Federal Register / Vol. 75, No. 121 / Thursday, June 24, 2010 / Proposed Rules 36035

Dated: June 18, 2010. We will not accept e-mail or faxes. We size of these species, including the Gina McCarthy, will post all comments on http:// locations of any additional populations Assistant Administrator, Office of Air and www.regulations.gov. This generally of the species; Radiation. means that we will post any personal (3) Any additional information on the [FR Doc. 2010–15340 Filed 6–23–10; 8:45 am] information you provide us (see the biological or ecological requirements of BILLING CODE 6560–50–P Request for Public Comments section the species; below for more information). (4) Current or planned activities in the FOR FURTHER INFORMATION CONTACT: For areas occupied by the species and possible impacts of these activities on DEPARTMENT OF THE INTERIOR information regarding the , contact Lee Andrews, Field the species and their habitat; (5) Potential effects of climate change Fish and Wildlife Service Supervisor, U.S. Fish and Wildlife on the species and their habitats; Service, Ecological Services (6) The reasons why areas should or 50 CFR Part 17 Field Office, J.C. Watts Federal should not be designated as critical Building, 330 W. Broadway Rm. 265, habitat as provided by section 4 of the [Docket No. FWS-R4-ES-2010-0027] Frankfort, KY 40601; telephone 502- [MO 92210-0-0008-B2] Act (16 U.S.C. 1531, et seq.), including 695-0468; facsimile 502-695-1024. For whether the benefits of designation RIN 1018-AV85 information regarding the , would outweigh threats to the species contact Stephen Ricks, Field Supervisor, that designation could cause (e.g., Endangered and Threatened Wildlife U.S. Fish and Wildlife Service, exacerbation of existing threats, such as and Plants; Listing the Cumberland Mississippi Ecological Services Field overcollection), such that the Darter, Rush Darter, Yellowcheek Office, 6578 Dogwood View Parkway, designation of critical habitat is Darter, Chucky Madtom, and Laurel Suite A, Jackson, MI 39213; telephone prudent; and . Dace as Endangered Throughout Their 601-965-4900; facsimile 601-965-4340 or (7) Specific information on: Ranges Bill Pearson, Field Supervisor, U.S. Fish • What areas contain physical and and Wildlife Service, biological features essential for the AGENCY: Fish and Wildlife Service, Ecological Services Field Office, 1208-B Interior. conservation of the species; Main Street, Daphne AL 36526; • What areas are essential to the ACTION: Proposed rule; request for telephone 251-441-5181; fax 251-441- conservation of the species; and public comments. 6222. For information regarding the • Special management considerations or yellowcheek darter, contact Mark protection that proposed critical SUMMARY: We, the U.S. Fish and Sattelberg, Field Supervisor, U.S. Fish habitat may require. Wildlife Service (Service), propose to and Wildlife Service, Arkansas list the Cumberland darter ( Please note that submissions merely Ecological Services Field Office, 110 stating support for or opposition to the susanae), rush darter (Etheostoma South Amity Road, Suite 300, Conway, phytophilum), yellowcheek darter action under consideration without AR 72032; telephone 501-513-4470; providing supporting information, (Etheostoma moorei), chucky madtom facsimile 501-513-4480. For information (Noturus crypticus), and laurel dace although noted, will not be considered regarding the chucky madtom or laurel in making a determination, as section (Phoxinus saylori) as endangered under dace, contact Mary Jennings, Field the Act of 1973, as 4(b)(1)(A) of the Act directs that Supervisor, U.S. Fish and Wildlife determinations as to whether any amended (Act). If we finalize this rule Service, Tennessee Ecological Services as proposed, it would extend the Act’s species is a threatened or endangered Field Office, 446 Neal Street, species mush be made ‘‘solely on the protections to these species throughout Cookeville, TN 38501; telephone 931- their ranges, including, Cumberland basis of the best scientific and 528-6481; facsimile 931-528-7075. If you ’’ darter in Kentucky and Tennessee, rush commercial data available. use a telecommunications device for the You may submit your comments and darter in Alabama, yellowcheek darter deaf (TDD), call the Federal Information materials concerning this proposed rule in Arkansas, and chucky madtom and Relay Service (FIRS) at 800-877-8339. by one of the methods listed in the laurel dace in Tennessee. We have SUPPLEMENTARY INFORMATION: ADDRESSES section. We will not accept determined that critical habitat for these comments sent by e-mail or fax or to an species is prudent, but not determinable Request for Public Comments address not listed in the ADDRESSES at this time. We intend that any final action section. DATES: We will consider comments we resulting from this proposed rule will be We will post your entire comment, receive on or before August 23, 2010. based on the best scientific and including your personal identifying We must receive requests for public commercial data available and as information, on http:// hearings, in writing, at the address accurate and effective as possible. www.regulations.gov. If you provide shown in the ADDRESSES section by Therefore, we request comments or personal identifying information in your August 9, 2010. information from the public, other hard copy comments, such as your ADDRESSES: You may submit comments concerned governmental agencies, the street address, phone number, or e-mail by one of the following methods: scientific community, industry, or any address, you may request at the top of Federal eRulemaking Portal: http:// other interested party concerning this your document that we withhold this www.regulations.gov. Follow the proposed rule. We particularly seek information from public review. instructions for submitting comments. comments concerning: However, we cannot guarantee that we U.S. mail or hand-delivery: Public (1) Biological, commercial trade, or will be able to do so. We will post all Comments Processing, Attn: [Docket No. other relevant data concerning any hardcopy submissions on http:// FWS-R4-ES-2010-0027]; Division of threats (or lack thereof) to these species www.regulations.gov. Please include Policy and Directives Management, U.S. and regulations that may be addressing sufficient information with your Fish and Wildlife Service, 4401 N. those threats; comments to allow us to verify any Fairfax Drive, Suite 222, Arlington, VA (2) Additional information concerning scientific or commercial information 22203. the ranges, distribution, and population you include.

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Comments and materials we receive, Thomas (2007, p. 4) did not encounter (Strange 1998, p. 101). Thomas (2007, p. as well as supporting documentation we the species in high-gradient sections of 3) provided the most recent information used in preparing this proposed rule, streams or areas dominated by cobble or on status and distribution of the species will be available for public inspection boulder substrates. Thomas (2007, p. 4) through completion of a range-wide on http://www.regulations.gov, or by reported that streams inhabited by status assessment in the upper appointment, during normal business Cumberland darters were second to Cumberland River drainage in hours, at the U.S. Fish and Wildlife fourth order, with widths ranging from Kentucky. Between June 2005 and April Service, Tennessee Ecological Services 4 to 9 meters (m) (11 to 30 feet (ft)) and 2007, a total of 47 sites were sampled Field Office (see FOR FURTHER depths ranging from 20 to 76 cm (8 to qualitatively in the upper Cumberland INFORMATION CONTACT section). 30 in). River drainage. All Kentucky sites with Little is known regarding the historic records were surveyed (20 Background reproductive habits of the Cumberland sites), as well as 27 others having Species Information darter. Thomas (2007, p. 4) reported the potentially suitable habitat. Surveys by collection of males in breeding Thomas (2007, p. 3) produced a total of Cumberland darter condition in April and May, with water 51 specimens from 13 localities (12 The Cumberland darter, Etheostoma temperatures ranging from 15 to 18o streams). Only one of the localities susanae (Jordan and Swain), is a Celsius (C) (59 to 64o Fahrenheit (F)). represented a new occurrence record for medium-sized member of the fish tribe Extensive searches by Thomas (2007, p. the species. Etheostomatini (Family ) that 4) produced no evidence of nests or eggs Currently, the Cumberland darter is reaches over 5.5 centimeters (cm) (2 at these sites. Species commonly known from 14 localities in a total of 12 inches (in)) standard length (SL) (SL, associated with the Cumberland darter streams in Kentucky (McCreary and length from tip of snout to start of the during surveys by Thomas (2007, pp. 4– Whitley Counties) and Tennessee caudal peduncle (slender region 5) were creek chub (Semotilus (Campbell and Scott Counties). All 14 extending from behind the anal fin to atromaculatus), extant occurrences of the Cumberland the base of the caudal fin)) (Etnier and ( nigricans), are restricted to short stream Starnes 1993, pp. 512). The species has darter (Etheostoma kennicotti), and reaches, with the majority believed to be a straw-yellow background body color Cumberland (Etheostoma restricted to less than 1.6 kilometers with brown markings that form six sagitta sagitta). Thomas (2007, p. 5) (km) (1 mile (mi)) of stream (O’Bara evenly spaced dorsal (back) saddles and collected individuals of the Federally 1991, pp. 9–10; Thomas 2007, p. 3). a series of X-, C-, or W-shaped markings threatened blackside dace, Phoxinus These occurrences are thought to form on its sides (Etnier and Starnes 1993, p. cumberlandensis, from three streams six population clusters (Bunches Creek, 510). During spawning season, the that also supported Cumberland darters. Indian Creek, Marsh Creek, Jellico overall body color of breeding males The Cumberland darter is endemic to Creek, Clear Fork, and Youngs Creek), darkens, and the side markings become the upper Cumberland River system which are geographically separated from obscure or appear as a series of blotches above Cumberland Falls in Kentucky one another by an average distance of (Etnier and Starnes 1993, p. 510). and Tennessee (O’Bara 1988, p. 1; 30.5 stream km (19 mi) (O’Bara 1988, p. The Cumberland darter was first O’Bara 1991, p. 9; Etnier and Starnes 12; O’Bara 1991, p. 10; Thomas 2007, p. reported as Boleosoma susanae by 1993, p. 511). The earliest known 3). Based on collection efforts by O’Bara Jordan and Swain (1883, pp. 249–250) collections of the species were made by (1991, pp. 9–10), Laudermilk and from tributaries of the Clear Fork of the Jordan and Swain (1883, pp. 249–250), Cicerello (1998, pp. 83–233, 303–408), Cumberland River, Kentucky. who recorded it as abundant in and Thomas (2007, p. 3), the species Subsequent studies by Kuhne (1939, p. tributaries of Clear Fork of the appears to be extirpated from 11 historic 92) and Cole (1967, p. 29) formerly Cumberland River, Kentucky. The collection sites and a total of 9 streams: recognized the taxon as a subspecies species was later reported from Gum Cumberland River mainstem, near (Etheostoma nigrum susanae) of E. n. Fork, Scott County, Tennessee, by mouth of Bunches Creek and nigrum (Johnny darter). Starnes and Shoup and Peyton (1940, p. 11), and Cumberland Falls (Whitley County); Starnes (1979, p. 427) clarified the seven additional tributaries of the Sanders Creek (Whitley County); Brier subspecific status of the Cumberland Cumberland River by Burr and Warren Creek (Whitley County); Kilburn Fork of darter, differentiating it from the Johnny (1986, p. 310). More exhaustive surveys Indian Creek (McCreary County); Bridge darter by several diagnostic by O’Bara (1988, p. 6; 1991, pp. 9–10) Fork (McCreary County); Marsh Creek, characteristics. Strange (1994, p. 14; and Laudermilk and Cicerello (1998; pp. near mouth of Big Branch and Caddell 1998, p. 101) recommended that E. n. 83–233, 303–408) determined that the Branch (McCreary County); Cal Creek susanae be elevated to specific status Cumberland darter was restricted to (McCreary County), Little Wolf Creek based on the results of mitochondrial short reaches of 20 small streams (23 (Whitley County); and Gum Fork (Scott DNA analyses of E. n. susanae and E. n. sites) in the upper Cumberland River County). No population estimates or nigrum. The Cumberland darter was system in Whitley and McCreary status trends are available for the recognized as a valid species, E. susanae Counties, Kentucky, and Campbell and Cumberland darter; however, survey (Cumberland darter), by Nelson et al. Scott Counties, Tennessee. These results by Thomas (2007, p. 3) suggest (2004, p. 233) based on the work of studies suggested the extirpation of the that the species is uncommon or occurs Strange (1994, p. 14; 1998, p. 101) and species from Little Wolf Creek, Whitley in low densities across its range a personal communication with W. C. County, Kentucky, and Gum Fork, Scott (Thomas (2007, p. 3). Starnes (May 2000), who suggested the County, Tennessee. Preliminary reports The Cumberland darter is ranked by common name. of disjunct populations in the Poor Fork the Kentucky State Nature Preserves The Cumberland darter inhabits pools Cumberland River and Martins Fork in Commission (2009, p. 38) as a G1G2S1 or shallow runs of low to moderate Letcher and Harlan Counties, Kentucky species: critically imperiled or gradient sections of streams with stable (Starnes and Starnes 1979, p. 427; imperiled globally and critically sand, silt, or sand-covered bedrock O’Bara 1988, p. 6; O’Bara 1991, pp. 9– imperiled in Kentucky. The Kentucky substrates (O’Bara 1988, pp. 10–11; 10), were evaluated genetically and Department of Fish and Wildlife O’Bara 1991, p. 10; Thomas 2007, p. 4). determined to be the Johnny darter Resources State Wildlife Action Plan

