63360 Federal Register / Vol. 76, No. 197 / Wednesday, October 12, 2011 / Proposed Rules

DEPARTMENT OF THE INTERIOR Directives Management; U.S. Fish and species from human activity, the degree Wildlife Service; 4401 N. Fairfax Drive, of which can be expected to increase Fish and Wildlife Service MS 2042–PDM; Arlington, VA 22203. due to the designation, and whether that We will post all comments on http:// increase in threat outweighs the benefit 50 CFR Part 17 www.regulations.gov. This generally of designation such that the designation [Docket No. FWS–R4–ES–2011–0074; MO means that we will post any personal of critical habitat may not be prudent. 92210–0–0009 B4] information you provide us (see the (2) Specific information on: Public Comments section below for (a) The amount and distribution of RIN 1018–AX76 more information). each species’ habitat; Endangered and Threatened Wildlife FOR FURTHER INFORMATION CONTACT: For (b) What areas, that were occupied at and Plants; Proposed Designation of information regarding the Cumberland the time of listing (or are currently Critical Habitat for the Cumberland darter, contact Lee Andrews, Field occupied) and that contain features Darter, Rush Darter, Yellowcheek Supervisor, U.S. Fish and Wildlife essential to the conservation of any of Darter, Chucky Madtom, and Laurel Service, Kentucky Ecological Services the five species, should be included in Dace Field Office, J.C. Watts Federal the designation and why; Building, 330 W. Broadway, Room 265, (c) Special management AGENCY: Fish and Wildlife Service, Frankfort, KY 40601; telephone 502– considerations or protection that may be Interior. 695–0468; facsimile 502–695–1024. For needed in critical habitat areas we are ACTION: Proposed rule. information regarding the rush darter, proposing, including managing for the contact Stephen Ricks, Field Supervisor, potential effects of climate change, and SUMMARY: We, the U.S. Fish and U.S. Fish and Wildlife Service, (d) What areas not occupied at the Wildlife Service (Service), propose Mississippi Ecological Services Field time of listing are essential for the critical habitat for the Cumberland Office, 6578 Dogwood View Parkway, conservation of any of the five species darter (Etheostoma susanae), rush darter Suite A, Jackson, MS 39213; telephone and why. (Etheostoma phytophilum), yellowcheek 601–965–4900; facsimile 601–965–4340 (3) Land use designations and current darter (Etheostoma moorei), chucky or Bill Pearson, Field Supervisor, U.S. or planned activities in the subject areas madtom (Noturus crypticus), and laurel Fish and Wildlife Service, Alabama and their possible impacts on proposed dace (Chrosomus saylori) under the Ecological Services Field Office, 1208– critical habitat. Endangered Species Act of 1973, as B Main Street, Daphne, AL 36526; (4) Information on the projected and amended (Act). Approximately 85 river telephone 251–441–5181; fax 251–441– reasonably likely impacts of climate kilometers (rkm) (53 river miles (rmi)) 6222. For information regarding the change on any of the five species or are being proposed for designation of yellowcheek darter, contact Jim Boggs, their proposed critical habitat. critical habitat for the Cumberland Field Supervisor, U.S. Fish and Wildlife (5) Any probable economic, national darter in McCreary and Whitley Service, Arkansas Ecological Services security, or other relevant impacts of Counties, Kentucky, and Campbell and Field Office, 110 South Amity Road, designating any area that may be Scott Counties, Tennessee; 42 rkm (27 Suite 300, Conway, AR 72032; included in the final designation; in rmi) and 19 hectares (ha) (22 acres (ac)) telephone 501–513–4470; facsimile particular, any impacts on small entities are being proposed for designation of 501–513–4480. For information or families, and the benefits of including critical habitat for the rush darter in regarding the chucky madtom or laurel or excluding areas that exhibit these Etowah, Jefferson, and Winston dace, contact Mary Jennings, Field impacts. Counties, Alabama; 157 rkm (98 rmi) are Supervisor, U.S. Fish and Wildlife (6) Whether any specific areas we are being proposed for designation of Service, Tennessee Ecological Services proposing for critical habitat critical habitat for the yellowcheek Field Office, 446 Neal Street, designation should be considered for darter in Cleburne, Searcy, Stone, and Cookeville, TN 38501; telephone 931– exclusion under section 4(b)(2) of the Van Buren Counties, Arkansas; 32 rkm 525–4973; facsimile 931–528–7075. If Act, and whether the benefits of (20 rmi) are being proposed for you use a telecommunications device potentially excluding any specific area designation of critical habitat for the for the deaf (TDD), call the Federal outweigh the benefits of including that chucky madtom in Greene County, Information Relay Service (FIRS) at area under section 4(b)(2) of the Act. Tennessee; and 42 rkm (26 rmi) are 800–877–8339. (7) Whether we could improve or being proposed for designation of SUPPLEMENTARY INFORMATION: modify our approach to designating critical habitat for the laurel dace in critical habitat in any way to provide for Bledsoe, Rhea, and Sequatchie Counties, Public Comments greater public participation and Tennessee. We intend that any final action understanding, or to better DATES: We will accept comments resulting from this proposed rule will be accommodate public concerns and received or postmarked on or before based on the best scientific and comments. December 12, 2011. We must receive commercial data available and be as You may submit your comments and requests for public hearings, in writing, accurate and effective as possible. materials concerning this proposed rule at the address shown in the ADDRESSES Therefore, we request comments or by one of the methods listed in the section by November 28, 2011. information from government agencies, ADDRESSES section. We will post your ADDRESSES: You may submit comments the scientific community, industry, or entire comment—including your by one of the following methods: any other interested party concerning personal identifying information—on (1) Federal eRulemaking Portal: this proposed rule. We particularly seek http://www.regulations.gov. You may http://www.regulations.gov. Follow the comments concerning: request at the top of your document that instructions for submitting comments (1) The reasons why we should or we withhold personal information such on Docket no. FWS–R4–ES–2011–0074. should not designate habitat as ‘‘critical as your street address, phone number, or (2) U.S. mail or hand-delivery: Public habitat’’ under section 4 of the Act (16 e-mail address from public review; Comments Processing, Attn: FWS–R4– U.S.C. 1531 et seq.) including whether however, we cannot guarantee that we ES–2011–0074; Division of Policy and there are threats to any of the five will be able to do so.

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Comments and materials we receive, siltation, disturbance of riparian the species’ status still appears to be as well as supporting documentation we corridors, and changes in channel declining. used in preparing this proposed rule, morphology (Waters 1995, pp. 2–3; Yellowcheek Darter will be available for public inspection Skelton 1997, pp. 17, 19; Thomas 2007, on http://www.regulations.gov, or by p. 5). The most significant of these The yellowcheek darter (Etheostoma appointment, during normal business impacts is siltation (excess sediments moorei) is endemic to the Devil’s, hours, at the U.S. Fish and Wildlife suspended or deposited in a stream) Middle, South, and Archey forks of the Service, Tennessee Ecological Services caused by excessive releases of Little Red River in Cleburne, Searcy, Field Office, Cookeville, Tennessee (see sediment from activities such as Stone, and Van Buren Counties in FOR FURTHER INFORMATION CONTACT). resource extraction (e.g., coal mining, Arkansas (Robison and Buchanan 1988, p. 429). These streams are located Background silviculture, natural gas development), agriculture, road construction, and primarily within the Boston Mountains It is our intent to discuss only those urban development (Waters 1995, pp. 2– subdivision of the Ozark Plateau. In topics directly relevant to the 3; Skelton 1997, pp. 17, 19; KDOW 1962, the construction of a dam on the designation of critical habitat in this 2006, pp. 178–185; Thomas 2007, p. 5). Little Red River to create Greers Ferry proposed rule. For more information on Reservoir impounded much of the range the Cumberland darter (Etheostoma Rush Darter of this species, including the lower susanae), rush darter (Etheostoma The rush darter (Etheostoma reaches of Devil’s Fork, Middle Fork, phytophilum), yellowcheek darter phytophilum) is a narrowly endemic, South Fork, and portions of the main (Etheostoma moorei), chucky madtom rare, and difficult to collect fish species stem Little Red River, thus extirpating (Noturus crypticus), and laurel dace in north-central Alabama. The rush the species from these reaches. Cold (Chrosomus saylori), refer to the final darter occurs in sparse, fragmented, and tailwater releases below the dam listing rule published in the Federal isolated populations. The species is preclude the yellowcheek darter from inhabiting the main stem Little Red Register on August 9, 2011 (76 FR currently known from tributaries and 48722). See also the discussion of River. The yellowcheek darter inhabits associated spring systems of the Turkey habitat in the Physical and Biological high-gradient headwater tributaries with Creek (Jefferson County), Clear Creek Features section below. clear water; permanent flow; moderate (Winston County), and Little Cove Creek to strong riffles; and gravel, cobble, and Cumberland Darter watersheds (Etowah County). Most of boulder substrates (Robison and these tributaries contain sites with The Cumberland darter (Etheostoma Buchanan 1988, p. 429). Prey items intact physical characteristics such as susanae) is a narrowly endemic fish consumed by yellowcheek darters riffles, runs, pools, transition zones, and species, occurring in sparse, fragmented, include blackfly larvae, stoneflies, and emergent vegetation. Rush darters prefer and isolated populations in the upper mayflies. Cumberland River system of Kentucky springs and spring-fed reaches of Robison and Harp (1981, p. 5) and Tennessee. The species inhabits relatively low-gradient, small streams estimated the range of the yellowcheek pools or shallow runs of low to (Bart and Taylor 1999, p. 32; Johnston darter in the South Fork to extend from moderate gradient sections of streams and Kleiner 2001, pp. 3–4; Stiles and 2.9 km (1.8 mi) north northeast of with stable sand, silt, or sand-covered Blanchard 2001, pp. 1–4; Bart 2002, p. Scotland, Arkansas, to U.S. Highway 65 bedrock substrates (O’Bara 1988, pp. 1; Fluker et al. 2007, p. 1; Stiles and in Clinton, Arkansas. The Middle Fork 10–11; O’Bara 1991, p. 10; Thomas Mills 2008, pp. 1–4). Rush darters are population was estimated to extend 2007, p. 4). Thomas (2007, p. 4) did not also found in wetland pools and in from just upstream of U.S. Highway 65 encounter the species in high-gradient some ephemeral tributaries of the near Leslie, Arkansas, to 4.8 km (3.0 mi) sections of streams or areas dominated aforementioned watersheds (Stiles and west of Shirley, Arkansas. The Archey by cobble or boulder substrates. Thomas Mills 2008, pp. 2–3). This species also Fork population extended from its (2007, p. 4) reported that streams relies heavily on aquatic vegetation confluence with South Castleberry inhabited by Cumberland darters were (Fluker et al. 2007, p. 1), including both Creek to immediately downstream of second to fourth order, with widths small clumps and dense stands, and U.S. Highway 65 in Clinton, Arkansas. ranging from 4 to 9 meters (m) (11 to 30 root masses of emergent vegetation The Devil’s Fork population extended feet (ft)) and depths ranging from 20 to along stream margins. These habitats from 4.8 km (3.0 mi) north of Prim, 76 centimeters (cm) (8 to 30 inches (in)). tend to be shallow, clear, and cool, with Arkansas, to 6.1 km (3.8 mi) east The Cumberland darter’s current moderate current and substrates southeast of Woodrow, Arkansas. distribution is limited to 13 streams in composed of a combination of sand with The yellowcheek darter is threatened McCreary and Whitley Counties, silt, muck, gravel, or bedrock. primarily by factors associated with the Kentucky, and Campbell and Scott The species is found in both urban present destruction, modification, or Counties, Tennessee (Thomas 2007, pp. and industrial zoned areas (Jefferson curtailment of its habitat or range. 11–12). Occurrences from these streams County) and rural settings (Winston and Threats include sedimentation and are thought to form six population Etowah Counties). Within these areas, nutrient enrichment from clusters (Bunches Creek, Indian Creek, the rush darters’ habitat has been impoundment, water diversion, gravel Marsh Creek, Jellico Creek, Wolf Creek, degraded by alteration of stream banks mining, channelization or channel and Youngs Creek), which are and bottoms; channelization; inadequate instability, and natural gas geographically separated from one storm water management; inappropriate development. another by an average distance of 30.5 placement of culverts, pipes, and stream km (19 stream mi) (O’Bara 1988, bridges; road maintenance; and Chucky Madtom p. 12; O’Bara 1991, p. 10; Thomas 2007, haphazard silvicultural and agricultural The chucky madtom (Noturus p. 3). practices. The persistence of a constant crypticus) is a rare catfish found in The primary threat to the Cumberland flow of clean groundwater from various Greene County, Tennessee. Specimens darter is physical habitat destruction or springs has somewhat offset the collected in Little Chucky Creek have modification resulting from a variety of destruction of the species’ habitat, water been found in stream runs with slow to human-induced impacts such as quality, and water quantity; however, moderate current over pea gravel,

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cobble, or slab-rock boulder substrates known historically from seven streams the steps we would undertake to obtain (Burr and Eisenhour 1994, p. 2). These in three disjunct systems: Soddy Creek; the information necessary to develop a habitats are sparse in Little Chucky three streams that are part of the Sale proposed designation of critical habitat. Creek, and the stream affords little Creek system (the Horn and Laurel We were unable to include a proposal loose, rocky cover suitable for madtoms branch tributaries to Rock Creek, and to designate critical habitat with the (Shute et al. 1997, p. 8). It is notable that the Cupp Creek tributary to Roaring final listing rule of the five species (76 intact riparian buffers are present in the Creek); and three streams that are part FR 48722) due to an internal publishing locations where chucky madtoms have of the Piney River system (Youngs, requirement that proposed and final been found (Shute et al. 1997, p. 9). Moccasin, and Bumbee Creeks). In 1991, rules be separately published in the Little is known about chucky madtom and in four other surveys (two in 1995, Federal Register. For the full history of lifehistory and behavior; however, this one in 1996, and one in 2004), laurel previous federal actions regarding these information is available for other similar dace were not collected in Laurel five species, please refer to the final members of the Noturus group. Dinkins Branch, leading Skelton to the listing rule (76 FR 48722). and Shute (1996, p. 50) found smoky conclusion that laurel dace had been madtoms (N. baileyi) underneath slab- extirpated from the stream (Skelton Critical Habitat rock boulders in swift to moderate 1997, p. 13; Skelton 2001, p. 126; Background current during May to early November. Skelton 2009, pers. comm.). Habitat use shifted to shallow pools The current distribution of laurel dace Critical habitat is defined in section 3 over the course of a 1-week period, encompasses six of seven historical of the Act as: coinciding with a drop in water streams; the species is considered (1) The specific areas within the temperature to 7 or 8 °C (45 to 46 °F), extirpated from Laurel Branch (see geographical area occupied by the and persisted from early November to above). In these six streams, the species species, at the time it is listed in May. Eisenhour et al. (1996, p. 43) is known to occupy reaches ranging in accordance with the Act, on which are collected saddled madtoms (N. length from 0.3 to 8.0 km (0.2 to 5 mi). found those physical or biological fasciatus) in gravel, cobble, and slab- Laurel dace have been most often features. rock boulders in riffle habitats with collected from pools or slow runs from (a) Essential to the conservation of the depths ranging from 0.1 to 0.3 m (0.3 to undercut banks or beneath slab-rock species and 1.0 ft). Based on their limited number of boulders, typically in first or second (b) Which may require special observations, Eisenhour et al. (1996, p. order, clear, cool (maximum management considerations or 43) hypothesized that saddled madtoms temperature 26 °C or 78.8 °F) streams. protection; and occupy riffles and runs in the daylight Substrates in laurel dace streams (2) Specific areas outside the hours and then move to pools at night typically consist of a mixture of cobble, geographical area occupied by the and during crepuscular hours (dawn rubble, and boulders and the streams species at the time it is listed, upon a and dusk) to feed. tend to have a dense riparian zone determination that such areas are The current range of the chucky consisting largely of mountain laurel essential for the conservation of the madtom is restricted to an approximate (Skelton 2001, pp. 125–126). species. 3-km (1.8-mi) reach of Little Chucky The primary threat to laurel dace Conservation, as defined under Creek in Greene County, Tennessee. throughout its range is excessive section 3 of the Act, means to use and Degradation from sedimentation, siltation resulting from agriculture and the use of all methods and procedures physical habitat disturbance, and extensive silviculture, especially those that are necessary to bring an contaminants threaten the habitat and involving inadequate riparian buffers in endangered or threatened species to the water quality on which the chucky harvest areas and the failure to use best point at which the measures provided madtom depends. Sedimentation could management practices (BMPs) during under the Act are no longer necessary. negatively affect the chucky madtom by road construction. Severe degradation Such methods and procedures include, reducing growth rates, disease tolerance, from sedimentation, physical habitat but are not limited to, all activities and gill function; reducing spawning disturbance, and contaminants threaten associated with scientific resources habitat, reproductive success, and egg, the habitat and water quality on which management such as research, census, larval, and juvenile development; the laurel dace depends. Sedimentation law enforcement, habitat acquisition reducing food availability through negatively affects the laurel dace by and maintenance, propagation, live reductions in prey; and reducing reducing growth rates, disease tolerance, trapping, and transplantation, and, in foraging efficiency. Contaminants and gill function; reducing spawning the extraordinary case where population associated with agriculture (e.g., habitat, reproductive success, and egg, pressures within a given ecosystem fertilizers, pesticides, herbicides, and larvae, and juvenile development; cannot be otherwise relieved, may animal waste) can cause degradation of reducing food availability through include regulated taking. water quality and habitats through reductions in prey; and reducing Critical habitat receives protection instream oxygen deficiencies, excess foraging efficiency. under section 7 of the Act through the nutrification, and excessive algal requirement that Federal agencies Previous Federal Action growths. ensure, in consultation with the Service, The Cumberland darter, rush darter, that any action they authorize, fund, or Laurel Dace yellowcheek darter, chucky madtom, carry out is not likely to result in the The laurel dace (Chrosomus saylori) is and laurel dace were listed as destruction or adverse modification of endemic to seven streams on the endangered under the Act on August 9, critical habitat. The designation of Walden Ridge portion of the 2011 (76 FR 48722). In the June 24, 2010 critical habitat does not affect land Cumberland Plateau (Bledsoe, Rhea, and proposed listing rule (75 FR 36035) for ownership or establish a refuge, Sequatchie Counties, Tennessee), where the five species we determined that wilderness, reserve, preserve, or other drainages generally meander eastward designation of critical habitat was conservation area. Such designation before dropping abruptly down the prudent for all five species. However, does not allow the government or public plateau escarpment and draining into we found that critical habitat was not to access private lands. Such the Tennessee River. Laurel dace are determinable at the time and set forth designation does not require

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implementation of restoration, recovery, included in the critical habitat make sufficiently precise estimates of or enhancement measures by non- designation. the location and magnitude of the Federal landowners. Where a landowner Section 4 of the Act requires that we effects. Nor are we currently aware of seeks or requests Federal agency designate critical habitat on the basis of any climate change information specific funding or authorization for an action the best scientific and commercial data to the habitat of the Cumberland darter, that may affect a listed species or available. Further, our Policy on rush darter, yellowcheek darter, chucky critical habitat, the consultation Information Standards Under the madtom, or laurel dace that would requirements of section 7(a)(2) would Endangered Species Act (published in indicate what areas may become apply, but even in the event of a the Federal Register on July 1, 1994 (59 important to the species in the future. destruction or adverse modification FR 34271)), the Information Quality Act Therefore, we are unable to determine finding, the obligation of the Federal (section 515 of the Treasury and General what additional areas, if any, may be action agency and the landowner is not Government Appropriations Act for appropriate to include in the final to restore or recover the species, but to Fiscal Year 2001 (Pub. L. 106–554; H.R. critical habitat for these species to implement reasonable and prudent 5658)), and our associated Information address the effects of climate change. alternatives to avoid destruction or Quality Guidelines, provide criteria, We recognize that critical habitat adverse modification of critical habitat. establish procedures, and provide designated at a particular point in time For inclusion in a critical habitat guidance to ensure that our decisions may not include all of the habitat areas designation, the habitat within the are based on the best scientific data that we may later determine are geographical area occupied by the available. They require our biologists, to necessary for the recovery of the species at the time it was listed must the extent consistent with the Act and species. For these reasons, a critical contain the physical and biological with the use of the best scientific data habitat designation does not signal that features which are essential to the available, to use primary and original habitat outside the designated area is conservation of the species and which sources of information as the basis for unimportant or may not be required for may require special management recommendations to designate critical recovery of the species. Areas that are habitat. considerations or protection. Critical important to the conservation of the When we determine which areas habitat designations identify, to the species, both inside and outside the should be designated as critical habitat, extent known using the best scientific our primary source of information is critical habitat designation, will and commercial data available, those generally the information developed continue to be subject to: (1) physical and biological features that are during the listing process for the Conservation actions implemented essential to the conservation of the species. Additional information sources under section 7(a)(1) of the Act, (2) species (such as space, food, cover, and may include articles in peer-reviewed regulatory protections afforded by the protected habitat), focusing on the journals, conservation plans developed requirement in section 7(a)(2) of the Act principal biological or physical by States and Counties, scientific status for Federal agencies to insure their constituent elements (primary surveys and studies, biological actions are not likely to jeopardize the constituent elements) within an area assessments, or other unpublished continued existence of any endangered that are essential to the conservation of materials and expert opinion or or threatened species, and (3) the the species (such as roost sites, nesting personal knowledge. prohibitions of section 9 of the Act if grounds, seasonal wetlands, water Habitat is dynamic, and species may actions occurring in these areas may quality, tide, soil type). Primary move from one area to another over affect the species. Federally funded or constituent elements are the elements of time. Climate change will be a particular permitted projects affecting listed physical and biological features that, challenge for biodiversity because the species outside their designated critical when laid out in the appropriate interaction of additional stressors habitat areas may still result in jeopardy quantity and spatial arrangement to associated with climate change and findings in some cases. These provide for a species’ life history current stressors may push species protections and conservation tools will processes, are essential to the beyond their ability to survive (Lovejoy continue to contribute to recovery of conservation of the species. 2005, pp. 325–326). The synergistic this species. Similarly, critical habitat Under the Act, we can designate implications of climate change and designations made on the basis of the critical habitat in areas outside the habitat fragmentation are the most best available information at the time of geographical area occupied by the threatening facet of climate change for designation will not control the species at the time it is listed, upon a biodiversity (Hannah et al. 2005, p. 4). direction and substance of future determination that such areas are Current climate change predictions for recovery plans, habitat conservation essential for the conservation of the terrestrial areas in the Northern plans (HCPs), or other species species. We designate critical habitat in Hemisphere indicate warmer air conservation planning efforts if new areas outside the geographical area temperatures, more intense information available at the time of occupied by a species only when a precipitation events, and increased these planning efforts calls for a designation limited to its range would summer continental drying (Field et al. different outcome. be inadequate to ensure the 1999, pp. 1–3; Hayhoe et al. 2004, p. Physical and Biological Features conservation of the species. When the 12422; Cayan et al. 2005, p. 6; best available scientific data do not Intergovernmental Panel on Climate In accordance with sections 3(5)(A)(i) demonstrate that the conservation needs Change (IPCC) 2007, p. 1181). Climate and 4(b)(1)(A) of the Act and regulations of the species require such additional change may lead to increased frequency at 50 CFR 424.12, in determining which areas, we will not designate critical and duration of severe storms and areas within the geographical area habitat in areas outside the geographical droughts (McLaughlin et al. 2002, p. occupied by the species at the time of area occupied by the species. An area 6074; Golladay et al. 2004, p. 504; Cook listing to designate as critical habitat, currently occupied by the species but et al. 2004, p. 1015). we consider the physical and biological that was not occupied at the time of The information currently available features essential to the conservation of listing may, however, be essential to the on the effects of global climate change the species and which may require conservation of the species and may be and increasing temperatures does not special management considerations or

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protection. These include, but are not and other normal behaviors of the normal behaviors of the Cumberland limited to: Cumberland darter. darter and in promoting gene flow (1) Space for individual and Limited information exists with within the species. regard to upstream or downstream population growth and for normal Rush Darter behavior; movements of Cumberland darters; Little is known about the specific (2) Food, water, air, light, minerals, or however, Winn (1958a, pp. 163–164) space requirements of the rush darter in other nutritional or physiological reported considerable pre-spawn the Turkey Creek, Little Cove Creek, and requirements; movements for its closest relative, the Johnny darter. In Beer Creek, Monroe Clear Creek systems (Boschung and (3) Cover or shelter; County, Michigan, Johnny darters Mayden 2004, p. 551); however, in (4) Sites for breeding, reproduction, or migrated several miles between general, darters depend on space within rearing (or development) of offspring; temporary stream habitats and geomorphically stable streams with and permanent pools in downstream varying water quantities and flow. (5) Habitats that are protected from reaches. Recent capture data for tagged Specifically, rush darters appear to disturbance or are representative of the individuals in Cogur Fork, McCreary prefer springs and spring-fed reaches of historical, geographical, and ecological County, Kentucky, demonstrate that relatively low-gradient, small streams distribution of a species. Cumberland darters may make similar (Bart and Taylor 1999, p. 32; Johnston We derive the specific physical and movements (Thomas 2010, pers. and Kleiner 2001, pp. 3–4; Stiles and biological features required for the comm.). Individuals tagged and released Blanchard 2001, pp. 1–4; Bart 2002, p. Cumberland darter, rush darter, by the Kentucky Department of Fish and 1; Fluker et al. 2007, p. 1; Stiles and yellowcheek darter, chucky madtom, Wildlife Resources (KDFWR) and Mills 2008, pp. 1–4) and wetland pools and laurel dace from studies of these Conservation Fisheries, Inc. (CFI) (Stiles and Mills 2008, pp. 2–3). This species’ habitats, ecology, and life traveled distances ranging from 0.4 to species also relies heavily on aquatic history as described below. Additional 0.7 km (0.2 to 0.4 mi) between their vegetation (Fluker et al. 2007, p. 1) information can be found in the final release date of September 22, 2010, and including: root masses of emergent listing rule published in the Federal their recapture date of November 9, vegetation along the margins of spring- Register on August 9, 2011 (76 FR 2010 (period of 48 days) (Thomas 2010, fed streams in very shallow, clear, cool, 48722). To identify the physical and pers. comm.). Over longer periods, it is and flowing water; and both small biological features essential to the likely that Cumberland darters can clumps and dense stands of bur reed conservation of the these species, we utilize stream reaches longer than 0.7 (Sparganium sp.), coontail have relied on current conditions at km (0.4 mi). (Ceratophyllum sp.), watercress locations where the species survive, the The current range of the Cumberland (Nasturtium officinale), and rush limited information available on these darter has been reduced to 13 streams (Juncus sp.). The rush darter inhabits species and their close relatives, as well (15 occurrences) due to destruction and streams with substrates of silt, sand, as factors associated with the decline of fragmentation of habitat. Fragmentation sand and silt, muck and sand or some other fishes that occupy similar habitats of the species’ habitat has subjected gravel with sand, and bedrock. in the Southeast. We have determined these small populations to genetic Geomorphically stable streams that these five species require the isolation, reduced space for rearing and transport sediment while maintaining following physical and biological reproduction, reduced adaptive their horizontal and vertical dimensions features: capabilities, and an increased likelihood (width to depth ratio and cross-sectional of local extinctions (Burkhead et al. area), pattern (sinuosity), and Space for Individual and Population 1997, pp. 397–399; Hallerman 2003, pp. longitudinal profile (riffles, runs, and Growth and for Normal Behavior 363–364). Genetic variation and pools), thereby conserving the physical Cumberland Darter diversity within a species are essential characteristics of the stream, including for recovery, adaptation to bottom features such as riffles, runs, and Little is known about the specific environmental change, and long-term pools and the transition zones between space requirements of the Cumberland viability (capability to live, reproduce, these features that contain some silt, darter; however, the species is typically and develop) (Noss and Cooperrider sand, and finer substrates. The riffles, found in low to moderate gradient, 1994, pp. 282–297; Harris 1984, pp. 93– runs, and pools not only provide space second- to fourth-order, geomorphically 107; Fluker et al. 2007, p. 2). The long- for the rush darter, but also provide stable streams, where it occupies term viability of a species is founded on space for emergent vegetation in shallow pools or runs with gentle the conservation of numerous local shallow water along the margins of the current over sand or sand-covered populations throughout its geographic small streams and springs for cover, and bedrock substrates with patches of range (Harris 1984, pp. 93–104). shelter necessary for breeding, gravel or debris (O’Bara 1991, p. 10; Connectivity of these habitats is reproduction, and growth of offspring. Thomas 2007, p. 4). Geomorphically essential in preventing further The current range of the rush darter stable streams transport sediment while fragmentation and isolation of within the entire Turkey Creek, Clear maintaining their horizontal and Cumberland darter populations and Creek, and Little Cove Creek watersheds vertical dimensions (width to depth promoting species movement and is reduced to localized sites due to ratio and cross-sectional area), pattern genetic flow between populations. fragmentation, separation, and (sinuosity), and longitudinal profile Therefore, based on the information destruction of rush darter habitats and (riffles, runs, and pools), thereby above, we identify shallow pools and populations. There are dispersal barriers conserving the physical characteristics runs and associated stream segments of (pipes and culverts for road crossings; of the stream, including bottom features geomorphically stable, second- to channelized stream segments; and such as riffles, runs, and pools and the fourth-order streams to be a physical or emergent aquatic plant control, which transition zones between these features. biological feature for the Cumberland eliminates cover habitat for the species) The protection and maintenance of darter. The connectivity of these that may contribute to the separation these habitat features accommodate habitats is essential in accommodating and isolation of rush darter populations spawning, rearing, growth, migration, feeding, breeding, growth, and other and affect water quality. Fragmentation

