[Federal Register Volume 86, Number 65 (Wednesday, April 7, 2021)]
[Rules and Regulations]
[Pages 17956-17992]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-06748]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
[Docket No. FWS-R5-ES-2018-0050; FF09E21000 FXES11110900000 212]
RIN 1018-BD15
Endangered and Threatened Wildlife and Plants; Designation of
Critical Habitat for Candy Darter
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Final rule.
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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), designate
critical habitat for the candy darter (Etheostoma osburni) under the
Endangered Species Act (Act). In total, approximately 593 stream
kilometers (368 stream miles) in Virginia and West Virginia fall within
the boundaries of the critical habitat designation. The effect of this
final rule is to designate critical habitat under the Act for the candy
darter, an endangered species of fish.
DATES: This rule becomes effective on May 7, 2021.
ADDRESSES: This final rule is available on the internet at http://www.regulations.gov in Docket No. FWS-R5-ES-2018-0050 or at https://www.fws.gov/northeast/candydarter and at the West Virginia Ecological
Services Field Office. Comments and materials we received, as well as
some supporting documentation we used in preparing this rule, are
available for public inspection in the docket 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 Ecological Services Field Office, 90 Vance Drive, Elkins, WV,
26241; telephone 304-636-6586.
The coordinates or plot points or both from which the maps are
generated are included in the administrative record for this critical
habitat designation and are available at http://www.regulations.gov at
Docket No. FWS-R5-ES-2018-0050, and at the West Virginia Ecological
Services Field Office, https://www.fws.gov/westvirginiafieldoffice/index.html (see FOR FURTHER INFORMATION CONTACT). Any additional tools
or supporting information that we developed for this critical habitat
designation will also be available at the U.S. Fish and Wildlife
Service website and field office set out above, and may also be
included in the preamble and at http://www.regulations.gov.
FOR FURTHER INFORMATION CONTACT: Acting Field Supervisor, U.S. Fish and
Wildlife Service, West Virginia Ecological Services Field Office, 90
Vance Drive, Elkins, WV 26241; telephone 304-636-6586. If you use a
telecommunications device for the deaf (TDD), call the Federal Relay
Service at 800-877-8339.
SUPPLEMENTARY INFORMATION:
Executive Summary
Why we need to publish a rule. This document is a final rule to
designate critical habitat for the candy darter. Under the Endangered
Species Act of 1973, as amended (16 U.S.C. 1531 et seq.) (Act), any
species that is determined to be an endangered or threatened species
requires critical habitat to be designated, to the maximum extent
prudent and determinable. Designations and revisions of critical
habitat can be completed only by issuing a rule.
We listed the candy darter as an endangered species on November 21,
2018 (83 FR 58747). Also, on November 21, 2018, we published in the
Federal Register a proposed critical habitat designation for candy
darter (83 FR 59232). Section 4(b)(2) of the Act states that the
Secretary shall designate critical habitat on the basis of the best
available scientific data after taking into consideration the economic
impact, national security impact, and any other relevant impact of
specifying any particular area as critical habitat.
What this document does. This document is a final rule that
designates critical habitat necessary for the conservation of the candy
darter. The critical habitat areas we are designating in this rule
constitute our current best assessment of the areas that meet the
definition of critical habitat for candy darter. We are designating a
total of approximately 593 stream kilometers (368 stream miles) of
rivers and streams in Virginia and West Virginia for the candy darter.
Peer review and public comment. Our designation is based on the
best scientific data available in our peer-reviewed species status
assessment (SSA) report. The SSA was used to inform the decisionmaking
process of the proposed and final listing rules (82 FR 46197 and 83 FR
58747, respectively) and proposed and final critical habitat
designations (83 FR 59232 and this rule, respectively). For further
detail on the responses from peer reviewers, see the final rule listing
the candy darter as an endangered species (83 FR 58747). We also
considered all comments and information received from the public during
the comment period for the proposed designation of critical habitat.
Information we received from public comment is incorporated in this
final designation of critical habitat, as appropriate, or addressed
below in Summary of Comments and Recommendations.
Previous Federal Actions
We proposed the candy darter for listing on October 4, 2017 (82 FR
46197), and finalized the listing on November 21, 2018 (83 FR 58747).
As such, the candy darter is included as an endangered species on the
List of Endangered and Threatened Wildlife in title 50 of the Code of
Federal Regulations at 50 CFR 17.11(h). We also proposed to designate
critical habitat for the candy darter on November 21, 2018 (83 FR
59232). For information on any actions prior to these rules, refer to
the proposed listing rule.
Summary of Comments and Recommendations
We requested written comments from the public on the proposed
designation of critical habitat for the candy darter (83 FR 59232)
during an open comment period that opened on November 21, 2018, and
closed on January 22, 2019. We did not receive any requests for a
public hearing. We also contacted appropriate Federal, State, and local
agencies; scientific organizations; and other interested parties and
invited them to comment on the proposed rule and draft economic
analysis during these comment periods.
During the comment period, we received 14 comment letters directly
addressing the proposed critical habitat designation. All substantive
information provided during the comment period has been grouped into
general issues specifically relating to the proposed critical habitat
designation for the candy darter and either incorporated directly into
this final determination, as appropriate, or addressed below in the
following summary.
In addition, some of the 14 substantive comments directly related
to the critical habitat designation also contained suggestions that
were applicable to general recovery issues for
[[Page 17957]]
the candy darter, but not directly related to the critical habitat
designation (i.e., meaning these comments are outside the scope of the
critical habitat rule). These general comments included topics such as
the use of reintroductions or translocations, specific areas for high-
quality reintroduction sites, riparian vegetation management to address
the effects of climate change on water temperature in candy darter
streams, and baitfish regulations. While these comments may not be
directly incorporated into the critical habitat rule, we have noted the
suggestions and look forward to working with our partners on these
topics during recovery planning for the candy darter.
Comments From Federal Agencies
(1) Comment: The U.S. Forest Service (USFS), the West Virginia
Department of Natural Resources (DNR), and several public commenters
suggested that reintroductions or translocations or both would be
important conservation strategies for the candy darter. Some commenters
suggested specific areas that would represent high-quality
reintroduction sites.
Our response: During recovery planning and implementation for the
candy darter, we will work collaboratively with our partners and all
stakeholders to recover the species. Translocation into historically
occupied habitats is consistent with the recovery strategy laid out in
the Candy Darter Recovery Outline (Service 2019, entire). We appreciate
the support of our partners in this regard and will continue to work
with them to determine appropriate locations to implement this
strategy, monitor the success of these efforts, and manage these
populations as needed.
(2) Comment: The USFS urged us to consider that designating
critical habitat might mandate conservation measures beneficial to the
candy darter but perhaps be detrimental to the overall aquatic
ecosystem (e.g., maintaining or adding barriers to fish passage).
Our response: Barriers to fish passage may reduce the spread of
variegate darters (Etheostoma variatum), the primary threat to candy
darters, within candy darter habitats. However, the designation of
critical habitat will not result in the mandate to install any passage
barriers. Any proposals to install or remove fish passage barriers
would be evaluated on a case-by-case basis for their potential effects
to the candy darter and its critical habitat, as well as for the
overall conservation benefits and effects to other ecosystem functions.
(3) Comment: The USFS asked us to clarify and recognize that the
areas of ongoing hybridization between variegate darters and candy
darters may change.
Our response: Occupied habitat for the candy darter are those areas
where individual fish with pure candy darter alleles were found based
on the most recent survey results. We recognize that the zone of
hybridization may change over time and that pure candy darters may
become extirpated from some portions of currently occupied habitat in
the future. However, maintaining existing populations is important to
the survival and recovery of the species. Therefore, designation of
occupied habitat as it occurs at the time of listing is appropriate.
Critical habitat can be revised in the future if substantial new
information becomes available that would suggest certain areas should
be added or removed.
(4) Comment: The USFS asked to us to acknowledge the importance of
Forest Service Watershed Restoration Action Plans (and other
conservation actions ongoing in national forests) within the range of
the candy darter and expressed interest in discussing potential effects
of critical habitat designations on land management activities.
Our response: We acknowledge the significant conservation
contributions that the USFS has made to protecting and enhancing candy
darter habitat and its surrounding watershed. We also recognize that
there are section 7 consultation requirements as a result of the
listing of the candy darter and the designation of critical habitat. We
will continue to work collaboratively with the USFS to address these
workload concerns and to determine what additional avoidance,
minimization, and conservation measures are appropriate for the
species.
(5) Comment: The USFS suggested that we consider whether or not the
designation of critical habitat may increase the risk of malicious
introductions of nonnative fish into candy darter streams.
Our response: We are not aware of any efforts to maliciously
introduce nonnative fish in candy darter waters. The designation of
critical habitat may increase public awareness of the importance of
these watersheds and encourage the development of education and
outreach about baitfish regulations. We are working with the West
Virginia DNR to revise regulations to reduce the potential for baitfish
introductions with the aim of increasing awareness and enforcement on
this issue.
(6) Comment: The USFS and one public commenter raised concerns that
climate change may cause widespread changes in vegetation in the
riparian areas that would result in higher temperatures or increased
flooding, which increases sedimentation in candy darter streams.
Our response: We acknowledge the importance of intact riparian
areas to maintaining candy darter habitat and will work with partners
to maintain and restore appropriate riparian areas to provide the
proper thermal properties and bank stability in candy darter habitat.
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.''
Comments received from agencies within the State of West Virginia (the
State) regarding the proposal to designate critical habitat for the
candy darter are addressed below.
(7) Comment: The proposed critical habitat rule also sought
comments on the Service's intent to explore other recovery tools that
may require additional regulations (e.g., designating experimental
populations under section 10(j) of the Act) or permits (i.e., Safe
Harbor Agreements under section 10 of the Act). The West Virginia DNR
expressed concern with using our authorities under section 10(j) of the
Act for recovery of the candy darter. The State concluded that
establishing experimental populations (or designating additional areas
of critical habitat, other than those proposed) is not in the best
interest of the species. Conversely, one public commenter suggested
that we should use our authorities under section 10(j) of the Act to
establish experimental candy darter populations to promote State and
private landowner collaboration in conserving the species.
Our response: As discussed above, during the recovery planning
process for the candy darter, we will work collaboratively with our
partners and stakeholders to ensure the best conservation outcome for
the species. Translocation into historical habitats is consistent with
the species' recovery strategy.
Upon further consideration, we conclude that designating
experimental populations (under section 10(j) of the Act) is not
appropriate at this time, and we are not designating any areas as
critical habitat beyond those that were proposed. In the future, if we
determine, in consultation with partners and stakeholders, that the
reintroduction of the species to certain historically occupied streams
would benefit from
[[Page 17958]]
the regulatory flexibility offered by section 10(j) of the Act, we will
publish a proposed rule for public comment. See Summary of Changes from
Proposed Rule, below, for additional information.
(8) Comment: The West Virginia Department of Environmental
Protection (DEP) and a public commenter expressed concerns with
designating critical habitat. Commenters indicated that we should not
designate critical habitat because: (1) Hybridization (and not loss of
habitat) is the primary stressor affecting the candy darter; (2)
habitat protections would not reduce the likelihood of extinction; and
(3) habitat protections may disproportionately benefit the variegate
darter.
Our response: The designation of critical habitat is not a
discretionary action. According to section 4(a)(3)(A) of the Act, the
Secretary of the Interior shall, to the maximum extent prudent and
determinable, concurrently with making a determination that a species
is an endangered species or a threatened species, designate critical
habitat for that species. We have determined that critical habitat is
both prudent and determinable for the candy darter (83 FR 59232,
November 21, 2018). Therefore, as required by the Act and after
consideration of substantive comments on the proposed rule, we are
designating, as critical habitat, those areas occupied by the species
at the time of listing on which are found the physical or biological
features essential for the conservation of the species and which may
require special management considerations or protection.