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identified the Cumberland darter as a from 3.0 cm to 0.5 m ( 0.1 ft to 1.6 ft), drainage in Winston County; an species of Greatest Conservation Need with moderate water velocity in riffles unnamed spring run of Beaver Creek (KDFWR 2005, p. 2.2.2). The plan and no flow or low flow in pools. Rush and from Penny Springs of the Turkey identified several top conservation darters have not been found in higher Creek drainage in Jefferson County; and actions for the Cumberland darter and gradient streams with bedrock Cove Spring (Little Cove Creek system) other species in its Aquatic Guild substrates and sparse vegetation (Stiles and Bristow Creek of the Locust Fork (Upland Headwater Streams in Pools): and Mills 2008, pp. 1–4; Bart 2002, p. drainage in Etowah County. acquisition or conservation easements 1; Johnston and Kleiner 2001, pp. 3–4; Currently, the three rush darter for critical habitat, development of Stiles and Blanchard 2001, pp. 1–4; Bart populations occur in the same financial incentives to protect riparian and Taylor 1999, p. 32). watersheds but in a more limited corridors, development and Stiles and Mills (2008, p. 2) found distribution. One population is located implementation of best management gravid rush darter females in February in Wildcat Branch and Mill Creek in the practices, and restoration of degraded and fry (newly hatched larval fish) in Clear Creek drainage in Winston County habitats through various State and late April from a wetland pool in the (Johnston and Kleiner 2001, p. 4); the Federal programs. Mill Creek watershed (Winston County, second is located in an unnamed spring Alabama). These pools act as nursery run to Beaver Creek and in Penny Rush Darter areas for the fry (Stiles and Mills 2008, Springs in the Turkey Creek drainage in The rush darter (Etheostoma p. 5). Even though the life history of the Jefferson County (Stiles and Blanchard phytophilum), a medium-sized darter in rush darter is poorly known, it is likely 2001, p. 2); and the third is in the Little the subgenus Fuscatelum, was described similar to the closely related goldstripe Cove Creek drainage population. The by Bart and Taylor in 1999 (pp. 27–33). darter. Spawning of the Little Cove Creek population in Etowah The average size of the rush darter is 5 in Alabama occurs from mid March County was known from only a single cm (2 in) SL (Bart and Taylor 1999, p. through June (Mettee et al. 1996, p. 655). specimen collected in Cove Spring in 28; Johnston and Kleiner 2001, p. 3). Goldstripe larvae reared in captivity 1975 (Bart and Taylor 1999, p. 28) and The rush darter is closely related to the avoid downstream drift (Conservation one specimen from Bristow Creek goldstripe darter (Etheostoma Fisheries, Inc., 2005, p. 7). This collected in 1997 (Bart 2002, p. 7). parvipinne), a drab-colored species with behavior alteration may inhibit Kuhajda (2008, pers. comm.) discovered a thin golden stripe along the lateral line dispersal capabilities between isolated a single specimen of the species in 2005, (canal along the side of a fish with suitable habitat patches, and may at the confluence of the Cove Spring run sensory capabilities) that is surrounded reduce the success of captively bred where it drains into an unnamed by heavily mottled or stippled sides individuals in the wild. Preferred food swamp. (Shaw 1996, p. 85). However, the items for the goldstripe darter include Rush darter populations are separated distinct golden stripe characteristic of midges, mayflies, blackflies, beetles, and from each other geographically, and goldstripe darters is not well developed microcrustaceans (Mettee et al. 1996, p. individual rush darters are only in rush darters (Bart and Taylor 1999, p. 655). The life span of the goldstripe sporadically collected at a particular site 29). Also, the brown pigment on the darter is estimated to be 2 to 3 years. within their range. Where it occurs, the sides of the rush darter is usually not as The rush darter currently has a rush darter is apparently an uncommon intense as in the goldstripe darter. Other restricted distribution (Johnston and species that is usually collected in low characteristics of the rush darter are Kleiner 2001, p. 1). All rush darter numbers (Bart and Taylor 1999, p. 32). described in Bart and Taylor (1999, p. populations are located above the Fall Since 1969, approximately 100 rush 28). Line (the inland boundary of the Coastal darters have been collected or captured Rush darters have been collected from Plain physiographic region) and other and released within the species’ range various habitats (Stiles and Mills 2008, ‘‘highland regions’’ where topography (compiled from Bart and Taylor 1999, pp. 1–4; Bart 2002, p. 1; Johnston and and elevation changes are observed pp. 31–32; Johnston and Kleiner 2001, Kleiner 2001, pp. 3–4; Stiles and presenting a barrier for fish movement pp. 2–4; Stiles and Blanchard 2001, pp. Blanchard 2001, pp. 1–4; Bart and (Boshung and Mayden 2004, p. 18)) in 1–4; Johnston 2003, pp.1-3; P. Rakes Taylor 1999, p. 32), including root the Tombigbee–Black Warrior drainage 2010, pers.comm.); however, there are masses of emergent vegetation along the (Warren et al. 2000, pp. 9, 10, 24), in no population estimates at this time. margins of spring-fed streams in very portions of the Appalachian Plateau, Cumulatively, the rush darter is only shallow, clear, cool, and flowing water; and Valley and Ridge physiographic known from localized collection sites and from both small clumps and dense provinces of Alabama. The closely within approximately 14 km (9 mi ) of stands of bur reed (Sparganium sp.), related goldstripe darter in Alabama streams in the Clear Creek, Little Cove coontail (Ceratophyllum sp.), occurs essentially below the Fall Line in and Bristow Creek, and Turkey Creek (Nasturtium officinale), and rush all major systems except the Coosa drainages in Winston, Etowah, and (Juncus sp.) in streams with substrates system (Boshung and Mayden 2004, p. Jefferson Counties, respectively. of silt, sand, sand and silt, muck and 550). Reports of goldstripe darters from Currently, about 3 km (2 mi) of stream, sand or some gravel with sand, and the 1960s and 1970s in Winston and or about 22 percent of the rush darter’s bedrock. Rush darters appear to prefer Jefferson Counties, Alabama (Caldwell known range, is not occupied, which springs and spring-fed reaches of 1965, pp. 13–14; Barclay 1971, p. 38; may be due to non-point source relatively low-gradient small streams Dycus and Howell 1974, pp. 21–24; pollution (e.g., sedimentation and which are generally influenced by Mettee et al. 1989, pp. 13, 61, 64), which chemicals) from agriculture, springs (Stiles and Mills 2008, pp. 1–4; are above the Fall Line, were made prior urbanization, and road construction and Fluker et al. 2007, p. 1; Bart 2002, p. 1; to the description of the rush darter, but maintenance. Johnston and Kleiner 2001, pp. 3–4; are now considered to be rush darters Within the Clear Creek drainage, the Stiles and Blanchard 2001, pp. 1–4; Bart (Kuhajda 2008, pers. comm.). rush darter has been collected in and Taylor 1999, p. 32). Rush darters Historically, rush darters have been Wildcat Branch, Mill Creek, and Doe have also been collected in wetland found in three distinct watersheds in Creek, which represents about 13 km (8 pools (Stiles and Mills 2008; pp. 2–3). Alabama: Doe Branch, Wildcat Branch, mi) of stream or about 94 percent of the Water depth at collection sites ranged and Mill Creek of the Clear Creek species’ total cumulative range. Recent

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surveys (Stiles and Mills 2008, pp. 1–4; females possess orange and red-orange substrates (often behind large cobble or Johnston and Kleiner 2001, p. 3) have spots but are not brightly colored boulders) with only their heads and documented the absence of the rush (Robison and Buchanan 1988, pp. 427– caudal fin exposed. A male yellowcheek darter in Doe Creek, possibly indicating 429). First collected in 1959 from the darter will then position upstream of the a reduction of the species’ known range Devils Fork Little Red River, Cleburne buried female and fertilize her eggs as within the Clear Creek drainage by County, Arkansas, this species was she releases them in a vibrating motion. about 3 km (2 mi) of stream or 22 eventually described by Raney and Clutch size and nest defense behavior percent. Rush darters were collected in Suttkus in 1964, using 228 specimens were not observed. October 2005 and again in June 2008 from the Middle, South, and Devils The yellowcheek darter is endemic to and 2009 in the Little Cove Creek Forks of the Little Red River (Devils the Devils, Middle, South, and Archey drainage (Cove Spring run), a first since Fork, Turkey Fork, and Beech Fork Forks of the Little Red River and main 1975, despite sporadic surveys over the represent one stream with three stem Little Red River in Cleburne, last 30 years. This rediscovery of the different names and are subsequently Searcy, Stone, and Van Buren Counties, species confirms the continued referred to in this proposed rule as Arkansas (Robison and Buchanan 1988, existence of the species in Etowah ‘‘Devils Fork’’). Wood (1996, p. 305) p. 429). In 1962, the construction of a County and Cove Spring. However, the verified the taxonomic status of the dam on the Little Red River to create Little Cove Creek drainage constitutes yellowcheek darter within the subgenus Greers Ferry Reservoir impounded an increase of only 0.05 km (0.02 mi) of . The yellowcheek darter is much of the range of this species, occupied stream habitat or a 1.6 percent one of only two members of the including the lower reaches of Devils addition to the total range of the species. subgenus Nothonotus known to occur Fork, Middle Fork, South Fork, and No collections of the species have west of the Mississippi River. portions of the main stem Little Red occurred at Bristow Creek since 1997. The yellowcheek darter inhabits high- River, thus extirpating the species from Bristow Creek has since been gradient headwater tributaries with these reaches. Yellowcheek darter was channelized (straightened and deepened clear water; permanent flow; moderate also extirpated from the Little Red River to increase water velocity). In the to strong riffles; and gravel, rubble, and downstream of Greers Ferry Reservoir Turkey Creek drainage, rush darters boulder substrates (Robison and due to cold tailwater releases. The lake have been collected sporadically within Buchanan 1988, p. 429). Yellowcheek flooded optimal habitat for the species, Penny Springs and at the type locality darter prey items include aquatic and caused the genetic isolation of for the species (an unnamed spring run dipteran larvae, stoneflies, mayflies, and populations (McDaniel 1984, p. 1). The in Jefferson County, Alabama) (Bart and caddisflies (McDaniel 1984, p. 56). yellowcheek darter was known to Taylor 1999, pp. 28, 33). This area Male and female yellowcheek darters historically occur in portions of these contains about 0.5 km (0.3 mi) of reach sexual maturity at one year of age, streams that maintained permanent occupied stream habitat or and maximum life span is around five year-round flows. approximately 4 percent of the rush years (McDaniel 1984, pp. 25, 76). In the 1978-81 study by Robison and darter’s total range. Spawning occurs from late May through Harp (1981, pp. 15–16), yellowcheek The rush darter is ranked by the June in the swift to moderately swift darter occurred in greatest numbers in Alabama Department of Conservation portions of riffles, often around or under the Middle and South Forks of the Little and Natural Resources (2005) as a the largest substrate particles (McDaniel Red River, with populations estimated P1G1S1 species signifying its rarity in 1984, p. 82), although brooding females at 36,000 and 13,500 individuals, Alabama and its status as critically have been found at the head of riffles in respectively, while populations in both imperiled globally. It is also considered smaller gravel substrate (Wine et al. Devils Fork and Archey Fork were a species of Greatest Conservation Need 2000, p. 3). During non-spawning estimated at approximately 10,000 (GCN) by the State. The rush darter has months, there is a general movement to individuals (Robison and Harp 1981, a High Priority Conservation Actions portions of the riffle with smaller pp. 5–11). During this study, the four Needed and Key Partnership substrate, such as gravel or cobble, and forks of the Little Red River supported Opportunities ranking of ‘‘CA 6,’’ the less turbulence (Robison and Harp 1981, an estimated yellowcheek darter highest of any fish species listed. The p. 3). Weston and Johnson (2005, p. 24) population of 60,000 individuals, and plan states that the species consists of observed that the yellowcheek darter the species was considered the most disjoint populations and information is moved very little during a 1–year abundant riffle fish present (Robison needed to determine genetic structuring migration study. It was noted that the and Harp 1981, p. 14). Extensive within the populations. Conservation yellowcheek darter appears to be a sampling of the first two tributaries of Actions for the species may require relatively non-mobile species, with 19 the Little Red River below Greers Ferry population augmentation and/or of 22 recaptured darters found within 9 Dam (both named Big Creek) failed to reintroduction of the species to suitable meters (29.5 feet) of their original find any yellowcheek darters, and no habitats to maintain viability. capture position after periods of several darters were found in immediately months. A number of life history adjacent watersheds (Robison and Harp Yellowcheek Darter characteristics, including courtship 1981, p. 5). The yellowcheek darter (Etheostoma patterns, specific spawning behaviors, Two subsequent studies have failed to moorei) is a small and compressed fish egg deposition sites, number of eggs per observe specimens of yellowcheek which attains a maximum SL of about nest, degree of nest protection by males, darter in the Turkey Fork reach of the 64 mm (2.5 in), and has a moderately and degree of territoriality are unknown Devils Fork Little Red River (Wine et al. sharp snout, deep body, and deep at this time; however, researchers have 2000, p. 9; Wine and Blumenshine 2002, caudal peduncle (Raney and Suttkus suggested that the yellowcheek darter p. 11), since four individuals were last 1964, p. 130). The back and sides are deposit eggs on the undersides of larger collected by Arkansas State University grayish brown, often with darker brown rubble in swift water (McDaniel 1984, p. (ASU) researchers in 1999 (Mitchell et saddles and lateral bars. Breeding males 82). Wine and Blumenshine (2002, p. al. 2002, p. 129). They have been are brightly colored with a bright blue 10) noted that during laboratory observed downstream within that or brilliant turquoise breast, and throat spawning, female yellowcheek darters system in the Beech Fork reach, where and light green belly, while breeding bury themselves in fine gravel/sand flows are more permanent. The reach