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of the species’ habitat has isolated growth, migration, and other normal Chucky Madtom populations and reduced available behaviors of the yellowcheek darter. Little is known about the specific spaces for rearing and reproduction, In 1962, the construction of Little Red space requirements of the chucky thereby reducing adaptive capability River Dam to create Greers Ferry madtom; however, all of the specimens and increasing the likelihood of local Reservoir impounded much of the range collected in Little Chucky Creek have extinctions (Burkhead et al. 1997, pp. of the yellowcheek darter, including the been found in shallow pool and run 397–399; Hallerman 2003, pp. 363–364). lower reaches of Devil’s Fork, Middle habitats with slow to moderate current Genetic variation and diversity within a Fork, South Fork, and portions of the over pea gravel, cobble, or slab-rock species are essential for recovery, main stem Little Red River, thus boulder substrates (Burr and Eisenhour adaptation to environmental changes, extirpating the species from these 1994, p. 2). Geomorphically stable and long-term viability (capability to streams transport sediment while live, reproduce, and develop) (Harris reaches. The yellowcheek darter was maintaining their horizontal and 1984, pp. 93–107; Noss and Cooperrider also extirpated from the Little Red River vertical dimensions (width to depth 1994, pp. 282–297; Fluker et al. 2007, p. downstream of Greers Ferry Reservoir ratio and cross-sectional area), pattern 2). Long-term viability is founded on due to cold tailwater releases. The lake (sinuosity), and longitudinal profile numerous interbreeding, local flooded optimal habitat for the species, (riffles, runs, and pools), thereby populations throughout the range and caused genetic isolation of conserving the physical characteristics (Harris 1984, pp. 93–107). Continuity of populations (McDaniel 1984, p. 1), with of the stream, including bottom features, water flow between suitable habitats is only the South and Archey forks of the such as riffles, runs, and pools and the essential in preventing further Little Red River maintaining a non- transition zones between these features. fragmentation of the species’ habitat and inundated confluence. The protection and maintenance of populations, conserving the essential As stated earlier, of the four streams emergent vegetation in shallow water on these habitat features accommodate supporting the yellowcheek darter, only spawning, rearing, growth, migration, the margins of small streams and the South and Archey forks maintain a springs, and promoting genetic flow and other normal behaviors of the non-inundated confluence. Instream chucky madtom. throughout the populations. Continuity habitat at the confluence of the two of habitat will maintain spawning, The current range of the chucky streams is suboptimal due to previous madtom has been reduced to only one foraging, and resting sites, and allow for channelization, but restoration could gene flow throughout the population. stream due to fragmentation and provide an opportunity for vital destruction of habitat. Habitat Connectivity of habitats, as a whole, population interactions between streams also permits improvement in water fragmentation has subjected the small to maintain genetic diversity. quality and water quantity by allowing population to genetic isolation, reduced Fragmentation of the species’ habitat unobstructed water flow throughout the space for rearing and reproduction, has subjected these small populations to connected habitats. reduced adaptive capabilities, and Therefore, based on the information genetic isolation, reduced space for increased the likelihood of extinction above, we identify springs and spring- rearing and reproduction, reduced (Burkhead et al. 1997, pp. 397–399; fed reaches of relatively low-gradient, adaptive capabilities, and an increased Hallerman 2003, pp. 363–364). Genetic geomorphically stable streams with likelihood of local extinctions variation and diversity within a species emergent vegetation to be a physical or (Burkhead et al. 1997, pp. 397–399; are essential for recovery, adaptation to biological feature for the rush darter. Hallerman 2003, pp. 363–364). Genetic environmental change, and long-term The connectivity of these habitats is variation and diversity within a species viability (capability to live, reproduce, essential in accommodating feeding, are essential for recovery, adaptation to and develop) (Harris 1984, pp. 93–107; breeding, growth, and other normal environmental change, and long-term Noss and Cooperrider 1994, pp. 282– behaviors of the rush darter and in viability (capability to live, reproduce, 297; Fluker et al. 2007, p. 2). The long- promoting gene flow within the species. and develop) (Harris 1984, pp. 93–107; term viability of a species is founded on Noss and Cooperrider 1994, pp. 282– the conservation of numerous local Yellowcheek Darter 297; Fluker et al. 2007, p. 2). The long- populations throughout its geographic The yellowcheek darter is typically term viability of a species is founded on range (Harris 1984, pp. 93–104). found in clear, high-gradient, second- to the conservation of numerous local Connecting instream habitats is fifth-order, geomorphically stable populations throughout its geographic essential in preserving the genetic streams, maintaining permanent year- range (Harris 1984, pp. 93–104). viability of the chucky madtom in Little round flows (Robison and Buchanan Connectivity of these habitats is Chucky Creek. 1988, p. 429). The species occupies essential to prevent further Therefore, based on the information riffles with moderate to fast current over fragmentation and isolation of above, we identify shallow pools and gravel, cobble, and boulder substrates yellowcheek darter populations and to runs of geomorphically stable streams to (Robison and Buchanan 1988, p. 429). promote species movement and genetic be a physical or biological feature for Geomorphically stable streams transport flow between populations. the chucky madtom. The connectivity of sediment while maintaining their these habitats is essential to horizontal and vertical dimensions Therefore, based on the information accommodate feeding, breeding, growth, (width to depth ratio and cross-sectional above, we identify riffles of and other normal behaviors of the area), pattern (sinuosity), and geomorphically stable, second- to fifth- chucky madtom and to promote gene longitudinal profile (riffles, runs, and order streams to be a physical or flow within the species. pools), thereby conserving the physical biological feature for the yellowcheek characteristics of the stream, including darter. The connectivity of these Laurel Dace bottom features such as riffles, runs, and habitats is essential to accommodate Little is known about the specific pools and the transition zones between feeding, breeding, growth, and other space requirements of the laurel dace; these features. The protection and normal behaviors of the yellowcheek however, the species is typically found maintenance of these habitat features darter and to promote gene flow within in low to moderate gradient, first- to accommodate spawning, rearing, the species. second-order, geomorphically stable

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streams. The laurel dace occupies pools to be a physical or biological feature for contaminants such as human and or slow runs beneath undercut banks or the laurel dace. The connectivity of animal waste products; pesticides and slab-rock boulders in clear, cool these habitats is essential in herbicides; nitrogen, potassium, and (maximum temperature 26 °C (78.8 °F)) accommodating feeding, breeding, phosphorus fertilizers; and petroleum streams. Substrates in streams where growth, and other normal behaviors of distillates. laurel dace are found typically consist the laurel dace and in promoting gene Sediment is the most common of a mixture of cobble, rubble, and flow within the species. pollutant within the upper Cumberland boulders and the streams tend to have River system (KDOW 1996, pp. 50–53, a dense riparian zone consisting largely Food, Water, Air, Light, Minerals, or 71–75; 2002, pp. 39–40; 2006, pp. 178– of mountain laurel (Skelton 2001, pp. Other Nutritional or Physiological 185), and the primary sources of 125–126). Requirements sediment include resource extraction Geomorphically stable streams Cumberland Darter (e.g., coal mining, silviculture, natural transport sediment while maintaining gas development), agriculture, road Feeding habits of the Cumberland their horizontal and vertical dimensions construction, and urban development darter are unknown but are likely (width to depth ratio and cross-sectional (Waters 1995, pp. 2–3; Skelton 1997, pp. similar to that of its sister species, the area), pattern (sinuosity), and 17, 19; KDOW 2006, pp. 178–185; longitudinal profile (riffles, runs, and Johnny darter (E. nigrum Rafinesque). Thomas 2007, p. 5). Siltation (excess pools), thereby conserving the physical Johnny darters are diurnal sight feeders, sediments suspended or deposited in a characteristics of the stream, including with prey items consisting of midge stream) has been shown to abrade and bottom features such as riffles, runs, and larvae, mayfly nymphs, caddisfly larvae, suffocate bottom-dwelling organisms; pools and the transition zones between and microcrustaceans (Kuehne and reduce aquatic insect diversity and these features. The protection and Barbour 1983, p. 104; Etnier and Starnes abundance; impair fish feeding behavior maintenance of these habitat features 1993, p. 511). Similar to other darters, by altering prey base and reducing accommodate spawning, rearing, juvenile Cumberland darters likely feed visibility of prey; impair reproduction growth, migration, and other normal on planktonic organisms or other small due to burial of nests; and, ultimately, behaviors of the laurel dace. invertebrates. negatively impact fish growth, survival, Strange and Skelton (2005, p. 8) Like most other darters, the and reproduction (Waters 1995, pp. 5– assessed the genetic structure within Cumberland darter depends on 7, 55–62; Knight and Welch 2001, pp. populations of laurel dace and, based on perennial stream flows that create 134–136). O’Bara (1991, p. 11) reported distribution of genetic diversity among suitable habitat conditions needed for that Cumberland darter habitats are very populations, they recognized two successful completion of its life cycle. susceptible to siltation because of the genetically distinct management units: An ample supply of flowing water habitat’s low to moderate gradient, low (1) The southern populations in Sale provides a means of transporting velocity, and shallow depth. O’Bara and Soddy creeks, and (2) the northern nutrients and food items, moderating (1991, p. 11) concluded that siltation population in the Piney River system. water temperatures and dissolved was the major limiting factor for the The current range of the laurel dace oxygen levels, removing fine sediments species’ continued existence and its has been reduced to short reaches that could damage spawning or foraging ability to colonize new stream systems. (approximately 0.3 to 8 km (0.2 to 5 mi) habitats, and diluting nonpoint source Cumberland darters are threatened by in length) of six streams due to pollutants. Water withdrawals do not water quality degradation caused by a fragmentation and destruction of represent a significant threat to the variety of nonpoint source pollutants. habitat. Fragmentation of the species’ species, but the species is faced with Coal mining represents a major source habitat has subjected these small occasional low-flow conditions that of nonpoint source pollutants (O’Bara populations to genetic isolation, occur during periods of drought. One 1991, p. 11; Thomas 2007, p. 5), because reduced space for rearing and such event occurred in the summer and it has the potential to contribute high reproduction, reduced adaptive fall of 2007 when recorded streamflows concentrations of dissolved metals and capabilities, and an increased likelihood in the upper Cumberland River basin of other solids that lower stream pH or of local extinctions (Burkhead et al. Kentucky and Tennessee (USGS Station lead to elevated levels of stream 1997, pp. 397–399; Hallerman 2003, pp. Number 03404000) were among the conductivity (Pond 2004, pp. 6–7, 38– 363–364). Genetic variation and lowest monthly values of the last 67 41; Mattingly et al. 2005, p. 59). These diversity within a species are essential years (Cinotto 2008, pers. comm.). impacts have been shown to negatively for recovery, adaptation to Water quality is also important to the affect fish species, including listed environmental change, and long-term persistence of the Cumberland darter. species, in the Clear Fork system of the viability (capability to live, reproduce, The species requires relatively clean, Cumberland basin (Weaver 1997, pp. 29; and develop) (Harris 1984, pp. 93–107; cool, flowing water to successfully Hartowicz 2008, pers. comm.). The Noss and Cooperrider 1994, pp. 282– complete its life cycle, but specific direct effect of elevated stream 297; Fluker et al. 2007, p. 2). The long- water quality requirements (such as conductivity on fishes, including the term viability of a species is founded on temperature, dissolved oxygen, pH, and Cumberland darter, is poorly the conservation of numerous local conductivity) that define suitable understood, but some species, such as populations throughout its geographic habitat conditions for the Cumberland blackside dace (Chrosomus range (Harris 1984, pp. 93–104). darter have not been determined. In cumberlandensis), have shown declines Connectivity of these habitats is general, optimal water quality in abundance over time as conductivity essential in preventing further conditions for fishes and other aquatic increased in streams affected by mining fragmentation and isolation of laurel organisms are characterized by (Hartowicz 2008, pers. comm.). Other dace populations. moderate stream temperatures, nonpoint source pollutants that affect Therefore, based on the information acceptable dissolved oxygen the Cumberland darter include domestic above, we identify shallow pools and concentrations, and the lack of harmful sewage (through septic tank leakage or runs and associated stream segments of levels of pollutants, such as inorganic straight pipe discharges); agricultural geomorphically stable, first- to second- contaminants like iron, manganese, pollutants such as fertilizers, pesticides, order streams with riparian vegetation selenium, and cadmium; organic herbicides, and animal waste; and other

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chemicals associated with oil and gas sources, water quality and water contaminants like copper, arsenic, development. Nonpoint source quantity would be considerably lower mercury, and cadmium; organic pollutants can cause excess nutrification and would significantly impair the contaminants such as human and (increased levels of nitrogen and normal life stages and behavior of the animal waste products; endocrine- phosphorus), excessive algal growth, rush darter. disrupting chemicals; pesticides; instream oxygen deficiencies, increased Favorable water quantity for the rush nitrogen, potassium, and phosphorous acidity and conductivity, and other darter includes moderate water velocity fertilizers; and petroleum distillates changes in water chemistry that can in riffles and no flow or low flow in (Alabama Department of Environmental negatively impact aquatic species pools (Stiles and Mills 2008, pp. 1–4), Management (ADEM) 1996, pp. 13–15). (KDOW 1996, pp. 48–50; 2006, pp. 70– a continuous daily discharge that allows Sediment is the most abundant 73). for longitudinal connectivity within the pollutant produced in the Mobile River Therefore, based on the information species’ habitat (Instream Flow Council Basin (ADEM 1996, pp. 13–15). Siltation above, we identify aquatic 2004, p. 117), and discharge from both (excess sediments suspended or macroinvertebrate prey items; surface water runoff and groundwater deposited in a stream) contributes to permanent surface flows, as measured sources (springs and seepages). Along turbidity of the water and has been during average rainfall years; and with the continuous daily discharge, shown to reduce photosynthesis in adequate water quality with substrates both minimum and flushing flows are aquatic plants, suffocate aquatic insects, that are relatively silt-free to be physical necessary to remove fine sediments and smother fish eggs, clog fish gills, and or biological features for the dilute other pollutants (Moffett and may fill in essential interstitial spaces Cumberland darter. Relatively silt-free is Moser 1978, pp. 20–21; Gilbert et al., (spaces between stream substrates) used defined for the purpose of this rule as eds. 1994, pp. 505–522; Instream Flow by aquatic organisms for spawning and silt or fine sand within interstitial Council 2004, pp.103–104; Drennen foraging; therefore, excessive siltation spaces of substrates in amounts low 2009, pers. obs.). At some sites, water negatively impacts fish growth, enough to have minimal impact to the depth ranges from 3.0 to 50 cm (0.1 to physiology, behavior, reproduction, and species. 1.6 ft). Groundwater provides a constant survival. Nutrification (excessive source of flows to dilute pollutants and Rush Darter nutrients present, such as nitrogen and maintain water quality for the phosphorous) promotes heavy algal Feeding habits of the rush darter are persistence of the rush darter. growth that covers and eliminates clean unknown but are likely similar to that Factors that can potentially alter rock or gravel habitats and aquatic and of its sister species, the goldstripe darter water quality include: droughts and emergent vegetation, necessary for rush (Etheostoma parvipinnis). The periods of low seasonal flow, darter feeding and spawning. Generally, goldstripe darter is a benthic (bottom) precipitation events, nonpoint source early life stages of fishes are less tolerant insectivore and is known to consume runoff, human activities within the of environmental contamination than midge larvae, mayfly nymphs, blackfly watershed, random spills, unregulated adults or juveniles (Little et al. 1993, p. larvae, beetles, and microcrustaceans stormwater discharge events (Instream 67). Appropriate water quality and (Mettee et al. 1996, p. 655). Variations Flow Council 2004, pp. 29–50), and quantity are necessary to dilute impacts in instream flows maintain the stream water extraction. Instream pooling may from stormwater and other non-natural bottom substrates, providing oxygen and also affect water quality by reducing effluents. Harmful levels of pollutants other attributes to various invertebrate water flow, altering temperatures, impair critical behavior processes in life stages. Sedimentation has been concentrating pollutants (Blanco and fishes, as reflected in population-level shown to wear away and suffocate Mayden 1999, pp. 5–6, 36), and responses (reduced population size, periphyton (organisms that live attached retarding aquatic and emergent to objects underwater) and disrupt vegetation growth. biomass, year class success, etc.). aquatic insect communities (Waters Fishes require acceptable levels of However, excessive water quantity in 1995, pp. 53–86; Knight and Welch dissolved oxygen. Generally, among the form of substantial stormwater 2001, pp. 132–135). In addition, fishes, the young life forms require more runoff may destabilize and move bottom nutrification promotes heavy algal dissolved oxygen and are the most and bankside substrates and increase growth that covers and eliminates the sensitive. The amount of dissolved instream sedimentation. clean rock or gravel habitats necessary oxygen that is present in the water (the Essential water quality attributes for for rush darter feeding. Thus, a decrease saturation level) depends upon water darters and other fish species in fast to in water quality and instream flow temperature. As water temperature medium water flow streams include the would correspondingly cause a decline increases, the saturated dissolved following: dissolved oxygen levels in the major food species for the rush oxygen level decreases. The more greater than 6 parts per million (ppm), darter. oxygen there is in the water, the greater temperatures between 7 and 26.7 °C (45 Much of the cool, clean water the assimilative capacity (ability to and 80 °F) with spring egg incubation provided to the Turkey Creek system consume organic wastes with minimal temperatures from 12.2 to 18.3 °C (54 to (Beaver Creek, Unnamed Tributary to impact) of that water; lower water flows 65 °F), a specific conductance (ability of Beaver Creek, Tapawingo or Penny have a reduced assimilative capacity water to conduct an electric current, Springs and the Highway 79 site; (Pitt 2000, pp. 6–7). Low-flow based on dissolved solids in the water) Jefferson County) and Cove Spring run conditions affect the chemical of less than approximately 225 micro of Little Cove Creek (Etowah County) environment occupied by fishes; Siemens per cm at 26.7 °C (80 °F), and comes from consistent and steady extended low-flow conditions coupled low concentrations of free or suspended groundwater sources (springs and with higher pollutant levels could likely solids (organic and inorganic sediments) seeps). Clear, flowing water provides a result in behavioral changes within all less than 10 Nephelometric Turbidity means for transporting nutrients and life stages, which could be particularly Units (NTU; units used to measure food items, moderating water detrimental to early life stages (e.g., sediment discharge) and 15 milligrams/ temperatures and dissolved oxygen embryo, larvae, and juvenile). Liter (mg/L) Total Suspended Solids levels, and diluting nonpoint and point Optimal water quality lacks harmful (TSS; measured as mg/L of sediment in source pollution. Without clean water levels of pollutants, such as inorganic water) (Teels et al. 1975, pp. 8–9;

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Ultschet et al. 1978, pp. 99–101; Waterbodies. This same report listed a flowing water to successfully complete Ingersoll et al. 1984, pp. 131–138; 3.2-km (2.0-mi) stretch of the South its life cycle, but specific water quality Kundell and Rasmussen 1995, pp. 211– Fork as impaired due to elevated requirements (such as temperature, 212; Henley et al. 2000, pp. 125–139; mercury levels (ADEQ 2010, p. 22). dissolved oxygen, pH, and conductivity) Meyer and Sutherland 2005, pp. 43–64). Boston Mountain streams that support that define suitable habitat conditions Therefore, based on the information the yellowcheek darter are typically for the chucky madtom have not been above, we identify cool, clean, flowing characterized by adequate water quality; determined. In general, optimal water water; shallow depths; moderate water however, increasing activity within the quality conditions for fishes and other velocity in riffles and low flow in pools; watersheds related to resource aquatic organisms are characterized by aquatic macroinvertebrate prey items; extraction, urban development, and moderate stream temperatures and and adequate water quality to be other human related activities is reason acceptable dissolved oxygen physical or biological features for the for concern regarding the recovery concentrations, and they lack harmful rush darter. potential of the yellowcheek darter. levels of pollutants, such as inorganic Therefore, based on the information Yellowcheek Darter contaminants like iron, manganese, above, we identify aquatic selenium, and cadmium; organic Adult and juvenile yellowcheek macroinvertebrate prey items; contaminants such as human and darters’ prey items include blackfly permanent surface flows, as measured animal waste products; pesticides and larvae, stonefly larvae, mayfly nymphs, during average rainfall years; moderate herbicides; nitrogen, potassium, and and caddisfly larvae among other stream to strong water velocity in riffles; and phosphorus fertilizers; and petroleum insects (McDaniel 1984, p. 56). adequate water quality to be physical or distillates. McDaniel (1984, p. 37) noted a strong biological features for the yellowcheek As relatively sedentary animals, selectivity by yellowcheek darters for fly darter. larvae year round, while other prey taxa madtoms must tolerate the full range of were consumed proportionally Chucky Madtom such parameters that occur naturally depending on seasonal availability. The chucky madtom’s prey items are within the streams where they persist. Larval stages of yellowcheek darters unknown; however, least madtom (N. Both the amount of water (flow) and its have not been studied in the field but hildebrandi) prey items include midge physical and chemical conditions (water are assumed to feed on planktonic larvae, caddisfly larvae, stonefly larvae, quality) vary widely according to organisms based on laboratory rearing and mayfly nymphs (Mayden and Walsh seasonal precipitation events and efforts and known larval fish dietary 1984, p. 339). In smoky madtoms, seasonal human activities within the habits. mayfly nymphs comprised 70.7 percent watershed. In general, the species Drought conditions and low water of stomach contents analyzed, followed survives in areas where the magnitude, levels have been identified as by fly, mosquito, midge, and gnat larvae frequency, duration, and seasonality of contributing factors in the decline of the (2.4 percent); caddisfly larvae (4.4 water flow is adequate to remove fine yellowcheek darter (Wine et al. 2000, p. percent); and stonefly larvae (1.0 particles and sediments (silt-free) 11). Expanding natural gas development percent) (Dinkins and Shute 1996, p. without causing degradation, and where activities that began in the upper Little 61). Significant daytime feeding was water quality is adequate for year-round Red River watershed in 2005 require observed in smoky madtoms. survival (for example, moderate to high large quantities of water and pose a The TVA Index of Biological Integrity levels of dissolved oxygen, low to threat to the continued existence of the results indicate that Little Chucky Creek moderate input of nutrients, and yellowcheek darter (75 FR 36045, June is biologically impaired (Middle relatively unpolluted water and 24, 2010). Water diversion from the Nolichucky Watershed Alliance 2006, p. sediments). Relatively silt-free is Middle and South forks has increased in 13). Given the predominantly defined for the purpose of this rule as recent years due to large-scale extraction agricultural land use within the Little silt or fine sand within interstitial of natural gas in the Fayetteville Shale Chucky Creek watershed, nonpoint spaces of substrates in amounts low (which encompasses nearly all of the source sediment and agrochemical enough to have minimal impact to the upper Little Red River drainage). discharges may pose a threat to the species. Natural gas development is imminent in chucky madtom by altering the physical Therefore, based on the information the Archey and Devil’s forks as well and characteristics of its habitat, thus above, we identify aquatic is predicted to affect numerous potentially impeding its ability to feed, macroinvertebrate prey items; cool, tributaries in all four watersheds. seek shelter from predators, and clean, flowing water; shallow depths; Because the yellowcheek darter requires successfully reproduce. The City of permanent surface flows, as measured permanent flows with moderate to Greeneville also discharges sediments during average rainfall years; and strong current (Robison and Buchanan and contaminants into the creek, adequate water quality with substrates 1988, p. 429), seasonal fluctuations in thereby threatening the chucky madtom. that are relatively silt-free to be physical stream flows exacerbated by water Wood and Armitage (1997, pp. 211–212) or biological features for the chucky diversion for natural gas, agricultural, identify at least five impacts of madtom. municipal or other land uses represent sedimentation on fish, including: (1) Laurel Dace a serious threat to the species. Reduction of growth rate, disease In addition to water quantity, water tolerance, and gill function; (2) The laurel dace’s preferred prey items quality is also important to the reduction of spawning habitat and egg, include fly larvae, stonefly larvae, and persistence of the yellowcheek darter. larvae, and juvenile development; (3) caddisfly larvae (Skelton 2001, p. 126). Although the Middle Fork is designated modification of migration patterns; (4) Skelton observed that the morphological as an Extraordinary Resource Water, it reduction of food availability through feeding traits of laurel dace, including a is listed as impaired along a 33.5-km the blockage of primary production; and large mouth, short digestive tract, (20.8-mi) reach due to fecal coliform (5) reduction of foraging efficiency. reduced number of pharyngeal (located bacteria contamination according to the Water quality is important to the within the throat) teeth, and primitively Arkansas Department of Environmental persistence of the chucky madtom. The shaped basioccipital bone (bone that Quality (ADEQ) List of Impaired species requires relatively clean, cool, articulates the vertebra), are consistent