As we discussed in the SSA report (Service 2018, entire) and the
proposed rule (83 FR 59232, November 21, 2018), there are multiple
stressors in addition to the introduction of the variegate darter that
are affecting the candy darter. Management of these other stressors
will be important to the conservation of the species. In addition,
while eliminating variegate darters from candy darter watersheds is an
important goal for the conservation of the species, we are not aware of
feasible methods for achieving this goal. We look forward to working
with our conservation partners to research potential methods for
reducing the threat of variegate darter hybridization. Though the candy
darter and variegate darter share many of the same habitat
requirements, such as unembedded gravel substrate, we have no evidence
to suggest that the maintenance of high-quality habitat for the candy
darter disproportionately benefits the variegate darter. On the
contrary, it is conceivable that variegate darters are more tolerant of
marginal habitat conditions and that high-quality streams within the
candy darter's historical range might provide the candy darter a
competitive advantage over the introduced variegate darter.
(9) Comment: The West Virginia DNR noted that candy darters may
also be present in several perennial tributaries outside of the streams
proposed for designation as critical habitat, but that these
tributaries have not been surveyed. The State did not recommend
including these tributaries as critical habitat at this time, but did
recommend that these streams should be considered when reviewing
projects that may affect the species.
Our response: We acknowledge that the candy darter may be present
in additional streams or tributaries that have not been surveyed, and
will work with the West Virginia DNR and Virginia Department of Game
and Inland Fisheries to develop a list of these streams so that they
can be considered during project reviews. The candy darter will be
protected as an endangered species wherever it is found under the
prohibitions described in section 9 of the Act.
(10) Comment: The West Virginia DEP pointed out that the rule does
not define the ratio or density of nonnative species that would be
consistent with the conservation of the candy darter.
Our response: As discussed in the candy darter SSA report, the
scientific evidence is clear that nonnative species can have a
detrimental effect on native species such as the candy darter. However,
the data are not currently available to explicitly define a ratio or
density of nonnatives that is protective of the candy darter. Research
into establishing such conservation metrics and recovery goals for the
candy darter will be addressed during the recovery planning and
implementation process.
(11) Comment: The West Virginia DNR informed us that they have
taken steps to formulate regulations designed to curtail, mitigate, or
both, the practice of moving baitfish in regions that still contain
candy darter populations and in areas in which they hope to reestablish
candy darter populations.
Our response: Limiting the movement of baitfish is a key component
to reduce the threat of additional variegate darter introductions, and
we applaud the State's efforts in this regard.
(12) Comment: The West Virginia DNR suggested that we may have
underestimated the threat of acid precipitation in the Upper Gauley.
Our response: Stream acidification in some candy darter watersheds
is a serious concern and we appreciate the efforts of the State and
other partners in addressing this threat. We will address this topic in
future recovery planning.
Public Comments
(13) Comment: Two public commenters expressed concerns regarding
the effect of a critical habitat designation on the coal mining
industry. There was a particular emphasis of concern around a statement
in the incremental effects memorandum (IEM) prepared by us for the
economic analysis of the critical habitat designation (IEM 2018). The
statement reads: ``Specific recommendations for coal mining in candy
darter watersheds (augmenting the general management recommendations)
will include not using valley fills. Strategic placement and frequent
maintenance of all construction and operational features (e.g., roads,
slurry ponds, and other features that lead to sedimentation) will also
be recommended.'' The commenters stated that this provision would
result in a ban on coal mining.
Our response: It is important to note the context of this statement
within the IEM, as it describes ``protections or efforts relevant to
the known threats to the species that would provide some level of
conservation for the candy darter absent the proposed critical habitat
designation.'' The suggestion of avoiding valley fills as a
conservation measure for candy darters specifically refers to potential
actions that are not a result of critical habitat designation.
Therefore, the IEM does not include the effects of these actions in its
analysis, as they would occur regardless of the presence or absence of
designated critical habitat.
We do not propose (nor do we have the authority) to ban coal
mining. Federal agencies are required to consult with the Service to
ensure that any action they carry out, fund, or authorize will not
jeopardize the species or destroy or adversely modify designated
critical habitat. The requirement to ensure any action does not
jeopardize the species applies whether or not the action area is
designated as critical habitat. Avoiding the use of valley fills in
coal mining in candy darter watersheds, as referenced by the IEM, is an
example of a conservation measure the Service might recommend during
section 7 consultation, whether or not the area is designated as
critical habitat.
The Service's 1996 Biological Opinion (BO) issued to the Office of
Surface Mining and Reclamation and Enforcement (OSMRE) addresses coal
mining practices regulated under the Surface Mining Control and
Reclamation Act. The terms and conditions of that BO require the
[[Page 17959]]
Service to work with the appropriate State regulatory authority to
develop species-specific protective measures (SSPMs) to avoid and
minimize the impacts to listed species. Implementation of SSPMs and
development of the required protection and enhancement plan do not make
any single conservation measure mandatory (e.g., banning the use of
valley fills). Rather, during the consultation process for each
project, the Service works with OSMRE and the State regulatory agency
to develop specific conservation measures to satisfy the requirement of
the BO to avoid and minimize impacts to the candy darter while allowing
coal mining to proceed.
(14) Comment: Two public commenters provided comments describing
the beneficial impacts of forestry best management practices (BMPs) on
water quality and encouraged us to use ``consistent language, that is
supported by science when discussing the value of forestry BMPs.''
Our response: We have always relied upon the use of the best
scientific and commercial data available in decisionmaking processes,
and we will continue to do so with regard to discussions of BMPs. The
implementation of BMPs for forestry can reduce sedimentation when
consistently and diligently applied, and that these BMPs are important
for preserving the integrity of aquatic habitats and the species that
occupy them. However, the assertion that current mechanisms are
protective of the species does not relieve the Service of its statutory
obligation to designate critical habitat. In Ctr. for Biological
Diversity v. Norton, 240 F. Supp. 2d 1090 (D. Ariz. 2003), the court
held that the Act does not direct us to designate critical habitat only
in those areas where ``additional'' special management considerations
or protection is needed. If any area provides the physical or
biological features essential to the conservation of the species, even
if that area is already well managed or protected, that area still
qualifies as critical habitat under the statutory definition if special
management is needed.
(15) Comment: Two public commenters encouraged us to work with the
State and private landowners to establish forestry BMPs on property
that is adjacent to the critical habitat designation.
Our response: We recognize and appreciate the importance of working
with landowners and project proponents to protect candy darter
habitats, and to avoid, minimize, and mitigate any adverse effects that
may occur. We will continue to use our existing authorities to address
these issues as appropriate.
(16) Comment: Two public commenters noted that candy darters occupy
habitats in watersheds with active coal mining. They stated that this
situation suggests that candy darters can ``thrive'' in these areas.
Our response: While candy darter populations may persist in some
watersheds where mining or other land disturbances are or have been
present, the extent to which these populations are stable and/or
thriving remains to be determined. The proposed critical habitat rule
does not specify that any particular land use is incompatible with the
persistence of candy darter populations. As mentioned in previous
responses to comments raising concerns about the impacts to the coal
mining industry, we plan to work cooperatively with the relevant State
and Federal regulatory agencies to develop conservation measures
allowing the continuation of coal mining in a manner that avoids and
minimizes impacts to the candy darter and its habitat.
(17) Comment: One public commenter requested that we reinitiate
section 7 consultation and issue a biological opinion for two natural
gas Executive Order 13211 construction projects.
Our response: We are aware of these two pipeline projects and are
in discussions with the Federal Energy Regulatory Commission regarding
section 7 consultation needs for the candy darter.
(18) Comment: One public commenter asked us to clarify the terms
``stream mile'' and ``protection of riparian buffers'' and to confirm
that private forest lands are not included in the critical habitat
designation. Similarly, another commenter suggested that we should
exclude State and private forest lands from a final critical habitat
designation.
Our response: We determined the ``stream mile'' to be the estimated
length of the occupied stream segment by tracing the approximate
centerline of the stream channel from the appropriate upstream defining
characteristic to the appropriate downstream defining characteristic
using the USA Topo Environmental Systems Research Institute (ESRI)
basemap and/or U.S. Geological Survey topographic map. See the
``Criteria Used to Identify Critical Habitat'' section in the proposed
critical habitat rule (83 FR 59232, November 21, 2018) for further
details. Within these stream segments, critical habitat consists of the
stream channel up to the ordinary high water line. As defined at 33 CFR
329.11, the ``ordinary high water mark'' on nontidal rivers is the line
on the shore established by the fluctuations of water and indicated by
physical characteristics such as a clear, natural line impressed on the
bank; shelving; changes in the character of the soil; destruction of
terrestrial vegetation; the presence of litter and debris; or other
appropriate means that consider the characteristics of the surrounding
areas.
Therefore, adjacent upland or terrestrial areas that are not below
the ordinary high water line are not included in designated critical
habitat. However, we would anticipate conducting section 7
consultations with Federal agencies for projects on Federal lands or
for projects with a Federal nexus if a project had indirect impacts to
the candy darter's critical habitat or on the species itself. In
general, activities in riparian areas should be conducted in such a
manner as to protect adjacent streams from excessive sedimentation,
high water temperatures, and other water quality perturbations that
would be detrimental to the candy darter. Where a landowner requests
Federal agency funding or authorization for an action that may affect a
listed species or critical habitat, the consultation requirements of
section 7(a)(2) of the Act apply, but even in the event of a
destruction or adverse modification finding, the obligation of the
Federal action agency and the landowner is not to restore or recover
the species, but to implement reasonable and prudent alternatives to
avoid destruction or adverse modification of critical habitat.
Summary of Changes From Proposed Rule
Changes from the proposed to the final critical habitat designation
were minor in nature. Based on substantive comments received during the
public comment period that provided new candy darter survey data and
habitat observations, we corrected some stream termini (and resultant
segment lengths). Additionally, one stream with candy darter occurrence
data was inadvertently omitted from the proposed rule; this segment is
now included as critical habitat. The changes listed below resulted in
a net reduction of approximately 2.8 stream kilometers (1.7 stream
miles) of critical habitat from what was originally proposed. All
changes are reflected on the maps, which outline the areas designated
as critical habitat and are located at the end of this document.
[[Page 17960]]
Table 1--Changes to Critical Habitat Units Based on Information Received During the Public Comment Period
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Net change
-------------------------------
Unit Subunit Stream
kilometers Stream miles
----------------------------------------------------------------------------------------------------------------
1--Greenbrier................................................... 1a -5.0 -3.1
1--Greenbrier................................................... 1b +3.9 +2.4
2--Middle New................................................... 2b -3.1 -1.9
2--Middle New................................................... 2c +1.4 +0.9
-----------------------------------------------
Total....................................................... .............. -2.8 -1.7
----------------------------------------------------------------------------------------------------------------
As mentioned above in Summary of Comments and Recommendations, the
Service has reconsidered its intent to establish nonessential
experimental populations using our authority under section 10(j) of the
Act at this time. Based on comments from a State partner, we conclude
that allowing the States to reestablish and translocate the candy
darter into historically occupied areas using their own authorities
will be a more effective recovery strategy for the candy darter.
However, if we receive further substantive information at a later date
and determine that the use of a section 10(j) rule will aid in the
recovery of the candy darter, we will publish a proposed rule for
public comment. Reestablishing candy darter populations into
historically occupied areas continues to be an important part of our
recovery strategy for the candy darter. We will coordinate with our
partners to implement the most effective recovery strategy. In both the
State of Virginia and the State of West Virginia, the water and the
streambed fall under the authority of the State. As a result, the State
resource agencies hold the State regulatory authority over the waters
(Virginia Code Sec. 62.1, West Virginia Code Sec. 22-26).
Critical Habitat
Background
Please refer to our November 21, 2018, proposed critical habitat
rule (83 FR 59232) for a summary of species information available to
the Service at the time that the proposed rule was published. Based on
information we received during the proposed rule's public comment
period, we updated several critical habitat stream termini to more
accurately capture areas that meet the definition of critical habitat
and remove areas that do not. We also added one inadvertently omitted
occupied stream as critical habitat in the Greenbrier River watershed.
The result of these changes in this final rule is a net reduction of
approximately 1.7 stream miles (2.8 stream kilometers) (outlined
above). These changes are incorporated into the critical habitat maps
at the end of this rule.