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downstream of Raccoon Creek is than community phenomenon (Wine et individuals have been encountered influenced by inundation from Greers al. 2000, p. 11). since 2000, 1 in 2000 (Lang et al. 2001, Ferry Reservoir and no longer supports Weston and Johnson (2005, p. 22) p. 2) and 2 in 2004 (Conservation yellowcheek darter. The U.S. Army estimated yellowcheek darter Fisheries, Inc. 2008, unpublished data), Corps of Engineers channelized populations within the Middle Fork to despite surveys that have been approximately 5.6-km (3.5 mi) of the be between 15,000 and 40,000 conducted in both historic localities at lower Archey and South Forks Little individuals, and between 13,000 and least twice a year since 2000 (Rakes and Red River located within the city limits 17,000 individuals in the South Fork. Shute 2004 pp. 2-3; Weber and Layzer of Clinton, Arkansas, in 1985 for flood Such increases since the status survey 2007, p. 4 Conservation Fisheries, Inc. control purposes. Yellowcheek darter done in 2000 would indicate remarkable 2008, unpublished data). In addition, has not been collected within this 5.6- adaptability to changing environmental several streams in the Nolichucky, km (3.5-mi) reach since channelization. conditions. However, it should be noted Holston, and French Broad River The yellowcheek darter otherwise that estimates were based upon mark/ watersheds of the upper Tennessee recapture estimates using the Jolly-Seber inhabits most of its historical range, River basin, which are similar in size method which requires high numbers of although in greatly reduced numbers in and character to Little Chucky Creek, recaptured specimens for accurate have been surveyed with no success the Middle, South, Archey, and Devils estimations. Recaptures were extremely (Burr and Eisenhour 1994 pp. 1-2; Shute Forks of the Little Red River. low during that study; therefore, et al. 1997 p. 5; Lang et al. 2001, pp. 2- While collecting specimens for the population estimates were highly 3; Rakes and Shute 2004 p.1). 1999 genetic study, ASU researchers variable and confidence in the resulting Conservation Fisheries, Inc., did not discovered that the yellowcheek darter estimates is low. find chucky madtoms in 2007 after was no longer the most abundant riffle The yellowcheek darter is ranked by attempting new sampling techniques fish and was more difficult to find the Arkansas Natural Heritage (e.g., PVC ‘‘jug’’ traps) (Conservation (Wine et al. 2000, p. 2). Because optimal Commission (ANHC) (2007, pp. 2–118) Fisheries, Inc. 2008, unpublished data). habitat had been destroyed by the as an S1G1 species: extremely rare in Originally, museum specimens creation of Greers Ferry Lake, Arkansas, and critically imperiled collected from the Roaring River yellowcheek darters were confined to globally. The Arkansas Game and Fish (Cumberland River drainage) and from upper stream reaches with lower Commission’s Arkansas Wildlife Action the Paint Rock River system in Alabama summer flow, smaller substrate particle Plan assigns the yellowcheek darter a (a Tennessee River tributary well size, and reduced gradient. A thorough score of 100 out of 100, representing a downstream of the Nolichucky and status survey conducted in 2000 found critically imperiled species with Little Pigeon River sites) were first the yellowcheek darter in three of four declining populations (AGFC 2005, pp. identified and catalogued as Noturus historic forks in greatly reduced 452–454). elegans and thought to be chucky numbers (Wine et al. 2000, p. 9). Chucky Madtom madtoms. The Roaring River specimens Populations in the Middle Fork were are now considered to be a member of The chucky madtom (Noturus the N. elegans group, but have not been estimated at approximately 6,000 crypticus) is a small catfish, with the individuals, the South Fork at 2,300, assigned to a species. While the largest specimen measuring 6.47 cm specimens from the Paint Rock River and the Archey Fork at 2,000. (2.55 in) SL (Burr et al. 2005, p. 795). Yellowcheek darter was not collected system share typical anal ray counts Burr et al. (2005) described the chucky with the chucky madtom, they lack the from the Devils Fork. Yellowcheek madtom, confirming previous analyses darter was the fifth most abundant riffle distinctive cheek characteristics, differ (Burr and Eisenhour 1994), which in pelvic ray counts, and are fish rangewide, while historically it was indicated that the chucky madtom is a the most abundant riffle fish. Fish intermediately shaped between the unique species, a member of the Rabida chucky and saddled madtoms, Noturus community composition was similar subgenus (i.e., the ‘‘mottled’’ or fasciatus, with respect to body width as from 1978-1981 and 2000 studies, but ‘‘saddled’’ madtoms), and a member of a proportion of SL (Burr et al. 2005, p. the proportion of yellowcheek darter the Noturus elegans species complex 796). Thus, the Little Chucky and Dunn declined from approximately 28 percent (i.e., N. elegans, N. albater, and N. Creek forms are the only forms that are to 6 percent of the overall composition. trautmani) ascribed by Taylor (1969 in recognized as chucky madtoms. Fish known to co-exist with Grady and LeGrande 1992). A robust All of the specimens collected in yellowcheek darter include the rainbow madtom, the chucky madtom body is Little Chucky Creek have been found in darter (E. caeruleum) and greenside wide at the pectoral fin origins, greater stream runs with slow to moderate darter (E. blennioides), which can use than 23 percent of the SL. The dorsum current over pea gravel, cobble, or slab- pool habitats during periods of low (back) contains three dark, nearly black rock substrates (Burr and Eisenhour flow, as evidenced by the collection of blotches ending abruptly above the 1994, p. 2). Habitat of these types is these two species from pools during lateral midline of the body, with a sparse in Little Chucky Creek, and the electroshocking activities. moderately contrasting, oval, pale stream affords little loose, rocky cover Electroshocking has not revealed saddle anterior to each blotch (Burr et suitable for madtoms (Shute et al. 1997, yellowcheek darter in pools, suggesting al. 2005, p. 795). p. 8). It is notable that intact riparian perhaps that they are unable to tolerate The chucky madtom is a rare catfish buffers are present in the locations pool conditions (deep, slow-moving known from only 15 specimens where chucky madtoms have been water usually devoid of cobble collected from two Tennessee streams. found (Shute et al. 1997, p. 9). substrate). An inability to use pools A lone individual was collected in 1940 No studies to determine the life during low flows would make them from Dunn Creek (a Little Pigeon River history and behavior of this species much more vulnerable to seasonal tributary) in Sevier County, and 14 have been conducted. While nothing is fluctuations in flows that reduce riffle specimens have been encountered since known specifically about chucky habitat. As a result, researchers have 1991 in Little Chucky Creek (a madtom reproductive biology, suggested that yellowcheek darter Nolichucky River tributary) in Greene recruitment, growth and longevity, food declines are more likely a species rather County. Only 3 chucky madtom habits, or mobility, available

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information for other similar members information from other members of this of the surveys, but no chucky madtoms of the Noturus group are known. N. genus for which longevity data are were found. There are no population hildebrandi may reach sexual maturity available, Noturus hildebrandi and N. size estimates or status trends for the at one or more years of age (i.e., during baileyi, it is unlikely that chucky chucky madtom due to low numbers their second summer) (Mayden and madtoms can survive this long in the and only sporadic collections of Walsh 1984, p. 351). Only the largest wild. The shorter lived of these, N. specimens. females of N. albater were found to be hildebrandi reached a maximum age of The chucky madtom is ranked by the sexually mature, and males were found 18 months, though most individuals Tennessee Natural Heritage Program to be sexually mature primarily within lived little more than 12 months, dying (Withers 2009, p. 58) as an S1G1 the second age class (Mayden et al. soon after reproducing (Mayden and species: extremely rare in Tennessee, 1980, p. 339). Though, a single large Walsh 1984, p. 351). Based on length- and critically imperiled globally. In the male of the first age class showed frequency distributions, N. baileyi Tennessee Comprehensive Wildlife evidence of sexual maturity (Mayden et exhibited a lifespan of 2 years, with two Conservation Strategy (CWCS), species al. 1980, p. 339). The breeding season in cohorts present in a given year (Dinkins of Greatest Conservation Need (GCN) N. hildebrandi and N. baileyi was and Shute 1996, p. 53). Collection of were selected based on their Global primarily during June through July, two age classes together provided imperilment (G1-G3; critically imperiled though development of breeding evidence that life expectancy exceeds 1 globally—very rare or restricted condition was initiated as early as April year in N. stanauli (Etnier and Jenkins throughout their range), knowledge of in N. hildebrandi and May in N. baileyi 1980, p. 20). Noturus albater lives as declining trends or vulnerability, or due (Mayden and Walsh 1984, p. 353; long as 3 years (Mayden et al. 1980, p. to significance of an otherwise wide- Dinkins and Shute 1996, p. 56). 337). ranging species (TWRA 2005, p. 36). Fecundity varied among the species for Invertebrate taxa form the primary Species of GCN were further prioritized which data were available; however, it food base for madtoms. Chironomid into three different tiers to distinguish should be noted that fecundity in (midge), trichopteran (caddisfly), their status within the State and to madtoms is generally lower in plecopteran (stonefly), and determine conservation funding comparison to other North American ephemeropteran (mayfly) larvae were availability. The CWCS designated the freshwater fishes (Breder and Rosen frequently encountered in stomach chucky madtom as a Tier 1 GCN species 1966 in Dinkins and Shute 1996, p. 58). contents of Noturus hildebrandi in the State, representing species Dinkins and Shute (1996, p. 58) (Mayden and Walsh 1984, p. 339). In N. defined as wildlife (amphibians, birds, commented that for N. baileyi the baileyi, ephemeropteran nymphs fish, mammals, reptiles, , combination of relatively large egg size comprised 70.7 percent of stomach and mollusks) under Tennessee Code and high level of parental care given to contents analyzed, dipterans (flies, Annotated 70-8-101, and excluding the fertilized eggs and larvae reduce mosquitoes, midges, and gnats) 2.4 Federally listed species (TWRA 2005, p. early mortality and therefore the need to percent, trichopterans 4.4 percent, and 44, 49). Tier 1 species were the primary produce a large number of young. plecopterans 1.0 percent (Dinkins and focus of the Tennessee CWCS (TWRA Sexual dimorphism (two different forms Shute 1996, p. 61). Significant daytime 2005, p. 44). feeding was observed in N. baileyi. for male and female individuals) has Laurel Dace been observed only in a single pair of The only data on mobility were for specimens of N. baileyi collected during Noturus baileyi, which were found The laurel dace (Phoxinus saylori) has the month of May; the male of this pair underneath slabrocks in swift to two continuous black lateral stripes and had swollen lips and enlarged moderate current during May to early black pigment covering the breast and mandibulae (lower jaw) muscles behind November. Habitat use shifted to underside of the head of nuptial the eyes, and the female had a distended shallow pools over the course of a 1– (breeding) males (Skelton 2001, p. 120). abdomen (Burr et al. 2005, p. 795). week period, coinciding with a drop in While the belly, breast, and lower half Both Noturus baileyi and N. elegans water temperature to 7 or 8° C (45 to 46 of the head are typically a whitish- were found to nest under flat rocks at or ° F), and persisted from early November silvery color, at any time of the year near the head of riffles (Dinkins and to May (Dinkins and Shute 1996, p. 50). laurel dace may develop red coloration Shute 1996, p. 56; Burr and Dimmick The current range of the chucky below the lateral stripe that extends 1981, p. 116). Shallow pools were also madtom is believed to be restricted to an from the base of the pectoral fins to the used by N. baileyi, which was observed approximately 3-km (1.8-mi) reach of base of the caudal fin (Skelton 2001, p. to select rocks of larger dimension for Little Chucky Creek in Greene County, 121). nesting than were used for shelter Tennessee. Because this species was Nuptial males often acquire brilliant during other times of year (Dinkins and also collected from Dunn Creek, a coloration during the breeding season, Shute 1996, p. 56). Single madtoms stream that is in a different watershed as the two lateral stripes, breast, and were found to guard nests in N. baileyi and physiographic province than Little underside of head turn intensely black and N. elegans, behavior also exhibited Chucky Creek, it is likely that the and the entire ventral (lower/ by N. albater and N. hildebrandi historic range of the chucky madtom abdominal) portion of the body, (Dinkins and Shute 1996, p. 56; Burr encompassed a wider area in the Ridge contiguous with the lower black stripe and Dimmick 1981, p. 116; Mayden et and Valley and the Blue Ridge and black breast, becomes an intense al. 1980, p. 337; Mayden and Walsh physiographic provinces in Tennessee scarlet color. All of the fins acquire a 1984, p. 357). Males of these species than is demonstrated by its current yellow color, which is most intense in were the nest guardians and many were distribution. A survey for the chucky the paired fins and less intense in the found to have empty stomachs madtom in Dunn Creek in 1996 was not dorsal, anal, and caudal fins. Females suggesting that they do not feed during successful at locating the species (Shute also develop most of these colors, nest guarding, which can last as long as et al. 1997, p. 8). The Dunn Creek though of lesser intensity (Skelton 2001, 3 weeks. population may be extirpated (Shute et p. 121). Broadly rounded pectoral fins of Conservation Fisheries, Inc., had one al. 1997, p. 6; Burr et al. 2005, p. 797), males are easily discerned from the male chucky madtom in captivity from because adequate habitat and a diverse broadly pointed fins of females at any 2004 through 2008. However, based on fish community were present at the time time during the year. The maximum SL

