[Federal Register Volume 78, Number 144 (Friday, July 26, 2013)]
[Rules and Regulations]
[Pages 45074-45095]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-17938]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
[Docket No. FWS-R5-ES-2012-0045; 4500030113]
RIN 1018-AY12
Endangered and Threatened Wildlife and Plants; Endangered Species
Status for Diamond Darter
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Final rule.
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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), determine
endangered species status under the Endangered Species Act of 1973
(Act), as amended, for diamond darter (Crystallaria cincotta), a fish
species from Kentucky, Indiana, Ohio, Tennessee, and West Virginia. The
effect of this regulation will be to add this species to the Lists of
Endangered and Threatened Wildlife.
DATES: This rule becomes effective August 26, 2013.
ADDRESSES: This final rule is available on the Internet at http://www.regulations.gov and at the West Virginia Field Office. Comments and
materials we received, as well as supporting documentation used in
preparing this rule, are available for public inspection at http://www.regulations.gov. All of the comments, materials, and documentation
that we considered in this rulemaking are available, by appointment,
during normal business hours at: 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.
FOR FURTHER INFORMATION CONTACT: John Schmidt, Acting Field Supervisor,
West Virginia Fish and Wildlife Office (see ADDRESSES section). If you
use a telecommunications device for the deaf (TDD), 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.
Listing a species as an endangered or threatened species can only be
completed by issuing a rule. We will also be finalizing a designation
of
[[Page 45075]]
critical habitat for the diamond darter under the Act in the near
future.
This rule will finalize the listing of the diamond darter
(Crystallaria cincotta) as an endangered species.
The basis for our action. Under the Act, we can determine that a
species is an endangered or threatened species based on any of five
factors: (A) The present or threatened destruction, modification, or
curtailment of its habitat or range; (B) Overutilization for
commercial, recreational, scientific, or educational purposes; (C)
Disease or predation; (D) The inadequacy of existing regulations; or
(E) 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 determined that the diamond darter is endangered
by water quality degradation; habitat loss; a small population size
that makes the species vulnerable to the effects of the spread of
invasive species; loss of genetic fitness; and catastrophic events,
such as toxic spills.
Peer review and public comment. We sought comments from independent
specialists to ensure that our designation is based on scientifically
sound data, assumptions, and analyses. We invited these peer reviewers
to comment on our listing proposal. We also considered all comments and
information received during the comment periods.
Previous Federal Actions
Please refer to the proposed listing rule for the diamond darter
(77 FR 43906, July 26, 2012) for a detailed description of previous
Federal actions concerning this species.
We will also finalize a designation of critical habitat for the
diamond darter under the Act in the near future.
Background
Please refer to the proposed listing rule for the diamond darter
(77 FR 43906, July 26, 2012) for a complete summary of the species'
information.
Summary of Biological Status and Threats
The diamond darter, a fish species in the perch family, 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
of West Virginia, 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).
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. The species is currently known to
exist only within the lower Elk River in Kanawha and Clay Counties,
West Virginia, where it was rediscovered in 1980 (Cincotta and Hoeft
1987, p. 133), 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 has not been collected since 1899 in Ohio, 1929 in
Kentucky, and 1939 in Tennessee (Grandmaison et al. 2003, p. 6).
Despite extensive surveys using multiple gear types, including many
specifically targeting the diamond darter, no diamond darters have been
found anywhere besides the Elk River, West Virginia, in more than 70
years. The diamond darter has been extirpated from most of its
historical range, and is currently known to occur only within a single
reach of the Elk River in West Virginia. Extirpation from these
historical habitats likely resulted from a progression of habitat
degradation and subsequent reductions in fish populations; this started
with a significant increase in siltation due to land use changes
beginning in the mid 1800s and continuing into the early 1900s,
followed by water quality degradation associated with increases in
sewage, industrial discharges, and mining effluents entering the water,
and then finally the impoundment of rivers that inundated riffle
habitat and further increased the amount of siltation (Preston and
White 1978, pp. 2-4; Trautman 1981, pp. 21-29; Pearson and Pearson
1989, pp. 181-184). The combination of these factors, culminating in
the impoundment of rivers, likely led to population reductions and then
eventual extirpations of the diamond darter from historical habitats.
A number of factors have likely allowed the Elk River to continue
to support this species. The Elk River watershed is dominated by steep,
relatively inaccessible terrain. As a result, the area was not easy to
settle or develop, and large-scale land use changes, industrial
development, and human population increases, along with the resultant
siltation and reductions in water quality, did not begin in this area
until much later and were much less pervasive than in many other
portions of the species' range (Northern and Southern West Virginia
Railroad Company 1873, pp. 9-32; Brooks 1910, p. 1; West Virginia
Agricultural Experiment Station 1937, p. 1; Trautman 1981, pp. 13-35;
Strager 2008, p. 9). In addition, the Elk River is located adjacent to
the main Appalachian Plateau, with steep valleys and underlying porous
soils. This allows for the absorption of a considerable portion of
rainfall, which tends to retard runoff and maintain the flow of larger
streams in the watershed even in periods of low rainfall (Baloch et al.
1970, p. 3). Finally, the Elk River is still free flowing and largely
unimpounded for much of its length. These factors likely reduced the
duration and severity of historical water quality degradation and
siltation experienced in this watershed compared to other portions of
the species' range. Other species, such as the Western sand darter,
show a similar pattern to the diamond darter of extirpation in other
Ohio River watersheds, while retaining populations within the Elk River
(Cincotta and Welsh 2010, pp. 318-325).
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), but spawning likely occurs mid-April to
May, and larvae hatch within 7 to 9 days afterward (Ruble et al. 2010,
pp. 11-12). 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). The larva may drift downstream until they reach slower
water conditions such as pools, backwaters, or eddies (Lindquist and
Page 1984, p. 27). Darter larva may be poorly developed skeletally and
unable to hold position or swim upstream where stronger currents exist
(Lindquist and Page 1984, p. 27). It is not known how long diamond
darters or crystal darters remain in this pelagic phase, but the
pelagic phase of other darters adapted to larger rivers lasts for 15 to
30 days (Rakes 2013, p.
[[Page 45076]]
1). The duration of time that larvae drift in the current (the drift
interval) differs between species based on the size of the stream the
larvae use and the food that the larvae eat (Lindquist and Page 1984,
pp. 27-28). Species with smaller drift intervals may have reduced
genetic exchange as less mixing may occur between stocks in upstream
and downstream populations, and, therefore, they may be more
susceptible to genetic isolation (Lindquist and Page 1984, pp. 28-29).
Downstream movement of young during larval drift must be offset by
upstream migration of juveniles and adults, so species with longer
drift intervals likely undertake more extensive spawning migrations
than those without (Lindquist and Page 1984, p. 27). The life
expectancy and age of first reproduction of diamond darters is unknown
in the wild, but has been reported to range from two to four years,
although some authors have suggested the potential to live up to seven
years (Osier 2005, Simon and Wallus 2006). Individual diamond darters
have been maintained in captivity for 2 years.
Although there are currently insufficient data 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, bag seines, benthic trawls, and spotlights (Welsh et al. 2004,
p. 4; Welsh et al. 2012, 1-18). Starting in early 1990s, the timing of
sampling and specific methods used were targeted towards those shown to
be effective at capturing Crystallaria and 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 extensive and targeted survey efforts within the
species' known range and preferred habitat in the Elk River, fewer than
125 individuals have been collected in the more than 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). Over 80 percent of these collections occurred in the past
5 years. The increased capture rates in recent years are most likely a
direct result of more focused conservation efforts, including recent
research on the species' habitat requirements, coupled with the
availability of habitat maps for the entire Elk River, which has
allowed survey efforts to concentrate on specific areas of the Elk
River where diamond darters are most likely to be found. Also, the
development and use of new survey techniques that have a higher
detection rate for diamond darters have resulted in more comprehensive
surveys (Ruble 2011a, p. 1; West Virginia Division of Natural Resources
(WVDNR) 2012, p. 83; Welsh et al. 2012, pp. 8-10).
For example, previous research documented that diamond darters are
most likely to be captured in shoals and concentrate in these areas to
forage. In 2012, additional focused survey efforts were conducted in
selected shoals that had previously been mapped, and either had
previous diamond darter captures or appeared to be highly suitable
habitat for the species based on visual assessments (Ruble 2011a, p. 1;
Welsh et al. 2012, pp. 8-10). Habitat evaluations were conducted within
these shoals to refine the delineation areas that appeared to have the
most likely foraging habitat for the species; areas were then sampled
using survey techniques that have been most successful at locating
diamond darters (Welsh et al. 2012, pp. 1-18). Surveys were conducted
during low water conditions and during the time of night when diamond
darters were expected to be active and foraging, so that most diamond
darters present should be visible. Transects were spaced across the
surveyed areas so that the entire delineated habitat area was sampled
(Welsh et al. 2012, p. 9). Ten of the 28 shoals within the range of the
species were sampled. The number of diamond darters located at each
shoal ranged from 0 to 20. A total of 82 diamond darters were
documented. Four additional shoals located upstream of King Shoals,
outside the currently known range of the diamond darter, were also
sampled. No diamond darters were located in these upstream areas (Welsh
et al. p. 10). These recent numbers provide a sense of the potential
distribution and total abundance of the species present in the Elk
River in 1 year.
Summary of Comments and Recommendations
In the proposed rule to list the diamond darter as endangered and
designate critical habitat that published on July 26, 2012 (77 FR
43906), we requested that all interested parties submit written
comments by September 25, 2012. We also contacted appropriate Federal
and State agencies, scientific experts and organizations, and other
interested parties and invited them to comment on the proposal.