Critical habitat is defined in section 3 of the Act as:
(1) The specific areas within the geographical area occupied by the
species, at the time it is listed in accordance with the Act, on which
are found those physical or biological features:
(a) Essential to the conservation of the species, and
(b) Which may require special management considerations or
protection; and
(2) Specific areas outside the geographical area occupied by the
species at the time it is listed, upon a determination that such areas
are essential for the conservation of the species.
Our regulations at 50 CFR 424.02 define the geographical area
occupied by the species as, ``An area that may generally be delineated
around species' occurrences, as determined by the Secretary (i.e.,
range). Such areas may include those areas used throughout all or part
of the species' life cycle, even if not used on a regular basis (e.g.,
migratory corridors, seasonal habitats, and habitats used periodically,
but not solely by vagrant individuals).''
Conservation, as defined under section 3 of the Act, means ``to use
and the use of all methods and procedures which are necessary to bring
any endangered species or threatened species to the point at which the
measures provided pursuant to [the Act] are no longer necessary. Such
methods and procedures include, but are not limited to, all activities
associated with scientific resources management such as research,
census, law enforcement, habitat acquisition and maintenance,
propagation, live trapping, and transplantation, and, in the
extraordinary case where population pressures within a given ecosystem
cannot be otherwise relieved, may include regulated taking.''
Critical habitat receives protection under section 7 of the Act
through the requirement that Federal agencies ensure, in consultation
with the Service, that any action they authorize, fund, or carry out is
not likely to result in the destruction or adverse modification of
critical habitat. The designation of critical habitat does not affect
land ownership or establish a refuge, wilderness, reserve, preserve, or
other conservation area. Such designation does not allow the government
or public to access private lands. Such designation does not require
implementation of restoration, recovery, or enhancement measures by
non-Federal landowners. Where a landowner requests Federal agency
funding or authorization for an action that may affect a listed species
or critical habitat, the consultation requirements of section 7(a)(2)
of the Act apply, but even in the event of a destruction or adverse
modification finding, the obligation of the Federal action agency and
the landowner is not to restore or recover the species, but to
implement reasonable and prudent alternatives to avoid destruction or
adverse modification of critical habitat.
Under the first prong of the Act's definition of critical habitat,
areas within the geographical area occupied by the species at the time
it was listed are included in a critical habitat designation if they
contain physical or biological features: (1) Which are essential to the
conservation of the species, and (2) which may require special
management considerations or protection. For these areas, critical
habitat designations identify, to the extent known using the best
scientific and commercial data available, those physical or biological
features that are essential to the conservation of the species (such as
space, food, cover, and protected habitat). In identifying those
physical or biological features within an area, we focus on the
specific features that support the life-history needs of the species,
including but not limited to,
[[Page 17961]]
water characteristics, soil type, geological features, prey,
vegetation, symbiotic species, or other features. A feature may be a
single habitat characteristic, or a more complex combination of habitat
characteristics. Features may include habitat characteristics that
support ephemeral or dynamic habitat conditions. Features may also be
expressed in terms relating to principles of conservation biology, such
as patch size, distribution distances, and connectivity.
Under the second prong of the Act's definition of critical habitat,
we can designate critical habitat in areas outside of the geographical
area occupied by the species at the time it is listed, upon a
determination that such areas are essential for the conservation of the
species. For example, an area currently occupied by the species but
that was not occupied at the time of listing may be essential to the
conservation of the species and may be included in the critical habitat
designation.
Section 4 of the Act requires that we designate critical habitat on
the basis of the best scientific data available. Further, our Policy on
Information Standards Under the Endangered Species Act (published in
the Federal Register on July 1, 1994 (59 FR 34271)), the Information
Quality Act (section 515 of the Treasury and General Government
Appropriations Act for Fiscal Year 2001 (Pub. L. 106-554; H.R. 5658)),
and our associated Information Quality Guidelines provide criteria,
establish procedures, and provide guidance to ensure that our decisions
are based on the best scientific data available. They require our
biologists, to the extent consistent with the Act and with the use of
the best scientific data available, to use primary and original sources
of information as the basis for recommendations to designate critical
habitat.
When we are determining which areas should be designated as
critical habitat, our primary source of information is generally the
information from the SSA report and information developed during the
listing process for the species. Additional information sources may
include any generalized conservation strategy, criteria, or outline
that may have been developed for the species, the recovery plan for the
species, articles in peer-reviewed journals, conservation plans
developed by States and counties, scientific status surveys and
studies, biological assessments, other unpublished materials, or
experts' opinions or personal knowledge.
Habitat is dynamic, and species may move from one area to another
over time. We recognize that critical habitat designated at a
particular point in time may not include all of the habitat areas that
we may later determine are necessary for the recovery of the species.
For these reasons, a critical habitat designation does not signal that
habitat outside the designated area is unimportant or may not be needed
for recovery of the species. Areas that are important to the
conservation of the species, both inside and outside the critical
habitat designation, will continue to be subject to: (1) Conservation
actions implemented under section 7(a)(1) of the Act, (2) regulatory
protections afforded by the requirement in section 7(a)(2) of the Act
for Federal agencies to ensure their actions are not likely to
jeopardize the continued existence of any endangered or threatened
species, and (3) the Act's section 9 prohibitions on taking any
individual of the species, including taking caused by actions that
affect habitat. Federally funded or permitted projects affecting listed
species outside their designated critical habitat areas may still
result in jeopardy findings in some cases. These protections and
conservation tools will continue to contribute to the recovery of this
species. Similarly, critical habitat designations made on the basis of
the best available information at the time of designation will not
control the direction and substance of future recovery plans, habitat
conservation plans (HCPs), or other species conservation planning
efforts if new information available at the time of these planning
efforts calls for a different outcome.
On August 27, 2019, we published a final rule in the Federal
Register (84 FR 45020) to amend our regulations concerning the
procedures and criteria we use to designate and revise critical
habitat. That rule became effective on September 26, 2019, but, as
stated in that rule, the amendments it sets forth apply to ``rules for
which a proposed rule was published after September 26, 2019.'' We
published our proposed critical habitat designation for the candy
darter on November 21, 2018 (83 FR 59232); therefore, the amendments
set forth in the August 27, 2019, final rule at 84 FR 45020 do not
apply to this final designation of critical habitat for the candy
darter.
Physical or Biological Features
In accordance with section 3(5)(A)(i) of the Act and regulations at
50 CFR 424.12(b), in determining which areas within the geographical
area occupied by the species at the time of listing to designate as
critical habitat, we consider the physical or biological features that
are essential to the conservation of the species and which may require
special management considerations or protection. For example, physical
features might include gravel of a particular size required for
spawning, alkali soil for seed germination, protective cover for
migration, or susceptibility to flooding or fire that maintains
necessary early-successional habitat characteristics. Biological
features might include prey species, forage grasses, specific kinds or
ages of trees for roosting or nesting, symbiotic fungi, or a particular
level of nonnative species consistent with conservation needs of the
listed species. The features may also be combinations of habitat
characteristics and may encompass the relationship between
characteristics or the necessary amount of a characteristic needed to
support the life history of the species. In considering whether
features are essential to the conservation of the species, the Service
may consider an appropriate quality, quantity, and spatial and temporal
arrangement of habitat characteristics in the context of the life-
history needs, condition, and status of the species. These
characteristics include, but are not limited to, space for individual
and population growth and for normal behavior; food, water, air, light,
minerals, or other nutritional or physiological requirements; cover or
shelter; sites for breeding, reproduction, or rearing (or development)
of offspring; and habitats that are protected from disturbance.
Summary of Essential Physical or Biological Features
We derive the specific physical or biological features essential to
the conservation of candy darter from studies of this species' habitat,
ecology, and life history as described below. Additional information
can be found in the proposed critical habitat designation and final
listing rule published in the Federal Register on November 21, 2018 (83
FR 59232 and 83 FR 58747, respectively), and the recovery outline for
the candy darter (Service 2019, entire), which can be found at: https://ecos.fws.gov/docs/recovery_plan/2018%20CDRecoveryOutline.pdf. We have
determined that the following physical or biological features are
essential to the conservation of the candy darter:
(1) Ratios or densities of nonnative species that allow for
maintaining populations of candy darters;
[[Page 17962]]
(2) A blend of unembedded gravel and cobble that allows for normal
breeding, feeding, and sheltering behavior;
(3) Adequate water quality characterized by seasonally moderated
temperatures and physical and chemical parameters (e.g., pH, dissolved
oxygen levels, turbidity, etc.) that support normal behavior, growth,
and viability of all life stages of the candy darter;
(4) An abundant, diverse benthic macroinvertebrate community (e.g.,
mayfly nymphs, midge larvae, caddisfly larvae) that allows for normal
feeding behavior; and
(5) Sufficient water quantity and velocities that support normal
behavior, growth, and viability of all life stages of the candy darter.
Special Management Considerations or Protection
When designating critical habitat, we assess whether the specific
areas within the geographical area occupied by the species at the time
of listing contain features that are essential to the conservation of
the species and which may require special management considerations or
protection. The overall habitat characteristics that are important for
the candy darter include sufficiently stabilized forest streambanks
throughout the watersheds such that water quality allows for normal
feeding, breeding, and sheltering in an area with sufficiently low
numbers of nonnative species (Service 2018, pp. 15-17, 22-25, 32-34).
The features essential to the conservation of the candy darter may
require special management considerations or protections to reduce the
following threats: (1) Hybridization with the nonnative variegate
darter; (2) general increase in water temperature, primarily attributed
to land use changes; (3) changes in water chemistry, including, but not
limited to, changes in pH levels or concentrations of certain
contaminants (such as, but not limited to, coliform bacteria); (4)
habitat fragmentation primarily due to construction of barriers and
impoundments; (5) excessive sedimentation and stream bottom
embeddedness (the degree to which gravel, cobble, rocks, and boulders
are surrounded by, or covered with, fine sediment particles); and (6)
competition for habitat and other instream resources and predation from
nonnative fishes.
Management activities that could ameliorate these threats include,
but are not limited to: (1) Use of BMPs designed to reduce
sedimentation, erosion, and bankside destruction; (2) protection of
riparian corridors and retention of sufficient canopy cover along
streambanks; (3) reduction of other watershed disturbances that release
sediments, pollutants, or nutrients into the water; (4) public outreach
requesting the public's assistance with stopping the movement of
nonnative aquatic species; (5) increased enforcement and/or outreach
regarding existing regulations prohibiting the movement of bait fish;
(6) survey and monitoring to further characterize the extent and spread
of hybridization with variegate darters; (7) research to determine
whether some environmental factors or set of factors might allow candy
darters to persist in particular areas despite variegate darter
introductions; (8) research characterizing habitat conditions in
historically extirpated candy darter sites to facilitate successful
reintroduction efforts; (9) research and development of tools and
techniques that can be used to address the competitive behavior that
allows for variegate darters to dominate candy darters, which leads to
hybridization; and (10) reintroductions of candy darters to
historically extirpated areas and/or population augmentation of candy
darters in sufficient numbers to outcompete variegate darters.
Criteria Used To Identify Critical Habitat
As required by section 4(b)(2) of the Act, we use the best
scientific data available to designate critical habitat. In accordance
with the Act and our implementing regulations at 50 CFR 424.12(b), we
review available information pertaining to the habitat requirements of
the species and identify specific areas within the geographical area
occupied by the species at the time of listing and any specific areas
outside the geographical area occupied by the species to be considered
for designation as critical habitat. We are not designating any areas
outside the geographical area occupied by the species at the time of
listing, because we did not find any areas that were essential for the
conservation of the species. We are designating critical habitat in
areas within the geographical area occupied by the species at the time
of listing in 2018. Refer to the candy darter proposed critical habitat
designation for a full description of criteria used to identify
critical habitat (83 FR 59232, November 21, 2018).
When determining critical habitat boundaries within this final
rule, we made every effort to avoid including developed areas such as
lands covered by buildings, pavement, and other structures because such
lands lack physical or biological features that are suitable for the
candy darter. The scale of the maps that the Service prepared under the
parameters for publication within the Code of Federal Regulations may
not reflect the exclusion of such developed lands. Any such lands
inadvertently left inside critical habitat boundaries shown on the maps
of this final rule have been excluded by text in the rule and are not
designated as critical habitat. Therefore, a Federal action involving
these lands will not trigger section 7 consultation requirements with
respect to critical habitat and the requirement of no destruction or
adverse modification unless the specific action would affect the
physical or biological features in the adjacent critical habitat.