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observed is 5.1 cm (2 in) (Skelton 2001, during a rotenone survey of Laurel (Strange and Skelton 2005, p. 7). p. 124). Branch in 1976 to represent laurel dace Nuptial males are easily identified from Laurel dace have been most often that were misidentified as southern other species present in Bumbee Creek collected from pools or slow runs from redbelly dace, as was found to be true due to their brilliant coloration during undercut banks or beneath slab for specimens collected by TVA from the breeding season, as the two lateral boulders, typically in first or second Horn Branch in 1976, but no specimens stripes, breast, and underside of head order, clear, cool (maximum are available for confirmation. In 1991, turn intensely black and the entire temperature 26° C or 78.8° F) streams. and in four other surveys (in 1995, 1996 ventral (lower/abdominal) portion of the Substrates in streams where laurel dace and 2004), laurel dace were not body, contiguous with the lower black are found typically consist of a mixture collected in Laurel Branch, leading stripe and black breast, becomes an of cobble, rubble, and boulders, and the Skelton to the conclusion that laurel intense scarlet color. This brilliant streams tend to have a dense riparian dace have been extirpated from this coloration is easily seen through zone consisting largely of mountain stream (Skelton 1997, p. 13; 2001, p. binoculars at short distances by trained laurel (Skelton 2001, pp. 125–126). 126, Skelton 2009, pers. comm.). individuals. Skelton (2001, p. 126) reported having Skelton (2009, pers. comm.) also noted No population estimates are available collected nuptial individuals from late that the site was impacted by silt. for laurel dace. However, based on March until mid-June, though Call (Call The current distribution of laurel dace trends observed in surveys and 2004, pers. obs.) observed males in comprises six of the seven streams that collections since 1991, Strange and waning nuptial color during surveys on were historically occupied; the species Skelton (2005, p. 8) concluded that this July 22, 2004. Laurel dace may be a is considered extirpated from Laurel species is persisting in Young’s, spawning nest associate where syntopic Branch (see above). In these six streams, Moccasin, and Bumbee creeks in the (sharing the same habitat) with nest- they are known to occupy reaches of Piney River watershed, but is at risk of building minnow species, as has been approximately 0.3 to 8 km (0.2 to 5 mi) extirpation from the southern part of documented in Phoxinus in length. The laurel dace is known Walden Ridge in Soddy Creek, and in cumberlandensis (Starnes and Starnes from a single reach in Soddy Creek, and the Horn Branch and Cupp Creek areas 1981, p. 366). Soddy Creek is the only surveys in 2004 produced only a single, that are tributaries to Sale Creek. As location in which Skelton (2001, p. 126) juvenile laurel dace (Strange and noted above, the species is considered has collected a nest-building minnow Skelton 2005, pp. 5–6 and Appendices to be extirpated from Laurel Branch, with laurel dace. Skelton (2001, p. 126) 1 and 2). In Horn Branch, laurel dace are which is part of the Sale Creek system. reports finding as many as three year known from approximately 900 m The laurel dace is ranked by the classes in some collections of laurel (2,953 ft), but have become increasingly Tennessee Natural Heritage Program dace, though young-of-year fish are difficult to collect (Skelton 1997, pp. (Withers 2009, p. 60) as an S1G1 uncommon in collections. Observations 13–14). Skelton (1997, p. 14) reports species: extremely rare in Tennessee, of three year classes indicate that laurel that minnow traps have been the most and critically imperiled globally. dace live as long as 3 years. successful method for collecting live In the Tennessee CWCS, species of Skelton (2001, p. 126) qualitatively laurel dace from Horn Branch, as it is GCN were selected based on their analyzed stomach contents of 12 laurel difficult to electroshock due to in- Global imperilment (G1-G3; critically dace and found the species eats a stream rock formations and fallen trees. imperiled globally—very rare or mixture of food items, dominantly Only a single juvenile was caught in restricted throughout their range), benthic invertebrates, including 2004 (Strange and Skelton 2005, p. 6). knowledge of declining trends or Trichopteran, Plecopteran, and Dipteran A total of 19 laurel dace were collected vulnerability, or due to significance of larva. Some intestines contained plant from Cupp Creek during 1995 and 1996 an otherwise wide-ranging species material and sand grains. Skelton using an electroshocker (Skelton 1996, (TWRA 2005, p. 36). Species of GCN observed that the morphological feeding p. 14). However, Skelton found no were further prioritized into three traits of laurel dace, including large laurel dace in this stream in 2004, different tiers to distinguish their status mouth, short digestive tract, reduced despite attempts to collect throughout within the State and to determine number of pharyngeal (located within an approximately 700-m (2,297-ft) reach conservation funding availability. The the throat) teeth, and primitively shaped (Strange and Skelton 2005, p. 6). CWCS designated the laurel dace as a basioccipital bone (bone that articulates Laurel dace were initially found in Tier-1 GCN species in the State, the vertebra) are consistent with a diet Young’s, Moccasin, and Bumbee creeks representing species defined as wildlife consisting largely of material. in the Piney River system in 1996 (amphibians, birds, fish, mammals, Laurel dace are known historically (Skelton 1997, pp. 14–15). Sampling in reptiles, crustaceans, and mollusks) from seven streams on the Walden 2004 led to the discovery of additional under Tennessee Code Annotated 70-8- Ridge portion of the Cumberland laurel dace localities in Young’s and 101, and excluding federally listed Plateau, where drainages generally Moccasin creeks, but the locality where species (TWRA 2005, p. 44, 49). Tier 1 meander eastward before dropping laurel dace were found in Young’s Creek species were the primary focus of the abruptly down the plateau escarpment in 1996 was inaccessible due to the and draining into the Tennessee River. presence of a locked gate (Strange and Tennessee CWCS(TWRA 2005, p. 44). Specifically, these seven streams occur Skelton 2005, p. 6–7). The new Previous Federal Action in three independent systems: Soddy localities were in the headwaters of Creek; three streams that are part of the these two streams. Persistence of laurel Cumberland Darter Sale Creek system (the Horn and Laurel dace at the Bumbee Creek locality was On September 18, 1985, the Service branch tributaries to Rock Creek, and confirmed in 2004 by surveying from a announced that the Cumberland darter the Cupp Creek tributary to Roaring nearby road using binoculars. Direct was being considered for possible Creek); and three streams that are part surveys were not possible because the addition to the List of Endangered and of the Piney River system (Young’s, land had been leased to a hunt club for Threatened Wildlife (50 FR 37958). It Moccasin, and Bumbee creeks). Skelton which contact information was not was assigned a Category 2 status, which (2001, p. 126) considered collections by available, and therefore survey was given to those species for which the the Tennessee Valley Authority (TVA) permission could not be obtained Service possessed information

