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employees. Thus, under this size ■ 2. Section 87.5 is amended by adding DEPARTMENT OF THE INTERIOR standard, the majority of firms can be a definition ‘‘Air operations area’’ in considered small. alphabetical order to read as follows: Fish and Wildlife Service Description of Projected Reporting, § 87.5 Definitions. 50 CFR Part 17 Recordkeeping, and Other Compliance * * * * * Requirements for Small Entities [Docket No. FWS–R5–ES–2012–0045; Air operations area. All airport areas 14. There are no projected reporting, 4500030113] where aircraft can operate, either under recordkeeping or other compliance their own power or while in tow. The RIN 1018–AY12 requirements. airport operations area includes Endangered and Threatened Wildlife Steps Taken To Minimize the runways, taxiways, apron areas, and all and Plants; Endangered Species Significant Economic Impact on Small unpaved surfaces within the airport’s Status for Diamond Darter Entities, and Significant Alternatives perimeter fence. An apron area is a Considered surface in the air operations area where AGENCY: Fish and Wildlife Service, 15. The RFA requires an agency to aircraft park and are serviced (refueled, Interior. describe the steps it has taken to loaded with cargo, and/or boarded by ACTION: Final rule. minimize the significant economic passengers). SUMMARY: We, the U.S. Fish and impact on small entities consistent with * * * * * the stated objectives of applicable Wildlife Service (Service), determine statutes, including a statement of the PART 90—PRIVATE LAND MOBILE endangered species status under the factual, policy, and legal reasons for RADIO SERVICES Endangered Species Act of 1973 (Act), selecting the alternative adopted in the as amended, for diamond darter (Crystallaria cincotta), a fish species final rule and why each one of the other ■ 3. The authority citation for part 90 from Kentucky, Indiana, Ohio, significant alternatives to the rule continues to read as follows: considered by the agency which affect Tennessee, and West Virginia. The the impact on small entities was Authority: Sections 4(i), 11, 303(g), 303(r), effect of this regulation will be to add rejected. and 332(c)(7) of the Communications Act of this species to the Lists of Endangered 16. We believe the changes adopted in 1934, as amended, 47 U.S.C. 154(i), 161, and Threatened Wildlife. the R&O will promote flexibility and 303(g), 303(r), 332(c)(7), and Title VI of the DATES: This rule becomes effective more efficient use of the spectrum, and Middle Class Tax Relief and Job Creation Act August 26, 2013. of 2012, Pub. L. 112–96, 126 Stat. 156. allow licensees to better meet their ADDRESSES: This final rule is available communication needs. In this R&O, we ■ 4. Section 90.103(b) is amended by on the Internet at http:// will allow the certification, licensing, adding a new entry at the end of the www.regulations.gov and at the West and use of foreign object debris table in paragraph (b), and by adding Virginia Field Office. Comments and detection radar in the 78–81 GHz band. paragraph (c)(30) to read as follows: materials we received, as well as 17. The Commission will send a copy supporting documentation used in of the R&O in WT Docket No. 11–202 § 90.103 Radiolocation Service. preparing this rule, are available for including the Final Regulatory * * * * * public inspection at http:// Flexibility Analysis, in a report to be www.regulations.gov. All of the sent to Congress pursuant to the (b) * * * comments, materials, and Congressional Review Act. In addition, documentation that we considered in the Commission will send a copy of the RADIOLOCATION SERVICE FREQUENCY this rulemaking are available, by R&O, including the Final Regulatory TABLE appointment, during normal business Flexibility Analysis, to the Chief hours at: U.S. Fish and Wildlife Service, Counsel for Advocacy of the SBA. A Frequency or Class of Limitations West Virginia Field Office, 694 Beverly copy of the R&O and the Final band stations Pike, Elkins, WV 26241, by telephone Regulatory Flexibility Analysis (or (304) 636–6586 or by facsimile (304) summaries thereof) will also be ***** 636–7824. published in the Federal Register. 78,000– FOR FURTHER INFORMATION CONTACT: John List of Subjects in 47 CFR parts 87 and 81,000 ...... do 30 Schmidt, Acting Field Supervisor, West 90 Virginia Fish and Wildlife Office (see (c) * * * ADDRESSES section). If you use a Communications equipment; Radio. telecommunications device for the deaf Federal Communications Commission. (30) Use is limited to foreign object (TDD), call the Federal Information Sheryl D. Todd, debris detection in airport air operations Relay Service (FIRS) at 800–877–8339. areas (see section 87.5 of this chapter). Deputy Secretary. SUPPLEMENTARY INFORMATION: The radar must be mounted and utilized For the reasons discussed in the so when in use it does not, within the Executive Summary preamble, the Federal Communications Commission amends 47 CFR parts 87 main beamwidth of the antenna Why we need to publish a rule. Under and 90 as follows: (azimuth or elevation), illuminate a the Endangered Species Act (Act), a public roadway near the airport. species may warrant protection through PART 87— AVIATION SERVICES * * * * * listing if it is endangered throughout all [FR Doc. 2013–18013 Filed 7–25–13; 8:45 am] or a significant portion of its range. ■ 1. The authority citation for part 87 BILLING CODE 6712–01–P Listing a species as an endangered or continues to read as follows: threatened species can only be Authority: 47 U.S.C. 154, 303 and 307(e), completed by issuing a rule. We will unless otherwise noted. also be finalizing a designation of

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critical habitat for the diamond darter substrates that lack silty depositions pervasive than in many other portions under the Act in the near future. (Osier 2005, p. 11). of the species’ range (Northern and This rule will finalize the listing of Historical records of the species Southern West Virginia Railroad the diamond darter (Crystallaria indicate that the diamond darter was Company 1873, pp. 9–32; Brooks 1910, cincotta) as an endangered species. distributed throughout the Ohio River p. 1; West Virginia Agricultural The basis for our action. Under the Basin and that the range included the Experiment Station 1937, p. 1; Act, we can determine that a species is Muskingum River in Ohio; the Ohio Trautman 1981, pp. 13–35; Strager 2008, an endangered or threatened species River in Ohio, Kentucky, and Indiana; p. 9). In addition, the Elk River is based on any of five factors: (A) The the Green River in Kentucky; and the located adjacent to the main present or threatened destruction, Cumberland River Drainage in Kentucky Appalachian Plateau, with steep valleys modification, or curtailment of its and Tennessee. The species is currently and underlying porous soils. This habitat or range; (B) Overutilization for known to exist only within the lower allows for the absorption of a commercial, recreational, scientific, or Elk River in Kanawha and Clay considerable portion of rainfall, which educational purposes; (C) Disease or Counties, West Virginia, where it was tends to retard runoff and maintain the predation; (D) The inadequacy of rediscovered in 1980 (Cincotta and flow of larger streams in the watershed existing regulations; or (E) Other natural Hoeft 1987, p. 133), and is considered even in periods of low rainfall (Baloch or manmade factors affecting its extirpated from the remainder of the et al. 1970, p. 3). Finally, the Elk River continued existence. The Act also Ohio River Basin (Cicerello 2003, p. 3; is still free flowing and largely requires that we designate critical Welsh and Wood 2008, pp. 62, 68). The unimpounded for much of its length. habitat concurrently with listing species has not been collected since These factors likely reduced the determinations, if designation is 1899 in Ohio, 1929 in Kentucky, and duration and severity of historical water prudent and determinable. We have 1939 in Tennessee (Grandmaison et al. quality degradation and siltation determined that the diamond darter is 2003, p. 6). experienced in this watershed compared endangered by water quality Despite extensive surveys using to other portions of the species’ range. degradation; habitat loss; a small multiple gear types, including many Other species, such as the Western sand population size that makes the species specifically targeting the diamond darter, show a similar pattern to the vulnerable to the effects of the spread of darter, no diamond darters have been diamond darter of extirpation in other invasive species; loss of genetic fitness; found anywhere besides the Elk River, Ohio River watersheds, while retaining and catastrophic events, such as toxic West Virginia, in more than 70 years. populations within the Elk River spills. The diamond darter has been extirpated (Cincotta and Welsh 2010, pp. 318–325). Peer review and public comment. We from most of its historical range, and is Very little information is available on sought comments from independent currently known to occur only within a the reproductive biology and early life specialists to ensure that our single reach of the Elk River in West history of the diamond darter (Welsh et designation is based on scientifically Virginia. Extirpation from these al. 2008, p. 1; Ruble and Welsh 2010, p. sound data, assumptions, and analyses. historical habitats likely resulted from a 1), but spawning likely occurs mid- We invited these peer reviewers to progression of habitat degradation and April to May, and larvae hatch within comment on our listing proposal. We subsequent reductions in fish 7 to 9 days afterward (Ruble et al. 2010, also considered all comments and populations; this started with a pp. 11–12). If the diamond darter’s information received during the significant increase in siltation due to reproductive behavior is similar to comment periods. land use changes beginning in the mid crystal darters in the wild, then females 1800s and continuing into the early may be capable of multiple spawning Previous Federal Actions 1900s, followed by water quality events and producing multiple clutches Please refer to the proposed listing degradation associated with increases in of eggs in one season (George et al. 1996, rule for the diamond darter (77 FR sewage, industrial discharges, and p. 75). Crystal darters lay their eggs in 43906, July 26, 2012) for a detailed mining effluents entering the water, and side channel riffle habitats over sand description of previous Federal actions then finally the impoundment of rivers and gravel substrates in moderate concerning this species. that inundated riffle habitat and further current. Adult crystal darters do not We will also finalize a designation of increased the amount of siltation guard their eggs (Simon and Wallus critical habitat for the diamond darter (Preston and White 1978, pp. 2–4; 2006, p. 56). Embryos develop in the under the Act in the near future. Trautman 1981, pp. 21–29; Pearson and clean interstitial spaces of the coarse Pearson 1989, pp. 181–184). The substrate (Simon and Wallus 2006, p. Background combination of these factors, 56). Please refer to the proposed listing culminating in the impoundment of After hatching, the larvae are pelagic rule for the diamond darter (77 FR rivers, likely led to population and drift within the water column 43906, July 26, 2012) for a complete reductions and then eventual (Osier 2005, p. 12; Simon and Wallus summary of the species’ information. extirpations of the diamond darter from 2006, p. 56; NatureServe 2008, p. 1). historical habitats. The larva may drift downstream until Summary of Biological Status and A number of factors have likely they reach slower water conditions such Threats allowed the Elk River to continue to as pools, backwaters, or eddies The diamond darter, a fish species in support this species. The Elk River (Lindquist and Page 1984, p. 27). Darter the perch family, inhabits medium to watershed is dominated by steep, larva may be poorly developed large, warmwater streams with moderate relatively inaccessible terrain. As a skeletally and unable to hold position or current and clean sand and gravel result, the area was not easy to settle or swim upstream where stronger currents substrates (Simon and Wallus 2006, p. develop, and large-scale land use exist (Lindquist and Page 1984, p. 27). 52). In the Elk River of West Virginia, changes, industrial development, and It is not known how long diamond the diamond darter has been collected human population increases, along with darters or crystal darters remain in this from riffles and pools where swift the resultant siltation and reductions in pelagic phase, but the pelagic phase of currents result in clean-swept, water quality, did not begin in this area other darters adapted to larger rivers predominately sand and gravel until much later and were much less lasts for 15 to 30 days (Rakes 2013, p.

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1). The duration of time that larvae drift requirements, coupled with the interested parties and invited them to in the current (the drift interval) differs availability of habitat maps for the comment on the proposal. Newspaper between species based on the size of the entire Elk River, which has allowed notices inviting general public comment stream the larvae use and the food that survey efforts to concentrate on specific were published in the Charleston the larvae eat (Lindquist and Page 1984, areas of the Elk River where diamond Gazette and the Courier Journal, which pp. 27–28). Species with smaller drift darters are most likely to be found. Also, in combination cover all affected intervals may have reduced genetic the development and use of new survey counties in West Virginia and Kentucky. exchange as less mixing may occur techniques that have a higher detection We did not receive any requests for a between stocks in upstream and rate for diamond darters have resulted public hearing. The second comment downstream populations, and, therefore, in more comprehensive surveys (Ruble period opened on March 29, 2013, and they may be more susceptible to genetic 2011a, p. 1; West Virginia Division of closed on April 29, 2013 (78 FR 19172), isolation (Lindquist and Page 1984, pp. Natural Resources (WVDNR) 2012, p. and requested comments on the 28–29). Downstream movement of 83; Welsh et al. 2012, pp. 8–10). proposed rule and a draft economic young during larval drift must be offset For example, previous research analysis (DEA) prepared in support of by upstream migration of juveniles and documented that diamond darters are the proposed critical habitat adults, so species with longer drift most likely to be captured in shoals and designation. intervals likely undertake more concentrate in these areas to forage. In During the first comment period, we extensive spawning migrations than 2012, additional focused survey efforts received 14 comment letters, 1 of which those without (Lindquist and Page 1984, were conducted in selected shoals that was a duplicate, from 13 individuals or p. 27). The life expectancy and age of had previously been mapped, and either entities directly addressing the first reproduction of diamond darters is had previous diamond darter captures proposed listing of the diamond darter unknown in the wild, but has been or appeared to be highly suitable habitat as endangered. During the second reported to range from two to four years, for the species based on visual comment period, we received 10 although some authors have suggested assessments (Ruble 2011a, p. 1; Welsh et additional comment letters, 1 of which the potential to live up to seven years al. 2012, pp. 8–10). Habitat evaluations bulk-submitted approximately 4,840 (Osier 2005, Simon and Wallus 2006). were conducted within these shoals to form letters, from 9 individuals or Individual diamond darters have been refine the delineation areas that entities. General, nonsubstantive maintained in captivity for 2 years. appeared to have the most likely comments of an editorial nature were foraging habitat for the species; areas incorporated in the final rule as Although there are currently were then sampled using survey appropriate. Substantive comments insufficient data available to develop an techniques that have been most regarding the proposed listing are overall population estimate for the successful at locating diamond darters summarized and addressed below. species, the results of numerous survey (Welsh et al. 2012, pp. 1–18). Surveys Comments addressing the proposed efforts confirm that the species is were conducted during low water designation of critical habitat and the extremely rare. Fish surveys have been conditions and during the time of night associated DEA, rather than the conducted in the Elk River in 1936, when diamond darters were expected to proposed listing, are discussed and 1971, 1973, 1978 to 1983, 1986, 1991, be active and foraging, so that most addressed under a separate rulemaking 1993, 1995, 1996, and every year since diamond darters present should be finalizing a designation of critical 1999 (Welsh et al. 2004, pp. 17–18; visible. Transects were spaced across habitat for the diamond darter under the Welsh 2008, p. 2; Welsh 2009a, p. 1). the surveyed areas so that the entire Act, that we intend to publish in the Survey methods included backpack and delineated habitat area was sampled near future. boat electrofishing, underwater (Welsh et al. 2012, p. 9). Ten of the 28 Peer Reviewer Comments observation, kick seines, bag seines, shoals within the range of the species benthic trawls, and spotlights (Welsh et were sampled. The number of diamond In accordance with our peer review al. 2004, p. 4; Welsh et al. 2012, 1–18). darters located at each shoal ranged policy published on July 1, 1994 (59 FR Starting in early 1990s, the timing of from 0 to 20. A total of 82 diamond 34270), we solicited expert opinion sampling and specific methods used darters were documented. Four from five knowledgeable individuals were targeted towards those shown to be additional shoals located upstream of with scientific expertise on the diamond effective at capturing Crystallaria and King Shoals, outside the currently darter and its habitat, biological needs, similar darter species during previous known range of the diamond darter, and threats. We received individual efforts (Welsh et al. 2004, pp. 4–5; Hatch were also sampled. No diamond darters responses from three of the peer 1997, Shepard et al. 1999, and Katula were located in these upstream areas reviewers. One peer reviewer’s response 2000 in Welsh et al. 2004, p. 9; Ruble (Welsh et al. p. 10). These recent was incorporated into comments 2011a, p. 1). Despite extensive and numbers provide a sense of the potential submitted by his employer, the targeted survey efforts within the distribution and total abundance of the WVDNR. Those comments are species’ known range and preferred species present in the Elk River in 1 addressed under Comments from States. habitat in the Elk River, fewer than 125 year. We reviewed all comments received individuals have been collected in the from the peer reviewers for substantive more than 30 years since the species Summary of Comments and issues and new information regarding was first collected in the Elk River Recommendations the listing of the diamond darter. The (SEFC 2008 p. 10; Cincotta 2009a, p. 1; In the proposed rule to list the peer reviewers all generally concurred Cincotta 2009b, p. 1; Welsh 2009b, p. 1, diamond darter as endangered and with our conclusions and provided Ruble and Welsh 2010, p. 2). Over 80 designate critical habitat that published supporting information on the percent of these collections occurred in on July 26, 2012 (77 FR 43906), we taxonomy, distribution, and threats the past 5 years. The increased capture requested that all interested parties described in the proposed rule. Two rates in recent years are most likely a submit written comments by September peer reviewers explicitly concurred that direct result of more focused 25, 2012. We also contacted appropriate threats to the only remaining population conservation efforts, including recent Federal and State agencies, scientific of the diamond darter in the Elk River, research on the species’ habitat experts and organizations, and other West Virginia, were accurately