The critical habitat designation is defined by the map or maps, as
modified by any accompanying regulatory text, presented at the end of
this document in the rule portion. We include more detailed information
on the boundaries of the critical habitat designation in the preamble
of this document. We will make the coordinates or plot points or both
on which each map is based available to the public on http://www.regulations.gov at Docket No. FWS-R5-ES-2018-0050, on our internet
site https://www.fws.gov/northeast/candydarter/, and at the field
office responsible for the designation (see FOR FURTHER INFORMATION
CONTACT, above).
Final Critical Habitat Designation
We are designating five units as critical habitat for the candy
darter. The critical habitat areas described below constitute our best
assessment at this time of areas that meet the definition of critical
habitat. Those five units are: (1) Greenbrier, (2) Middle New, (3)
Lower Gauley, (4) Upper New, and (5) Upper Gauley.
BILLING CODE 4333-15-P
[[Page 17963]]
[GRAPHIC] [TIFF OMITTED] TR07AP21.000
BILLING CODE 4333-15-C
We present brief descriptions of all units, and reasons why they
meet the definition of critical habitat for the candy darter, below. In
all instances, the units are occupied. The State of Virginia (VA) or
West Virginia (WV), as applicable, owns the stream water and stream
bottoms, and the lands described below are those adjacent to the
designated critical habitat stream areas.
Unit 1: Greenbrier
The Greenbrier Unit consists of six subunits in Pocahontas County,
WV. The occupied streams are adjacent to primarily Federal land, with
some private land and one State-owned parcel. The Greenbrier Unit has
been surveyed for the candy darter as recently as 2014 (Service 2018,
p. 48). The unit currently supports all breeding, feeding, and
sheltering needs for the species. See details below.
Unit 1a: East Fork of the Greenbrier River, Pocahontas County, WV
Unit 1a consists of approximately 29.7 stream kilometers (skm)
(18.5 stream miles (smi)) of the East Fork of the Greenbrier River from
the confluence of an unnamed tributary (located 1.8 skm (1.1 smi)
upstream of the Bennett Run confluence), downstream to the confluence
of the East Fork and West Fork of the Greenbrier River at Durbin, WV;
approximately 6.8 skm (4.2 smi) of the Little River from the U.S.
Highway 250 crossing, downstream to the confluence of the Little River
and the East Fork of the Greenbrier River; and approximately 1.9 skm
(1.2 smi) of Buffalo Fork from the Buffalo Lake dam, downstream to the
confluence of Buffalo Fork and the Little River. The land adjacent to
this unit is mostly forested interspersed with small communities, low-
density residences, and agricultural fields along the lower portion of
the East Fork of the Greenbrier River. Approximately 21.2 skm (13.2
smi) of Unit 1a is within the Monongahela National Forest with the
remainder located almost entirely adjacent to private land, except for
a small amount that is publicly owned in the form of bridge crossings,
road easements, and the like. Candy darters occur at multiple sites in
this unit (Service 2018, p. 28). Unit 1a contributes to the redundancy
of the Greenbrier metapopulation.
Unit 1b: West Fork of the Greenbrier River, Pocahontas County, WV
Unit 1b consists of approximately 29.9 skm (18.6 smi) of the West
Fork of the Greenbrier River from the confluence with Snorting Lick
Run, downstream to the confluence of the East Fork and West Fork of the
Greenbrier River at Durbin, WV; approximately 13.3 skm (8.3 smi) of the
Little River from the confluence with Hansford Run, downstream to the
confluence of the Little River and the West Fork of the Greenbrier
River; and approximately 4.8 skm (3.0 smi) of Mountain Lick Creek from
the confluence with an unnamed tributary (located 1.5 skm (0.9 smi)
downstream of the Upper Mountain Lick Forest Service Road crossing),
downstream to the confluence of Mountain Lick Creek and the West Fork
of the Greenbrier River. The land adjacent to this unit is almost
entirely forested interspersed with a few residences and agricultural
fields along the lower portion of the West Fork of the Greenbrier River
near
[[Page 17964]]
the town of Durbin, WV. Approximately 47.1 skm (29.3 smi) of Unit 1b is
within the Monongahela National Forest with the remainder adjacent to
almost entirely private land, except for a small amount that is
publicly owned in the form of bridge crossings, road easements, and the
like. Surveys found candy darters at multiple sites in this unit
(Service 2018, p. 28). Unit 1b contributes to the redundancy of the
Greenbrier metapopulation.
Unit 1c: Upper Greenbrier River, Pocahontas County, WV
Unit 1c consists of approximately 69.3 skm (43.1 smi) of the
Greenbrier River from the confluence of the East Fork and West Fork of
the Greenbrier River at Durbin, WV, downstream to the confluence of
Knapp Creek at Marlinton, WV. The land adjacent to this unit is mostly
forested; however, several small communities with residences and light
commercial development, along with scattered rural residences and
agricultural fields, occur at various locations. Approximately 47.5 skm
(29.5 smi) of Unit 1c is within the Monongahela National Forest and the
Seneca State Forest, with the remainder adjacent to almost entirely
private land, except for a small amount that is publicly owned in the
form of bridge crossings, road easements, and the like. Survey data
indicate candy darters are present in the upper and lower portions of
this unit (Service 2018, p. 28). While survey data for the intervening
section are lacking, candy darters may occur where suitable habitat is
present. Unit 1c contributes to the redundancy of the Greenbrier
metapopulation and provides connectivity between the other Greenbrier
watershed populations.
Unit 1d: Deer Creek, Pocahontas County, WV
Unit 1d consists of approximately 21.2 skm (13.2 smi) of Deer Creek
from the confluence of Deer Creek and Saulsbury Run, downstream to the
confluence with the Greenbrier River; and approximately 16.3 skm (10.1
smi) of North Fork from a point approximately 1.6 km (1.0 mi) upstream
of the Elleber Run confluence, downstream to the confluence of North
Fork and Deer Creek. The lower half of the land adjacent to this unit
is mostly forested, while the upper portion contains low-density
residences and agricultural fields. Approximately 10.0 skm (6.2 smi) of
Unit 1d is within the Monongahela National Forest, with the remainder
adjacent to almost entirely private land, except for a small amount
that is publicly owned in the form of bridge crossings, road easements,
and the like. Surveys collected candy darters at two locations in this
unit (Service 2018, p. 28). Unit 1d contributes to the redundancy of
the Greenbrier metapopulation.
Unit 1e: Sitlington Creek, Pocahontas County, WV
Unit 1e consists of approximately 10.1 skm (6.3 smi) of Sitlington
Creek from the confluence of Galford Run and Thorny Branch, downstream
to the confluence with the Greenbrier River. Some of the riparian area
of Unit 1e is forested; however, the majority of the land adjacent to
this unit is agricultural fields and widely scattered residences.
Approximately 1.2 skm (0.7 smi) of Unit 1e is within the Monongahela
National Forest, with the remainder adjacent to almost entirely private
land, except for a small amount that is publicly owned in the form of
bridge crossings, road easements, and the like. Candy darters have been
documented at several locations in this unit (Service 2018, p. 28).
Unit 1e contributes to the redundancy of the Greenbrier metapopulation.
Unit 1f: Knapp Creek, Pocahontas County, WV
Unit 1f consists of approximately 43.9 skm (27.3 smi) of Knapp
Creek from a point approximately 0.16 skm (0.1 smi) west of the WV
Route 84 and Public Road (PR) 55 intersection, downstream to the
confluence with the Greenbrier River at Marlinton, WV. The land
adjacent to this unit is largely forested; however, low-density
residential and agricultural fields occur in much of the upstream
portions. The land surrounding the lowest section of Unit 1f is
dominated by residential and commercial development. Approximately 7.2
skm (4.5 smi) of Unit 1f is within the Monongahela National Forest,
with the remainder adjacent to almost entirely private land, except for
a small amount that is publicly owned in the form of bridge crossings,
road easements, and the like. Surveys documented candy darters at
several locations in this unit (Service 2018, p. 28). Unit 1f
contributes to the redundancy of the Greenbrier metapopulation.
Unit 2: Middle New
The Middle New Unit comprises three stream subunits in Bland and
Giles Counties, VA. The occupied streams are adjacent to a mix of
Federal and private land. Candy darter have been surveyed in the Middle
New Unit as recently as 2016 (Service 2018, p. 48). The unit currently
supports all breeding, feeding, and sheltering needs for the species.
See details below.
Unit 2a: Dismal Creek, Bland and Giles Counties, VA
Unit 2a consists of approximately 4.2 skm (2.6 smi) of Dismal Creek
from the confluence with Standrock Branch, downstream to the confluence
of Dismal Creek and Kimberling Creek. The land adjacent to this unit is
almost entirely forested, with some scattered residences and small
agricultural fields. Approximately 3.2 skm (2.0 smi) of Unit 2a is
within the George Washington and Jefferson National Forest, with the
remainder adjacent to almost entirely private land, except for a small
amount that is publicly owned in the form of bridge crossings, road
easements, and the like. Surveys documented a small candy darter
population, which contributes to the representation and redundancy of
the species (Service 2018, p. 28).
Unit 2b: Stony Creek, Giles County, VA
Unit 2b consists of approximately 31.1 skm (19.3 smi) of Stony
Creek from the confluence with White Rock Branch, downstream to the
confluence with the New River. The land adjacent to this unit is almost
entirely forested, with some scattered residences, a large underground
lime mine, a processing plant, and a railroad spur line along the
downstream portion. Approximately 16.1 skm (10.0 smi) of Unit 2b is
within the George Washington and Jefferson National Forest, with the
remainder adjacent to almost entirely private land, except for a small
amount that is publicly owned in the form of bridge crossings, road
easements, and the like. Surveys documented candy darters at multiple
locations within this unit. Unit 2b is the most robust population in
Virginia and contributes to the representation and redundancy of the
species (Service 2018, p. 28).
Unit 2c: Laurel Creek, Bland County, VA
Unit 2c consists of approximately 5.1 skm (3.2 smi) of Laurel Creek
from a point approximately 0.8 skm (0.5 smi) upstream of the unnamed
pond, downstream to the confluence of Laurel Creek and Wolf Creek and
approximately 1.4 skm (0.8 smi) of Wolf Creek from the Laurel Creek
confluence downstream to the stream riffle adjacent to the intersection
of Wolf Creek Highway and Alder Lane. The unit passes through a
forested gap in a ridgeline; however, the riparian zone is dominated by
Interstate Highway 77, U.S. Highway 52, and residential and commercial
development. Unit 2c is adjacent to almost entirely private land,
[[Page 17965]]
except for a small amount that is publicly owned in the form of bridge
crossings, road easements, and the like. Surveys found candy darters at
several locations within this unit (Service 2018, p. 28). Unit 2c
contributes to the representation and redundancy of the species.
Unit 3: Lower Gauley, ``Lower'' Gauley River, Nicholas County, WV
Unit 3 consists of approximately 2.9 skm (1.8 smi) of the Gauley
River from the base of the Summersville Dam, downstream to the
confluence of Collison Creek. The land adjacent to this unit is
entirely forested, with the exception of parking areas and
infrastructure at the base of the Summersville Dam. The entirety of
Unit 3 is within the National Park Service's Gauley River National
Recreation Area and the U.S. Army Corps of Engineer's (Corps')
Summersville Recreation Area. Candy darters are abundant in the
tailwaters of the dam. Unit 3 supports the only candy darter population
remaining in the Lower Gauley watershed and contributes to the
representation and redundancy of the species. Candy darters were
documented in surveys of Unit 3 as recently as 2014 (Service 2018, pp.
28 & 48). The unit currently supports all breeding, feeding, and
sheltering needs for the species.
