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[Fws–R5–Es–2012–0045] [4500030113] Rin 1018–Ay12 E

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[Fws–R5–Es–2012–0045] [4500030113] Rin 1018–Ay12 E DEPARTMENT OF THE INTERIOR Fish and Wildlife Service 50 CFR Part 17 [FWS–R5–ES–2012–0045] [4500030113] RIN 1018–AY12 Endangered and Threatened Wildlife and Plants; Endangered Status for the Diamond Darter and Designation of Critical Habitat AGENCY: Fish and Wildlife Service, Interior. ACTION: Proposed rule. SUMMARY: We, the U.S. Fish and Wildlife Service, propose to list the diamond darter (Crystallaria cincotta) as endangered under the Endangered Species Act of 1973, as amended (Act); and propose to designate critical habitat for the species. In total, approximately 197.1 river kilometers (122.5 river miles) are being proposed for designation as critical habitat. The proposed critical habitat is located in Kanawha and Clay Counties, West Virginia, and Edmonson, Hart, and Green Counties, Kentucky. 1 DATES: We will consider comments received or postmarked on or before [INSERT DATE 60 DAYS AFTER DATE OF PUBLICATION IN THE FEDERAL REGISTER]. Comments submitted electronically using the Federal eRulemaking Portal (see ADDRESSES section, below) must be received by 11:59 p.m. Eastern Time on the closing date. We must receive requests for public hearings, in writing, at the address shown in the ADDRESSES section by [INSERT DATE 45 DAYS AFTER DATE OF PUBLICATION IN THE FEDERAL REGISTER]. ADDRESSES: You may submit comments by one of the following methods: (1) Electronically: Go to the Federal eRulemaking Portal: http://www.regulations.gov. In the Keyword box, enter Docket No. FWS–R5–ES–2012– 0045, which is the docket number for this rulemaking. Then, in the Search panel on the left side of the screen, under the Document Type heading, click on the Proposed Rules link to locate this document. You may submit a comment by clicking on “Send a Comment or Submission.” (2) By hard copy: Submit by U.S. mail or hand-delivery to: Public Comments Processing, Attn: FWS–R5–ES–2012–0045; Division of Policy and Directives Management; U.S. Fish and Wildlife Service; 4401 N. Fairfax Drive, MS 2042–PDM; Arlington, VA 22203. We request that you send comments only by the methods described above. We will post all comments on http://www.regulations.gov. This generally means that we will 2 post any personal information you provide us (see the Public Comments section below for more information). The coordinates or plot points or both from which the maps are generated are included in the administrative record for this critical habitat designation and are available at (http://www.fws.gov/westvirginiafieldoffice/index.html), www.regulations.gov at Docket No. FWS–R5–ES–2012–0045, and at the West Virginia Field Office (see FOR FURTHER INFROMATION CONTACT). Any additional tools or supporting information that we may develop for this critical habitat designation will also be available at the above locations. FOR FURTHER INFORMATION CONTACT: Deborah Carter, Field Supervisor, U.S. Fish and Wildlife Service, West Virginia Field Office, 694 Beverly Pike, Elkins, WV 26241, by telephone (304) 636-6586 or by facsimile (304) 636-7824. Persons who use a telecommunications device for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 800-877-8339. SUPPLEMENTARY INFORMATION: Executive Summary Why we need to publish a rule. Under the Endangered Species Act (Act), a species may warrant protection through listing if it is endangered throughout all or a 3 significant portion of its range. We are proposing to list the diamond darter as endangered under the Act because of continued threats, and listing can only be done by issuing a rule. The diamond darter occurs as a single population in the Elk River in West Virginia. We are also proposing to designate critical habitat under the Act for the species. Critical habitat represents geographical areas that are essential to a species’ conservation, and is designated on the basis of the best scientific information available after taking into consideration the economic impact, impact on national security, and any other relevant impact of specifying any particular area as critical habitat. A forthcoming draft economic analysis will evaluate the potential economic impacts that may be attributable to the proposed designation of critical habitat for the species. The basis for our action. Under the Act, a species may be determined to be endangered or threatened based on any of five factors: (1) the present or threatened destruction, modification, or curtailment of its habitat or range; (2) overutilization for commercial, recreational, scientific, or educational purposes; (3) disease or predation; (4) the inadequacy of existing regulations; or (5) other natural or manmade factors affecting its continued existence. The Act also requires that we