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described, and that scientific evidence programmatic agreements and develop diamond darter in the Elk River. The supported listing the species as mutually acceptable avoidance agency particularly noted the threats endangered. One peer reviewer also measures and beneficial practices for associated with sedimentation, and commented about the similarities the diamond darter. The programmatic described it as one of the most between the diamond darter and the approach will reduce regulatory underrated impacts to aquatic only other species in the genus, the burdens on landowners who are environments in the State. The agency crystal darter, and described how that working with the NRCS and will suggested that increased inspections species has also been extirpated from expedite conservation of the species. and enforcement of regulations at much of its historic range. Minor edits Our Response: The Service concurs mining, gas, and forestry sites to control as a result of these peer reviewer that the NRCS has acted proactively to sedimentation within the Elk River comments were incorporated into the protect the diamond darter and other watershed should occur. The WVDNR final rule as appropriate. We received sensitive aquatic species and that the concurred that there were no major one additional substantive comment as NRCS has many programs that can threats associated with overutilization described below. benefit this species. We appreciate its or disease or predation as described (1) Comment: The extent of potential support and recognize that partnerships under the Summary of Factors Affecting larval drift should be considered when are essential for the conservation of the the Species—Factors B and C, describing potential diamond darter diamond darter and other federally respectively, but expressed a distribution. Additional research is listed or imperiled species. We fully willingness to develop additional needed to determine how far larval drift support developing and updating protections for this species through the occurs and what larvae are eating in the programmatic approaches to recover West Virginia scientific collecting or wild. this species and look forward to fishing permit process, if this is deemed Our Response: We concur that it is continued work with the NRCS. necessary. In regard to Factor D, the important to consider requirements of Comments From States WVDNR concurred that existing larval life stages and the potential for regulatory mechanisms are often vague larval drift. We have added information Section 4(i) of the Act states, ‘‘the and are not directly applicable to the to the life history section about potential Secretary shall submit to the State needs of the diamond darter. Existing larval movements. We also concur that agency a written justification for his laws such as the Clean Water Act, additional species-specific research on failure to adopt regulations consistent Surface Mining Control and this topic is needed so we can more with the agency’s comments or Reclamation Act, and State natural accurately describe the life history of petition.’’ We received comments from resource laws may indirectly mitigate this species. However, the Act requires two State agencies, the WVDNR and the threats, but protections under the Act that the Secretary shall make West Virginia Department of may be necessary to provide for the determinations solely on the basis of the Environmental Protection (WVDEP). continued maintenance and best available scientific and commercial Comments received from the State preservation of the last remaining data available. Because further agencies are summarized below, population. Finally, the WVDNR information about the diamond darter’s followed by our responses to their expressed a willingness to work with us larval stage is not available and the additional substantive comments. on developing a recovery plan. current data supports our endangered The WVDNR concurred with the The WVDEP concurred that the status determination for the species, we proposed designation and stated that the diamond darter’s small remaining have determined that larval drift Service has ‘‘conclusively substantiated population is susceptible to the effects information is not required to finalize that the only known population of this of diminished genetic variability and the listing of the diamond darter. species . . . is vulnerable to invasive species such as Didymosphenia destruction, modification, or geminate, but questioned the Federal Agency Comments curtailment of its habitat or range, and significance of various threats to the The only Federal agency comments is without adequate existing regulations species, as well as our description of we received were from the Natural to assist its continued survival.’’ The embeddedness and sedimentation in Resources Conservation Service (NRCS). agency further stated that the Service relation to the species’ habitat The NRCS submitted comment letters has provided an ‘‘overwhelming amount requirements. A summary of additional during each of the two comment of data’’ that the species meets the substantive comments received from periods. criteria for endangered status, and that State agencies and our responses are (2) Comment: The NRCS the only known population of this provided below. acknowledged its responsibility under species could be extirpated by a single (3) Comment: The WVDNR does not section 7(a)(1) of the Act to conserve adverse event or from chronic pollution concur with Woolman (1892) that the listed species and its numerous or sedimentation. The agency provided diamond darter was probably always programs that focus on aquatic additional comments supportive of our uncommon throughout its range. Rather, restoration that could benefit the description of the species’ taxonomy, based on recent sampling efforts, the diamond darter. The agency indicated a and of our descriptions of habitats used WVDNR suggested that the species is willingness to work with us to by the species. evasive to standard collecting methods concentrate implementation of its The WVDNR agreed with our that were common during Woolman’s programs in the areas that support the assessment of the threats to the species’ time period. The agency, therefore, diamond darter. The agency also habitat and range as listed under the concurs with Trautman (1981) that the indicated that it has already Summary of Factors Affecting the species was probably common before incorporated programmatic measures to Species—Factor A, including 1900 and suggests that diamond darter ensure many of its activities avoid sedimentation, mining, and oil and gas populations must be of a certain size adverse effects to the diamond darter development. The agency stated that the before their presence can be detected and include implementation of species- documentation provided demonstrates with traditional collecting methods. The specific conservation measures. The conclusively that the threats described agency submits that the diamond darter agency recommended that the Service may either independently or was first detected in the Elk River in the work with the NRCS to update these cumulatively impact the existence of the 1980s because the diamond darter

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population had increased in response to (62 percent) showed an increase watersheds that either currently or were water quality improvements resulting (Thomas et al. 2004, p. 436). In addition, historically known to support the from environmental regulations enacted 11 out of 13 fish species listed as of species, the Elk River is unique in in the late 1970s. The agency provided special concern, threatened, or having this combination of factors, and additional data regarding similar endangered by one or more of the Ohio this combination of factors likely population increases seen in other fish River border States showed population allowed this river to continue to support in the Ohio, Monongahela, Kanawha, increases (Thomas et al. 2004, p. 439). these species despite historical and Little Kanawha Rivers. These improvements were attributed to perturbations. Cincotta and Welsh Our Response: We have reexamined improved water quality in the Ohio (2010, pp. 318–325) provide additional the original text from Woolman (1892, River mainstem and its tributaries documentation of the Western sand pp. 249–288). His statement about the (Pearson and Pearson 1989, p. 186; darter’s similar pattern of historical species being ‘‘not widely distributed, Thomas et al. 2004, pp. 440–442). This rangewide distribution and extirpation, nor common anywhere’’ appears to refer may be one factor that allowed the as well as subsequent rediscovery in the specifically to the results of his surveys diamond darter to be detected in the Elk Elk River in the mid-1980s. We have within selected streams in Kentucky, River in the late 1980s. Another factor added a discussion in the final rule and does not apply to the species’ entire may be that, before the 1950s, the West about additional factors that may have range. Woolman does not provide Virginia fish fauna were poorly sampled allowed the Elk River to retain detailed descriptions of the methods due to difficult terrain and limited populations of the diamond darter, and used during his collection, but based on roads, so few surveys took place referenced similar trends in distribution references to seines in several places of historically in the Elk River and other and abundance seen in the Western the document, and the description of relatively inaccessible West Virginia sand darter. the conditions experienced at sampling watersheds, while there are more (5) Comment: The WVDEP suggests sites, it appears his collections were extensive records from watersheds in that the primary and most direct cause made during the day using seines. Based other States that were more accessible of the diamond darter’s decline was on our review of recent captures and and, thus, more frequently sampled from habitat loss and population survey techniques used and the biology (Cincotta and Welsh 2010, p. 323). isolation associated with historical of the species, we concur that diamond Therefore, we concur that the impoundment of streams that the darters are not likely to be frequently diamond darter was likely more species inhabited, rather than water captured by the sampling techniques abundant and widespread than may be quality degradation or inadequate used by Woolman. In addition, indicated by historical surveys, and also regulatory mechanisms. The agency Woolman captured multiple diamond may have responded positively to suggested that the diamond darter likely darters with relatively little effort (time previous water quality improvements. has persisted in the Elk River because it spent sampling) while conducting However, we lack empirical data on is largely unimpounded, and that the surveys using seine nets during the day which to base historical estimates of impacts of impoundment are when the species is likely to be buried population or distribution beyond the understated in the proposed rule. in the sand. Woolman’s sampling actual results of collections as described Our Response: We concur that method is in comparison to the level of in the Species Distribution and Status impoundment was one of the most effort recently required to collect section of the proposed listing rule, and direct and dramatic historical causes of multiple diamond darters using seine we cannot speculate on historical diamond darter habitat loss. nets at night when the species is likely distribution or actual historical Impoundment of rivers for navigation more active and not buried in the sand. abundances of the diamond darter in may have been the final factor resulting This discrepancy in sampling those areas, including in the Elk River. in extirpation of the diamond darter methodology would indicate that Current survey methods using multiple from many of its historical habitats. diamond darters were likely more gear types, or using methods targeted However, most citations that discuss abundant and thus more likely to be toward capturing the diamond darter, historical conditions within the captured, during the time of Woolman’s provide a more accurate indication of previous range of the diamond darter sampling. It therefore seems reasonable the current potential abundance and mention a progression of habitat and logical to infer that diamond darters distribution of the species. degradation and subsequent reductions were historically more widespread and (4) Comment: The WVDNR in fish populations; this progression abundant than would be indicated by commented that the only record for the started with a significant increase in the results of surveys conducted by Western sand darter in the State is from siltation due to land use changes in the Woolman and others of his time period the same area as the diamond darter, mid-1800s and continued into the early who were using methods now known to and that the Western sand darter shares 1900s, followed by water quality be not well suited to documenting the a pattern of extirpation within Ohio degradation associated with increases in species and during times of day when River drainages similar to that seen in sewage, industrial discharges, and the species is less likely to be active. the diamond darter. The Elk River likely mining effluents entering the water, and It is also reasonable to assume that functioned as a refugium for these two then, finally, the impoundment of rivers water quality improvements since the species because of the fairly large size that inundated riffle habitat and further late 1970s may have had a positive of the watershed, the free-flowing nature increased the amount of siltation effect on diamond darter populations, of much of the Elk River, and its (Preston and White 1978, pp. 2–4; similar to the effect on populations of position adjacent to the montane, high- Trautman 1981, pp. 21–29; Pearson and other fish species. In addition to the gradient flows of the main Appalachian Pearson 1989, pp. 181–184). Consistent data cited by the WVDNR, surveys on Plateau, all of which kept the habitats with the discussions in these references, the Ohio River mainstem between 1957 sufficiently clean. we conclude that the combination of and 2001 documented a general Our Response: We concur that these these factors, culminating in the improvement in abundance and factors allowed the Elk River to serve as impoundment of rivers, likely led to diversity of fish populations over that a refugium for many aquatic species, population reductions and then time. Of the 56 species whose including both the diamond darter and eventual extirpations of the fish species. population trends could be analyzed, 35 the Western sand darter. Of the We have thus retained discussions of

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siltation and the various sources of of the term embeddedness confusing, persistence of the diamond darter. The water quality degradation as threats to particularly for a species such as the agency suggests that, because the the diamond darter discussed under the diamond darter that requires substrates species has persisted through time Summary of Factors Affecting the with a high natural percentage of sands. periods with little or no water quality Species—Factor A. We have also We concur with the WVDEP that the regulation, when water quality included a statement about the diamond darter is susceptible to the conditions were more polluted than significance of impoundment in effects of siltation, which is the they are now, the species may not be extirpating the species from much of its accumulation of fines, or particles overly sensitive to water quality historical range. See our response to smaller than sand, while being degradation associated with mining. comment #4 for further discussion of dependent upon a relative abundance of Our Response: The Service has factors that may have allowed the natural sand to fulfill certain life-history identified numerous activities that are species to survive in the Elk River, functions. We have therefore clarified in cumulatively contributing to the present including the river’s relatively free- the final rule that the diamond darter or threatened destruction, modification, flowing condition, and our response to requires substrates that are not or curtailment of the diamond darter’s comment #3 for discussion of the embedded with fine silts or clays, and habitat or range, as described in the potential effects of historical water removed references to measures of Summary of Factors Affecting the quality degradation and regulatory embeddedness that are not consistently Species—Factor A. The Service concurs mechanisms. defined. that current coal mining activities that (6) Comment: The WVDEP We have also clarified our use of the are fully compliant with all existing commented that the concept of terms siltation and sedimentation. We State and Federal regulatory embeddedness described in the note that many publications use these requirements, when compared to proposed rule is inconsistent with the two terms interchangeably and do not historical activities such as species’ habitat requirements. The define or differentiate between the impoundment and unregulated mining, agency stated that, if the diamond darter terms. For the final rule, we have used are certainly less likely to be a threat to occupies habitats with ample sand, the term siltation to specifically refer to the diamond darter and its habitats. some embeddedness of the larger the pollution of water by fine particulate However, impacts from historical particles in these areas is expected and terrestrial material, with a particle size mining, such as acid mine drainage necessary. If diamond darters are dominated by silt or clay. It refers both from abandoned mined lands, continue captured on sand, they are likely not to the increased concentration of to be a significant source of water being collected from substrates with suspended sediments and to the quality degradation in the Elk River ‘sparse to low embeddedness.’ The increased accumulation (temporary or watershed (WVDEP 2011b, p. 41). The agency further suggested that the permanent) of fine sediments on stream WVDEP has also identified active concepts of siltation versus bottoms; whereas, sedimentation refers mining as one source of selenium, sedimentation be clarified since it to the deposition of suspended soil metals, and sedimentation, which are would appear that the diamond darter is particles of various sizes from large currently impairing biological susceptible to the effects of siltation, rocks to small particles (Wikipedia conditions in Elk River watersheds which is the accumulation of fines (e.g., 2013a, p. 1; Wikipedia 2013b, p. 1). (WVDEP 2011b, pp. 29, 37, 63). While particles smaller than sand), while being Sedimentation is used as the opposite of the overall percentage of the entire Elk dependent upon a relative abundance of erosion, is often caused by land use River watershed subjected to mining sand to fulfill life history functions. changes or disturbances, and is a activities may be small, watersheds of Our Response: Embeddedness is common source of siltation in a stream some Elk River tributaries, such as generally described as a measure of the (Wikipedia 2013b, p. 1). However, while Leatherwood Creek, are highly degree that cobble, gravel, and boulder we have clarified terminology, the best dominated by mining activity and substrates are surrounded, impacted in, available data illustrate that the include mining permits encompassing or covered by fine materials (Shipman diamond darter requires low levels of 81 to 100 percent of the subwatersheds 2000, p. 12). As substrates become siltation and substrates with naturally (WVDEP 2011b, p. 37). Mining is likely embedded, the surface area available to high percentages of sands that are not a significant factor affecting the water macroinvertebrates and fish (shelter, embedded with silts and clays. Excess quality of streams, such as Leatherwood spawning, and egg incubation) is sedimentation can degrade diamond Creek, that are principle tributaries to decreased (Barbour et al. 1999, pp. 5– darter habitat by both increasing the Elk River. The effects of these 13; Sylte and Fischenich 2007, p. 12). siltation resulting in increased substrate mining activities conducted both within Researchers use at least five methods for embeddedness and by destabilizing the Elk River mainstem and in Elk River measuring embeddedness, but sampling stream channels, banks, and substrates. tributaries, coupled with the effects methods are not standardized and (7) Comment: The WVDEP from other activities described in Factor ‘‘fines’’ are not consistently defined commented that the impacts of coal A, are continuing threats to the diamond (Sylte and Fischenich 2007, p. 12). As mining activities may not be a leading darter. noted by WVDEP, many methodologies threat to the species. Less than four As discussed in the proposed rule (77 include sands as ‘‘fines’’ that increase percent of the watershed has been FR 43906) and below, the diamond embeddedness (Barbour et al. 1999, pp. subjected to coal mining activities. Coal darter has already been extirpated from 5–13). However, other methods are more mining activities that are compliant most of its historical range. As described ambiguous. For example, Shipman with the State’s water quality standards in our response to comment #5, these (2000, p. 12) explains that ‘‘naturally are less likely to affect the diamond extirpations were likely a result of the sandy streams are not considered darter than other historical activities cumulative effects of siltation, water embedded; however, a sand such as impoundment. The WVDEP quality degradation, and impoundment. predominated stream that is the result of stated it is unlikely that any Our response to comment #3 provides anthropogenic activities that have constituents commonly associated with more information on how other fish buried the natural course substrates is mining, including conductivity, populations in the Ohio River basin considered embedded.’’ These emanating from permitted, compliant have responded to water quality inconsistent definitions may make use activities will adversely affect the improvements since major

