[Federal Register Volume 88, Number 15 (Tuesday, January 24, 2023)]
[Proposed Rules]
[Pages 4128-4150]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-00977]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
[Docket No. FWS-R4-ES-2022-0098; FF09E21000 FXES111109FEDR 234]
RIN 1018-BG85
Endangered and Threatened Wildlife and Plants; Designation of
Critical Habitat for the Sickle Darter
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Proposed rule.
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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), propose to
designate critical habitat for the sickle darter (Percina williamsi)
under the Endangered Species Act of 1973 (Act), as amended. In total,
approximately 104 river miles (168 river kilometers) in Bledsoe,
Blount, Morgan, and Roane Counties, Tennessee, and Scott, Smyth, and
Washington Counties, Virginia, fall within the boundaries of the
proposed critical habitat designation. If we finalize this rule as
proposed, it would extend the Act's protections to this species'
critical habitat. We also announce the availability of a draft economic
analysis of the proposed designation of critical habitat for the sickle
darter.
DATES: We will accept comments received or postmarked on or before
March 27, 2023. Comments submitted electronically using the Federal
eRulemaking Portal (see ADDRESSES, below) must be received by 11:59
p.m. Eastern Time on the closing date. We must receive requests for a
public hearing, in writing, at the address shown in FOR FURTHER
INFORMATION CONTACT by March 10, 2023.
ADDRESSES: Written comments: You may submit comments by one of the
following methods:
(1) Electronically: Go to the Federal eRulemaking Portal:
https://www.regulations.gov. In the Search box, enter FWS-R4-ES-
2022-0098, which is the docket number for this rulemaking. Then, click
on the Search button. On the resulting page, in the panel on the left
side of the screen, under the Document Type heading, check the Proposed
Rule box to locate this document. You may submit a comment by clicking
on ``Comment.''
(2) By hard copy: Submit by U.S. mail to: Public Comments
Processing, Attn: FWS-R4-ES-2022-0098, U.S. Fish and Wildlife Service,
MS: PRB/3W, 5275 Leesburg Pike, Falls Church, VA 22041-3803.
We request that you send comments only by the methods described
above. We will post all comments on https://www.regulations.gov. This
generally means that we will post any personal information you provide
us (see Information Requested, below, for more information).
Availability of supporting materials: For the proposed critical
habitat designation, the coordinates or plot points or both from which
the maps are generated are included in the decision file for this
critical habitat designation and are available at https://www.regulations.gov at Docket No. FWS-R4-ES-2022-0098 and on the
Service's website at https://www.fws.gov/office/tennessee-ecological-services. Additional supporting information that we developed for this
critical habitat designation will be available on the Service's
website, at https://www.regulations.gov, or both.
FOR FURTHER INFORMATION CONTACT: Daniel Elbert, Field Supervisor, U.S.
Fish and Wildlife Service, Tennessee Ecological Services Field Office,
446 Neal Street, Cookeville, TN 38501; telephone 931-528-6481.
Individuals in the United States who are deaf, deafblind, hard of
hearing, or have a speech disability may dial 711 (TTY, TDD, or
TeleBraille) to access telecommunications relay services. Individuals
outside the United States should use the relay services offered within
their country to make
[[Page 4129]]
international calls to the point-of-contact in the United States.
SUPPLEMENTARY INFORMATION:
Executive Summary
Why we need to publish a rule. Under the Endangered Species 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 through the
Administrative Procedure Act rulemaking process.
What this document does. We propose the designation of critical
habitat for the sickle darter, which is listed as a threatened species
(see 87 FR 67380; November 8, 2022).
The basis for our action. Section 4(a)(3) of the Act requires the
Secretary of the Interior (Secretary) to designate critical habitat
concurrent with listing to the maximum extent prudent and determinable.
Section 3(5)(A) of the Act defines critical habitat as (i) the specific
areas within the geographical area occupied by the species, at the time
it is listed, on which are found those physical or biological features
(I) essential to the conservation of the species and (II) which may
require special management considerations or protections; and (ii)
specific areas outside the geographical area occupied by the species at
the time it is listed, upon a determination by the Secretary that such
areas are essential for the conservation of the species. Section
4(b)(2) of the Act states that the Secretary must make the designation
on the basis of the best scientific data available and after taking
into consideration the economic impact, the impact on national
security, and any other relevant impacts of specifying any particular
area as critical habitat.
Information Requested
We intend that any final action resulting from this proposed rule
will be based on the best scientific and commercial data available and
be as accurate and as effective as possible. Therefore, we request
comments or information from other governmental agencies, Native
American Tribes, the scientific community, industry, or any other
interested parties concerning this proposed rule. Due to the ongoing
challenges regarding the 2019 regulations, we also seek comments on
whether and how applying the regulations that were in effect before the
2019 regulations would alter any of these analyses.
We particularly seek comments concerning:
(1) The reasons why we should or should not designate habitat as
``critical habitat'' under section 4 of the Act (16 U.S.C. 1531 et
seq.), including information to inform the following factors that the
current regulations identify as reasons why designation of critical
habitat may be not prudent:
(a) The species is threatened by taking or other human activity and
identification of critical habitat can be expected to increase the
degree of such threat to the species;
(b) The present or threatened destruction, modification, or
curtailment of a species' habitat or range is not a threat to the
species, or threats to the species' habitat stem solely from causes
that cannot be addressed through management actions resulting from
consultations under section 7(a)(2) of the Act;
(c) Areas within the jurisdiction of the United States provide no
more than negligible conservation value, if any, for a species
occurring primarily outside the jurisdiction of the United States;
(d) No areas meet the definition of critical habitat; or
(e) The Secretary otherwise determines that designation of critical
habitat would not be prudent based on the best scientific data
available.
In addition, we seek comment regarding whether and how this
information would differ under the factors that the pre-2019
regulations identify as reasons why designation of critical habitat may
be not prudent.
(2) Specific information on:
(a) The amount and distribution of sickle darter habitat;
(b) Any additional areas occurring within the range of the species
in Bledsoe, Blount, Morgan, and Roane Counties, Tennessee, and Scott,
Smyth, and Washington Counties, Virginia, that should be included in
the designation because they (i) are occupied at the time of listing
and contain the physical or biological features that are essential to
the conservation of the species and that may require special management
considerations or protection, or (ii) are unoccupied at the time of
listing and are essential for the conservation of the species; and
(c) Special management considerations or protection that may be
needed in critical habitat areas we are proposing, including managing
for the potential effects of climate change; and
(d) For areas not occupied at the time of listing that are
essential for the conservation of the species, we particularly seek
comments:
(i) Regarding whether occupied areas are adequate for the
conservation of the species; and
(ii) Providing specific information regarding whether or not
unoccupied areas would, with reasonable certainty, contribute to the
conservation of the species and contain at least one physical or
biological feature essential to the conservation of the species;
We also seek comments or information regarding whether areas not
occupied at the time of listing qualify as ``habitat'' for the species.
(3) Land use designations and current or planned activities in the
subject areas and their possible impacts on proposed critical habitat.
(4) Any probable economic, national security, or other relevant
impacts of designating any area that may be included in the final
designation, and the related benefits of including or excluding
specific areas.
(5) Information on the extent to which the description of probable
economic impacts in the draft economic analysis is a reasonable
estimate of the likely economic impacts and any additional information
regarding probable economic impacts that we should consider.
(6) Whether any specific areas we are proposing for critical
habitat designation should be considered for exclusion under section
4(b)(2) of the Act, and whether the benefits of potentially excluding
any specific area outweigh the benefits of including that area under
section 4(b)(2) of the Act. If you think we should exclude any
additional areas, please provide information supporting a benefit of
exclusion.
(7) Whether we could improve or modify our approach to designating
critical habitat in any way to provide for greater public participation
and understanding, or to better accommodate public concerns and
comments.
Please include sufficient information with your submission (such as
scientific journal articles or other publications) to allow us to
verify any scientific information you include.
Please note that submissions merely stating support for, or
opposition to, the action under consideration without providing
supporting information, although noted, do not provide substantial
information necessary to support a determination. Section 4(b)(2) of
the Act directs that the Secretary shall designate critical habitat on
the basis of the best scientific information available.
You may submit your comments and materials concerning this proposed
rule
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by one of the methods listed in ADDRESSES. We request that you send
comments only by the methods described in ADDRESSES.
If you submit information via https://www.regulations.gov, your
entire submission--including any personal identifying information--will
be posted on the website. If your submission is made via a hardcopy
that includes personal identifying information, you may request at the
top of your document that we withhold this information from public
review. However, we cannot guarantee that we will be able to do so. We
will post all hardcopy submissions on https://www.regulations.gov.
Comments and materials we receive, as well as supporting
documentation we used in preparing this proposed rule, will be
available for public inspection on https://www.regulations.gov.
Because we will consider all comments and information we receive
during the comment period, our final critical habitat designation may
differ from this proposal. Based on the new information we receive (and
any comments on that new information), our final designation may not
include all areas proposed, may include some additional areas that meet
the definition of critical habitat, or may exclude some areas if we
find the benefits of exclusion outweigh the benefits of inclusion and
exclusion will not result in the extinction of the species.
Public Hearing
Section 4(b)(5) of the Act provides for a public hearing on this
proposal, if requested. Requests must be received by the date specified
in DATES. Such requests must be sent to the address shown in FOR
FURTHER INFORMATION CONTACT. We will schedule a public hearing on this
proposal, if requested, and announce the date, time, and place of the
hearing, as well as how to obtain reasonable accommodations, in the
Federal Register and local newspapers at least 15 days before the
hearing. For the immediate future, we will provide these public
hearings using webinars that will be announced on the Service's
website, in addition to the Federal Register. The use of these virtual
public hearings is consistent with our regulations at 50 CFR
424.16(c)(3).
Previous Federal Actions
On November 12, 2020, we published in the Federal Register (85 FR
71859) a proposed rule to list the sickle darter as a threatened
species with a rule issued under section 4(d) of the Act (a ``4(d)
rule''). On November 8, 2022, we published our final determination in
the Federal Register (87 FR 67380) and added the sickle darter as a
threatened species to the List of Endangered and Threatened Wildlife at
50 CFR 17.11(h) with a 4(d) rule codified at 50 CFR 17.44.
In our November 12, 2020, proposed rule, we determined that
critical habitat was prudent but not determinable because we lacked
specific information on the impacts of our designation. In our November
8, 2022, final listing rule, we stated we were in the process of
obtaining information on the impacts of the designation.