Newspaper notices inviting general public comment were published in the
Charleston Gazette and the Courier Journal, which in combination cover
all affected counties in West Virginia and Kentucky. We did not receive
any requests for a public hearing. The second comment period opened on
March 29, 2013, and closed on April 29, 2013 (78 FR 19172), and
requested comments on the proposed rule and a draft economic analysis
(DEA) prepared in support of the proposed critical habitat designation.
During the first comment period, we received 14 comment letters, 1
of which was a duplicate, from 13 individuals or entities directly
addressing the proposed listing of the diamond darter as endangered.
During the second comment period, we received 10 additional comment
letters, 1 of which bulk-submitted approximately 4,840 form letters,
from 9 individuals or entities. General, nonsubstantive comments of an
editorial nature were incorporated in the final rule as appropriate.
Substantive comments regarding the proposed listing are summarized and
addressed below. Comments addressing the proposed designation of
critical habitat and the associated DEA, rather than the proposed
listing, are discussed and addressed under a separate rulemaking
finalizing a designation of critical habitat for the diamond darter
under the Act, that we intend to publish in the near future.
Peer Reviewer Comments
In accordance with our peer review policy published on July 1, 1994
(59 FR 34270), we solicited expert opinion from five knowledgeable
individuals with scientific expertise on the diamond darter and its
habitat, biological needs, and threats. We received individual
responses from three of the peer reviewers. One peer reviewer's
response was incorporated into comments submitted by his employer, the
WVDNR. Those comments are addressed under Comments from States.
We reviewed all comments received from the peer reviewers for
substantive issues and new information regarding the listing of the
diamond darter. The peer reviewers all generally concurred with our
conclusions and provided supporting information on the taxonomy,
distribution, and threats described in the proposed rule. Two peer
reviewers explicitly concurred that threats to the only remaining
population of the diamond darter in the Elk River, West Virginia, were
accurately
[[Page 45077]]
described, and that scientific evidence supported listing the species
as endangered. One peer reviewer also commented about the similarities
between the diamond darter and the only other species in the genus, the
crystal darter, and described how that species has also been extirpated
from much of its historic range. Minor edits as a result of these peer
reviewer comments were incorporated into the final rule as appropriate.
We received one additional substantive comment as described below.
(1) Comment: The extent of potential larval drift should be
considered when describing potential diamond darter distribution.
Additional research is needed to determine how far larval drift occurs
and what larvae are eating in the wild.
Our Response: We concur that it is important to consider
requirements of larval life stages and the potential for larval drift.
We have added information to the life history section about potential
larval movements. We also concur that additional species-specific
research on this topic is needed so we can more accurately describe the
life history of this species. However, the Act requires that the
Secretary shall make determinations solely on the basis of the best
available scientific and commercial data available. Because further
information about the diamond darter's larval stage is not available
and the current data supports our endangered status determination for
the species, we have determined that larval drift information is not
required to finalize the listing of the diamond darter.
Federal Agency Comments
The only Federal agency comments we received were from the Natural
Resources Conservation Service (NRCS). The NRCS submitted comment
letters during each of the two comment periods.
(2) Comment: The NRCS acknowledged its responsibility under section
7(a)(1) of the Act to conserve listed species and its numerous programs
that focus on aquatic restoration that could benefit the diamond
darter. The agency indicated a willingness to work with us to
concentrate implementation of its programs in the areas that support
the diamond darter. The agency also indicated that it has already
incorporated programmatic measures to ensure many of its activities
avoid adverse effects to the diamond darter and include implementation
of species-specific conservation measures. The agency recommended that
the Service work with the NRCS to update these programmatic agreements
and develop mutually acceptable avoidance measures and beneficial
practices for the diamond darter. The programmatic approach will reduce
regulatory burdens on landowners who are working with the NRCS and will
expedite conservation of the species.
Our Response: The Service concurs that the NRCS has acted
proactively to protect the diamond darter and other sensitive aquatic
species and that the NRCS has many programs that can benefit this
species. We appreciate its support and recognize that partnerships are
essential for the conservation of the diamond darter and other
federally listed or imperiled species. We fully support developing and
updating programmatic approaches to recover this species and look
forward to continued work with the NRCS.
Comments From States
Section 4(i) of the Act states, ``the Secretary shall submit to the
State agency a written justification for his failure to adopt
regulations consistent with the agency's comments or petition.'' We
received comments from two State agencies, the WVDNR and the West
Virginia Department of Environmental Protection (WVDEP). Comments
received from the State agencies are summarized below, followed by our
responses to their additional substantive comments.
The WVDNR concurred with the proposed designation and stated that
the Service has ``conclusively substantiated that the only known
population of this species . . . is vulnerable to destruction,
modification, or curtailment of its habitat or range, and is without
adequate existing regulations to assist its continued survival.'' The
agency further stated that the Service has provided an ``overwhelming
amount of data'' that the species meets the criteria for endangered
status, and that the only known population of this species could be
extirpated by a single adverse event or from chronic pollution or
sedimentation. The agency provided additional comments supportive of
our description of the species' taxonomy, and of our descriptions of
habitats used by the species.
The WVDNR agreed with our assessment of the threats to the species'
habitat and range as listed under the Summary of Factors Affecting the
Species--Factor A, including sedimentation, mining, and oil and gas
development. The agency stated that the documentation provided
demonstrates conclusively that the threats described may either
independently or cumulatively impact the existence of the diamond
darter in the Elk River. The agency particularly noted the threats
associated with sedimentation, and described it as one of the most
underrated impacts to aquatic environments in the State. The agency
suggested that increased inspections and enforcement of regulations at
mining, gas, and forestry sites to control sedimentation within the Elk
River watershed should occur. The WVDNR concurred that there were no
major threats associated with overutilization or disease or predation
as described under the Summary of Factors Affecting the Species--
Factors B and C, respectively, but expressed a willingness to develop
additional protections for this species through the West Virginia
scientific collecting or fishing permit process, if this is deemed
necessary. In regard to Factor D, the WVDNR concurred that existing
regulatory mechanisms are often vague and are not directly applicable
to the needs of the diamond darter. Existing laws such as the Clean
Water Act, Surface Mining Control and Reclamation Act, and State
natural resource laws may indirectly mitigate threats, but protections
under the Act may be necessary to provide for the continued maintenance
and preservation of the last remaining population. Finally, the WVDNR
expressed a willingness to work with us on developing a recovery plan.
The WVDEP concurred that the diamond darter's small remaining
population is susceptible to the effects of diminished genetic
variability and invasive species such as Didymosphenia geminate, but
questioned the significance of various threats to the species, as well
as our description of embeddedness and sedimentation in relation to the
species' habitat requirements. A summary of additional substantive
comments received from State agencies and our responses are provided
below.
(3) Comment: The WVDNR does not concur with Woolman (1892) that the
diamond darter was probably always uncommon throughout its range.
Rather, based on recent sampling efforts, the WVDNR suggested that the
species is evasive to standard collecting methods that were common
during Woolman's time period. The agency, therefore, concurs with
Trautman (1981) that the species was probably common before 1900 and
suggests that diamond darter populations must be of a certain size
before their presence can be detected with traditional collecting
methods. The agency submits that the diamond darter was first detected
in the Elk River in the 1980s because the diamond darter
[[Page 45078]]
population had increased in response to water quality improvements
resulting from environmental regulations enacted in the late 1970s. The
agency provided additional data regarding similar population increases
seen in other fish in the Ohio, Monongahela, Kanawha, and Little
Kanawha Rivers.
Our Response: We have reexamined the original text from Woolman
(1892, pp. 249-288). His statement about the species being ``not widely
distributed, nor common anywhere'' appears to refer specifically to the
results of his surveys within selected streams in Kentucky, and does
not apply to the species' entire range. Woolman does not provide
detailed descriptions of the methods used during his collection, but
based on references to seines in several places of the document, and
the description of the conditions experienced at sampling sites, it
appears his collections were made during the day using seines. Based on
our review of recent captures and survey techniques used and the
biology of the species, we concur that diamond darters are not likely
to be frequently captured by the sampling techniques used by Woolman.
In addition, Woolman captured multiple diamond darters with relatively
little effort (time spent sampling) while conducting surveys using
seine nets during the day when the species is likely to be buried in
the sand. Woolman's sampling method is in comparison to the level of
effort recently required to collect multiple diamond darters using
seine nets at night when the species is likely more active and not
buried in the sand. This discrepancy in sampling methodology would
indicate that diamond darters were likely more abundant and thus more
likely to be captured, during the time of Woolman's sampling. It
therefore seems reasonable and logical to infer that diamond darters
were historically more widespread and abundant than would be indicated
by the results of surveys conducted by Woolman and others of his time
period who were using methods now known to be not well suited to
documenting the species and during times of day when the species is
less likely to be active.
It is also reasonable to assume that water quality improvements
since the late 1970s may have had a positive effect on diamond darter
populations, similar to the effect on populations of other fish
species. In addition to the data cited by the WVDNR, surveys on the
Ohio River mainstem between 1957 and 2001 documented a general
improvement in abundance and diversity of fish populations over that
time. Of the 56 species whose population trends could be analyzed, 35
(62 percent) showed an increase (Thomas et al. 2004, p. 436). In
addition, 11 out of 13 fish species listed as of special concern,
threatened, or endangered by one or more of the Ohio River border
States showed population increases (Thomas et al. 2004, p. 439). These
improvements were attributed to improved water quality in the Ohio
River mainstem and its tributaries (Pearson and Pearson 1989, p. 186;
Thomas et al. 2004, pp. 440-442). This may be one factor that allowed
the diamond darter to be detected in the Elk River in the late 1980s.