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indicating that proposing to list as In 2006, we changed the listing Laurel Dace endangered or threatened was possibly priority number of the rush darter from We first identified the laurel dace as appropriate, but for which conclusive 5 to 2 based on the imminent threat of a new candidate for listing in the 2007 data on biological vulnerability and water quality deterioration (i.e., Candidate Notice of Review (72 FR threat was not currently available to increased sedimentation due to 69036). New candidates are those taxa support proposed rules. In the 1989, urbanization, road maintenance, and for which we have sufficient 1991, and 1994 Candidate Notices of silviculture practices) (71 FR 53755). In information on biological vulnerability Review, the Cumberland darter was the 2009 Candidate Notice of Review and threats to support preparation of a again assigned a Category 2 status (54 (74 FR 57869), the rush darter retained listing proposal, but for which FR 554, 56 FR 58804, 59 FR 58982). a listing priority of 2. development of a listing regulation is Assigning categories to candidate Yellowcheek Darter precluded by other higher priority species was discontinued in 1996, and listing activities. only species for which the Service had We first identified the yellowcheek In the 2007 Candidate Notice of sufficient information on biological darter as a candidate for listing in the Review, we assigned the laurel dace a vulnerability and threats to support 2001 Candidate Notice of Review (66 FR listing priority of 5 (72 FR 69036), and issuance of a proposed rule were 54807). The yellowcheek darter was it was again identified as a listing regarded as candidate species (61 FR assigned a listing priority number of 2 priority 5 candidate species in the 2008 7596). Candidate species were also and has retained that status in the 2002, and 2009 Candidate Notices of Review assigned listing priority numbers based 2004, 2005, 2006, 2007, 2008, and 2009 (73 FR 75236, 74 FR 57869). This on immediacy and the magnitude of Candidate Notices of Review (67 FR number reflects the high magnitude and threat, as well as their taxonomic status. 40657, 69 FR 24875, 70 FR 24869, 71 FR non-imminence of threats to the species. In the 1999, 2001, 2002, and 2004 53755, 72 FR 69073, 73 FR 75175). We Candidate Notices of Review, the published a petition finding for Summary of Factors Affecting the Cumberland darter was identified as a yellowcheek darter in the 2005 Species listing priority 6 candidate species (64 Candidate Notice of Review in response Section 4 of the Act (16 U.S.C 1533), FR 57533, 66 FR 54807, 67 FR 40657, to a petition received on May 11, 2004 and its implementing regulations (50 69 FR 24875). We published a petition (70 FR 24869). The yellowcheek darter CFR Part 424), set forth the procedures finding for Cumberland darter in the is covered by a 2007 programmatic for adding species to the Federal Lists 2005 Candidate Notice of Review (70 FR Candidate Conservation Agreement with of Endangered and Threatened Wildlife 24869) in response to a petition received Assurances (71 FR 53129) that covers and Plants. We may determine a species on May 11, 2004. We continued to the entire range of the species. to be endangered or threatened due to assign the Cumberland darter a listing Chucky Madtom one or more of the five factors described priority number of 6, reflecting a threat in section 4(a)(1) of the Act. The five magnitude and immediacy of high and We first identified the chucky listing factors are: (A) The present or non-imminent, respectively. In the 2006 madtom as a possible candidate for threatened destruction, modification, or Candidate Notice of Review, we listing in the 1994 Candidate Notice of curtailment of its habitat or range; (B) changed the listing priority number for Review (59 FR 58982). It was assigned overutilization for commercial, Cumberland darter from 6 to 5, because a Category 2 status, which was given to recreational, scientific, or educational it was formally described as a distinct those species for which the Service purposes; (C) disease or predation; (D) species (71 FR 53755). Based on new possessed information indicating that the inadequacy of existing regulatory molecular evidence, the subspecies proposing to list as endangered or mechanisms; and (E) other natural or Etheostoma nigrum susanae was threatened was possibly appropriate, manmade factors affecting its continued elevated to specific status, Etheostoma but for which persuasive data on existence. Listing actions may be susanae. The Cumberland darter biological vulnerability and threat was warranted based on any of the above continued to be recognized as a listing not currently available to support threat factors, singly or in combination. priority 5 candidate in the 2009 proposed rules. In the 2002, 2004, 2005, Each of these factors is discussed below. Candidate Notice of Review (74 FR 2006, 2007, 2008, and 2009 Candidate 57869). Notices of Review, the chucky madtom A. The Present or Threatened was again identified as a listing priority Destruction, Modification, or Rush Darter 2 candidate species (67 FR 40657, 69 FR Curtailment of Its Habitat or Range We first identified the rush darter as 24875, 70 FR 24869, 71 FR 53755, 72 FR The primary threat to the Cumberland a candidate for listing in the 2002 69033, 73 FR 75236, 74 FR 57869). darter, rush darter, yellowcheek darter, Candidate Notice of Review (67 FR We published a petition finding for chucky madtom, and laurel dace is 40657). The rush darter was assigned a chucky madtom in the 2005 Candidate physical habitat destruction/ listing priority number of 5. In the 2004 Notice of Review (70 FR 24869) in modification resulting from a variety of (69 FR 24875) and 2005 (70 FR 24869) response to a petition received on May human-induced impacts such as Candidate Notice of Review, the rush 11, 2004, stating the chucky madtom siltation, disturbance of riparian darter retained a listing priority number would retain a listing priority of 2. corridors, and changes in channel of 5. We published a petition finding for In 1994, the chucky madtom was first morphology (Waters 1995, pp. 2–3; rush darter in the 2005 Candidate added to the candidate list as Noturus Skelton 1997, pp. 17, 19; Thomas 2007, Notice of Review (70 FR 24869) in sp. (59 FR 58982). Subsequently, and p. 5). The most significant of these response to a petition received on May based on morphological and molecular impacts is siltation (excess sediments 11, 2004. The rush darter retained a evidence, the chucky madtom was suspended or deposited in a stream) listing priority number of 5 in the 2005 formally described as a distinct species, caused by excessive releases of Candidate Notice of Review (70 FR Noturus crypticus (Burr et al. 2005). We sediment from activities such as 24869), in accordance with our priority included this new information in the resource extraction (e.g., coal mining, guidance published on September 21, 2006 Candidate Notice of Review (71 FR silviculture, natural gas development), 1983 (48 FR 43098). 53755). agriculture, road construction, and

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urban development (Waters 1995, pp. 2– degrading habitats used by fishes for habitat degradation in the Barren Fork 3; KDOW 2006, pp. 178–185; Skelton both feeding and reproduction mainstem and ‘‘adverse effects’’ on the 1997, pp. 17, 19; Thomas 2007, p. 5). (Mattingly et al. 2005, p. 5). blackside dace. Several smaller Land use practices that affect Undisturbed riparian corridors are sediment events have occurred despite sediment and water discharges into a important because they prevent elevated Federal and State attempts to resolve the stream can also increase the erosion or stream temperatures due to solar issue, and on July 31, 2008, another sedimentation pattern of the stream, heating, serve as buffers against non- large rainfall event resulted in excessive which can lead to the destruction or point source pollutants, provide sedimentation in two Barren Fork modification of in-stream habitat and submerged root materials for cover and watershed streams. riparian vegetation, stream bank feeding, and help to stabilize stream Another significant threat to the collapse, and increased water turbidity banks (Mattingly et al. 2005, p. 5). Cumberland darter is water quality and temperature. Sediment has been degradation caused by a variety of non- shown to abrade and or suffocate Cumberland Darter point source pollutants. Coal mining bottom-dwelling algae and other The Cumberland darter’s preferred represents a major source of these organisms by clogging gills; reducing habitat characteristics (i.e., low- to pollutants (O’Bara 1991, p. 11; Thomas aquatic diversity and abundance; moderate-gradient, low current velocity, 2007, p. 5), because it has the potential impairing fish feeding behavior by backwater nature) make it extremely to contribute high concentrations of altering prey base and reducing susceptible to the effects of siltation dissolved metals and other solids that visibility of prey; impairing (O’Bara 1991, p. 11). Sediment lower stream pH or lead to elevated reproduction due to burial of nests; and, (siltation) has been listed repeatedly by levels of stream conductivity (Pond ultimately, negatively impacting fish the Kentucky Natural Resources and 2004, pp. 6–7, 38–41; Mattingly et al. growth, survival, and reproduction Environmental Protection Cabinet 2005, p. 59). These impacts have been (Waters 1995, pp. 5–7, 55–62; Knight (Division of Water) as the most common shown to negatively affect fish species, and Welch 2001, pp. 134–136). Wood stressor of aquatic communities in the including listed species, in the Clear and Armitage (1997, pp. 211–212) upper Cumberland River basin (KDOW Fork system of the Cumberland basin identified at least five impacts of 1996, pp. 50–53, 71–75; 2002, pp. 39– (Weaver 1997, pp. 29; Hartowicz 2008, sedimentation on fish, including (1) 40; 2006, pp. 178–185). The primary pers. comm.). The direct effect of reduction of growth rate, disease source of sediment was identified as elevated stream conductivity on fishes, tolerance, and gill function; (2) resource extraction (e.g., coal mining, including the Cumberland darter, is reduction of spawning habitat and egg, logging). The streams within the poorly understood, but some species, larvae, and juvenile development; (3) Cumberland darter’s current range that such as blackside dace, have shown modification of migration patterns; (4) are identified as impaired (due to declines in abundance over time as reduction of food availability through siltation from mining, logging, and conductivity increased in streams the blockage of primary production; and agricultural activities) and have been affected by mining (Hartowicz 2008, (5) reduction of foraging efficiency. The included on Kentucky’s 303(d) list of pers. comm.). Studies indicate that effects of these types of threats will impaired waters (KDOW 2007, pp. 155– blackside dace are generally absent likely increase as development increases 166) include Jenneys Branch (Indian when conductivity values exceed 240 in these watersheds. Creek basin), an unnamed tributary of microSiemens (μS) (Mattingly et al. Non-point source pollution from land Jenneys Branch (Indian Creek basin), 2005, p. 59; Black and Mattingly 2007, surface runoff can originate from Ryans Creek (Jellico Creek basin), Marsh p. 12). virtually any land use activity and may Creek, and Wolf Creek (Clear Fork Other non-point source pollutants be correlated with impervious surfaces basin). that affect the Cumberland darter and storm water runoff. Pollutants may Siltation can also occur in the include domestic sewage (through include sediments, fertilizers, Cumberland darter’s known habitat as a septic tank leakage or straight pipe herbicides, pesticides, animal wastes, result of construction activities for discharges); agricultural pollutants such septic tank and gray water leakage, human development. For example, as fertilizers, pesticides, herbicides, and pharmaceuticals, and petroleum during the fall of 2007, an 8.4-km (5.2- animal waste; and other chemicals products. These pollutants tend to mi) reach of Barren Fork in McCreary associated with oil and gas increase concentrations of nutrients and County, Kentucky, was subjected to a development. Non-point source toxins in the water and alter the severe sedimentation event (Floyd 2008, pollutants can cause excess nutrification chemistry of affected streams such that pers. obs.). This event occurred despite (increased levels of nitrogen and the habitat and food sources for species the fact that approximately 95 percent of phosphorus), excessive algal growth, like the Cumberland darter, rush darter, the Barren Fork watershed is under instream oxygen deficiencies, increased yellowcheek darter, chucky madtom, Federal ownership within the Daniel acidity and conductivity, and other and laurel dace are negatively impacted. Boone National Forest (DBNF). changes in water chemistry that can Construction and road maintenance Construction activities associated with seriously impact aquatic species (KDOW activities associated with urban the development of a 40.47-hectare 1996, pp. 48–50; KDOW 2006, pp. 70– development typically involve earth- (100-acre) park site caused excessive 73). moving activities that increase sediment sedimentation of two unnamed In summary, habitat loss and loads into nearby streams. Other headwater tributaries of Barren Fork. modification represent significant siltation sources, including timber Successive, large rainfall events in threats to the Cumberland darter. Severe harvesting, natural gas development September and October carried degradation from sedimentation, activities, clearing of riparian sediment off site and impacted physical habitat disturbance, and vegetation, mining, and agricultural downstream areas of Barren Fork known contaminants threatens the habitat and practices, allow exposed earth to enter to support Cumberland darters and the water quality on which the Cumberland streams during or after precipitation Federally threatened blackside dace. darter depends. Sedimentation from events. These activities result in canopy Our initial site visit on September 7, coal mining, silviculture, agriculture, removal, elevated stream temperatures, 2007, confirmed that sediment had been and development sites within the upper and increased siltation, thereby carried off site, resulting in significant Cumberland basin negatively affect the