All Federal actions prior to November 12, 2020, are described in
detail in the proposal to list the sickle darter as a threatened
species under the Act (85 FR 71859; November 12, 2020). Additional
information may be found in the final listing rule (87 FR 67380;
November 8, 2022).
It is our intent to discuss in this proposed rule only those topics
directly relevant to the designation of critical habitat for the sickle
darter. For more information on the taxonomy, life history, habitat,
population descriptions, and factors affecting the species, please
refer to the November 12, 2020, proposed listing rule (85 FR 71859) and
the November 8, 2022, final listing rule (87 FR 67380).
Peer Review
A species status assessment (SSA) team prepared an SSA report for
the sickle darter. The SSA team was composed of Service biologists, in
consultation with other species experts. The SSA report represents a
compilation of the best scientific and commercial data available
concerning the status of the species, including the impacts of past,
present, and future factors (both negative and beneficial) affecting
the species.
In accordance with our joint policy on peer review published in the
Federal Register on July 1, 1994 (59 FR 34270), and our August 22,
2016, memorandum updating and clarifying the role of peer review of
listing actions under the Act, we solicited independent scientific
review of the information contained in the sickle darter SSA report.
The Service sent the SSA report to five independent peer reviewers and
received four responses. Results of this structured peer review process
can be found at https://regulations.gov and https://www.fws.gov/office/tennessee-ecological-services/library. Our peer-reviewed SSA report
provided the foundational science to inform this proposed critical
habitat rule.
Critical Habitat
Background
Critical habitat is defined in section 3 of the Act as:
(1) The specific areas within the geographical area occupied by the
species, at the time it is listed in accordance with the Act, on which
are found those physical or biological features,
(a) Essential to the conservation of the species, and
(b) Which may require special management considerations or
protection; and
(2) Specific areas outside the geographical area occupied by the
species at the time it is listed, upon a determination that such areas
are essential for the conservation of the species.
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 that are necessary to bring
an endangered or threatened species to the point at which the measures
provided pursuant to the Act are no longer necessary. Such methods and
procedures include, but are not limited to, all activities associated
with scientific resources management such as research, census, law
enforcement, habitat acquisition and maintenance, propagation, live
trapping, and transplantation, and, in the extraordinary case where
population pressures within a given ecosystem cannot be otherwise
relieved, may include regulated taking.
Critical habitat receives protection under section 7 of the Act
through the requirement that Federal agencies ensure, in consultation
with the Service, that any action they authorize, fund, or carry out is
not likely to result in the destruction or adverse modification of
critical habitat. The designation of critical habitat does not affect
land ownership or establish a refuge, wilderness, reserve, preserve, or
other conservation area. Such designation also does not allow the
government or public to access private lands. Such designation does not
require implementation of restoration, recovery,
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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 Federal agency would
be required to consult with the Service under section 7(a)(2) of the
Act. However, even if the Service were to conclude that the proposed
activity would likely result in destruction or adverse modification of
the critical habitat, the Federal action agency and the landowner are
not required to abandon the proposed activity, or to restore or recover
the species; instead, they must 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).
Under the second prong of the Act's definition of critical habitat,
we can designate critical habitat in areas outside the geographical
area occupied by the species at the time it is listed, upon a
determination that such areas are essential for the conservation of the
species.
Section 4 of the Act requires that we designate critical habitat
based on 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 species status assessment (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 prohibitions found in section 9 of the Act.
Federally funded or permitted projects affecting listed species outside
their designated critical habitat areas may still result in jeopardy
findings in some cases. These protections and conservation tools will
continue to contribute to recovery of the 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 those planning efforts calls for a
different outcome.
Prudency Determination
Section 4(a)(3) of the Act, as amended, and implementing
regulations (50 CFR 424.12) require that, to the maximum extent prudent
and determinable, the Secretary shall designate critical habitat at the
time the species is determined to be an endangered or threatened
species. Our regulations (50 CFR 424.12(a)(1)) state that the Secretary
may, but is not required to, determine that a designation would not be
prudent in the following circumstances:
(i) The species is threatened by taking or other human activity and
identification of critical habitat can be expected to increase the
degree of such threat to the species;
(ii) The present or threatened destruction, modification, or
curtailment of a species' habitat or range is not a threat to the
species, or threats to the species' habitat stem solely from causes
that cannot be addressed through management actions resulting from
consultations under section 7(a)(2) of the Act;
(iii) Areas within the jurisdiction of the United States provide no
more than negligible conservation value, if any, for a species
occurring primarily outside the jurisdiction of the United States;
(iv) No areas meet the definition of critical habitat; or
(v) The Secretary otherwise determines that designation of critical
habitat would not be prudent based on the best scientific data
available.
As described in the final listing rule, no imminent threat of
collection or vandalism was identified under Factor B in the final
listing rule for the sickle darter. The identification and mapping of
proposed critical habitat units is not expected to initiate any such
threat of collection. In our final listing determination for the sickle
darter, we determined that the present or threatened destruction,
modification, or curtailment of habitat or range is a threat to sickle
darter, and that those threats in some way can be addressed by section
7(a)(2) consultation measures. The species occurs wholly in the
jurisdiction of the United States, and we are able to identify areas
that meet the definition of critical habitat. Therefore, because none
of the circumstances enumerated in our regulations at 50 CFR
424.12(a)(1) have been met and because the Secretary has not identified
other circumstances for which this designation of critical habitat
would be not prudent, we have determined that the designation of
critical habitat is prudent for the sickle darter.
Critical Habitat Determinability
Having determined that designation is prudent, under section
4(a)(3) of the Act we must find whether critical habitat for the sickle
darter is determinable. Our regulations at 50 CFR 424.12(a)(2) state
that critical habitat is not determinable when one or both of the
following situations exist:
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(i) Data sufficient to perform required analyses are lacking, or
(ii) The biological needs of the species are not sufficiently well
known to identify any area that meets the definition of ``critical
habitat.''
When critical habitat is not determinable, the Act allows the
Service an additional year to publish a critical habitat designation
(16 U.S.C. 1533(b)(6)(C)(ii)).
We reviewed the available information pertaining to the biological
needs of the species and habitat characteristics where this species is
located. This and other information represent the best scientific data
available and led us to conclude that the designation of critical
habitat is determinable for the sickle darter.
Physical or Biological Features Essential to the Conservation of the
Species
In accordance with section 3(5)(A)(i) of the Act and regulations at
50 CFR 424.12(b), in determining which areas we will designate as
critical habitat from within the geographical area occupied by the
species at the time of listing, we consider the physical or biological
features that are essential to the conservation of the species and that
may require special management considerations or protection. The
regulations at 50 CFR 424.02 define ``physical or biological features
essential to the conservation of the species'' as the features that
occur in specific areas and that are essential to support the life-
history needs of the species, including, but not limited to, water
characteristics, soil type, geological features, sites, 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. For example,
physical features essential to the conservation of the species might
include gravel of a particular size required for spawning, alkaline
soil for seed germination, protective cover for migration, or
characteristic flooding or fire regime 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 essential
to support the life history of the species.
In considering whether features are essential to the conservation
of the species, we 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.
Habitats Representative of the Historical, Geographical, and Ecological
Distributions of the Species
The sickle darter's historical range (prior to 2005) included nine
tributary systems of the upper Tennessee River drainage in North
Carolina, Tennessee, and Virginia (Menhinick et al. 1974, p. 42; Etnier
and Starnes 1993, p. 576; Page and Near 2007, pp. 608-609). The sickle
darter continues to occupy portions of five tributary systems in the
historical range in the upper Tennessee drainage in Tennessee and
Virginia, and it occupies a sixth tributary system in Tennessee with
more recently discovered occurrences (Alford 2019, pp. 6-13;
Conservation Fisheries Inc (CFI) and Tennessee, Department of
Environment and Conservation (TDEC) unpublished data). These six
tributary systems occur in two of three historically occupied
ecoregions (Ridge and Valley ecoregion and the Southwestern
Appalachians ecoregion); the species is extirpated from the Blue Ridge
ecoregion (EPA Level III ecoregions). Impoundments and the creation of
reservoirs have reduced connectivity and isolated populations
historically, affecting the current distribution of the species.
The sickle darter is most abundant, with evidence of reproduction
and recruitment, in the Emory River and Little River systems in
Tennessee. The species' persistence and documented recruitment within
the Emory River and Little River systems suggests that physical habitat
and water quality conditions within these reaches are favorable for the
species. The headwaters of the Little River are protected by land use
regulations and surrounding forested habitat in the Great Smoky
Mountains National Park (the Park), but downstream of the Park, stream
habitat and water quality are influenced by pollutants, and multiple
impoundments in the watershed restrict the species' movements in the
river system (Layman 1991, p. 483; Petty et al. 2017, p. 2; Alford
2019, p. 12). The species occurs in low densities in the remaining four
river and tributary systems (Clinch River, North Fork Holston River,
Middle Fork Holston River, and Sequatchie River systems).
The species has not been observed in North Carolina since 1940, and
is now extirpated from the French Broad River system (upper French
Broad River) with deterioration of water quality as the primary reason
for the species' decline (Menhinick et al. 1974, p. 42; Etnier 1997, p.
78; Page and Near 2007, p. 610). The species is also likely extirpated
from four tributary systems in Tennessee (Powell River, South Fork
Holston River, Watauga River, and the lower French Broad River), where
it has not been observed since the 1890s, 1940s, 1980s, and 1970s,
respectively (Alford 2019, pp. 12-13; CFI, TDEC, and Tennessee Valley
Authority (TVA) unpublished data). The effects of impoundments, surface
coal mining, and pollution have degraded water quality and stream
habitat and have contributed to the extirpation of sickle darter from
these four river systems. The aforementioned river systems of the upper
Tennessee River drainage in the current range of the species are
representative of the historical, geographical, and ecological
distribution of the species.
Space for Individual and Population Growth and for Normal Behavior
The sickle darter typically occurs in slow-flowing pools of larger,
upland creeks and small to medium rivers (Kuehne and Barbour 1983, p.
37; Page 1983, p. 37; Etnier and Starnes 1993, p. 576; Page and Near
2007, p. 609; Alford 2019, p. 8). Streams with sickle darter occurrence
have good water quality, with low turbidity and negligible siltation
(Etnier and Starnes 1993, p. 576; Alford 2019, p. 9). In these
habitats, the species is most often associated with clean sand-detritus
or gravel-cobble-boulder substrates, stands of American water willow
(Justicia americana), or piles of woody debris (Etnier and Starnes
1993, p. 576; Page and Near 2007, p. 609; Alford 2019, p. 8).