Another factor may be that, before the 1950s, the West Virginia fish
fauna were poorly sampled due to difficult terrain and limited roads,
so few surveys took place historically in the Elk River and other
relatively inaccessible West Virginia watersheds, while there are more
extensive records from watersheds in other States that were more
accessible and, thus, more frequently sampled (Cincotta and Welsh 2010,
p. 323).
Therefore, we concur that the diamond darter was likely more
abundant and widespread than may be indicated by historical surveys,
and also may have responded positively to previous water quality
improvements. However, we lack empirical data on which to base
historical estimates of population or distribution beyond the actual
results of collections as described in the Species Distribution and
Status section of the proposed listing rule, and we cannot speculate on
historical distribution or actual historical abundances of the diamond
darter in those areas, including in the Elk River. Current survey
methods using multiple gear types, or using methods targeted toward
capturing the diamond darter, provide a more accurate indication of the
current potential abundance and distribution of the species.
(4) Comment: The WVDNR commented that the only record for the
Western sand darter in the State is from the same area as the diamond
darter, and that the Western sand darter shares a pattern of
extirpation within Ohio River drainages similar to that seen in the
diamond darter. The Elk River likely functioned as a refugium for these
two species because of the fairly large size of the watershed, the
free-flowing nature of much of the Elk River, and its position adjacent
to the montane, high-gradient flows of the main Appalachian Plateau,
all of which kept the habitats sufficiently clean.
Our Response: We concur that these factors allowed the Elk River to
serve as a refugium for many aquatic species, including both the
diamond darter and the Western sand darter. Of the watersheds that
either currently or were historically known to support the species, the
Elk River is unique in having this combination of factors, and this
combination of factors likely allowed this river to continue to support
these species despite historical perturbations. Cincotta and Welsh
(2010, pp. 318-325) provide additional documentation of the Western
sand darter's similar pattern of historical rangewide distribution and
extirpation, as well as subsequent rediscovery in the Elk River in the
mid-1980s. We have added a discussion in the final rule about
additional factors that may have allowed the Elk River to retain
populations of the diamond darter, and referenced similar trends in
distribution and abundance seen in the Western sand darter.
(5) Comment: The WVDEP suggests that the primary and most direct
cause of the diamond darter's decline was from habitat loss and
population isolation associated with historical impoundment of streams
that the species inhabited, rather than water quality degradation or
inadequate regulatory mechanisms. The agency suggested that the diamond
darter likely has persisted in the Elk River because it is largely
unimpounded, and that the impacts of impoundment are understated in the
proposed rule.
Our Response: We concur that impoundment was one of the most direct
and dramatic historical causes of diamond darter habitat loss.
Impoundment of rivers for navigation may have been the final factor
resulting in extirpation of the diamond darter from many of its
historical habitats. However, most citations that discuss historical
conditions within the previous range of the diamond darter mention a
progression of habitat degradation and subsequent reductions in fish
populations; this progression started with a significant increase in
siltation due to land use changes in the mid-1800s and continued into
the early 1900s, followed by water quality degradation associated with
increases in sewage, industrial discharges, and mining effluents
entering the water, and then, finally, the impoundment of rivers that
inundated riffle habitat and further increased the amount of siltation
(Preston and White 1978, pp. 2-4; Trautman 1981, pp. 21-29; Pearson and
Pearson 1989, pp. 181-184). Consistent with the discussions in these
references, we conclude that the combination of these factors,
culminating in the impoundment of rivers, likely led to population
reductions and then eventual extirpations of the fish species. We have
thus retained discussions of
[[Page 45079]]
siltation and the various sources of water quality degradation as
threats to the diamond darter discussed under the Summary of Factors
Affecting the Species--Factor A. We have also included a statement
about the significance of impoundment in extirpating the species from
much of its historical range. See our response to comment 4
for further discussion of factors that may have allowed the species to
survive in the Elk River, including the river's relatively free-flowing
condition, and our response to comment 3 for discussion of the
potential effects of historical water quality degradation and
regulatory mechanisms.
(6) Comment: The WVDEP commented that the concept of embeddedness
described in the proposed rule is inconsistent with the species'
habitat requirements. The agency stated that, if the diamond darter
occupies habitats with ample sand, some embeddedness of the larger
particles in these areas is expected and necessary. If diamond darters
are captured on sand, they are likely not being collected from
substrates with `sparse to low embeddedness.' The agency further
suggested that the concepts of siltation versus sedimentation be
clarified since it would appear that the diamond darter is susceptible
to the effects of siltation, which is the accumulation of fines (e.g.,
particles smaller than sand), while being dependent upon a relative
abundance of sand to fulfill life history functions.
Our Response: Embeddedness is generally described as a measure of
the degree that cobble, gravel, and boulder substrates are surrounded,
impacted in, or covered by fine materials (Shipman 2000, p. 12). As
substrates become embedded, the surface area available to
macroinvertebrates and fish (shelter, spawning, and egg incubation) is
decreased (Barbour et al. 1999, pp. 5-13; Sylte and Fischenich 2007, p.
12). Researchers use at least five methods for measuring embeddedness,
but sampling methods are not standardized and ``fines'' are not
consistently defined (Sylte and Fischenich 2007, p. 12). As noted by
WVDEP, many methodologies include sands as ``fines'' that increase
embeddedness (Barbour et al. 1999, pp. 5-13). However, other methods
are more ambiguous. For example, Shipman (2000, p. 12) explains that
``naturally sandy streams are not considered embedded; however, a sand
predominated stream that is the result of anthropogenic activities that
have buried the natural course substrates is considered embedded.''
These inconsistent definitions may make use of the term embeddedness
confusing, particularly for a species such as the diamond darter that
requires substrates with a high natural percentage of sands.
We concur with the WVDEP that the diamond darter is susceptible to
the effects of siltation, which is the accumulation of fines, or
particles smaller than sand, while being dependent upon a relative
abundance of natural sand to fulfill certain life-history functions. We
have therefore clarified in the final rule that the diamond darter
requires substrates that are not embedded with fine silts or clays, and
removed references to measures of embeddedness that are not
consistently defined.
We have also clarified our use of the terms siltation and
sedimentation. We note that many publications use these two terms
interchangeably and do not define or differentiate between the terms.
For the final rule, we have used the term siltation to specifically
refer to the pollution of water by fine particulate terrestrial
material, with a particle size dominated by silt or clay. It refers
both to the increased concentration of suspended sediments and to the
increased accumulation (temporary or permanent) of fine sediments on
stream bottoms; whereas, sedimentation refers to the deposition of
suspended soil particles of various sizes from large rocks to small
particles (Wikipedia 2013a, p. 1; Wikipedia 2013b, p. 1). Sedimentation
is used as the opposite of erosion, is often caused by land use changes
or disturbances, and is a common source of siltation in a stream
(Wikipedia 2013b, p. 1). However, while we have clarified terminology,
the best available data illustrate that the diamond darter requires low
levels of siltation and substrates with naturally high percentages of
sands that are not embedded with silts and clays. Excess sedimentation
can degrade diamond darter habitat by both increasing siltation
resulting in increased substrate embeddedness and by destabilizing
stream channels, banks, and substrates.
(7) Comment: The WVDEP commented that the impacts of coal mining
activities may not be a leading threat to the species. Less than four
percent of the watershed has been subjected to coal mining activities.
Coal mining activities that are compliant with the State's water
quality standards are less likely to affect the diamond darter than
other historical activities such as impoundment. The WVDEP stated it is
unlikely that any constituents commonly associated with mining,
including conductivity, emanating from permitted, compliant activities
will adversely affect the persistence of the diamond darter. The agency
suggests that, because the species has persisted through time periods
with little or no water quality regulation, when water quality
conditions were more polluted than they are now, the species may not be
overly sensitive to water quality degradation associated with mining.
Our Response: The Service has identified numerous activities that
are cumulatively contributing to the present or threatened destruction,
modification, or curtailment of the diamond darter's habitat or range,
as described in the Summary of Factors Affecting the Species--Factor A.
The Service concurs that current coal mining activities that are fully
compliant with all existing State and Federal regulatory requirements,
when compared to historical activities such as impoundment and
unregulated mining, are certainly less likely to be a threat to the
diamond darter and its habitats. However, impacts from historical
mining, such as acid mine drainage from abandoned mined lands, continue
to be a significant source of water quality degradation in the Elk
River watershed (WVDEP 2011b, p. 41). The WVDEP has also identified
active mining as one source of selenium, metals, and sedimentation,
which are currently impairing biological conditions in Elk River
watersheds (WVDEP 2011b, pp. 29, 37, 63). While the overall percentage
of the entire Elk River watershed subjected to mining activities may be
small, watersheds of some Elk River tributaries, such as Leatherwood
Creek, are highly dominated by mining activity and include mining
permits encompassing 81 to 100 percent of the subwatersheds (WVDEP
2011b, p. 37). Mining is likely a significant factor affecting the
water quality of streams, such as Leatherwood Creek, that are principle
tributaries to the Elk River. The effects of these mining activities
conducted both within the Elk River mainstem and in Elk River
tributaries, coupled with the effects from other activities described
in Factor A, are continuing threats to the diamond darter.
As discussed in the proposed rule (77 FR 43906) and below, the
diamond darter has already been extirpated from most of its historical
range. As described in our response to comment 5, these
extirpations were likely a result of the cumulative effects of
siltation, water quality degradation, and impoundment. Our response to
comment 3 provides more information on how other fish
populations in the Ohio River basin have responded to water quality
improvements since major
[[Page 45080]]
environmental regulations were enacted, and how the diamond darter
population may have had a similar response. We have no information to
suggest that the diamond darter is less sensitive to water quality
degradation than these other more common species; rather the diamond
darter's pattern of extirpation in other watersheds suggests they may
be more sensitive to water quality degradation and cumulative effects.