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environmental regulations were reports also identify coal mining, oil gas, and forestry activities are effectively enacted, and how the diamond darter and gas development, erosion and regulated by a comprehensive network population may have had a similar sedimentation, timber harvesting, water of overlapping Federal and State laws response. We have no information to quality degradation, and poor such that threats from these industries suggest that the diamond darter is less wastewater treatment as threats to the are not significant. They cite the sensitive to water quality degradation Elk River watershed (WVDEP 1997, p. requirements and protections provided than these other more common species; 15; WVDEP 2008b, pp. 1–2; WVDEP by the Clean Water Act, the West rather the diamond darter’s pattern of 2011b, pp. viii–ix). We conclude that Virginia Pollution Control Act, the West extirpation in other watersheds suggests the Elk River’s listing as a high-quality Virginia Oil & Gas Act, the 2011 West they may be more sensitive to water stream and high benthic Virginia Horizontal Well Act, the West quality degradation and cumulative macroinvertebrate scores are insufficient Virginia Abandoned Well Act, the effects. evidence to conclude that there are no WVDEP Erosion and Sediment Control (8) Comment: The WVDEP significant threats to the watershed. Manual, and the mandatory use of best commented that, although mining- management practices (BMPs) for Public Comments associated water quality impacts have timbering activities. The commenters been noted in the Elk River, the WVDNR We received public comments from state that many of these regulations and considers the Elk River a ‘‘high quality 12 individuals or organizations. Four requirements were specifically designed stream,’’ and WVDEP benthic individuals provided letters supporting with protection of water quality and macroinvertebrate surveys indicate good the listing, and one of these individuals reduction of sedimentation as their biological conditions in the stream. provided substantive information primary goals, and the commenters Similar comments were received from corroborating our threats analysis. Three suggest that these regulatory members of the public including the organizations, The Nature Conservancy mechanisms have been documented to West Virginia Chamber of Commerce (TNC), the West Virginia Rivers be effective at reducing sedimentation, (WVCC) and other industry and trade Coalition (WVRC), and Kentucky pollution, and metals in waterways. groups. The commenters all suggested Waterways Alliance, also supported the Our Response: We concur that the the stream classification and results of proposed rule and provided substantive network of existing regulatory macroinvertebrate studies are evidence comments or additional supporting mechanisms cited above has resulted in that threats from mining, forestry, and information corroborating our threats improvements in water and habitat oil and gas may be overstated, and that analysis. The Center for Biological quality when compared to conditions existing regulatory mechanisms are Diversity (CBD), on behalf of 16 prior to enactment of these laws (See adequately protecting the diamond additional organizations, submitted our response to comment #2). Many of darter. comments in support of the proposed these regulations were designed to Our Response: The Elk River’s listing listing and reiterated information protect water quality, reduce the as a ‘‘high quality stream’’ by the presented in the proposed rule. In amount of erosion and sedimentation WVDNR does not indicate that there is addition, approximately 4,840 occurring in streams, or both. When a lack of threats to the species or water individuals associated with CBD these regulations are fully complied quality degradation in the watershed. As provided form letters supporting the with and vigorously enforced, they can noted in the proposed rule (77 FR proposed listing that reiterated the be effective at reducing adverse effects 43906) and below, criteria for placement comments provided by CBD. The from the regulated activities. We have on the high-quality streams list are WVRC, CBD, and associated individuals made reference to these additional laws based solely on the presence of urged the Service to act quickly to in our discussion of the Summary of significant fisheries populations and the finalize the listing of the species, with Factors Affecting the Species—Factor D, use of those populations by the public the WVRC suggesting that protection is and cited some examples of where (WVDNR 2001, p. 36). Water quality or needed now while there still may be a compliance with these regulatory threats to the watershed are not viable breeding population of diamond mechanisms has been shown to reduce included as criteria for determining darters. Four organizations, the WVCC, potential threats. However, as discussed whether a stream should be added to the the West Virginia Oil and Natural Gas in the Summary of Factors Affecting the list (Brown 2009, p. 1). The WVDEP Association (WVONGA), the West Species—Factor A, degradation of the previously identified some streams Virginia Coal Association (WVCA), and diamond darter’s habitat is continuing listed on both the WVDNR high-quality the West Virginia Forestry Association despite these regulatory mechanisms. streams list and the WVDEP impaired (WVFA), did not support the proposed In addition, there are a number of waterways list under section 303(d) of rule and provided additional threats that are not addressed by any the Clean Water Act (CWA). The substantive comments. These four existing regulatory mechanisms. WVDEP explains that the dual listing organizations each submitted separate Unregulated threats include geographic indicates both that the streams support comments during both of the comment isolation, invasive species, accidental game fisheries and that the game periods, and all urged the Service to spills and catastrophic events, and non- fisheries therein may be threatened delay listing of the species until a more forestry-related activities occurring on (WVDEP 2005, p. 31). The Elk River thorough record regarding the proposal private lands that contribute sediments simultaneously occurred on both lists in was developed. A summary of the and other non-point-source pollutants to 2010. substantive comments we received the Elk River watershed. Because the The WVDEP reports detailing the regarding the proposed listing and our only remaining population of this results of the Elk River benthic responses are provided below. species is restricted to one small reach macroinvertebrate surveys state that (9) Comment: The WVCC, WVCA, of one stream, these unregulated threats larger rivers, as opposed to smaller WVFA, and WVONGA all commented alone make listing the diamond darter rivers, offer a wider variety of that listing the diamond darter is not warranted. The cumulative effects of all microhabitats, and, therefore, the high warranted because the proposed rule the threats listed under the Summary of benthic macroinvertebrate scores may underestimates the effectiveness of Factors Affecting the Species—Factors mask some degradation in water quality existing regulatory mechanisms. These A, B, C, and E, including ongoing (WVDEP 1997, p. 41). These WVDEP commenters suggest that coal, oil and habitat degradation, coupled with the

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effects of other natural and manmade regulatory mechanisms. These (USEPA) 1995, pp. 1–16; Dwyer et al. factors affecting the species’ continued organizations further assert that 2005, pp. 143–154). Because the crystal existence, further justify listing the WVDNR’s comments about the species’ darter is in the same genus, shares many diamond darter as endangered. historical abundance and susceptibility similar life-history traits, and was (10) Comment: The WVCC, WVCA, to sampling methods raises significant previously considered the same species WVFA, and WVONGA all commented questions about our current estimation as the diamond darter, information on that the only evidence the proposed rule of the abundance of the diamond darter, this species can reasonably be used to cites to support the claim that existing as detailed in the proposed rule. infer factors or conditions that may also regulatory mechanisms are inadequate Our Response: The increased capture be important to the diamond darter. is the small size of the current diamond rates in the last few years are most likely Additional research, while needed to darter population. They suggest there is a direct result of the increased survey determine whether existing water no evidence that a sizable diamond and research efforts by the Service and quality conditions at diamond darter darter population ever existed in the Elk our partners. These efforts include (1) capture sites are adequate to protect all or any other river and that, without recent research on the species’ habitat life stages of the species, is not required evidence of a once-thriving population, requirements, coupled with the before the Service can draw conclusions the proposed rule’s conclusion that availability of habitat maps for the about the species’ status based on the existing regulatory mechanisms are to entire Elk River, that has allowed survey best available scientific and commercial blame for the species’ low population is efforts to focus on specific areas of the data. The final rule does not establish unsupported. They further state that the Elk River where diamond darters are specific numeric water quality adverse effects of inbreeding and small most likely to be concentrated, and (2) parameters that are necessary for the population size are not merely an the development and use of new diamond darter. ongoing threat to the diamond darter, species-specific survey techniques over (13) Comment: The WVCC, WVCA, but have been affecting the species for the past three survey seasons that WVFA, and WVONGA all commented many decades. This factor alone could resulted in more comprehensive and that conductivity was cited as a threat explain why the population has not effective surveys (Ruble 2011a, p. 1; to the diamond darter even though an increased despite relatively high water WVDNR 2012, p. 83; Welsh 2012, pp. 8– appropriate conductivity range for the quality in the mainstem Elk River. They 10). See our responses to comments #3 diamond darter has not yet been concluded that until genetic robustness and #9 for additional information on the established and scientific studies have of the population is evaluated, the claim relationship between current and not conclusively shown that elevated that existing regulatory mechanisms are historical survey methods and our conductivity causes harm to fish inadequate is unsupported and is estimation of potential population species. Two overall concerns were arbitrary and capricious. trends, as well as the benefits of existing detailed in support of this comment: (1) Our Response: We concur that regulatory mechanisms. None of the studies cited in the rule adverse effects of inbreeding and small (12) Comment: The WVCC, WVCA, conclude that conductivity, population size have likely been WVFA, and WVONGA all commented independent of the dissolved metals and affecting the last remaining population that there are insufficient data to sediment observed at the test sites, of the diamond darter for many years. quantitatively define specific water caused the observed scarcity of fish; and However, the small size of the diamond quality standards required by the (2) conductivity varies naturally from darter population is not cited as diamond darter, and noted that the region to region due to the availability evidence of the inadequacy of existing proposed rule references water quality of different ionic constituents, so that regulatory mechanisms as described conditions seen at locations where the data from potential effects of under the Summary of Factors Affecting ‘‘sister species,’’ the crystal darter, is conductivity from one region of the the Species—Factor D. Rather, the small found. Commenters suggest that use of country should not be applied to other size and restricted range are cited as the crystal darter as a surrogate for the regions. They expressed concern that separate and distinct threats to the diamond darter is not justified because the proposed rule could impede species under the Summary of Factors the ranges of these two species do not industries from acquiring permits if Affecting the Species—Factor E (Other overlap and the two species are their discharges would elevate Natural or Manmade Factors Affecting genetically distinct. The commenters conductivity. They suggested that until Its Continued Existence). The Act suggest that water quality conditions a causal relationship between elevated requires that the Secretary shall make should be observed where the diamond conductivity and harm to fish species is determinations solely on the basis of the darter population currently exists, and scientifically established, conductivity best available scientific and commercial that the crystal darter should not be should not be listed as a threat to the data available. Because further used to establish water quality diamond darter, and industries should information about the diamond darter’s parameters. not face increased scrutiny for this genetic robustness is not available and Our Response: The Service would water quality parameter. They further the current data supports our prefer to have species-specific data to be recommended that, if an ideal endangered status determination for the able to quantitatively describe the water conductivity range for the diamond species, we disagree that additional quality conditions that the diamond darter was included in the final rule, it research on the genetic robustness of the darter needs to survive and thrive. should be based on sampling from the population is required prior to finalizing However, these data are currently not Elk River or direct testing on the the listing of the diamond darter. available. In the absence of these data, diamond darter. (11) Comment: The WVCC, WVCA, we have described habitat and water Our Response: We concur that none of WVFA, and WVONGA all commented quality conditions from locations where the studies cited in the proposed rule that the increased capture rates of the the diamond darter or the closely definitively conclude that conductivity, diamond darter in the last 5 years related crystal darter has been found. independent of the dissolved metals and compared to when surveys began Surrogate species have long been used sediment observed at the test sites, indicate that the population, while to establish water quality criteria or caused the observed scarcity of fish. admittedly small, is benefitting from, evaluate risks to a species (U.S. However, these studies found a strong rather than being failed by, existing Environmental Protection Agency correlation between increased