Sickle darters occur most often in shallow pools near the bank or
adjacent to vegetated gravel bars, but these pools are adjacent to
swift currents (Alford 2019, p. 10). The species spends most of its
time in the water column, often
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hovering a few centimeters (inches) above the stream or river bottom
(Etnier and Starnes 1993, p. 576).
No species-specific information is available on movement behavior
of the sickle darter. However, studies of movement behavior in two
related species, the longhead darter (Percina macrocephala) and the
frecklebelly darter (Percina stictogaster) suggest that the sickle
darter may have similar migratory behavior (Eisenhour et al. 2009, pp.
7-12; Eisenhour et al. 2011, pp. 14-15; Eisenhour and Washburn 2016,
pp. 19-24). Sickle darters may follow seasonal movements similar to the
longhead darter and move from downstream to upstream reaches following
periods of severe drought (Eisenhour et al. 2011, pp. 14-15).
Therefore, connectivity between suitable habitat is needed for the
sickle darter's dispersal or movement within a stream system.
Food, Water, Air, Light, Minerals, or Other Nutritional or
Physiological Requirements
Sickle darters feed primarily on larval mayflies and midges, and
also consume riffle beetles, caddisflies, dragonflies, and other
aquatic macroinvertebrates (Page and Near 2007, pp. 609-610; Alford
2019, p. 10). Although the closely related longhead darter feeds on
crayfish, the sickle darter does not (Page 1978, p. 663; Alford 2019,
p. 10). The long snout and large mouth of the sickle darter likely
facilitates the capture and ingestion of larger prey items such as
heptageniid mayflies (Page and Near 2007, p. 609). Sickle darters
deftly pluck food items from the surfaces of stones and other
underwater objects while swimming above the stream bottom (Etnier and
Starnes 1993, p. 576).
Sites for Breeding, Reproduction, or Rearing (or Development) of
Offspring
In winter, sickle darters reside in deep pools or in slow-flowing,
shallow pools in close proximity to cover (Etnier and Starnes 1993, p.
576; Service 2020, p. 1). The species migrates to shallow gravel shoals
(riffles) in late winter or early spring (February through March) to
spawn (Etnier and Starnes 1993, p. 576). The sickle darter requires
water temperatures of 10 to 16 degrees Celsius ([deg]C) (50 to 61
degrees Fahrenheit ([deg]F)) for successful spawning (February through
March) (Etnier and Starnes 1993, p. 576; Page and Near 2007, p. 609;
Petty et al. 2017, p. 3; Alford 2019, p. 8). In the Little River
system, Tennessee, eggs laid in March hatched in 27 days at an average
stream temperature of 10 [deg]C (50 [deg]F) (Etnier and Starnes 1993,
p. 576). The incubation period is likely shorter (about 2 weeks) when
stream temperatures are higher (Service 2020, p. 1). The pelagic larvae
presumably feed on zooplankton and other small macroinvertebrates after
depleting yolk sac nutrients (Etnier and Starnes 1993, p. 576; Petty et
al. 2017, p. 3). The larvae move to the stream bottom in about 30 days
(Petty et al. 2017, p. 3).
Summary of Essential Physical or Biological Features
We derive the specific physical or biological features essential
for the sickle darter from studies of this species' habitat, ecology,
and life history as described below. Additional information can be
found in the SSA report (Service 2020, pp. 9-19). We have determined
that the following physical or biological features are essential to the
conservation of the sickle darter:
(1) Riffle-pool complexes and transitional areas (glides, runs, and
slow-flowing pools) of geomorphically stable stream channels and banks
with ample cover (including woody debris piles and water willow beds)
and suitable substrates (relatively silt-free sand-detritus or gravel-
cobble-boulder particles) used for foraging, sheltering, and spawning.
Geomorphically stable stream channels are those that maintain lateral
dimensions, longitudinal profiles, and sinuosity patterns over time
without an aggrading or degrading bed elevation.
(2) Adequate flows or an instream flow regime (e.g., magnitude,
frequency, duration, and seasonality of discharge over time) sufficient
to provide permanent surface flows, as measured during years with
average rainfall, and to maintain instream habitats used by the species
for foraging, sheltering, and spawning.
(3) Adequate water quality (including, but not limited to, ammonia,
conductivity, hardness, heavy metals, pH, temperature, turbidity, and
other chemical constituents) necessary for normal behavior, growth, and
viability of all life stages of the sickle darter.
(4) Aquatic macroinvertebrate prey items, which are typically
dominated by mayflies and larval midges, but also include riffle
beetles, caddisflies, dragonflies, and other invertebrates.
Special Management Considerations or Protection
When designating critical habitat, we assess whether the specific
areas within the geographical area occupied by the species at the time
of listing contain features which are essential to the conservation of
the species and which may require special management considerations or
protection. The features essential to the conservation of the sickle
darter may require special management considerations or protection to
reduce the following threats: (1) Urbanization of the landscape,
including, but not limited to, land conversion for urban and commercial
use, infrastructure (roads, bridges, utilities), and urban water uses
(water supply reservoirs, wastewater treatment); (2) nutrient pollution
from agricultural activities that impact water quantity and quality;
(3) significant alteration of water quality; (4) significant alteration
of channel morphology or geometry, including channelization,
impoundment, road and bridge construction, or instream mining,
dredging, or channelization; and (5) watershed, riparian, and
floodplain disturbances that release sediments or nutrients into the
water or fill suitable habitat.
Management activities that could ameliorate these threats include,
but are not limited to, restoration and protection of riparian
corridors; implementation of best management practices to reduce
sedimentation, erosion, and streambank degradation; stream bank
restoration projects; increased use of stormwater management and
reduction of stormwater flows into the stream systems; reduction of
other watershed, riparian, and floodplain disturbances that release
sediments, pollutants, or nutrients into the water; and improvements to
industrial and municipal water treatment facilities and sewage systems
to reduce nutrient and pathogen pollution.
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 currently proposing to
designate any areas outside the geographical area occupied by the
species because we have not identified any unoccupied areas that meet
the definition of critical habitat; specifically, no unoccupied areas
are essential for the conservation of the species. Designating the six
currently occupied units across the geographic
[[Page 4134]]
range as critical habitat is adequate to ensure the conservation of the
species, as it will support the species' redundancy and representation.
The current distribution of the sickle darter is reduced from its
historical distribution. The species occurs in six populations, Little
River, Emory River, Copper Creek, Middle Fork Holston River, North Fork
Holston River, and Sequatchie River, across two ecoregions, Ridge and
Valley and Southwestern Appalachians. We anticipate that recovery will
require continued protection of the existing populations and habitat,
as well as ensuring there are six or more stable populations of sickle
darters with sufficient abundance and occupied reaches to increase
species' viability and that these populations occur in each of the two
ecoregions (Ridge and Valley and Southwestern Appalachians). The sickle
darter historically occurred in the Blue Ridge ecoregion; however, the
habitat in this historically occupied French Broad River no longer
supports the species' life history needs. This conservation strategy
and the designation of proposed critical habitat support the species'
ability to withstand the loss of any one of the populations through a
catastrophic event, such as the effects of a rangewide drought or mega-
drought or chemical spills, and help ensure such an event is less
likely to simultaneously affect all known populations. Rangewide
recovery considerations, such as maintaining existing genetic diversity
and striving for representation in both ecoregions in the current range
of the species, were considered in formulating this proposed critical
habitat designation.
Sources of data for this proposed critical habitat designation
include the species status assessment (Service 2020, entire); proposed
and final listing rules (85 FR 71859, November 12, 2020; 87 FR 67380,
November 8, 2022); records maintained by the North Carolina Natural
Heritage Program, Tennessee Department of Environment and Conservation,
Tennessee Wildlife Resources Agency, Tennessee Valley Authority, and
the Virginia Department of Game and Inland Fisheries; peer-reviewed
research (e.g., Page 1978, Etnier and Starnes 1993, Page and Near 2007,
Alford 2019); university and museum collections; and information from
other survey reports on streams throughout the species' range
(Conservation Fisheries Inc (CFI) and Tennessee Aquarium Conservation
Institute, unpublished data) (Service 2020, p. 15). We have also
reviewed available information that pertains to the habitat
requirements of the sickle darter. Sources of information on habitat
requirements include studies conducted at occupied sites and published
in peer-reviewed articles, agency reports, and data collected during
monitoring efforts (Service 2020).
In summary, for areas within the geographic area occupied by the
species at the time of listing, we delineated critical habitat unit
boundaries using the following criteria. We identified streams and
rivers within the geographical area occupied at the time of listing
(i.e., with sickle darter occurrence records from 2005 to 2019). Due to
the breadth and intensity of survey efforts for freshwater fishes
throughout the known range of the species, it is reasonable to assume
that streams with no positive surveys since the 1980s should not be
considered occupied for the purpose of our analysis. However, this does
not preclude the possibility of detecting the species in other
locations upon subsequent surveys. For example, in 2014 and 2019, the
sickle darter was observed in the Sequatchie River--a new collection
site and range extension for the species (Alford 2019, pp. 2, 6).
We then determined those streams that contain one or more of the
physical or biological features to support the life-history functions
essential to the conservation of the sickle darter. We delineated end
points of river units by evaluating the presence or absence of habitat
conditions and physical or biological features essential to the
species. We selected upstream and downstream endpoints for each stream
unit where habitat conditions no longer meet species requirements
(i.e., do not contain the physical or biological features essential to
the conservation of the sickle darter). The endpoints often correspond
to tributary confluences or dams because of the effect of these
features on habitat conditions. Where favorable habitat shifts to less
favorable habitat, we selected a reference point such as a highway or
bridge crossing that will allow the public to identify proposed
critical habitat units. The occurrence data are linear in nature;
therefore, for stretches of habitat between occurrences, and between
occurrences and endpoints of units, we assumed the interposing stream
segments contain at least one of the physical or biological features
essential to the conservation of the species and include the
interposing stream segment in the proposed critical habitat unit. Based
on the best available scientific data, we determined that all currently
known occupied habitat for the sickle darter was also occupied by the
species at the time of listing, and that these areas contain one or
more of the physical or biological features essential to the
conservation of the species and which may require special management
considerations or protection.
Based on this analysis, the following rivers meet the criteria for
areas occupied by the species at the time of listing: Little River,
Emory River and Rock Creek, Copper Creek, North Fork Holston River,
Middle Fork Holston River, and the Sequatchie River. The critical
habitat designation does not include all streams known to have been
occupied by the species historically; instead, it includes only the
occupied streams within the historical range that have also retained
the physical or biological features that will allow for the maintenance
and expansion of existing populations.