Unit 4: Upper New, Cripple Creek, Wythe County, VA
Unit 4 consists of approximately 7.9 skm (4.9 smi) of Cripple Creek
from a point approximately 3.2 skm (2.0 smi) upstream of the State Road
94 bridge, downstream to the confluence of Cripple Creek and the New
River. The land adjacent to this unit is primarily low-density
residences and agricultural fields, although some small segments pass
through wooded parcels. The stream in Unit 4 is adjacent to almost
entirely private land, except for a small amount that is publicly owned
in the form of bridge crossings, road easements, and the like. Surveys
found candy darters at several locations within this unit as recently
as 2016 (Service 2018, pp. 28 & 48). This is the only known candy
darter population in the Upper New River watershed, and this unit
contributes to the representation and redundancy of the species. The
unit currently supports all breeding, feeding, and sheltering needs for
the species.
Unit 5: Upper Gauley
The Upper Gauley Unit consists of six stream subunits in Nicholas,
Greenbrier, Pocahontas, and Webster Counties, WV. The occupied streams
are adjacent to a mix of Federal and private land. Candy darter have
been surveyed in the Upper Gauley Unit as recently as 2014 (Service
2018, p. 48). The unit currently supports all breeding, feeding, and
sheltering needs for the species. See details below.
Unit 5a: Gauley Headwaters, Webster County, WV
Unit 5a consists of approximately 37.3 skm (23.2 smi) of the Gauley
River from the North and South Forks of the Gauley River, downstream to
the confluence of the Gauley River and the Williams River at Donaldson,
WV; and 2.9 skm (1.8 smi) of Straight Creek from its confluence with
the Gauley River to a point approximately 2.9 skm (1.8 smi) upstream of
the confluence. The land adjacent to this unit is mostly forested;
however, aerial imagery (ESRI 2015; ESRI 2016; ESRI 2017) shows forest
clearings with varying degrees of regrowth, indicating ongoing timber
harvests in some tributary stream systems. Other human development in
the watershed consists primarily of scattered residences and roads,
mostly in the valley adjacent to the Gauley River. Approximately 9.0
skm (5.6 smi) of Unit 5a is within the Monongahela National Forest. The
remainder of the unit is adjacent to almost entirely private land,
except for a small amount that is publicly owned in the form of bridge
crossings, road easements, and the like. Surveys of Unit 5a captured
candy darters at multiple locations (Service 2018, p. 28). The unit
contributes to the redundancy of the Upper Gauley metapopulation.
Unit 5b: Upper Gauley River, Nicholas and Webster Counties, WV
Unit 5b consists of approximately 43.8 skm (27.2 smi) of the Gauley
River from the confluence of the Gauley and Williams Rivers at
Donaldson, WV, downstream to a point approximately 1.6 skm (1.0 smi)
upstream of the Big Beaver Creek confluence. The land adjacent to this
unit is mostly forested; however, aerial imagery (ESRI 2015; ESRI 2016;
ESRI 2017) shows forest clearings with varying degrees of regrowth,
indicating ongoing timber harvests in some areas. Other human
development consists primarily of low-density residential areas and
small communities with some commercial facilities. Small agricultural
fields are associated with some of the scattered residences.
Approximately 14.6 skm (9.2 smi) of Unit 5b is within the Monongahela
National Forest and/or adjacent to land owned by the Corps. The streams
in the remainder of the unit are adjacent to almost entirely private
land, except for a small amount that is publicly owned in the form of
bridge crossings, road easements, and the like. Surveys of Unit 5b
captured candy darters at several locations (Service 2018, p. 28). The
unit provides connectivity between other candy darter streams in the
Upper Gauley watershed and contributes to the redundancy of the Upper
Gauley metapopulation.
Unit 5c: Panther Creek, Nicholas County, WV
Unit 5c consists of approximately 16.3 skm (10.1 smi) of Panther
Creek from a point approximately 1.1 skm (0.7 smi) upstream of the
Grassy Creek Road crossing, downstream to the confluence with the
Gauley River. The unit is mostly forested; however, aerial imagery
(ESRI 2015; ESRI 2016; ESRI 2017) shows forest clearings with varying
degrees of regrowth, indicating ongoing timber harvests in much of the
upland areas. Other human development consists of the occasional
residence and small agricultural field in the creek valley, and the
Richwood Municipal Airport located on an adjacent ridge. The streams in
Unit 5c are adjacent to almost entirely private land, except for a
small amount that is publicly owned in the form of bridge crossings,
road easements, and the like. While survey data are sparse for this
unit, candy darters occur within Panther Creek, and the stream
maintains suitable habitat for the species; thus, this unit contributes
to the redundancy of the Upper Gauley metapopulation (Service 2018, p.
28).
Unit 5d: Williams River, Pocahontas and Webster Counties, WV
Unit 5d consists of approximately 52.4 skm (32.6 smi) of the
Williams River from the confluence with Beaverdam Run, downstream to
the confluence of the Williams River and the Gauley River at Donaldson,
WV; and 5.1 skm (3.2 smi) of Tea Creek from a point on Lick Creek
approximately 2.7 skm (1.7 smi) upstream of the Lick Creek confluence,
downstream to the Tea Creek confluence with the Williams River. The
land adjacent to this unit is almost entirely forested with just a few
residences and small agricultural fields at the lower portion of the
river. The streams in Unit 5d are entirely within the Monongahela
National Forest. Survey data indicate candy darters are present at the
upper and lower portions of this unit. While data are sparse for the
majority of the intervening stretch, we assume, based on the available
evidence, that the habitat is suitable for the species (Service 2018,
p. 28). Unit 5d contributes to the redundancy of the Upper Gauley
metapopulation.
[[Page 17966]]
Unit 5e: Cranberry River, Nicholas and Webster Counties, WV
Unit 5e consists of approximately 39.3 skm (24.4 smi) of the
Cranberry River from the confluence of the North and South Forks of the
Cranberry River, downstream to the confluence of the Cranberry River
and the Gauley River. The land adjacent to this unit is almost entirely
forested, and the stream is entirely within the Monongahela National
Forest. Survey data indicate candy darters are present at the upper and
lower portions of this unit. While survey data are sparse for the
intervening stretch, we assume, based on the available evidence, that
the habitat is suitable for the species (Service 2018, p. 28). Unit 5e
contributes to the redundancy of the Upper Gauley metapopulation.
Unit 5f: Cherry River, Greenbrier and Nicholas Counties, WV
Unit 5f consists of approximately 16.7 skm (10.4 smi) of Cherry
River from the confluence of the North and South Forks of the Cherry
River, downstream to the confluence of the Cherry River and the Gauley
River; approximately 28.0 skm (17.4 smi) of the North Fork Cherry River
from the Pocahontas Trail crossing, downstream to the confluence of the
North and South Forks of the Cherry River; approximately 26.2 skm (16.3
smi) of the South Fork Cherry River from a point approximately 0.5 skm
(0.3 smi) south of County Road 29/4 in VA, downstream to the confluence
of the North and South Forks of the Cherry River; and approximately
24.9 skm (15.5 smi) of Laurel Creek from a point approximately 0.3 skm
(0.2 smi) west of Cold Knob Road, downstream to the confluence of
Laurel Creek and the Cherry River. The land adjacent to this unit is
mostly forested with scattered residences along the lower portion of
the Cherry River. The town of Richwood, WV, with residential and
commercial development and an industrial sawmill, is at the confluence
of the North and South Forks of the Cherry River. The North and South
Forks of the Cherry River are almost entirely forested; however, aerial
imagery (ESRI 2015; ESRI 2016; ESRI 2017) shows forest clearings with
varying degrees of regrowth, indicating ongoing timber harvests in
several locations. There are scattered residences on Laurel Creek and
some evidence of recent timber harvests; otherwise, the land adjacent
to this section of Unit 1f is mostly forested. Approximately 29.1 skm
(18.1 smi) of Unit 5f is within the Monongahela National Forest. The
remainder is adjacent to almost entirely private land, except for a
small amount that is publicly owned in the form of bridge crossings,
road easements, and the like. Survey data indicate candy darters are
well distributed throughout most of this unit (Service 2018, p. 28).
Unit 5f contributes to the redundancy of the Upper Gauley
metapopulation.
Effects of Critical Habitat Designation
Section 7 Consultation
Section 7(a)(2) of the Act requires Federal agencies, including the
Service, to ensure that any action they fund, authorize, or carry out
is not likely to jeopardize the continued existence of any endangered
species or threatened species or result in the destruction or adverse
modification of designated critical habitat of such species. In
addition, section 7(a)(4) of the Act requires Federal agencies to
confer with the Service on any agency action that is likely to
jeopardize the continued existence of any species proposed to be listed
under the Act or result in the destruction or adverse modification of
proposed critical habitat.
We published a final regulation with a revised definition of
destruction or adverse modification on August 27, 2019 (84 FR 45020).
Destruction or adverse modification means a direct or indirect
alteration that appreciably diminishes the value of critical habitat as
a whole for the conservation of a listed species.
If a Federal action may affect a listed species or its critical
habitat, the responsible Federal agency (action agency) must enter into
consultation with us. Examples of actions that are subject to the
section 7 consultation process are actions on State, tribal, local, or
private lands that require a Federal permit (such as a permit from the
U.S. Army Corps of Engineers under section 404 of the Clean Water Act
(33 U.S.C. 1251 et seq.) or a permit from the Service under section 10
of the Act) or that involve some other Federal action (such as funding
from the Federal Highway Administration, Federal Aviation
Administration, or the Federal Emergency Management Agency). Federal
actions not affecting listed species or critical habitat, and actions
on State, tribal, local, or private lands that are not federally funded
or authorized, do not require section 7 consultation.
As a result of section 7 consultation, we document compliance with
the requirements of section 7(a)(2) through our issuance of:
(1) A concurrence letter for Federal actions that may affect, but
are not likely to adversely affect, listed species or critical habitat;
or
(2) A biological opinion for Federal actions that may affect and
are likely to adversely affect, listed species or critical habitat.
When we issue a biological opinion concluding that a project is
likely to jeopardize the continued existence of a listed species and/or
destroy or adversely modify critical habitat, we provide reasonable and
prudent alternatives to the project, if any are identifiable, that
would avoid the likelihood of jeopardy and/or destruction or adverse
modification of critical habitat. We define ``reasonable and prudent
alternatives'' (at 50 CFR 402.02) as alternative actions identified
during consultation that:
(1) Can be implemented in a manner consistent with the intended
purpose of the action,
(2) Can be implemented consistent with the scope of the Federal
agency's legal authority and jurisdiction,
(3) Are economically and technologically feasible, and
(4) Would, in the Director's opinion, avoid the likelihood of
jeopardizing the continued existence of the listed species and/or avoid
the likelihood of destroying or adversely modifying critical habitat.
Reasonable and prudent alternatives can vary from slight project
modifications to extensive redesign or relocation of the project. Costs
associated with implementing a reasonable and prudent alternative are
similarly variable.
Regulations at 50 CFR 402.16 require Federal agencies to reinitiate
consultation on previously reviewed actions in instances where we have
listed a new species or subsequently designated critical habitat that
may be affected and the Federal agency has retained discretionary
involvement or control over the action (or the agency's discretionary
involvement or control is authorized by law). Consequently, Federal
agencies sometimes may need to request reinitiation of consultation
with us on actions for which formal consultation has been completed, if
those actions with discretionary involvement or control may affect
subsequently listed species or designated critical habitat.
Application of the ``Adverse Modification'' Standard
The key factor related to the adverse modification determination is
whether, with implementation of the proposed Federal action, the
affected critical habitat would continue to serve its intended
conservation role for the
[[Page 17967]]
species. Activities that may destroy or adversely modify critical
habitat are those that result in a direct or indirect alteration that
appreciably diminishes the value of critical habitat as a whole for the
conservation of the candy darter. As discussed above, the role of
critical habitat is to support physical or biological features
essential to the conservation of a listed species and provide for the
conservation of the species.
Section 4(b)(8) of the Act requires us to briefly evaluate and
describe, in any proposed or final regulation that designates critical
habitat, activities involving a Federal action that may destroy or
adversely modify such habitat, or that may be affected by such
designation.