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with a diet consisting largely of animal source run-off from adjacent land loss of this species adjacent to laurel material. surfaces (for example, excessive dace streams would be detrimental to Strange and Skelton (2005, p. 7 and amounts of nutrients, pesticides, and fish habitat. Appendix 2) identified siltation as a sediment), and random spills or Therefore, based on the information threat in all of the occupied Piney River unregulated discharge events. Run-off or above, we identify aquatic tributaries (Youngs, Moccasin, and discharges could be particularly harmful macroinvertebrate prey items; cool, Bumbee Creeks). The Bumbee Creek during drought conditions when flows clean, flowing water; shallow depths; type locality for the laurel dace is are depressed and pollutants are more permanent surface flows, as measured located within industrial forest that has concentrated. Adequate water quality is during average rainfall years; and been subjected to extensive clear-cutting essential for normal behavior, growth, adequate water quality with substrates and road construction in close and viability during all life stages of the that are relatively silt-free to be physical proximity to the stream. Strange and laurel dace. Adequate water quantity or biological features for the laurel dace. Skelton (2005, p. 7) noted a heavy and flow and good to optimal water sediment load at this locality and quality are essential for normal Cover or Shelter commented that conditions there in behavior, growth, and viability during Cumberland Darter 2005 had deteriorated since the site was all life stages. Culverts, pipes, and Cumberland darters depend on visited by Skelton in 2002. In general, bridge or road maintenance sites within specific habitats and bottom substrates the species occupies areas that are the watersheds serve as dispersal for normal life processes such as relatively silt-free. Relatively silt-free is barriers and have altered stream flows spawning, rearing, resting, and foraging. defined for the purpose of this rule as from natural conditions. silt or fine sand within interstitial Other nonpoint source pollutants that As described above, the species’ spaces of substrates in amounts low affect the laurel dace include domestic preferred habitats (shallow pools and enough to have minimal impact to the sewage (through septic tank leakage or runs) are dominated by sand or sand- species. straight pipe discharges); agricultural covered bedrock with patches of gravel Strange and Skelton (2005, pp. 7 and pollutants such as fertilizers, pesticides, or debris (Thomas 2007, p. 4). 8 and Appendix 2) also commented on herbicides, and animal waste. There are Individuals were observed by O’Bara excessive siltation in localities they no active coal mines within the range of (1991, p. 10) and Thomas (2007, p. 4) in sampled on Youngs and Moccasin the laurel dace; however, coal mining gently flowing runs or pools at depths creeks, and observed localized removal represents a potential threat to the ranging from 20 to 76 cm (average 36.2 of riparian vegetation around residences species in the foreseeable future. Coal cm) (3.9 to 30 in, average 14.3 in). Most in the headwaters of each of these mining represents a major source of of these habitats contain isolated streams. They considered the removal of nonpoint source pollutants because it boulders and large cobble that the riparian vegetation problematic not only has the potential to contribute high species likely uses as cover. According for the potential for increased siltation, concentrations of dissolved metals and to O’Bara (1991, p. 11), areas used by but also for the potential thermal other solids that lower stream pH or the Cumberland darter for cover and alteration of these small headwater lead to elevated levels of stream shelter are very susceptible to the effects streams. Skelton (2001, p. 125) reported conductivity (Pond 2004, pp. 6–7, 38– of siltation, and the presence of that laurel dace occupy cool streams 41; Mattingly et al. 2005, p. 59). The relatively silt-free substrates is the major with a maximum recorded temperature direct effect of elevated stream limiting factor for both the species’ of 26 °C (78.8 °F). The removal of conductivity on fishes, including the continued existence and its ability to riparian vegetation could potentially laurel dace, is poorly understood, but colonize new habitats. Relatively silt- increase temperatures above the laurel some species, such as blackside dace, free is defined for the purpose of this dace’s maximum tolerable limit. have shown declines in abundance over rule as silt or fine sand—within Water quality is important to the time as conductivity increased in interstitial spaces of substrates in persistence of the laurel dace. The streams affected by mining (Hartowicz amounts low enough to have minimal species requires relatively clean, cool, 2008, pers. comm.). impact to the species. flowing water to successfully complete Water temperature may also be a Therefore, based on the information its life cycle, but specific water quality limiting factor in the distribution of this above, we identify stable, shallow pools requirements (such as temperature, species (Skelton 1997, pp. 17, 19). and runs with relatively silt-free sand, dissolved oxygen, pH, and conductivity) Canopy cover of laurel dace streams sand-covered bedrock substrates, and that define suitable habitat conditions often consists of eastern hemlock (Tsuga isolated boulders and large cobble for the laurel dace have not been canadensis), mixed hardwoods, pines substrates to be a physical or biological determined. In general, optimal water (Pinus sp.), and mountain laurel feature for the Cumberland darter. quality conditions for fishes and other (Kalmia latifolia). The hemlock woolly Rush Darter aquatic organisms are characterized by adelgid (Adelges tsugae) is a nonnative moderate stream temperatures and insect that infests hemlocks, causing Rush darters depend on specific acceptable dissolved oxygen damage or death to trees. The woolly stream substrates and stream margins concentrations, and they lack harmful adelgid was recently found in Hamilton consisting of aquatic vegetation for levels of pollutants, such as inorganic County, Tennessee, and could impact normal and robust life processes such as contaminants like iron, manganese, eastern hemlock in floodplains and spawning, rearing, protection of young, selenium, and cadmium; organic riparian buffers along laurel dace protection of adults when threatened, contaminants such as human and streams in the future (Simmons 2008, foraging, and feeding. Preferred animal waste products; pesticides and pers. comm.). Riparian buffers filter substrates are dominated by fine gravel, herbicides; nitrogen, potassium, and sediment and nutrients from overland with lesser amounts of sand, fine silt, phosphorus fertilizers; and petroleum runoff, allow water to soak into the coarse gravel, cobble, and bedrock distillates. ground, protect stream banks and (Blanco and Mayden 1999, pp. 24–26; Other factors that can potentially alter lakeshores, and provide shade for Drennen 2009, pers. obs.). In addition to water quality and quantity are droughts streams. Because eastern hemlock is these preferred substrates, rush darters and periods of low flow, nonpoint primarily found in riparian areas, the generally prefer aquatic emergent

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vegetation such as watercress yellowcheek darter (Brophy and substrates in riffle habitats with depths (Nasturtium officinale), parrots feather Stoeckel 2006, p. 42). Larger boulder ranging from 0.1 to 0.3 m (0.33 to 0.98 (Myriophyllum sp.), rushes (Juncus substrates are important during spring ft). Based on their limited number of spp.), and sedges (Carex spp.). This spawning periods (McDaniel 1984, p. observations, Eisenhour et al. (1996, p. emergent vegetation is utilized by the 82). Siltation (excess sediments 43) hypothesized that saddled madtoms rush darter, especially in the quiet water suspended or deposited in a stream) occupy riffles and runs in the daylight along stream margins and in ephemeral contributes to turbidity of the water and hours and then move to pools at night pools and tributaries (Boschung and has been shown to suffocate aquatic and during crepuscular hours (dawn Mayden 2004, p. 552; Stiles 2011, pers. insects, smother fish eggs, clog fish gills, and dusk) to feed. comm.). and may fill in essential interstitial Therefore, based on the information Excessive siltation of gravel substrates spaces (spaces between stream above, we identify gently flowing runs removes foraging and feeding sites for substrates) used by aquatic organisms and pools with relatively silt-free flat the rush darter (Sylte and Fischenich for spawning and foraging; therefore, gravel, cobble, and slab-rock boulder 2002, pp. 1–25), and eliminates excessive siltation negatively impacts substrates to be a physical or biological conditions necessary for some aquatic fish growth, physiology, behavior, feature for the chucky madtom. plant species to flourish. Similarly, reproduction, and survival. In general, Laurel Dace excessive nutrients promote dense the species occupies areas that are filamentous algae growth on the relatively silt-free. Relatively silt-free is Laurel dace have been most often substrate and within the water column defined for the purpose of this rule as collected from pools or slow runs from (Drennen 2007, pers. obs.; Stiles 2011, silt or fine sand within interstitial undercut banks or beneath slab-rock pers. comm.), which may restrict rush spaces of substrates in amounts low boulders, typically in first- or second- darter habitat for foraging and spawning enough to have minimal impact to the order, clear, cool (maximum recorded ° ° (Stiles 2011, pers. comm.). species. temperature 26 C or 78.8 F) streams. Stormwater flows may result in Therefore, based on the information Substrates in streams where laurel dace scouring and erosion of important cover above, we identify high-quality riffle are found typically consist of a mixture and shelter sites for the rush darter. substrates that are relatively silt-free and of cobble, rubble, and boulder and the Conversely, drought conditions render contain a mixture of gravel, cobble, and streams tend to have a dense riparian the darter populations vulnerable to boulder substrates to be a physical or zone consisting largely of mountain higher water temperatures and restricted biological feature for the yellowcheek laurel (Skelton 2001, pp. 125–126). habitat, especially during the breeding darter. Siltation (excess sediments suspended season when they concentrate in or deposited in a stream) contributes to wetland pools and shallow pools of Chucky Madtom turbidity of the water and has been headwater streams (Fluker et al 2007, p. While nothing is known specifically shown to smother fish eggs, clog fish 10). about chucky madtom habitat gills, and may fill in essential interstitial Therefore, based on the information preferences, available information for spaces (spaces between stream above, we identify quiet water along other similar members of the Noturus substrates) used by aquatic organisms stream margins and in shallow group is known. Both smoky and for spawning and foraging; therefore, ephemeral pools and headwater elegant madtoms (N. elegans) were excessive siltation negatively impacts tributaries; aquatic emergent vegetation; found to nest under flat rocks (slab-rock fish growth, physiology, behavior, a combination of silt, sand, and gravel boulders) at or near the head of riffles reproduction, and survival. substrates; and seasonal stream flows (Burr and Dimmick 1981, p. 116; Water temperature may be a limiting sufficient to provide connectivity and to Dinkins and Shute 1996, p. 56). Smoky factor in the distribution of this species remove excessive sediment covering the madtoms have also been observed using (Skelton 1997, pp. 17, 19). Canopy cover vegetation and stream bottom substrates shallow pools and to select rocks of of laurel dace streams often consists of to be a physical or biological feature for larger dimension for nesting than were eastern hemlock (Tsuga canadensis), the rush darter. used for shelter during other times of mixed hardwoods, pines (Pinus spp.), year (Dinkins and Shute 1996, p. 56). and mountain laurel (Kalmia latifolia). Yellowcheek Darter Siltation (excess sediments suspended Riparian buffers filter sediment and Summertime habitat selected by the or deposited in a stream) contributes to nutrients from overland runoff, allow yellowcheek darter includes high- turbidity of the water and has been water to soak into the ground, protect velocity (greater than 0.4 meters per shown to smother fish eggs, clog fish stream banks and lakeshores, and second or 1.3 feet per second) water gills, and may fill in essential interstitial provide shade for streams. The hemlock over 8 to 128 millimeters (mm) (0.3 to spaces (spaces between stream woolly adelgid is a nonnative insect that 5.0 in) gravel and cobble substrate at substrates) used by aquatic organisms infests hemlocks, causing damage or depths of 11 to 30 cm (4.3 to 11.8 in) for spawning and foraging; therefore, death to trees. The woolly adelgid was (Brophy and Stoeckel 2006, p. 42), excessive siltation negatively impacts recently found in Hamilton County, which lends evidence to the suggestion fish growth, physiology, behavior, Tennessee, and could impact eastern by other researchers that it is a ‘‘riffle- reproduction, and survival. hemlock in floodplains and riparian obligate’’ species and is unlikely to Dinkins and Shute (1996, p. 50) found buffers along laurel dace streams in the occupy pool or run habitats when riffles smoky madtoms underneath slab-rock future (Simmons 2008, pers. comm.). are available. Preferred water depths for boulders in swift to moderate current Because eastern hemlock is primarily yellowcheek darters ranged between 11 during May to early November. Habitat found in riparian areas, the loss of this and 30 cm (4.3 and 11.8 in), but use shifted to shallow pools over the species adjacent to laurel dace streams yellowcheek darters have been found in course of a 1-week period, coinciding would be detrimental to fish habitat. shallower water, when greater depths with a drop in water temperature to 7 Habitat destruction and modification with suitable velocities were scarce. or 8 °C (45 to 46 °F), and persisted from also stem from existing or proposed Gravel and cobble from 8 to 128 mm early November to May. Eisenhour et al. infrastructure development in (0.3 to 5.0 in) median diameter appears (1996, p. 43) collected saddled madtoms association with silvicultural activities. to be the important substrate type for in gravel, cobble, and slab-rock boulder The presence of culverts at one or more

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road crossings in most of the streams flowing run and pool habitats with sand patterns, specific spawning behaviors, inhabited by laurel dace may disrupt and bedrock substrates, boulders, large egg deposition sites, number of eggs per upstream dispersal within those systems cobble, woody debris, or other cover nest, degree of nest protection by males, (Chance 2008, pers. obs.). Such and that are relatively silt-free and and degree of territoriality are unknown dispersal barriers could prevent re- stream connectivity to be a physical or at this time; however, researchers establishment of laurel dace populations biological feature for the Cumberland suggest that yellowcheek darters deposit in reaches where they suffer localized darter. eggs on the undersides of larger rubble in swift water (McDaniel 1984, p. 82). extinctions due to natural or human- Rush Darter caused events. Wine and Blumenshine (2002, p. 10) Therefore, based on the information Rush darters depend on bottom noted that during laboratory spawning, above, we identify stream connectivity, substrates dominated by sand, fine silt, yellowcheek darter females bury gently flowing runs and pools with fine gravel and some coarse gravel, and themselves in fine gravel or sand relatively silt-free cobble and slab-rock that have significant amounts of substrates (often behind large, fist-sized boulder substrates with undercut banks, emergent aquatic vegetation (Drennen cobble) with only their heads and and canopy cover to be a physical or 2009, pers. obs.). caudal fin exposed. A yellowcheek biological feature for the laurel dace. In July 2008, rush darter young-of-the- darter male will then position himself year were collected within areas of very upstream of the buried female and Sites for Breeding, Reproduction, or little water in the headwaters of an fertilize her eggs. Clutch size and nest Rearing (or Development) of Offspring unnamed tributary in Jefferson County defense behavior were not observed. Cumberland Darter (Kuhajda 2008, pers. comm.), and in Given these specialized reproductive January 2008, the same tributary was behaviors, the importance of riffle Little is known regarding the dry. In previous years, this area was a habitats that are characterized by good reproductive habits of the Cumberland spawning and nursery site for rush water quality and sufficient substrates darter. Thomas (2007, p. 4) reported the darters (Kuhajda 2008, pers. comm.). that are relatively silt-free is apparent. collection of male Cumberland darters During May and June, rush darters Therefore, based on the information in breeding condition in April and May, spawned at this site even though the above, we identify swift to moderately with water temperatures ranging from area had been dewatered occasionally in ° ° swift riffles with gravel, cobble, and 15 to 18 C (59 to 64 F). Extensive the summer, fall, and winter (Kuhajda boulder substrates that are characterized searches by Thomas (2007, p. 4) 2008, pers. comm.). Adults may be by good water quality and are relatively produced no evidence of nests or eggs migrating upstream from watered areas silt-free to be a physical or biological at these sites. Reproductive habits of its or juveniles and adults may be moving feature for the yellowcheek darter. closest relative, the Johnny darter, have downstream from the spring-fed Chucky Madtom been well studied by Winn (1958a, pp. wetland that constitutes the headwaters 163–183; 1958b, pp. 205–207), Speare of the unnamed tributary (Kuhajda Little is known regarding the (1965, pp. 308–314), and Bart and Page 2008, pers. comm.). reproductive habits of the chucky (1991, pp. 80–86). Spawning occurs Therefore, based on the information madtom; however, both smoky and from April to June, with males migrating above, we identify permanent and elegant madtoms were found to nest to spawning areas prior to females and ephemeral shallow streams with quiet under flat slab-rock boulders at or near establishing territories at selected water along stream margins and in the head of riffles (Burr and Dimmick spawning sites. Males establish a nest shallow ephemeral pools and headwater 1981, p. 116; Dinkins and Shute 1996, under a submerged object (boulder or tributaries, along with seasonal stream p. 56). Shallow pools were also used by woody debris) by using fin movements flows sufficient to provide connectivity the smoky madtom. Smoky madtoms to remove silt and fine debris. Females and promote the emergent aquatic selected larger rocks for nesting than enter the nests, the spawning pair vegetation necessary for spawning and were used for shelter during other times inverts, and females deposit between 40 rearing of young, to be a physical or of year (Dinkins and Shute 1996, p. 56). and 200 adhesive eggs on the underside biological feature for the rush darter. A single male madtom guards the nest of the nest object. Males care for the nest in the cases of smoky, elegant, Ozark (N. by periodically fanning the area to Yellowcheek Darter albater), and least madtoms (Mayden et remove silt. The eggs hatch in about 6 Yellowcheek darter spawning occurs al. 1980, p. 337; Burr and Dimmick to 16 days, depending on water from late May through June in the swift 1981, p. 116; Mayden and Walsh 1984, temperature. Hatchlings are about 5 mm to moderately swift portions of riffles, p. 357; Dinkins and Shute 1996, p. 56). (0.2 in) and reach 29 to 38 mm (1.1 to often around or under the largest rocks While guarding the nest, many were 1.5 in) at age 1. Given these specialized (McDaniel 1984, p. 82), although found to have empty stomachs reproductive behaviors, it is apparent brooding females have been found at the suggesting that they do not feed during that the Cumberland darter requires head of riffles in smaller gravel substrate nest guarding, which can last as long as second- to fourth-order streams (Wine et al. 2000, p. 3). During non- 3 weeks. containing gently flowing run and pool spawning months, there is a general Siltation (excess sediments suspended habitats with sand and bedrock movement to portions of the riffle with or deposited in a stream) contributes to substrates, boulders, woody debris, or smaller substrate, such as gravel or turbidity of the water and has been other cover and that are relatively silt- cobble, and less turbulence (Robison shown to smother fish eggs, clog fish free. It is essential to maintain the and Harp 1981, p. 3). Weston and gills, and may fill in essential interstitial connectivity of these sites, to Johnson (2005, p. 24) observed that the spaces (spaces between stream accommodate breeding, growth, and yellowcheek darter moved very little substrates) used by aquatic organisms other normal behaviors of the during a 1-year migration study, with 19 for spawning and foraging; therefore, Cumberland darter and to promote gene of 22 recaptured darters found within 9 excessive siltation negatively impacts flow within the species. m (29.5 ft) of their original capture fish growth, physiology, behavior, Therefore, based on the information position after periods of several months. reproduction, and survival. above, we identify stable, second- to A number of life-history Therefore, based on the information fourth-order streams containing gently characteristics, including courtship above, we identify streams containing

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gently flowing run and pool habitats processes, we determine that the (4) Primary Constituent Element 4— with flat or slab-rock boulder substrates primary constituent elements are: Water quality with temperature not that are relatively silt-free to be a exceeding 26.7 °C (80 °F), dissolved Cumberland darter physical or biological feature for the oxygen 6.0 milligrams or greater per chucky madtom. (1) Primary Constituent Element 1— liter, turbidity of an average monthly Shallow pools and gently flowing runs Laurel Dace reading of 10 Nephelometric Turbidity of geomorphically stable second- to Units (NTU; units used to measure Little is known regarding the fourth-order streams with connectivity sediment discharge) and 15mg/L Total reproductive habits of the laurel dace. between spawning, foraging, and resting Suspended Solids (TSS; measured as Skelton (2001, p. 126) reported having sites to promote gene flow throughout mg/L of sediment in water) or less; and collected nuptial individuals from late the species’ range. a specific conductance (ability of water March until mid-June, although Call (2) Primary Constituent Element 2— to conduct an electric current, based on (2004, pers. obs.) observed males in Stable bottom substrates composed of dissolved solids in the water) of no waning nuptial color during surveys on relatively silt-free sand and sand- greater than 225 micro Siemens per July 22, 2004. Laurel dace may be a covered bedrock, boulders, large cobble, centimeter at 26.7 °C (80 °F). spawning nest associate with nest- woody debris, or other cover. (5) Primary Constituent Element 5— building minnow species, as has been (3) Primary Constituent Element 3— Prey base of aquatic macroinvertebrates, documented in blackside dace (Starnes An instream flow regime (magnitude, including midge larvae, mayfly nymphs, and Starnes 1981, p. 366). Soddy Creek frequency, duration, and seasonality of blackfly larvae, beetles, and is the only location in which Skelton discharge over time) sufficient to microcrustaceans. (2001, p. 126) collected a nest-building provide permanent surface flows, as Yellowcheek Darter minnow with laurel dace. The nests measured during years with average used by blackside dace had moderate rainfall, and maintain benthic habitats (1) Primary Constituent Element 1— flow and consisted of gravel substrate at utilized by the species. Geomorphically stable second- to fifth- depths of 20 cm (7.9 in) (Starnes and (4) Primary Constituent Element 4— order streams with riffle habitats; and Starnes 1981, p. 366). These nests were Adequate water quality characterized by connectivity between spawning, noted to be approximately 0.7 m (2.3 ft) moderate stream temperatures, foraging, and resting sites to promote from undercut banks (Starnes and acceptable dissolved oxygen gene flow within the species’ range Starnes 1981, p. 366). concentrations, moderate pH, and low where possible. Siltation (excess sediments suspended levels of pollutants. Adequate water (2) Primary Constituent Element 2— or deposited in a stream) contributes to quality is defined for the purpose of this Stable bottom composed of relatively turbidity of the water and has been rule as the quality necessary for normal silt-free, moderate to strong velocity shown to smother fish eggs, clog fish behavior, growth, and viability of all life riffles with gravel, cobble, and boulder gills, and may fill in essential interstitial stages of the Cumberland darter. substrates. spaces (spaces between stream (3) Primary Constituent Element 3— substrates) used by aquatic organisms (5) Primary Constituent Element 5— An instream flow regime (magnitude, for spawning and foraging; therefore, Prey base of aquatic macroinvertebrates, frequency, duration, and seasonality of excessive siltation negatively impacts including midge larvae, mayfly nymphs, discharge over time) sufficient to fish growth, physiology, behavior, caddisfly larvae, and microcrustaceans. provide permanent surface flows, as reproduction, and survival. Rush Darter measured during years with average Therefore, based on the information rainfall, and maintain benthic habitats (1) Primary Constituent Element 1— above, we identify headwater streams utilized by the species. containing moderately flowing run and Springs and spring-fed reaches of (4) Primary Constituent Element 4— pool habitats with gravel substrates, geomorphically stable, relatively low- Adequate water quality characterized by containing undercut banks, and that are gradient, headwater streams with moderate stream temperatures, relatively silt-free to be a physical or appropriate habitat (bottom substrates) acceptable dissolved oxygen biological feature for the laurel dace. to maintain essential riffles, runs, and concentrations, moderate pH, and low pools; emergent vegetation in shallow levels of pollutants. Adequate water Primary Constituent Elements water and on the margins of small quality is defined for the purpose of this Under the Act and its implementing streams and spring runs; cool, clean, rule as the quality necessary for normal regulations, we are required to identify flowing water; and connectivity behavior, growth, and viability of all life the physical and biological features between spawning, foraging, and resting stages of the yellowcheek darter. essential to the conservation of the sites to promote gene flow throughout (5) Primary Constituent Element 5— Cumberland darter, rush darter, the species’ range. Prey base of aquatic macroinvertebrates, yellowcheek darter, chucky madtom, (2) Primary Constituent Element 2— including blackfly larvae, stonefly and laurel dace in areas occupied at the Stable bottom substrates consisting of a larvae, mayfly nymphs, and caddisfly time of listing, focusing on the features’ combination of sand with silt, muck, larvae. primary constituent elements. We gravel, or bedrock and adequate consider primary constituent elements emergent vegetation in shallow water on Chucky Madtom to be the elements of physical and the margins of small permanent and (1) Primary Constituent Element 1— biological features that, when laid out in ephemeral streams and spring runs. Gently flowing run and pool reaches of the appropriate quantity and spatial (3) Primary Constituent Element 3— geomorphically stable streams with arrangement to provide for a species’ Instream flow with moderate velocity cool, clean, flowing water; shallow life-history processes, are essential to and a continuous daily discharge that depths; and connectivity between the conservation of the species. allows for a longitudinal connectivity spawning, foraging, and resting sites to Based on our current knowledge of regime inclusive of both surface runoff promote gene flow throughout the the physical or biological features and and groundwater sources (springs and species’ range. habitat characteristics required to seepages) and exclusive of flushing (2) Primary Constituent Element 2— sustain the five species’ life history flows caused by stormwater runoff. Stable bottom substrates composed of

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relatively silt-free, flat gravel, cobble, history processes of the species. All protection provided by a legally and slab-rock boulders. units proposed to be designated as operative plan or agreement for the (3) Primary Constituent Element 3— critical habitat are currently occupied conservation of the species. Activities in An instream flow regime (magnitude, by these five species, except for or adjacent to these areas of proposed frequency, duration, and seasonality of Cumberland darter Units 5 (Indian critical habitat may affect one or more discharge over time) sufficient to Creek) and 7 (Kilburn Fork). All of the physical and biological features provide permanent surface flows, as occupied units for these five species essential to the Cumberland darter. For measured during years with average contain the primary constituent example, features in this proposed rainfall, and maintain benthic habitats elements in the appropriate quantity critical habitat designation may require utilized by the species. and spatial arrangement sufficient to special management due to threats (4) Primary Constituent Element 4— support the life-history needs of these posed by resource extraction (coal Adequate water quality characterized by species. All unoccupied units for the surface mining, silviculture, natural gas moderate stream temperatures, Cumberland darter are considered and oil exploration activities), acceptable dissolved oxygen essential to the conservation of the agricultural activities (livestock), lack of concentrations, moderate pH, and low species. adequate riparian buffers, construction levels of pollutants. Adequate water and maintenance of State and county Special Management Considerations or quality is defined for the purpose of this roads, nonpoint source pollution arising Protection rule as the quality necessary for normal from stormwater runoff, and canopy loss behavior, growth, and viability of all life When designating critical habitat, we caused by infestations of the hemlock stages of the chucky madtom. assess whether the areas within the wooly adelgid. These threats are in (5) Primary Constituent Element 5— geographical area occupied by the addition to adverse effects of drought, Prey base of aquatic macroinvertebrates, species at the time of listing contain floods, or other natural phenomena. including midge larvae, mayfly nymphs, features that are essential to the Other activities that may affect physical caddisfly larvae, and stonefly larvae. conservation of the species and which and biological features in the proposed may require special management critical habitat units include those listed Laurel Dace considerations or protection. in the Effects of Critical Habitat (1) Primary Constituent Element 1— Cumberland Darter Designation section below. Pool and run habitats of geomorphically Management activities that could stable first- to second-order streams The 15 units we are proposing for ameliorate these threats include, but are with riparian vegetation; cool, clean, designation as critical habitat for the not limited to: Use of BMPs designed to flowing water; shallow depths; and Cumberland darter will require some reduce sedimentation, erosion, and bank connectivity between spawning, level of management to address the side destruction; moderation of surface foraging, and resting sites to promote current and future threats to the and ground water withdrawals to gene flow throughout the species’ range. physical and biological features of the maintain natural flow regimes; increase (2) Primary Constituent Element 2— species. Due to their location on the of stormwater management and Stable bottom substrates composed of Daniel Boone National Forest (DBNF), at reduction of stormwater flows into the relatively silt-free cobble and slab-rock least a portion of 13 of the 15 proposed systems; preservation of headwater boulder substrates with undercut banks critical habitat units are being managed springs and streams; regulation of off- and canopy cover. and protected under DBNF’s Land and road vehicle use; and reduction of other (3) Primary Constituent Element 3— Resource Management Plan (LRMP) watershed and floodplain disturbances An instream flow regime (magnitude, (United States Forest Service (USFS) that release sediments, pollutants, or frequency, duration, and seasonality of 2004, pp. 1–14). The LRMP is nutrients into the water. discharge over time) sufficient to implemented through a series of project- In summary, we find that the areas we provide permanent surface flows, as level decisions based on appropriate are proposing as critical habitat for the measured during years with average site-specific analysis and disclosure. It Cumberland darter contain the physical rainfall, and maintain benthic habitats does not contain a commitment to select or biological features for the species, utilized by the species. any specific project; rather, it sets up a and that these features may require (4) Primary Constituent Element 4— framework of desired future conditions special management considerations or Adequate water quality characterized by with goals, objectives, and standards to protection. Special management moderate stream temperatures, guide project proposals. Projects are consideration or protection may be acceptable dissolved oxygen proposed to solve resource management required to eliminate, or to reduce to concentrations, moderate pH, and low problems, move the forest environment negligible levels, the threats affecting levels of pollutants. Adequate water toward desired future conditions, and the physical or biological features of quality is defined for the purpose of this supply goods and services to the public each unit. Additional discussion of rule as the quality necessary for normal (USFS 2004, pp. 1–14). The LRMP threats facing individual units is behavior, growth, and viability of all life contains a number of protective provided in the individual unit stages of the laurel dace. standards that in general are designed to descriptions below. (5) Primary Constituent Element 5— avoid and minimize potential adverse Prey base of aquatic macroinvertebrates, effects to the Cumberland darter and Rush Darter including midge larvae, caddisfly other federally listed species; however, The eight units we are proposing for larvae, and stonefly larvae. the DBNF will continue to conduct designation as critical habitat will With this proposed designation of project-specific section 7 consultation require some level of management to critical habitat, we intend to identify the under the Act when their activities may address the current and future threats to physical and biological features adversely affect streams supporting the physical and biological features of essential to the conservation of these Cumberland darters. the rush darter. None of the proposed five species, through the identification Two of the 15 proposed critical critical habitat units are presently under of the appropriate quantity and spatial habitat units are located entirely on special management or protection arrangement of the primary constituent private property and are not presently provided by a legally operative plan or elements sufficient to support the life- under the special management or agreement for the conservation of the