The result was the inclusion of six units of critical habitat
occupied by the sickle darter. These six occupied units amount to
approximately 104 river miles (168 river kilometers) and account for
all of the proposed critical habitat. No areas outside the geographical
area occupied by the species at the time of listing were delineated as
proposed critical habitat.
When determining proposed critical habitat boundaries, we made
every effort to avoid including developed areas such as lands covered
by buildings, pavement, and other structures because such lands lack
physical or biological features necessary for the sickle darter. The
scale of the maps we prepared under the parameters for publication
within the Code of Federal Regulations may not reflect the exclusion of
such developed lands. Any such lands inadvertently left inside critical
habitat boundaries shown on the maps of this proposed rule have been
excluded by text in the proposed rule and are not proposed for
designation as critical habitat. Therefore, if the critical habitat is
finalized as proposed, a Federal action involving these lands would not
trigger section 7 consultation with respect to critical habitat and the
requirement of no adverse modification unless the specific action would
affect the essential physical or biological features in the adjacent
critical habitat.
We propose to designate as critical habitat those lands that we
have determined are occupied at the time of listing (i.e., currently
occupied) and that contain the physical or biological features that are
essential to support life-history processes of the species.
Six units are proposed for designation based on one or more of the
physical or biological features being present to support the sickle
darter's life-history processes. Some units contain all of the
[[Page 4135]]
identified physical or biological features and support multiple life-
history processes. Some units contain only some of the physical or
biological features necessary to support the sickle darter's particular
use of that habitat.
The proposed critical habitat designation is defined by the maps,
as modified by any accompanying regulatory text, presented at the end
of this document under Proposed Regulation Promulgation. 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 https://www.regulations.gov at Docket No. FWS-R4-ES-
2022-0098 and on our internet site at https://www.fws.gov/office/tennessee-ecological-services.
Proposed Critical Habitat Designation
We are proposing to designate 104 river miles (rmi) (168 river
kilometers (rkm)) in six units as critical habitat for the sickle
darter. The critical habitat areas we describe below constitute our
current best assessment of areas that meet the definition of critical
habitat for the sickle darter. The six areas we propose as critical
habitat are: Little River, Emory River and Rock Creek, Copper Creek,
North Fork Holston River, Middle Fork Holston River, and Sequatchie
River. Table 1 shows the proposed critical habitat units, riparian land
ownership, and the approximate river miles of each unit. Per State
regulations (Tennessee Code Annotated section 69-1-101 and Code of
Virginia section 62.1-81), navigable waters are considered public
rights-of-way. Lands beneath the navigable waters included in this
proposed rule are owned by the State of Tennessee or the Commonwealth
of Virginia. Ownership of lands beneath non-navigable waters included
in this rule are determined by riparian land ownership. The riparian
land adjacent to the proposed critical habitat is composed of lands in
private (93 percent), State (6 percent), and Federal (1 percent)
ownership.
Table 1--Proposed Critical Habitat Units for the Sickle Darter
[All units were occupied by the species at the time of listing and have current (2005 to 2019) sickle darter
occurrences]
----------------------------------------------------------------------------------------------------------------
Riparian land ownership by type (miles)
(kilometers) Length of unit
Unit No. Unit name ------------------------------------------------ * (miles)
Federal State Private (kilometers)
----------------------------------------------------------------------------------------------------------------
1....................... Little River......... .............. .............. 16.0 (25.7) 16 (25.7)
2....................... Emory River (Subunit 1.1 (1.8) 5.8 (9.3) 22.08 (35.5) 29.03 (46.7)
2a).
Rock Creek (Subunit .............. .............. 1.1 (1.8) 1.1 (1.8)
2b).
3....................... Copper Creek......... .............. .............. 13.9 (22.4) 13.9 (22.4)
4....................... North Fork Holston .............. .............. 25.1 (40.4) 25.1 (40.4)
River.
5....................... Middle Fork Holston .............. .............. 13.7 (22) 13.7 (22)
River.
6....................... Sequatchie River..... .............. .............. 5.4 (8.7) 5.4 (8.7)
----------------------------------------------------------------
Total............... ..................... 1.1 (1.8) 5.8 (9.3) 97.3 (156.5) 104.2 (167.7)
----------------------------------------------------------------------------------------------------------------
* Note: Stream lengths may not sum due to rounding.
Approximately 79 percent (83 rmi (133 rkm)) of the critical habitat
proposed for the sickle darter overlaps with currently designated
Federal critical habitat for the spotfin chub (Erimonax monachus),
yellowfin madtom (Notorus flavipinnis), Cumberlandian combshell
(Epioblasma brevidens), fluted kidneyshell (Ptychobranchus subtentus),
oyster mussel (Epioblasma capsaeformis), purple bean (Villosa
perpurpurea), rough rabbitsfoot (Quadrula cylindrica strigillata), and
slabside pearlymussel (Pleuronaia dolabelloides). Please refer to table
2, below, for the area of overlap with other federally designated
critical habitat and to specific unit descriptions below for which
currently designated Federal critical habitat overlaps with each
proposed critical habitat unit for the sickle darter.
Table 2--Units and Co-Occurring Federally Listed Species or Designated
Critical Habitat
------------------------------------------------------------------------
Overlapping
critical
Proposed critical habitat units Co-occurring listed habitat
species (miles)
(kilometers)
------------------------------------------------------------------------
1: Little River................ Duskytail darter ..............
(Etheostoma percnurum).
Snail darter (Percina ..............
tanasi).
Finerayed pigtoe ..............
(Fusconaia cuneolus).
2a: Emory River................ Spotfin chub........... 29.0 (46.7)
Purple bean............ ..............
Alabama lampmussel ..............
(Lampsilis virescens).
2b: Rock Creek.................
3: Copper Creek................ Duskytail darter....... ..............
Slender chub (Erimystax ..............
cahni).
Yellowfin madtom....... 13.9 (22.4)
Birdwing pearlymussel ..............
(Lemiox rimosus).
Cracking pearlymussel ..............
(Hemistena lata).
Cumberlandian combshell 13.9 (22.4)
Cumberland bean ..............
(Villosa trabalis).
Fanshell (Cyprogenia ..............
stegaria).
Fine-rayed pigtoe...... ..............
[[Page 4136]]
Fine-rayed pigtoe...... ..............
Fluted kidneyshell..... 13.9 (22.4)
Littlewing pearlymussel ..............
(Pegias fabula).
Oyster mussel.......... 13.9 (22.4)
Purple bean............ 13.9 (22.4)
Rough rabbitsfoot...... 13.9 (22.4)
Sheepnose (Plethobasus ..............
cyphyus).
Shiny pigtoe (Fusconaia ..............
cor).
Slabside pearlymussel.. ..............
Snuffbox (Epioblasma ..............
triquetra).
Spectaclecase ..............
(Cumberlandia
monodonta).
4: North Fork Holston River.... Spotfin chub........... ..............
Yellowfin madtom....... ..............
Fluted kidneyshell..... ..............
Littlewing pearlymussel ..............
Shiny pigtoe........... ..............
Slabside pearlymussel.. 21.0 (33.8)
5: Middle Fork Holston River... Fluted kidneyshell..... 13.7 (22.0)
Littlewing pearlymussel ..............
Shiny pigtoe........... ..............
Slabside pearlymussel.. 13.7 (22.0)
Tan riffleshell ..............
(Epioblasma florentina
walkeri (=E. walkeri)).
6: Sequatchie River............ Slabside pearlymussel.. 5.4 (8.7)
------------------------------------------------------------------------
We present brief descriptions of each of the proposed critical
habitat units and why they meet the definition of critical habitat for
the sickle darter, below.
Unit 1: Little River
Unit 1 consists of approximately 16.0 rmi (25.7 rkm) of the Little
River beginning at the Rockford Manufacturing Company low head dam
(Blount County, Tennessee) and continuing upstream to Peery's Mill Dam,
Blount County, Tennessee. Land ownership for Unit 1 is private except
for any small amount of publicly owned lands in the form of bridge
crossings and road easements. Unit 1 contains all of the physical or
biological features essential to the conservation of the sickle darter.
Special management considerations or protection may be required within
Unit 1 to alleviate impacts from stressors that are anticipated to
amplify degradation of the habitat, including pollutant input,
siltation, excess nutrients, loss of riparian vegetation, stream
habitat alteration, and pathogens. Sources of these stressors include
agricultural, municipal, and residential land uses. Special management
considerations related to agricultural and developed areas that will
benefit the habitat in Unit 1 include, but are not limited to, the
following: Treating wastewater to the highest level practicable to
reduce pollution input; reducing other wastewater or stormwater runoff
to decrease effects of pollution, siltation, and excess nutrients;
removing barriers to increase connectivity of sickle darter
populations; protecting and restoring riparian buffers to decrease
siltation, nutrient, and pollution input; and encouraging agricultural
and grazing practices that minimize nutrient and sediment input.
Unit 2: Emory River and Rock Creek
Unit 2 consists of two subunits comprising a total of 30.1 rmi
(48.5 rkm) in Morgan and Roane Counties, Tennessee. The riparian lands
in this unit are held in State (19.3 percent), Federal (3.7 percent),
and private (77 percent) ownership.
Subunit 2a consists of 29.0 rmi (46.7 rkm) of the Emory River
beginning at its confluence with Clifty Creek in Morgan County,
Tennessee, and continuing upstream to its confluence with Little Creek,
Morgan and Roane Counties, Tennessee. Ownership for Subunit 2a (Emory
River) includes a mixture of Federal (National Park Service (Obed Wild
and Scenic River)), State (Tennessee Wildlife Resources Agency (Catoosa
Wildlife Management Area)), and private lands. The Tennessee Wildlife
Resources Agency owns and manages 5.8 rmi (9.3 rkm) of the riparian
area in the Catoosa Wildlife Management Area and manages 1.1 rmi (1.8
rkm) in the Obed Wild and Scenic River through the planning and
management guidelines found in the National Park Service's Wild and
Scenic River Foundation Document (NPS 2015, entire). Subunit 2a
contains all of the physical or biological features essential to the
conservation of the sickle darter. Special management considerations or
protection may be required within Subunit 2a to alleviate impacts from
stressors that have led to the degradation of the habitat, including
siltation, loss of riparian vegetation, elevated levels of dissolved
solids, and excess nutrients. Sources of these stressors include legacy
mining, petroleum activities, rural municipal and residential land uses
(including point source discharges), as well as small-scale agriculture
(predominantly hay and pasture). Special management considerations
related to agricultural and developed areas that will benefit the
habitat in this unit include, but are not limited to the following:
Treating wastewater to the highest level practicable to reduce
nutrients and other pollutant input; reducing other wastewater or
stormwater runoff to decrease effects of pollution, siltation, and
excess nutrients; protecting and restoring riparian buffers to decrease
siltation, nutrient, and pollution input; and encouraging agricultural
and grazing practices that minimize nutrient and sediment input. All of
Subunit 2a overlaps with designated critical habitat for the spotfin
chub.