(8) Comment: The WVDEP commented that, although mining-associated
water quality impacts have been noted in the Elk River, the WVDNR
considers the Elk River a ``high quality stream,'' and WVDEP benthic
macroinvertebrate surveys indicate good biological conditions in the
stream. Similar comments were received from members of the public
including the West Virginia Chamber of Commerce (WVCC) and other
industry and trade groups. The commenters all suggested the stream
classification and results of macroinvertebrate studies are evidence
that threats from mining, forestry, and oil and gas may be overstated,
and that existing regulatory mechanisms are adequately protecting the
diamond darter.
Our Response: The Elk River's listing as a ``high quality stream''
by the WVDNR does not indicate that there is a lack of threats to the
species or water quality degradation in the watershed. As noted in the
proposed rule (77 FR 43906) and below, criteria for placement on the
high-quality streams list are based solely on the presence of
significant fisheries populations and the use of those populations by
the public (WVDNR 2001, p. 36). Water quality or threats to the
watershed are not included as criteria for determining whether a stream
should be added to the list (Brown 2009, p. 1). The WVDEP previously
identified some streams listed on both the WVDNR high-quality streams
list and the WVDEP impaired waterways list under section 303(d) of the
Clean Water Act (CWA). The WVDEP explains that the dual listing
indicates both that the streams support game fisheries and that the
game fisheries therein may be threatened (WVDEP 2005, p. 31). The Elk
River simultaneously occurred on both lists in 2010.
The WVDEP reports detailing the results of the Elk River benthic
macroinvertebrate surveys state that larger rivers, as opposed to
smaller rivers, offer a wider variety of microhabitats, and, therefore,
the high benthic macroinvertebrate scores may mask some degradation in
water quality (WVDEP 1997, p. 41). These WVDEP reports also identify
coal mining, oil and gas development, erosion and sedimentation, timber
harvesting, water quality degradation, and poor wastewater treatment as
threats to the Elk River watershed (WVDEP 1997, p. 15; WVDEP 2008b, pp.
1-2; WVDEP 2011b, pp. viii-ix). We conclude that the Elk River's
listing as a high-quality stream and high benthic macroinvertebrate
scores are insufficient evidence to conclude that there are no
significant threats to the watershed.
Public Comments
We received public comments from 12 individuals or organizations.
Four individuals provided letters supporting the listing, and one of
these individuals provided substantive information corroborating our
threats analysis. Three organizations, The Nature Conservancy (TNC),
the West Virginia Rivers Coalition (WVRC), and Kentucky Waterways
Alliance, also supported the proposed rule and provided substantive
comments or additional supporting information corroborating our threats
analysis. The Center for Biological Diversity (CBD), on behalf of 16
additional organizations, submitted comments in support of the proposed
listing and reiterated information presented in the proposed rule. In
addition, approximately 4,840 individuals associated with CBD provided
form letters supporting the proposed listing that reiterated the
comments provided by CBD. The WVRC, CBD, and associated individuals
urged the Service to act quickly to finalize the listing of the
species, with the WVRC suggesting that protection is needed now while
there still may be a viable breeding population of diamond darters.
Four organizations, the WVCC, the West Virginia Oil and Natural Gas
Association (WVONGA), the West Virginia Coal Association (WVCA), and
the West Virginia Forestry Association (WVFA), did not support the
proposed rule and provided additional substantive comments. These four
organizations each submitted separate comments during both of the
comment periods, and all urged the Service to delay listing of the
species until a more thorough record regarding the proposal was
developed. A summary of the substantive comments we received regarding
the proposed listing and our responses are provided below.
(9) Comment: The WVCC, WVCA, WVFA, and WVONGA all commented that
listing the diamond darter is not warranted because the proposed rule
underestimates the effectiveness of existing regulatory mechanisms.
These commenters suggest that coal, oil and gas, and forestry
activities are effectively regulated by a comprehensive network of
overlapping Federal and State laws such that threats from these
industries are not significant. They cite the requirements and
protections provided by the Clean Water Act, the West Virginia
Pollution Control Act, the West Virginia Oil & Gas Act, the 2011 West
Virginia Horizontal Well Act, the West Virginia Abandoned Well Act, the
WVDEP Erosion and Sediment Control Manual, and the mandatory use of
best management practices (BMPs) for timbering activities. The
commenters state that many of these regulations and requirements were
specifically designed with protection of water quality and reduction of
sedimentation as their primary goals, and the commenters suggest that
these regulatory mechanisms have been documented to be effective at
reducing sedimentation, pollution, and metals in waterways.
Our Response: We concur that the network of existing regulatory
mechanisms cited above has resulted in improvements in water and
habitat quality when compared to conditions prior to enactment of these
laws (See our response to comment 2). Many of these
regulations were designed to protect water quality, reduce the amount
of erosion and sedimentation occurring in streams, or both. When these
regulations are fully complied with and vigorously enforced, they can
be effective at reducing adverse effects from the regulated activities.
We have made reference to these additional laws in our discussion of
the Summary of Factors Affecting the Species--Factor D, and cited some
examples of where compliance with these regulatory mechanisms has been
shown to reduce potential threats. However, as discussed in the Summary
of Factors Affecting the Species--Factor A, degradation of the diamond
darter's habitat is continuing despite these regulatory mechanisms.
In addition, there are a number of threats that are not addressed
by any existing regulatory mechanisms. Unregulated threats include
geographic isolation, invasive species, accidental spills and
catastrophic events, and non-forestry-related activities occurring on
private lands that contribute sediments and other non-point-source
pollutants to the Elk River watershed. Because the only remaining
population of this species is restricted to one small reach of one
stream, these unregulated threats alone make listing the diamond darter
warranted. The cumulative effects of all the threats listed under the
Summary of Factors Affecting the Species--Factors A, B, C, and E,
including ongoing habitat degradation, coupled with the
[[Page 45081]]
effects of other natural and manmade factors affecting the species'
continued existence, further justify listing the diamond darter as
endangered.
(10) Comment: The WVCC, WVCA, WVFA, and WVONGA all commented that
the only evidence the proposed rule cites to support the claim that
existing regulatory mechanisms are inadequate is the small size of the
current diamond darter population. They suggest there is no evidence
that a sizable diamond darter population ever existed in the Elk or any
other river and that, without evidence of a once-thriving population,
the proposed rule's conclusion that existing regulatory mechanisms are
to blame for the species' low population is unsupported. They further
state that the adverse effects of inbreeding and small population size
are not merely an ongoing threat to the diamond darter, but have been
affecting the species for many decades. This factor alone could explain
why the population has not increased despite relatively high water
quality in the mainstem Elk River. They concluded that until genetic
robustness of the population is evaluated, the claim that existing
regulatory mechanisms are inadequate is unsupported and is arbitrary
and capricious.
Our Response: We concur that adverse effects of inbreeding and
small population size have likely been affecting the last remaining
population of the diamond darter for many years. However, the small
size of the diamond darter population is not cited as evidence of the
inadequacy of existing regulatory mechanisms as described under the
Summary of Factors Affecting the Species--Factor D. Rather, the small
size and restricted range are cited as separate and distinct threats to
the species under the Summary of Factors Affecting the Species--Factor
E (Other Natural or Manmade Factors Affecting Its Continued Existence).
The Act requires that the Secretary shall make determinations solely on
the basis of the best available scientific and commercial data
available. Because further information about the diamond darter's
genetic robustness is not available and the current data supports our
endangered status determination for the species, we disagree that
additional research on the genetic robustness of the population is
required prior to finalizing the listing of the diamond darter.
(11) Comment: The WVCC, WVCA, WVFA, and WVONGA all commented that
the increased capture rates of the diamond darter in the last 5 years
compared to when surveys began indicate that the population, while
admittedly small, is benefitting from, rather than being failed by,
existing regulatory mechanisms. These organizations further assert that
WVDNR's comments about the species' historical abundance and
susceptibility to sampling methods raises significant questions about
our current estimation of the abundance of the diamond darter, as
detailed in the proposed rule.
Our Response: The increased capture rates in the last few years are
most likely a direct result of the increased survey and research
efforts by the Service and our partners. These efforts include (1)
recent research on the species' habitat requirements, coupled with the
availability of habitat maps for the entire Elk River, that has allowed
survey efforts to focus on specific areas of the Elk River where
diamond darters are most likely to be concentrated, and (2) the
development and use of new species-specific survey techniques over the
past three survey seasons that resulted in more comprehensive and
effective surveys (Ruble 2011a, p. 1; WVDNR 2012, p. 83; Welsh 2012,
pp. 8-10). See our responses to comments 3 and 9 for
additional information on the relationship between current and
historical survey methods and our estimation of potential population
trends, as well as the benefits of existing regulatory mechanisms.
(12) Comment: The WVCC, WVCA, WVFA, and WVONGA all commented that
there are insufficient data to quantitatively define specific water
quality standards required by the diamond darter, and noted that the
proposed rule references water quality conditions seen at locations
where the ``sister species,'' the crystal darter, is found. Commenters
suggest that use of the crystal darter as a surrogate for the diamond
darter is not justified because the ranges of these two species do not
overlap and the two species are genetically distinct. The commenters
suggest that water quality conditions should be observed where the
diamond darter population currently exists, and that the crystal darter
should not be used to establish water quality parameters.
Our Response: The Service would prefer to have species-specific
data to be able to quantitatively describe the water quality conditions
that the diamond darter needs to survive and thrive. However, these
data are currently not available. In the absence of these data, we have
described habitat and water quality conditions from locations where the
diamond darter or the closely related crystal darter has been found.