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conductivity levels and the absence or or higher quality, exceptional waters it is working on a watershed assessment reduction of sensitive fish populations (USEPA 2011, p. xiv). These data, of the Elk River that will assess (Mattingly et al. 2005, pp. 59–62; coupled with the information provided cumulative effects contributing to Thomas 2008, pp. 3–6; Service 2009, pp. on fish species such as the Cumberland degradation of aquatic resources, and 1–4). Furthermore, basic chemistry and darter and the Kentucky arrow darter help identify priority areas for physiology provide information on how (Etheostoma sagitta spilotum) that occur restoration and protection. increased conductivity may affect fish within the historic range of the diamond Our Response: We appreciate TNC’s populations. Conductivity is an estimate darter in Kentucky, provide applicable support of conservation of the diamond of the ionic strength of a salt solution regional information pertinent to the darter and have discussed the results of (USEPA 2011, p. 1). High ionic salt diamond darter. However, it is outside the draft watershed assessment with the concentrations impede effective the scope of this final rule to establish organization. The draft supports our osmoregulation in fish and other aquatic water quality criteria for permitted assessment of threats to the diamond organisms and impair their discharges. Water quality criteria and darter, as detailed in Factor A, and also physiological systems that extract permit conditions are established by will be useful in planning future energy from food, regulate internal pH appropriate State and Federal regulatory recovery efforts for the diamond darter and water volume, excrete metabolic agencies and under consultation with and other listed species in the wastes, guide embryonic development, the Service, if required. The Service watershed. We look forward to activate nerves and muscles, and would willingly work with industry enhancing our partnerships with TNC fertilize eggs (Pond et al. 2008, p. 731; groups and regulatory agencies to and other organizations so that we can USEPA 2011, p. 27). Thus, there is a develop additional research to fully work toward the recovery of listed strong physiological and chemical basis evaluate conductivity limits to species species. to suggest that high conductivity levels in the Elk River, including the diamond (16) Comment: The Nature can adversely affect the fitness and darter. Conservancy concurred with our survival of fish species such as the (14) Comment: The WVCC, WVCA, assessment of threats to the species and diamond darter. In addition, the WVFA, and WVONGA all suggested that commented that coal mining, oil and gas diamond darter forages on benthic listing the diamond darter under the Act development and infrastructure, macroinvertebrates. Studies have will do nothing to ensure the species’ sedimentation, water quality demonstrated a causal relationship long-term survival, but will place a degradation, and poor wastewater between high conductivity levels and regulatory burden on a wide range of treatment all pose significant threats to impairment of benthic human activities. The organizations the diamond darter. The organization macroinvertebrate populations (Pond et note that little is known about the noted that many of these land use changes in the Elk River watershed are al. 2008, pp. 717–737; USEPA 2011, pp. diamond darter’s reproductive occurring on large, previously A1–40). A recent USEPA study techniques, water quality parameters, or undeveloped, and privately owned evaluated the potential confounding food choices, and that the genetic fitness forestland tracts along tributaries that effects of metals, sediments, and other of the diamond darter’s remaining were once managed primarily as water quality parameters and still found population has not been evaluated. The forestland and that contributed to that biological impairment of benthic organizations therefore conclude that maintaining this river’s ecological macroinvertebrate populations was a using species-specific conservation measures would be more efficient and condition. result of increased conductivity (USEPA cost effective than using a broad legal Our Response: We have reviewed 2011, pp. B1–37). Thus, high mechanism like the Act to improve the additional information developed by conductivity levels could also adversely long-term survival of the diamond TNC (see comment #17) that supports affect the availability of foods that the darter. our assessment of threats. We concur diamond darter needs to survive. We Our Response: The Act requires that that degradation of water quality in therefore conclude that increased the Service make listing determinations tributaries directly affects the ecological conductivity could pose a threat to the solely on the basis of the best scientific condition of the mainstem Elk River. diamond darter’s ability to feed, breed, and commercial data available regarding Our discussion of threats under Factor and survive, and have retained and the status of the species and the A notes many examples of water quality enhanced the discussion of this topic in presence of existing conservation degradation occurring within tributaries the final rule. efforts. The Act does not allow listing to to the Elk River. We also concur that conductivity be avoided based on the potential for (17) Comment: The Nature varies naturally from region to region perceived benefits or burdens that will Conservancy commented that Japanese due to the availability of different ionic result from the listing, or the potential knotweed (Fallopia japonica) and other constituents, so that data on to develop future conservation efforts in invasive, nonnative plants associated conductivity from one region of the the absence of listing. However, the with riparian areas are infesting the country may not be applicable to other Service would welcome assistance from banks of the Elk River. These invasive regions. Studies from West Virginia these groups to develop additional species reduce stream bank stability and (that included data from watersheds conservation measures targeted toward alter vegetation communities and the immediately adjacent to the Elk River) diamond darter recovery. types of detritus, insects, and other and Kentucky found that an aquatic (15) Comment: The Nature natural inputs that enter the aquatic conductivity level of 300 microSiemans/ Conservancy commented that the system and, therefore, pose a threat to cm (mS/cm) should avoid the local diamond darter is one of the most the diamond darter. extirpation of 95 percent of native critically endangered aquatic species in Our Response: Japanese knotweed has stream macroinvertebrate species. The the United States. The organization already been found in the upstream study noted that, because 300 mS/cm supports the Service’s efforts to list the portions of the Elk River watershed would only protect against total species now while a sufficient (Schmidt 2013, p. 1). We concur that extirpation rather than just a reduction population may be available from which this and other invasive riparian plants in abundance, conductivity level was to restore the species to a nonthreatened could pose an additional threat, not fully protective of sensitive species status. The organization also noted that particularly if they occur along the

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portion of the Elk River that supports purposes; (C) disease or predation; (D) darters congregate and forage in shoals the diamond darter, and we have added the inadequacy of existing regulatory that are often located near tributary text under Factor E to that regard. mechanisms; or (E) other natural or mouths (Welsh et al. 2012, p. 3). manmade factors affecting its continued Many sources have recognized that Summary of Changes From Proposed existence. Listing actions may be Crystallaria species appear to be Rule warranted based on any of the above particularly susceptible to habitat We fully considered comments from threat factors, singly or in combination. alterations and changes in water quality. peer reviewers, State and Federal Each of these factors is discussed below. Threats similar to those experienced in agencies, and the public on the the Elk River watershed have likely proposed rule to develop this final A. The Present or Threatened contributed to the extirpation of listing of the diamond darter. This final Destruction, Modification, or Crystallaria within other watersheds rule incorporates appropriate changes to Curtailment of Its Habitat or Range (Clay 1975, p. 315; Trautman 1981, pp. our proposed listing based on the As indicated by the continued 24–29, 646; Grandmaison 2003, pp. 16– received comments discussed above and persistence of the diamond darter, the 19). In addition, the current range of the newly available scientific and Elk River in West Virginia currently diamond darter is restricted and isolated commercial data. Substantive changes provides overall high-quality aquatic from other potential and historical include new or additional information habitat. The Elk River is one of the most habitats by impoundments. on: (1) Why the species was extirpated ecologically diverse rivers in the State from most of its historical range and (Green 1999, p. 2), supporting more than Siltation (Sedimentation) why it has survived in the Elk River; (2) 100 species of fish and 30 species of Many publications use the terms the results of survey efforts and research mussels, including 5 federally listed siltation and sedimentation conducted since the proposed rule; (3) mussel species (Welsh 2009a, p. 1). The interchangeably, and do not define or threats from invasive riparian plants; (4) river, including those portions that are differentiate between the terms. For this definitions for substrate embeddedness within the range of the diamond darter, rule, we have used the term siltation and siltation and the threat that they is listed as a ‘‘high quality stream’’ by specifically to refer to the pollution of pose; (5) potential threats from the WVDNR (WVDNR 2001, pp. 1, 2, 5). water by fine particulate material, with increased conductivity; and (6) Streams in this category are defined as a particle size dominated by silt or clay. conservation measures and cumulative having ‘‘significant or irreplaceable fish, It refers both to the increased effects. Although our analysis of these wildlife, and recreational resources’’ concentration of fine-sized suspended threats is somewhat different from that (WVDNR 2001, p. iii). In an evaluation sediments and to the increased in our proposed rule, the analysis and of the watershed, the WVDEP noted that accumulation (temporary or permanent) our conclusions are a logical outgrowth all four sampling sites tested within the of fine sediments on stream bottoms, on the proposed rule commenting mainstem of the Elk River scored well whereas sedimentation refers to the process, and none of the information for benthic macroinvertebrates on the deposition of suspended soil particles of changes our determination that listing West Virginia Stream Condition Index, various sizes from large rocks to small this species as endangered is warranted. with results of 77 or higher out of a particles. Sedimentation is used as the In addition, we added Indiana to the potential 100 points (WVDEP 1997, p. opposite of erosion, is often caused by diamond darter’s historical range 41). land use changes or disturbances, and is column of the § 17.11 endangered and Criteria for placement on the high- a common source of siltation in a threatened wildlife table in the quality streams list are based solely on stream. regulatory section of the final rule. the quality of fisheries populations and The USEPA has identified excess Although Indiana was included in the the utilization of those populations by sediment as the leading cause of Historical Range/Distribution discussion the public and do not include water impairment to the Nation’s waters of the proposed rule, we inadvertently quality or threats to the watershed (USEPA 2013, p. 1). Excess sediment in left it out of the § 17.11 endangered and (WVDNR 2001, p. 36; Brown 2009, p. 1). streams and resulting sedimentation can threatened wildlife table in the Despite the high quality of the fishery degrade fish habitat by altering the regulatory section of the proposed rule. populations, continuing and pervasive stability of the stream channel, scouring Inclusion of Indiana in the historical threats exist within the watershed. In stream banks and substrates, range column of the § 17.11 endangered fact, the WVDEP evaluation also noted destabilizing the substrates and habitats and threatened wildlife table in the that because larger rivers offer a wider that fish such as the diamond darter rely regulatory section of the final rule variety of microhabitats, the high on, and aggrading the stream bottom, corrects that error. benthic macroinvertebrate scores may which covers the substrates with excess mask some degradation in water quality sediments and buries, crushes, or Summary of Factors Affecting the (WVDEP 1997, p. 41). Noted threats to suffocates benthic invertebrates, fish Species the Elk River watershed include eggs, and fish larvae (Waters 1995, pp. Section 4 of the Act and its sedimentation and erosion, coal mining, 114–115; USEPA 2013, pp. 1–6). Excess implementing regulations (50 CFR 424) oil and gas development, timber sediment in streams can also lead to set forth the procedures for adding harvesting, water quality degradation, siltation. species to the Federal Lists of and poor wastewater treatment (WVDEP Siltation has long been recognized as Endangered and Threatened Wildlife 1997, p. 15; Strager 2008, pp. 1–39; a pollutant that alters aquatic habitats and Plants. A species may be WVDEP 2008b, pp. 1–2). Significant by reducing light penetration, changing determined to be an endangered or degradation to the water quality has also heat radiation, increasing turbidity, and threatened species due to one or more been documented in the Elk River’s covering the stream bottom (Ellis 1936 of the five factors described in section tributaries (WVDEP 2011b, p.viii). Water in Grandmaison et al. 2003, p. 17). 4(a)(1) of the Act: (A) The present or quality in these tributaries directly Increased siltation has also been shown threatened destruction, modification, or contributes to and affects the ecological to abrade and suffocate bottom-dwelling curtailment of its habitat or range; (B) condition of the mainstem Elk River. organisms, reduce aquatic insect overutilization for commercial, Water quality degradation of tributaries diversity and abundance, and, recreational, scientific, or educational is also important because diamond ultimately, negatively affect fish growth,

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survival, and reproduction (Berkman crystal darter, we now know that he was of actively mined areas including 91 and Rabeni 1987, p. 285). Siltation referring to individuals that have since surface mine permits, 79 underground directly affects the availability of food been identified as diamond darters. In mine permits, 1,351 ha (3,339 ac) of for the diamond darter by reducing the summary, Crystallaria species, valley fills, 582 km (362 mi) of haul diversity and abundance of aquatic including both the diamond darter and roads, 385 km (239 mi) of mine drainage invertebrates on which the diamond the crystal darter, are known to be structures, 473 National Pollutant darter feeds (Powell 1999, pp. 34–35), particularly susceptible to the effects of Discharge Elimination System (NPDES) and by increasing turbidity, which siltation, and populations of these discharge points associated with mines, reduces foraging efficiency (Berkman species have likely become extirpated or and 3 mining related dams (Strager and Rabeni 1987, pp. 285–294). severely reduced in size as a result of 2008, pp. 19–21). There are also 615 ha Research has found that when the this threat. (1,519 ac) of abandoned mine lands and percentage of fine substrates increases Siltation, along with excess 155 mine permit sites that have forfeited in a stream, the abundance of benthic sedimentation, has been identified as a their bonds and have not been insectivorous fishes decreases (Berkman threat to the Elk River system. Portions adequately remediated (Strager 2008, p. and Rabeni 1987, p. 285). Siltation also of the lower Elk River were listed as 18). Approximately 47 percent of the affects the ability of diamond darters to impaired due to elevated levels of iron entire Elk River watershed is within the successfully breed by filling the small and, previously, aluminum (USEPA area that the USEPA has identified as interstitial spaces between sand and 2001b, p. 1–1; Strager 2008, p. 36; potentially being subject to mountaintop gravel substrates with smaller particles. WVDEP 2008a, p. 18; WVDEP 2008b, p. removal mining activities (Strager 2008, Diamond darters lay their eggs within 1; WVDEP 2012, pp. 14–15). The p. 17). these interstitial spaces. The complexity WVDEP has since revised the water Coal mining can contribute significant and abundance of interstitial spaces is quality criteria for aluminum to address amounts of sediment to streams and reduced dramatically with increasing bioavailability of that metal, and degrade their water quality. Impacts to inputs of silts and clays. Siltation established maximum amounts of instream water quality (chemistry) occur results in an increase in substrate pollutants allowed to enter the through inputs of dissolved metals and embeddedness. As substrates become waterbody (known as Total Maximum other solids that elevate stream more embedded by silts and clays, the Daily Loads (TMDL)) (WVDEP 2008a, p. conductivity, increase sulfate levels, surface area available to fish for shelter, A–2; WVDEP 2010, p. 26). The WVDEP alter stream pH, or a combination of spawning, and egg incubation is identified that impairment due to these (Curtis 1973, pp. 153–155; Pond decreased (Barbour et al. 1999, pp. 5– metals, including iron, usually indicates 2004, pp. 6–7, 38–41; Hartman et al. 13; Sylte and Fischenich 2007, p. 12). excess sediment conditions (WVDEP 2005, p. 95; Mattingly et al. 2005, p. 59; Consequently, the amount and quality 2008b, p. 5), and identified coal mining, Palmer et al. 2010, pp. 148–149). As of breeding habitat for species such as oil and gas development, timber rock strata and overburden (excess the diamond darter is reduced harvesting, all-terrain vehicle usage, and material) are exposed to the atmosphere, (Bhowmik and Adams 1989, Kessler and stream bank erosion as sources of precipitation leaches metals and other Thorp 1993, Waters 1995, and Osier and increased sediment entering the Elk solids (e.g., calcium, magnesium, Welsh 2007 all in Service 2008, pp. River watershed (USEPA 2001b, pp. 1– sulfates, iron, and manganese) from 15–16). 1, 3–4 and 6; WVDEP 2008b, p. 1). these materials and carries them in Within two subwatersheds that make up solution to receiving streams (Pond Many researchers have noted that approximately 11 percent of the total 2004, p. 7). If valley fills are used as part Crystallaria species are particularly Elk River watershed area, the WVDEP of the mining activity, precipitation and susceptible to the effects of siltation, identified 433 kilometers (km) (269 groundwater percolate through the fill and Grandmaison et al. (2003, pp. 17– miles (mi)) of unimproved dirt roads and dissolve minerals until they 18) summarize the information as and 76 km (47 mi) of severely eroding discharge at the toe of the fill as surface follows: ‘‘Bhowmik and Adams (1989) stream banks (WVDEP 2008b, p. 5). An water (Pond et al. 2008, p. 718). Both of provide an example of how sediment estimated 1,328 hectares (ha) (3,283 these scenarios result in elevated deposition has altered aquatic habitat in acres (ac)) of lands were actively conductivity, sulfates, hardness, and the Upper Mississippi River system, timbered in those two watersheds in increased pH in the receiving stream. where the construction of locks and 2004 (WVDEP 2008b, p. 6). A review of Increased levels of these metals and dams has resulted in siltation leading to the West Virginia Department of other dissolved solids have been shown a successional shift from open water to Forestry (WVDOF) inventory of to exclude other sensitive fish species habitats dominated by submergent and registered logging sites estimated 16,381 and darters from streams, including the emergent vegetation. This successional ha (40,479 ac) of harvested forest, 1,299 federally threatened blackside dace process is not likely to favor species ha (3,209 ac) of land disturbed by (Chrosomus cumberlandensis) in the such as the crystal darter, which rely on forestry-related roads and landings, and upper Cumberland River Basin extensive clean sand and gravel 518 ha (1,281 ac) of burned forest within (Mattingly et al. 2005, pp. 59–62). The raceways for population persistence portions of the Elk River watershed that Kentucky arrow darter was found to be (Page 1983). For example, the crystal are impaired by excess sediment and excluded from mined watersheds when darter was broadly distributed in metals (WVDEP 2011c, pp. 34–35). conductivity exceeded 250 mS/cm tributaries of the Ohio River until high (Thomas 2008, pp. 3–6; Service 2009, silt loading and the subsequent Coal Mining pp. 1–4). smothering of sandy substrates occurred Coal mining occurs throughout the High ionic salt concentrations (Trautman 1981). In the Upper entire Elk River watershed. Most of the associated with increased conductivity Mississippi River, the relative rarity of active mining occurs in the half of the impede effective osmoregulation in fish crystal darters has been hypothesized as watershed on the south side of the Elk and other aquatic organisms and impair a response to silt deposition over sand River, which flows east to west (Strager their physiological systems that extract and gravel substrates (Hatch 1998)’’. 2008, p. 17). The most recent energy from food, regulate internal pH Although the Trautman (1981) citation summarized data, as of January 2008, and water volume, excrete metabolic within the above quote mentions the indicates more than 5,260 ha (13,000 ac) wastes, guide embryonic development,