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rush darter. However, 4.7 km (2.9 mi) of provided in the individual unit road vehicle use; and reduction of other the Turkey Creek watershed (Jefferson descriptions below. watershed and floodplain disturbances County) is designated critical habitat for that release sediments, pollutants, or Yellowcheek Darter the vermilion darter (Etheostoma nutrients into the water. chermocki) (75 FR 75913, December 7, The four units we are proposing for In summary, we find that the areas we 2010) which includes a portion of designation as critical habitat for the are proposing as critical habitat for the proposed rush darter unit 2. Various yellowcheek darter will require some yellowcheek darter contain the physical activities in or adjacent to the critical level of management to address the or biological features for the species, habitat units described in this proposed current and future threats to the and that these features may require rule may affect one or more of the physical and biological features of the special management considerations or physical and biological features. For species. The yellowcheek darter is protection. Special management example, features in the proposed currently covered under a Candidate consideration or protection may be critical habitat designation may require Conservation Agreement with required to eliminate, or to reduce to special management due to threats Assurances (CCAA) in the upper Little negligible levels, the threats affecting posed by the following activities or Red River watershed in Arkansas, along the physical or biological features of disturbances: urbanization activities and with the endangered speckled each unit. Additional discussion of inadequate stormwater management pocketbook mussel, which does not threats facing individual units is (such as stream channel modification have critical habitat designated. Of the provided in the individual unit for flood control or gravel extraction) 205,761 hectares (ha) (508,446 acres descriptions below. (ac)) within the upper Little Red River that could cause an increase in bank Chucky Madtom erosion; significant changes in the watershed and known to support the existing flow regime within the streams yellowcheek darter, approximately The single unit we are proposing for due to water diversion or withdrawal; 35,208 ha (87,000 ac) are owned by designation of critical habitat for the significant alteration of water quality; private parties (Service 2007, p. 4). To chucky madtom will require some level significant alteration in the quantity of date, multiple landowners have enrolled of management to address the current groundwater and alteration of spring 4,672 ha (11,544 ac) in the program and future threats to the physical and discharge sites; significant changes in since its inception in mid-2007 and 10 biological features of the species. The stream bed material composition and more landowners with approximately critical habitat unit is located on private quality due to construction projects and 20,234 ha (50,000 ac) have pending draft property and is not presently under the maintenance activities; off-road vehicle agreements. Lands enrolled in these special management or protection use; sewer, gas, and water easements; conservation programs include areas provided by a legally operative plan or bridge construction; culvert and pipe within the proposed critical habitat as agreement for the conservation of the installation; and other watershed and well as riparian and upland areas that species. Various activities in or adjacent floodplain disturbances that release are outside of the proposed critical to the critical habitat unit described in sediments or nutrients into the water. habitat boundary. Various activities in this proposed rule may affect one or Other activities that may affect physical or adjacent to proposed critical habitat more of the physical and biological and biological features in the proposed may affect one or more of the physical features. For example, features in this critical habitat units include those listed and biological features. For example, proposed critical habitat designation in the Effects of Critical Habitat features in this proposed critical habitat may require special management due to Designation section below. designation may require special threats posed by agricultural activities Management activities that could management due to threats posed by (e.g., row crops and livestock), lack of ameliorate these threats include, but are natural gas extraction; timber harvest; adequate riparian buffers, construction not limited to: Use of BMPs designed to gravel mining; unrestricted cattle access and maintenance of State and county reduce sedimentation, erosion, and bank into streams; water diversion for roads, gravel mining, and nonpoint side destruction; moderation of surface agriculture, industry, municipalities, or source pollution arising from a wide and ground water withdrawals to other purposes; lack of adequate variety of human activities. These maintain natural flow regimes; increase riparian buffers; construction and threats are in addition to random effects of stormwater management and maintenance of county and State roads; of drought, floods, or other natural reduction of stormwater flows into the and nonpoint source pollution arising phenomena. Other activities that may systems; preservation of headwater from development and a broad array of affect physical and biological features in springs, spring runs, and ephemeral human activities. These threats are in the proposed critical habitat unit rivulets; regulation of off-road vehicle addition to random effects of drought, include those listed in the Effects of use; and reduction of other watershed floods, or other natural phenomena. Critical Habitat Designation section and floodplain disturbances that release Other activities that may affect physical below. sediments, pollutants, or nutrients into and biological features in the proposed Management activities that could the water. critical habitat units include those listed ameliorate these threats include, but are In summary, we find that the areas we in the Effects of Critical Habitat not limited to: Use of BMPs designed to are proposing as critical habitat for the Designation section below. reduce sedimentation, erosion, and bank rush darter contain the physical or Management activities that could side destruction; moderation of surface biological features for the species, and ameliorate these threats include, but are and ground water withdrawals to that these features may require special not limited to: Use of BMPs designed to maintain natural flow regimes; increase management considerations or reduce sedimentation, erosion, and bank of stormwater management and protection. Special management side destruction; moderation of surface reduction of stormwater flows into the consideration or protection may be and ground water withdrawals to systems; preservation of headwater required to eliminate, or to reduce to maintain natural flow regimes; increase springs and streams; regulation of off- negligible levels, the threats affecting of stormwater management and road vehicle use; and reduction of other the physical or biological features of reduction of stormwater flows into the watershed and floodplain disturbances each unit. Additional discussion of systems; preservation of headwater that release sediments, pollutants, or threats facing individual units is springs and streams; regulation of off- nutrients into the water.

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In summary, we find that the area we laurel dace contain the physical or because we have determined that: (1) are proposing as critical habitat for the biological features for the species, and Such areas are essential for the chucky madtom contains the physical or that these features may require special conservation of the species; and (2) biological features for the species, and management considerations or designation of only occupied habitats is that these features may require special protection. Special management not sufficient to conserve this species. management considerations or consideration or protection may be Unoccupied habitats provide additional protection. Special management required to eliminate, or to reduce to habitat for population expansion and consideration or protection may be negligible levels, the threats affecting promote greater genetic diversity, which required to eliminate, or to reduce to the physical or biological features of will decrease the risk of extinction for negligible levels, the threats affecting each unit. Additional discussion of the species. the physical or biological features of the threats facing individual units is We used information from surveys unit. Additional discussion of threats provided in the individual unit and reports prepared by the Kentucky facing the unit is provided in the unit descriptions below. Department of Fish and Wildlife description below. Resources, Kentucky Division of Water, Criteria Used To Identify Proposed and Service records to identify specific Laurel Dace Critical Habitat locations occupied by the Cumberland The six units we are proposing for As required by section 4(b)(1)(A) of darter. Delineations were based on the designation as critical habitat will the Act, we use the best scientific and best available scientific information require some level of management to commercial data available to designate indicating portions of streams address the current and future threats to critical habitat. We review available containing necessary physical and the physical and biological features of information pertaining to the habitat biological features to support the the laurel dace. These units are located requirements of the species. In Cumberland darter. We set the upstream on private property and are not accordance with the Act and its and downstream limits of each critical presently under the special management implementing regulation at 50 CFR habitat unit by identifying landmarks or protection provided by a legally 424.12(e), we consider whether (bridges, confluences, road crossings, operative plan or agreement for the designating additional areas—outside dams) above and below the upper and conservation of the species. Various those currently occupied as well as lowermost reported locations of the activities in or adjacent to these areas of those occupied at the time of listing— Cumberland darter in each stream reach proposed critical habitat may affect one are necessary to ensure the conservation to ensure incorporation of all potential or more of the physical and biological of the species. sites of occurrence. features. For example, features in this When determining proposed critical We used ARCGIS to delineate the proposed critical habitat designation habitat boundaries, we made every specific stream segments occupied by may require special management due to effort to avoid including developed the Cumberland darter at the time of threats posed by resource extraction areas such as lands covered by listing, and those locations outside the (coal and gravel mining, silviculture, buildings, pavement, and other geographical area occupied by the natural gas and oil exploration structures because such lands usually species at the time it was listed that activities), agricultural activities (row lack physical and biological features for were determined to be essential for the crops and livestock), lack of adequate endangered species. The scale of the conservation of the species. Areas riparian buffers, construction and maps we prepared under the parameters proposed for critical habitat for the maintenance of State and county roads, for publication within the Code of Cumberland darter include only stream nonpoint source pollution arising from Federal Regulations may not reflect the channels within the ordinary high water a wide variety of human activities, and exclusion of such developed lands. Any line and do not contain any developed canopy loss caused by infestations of such lands inadvertently left inside areas or structures. The designation of the hemlock wooly adelgid. These critical habitat boundaries shown on the critical habitat does not imply that lands threats are in addition to random effects maps of this proposed rule have been outside of critical habitat do not play an of drought, floods, or other natural excluded by text in the proposed rule important role in the conservation of the phenomena. Other activities that may and are not proposed for designation as Cumberland darter. affect physical and biological features in critical habitat. Therefore, if the critical We are proposing to designate as the proposed critical habitat units habitat is finalized as proposed, a critical habitat all stream reaches in include those listed in the Effects of Federal action involving these lands occupied habitat. We have defined Critical Habitat Designation section would not trigger section 7 consultation occupied habitat as those stream reaches below. with respect to critical habitat and the occupied at the time of listing and still Management activities that could requirement of no adverse modification known to be occupied by the ameliorate these threats include, but are unless the specific action would affect Cumberland darter. These stream not limited to: Use of BMPs designed to the physical and biological features in reaches comprise the entire known reduce sedimentation, erosion, and bank the adjacent critical habitat. The range of the species. As discussed side destruction; moderation of surface designation of critical habitat does not above, currently occupied habitat for the and ground water withdrawals to imply that lands outside of critical Cumberland darter is limited to 13 maintain natural flow regimes; increase habitat do not play an important role in streams in McCreary and Whitley of stormwater management and the conservation of the species. Counties, Kentucky, and Campbell and reduction of stormwater flows into the Scott Counties, Tennessee. All currently systems; preservation of headwater Cumberland Darter occupied areas contain the physical and springs and streams; regulation of off- We are proposing to designate critical biological features of the species. road vehicle use; and reduction of other habitat in areas within the geographical To identify essential areas outside of watershed and floodplain disturbances area occupied by the Cumberland darter the geographical area occupied at the that release sediments, pollutants, or at the time of listing in 2011. We also time of listing, we focused on nutrients into the water. are proposing to designate specific areas identifying areas historically occupied In summary, we find that the areas we outside the geographical area occupied (currently unoccupied) in the upper are proposing as critical habitat for the by the species at the time of listing Cumberland River basin in Kentucky

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(McCreary and Whitley Counties) and lands outside of the geographical area the upstream and downstream limits of Tennessee (Campbell and Scott occupied at the time of listing that we each critical habitat unit, we identified Counties). We then assessed the critical determined are essential to the landmarks (bridges, confluences, road life-history components of the conservation of the Cumberland darter. crossings, and dams), and in some Cumberland darter, as they relate to the Thirteen units are proposed for instances latitude and longitude physical and biological features. We designation based on sufficient elements coordinates and section lines above and determined the appropriate length of of physical and biological features below the upper and lowermost stream segments by identifying the present to support Cumberland darter reported locations of the rush darter, in upstream and downstream limits of life-history processes. We consider these each stream reach to ensure unoccupied sections necessary for the thirteen units to contain all of the incorporation of all potential sites of conservation of the Cumberland darter. identified elements of physical and occurrence. In addition, within the Cove The unoccupied reaches we are biological features and to support Spring run and Tapawingo or Penny proposing as critical habitat were not multiple life-history processes for the Spring run, the total area of water that occupied by the Cumberland darter at Cumberland darter. Two additional is pooled, and is rush darter habitat, was the time of listing, but they are located units are proposed for designation calculated in hectares (acres). The within the historical range of the because we consider them to be proposed critical habitat areas were then species. During our evaluation of essential to the conservation of the mapped using ARCGIS to produce the unoccupied stream reaches that could species, and they may require special critical habitat map. be essential for the conservation of the management considerations or We are proposing to designate as Cumberland darter, we considered the protection. critical habitat all stream and spring availability of potential habitat reaches in occupied habitat. We have throughout the historical range that may Rush Darter defined occupied habitat as those be essential to the survival and We are proposing to designate critical stream reaches occupied at the time of conservation of the species. We habitat in areas within the geographical listing and still known to be occupied eliminated from consideration streams area occupied by the rush darter at the by the rush darter; these stream reaches with degraded habitat and water quality time of listing in 2011. We are not comprise the entire known range of the conditions and other streams with currently proposing to designate any rush darter. We are not proposing to potentially suitable habitat, but areas outside the geographical area designate any areas outside the separated from basins with occupied occupied by the rush darter because occupied range of the species because habitats. This screening process occupied areas are sufficient for the occupied areas are sufficient for the produced two unoccupied stream conservation of the species. conservation of the species, and because reaches (Indian Creek and Kilburn We used information from surveys the historical range of the rush darter, Fork), which we are proposing as and reports prepared by the Alabama beyond currently occupied areas, is critical habitat. These reaches are Department of Conservation and Natural unknown and dispersal beyond the adjacent to currently occupied areas Resources, Alabama Geological Survey, current range is not likely due to where there is potential for natural Samford University, University of dispersal barriers. Areas proposed for dispersal and reoccupation by the Alabama, the U.S. Forest Service, the critical habitat for the rush darter below species. Natural Resources Conservation Service, include only stream channels within the Currently occupied habitats of the and the Service to identify the specific ordinary high water line and spring pool Cumberland darter are highly localized locations occupied by the rush darter. areas and do not contain any developed and fragmented, with populations Currently, occupied habitat for the areas or structures. separated from one another by an species is limited and isolated. The We are proposing for designation as average distance of 30.5 stream km (19 species is currently located within critical habitat streams that we have stream mi). As explained above, this tributaries of three watersheds in three determined were occupied at the time of fragmentation and isolation of counties in Alabama: the Turkey Creek listing and contain sufficient elements populations reduces the amount of watershed (Jefferson County) (Drennen of physical and biological features to space for rearing and reproduction, 2008, pers. obs.); the Clear Creek support life-history processes essential reduces the connectivity between watershed (Winston County); and the to the conservation of rush darter. Eight populations, and decreases genetic Cove Creek watershed (Etowah County). units are proposed for designation based diversity. Long-term viability is founded In the Turkey Creek watershed, the on sufficient elements of physical and on the conservation of numerous local species is found in four tributaries biological features present to support populations that can move freely including Beaver Creek, an unnamed rush darter life-history processes. Some between habitats and exchange genetic tributary to Beaver Creek, the Highway units contain all of the identified information. These reaches are essential 79 site, and Tapawingo or Penny elements of physical and biological to the Cumberland darter because they Springs. In the Clear Creek watershed, it features and support multiple life- provide additional habitat for is found in Wildcat Branch, Doe Branch, history processes. Some units contain population expansion and will promote and Mill Creek. In the Cove Creek only some elements of the physical and connectivity and genetic exchange watershed, it found in Little Cove Creek, biological features necessary to support between populations; in addition both Cove Spring and spring run, and the rush darter’s particular use of that streams support diverse fish Bristow Creek. habitat. assemblages, including federally listed Following the identification of the and at-risk species. specific locations occupied by the rush Yellowcheek Darter We are proposing for designation as darter, we determined the appropriate We are proposing to designate critical critical habitat streams that we length of stream segments by identifying habitat in areas within the geographical determined were occupied at the time of the upstream and downstream limits of area occupied by the yellowcheek darter listing and contain sufficient elements these occupied sections necessary for at the time of listing in 2011. We are not of physical and biological features to the conservation of the rush darter. currently proposing to designate any support life-history processes essential Because populations of rush darters are areas outside the geographical area for the conservation of the species, and isolated due to dispersal barriers, to set occupied by the yellowcheek darter

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because occupied areas are sufficient for area occupied by the chucky madtom Laurel Dace the conservation of the species. darter at the time of listing in 2011. We We are proposing to designate critical We used information from surveys are not currently proposing to designate habitat in areas within the geographical and reports prepared by Arkansas State any areas outside the geographical areas area occupied by the laurel dace at the University, Arkansas Tech University, occupied by the chucky madtom at the time of listing in 2011. We are not Arkansas Game and Fish Commission, time of listing because the historical currently proposing to designate any Arkansas Department of Environmental range, beyond currently occupied areas, areas outside the geographical area Quality, and the Service to identify the is not well known. occupied by the laurel dace because specific locations occupied by the We used information from surveys occupied areas are sufficient for the yellowcheek darter. We identified those and reports prepared by Conservation conservation of the species. areas to propose for designation as Fisheries, Inc., and the Tennessee We used information from surveys critical habitat, within the geographical Valley Authority to identify the specific and reports prepared by the Tennessee area occupied by the species at the time locations occupied by the chucky Valley Authority, Tennessee Wildlife of listing, that contain the physical and madtom. Currently, occupied habitat for Resources Agency, University of biological features of the yellowcheek the species is limited and isolated. At Tennessee, and the Service to identify darter and which may require special the time of listing, the current range of the specific locations occupied by the management consideration or the chucky madtom was restricted to an laurel dace. Currently, occupied habitat protection. All of the areas we approximately 3-km (1.8-mi) reach of for the species is limited and isolated. considered for designation are currently Little Chucky Creek in Greene County, The species is currently located in three part of ongoing recovery initiatives for Tennessee. this species and are targeted for special independent systems: Soddy Creek, the Following the identification of the Sale Creek system, and the Piney River management considerations. specific locations occupied by the We used ARCGIS to delineate the system. Following the identification of chucky madtom, we determined the specific stream segments occupied by the specific locations occupied by the appropriate length of stream segments the yellowcheek darter at the time of laurel dace, we determined the by identifying the upstream and listing, which contain the physical and appropriate length of stream segments downstream limits of these occupied biological features essential to the by identifying the upstream and sections necessary for the conservation species. We assessed the critical life- downstream limits of these occupied of the species. To set the upstream and history components of the yellowcheek sections necessary for the conservation downstream limits of the single critical darter, as they relate to habitat. of the laurel dace. Because populations habitat unit, we identified landmarks Delineations were based on the best of laurel dace are isolated due to (bridges, confluences, and road available scientific information dispersal barriers, to set the upstream indicating portions of streams crossings) above and below the upper and downstream limits of each critical containing necessary physical and and lowermost reported locations of the habitat unit, we identified landmarks biological features necessary to support chucky madtom in Little Chucky Creek (bridges, confluences, and road the yellowcheek darter. We set the to ensure incorporation of all potential crossings), and in some instances upstream and downstream limits of sites of occurrence. The proposed latitude and longitude coordinates and each critical habitat unit by identifying critical habitat areas were then mapped section lines above and below the upper landmarks (bridges, confluences, road using ARCGIS to produce the critical and lowermost reported locations of the crossings, dams, reservoir inundation habitat unit map. laurel dace, in each stream reach to elevations) above and below the upper We are proposing to designate as ensure incorporation of all potential and lowermost reported locations of the critical habitat a single stream reach in sites of occurrence. The proposed yellowcheek darter in each stream reach Little Chucky Creek, which is occupied critical habitat areas were then mapped to ensure incorporation of all potential habitat. This stream reach comprises the using ARCGIS to produce the critical sites of occurrence. Areas proposed as entire known range of the chucky habitat unit maps. yellowcheek darter critical habitat madtom. The proposed unit contains We are proposing to designate as include only stream channels within the one or more of the physical and critical habitat all stream reaches in ordinary high water line and do not biological features in the appropriate occupied habitat. We have defined contain any developed areas or quantity and spatial arrangement occupied habitat as those stream reaches structures. essential to the conservation of this occupied at the time of listing and still We are proposing for designation as species and support multiple life known to be occupied by the laurel critical habitat streams that we have processes for the chucky madtom. The dace; these stream reaches comprise the determined were occupied at the time of area proposed for critical habitat for the entire known range of the laurel dace. listing and contain sufficient elements chucky madtom includes only the The six proposed units contain one or of physical and biological features to stream channel within the ordinary high more of the physical and biological support life-history processes essential water line and does not contain any features in the appropriate quantity and to the conservation of the yellowcheek developed areas or structures. spatial arrangement essential to the darter. Four units are proposed for We are proposing for designation as conservation of this species and support designation based on sufficient elements critical habitat a stream that we have multiple life-history processes for the of physical and biological features determined was occupied at the time of laurel dace. Areas proposed for critical present to support yellowcheek darter listing and contain sufficient elements habitat for the laurel dace include only life-history processes. All units contain of physical and biological features to stream channels within the ordinary all of the identified elements of physical support life-history processes essential high water line and do not contain any and biological features and support to the conservation of the chucky developed areas or structures. multiple life-history processes. madtom. One unit is proposed for We are proposing for designation of designation based on sufficient elements critical habitat streams that we Chucky Madtom of physical and biological features determined were occupied at the time of We are proposing to designate critical present to support chucky madtom life- listing and contain sufficient elements habitat in areas within the geographical history processes. of physical and biological features to

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support life-history processes essential critical habitat areas we describe below Tennessee, landowners own the land to the conservation of the laurel dace. constitute our current best assessment of under non-navigable streams (e.g., the Six units are proposed for designation areas that meet the definition of critical stream channel or bottom), but the water based on sufficient elements of physical habitat for the Cumberland darter. The is under State jurisdiction. Portions of and biological features present to 15 areas we propose as critical habitat the public-to-private boundary for units support laurel dace life-history are as follows: (1) Bunches Creek, (2) 6, 7, 8, 9, and 13 were located along the processes. All units contain all of the Calf Pen Fork, (3) Youngs Creek, (4) mid-line of the stream channel; lengths identified elements of physical and Barren Fork, (5) Indian Creek, (6) Cogur for these segments were divided equally biological features and support multiple Fork, (7) Kilburn Fork, (8) Laurel Fork, between public and private ownership. life-history processes. (9) Laurel Creek, (10) Elisha Branch, (11) Table 1 shows the occupancy of the Proposed Critical Habitat Designation Jenneys Branch, (12) Wolf Creek, (13) units and ownership of the proposed Jellico Creek, (14) Rock Creek, and (15) designated areas for the Cumberland Cumberland Darter Capuchin Creek. Critical habitat units darter. We are proposing 15 units as critical are either in private ownership or public habitat for the Cumberland darter. The ownership (DBNF). In Kentucky and

TABLE 1—OCCUPANCY AND OWNERSHIP OF THE PROPOSED CRITICAL HABITAT UNITS FOR THE CUMBERLAND DARTER

Federal, State, Private County, City Total length Unit Location Occupied ownership ownership km (miles) km (mi) km (mi)

1 ...... Bunches Creek ...... Yes ...... 0 5.3 (3.3) 5.3 (3.3) 2 ...... Calf Pen Fork ...... Yes ...... 0 2.9 (1.8) 2.9 (1.8) 3 ...... Youngs Creek ...... Yes ...... 7.4 (4.6) 0 7.4 (4.6) 4 ...... Barren Fork ...... Yes ...... 0 6.3 (3.9) 6.3 (3.9) 5 ...... Indian Creek ...... No ...... 0 4.0 (2.5) 4.0 (2.5) 6 ...... Cogur Fork ...... Yes ...... 2.7 (1.7) 5.9 (3.7) 8.6 (5.4) 7 ...... Kilburn Fork ...... No ...... 0.9 (0.6) 3.7 (2.3) 4.6 (2.9) 8 ...... Laurel Fork ...... Yes ...... 1.3 (0.8) 2.2 (1.4) 3.5 (2.2) 9 ...... Laurel Creek ...... Yes ...... 0.6 (0.4) 8.8 (5.5) 9.4 (5.9) 10 ...... Elisha Branch ...... Yes ...... 0 2.1 (1.3) 2.1 (1.3) 11 ...... Jenneys Branch ...... Yes ...... 0 3.1 (1.9) 3.1 (1.9) 12 ...... Wolf Creek ...... Yes ...... 6.3 (3.9) 0 6.3 (3.9) 13 ...... Jellico Creek ...... Yes ...... 8.2 (5.1) 3.3 (2.1) 11.5 (7.2) 14 ...... Rock Creek ...... Yes ...... 3.9 (2.4) 2.2 (1.4) 6.1 (3.8) 15 ...... Capuchin Creek ...... Yes ...... 3.4 (2.1) 0.8 (0.5) 4.2 (2.6)

Total ...... 85.3 (53.2)

We present brief descriptions of all Unit 1: Bunches Creek, Whitley County, Cumberland River. This Wild River units and reasons why they meet the Kentucky corridor extends from Summer Shoals downstream to the backwaters of Lake definition of critical habitat for the This unit is located between Kentucky Cumberland (KRS 146.241). The Cumberland darter. The proposed Highway 90 (KY 90) and the Bunches Creek-Cumberland River critical habitat units include the stream Cumberland River and includes 5.3 km confluence is located approximately 3.0 channels of the creek within the (3.3 mi) of Bunches Creek from the km (1.9 mi) upstream of Cumberland ordinary high water line. As defined in confluence of Seminary Branch and 33 CFR 329.11, the ordinary high water Amos Falls Branch downstream to its Falls. The Bunches Creek watershed is mark on nontidal rivers is the line on confluence with the Cumberland River. relatively undisturbed and access is the shore established by the fluctuations Live Cumberland darters have been limited (no road crossings). The channel of water and indicated by physical captured at two sites within proposed within proposed Unit 1 is relatively characteristics, such as a clear, natural Unit 1 (Thomas 2007, pp. 11–12), stable, with excellent instream habitat line impressed on the bank; shelving; specifically at the mouth of Bunches (PCE 1). There is an abundance of pool changes in the character of soil; Creek and just below its confluence and run habitats (PCE 1), with relatively destruction of terrestrial vegetation; the with Calf Pen Fork. This unit was silt-free sand and bedrock substrates (PCE 2) and adequate instream flows presence of litter and debris; or other included in the geographical area (PCE 3). Water quality is good to appropriate means that consider the occupied by the species at the time of excellent (PCE 4), as evidenced by characteristics of the surrounding areas. listing. This unit is located entirely on diverse fish and macroinvertebrate For each stream reach proposed as a federal lands within the DBNF. Land communities (PCE 5). critical habitat unit, the upstream and and resource management decisions and downstream boundaries are described activities within the DBNF are guided Within proposed Unit 1, the generally below. More precise by DBNF’s LRMP (USFS 2004, pp. 1– Cumberland darter and its habitat may definitions are provided in the Proposed 14). The lower portion of Bunches Creek require special management Regulation Promulgation at the end of (stream km 0 to 0.3 (mi 0 to 0.1)) flows considerations or protection to address through a designated Kentucky Wild potential adverse effects associated with this proposed rule. River corridor (KRS 146.200 to 146.360) silviculture-related activities, natural that extends along an approximately gas and oil exploration activities in 25.7-km (16-mi) reach of the headwater reaches, illegal off-road

