanoe) (Thomas et al. 2004, p. 10). In
contrast with Roachville Ford and other downstream sites, cobble and
gravel substrates at Tebb's Bend are coated with a black substance
characteristic of manganese and iron, which precipitates out and is
deposited on the stream bed following hypolimnetic discharge from
reservoirs (Thomas 2012, p. 1). Because fish community structure and
habitat conditions at Roachville Ford are more similar to other
locations in the Green River Bioreserve, this location (River Mile
294.8) represents the upstream limit of the proposed critical habitat
section, which continues downstream to Cave Island (River Mile 200.3)
within Mammoth Cave National Park.
Downstream of Cave Island, the Green River becomes affected by
impoundment from the ACOE Lock and Dam 6. The lock and dam was
constructed in 1906 and was disabled in 1950. Although the lock has
been disabled and is becoming unstable, the dam still partially impedes
water flow resulting in a system with slower, warmer water and a loss
of riffle and shoal habitat types (Grubbs and Taylor 2004, p. 26; Olson
2006, pp. 295-297). The delineation between the portions of the river
affected by Lock and Dam 6 and those that retain free-flowing
characteristics occurs distinctly at Cave Island (Grubbs and Taylor
2004, pp. 19-26). There is a marked decrease in benthic
macroinvertebrates that are intolerant of siltation below this point,
which is attributable to slower current velocities and a lack of
shallow riffles and associated course sediments (Grubbs and Taylor
2004, p. 26). For these reasons, Cave Island was selected as the
downstream limit of the critical habitat designation in this unit.
Once we determined that the areas of Elk and Green Rivers met our
criteria, we then used ArcGIS software and the National Hydrography
Dataset (NHD) to delineate the specific river reach being proposed for
diamond darter critical habitat. Areas proposed for diamond darter
critical habitat include only Elk and Green River mainstem stream
channels within the ordinary high-water line. We have not included Elk
or Green River tributaries as part of the proposed designation because
we have no records of the diamond darter occurring in those locations.
We set the upstream and downstream limits of each critical habitat unit
by identifying landmarks (islands, confluences, roadways, crossings,
dams) that clearly delineated each river reach. Stream confluences are
often used to delineate the boundaries of a unit for an aquatic species
because the confluence of a tributary typically marks a significant
change in the size or habitat characteristics of the stream. Stream
confluences are logical and recognizable termini. When a named
tributary was not available, or if another landmark provided a more
recognizable boundary, another landmark was used. In the unit
descriptions, distances between the upstream or downstream extent of a
stream segment are given in kilometers (km) rounded to one decimal
point and equivalent miles (mi). Distances for the Elk River were
measured by tracing the course of the stream as depicted by the NHD.
Distances for the Green River were measured using river miles as
designated by the Kentucky Division of Water which were generated using
the NHD.
When determining proposed critical habitat boundaries, we made
every effort to avoid including developed areas such as lands covered
by buildings, pavement, and other structures because such lands lack
physical or biological features essential for the conservation of
diamond darter. The scale of the maps we prepared under the parameters
for publication within the Code of Federal Regulations may not reflect
the exclusion of such developed lands. Any such lands inadvertently
left inside critical habitat boundaries shown on the maps of this
proposed rule have been excluded by text in the proposed rule and are
not proposed for designation as critical habitat. Therefore, if the
critical habitat is finalized as proposed, a Federal action involving
these lands would not trigger section 7 consultation with respect to
critical habitat and the requirement of no adverse modification, unless
the specific action would affect the physical or biological features in
the adjacent critical habitat. The designation of critical habitat does
not imply that lands or streams outside of critical habitat do not play
an important role in the conservation of the diamond darter.
We are proposing for designation of critical habitat lands and
waters that we have determined are occupied at the time of listing and
contain sufficient elements of physical or biological features to
support life-history processes essential tor the conservation of the
species and that may require special management considerations. This
area of the Elk River in West Virginia is identified as Unit 1. We are
also proposing to designate lands and waters outside of the
geographical area occupied at the time of listing that we have
determined are essential for the conservation of the diamond darter.
This area of the Green River in Kentucky is identified as Unit 2. The
two proposed units contain sufficient (more than one, but not all)
elements of physical and biological features (PBFs) present to support
diamond darter life-history processes, but may require special
management considerations or protection to achieve the presence of all
the identified PBFs.
The critical habitat designation is defined by the map or maps, as
modified by any accompanying regulatory text, presented at the end of
this document in the rule portion. We include more detailed information
on the boundaries of the critical habitat designation in the preamble
of this document. We will make the coordinates or plot points or both
on which each map is based available to the public on http://www.regulations.gov at Docket No. FWS-R5-ES-2012-0045, on our Internet
site at http://www.fws.gov/westvirginiafieldoffice/index.html, and at
the field office responsible for the designation (see FOR FURTHER
INFORMATION CONTACT above).
Proposed Critical Habitat Designation
We are proposing two units as critical habitat for the diamond
darter. The critical habitat areas we describe below constitute our
current best assessment of areas that meet the definition of critical
habitat for the diamond darter. The areas we propose as critical
habitat are: (1) The lower Elk River; and (2) the Green River. Table 2
shows the occupancy of the units and ownership of the proposed
designated areas for the diamond darter.
Table 2--Occupancy and Ownership of Proposed Diamond Darter Critical Habitat Units
--------------------------------------------------------------------------------------------------------------------------------------------------------
Federal, State,
or other public Private Total length km
Unit Location Occupied? ownership km ownership km (mi)
(mi) (mi)
--------------------------------------------------------------------------------------------------------------------------------------------------------
1....................................... Lower Elk River............ yes........................ 45.0 * (28.0) none 45.0 (28.0)
2....................................... Green River................ no......................... 16.3 (10.1) 135.8 (84.4) 152.1 (94.5)
[[Page 43930]]
Total **............................ ........................... ........................... ................ ................ 197.1 (122.5)
--------------------------------------------------------------------------------------------------------------------------------------------------------
* As described below, this includes a combination of State ownership and easements. The State considers the easement area under their jurisdiction. This
is the best information available to us for calculating river mile ownership in the Elk River. Therefore, we have included this habitat under public
ownership.