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Cumberland darter by reducing growth deepening of roadside ditches, and surrounding the streams and springs, rates, disease tolerance, and gill erosion of the gravel County Road 329 road maintenance and silviculture function; reducing spawning habitat, at Doe and Wildcat branches, practices. This threat is ongoing and reproductive success, and egg, larvae, contributing to the sediment in these thus considered imminent. The and juvenile development; modifying streams. magnitude of the threat is high due to migration patterns; reducing food Blanco (2001, p. 68) identified the small population and high levels of availability through reductions in prey; siltation from development projects as siltation in the springs and streams. We and reducing foraging efficiency. the greatest threat to the fauna of Turkey have no information indicating that the Contaminants associated with coal Creek. Point source siltation sites have magnitude or imminence of this threat mining (metals, other dissolved solids), impacted the Turkey Creek watershed, is likely to be appreciably reduced in domestic sewage (bacteria, nutrients), including four sites affecting Beaver the foreseeable future. and agriculture (fertilizers, pesticides, Creek, a major tributary to Turkey Yellowcheek Darter herbicides, and animal waste) cause Creek. These sites included bridge, road, degradation of water quality and and sewer line construction sites and a Robison and Harp (1981, p. 17), habitats through increased acidity and wood pallet plant (Drennen 1999, pers. McDaniel (1984, p. 92), and Robison conductivity, instream oxygen obs.). In addition, Turkey Creek at the and Buchanan (1988, p. 429) have deficiencies, excess nutrification, and confluence of Tapawingo and Penny attributed the decline in populations of excessive algal growths. Furthermore, Springs is often sediment laden and yellowcheek darters in the four forks of these threats faced by the Cumberland completely turbid after medium to the Little Red River and main stem darter from sources of sedimentation heavy rainfall. Rapid urbanization in Little Red River to habitat alteration and and contaminants are imminent; the this area renders this population degradation. The suspected primary result of ongoing projects that are extremely vulnerable during the cause of the species’ decline is the expected to continue indefinitely. As a breeding season when rush darters impoundment of the Little Red River result of the imminence of these threats concentrate in wetland pools and and lower reaches of the Devils, Middle, combined with the vulnerability of the shallow pools with aquatic vegetation in and South Forks, areas that in the past remaining small populations to headwater streams (Stiles and Mills provided optimal habitat for this extirpation from natural and manmade 2008, p. 5; Fluker et al. 2007, p. 10). species. The creation of Greers Ferry threats, we have determined that the Four major soil types occur within the Lake in 1962 converted optimal present or threatened destruction, Turkey Creek watershed, and all are yellowcheek darter habitat (clear, cool, modification, or curtailment of the considered highly erodible due to the perennial flow with large substrate Cumberland darter habitat and range steep topography (Spivey 1982, pp. 5, 7, particle size (Robison and Buchanan represents a significant threat of high 8, 14). Therefore, any activity that 1988, p. 429)), to a deep, standing water magnitude. We have no information removes native vegetation on these soils environment. This dramatic change in indicating that the magnitude or can be expected to lead to increased habitat flooded spawning sites, altered imminence of this threat is likely to be sediment loads in Turkey Creek habitat radically, and changed chemical appreciably reduced in the foreseeable (USFWS 2001, p. 59370), including the and physical characteristics in the future. areas near Penny and Tapawingo streams which provide optimal habitat Springs. Industrialization is extensive for this species. Impoundments Rush Darter and expanding throughout the profoundly alter channel characteristics, Sediment is the most abundant watershed, particularly near the type habitat availability, and flow regime pollutant in the Mobile River Basin locality for the rush darter (Bart and with serious consequences for biota (Alabama Department of Environmental Taylor 1999, p. 33; Drennen 2007, pers. (Allan and Flecker 1993, p. 36, Ward Management 1996, pp. 14–15). Within obs.). and Stanford 1995, pp. 105–119). Some the Clear Creek drainage, Johnston and Abundant water from springs of these include converting flowing to Kleiner (2001, p. 4) reported that during throughout the rush darter’s range, still waters, increasing depths and August 2001, land uses in the Doe especially in Pinson Valley, Alabama, is sedimentation, decreasing dissolved Branch and Mill Creek area appeared to needed as a flushing effect to provide oxygen, drastically altering resident fish be dominated by forests, and that there constant cleansing of the streams with populations (Neves et al. 1997, p. 63), were no obvious threats to water cool, fresh water. However, ongoing disrupting fish migration, and quality. However, Johnston and Kleiner destruction of spring heads and destroying spawning habitat (Ligon et (2001, p. 4) reported that clear cutting wetlands has significantly reduced the al. 1995, pp. 185–86). Channelization of in the Wildcat Branch watershed may species’ movement and colonization. the lower 5.6 km (3.5 miles) of Archey have increased sedimentation into the Little Cove Creek and Bristow Creek and South Forks in 1985 and stream. Approximately 84 percent (i.e., spring heads have been channelized, subsequent channel maintenance to this 5 km or 3 mi) of Wildcat Branch is and the head of Cove Spring has a day by the U.S. Army Corps of privately owned, and recent land pumping facility built on it (Fluker et al. Engineers and City of Clinton, Arkansas, exchanges within the Bankhead 2007, p. 1). Spring water in these degraded habitat in this reach as well as National Forest have taken about 0.9 km systems may be more impacted by site- segments upstream of the project area. (0.6 mi) of stream west of Clear Creek specific spring head disturbances rather Based upon current knowledge and a out of U.S. Forest Service (USFS) than overall spring drainage 2004-2005 threats assessment (Davidson management and protection. In 2001, disturbances (Drennen 2005, per. obs.). and Wine 2004, pp. 6–13; Davidson Service and USFS personnel noted Alteration of spring head habitats has 2005, pp. 1–4), gravel mining, heavy siltation at the County Road 329 reduced water quality and increased unrestricted cattle access into streams, Bridge over Doe Branch during a modest sediment loads into spring-fed tributary water withdrawal for agricultural and spring rain and also noted heavy streams throughout the range of the rush recreational purposes (i.e., golf courses), siltation at several other road crossings darter. lack of adequate riparian buffers, and in other tributary streams in the In summary, the most significant construction and maintenance of county immediate area. Drennen (2005, pers. threat to rush darters is siltation, caused roads, and non-point source pollution obs.) noted increasing erosion and by an increase in urbanization arising from a broad array of activities

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also appear to be degrading suitable rivers. Neves et al. (1997, p. 65) suggest The chuck wagon race event draws habitat for the species. The threats that agriculture affects 72 percent of approximately 20,000 to 30,000 people assessment documented occurrences of impaired river reaches in the United per year to the South Fork Little Red the aforementioned activities and found States. Nutrients, bacteria, pesticides, River for a 1–week period around Labor 52 sites on the Middle Fork, 28 sites on and other organic compounds generally Day. Horses and wagons traverse the the South Fork, 8 sites on Archey Fork are found in higher concentrations in river and its tributaries for miles leading (Davidson 2005, pp. 1–4), and 1 site in agricultural areas than forested areas. to increased habitat disturbance, the Turkey/Beech/Devils Fork system Nutrient concentrations in streams may sedimentation, and trampling. The that are adversely affected by these result in increased algal growth in chuck wagon races continue to grow activities and likely contributors to the streams, and a related alteration in fish annually and pose a significant threat to decline of the species. community composition (Petersen et al. the continued existence of yellowcheek Yellowcheek darter numbers have 1999, p. 16). Major agricultural activities darters in the South Fork Little Red declined by 83 percent in both the within the Little Red River watershed River. Middle Fork and South Fork of the include poultry, dairy, swine, and beef Timber harvesting activities involving Upper Little Red River watershed, and cattle operations. clear-cutting entire steep hillsides were 60 percent in the Archey Fork in the The Arkansas Natural Resources observed during 1999-2000 in the Devils past 20 years. Yellowcheek darter was Conservation Service has identified Fork watershed (Wine 2008, pers. not found in the Turkey Fork reach of animal wastes, nutrients, excessive comm.). The failure to implement the Devils Fork during the 2000 status erosion, loss of plant diversity, and voluntary State best management survey, and is presumed to be extirpated declining species as water quality practices (BMPs) for intermittent and in this reach. A comparison of inhabited concerns associated with agricultural perennial streams during timber stream reaches in the 1981 survey land use activities in the upper Little harvests has resulted in water quality versus the 2000 survey reveals that the Red River watershed (NRCS 1999). degradation and habitat alteration in largest decline occurred in the South Large poultry and dairy operations stream reaches adjacent to harvesting Fork, where reaches formerly inhabited increase nutrient inputs to streams operations. When timber harvests by the yellowcheek darter declined by when producers apply animal waste to involve clear cutting to the water’s edge, 70 percent. The second largest decline pastures to stimulate vegetation growth without leaving a riparian buffer, silt occurred in the Archey Fork, where for grazing and hay production. and sediment enter streams lying at the there was a 60 percent reduction in Continuous grazing methods in the bottom of steep slopes. The lack of inhabited stream reach. The Middle watershed allow unrestricted animal stream side vegetation also promotes Fork showed the least decline in access to grazing areas, and on steeper bank erosion that alters stream courses inhabited stream reach, at 22 percent. slopes this results in increased runoff and introduces large quantities of Ozark headwater streams typically and erosion (NRCS 1999). Since sediment into the channel (Allan 1995, exhibit seasonal fluctuations in flows, pastures often extend directly to the p. 321). Timber harvest operations that with flow rates highest in spring, and edge of the stream, and lack a riparian use roads on steep slopes to transport lowest in late summer and fall. The zone with native vegetation, runoff from timber can carry silt and sediment from upper reaches of these small streams are pastures carries pollutants directly into the road into the stream at the bottom most affected by seasonally fluctuating streams. Eroding stream banks also of the slope. Logging impacts on water levels (Robison and Harp 1981, p. result in alterations to stream hydrology sediment production are considerable, 17). As a result, they often lack and geomorphology, degrading habitat. but often erosion of access and haul consistent and adequate flows, and by Livestock spend a disproportionate roads produces more sediment than the late summer or fall are reduced to a amount of time in riparian areas during land harvested for timber (Brim Box and series of isolated pools (Wine 2008, hot summer months. Trampling and Mossa 1999, p. 102). These activities pers. comm.). Expanding natural gas grazing can change and reduce have occurred historically and continue development activities that began in the vegetation and eliminate riparian areas to occur in the upper Little Red River upper Little Red River watershed in by channel widening, channel watershed. 2006 require large quantities of water aggradation, or lowering of the water Natural gas exploration and and pose an imminent threat to the table (Armour et al. 1991, pp. 7–11). development is a newly emerging threat continued existence of yellowcheek Additionally, earthen dams were to yellowcheek darter populations. darter as these activities rapidly expand constructed across a riffle in the lower Significant erosion and sedimentation and increase in the watersheds of all South Fork to create a pool for annual issues associated with natural gas four forks (Davidson 2008, pers. comm.). chuck wagon races for many years development activities, particularly Because the yellowcheek darter requires leading up to 2003. The Service and pipelines (herein defined as all flow permanent flows with moderate to U.S. Army Corps of Engineers met with lines, gathering lines, and non-interstate strong current (Robison and Buchanan the responsible landowner in 2004 and pipelines), were first documented by 1988, p. 429), and because downstream suggested an alternative to dam Service biologists during 2007 in the refugia have been lost, seasonal construction that would minimize South Fork Little Red River watershed. fluctuations in stream flows that reduce impacts to the yellowcheek darter. In June 2008, the Service began moving water (lotic habitat) to a series These recommendations were followed documenting significant erosion and of isolated pool habitats are a serious for several years; however, another sedimentation issues associated with threat. earthen dam was constructed in 2008 natural gas pipeline construction and Additional contributors to using material from the South Fork to maintenance as natural gas development yellowcheek declines and continuing facilitate events associated with the activities expanded into the watershed. threats include habitat degradation from annual chuck wagon races. This dam, Service biologists documented land use activities in the watershed, like its predecessors, was unpermitted significant erosion and sedimentation at including agriculture and forestry. and resulted in significant habitat almost every new pipeline stream Traditional farming practices, feed-lot degradation and alteration for several crossing in the South Fork and Middle operations, and associated poor land use miles upstream and downstream of the Fork Little Red River watersheds, practices contribute many pollutants to site. regardless of the diameter of the pipe.

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Channel incision was documented at rivers. Neves et al. (1997, p. 65) suggest sedimentation, physical habitat numerous stream crossings that are that agriculture affects 72 percent of disturbance, and contaminants threaten tributaries to the South Fork Little Red impaired river reaches in the United the habitat and water quality on which River. The incision increased erosion States. These practices erode stream the chucky madtom depends. and sedimentation, as well as altering banks and result in alterations to stream Sedimentation from agricultural lands the hydrology and geomorphology hydrology and geomorphology, could negatively affect the chucky characteristics of the streams. Pipeline degrading habitat. Nutrients, bacteria, madtom by reducing growth rates, rights-of-way were found to have one of pesticides, and other organic disease tolerance, and gill function; the following conditions: (1) no BMPs compounds generally are found in reducing spawning habitat, reproductive (i.e., silt fences, grade breaks, non- higher concentrations in agricultural success, and egg, larvae, and juvenile erodible stream crossing materials) areas than forested areas. Nutrient development; reducing food availability installed to prevent erosion and concentrations in streams may result in through reductions in prey; and sedimentation, (2) ineffective erosion increased algal growth in streams, and reducing foraging efficiency. minimization practices in place, (3) a related alteration in fish community Contaminants associated with effective erosion minimization practices composition (Petersen et al. 1999, p. agriculture (e.g., fertilizers, pesticides, that had not been maintained and, thus, 16). herbicides, and animal waste) can cause had become ineffective, or (4) final The TVA Index of Biological Integrity degradation of water quality and reclamation of the pipeline right-of-way results indicate that Little Chucky Creek habitats through instream oxygen had not occured for months and in some is biologically impaired (Middle deficiencies, excess nutrification, and cases greater than a year after Nolichucky Watershed Alliance 2006, p. excessive algal growths. Furthermore, construction activities ceased leading to 13). Given the predominantly these threats faced by the chucky prolonged periods of erosion and agricultural land use within the Little madtom from sources of sedimentation sedimentation. The magnitude of the Chucky Creek watershed, non-point and contaminants are imminent; the impacts to the South Fork and Middle source sediment and agrochemical result of ongoing agricultural practices Fork Little Red River from 2007-2008 discharges may pose a threat to the that are expected to continue also was exacerbated due to above chucky madtom by altering the physical indefinitely. As a result of the average rainfall, which led to more characteristics of its habitat, thus imminence of these threats combined frequent and larger pipeline erosion potentially impeding its ability to feed, with the vulnerability of the remaining events. seek shelter from predators, and small population to extirpation from In summary, threats to the successfully reproduce. The Little natural and manmade threats, we have yellowcheek darter from the present Chucky Creek watershed also contains a determined that the present or destruction, modification, or portion of the city of Greeneville, threatened destruction, modification, or curtailment of its habitat or range providing an additional source for input curtailment of the chucky madtom negatively impact the species. Threats of sediments and contaminants into the habitat and range represents a include such activities as creek and threatening the chucky significant threat of high magnitude. We impoundment, sedimentation (from a madtom. Wood and Armitage (1997, pp. have no information indicating that the broad array of activities), nutrient 211–212) identify at least five impacts of magnitude or imminence of these enrichment, gravel mining, sedimentation on fish, including (1) threats is likely to be appreciably channelization/channel instability, and reduction of growth rate, disease reduced in the foreseeable future. natural gas development. These threats tolerance, and gill function; (2) are considered imminent and of high reduction of spawning habitat and egg, Laurel Dace magnitude throughout the species’ larvae, and juvenile development; (3) Skelton (2001, p. 127) concluded that entire range. We have no information modification of migration patterns; (4) the laurel dace is ‘‘presumably tolerant indicating that the magnitude or reduction of food availability through of some siltation.’’ However, Strange and imminence of these threats is likely to the blockage of primary production; and Skelton (2005, p. 7 and Appendix 2) be appreciably reduced in the (5) reduction of foraging efficiency. observed levels of siltation they foreseeable future, and in the case of The chucky madtom is a bottom- considered problematic during later pipeline disturbance, we expect this dwelling species. Bottom-dwelling fish surveys for the laurel dace and threat to become more problematic over species are especially susceptible to concluded this posed a threat in several the next several years as natural gas sedimentation and other pollutants that localities throughout the range of the development continues to intensify. degrade or eliminate habitat and food species. Sediment has been shown to sources (Berkman and Rabeni 1987, pp. abrade and or suffocate bottom-dwelling Chucky Madtom 290–292; Richter et al. 1997, p. 1091; fish and other organisms by clogging The current range of the chucky Waters 1995, p. 72). Etnier and Jenkins gills; reducing aquatic insect diversity madtom is believed to be restricted to an (1980, p. 20) suggested that madtoms, and abundance; impairing fish feeding approximately 1.8-mi (3-km) reach of which are heavily dependent on behavior by altering prey base and Little Chucky Creek in Greene County, chemoreception (detection of chemicals) reducing visibility of prey; impairing Tennessee. Land use data from the for survival, are susceptible to human- reproduction due to burial of nests; and, Southeast GAP Analysis Program (SE- induced disturbances, such as chemical ultimately, negatively impacting fish GAP) show that land use within the and sediment inputs, because the growth, survival, and reproduction Little Chucky Creek watershed is olfactory (sense of smell) ‘‘noise’’ they (Waters 1995, pp. 5–7, 55–62; Knight predominantly dominated by produce could interfere with a and Welch 2001, pp. 134–136). agricultural use, with the vast majority madtom’s ability to obtain food and However, we do not currently know of agricultural land being devoted to otherwise monitor its environment. what levels of siltation laurel dace are production of livestock and their forage In summary, threats to the chucky able to withstand before populations base (USGS 2008). madtom from the present destruction, begin to decline due to these siltation- Traditional farming practices, feed-lot modification, or curtailment of its related stressors. The apparent stability operations, and associated land use habitat or range negatively impact the of the northern population of laurel practices contribute many pollutants to species. Degradation from dace in the Piney River system suggests