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vehicle use and other recreational agriculture, silviculture, and residential Despite these significant adverse activities, nonpoint source pollution development have contributed to a more effects, habitat conditions have originating in headwater reaches, and open riparian zone, increased bank improved since 2008, and are now canopy loss caused by infestations of erosion, and some siltation of instream similar to those described for proposed the hemlock wooly adelgid. habitats. Despite these impacts, Units 1 and 2. The watershed is mostly proposed Unit 3 continues to provide forested, with relatively stable channels Unit 2: Calf Pen Fork, Whitley County, pool and run habitats with suitable sand (PCE 1), abundant pool and run habitats Kentucky and bedrock substrates for Cumberland (PCE 1), relatively silt-free sand and This unit includes 2.9 km (1.8 mi) of darters to use in spawning, foraging, and bedrock substrates (PCE 2), adequate Calf Pen Fork, a tributary of Bunches other behaviors (PCEs 1 and 2). Flow is flow (PCE 3), adequate water quality Creek, from its confluence with Polly adequate as measured during years with (PCE 4), and a diverse macroinvertebrate Hollow downstream to its confluence average rainfall (PCE 3), water quality is community (PCE 5). with Bunches Creek. Live Cumberland adequate (PCE 4), and macroinvertebrate Within this unit, the Cumberland darters have been captured in Calf Pen prey items are present (PCE 5). darter and its habitat may require Fork just above its confluence with Within this unit, the Cumberland special management considerations or Bunches Creek (Thomas 2007, pp. 11– darter and its habitat may require protection to address potential adverse 12). This unit was included in the special management considerations or effects caused by resource extraction geographical area occupied by the protection to address potential adverse (mining, silviculture, natural gas and oil species at the time of listing. This unit effects caused by resource extraction exploration activities), lack of adequate is located entirely on federal lands (mining, silviculture, natural gas and oil riparian buffers, construction and within the DBNF. Land and resource exploration activities), agricultural maintenance of county roads, illegal off- management decisions and activities activities (livestock), lack of adequate road vehicle use, nonpoint source within the DB proposed NF are guided riparian buffers, construction and pollution arising from a wide variety of by DBNF’s LRMP (USFS 2004, pp. 1– maintenance of State and county roads, human activities, and canopy loss 14). Similar to the watershed of Unit 1, illegal off-road vehicle use, nonpoint caused by infestations of the hemlock the Calf Pen Fork watershed is relatively source pollution arising from a wide wooly adelgid. undisturbed and access is limited (no variety of human activities, and canopy road crossings). Within proposed Unit 2, loss caused by infestations of the Unit 5: Indian Creek, McCreary County, the channel is relatively stable, with hemlock wooly adelgid. Kentucky excellent instream habitat (PCE 1), an Proposed Unit 5 includes 4.0 km (2.5 abundance of run and pool habitats Unit 4: Barren Fork, McCreary County, mi) of Indian Creek from its confluence (PCE 1), relatively silt-free sand and Kentucky with an unnamed tributary, downstream bedrock substrates (PCE 2), and Proposed Unit 4 includes 6.3 km (3.9 to its confluence with Barren Fork. Live adequate instream flows (PCE 3). Water mi) of Barren Fork from its confluence Cumberland darters have not been quality is good to excellent (PCE 4), with an unnamed tributary downstream captured within proposed Unit 5. This with diverse fish and macroinvertebrate to its confluence with Indian Creek. unit was not included in the communities (PCE 5). Based on survey results by Thomas geographical area occupied by the Within proposed Unit 2, the (2007, pp. 11–12) and Stephens (2009, species at the time of listing and it is not Cumberland darter and its habitat may pp. 10–23), Barren Fork supports the currently occupied by the species. require special management most robust population of Cumberland This unit is located entirely on federal considerations or protection to address darters within the species’ range. Over lands within the DBNF. Land and potential adverse effects associated with the past 4 years, over 75 Cumberland resource management decisions and silviculture-related activities, natural darters have been observed within this activities within the DBNF are guided gas and oil exploration activities, illegal unit (Thomas 2007, pp. 11–12; Stephens by DBNF’s LRMP (USFS 2004, pp. 1– off-road vehicle use and other 2009, pp. 10–23). This unit was 14). recreational activities, nonpoint source included in the geographical area This unit is located within the pollution arising from headwater occupied by the species at the time of historical range of the species, and is reaches, and canopy loss caused by listing. This unit is located entirely on adjacent to currently occupied areas infestations of the hemlock wooly federal lands within the DBNF. Land where there is potential for natural adelgid. and resource management decisions and dispersal and reoccupation by the activities within the DBNF are guided Cumberland darter. This unit is Unit 3: Youngs Creek, Whitley County, by DBNF’s LRMP (USFS 2004, pp. 1– essential to the conservation of the Kentucky 14). In the summer and fall of 2008, the Cumberland darter because it provides Proposed Unit 3 includes 7.4 km (4.6 Barren Fork watershed was adversely additional habitat for population mi) of Youngs Creek from Brays Chapel affected by several large sedimentation expansion and will promote Road downstream to its confluence with events originating from a county park connectivity and genetic exchange the Cumberland River. Live Cumberland construction site in the headwaters of between adjacent units to the south darters have been captured within the basin. Inadequate site planning and (Unit 4, Barren Fork) and to the north proposed Unit 3 (Thomas 2007, pp. 11– poor BMP implementation allowed (Unit 6, Cogur Fork). 12), specifically at the KY 204 bridge significant quantities of sediment to crossing. This unit was included in the leave the construction site and enter Unit 6: Cogur Fork, McCreary County, geographical area occupied by the headwater tributaries of Barren Fork. Kentucky species at the time of listing. This unit The sediment was carried downstream Proposed Unit 6 includes 8.6 km (5.4 is located entirely on private land. The into the mainstem of Barren Fork, mi) of Cogur Fork from its confluence watershed of Youngs Creek is less eventually affecting the entire reach of with an unnamed tributary downstream forested than proposed Units 1 and 2, proposed Unit 4. Until the construction to its confluence with Indian Creek. with scattered residences and small site was stabilized in 2009, important Live Cumberland darters have been farms. The channel is relatively stable spawning and foraging habitats for the captured at several locations within an (PCE 1), but activities associated with Cumberland darter were degraded. approximately 1-km (0.62-mi) reach

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upstream of the KY 1045 road crossing geographical area occupied by the exploration activities), lack of adequate (Thomas 2010, pers. comm.). This unit species at the time of listing, and it is riparian buffers, construction and was included in the geographical area not currently occupied by the species. maintenance of county roads, illegal off- occupied by the species at the time of The majority of this unit (3.7 km (2.3 road vehicle use, nonpoint source listing. The majority of this unit (5.9 km mi)) is in public ownership (DBNF), pollution arising from a wide variety of (3.7 mi)) is in public ownership (DBNF), with the remainder of the unit (0.9 km human activities, and canopy loss with the remainder of the unit (2.7 km (0.6 mi)) in private ownership. Land and caused by infestations of the hemlock (1.7 mi)) in private ownership. Land and resource management decisions and wooly adelgid. resource management decisions and activities within the DBNF are guided Unit 9: Laurel Creek, McCreary County, activities within the DBNF are guided by DBNF’s LRMP (USFS 2004, pp. 1– Kentucky by DBNF’s LRMP (USFS 2004, pp. 1– 14). 14). This unit is located within the Proposed Unit 9 includes 9.4 km (5.9 Cumberland darters have been historical range of the species, and is mi) of Laurel Fork Creek from Laurel captured within proposed Unit 6, but adjacent to currently occupied areas Fork Reservoir downstream to its the population is considered to be small where there is potential for natural confluence with Jenneys Branch. Live (Thomas 2010, pers. comm.). From 2008 dispersal and reoccupation by the Cumberland darters have been captured to present, the fauna has been bolstered Cumberland darter. This unit is within proposed Unit 9 (Thomas 2007, through propagation and augmentation essential to the conservation of the pp. 11–12), specifically just upstream of efforts by KDFWR, Conservation Cumberland darter because it provides its confluence with Elisha Branch and at Fisheries, Inc. (CFI), and the Service additional habitat for population the KY 478 bridge crossing. This unit (Thomas et al. 2010, p. 107). Initial expansion and will promote was included in the geographical area brood stock were collected in 2008, with connectivity and genetic exchange occupied by the species at the time of subsequent releases of propagated between adjacent units to the south listing. The majority of this unit (8.8 km darters in 2009 (60 individuals (inds)) (Unit 6, Cogur Fork) and to the north (5.5 mi)) is in public ownership (DBNF), and 2010 (335 inds). Both tagged (Unit 8, Laurel Fork). with the remainder of the unit (0.6 km (propagated, 50 inds) and non-tagged (0.4 mi)) in private ownership. Land and Unit 8: Laurel Fork, McCreary County, resource management decisions and (native, 4 inds) darters were observed Kentucky during recent surveys in November activities within the DBNF are guided 2010. Individuals tagged and released Proposed Unit 8 includes 3.5 km (2.2 by DBNF’s LRMP (USFS 2004, pp. 1– by KDFWR and CFI traveled distances mi) of Laurel Fork from its confluence 14). ranging from 0.4 to 0.7 km (0.2 to 0.4 with Tom Fork downstream to its The watershed of Laurel Creek is mi) between their release date of confluence with Indian Creek. Live relatively intact, with extensive forest September 22, 2010, and their recapture Cumberland darters have been captured cover and few roads. The channel date of November 9, 2010 (period of 48 within proposed Unit 8 (Thomas 2007, within Proposed Unit 9 is relatively days) (Thomas 2010, pers. comm.). pp. 11–12), specifically just upstream of stable (PCE 1), with suitable instream Similar to other units located entirely its confluence with Kilburn Fork. This habitat to support the life-history or predominately on the DBNF (Units 1, unit was included in the geographical functions of the Cumberland darter. 2, 4, and 5), this unit has relatively area occupied by the species at the time There is an abundance of pool and run stable channels (PCE 1), abundant pool of listing. habitats (PCE 1), with relatively silt-free and run habitats (PCE 1), relatively silt- The majority of this unit (2.2 km (1.4 sand and bedrock substrates (PCE 2) and free sand and bedrock substrates (PCE mi)) is in public ownership (DBNF), adequate instream flows (PCE 3). Water 2), adequate flow (PCE 3), adequate with the remainder of the unit (1.3 km quality is good to excellent (PCE 4), water quality (PCE 4), and a diverse (0.8 mi)) in private ownership. Land and with a diverse macroinvertebrate macroinvertebrate community (PCE 5). resource management decisions and community (PCE 5). Within this unit, the Cumberland activities within the DBNF are guided Within this unit, the Cumberland darter and its habitat may require by DBNF’s LRMP (USFS 2004, pp. 1– darter and its habitat may require special management considerations or 14). special management considerations or protection to address potential adverse Similar to other streams with major protection to address potential adverse effects caused by resource extraction portions of their basins in the DBNF, the effects caused by resource extraction (mining, silviculture, natural gas and oil watershed of Laurel Fork is relatively (mining, silviculture, natural gas and oil exploration activities), lack of adequate intact and access is limited (limited exploration activities), lack of adequate riparian buffers, construction and roads and residential development). The riparian buffers, construction and maintenance of county roads, illegal off- channel within proposed Unit 8 is maintenance of county roads, illegal off- road vehicle use, nonpoint source relatively stable (PCE 1), with suitable road vehicle use, nonpoint source pollution arising from a wide variety of instream habitat to support the life- pollution arising from a wide variety of human activities, and canopy loss history functions of the Cumberland human activities, and canopy loss caused by infestations of the hemlock darter. There is an abundance of pool caused by infestations of the hemlock wooly adelgid. and run habitats (PCE 1), with relatively wooly adelgid. silt-free sand and bedrock substrates Unit 7: Kilburn Fork, McCreary County, (PCE 2) and adequate flows (PCE 3). Unit 10: Elisha Branch, McCreary Kentucky Water quality is good to excellent (PCE County, Kentucky Proposed Unit 7 includes 4.6 km (2.9 4), as evidenced by diverse fish and Proposed Unit 10 includes 2.1 km (1.3 mi) of Kilburn Fork from its confluence macroinvertebrate communities (PCE 5). mi) of Elisha Branch from its confluence with an unnamed tributary downstream Within this unit, the Cumberland with an unnamed tributary (36.70132, to its confluence with Laurel Fork. Live darter and its habitat may require ¥84.40843) downstream to its Cumberland darters have not been special management considerations or confluence with Laurel Creek. Live captured within proposed Unit 7 over protection to address potential adverse Cumberland darters have been captured the last 15 years (Thomas 2007, pp. 11– effects caused by resource extraction within proposed Unit 10 (Thomas 2007, 12). This unit was not included in the (mining, silviculture, natural gas and oil pp. 11–12), specifically just upstream of

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its confluence with Laurel Creek. This protection to address potential adverse and at the Gum Fork and Jellico Creek unit was included in the geographical effects caused by resource extraction confluence (O’Bara 1988, p. 12; Thomas area occupied by the species at the time (mining, silviculture, natural gas and oil 2007, pp. 11–12). This unit was of listing. This unit is located entirely exploration activities), lack of adequate included in the geographical area on public lands within the DBNF. Land riparian buffers, illegal off-road vehicle occupied by the species at the time of and resource management decisions and use, nonpoint source pollution arising listing. A portion of this unit in activities within the DBNF are guided from a wide variety of human activities, Kentucky (3.3 km (2.1 mi)) is in public by DBNF’s LRMP (USFS 2004, pp. 1– and canopy loss caused by infestations ownership (DBNF), with the remainder 14). of the hemlock wooly adelgid. of the unit (8.2 km (5.1 mi)) in private The watershed of Elisha Branch is ownership. Land and resource relatively intact, with extensive forest Unit 12: Wolf Creek, Whitley County, Kentucky management decisions and activities cover and no road crossings. Within within the DBNF are guided by DBNF’s proposed Unit 10, the channel is Proposed Unit 12 includes 6.3 km (3.9 LRMP (USFS 2004, pp. 1–14). relatively stable, with excellent instream mi) of Wolf Creek from its confluence Land use within the watershed of habitat (PCE 1), an abundance of run with Sheep Creek downstream to Wolf Jellico Creek is predominately forest, and pool habitats (PCE 1), relatively silt- Creek River Road. Live Cumberland with scattered residences and small free sand and bedrock substrates (PCE darters have been captured within farms (cattle and hay production). The 2), and adequate flows (PCE 3). Water proposed Unit 12 just downstream of channel in proposed Unit 13 is quality is good to excellent (PCE 4), the Little Wolf Creek River Road bridge relatively stable (PCE 1), but activities crossing (Thomas 2007, pp. 11–12). This with diverse fish and macroinvertebrate associated with agriculture, silviculture, unit was included in the geographical communities (PCE 5). and residential development have area occupied by the species at the time Within this unit, the Cumberland contributed to a more open riparian of listing. darter and its habitat may require zone, increased bank erosion, and some special management considerations or This unit is located entirely on private siltation of instream habitats. Despite protection to address potential adverse land. Land use within the watershed of these impacts, proposed Unit 13 effects caused by resource extraction Wolf Creek is similar to proposed Unit continues to provide pool and run (mining, silviculture, natural gas and oil 3 and is less forested than units within habitats with suitable sand and bedrock exploration activities), lack of adequate the DBNF. The channel is relatively substrates for Cumberland darters to use riparian buffers, illegal off-road vehicle stable (PCE 1), but activities associated in spawning, foraging, and other use, nonpoint source pollution arising with agriculture, silviculture, and behaviors (PCEs 1 and 2). Flow is from a wide variety of human activities, residential development have adequate as measured during years with and canopy loss caused by infestations contributed to a more open riparian average rainfall (PCE 3), water quality is of the hemlock wooly adelgid. zone, increased bank erosion, and some siltation of instream habitats. Despite adequate (PCE 4), and macroinvertebrate Unit 11: Jenneys Branch, McCreary these impacts, proposed Unit 12 prey items are present (PCE 5). County, Kentucky continues to provide pool and run Within this unit, the Cumberland Proposed Unit 11 includes 3.1 km (1.9 habitats with suitable sand and bedrock darter and its habitat may require mi) of Jenneys Branch from its substrates for Cumberland darters to use special management considerations or confluence with an unnamed tributary in spawning, foraging, and other protection to address potential adverse (36.73680, -84.42420) downstream to its behaviors (PCEs 1 and 2). Flow is effects caused by resource extraction confluence with Laurel Creek. Live adequate as measured during years with (mining, silviculture, natural gas and oil Cumberland darters have been captured average rainfall (PCE 3), water quality is exploration activities), agricultural within proposed Unit 11 (Thomas 2007, adequate (PCE 4), and macroinvertebrate activities (livestock), lack of adequate pp. 11–12), specifically just upstream of prey items are present (PCE 5). riparian buffers, construction and its confluence with Laurel Creek. This Within this unit, the Cumberland maintenance of State and county roads, unit was included in the geographical darter and its habitat may require illegal off-road vehicle use, and area occupied by the species at the time special management considerations or nonpoint source pollution arising from of listing. This unit is located entirely protection to address potential adverse a wide variety of human activities. on public lands within the DBNF. Land effects caused by resource extraction Unit 14: Rock Creek, McCreary County, and resource management decisions and (mining, silviculture, natural gas and oil Kentucky activities within the DBNF are guided exploration activities), agricultural by DBNF’s LRMP (USFS 2004, pp. 1– activities (livestock), lack of adequate Proposed Unit 14 includes 6.1 km (3.8 14). riparian buffers, construction and mi) of Rock Creek from its confluence The watershed of Jenneys Branch is maintenance of State and county roads, with Sid Anderson Branch downstream relatively intact and remote, with illegal off-road vehicle use, and to its confluence with Jellico Creek. Live extensive forest cover and only one road nonpoint source pollution arising from Cumberland darters have been captured crossing in its headwaters. Within a wide variety of human activities. within proposed Unit 14 just above the proposed Unit 11, the stream channel is mouth of Rock Creek at its confluence relatively stable, with excellent instream Unit 13: Jellico Creek, McCreary County, with Jellico Creek (Thomas 2007, pp. habitat (PCE 1), an abundance of run Kentucky, and Scott County, Tennessee 11–12). This unit was included in the and pool habitats (PCE 1), relatively silt- Proposed Unit 13 includes 11.5 km geographical area occupied by the free sand and bedrock substrates (PCE (7.2 mi) of Jellico Creek from its species at the time of listing. A portion 2), and adequate instream flows (PCE 3). confluence with Scott Branch, Scott of this unit (2.2 km (1.4 mi)) is in public Water quality is good to excellent (PCE County, Tennessee downstream to its ownership (DBNF), but the majority (3.9 4), with diverse fish and confluence with Capuchin Creek, km (2.4 mi)) is in private ownership. macroinvertebrate communities (PCE 5). McCreary County, Kentucky. Live Land and resource management Within this unit, the Cumberland Cumberland darters have been captured decisions and activities within the darter and its habitat may require within proposed Unit 13 at the Jellico DBNF are guided by DBNF’s LRMP special management considerations or Creek and Shut-In Branch confluence (USFS 2004, pp. 1–14).

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Most of the watershed is forested confluence with Hatfield Creek average rainfall (PCE 3), water quality is (especially along the ridge tops), but the downstream to its confluence with adequate (PCE 4), and macroinvertebrate valley floor has several open fields and Jellico Creek. Live Cumberland darters prey items are present (PCE 5). is easily accessible via Little Rock Creek have been captured within proposed Within this unit, the Cumberland Road. Portions of the channel in Unit 14 Unit 15 at the Kentucky-Tennessee State darter and its habitat may require have been modified by beaver (with line (Thomas 2007, pp. 11–12). This special management considerations or some ponding), but it continues to be unit was included in the geographical protection to address potential adverse relatively stable, with excellent instream area occupied by the species at the time effects caused by resource extraction habitat (PCE 1), an abundance of run of listing. A portion of this unit in (mining, silviculture, natural gas and oil and pool habitats (PCE 1), relatively silt- Kentucky (0.8 km (0.5 mi)) is in public exploration activities), agricultural free sand and bedrock substrates (PCE ownership (DBNF); the remainder in activities (livestock), lack of adequate 2), and adequate instream flows (PCE 3). Kentucky and Tennessee (3.4 km (2.1 riparian buffers, construction and Water quality is good to excellent (PCE mi)) is in private ownership. Land and maintenance of State and county roads, 4), with diverse fish and resource management decisions and illegal off-road vehicle use, and macroinvertebrate communities (PCE 5). activities within the DBNF are guided nonpoint source pollution arising from Within this unit, the Cumberland by DBNF’s LRMP (USFS 2004, pp. 1– a wide variety of human activities. darter and its habitat may require 14). special management considerations or Rush Darter protection to address potential adverse Land use within the watershed of effects caused by resource extraction Capuchin Creek is predominately forest, We are proposing eight units as (mining, silviculture, natural gas and oil with scattered residences and small critical habitat for the rush darter. The exploration activities), agricultural farms (cattle and hay production). The critical habitat areas described below activities (livestock), lack of adequate channel in proposed Unit 15 is constitute our current best assessment of riparian buffers, construction and relatively stable (PCE 1), but activities areas that meet the definition of critical maintenance of State and county roads, associated with agriculture, silviculture, habitat for the rush darter. The eight illegal off-road vehicle use, nonpoint and residential development have areas we propose as critical habitat are source pollution arising from a wide contributed to a more open riparian as follows: (1) Beaver Creek, (2) variety of human activities, and canopy zone, increased bank erosion, and some Unnamed Tributary to Beaver Creek and loss caused by infestations of the siltation of instream habitats. Despite Highway 79 Spring Site, (3) Tapawingo hemlock wooly adelgid. these impacts, proposed Unit 15 or Penny Spring and Spring Run, (4) continues to provide pool and run Wildcat Branch, (5) Mill Creek, (6) Doe Unit 15: Capuchin Creek, McCreary habitats with suitable sand and bedrock Branch, (7) Little Cove Creek, Cove County, Kentucky, and Campbell substrates for Cumberland darters to use Spring Site, and (8) Bristow Creek. County, Tennessee in spawning, foraging, and other Table 2 shows the occupancy of the Proposed Unit 15 includes 4.2 km (2.6 behaviors (PCEs 1 and 2). Flow is units and ownership of the proposed mi) of Capuchin Creek from its adequate as measured during years with designated areas for the rush darter.

TABLE 2—OCCUPANCY AND OWNERSHIP OF THE PROPOSED CRITICAL HABITAT UNITS FOR THE RUSH DARTER

Private State, county, Unit Location Occupied ownership city ownership Total length Total area** km (mi) km (mi) km (mi) ha (ac)

1 ...... Beaver Creek ...... Yes ...... 0.9 (0.6) < 0.1 (< 0.1) 1.0 (0.6) ...... 2 ...... Unnamed Tributary to Beaver Creek and High- Yes ...... 3.6 (2.2) 0.7 (0.4) 4.3 (2.6) ...... way 79 Spring Site. 3 ...... Tapawingo or Penny Spring and Spring Run ..... Yes ...... 0.6 (0.4) < 0.1 (< 0.06) 0.6 (0.4) 6.7 (16.5) 4 ...... Wildcat Branch ...... Yes ...... 6.6 (4.1) < 0.1 (< 0.06) 6.6 (4.1) ...... 5 ...... Mill Creek ...... Yes ...... 5.9 (3.7) < 0.1 (< 0.06) 5.9 (3.7) ...... 6 ...... Doe Branch ...... Yes ...... 4.3 (2.7) < 0.1 (< 0.06) 4.3 (2.7) ...... 7 ...... Little Cove Creek, Cove Spring, Spring Run ...... Yes ...... 11.2 (6.1) < 0.1 (< 0.06) 11.2 (6.1) 5.1 (12.7) 8 ...... Bristow Creek ...... Yes ...... 10.2 (6.3) < 0.1 (< 0.06) 10.2 (6.3) ......

Total * ...... 42.3 (26.9) 19.4 (21.7) * Totals may not sum due to rounding. ** Total area in ha (ac) are in private ownership.

We present brief descriptions of each established by the fluctuations of water streams and rivers. For the spring pools, unit and reasons why they meet the and indicated by physical the area was determined and delineated definition of critical habitat below. The characteristics such as a clear, natural by the presence of emergent vegetation proposed critical habitat units include water line impressed on the bank; patterns as noted on aerial photographs. the stream channels of the creek within shelving; changes in the character of For each stream reach of proposed the ordinary high water line, and the soil; destruction of terrestrial vegetation; critical habitat, the upstream and flooded spring pool in the case of the presence of litter and debris; or downstream boundaries are described Tapawingo or Penny Springs (Jefferson other appropriate means that consider generally below; more precise County) and Cove Springs (Etowah the characteristics of the surrounding descriptions are provided in the County). As defined in 33 CFR 329.11, areas. In Alabama, the riparian Proposed Regulation Promulgation at the ordinary high water line on nontidal landowner owns the stream to the the end of this proposed rule. rivers is the line on the shore middle of the channel for non-navigable

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Unit 1: Beaver Creek, Jefferson County, regime and habitat including: emergent 194), supporting populations of rush Alabama vegetation, water quality, water darters and providing supplemental Proposed Unit 1 includes 1.0 km (0.6 quantity, and stochastic events such as water quantity to the Unnamed mi) of Beaver Creek from the confluence drought. Populations of rush darters are Tributary to Beaver Creek (PCEs 1 and with Dry Creek, downstream to the small and isolated within specific 3). The reach contains adequate bottom confluence with Turkey Creek. This unit habitat sites of Beaver Creek. substrate and emergent vegetation for rush darters to use in spawning, was included in the geographical area Unit 2: Unnamed Tributary to Beaver foraging, and other life processes (PCE occupied by the species at the time of Creek and Highway 79 Spring Site, 2). The Highway 79 Spring site provides listing. Almost 0.9 km (0.6 mi), or 94 Jefferson County, Alabama habitat and spawning sites, and offers percent of this area is privately owned. Proposed Unit 2 includes 4.3 km (2.6 connectivity with rush darter The remaining 0.1 km (< 0.1 mi), or 6 mi) of the Unnamed Tributary of Beaver populations in the Unnamed Tributary percent, is publicly owned by the City Creek and a spring run. The site begins to Beaver Creek (PCE 1). of Pinson or Jefferson County in the at the Section 1 and 2 (T16S, R2W) line, Threats to the rush darter and its form of bridge crossings and road as taken from the U.S. Geological habitat that may require special easements. Survey 7.5 topographical map (Pinson management and protection of PCEs are: Beaver Creek contains adequate quadrangle), downstream to its Urbanization activities (such as channel bottom substrate and emergent confluence with Dry Creek, and modification for flood control, and vegetation for rush darters to use in includes a spring run beginning at the gravel extraction) that could result in spawning, foraging, and other life springhead (33.67449, ¥86.69300) just increased bank erosion; significant processes (PCE 2). Beaver Creek makes northwest of Old Pinson Road and changes in the existing flow regime due available additional habitat and intersecting with the Unnamed to inadequate stormwater management spawning sites, and offers connectivity Tributary to Beaver Creek on the west and impoundment construction, water with other rush darter populations side of Highway 79. This unit was diversion, or water withdrawal; within the Highway 79 Spring System included in the geographical area significant alteration of water quality; site and the Unnamed Tributary to occupied by the species at the time of and significant changes in stream bed Beaver Creek (PCE 1). listing. material composition and quality as a Beaver Creek provides habitat for the Almost 3.6 km (2.2 mi), or 85 percent, result of construction projects and road rush darters with adequate number of of this area is privately owned. The maintenance activities, off-road vehicle pools, riffles, runs (PCE 1), and remaining 0.7 km (0.4 mi), or 15 use, sewer, gas and water easements, emergent vegetation (PCE 2). These percent, is publicly owned by the City bridge construction, culvert and pipe geomorphic structures provide the of Pinson or Jefferson County in the installation, and other watershed and species with spawning, foraging, and form of bridge crossings and road floodplain disturbances that release resting areas (PCE 1), along with good easements. sediments or nutrients into the water. water quality, quantity, and flow, which The Unnamed Tributary to Beaver support the normal life stages and Creek supports populations of rush Unit 3: Tapawingo or Penny Spring and behavior of the rush darter (PCEs 3 and darters and is a feeder stream to Beaver Spring Run, Jefferson County, Alabama 4), the species’ prey sources (PCE 5), Creek (PCEs 1 and 2). The Unnamed Proposed Unit 3 includes 0.6 km (0.4 and associated aquatic vegetation. Tributary to Beaver Creek has been mi) of spring run, historically called Threats to the rush darter and its intensely geomorphically changed by Tapawingo Plunge, along with 6.7 ha habitat at Beaver Creek that may require man over the last 100 years. The (16.5 ac) of flooded spring basin making special management of the PCEs include majority of this reach has been up Penny Springs. Unit 3 is located the potential of: urbanization activities channelized for flood control, as it runs south of Turkey Creek, north of Bud (such as channel modification for flood parallel to Highway 79. There are Holmes Road, and just east of control, construction of impoundments, several bridge crossings, and the reach Tapawingo Trail Road. The east and gravel extraction) that could result has a history of industrial uses along the boundary is at (33.69903, -86.66528): 1.0 in increased bank erosion; significant bank. However, owing to the km (0.6 mi) west of Section Line 28 to changes in the existing flow regime due groundwater that constantly supplies 29 (T15S, R1W) (U.S. Geological Survey to inadequate stormwater management, this reach with clean and flowing water 7.5 topographical map (Pinson water diversion, or water withdrawal; (PCEs 3 and 4), the reach has been able quadrangle)). This unit was included in significant alteration of water quality; to support significant emergent the geographical area occupied by the and significant changes in stream bed vegetation in shallow water on the species at the time of listing. All 0.6 km material composition and quality as a margins to support several rush darter (0.4 mi) stream miles and 6.7 ha (16.5 result of construction projects and populations. The headwaters of the ac) of Unit 3 is privately owned except maintenance activities, destruction of Unnamed Tributary to Beaver Creek is for that small amount that is publicly emergent vegetation, off-road vehicle characterized by natural flows that are owned in the form of bridge crossings use, sewer, gas and water easements, attributed to an abundance of spring and road easements. bridge and road construction and groundwater discharges contributing The Tapawingo or Penny Spring maintenance, culvert and pipe adequate water quality, water quantity, complex consists of an abundance of installation, and other watershed and emergent vegetation and appropriate springs that drain directly into Turkey floodplain disturbances that release substrates (PCEs 1, 2, 3, and 4). Creek by means of a large spring run at sediments or nutrients into the water. Increasing the connectivity of the rush the old railroad crossing and Tapawingo There are three road crossings over darter populations (PCE 1) throughout Springs Road (PCEs 1 and 2). The Beaver Creek (Pinson Valley Parkway, the reaches of this tributary is an historical spring run discharge ranges Old Bradford Road, and Spring Street) essential conservation requirement as it from 0.03 to 2.4 cubic meters per second that at times may limit the overall would decrease the vulnerability of (m3/s) (500 to 38,800 gallons per minute connectivity and movement of the these populations to stochastic threats. (gal/min)) (Chandler and Moore 1987, p. species within this unit. Movement The Highway 79 Spring Site is the type 49), and there is an abundance of might be limited due to changes in flow locality for the species (Bart 2004, p. emergent vegetation (PCEs 1, 2, and 3).