Surrogate species have long been used to establish water quality
criteria or evaluate risks to a species (U.S. Environmental Protection
Agency (USEPA) 1995, pp. 1-16; Dwyer et al. 2005, pp. 143-154). Because
the crystal darter is in the same genus, shares many similar life-
history traits, and was previously considered the same species as the
diamond darter, information on this species can reasonably be used to
infer factors or conditions that may also be important to the diamond
darter. Additional research, while needed to determine whether existing
water quality conditions at diamond darter capture sites are adequate
to protect all life stages of the species, is not required before the
Service can draw conclusions about the species' status based on the
best available scientific and commercial data. The final rule does not
establish specific numeric water quality parameters that are necessary
for the diamond darter.
(13) Comment: The WVCC, WVCA, WVFA, and WVONGA all commented that
conductivity was cited as a threat to the diamond darter even though an
appropriate conductivity range for the diamond darter has not yet been
established and scientific studies have not conclusively shown that
elevated conductivity causes harm to fish species. Two overall concerns
were detailed in support of this comment: (1) None of the studies cited
in the rule conclude that conductivity, independent of the dissolved
metals and sediment observed at the test sites, caused the observed
scarcity of fish; and (2) conductivity varies naturally from region to
region due to the availability of different ionic constituents, so that
data from potential effects of conductivity from one region of the
country should not be applied to other regions. They expressed concern
that the proposed rule could impede industries from acquiring permits
if their discharges would elevate conductivity. They suggested that
until a causal relationship between elevated conductivity and harm to
fish species is scientifically established, conductivity should not be
listed as a threat to the diamond darter, and industries should not
face increased scrutiny for this water quality parameter. They further
recommended that, if an ideal conductivity range for the diamond darter
was included in the final rule, it should be based on sampling from the
Elk River or direct testing on the diamond darter.
Our Response: We concur that none of the studies cited in the
proposed rule definitively conclude that conductivity, independent of
the dissolved metals and sediment observed at the test sites, caused
the observed scarcity of fish. However, these studies found a strong
correlation between increased
[[Page 45082]]
conductivity levels and the absence or reduction of sensitive fish
populations (Mattingly et al. 2005, pp. 59-62; Thomas 2008, pp. 3-6;
Service 2009, pp. 1-4). Furthermore, basic chemistry and physiology
provide information on how increased conductivity may affect fish
populations. Conductivity is an estimate of the ionic strength of a
salt solution (USEPA 2011, p. 1). High ionic salt concentrations impede
effective osmoregulation in fish and other aquatic organisms and impair
their physiological systems that extract energy from food, regulate
internal pH and water volume, excrete metabolic wastes, guide embryonic
development, activate nerves and muscles, and fertilize eggs (Pond et
al. 2008, p. 731; USEPA 2011, p. 27). Thus, there is a strong
physiological and chemical basis to suggest that high conductivity
levels can adversely affect the fitness and survival of fish species
such as the diamond darter. In addition, the diamond darter forages on
benthic macroinvertebrates. Studies have demonstrated a causal
relationship between high conductivity levels and impairment of benthic
macroinvertebrate populations (Pond et al. 2008, pp. 717-737; USEPA
2011, pp. A1-40). A recent USEPA study evaluated the potential
confounding effects of metals, sediments, and other water quality
parameters and still found that biological impairment of benthic
macroinvertebrate populations was a result of increased conductivity
(USEPA 2011, pp. B1-37). Thus, high conductivity levels could also
adversely affect the availability of foods that the diamond darter
needs to survive. We therefore conclude that increased conductivity
could pose a threat to the diamond darter's ability to feed, breed, and
survive, and have retained and enhanced the discussion of this topic in
the final rule.
We also concur that conductivity varies naturally from region to
region due to the availability of different ionic constituents, so that
data on conductivity from one region of the country may not be
applicable to other regions. Studies from West Virginia (that included
data from watersheds immediately adjacent to the Elk River) and
Kentucky found that an aquatic conductivity level of 300 microSiemans/
cm ([mu]S/cm) should avoid the local extirpation of 95 percent of
native stream macroinvertebrate species. The study noted that, because
300 [mu]S/cm would only protect against total extirpation rather than
just a reduction in abundance, conductivity level was not fully
protective of sensitive species or higher quality, exceptional waters
(USEPA 2011, p. xiv). These data, coupled with the information provided
on fish species such as the Cumberland darter and the Kentucky arrow
darter (Etheostoma sagitta spilotum) that occur within the historic
range of the diamond darter in Kentucky, provide applicable regional
information pertinent to the diamond darter. However, it is outside the
scope of this final rule to establish water quality criteria for
permitted discharges. Water quality criteria and permit conditions are
established by appropriate State and Federal regulatory agencies and
under consultation with the Service, if required. The Service would
willingly work with industry groups and regulatory agencies to develop
additional research to fully evaluate conductivity limits to species in
the Elk River, including the diamond darter.
(14) Comment: The WVCC, WVCA, WVFA, and WVONGA all suggested that
listing the diamond darter under the Act will do nothing to ensure the
species' long-term survival, but will place a regulatory burden on a
wide range of human activities. The organizations note that little is
known about the diamond darter's reproductive techniques, water quality
parameters, or food choices, and that the genetic fitness of the
diamond darter's remaining population has not been evaluated. The
organizations therefore conclude that using species-specific
conservation measures would be more efficient and cost effective than
using a broad legal mechanism like the Act to improve the long-term
survival of the diamond darter.
Our Response: The Act requires that the Service make listing
determinations solely on the basis of the best scientific and
commercial data available regarding the status of the species and the
presence of existing conservation efforts. The Act does not allow
listing to be avoided based on the potential for perceived benefits or
burdens that will result from the listing, or the potential to develop
future conservation efforts in the absence of listing. However, the
Service would welcome assistance from these groups to develop
additional conservation measures targeted toward diamond darter
recovery.
(15) Comment: The Nature Conservancy commented that the diamond
darter is one of the most critically endangered aquatic species in the
United States. The organization supports the Service's efforts to list
the species now while a sufficient population may be available from
which to restore the species to a nonthreatened status. The
organization also noted that it is working on a watershed assessment of
the Elk River that will assess cumulative effects contributing to
degradation of aquatic resources, and help identify priority areas for
restoration and protection.
Our Response: We appreciate TNC's support of conservation of the
diamond darter and have discussed the results of the draft watershed
assessment with the organization. The draft supports our assessment of
threats to the diamond darter, as detailed in Factor A, and also will
be useful in planning future recovery efforts for the diamond darter
and other listed species in the watershed. We look forward to enhancing
our partnerships with TNC and other organizations so that we can work
toward the recovery of listed species.
(16) Comment: The Nature Conservancy concurred with our assessment
of threats to the species and commented that coal mining, oil and gas
development and infrastructure, sedimentation, water quality
degradation, and poor wastewater treatment all pose significant threats
to the diamond darter. The organization noted that many of these land
use changes in the Elk River watershed are occurring on large,
previously undeveloped, and privately owned forestland tracts along
tributaries that were once managed primarily as forestland and that
contributed to maintaining this river's ecological condition.
Our Response: We have reviewed additional information developed by
TNC (see comment 17) that supports our assessment of threats.
We concur that degradation of water quality in tributaries directly
affects the ecological condition of the mainstem Elk River. Our
discussion of threats under Factor A notes many examples of water
quality degradation occurring within tributaries to the Elk River.
(17) Comment: The Nature Conservancy commented that Japanese
knotweed (Fallopia japonica) and other invasive, nonnative plants
associated with riparian areas are infesting the banks of the Elk
River. These invasive species reduce stream bank stability and alter
vegetation communities and the types of detritus, insects, and other
natural inputs that enter the aquatic system and, therefore, pose a
threat to the diamond darter.
Our Response: Japanese knotweed has already been found in the
upstream portions of the Elk River watershed (Schmidt 2013, p. 1). We
concur that this and other invasive riparian plants could pose an
additional threat, particularly if they occur along the
[[Page 45083]]
portion of the Elk River that supports the diamond darter, and we have
added text under Factor E to that regard.
Summary of Changes From Proposed Rule
We fully considered comments from peer reviewers, State and Federal
agencies, and the public on the proposed rule to develop this final
listing of the diamond darter. This final rule incorporates appropriate
changes to our proposed listing based on the received comments
discussed above and newly available scientific and commercial data.
Substantive changes include new or additional information on: (1) Why
the species was extirpated from most of its historical range and why it
has survived in the Elk River; (2) the results of survey efforts and
research conducted since the proposed rule; (3) threats from invasive
riparian plants; (4) definitions for substrate embeddedness and
siltation and the threat that they pose; (5) potential threats from
increased conductivity; and (6) conservation measures and cumulative
effects. Although our analysis of these threats is somewhat different
from that in our proposed rule, the analysis and our conclusions are a
logical outgrowth on the proposed rule commenting process, and none of
the information changes our determination that listing this species as
endangered is warranted.
In addition, we added Indiana to the diamond darter's historical
range column of the Sec. 17.11 endangered and threatened wildlife
table in the regulatory section of the final rule. Although Indiana was
included in the Historical Range/Distribution discussion of the
proposed rule, we inadvertently left it out of the Sec. 17.11
endangered and threatened wildlife table in the regulatory section of
the proposed rule. Inclusion of Indiana in the historical range column
of the Sec. 17.11 endangered and threatened wildlife table in the
regulatory section of the final rule corrects that error.
Summary of Factors Affecting the Species
Section 4 of the Act and its implementing regulations (50 CFR 424)
set forth the procedures for adding species to the Federal Lists of
Endangered and Threatened Wildlife and Plants. A species may be
determined to be an endangered or threatened species due to one or more
of the five factors described in section 4(a)(1) of the Act: (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. Listing actions may
be warranted based on any of the above threat factors, singly or in
combination. Each of these factors is discussed below.