** Totals may not sum due to rounding.
We present brief descriptions of each unit and reasons why each
unit meets the definition of critical habitat below. The critical
habitat units include the stream channels of the rivers within the
ordinary high-water line. As defined in 33 CFR 329.11, the ordinary
high-water line on nontidal rivers is the line on the shore established
by the fluctuations of water and indicated by physical characteristics
such as a clear, natural water line impressed on the bank; changes in
the character of soil; destruction of terrestrial vegetation; the
presence of litter and debris; or other appropriate means that consider
the characteristics of the surrounding areas. In West Virginia, the
State owns the bed and banks of streams between the ordinary low-water
marks, and is vested with a public easement between the ordinary low-
water and high-water marks (George 1998, p. 461). The water is also
under State jurisdiction (WVSC Sec. 22-26-3). In Kentucky, landowners
own the land under streams (e.g., the stream channel or bottom) in the
designated unit, but the water is under State jurisdiction.
Unit 1: Lower Elk River, Kanawha and Clay Counties, West Virginia
Unit 1 represents the habitat supporting the only remaining
occupied diamond darter population. This population could provide a
source to repopulate other areas within the diamond darter's historical
range. Unit 1 includes 45.0 km (28.0 mi) of the Elk River from the
confluence with King Shoals Run near Wallback Wildlife Management Area
downstream to the confluence with an unnamed tributary entering the Elk
River on the right descending bank adjacent to Knollwood Drive in
Charleston, West Virginia. As described above, all of the habitat
within this unit is under public control or ownership (see Table 1
above). The State of West Virginia owns or has a public easement on the
streambed and banks of the Elk River up to the ordinary high-water mark
(George 1998, p. 461). The water is also publically owned. The majority
of lands adjacent to this unit are privately owned. There are two areas
of public land within the watershed: The 3,996-ha (9,874-ac) Morris
Creek Wildlife Management Area, which is leased and managed by the
WVDNR (2007, p. 9), and Coonskin Park, an approximately 405-ha (1,000-
ac) park owned by Kanawha County (Kanawha County Parks and Recreation
2008, p. 1).
Live diamond darters have been documented at four sites within this
unit, including at sites near Clendenin, Mink Shoals, Reamer Hill, and
between Broad Run and Burke Branch. This unit contains space for
individual and population growth and for normal behavior; food, water,
air, light, minerals, or other nutritional or physiological
requirements; cover or shelter; and sites for breeding, reproduction,
or rearing (or development) of offspring, and is essential to the
conservation of the species. Diamond darter habitat assessments have
documented that this reach of the Elk River contains 28 riffle-pool
transition areas with moderate currents and sand and gravel substrates
that are suitable for the diamond darter (PCEs 1 and 2) (Osier 2005, p.
34). There is connectivity between these habitats to provide access to
various spawning, foraging, and resting sites and promote gene flow
(PCE 1). This reach of the Elk River also has a natural flow regime
that is relatively unimpeded by impoundment (PCE 3), and has healthy
benthic macroinvertebrate populations (PCE 5) (WVDEP 1997, pp. 20-89).
However, water quality within this unit is impaired due to high levels
of fecal coliform bacteria and iron (PCE 4) (WVDEP 2010, p. 16).
Within this unit, the diamond darter and its habitat may require
special management considerations or protection to address threats from
resource extraction (coal mining, timber harvests, natural gas and oil
development activities); impoundment; water diversion or withdrawals;
construction and maintenance projects; stream bottom disturbance from
sewer, gas, and water line crossings; lack of adequate riparian
buffers; sewage discharges, and nonpoint-source pollution. Special
management to address water quality degradation is particularly
important since prolonged water quality impairments can also affect the
availability of relatively silt-free sand and gravel substrates (PCE 2)
and healthy populations of fish larvae and benthic invertebrates that
provide a prey base for the diamond darter (PCE 5).
Unit 2: Green River, Edmonson, Hart, and Green Counties, Kentucky
Unit 2 represents the best remaining historically occupied habitat
for future diamond darter reintroductions that will improve the
species' redundancy, resiliency, and representation essential for its
conservation. Unit 2 includes 152.1 km (94.5 mi) of the Green River
from Roachville Ford near Greensburg (River Mile 294.8) downstream to
the end of Cave Island in Mammoth Cave National Park (NP) (River Mile
200.3). Approximately 16.3 km (10.1 mi) of this unit is publically
owned (see Table 1 above) and is contained within the 20,750-ha
(51,274.1-ac) Mammoth Cave NP. The remainder of the unit, 135.8 km
(84.4 mi), is privately owned. With the exception of the lands owned by
Mammoth Cave NP, the lands within the Green River watershed are also
privately owned. Through the U.S. Department of Agriculture's (USDA)
Conservation Reserve Program (CRP) and other conservation programs, the
Nature Conservancy owns or has easements on approximately 794.4 ha
(1,962.9 ac) within the watershed, either adjacent to or in close
proximity to the river. In addition, Western Kentucky University owns
or manages 1,300 ac (526.1 ha) along the Green River in Hart County as
part of the Upper Green River Biological Preserve (Western Kentucky
University 2012, p. 1). In Kentucky, landowners own the land under
streams (e.g., the stream channel or bottom) in the designated units,
but the water is under State jurisdiction.
This unit is within the historical range of the species, but is not
currently considered occupied. Between 1890 and 1929, diamond darters
were recorded from three locations within this unit: Adjacent to Cave
Island in Edmonson
[[Page 43931]]
County, and near Price Hole and Greensburg, in Green County.
The Green River is a seventh-order warmwater stream with a total
drainage area of 23,879.7 km\2\ (9,220 mi\2\). The largely free-flowing
160.3-km (100-mile) section of the Green River from the Green River Dam
downstream to its confluence with the Nolin River in Mammoth Cave NP is
among the most significant aquatic systems in the United States in
terms of aquatic species diversity and endemism and supports over 150
species of fish and 70 species of freshwater mussels, including 7
federally endangered mussel species, but no designated critical habitat
(Thomas et al. 2004, p. 5; USDA 2006, p.16). Populations of fish
species that have similar habitat preferences as the diamond darter,
such as the shoal chub and streamline chub are present throughout this
reach (Thomas 2012, p. 1).