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Historically small numbers of rush significant alteration of water quality; headwaters North and West of Section darter have been collected in the spring significant alteration or destruction of Line 23 and 14 (R9W, T11S; Popular area. aquatic and emergent vegetation, and Springs Quadrangle) to the confluence Threats to the rush darter and its significant changes in stream bed with Wildcat Branch. This unit was habitat that may require special material composition and quality as a included in the geographical area management and protection of physical result of construction projects and occupied by the species at the time of and biological features are: Urbanization maintenance activities, off-road vehicle listing. Almost 4.3 km (2.7 mi), or 100 activities (such as channel modification use, sewer, gas and water easements, percent, of this area is privately owned for flood control, vegetation bridge construction, culvert and pipe except for that small amount that is management, and gravel extraction) that installation, and other watershed and publicly owned by Winston County in could result in increased bank erosion; floodplain disturbances that release the form of bridge crossings and road significant changes in the existing flow sediments or nutrients into the water. easements. regime due to inadequate stormwater Doe Branch provides habitat for the management and impoundment Unit 5: Mill Creek, Winston County, rush darter with a small network of construction, water diversion, or water Alabama small pools, and spring runs, along with withdrawal; significant alteration of Proposed Unit 5 includes 5.9 km (3.7 adequate emergent vegetation (PCE 1 water quality; significant alteration or mi) of Mill Creek from the stream and 2). These geomorphic structures destruction of aquatic and emergent headwaters just east of Winston County provide the species with spawning, vegetation, and significant changes in Road 195 to the confluence with Clear foraging, and resting areas (PCE 1), stream bed material composition and Creek. This unit was included in the along with good water quality, quantity, quality as a result of construction geographical area occupied by the and flow (PCEs 3 and 4), which support projects and maintenance activities, off- species at the time of listing. Almost 5.9 the normal life stages and behavior of road vehicle use, sewer, gas and water km (3.7 mi), or 100 percent, of this area the rush darter, the species’ prey easements, bridge construction, culvert is privately owned except for that small sources (PCE 5). Although the species is and pipe installation, and other amount that is publicly owned by considered rare in Doe Branch, there watershed and floodplain disturbances Winston County in the form of bridge have been few collection attempts in the that release sediments or nutrients into crossings and road easements. stream with a few darters captured the water. Mill Creek provides habitat for the (Mettee et al. 1989, p. 61). Doe Branch rush darter with a network of small contains habitat for the species and is Unit 4: Wildcat Branch, Winston pools, and spring runs, along with an considered occupied. The stream joins County, Alabama abundance of emergent vegetation (PCE Wildcat Branch before flowing into Proposed Unit 4 includes 6.6 km (4.1 1 and 2). These geomorphic structures Clear Creek. mi) of Wildcat Branch from the streams provide the species with spawning, Threats that may require special headwaters just east of Winston County foraging, and resting areas (PCE 1), management and protection of physical Road 29 to the confluence with Clear along with good water quality, quantity, and biological features include: road Creek. This unit was included in the and flow (PCEs 3 and 4), which support and roadside maintenance, urbanization geographical area occupied by the the normal life stages and behavior of activities (such as channel modification species at the time of listing. Almost 6.6 the rush darter, the species’ prey for flood control and gravel extraction) km (4.1 mi), or 100 percent, of this area sources (PCE 5). Rush darters are that could result in increased bank is privately owned except for that small consistently collected in Mill Creek. erosion; significant changes in the amount that is publicly owned by Threats that may require special existing flow regime due to inadequate Winston County in the form of bridge management and protection of PCEs stormwater management and crossings and road easements. include: Road and roadside impoundment construction, water Wildcat Branch provides habitat for maintenance, urbanization activities diversion, or water withdrawal; rush darters with a network of small (such as channel modification for flood significant alteration of water quality; pools and spring runs, along with an control and gravel extraction) that could significant alteration or destruction of abundance of emergent vegetation (PCE result in increased bank erosion; aquatic and emergent vegetation, and 1 and 2). These geomorphic structures significant changes in the existing flow significant changes in stream bed provide the species with spawning, regime due to inadequate stormwater material composition and quality as a foraging, and resting areas (PCE 1), management and impoundment result of construction projects and along with good water quality, quantity, construction, water diversion, or water maintenance activities, off-road vehicle and flow (PCEs 3 and 4), which support withdrawal; significant alteration of use, sewer, gas and water easements, the normal life stages and behavior of water quality; significant alteration or bridge construction, culvert and pipe the rush darter, the species’ prey destruction of aquatic and emergent installation, and other watershed and sources (PCE 5). Rush darters are vegetation, and significant changes in floodplain disturbances that release consistently collected in Wildcat stream bed material composition and sediments or nutrients into the water. Branch, but not in large numbers. quality as a result of construction Unit 7: Little Cove Creek, Cove Spring Threats that may require special projects and maintenance activities, off- and Spring Run, Etowah County, management and protection of physical road vehicle use, sewer, gas and water Alabama and biological features include: Road easements, bridge construction, culvert and roadside maintenance, urbanization and pipe installation, and other Proposed Unit 7 includes 11.2 km (6.1 activities (such as channel modification watershed and floodplain disturbances mi) of Little Cove Creek and the Cove for flood control and gravel extraction) that release sediments or nutrients into Spring run system along with 5.1 ha that could result in increased bank the water. (12.7 ac) of the spring run floodplain. erosion; significant changes in the Specifically, the Little Cove Creek existing flow regime due to inadequate Unit 6: Doe Branch, Winston County, section (11.0 km (6.0 mi)) is from the stormwater management and Alabama intersection of Etowah County Road 179 impoundment construction, water Proposed Unit 6 includes 4.3 km (2.7 near the creek headwaters, downstream diversion, or water withdrawal; mi) of Doe Branch from the stream to its confluence with the Locust Fork

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River. The Cove Spring and spring run Threats that may require special along with emergent vegetation (PCE 2). section includes 0.2 km (0.1 mi) of the management and protection of physical These geomorphic structures provide spring run from the springhead at the and biological features include: road the species with spawning, foraging, West Etowah Water and Fire Authority and roadside maintenance, agricultural and resting areas (PCE 1), along with pumping station on Cove Spring Road to and silviculture activities that could supplemental water quantity and flow the confluence with Little Cove Creek result in increased bank erosion; (PCE 3), which support the normal life and includes 5.1 ha (12.7 ac) of the significant changes in the existing flow stages and behavior of the rush darter, spring run floodplain due south of the regime due to inadequate stormwater the species’ prey sources (PCE 5). The pumping facility. This unit was management; impoundment rush darter is considered rare in Bristow included in the geographical area construction, water diversion, or water Creek, but sampling has been limited. occupied by the species at the time of withdrawal for livestock and irrigation; Threats that may require special listing. All 11.2 km (6.1 mi) of Unit 7 significant alteration or destruction of management and protection of physical aquatic and emergent vegetation, is privately owned except for that small and biological features include: road significant alteration of water quality amount that is publicly owned by and roadside maintenance, agricultural due to release of chlorinated water and and silviculture activities that could Etowah County in the form of bridge other chemicals into the Cove Spring crossings and road easements. result in increased bank erosion; run or Little Cove Creek by the water significant changes in the existing flow Little Cove Creek provides habitat for pumping facility or other sources; off- regime due to inadequate stormwater the rush darter with a network of small road vehicle use, sewer, gas and water management; significant alteration or pools, and spring runs, along with an easements, bridge construction, culvert destruction of aquatic and emergent abundance of emergent aquatic and pipe installation, and other vegetation, impoundment construction, vegetation (PCE 1 and 2). These watershed and floodplain disturbances water diversion, or water withdrawal for geomorphic structures provide the that release sediments or nutrients into livestock and irrigation; off-road vehicle species with spawning, foraging, and the water. use, sewer, gas and water easements, resting areas (PCE 1), along with good Unit 8: Bristow Creek, Etowah County, septic tank drain fields, bridge water quality, quantity, and flow (PCEs Alabama construction and maintenance, culvert 3 and 4), which support the normal life and pipe installation, and other stages and behavior of the rush darter, Proposed Unit 8 includes 10.2 km (6.3 mi) of Bristow Creek beginning from its watershed and floodplain disturbances the species’ prey sources (PCE 5). Rush that release sediments or nutrients into darters are collected in Little Cove intersection with Fairview Cove Road, downstream to the confluence with the the water. Creek, but not in large numbers. The Locust Fork River. This unit was Cove Spring and Spring Run site Yellowcheek Darter included in the geographical area supports small populations of rush occupied by the species at the time of We are proposing four units as critical darters and provides supplemental listing. All 10.2 km (6.3 mi) of Bristow habitat for the yellowcheek darter. The water quantity to Little Cove Creek Creek, beginning at the bridge at critical habitat areas we describe below (PCEs 1 and 3). Water quantity from the Fairview Road, downstream to the constitute our current best assessment of 3 spring averages 0.2 m /s (3,000 gal/min) confluence with the Locust Fork River areas that meet the definition of critical (Snead 2011, pers. comm.) (PCE 4). The is privately owned except for that small habitat for the yellowcheek darter. The spring contains an abundance of gravel amount that is publicly owned by four areas on the Little Red River that and silt along with significant emergent Etowah County in the form of bridge we propose as critical habitat are as vegetation for rush darters to use in crossings and road easements. follows: (1) Middle Fork, (2) South Fork, spawning, foraging, and other life Bristow Creek, although channelized (3) Archey Fork, and (4) Devil’s Fork processes (PCE 2). The Cove Spring and in some locations, provides habitat and (Includes Turkey Creek and Beech Spring Run site provides habitat and connectivity for the rush darters (PCE Fork). Table 3 shows the occupancy of spawning sites, and offers connectivity 1). Locations within the creek have the the units and ownership of the proposed with rush darter populations to Little necessary stream attributes of some designated areas for the yellowcheek Cove Creek (PCE 1). small pools, and spring runs (PCE 1) darter.

TABLE 3—OCCUPANCY AND OWNERSHIP OF THE PROPOSED CRITICAL HABITAT UNITS FOR THE YELLOWCHEEK DARTER

Private owner- State, county, Unit Location Occupied ship city ownership Total length km (mi) km (mi) km (mi)

1 ...... Middle Fork of Little Red River ...... Yes ...... 64.2 (39.9) 6.0 (3.7) 70.2 (43.6) 2 ...... South Fork of Little Red River ...... Yes ...... 30.3 (18.8) 1.6 (1.0) 31.9 (19.8) 3 ...... Archey Fork of Little Red River ...... Yes ...... 27.1 (16.8) ≤ .3(.2) 27.4 (17.0) 4 ...... Devil’s Fork of Little Red River ...... Yes ...... 26.4 (16.4) 1.1 (0.7) 27.5 (17.1)

Total ...... 157.0 (97.5)

We present brief descriptions of all ordinary high water mark on nontidal destruction of terrestrial vegetation; the units and reasons why they meet the rivers is the line on the shore presence of litter and debris; or other definition of critical habitat for the established by the fluctuations of water appropriate means that consider the yellowcheek darter. The proposed and indicated by physical characteristics of the surrounding areas. critical habitat units include the river characteristics, such as a clear, natural In Arkansas, the riparian landowner channels within the ordinary high water line impressed on the bank; shelving; owns the stream to the middle of the line. As defined in 33 CFR 329.11, the changes in the character of soil; channel for non-navigable streams and

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rivers. For each stream reach proposed in streambed material composition from Unit 3: Archey Fork of the Little Red as a critical habitat unit, the upstream any other activities that would release River, Van Buren County, Arkansas and downstream boundaries are sediments, nutrients, or toxins into the Proposed Unit 3 includes 27.4 km described generally below. water also threaten the yellowcheek (17.0 mi) of the Archey Fork of the Little Unit 1: Middle Fork of the Little Red darter. Red River from its junction with South River, Searcy, Stone, and Van Buren Unit 2: South Fork of the Little Red Castleberry Creek to its confluence with Counties, Arkansas River, Van Buren County, Arkansas the South Fork of the Little Red River Proposed Unit 1 includes 70.2 km near Clinton, Arkansas. Live (43.6 mi) of the Middle Fork of the Little Proposed Unit 2 includes 31.9 km yellowcheek darters have been collected Red River from Searcy County Road 167 (19.8 mi) of the South Fork of the Little just above the confluence of the Archey approximately 3.4 km (2.1 miles) Red River from Van Buren County Road and South Forks (Wine et al. 2000, p. southwest of Leslie, Arkansas, to a point 9 three miles north of Scotland, 10) and at a point 15.3 km (9.5 mi) on the stream 7.7 river km (4.8 mi) Arkansas, to a point on the stream above the confluence (Brophy and downstream (35.66515, -92.25942) of (35.57364, -92.42718) approximately 5.5 Stoeckel 2006, p. 3). This unit was the Arkansas Highway 9 crossing of the river km (3.4 mi) downstream of U.S. included in the geographical area Middle Fork near Shirley, Arkansas. Highway 65 in Clinton, Arkansas, where occupied by the species at the time of The lower boundary coincides with the suitable habitat becomes inundated by listing. Proposed Unit 3 is nearly 100 140.5-m (461-ft) elevation of the Greers Ferry Lake and no longer percent privately owned. County and conservation pool for Greers Ferry Lake supports the yellowcheek darter. Live state road crossings and portions within where suitable habitat becomes yellowcheek darters have been collected the city of Clinton, Arkansas, account inundated by Greers Ferry Lake and no from four sites along the South Fork for less than one percent of total Unit 3 longer supports the yellowcheek darter. Little Red River, including the ownership. Live yellowcheek darters have been uppermost boundary at the County Road This unit contains stable riffle areas of collected from four sites within 9 Bridge and just above the Hwy 65 moderate to swift velocity (PCE 1) that are relatively silt-free (PCE 2) and proposed Unit 1. The uppermost site is Bridge in Clinton, Arkansas. This unit maintain surface flows year round (PCE immediately below the Hwy 65 Bridge was included in the geographical area 3). Such characteristics are necessary for near Leslie, Arkansas, and the occupied by the species at the time of reproductive and sheltering lowermost site is immediately below the listing. Approximately 30.3 km (18.8 requirements of yellowcheek darters. Hwy 9 Bridge in Shirley, Arkansas mi), or 95 percent, of proposed Unit 2 (Wine and Blumenshine 2002, p. 18). Water quality within this unit is also is privately owned, and 1.6 km (1.0 mi) characterized by moderate temperatures, This unit was included in the is within the Cherokee Wildlife geographical area occupied by the relatively high dissolved oxygen Management Area owned by the State of concentrations, moderate pH, and low species at the time of listing. Arkansas or the city limits of Clinton, Approximately 64.2 km (39.9 mi), or 92 levels of pollutants (PCE 4), which Arkansas. County and State road percent, of proposed Unit 1 is privately support abundant populations of crossings account for less than one owned, and 6.0 km (3.7 mi) is within aquatic macroinvertebrates that serve as percent of total Unit 2 ownership. the Cherokee Wildlife Management Area prey items for yellowcheek darters (PCE owned by the State of Arkansas. County This unit contains stable riffle areas of 5). and State road crossings exist in all moderate to swift velocity (PCE 1) that The yellowcheek darter and its habitat three counties and account for less than are relatively silt-free (PCE 2) and may require special management one percent of total proposed Unit 1 maintain surface flows year round (PCE considerations or protection to address ownership. 3). Such characteristics are necessary for changes in the existing stream ecology This unit contains stable riffle areas of reproductive and sheltering due to activities as associated with moderate to swift velocity (PCE 1) that requirements of yellowcheek darters. natural gas development, livestock are relatively silt-free (PCE 2) and Water quality within this unit is also grazing, county road maintenance, maintain surface flows year round (PCE characterized by moderate temperatures, timber harvest, water diversion, and 3). Such characteristics are necessary for relatively high dissolved oxygen gravel mining. Alteration of water reproductive and sheltering concentrations, moderate pH, and low quality and changes in streambed requirements of yellowcheek darters. levels of pollutants (PCE 4), which material composition from any other Water quality within this unit is also support abundant populations of activities that would release sediments, characterized by moderate temperatures, aquatic macroinvertebrates that serve as nutrients, or toxins into the water also relatively high dissolved oxygen prey items for yellowcheek darters (PCE threaten the yellowcheek darter. concentrations, moderate pH, and low 5). Unit 4: Devil’s Fork of the Little Red levels of pollutants (PCE 4), which River (Including Turkey Creek and support abundant populations of The yellowcheek darter and its habitat Beech Fork), Stone and Cleburne aquatic macroinvertebrates that serve as may require special management Counties, Arkansas prey items for yellowcheek darters (PCE considerations or protection to address 5). changes in the existing stream ecology Proposed Unit 4 includes 27.5 km The yellowcheek darter and its habitat due to activities as associated with (17.1 mi) of stream from Stone County may require special management natural gas development, livestock Road 21 approximately 3 miles north of considerations or protection to address grazing, county road maintenance, Prim, Arkansas, to a point (35.63556, changes in the existing stream ecology timber harvest, water diversion, and -92.03400) on the Devil’s Fork due to activities as associated with gravel mining. Alteration of water approximately 5.1 km (3.2 mi) southeast natural gas development, livestock quality and changes in streambed of Woodrow, Arkansas, where suitable grazing, county road maintenance, material composition from any other habitat becomes inundated by Greers timber harvest, water diversion, gravel activities that would release sediments, Ferry Lake and no longer supports the mining, and rock harvesting operations. nutrients, or toxins into the water also yellowcheek darter. Live yellowcheek Alteration of water quality and changes threaten the yellowcheek darter. darters have not been collected at the

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uppermost site (Turkey Creek) since reproductive and sheltering nutrients, or toxins into the water also 1999 (Mitchell et al. 2002, p. 131). requirements of yellowcheek darters. threaten the yellowcheek darter. However, Wine and Blumenshine (2002, Water quality within this unit is also Chucky Madtom p. 11) did detect yellowcheek darters in characterized by moderate temperatures, the Beech Fork and it is likely that the relatively high dissolved oxygen We are proposing one unit as critical species persists in very low numbers concentrations, moderate pH, and low habitat for the chucky madtom. The within the upper portions of the levels of pollutants (PCE 4), which critical habitat area we describe below watershed during normal flow years. support abundant populations of constitutes our current best assessment This unit was included in the aquatic macroinvertebrates that serve as of the area that meets the definition of geographical area occupied by the prey items for yellowcheek darters (PCE critical habitat for the chucky madtom. species at the time of listing. 5). Approximately 26.4 km (16.4 mi), or 96 Lands in the critical habitat unit are percent, of proposed Unit 4 is privately The yellowcheek darter and its habitat either in private ownership or public owned, and 1.1 km (0.7 mi) is within may require special management ownership (Greene County road the Cherokee Wildlife Management Area considerations or protection to address easements). In Tennessee, landowners owned by the State of Arkansas. County changes in the existing stream ecology own the land under non-navigable road crossings exist in both counties due to activities as associated with streams (e.g., the stream channel or and account for less than one percent of natural gas development, livestock bottom), but the water is under State total Unit 4 ownership. grazing, county road maintenance, jurisdiction. The area we propose as This unit contains stable riffle areas of timber harvest, water diversion, and critical habitat is: Little Chucky Creek, moderate to swift velocity (PCE 1) that gravel mining. Alteration of water and was occupied at the time of listing. are relatively silt-free (PCE 2) and quality and changes in streambed Table 4 shows the occupancy of the unit maintain surface flows year round (PCE material composition from any other and ownership of the proposed 3). Such characteristics are necessary for activities that would release sediments, designated area for the chucky madtom.

TABLE 4—OCCUPANCY AND OWNERSHIP OF THE PROPOSED CRITICAL HABITAT UNIT FOR THE CHUCKY MADTOM

Private State, county, Unit Location Occupied ownership city ownership Total length km (mi) km (mi) km (mi)

Little Chucky Creek ...... Yes ...... 31.8 (19.7) < 0.1 (< 0.06) 31.9 (19.8)

Total ...... 31.9 (19.8)

We present a brief description of the the chucky madtom has not been This critical habitat unit is located on unit and reasons why it meets the observed since 2004, we still consider it private property and is not presently definition of critical habitat for the to exist in Little Chucky Creek. under the special management or chucky madtom. The proposed critical Observations of the species have always protection provided by a legally habitat unit includes the river channel been sporadic, and it is a cryptic species operative plan or agreement for the within the ordinary high water line. As that is hard to locate. This unit was conservation of the species. Various defined in 33 CFR 329.11, the ordinary included in the geographical area activities in or adjacent to the critical high water mark on nontidal rivers is occupied by the species at the time of habitat unit described in this proposed the line on the shore established by the listing. Almost 31.9 km (19.8 mi), or 100 rule may affect one or more of the PCEs. fluctuations of water and indicated by percent, of this area is privately owned For example, features in this proposed physical characteristics, such as a clear, except for that small amount that is critical habitat designation may require natural line impressed on the bank; publicly owned by Greene County in the special management due to threats shelving; changes in the character of form of bridge crossings and road posed by agricultural activities (e.g., row soil; destruction of terrestrial vegetation; easements. crops and livestock), lack of adequate the presence of litter and debris; or riparian buffers, construction and other appropriate means that consider This proposed unit contains stable maintenance of State and county roads, the characteristics of the surrounding riffle and run areas of moderate to swift gravel mining, and nonpoint source areas. For the stream reach proposed as velocity (PCE 1); flat gravel, cobble, and pollution arising from a wide variety of a critical habitat unit, the upstream and slab-rock boulders that are relatively human activities. downstream boundaries are described silt-free (PCE 2); and surface flows that generally below; a more precise are maintained year round (PCE 3). Laurel Dace description is provided in the Proposed Such characteristics are necessary for We are proposing six units as critical Regulation Promulgation at the end of reproductive and sheltering habitat for the laurel dace. The critical this proposed rule. requirements of chucky madtoms. Water habitat areas we describe below quality within this unit is also Unit 1: Little Chucky Creek, Greene constitute our current best assessment of characterized by moderate temperatures, County, Tennessee areas that meet the definition of critical relatively high dissolved oxygen habitat for the laurel dace. The six areas This unit includes 31.9 km (19.8 mi) concentrations, moderate pH, and low we propose as critical habitat are as of Little Chucky Creek from its levels of pollutants (PCE 4), which follows: (1) Bumbee Creek, (2) Youngs confluence with an unnamed tributary, support abundant populations of Creek, (3) Moccasin Creek, (4) Cupp downstream to its confluence with the aquatic macroinvertebrates that serve as Creek, (5) Horn Branch, and (6) Soddy Nolichucky River, at the Greene and prey items for the chucky madtom (PCE Creek. Lands in critical habitat units are Cocke County line, Tennessee. Although 5). either in private ownership or public

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ownership (county road easements). In stream channel or bottom), but the water ownership of the proposed designated Tennessee, landowners own the land is under State jurisdiction. Table 5 areas for the laurel dace. under non-navigable streams (e.g., the shows the occupancy of the units and

TABLE 5—OCCUPANCY AND OWNERSHIP OF THE PROPOSED CRITICAL HABITAT UNITS FOR THE LAUREL DACE

Private State, county, Unit Location Occupied ownership city ownership Total length km (mi) km (mi) km (mi)

1 ...... Bumbee Creek ...... Yes ...... 7.7 (4.7) < 0.1 (< 0.06) 7.8 (4.8) 2 ...... Youngs Creek ...... Yes ...... 7.8 (4.8) < 0.1 (< 0.06) 7.9 (4.9) 3 ...... Moccasin Creek ...... Yes ...... 8.9 (5.5) < 0.1 (< 0.06) 9.0 (5.6) 4 ...... Cupp Creek ...... Yes ...... 4.9 (3.0) < 0.1 (< 0.06) 5.0 (3.1) 5 ...... Horn Branch ...... Yes ...... 3.9 (2.4) < 0.1 (< 0.06) 4.0 (2.5) 6 ...... Soddy Creek ...... Yes ...... 8.3 (5.1) < 0.1 (< 0.06) 8.4 (5.2)

Total ...... 42.2 (26.2)

We present brief descriptions of all characterized by moderate temperatures, reproductive and sheltering units and reasons why they meet the relatively high dissolved oxygen requirements of laurel dace. Water definition of critical habitat for the concentrations, moderate pH, and low quality within this unit is also laurel dace. The proposed critical levels of pollutants (PCE 4), which characterized by moderate temperatures, habitat units include the river channels support abundant populations of relatively high dissolved oxygen within the ordinary high water line. As aquatic macroinvertebrates that serve as concentrations, moderate pH, and low defined in 33 CFR 329.11, the ordinary prey items for laurel dace (PCE 5). levels of pollutants (PCE 4), which high water mark on nontidal rivers is Various activities in or adjacent to support abundant populations of the line on the shore established by the these areas of proposed critical habitat aquatic macroinvertebrates that serve as fluctuations of water and indicated by may affect one or more of the physical prey items for laurel dace (PCE 5). physical characteristics, such as a clear, and biological features. For example, Various activities in or adjacent to natural line impressed on the bank; features in this proposed critical habitat these areas of proposed critical habitat shelving; changes in the character of designation may require special may affect one or more of the physical soil; destruction of terrestrial vegetation; management due to threats posed by and biological features. For example, the presence of litter and debris; or resource extraction (coal and gravel features in this proposed critical habitat other appropriate means that consider mining, silviculture, natural gas and oil designation may require special the characteristics of the surrounding exploration activities), agricultural management due to threats posed by areas. For each stream reach proposed activities (row crops and livestock), lack resource extraction (coal and gravel as a critical habitat unit, the upstream of adequate riparian buffers, mining, silviculture, natural gas and oil and downstream boundaries are construction and maintenance of State exploration activities), agricultural described generally below; more precise and county roads, nonpoint source activities (row crops and livestock), lack descriptions are provided in the pollution arising from a wide variety of of adequate riparian buffers, Proposed Regulation Promulgation at human activities, and canopy loss construction and maintenance of State the end of this proposed rule. caused by infestations of the hemlock and county roads, nonpoint source wooly adelgid. These threats are in pollution arising from a wide variety of Unit 1: Bumbee Creek, Bledsoe and addition to random effects of drought, human activities, and canopy loss Rhea Counties, Tennessee floods, or other natural phenomena. caused by infestations of the hemlock Proposed Unit 1 includes 8.0 km (5.0 wooly adelgid. These threats are in Unit 2: Youngs Creek, Bledsoe and Rhea mi) of Bumbee Creek from its addition to random effects of drought, Counties, Tennessee headwaters in Bledsoe County, floods, or other natural phenomena. downstream to its confluence with Proposed Unit 2 includes 7.8 km (4.8 Mapleslush Branch in Rhea County, mi) of Youngs Creek from its headwaters Unit 3: Moccasin Creek, Bledsoe Tennessee. This unit was included in in Bledsoe County, downstream to its County, Tennessee the geographical area occupied by the confluence with Moccasin Creek in Proposed Unit 3 includes 9.0 km (5.6 species at the time of listing. Almost 7.9 Rhea County, Tennessee. This unit was mi) of Moccasin Creek from its km (4.9 mi), or 100 percent, of this area included in the geographical area headwaters downstream to 0.1 km (0.6 is privately owned except for that small occupied by the species at the time of mi) below its confluence with Lick amount that is publicly owned by listing. Almost 7.7 km (4.7 mi), or 100 Creek in Bledsoe County, Tennessee. Bledsoe and Rhea Counties in the form percent, of this area is privately owned This unit was included in the of bridge crossings and road easements. except for that small amount that is geographical area occupied by the This unit contains stable headwater publicly owned by Bledsoe and Rhea species at the time of listing. Almost 8.9 streams (PCE 1) that are relatively silt- Counties in the form of bridge crossings km (5.5 mi), or 100 percent, of this area free, contain cobble and slab-rock and road easements. is privately owned except for that small boulder substrates with canopy cover This unit contains stable headwater amount that is publicly owned by (PCE 2), and surface flows that are streams (PCE 1) that are relatively silt- Bledsoe County in the form of bridge maintained year round (PCE 3). Such free, contain cobble and slab-rock crossings and road easements. characteristics are necessary for boulder substrates with canopy cover This unit contains stable headwater reproductive and sheltering (PCE 2), and surface flows that are streams (PCE 1) that are relatively silt- requirements of laurel dace. Water maintained year round (PCE 3). Such free, contain cobble and slab-rock quality within this unit is also characteristics are necessary for boulder substrates with canopy cover