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 more than 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 WVDNR (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 WVDEP noted that all four sampling
sites tested 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, continuing and pervasive
threats exist 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
Elk River watershed include sedimentation and erosion, coal mining, oil
and gas development, timber harvesting, water quality degradation, and
poor wastewater treatment (WVDEP 1997, p. 15; Strager 2008, pp. 1-39;
WVDEP 2008b, pp. 1-2). Significant degradation to the water quality has
also been documented in the Elk River's tributaries (WVDEP 2011b,
p.viii). Water quality in these tributaries directly contributes to and
affects the ecological condition of the mainstem Elk River. Water
quality degradation of tributaries is also important because diamond
darters congregate and forage in shoals that are often located near
tributary mouths (Welsh et al. 2012, p. 3).
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.
Siltation (Sedimentation)
Many publications use the terms siltation and sedimentation
interchangeably, and do not define or differentiate between the terms.
For this rule, we have used the term siltation specifically to refer to
the pollution of water by fine particulate material, with a particle
size dominated by silt or clay. It refers both to the increased
concentration of fine-sized suspended sediments and to the increased
accumulation (temporary or permanent) of fine sediments on stream
bottoms, whereas sedimentation refers to the deposition of suspended
soil particles of various sizes from large rocks to small particles.
Sedimentation is used as the opposite of erosion, is often caused by
land use changes or disturbances, and is a common source of siltation
in a stream.
The USEPA has identified excess sediment as the leading cause of
impairment to the Nation's waters (USEPA 2013, p. 1). Excess sediment
in streams and resulting sedimentation can degrade fish habitat by
altering the stability of the stream channel, scouring stream banks and
substrates, destabilizing the substrates and habitats that fish such as
the diamond darter rely on, and aggrading the stream bottom, which
covers the substrates with excess sediments and buries, crushes, or
suffocates benthic invertebrates, fish eggs, and fish larvae (Waters
1995, pp. 114-115; USEPA 2013, pp. 1-6). Excess sediment in streams can
also lead to siltation.
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
affect fish growth,
[[Page 45084]]
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 (Berkman 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 gravel
substrates with smaller particles. Diamond darters lay their eggs
within these interstitial spaces. The complexity and abundance of
interstitial spaces is reduced dramatically with increasing inputs of
silts and clays. Siltation results in an increase in substrate
embeddedness. As substrates become more embedded by silts and clays,
the surface area available to fish for shelter, spawning, and egg
incubation is decreased (Barbour et al. 1999, pp. 5-13; Sylte and
Fischenich 2007, p. 12). Consequently, the amount and quality of
breeding habitat 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 siltation, and
populations of these species have likely become extirpated or severely
reduced in size as a result of this threat.
Siltation, along with excess sedimentation, has been identified as
a threat to the Elk River system. Portions of the lower Elk River were
listed as impaired due to elevated levels of iron and, previously,
aluminum (USEPA 2001b, p. 1-1; Strager 2008, p. 36; WVDEP 2008a, p. 18;
WVDEP 2008b, p. 1; WVDEP 2012, pp. 14-15). The WVDEP has since revised
the water quality criteria for aluminum to address bioavailability of
that metal, and established maximum amounts of pollutants allowed to
enter the waterbody (known as Total Maximum Daily Loads (TMDL)) (WVDEP
2008a, p. A-2; WVDEP 2010, p. 26). The WVDEP identified that impairment
due to metals, including iron, 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 sediment entering 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 kilometers (km) (269
miles (mi)) of unimproved dirt roads and 76 km (47 mi) of severely
eroding stream banks (WVDEP 2008b, p. 5). An estimated 1,328 hectares
(ha) (3,283 acres (ac)) of lands were actively timbered in those two
watersheds in 2004 (WVDEP 2008b, p. 6). A review of the West Virginia
Department of Forestry (WVDOF) inventory of registered logging sites
estimated 16,381 ha (40,479 ac) of harvested forest, 1,299 ha (3,209
ac) of land disturbed by forestry-related roads and landings, and 518
ha (1,281 ac) of burned forest within portions of the Elk River
watershed that are impaired by excess sediment and metals (WVDEP 2011c,
pp. 34-35).
Coal Mining
Coal mining occurs throughout the entire Elk River watershed. Most
of the active mining occurs in the half of the watershed on the south
side of the Elk River, which flows east to west (Strager 2008, p. 17).
The most recent summarized data, as of January 2008, indicates more
than 5,260 ha (13,000 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 been adequately remediated (Strager
2008, p. 18). Approximately 47 percent of the entire Elk River
watershed is within the area that the USEPA has identified as
potentially being subject to mountaintop 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, hardness, and 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 was found to be excluded
from mined watersheds when conductivity exceeded 250 [micro]S/cm
(Thomas 2008, pp. 3-6; Service 2009, pp. 1-4).
High ionic salt concentrations associated with increased
conductivity impede effective osmoregulation in fish and other aquatic
organisms and impair their physiological systems that extract energy
from food, regulate internal pH and water volume, excrete metabolic
wastes, guide embryonic development,
[[Page 45085]]
activate nerves and muscles, and fertilize eggs (USEPA 2011, p. 27;
Pond et al. 2008 p. 731). Thus, high conductivity levels could
adversely affect the fitness and survival of fish species such as the
diamond darter. In addition, high conductivity levels could also
adversely affect the availability of forage populations of benthic
macroinvertebrates that the diamond darter needs to survive. Studies
have demonstrated a causal relationship between high conductivity
levels and impairment of benthic macroinvertebrate populations (USEPA
2011, pp. A1-40; Pond et al. 2008, pp. 717-737). Studies from West
Virginia (that included data from watersheds immediately adjacent to
the Elk River) and Kentucky found that an aquatic conductivity level of
300 [mu]S/cm was expected to avoid the local extirpation of 95 percent
of native stream macroinvertebrate species. The study noted that,
because this level was developed to protect against extirpation rather
than reduction in abundance, it was not fully protective of sensitive
species or higher quality, exceptional waters (USEPA 2011, p. xiv).
Water quality impacts from both active and historical mining have
been noted in the Elk River watershed (WVDEP 2011b, pp. 29, 37, 41,
63). 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
substrates embedded 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 drainage of the Elk River watershed had violations of the West
Virginia water quality criteria for acute aluminum and manganese, 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.
Threats from coal mining also include the potential 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 whose failure could result in
the loss of human life and serious damage to homes and industrial and
commercial facilities (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 entire diamond darter population.
Abandoned underground mines also have potential 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
clean up an abandoned mine site. When the contractor 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
[[Page 45086]]
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 subject to oil and gas development,
with more than 5,800 oil or gas wells in the watershed according to
data available through 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 more than 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 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 more than 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 amount 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 currently at least 100 completed and 21 additional permitted
Marcellus Shale gas wells are within the watershed (WVGES 2012, p. 1).
The WVONGA suggests that the region where the diamond darter exists may
experience a surge in oil and natural gas exploration and drilling
above the levels experienced in the previous 5 years (WVONGA 2013).
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 and subsequent sedimentation 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 use 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; Pennsylvania State
University 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 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.
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
[[Page 45087]]
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, was on the
State's list of impaired waters under section 303(d) of the CWA due to
violations of fecal coliform levels in 2008 and 2010 (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). To address water quality problems, the
WVDEP conducted a more detailed analysis of two major tributary
watersheds to the lower Elk River. The agency 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 likely affected the species.
Impoundment
Impoundment of previously occupied rivers was one of the most
direct and significant historical causes of range reduction and habitat
loss for the diamond darter. 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, an approximately 161-km (100-mi) reach of the river downstream
of the dam, including the portion that supports the diamond darter,
retains natural, free-flowing, riffle and pool characteristics (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 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 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, at least three
proposed projects 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
[[Page 45088]]
the diamond darter's habitat could destabilize the substrates, leading
to increased sedimentation and 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. The WVONGA suggests that the region where the
diamond darter exists may experience a surge in oil and natural gas
exploration and drilling above the levels experienced in the previous 5
years, and that new pipeline stream crossings are expected because the
industry is working to provide new users with access to this expanded
supply (WVONGA 2013).
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, pp. 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, but 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 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
siltation and resulting 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. The WVONGA suggests that the region where the diamond darter
exists may experience a surge in oil and natural gas exploration and
drilling above the levels experienced in the previous 5 years (WVONGA
2013).
Conservation Efforts To Reduce Habitat Destruction, Modification, or
Curtailment of Its Range
The NRCS and the Federal Highway Administration/West Virginia
Department of Transportation have worked with the Service to develop
programmatic agreements on how their agencies will address federally
listed species for many of their routine project types. After the
diamond darter became a candidate species in 2009, both agencies
voluntarily agreed to update their programmatic agreements to address
protection of the diamond darter. These agreements now include a
process to determine when the species may be affected by projects,
avoidance measures that can be used to ensure their projects are not
likely to adversely affect the species, conditions describing when
additional consultation with the Service shall occur, and, in some
cases, other measures that can be incorporated into projects to benefit
the species. These programmatic agreements, which were completed in
2011, should help reduce or avoid effects from small-scale highway
construction projects and NCRS conservation practices, and can help
these agencies design and implement projects to benefit the 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
[[Page 45089]]
habitat. Threats include sedimentation and siltation from a variety of
sources, discharges from activities such as coal mining and oil and gas
development, pollutants originating from inadequate wastewater
treatment, habitat changes and isolation caused by impoundments, and
direct habitat disturbance. These threats are ongoing and severe and
occur throughout the species' entire current 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 and
associated instream disturbances associated with gas transmission
lines, we expect this threat to increase over the next several years as
shale gas development continues to intensify.