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activate nerves and muscles, and A U.S. Geological Survey (USGS) slurry impoundments within the Elk fertilize eggs (USEPA 2011, p. 27; Pond study of the Kanawha River Basin, River watershed. These impoundments et al. 2008 p. 731). Thus, high which includes the Elk River, found that have a capacity of 6,258,023 and conductivity levels could adversely streams draining basins that have been 1,415,842 cubic meters (m3) affect the fitness and survival of fish mined since 1980 showed increased (221,000,000 and 50,000,000 cubic feet species such as the diamond darter. In dissolved sulfate, decreased median (cf)). The larger structure covers 19 ha addition, high conductivity levels could bed-sediment particle size, and (48 ac) and is considered a ‘‘class C’’ also adversely affect the availability of impaired benthic invertebrate dam whose failure could result in the forage populations of benthic communities when compared to streams loss of human life and serious damage macroinvertebrates that the diamond not mined since 1980. Stream-bottom to homes and industrial and commercial darter needs to survive. Studies have sedimentation in mined basins was also facilities (Strager 2008, pp. 21–22). A demonstrated a causal relationship greater than in undisturbed basins third coal refuse disposal impoundment between high conductivity levels and (USGS 2000, p. 1). In streams that is permitted and planned for impairment of benthic drained areas where large quantities of construction with an additional 54,821 macroinvertebrate populations (USEPA coal had been mined, the benthic m3 (1,936,000 cf) of capacity (Fala 2009, 2011, pp. A1–40; Pond et al. 2008, pp. invertebrate community was impaired p. 1; WVDEP 2012, p. 1). These three 717–737). Studies from West Virginia in comparison to rural parts of the study impoundments are on tributaries of the (that included data from watersheds area where little or no coal had been Elk River upstream of the reach of river immediately adjacent to the Elk River) mined since 1980 (USGS 2000, p. 7). known to support the diamond darter. and Kentucky found that an aquatic That report notes that benthic In October 2000, a coal slurry conductivity level of 300 mS/cm was invertebrates are good indicators of impoundment near Inez, Kentucky, expected to avoid the local extirpation overall stream water quality and that an breached, releasing almost 991,090 m3 of 95 percent of native stream impaired invertebrate community (35,000,000 cf) of slurry into the Big macroinvertebrate species. The study indicates that stream chemistry or Sandy Creek watershed. ‘‘The slurry left noted that, because this level was physical habitat, or both, are impaired, fish, turtles, snakes and other aquatic developed to protect against extirpation causing a disruption in the aquatic food species smothered as the slurry covered rather than reduction in abundance, it web (USGS 2000, p. 8). the bottoms of the streams and rivers was not fully protective of sensitive In another study that specifically and extended out into the adjacent species or higher quality, exceptional evaluated fish data, the Index of Biotic floodplain’’ (USEPA 2001a, p. 2). Over waters (USEPA 2011, p. xiv). Integrity (IBI) scores at sites downstream 161 km (100 mi) of stream were of valley fills were significantly reduced Water quality impacts from both impacted by the spill (USEPA 2001a, p. by an average of 10 points when active and historical mining have been 2). If a similar dam failure were to occur compared to unmined sites, indicating noted in the Elk River watershed in the Elk River watershed, it could that fish communities were degraded (WVDEP 2011b, pp. 29, 37, 41, 63). For have detrimental consequences for the below mined areas (Fulk et al. 2003, p. example, in the Jacks Run watershed, a entire diamond darter population. iv). In addition, that study noted a tributary to the Elk River, one-third of significant correlation between the Abandoned underground mines also the entire watershed had been subject to number of fishes that were benthic have potential to fill with water and mining-related land use changes that invertivores and the amount of mining ‘‘blow out,’’ causing large discharges of cleared previously existing vegetation. in the study watershed: The number of sediment and contaminated water. In a sampling site downstream of those types of fish species decreased Similar events have happened in nearby mining, the WVDEP documented with increased mining (Fulk et al. 2003, areas, including one in Kanawha substrates embedded with dark silt, pp. 41–44). As described above in the County, West Virginia, in April 2009 most likely from manganese precipitate Life History section, the diamond darter that discharged ‘‘hundreds of thousands or coal fines, and benthic scores that is a benthic invertivore. The effects of gallons of water’’ onto a nearby indicated severe impairment (WVDEP described above are often more highway, and caused a ‘‘massive earth 1997, p. 60). Another Elk River pronounced in smaller watersheds that and rock slide’’ (Marks 2009, p. 1). A tributary, Blue Creek, had low pH levels do not have the capacity to buffer or second situation occurred in March associated with contour mining and dilute degraded water quality (WVDEP 2009 in Kentucky where water from the acid drainage, and three sample sites 1997, p. 42; Fulk et al. 2003, pp. ii–iv). mine portal was discharged into a had pH values of 4.2 or less (WVDEP Because the mainstem Elk River drains nearby creek at an estimated rate of 1997, p. 47; WVDEP 2008b, p. 6). At pH a relatively large watershed, these types 37,854 liters (l) (10,000 gallons (ga)) a levels of 5.0 or less, most fish eggs of adverse effects are more likely to be minute (Associated Press 2009, p. 1). In cannot hatch (USEPA 2009, p. 2). noticed near the confluences of addition to the increased levels of Sampling sites below a large mining tributaries that are most severely altered sediment and potential smothering of reclamation site in the Buffalo Creek by mining activities such as Blue Creek, stream habitats, discharges from drainage of the Elk River watershed had which occurs within the known range of abandoned mine sites often have violations of the West Virginia water the diamond darter, and Buffalo Creek, elevated levels of metals and low pH quality criteria for acute aluminum and which is upstream of the known (Stoertz et al. 2001, p. 1). In 2010, a fish manganese, poor habitat quality, and diamond darter locations. kill occurred in Blue Creek, a tributary substrates that were heavily embedded Threats from coal mining also include of the Elk River in Kanawha County, with coal fines and clay (WVDEP 1997, the potential failure of large-scale mine when a contractor working for WVDEP pp. 4, 56–57). Other sites in the waste (coal slurry) impoundment attempted to clean up an abandoned watershed, where topographic maps structures contained by dams mine site. When the contractor breached showed extensive surface mining, had constructed of earth, mining refuse, and an impoundment, the mine discharged pH readings of 4.7, elevated aluminum various other materials, which could highly acidic water that then flowed levels, and benthic communities that release massive quantities of mine into the stream. Approximately 14.5 km were dominated by acid-tolerant species wastes that could cover the stream (9 mi) of Blue Creek was affected by the (WVDEP 1997, pp. 4, 56–57). bottoms. There are currently two coal fish kill (McCoy 2010, p. 1). The effects

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of the fish kill were stopped by response terrain vehicles can increase the amount causing the formation to crack open and crews 9.5 km (5.9 mi) upstream from of erosion associated with these roads form passages through which gas can where Blue Creek enters the Elk River (WVDEP 2008b, pp. 5–6). flow into the well. During the drilling within the known range of the diamond Shale gas development is an emerging process, each well may use between 7 darter. issue in the area. Although this is and 15 million liters (2 and 4 million ga) currently not the most productive area of water (Higginbotham et al. 2010, p. Oil and Gas Development of the State, the entire current range of 40). This water is typically withdrawn The Elk River watershed is also the diamond darter is underlain by the from streams and waterbodies in close subject to oil and gas development, with Marcellus and Utica Shale formation proximity to the location where the well more than 5,800 oil or gas wells in the and potentially could be affected by is drilled. Excessive water withdrawals watershed according to data available well drilling and development (National can reduce the quality and quantity of through January 2011 (WVDEP 2011a, p. Energy Technology Laboratory (NETL) habitat available to fish within the 1). The lower section of the Elk River, 2010 pp. 6–10). The pace of drilling for streams, increase water temperatures, which currently contains the diamond Marcellus Shale gas wells is expected to reduce dissolved oxygen concentrations, darter, has the highest concentration of increase substantially in the future, and increase the concentration of any both active and total wells in the growing to about 700 additional wells pollutants in the remaining waters watershed, with more than 2,320 active per year in West Virginia starting in (Freeman and Marcinek 2006, p. 445; wells and 285 abandoned wells 2012 (NETL 2010, p. 27). This amount Pennsylvania State University 2010, p. (WVDEP 2011a, p. 1). is consistent with what has been 9). Increasing water withdrawals has Although limited data are available to reported in the area around the Elk been shown to be associated with a loss quantify potential impacts, development River. In March 2011, there were 15 of native fish species that are dependent of oil and gas resources can increase Marcellus Shale gas wells reported on flowing-water habitats. Darters were sedimentation rates in the stream and within Kanawha County (West Virginia one group of species that were noted to degrade habitat and water quality in a Geological and Economic Survey be particularly vulnerable to this threat manner similar to that described for coal (WVGES) 2011, p. 1). As of January (Freeman and Marcinek 2006, p. 444). mining. Oil and gas wells can 2012, there were 188 completed In addition to water withdrawals, specifically cause elevated chloride Marcellus Shale gas wells within there is a potential for spills and levels through discharge of brine and Kanawha County and an additional 27 discharges from oil and gas wells, runoff from materials used at the site, wells that had been permitted (WVGES particularly Marcellus Shale drilling and the erosion of roads associated with 2012, p. 1). Data specific to the Elk River operations. Pipelines and ponds used to these wells can contribute large watershed are not available for previous handle brine and wastewaters from amounts of sediment to the streams years, but currently at least 100 fracking operations can rupture, fail, or (WVDEP 1997, p. 54). For example, completed and 21 additional permitted overflow and discharge into nearby WVDEP sampling sites within Summers Marcellus Shale gas wells are within the streams and waterways. In Fork, a tributary to the Elk River with watershed (WVGES 2012, p. 1). The Pennsylvania, accidental discharges of a ‘‘high density of oil and gas wells,’’ WVONGA suggests that the region brine water from a well site have killed had elevated chloride and conductivity where the diamond darter exists may fish, invertebrates, and amphibians up levels, as well as impaired benthic experience a surge in oil and natural gas to 0.4 mi (0.64 km) downstream of the invertebrate scores, despite ‘‘good exploration and drilling above the levels discharge even though the company benthic substrate’’ (WVDEP 1997, p. 52). experienced in the previous 5 years immediately took measures to control Within the Buffalo Creek watershed, (WVONGA 2013). and respond to the spill (PADEP 2009, another Elk River tributary, the Marcellus Shale gas wells require the pp. 4–22). In 2011, the WVDEP cited a impaired benthic invertebrate scores at use of different techniques than company for a spill at a well site in sample sites were attributed to oil previously used for most gas well Elkview, West Virginia. Up to 50 barrels compressor stations next to the creek, development in the area. When of oil leaked from a faulty line on the pipes running along the bank parallel to compared to more traditional methods, oil well site. The spill entered a the stream, and associated evidence of Marcellus Shale wells usually require tributary of Indian Creek, traveled into past stream channelization (WVDEP more land disturbance and more water Indian Creek and then flowed into the 1997, p. 55). and chemicals for operations. In Elk River (Charleston Gazette 2011, p. High levels of siltation have been addition to the size and length of any 1). This spill occurred within the reach noted in the impaired sections of the Elk required access roads, between 0.8 and of the Elk River known to be occupied River (USEPA 2001b, pp. 3–6). Oil and 2.0 ha (2 and 5 ac) are generally by the diamond darter and, therefore, gas access roads have been identified as disturbed per well (Hazen and Sawyer could have affected the species and its a source that contributes ‘‘high’’ levels 2009, p. 7). Each well also requires habitat. of sediment to the Elk River (USEPA about 500 to 800 truck trips to the site 2001b, pp. 3–7). The WVDEP estimates (Hazen and Sawyer 2009, p. 7). Water Quality/Sewage Treatment the size of the average access road Construction of these wells in close One common source of chemical associated with an oil or gas well to be proximity to the Elk River and its water quality impairments is untreated 396 meters (m) (1,300 feet (ft)) long by tributaries could increase the amount of or poorly treated wastewater (sewage). 7.6 m (25 ft) wide or approximately .30 siltation in the area due to erosion and Municipal wastewater treatment has ha (0.75 ac) per well site (WVDEP subsequent sedimentation from the improved dramatically since passage of 2008b, p. 10). If each of the wells in the disturbed area, road usage, and the 1972 amendments to the Federal watershed has this level of disturbance, construction. Water Pollution Control Act (which was there would be more than 1,821 ha Shale gas wells typically employ a amended to become the Clean Water Act (4,500 ac) of access roads contributing to technique called hydrofracking, which in 1977), but some wastewater treatment increased sedimentation and erosion in involves pumping a specially blended plants, especially smaller plants, the basin. Lack of road maintenance, liquid mix of water and chemicals down continue to experience maintenance and improper construction, and subsequent a well, into a geologic formation. The operation problems that lead to use by the timber industry and all- pumping occurs under high pressure, discharge of poorly treated sewage into