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(PCE 2), and surface flows that are features in this proposed critical habitat Unit 6: Soddy Creek, Sequatchie and maintained year round (PCE 3). Such designation may require special Bledsoe Counties, Tennessee characteristics are necessary for management due to threats posed by Proposed Unit 6 includes 8.4 km (5.2 reproductive and sheltering resource extraction (coal and gravel mi) of Soddy Creek from its headwaters requirements of laurel dace. Water mining, silviculture, natural gas and oil in Sequatchie County, downstream to its quality within this unit is also exploration activities), agricultural confluence with Harvey Creek in characterized by moderate temperatures, activities (row crops and livestock), lack Sequatchie County, Tennessee. This relatively high dissolved oxygen of adequate riparian buffers, unit was included in the geographical concentrations, moderate pH, and low construction and maintenance of State area occupied by the species at the time levels of pollutants (PCE 4), which and county roads, nonpoint source of listing. Almost 8.3 km (5.1 mi), or 100 support abundant populations of pollution arising from a wide variety of percent, of this area is privately owned aquatic macroinvertebrates that serve as human activities, and canopy loss except for a small amount that is prey items for laurel dace (PCE 5). caused by infestations of the hemlock publicly owned by Sequatchie and Various activities in or adjacent to wooly adelgid. These threats are in Bledsoe Counties in the form of bridge these areas of proposed critical habitat addition to random effects of drought, crossings and road easements. may affect one or more of the physical floods, or other natural phenomena. This unit contains stable headwater and biological features. For example, streams (PCE 1) that are relatively silt- features in this proposed critical habitat Unit 5: Horn Branch, Bledsoe County, Tennessee free, contain cobble and slab-rock designation may require special boulder substrates with canopy cover management due to threats posed by Proposed Unit 5 includes 4.0 km (2.5 (PCE 2), and surface flows that are resource extraction (coal and gravel mi) of Horn Branch from its headwaters maintained year round (PCE 3). Such mining, silviculture, natural gas and oil downstream to its confluence with Rock characteristics are necessary for exploration activities), agricultural Creek in Bledsoe County, Tennessee. reproductive and sheltering activities (row crops and livestock), lack This unit was included in the requirements of laurel dace. Water of adequate riparian buffers, geographical area occupied by the quality within this unit is also construction and maintenance of State species at the time of listing. Almost 3.9 characterized by moderate temperatures, and county roads, nonpoint source km (2.4 mi), or 100 percent, of this area relatively high dissolved oxygen pollution arising from a wide variety of is privately owned except for that small concentrations, moderate pH, and low human activities, and canopy loss amount that is publicly owned by levels of pollutants (PCE 4), which caused by infestations of the hemlock Bledsoe County in the form of bridge support abundant populations of wooly adelgid. These threats are in crossings and road easements. aquatic macroinvertebrates that serve as addition to random effects of drought, This unit contains stable headwater prey items for laurel dace (PCE 5). floods, or other natural phenomena. streams (PCE 1) that are relatively silt- Various activities in or adjacent to Unit 4: Cupp Creek, Bledsoe County, free, contain cobble and slab-rock these areas of proposed critical habitat Tennessee boulder substrates with canopy cover may affect one or more of the physical and biological features. For example, Proposed Unit 4 includes 5.0 km (3.1 (PCE 2), and surface flows that are features in this proposed critical habitat mi) of Cupp Creek from its headwaters maintained year round (PCE 3). Such designation may require special downstream to its confluence with an characteristics are necessary for management due to threats posed by unnamed tributary in Bledsoe County, reproductive and sheltering resource extraction (coal and gravel Tennessee. This unit was included in requirements of laurel dace. Water mining, silviculture, natural gas and oil the geographical area occupied by the quality within this unit is also exploration activities), agricultural species at the time of listing. Almost 4.9 characterized by moderate temperatures, activities (row crops and livestock), lack km (3.0 mi), or 100 percent, of this area relatively high dissolved oxygen of adequate riparian buffers, is privately owned except for that small concentrations, moderate pH, and low construction and maintenance of State amount that is publicly owned by levels of pollutants (PCE 4), which and county roads, nonpoint source Bledsoe County in the form of bridge support abundant populations of pollution arising from a wide variety of crossings and road easements. aquatic macroinvertebrates that serve as This unit contains stable headwater prey items for laurel dace (PCE 5). human activities, and canopy loss streams (PCE 1) that are relatively silt- Various activities in or adjacent to caused by infestations of the hemlock free; contain cobble and slab-rock these areas of proposed critical habitat wooly adelgid. These threats are in boulder substrates with canopy cover may affect one or more of the physical addition to random effects of drought, (PCE 2), and surface flows that are and biological features. For example, floods, or other natural phenomena. maintained year round (PCE 3). Such features in this proposed critical habitat Effects of Critical Habitat Designation characteristics are necessary for designation may require special reproductive and sheltering management due to threats posed by Section 7 Consultation requirements of laurel dace. Water resource extraction (coal and gravel Section 7(a)(2) of the Act requires quality within this unit is also mining, silviculture, natural gas and oil Federal agencies, including the Service, characterized by moderate temperatures, exploration activities), agricultural to ensure that any action they fund, relatively high dissolved oxygen activities (row crops and livestock), lack authorize, or carry out is not likely to concentrations, moderate pH, and low of adequate riparian buffers, jeopardize the continued existence of levels of pollutants (PCE 4), which construction and maintenance of State any endangered species or threatened support abundant populations of and county roads, nonpoint source species or result in the destruction or aquatic macroinvertebrates that serve as pollution arising from a wide variety of adverse modification of designated prey items for laurel dace (PCE 5). human activities, and canopy loss critical habitat of such species. In Various activities in or adjacent to caused by infestations of the hemlock addition, section 7(a)(4) of the Act these areas of proposed critical habitat wooly adelgid. These threats are in requires Federal agencies to confer with may affect one or more of the physical addition to random effects of drought, the Service on any agency action which and biological features. For example, floods, or other natural phenomena. is likely to jeopardize the continued

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existence of any species proposed to be of critical habitat. We define habitat, or that may be affected by such listed under the Act or result in the ‘‘reasonable and prudent alternatives’’ designation. destruction or adverse modification of (at 50 CFR 402.02) as alternative actions Activities that may affect critical proposed critical habitat. identified during consultation that: habitat, when carried out, funded, or Decisions by the 5th and 9th Circuits (1) Can be implemented in a manner authorized by a Federal agency, should Court of Appeals have invalidated our consistent with the intended purpose of result in consultation for the regulatory definition of ‘‘destruction or the action, Cumberland darter, rush darter, adverse modification’’ (50 CFR 402.02) (2) Can be implemented consistent yellowcheek darter, chucky madtom, (see Gifford Pinchot Task Force v. U.S. with the scope of the Federal agency’s and laurel dace. These activities Fish and Wildlife Service, 378 F.3d 1059 legal authority and jurisdiction, include, but are not limited to: (9th Cir. 2004) and Sierra Club v. U.S. (3) Are economically and (1) Actions that would alter the Fish and Wildlife Service et al., 245 F.3d technologically feasible, and geomorphology of stream habitats. Such 434, 442 (5th Cir. 2001)), and we do not (4) Would, in the Director’s opinion, activities could include, but are not rely on this regulatory definition when avoid the likelihood of jeopardizing the limited to, instream excavation or analyzing whether an action is likely to continued existence of the listed species dredging, impoundment, destroy or adversely modify critical or avoid the likelihood of destroying or channelization, road and bridge habitat. Under the statutory provisions adversely modifying critical habitat. construction, mining, and discharge of of the Act, we determine destruction or Reasonable and prudent alternatives fill materials. These activities could adverse modification on the basis of can vary from slight project cause aggradation or degradation of the whether, with implementation of the modifications to extensive redesign or channel bed elevation or significant proposed Federal action, the affected relocation of the project. Costs bank erosion, result in entrainment or critical habitat would continue to serve associated with implementing a burial of these fishes, and cause other its intended conservation role for the reasonable and prudent alternative are direct or cumulative adverse effects to species. these species. If a Federal action may affect a listed similarly variable. Regulations at 50 CFR 402.16 require (2) Actions that would significantly species or its critical habitat, the alter the existing flow regime or water responsible Federal agency (action Federal agencies to reinitiate consultation on previously reviewed quantity. Such activities could include, agency) must enter into consultation but are not limited to, impoundment, with us. Examples of actions that are actions in instances where we have listed a new species or subsequently water diversion, water withdrawal, and subject to the section 7 consultation hydropower generation. These activities process are actions on State, tribal, designated critical habitat that may be affected and the Federal agency has could eliminate or reduce the habitat local, or private lands that require a necessary for growth and reproduction Federal permit (such as a permit from retained discretionary involvement or control over the action (or the agency’s of these fishes. the U.S. Army Corps of Engineers under (3) Actions that would significantly section 404 of the Clean Water Act (33 discretionary involvement or control is authorized by law). Consequently, alter water quantity or water quality (for U.S.C. 1251 et seq.) or a permit from the example, temperature, pH, Service under section 10 of the Act) or Federal agencies sometimes may need to request reinitiation of consultation with contaminants, and excess nutrients). that involve some other Federal action Such activities could include, but are (such as funding from the Federal us on actions for which formal consultation has been completed, if not limited to, hydropower discharges, Highway Administration, Federal or the release of chemicals, biological Aviation Administration, or the Federal those actions with discretionary involvement or control may affect pollutants, or heated effluents into Emergency Management Agency). surface water or connected groundwater Federal actions not affecting listed subsequently listed species or designated critical habitat. at a point source or by dispersed release species or critical habitat, and actions (nonpoint source). These activities on State, tribal, local, or private lands Application of the ‘‘Adverse could alter water conditions that are that are not federally funded or Modification’’ Standard beyond the tolerances of these fishes authorized do not require section 7 The key factor related to the adverse and result in direct or cumulative consultation. adverse effects to the species. As a result of section 7 consultation, modification determination is whether, with implementation of the proposed (4) Actions that would significantly we document compliance with the alter stream bed material composition requirements of section 7(a)(2) through Federal action, the affected critical habitat would continue to serve its and quality by increasing sediment our issuance of: deposition or filamentous algal growth. (1) A concurrence letter for Federal intended conservation role for the Such activities could include, but are actions that may affect, but are not species. Activities that may destroy or not limited to, construction projects, likely to adversely affect, listed species adversely modify critical habitat are livestock grazing, timber harvest, off- or critical habitat; or those that alter the physical and road vehicle use, and other watershed (2) A biological opinion for Federal biological features to an extent that and floodplain disturbances that release actions that may affect, or are likely to appreciably reduces the conservation sediments or nutrients into the water. adversely affect, listed species or critical value of critical habitat for the species. These activities could eliminate or habitat. As discussed above, the role of critical When we issue a biological opinion habitat is to support life-history needs of reduce habitats necessary for the growth concluding that a project is likely to the species and provide for the and reproduction of these fishes by jeopardize the continued existence of a conservation of the species. causing excessive sedimentation or listed species or destroy or adversely Section 4(b)(8) of the Act requires us nutrification. modify critical habitat, we provide to briefly evaluate and describe, in any Exemptions reasonable and prudent alternatives to proposed or final regulation that the project, if any are identifiable, that designates critical habitat, activities Application of Section 4(a)(3) of the Act would avoid the likelihood of jeopardy involving a Federal action that may The Sikes Act Improvement Act of or destruction or adverse modification destroy or adversely modify such 1997 (Sikes Act) (16 U.S.C. 670a)

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required each military installation that benefits of specifying such area as part lands within the proposed designation includes land and water suitable for the of the critical habitat, unless he of critical habitat for the Cumberland conservation and management of determines, based on the best scientific darter, rush darter, yellowcheek darter, natural resources to complete an data available, that the failure to chucky madtom, and laurel dace are not integrated natural resources designate such area as critical habitat owned or managed by the Department of management plan (INRMP) by will result in the extinction of the Defense, and, therefore, we anticipate November 17, 2001. An INRMP species. In making that determination, no impact on national security. the statute on its face, as well as the integrates implementation of the Exclusions Based on Other Relevant legislative history, are clear that the military mission of the installation with Impacts stewardship of the natural resources Secretary has broad discretion regarding found on the base. Each INRMP which factor(s) to use and how much Under section 4(b)(2) of the Act, we includes: weight to give to any factor. consider any other relevant impacts, in (1) An assessment of the ecological Under section 4(b)(2) of the Act, we addition to economic impacts and needs on the installation, including the may exclude an area from designated impacts on national security. We need to provide for the conservation of critical habitat based on economic consider a number of factors, including listed species; impacts, impacts on national security, whether the landowners have developed (2) A statement of goals and priorities; and any other relevant impacts. In any HCPs or other management plans (3) A detailed description of considering whether to exclude a for the area, or whether there are management actions to be implemented particular area from the designation, we conservation partnerships that would be to provide for these ecological needs; must identify the benefits of including encouraged by designation of, or and the area in the designation, identify the exclusion from, critical habitat. In (4) A monitoring and adaptive benefits of excluding the area from the addition, we look at any tribal issues, management plan. designation, and determine whether the and consider the government-to- Among other things, each INRMP benefits of exclusion outweigh the government relationship of the United must, to the extent appropriate and benefits of inclusion. If the analysis States with tribal entities. We also applicable, provide for fish and wildlife indicates that the benefits of exclusion consider any social impacts that might management; fish and wildlife habitat outweigh the benefits of inclusion, the occur because of the designation. enhancement or modification; wetland Secretary may exercise his discretion to In preparing this proposal, we have protection, enhancement, and exclude the area only if such exclusion determined that there is one restoration where necessary to support would not result in the extinction of the conservation agreement that exists for fish and wildlife; and enforcement of species. the yellowcheek darter in the upper Little Red River, Arkansas. The applicable natural resource laws. Exclusions Based on Economic Impacts The National Defense Authorization yellowcheek darter is currently covered Act for Fiscal Year 2004 (Pub. L. 108– Under section 4(b)(2) of the Act, we under a joint Candidate Conservation 136) amended the Act to limit areas consider the economic impacts of Agreement with Assurances (CCAA) in eligible for designation as critical specifying any particular area as critical the upper Little Red River watershed in habitat. Specifically, section 4(a)(3)(B)(i) habitat. In order to consider economic Arkansas along with the endangered of the Act (16 U.S.C. 1533(a)(3)(B)(i)) impacts, we are preparing an analysis of speckled pocketbook mussel. The CCAA now provides: ‘‘The Secretary shall not the economic impacts of the proposed will convert to a SHA, as the designate as critical habitat any lands or critical habitat designation and related yellowcheek darter is listed as other geographical areas owned or factors. endangered and would be covered by an controlled by the Department of We will announce the availability of enhancement of survival permit, which Defense, or designated for its use, that the draft economic analysis as soon as expires January 1, 2044. We welcome are subject to an integrated natural it is completed, at which time we will comments pertaining to designation of resources management plan prepared seek public review and comment. At critical habitat in the CCAA coverage under section 101 of the Sikes Act (16 that time, copies of the draft economic area. Designation of critical habitat for U.S.C. 670a), if the Secretary determines analysis will be available for the yellowcheek darter may be also in writing that such plan provides a downloading from the Internet at http:// beneficial to the federally endangered benefit to the species for which critical www.regulations.gov, or by contacting speckled pocketbook mussel given that habitat is proposed for designation.’’ the Tennessee Ecological Services Field extensive range overlap and water FOR FURTHER There are no Department of Defense Office directly (see quality requirements occurs between the lands with a completed INRMP within INFORMATION CONTACT section). During two species. the proposed critical habitat the development of a final designation, There are no HCPs or other designation. we will consider economic impacts, management plans for the Cumberland public comments, and other new darter, rush darter, yellowcheek darter, Exclusions information, and areas may be excluded chucky madtom, or laurel dace, and the Application of Section 4(b)(2) of the Act from the final critical habitat proposed designation does not include designation under section 4(b)(2) of the any tribal lands or trust resources. We Section 4(b)(2) of the Act states that Act and our implementing regulations at anticipate no impact on tribal lands, the Secretary shall designate and make 50 CFR 424.19. partnerships, or HCPs from this revisions to critical habitat on the basis proposed critical habitat designation. of the best available scientific data after Exclusions Based on National Security taking into consideration the economic Impacts Peer Review impact, national security impact, and Under section 4(b)(2) of the Act, we In accordance with our joint policy any other relevant impact of specifying consider whether there are lands owned published in the Federal Register on any particular area as critical habitat. or managed by the Department of July 1, 1994 (59 FR 34270), we will seek The Secretary may exclude an area from Defense where a national security the expert opinions of at least 1 to 2 critical habitat if he determines that the impact might exist. In preparing this appropriate and independent specialists benefits of such exclusion outweigh the proposal, we have determined that the for each species regarding this proposed

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rule. The purpose of peer review is to rulemaking for any proposed or final Significantly Affect Energy Supply, ensure that our critical habitat rule, it must prepare and make available Distribution, or Use) requires agencies designation is based on scientifically for public comment a regulatory to prepare Statements of Energy Effects sound data, assumptions, and analyses. flexibility analysis that describes the when undertaking certain actions. We We will invite these peer reviewers to effects of the rule on small entities do not expect the designation of this comment during this public comment (small businesses, small organizations, proposed critical habitat to significantly period on our specific assumptions and and small government jurisdictions). affect energy supplies, distribution, or conclusions in this proposed However, no regulatory flexibility use. Natural gas and oil exploration and designation of critical habitat. analysis is required if the head of the development activities occur or could We will consider all comments and agency certifies the rule will not have a potentially occur in the Cumberland information we receive during this significant economic impact on a darter (13 of 15 critical habitat units) comment period on this proposed rule substantial number of small entities. and Yellowcheek darter (4 of 4 critical during our preparation of a final The SBREFA amended RFA to require habitat units) proposed critical habitat. determination. Accordingly, the final Federal agencies to provide a However, compliance with State decision may differ from this proposal. certification statement of the factual regulatory requirements or voluntary basis for certifying that the rule will not BMPs would be expected to minimize Public Hearings have a significant economic impact on impacts of natural gas and oil Section 4(b)(5) of the Act provides for a substantial number of small entities. exploration and development in the one or more public hearings on this At this time, we lack the available areas of proposed critical habitat for proposal, if requested. Requests must be economic information necessary to both species. The measures for natural received within 45 days after the date of provide an adequate factual basis for the gas and oil exploration and publication of this proposed rule in the required RFA finding. Therefore, we development are generally not Federal Register. Such requests must be defer the RFA finding until completion considered a substantial cost compared sent to the Tennessee Ecological of the draft economic analysis prepared with overall project costs and are Services Field Office (see FOR FURTHER under section 4(b)(2) of the Act and already being implemented by oil and INFORMATION CONTACT). We will Executive Order 12866. This draft gas companies. schedule public hearings on this economic analysis will provide the Coal mining occurs or could proposal, if any are requested, and required factual basis for the RFA potentially occur in 11 of the 15 announce the dates, times, and places of finding. Upon completion of the draft proposed critical habitat units for the those hearings, as well as how to obtain economic analysis, we will announce Cumberland darter. Incidental take for reasonable accommodations, in the availability of the draft economic listed species associated with surface Federal Register and local newspapers analysis of the proposed designation in coal mining activities is currently at least 15 days before the hearing. the Federal Register and reopen the covered under a programmatic, non- public comment period for the proposed jeopardy biological opinion between the Required Determinations designation. We will include with this Office of Surface Mining and the Service Regulatory Planning and Review— announcement, as appropriate, an initial completed in 1996 (Service 1996, Executive Order 12866 regulatory flexibility analysis or a entire). The biological opinion covers certification that the rule will not have existing, proposed, and future The Office of Management and Budget a significant economic impact on a endangered and threatened species that (OMB) has determined that this rule is substantial number of small entities may be affected by the implementation not significant and has not reviewed accompanied by the factual basis for and administration of surface coal this proposed rule under Executive that determination. On the basis of the mining programs under the Surface Order 12866 (Regulatory Planning and development of our proposal, we have Mining Control and Reclamation Act of Review). OMB bases its determination identified certain sectors and activities 1977. Through its analysis, the Service upon the following four criteria: that may potentially be affected by a concluded that the proposed action (1) Whether the rule will have an designation of critical habitat for these (surface coal mining and reclamation annual effect of $100 million or more on five fishes. These sectors include coal, activities) was not likely to jeopardize the economy or adversely affect an oil, and natural gas operations; timber the continued existence of any economic sector, productivity, jobs, the operations; industrial development; threatened, endangered, or proposed environment, or other units of the urbanization; and the accompanying species or result in adverse modification government. infrastructure associated with such of designated or proposed critical (2) Whether the rule will create projects such as road, storm water habitat. Therefore, this action is not a inconsistencies with other Federal drainage, and bridge and culvert significant energy action, and no agencies’ actions. construction and maintenance. Statement of Energy Effects is required. (3) Whether the rule will materially We have concluded that deferring the However, we will further evaluate this affect entitlements, grants, user fees, RFA finding until completion of the issue as we conduct our economic loan programs, or the rights and draft economic analysis is necessary to analysis, and review and revise this obligations of their recipients. meet the purposes and requirements of assessment as warranted. (4) Whether the rule raises novel legal the RFA. Deferring the RFA finding in or policy issues. this manner will ensure that we make a Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.) Regulatory Flexibility Act (5 U.S.C. 601 sufficiently informed determination In accordance with the Unfunded et seq.) based on adequate economic information and provide the necessary Mandates Reform Act (2 U.S.C. 1501 et Under the Regulatory Flexibility Act opportunity for public comment. seq.), we make the following findings: (RFA; 5 U.S.C. 601 et seq.) as amended (1) This rule would not produce a by the Small Business Regulatory Energy Supply, Distribution, or Use— Federal mandate. In general, a Federal Enforcement Fairness Act (SBREFA) of Executive Order 13211 mandate is a provision in legislation, 1996 (5 U.S.C. 801 et seq.), whenever an Executive Order 13211 (Actions statute or regulation that would impose agency must publish a notice of Concerning Regulations That an enforceable duty upon State, local,

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tribal governments, or the private sector programs listed above onto State Department of Commerce policy, we and includes both ‘‘Federal governments. requested information from, and intergovernmental mandates’’ and (2) This rule would not significantly coordinated development of, this ‘‘Federal private sector mandates.’’ or uniquely affect small governments. proposed critical habitat designation These terms are defined in 2 U.S.C. The lands being proposed for with appropriate State resource agencies 658(5)–(7). ‘‘Federal intergovernmental Cumberland darter critical habitat in Kentucky, Alabama, Arkansas, and mandate’’ includes a regulation that designation are owned by the DBNF and Tennessee. The designation of critical ‘‘would impose an enforceable duty private landowners. The lands being habitat in areas currently occupied by upon State, local, or tribal governments’’ proposed for rush darter critical habitat these five fishes may impose nominal with two exceptions. It excludes ‘‘a designation are mostly owned by private additional regulatory restrictions to landowners; a small portion of the City condition of Federal assistance.’’ It also those currently in place and, therefore, of Pinson; and road easements in excludes ‘‘a duty arising from may have little incremental impact on participation in a voluntary Federal Etowah, Jefferson, and Winston Counties, Alabama. The lands being State and local governments and their program,’’ unless the regulation ‘‘relates proposed for yellowcheek darter are activities. The designation may have to a then-existing Federal program mostly owned by private landowners; a some benefit to these governments under which $500,000,000 or more is small portion are owned by the State of because the areas that contain the provided annually to State, local, and Arkansas (Cherokee Wildlife physical and biological features tribal governments under entitlement Management Area and road easements); essential to the conservation of the authority,’’ if the provision would and road easements in Cleburne, Searcy, species are more clearly defined, and ‘‘increase the stringency of conditions of Stone, and Van Buren Counties, the elements of the features of the assistance’’ or ‘‘place caps upon, or Arkansas. Most of the lands being habitat necessary to the conservation of otherwise decrease, the Federal proposed for chucky madtom are the species are specifically identified. Government’s responsibility to provide private, a small portion consisting of This information does not alter where funding,’’ and the State, local, or tribal road easements in Greene County, and what federally sponsored activities governments ‘‘lack authority’’ to adjust Tennessee. Most of the lands being may occur. However, it may assist these accordingly. At the time of enactment, proposed for laurel dace are located on local governments in long-range these entitlement programs were: private lands, a small portion consisting planning (rather than having them wait Medicaid; Aid to Families with of road easements in Bledsoe, Rhea, and for case-by-case section 7 consultations Dependent Children work programs; Sequatchie Counties, Tennessee. to occur). Child Nutrition; Food Stamps; Social Therefore, a Small Government Agency Where State and local governments Services Block Grants; Vocational Plan is not required. However, we will Rehabilitation State Grants; Foster Care, further evaluate this issue as we require approval or authorization from a Adoption Assistance, and Independent conduct our economic analysis, and Federal agency for actions that may Living; Family Support Welfare review and revise this assessment if affect critical habitat, consultation Services; and Child Support appropriate. under section 7(a)(2) would be required. Enforcement. ‘‘Federal private sector While non-Federal entities that receive Takings—Executive Order 12630 mandate’’ includes a regulation that Federal funding, assistance, or permits, ‘‘would impose an enforceable duty In accordance with Executive Order or that otherwise require approval or upon the private sector, except (i) A 12630 (Government Actions and authorization from a Federal agency for condition of Federal assistance or (ii) a Interference with Constitutionally an action, may be indirectly impacted duty arising from participation in a Protected Private Property Rights), we by the designation of critical habitat, the voluntary Federal program.’’ have analyzed the potential takings legally binding duty to avoid implications of designating critical destruction or adverse modification of The designation of critical habitat habitat for the Cumberland darter, rush critical habitat rests squarely on the does not impose a legally binding duty darter, yellowcheek darter, chucky Federal agency. on non-Federal Government entities or madtom, and laurel dace in a takings private parties. Under the Act, the only implications assessment. Critical habitat Civil Justice Reform—Executive Order regulatory effect is that Federal agencies designation does not affect landowner 12988 must ensure that their actions do not actions that do not require Federal destroy or adversely modify critical In accordance with Executive Order funding or permits, nor does it preclude 12988 (Civil Justice Reform), the Office habitat under section 7. While non- development of habitat conservation of the Solicitor has determined that the Federal entities that receive Federal programs or issuance of incidental take rule does not unduly burden the judicial funding, assistance, or permits, or that permits to permit actions that do require system and that it meets the otherwise require approval or Federal funding or permits to go requirements of sections 3(a) and 3(b)(2) authorization from a Federal agency for forward. The takings implications of the Order. We have proposed an action, may be indirectly impacted assessment concludes that this by the designation of critical habitat, the designation of critical habitat for these designating critical habitat in legally binding duty to avoid five species does not pose significant accordance with the provisions of the destruction or adverse modification of takings implications for lands within or Act. This proposed rule uses standard critical habitat rests squarely on the affected by the designation. property descriptions and identifies the Federal agency. Furthermore, to the elements of physical and biological extent that non-Federal entities are Federalism—Executive Order 13132 features essential to the conservation of indirectly impacted because they In accordance with Executive Order the Cumberland darter, rush darter, receive Federal assistance or participate 13132 (Federalism), this proposed rule yellowcheek darter, chucky madtom, in a voluntary Federal aid program, the does not have significant Federalism and laurel dace within the designated Unfunded Mandates Reform Act would effects. A Federalism summary impact areas to assist the public in not apply; nor would critical habitat statement is not required. In keeping understanding the habitat needs of the shift the costs of the large entitlement with Department of the Interior and species.