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
through 2011, 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 or conservation purposes for most of these
collections. 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, and thus, this potential threat has been reduced.
The captive-breeding program was established after a review of the
conservation status of the species identified imminent threats to the
last remaining population, and species experts identified the need to
establish a captive ``ark'' population 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.
We know of no recreational or educational uses for the species.
Although the species has no present commercial value, it is possible
that live specimens may be collected for the aquarium trade or for
specimen collections (Walsh et al. 2003 in Grandmaison et al. 2003 p.
19) and that once its rarity and potential collection locations become
more widely known, it may become attractive to collectors. At this
time, this is not known to be a widespread threat, although there is
some evidence of individuals attempting to collect other darters and
rare fish in West Virginia and other States for personal or academic
collections (North American Native Fishes Association 2007, pp. 1-5).
Uncontrolled collection from the remaining diamond darter population
could have deleterious effects on the reproductive and genetic
viability of the species.
Conservation Efforts To Reduce Overutilization for Commercial,
Recreational, Scientific, or Educational Purposes
In response to the proposed listing of the diamond darter, the
WVDNR has incorporated wording into State fishing regulations to
clarify that collection of the diamond darter for any purpose is not
authorized unless conducted under a valid State scientific collecting
permit (WVDNR 2013, p. 8).
Summary of Factor B
We find that overutilization for commercial, recreational,
scientific, or educational purposes is a minor threat to the diamond
darter at this time. For a species like the diamond darter, with a
small range and population size, there is the potential that
overutilization for scientific purposes or personal collections 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 data, the threat of overutilization is not likely to
increase in the future.
C. Disease or Predation
There is no specific information available to suggest that disease
or predation presents a 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
pose a 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
data 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 have no available data that indicate
disease or predation is now or likely to become a threat to the diamond
darter in the future.
Conservation Efforts To Reduce Disease or Predation
Since neither disease nor predation currently present threats to
the diamond
[[Page 45090]]
darter, no conservation efforts are being conducted to reduce these
threats.
D. The Inadequacy of Existing Regulatory Mechanisms
Few existing Federal or State regulatory mechanisms specifically
protect the diamond darter or its aquatic habitat where it 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.)(CWA), the Surface Mining Control and Reclamation
Act of 1977 (30 U.S.C. 1234-1328), the West Virginia Logging and
Sediment Control Act (WVSC Sec. 19-1B), the West Virginia Pollution
Control Act (WVSC Sec. 22-11-1.), the West Virginia Horizontal Well
Act (WVSC Sec. 22-6A), the West Virginia Abandoned Well Act (WVSC
Sec. 22-10-1), and additional West Virginia laws and regulations
regarding natural resources and environmental protection (WVSC Sec.
20-2-50; Sec. 22-6A; Sec. 22-26-3). Many of these regulations and
requirements were specifically designed with protection of water
quality and the reduction of sedimentation as their primary goals.
However, as demonstrated under Factor A, degradation of habitat for
this species is ongoing despite the protection afforded by these
existing laws and corresponding regulations. These laws have resulted
in some improvements in water quality and stream habitat for aquatic
life, including the diamond darter, but water quality degradation,
sedimentation and siltation, non-point-source pollutants, and habitat
alteration continue to threaten the species.
Although water quality has generally improved since major
environmental regulations like the CWA and Surface Mining Control and
Reclamation Act (30 U.S.C. 1234-1328) were enacted or amended in the
late 1970s, degradation of water quality within the range of the
diamond darter continues. In 2010, a total of 102 streams within the
Elk River watershed totaling 1,030 km (640 mi) were identified as
impaired by the WVDEP and were placed on the State's CWA 303(d) list
(WVDEP 2010, p. 16). Identified 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 CWA 303(d) list, States are required 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 in the Elk River watershed (WVDEP 2012, pp. viii-x).
The total iron TMDL is used as a surrogate to address impacts
associated with excess sediments (WVDEP 2011b, p. 47). The TMDLs for
the Elk River watershed were approved in 2012, and address 165 km
(102.5 mi) of Elk River from Sutton Dam to the confluence with the
Kanawha River, including the entire reach known to support the diamond
darter, and 214 other impaired tributaries in the watershed. The draft
2012 WVDEP CWA 303(d) report places these impaired streams in a
category where TMDLs have been developed but where water quality
improvements are not yet documented (WVDEP 2012, pp. 14-15). An
additional six streams, totaling 63 km (39 mi) within the Elk River
watershed, were listed as having impaired biological conditions due to
mining, but TMDLs for these streams were not developed (WVDEP 2012, p.
9).
Because these TMDLs for some of these impaired streams 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. The TMDLs apply primarily
to point-source discharge permits, not the non-point sources that may
also contribute to sediment loading in the watershed. The Service is
not aware of any other current or future changes to State or Federal
laws that will substantially affect the currently observed degradation
of water quality from point-source pollution that is considered to be a
continuing threat to diamond darter habitats.
When existing laws that regulate some of these activities are fully
complied with and vigorously enforced they can be effective at reducing
the scope of threats from the regulated activity. For example, when
forestry BMPs are fully and correctly applied they can be effective at
reducing sedimentation into waterways. Studies have found a strong
correlation between BMP application and prevention of sediment movement
into surface water (Schuler and Briggs 2000 p. 133). However, these
same studies also found that imperfect application of BMPs reduced
their effectiveness and that logging operations can increase sediment
loading into streams if they do not have properly installed BMPs
(Schuler and Briggs 2000 p. 133; WVDEP 2011b, p. 35). One 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, allowing substantial amounts of sediment to reach the
channel (Wang et al. 2010, p. 1).
The WVDOF periodically evaluates compliance with BMPs; this
evaluation indicates a trend of increasing compliance with BMPs (Wang
et al. 2002, p. 1). The most recently available 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 ranged 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). In addition, the
WVDOF estimates that illicit logging operations represent approximately
2.5 percent of the total harvested forest area throughout West Virginia
(WVDEP 2011c, pp. 34-35). These illicit operations most likely do not
have properly installed BMPs and can contribute excessive sediment to
streams.
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. They also do not
contain any provisions that would avoid or minimize direct loss of
diamond darters.
West Virginia State Code Sec. 20-2-50 prohibits taking fish
species for scientific purposes without a permit. The WVDNR 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. This should
limit the number of individuals impacted by survey and research
efforts. Current West Virginia fishing regulations prohibit collecting
any diamond darter specimens in the State without a West Virginia
scientific collecting permit, and further specify that the diamond
darter
[[Page 45091]]
cannot be collected as bait (WVDNR 2013, p. 8).
The diamond darter is indirectly provided some protection from
Federal actions and activities through the 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. Many of the same management recommendations made to avoid
adverse effects during consultations for endangered mussels, such as
avoiding instream disturbances and controlling sedimentation, would
also benefit the diamond darter. However, protective measures for
listed freshwater mussels in the Elk River have generally involved
surveys for mussel species presence and development of minimization
measures 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 in the Elk River, but only in
specific locations where it co-occurs with these mussel species.
Currently, no requirements within the scope of Federal or State
environmental laws specifically consider the diamond darter during
Federal or State-regulated activities, or ensure that projects will not
jeopardize the diamond darter's continued existence.
Summary of Factor D
Few existing laws specifically protect the diamond darter. A number
of existing Federal and State regulatory mechanisms are designed to
protect water quality and reduce sedimentation, which could reduce
threats to the diamond darter. However, degradation of water quality
and habitat is ongoing throughout the current range of the diamond
darter, despite these existing regulatory mechanisms governing some
activities that contribute to this threat. We have no information
indicating that these threats are likely to be appreciably reduced in
the future.
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 coldwater
streams, it is now known to occur in a wider range of temperatures, and
it has been documented in waters with temperatures that were as high as
27 [deg]C (80 [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 didymo 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.
Invasive Riparian Plants
Invasive, nonnative plants associated with riparian areas, such as
Japanese knotweed, have the potential to adversely affect diamond
darter populations in the Elk River. Japanese knotweed is a species
native to eastern Asia that was introduced in the United States as an
ornamental landscape plant (Barney 2006, p. 704). The species forms
dense, monotypic stands that exclude native vegetation (Urgenson 2006,
p. 6). Once introduced into an area, it spreads rapidly through
riparian areas as flood waters carry root and stem fragments downstream
and these fragments then regenerate to form new populations (Urgenson
2006, p. 1).
Healthy, functioning, riparian forests are an essential component
of maintaining water and habitat quality in streams, and streams are
adversely affected when riparian areas are invaded by species such as
Japanese knotweed (Urgenson 2006, p. 35). Streambanks dominated by
Japanese knotweed populations are less stable and more prone to erosion
because Japanese knotweed has shallower roots compared to native
riparian trees and woody shrubs. Because Japanese knotweed dies back in
winter, it also leaves streambanks more exposed to erosive forces
(Urgenson 2006, pp. 35-36). Thus, knotweed can increase streambank
erosion, increase sedimentation in streams, and alter channel
morphology. In addition, riparian areas dominated by Japanese knotweed
change the natural composition of leaf litter entering the stream. This
change affects nutrient cycling and organic matter inputs into the
aquatic food web, and can have long-lasting effects on microhabitat
conditions and aquatic life of affected stream systems (Urgenson 2006,
pp. i, 31). Because leaf litter from Japanese knotweed is of lower
nutritional quality than native vegetation, it can negatively impact
the productivity of aquatic macroinvertebrates, which are a primary
food source for fishes like the diamond darter (Urgenson 2006, p. 32).