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streams and rivers (OEPA 2004 in (WVDEP 2008a, p. 18; WVDEP 2010, p. impounded. There are 4 dams on the Service 2008, p. 23). According to the 26). There have been noticeable Green River, 8 dams on the Cumberland data available in 2008, there were a total increases in fecal coliform near River, and 11 locks and dams on the of 30 sewage treatment plants within the population centers adjacent to the Elk Muskingum River. A series of 20 locks Elk River watershed (Strager 2008, p. River, including the cities of Charleston, and dams have impounded the entire 30). Elkview, Frametown, Gassaway, Sutton, Ohio River for navigation. Construction Untreated domestic sewage (straight and Clay (WVDEP 2008b, p. 8). Elk of most of these structures was piping) and poorly operating septic River tributaries near Clendenin also completed between 1880 and 1950; systems are still problems within the show evidence of organic enrichment however, the most recent dam Elk River watershed (WVDEP 1997, p. and elevated levels of fecal coliform constructed on the Cumberland River 54; WVDEP 2008b, p. 3). Untreated or (WVDEP 1997, p. 48). The WVDEP notes was completed in 1973 (Clay 1975, p. 3; poorly treated sewage contributes a that failing or nonexistent septic Trautman 1981, p. 25; Tennessee variety of chemical contaminants to a systems are prevalent throughout the Historical Society 2002, p. 4; American stream, including ammonia, pathogenic lower Elk River watershed (WVDEP Canal Society 2009, p. 1; Ohio Division bacteria, nutrients (e.g., phosphorous 2008b, p. 1). To address water quality of Natural Resources 2009, p. 1). and nitrogen), and organic matter, that problems, the WVDEP conducted a These impoundments have can increase biochemical oxygen more detailed analysis of two major permanently altered habitat suitability demand (BOD) (Chu-Fa Tsai 1973, pp. tributary watersheds to the lower Elk in the affected reaches and fragmented 282–292; Cooper 1993, p. 405). The River. The agency found that all stream habitats, blocking fish BOD is a measure of the oxygen residences in these watersheds were immigration and emigration between consumed through aerobic respiration of ‘‘unsewered’’ (WVDEP 2008b, p. 7). The the river systems, and preventing micro-organisms that break down Kanawha County Health Department recolonization (Grandmaison et al. organic matter in the sewage waste. Sanitarians estimate that the probable 2003, p. 18). Trautman (1981, p. 25) Excessive BOD and nutrients in streams failure rate for these types of systems is notes that the impoundment of the can lead to low dissolved oxygen (DO) between 25 and 30 percent, and Muskingum and Ohio Rivers for levels in interstitial areas of the monitoring suggests it may be as high as navigation purposes almost entirely substrate where a high level of 70 percent (WVDEP 2008b, p. 7). eliminated riffle habitat in these rivers, decomposition and, consequently, In another study, it was noted that increased the amount of silt settling on oxygen depletion takes place (Whitman straight pipe and grey water discharges the bottom, which covered former sand and Clark 1982, p. 653). Low interstitial are often found in residences within the and gravel substrates, and affected the DO has the potential to be particularly Elk River watershed because the extra ability of the diamond darter to survive detrimental to fish such as the diamond grey water would overburden septic in these systems. In addition, almost the darter, which live on and under the systems. These untreated wastes are entire length of the Kanawha River, bottom substrates of streams and lay discharged directly into streams. This including the 53 km (33 mi) upstream eggs in interstitial areas (Whitman and grey water can contain many household of the confluence with the Elk River and Clark 1982, p. 653). Adequate oxygen is cleaning and disinfectant products that an additional 93 km (58 mi) an important aspect of egg development, can harm stream biota (WVDEP 1997, p. downstream to Kanawha’s confluence and reduced oxygen levels can lead to 54). Finally, there is the potential for with the Ohio River, has been increased egg mortality, reduced inadvertent spills and discharges of impounded for navigation (U.S. Army hatching success, and delayed hatching sewage waste. In 2010, a section of Corps of Engineers (ACOE) 1994, pp. 1, (Keckeis et al. 1996, p. 436). stream bank along the Elk River near 13, 19). The dams and impoundments Elevated nutrients in substrates can Clendenin failed and fell into the river, on this system likely impede movement also make these habitats unsuitable for damaging a sewerline when it fell. The between the only remaining population fish spawning, breeding, or foraging and line then discharged raw sewage into of the diamond darter in the Elk River reduce aquatic insect diversity, which the river (Marks 2010, p. 1). The and the larger Ohio River watershed, may impact availability of prey and diamond darter is known to occur in the including the other known river systems ultimately fish growth (Chu-Fa Tsai Elk River near Clendenin; therefore, this with historical populations. Range 1973, pp. 282–292; Wynes and Wissing discharge likely affected the species. fragmentation and isolation (see Factor 1981, pp. 259–267). Darters are noted to E below) is noted to be a significant Impoundment be ‘‘highly sensitive’’ to nutrient threat to the persistence of the diamond increases associated with sewage Impoundment of previously occupied darter (Warren et al. 2000 in discharges, and studies have rivers was one of the most direct and Grandmaison et al. 2003, p. 18). demonstrated that the abundance and significant historical causes of range distribution of darter species decreases reduction and habitat loss for the Direct Habitat Disturbance downstream of these effluents (Katz and diamond darter. One of the reasons the There is the potential for direct Gaufin 1953, p. 156; Wynes and Wissing diamond darter may have been able to disturbance, alteration, and fill of 1981, p. 259). Elevated levels of fecal persist in the Elk River is because the diamond darter habitat in the Elk River. coliform signal the presence of river remains largely unimpounded. Since 2009, at least three proposed improperly treated wastes (WVDEP Although there is one dam on the Elk projects had the potential to directly 2008a, p. 7) that can cause the types of River near Sutton, an approximately disturb habitat in the Elk River in spawning, breeding, and foraging 161-km (100-mi) reach of the river reaches that are known to support the problems discussed above. downstream of the dam, including the species. Plans for these projects have The reach of the Elk River from the portion that supports the diamond not yet been finalized. Project types mouth to River Mile 102.5, which darter, retains natural, free-flowing, have included bridges and waterline includes the area supporting the riffle and pool characteristics (Strager crossings. Direct disturbances to the diamond darter, was on the State’s list 2008, p. 5; Service 2008). All the other habitat containing the diamond darter of impaired waters under section 303(d) rivers with documented historical could kill or injure adult individuals, of the CWA due to violations of fecal diamond darter occurrences are now young, or eggs. Waterline construction coliform levels in 2008 and 2010 either partially or completely that involves direct trenching through

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the diamond darter’s habitat could within and downstream of the minor effects, multiple crossings or destabilize the substrates, leading to construction area (Reid and Anderson multiple sources of disturbance and increased sedimentation and erosion. 1999, pp. 235, 244; Levesque and Dube sedimentation in a watershed can have Placement of fill in the river could 2007, pp. 396–399; Penkal and Phillips cumulative effects on fish survival and result in the overall reduction of habitat 2011, pp. 6–7). Various studies have reproduction that exceed the recovery that could support the species, and documented adverse effects to the capacity of the river, resulting in could alter flows and substrate benthic community that have been permanent detrimental effects (Levesque conditions, making the area less suitable apparent for between 6 months and 4 and Dube 2007, pp. 406–407). Whether for the species (Welsh 2009d, p. 1). years post-construction (Reid and or how quickly a stream population In addition, the expansion of gas Anderson 1999, pp. 235, 244; Levesque recovers depends on factors such as the development in the basin will likely and Dube 2007, pp. 399–400). Stream life-history characteristics of the species lead to additional requests for new or crossings have also been shown to affect and the availability of unaffected upgraded gas transmission lines across fish physiology, survival, growth, and populations upstream and downstream the river. The WVONGA suggests that reproductive success (Levesque and as a source of organisms for the region where the diamond darter Dube 2007, p. 399). Studies have found recolonization (Yount and Niemi 1990, exists may experience a surge in oil and decreased abundance of fish p. 547). Species such as the diamond natural gas exploration and drilling downstream of crossings, as well as darter that are particularly susceptible above the levels experienced in the signs of physiological stress such as to the effects of siltation and resulting previous 5 years, and that new pipeline increased oxygen consumption and loss substrate embeddedness, and that have stream crossings are expected because of equilibrium in remaining fish limited distribution and population the industry is working to provide new downstream of crossings (Reid and numbers, are likely to be more severely users with access to this expanded Anderson 1999, pp. 244–245; Levesque affected by instream disturbances than supply (WVONGA 2013). and Dube 2007, pp. 399–401). Increased other more common and resilient Pipeline stream crossings can affect sediment deposition and substrate species. The WVONGA suggests that the fish habitat; food availability; and fish compaction from pipeline crossing region where the diamond darter exists behavior, health, reproduction, and construction can degrade spawning may experience a surge in oil and survival. The most immediate effect of habitat, result in the production of fewer natural gas exploration and drilling instream construction is the creation of and smaller fish eggs, impair egg and above the levels experienced in the short-term pulses of highly turbid water larvae development, limit food previous 5 years (WVONGA 2013). and total suspended solids (TSS) availability for young-of-the-year fish, Conservation Efforts To Reduce Habitat downstream of construction (Levesque and increase stress and reduce disease Destruction, Modification, or and Dube 2007, pp. 399–400). Although resistance of fish (Reid and Anderson Curtailment of Its Range these pulses are usually of relatively 1999, pp. 244–245; Levesque and Dube short duration and there is typically a 2007, pp. 401–402). The NRCS and the Federal Highway rapid return to background conditions The duration and severity of these Administration/West Virginia after activities cease, instream effects depends on factors such as the Department of Transportation have construction has been shown to have duration of disturbance, the length of worked with the Service to develop considerable effects on stream substrates stream segment directly impacted by programmatic agreements on how their and benthic invertebrate communities construction, and whether there are agencies will address federally listed that persist after construction has been repeated disturbances (Yount and Niemi species for many of their routine project completed (Levesque and Dube 2007, 1990, p. 557). Most studies documented types. After the diamond darter became pp. 396–397). Commonly documented recovery of the affected stream reach a candidate species in 2009, both effects include substrate compaction, as within 1 to 3 years after construction agencies voluntarily agreed to update well as silt deposition within the direct (Yount and Niemi 1990, pp. 557–558, their programmatic agreements to impact area and downstream that fills 562; Reid and Anderson 1999, p. 247). address protection of the diamond interstitial spaces and reduces water However, caution should be used when darter. These agreements now include a flow through the substrate, increasing interpreting results of short-term process to determine when the species substrate embeddedness and reducing studies. Yount and Niemi (1990, p. 558) may be affected by projects, avoidance habitat quality (Reid and Anderson cite an example of one study that made measures that can be used to ensure 1999, p. 243; Levesque and Dube 2007, a preliminary determination of stream their projects are not likely to adversely pp. 396–397; Penkal and Phillips 2011, recovery within 1 year, but when the affect the species, conditions describing pp. 6–7). Construction also directly site was reexamined 6 years later, fish when additional consultation with the alters stream channels, beds, and banks biomass, fish populations, Service shall occur, and, in some cases, resulting in changes in cover, channel macroinvertebrate densities, and species other measures that can be incorporated morphology, and sediment transport composition were still changing. It was into projects to benefit the species. dynamics. Stream bank alterations can suspected that shifts in sediment and These programmatic agreements, which lead to increased water velocities, nutrient inputs to the site as a result of were completed in 2011, should help stream degradation, and stream channel construction in and around the stream reduce or avoid effects from small-scale migrations. Removal of vegetation from contributed to the long-term lack of highway construction projects and the banks can change temperature recovery. In another study, alterations in NCRS conservation practices, and can regimes and increase sediment and channel morphology, such as increased help these agencies design and nutrient loads (Penkal and Phillips channel width and reduced water implement projects to benefit the 2011, pp. 6–7). depth, were evident 2 to 4 years post- species. These instream changes not only construction at sites that lacked an directly affect the suitability of fish intact forest canopy (Reid and Anderson Summary of Factor A habitat, but also affect the availability 1999, p. 243). In summary, there are significant and quality of fish forage by altering the There is also the potential for threats to the diamond darter from the composition and reducing the density of cumulative effects. While a single present and threatened destruction, benthic invertebrate communities crossing may have only short-term or modification, or curtailment of its

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habitat. Threats include sedimentation species. Because these studies are now Uncontrolled collection from the and siltation from a variety of sources, complete, there should be limited need remaining diamond darter population discharges from activities such as coal to sacrifice additional individuals for could have deleterious effects on the mining and oil and gas development, scientific analysis, and thus, this reproductive and genetic viability of the pollutants originating from inadequate potential threat has been reduced. The species. wastewater treatment, habitat changes captive-breeding program was and isolation caused by impoundments, established after a review of the Conservation Efforts To Reduce and direct habitat disturbance. These conservation status of the species Overutilization for Commercial, threats are ongoing and severe and identified imminent threats to the last Recreational, Scientific, or Educational occur throughout the species’ entire remaining population, and species Purposes current range. We have no information experts identified the need to establish In response to the proposed listing of indicating that these threats are likely to a captive ‘‘ark’’ population to avert the diamond darter, the WVDNR has be appreciably reduced in the future, extinction in the event of a spill or incorporated wording into State fishing and in the case of gas development and continued chronic threats to the species. regulations to clarify that collection of associated instream disturbances The establishment of this program the diamond darter for any purpose is associated with gas transmission lines, should contribute to the overall not authorized unless conducted under we expect this threat to increase over conservation of the species and may a valid State scientific collecting permit the next several years as shale gas lead to the eventual augmentation of (WVDNR 2013, p. 8). development continues to intensify. populations. However, caution must Summary of Factor B still be used to ensure that any B. Overutilization for Commercial, additional collections do not affect the We find that overutilization for Recreational, Scientific, or Educational status of wild populations. commercial, recreational, scientific, or Purposes It is possible that future surveys educational purposes is a minor threat Due to the small size and limited conducted within the range of the to the diamond darter at this time. For distribution of the only remaining species could inadvertently result in a species like the diamond darter, with population, the diamond darter is mortality of additional individuals. For a small range and population size, there potentially vulnerable to overutilization. example, during some types of is the potential that overutilization for Particular care must be used to ensure inventory work, fish captured are scientific purposes or personal that collection for scientific purposes preserved in the field and brought back collections could have an effect on the does not become a long-term or to the lab for identification. Young-of- viability of the species. However, there substantial threat. It is possible that the-year diamond darters are not easily is limited need for additional research previous scientific studies may have distinguished from other species, and that would require the sacrifice of impacted the population. Of the fewer their presence within these samples individuals. Based on our review of the than 50 individuals captured through may not be realized until after the best available scientific and commercial 2011, 14 either died as a result of the samples are processed. This was the data, the threat of overutilization is not capture or were sacrificed for use in case during studies recently conducted likely to increase in the future. scientific studies. Nineteen were by a local university (Cincotta 2009a, removed from the system and were used p. 1). Future surveys should be designed C. Disease or Predation for the establishment of a captive with protocols in place to minimize the There is no specific information breeding program. Two have died in risk that diamond darters will be available to suggest that disease or captivity. It should be noted that there inadvertently taken during nontarget predation presents a threat to diamond were valid scientific or conservation studies. The WVDNR currently issues darters. Although some natural purposes for most of these collections. collecting permits for all surveys and predation by fish and wildlife may To verify the identification and scientific collections conducted within occur, darters usually constitute only an permanently document the first record the State and incorporates appropriate almost incidental component in the diet of the species in West Virginia, the conditions into any permits issued for of predators (Page 1983, p. 172). This specimen captured in 1980 was studies that will occur within the incidental predation is not considered preserved as a voucher specimen potential range of the species. This to pose a threat to the species. consistent with general scientific limits the overall potential for Commonly reported parasites and protocols of the time. Subsequent overutilization for scientific purposes. diseases of darters, in general, include surveys in the 1990s were conducted for We know of no recreational or black-spot disease, flukes, nematodes, the specific purpose of collecting educational uses for the species. leeches, spiny-headed worms, and additional specimens to be used in the Although the species has no present copepods (Page 1983, p. 173). None of genetic and morphological analyses commercial value, it is possible that live the best available data regarding required to determine the taxonomic specimens may be collected for the diamond darters captured to date, or and conservation status of the species. aquarium trade or for specimen reports on the related crystal darter, The extent and scope of these studies collections (Walsh et al. 2003 in note any incidences of these types of were determined and reviewed by a Grandmaison et al. 2003 p. 19) and that issues. As a result, we find that disease variety of entities including the once its rarity and potential collection or predation does not currently pose a WVDNR, the Service, USGS, university locations become more widely known, it threat to the species, and we have no scientists, and professional may become attractive to collectors. At available data that indicate disease or ichthyologists (Tolin 1995, p. 1; Wood this time, this is not known to be a predation is now or likely to become a and Raley 2000, pp. 20–26; Lemarie widespread threat, although there is threat to the diamond darter in the 2004, pp. 1–57; Welsh and Wood 2008, some evidence of individuals future. pp. 62–68). attempting to collect other darters and In addition, when these collections rare fish in West Virginia and other Conservation Efforts To Reduce Disease were initiated, insufficient data were States for personal or academic or Predation available to establish the overall collections (North American Native Since neither disease nor predation imperiled and unique status of the Fishes Association 2007, pp. 1–5). currently present threats to the diamond