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Paperwork Reduction Act of 1995 (44 If you feel that we have not met these critical habitat for these five species on U.S.C. 3501 et seq.) requirements, send us comments by one tribal lands. of the methods listed in the ADDRESSES This rule does not contain any new References Cited collections of information that require section. To better help us revise this approval by OMB under the Paperwork rule, your comments should be as A complete list of references cited in Reduction Act of 1995 (44 U.S.C. 3501 specific as possible. For example, you this proposed rulemaking is available on et seq.). This rule will not impose should tell us the numbers of the the Internet at http:// recordkeeping or reporting requirements sections or paragraphs that are unclearly www.regulations.gov and upon request on State or local governments, written, which sections or sentences are from the Tennessee Ecological Services individuals, businesses, or too long, the sections where you feel Field Office (see FOR FURTHER organizations. An agency may not lists or tables would be useful, etc. INFORMATION CONTACT). conduct or sponsor, and a person is not Government-to-Government Author(s) required to respond to, a collection of Relationship With Tribes information unless it displays a The primary authors of this package currently valid OMB control number. In accordance with the President’s are the staff members of the Arkansas, memorandum of April 29, 1994 National Environmental Policy Act (42 Kentucky, Mississippi, and Tennessee (Government-to-Government Relations Ecological Services Field Offices. U.S.C. 4321 et seq.) with Native American Tribal It is our position that, outside the Governments; 59 FR 22951), Executive List of Subjects in 50 CFR Part 17 jurisdiction of the U.S. Court of Appeals Order 13175 (Consultation and Endangered and threatened species, for the Tenth Circuit, we do not need to Coordination With Indian Tribal Exports, Imports, Reporting and prepare environmental analyses Governments), and the Department of recordkeeping requirements, pursuant to the National Environmental Interior’s manual at 512 DM 2, we Transportation. Policy Act (NEPA; 42 U.S.C. 4321 et readily acknowledge our responsibility seq.) in connection with designating to communicate meaningfully with Proposed Regulation Promulgation critical habitat under the Act. We recognized Federal Tribes on a published a notice outlining our reasons government-to-government basis. In Accordingly, we propose to amend for this determination in the Federal accordance with Secretarial Order 3206 part 17, subchapter B of chapter I, title Register on October 25, 1983 (48 FR of June 5, 1997 (American Indian Tribal 50 of the Code of Federal Regulations, 49244). This position was upheld by the Rights, Federal-Tribal Trust as set forth below: U.S. Court of Appeals for the Ninth Responsibilities, and the Endangered PART 17—ENDANGERED AND Circuit (Douglas County v. Babbitt, 48 F. Species Act), we readily acknowledge THREATENED WILDLIFE AND PLANTS 3d 1495 (9th Cir. 1995), cert. denied 516 our responsibilities to work directly U.S. 1042 (1996)). with tribes in developing programs for 1. The authority citation for part 17 Clarity of the Rule healthy ecosystems, to acknowledge that continues to read as follows: tribal lands are not subject to the same We are required by Executive Orders controls as Federal public lands, to Authority: 16 U.S.C. 1361–1407; 16 U.S.C. 12866 and 12988 and by the remain sensitive to Indian culture, and 1531–1544; 16 U.S.C. 4201–4245; Pub. L. 99– 625, 100 Stat. 3500; unless otherwise noted. Presidential Memorandum of June 1, to make information available to tribes. 1998, to write all rules in plain language. This means that each rule we We determined that there are no tribal 2. In § 17.11(h) revise the entries for publish must: lands that were occupied by the ‘‘Dace, laurel,’’ ‘‘Darter, Cumberland,’’ (1) Be logically organized; Cumberland darter, rush darter, ‘‘Darter, rush,’’ ‘‘Darter, yellowcheek,’’ (2) Use the active voice to address yellowcheek darter, chucky madtom, or and ‘‘Madtom, chucky’’ under FISHES readers directly; laurel dace at the time of listing that in the List of Endangered and (3) Use clear language rather than contain the features essential for Threatened Wildlife to read as follows: jargon; conservation of these species, and no tribal lands unoccupied by these five § 17.11 Endangered and threatened (4) Be divided into short sections and wildlife. sentences; and species that are essential for the (5) Use lists and tables wherever conservation of these species. Therefore, * * * * * possible. we are not proposing to designate (h) * * *

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

******* FISHES

******* Dace, laurel ...... Chrosomus saylori ... U.S.A (TN) ...... Entire ...... E 791 17.95(e) NA

******* Darter, Cumberland Etheostoma susanae U.S.A. (KY, TN) ...... Entire ...... E 791 17.95(e) NA

******* Darter, rush ...... Etheostoma U.S.A. (AL) ...... Entire ...... E 791 17.95(e) NA phytophilum.

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

******* Darter, yellowcheek Etheostoma moorei U.S.A. (AR) ...... Entire ...... E 791 17.95(e) NA

******* Madtom, chucky ...... Noturus crypticus ..... U.S.A. (TN) ...... Entire ...... E 791 17.95(e) NA

*******

3. In § 17.95, amend paragraph (e) by order streams with riparian vegetation; of this rule as the quality necessary for adding entries for ‘‘Laurel Dace cool, clean, flowing water; shallow normal behavior, growth, and viability (Chrosomus saylori)’’, ‘‘Cumberland depths; and connectivity between of all life stages of the laurel dace. Darter (Etheostoma susanae)’’, ‘‘Rush spawning, foraging, and resting sites to (v) Prey base of aquatic Darter (Etheostoma phytophilum)’’, promote gene flow throughout the macroinvertebrates, including midge ‘‘Yellowcheek Darter (Etheostoma species’ range. larvae, caddisfly larvae, and stonefly moorei)’’, and ‘‘Chucky madtom (ii) Stable bottom substrates larvae. (Noturus crypticus)’’ in the same composed of relatively silt-free cobble (3) Critical habitat does not include alphabetical order that those species and slab-rock boulder substrates with manmade structures (such as buildings, appear in the table at § 17.11(h), to read undercut banks and canopy cover. aqueducts, runways, roads, and other as follows: Relatively silt-free is defined for the paved areas) and the land on which they § 17.95 Critical habitat—fish and wildlife. purpose of this rule as silt or fine sand are located existing within the legal within interstitial spaces of substrates in boundaries on the effective date of this * * * * * amounts low enough to have minimal (e) Fishes. rule. impact to the species. (4) Critical habitat unit maps. Data * * * * * (iii) An instream flow regime layers defining map units were created Laurel Dace (Chrosomus saylori) (magnitude, frequency, duration, and on a base of USGS digital ortho-photo (1) Critical habitat units are depicted seasonality of discharge over time) quarter-quadrangles, and critical habitat for Bledsoe, Rhea, and Sequatchie sufficient to provide permanent surface units were then mapped using Counties, Tennessee, on the maps flows, as measured during years with Tennessee State Plane, Lambert below. average rainfall, and maintain benthic Conformal Conic Projection, units feet. (2) Within these areas, the primary habitats utilized by the species. Upstream and downstream limits were constituent elements of the physical and (iv) Adequate water quality then identified by longitude and biological features essential to the characterized by moderate stream latitude using decimal degrees and conservation of the laurel dace consist temperatures, acceptable dissolved projected in WGS 1984. of five components: oxygen concentrations, moderate pH, (5) Note: Overview of Critical Habitat (i) Pool and run habitats of and low levels of pollutants. Adequate Locations for Laurel Dace in Tennessee geomorphically stable first- to second- water quality is defined for the purpose follows:

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(6) Units 1, 2, and 3: Bumbee Creek (ii) Unit 2 includes 7.8 km (4.8 mi) of (35.71179, ¥85.02662) downstream to and Youngs Creek, Bledsoe and Rhea Youngs Creek from its headwaters at 0.1 km (0.6 mi) below its confluence Counties, Tennessee; and Moccasin (35.68745, ¥85.00261) and (35.67015, with Lick Creek (35.07462, ¥85.02876) Creek, Bledsoe County, Tennessee. ¥85.00935) in Bledsoe County, in Bledsoe County, Tennessee. (i) Unit 1 includes 8.0 km (5.0 mi) of downstream to its confluence with (iv) Note: Map of Units 1 (Bumbee Bumbee Creek from its headwaters at Moccasin Creek (35.65003, ¥84.98665) Creek), 2 (Youngs Creek), and 3 (35.68933, ¥84.99763) in Bledsoe in Rhea County, Tennessee. County, downstream to its confluence (iii) Unit 3 includes 9.0 km (5.6 mi) (Moccasin Creek) of critical habitat for with Mapleslush Branch (35.66833, of Moccasin Creek from its headwaters the laurel dace follows: ¥84.94714) in Rhea County, Tennessee. at (35.71313, ¥85.02109) and

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(7) Unit 4: Cupp Creek, Bledsoe (35.49533, ¥85.19120) downstream to (ii) Note: Map of Unit 4 (Cupp Creek) County, Tennessee. its confluence with an unnamed of critical habitat for the laurel dace (i) Unit 4 includes 5.0 km (3.1 mi) of tributary (35.48597, ¥85.15334) in follows: Cupp Creek from its headwaters at Bledsoe County, Tennessee.

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(8) Unit 5: Horn Branch, Bledsoe (35.43605, ¥85.25560) downstream to (ii) Note: Map of Unit 5 (Horn Branch) County, Tennessee. its confluence with Rock Creek of critical habitat for the laurel dace (i) Unit 5 includes 4.0 km (2.5 mi) of (35.40999, ¥85.23731), Bledsoe County, follows: Horn Branch from its headwaters Tennessee.

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(9) Unit 6: Soddy Creek, Sequatchie ¥85.28331), Sequatchie County, (ii)Note: Map of Unit 6 (Soddy Creek) and Bledsoe Counties, Tennessee. downstream to its confluence with of critical habitat for the laurel dace (i) Unit 6 includes 8.4 km (5.2 mi) of Harvey Creek (35.35422, ¥85.25133), in follows: Soddy Creek from its headwaters at Sequatchie County, Tennessee. (35.39107, ¥85.28803) and (35.37926,

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* * * * * sand-covered bedrock, boulders, large (3) Critical habitat does not include cobble, woody debris, or other cover. manmade structures (such as buildings, Cumberland Darter (Etheostoma (iii) An instream flow regime aqueducts, bridges, runways, roads, and susanae) (magnitude, frequency, duration, and other paved areas) and the land on (1) Critical habitat units are depicted seasonality of discharge over time) which they are located existing within for McCreary and Whitley Counties, sufficient to provide permanent surface the legal boundaries on the effective Kentucky, and Campbell and Scott flows, as measured during years with date of this rule. Counties, Tennessee, on the maps average rainfall, and maintain benthic (4) Critical habitat map units. Data below. habitats utilized by the species. layers defining map units were created (iv) Adequate water quality (2) Within these areas, the primary on a base of USGS digital ortho-photo characterized by moderate stream constituent elements of the physical and quarter-quadrangles, and critical habitat temperatures, acceptable dissolved biological features essential to the oxygen concentrations, moderate pH, units were then mapped using conservation of the Cumberland darter and low levels of pollutants. Adequate Tennessee State Plane, Lambert consist of five components: water quality is defined for the purpose Conformal Conic Projection, units feet. (i) Shallow pools and gently flowing of this rule as the quality necessary for Upstream and downstream limits were runs of geomorphically stable second- to normal behavior, growth, and viability then identified by longitude and fourth-order streams with connectivity of all life stages of the Cumberland latitude using decimal degrees and between spawning, foraging, and resting darter. projected in WGS 1984. sites to promote gene flow throughout (v) Prey base of aquatic Note: Overview of Critical Habitat the species’ range. macroinvertebrates, including midge Locations for the Cumberland Darter in (ii) Stable bottom substrates larvae, mayfly nymphs, caddisfly larvae, Tennessee and Kentucky follows: composed of relatively silt-free sand and and microcrustaceans. BILLING CODE 4310–55–P

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(6) Units 1 and 2: Bunches Creek and downstream to its confluence with the downstream to its confluence with Calf Pen Fork, Whitley County, Cumberland River (36.83270, Bunches Creek (36.82935, ¥83.30215). ¥ Kentucky. 84.31787). (iii) Note: Map of Units 1 (Bunches (i) Unit 1 includes 5.3 km (3.3 mi) of (ii) Unit 2 includes 2.9 km (1.8 mi) of Creek) and 2 (Calf Pen Fork) of critical Bunches Creek from the Seminary Calf Pen Fork from its confluence with habitat for the Cumberland darter Branch and Amos Falls Branch ¥ confluence (36.82754, ¥84.26958) Polly Branch (36.82955, 84.30191) follows:

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(7) Unit 3: Youngs Creek, Whitley (36.83902, ¥84.22657) downstream to (ii)Note: Map of Unit 3 (Youngs County, Kentucky. its confluence with the Cumberland Creek) of critical habitat for the (i) Unit 3 includes 7.4 km (4.6 mi) of River (36.81601, ¥84.21902). Cumberland darter follows: Youngs Creek from Brays Chapel Road

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(8) Units 4, 5, 6, 7, and 8: Barren Fork, ¥84.45084) downstream to its confluence with Laurel Fork (36.81527, Indian Creek, Cogur Fork, Kilburn Fork, confluence with Barren Fork (36.78652, ¥84.38298). ¥ and Laurel Fork, McCreary County, 84.41622). (v) Unit 8 includes 3.5 km (2.2 mi) of (iii) Unit 6 includes 8.6 km (5.4 mi) Kentucky. Laurel Fork from its confluence with (i) Unit 4 includes 6.3 km (3.9 mi) of of Cogur Fork from its confluence with Toms Fork (36.83115, ¥84.38582) Barren Fork from its confluence with an an unnamed tributary (36.81645, downstream to its confluence with unnamed tributary (36.76642, ¥84.46389) downstream to its Indian Creek (36.80482, ¥84.37966). ¥84.46574) downstream to its confluence with Indian Creek (36.79965, confluence with Indian Creek (36.78652, ¥84.39775). (vi) Note: Map of Units 4 (Barren ¥84.41622). (iv) Unit 7 includes 4.6 km (2.9 mi) Fork), 5 (Indian Creek), 6 (Cogur Fork), (ii) Unit 5 includes 4.0 km (2.5 mi) of of Kilburn Fork from its confluence with 7 (Kilburn Fork), and 8 (Laurel Fork) of Indian Creek from its confluence with an unnamed tributary (36.82518, critical habitat for the Cumberland an unnamed tributary (36.79511, ¥84.41411) downstream to its darter follows:

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(9) Units 9, 10, and 11: Laurel Creek, (ii) Unit 10 includes 2.1 km (1.3 mi) ¥84.43159) downstream to its Elisha Branch, and Jenneys Branch, of Elisha Branch from its confluence confluence with Laurel Creek. McCreary County, Kentucky. with an unnamed tributary (36.70132, (iv) Note: Map of Units 9 (Laurel (i) Unit 9 includes 9.4 km (5.9 mi) of ¥ 84.40843) downstream to its Creek), 10 (Elisha Branch), and 11 Laurel Creek from Laurel Creek confluence with Laurel Creek. (Jenneys Branch) of critical habitat for Reservoir (36.69028, ¥84.44313) (iii) Unit 11 includes 3.1 km (1.9 mi) downstream to its confluence with of Jenneys Branch from its confluence the Cumberland darter follows: Jenneys Branch (36.73485, ¥84.39951). with an unnamed tributary (36.73701,

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(10) Unit 12: Wolf Creek, Whitley Sheep Creek downstream to its (ii) Note: Map of Unit 12 (Wolf Creek) County, Kentucky. intersection with Wolf Creek River of critical habitat for the Cumberland (i) Unit 12 includes 6.3 km (3.9 mi) Road. darter follows: of Wolf Creek from its confluence with

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(11) Units 13, 14, and 15: Jellico downstream to its confluence with (iii) Unit 15 includes 4.2 km (2.6 mi) Creek, Rock Creek, and Capuchin Creek, Capuchin Creek, McCreary County, of Capuchin Creek from its confluence McCreary and Whitley Counties, Kentucky. with Hatfield Creek downstream to its Kentucky, and Campbell and Scott (ii) Unit 14 includes 6.1 km (3.8 mi) confluence with Jellico Creek. Counties, Tennessee. of Rock Creek from its confluence with (iv) Note: Map of Units 13 (Jellico (i) Unit 13 includes 11.5 km (7.2 mi) Creek), 14 (Rock Creek), and 15 Sid Anderson Branch downstream to its of Jellico Creek from its confluence with (Capuchin Creek) of critical habitat for confluence with Jellico Creek. Scott Branch, Scott County, Tennessee, the Cumberland darter follows:

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* * * * * silt, muck, gravel, or bedrock and greater than 225 micro Siemens per adequate emergent vegetation in centimeter at 26.7 °C (80 °F). Rush Darter (Etheostoma phytophilum) shallow water on the margins of small (v) Prey base of aquatic (1) The critical habitat units are permanent and ephemeral streams and macroinvertebrates, including midge depicted for Jefferson, Winston, and spring runs. larvae, mayfly nymphs, blackfly larvae, Etowah Counties in Alabama, on the (iii) Instream flow with moderate beetles, and microcrustaceans. maps below. velocity and a continuous daily (3) Critical habitat does not include (2) Within these areas, the primary discharge that allows for a longitudinal manmade structures (such as buildings, constituent elements of the physical and aqueducts, runways, roads, and other connectivity regime inclusive of both biological features essential to the paved areas) and the land on which they surface runoff and groundwater sources conservation of the rush darter consist are located existing within the legal (springs and seepages) and exclusive of of five components: boundaries on the effective date of this flushing flows caused by stormwater (i) Springs and spring-fed reaches of rule. runoff. geomorphically stable, relatively low- (4) Critical habitat map units. Data gradient, headwater streams with (iv) Water quality with temperature layers defining map units were created appropriate habitat (bottom substrates) not exceeding 26.7 °C (80 °F), dissolved on a base of USGS digital ortho-photo to maintain essential riffles, runs, and oxygen 6.0 milligrams or greater per quarter-quadrangles, and critical habitat pools; emergent vegetation in shallow liter, turbidity of an average monthly units were then mapped using Universal water and on the margins of small reading of 10 Nephelometric Turbidity Transverse Mercator (UTM) Zone 16N, streams and spring runs; cool, clean, Units (NTU; units used to measure NAD1983, coordinates. Upstream and flowing water; and connectivity sediment discharge) and 15mg/L Total downstream limits were then identified between spawning, foraging, and resting Suspended Solids (TSS; measured as by longitude and latitude using decimal sites to promote gene flow throughout mg/L of sediment in water) or less; and degrees and projected in WGS 1984. the species’ range. a specific conductance (ability of water (5) Note: Overview of Critical Habitat (ii) Stable bottom substrates to conduct an electric current, based on Locations for the Rush Darter in consisting of a combination of sand with dissolved solids in the water) of no Alabama follows:

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(6) Units 1, 2, and 3: Beaver Creek, 7.5 topographical map (Pinson of Turkey Creek, north of Bud Holmes Unnamed Tributary to Beaver Creek and quadrangle), downstream to its Road, east of Tapawingo Trail Road. The Highway 79 Spring Site, and Tapawingo confluence with Dry Creek, and east boundary is at latitude 33°41′56.50″ or Penny Spring and Spring Run, includes a spring run beginning at the N and longitude 86°39′55.01″ W: 1.0 km Jefferson County, Alabama. springhead (latitude 33°40′28.15″ N, (0.63 mi) west of section line 28 and 29 ° ′ ″ (i) Unit 1 includes 1.0 km (0.62 mi) longitude 86 41 34.81 W) just (T15S, R1W) (U.S. Geological Survey 7.5 of Beaver Creek from the confluence northwest of Old Pinson Road and topographical map (Pinson with an unnamed tributary to Beaver intersecting with an unnamed tributary quadrangle)). Creek, downstream to the confluence to Beaver Creek on the west side of with Turkey Creek. Highway 79. (iv) Note: Map of Units 1 (Beaver (ii) Unit 2 includes 4.3 km (2.57 mi) (iii) Unit 3 includes 0.63 km (0.39 mi) Creek), 2 (unnamed tributary to Beaver of an unnamed tributary of Beaver Creek of spring run, historically called Creek and Highway 79 Spring Site), and and a spring run. The site begins at the Tapawingo Plunge, along with 16.5 3 (Tapawingo or Penny Spring and section 1 and 2 (T16S, R2W) line, as acres (6.68 ha) of flooded spring basin Spring Run) of critical habitat for the taken from the U.S. Geological Survey making up Penny Springs, located south rush darter follows:

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(7) Units 4, 5, and 6: Wildcat Branch, (ii) Unit 5 includes 5.89 km (3.66 mi) line 23 and 14 (R9W, T11S; Popular Mill Creek, and Doe Branch, Winston of Mill Creek from the streams Springs Quadrangle) to the confluence County, Alabama. headwaters just east of Winston County with Wildcat Branch. (i) Unit 4 includes 6.63 km (4.12 mi) Road 195 to the confluence with Clear (iv) Note: Map of Units 4 (Wildcat of Wildcat Branch from the streams Creek. Branch), 5 (Mill Creek), and 6 (Doe headwaters just east of Winston County (iii) Unit 6 includes 4.28 km (2.66 mi) Road 29 to the confluence with Clear of Doe Branch from the streams Branch) of critical habitat for the rush Creek. headwaters north and west of section darter follows:

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(8) Units 7 and 8: Little Cove Creek, near the creek headwaters, downstream floodplain due south of the pumping Cove Spring and Spring Run, County, to its confluence with the Locust Fork facility. Alabama; and Bristow Creek, Etowah River. The Cove Spring and spring run (ii) Unit 8 includes 10.12 km (6.29 mi) County, Alabama. section includes 0.21 km (0.13 mi) of of Bristow Creek beginning from the (i) Unit 7 includes 11.22 km (6.13 mi) the spring run from the springhead at bridge at Fairview Cove Road, of Little Cove Creek and the Cove Spring the West Etowah Water and Fire downstream to the confluence with the run system along with 12.7 acres (5.1 Authority pumping station on Cove Locust Fork River. ha) of the spring run floodplain. Spring Road to the confluence with (iii) Map of Units 7 (Little Cove Creek, Specifically, the Little Cove Creek Little Cove Creek and includes 12.7 Cove Spring Site) and 8 (Bristow Creek) section (11.01 km (6.00 mi)) is from the acres (5.1 ha) of the spring run of critical habitat for the rush darter intersection of Etowah County Road 179 follows:

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* * * * * velocity riffles with gravel, cobble, and larvae, stonefly larvae, mayfly nymphs, boulder substrates. and caddisfly larvae. Yellowcheek darter (Etheostoma (3) Critical habitat does not include moorei) (iii) An instream flow regime (magnitude, frequency, duration, and manmade structures (such as buildings, (1) Critical habitat units are depicted seasonality of discharge over time) aqueducts, runways, roads, and other for Cleburne, Searcy, Stone, and Van sufficient to provide permanent surface paved areas) and the land on which they Buren Counties, Arkansas, on the maps flows, as measured during years with are located existing within the legal below. average rainfall, and maintain benthic boundaries on the effective date of this rule. (2) Within these areas, the primary habitats utilized by the species. (4) Critical habitat unit maps. Data constituent elements of the physical and (iv) Adequate water quality layers defining map units were created biological features essential to the characterized by moderate stream on a base of USGS digital ortho-photo conservation of the yellowcheek darter temperatures, acceptable dissolved quarter-quadrangles, and critical habitat consist of five components: oxygen concentrations, moderate pH, units were then mapped using Universal (i) Geomorphically stable second- to and low levels of pollutants. Adequate Transverse Mercator (UTM) Zone 15N, fifth-order streams with riffle habitats; water quality is defined for the purpose NAD1983, coordinates. Upstream and and connectivity between spawning, of this rule as the quality necessary for downstream limits were then identified foraging, and resting sites to promote normal behavior, growth, and viability by longitude and latitude using decimal gene flow within the species’ range of all life stages of the yellowcheek degrees and projected in WGS 1984. where possible. darter. (5) Note: Overview of Critical Habitat (ii) Stable bottom composed of (v) Prey base of aquatic Locations for Yellowcheek Darter in relatively silt-free, moderate to strong macroinvertebrates, including blackfly Arkansas follows:

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(6) Unit 1: Middle Fork Little Red River from Searcy County Road 167 of the Arkansas Highway 9 crossing of River; Searcy, Stone and Van Buren approximately 3.4 km (2.1 miles) the Middle Fork near Shirley, Arkansas Counties, Arkansas. southwest of Leslie, Arkansas, to a point (ii) Note: Map of Unit 1 (Middle Fork) (i) Unit 1 includes 70.2 km (43.6 mi) on the stream 7.7 river km (4.8 mi) of critical habitat for the yellowcheek of the Middle Fork of the Little Red downstream (35.665146, ¥92.259415) darter follows:

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(7) Unit 2: South Fork Little Red miles north of Scotland, Arkansas, to a in Clinton, Arkansas, where it becomes River; Van Buren County, Arkansas. point on the stream (35.573636, inundated by Greers Ferry Lake. (i) Unit 2 includes 31.9 km (19.8 mi) -92.427176) approximately 5.5 river km (ii) Note: Map of Unit 2 (South Fork) of the South Fork of the Little Red River (3.4 mi) downstream of U.S. Highway 65 of critical habitat for the yellowcheek from Van Buren County Road 9 three darter follows:

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(8) Unit 3: Archey Fork Little Red River from its confluence with South (ii) Note: Map of Unit 3 (Archey Fork) River; Van Buren County, Arkansas. Castleberry Creek to its confluence with of critical habitat for the yellowcheek (i) Unit 3 includes 27.4 km (17.0 mi) the South Fork of the Little Red River darter follows: of the Archey Fork of the Little Red near Clinton, Arkansas.

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(9) Unit 4: Devil’s Fork Little Red approximately three miles north of (ii) Note: Map of Unit 4 (Devil’s Fork) River (including Turkey Creek and Prim, Arkansas, to a point on the Devil’s of critical habitat for the yellowcheek Beech Fork); Cleburne and Stone Fork approximately 5.1 km (3.2 mi) darter follows: Counties, Arkansas. southeast of Woodrow, Arkansas, at the (i) Unit 4 includes 27.5 km (17.1 mi) point of inundation by Greers Ferry of stream from Stone County Road 21 Lake (35.635557, ¥92.034003).

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* * * * * (iii) An instream flow regime (3) Critical habitat does not include (magnitude, frequency, duration, and manmade structures (such as buildings, Chucky Madtom (Noturus crypticus) seasonality of discharge over time) aqueducts, runways, roads, and other (1) Critical habitat units are depicted sufficient to provide permanent surface paved areas) and the land on which they for Greene County, Tennessee, on the flows, as measured during years with are located existing within the legal maps below. average rainfall, and maintain benthic boundaries on the effective date of this (2) Within these areas, the primary habitats utilized by the species. rule. constituent elements of the physical and (4) Critical habitat unit maps. Data (iv) Adequate water quality biological features essential to the layers defining map units were created characterized by moderate stream conservation of the chucky madtom on a base of USGS digital ortho-photo temperatures, acceptable dissolved consist of five components: quarter-quadrangles, and critical habitat oxygen concentrations, moderate pH, (i) Gently flowing run and pool units were then mapped using and low levels of pollutants. Adequate reaches of geomorphically stable Tennessee State Plane, Lambert streams with cool, clean, flowing water; water quality is defined for the purpose Conformal Conic Projection, units feet. shallow depths; and connectivity of this rule as the quality necessary for Upstream and downstream limits were between spawning, foraging, and resting normal behavior, growth, and viability then identified by longitude and sites to promote gene flow throughout of all life stages of the chucky madtom. latitude using decimal degrees and the species’ range. (v) Prey base of aquatic projected in WGS 1984. (ii) Stable bottom substrates macroinvertebrates, including midge (5) Note: Overview of Critical Habitat composed of relatively silt-free, flat larvae, mayfly nymphs, caddisfly larvae, Locations for the Chucky Madtom in gravel, cobble, and slab-rock boulders. and stonefly larvae. Tennessee follows:

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(6) Little Chucky Creek Unit, Greene tributary (36.15810, ¥82.88996), (ii) Note: Map of Little Chucky Creek County, Tennessee. downstream to its confluence with the Unit of critical habitat for the chucky (i) Little Chucky Creek Unit includes Nolichucky River (36.12095, madtom follows: 31.9 km (19.8 mi) of Little Chucky Creek ¥83.10665), at the Greene and Cocke from its confluence with an unnamed County line, Tennessee.

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* * * * * Dated: September 23, 2011. Eileen Sobeck, Acting Assistant Secretary for Fish and Wildlife and Parks. [FR Doc. 2011–25655 Filed 10–11–11; 8:45 am] BILLING CODE 4310–55–P

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