Subunit 2b (Rock Creek) consists of approximately 1.1 rmi (1.8 rkm)
of Rock Creek from the Emory River confluence to a steep riffle/run
sequence on Rock
[[Page 4137]]
Creek, Morgan County, Tennessee. Land ownership for Subunit 2b is
private except for any small amount of publicly owned lands in the form
of bridge crossings and road easements. Subunit 2b contains all of the
physical or biological features essential to the conservation of the
sickle darter. Special management considerations or protection may be
required within Subunit 2b to alleviate impacts from stressors that
have led to the degradation of the habitat, including siltation, loss
of riparian vegetation, elevated levels of dissolved solids, and excess
nutrients. Sources of these stressors include legacy mining, petroleum
activities, rural municipal and residential land uses (including point
source discharges), as well as small-scale agriculture (predominantly
hay and pasture). Special management considerations related to
agricultural and developed areas that will benefit the habitat in this
unit include, but are not limited to: Protecting and restoring riparian
buffers to decrease siltation, excess nutrients, and other pollution
inputs into habitat where the sickle darter occurs and encouraging
agricultural and grazing practices that minimize nutrient and sediment
input.
Unit 3: Copper Creek
Unit 3 consists of approximately 13.9 rmi (22.4 rkm) of Copper
Creek beginning at the Clinch River confluence, Scott County, Virginia,
and continuing upstream to the Obeys Creek confluence, Scott County,
Virginia. Land ownership for Unit 3 is private except for any small
amount of publicly owned lands in the form of bridge crossings and road
easements. Unit 3 contains three of the physical or biological features
essential to the conservation of the sickle darter; the water quality
in this unit is degraded. Special management considerations or
protection may be required within Unit 3 to alleviate impacts from
stressors that are anticipated to amplify degradation of the habitat,
including pathogens, siltation, elevated levels of dissolved solids,
and excess nutrients. Sources of these stressors include agricultural
practices (pasture grazing and unrestricted cattle access), legacy coal
mining, municipal point source discharges, and residential development.
Special management considerations related to agricultural and developed
areas that will benefit the habitat in this unit include, but are not
limited to, the following: Treating wastewater to the highest level
practicable to reduce input of pollutants; reducing other wastewater or
stormwater runoff to decrease the effects of pollution, siltation, and
excess nutrients; removing barriers to increase connectivity of sickle
darter populations; protecting and restoring riparian buffers to
decrease siltation, excess nutrients, and pollution input; and
encouraging agricultural and grazing practices that minimize nutrient
and sediment input. All of Unit 3 overlaps with designated critical
habitat for yellowfin madtom, Cumberlandian combshell, fluted
kidneyshell, oyster mussel, purple bean, and rough rabbitsfoot.
Unit 4: North Fork Holston River
Unit 4 consists of approximately 25.1 rmi (40.4 rkm) of the North
Fork Holston River beginning at the Virginia Highway 91 (VA 91) bridge
crossing in Smyth County, Virginia, and continuing upstream to the VA
16 bridge crossing, Smyth County, Virginia. Land ownership for Unit 4
is private except for any small amount of publicly owned lands in the
form of bridge crossings and road easements. Unit 4 contains two of the
physical or biological features essential to the conservation of the
sickle darter; water quality is degraded and suitable substrates are
lacking in this unit. Special management considerations or protection
may be required within Unit 4 to alleviate impacts from stressors that
are anticipated to amplify degradation of the habitat, including
pollutant input (including mercury), siltation, pathogens, excess
nutrients, and instream habitat disturbance. Sources of these stressors
include agricultural (unrestricted cattle access), untreated wastewater
discharges, coal mining, and rural residential land uses. Special
management considerations related to agricultural and developed areas
that will benefit the habitat in this unit include, but are not limited
to, the following: Reducing wastewater or stormwater runoff to decrease
the effects of pollution, siltation, and excess nutrients; removing
barriers to increase connectivity of existing populations; protecting
and restoring riparian buffers to decrease siltation, excess nutrients,
and pollution input; and encouraging agricultural and grazing practices
that minimize nutrient and sediment input. Approximately 21.0 rmi (33.8
rkm) of Unit 4 overlaps with designated critical habitat for slabside
pearlymussel.
Unit 5: Middle Fork Holston River
Unit 5 consists of approximately 13.7 rmi (22 rkm) of the Middle
Fork Holston River beginning at the VA 91 bridge crossing in Washington
County, Virginia, and continuing upstream to U.S. Highway 11 bridge
crossing, Smyth County, Virginia. Land ownership for Unit 5 is private,
except for any small amount of publicly owned lands in the form of
bridge crossings or road easements. Unit 5 contains three of the
physical or biological features essential to the conservation of the
sickle darter; the water quality is degraded in this unit. Special
management considerations or protection may be required within Unit 5
to alleviate impacts from stressors that are anticipated to amplify
degradation of the habitat, including siltation, pathogens, nutrients,
and other chemicals associated with agriculture. Sources of these
stressors include agricultural (unrestricted cattle access, pasture),
untreated wastewater discharges, highway/road runoff, and rural
residential land uses. Special management considerations related to
agricultural and developed areas that will benefit the habitat in this
unit include, but are not limited to, the following: Treating
wastewater to the highest level practicable to reduce input of
pollutants; reducing other wastewater or stormwater runoff to decrease
the effects of pollution, siltation, and excess nutrients; removing
barriers to increase connectivity of sickle darter populations;
protecting and restoring riparian buffers to decrease siltation, excess
nutrients, and pollution input; and encouraging agricultural and
grazing practices that minimize nutrient and sediment input. All of
Unit 5 overlaps with designated critical habitat for the slabside
pearlymussel.
Unit 6: Sequatchie River
Unit 6 consists of approximately 5.4 rmi (8.7 rkm) of the
Sequatchie River beginning at the Tennessee Highway 209 bridge crossing
and continuing upstream to Cooper Mill dam Bledsoe County, Tennessee.
Land ownership for Unit 6 is private except for any small amount of
publicly owned lands in the form of bridge crossings and road
easements. Unit 6 contains three of the physical or biological features
essential to the conservation of the sickle darter; water quality is
degraded in this unit. Special management considerations or protection
may be required within Unit 6 to alleviate impacts from stressors that
are anticipated to amplify degradation of the habitat, including
sedimentation, pathogens, excess nutrients, and development. Sources of
these stressors include agriculture land development, upstream
impoundments, and septic discharges in residential areas. Special
management considerations related to agricultural and developed areas
that will benefit the habitat in this unit include, but are not limited
to, the
[[Page 4138]]
following: Treating wastewater to the highest level practicable to
reduce input of pollutants; reducing other wastewater or stormwater
runoff to decrease the effects of pollution, siltation, and excess
nutrients; removing barriers to increase connectivity of sickle darter
populations; protecting and restoring riparian buffers to decrease
siltation, excess nutrients, and pollution input; and encouraging
agricultural and grazing practices that minimize nutrient and sediment
input. All of Unit 6 overlaps with designated critical habitat for the
slabside pearlymussel.
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 which is likely to
jeopardize the continued existence of any species proposed to be listed
under the Act or result in the destruction or adverse modification of
proposed critical habitat.
We published a final rule revising the definition of destruction or
adverse modification on August 27, 2019 (84 FR 44976). 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, authorized, or carried out by a Federal agency--do not require
section 7 consultation.
Compliance with the requirements of section 7(a)(2) is documented
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 Service 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 set forth requirements for Federal
agencies to reinitiate formal consultation on previously reviewed
actions. These requirements apply when the Federal agency has retained
discretionary involvement or control over the action (or the agency's
discretionary involvement or control is authorized by law) and,
subsequent to the previous consultation: (1) If the amount or extent of
taking specified in the incidental take statement is exceeded; (2) if
new information reveals effects of the action that may affect listed
species or critical habitat in a manner or to an extent not previously
considered; (3) if the identified action is subsequently modified in a
manner that causes an effect to the listed species or critical habitat
that was not considered in the biological opinion; or (4) if a new
species is listed or critical habitat designated that may be affected
by the identified action.
In such situations, Federal agencies sometimes may need to request
reinitiation of consultation with us, but Congress also enacted some
exceptions in 2018 to the requirement to reinitiate consultation on
certain land management plans on the basis of a new species listing or
new designation of critical habitat that may be affected by the subject
federal action. See 2018 Consolidated Appropriations Act, Public Law
115-141, Div, O, 132 Stat. 1059 (2018).
Application of the ``Destruction or Adverse Modification'' Standard
The key factor related to the destruction or adverse modification
determination is whether implementation of the proposed Federal action
directly or indirectly alters the designated critical habitat in a way
that appreciably diminishes the value of the critical habitat as a
whole for the conservation of the listed species. 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 violate section
7(a)(2) of the Act by destroying or adversely modifying such habitat,
or that may be affected by such designation.
Activities that the Service may, during a consultation under
section 7(a)(2) of the Act, consider are likely to destroy or adversely
modify critical habitat, include, but are not limited to:
(1) Actions that would block or disconnect stream and river
channels and contribute to further habitat fragmentation at a scale and
magnitude that appreciably diminishes the value of critical habitat
(e.g., large impoundments, reservoir creation). Such activities
include, but are not limited to, construction of barriers that impede
the instream movement of the sickle darter (e.g., impoundments, dams,
culverts, or weirs). These activities could result in destruction or
fragmentation of habitat, block movements between habitats, and/or
affect flows within or into critical habitat. In addition, 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.
[[Page 4139]]
(2) Actions that would affect channel substrates and stability or
geomorphology at a scale and magnitude that appreciably diminishes the
value of critical habitat (e.g., multiple or large tributary or main
channel rerouting, dam construction on a river with sickle darter
occurrences). Such activities include channelization, impoundment,
mining, dredging, road and bridge construction, removal of riparian
vegetation, and land clearing. These activities may lead to changes in
channel substrates, erosion of the streambed and banks, and excessive
sedimentation that could degrade sickle darter habitat.