The entire reach of the Green River within this unit is designated
by Kentucky as both Outstanding State Resource Waters and Exceptional
Waters. Outstanding State Resource Waters are those surface waters
designated by the Energy and Environment Cabinet as containing
federally threatened and endangered species. Exceptional Waters are
waterbodies whose quality exceeds that necessary to support propagation
of fish, shellfish, wildlife, and recreation. These waters support
excellent fish and macroinvertebrate communities (KYEEC 2012, p. 1).
The entire reach of the river within Mammoth Cave NP, including the
16.3 km (10.1 mi) that are proposed as critical habitat, is also
designated as a Kentucky Wild River. These rivers have exceptional
quality and aesthetic character and are designated by the State General
Assembly in recognition of their unspoiled character, outstanding water
quality, and natural characteristics (KYEEC 2012, p. 1). Each Wild
River is actually a linear corridor encompassing all visible land on
each side of the river up to a distance of 609.6 m (2,000 ft). In order
to protect their features and quality, land-use changes are regulated
by a permit system, and certain highly destructive land-use changes,
such as strip mining and clear-cutting, are prohibited within corridor
boundaries (KYEEC 2012, p.1).
As described in the Criteria Used to Identify Critical Habitat
section above, the inclusion of unoccupied areas is essential for the
conservation of the diamond darter because it will provide currently
suitable habitat for a population reintroduction that will allow
expansion of diamond darter populations into historically occupied
habitat adding to the species' redundancy, resiliency, and
representation. In addition, this reach of the Green River is a
moderate-to-large warmwater stream with a series of connected riffle-
pool complexes that is unaffected by impoundment (PCEs 1 and 3). The
reach has good water quality and supports fish species that have
similar habitat requirements including clean sand and gravel
substrates, low levels of siltation, and healthy benthic
macroinvertebrate populations for prey items (PCEs 2, 3, and 4).
The reach of the Green River being proposed as critical habitat is
the focus of many ongoing conservation efforts. The Nature Conservancy
has designated this area as the Green River Bioreserve (Thomas et al.
2004, p. 5) and the Kentucky Department of Fish and Wildlife Resources
identified this portion of the Green River as a Priority Conservation
Area in their Comprehensive Wildlife Conservation Strategy (USDA 2006,
p. 35). Since 2001, more than 40,568.6 ha (100,000 ac) within the
watershed have been enrolled in CRP (USDA 2010, p. 3). The goal of this
program is to work with private landowners to greatly reduce sediments,
nutrients, pesticides, and pathogens from agricultural sources that
could have an adverse effect on the health of the Green River system
(USDA 2006, p. 16). These organizations along with the Service, Western
Kentucky University, Kentucky State University, the ACOE, private
landowners, and other partners are also working towards conserving
natural resources in this watershed by restoring riparian buffers,
constructing fences to keep livestock out of the river, managing dam
operations at the Green River Reservoir to more closely mimic natural
discharges, and conducting long-term ecological research on fish and
invertebrates (Hensley 2012, p. 1; TNC 2012, p. 1; WKU 2012, p.1). The
feasibility of removing Lock and Dam 6 has also been
evaluated, but no decision on this proposal has been made yet (Olson
2006, pp. 295-297).
Land use within this watershed is primarily agricultural or
forested. There is also some oil and gas development within the
watershed. Management may be needed to address resource extraction
(timber harvests, natural gas and oil development activities); water
discharges or withdrawals; construction and maintenance projects;
stream bottom disturbance from sewer, gas, and water line crossings;
lack of adequate riparian buffers; sedimentation, sewage discharges,
and nonpoint-source pollution.
Effects of Critical Habitat Designation
Section 7 Consultation
Section 7(a)(2) of the Act requires Federal agencies, including the
Service, to ensure that any action they fund, authorize, or carry out
is not likely to jeopardize the continued existence of any endangered
species or threatened species or result in the destruction or adverse
modification of designated critical habitat of such species. In
addition, section 7(a)(4) of the Act requires Federal agencies to
confer with the Service on any agency action that 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
proposed critical habitat.
Decisions by the 5th and 9th Circuit Courts of Appeals have
invalidated our regulatory definition of ``destruction or adverse
modification'' (50 CFR 402.02) (see Gifford Pinchot Task Force v. U.S.
Fish and Wildlife Service, 378 F. 3d 1059 (9th Cir. 2004) and Sierra
Club v. U.S. Fish and Wildlife Service et al., 245 F.3d 434, 442 (5th
Cir. 2001)), and we do not rely on this regulatory definition when
analyzing whether an action is likely to destroy or adversely modify
critical habitat. Under the statutory provisions of the Act, we
determine destruction or adverse modification on the basis of whether,
with implementation of the proposed Federal action, the affected
critical habitat would continue to serve its intended conservation role
for the species.
If a Federal action may affect a listed species or its critical
habitat, the responsible Federal agency (action agency) must enter into
consultation with us. Examples of actions that are subject to the
section 7 consultation process are actions on state, tribal, local, or
private lands that require a Federal permit (such as a permit from the
ACOE under section 404 of the Clean Water Act (33 U.S.C. 1251 et seq.)
or a permit from the Service under section 10 of the Endangered Species
Act) or that involve some other Federal action (such as funding from
the Federal Highway Administration, Federal Aviation 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 federally funded or authorized do not
require section 7 consultation.
As a result of section 7 consultation, we document compliance with
the requirements of section 7(a)(2) through our issuance of:
(1) A concurrence letter for Federal actions that may affect, but
are not
[[Page 43932]]
likely to adversely affect, listed species or critical habitat; or
(2) A biological opinion for Federal actions that may affect and
are likely to adversely affect, listed species or critical habitat.
When we issue a biological opinion concluding that a project is
likely to jeopardize the continued existence of a listed species and/or
destroy or adversely modify critical habitat, we provide reasonable and
prudent alternatives to the project, if any are identifiable, that
would avoid the likelihood of jeopardy and/or destruction or adverse
modification of critical habitat. We define ``reasonable and prudent
alternatives'' (at 50 CFR 402.02) as alternative actions identified
during consultation that:
(1) Can be implemented in a manner consistent with the intended
purpose of the action;
(2) Can be implemented consistent with the scope of the Federal
agency's legal authority and jurisdiction;
(3) Are economically and technologically feasible; and
(4) Would, in the Director's opinion, avoid the likelihood of
jeopardizing the continued existence of the listed species and/or avoid
the likelihood of destroying or adversely modifying critical habitat.