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darter, no conservation efforts are being established TMDLs for total iron, turbidities increased significantly conducted to reduce these threats. dissolved aluminum, total selenium, following road construction and that silt pH, and fecal coliform bacteria in the fences installed to control erosion D. The Inadequacy of Existing Elk River watershed (WVDEP 2012, became ineffectual near stream Regulatory Mechanisms pp. viii–x). The total iron TMDL is used crossings, allowing substantial amounts Few existing Federal or State as a surrogate to address impacts of sediment to reach the channel (Wang regulatory mechanisms specifically associated with excess sediments et al. 2010, p. 1). protect the diamond darter or its aquatic (WVDEP 2011b, p. 47). The TMDLs for The WVDOF periodically evaluates habitat where it occurs. The diamond the Elk River watershed were approved compliance with BMPs; this evaluation darter and its habitats are afforded some in 2012, and address 165 km (102.5 mi) indicates a trend of increasing protection from water quality and of Elk River from Sutton Dam to the compliance with BMPs (Wang et al. habitat degradation under the Clean confluence with the Kanawha River, 2002, p. 1). The most recently available Water Act of 1977 (33 U.S.C. 1251 et including the entire reach known to survey of randomly selected logging seq.)(CWA), the Surface Mining Control support the diamond darter, and 214 operations throughout West Virginia and Reclamation Act of 1977 (30 U.S.C. other impaired tributaries in the estimated that overall compliance with 1234–1328), the West Virginia Logging watershed. The draft 2012 WVDEP CWA these BMPs averaged 74 percent, and and Sediment Control Act (WVSC § 19– 303(d) report places these impaired compliance with specific categories of 1B), the West Virginia Pollution Control streams in a category where TMDLs BMPs ranged from 81 percent Act (WVSC § 22–11–1.), the West have been developed but where water compliance with BMPs related to Virginia Horizontal Well Act (WVSC quality improvements are not yet construction of haul roads, to only 55 § 22–6A), the West Virginia Abandoned documented (WVDEP 2012, pp. 14–15). percent compliance with BMPs related Well Act (WVSC § 22–10–1), and An additional six streams, totaling 63 to the establishment and protection of additional West Virginia laws and km (39 mi) within the Elk River streamside management zones (Wang et regulations regarding natural resources watershed, were listed as having al. 2007, p. 60). In addition, the WVDOF and environmental protection (WVSC impaired biological conditions due to estimates that illicit logging operations § 20–2–50; § 22–6A; § 22–26–3). Many mining, but TMDLs for these streams represent approximately 2.5 percent of of these regulations and requirements were not developed (WVDEP 2012, the total harvested forest area were specifically designed with p. 9). throughout West Virginia (WVDEP protection of water quality and the Because these TMDLs for some of 2011c, pp. 34–35). These illicit reduction of sedimentation as their these impaired streams have just operations most likely do not have primary goals. However, as recently been established, it is not properly installed BMPs and can demonstrated under Factor A, known how effective they will be at contribute excessive sediment to degradation of habitat for this species is reducing the levels of these pollutants, streams. ongoing despite the protection afforded or how long streams within the Elk West Virginia State laws regarding oil by these existing laws and River watershed will remain impaired. corresponding regulations. These laws The TMDLs apply primarily to point- and gas drilling, including recently have resulted in some improvements in source discharge permits, not the non- enacted changes to West Virginia State water quality and stream habitat for point sources that may also contribute Code § 22–6A, are generally designed to aquatic life, including the diamond to sediment loading in the watershed. protect fresh water resources like the darter, but water quality degradation, The Service is not aware of any other diamond darter’s habitat, but the laws sedimentation and siltation, non-point- current or future changes to State or do not contain specific provisions source pollutants, and habitat alteration Federal laws that will substantially requiring an analysis of project impacts continue to threaten the species. affect the currently observed to fish and wildlife resources. They also Although water quality has generally degradation of water quality from point- do not contain or provide any formal improved since major environmental source pollution that is considered to be mechanism requiring coordination with, regulations like the CWA and Surface a continuing threat to diamond darter or input from, the Service or the Mining Control and Reclamation Act habitats. WVDNR regarding the presence of (30 U.S.C. 1234–1328) were enacted or When existing laws that regulate some federally threatened, endangered, or amended in the late 1970s, degradation of these activities are fully complied candidate species or other rare and of water quality within the range of the with and vigorously enforced they can sensitive species. They also do not diamond darter continues. In 2010, a be effective at reducing the scope of contain any provisions that would avoid total of 102 streams within the Elk River threats from the regulated activity. For or minimize direct loss of diamond watershed totaling 1,030 km (640 mi) example, when forestry BMPs are fully darters. were identified as impaired by the and correctly applied they can be West Virginia State Code § 20–2–50 WVDEP and were placed on the State’s effective at reducing sedimentation into prohibits taking fish species for CWA 303(d) list (WVDEP 2010, p. 16). waterways. Studies have found a strong scientific purposes without a permit. Identified causes of impairment that correlation between BMP application The WVDNR issues collecting permits were identified include existing mining and prevention of sediment movement for surveys conducted within the State operations, abandoned mine lands, fecal into surface water (Schuler and Briggs and incorporates appropriate conditions coliform from sewage discharges, roads, 2000 p. 133). However, these same into any permits issued for studies that oil and gas operations, timbering, land studies also found that imperfect will occur within the potential range of use disturbance (urban, residential, or application of BMPs reduced their the species. This should limit the agriculture), and stream bank erosion effectiveness and that logging operations number of individuals impacted by (WVDEP 2011b, pp. viii–ix). can increase sediment loading into survey and research efforts. Current For water bodies on the CWA 303(d) streams if they do not have properly West Virginia fishing regulations list, States are required to establish a installed BMPs (Schuler and Briggs prohibit collecting any diamond darter TMDL for the pollutants of concern that 2000 p. 133; WVDEP 2011b, p. 35). One specimens in the State without a West will improve water quality to meet the study evaluating the effects of forestry Virginia scientific collecting permit, and applicable standards. The WVDEP has haul roads documented that watershed further specify that the diamond darter

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cannot be collected as bait (WVDNR E. Other Natural or Manmade Factors upstream from known diamond darter 2013, p. 8). Affecting Its Continued Existence locations (WVDNR 2008, p. 1). Anglers have also reported seeing heavy algal The diamond darter is indirectly Didymosphenia geminate mats, assumed to be didymo, in the provided some protection from Federal The presence of Didymosphenia actions and activities through the Act upstream reach of the river (WVDNR geminate, an alga known as ‘‘didymo’’ 2008, p. 1). Therefore, there is potential because the Elk River also supports five or ‘‘rock snot’’ has the potential to that the species could spread federally endangered mussel species. adversely affect diamond darter downstream to within the current range The reach of the Elk River currently populations in the Elk River. This alga, of the diamond darter in the future. If known to support the diamond darter historically reported to occur in cold, it does spread into the diamond darter also supports the pink mucket northern portions of North America habitat, it could degrade habitat quality (Lampsilis abrupta), the northern (e.g., British Columbia), has been and pose a significant threat to the riffleshell (Epioblasma torulosa steadily expanding its range within the species. rangiana), the rayed bean (Villosa last 10 to 20 years, and has now been fabalis), and the snuffbox (Epioblasma reported to occur in watersheds as far Invasive Riparian Plants triquetra). The clubshell mussel east and south as Arkansas and North Invasive, nonnative plants associated (Pleurobema clava) occurs in the reach Carolina (Spaulding and Elwell 2007, with riparian areas, such as Japanese of the Elk River upstream of the pp. 8–21). The species has also begun knotweed, have the potential to diamond darter. Many of the same occurring in large nuisance blooms that adversely affect diamond darter management recommendations made to can dominate stream surfaces by populations in the Elk River. Japanese avoid adverse effects during covering 100 percent of the substrate knotweed is a species native to eastern consultations for endangered mussels, with mats up to 20 cm (8 in) thick, Asia that was introduced in the United extending over 1 km (0.6 mi) and such as avoiding instream disturbances States as an ornamental landscape plant persisting for several months (Spaulding (Barney 2006, p. 704). The species forms and controlling sedimentation, would and Elwell 2007, pp. 3, 6). Didymo can dense, monotypic stands that exclude also benefit the diamond darter. greatly alter the physical and biological native vegetation (Urgenson 2006, p. 6). However, protective measures for listed conditions of streams in which it occurs Once introduced into an area, it spreads freshwater mussels in the Elk River have and cause changes to algal, invertebrate, rapidly through riparian areas as flood generally involved surveys for mussel and fish species diversity and waters carry root and stem fragments species presence and development of population sizes; stream foodweb downstream and these fragments then minimization measures in areas with structure; and stream hydraulics regenerate to form new populations confirmed presence. The diamond (Spaulding and Elwell 2007, pp. 3, 12). (Urgenson 2006, p. 1). darter is more mobile and, therefore, is Didymo is predicted to have particularly likely to be present within a less detrimental effects on fish, such as the Healthy, functioning, riparian forests restricted area than most mussel diamond darter, that inhabit stream are an essential component of species. Surveys for mussels will not bottom habitats or consume bottom- maintaining water and habitat quality in detect diamond darters. As a result, dwelling prey (Spaulding and Elwell streams, and streams are adversely affected when riparian areas are invaded these measures provide some limited 2007, p. 15). by species such as Japanese knotweed protection for the diamond darter in the While didymo was previously thought to be restricted to coldwater streams, it (Urgenson 2006, p. 35). Streambanks Elk River, but only in specific locations dominated by Japanese knotweed where it co-occurs with these mussel is now known to occur in a wider range of temperatures, and it has been populations are less stable and more species. Currently, no requirements documented in waters with prone to erosion because Japanese within the scope of Federal or State temperatures that were as high as 27 °C knotweed has shallower roots compared environmental laws specifically (80 °F) (Spaulding and Elwell 2007, pp. to native riparian trees and woody consider the diamond darter during 8, 10, 16). It can also occur in a wide shrubs. Because Japanese knotweed dies Federal or State-regulated activities, or range of hydraulic conditions including back in winter, it also leaves ensure that projects will not jeopardize slow-moving, shallow areas and areas streambanks more exposed to erosive the diamond darter’s continued with high depths and velocities forces (Urgenson 2006, pp. 35–36). existence. (Spaulding and Elwell 2007, pp. 16–17). Thus, knotweed can increase streambank erosion, increase Summary of Factor D Didymo can be spread large distances either through the water column or sedimentation in streams, and alter Few existing laws specifically protect when items such as fishing equipment, channel morphology. In addition, the diamond darter. A number of boots, neoprene waders, and boats are riparian areas dominated by Japanese existing Federal and State regulatory moved between affected and unaffected knotweed change the natural mechanisms are designed to protect sites (Spaulding and Elwell 2007, pp. composition of leaf litter entering the water quality and reduce sedimentation, 19–20). For example, in New Zealand, stream. This change affects nutrient which could reduce threats to the didymo spread to two sites over 100 km cycling and organic matter inputs into the aquatic food web, and can have diamond darter. However, degradation (62.1 mi) and 450 km (279.6 mi) away long-lasting effects on microhabitat of water quality and habitat is ongoing from the location of the first documented bloom within 1 year conditions and aquatic life of affected throughout the current range of the (Kilroy and Unwin 2011, p. 254). stream systems (Urgenson 2006, pp. i, diamond darter, despite these existing Although didymo has not been 31). Because leaf litter from Japanese regulatory mechanisms governing some documented to occur in the lower Elk knotweed is of lower nutritional quality activities that contribute to this threat. River where the diamond darter occurs, than native vegetation, it can negatively We have no information indicating that in 2008 the WVDNR documented the impact the productivity of aquatic these threats are likely to be appreciably presence of didymo in the upper Elk macroinvertebrates, which are a primary reduced in the future. River, above Sutton Dam near Webster food source for fishes like the diamond Springs, which is over 120 km (74.5 mi) darter (Urgenson 2006, p. 32).

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Japanese knotweed has already been range (Harris 1984, pp. 93–104). These The primary mission of the WVISWG is found in the upstream portions of the separate populations are essential for to maintain an inclusive Statewide Elk River watershed (Schmidt 2013, p. the species to recover and adapt to group to facilitate actions for the 1). In 2012, Service biologists and their environmental change (Harris 1984, pp. prevention or reduction of negative partner organizations documented and 93–104; Noss and Cooperrider 1994, pp. impacts of invasive species on managed initiated control measures on 25 264–297). The current population of the and natural terrestrial and aquatic Japanese knotweed populations on the diamond darter is restricted to one communities through coordinated mainstem Elk River and its tributaries. section of one stream. This population planning and communication, These populations were located near the is isolated from other suitable and assessment and research, education, and Randolph-Webster County line historical habitats by dams that are control. The WVISWG is developing a approximately 161 km (100 mi) barriers to fish movement. The level of Statewide invasive species strategic upstream of the range of the diamond isolation and restricted range seen in plan to provide guidance and darter. Some of these populations were this species makes natural repopulation coordination for invasive species over 0.1 ha (0.25 ac) in size and had of historical habitats or other new areas management actions across the State. doubled in size in the 2 years since first following previous localized These voluntary efforts may help to documented (Schmidt 2013, p. 1). extirpations virtually impossible reduce the spread of didymo and Japanese knotweed is difficult to control without human intervention. Japanese knotweed and other invasive and eradicate. Effective eradication riparian plants that are a threat to the Climate Change requires many years of focused efforts, diamond darter and its habitat. and often populations are discovered Climate change (as defined by the The Service, WVDNR, USGS West downstream before 100 percent Intergovernmental Panel on Climate Virginia Cooperative Fish and Wildlife mortality is achieved in the treated area Change (2007, p. 78)) has the potential Research Unit at West Virginia (Urgenson 2006, p. 37). to increase the vulnerability of the University, and Conservation Fisheries, diamond darter to random catastrophic Inc. (CFI) are working together to Geographic Isolation and Loss of events and to compound the effects of conduct research on the reproductive Genetic Variation restricted genetic variation and biology and life history of the diamond The one existing diamond darter population isolation. Current climate darter and are attempting to establish a population is small in size and range, change predictions for the central captive population to avert extinction and is geographically isolated from Appalachians indicate that aquatic and preserve genetic diversity. Although other areas that previously supported habitats will be subject to increased diamond darters have successfully bred the species. The diamond darter’s temperatures and increased drought in captivity, no larvae have survived to distribution is restricted to a short stress, especially during the summer adulthood. Additional research and stream reach, and its small population and early fall (Buzby and Perry 2000, p. funding is needed for this effort to be size makes it extremely susceptible to 1774; Byers and Norris 2011, p. 20). fully successful. extirpation from a single catastrophic There will likely be an increase in the event (such as a toxic chemical spill or variability of stream flow, and the Summary of Factor E storm event that destroys its habitat). Its frequency of extreme events, such as In summary, because the diamond small population size reduces the droughts, severe storms, and flooding, is darter has a small geographic range and potential ability of the population to likely to increase Statewide (Buzby and small population size, it is subject to recover from the cumulative effects of Perry 2000, p. 1774; Byers and Norris several other ongoing natural and smaller chronic impacts to the 2011, p. 20). While the available data on manmade threats. These threats include population and habitat such as the effects of climate change are not the spread of invasive, nonnative progressive degradation from runoff precise enough to predict the extent to species such as Didymosphenia (non-point-source pollutants) and direct which climate change will degrade geminate and Japanese knotweed; loss disturbances. diamond darter habitat, species with of genetic fitness; and susceptibility to Species that are restricted in range limited ranges that are faced with either spills, catastrophic events, and impacts and population size are more likely to natural or anthropomorphic barriers to from climate change. The severity of suffer loss of genetic diversity due to movement, such as the dams that these threats is high because the genetic drift, potentially increasing their fragmented and isolated the historical diamond darter’s small range and susceptibility to inbreeding depression diamond darter habitat, have been population size reduces its ability to and reducing the fitness of individuals found to be especially vulnerable to the adapt to environmental change. Further, (Soule 1980, pp. 157–158; Hunter 2002, effects of climate change (Byers and our review of the best available pp. 97–101; Allendorf and Luikart 2007, Norris 2011, p. 18). Thus, the small scientific and commercial information pp. 117–146). Similarly, the random population size and distribution of the indicates that these threats are likely to loss of adaptive genes through genetic diamond darter makes the species continue or increase in the future. drift may limit the ability of the particularly susceptible to risks from Cumulative Effects From Factors A diamond darter to respond to climate catastrophic events, loss of genetic Through E change and other changes in its variation, and climate change. environment and the catastrophic Some of the threats discussed in this events and chronic impacts described Conservation Efforts To Reduce Other rule could work in concert with one above (Noss and Cooperrider 1994, p. Natural or Manmade Factors Affecting another to cumulatively create 61). Small population sizes and Its Continued Existence situations that potentially impact the inhibited gene flow between The West Virginia Invasive Species diamond darter beyond the scope of the populations may increase the likelihood Working Group (WVISWG) is a group of individual threats that we have already of local extirpation (Gilpin and Soule´ State and Federal agencies, analyzed. As described in Factor A, the 1986, pp. 32–34). The long-term nongovernmental organizations, and reach of the Elk River inhabited by the viability of a species is founded on the private stakeholders dedicated to diamond darter is threatened by conservation of numerous local working together on nonnative invasive numerous sources of habitat and water populations throughout its geographic species issues that affect West Virginia. quality degradation, including