(3) Actions that would reduce flow levels or alter flow regimes at
a scale and magnitude that appreciably diminishes the value of critical
habitat (i.e., flow levels or regimes that no longer support sickle
darter in one or more critical habitat units). These could include, but
are not limited to, activities that block or lower surface flow or
groundwater levels, including channelization, impoundment, groundwater
pumping, and surface water withdrawal or diversion. Such activities can
result in long-term changes in stream flows that affect habitat quality
and quantity for the sickle darter and its prey.
(4) Actions that would significantly alter water chemistry or
quality to the extent that the value of critical habitat is appreciably
diminished (i.e., water quality does not support the sickle darter's
needs in one or more units). Such activities could include, but are not
limited to, release of chemicals or biological pollutants or heated
effluents into the surface water or connected groundwater at a point
source or by dispersed release (non-point source). These activities
could alter water conditions to levels that are beyond the tolerances
of the sickle darter and result in direct or cumulative adverse effects
to individuals and their life cycles.
(5) Actions that would significantly increase sediment deposition
or stream bottom embeddedness within the stream channel to the extent
that the value of critical habitat is appreciably diminished (e.g.,
excessive siltation such that sickle darters are not able to use the
critical habitat unit). Such activities could include, but are not
limited to, excessive sedimentation from livestock grazing, road
construction, channel alteration, timber harvest, mining, dredging, and
other watershed and floodplain disturbances. These activities could
eliminate or reduce the habitat necessary for the growth and
reproduction of the sickle darter by increasing the sediment deposition
to levels that would adversely affect the sickle darter's ability to
complete its life cycle.
(6) Actions that would result in the introduction, spread, or
augmentation of nonnative aquatic species in occupied stream segments,
or in stream segments that are hydrologically connected to occupied
stream segments, even if those segments are occasionally intermittent,
or the introduction of other species that compete with or prey on the
sickle darter to the extent that the value of critical habitat is
appreciably diminished. Possible actions could include, but are not
limited to, stocking of nonnative fishes or other related actions.
These activities can introduce parasites or disease; result in direct
predation or direct competition; or affect the growth, reproduction,
and survival of the sickle darter.
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 geographical areas owned or controlled by the Department
of Defense (DoD), or designated for its use, that are subject to an
integrated natural resources management plan (INRMP) 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. No DoD lands
with a completed INRMP are within the proposed 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 designated critical habitat based on
economic impacts, impacts on national security, or any other relevant
impacts. Exclusion decisions are governed by the regulations at 50 CFR
424.19 and the Policy Regarding Implementation of Section 4(b)(2) of
the Endangered Species Act (hereafter, the ``2016 Policy''; 81 FR 7226,
February 11, 2016), both of which were developed jointly with the
National Marine Fisheries Service (NMFS). We also refer to a 2008
Department of the Interior Solicitor's opinion entitled ``The
Secretary's Authority to Exclude Areas from a Critical Habitat
Designation under Section 4(b)(2) of the Endangered Species Act'' (M-
37016). We explain each decision to exclude areas, as well as decisions
not to exclude, to demonstrate that the decision is reasonable.
In considering whether to exclude a particular area from the
designation, we identify the benefits of including the area in the
designation, identify the benefits of excluding the area from the
designation, and evaluate whether the benefits of exclusion outweigh
the benefits of inclusion. If the analysis indicates that the benefits
of exclusion outweigh the benefits of inclusion, the Secretary may
exercise discretion to exclude the area only if such exclusion would
not result in the extinction of the species. In making the
determination to exclude a particular area, 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. We describe below the process that we undertook for
taking into consideration each category of impacts and our analyses of
the relevant impacts.
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. To assess the probable economic impacts of a
designation, we must first evaluate specific land uses or activities
and projects that may occur in the area of the critical habitat. We
then must evaluate the impacts that a specific critical habitat
designation may have on restricting or modifying specific land uses or
activities for the benefit of the species and its habitat within the
areas proposed. We then identify which conservation efforts may be the
result of the species being listed under the Act versus those
attributed solely to the designation of critical habitat for this
particular species. The probable economic impact of a proposed critical
habitat designation is analyzed by comparing scenarios both ``with
critical habitat'' and ``without critical habitat.''
The ``without critical habitat'' scenario represents the baseline
for the analysis, which includes the existing regulatory and socio-
economic burden imposed on landowners, managers, or other resource
users potentially affected by the designation of critical habitat
(e.g., under the Federal listing as well as other Federal, State, and
local regulations). Therefore, the baseline represents the costs of all
efforts
[[Page 4140]]
attributable to the listing of the species under the Act (i.e.,
conservation of the species and its habitat incurred regardless of
whether critical habitat is designated). The ``with critical habitat''
scenario describes the incremental impacts associated specifically with
the designation of critical habitat for the species. The incremental
conservation efforts and associated impacts would not be expected
without the designation of critical habitat for the species. In other
words, the incremental costs are those attributable solely to the
designation of critical habitat, above and beyond the baseline costs.
These are the costs we use when evaluating the benefits of inclusion
and exclusion of particular areas from the final designation of
critical habitat should we choose to conduct a discretionary 4(b)(2)
exclusion analysis.
Executive Orders (E.O.s) 12866 and 13563 direct Federal agencies to
assess the costs and benefits of available regulatory alternatives in
quantitative (to the extent feasible) and qualitative terms. Consistent
with the E.O. regulatory analysis requirements, our effects analysis
under the Act may take into consideration impacts to both directly and
indirectly affected entities, where practicable and reasonable. If
sufficient data are available, we assess to the extent practicable the
probable impacts to both directly and indirectly affected entities.
Section 3(f) of E.O. 12866 identifies four criteria when a regulation
is considered a ``significant'' rulemaking, and requires additional
analysis, review, and approval if met. The criterion relevant here is
whether the designation of critical habitat may have an economic effect
of greater than $100 million in any given year (section 3(f)(1)).
Therefore, our consideration of economic impacts uses a screening
analysis to assess whether a designation of critical habitat for sickle
darter is likely to exceed the economically significant threshold.
For this particular designation, we developed an incremental
effects memorandum (IEM) considering the probable incremental economic
impacts that may result from this proposed designation of critical
habitat. The information contained in our IEM was then used to develop
a screening analysis of the probable effects of the designation of
critical habitat for the sickle darter (IEc 2021, entire). We began by
conducting a screening analysis of the proposed designation of critical
habitat in order to focus our analysis on the key factors that are
likely to result in incremental economic impacts. The purpose of the
screening analysis is to filter out particular geographic areas of
critical habitat that are already subject to such protections and are,
therefore, unlikely to incur incremental economic impacts. In
particular, the screening analysis considers baseline costs (i.e.,
absent critical habitat designation) and includes any probable
incremental economic impacts where land and water use may already be
subject to conservation plans, land management plans, best management
practices, or regulations that protect the habitat area as a result of
the Federal listing status of the species. Ultimately, the screening
analysis allows us to focus our analysis on evaluating the specific
areas or sectors that may incur probable incremental economic impacts
as a result of the designation. The presence of the listed species in
occupied areas of critical habitat means that any destruction or
adverse modification of those areas is also likely to jeopardize the
continued existence of the species. Therefore, designating occupied
areas of critical habitat typically causes little if any incremental
impacts above and beyond the impacts of listing the species. Therefore,
the screening analysis focuses on areas of unoccupied critical habitat.
If there are any unoccupied units in the proposed critical habitat
designation, the screening analysis assesses whether any additional
management or conservation efforts may incur incremental economic
impacts. This screening analysis combined with the information
contained in our IEM constitute what we consider to be our draft
economic analysis (DEA) of the proposed critical habitat designation
for the sickle darter; our DEA is summarized in the narrative below.
As part of our screening analysis, we considered the types of
economic activities that are likely to occur within the areas likely
affected by the critical habitat designation. In our evaluation of the
probable incremental economic impacts that may result from the proposed
designation of critical habitat for the sickle darter, first we
identified, in the IEM dated August 20, 2021, probable incremental
economic impacts associated with the following categories of
activities: (1) Agriculture; (2) conservation/restoration; (3)
development; (4) dredging; (5) flood control; (6) forest management;
(7) hydropower; (8) transportation; (9) in-water construction; (10)
recreation, including construction of recreation infrastructure; (11)
water quality, quantity, and supply; and (12) utilities. We considered
each industry or category individually. Additionally, we considered
whether their activities have any Federal involvement. Critical habitat
designation generally will not affect activities that do not have any
Federal involvement; under the Act, designation of critical habitat
only affects activities conducted, funded, permitted, or authorized by
Federal agencies. Federal agencies already are required to consult with
the Service under section 7 of the Act on activities they fund, permit,
or implement that may affect the species, so if we finalize this
proposed critical habitat designation, our consultations to avoid the
destruction or adverse modification of critical habitat would be
incorporated into the existing consultation process.
In our IEM, we attempted to clarify the distinction between the
effects that will result from the species being listed and those
attributable to the critical habitat designation (i.e., difference
between the jeopardy and adverse modification standards) for the sickle
darter's critical habitat. The sickle darter has not been listed long
enough for us to have conducted any section 7 consultations. It has
been our experience that, for such species, it is more difficult to
discern which conservation efforts are attributable to the species
being listed and which will result solely from the designation of
critical habitat. However, the following specific circumstances help to
inform our evaluation: (1) The essential physical or biological
features identified for critical habitat are the same features
essential for the life requisites of the species, and (2) any actions
that would result in sufficient harm or harassment to constitute
jeopardy to the sickle darter would also likely adversely affect the
essential physical or biological features of critical habitat. The IEM
outlines our rationale concerning this limited distinction between
baseline conservation efforts and incremental impacts of the
designation of critical habitat for this species. This evaluation of
the incremental effects has been used as the basis to evaluate the
probable incremental economic impacts of this proposed designation of
critical habitat.
The proposed critical habitat designation for the sickle darter
totals approximately 104 rmi (168 rkm) of river and stream channels in
six units in Tennessee and Virginia. All six units were occupied by the
sickle darter at the time of listing and contain recent (2005 to 2019)
occurrences of sickle darter. In these areas, actions that may affect
the species or its habitat would also affect proposed critical habitat.
Thus, it is unlikely that any additional conservation efforts would be
recommended to address the adverse
[[Page 4141]]
modification standard over and above those recommended as necessary to
avoid jeopardizing the continued existence of the sickle darter. We are
not proposing to designate any units of unoccupied habitat. Because we
are proposing only the designation of occupied critical habitat, the
only additional costs that are expected in all of the proposed critical
habitat designation are administrative costs. The entities most likely
to incur incremental costs are the Federal action agencies that are
parties to section 7 consultations. While the analysis for adverse
modification of critical habitat will require time and resources by
both the Federal action agency and the Service, these costs would
predominantly be administrative in nature. About 93 percent of the
proposed critical habitat designation for the sickle darter lies on
private lands. As such, incremental costs from public perception of the
designation have some potential to arise (IEc 2021, p. 17). However,
the estimated incremental costs of critical habitat designation for the
sickle darter in the first year are unlikely to exceed $96,000 (2021
dollars) (IEc 2021, p. 14). Thus, critical habitat designation for the
sickle darter is unlikely to generate costs or benefits exceeding $100
million in a single year. Therefore, this rule is unlikely to meet the
threshold for an economically significant rule, with regard to costs,
under E.O. 12866.