Reasonable and prudent alternatives can vary from slight project
modifications to extensive redesign or relocation of the project. Costs
associated with implementing a reasonable and prudent alternative are
similarly variable.
Regulations at 50 CFR 402.16 require Federal agencies to reinitiate
consultation on previously reviewed actions in instances where we have
listed a new species or subsequently designated critical habitat that
may be affected and the Federal agency has retained discretionary
involvement or control over the action (or the agency's discretionary
involvement or control is authorized by law). Consequently, Federal
agencies sometimes may need to request reinitiation of consultation
with us on actions for which formal consultation has been completed, if
those actions with discretionary involvement or control may affect
subsequently listed species or designated critical habitat.
Application of the ``Adverse Modification'' Standard
The key factor related to the adverse modification determination is
whether, with implementation of the proposed Federal action, the
affected critical habitat would continue to serve its intended
conservation role for the species. Activities that may destroy or
adversely modify critical habitat are those that alter the physical or
biological features to an extent that appreciably reduces the
conservation value of critical habitat for the diamond darter. As
discussed above, the role of critical habitat is to support life-
history needs of the species and provide for the conservation of the
species.
Section 4(b)(8) of the Act requires us to briefly evaluate and
describe, in any proposed or final regulation that designates critical
habitat, activities involving a Federal action that may destroy or
adversely modify such habitat, or that may be affected by such
designation.
Activities that may affect critical habitat, when carried out,
funded, or authorized by a Federal agency, should result in
consultation for the diamond darter. These activities include, but are
not limited to:
(1) Actions that would alter the geomorphology of stream habitats.
Such activities could include, but are not limited to, instream
excavation or dredging, impoundment, channelization, removal of
riparian vegetation, road and bridge construction, discharge of mine
waste or spoil, and other discharges of fill materials. These
activities could cause aggradation or degradation of the channel bed
elevation or significant bank erosion, result in entrainment or burial
of these fishes, and cause other direct or cumulative adverse effects
to the species.
(2) Actions that would significantly alter the existing flow regime
or water quantity. Such activities could include, but are not limited
to, impoundment, water diversion, water withdrawal, and hydropower
generation. These activities could eliminate or reduce the habitat
necessary for growth and reproduction of the diamond darter.
(3) Actions that would significantly alter water chemistry or water
quality (for example, dissolved oxygen, temperature, pH, contaminants,
and excess nutrients). Such activities could include, but are not
limited to, hydropower discharges or the release of chemicals,
biological pollutants, or toxic effluents into surface water or
connected groundwater at a point source or by dispersed release
(nonpoint source). These activities could alter water conditions beyond
the tolerances of these fish and result in direct or cumulative adverse
effects to the species.
(4) Actions that would significantly alter stream bed material
composition and quality by increasing sediment deposition or
embeddedness. Such activities could include, but are not limited to,
certain construction projects, oil and gas development, mining, timber
harvest, and other watershed and floodplain disturbances if they
release sediments or nutrients into the water. These activities could
eliminate or reduce habitats necessary for the growth and reproduction
of these fish by causing excessive sedimentation or nutrification.
Exemptions
Application of Section 4(a)(3) of the Act
The Sikes Act Improvement Act of 1997 (Sikes Act) (16 U.S.C. 670a)
required each military installation that includes land and water
suitable for the conservation and management of natural resources to
complete an integrated natural resources management plan (INRMP) by
November 17, 2001. An INRMP integrates implementation of the military
mission of the installation with stewardship of the natural resources
found on the base. Each INRMP includes:
(1) An assessment of the ecological needs on the installation,
including the need to provide for the conservation of listed species;
(2) A statement of goals and priorities;
(3) A detailed description of management actions to be implemented
to provide for these ecological needs; and
(4) A monitoring and adaptive management plan.
Among other things, each INRMP must, to the extent appropriate and
applicable, provide for fish and wildlife management; fish and wildlife
habitat enhancement or modification; wetland protection, enhancement,
and restoration where necessary to support fish and wildlife; and
enforcement of applicable natural resource laws.
The National Defense Authorization Act for Fiscal Year 2004 (Pub.
L. 108-136) amended the Act to limit areas eligible for designation as
critical habitat. Specifically, section 4(a)(3)(B)(i) of the Act (16
U.S.C. 1533(a)(3)(B)(i)) now provides: ``The Secretary [of the Interior
(Secretary)] shall not designate as critical habitat any lands or other
geographical areas owned or controlled by the Department of Defense, or
designated for its use, that are subject to an integrated natural
resources management plan prepared under section 101 of the Sikes Act
(16 U.S.C. 670a), if the Secretary determines in writing that such plan
provides a benefit to the species for which critical habitat is
proposed for designation.''
There are no Department of Defense (DOD) lands with a completed
INRMP
[[Page 43933]]
within the proposed critical habitat designation.
Exclusions
Application of Section 4(b)(2) of the Act
Section 4(b)(2) of the Act states that the Secretary shall
designate and make revisions to critical habitat on the basis of the
best available scientific data after taking into consideration the
economic impact, national security impact, and any other relevant
impact of specifying any particular area as critical habitat. The
Secretary may exclude an area from critical habitat if he determines
that the benefits of such exclusion outweigh the benefits of specifying
such area as part of the critical habitat, unless he determines, based
on the best scientific data available, that the failure to designate
such area as critical habitat will result in the extinction of the
species. In making that determination, the statute on its face, as well
as the legislative history, are clear that the Secretary has broad
discretion regarding which factor(s) to use and how much weight to give
to any factor.
Under section 4(b)(2) of the Act, we may exclude an area from
designated critical habitat based on economic impacts, impacts on
national security, or any other relevant impacts. In considering
whether to exclude a particular area from the designation, we identify
the benefits of including the area in the designation, identify the
benefits of excluding the area from the designation, and evaluate
whether the benefits of exclusion outweigh the benefits of inclusion.