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sedimentation and siltation from primary threats to the diamond darter facing numerous, severe, and ongoing multiple sources, coal mining, oil and are related to the present or threatened threats to its habitat and water quality, gas development, and inadequate destruction, modification, or we find that the diamond darter does sewage treatment. All these threats curtailment of its habitat or range not meet the definition of a threatened likely reduce the amount and quality of (Factor A) and other natural or species. Therefore, on the basis of the the diamond darter’s remaining manmade factors affecting its continued best available scientific and commercial available habitat and are sources of existence (Factor E). The species is data, we list the diamond darter as chronic and continued degradation of currently known to exist only in the endangered in accordance with sections its habitat. As described above, these lower Elk River, West Virginia. This 3(6) and 4(a)(1) of the Act. threats also likely reduce the amount of portion of the watershed is impacted by Under the Act and our implementing forage available to the species, reduce ongoing water quality degradation and regulations, a species may warrant the fitness of remaining individuals, and habitat loss from activities associated listing if it is threatened or endangered decrease breeding success and survival with coal mining and oil and gas throughout all or a significant portion of of young. These chronic threats likely development, sedimentation and its range. The diamond darter is highly affect the ability of the diamond darter siltation from these and other sources, restricted in its range and the threats to population in the Elk River to grow and inadequate sewage and wastewater the survival of the species are not thrive, making it less resilient to treatment, and direct habitat loss and restricted to any particular significant potential acute threats such as alteration. The impoundment of rivers portion of that range. Therefore, we accidental spills and catastrophic in the Ohio River Basin, such as the assessed the status of the species events. In a review of population and Kanawha, Ohio, and Cumberland throughout its entire range. stream responses to various types of Rivers, has eliminated much of the Accordingly, our assessment and disturbances, Yount and Niemi (1990, species’ habitat and isolated the existing determination apply to the species pp. 547–555) found that populations or population from other watersheds that throughout its entire range. streams that were affected by multiple the species historically occupied. The Available Conservation Measures chronic sources of disturbance and small size and restricted range of the degradation were less resilient and less remaining diamond darter population Conservation measures provided to likely to recover quickly from additional makes it particularly susceptible to species listed as endangered or individual disturbances. In addition, extirpation from spills and other threatened species under the Act they found that the availability of catastrophic events, the spread of include recognition, recovery actions, unaffected populations in nearby invasive species, and effects of genetic requirements for Federal protection, and streams, tributaries, or upstream and inbreeding. prohibitions against certain practices. downstream reaches that would provide The species could be vulnerable to Recognition through listing results in a source of organisms for recolonization overutilization for scientific or public awareness and conservation by was one of the key factors that allowed recreational purposes (Factor B), but the Federal, State, Tribal, and local affected populations to recover from significance of this threat is minimized agencies, private organizations, and disturbances (Yount and Niemi 1990, p. through the State’s administration of individuals. The Act encourages 547). scientific collecting permits. There are cooperation with the States and requires There are no unaffected populations no known threats to the diamond darter that recovery actions be carried out for or stream reaches available to the from disease or predation (Factor C). all listed species. The protections diamond darter. The diamond darter’s Although some regulatory mechanisms required by Federal agencies and the current range is already severely exist (Factor D), they do not succeed in prohibitions against certain activities restricted and isolated from other alleviating these threats. In addition to are discussed, in part, below. suitable habitats by dams and the individual threats discussed under The primary purpose of the Act is the impoundments. The one remaining Factors A and E, each of which is conservation of endangered and diamond darter population is small and sufficient to warrant the species’ listing, threatened species and the ecosystems occurs in one reach of a single river that the cumulative effect of these factors is upon which they depend. The ultimate is already affected by multiple chronic such that the magnitude and imminence goal of such conservation efforts is the sources of degradation. Thus, the of threats to the diamond darter are recovery of these listed species, so that current remaining population has very significant throughout its entire current they no longer need the protective little resiliency and a very limited range. measures of the Act. Subsection 4(f) of ability to recover from additional the Act requires the Service to develop Determination individual disturbances. Cumulatively, and implement recovery plans for the these factors make the diamond darter The Act defines an endangered conservation of endangered and particularly susceptible to extinction species as any species that is ‘‘in danger threatened species. The recovery from additional threats such as direct of extinction throughout all or a planning process involves the disturbances, invasive species, spills, significant portion of its range’’ and a identification of actions that are and long-term effects of climate change. threatened species as any species ‘‘that necessary to halt or reverse the species’ These ongoing cumulative threats to the is likely to become endangered decline by addressing the threats to its diamond darter are occurring throughout all or a significant portion of survival and recovery. The goal of this throughout the species’ entire current its range within the foreseeable future.’’ process is to restore listed species to a range. We have no information We find that the diamond darter, which point where they are secure, self- indicating that these threats are likely to consists of only one population sustaining, and functioning components be appreciably reduced in the future. (occurrence), is presently in danger of of their ecosystems. extinction throughout its entire range, Recovery planning includes the Summary of Factors due to the immediacy, severity, and development of a recovery outline We have carefully assessed the best scope of the threats described above. shortly after a species is listed and scientific and commercial data available Because the species is currently limited preparation of a draft and final recovery regarding the past, present, and future to one small, isolated population in an plan. The recovery outline guides the threats to the diamond darter. The aquatic environment that is currently immediate implementation of urgent

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recovery actions and describes the Regulations implementing this propagation or survival of the species, process to be used to develop a recovery interagency cooperation provision of the and for incidental take in connection plan. Revisions of the plan may be done Act are codified at 50 CFR part 402. with otherwise lawful activities. to address continuing or new threats to Section 7(a)(4) of the Act requires Our policy, as published in the the species, as new substantive Federal agencies to confer with the Federal Register on July 1, 1994 (59 FR information becomes available. The Service on any action that is likely to 34272), is to identify to the maximum recovery plan identifies site-specific jeopardize the continued existence of a extent practicable at the time a species management actions that set a trigger for species proposed for listing or result in is listed, those activities that would or review of the five factors that control destruction or adverse modification of would not constitute a violation of whether a species remains endangered proposed critical habitat. If a species is section 9 of the Act. The intent of this or may be downlisted or delisted, and listed subsequently, section 7(a)(2) of policy is to increase public awareness of methods for monitoring recovery the Act requires Federal agencies to the effect of a listing on proposed and progress. Recovery plans also establish ensure that activities they carry out, ongoing activities within the range of a framework for agencies to coordinate authorize, or fund are not likely to listed species. The following activities their recovery efforts and provide jeopardize the continued existence of could potentially result in a violation of estimates of the cost of implementing the species or destroy or adversely section 9 of the Act; this list is not recovery tasks. Recovery teams modify its critical habitat. If a Federal comprehensive: (comprising species experts, Federal action may affect a listed species or its (1) Unauthorized collecting, handling, and State agencies, nongovernmental critical habitat, the responsible Federal possessing, selling, delivering, carrying, organizations, and stakeholders) are agency must enter into formal or transporting of the species, including often established to develop recovery consultation with the Service. import or export across State lines and plans. When completed, the recovery Federal agency actions within the international boundaries, except for outline, draft recovery plan, and the species’ habitat that may require properly documented antique final recovery plan will be available on consultation as described in the specimens at least 100 years old, as our Web site (http://www.fws.gov/ preceding paragraph include the defined by section 10(h)(1) of the Act. endangered), or from our West Virginia issuance of section 404 Clean Water Act (2) Violation of any permit that results Fish and Wildlife Office (see FOR permits by the ACOE; construction and in harm or death to any individuals of FURTHER INFORMATION CONTACT). management of gas pipeline and power this species or that results in Implementation of recovery actions line rights-of-way or hydropower degradation of its habitat to an extent generally requires the participation of a facilities by the Federal Energy that essential behaviors such as broad range of partners, including other Regulatory Commission; construction breeding, feeding and sheltering are Federal agencies, States, Tribal, and maintenance of roads, highways, impaired. nongovernmental organizations, and bridges by the Federal Highway (3) Unlawful destruction or alteration businesses, and private landowners. Administration; pesticide regulation by of diamond darter habitats (e.g., Examples of recovery actions include the USEPA; and issuance of coal mining unpermitted instream dredging, habitat restoration (e.g., restoration of permits by the Office of Surface Mining. impoundment, water diversion or native vegetation), research, captive The Act and its implementing withdrawal, channelization, discharge propagation and reintroduction, and regulations set forth a series of general of fill material) that impairs essential outreach and education. The recovery of prohibitions and exceptions that apply behaviors such as breeding, feeding, or many listed species cannot be to all endangered wildlife. The sheltering, or results in killing or accomplished solely on Federal lands prohibitions of section 9(a)(2) of the Act, injuring a diamond darter. because their range may occur primarily codified at 50 CFR 17.21 for endangered (4) Unauthorized discharges or or solely on non-Federal lands. To wildlife, in part, make it illegal for any dumping of toxic chemicals or other achieve recovery of these species person subject to the jurisdiction of the pollutants into waters supporting the requires cooperative conservation efforts United States to take (includes harass, diamond darter that kills or injures on private, State, and Tribal lands. harm, pursue, hunt, shoot, wound, kill, individuals, or otherwise impairs Once this species is listed, funding for trap, capture, or collect; or to attempt essential life-sustaining behaviors such recovery actions will be available from any of these), import, export, ship in as breeding, feeding, or finding shelter. a variety of sources, including Federal interstate commerce in the course of Questions regarding whether specific budgets, State programs, and cost-share commercial activity, or sell or offer for activities would constitute a violation of grants for non-Federal landowners, the sale in interstate or foreign commerce section 9 of the Act should be directed academic community, and any listed species. Under the Lacey Act to the West Virginia Ecological Services nongovernmental organizations. In (18 U.S.C. 42–43; 16 U.S.C. 3371–3378), Field Office (see FOR FURTHER addition, pursuant to section 6 of the it is also illegal to possess, sell, deliver, INFORMATION CONTACT). Act, the States of Kentucky, Ohio, carry, transport, or ship any such Tennessee, and West Virginia will be wildlife that has been taken illegally. Required Determinations eligible for Federal funds to implement Certain exceptions apply to agents of the National Environmental Policy Act management actions that promote the Service and State conservation agencies. protection or recovery of the diamond We may issue permits to carry out We have determined that darter. Information on our grant otherwise prohibited activities environmental assessments and programs that are available to aid involving endangered and threatened environmental impact statements, as species recovery can be found at: http:// wildlife species under certain defined under the authority of the www.fws.gov/grants. circumstances. Regulations governing National Environmental Policy Act Section 7(a) of the Act requires permits are codified at 50 CFR 17.22 for (NEPA; 42 U.S.C. 4321 et seq.), need not Federal agencies to evaluate their endangered species, and at 17.32 for be prepared in connection with listing actions with respect to any species that threatened species. With regard to a species as an endangered or is proposed or listed as endangered or endangered wildlife, a permit must be threatened species under the threatened and with respect to its issued for the following purposes: For Endangered Species Act. We published critical habitat, if any is designated. scientific purposes, to enhance the a notice outlining our reasons for this

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determination in the Federal Register with tribes in developing programs for recordkeeping requirements, on October 25, 1983 (48 FR 49244). healthy ecosystems, to acknowledge that Transportation. tribal lands are not subject to the same Government-to-Government Regulation Promulgation controls as Federal public lands, to Relationship With Tribes remain sensitive to Indian culture, and Accordingly, we amend part 17, In accordance with the President’s to make information available to tribes. subchapter B of chapter I, title 50 of the memorandum of April 29, 1994 Code of Federal Regulations, as follows: (Government-to-Government Relations References Cited PART 17—[AMENDED] with Native American Tribal A complete list of all references cited Governments; 59 FR 22951), Executive in this rule is available on the Internet ■ Order 13175 (Consultation and 1. The authority citation for part 17 at http://www.regulations.gov or upon continues to read as follows: Coordination With Indian Tribal request from the West Virginia Field Authority: 16 U.S.C. 1361–1407; 1531– Governments), and the Department of Office (see FOR FURTHER INFROMATION 1544; 4201–4245; unless otherwise noted. the Interior’s manual at 512 DM 2, we CONTACT). readily acknowledge our responsibility ■ 2. Amend § 17.11(h) by adding an to communicate meaningfully with Author(s) entry for ‘‘Darter, diamond’’ to the List recognized Federal Tribes on a of Endangered and Threatened Wildlife government-to-government basis. In The primary author of this document is staff from the West Virginia Field in alphabetical order under Fishes to accordance with Secretarial Order 3206 read as follows: of June 5, 1997 (American Indian Tribal Office (see ADDRESSES). Rights, Federal-Tribal Trust List of Subjects in 50 CFR Part 17 § 17.11 Endangered and threatened Responsibilities, and the Endangered wildlife. Species Act), we readily acknowledge Endangered and threatened species, * * * * * our responsibilities to work directly Exports, Imports, Reporting and (h) * * *

Species Vertebrate population where Critical Special Historic range endangered or Status When listed habitat rules Common name Scientific name threatened

******* FISHES

******* Darter, diamond ...... Crystallaria cincotta U.S.A. (IN, KY, OH, Entire ...... E 815 NA NA TN, WV).

*******

Dated: July 18, 2013. Stephen Guertin, Acting Director, U.S. Fish and Wildlife Service. [FR Doc. 2013–17938 Filed 7–25–13; 8:45 am] BILLING CODE 4310–55–P

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