We are soliciting data and comments from the public on the DEA
discussed above. During the development of a final designation, we will
consider the information presented in the DEA and any additional
information on economic impacts we receive during the public comment
period to determine whether any specific areas should be excluded from
the final critical habitat designation under authority of section
4(b)(2) and our implementing regulations at 50 CFR 424.19. We may
exclude an area from critical habitat if we determine that the benefits
of excluding the area outweigh the benefits of including the area,
provided the exclusion will not result in the extinction of this
species.
Consideration of National Security Impacts
Section 4(a)(3)(B)(i) of the Act may not cover all DoD lands or
areas that pose potential national-security concerns (e.g., a DoD
installation that is in the process of revising its INRMP for a newly
listed species or a species previously not covered). If a particular
area is not covered under section 4(a)(3)(B)(i), then national-security
or homeland-security concerns are not a factor in the process of
determining what areas meet the definition of ``critical habitat.''
However, the Service must still consider impacts on national security,
including homeland security, on those lands or areas not covered by
section 4(a)(3)(B)(i), because section 4(b)(2) requires the Service to
consider those impacts whenever it designates critical habitat.
Accordingly, if DoD, Department of Homeland Security (DHS), or another
Federal agency has requested exclusion based on an assertion of
national-security or homeland security concerns, or we have otherwise
identified national security or homeland-security impacts from
designating particular areas as critical habitat, we generally have
reason to consider excluding those areas.
However, we cannot automatically exclude requested areas. When DoD,
DHS, or another Federal agency requests exclusion from critical habitat
on the basis of national-security or homeland-security impacts, we must
conduct an exclusion analysis if the Federal requester provides
credible information, including a reasonably specific justification of
an incremental impact on national security that would result from the
designation of that specific area as critical habitat. That
justification could include demonstration of probable impacts, such as
impacts to ongoing border-security patrols and surveillance activities,
or a delay in training or facility construction, as a result of
compliance with section 7(a)(2) of the Act. If the agency requesting
the exclusion does not provide us with a reasonably specific
justification, we will contact the agency to recommend that it provide
a specific justification or clarification of its concerns relative to
the probable incremental impact that could result from the designation.
If we conduct an exclusion analysis because the agency provides a
reasonably specific justification or because we decide to exercise the
discretion to conduct an exclusion analysis, we will defer to the
expert judgment of DoD, DHS, or another Federal agency as to: (1)
Whether activities on its lands or waters, or its activities on other
lands or waters, have national-security or homeland-security
implications; (2) the importance of those implications; and (3) the
degree to which the cited implications would be adversely affected in
the absence of an exclusion. In that circumstance, in conducting a
discretionary section 4(b)(2) exclusion analysis, we will give great
weight to national-security and homeland-security concerns in analyzing
the benefits of exclusion.
In preparing this proposal, we have determined that the lands
within the proposed designation of critical habitat for the sickle
darter are not owned, managed, or used by the DoD or DHS; therefore, we
anticipate no impact on national security or homeland security.
Consideration of Other Relevant Impacts
Under section 4(b)(2) of the Act, we consider any other relevant
impacts, in addition to economic impacts and impacts on national
security discussed above. To identify other relevant impacts that may
affect the exclusion analysis, we consider a number of factors,
including whether there are permitted conservation plans covering the
species in the area--such as HCPs, safe harbor agreements (SHAs), or
candidate conservation agreements with assurances (CCAAs)--or whether
there are non-permitted conservation agreements and partnerships that
may be impaired by designation of, or exclusion from, critical habitat.
In addition, we look at whether Tribal conservation plans or
partnerships, Tribal resources, or government-to-government
relationships of the United States with Tribal entities may be affected
by the designation. We also consider any State, local, public-health,
community-interest, environmental, or social impacts that might occur
because of the designation.
We have not identified any areas to consider for exclusion from
critical habitat based on other relevant impacts. In preparing this
proposal, we have determined that no HCPs or other management plans for
sickle darter currently exist, and the proposed designation does not
include any Tribal lands or trust resources or any lands for which
designation would have any economic or national security impacts.
Therefore, we anticipate no impact on Tribal lands, partnerships, or
HCPs from this proposed critical habitat designation and thus, as
described above, we are not considering excluding any particular areas
on the basis of the presence of conservation agreements or impacts to
trust resources.
However, if through the public comment period we receive
information that we determine indicates that there are potential
economic, national security, or other relevant impacts from designating
particular areas as critical habitat, then as part of developing the
final designation of critical habitat, we will evaluate that
information and may conduct a discretionary exclusion analysis to
determine whether to
[[Page 4142]]
exclude those areas under authority of section 4(b)(2) and our
implementing regulations at 50 CFR 424.19. If we receive a request for
exclusion of a particular area and after evaluation of supporting
information we do not exclude, we will fully describe our decision in
the final rule for this action.
Required Determinations
Clarity of the Rule
We are required by Executive Orders 12866 and 12988 and by the
Presidential Memorandum of June 1, 1998, to write all rules in plain
language. This means that each rule we publish must:
(1) Be logically organized;
(2) Use the active voice to address readers directly;
(3) Use clear language rather than jargon;
(4) Be divided into short sections and sentences; and
(5) Use lists and tables wherever possible.
If you feel that we have not met these requirements, send us
comments by one of the methods listed in ADDRESSES. To better help us
revise the rule, your comments should be as specific as possible. For
example, you should tell us the numbers of the sections or paragraphs
that are unclearly written, which sections or sentences are too long,
the sections where you feel lists or tables would be useful, etc.
Regulatory Planning and Review (Executive Orders 12866 and 13563)
Executive Order 12866 provides that the Office of Information and
Regulatory Affairs (OIRA) in the Office of Management and Budget will
review all significant rules. OIRA has determined that this rule is not
significant.
Executive Order 13563 reaffirms the principles of E.O. 12866 while
calling for improvements in the nation's regulatory system to promote
predictability, to reduce uncertainty, and to use the best, most
innovative, and least burdensome tools for achieving regulatory ends.
The executive order directs agencies to consider regulatory approaches
that reduce burdens and maintain flexibility and freedom of choice for
the public where these approaches are relevant, feasible, and
consistent with regulatory objectives. E.O. 13563 emphasizes further
that regulations must be based on the best available science and that
the rulemaking process must allow for public participation and an open
exchange of ideas. We have developed this proposed 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. 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.
Under the RFA, as amended, and as understood in light of recent
court decisions, Federal agencies are required to evaluate the
potential incremental impacts of rulemaking only on those entities
directly regulated by the rulemaking itself; in other words, the RFA
does not require agencies 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
would be directly regulated if we adopt the proposed critical habitat
designation. The RFA does not require evaluation of the potential
impacts to entities not directly regulated. Moreover, Federal agencies
are not small entities. Therefore, because no small entities would be
directly regulated by this rulemaking, the Service certifies that, if
made final as proposed, the proposed critical habitat designation will
not have a significant economic impact on a substantial number of small
entities.
In summary, we have considered whether the proposed designation
would result in a significant economic impact on a substantial number
of small entities. For the above reasons and based on currently
available information, we certify that, if made final, the proposed
critical habitat designation would not have a significant economic
impact on a substantial number of small business entities. Therefore,
an initial 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. In our economic analysis, we did not find that the
designation of this proposed critical habitat would significantly
affect energy supplies, distribution, or use. We do not foresee any
energy development projects, supply distribution, or use that may
affect the proposed critical habitat units for the sickle darter.
Further, in our evaluation of potential economic impacts, we did not
find that this proposed critical habitat designation would
significantly affect energy supplies, distribution, or use. Therefore,
this action is not a significant energy action, and no Statement of
Energy Effects is required.
[[Page 4143]]
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 finding:
(1) This proposed rule would not produce a Federal mandate. In
general, a Federal mandate is a provision in legislation, statute, or
regulation that would impose an enforceable duty upon State, local, or
Tribal governments, or the private sector, and includes both ``Federal
intergovernmental mandates'' and ``Federal private sector mandates.''
These terms are defined in 2 U.S.C. 658(5)-(7). ``Federal
intergovernmental mandate'' includes a regulation that ``would impose
an enforceable duty upon State, local, or Tribal governments'' with two
exceptions. It excludes ``a condition of Federal assistance.'' It also
excludes ``a duty arising from participation in a voluntary Federal
program,'' unless the regulation ``relates to a then-existing Federal
program under which $500,000,000 or more is provided annually to State,
local, and Tribal governments under entitlement authority,'' if the
provision would ``increase the stringency of conditions of assistance''
or ``place caps upon, or otherwise decrease, the Federal Government's
responsibility to provide funding,'' and the State, local, or Tribal
governments ``lack authority'' to adjust accordingly. At the time of
enactment, these entitlement programs were: Medicaid; Aid to Families
with Dependent Children work programs; Child Nutrition; Food Stamps;
Social Services Block Grants; Vocational Rehabilitation State Grants;
Foster Care, Adoption Assistance, and Independent Living; Family
Support Welfare Services; and Child Support Enforcement. ``Federal
private sector mandate'' includes a regulation that ``would impose an
enforceable duty upon the private sector, except (i) a condition of
Federal assistance or (ii) a duty arising from participation in a
voluntary Federal program.''
The designation of critical habitat does not impose a legally
binding duty on non-Federal Government entities or private parties.
Under the Act, the only regulatory effect is that Federal agencies must
ensure that their actions do not destroy or adversely modify critical
habitat under section 7. While non-Federal entities that receive
Federal funding, assistance, or permits, or that otherwise require
approval or authorization from a Federal agency for an action, may be
indirectly impacted by the designation of critical habitat, the legally
binding duty to avoid destruction or adverse modification of critical
habitat rests squarely on the Federal agency. Furthermore, to the
extent that non-Federal entities are indirectly impacted because they
receive Federal assistance or participate in a voluntary Federal aid
program, the Unfunded Mandates Reform Act would not apply, nor would
critical habitat shift the costs of the large entitlement programs
listed above onto State governments.