designate critical habitat concurrently with listing determinations, if designation is prudent and determinable. We have made the following finding related to these criteria: • Diamond darter is endangered by water quality degradation; habitat loss; inadequate existing regulatory mechanisms; a small population size that makes the species vulnerable to the effects of the spread of an invasive alga 4 (Didymosphenia geminate); loss of genetic fitness; and catastrophic events, such as oil and other toxic spills. This rule proposes to designate critical habitat for the diamond darter. • Critical habitat designation would not be expected to increase threats to the species, and we have sufficient scientific information on the diamond darter to determine the areas essential to, and essential for, its conservation. Accordingly, we have determined the designation of critical habitat is both prudent and determinable. • In total, we propose to designate approximately 197.1 river kilometers (122.5 miles) as critical habitat. The proposed critical habitat is located in Kanawha and Clay Counties, West Virginia, and Edmonson, Hart, and Green Counties, Kentucky. • Based on our interpretation of directly regulated entities under the Regulatory Flexibility Act and relevant case law, this designation of critical habitat will only directly regulate Federal agencies, which are not by definition small business entities. However, though not necessarily required by the Regulatory Flexibility Act, in our draft economic analysis for this proposal, we will consider and evaluate the potential effects to third parties that may be involved with consultations with Federal action agencies related to this action. Peer Review. We will seek the expert opinions of at least three appropriate and independent specialists with scientific expertise to ensure our determinations are based on scientifically sound data, assumptions, and analyses. 5 Information Requested We intend that any final action resulting from this proposed rule will be based on the best scientific and commercial data available and be as accurate and as effective as possible. Therefore, we request comments or information from the public, other concerned governmental agencies, Native American tribes, the scientific community, industry, or any other interested parties concerning this proposed rule. We particularly seek comments concerning: (1) Biological, commercial trade, or other relevant data concerning any threats (or lack thereof) to this species and regulations that may be addressing those threats. (2) Additional information concerning the historical and current status, range, distribution, and population size of this species, including the locations of any additional populations of this species. (3) The factors that are the basis for making a listing determination for a species under section 4(a) of the Act, which are: (a) The present or threatened destruction, modification, or curtailment of its habitat or range; (b) Overutilization for commercial, recreational, scientific, or educational purposes; (c) Disease or predation; 6 (d) The inadequacy of existing regulatory mechanisms; or (e) Other natural or manmade factors affecting its continued existence. (4) Any information on the biological or ecological requirements of the species and ongoing conservation measures for the species and its habitat. (5) Current or planned activities in the areas occupied by the species and possible impacts of these activities on this species. (6) The reasons why we should or should not designate habitat as “critical habitat” under section 4 of the Act (16 U.S.C. 1531 et seq.) including whether there are threats to the species from human activity, the degree of which can be expected to increase due to the designation, and whether that increase in threat outweighs the benefit of designation such that the designation of critical habitat may not be prudent. (7) Specific information on: (a) The amount and distribution of diamond darter habitat; (b) What areas, that were occupied at the time of listing (or are currently occupied) and that contain features essential to the conservation of the species, should be included in the designation and why; (c) Special management considerations or protection that may be needed in critical habitat areas we are proposing, including managing for the potential effects of climate change; and 7 (d) What areas not occupied at the time of listing are essential for the conservation of the species and why. (8) Land use designations and current or planned activities in the subject areas and their possible impacts on proposed critical habitat. (9) Information on the projected and reasonably likely impacts of climate change on the diamond darter and proposed critical habitat. (10) Any probable economic, national security, or other relevant impacts
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