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that this species is at least moderately but also for the potential thermal sources of sedimentation and tolerant of siltation-related stressors. We alteration of these small headwater contaminants are imminent; the result do not know the extent to which other streams. Skelton (2001, p. 125) reported of ongoing agriculture and forestry factors might have driven the decline of that laurel dace occupy cool streams practices that are expected to continue. the southern populations in Sale and with a maximum recorded temperature As a result of the imminence of these Soddy Creeks. of 26° C (78.8° F). The removal of threats, we have determined that the Of the streams inhabited by the riparian vegetation could potentially present or threatened destruction, southern populations recognized by increase temperatures above the laurel modification, or curtailment of the Strange and Skelton (2005, p. Appendix dace’s maximum tolerable limit. laurel dace habitat and range represents 2), the reaches from which laurel dace Water temperature may be a limiting a significant threat of high magnitude. have been collected in Soddy Creek and factor in the distribution of this species We have no information indicating that Horn Branch approach 0.6 mi (1 km) in (Skelton 1997, pp. 17, 19). Canopy cover the magnitude or imminence of these length. In Cupp Creek, collections of of laurel dace streams often consists of threats is likely to be appreciably this species are restricted to less than eastern hemlock, mixed hardwoods, reduced in the foreseeable future. 984 ft (300 m) of stream, in spite of pine, and mountain laurel. The hemlock surveys well beyond the reach known to woolly adelgid (Adelges tsugae) is a B. Overutilization for Commercial, be inhabited. In each of the streams nonnative insect that infests hemlocks, Recreational, Scientific, or Educational occupied by the southern populations, causing damage or death to trees. The Purposes Strange and Skelton (2005, Appendix 2) woolly adelgid was recently found in The Cumberland darter, rush darter, identified siltation as a factor that could Hamilton County, Tennessee, and could yellowcheek darter, chucky madtom, alter the habitat and render it unsuitable impact eastern hemlock in floodplains and laurel dace are not commercially for laurel dace. The restricted and riparian buffers (land adjacent to utilized. Individuals have been taken for distribution of laurel dace in streams stream channels) along laurel dace scientific and private collections in the inhabited by the southern populations streams in the future (Simmons 2008, past, but collecting is not considered a leaves them highly vulnerable to pers. comm.). Riparian buffers filter factor in the decline of these species and potential deleterious effects of excessive sediment and nutrients from overland is not expected to be so in the future. siltation or other localized disturbances. runoff, allow water to soak into the The available information does not A newly emerging threat to laurel ground, protect stream banks and indicate that overutilization is likely to dace in Soddy Creek is the conversion lakeshores, and provide shade for become a threat to any of these five of pine plantations to row crop streams. Because eastern hemlock is fishes in the foreseeable future. agriculture. Two large plantations primarily found in riparian areas, the within the Soddy Creek Watershed were loss of this species adjacent to laurel C. Disease or Predation harvested and then converted to tomato dace streams would be detrimental to Disease is not considered to be a farms. An irrigation impoundment was fish habitat. factor in the decline of the Cumberland built on one Soddy Creek tributary and Habitat destruction and modification darter, rush darter, yellowcheek darter, another is under construction. As a also stem from existing or proposed chucky madtom, or laurel dace. result of these activities, a large silt infrastructure development in Although the Cumberland darter, rush source was introduced into the Soddy association with timber harvesting. The darter, yellowcheek darter, and laurel Creek headwaters. In addition to presence of culverts at one or more road dace are undoubtedly consumed by contributing sediment, crop fields often crossings in most of the streams predators, the available information allow runoff from irrigation water to inhabited by laurel dace may disrupt suggests that this predation is naturally flow directly into the creek. This water upstream dispersal within those systems occurring, or a normal aspect of the contains fungicides, herbicides, and (Chance 2008, pers. obs.). Such population dynamics. As a result, we do fertilizers (Thurman 2010, pers. comm.). dispersal barriers could prevent re- not believe that predation is considered Strange and Skelton (2005, p. 7 and establishment of laurel dace populations to currently pose a threat to these Appendix 2) identified siltation as a in reaches where they suffer localized species. Furthermore, the information threat in all of the occupied Piney River extinctions due to natural or human- we do have, does not indicate that tributaries (Young’s, Moccasin, and caused events. disease or predation is likely to become Bumbee Creeks). The Bumbee Creek In summary, the primary threat to a threat to any of these five fishes in the type locality for the laurel dace is laurel dace throughout its range is foreseeable future. located within industrial forest that has excessive siltation resulting from been subjected to extensive clear-cutting agriculture and extensive timber D. The Inadequacy of Existing and road construction in close harvesting involving both inadequate Regulatory Mechanisms proximity to the stream. Strange and riparian buffers in harvest areas and the Cumberland Darter Skelton (2005, p. 7) noted a heavy failure to use best management practices sediment load at this locality and in road construction. Severe degradation The Cumberland darter and its commented that conditions there in from sedimentation, physical habitat habitats are afforded some protection 2005 had deteriorated since the site was disturbance, and contaminants threatens from water quality and habitat visited by Skelton in 2002. Strange and the habitat and water quality on which degradation under the Clean Water Act Skelton (2005, pp. 7 and 8 and the laurel dace depends. Sedimentation of 1977 (33 U.S.C. 1251 et seq.), Appendix 2) also commented on from negatively affects the laurel dace Kentucky’s Forest Conservation Act of excessive siltation in localities they by reducing growth rates, disease 1998 (KRS 149.330-355), Kentucky’s sampled on Young’s and Moccasin tolerance, and gill function; reducing Agriculture Water Quality Act of 1994 Creeks, and observed localized removal spawning habitat, reproductive success, (KRS 224.71-140), additional Kentucky of riparian vegetation around residences and egg, larvae, and juvenile laws and regulations regarding natural in the headwaters of each of these development; reducing food availability resources and environmental protection streams. They considered the removal of through reductions in prey; and (KRS 146.200-360; KRS 224; 401 KAR riparian vegetation problematic not only reducing foraging efficiency. These 5:026, 5:031), and Tennessee’s Water for the potential for increased siltation, threats faced by the laurel dace from Quality Control Act of 1977 (T.C.A. 69-

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3-101). However, as demonstrated under species listed in (1) of this environmental laws within Alabama to Factor A, population declines and proclamation, or (2) the United States specifically consider the rush darter or degradation of habitat for this species list of Endangered fauna.’’ Under these ensure that a project will not jeopardize are ongoing despite the protection regulations, potential collectors of this its continued existence. afforded by these laws and species are required to have a State The State of Alabama maintains corresponding regulations. While these collection permit. However, in terms of water-use classifications through laws have resulted in some project management, this regulation issuance of NPDES permits to improvements in water quality and only provides for the consideration of industries, municipalities, and others stream habitat for aquatic life, including alternatives, and does not require the that set maximum limits on certain the Cumberland darter, they alone have level of project review afforded by the pollutants or pollutant parameters. For not been adequate to fully protect this Act. water bodies on the 303(d) list, States species; sedimentation and non-point In 7 of 12 streams where the are required under the Clean Water Act source pollutants continue to be a Cumberland darter still occurs, the to establish a TMDL for the pollutants significant problem. species is indirectly provided some of concern that will bring water quality States maintain water-use protection from Federal actions and into the applicable standard. The State classifications through issuance of activities through the Endangered of Alabama has not identified any National Pollutant Discharge Species Act of 1973, as amended (16 impaired water bodies in Jefferson, Elimination System (NPDES) permits to U.S.C. 1531 et seq.), because these Winston, and Etowah Counties in the industries, municipalities, and others streams (or basins) also support the immediate or upstream portion of the that set maximum limits on certain Federally threatened blackside dace and rush darter range or watersheds in pollutants or pollutant parameters. For occupy watersheds that are at least Winston or Etowah County. However, water bodies on the 303(d) list, States partially owned by the Federal sedimentation events are usually related are required under the Clean Water Act government (Daniel Boone National to the stormwater runoff episodes, and to establish a total maximum daily load Forest). The five remaining streams are usually not captured by routine (TMDL) for the pollutants of concern supporting populations of the water quality sampling. Although that will bring water quality into the Cumberland darter are not afforded this stormwater events are temporary, they applicable standard. Three Cumberland protection. are still very significant and destructive darter streams, Jenneys Branch, Marsh In summary, population declines and to the species, habitat, vegetation and Creek, and Wolf Creek, have been degradation of habitat for the food sources, as previously mentioned. identified as impaired by the Kentucky Cumberland darter are ongoing despite When the stormwater water events Division of Water and placed on the the protection afforded by State and abate, the water becomes more State’s 303(d) list (KDOW 2008). Causes Federal laws and corresponding hospitable to the species, due to the of impairment were listed as siltation/ regulations. Because of the vulnerability spring influences and constant flushing sedimentation from agriculture, coal of the small remaining populations of from spring water. Thus, there is no mining, land development, and the Cumberland darter and the listing or label for these bodies as silviculture and organic enrichment/ imminence of these threats, we find the impaired and are generally considered eutrophication from residential areas. inadequacy of existing regulatory satisfactory for the species when TMDLs have not yet been developed for mechanisms to be a significant threat of stormwater is not involved. these pollutants. high magnitude. Further, the In summary, population declines and The Cumberland darter has been information available to us at this time degradation of habitat for the rush darter designated as an endangered species by does not indicate that the magnitude or are ongoing despite the protection Tennessee (TWRA 2005, p. 240) and imminence of this threat is likely to be afforded by State and Federal laws and Kentucky (KSNPC 2005, p. 11), but the appreciably reduced in the foreseeable corresponding regulations. Despite these designation in Kentucky conveys no future. laws, sedimentation and non-point legal protection. Under the Tennessee source pollution continue to adversely Rush Darter Nongame and Endangered or affect the species. Because of the Threatened Wildlife Species The rush darter and its habitats are vulnerability of the small remaining Conservation Act of 1974 (Tennessee afforded some protection from water populations of the rush darter and the Code Annotated §§ 70-8-101-112), ‘‘[I]t quality and habitat degradation under imminence of these threats, we find the is unlawful for any person to take, the Clean Water Act and the Alabama inadequacy of existing regulatory attempt to take, possess, transport, Water Pollution Control Act, as mechanisms to be a significant threat of export, process, sell or offer for sale or amended, 1975 (Code of Alabama, §§ high magnitude. Further, the ship nongame wildlife, or for any 22-22-1 to 22-22-14). However, as information available to us at this time common or contract carrier knowingly demonstrated under Factor A, does not indicate that the magnitude or to transport or receive for shipment population declines and degradation of imminence of this threat is likely to be nongame wildlife.’’ Further, regulations habitat for this species are ongoing appreciably reduced in the foreseeable included in the Tennessee Wildlife despite the protection afforded by these future. Resources Commission Proclamation laws. While these laws have resulted in 00-15 Endangered Or Threatened some improvement in water quality and Yellowcheek Darter Species state the following: ‘‘Except as stream habitat for aquatic life, including The Arkansas Department of provided for in Tennessee Code the rush darter, they alone have not Environmental Quality (ADEQ) has Annotated, Section 70-8-106 (d) and (e), been adequate to fully protect this established water quality standards for it shall be unlawful for any person to species; sedimentation and non-point surface waters in Arkansas, including take, harass, or destroy wildlife listed as source pollutants continue to be a specific standards for those streams threatened or endangered or otherwise significant problem. Sediment is the designated as ‘‘extraordinary resource to violate terms of Section 70-8-105 (c) most abundant pollutant in the Mobile waters’’ (ERW) based on ‘‘a combination or to destroy knowingly the habitat of River Basin and the greatest threat to the of the chemical, physical, and biological such species without due consideration rush darter. There are currently no characteristics of a waterbody and its of alternatives for the welfare of the requirements within the scope of other watershed, which is characterized by