Activities that may affect critical habitat, when carried out,
funded, or authorized by a Federal agency, should result in
consultation for the candy darter. These activities include, but are
not limited to:
(1) Actions that would promote or facilitate the movement of
variegate darters (or other nonnative aquatic species). Such activities
could include, but are not limited to, the transfer of surface water
across watershed boundaries and the modification or removal of dams
that are currently limiting the spread of variegate darters where they
have been introduced. These activities could further decrease the
abundance of the candy darter through hybridization with the nonnative
variegate darter.
(2) Actions that would significantly increase water temperature or
sedimentation and stream bottom embeddedness. Such activities could
include, but are not limited to, land use changes that result in an
increase in sedimentation, erosion, and bankside destruction or the
loss of the protection of riparian corridors and leaving insufficient
canopy cover along banks.
(3) Actions that would significantly alter water chemistry. Such
activities could include, but are not limited to, release of chemicals,
biological pollutants, or heated effluents into the surface water or
connected groundwater at a point source or by dispersed release
(nonpoint source). These activities could alter water conditions to
levels that are beyond the tolerances of the candy darter and result in
direct or cumulative adverse effects to these individuals and their
life cycles.
(4) Actions that would contribute to further habitat fragmentation.
Such activities include, but are not limited to, construction of
barriers that impede the instream movement of the candy darter (e.g.,
dams, culverts, or weirs). These activities can isolate populations
that are more at risk of decline or extirpation as a result of genetic
drift, demographic or environmental stochasticity, and catastrophic
events.
(5) Actions that would contribute to nonnative competition for
habitat and other instream resources and to predation. Possible actions
could include, but are not limited to, release or stocking of nonnative
fishes or other related actions. These activities can introduce
predators or affect the growth, reproduction, and survival of the candy
darter through competition for resources.
Exemptions
Application of Section 4(a)(3) of the Act
Section 4(a)(3)(B)(i) of the Act (16 U.S.C. 1533(a)(3)(B)(i))
provides that: ``The Secretary shall not designate as critical habitat
any lands or other geographic areas owned or controlled by the
Department of Defense, or designated for its use, that are subject to
an integrated natural resources management plan prepared under section
101 of the Sikes Act (16 U.S.C. 670a), if the Secretary determines in
writing that such plan provides a benefit to the species for which
critical habitat is proposed for designation.'' There are no Department
of Defense lands within the final critical habitat designation.
Consideration of Impacts Under Section 4(b)(2) of the Act
Section 4(b)(2) of the Act states that the Secretary shall
designate and make revisions to critical habitat on the basis of the
best available scientific data after taking into consideration the
economic impact, national security impact, and any other relevant
impact of specifying any particular area as critical habitat. The
Secretary may exclude an area from critical habitat if he determines
that the benefits of such exclusion outweigh the benefits of specifying
such area as part of the critical habitat, unless he determines, based
on the best scientific data available, that the failure to designate
such area as critical habitat will result in the extinction of the
species. In making that determination, the statute on its face, as well
as the legislative history are clear that the Secretary has broad
discretion regarding which factor(s) to use and how much weight to give
to any factor.
Consideration of Economic Impacts
Section 4(b)(2) of the Act and its implementing regulations require
that we consider the economic impact that may result from a designation
of critical habitat. In order to consider economic impacts, we prepared
an Incremental Effects Memo (IEM) and screening analysis, which
together with our narrative and interpretation of effects we consider
our draft economic analysis (DEA) of the proposed critical habitat
designation and related factors. The analysis, dated July 3 2018, was
made available for public review from November 21, 2018, through
January 22, 2019 (83 FR 59232). The DEA addressed probable economic
impacts of critical habitat designation for candy darter. Following the
close of the comment period, we reviewed and evaluated all information
submitted during the comment period that may pertain to our
consideration of the probable incremental economic impacts of this
critical habitat designation. Additional information relevant to the
probable incremental economic impacts of critical habitat designation
for the candy darter is available in the screening analysis for the
candy darter (IEc 2018), available at http://www.regulations.gov. We
made no changes to the screening analysis from the proposed rule to the
final rule.
Exclusions
Exclusions Based on Economic Impacts
After the Service fully considered the economic impacts of the
critical habitat designation, the Secretary has decided not to exercise
his discretion to exclude any areas from this critical habitat
designation based on those economic impacts. A copy of the IEM and
screening analysis with supporting documents may be obtained by
contacting the West Virginia Ecological Services Field Office (see
ADDRESSES) or by downloading from the internet at http://www.regulations.gov.
Exclusions Based on Impacts on National Security and Homeland Security
Under section 4(b)(2) of the Act, we consider whether there are
lands owned or managed by the Department of Defense where a national
security impact might exist. We have determined that the lands adjacent
to the designation of critical habitat for candy darter are not owned
or managed by the Department of Defense or Department of Homeland
Security, and, therefore, we anticipate no impact on national security.
In addition, we did not receive any requests based for exclusions based
on national security impacts from any Federal agency. Consequently, the
Secretary is not exercising his discretion to exclude any areas from
the final designation based on impacts on national security.
[[Page 17968]]
Exclusions Based on Other Relevant Impacts
Under section 4(b)(2) of the Act, the Service considers any other
relevant impacts of the critical habitat designation, in addition to
economic impacts and impacts on national security. The Service
considers a number of factors including whether there are permitted
conservation plans covering the species in the area such as HCPs, safe
harbor agreements, or candidate conservation agreements with
assurances, or whether there are nonpermitted conservation agreements
and partnerships that would be encouraged by designation of, or
exclusion from, critical habitat. In addition, we look at the existence
of tribal conservation plans and partnerships and consider the
government-to-government relationship of the United States with tribal
entities. We also consider any social impacts that might occur because
of the designation.
In preparing this final rule, we have determined that there are
currently no permitted conservation plans or other non-permitted
conservation agreements or partnerships for candy darter, and the final
designation does not include any tribal lands or tribal trust
resources. However, we are aware of management plans within the candy
darter's range such as the Monongahela National Forest Land and
Resource Management Plan and forest plans for the George Washington and
Thomas Jefferson National Forests. We anticipate no impact on tribal
lands, partnerships, permitted or nonpermitted plans or agreements from
this critical habitat designation. Accordingly, the Secretary is not
exercising his discretion to exclude any areas from this final
designation based on other relevant impacts.
Required Determinations
Regulatory Planning and Review (Executive Orders 12866 and 13563)
Executive Order 12866 provides that the Office of Information and
Regulatory Affairs in the Office of Management and Budget (OMB) will
review all significant rules. The Office of Information and Regulatory
Affairs has determined that this rule is not significant.
Executive Order 13563 reaffirms the principles of E.O. 12866 while
calling for improvements in the nation's regulatory system to promote
predictability, to reduce uncertainty, and to use the best, most
innovative, and least burdensome tools for achieving regulatory ends.
The executive order directs agencies to consider regulatory approaches
that reduce burdens and maintain flexibility and freedom of choice for
the public where these approaches are relevant, feasible, and
consistent with regulatory objectives. Executive Order 13563 emphasizes
further that regulations must be based on the best available science
and that the rulemaking process must allow for public participation and
an open exchange of ideas. We have developed this rule in a manner
consistent with these requirements.
Regulatory Flexibility Act (5 U.S.C. 601 et seq.)
Under the Regulatory Flexibility Act (RFA; 5 U.S.C. 601 et seq.),
as amended by the Small Business Regulatory Enforcement Fairness Act of
1996 (SBREFA; 5 U.S.C. 801 et seq.), whenever an agency is required to
publish a notice of rulemaking for any proposed or final rule, it must
prepare and make available for public comment a regulatory flexibility
analysis that describes the effects of the rule on small entities
(i.e., small businesses, small organizations, and small government
jurisdictions). However, no regulatory flexibility analysis is required
if the head of the agency certifies the rule will not have a
significant economic impact on a substantial number of small entities.
The SBREFA amended the RFA to require Federal agencies to provide a
certification statement of the factual basis for certifying that the
rule will not have a significant economic impact on a substantial
number of small entities.
According to the Small Business Administration, small entities
include small organizations such as independent nonprofit
organizations; small governmental jurisdictions, including school
boards and city and town governments that serve fewer than 50,000
residents; and small businesses (13 CFR 121.201). Small businesses
include manufacturing and mining concerns with fewer than 500
employees, wholesale trade entities with fewer than 100 employees,
retail and service businesses with less than $5 million in annual
sales, general and heavy construction businesses with less than $27.5
million in annual business, special trade contractors doing less than
$11.5 million in annual business, and agricultural businesses with
annual sales less than $750,000 (13 CFR 121.201). To determine if
potential economic impacts to these small entities are significant, we
considered the types of activities that might trigger regulatory
impacts under this designation as well as types of project
modifications that may result. In general, the term ``significant
economic impact'' is meant to apply to a typical small business firm's
business operations.
The Service's current understanding of the requirements under the
RFA, as amended, and following recent court decisions, is that Federal
agencies are required to evaluate the potential incremental impacts of
rulemaking only on those entities directly regulated by the rulemaking
itself, and therefore, not required to evaluate the potential impacts
to indirectly regulated entities. The regulatory mechanism through
which critical habitat protections are realized is section 7 of the
Act, which requires Federal agencies, in consultation with the Service,
to ensure that any action authorized, funded, or carried out by the
Agency is not likely to destroy or adversely modify critical habitat.
Therefore, under section 7, only Federal action agencies are directly
subject to the specific regulatory requirement (avoiding destruction
and adverse modification) imposed by critical habitat designation.
Consequently, it is our position that only Federal action agencies will
be directly regulated by this designation. There is no requirement
under RFA to evaluate the potential impacts to entities not directly
regulated. Moreover, Federal agencies are not small entities.
Therefore, because no small entities are directly regulated by this
rulemaking, the Service certifies that the final critical habitat
designation will not have a significant economic impact on a
substantial number of small entities.
During the development of this final rule we reviewed and evaluated
all information submitted during the comment period that may pertain to
our consideration of the probable incremental economic impacts of this
critical habitat designation. Based on this information, we affirm our
certification that this final critical habitat designation will not
have a significant economic impact on a substantial number of small
entities, and a regulatory flexibility analysis is not required.
Energy Supply, Distribution, or Use--Executive Order 13211
Executive Order 13211 (Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use) requires
agencies to prepare Statements of Energy Effects when undertaking
certain actions. The OMB has provided guidance for implementing this
Executive Order that outlines nine outcomes that may constitute ``a
significant adverse effect'' when compared to not taking the regulatory
action under consideration.
[[Page 17969]]
The economic analysis finds that none of these criteria are
relevant to this analysis. Thus, based on information in the economic
analysis, energy-related impacts associated with candy darter
conservation activities within critical habitat are not expected. As
such, the designation of critical habitat is not expected to
significantly affect energy supplies, distribution, or use. Therefore,
this action is not a significant energy action, and no Statement of
Energy Effects is required.
Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.)
In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501
et seq.), we make the following findings:
(1) This rule will not produce a Federal mandate. In general, a
Federal mandate is a provision in legislation, statute, or regulation
that would impose an enforceable duty upon State, local, or tribal
governments, or the private sector, and includes both ``Federal
intergovernmental mandates'' and ``Federal private sector mandates.''
These terms are defined in 2 U.S.C. 658(5)-(7). ``Federal
intergovernmental mandate'' includes a regulation that ``would impose
an enforceable duty upon State, local, or tribal governments'' with two
exceptions. It excludes ``a condition of Federal assistance.'' It also
excludes ``a duty arising from participation in a voluntary Federal
program,'' unless the regulation ``relates to a then-existing Federal
program under which $500,000,000 or more is provided annually to State,
local, and tribal governments under entitlement authority,'' if the
provision would ``increase the stringency of conditions of assistance''
or ``place caps upon, or otherwise decrease, the Federal Government's
responsibility to provide funding,'' and the State, local, or tribal
governments ``lack authority'' to adjust accordingly. At the time of
enactment, these entitlement programs were: Medicaid; Aid to Families
with Dependent Children work programs; Child Nutrition; Food Stamps;
Social Services Block Grants; Vocational Rehabilitation State Grants;
Foster Care, Adoption Assistance, and Independent Living; Family
Support Welfare Services; and Child Support Enforcement. ``Federal
private sector mandate'' includes a regulation that ``would impose an
enforceable duty upon the private sector, except (i) a condition of
Federal assistance or (ii) a duty arising from participation in a
voluntary Federal program.''