If the analysis indicates that the benefits of exclusion outweigh the
benefits of inclusion, the Secretary may exercise his discretion to
exclude the area only if such exclusion would not result in the
extinction of the species.
Exclusions Based on Economic Impacts
Under section 4(b)(2) of the Act, we consider the economic impacts
of specifying any particular area as critical habitat. In order to
consider economic impacts, we are preparing an analysis of the economic
impacts of the proposed critical habitat designation and related
factors.
We will announce the availability of the draft economic analysis as
soon as it is completed, at which time we will seek public review and
comment. At that time, copies of the draft economic analysis will be
available for downloading from the Internet at http://www.regulations.gov, or by contacting the West Virginia Ecological
Services Field Office directly (see FOR FURTHER INFORMATION CONTACT
section). During the development of a final designation, we will
consider economic impacts, public comments, and other new information,
and areas may be excluded from the final critical habitat designation
under section 4(b)(2) of the Act and our implementing regulations at 50
CFR 424.19.
Exclusion Based on National Security Impacts
Under section 4(b)(2) of the Act, we consider whether there are
lands owned or managed by the DOD where a national security impact
might exist. In preparing this proposal, we have determined that the
lands within the proposed designation of critical habitat for the
diamond darter are not owned or managed by the DOD, and therefore, we
anticipate no impact to national security.
Exclusions Based on Other Relevant Impacts
Under section 4(b)(2) of the Act, we consider any other relevant
impacts, in addition to economic impacts and impacts on national
security. We consider a number of factors including whether landowners
have developed any conservation plans or other management plans for the
area, or whether there are conservation partnerships that would be
encouraged by designation of, or exclusion of lands from, critical
habitat. In addition, we look at any tribal issues, and consider the
government-to-government relationship of the United States with tribal
entities. We also consider any social impacts that might occur because
of the designation.
In preparing this proposed rule, we have determined that there are
currently no conservation plans or other management plans for the
species, and the proposed designation does not include any tribal lands
or trust resources. We anticipate no impact to tribal lands,
partnerships, or management plans from this proposed critical habitat
designation.
Notwithstanding these decisions, as stated under ``Public
Comments'' above, we are seeking specific comments on whether any areas
we are proposing for designation should be excluded under section
4(b)(2) of the Act.
Peer Review
In accordance with our joint policy on peer review published in the
Federal Register on July 1, 1994 (59 FR 34270), we will seek the expert
opinions of at least three appropriate and independent specialists
regarding this proposed rule. The purpose of peer review is to ensure
that our critical habitat designation is based on scientifically sound
data, assumptions, and analyses. We will invite these peer reviewers to
comment during this public comment period on our specific assumptions
and conclusions in this proposed designation of critical habitat.
We will consider all comments and information received during this
comment period on this proposed rule during our preparation of a final
determination. Accordingly, the final decision may differ from this
proposal.
Public Hearings
Section 4(b)(5) of the Act provides for one or more public hearings
on this proposal, if requested. Requests must be received within 45
days after the date of publication of this proposed rule in the Federal
Register. Such requests must be sent to the West Virginia Ecological
Services Field Office (see FOR FURTHER INFORMATION CONTACT). We will
schedule public hearings on this proposal, if any are requested, and
announce the dates, times, and places of those hearings, as well as how
to obtain reasonable accommodations, in the Federal Register and local
newspapers at least 15 days before the hearing.
Required Determinations
Regulatory Planning and Review--Executive Orders 12866 and 13563
Executive Order 12866 provides that the Office of Information and
Regulatory Affairs (OIRA) in the Office of Management and Budget will
review all significant rules. The Office of Information and Regulatory
Affairs has determined that this rule is not significant.
Executive Order 13563 reaffirms the principles of E.O. 12866 while
calling for improvements in the nation's regulatory system to promote
predictability, to reduce uncertainty, and to use the best, most
innovative, and least burdensome tools for achieving regulatory ends.
The executive order directs agencies to consider regulatory approaches
that reduce burdens and maintain flexibility and freedom of choice for
the public where these approaches are relevant, feasible, and
consistent with regulatory objectives. E.O. 13563 emphasizes further
that regulations must be based on the best available science and that
the rulemaking process must allow for public participation and an open
exchange of ideas. We have developed this rule in a manner consistent
with these requirements.
[[Page 43934]]
Regulatory Flexibility Act (5 U.S.C. 601 et seq.)
Under the Regulatory Flexibility Act (RFA; 5 U.S.C. 601 et seq.) as
amended by the Small Business Regulatory Enforcement Fairness Act of
1996 (SBREFA; 5 U.S.C. 801 et seq.), whenever an agency is required to
publish a notice of rulemaking for any proposed or final rule, it must
prepare and make available for public comment a regulatory flexibility
analysis that describes the effects of the rule on small entities
(small businesses, small organizations, and small government
jurisdictions). However, no regulatory flexibility analysis is required
if the head of the agency certifies the rule will not have a
significant economic impact on a substantial number of small entities.
The SBREFA amended the RFA to require Federal agencies to provide a
certification statement of the factual basis for certifying that the
rule will not have a significant economic impact on a substantial
number of small entities.
According to the Small Business Administration, small entities
include small organizations such as independent nonprofit
organizations; small governmental jurisdictions, including school
boards and city and town governments that serve fewer than 50,000
residents; and small businesses (13 CFR 121.201). Small businesses
include such businesses as manufacturing and mining concerns with fewer
than 500 employees, wholesale trade entities with fewer than 100
employees, retail and service businesses with less than $5 million in
annual sales, general and heavy construction businesses with less than
$27.5 million in annual business, special trade contractors doing less
than $11.5 million in annual business, and forestry and logging
operations with fewer than 500 employees and annual business less than
$7 million. To determine whether small entities may be affected, we
will consider the types of activities that might trigger regulatory
impacts under this designation as well as types of project
modifications that may result. In general, the term ``significant
economic impact'' is meant to apply to a typical small business firm's
business operations.
Importantly, the incremental impacts of a rule must be both
significant and substantial to prevent certification of the rule under
the RFA and to require the preparation of an initial regulatory
flexibility analysis. If a substantial number of small entities are
affected by the proposed critical habitat designation, but the per-
entity economic impact is not significant, the Service may certify.