[[Page 45092]]
Japanese knotweed has already been found in the upstream portions
of the Elk River watershed (Schmidt 2013, p. 1). In 2012, Service
biologists and their partner organizations documented and initiated
control measures on 25 Japanese knotweed populations on the mainstem
Elk River and its tributaries. These populations were located near the
Randolph-Webster County line approximately 161 km (100 mi) upstream of
the range of the diamond darter. Some of these populations were over
0.1 ha (0.25 ac) in size and had doubled in size in the 2 years since
first documented (Schmidt 2013, p. 1). Japanese knotweed is difficult
to control and eradicate. Effective eradication requires many years of
focused efforts, and often populations are discovered downstream before
100 percent mortality is achieved in the treated area (Urgenson 2006,
p. 37).
Geographic Isolation and Loss of Genetic Variation
The one existing diamond darter population is small in size and
range, and 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). Its small population size reduces the potential ability of
the population to recover from the cumulative effects of smaller
chronic impacts to the population and habitat such as progressive
degradation from runoff (non-point-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 the diamond darter to respond to climate change
and other changes in its environment and 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
Climate change (as defined by the Intergovernmental Panel on
Climate Change (2007, p. 78)) 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 population
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 droughts, severe storms, and flooding, is likely to increase
Statewide (Buzby and Perry 2000, p. 1774; Byers and Norris 2011, p.
20). While the available data on the effects of climate change are 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.
Conservation Efforts To Reduce Other Natural or Manmade Factors
Affecting Its Continued Existence
The West Virginia Invasive Species Working Group (WVISWG) is a
group of State and Federal agencies, nongovernmental organizations, and
private stakeholders dedicated to working together on nonnative
invasive species issues that affect West Virginia. The primary mission
of the WVISWG is to maintain an inclusive Statewide group to facilitate
actions for the prevention or reduction of negative impacts of invasive
species on managed and natural terrestrial and aquatic communities
through coordinated planning and communication, assessment and
research, education, and control. The WVISWG is developing a Statewide
invasive species strategic plan to provide guidance and coordination
for invasive species management actions across the State. These
voluntary efforts may help to reduce the spread of didymo and Japanese
knotweed and other invasive riparian plants that are a threat to the
diamond darter and its habitat.
The Service, WVDNR, USGS West Virginia Cooperative Fish and
Wildlife Research Unit at West Virginia University, and Conservation
Fisheries, Inc. (CFI) are working together to conduct research on the
reproductive biology and life history of the diamond darter and are
attempting to establish a captive population to avert extinction and
preserve genetic diversity. Although diamond darters have successfully
bred in captivity, no larvae have survived to adulthood. Additional
research and funding is needed for this effort to be fully successful.
Summary of Factor E
In summary, because the diamond darter has a small geographic range
and small population size, it is subject to several other ongoing
natural and manmade threats. These threats include the spread of
invasive, nonnative species such as Didymosphenia geminate and Japanese
knotweed; loss of genetic fitness; and susceptibility to spills,
catastrophic events, and impacts from climate change. The severity of
these threats is high because the diamond darter's small range and
population size reduces its 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.
Cumulative Effects From Factors A Through E
Some of the threats discussed in this rule could work in concert
with one another to cumulatively create situations that potentially
impact the diamond darter beyond the scope of the individual threats
that we have already analyzed. As described in Factor A, the reach of
the Elk River inhabited by the diamond darter is threatened by numerous
sources of habitat and water quality degradation, including
[[Page 45093]]
sedimentation and siltation from multiple sources, coal mining, oil and
gas development, and inadequate sewage treatment. All these threats
likely reduce the amount and quality of the diamond darter's remaining
available habitat and are sources of chronic and continued degradation
of its habitat. As described above, these threats also likely reduce
the amount of forage available to the species, reduce the fitness of
remaining individuals, and decrease breeding success and survival of
young. These chronic threats likely affect the ability of the diamond
darter population in the Elk River to grow and thrive, making it less
resilient to potential acute threats such as accidental spills and
catastrophic events. In a review of population and stream responses to
various types of disturbances, Yount and Niemi (1990, pp. 547-555)
found that populations or streams that were affected by multiple
chronic sources of disturbance and degradation were less resilient and
less likely to recover quickly from additional individual disturbances.
In addition, they found that the availability of unaffected populations
in nearby streams, tributaries, or upstream and downstream reaches that
would provide a source of organisms for recolonization was one of the
key factors that allowed affected populations to recover from
disturbances (Yount and Niemi 1990, p. 547).
There are no unaffected populations or stream reaches available to
the diamond darter. The diamond darter's current range is already
severely restricted and isolated from other suitable habitats by dams
and impoundments. The one remaining diamond darter population is small
and occurs in one reach of a single river that is already affected by
multiple chronic sources of degradation. Thus, the current remaining
population has very little resiliency and a very limited ability to
recover from additional individual disturbances. Cumulatively, these
factors make the diamond darter particularly susceptible to extinction
from additional threats such as direct disturbances, invasive species,
spills, and long-term effects of climate change. These ongoing
cumulative threats to the diamond darter are occurring throughout the
species' entire current range. We have no information indicating that
these threats are likely to be appreciably reduced in the future.
Summary of Factors
We have carefully assessed the best scientific and commercial data
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) and other natural or manmade factors
affecting its continued existence (Factor E). The species is currently
known to exist only in the lower Elk River, West Virginia. This portion
of the watershed is impacted by ongoing water quality degradation and
habitat loss from activities associated with coal mining and oil and
gas development, sedimentation and 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 small size and
restricted range of the remaining diamond darter population makes it
particularly susceptible to extirpation from spills and other
catastrophic events, the spread of invasive species, and effects of
genetic inbreeding.
The species could be vulnerable to overutilization for scientific
or recreational purposes (Factor B), but the significance of this
threat is minimized through the State's administration of scientific
collecting permits. There are no known threats to the diamond darter
from disease or predation (Factor C). Although some regulatory
mechanisms exist (Factor D), they do not succeed in alleviating these
threats. 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 these factors is such that the magnitude and
imminence of threats to the diamond darter are significant throughout
its entire current range.
Determination
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
threats to its habitat and water quality, 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 data, we
list 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 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 determination apply to the
species throughout its entire range.
Available Conservation Measures
Conservation measures provided to species listed as endangered or
threatened species under the Act include recognition, recovery actions,
requirements for Federal protection, and prohibitions against certain
practices. Recognition through listing results in public awareness and
conservation by Federal, State, Tribal, and local agencies, private
organizations, and individuals. The Act encourages cooperation with the
States and requires that recovery actions be carried out for all listed
species. The protections required by Federal agencies and the
prohibitions against certain activities are discussed, in part, below.
The primary purpose of the Act is the conservation of endangered
and threatened species and the ecosystems upon which they depend. The
ultimate goal of such conservation efforts is the recovery of these
listed species, so that they no longer need the protective measures of
the Act. Subsection 4(f) of the Act requires the Service to develop and
implement recovery plans for the conservation of endangered and
threatened 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
[[Page 45094]]
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 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 Fish
and Wildlife 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, Tribal, 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.
Once 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 Kentucky, Ohio,
Tennessee, and West Virginia will be eligible for Federal funds to
implement management actions that promote the protection or recovery of
the diamond darter. Information on our grant programs that are
available to aid species recovery can be found at: http://www.fws.gov/grants.
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 subsequently, section 7(a)(2) of the Act requires Federal
agencies to ensure that activities they carry out, authorize, or fund
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
consultation as described in the preceding paragraph include the
issuance of section 404 Clean Water Act permits by the ACOE;
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 USEPA; 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.
Our policy, as published in the Federal Register on July 1, 1994
(59 FR 34272), is 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 listing on
proposed and ongoing activities within the range of listed species. 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.
Questions regarding whether specific activities would constitute a
violation of section 9 of the Act should be directed to the West
Virginia Ecological Services Field Office (see FOR FURTHER INFORMATION
CONTACT).
Required Determinations
National Environmental Policy Act
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 an endangered or
threatened species under the Endangered Species Act. We published a
notice outlining our reasons for this
[[Page 45095]]
determination in the Federal Register on October 25, 1983 (48 FR
49244).
Government-to-Government Relationship With Tribes
In accordance with the President's memorandum of April 29, 1994
(Government-to-Government Relations with Native American Tribal
Governments; 59 FR 22951), Executive Order 13175 (Consultation and
Coordination With Indian Tribal Governments), and the Department of 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.
References Cited
A complete list of all references cited in this rule is available
on the Internet at http://www.regulations.gov or upon request from the
West Virginia Field Office (see FOR FURTHER INFROMATION CONTACT).
Author(s)
The primary author of this document is staff from the West Virginia
Field Office (see ADDRESSES).
List of Subjects in 50 CFR Part 17
Endangered and threatened species, Exports, Imports, Reporting and
recordkeeping requirements, Transportation.
Regulation Promulgation
Accordingly, we amend part 17, subchapter B of chapter I, title 50
of the Code of Federal Regulations, as follows:
PART 17--[AMENDED]
0
1. The authority citation for part 17 continues to read as follows:
Authority: 16 U.S.C. 1361-1407; 1531-1544; 4201-4245; unless
otherwise noted.
0
2. Amend Sec. 17.11(h) by adding an entry for ``Darter, diamond'' to
the List of Endangered and Threatened Wildlife in alphabetical order
under Fishes to read as follows:
Sec. 17.11 Endangered and threatened wildlife.
* * * * *
(h) * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
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. (IN, KY, OH, Entire............. E 815 NA NA
cincotta. TN, WV).
* * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
Dated: July 18, 2013.
Stephen Guertin,
Acting Director, U.S. Fish and Wildlife Service.
[FR Doc. 2013-17938 Filed 7-25-13; 8:45 am]
BILLING CODE 4310-55-P