The designation of critical habitat does not impose a legally
binding duty on non-Federal Government entities or private parties.
Under the Act, the only regulatory effect is that Federal agencies must
ensure that their actions do not destroy or adversely modify critical
habitat under section 7. While non-Federal entities that receive
Federal funding, assistance, or permits, or that otherwise require
approval or authorization from a Federal agency for an action, may be
indirectly impacted by the designation of critical habitat, the legally
binding duty to avoid destruction or adverse modification of critical
habitat rests squarely on the Federal agency. Furthermore, to the
extent that non-Federal entities are indirectly impacted because they
receive Federal assistance or participate in a voluntary Federal aid
program, the Unfunded Mandates Reform Act would not apply, nor would
critical habitat shift the costs of the large entitlement programs
listed above onto State governments.
(2) We do not believe that this proposed rule would significantly
or uniquely affect small governments because the waters being proposed
for critical habitat designation are owned by the States of Virginia
and West Virginia. These government entities do not fit the definition
of ``small government jurisdiction.'' Therefore, a Small Government
Agency Plan is not required.
Takings--Executive Order 12630
In accordance with E.O. 12630 (Government Actions and Interference
with Constitutionally Protected Private Property Rights), we have
analyzed the potential takings implications of designating critical
habitat for candy darter in a takings implications assessment. The Act
does not authorize the Service to regulate private actions on private
lands or confiscate private property as a result of critical habitat
designation. Designation of critical habitat does not affect land
ownership, or establish any closures, or restrictions on use of or
access to the designated areas. Furthermore, the designation of
critical habitat does not affect landowner actions that do not require
Federal funding or permits, nor does it preclude development of habitat
conservation programs or issuance of incidental take permits to permit
actions that do require Federal funding or permits to go forward.
However, Federal agencies are prohibited from carrying out, funding, or
authorizing actions that would destroy or adversely modify critical
habitat. A takings implications assessment has been completed and
concludes that this designation of critical habitat for candy darter
does not pose significant takings implications for lands within or
affected by the designation.
Federalism--Executive Order 13132
In accordance with E.O. 13132 (Federalism), this proposed rule does
not have significant Federalism effects. A Federalism assessment is not
required. In keeping with Department of the Interior and Department of
Commerce policy, we requested information from, and coordinated
development of this critical habitat designation with, appropriate
State resource agencies in Virginia and West Virginia. We received
comments from the West Virginia DNR and the West Virginia DEP and have
addressed them in the Summary of Comments and Recommendations section
of the preamble. From a federalism perspective, the designation of
critical habitat directly affects only the responsibilities of Federal
agencies. The Act imposes no other duties with respect to critical
habitat, either for States and local governments, or for anyone else.
As a result, the rule does not have substantial direct effects either
on the States, or on the relationship between the national government
and the States, or on the distribution of powers and responsibilities
among the various levels of government. The designation may have some
benefit to these governments because the areas that contain the
features essential to the conservation of the species are more clearly
defined, and the physical and biological features of the habitat
necessary to the conservation of the species are specifically
identified. This information does not alter where and what federally
sponsored activities may occur. However, it may assist these local
governments in long-range planning (because these local governments no
longer have to wait for case-by-case section 7 consultations to occur).
Where State and local governments require approval or authorization
from a Federal agency for actions that may affect critical habitat,
consultation under section 7(a)(2) would be required. While non-Federal
entities that receive Federal funding, assistance, or permits, or that
otherwise require approval or authorization from a Federal agency for
an action, may be indirectly impacted by the designation of critical
habitat, the legally binding duty to avoid destruction or adverse
modification of critical habitat rests squarely on the Federal agency.
Civil Justice Reform--Executive Order 12988
In accordance with Executive Order 12988 (Civil Justice Reform),
the Office
[[Page 17970]]
of the Solicitor has determined that the rule does not unduly burden
the judicial system and that it meets the applicable standards set
forth in sections 3(a) and 3(b)(2) of the Order. We are designating
critical habitat in accordance with the provisions of the Act. To
assist the public in understanding the habitat needs of the species,
the rule identifies the elements of physical or biological features
essential to the conservation of the candy darter. The designated areas
of critical habitat are presented on maps, and the rule provides
several options for the interested public to obtain more detailed
location information, if desired.
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.)
This rule does not contain any new collections of information that
require approval by OMB under the Paperwork Reduction Act of 1995 (44
U.S.C. 3501 et seq.). An agency may not conduct or sponsor, and a
person is not required to respond to, a collection of information
unless it displays a currently valid OMB control number.
National Environmental Policy Act (42 U.S.C. 4321 et seq.)
It is our position that, outside the jurisdiction of the U.S. Court
of Appeals for the Tenth Circuit, we do not need to prepare
environmental analyses pursuant to the National Environmental Policy
Act (NEPA; 42 U.S.C. 4321 et seq.) in connection with designating
critical habitat under the Act. We published a notice outlining our
reasons for this determination in the Federal Register on October 25,
1983 (48 FR 49244). This position was upheld by the U.S. Court of
Appeals for the Ninth Circuit (Douglas County v. Babbitt, 48 F.3d 1495
(9th Cir. 1995), cert. denied 516 U.S. 1042 (1996)).
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. We determined that there are no tribal
lands within the candy darter's historical or current range. Therefore,
we are not designating critical habitat for the candy darter on tribal
lands.
References Cited
A complete list of all references cited is available on the
internet at http://www.regulations.gov and upon request from the West
Virginia Ecological Services Field Office (see FOR FURTHER INFORMATION
CONTACT).
Authors
The primary authors of this rule are the staff members of the
Service's Species Assessment Team, the Northeast Regional Office, the
West Virginia Ecological Services Field Office, and the Southwestern
Virginia Ecological Services Field Office.
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 set forth below:
PART 17--ENDANGERED AND THREATENED WILDLIFE AND PLANTS
0
1. The authority citation for part 17 continues to read as follows:
Authority: 16 U.S.C. 1361-1407; 1531-1544; and 4201-4245;
unless otherwise noted.
0
2. Amend Sec. 17.11, in paragraph (h), by revising the entry for
``Darter, candy'' under ``Fishes'' in the List of Endangered and
Threatened Wildlife to read as follows:
Sec. 17.11 Endangered and threatened wildlife.
* * * * *
(h) * * *
----------------------------------------------------------------------------------------------------------------
Listing citations
Common name Scientific name Where listed Status and applicable
rules
----------------------------------------------------------------------------------------------------------------
* * * * * * *
Fishes
* * * * * * *
Darter, candy.................... Etheostoma osburni.. Wherever found...... E 83 FR 58747, 11/21/
2018;
50 CFR
17.95(e).\CH\
* * * * * * *
----------------------------------------------------------------------------------------------------------------
0
3. Amend Sec. 17.95, in paragraph (e), by adding an entry for ``Candy
Darter (Etheostoma osburni)'' after the entry for ``Amber Darter
(Percina antesella)'',
to read as follows:
Sec. 17.95 Critical habitat--fish and wildlife.
* * * * *
(e) * * *
Candy Darter (Etheostoma Osburni)
(1) Critical habitat units are depicted for Bland, Giles, and Wythe
Counties, Virginia, and Greenbrier, Nicholas, Pocahontas, and Webster
Counties, West Virginia, on the maps in this entry.
(2) Within these areas, the physical or biological features
essential to the conservation of the candy darter consist of the
following components:
(i) Ratios or densities of nonnative species that allow for
maintaining populations of candy darters.
(ii) A blend of unembedded gravel and cobble that allows for normal
breeding, feeding, and sheltering behavior.
(iii) Adequate water quality characterized by seasonally moderated
temperatures and physical and chemical parameters (e.g., pH, dissolved
oxygen
[[Page 17971]]
levels, turbidity) that support normal behavior, growth, and viability
of all life stages of the candy darter.
(iv) An abundant, diverse benthic macroinvertebrate community
(e.g., mayfly nymphs, midge larvae, caddisfly larvae) that allows for
normal feeding behavior.
(v) Sufficient water quantity and velocities that support normal
behavior, growth, and viability of all life stages of the candy darter.
(3) Critical habitat does not include manmade structures (such as
buildings, aqueducts, runways, roads, and other paved areas) and the
land on which they are located existing within the legal boundaries on
May 7, 2021.
(4) Critical habitat map units. The provided maps were made using
the geographic projection GCS_North_American_1983 coordinate system.
Four spatial layers are included as background layers. We used two
political boundary layers indicating the State and county boundaries
within the United States available through ArcMap Version 10.5 software
by ESRI. The roads layer displays major interstates, U.S. highways,
State highways, and county roads in the Census 2000/TIGER/Line dataset
provided by the U.S. Census Bureau, and available through ArcMap
Version 10.5 software. Lastly, the hydrologic data used to indicate
river and stream location are a spatial layer of rivers, streams, and
small tributaries from the National Hydrology Database (NHD) Plus
Version 2 database. This database divides the United States into a
number of zones, and the zones that include the area where candy darter
critical habitat is indicated are the Ohio-05 hydrologic zone and the
Mid Atlantic-02 hydrologic zone. The maps provided display the critical
habitat in relation to State and county boundaries, major roads and
highways, and connections to certain rivers and streams within the
larger river network. The maps in this entry, as modified by any
accompanying regulatory text, establish the boundaries of the critical
habitat designation. The coordinates or plot points or both on which
each map is based are available to the public at https://www.fws.gov/northeast/candydarter/, at http://www.regulations.gov at Docket No.
FWS-R5-ES-2018-0050, and at the field office responsible for this
designation. You may obtain field office location information by
contacting one of the Service regional offices, the addresses of which
are listed at 50 CFR 2.2.
[[Page 17972]]
(5) Note: Index map of candy darter critical habitat units follows:
BILLING CODE 4333-15-P
[GRAPHIC] [TIFF OMITTED] TR07AP21.001
[[Page 17973]]
(6) Index map of Unit 1-Greenbrier follows:
[GRAPHIC] [TIFF OMITTED] TR07AP21.002
(7) Unit 1a: East Fork of Greenbrier River, Pocahontas County, West
Virginia.
(i) General description: Unit 1a consists of approximately 29.7
stream kilometers (skm) (18.5 stream miles (smi)) of the East Fork of
the Greenbrier River from the confluence of an unnamed tributary
located 1.8 skm (1.1 smi) upstream of the Bennett Run confluence,
downstream to the confluence of the East Fork and West Fork of the
Greenbrier River at Durbin, West Virginia; and approximately 6.8 skm
(4.2 smi) of the Little River from the U.S. Highway 250 crossing,
downstream to the confluence of the Little River and the East Fork of
the Greenbrier River; and approximately 1.9 skm (1.2 smi) of Buffalo
Fork from the Buffalo Lake dam downstream to the confluence of Buffalo
Fork and the Little River. Approximately 21.2 skm (13.2 smi) of Unit 1a
is within the Monongahela National Forest with the remainder adjacent
to almost entirely private land, except for a small amount that is
[[Page 17974]]
publicly owned in the form of bridge crossings, road easements, and the
like.
(ii) Map of Unit 1a, East Fork of Greenbrier River, follows:
[GRAPHIC] [TIFF OMITTED] TR07AP21.003
(8) Unit 1b: West Fork of Greenbrier River, Pocahontas County, West
Virginia.
(i) General description: Unit 1b consists of approximately 29.9 skm
(18.6 smi) of the West Fork of the Greenbrier River from the confluence
with Snorting Lick Run, downstream to the confluence of the East Fork
and West Fork of the Greenbrier River at Durbin, West Virginia;
approximately 13.3 skm (8.3 smi) of the Little River from the
confluence with Hansford Run, downstream to the confluence of the
Little River and the West Fork of the Greenbrier River; and
approximately 4.8 skm (3.0 smi) of Mountain Lick Creek from the
confluence with an unnamed tributary (located 1.5 skm (0.9 smi)
downstream of the Upper Mountain Lick Forest Service Road crossing),
downstream to the confluence of Mountain Lick Creek and the West Fork
of the Greenbrier River. Approximately 47.1 skm (29.3 smi) of Unit 1b
is within the Monongahela National Forest with the remainder adjacent
to almost
[[Page 17975]]
entirely private land, except for a small amount that is publicly owned
in the form of bridge crossings, road easements, and the like.