Likewise, if the per-entity economic impact is likely to be
significant, but the number of affected entities is not substantial,
the Service may also certify.
Under the RFA, as amended, and following recent court decisions,
Federal agencies are only required to evaluate the potential
incremental impacts of rulemaking on those entities directly regulated
by the rulemaking itself, and not the potential impacts to indirectly
affected entities. The regulatory mechanism through which critical
habitat protections are realized is section 7 of the Act, which
requires Federal agencies, in consultation with the Service, to ensure
that any action authorized, funded, or carried by the Agency is not
likely to adversely modify critical habitat. Therefore, only Federal
action agencies are directly subject to the specific regulatory
requirement (avoiding destruction and adverse modification) imposed by
critical habitat designation. Under these circumstances, it is our
position that only Federal action agencies will be directly regulated
by this designation. Therefore, because Federal agencies are not small
entities, the Service may certify that the proposed critical habitat
rule will not have a significant economic impact on a substantial
number of small entities.
We acknowledge, however, that in some cases, third-party proponents
of the action subject to permitting or funding may participate in a
section 7 consultation, and thus may be indirectly affected. We believe
it is good policy to assess these impacts if we have sufficient data
before us to complete the necessary analysis, whether or not this
analysis is strictly required by the RFA. While this regulation does
not directly regulate these entities, in our draft economic analysis we
will conduct a brief evaluation of the potential number of third
parties participating in consultations on an annual basis in order to
ensure a more complete examination of the incremental effects of this
proposed rule in the context of the RFA.
In conclusion, we believe that, based on our interpretation of
directly regulated entities under the RFA and relevant case law, this
designation of critical habitat will only directly regulate Federal
agencies, which are not by definition small business entities. And as
such, we certify that, if promulgated, this designation of critical
habitat would not have a significant economic impact on a substantial
number of small business entities. Therefore, an initial regulatory
flexibility analysis is not required. However, though not necessarily
required by the RFA, in our draft economic analysis for this proposal,
we will consider and evaluate the potential effects to third parties
that may be involved with consultations with Federal action agencies
related to this action.
Energy Supply, Distribution, or Use--Executive Order 13211
Executive Order 13211 (Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use) requires
agencies to prepare Statements of Energy Effects when undertaking
certain actions. We do not expect the designation of this proposed
critical habitat to significantly affect energy supplies, distribution,
or use.
Natural gas and oil exploration and development activities occur or
could potentially occur in both of the proposed critical habitat units
for the diamond darter. Both of the proposed units already support
other federally endangered species, and the Service is already actively
engaged in discussions with many gas companies to develop measures to
avoid impacts to these habitats. Oil and gas exploration and
development within the Green River unit is expected to be limited.
There are at least six existing gas pipelines crossing the Elk River
within the proposed unit, and others may be proposed in the future.
Development and compliance with voluntary BMPs and avoidance measures
such as the use of directional drilling or rerouting proposed
transmission lines would be expected to minimize impacts of natural gas
and oil exploration and development in the areas of proposed critical
habitat. These types of measures are already being implemented by some
oil and gas companies or other industries in the proposed units or in
other areas.
Coal mining occurs or could potentially occur in the Elk River
proposed critical habitat unit for the diamond darter. Incidental take
for listed species associated with surface coal mining activities is
currently covered under a programmatic, nonjeopardy biological opinion
between the Office of Surface Mining and the Service completed in 1996
(Service 1996, entire). The biological opinion covers existing,
proposed, and future endangered and threatened species that may be
affected by the implementation and administration of surface coal
mining programs under the Surface Mining Control and Reclamation Act of
1977. Through its analysis, the Service concluded that the proposed
action
[[Page 43935]]
(surface coal mining and reclamation activities) was not likely to
jeopardize the continued existence of any threatened, endangered, or
proposed species or result in adverse modification of designated or
proposed critical habitat.
Therefore, we do not believe this action is a significant energy
action, and no Statement of Energy Effects is required. However, we
will further evaluate this issue as we conduct our economic analysis,
and review and revise this assessment as warranted.
Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.)
In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501
et seq.), we make the following findings:
(1) This rule will not produce a Federal mandate. In general, a
Federal mandate is a provision in legislation, statute, or regulation
that would impose an enforceable duty upon state, local, or tribal
governments, or the private sector, and includes both ``Federal
intergovernmental mandates'' and ``Federal private sector mandates.''
These terms are defined in 2 U.S.C. 658(5)-(7). ``Federal
intergovernmental mandate'' includes a regulation that ``would impose
an enforceable duty upon state, local, or tribal governments'' with two
exceptions. It excludes ``a condition of Federal assistance.'' It also
excludes ``a duty arising from participation in a voluntary Federal
program,'' unless the regulation ``relates to a then-existing Federal
program under which $500,000,000 or more is provided annually to state,
local, and tribal governments under entitlement authority,'' if the
provision would ``increase the stringency of conditions of assistance''
or ``place caps upon, or otherwise decrease, the Federal Government's
responsibility to provide funding,'' and the state, local, or tribal
governments ``lack authority'' to adjust accordingly. At the time of
enactment, these entitlement programs were: Medicaid; Aid to Families
with Dependent Children work programs; Child Nutrition; Food Stamps;
Social Services Block Grants; Vocational Rehabilitation State Grants;
Foster Care, Adoption Assistance, and Independent Living; Family
Support Welfare Services; and Child Support Enforcement. ``Federal
private sector mandate'' includes a regulation that ``would impose an
enforceable duty upon the private sector, except (i) a condition of
Federal assistance or (ii) a duty arising from participation in a
voluntary Federal program.''
The designation of critical habitat does not impose a legally
binding duty on non-Federal Government entities or private parties.
Under the Act, the only regulatory effect is that Federal agencies must
ensure that their actions do not destroy or adversely modify critical
habitat under section 7. While non-Federal entities that receive
Federal funding, assistance, or permits, or that otherwise require
approval or authorization from a Federal agency for an action, may be
indirectly impacted by the designation of critical habitat, the legally
binding duty to avoid destruction or adverse modification of critical
habitat rests squarely on the Federal agency. Furthermore, to the
extent that non-Federal entities are indirectly impacted because they
receive Federal assistance or participate in a voluntary Federal aid
program, the Unfunded Mandates Reform Act would not apply, nor would
critical habitat shift the costs of the large entitlement programs
listed above onto state governments.