(2) We do not believe that this rule would significantly or
uniquely affect small governments, because it will not produce a
Federal mandate of $100 million or greater in any year, that is, it is
not a ``significant regulatory action'' under the Unfunded Mandates
Reform Act. The designation of critical habitat imposes no obligations
on State or local governments. 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 the sickle 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 for the
proposed designation of critical habitat for the sickle darter and
concludes that, if adopted, this designation of critical habitat 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 summary impact
statement is not required. In keeping with Department of the Interior
and Department of Commerce policy, we requested information from, and
coordinated development of this proposed critical habitat designation
with, appropriate State resource agencies. 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 proposed 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 proposed 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 or biological features of the habitat necessary for 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 State and local
governments in long-range planning because they 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) of the Act 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 of the Solicitor has determined that the rule would not
unduly burden the judicial system and that it meets the requirements of
sections 3(a) and 3(b)(2) of the Order. We have proposed designating
critical habitat in accordance with the provisions of the Act. To
assist the public in understanding the habitat needs of the species,
this proposed rule identifies the physical or biological features
essential to the conservation of the species. The proposed areas of
critical habitat are presented on maps, and the proposed rule provides
several options for the
[[Page 4144]]
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 information collection requirements, and
a submission to the Office of Management and Budget (OMB) under the
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.) is not
required. We may not conduct or sponsor and you are 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 regulations
adopted pursuant to section 4(a) of 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 have determined that no Tribal
lands fall within the boundaries of the proposed critical habitat for
the sickle darter, so no Tribal lands would be affected by the proposed
designation.
References Cited
A complete list of references cited in this rulemaking is available
on the internet at https://www.regulations.gov and upon request from
the Tennessee Ecological Services Field Office (see FOR FURTHER
INFORMATION CONTACT).
Authors
The primary authors of this proposed rule are the staff members of
the Fish and Wildlife Service's Species Assessment Team and the
Tennessee Ecological Services Field Office.
List of Subjects in 50 CFR Part 17
Endangered and threatened species, Exports, Imports, Plants,
Reporting and recordkeeping requirements, Transportation, Wildlife.
Proposed Regulation Promulgation
Accordingly, we propose to amend part 17, subchapter B of chapter
I, title 50 of the Code of Federal Regulations, as set forth below:
PART 17--ENDANGERED AND THREATENED WILDLIFE AND PLANTS
0
1. The authority citation for part 17 continues to read as follows:
Authority: 16 U.S.C. 1361-1407; 1531-1544; and 4201-4245,
unless otherwise noted.
0
2. Amend Sec. 17.11, in paragraph (h), by revising the entry for
``Darter, sickle'' under FISHES in the List of Endangered and
Threatened Wildlife to read as follows:
Sec. 17.11 Endangered and threatened wildlife.
* * * * *
(h) * * *
----------------------------------------------------------------------------------------------------------------
Listing citations and
Common name Scientific name Where listed Status applicable rules
----------------------------------------------------------------------------------------------------------------
* * * * * * *
Fishes
* * * * * * *
Darter, sickle.................. Percina williamsi.. Wherever found.... T 87 FR 67380, 11/8/2022;
50 CFR 17.44(ee); \4d\
50 CFR 17.95(e).\CH\
* * * * * * *
----------------------------------------------------------------------------------------------------------------
0
3. Amend Sec. 17.95, in paragraph (e), by adding an entry for ``Sickle
Darter (Percina williamsi)'' after the entry for ``Rush Darter
(Etheostoma phytophilum)'', to read as follows:
Sec. 17.95 Critical habitat--fish and wildlife.
* * * * *
(e) Fishes.
* * * * *
Sickle Darter (Percina williamsi)
(1) Critical habitat units are depicted for Bledsoe, Blount,
Morgan, and Roane Counties, Tennessee, and Scott, Smyth, and Washington
Counties, Virginia, on the maps in this entry.
(2) Within these areas, the physical or biological features
essential to the conservation of the sickle darter consist of the
following components:
(i) Riffle-pool complexes and transitional areas (glides, runs, and
slow-flowing pools) of geomorphically stable stream channels and banks
with ample cover (including woody debris piles and water willow beds)
and suitable substrates (relatively silt-free sand-detritus or gravel-
cobble-boulder particles) used for foraging, sheltering, and spawning.
Geomorphically stable stream channels are those that maintain lateral
dimensions, longitudinal profiles, and sinuosity patterns over time
without an aggrading or degrading bed elevation.
(ii) Adequate flows or an instream flow regime (e.g., magnitude,
frequency, duration, and seasonality of discharge over time) sufficient
to provide permanent surface flows, as measured during years with
average rainfall, and to maintain instream habitats used by the species
for foraging, sheltering, and spawning.
(iii) Adequate water quality (including, but not limited to,
ammonia,
[[Page 4145]]
conductivity, hardness, heavy metals, pH, temperature, turbidity, and
other chemical constituents) necessary for normal behavior, growth, and
viability of all life stages of the sickle darter.
(iv) Aquatic macroinvertebrate prey items, which are typically
dominated by mayflies and larval midges, but also include riffle
beetles, caddisflies, dragonflies, and other invertebrates.
(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
[EFFECTIVE DATE OF FINAL RULE].
(4) Data layers defining map units were created using Esri ArcGIS
Pro mapping software, version 2.7.2 with U.S. Geological Survey's
National Hydrography Dataset flowline data, on a base map of State,
County, and city limit boundaries from the State of Tennessee's
Strategic Technology Solutions branch. Critical habitat units were
mapped using the Tennessee State Plane Coordinate System, Lambert
Conformal Conic projection and North American 1983 (NAD83) datum. The
maps in this entry, as modified by any accompanying regulatory text,
establish the boundaries of the critical habitat designation. The
coordinates or plot points or both on which each map is based are
available to the public at the Service's internet site at https://www.fws.gov/office/tennessee-ecological-services, at https://www.regulations.gov at Docket No. FWS-R4-ES-2022-0098, 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.
(5) Index map follows:
Figure 1 to Sickle Darter (Percina williamsi) paragraph (5)
[GRAPHIC] [TIFF OMITTED] TP24JA23.245
(6) Unit 1: Little River, Blount County, Tennessee.
(i) Unit 1 consists of approximately 16.0 river miles (rmi) (25.7
river kilometers (rkm)) of the Little River beginning at the Rockford
Manufacturing Company low head dam and continuing upstream to Peery's
Mill Dam, in Blount County, Tennessee. Unit 1 is composed of lands in
private ownership.
(ii) Map of Unit 1 follows:
Figure 2 to Sickle Darter (Percina williamsi) paragraph (6)(ii)
[[Page 4146]]
[GRAPHIC] [TIFF OMITTED] TP24JA23.246
(7) Unit 2: Emory River and Rock Creek, Morgan and Roane Counties,
Tennessee.
(i) Unit 2 consists of two subunits, Subunit 2a (Emory River) and
Subunit 2b (Rock Creek), comprising 30.1 rmi (48.5 rkm) in Morgan and
Roane Counties, Tennessee.
(A) Subunit 2a consists of 29.0 rmi (46.7 rkm) of the Emory River
beginning at its confluence with Clifty Creek in Morgan County,
Tennessee, and continuing upstream to its confluence with Little Creek,
in Morgan and Roane Counties, Tennessee. Subunit 2a is composed of
lands in Federal (1.1 rmi (1.8 rkm)), State (5.8 rmi (9.3 rkm)), and
private (22.08 rmi (35.5 rkm)) ownership, including the federally owned
Obed Wild and Scenic River and the State-owned Catoosa Wildlife
Management Area.
(B) Subunit 2b consists of approximately 1.1 rmi (1.8 rkm) of Rock
Creek from the Emory River confluence to a steep riffle/run sequence on
Rock Creek (36.133177, -84.630685), in Morgan County, Tennessee.
(ii) Map of Unit 2 follows:
Figure 3 to Sickle Darter (Percina williamsi) paragraph (7)(ii)
[[Page 4147]]
[GRAPHIC] [TIFF OMITTED] TP24JA23.247
(8) Unit 3: Copper Creek, Scott County, Virginia.
(i) Unit 3 consists of approximately 13.9 rmi (22.4 rkm) of Copper
Creek beginning at the Clinch River confluence and continuing upstream
to the Obeys Creek confluence, in Scott County, Virginia. Unit 3 is
composed of lands in private ownership.
(ii) Map of Unit 3 follows:
Figure 4 to Sickle Darter (Percina williamsi) paragraph (8)(ii)
[[Page 4148]]
[GRAPHIC] [TIFF OMITTED] TP24JA23.248
(9) Unit 4: North Fork Holston River, Smyth County, Virginia.
(i) Unit 4 consists of approximately 25.1 rmi (40.4 rkm) of the
North Fork Holston River beginning at the Virginia Highway 91 (VA 91)
bridge crossing in Smyth County and continuing upstream to the VA 16
bridge crossing, in Smyth County, Virginia. Unit 4 is composed of lands
in private ownership.
(ii) Map of Unit 4 follows:
Figure 5 to Sickle Darter (Percina williamsi) paragraph (9)(ii)
[GRAPHIC] [TIFF OMITTED] TP24JA23.249
[[Page 4149]]
(10) Unit 5: Middle Fork Holston River, Washington and Smyth
Counties, Virginia.
(i) Unit 5 consists of approximately 13.7 rmi (22 rkm) of the
Middle Fork Holston River beginning at the VA 91 bridge crossing in
Washington County and continuing upstream to the U.S. Highway 11 bridge
crossing in Smyth County, Virginia. Unit 5 is composed of lands in
private ownership.
(ii) Map of Unit 5 follows:
Figure 6 to Sickle Darter (Percina williamsi) paragraph (10)(ii)
[GRAPHIC] [TIFF OMITTED] TP24JA23.250
(11) Unit 6: Sequatchie River, Bledsoe County, Tennessee.
(i) Unit 6 consists of approximately 5.4 rmi (8.7 rkm) of the
Sequatchie River beginning at the Tennessee Highway 209 bridge crossing
and continuing upstream to Cooper Mill dam at 35.630463, -85.15394, in
Bledsoe County, Tennessee. Unit 6 is composed of lands in private
ownership.
(ii) Map of Unit 6 follows:
Figure 7 to Sickle Darter (Percina williamsi) paragraph (11)(ii)
[[Page 4150]]
[GRAPHIC] [TIFF OMITTED] TP24JA23.251
* * * * *
Martha Williams,
Director, U.S. Fish and Wildlife Service.
[FR Doc. 2023-00977 Filed 1-23-23; 8:45 am]
BILLING CODE 4333-15-P