(ii) Map of Unit 1b, West Fork of Greenbrier River, follows:
[GRAPHIC] [TIFF OMITTED] TR07AP21.004
(9) Unit 1c: Upper Greenbrier River, Pocahontas County, West
Virginia.
(i) General description: Unit 1c consists of approximately 69.3 skm
(43.1 smi) of the Greenbrier River from the confluence of the East Fork
and West Fork of the Greenbrier River at Durbin, West Virginia,
downstream to the confluence of Knapp Creek at Marlinton, West
Virginia. Approximately 47.5 skm (29.5 smi) of Unit 1c is within the
Monongahela National Forest and the Seneca State Forest, with the
remainder adjacent to private land, except for a small amount that is
publicly owned in the form of bridge crossings, road easements, and the
like.
[[Page 17976]]
(ii) Map of Unit 1c, Upper Greenbrier River, follows:
[GRAPHIC] [TIFF OMITTED] TR07AP21.005
(10) Unit 1d: Deer Creek, Pocahontas County, West Virginia.
(i) General description: Unit 1d consists of approximately 21.2 skm
(13.2 smi) of Deer Creek from the confluence of Deer Creek and
Saulsbury Run, downstream to the confluence with the Greenbrier River;
and approximately 16.3 skm (10.1 smi) of North Fork from a point
approximately 1.6 skm (1.0 smi) upstream of the Elleber Run confluence,
downstream to the confluence of North Fork and Deer Creek.
Approximately 10.0 skm (6.2 smi) of Unit 1d is within the Monongahela
National Forest, with the remainder adjacent to private land, except
for a small amount that is publicly owned in the form of bridge
crossings, road easements, and the like.
[[Page 17977]]
(ii) Map of Unit 1d, Deer Creek, follows:
[GRAPHIC] [TIFF OMITTED] TR07AP21.006
(11) Unit 1e: Sitlington Creek, Pocahontas County, West Virginia.
(i) General description: Unit 1e consists of approximately 10.1 skm
(6.3 smi) of Sitlington Creek from the confluence of Galford Run and
Thorny Branch, downstream to the confluence with the Greenbrier River.
Approximately 1.2 skm (0.7 smi) of Unit 1e is within the Monongahela
National Forest, with the remainder adjacent to private land, except
for a small amount that is publicly owned in the form of bridge
crossings, road easements, and the like.
[[Page 17978]]
(ii) Map of Unit 1e, Sitlington Creek, follows:
[GRAPHIC] [TIFF OMITTED] TR07AP21.007
(12) Unit 1f: Knapp Creek, Pocahontas County, West Virginia.
(i) General description: Unit 1f consists of approximately 43.9 skm
(27.3 smi) of Knapp Creek from a point approximately (0.1 smi) west of
the WV Route 84 and Public Road 55 intersection, downstream to the
confluence with the Greenbrier River at Marlinton, West Virginia.
Approximately 7.2 skm (4.5 smi) of Unit 1f is within the Monongahela
National Forest, with the remainder adjacent to private land, except
for a small amount that is publicly owned in the form of bridge
crossings, road easements, and the like.
[[Page 17979]]
(ii) Map of Unit 1f, Knapp Creek, follows:
[GRAPHIC] [TIFF OMITTED] TR07AP21.008
[[Page 17980]]
(13) Index map of Unit 2-Middle New follows:
[GRAPHIC] [TIFF OMITTED] TR07AP21.009
(14) Unit 2a: Dismal Creek, Bland and Giles Counties, Virginia.
(i) General description: Unit 2a consists of approximately 4.2 skm
(2.6 smi) of Dismal Creek from the confluence with Standrock Branch,
downstream to the confluence of Dismal Creek and Kimberling Creek.
Approximately 3.2 skm (2.0 smi) of Unit 2a is within the George
Washington and Jefferson National Forest, with the remainder adjacent
to private land, except for a small amount that is publicly owned in
the form of bridge crossings, road easements, and the like.
[[Page 17981]]
(ii) Map of Unit 2a, Dismal Creek, follows:
[GRAPHIC] [TIFF OMITTED] TR07AP21.010
(15) Unit 2b: Stony Creek, Giles County, Virginia.
(i) General description: Unit 2b consists of approximately 31.1 skm
(19.3 smi) of Stony Creek from the confluence with White Rock Branch,
downstream to the confluence with the New River. Approximately 16.1 skm
(10.0 smi) of Unit 2b is within the George Washington and Jefferson
National Forest, with the remainder adjacent to private land, except
for a small amount that is publicly owned in the form of bridge
crossings, road easements, and the like.
[[Page 17982]]
(ii) Map of Unit 2b, Stony Creek, follows:
[GRAPHIC] [TIFF OMITTED] TR07AP21.011
(16) Unit 2c: Laurel Creek, Bland County, Virginia.
(i) General description: Unit 2c consists of approximately 5.1 skm
(3.2 smi) of Laurel Creek from a point approximately 0.8 skm (0.5 smi)
upstream of the unnamed pond, downstream to the confluence of Laurel
Creek and Wolf Creek and approximately 1.4 skm (0.8 smi) of Wolf Creek
from the Laurel Creek confluence downstream to the stream riffle
adjacent to the intersection of Wolf Creek Highway and Alder Lane. Unit
2c is adjacent to private land, except for a small amount that is
publicly owned in the form of bridge crossings, road easements, and the
like.
[[Page 17983]]
(ii) Map of Unit 2c, Laurel Creek, follows:
[GRAPHIC] [TIFF OMITTED] TR07AP21.012
(17) Unit 3: Lower Gauley, ``Lower'' Gauley River, Nicholas County,
West Virginia.
(i) General description: Unit 3 consists of approximately 2.9 skm
(1.8 smi) of the Gauley River from the base of the Summersville Dam,
downstream to the confluence of Collison Creek. The entirety of Unit 3
is within the National Park Service's Gauley River National Recreation
Area and the U.S. Army Corps of Engineer's Summersville Recreation
Area.
[[Page 17984]]
(ii) Map of Unit 3-Lower Gauley follows:
[GRAPHIC] [TIFF OMITTED] TR07AP21.013
(18) Unit 4: Upper New, Cripple Creek, Wythe County, Virginia.
(i) General description: Unit 4 consists of approximately 7.9 skm
(4.9 smi) of Cripple Creek from a point approximately (2.0 smi)
upstream of the State Road 94 bridge, downstream to the confluence of
Cripple Creek and the New River. The stream in Unit 4 is adjacent to
private land, except for a small amount that is publicly owned in the
form of bridge crossings, road easements, and the like.
[[Page 17985]]
(ii) Map of Unit 4-Upper New follows:
[GRAPHIC] [TIFF OMITTED] TR07AP21.014
[[Page 17986]]
(19) Index map of Unit 5-Upper Gauley follows:
[GRAPHIC] [TIFF OMITTED] TR07AP21.015
(20) Unit 5a: Gauley Headwaters, Webster County, West Virginia.
(i) General description: Unit 5a consists of approximately 37.3 skm
(23.2 smi) of the Gauley River from the North and South Forks of the
Gauley River, downstream to the confluence of the Gauley River and the
Williams River at Donaldson, West Virginia; and 2.9 skm (1.8 smi) of
Straight Creek from its confluence with the Gauley River to a point
approximately 2.9 skm (1.8 smi) upstream of the confluence.
Approximately 9.0 skm (5.6 smi) of Unit 5a is within the Monongahela
National Forest. The remainder of the unit is adjacent to private land,
except for a small amount that is publicly owned in the form of bridge
crossings, road easements, and the like.
[[Page 17987]]
(ii) Map of Unit 5a, Gauley Headwaters, follows:
[GRAPHIC] [TIFF OMITTED] TR07AP21.016
(21) Unit 5b: Upper Gauley River, Nicholas and Webster Counties,
West Virginia.
(i) General description: Unit 5b consists of approximately 43.8 skm
(27.2 smi) of the Gauley River from the confluence of the Gauley and
Williams Rivers at Donaldson, West Virginia, downstream to a point
approximately 1.6 skm (1.0 smi) upstream of the Big Beaver Creek
confluence. Approximately 14.6 skm (9.2 smi) of Unit 5b is within the
Monongahela National Forest and/or adjacent to land owned by the U.S.
Army Corps of Engineers. The streams in the remainder of the unit are
adjacent to private land, except for a small amount that is publicly
owned in the form of bridge crossings, road easements, and the like.
[[Page 17988]]
(ii) Map of Unit 5b, Upper Gauley River, follows:
[GRAPHIC] [TIFF OMITTED] TR07AP21.017
(22) Unit 5c: Panther Creek, Nicholas County, West Virginia.
(i) General description: Unit 5c consists of approximately 16.3 skm
(10.1 smi) of Panther Creek from a point approximately 1.1 skm (0.7
smi) upstream of the Grassy Creek Road crossing, downstream to the
confluence with the Gauley River. The streams in Unit 5c are adjacent
to private land, except for a small amount that is publicly owned in
the form of bridge crossings, road easements, and the like.
[[Page 17989]]
(ii) Map of Unit 5c, Panther Creek, follows:
[GRAPHIC] [TIFF OMITTED] TR07AP21.018
(23) Unit 5d: Williams River, Pocahontas and Webster Counties, West
Virginia.
(i) General description: Unit 5d consists of approximately 52.4 skm
(32.6 smi) of the Williams River from the confluence with Beaverdam
Run, downstream to the confluence of the Williams River and the Gauley
River at Donaldson, West Virginia; and 5.1 skm (3.2 smi) of Tea Creek
from a point on Lick Creek approximately 2.7 skm (1.7 smi) upstream of
the Lick Creek confluence, downstream to the Tea Creek confluence with
the Williams River. The streams in Unit 5d are entirely within the
Monongahela National Forest.
[[Page 17990]]
(ii) Map of Unit 5d, Williams River, follows:
[GRAPHIC] [TIFF OMITTED] TR07AP21.019
(24) Unit 5e: Cranberry River, Nicholas and Webster Counties, West
Virginia.
(i) General description: Unit 5e consists of approximately 39.3 skm
(24.4 smi) of the Cranberry River from the confluence of the North and
South Forks of the Cranberry River, downstream to the confluence of the
Cranberry River and the Gauley River. This stream is entirely within
the Monongahela National Forest.
[[Page 17991]]
(ii) Map of Unit 5e, Cranberry River, follows:
[GRAPHIC] [TIFF OMITTED] TR07AP21.020
(25) Unit 5f: Cherry River, Greenbrier and Nicholas Counties, West
Virginia.
(i) General description: Unit 5f consists of approximately 16.7 skm
(10.4 smi) of Cherry River from the confluence of the North and South
Forks of the Cherry River, downstream to the confluence of the Cherry
River and the Gauley River; approximately 28.0 skm (17.4 smi) of the
North Fork Cherry River from the Pocahontas Trail crossing, downstream
to the confluence of the North and South Forks of the Cherry River;
approximately 26.2 skm (16.3 smi) of the South Fork Cherry River from a
point approximately 0.5 skm (0.3 smi) south of County Road 29/4 in
Virginia, downstream to the confluence of the North and South Forks of
the Cherry River; and approximately 24.9 skm (15.5 smi) of Laurel Creek
from a point approximately 0.3 skm (0.2 smi) west of Cold Knob Road,
downstream to the confluence of Laurel Creek and the Cherry River.
Approximately 29.1 skm (18.1 smi) of Unit 5f is within the
[[Page 17992]]
Monongahela National Forest. The remainder is adjacent to private land,
except for a small amount that is publicly owned in the form of bridge
crossings, road easements, and the like.
(ii) Map of Unit 5f, Cherry River, follows:
[GRAPHIC] [TIFF OMITTED] TR07AP21.021
* * * * *
Martha Williams,
Principal Deputy Director, Exercising the Delegated Authority of the
Director, U.S. Fish and Wildlife Service.
[FR Doc. 2021-06748 Filed 4-6-21; 8:45 am]
BILLING CODE 4333-15-C