(2) We do not believe that this rule will significantly or uniquely
affect small governments. The diamond darter only occurs in navigable
waters within West Virginia in which the river bottom is owned by the
State of West Virginia. The adjacent upland properties are owned by
private entities. Within Kentucky, the lands being proposed for
critical habitat are mostly owned by private landowners; a small
portion is owned by Mammoth Cave National Park. None of these
government entities fit the definition of ``small governmental
jurisdiction.'' Small governments will be affected only to the extent
that any programs having Federal funds, permits, or other authorized
activities must ensure that their actions will not adversely affect the
critical habitat. As such, a Small Government Agency Plan is not
required. We will, however, further evaluate this issue as we conduct
our economic analysis and revise this assessment if appropriate.
Takings--Executive Order 12630
In accordance with Executive Order 12630 (Government Actions and
Interference with Constitutionally Protected Private Property Rights),
we have analyzed the potential takings implications of designating
critical habitat for the diamond darter in a takings implications
assessment. Critical habitat designation does not affect landowner
actions that do not require Federal funding or permits, nor does it
preclude development of habitat conservation programs or issuance of
incidental take permits to permit actions that do not require Federal
funding or permits to go forward. The takings implications assessment
concludes that this designation of critical habitat for the diamond
darter does not pose significant takings implications for lands within
or affected by the designation.
Federalism--Executive Order 13132
In accordance with Executive Order 13132 (Federalism), the rule
does not have significant Federalism effects. A Federalism assessment
is not required. In keeping with Department of the Interior and
Department of Commerce policy, we requested information from, and
coordinated development of this proposed critical habitat designation
with, appropriate State resource agencies in West Virginia and
Kentucky. The designation of critical habitat in areas currently
occupied by this fish may impose nominal additional regulatory
restrictions to those currently in place for other listed species and,
therefore, may have little incremental impact on state and local
governments and their activities. The designation may have some benefit
to these governments because the areas that contain the physical or
biological features essential to the conservation of the species are
more clearly defined, and the elements of the features of the habitat
necessary to the conservation of the species are specifically
identified. This information does not alter where and what federally
sponsored activities may occur. However, it may assist local
governments in long-range planning (rather than having them wait for
case-by-case section 7 consultations to occur).
Where state and local governments require approval or authorization
from a Federal agency for actions that may affect critical habitat,
consultation under section 7(a)(2) would be required. While non-Federal
entities that receive Federal funding, assistance, or permits, or that
otherwise require approval or authorization from a Federal agency for
an action, may be indirectly impacted by the designation of critical
habitat, the legally binding duty to avoid destruction or adverse
modification of critical habitat rests squarely on the Federal agency.
Civil Justice Reform--Executive Order 12988
In accordance with Executive Order (Order) 12988 (Civil Justice
Reform), the Office of the Solicitor has determined that the rule does
not unduly burden the judicial system and that it meets the
requirements of sections 3(a) and 3(b)(2) of the Order. We have
proposed designating critical habitat in accordance with the provisions
of the Act. This proposed rule uses standard
[[Page 43936]]
property descriptions and identifies the elements of physical or
biological features essential to the conservation of the diamond darter
within the designated areas to assist the public in understanding the
habitat needs of the species.
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.)
This rule does not contain any new collections of information that
require approval by OMB under the Paperwork Reduction Act of 1995 (44
U.S.C. 3501 et seq.). This rule will not impose recordkeeping or
reporting requirements on state or local governments, individuals,
businesses, or organizations. An agency may not conduct or sponsor, and
a person is not required to respond to, a collection of information
unless it displays a currently valid OMB control number.
National Environmental Policy Act (42 U.S.C. 4321 et seq.)
We have determined that environmental assessments and environmental
impact statements, as defined under the authority of the National
Environmental Policy Act (NEPA; 42 U.S.C. 4321 et seq.), need not be
prepared in connection with listing a species as endangered or
threatened under the Endangered Species Act. We published a notice
outlining our reasons for this determination in the Federal Register on
October 25, 1983 (48 FR 49244).
It is our position that, outside the jurisdiction of the U.S. Court
of Appeals for the Tenth Circuit, we do not need to prepare
environmental analyses pursuant to NEPA (42 U.S.C. 4321 et seq.) in
connection with designating critical habitat under the Act. We
published a notice outlining our reasons for this determination in the
Federal Register on October 25, 1983 (48 FR 49244). This position was
upheld by the U.S. Court of Appeals for the Ninth Circuit (Douglas
County v. Babbitt, 48 F.3d 1495 (9th Cir. 1995), cert. denied 516 U.S.
1042 (1996)).
Clarity of the Rule
We are required by Executive Orders 12866 and 12988 and by the
Presidential Memorandum of June 1, 1998, to write all rules in plain
language. This means that each rule we publish must:
(1) Be logically organized;
(2) Use the active voice to address readers directly;
(3) Use clear language rather than jargon;
(4) Be divided into short sections and sentences; and
(5) Use lists and tables wherever possible.
If you feel that we have not met these requirements, send us
comments by one of the methods listed in the ADDRESSES section. To
better help us revise 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.
Government-to-Government Relationship With Tribes
In accordance with the Presidential Memorandum of April 29, 1994
(Government-to-Government Relations with Native American Tribal
Governments; 59 FR 22951), Executive Order 13175 (Consultation and
Coordination With Indian Tribal Governments), and the Department of the
Interior's manual at 512 DM 2, we readily acknowledge our
responsibility to communicate meaningfully with recognized Federal
Tribes on a government-to-government basis. In accordance with
Secretarial Order 3206 of June 5, 1997 (American Indian Tribal Rights,
Federal-Tribal Trust Responsibilities, and the Endangered Species Act),
we readily acknowledge our responsibilities to work directly with
tribes in developing programs for healthy ecosystems, to acknowledge
that tribal lands are not subject to the same controls as Federal
public lands, to remain sensitive to Indian culture, and to make
information available to tribes.
We determined that there are no tribal lands that were occupied by
the diamond darter at the time of this proposal that contain the
features essential for conservation of the species, and no tribal lands
unoccupied by the diamond darter that are essential for the
conservation of the species. Therefore, we are not proposing to
designate critical habitat for the diamond darter on tribal lands.
References Cited
A complete list of references cited in this rulemaking is available
on the Internet at http://www.regulations.gov and upon request from the
West Virginia Field Office (see FOR FURTHER INFORMATION CONTACT).
Authors
The primary authors of this package are the staff members of the
West Virginia Field Office.
List of Subjects in 50 CFR Part 17
Endangered and threatened species, Exports, Imports, Reporting and
recordkeeping requirements, Transportation.
Proposed Regulation Promulgation
Accordingly, we propose to amend part 17, subchapter B of chapter
I, title 50 of the Code of Federal Regulations, as set forth below:
PART 17--[AMENDED]
1. The authority citation for part 17 continues to read as follows:
Authority: 16 U.S.C. 1361-1407; 16 U.S.C. 1531-1544; 16 U.S.C.
4201-4245; Pub. L. 99-625, 100 Stat. 3500; unless otherwise noted.
2. In Sec. 17.11(h) add the following to the List of Endangered
and Threatened in alphabetical order under FISHES:
Sec. 17.11 Endangered and threatened wildlife.
* * * * *
(h) * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
Species Vertebrate
------------------------------------------------------- population where Critical Special
Historic range endangered or Status When listed habitat rules
Common name Scientific name threatened
--------------------------------------------------------------------------------------------------------------------------------------------------------
* * * * * * *
Fishes
* * * * * * *
Darter, diamond.................. Crystallaria U.S.A. (OH, WV, KY, Entire............. E TBD 17.95(e) NA
cincotta. TN).
* * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
[[Page 43937]]
3. In Sec. 17.95, amend paragraph (e) by adding an entry for
``Diamond Darter (Crystallaria cincotta),'' in the same alphabetical
order that the species appears in the table at Sec. 17.11(h), to read
as follows:
Sec. 17.95 Critical habitat--fish and wildlife.
* * * * *
(e) Fishes.
* * * * *
Diamond Darter (Crystallaria cincotta)
(1) Critical habitat units are depicted for Kanawha and Clay
Counties, West Virginia, and Edmonson, Hart, and Green Counties,
Kentucky, on the maps below.
(2) Within these areas, the primary constituent elements of the
physical or biological features essential to the conservation of
diamond darter consist of five components:
(i) A series of connected riffle-pool complexes with moderate
velocities in moderate to large-sized (fourth to eighth order),
geomorphically stable streams within the Ohio River watershed.
(ii) Stable, undisturbed, bottom substrates composed of relatively
silt-free, unembedded sand and gravel.
(iii) An instream flow regime (magnitude, frequency, duration, and
seasonality of discharge over time) that is relatively unimpeded by
impoundment or diversions such that there is minimal departure from a
natural hydrograph.
(iv) Adequate water quality characterized by seasonally moderated
temperatures, high dissolved oxygen levels, and moderate pH, and low
levels of pollutants and siltation. Adequate water quality is defined
as the quality necessary for normal behavior, growth, and viability of
all life stages of the diamond darter.
(v) A prey base of other fish larvae and benthic invertebrates
including midge, caddisfly and mayfly larvae.
(3) Critical habitat does not include manmade structures (such as
buildings, aqueducts, runways, roads, and other paved areas) and the
land on which they are located existing within the legal boundaries on
the effective date of this rule.
(4) Critical habitat map units. Data layers defining map units were
created with USGS NHD GIS data. ESRI's ArcGIS 10.1 software was used to
determine longitude and latitude in decimal degrees for the river
reaches. The projection used in mapping was Universal Transverse
Mercator (UTM), NAD 83, Zone 16 North for the Green River, Kentucky,
unit; and UTM, NAD 83, Zone 17 North for the Elk River, West Virginia,
unit. The following data sources were referenced to identify features
used to delineate the upstream and downstream reaches of critical
habitat units: USGS 7.5' quadrangles and topographic maps, NHD data,
2005 National Inventory of Dams, Kentucky Land Stewardship data, pool
and shoal data on the Elk River, ESRI's Bing Maps Road. The maps in
this entry, as modified by any accompanying regulatory text, establish
the boundaries of the critical habitat designation. The coordinates or
plot points or both on which each map is based are available to the
public at the field office internet site (http://www.fws.gov/westvirginiafieldoffice/index.html), http://www.regulations.gov at
Docket No. FWS-R5-ES-2012-0045 and at the Service's West Virginia Field
Office. You may obtain field office location information by contacting
one of the Service regional offices, the addresses of which are listed
at 50 CFR 2.2.
(5) Note: Index map of critical habitat locations for the diamond
darter in West Virginia and Kentucky follows:
BILLING CODE 4310-55-P
[GRAPHIC] [TIFF OMITTED] TP26JY12.046
(6) Unit 1: Lower Elk River, Kanawha and Clay Counties, West
Virginia.
(i) Unit 1 includes 45.0 km (28.0 mi) of the Elk River from the
confluence with King Shoals Run near Wallback Wildlife Management Area
downstream to the confluence with an unnamed tributary entering the Elk
River on the right descending bank adjacent to Knollwood Drive in
Charleston, West Virginia.
(ii) Note: Map of Unit 1 (lower Elk River) follows:
[[Page 43938]]
[GRAPHIC] [TIFF OMITTED] TP26JY12.047
(7) Unit 2: Green River, Edmonson, Hart, and Green Counties,
Kentucky.
(i) Unit 2 includes 152.1 km (94.5 mi) of the Green River from
Roachville Ford near Greensburg (River Mile 294.8) downstream to the
downstream end of Cave Island in Mammoth Cave National Park (River Mile
200.3).
(ii) Note: Map of Unit 2 (Green River) follows:
[GRAPHIC] [TIFF OMITTED] TP26JY12.048
[[Page 43939]]
* * * * *
Dated: July 13, 2012.
Michael Bean,
Acting Assistant Secretary for Fish and Wildlife and Parks.
* * * * *
[FR Doc. 2012-17950 Filed 7-25-12; 8:45 am]
BILLING CODE 4310-55-C