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scenic beauty, aesthetics, scientific U.S. Army Corps of Engineers regulates mining, agriculture, and channelization values, broad scope recreation potential, instream activities under the Clean (Tennessee Department of Environment and intangible social values’’ (ADEQ Water Act. Their policy to date has been and Conservation (TDEC) 2008, pp. 62– Regulation 2, November 25, 2007). As to issue permits for instream activities 70). However, Little Chucky Creek is not described in ADEQ’s Regulation 2, associated with pipeline construction listed as ‘‘an impaired water’’ by the Section 2.203, ERW ‘‘shall be protected and maintenance under Nationwide State of Tennessee (TDEC 2008, pp. 62– by (1) water quality controls, (2) Permits rather than Individual Permits 70). For water bodies on the 303(d) maintenance of natural flow regime, (3) that require more public involvement. (impaired) list, States are required under protection of in stream habitat, and (4) ADEQ lacks resources necessary to the Clean Water Act to establish a pursuit of land management protective enforce existing regulations under the TMDL for the pollutants of concern that of the watershed.’’ This regulatory Clean Water Act and Arkansas Water will bring water quality into the mechanism has precluded most large and Air Pollution Act for activities applicable standard. The Tennessee scale commercial gravel mining in the associated with natural gas Department of Environment and watershed; however, illegal gravel development. Conservation has developed TMDLs for mining is still considered a cause of The yellowcheek darter receives the Nolichucky River watershed to habitat degradation and a threat in the incidental protection under the Act due address the problems of fecal coliform Little Red River watershed. The Middle, to the coexistence of the federally loads, siltation, and habitat alteration by Archey, and Devils (and its major endangered speckled pocketbook agriculture. tributaries) forks are designated as ERW. mussel (Lampsilis streckeri), which The chucky madtom receives The South Fork has not been designated occurs throughout the upper Little Red incidental protection under the Act due as an ERW. The applicable water quality River drainage. to the coexistence of the Federally standards have not protected In summary, the threats of inadequacy endangered Cumberland bean (Villosa yellowcheek darter habitat from the of existing regulatory mechanisms are trabalis), which is still thought to occur damaging habitat alterations and water imminent and considered high in in Little Chucky Creek, Greene County, quality degradation from traditional magnitude. This is of particular concern Tennessee (Ahlstedt 2008, pers. comm.). land use and expanding natural gas in regard to the vulnerability of the The chucky madtom was listed as development activities. species to threats from natural gas Endangered by the State of Tennessee in The Arkansas Forestry Commission is development which is already September of 2000. Under the the State agency responsible for impacting populations in the South and Tennessee Nongame and Endangered or establishing Best Management Practices Middle forks of the Little Red River and Threatened Wildlife Species (BMPs) for timber harvests in Arkansas. is expected to intensify in the next Conservation Act of 1974 (Tennessee BMPs for timber harvests in Arkansas several years throughout the range of the Code Annotated §§ 70-8-101-112), ‘‘[I]t are only recommendations. There is no species. Further, the information is unlawful for any person to take, requirement that timber harvesters available to us at this time does not attempt to take, possess, transport, include BMPs in timber operations. The indicate that the magnitude or export, process, sell or offer for sale or BMPs are currently under revision, but imminence of this threat is likely to be ship nongame wildlife, or for any the Service does not know what effect appreciably reduced in the foreseeable common or contract carrier knowingly these revisions will have on aquatic future. to transport or receive for shipment nongame wildlife.’’ Further, regulations habitats within the range of the species. Chucky Madtom Natural gas production in the upper included in the Tennessee Wildlife Little Red River watershed presents a The chucky madtom and its habitats Resources Commission Proclamation unique problem for yellowcheek darter are afforded some protection from water 00-15 Endangered Or Threatened conservation. In Arkansas, mineral quality and habitat degradation under Species state the following: ‘‘Except as rights for properties supersede the the Clean Water Act and TDEC’s provided for in Tennessee Code surface rights. Even where private Division of Water Pollution Control Annotated, Section 70-8-106 (d) and (e), landowners agree to implement certain under the TWQCA. However, as it shall be unlawful for any person to BMPs or conservation measures on their demonstrated under Factor A, take, harass, or destroy wildlife listed as lands for yellowcheek darter population declines and degradation of threatened or endangered or otherwise conservation, there is no guarantee that habitat for this species are ongoing to violate terms of Section 70-8-105 (c) these BMPs or conservation measures despite the protection afforded by these or to destroy knowingly the habitat of will be implemented by natural gas laws. While these laws have resulted in such species without due consideration companies, their subsidiaries, or improved water quality and stream of alternatives for the welfare of the contractors that lease and develop the habitat for aquatic life, including the species listed in (1) of this mineral rights for landowners. For this Chucky madtom, they alone have not proclamation, or (2) the United States reason, the intended benefits of been adequate to fully protect this list of Endangered fauna.’’ Under these conservation measures agreed to by species; sedimentation and non-point regulations, potential collectors of this landowners in agreements such as source pollutants continue to be a species are required to have a State Candidate Conservation Agreements significant problem. Sediment is the collection permit. However, in terms of with Assurances may never be realized. most abundant pollutant in the Little project management, this regulation Additionally, natural gas projects often Chucky Creek watershed and is the only provides for the consideration of do not contain a Federal nexus that greatest threat to the Chucky madtom. alternatives, and does not require the would allow the Service to comment on Portions of the Nolichucky River and level of project review afforded by the proposed or ongoing projects. its tributaries in Greene County, Act. The Arkansas Natural Resources Tennessee, are listed as impaired (303d) In summary, population declines and Commission regulates water withdrawal by the State of Tennessee due to pasture degradation of habitat for the chucky in Arkansas streams. To date, they have grazing, irrigated crop production, madtom are ongoing despite the not precluded water withdrawal for unrestricted cattle access, land protection afforded by State and Federal natural gas development activities in the development, municipal point source laws and corresponding regulations. upper Little Red River watershed. The discharges, septic tank failures, gravel Despite these laws, sedimentation and

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non-point source pollution continue to Annotated, Section 70-8-106 (d) and (e), Species that are restricted in range adversely affect the species. Because of it shall be unlawful for any person to and population size are more likely to the vulnerability of the small remaining take, harass, or destroy wildlife listed as suffer loss of genetic diversity due to populations of the chucky madtom and threatened or endangered or otherwise genetic drift, potentially increasing their the imminence of these threats, we find to violate terms of Section 70-8-105 (c) susceptibility to inbreeding depression, the inadequacy of existing regulatory or to destroy knowingly the habitat of decreasing their ability to adapt to mechanisms to be a significant threat of such species without due consideration environmental changes, and reducing high magnitude. Further, the of alternatives for the welfare of the the fitness of individuals (Soule 1980, information available to us at this time species listed in (1) of this pp. 157–158; Hunter 2002, pp. 97–101; does not indicate that the magnitude or proclamation, or (2) the United States Allendorf and Luikart 2007, pp. 117– imminence of this threat is likely to be list of Endangered fauna.’’ Under these 146). It is likely that some of the appreciably reduced in the foreseeable regulations, potential collectors of this Cumberland darter, rush darter, future. species are required to have a State yellowcheek darter, chucky madtom, and laurel dace populations are below Laurel Dace collection permit. However, in terms of project management, this regulation the effective population size required to The laurel dace and its habitats are only provides for the consideration of maintain long-term genetic and afforded some protection from water alternatives, and does not require the population viability (Soule 1980, pp. quality and habitat degradation under level of project review afforded by the 162–164; Hunter 2002, pp. 105–107). the Clean Water Act and by TDEC’s Act. The long-term viability of a species is Division of Water Pollution Control In summary, population declines and founded on the conservation of under the TWQCA. However, as degradation of habitat for the laurel dace numerous local populations throughout demonstrated under Factor A, are ongoing despite the protection its geographic range (Harris 1984, pp. population declines and degradation of afforded by State and Federal water 93–104). These separate populations are habitat for this species are ongoing quality laws. While these laws have essential for the species to recover and despite the protection afforded by these adapt to environmental change (Noss laws. While these laws have resulted in resulted in improved water quality and stream habitat for aquatic life, including and Cooperrider 1994, pp. 264–297; improved water quality and stream Harris 1984, pp. 93–104). The level of habitat for aquatic life, including the the laurel dace, they alone have not been adequate to fully protect this isolation seen in these five species laurel dace, they alone have not been makes natural repopulation following adequate to fully protect this species; species; sedimentation and non-point source pollutants continue to be a localized extirpations virtually sedimentation and non-point source impossible without human intervention. significant problem. Non-point pollutants continue to be a significant Climate change has the potential to pollution is not regulated by the Clean problem. Sediment is the most abundant increase the vulnerability of the pollutant in the watershed and one of Water Act. Due to the vulnerability of Cumberland darter, rush darter, the greatest threat to the laurel dace. the laurel dace, we find the threat of yellowcheek darter, chucky madtom, The State of Tennessee maintains inadequate regulatory mechanisms to be and laurel dace to random catastrophic water-use classifications through imminent and of high magnitude. events (e.g., McLaughlin et al. 2002; issuance of NPDES permits to Further, the information available to us Thomas et al. 2004). Climate change is industries, municipalities, and others at this time does not indicate that the expected to result in increased that set maximum limits on certain magnitude or imminence of this threat frequency and duration of droughts and pollutants or pollutant parameters. For is likely to be appreciably reduced in the strength of storms (e.g., Cook et al. water bodies on the 303(d) list, States the foreseeable future. 2004). During 2007, a severe drought are required under the Clean Water Act E. Other Natural or Manmade Factors affected the upper Cumberland River to establish a TMDL for the pollutants Affecting Its Continued Existence basin in Kentucky and Tennessee. of concern that will bring water quality Streamflow values for the Cumberland into the applicable standard. The The Cumberland darter, rush darter, River at Williamsburg, Kentucky (USGS Tennessee Department of Environment yellowcheek darter, chucky madtom, Station Number 03404000), in and Conservation has not identified any and laurel dace have limited geographic September and October of 2007 were impaired water bodies in the Soddy ranges and small population sizes. Their among the lowest recorded monthly Creek, the Sale Creek system, or the existing populations are extremely values (99th percentile for low-flow Piney River system (TDEC 2008). localized, and geographically isolated periods) during the last 67 years The TWRA lists the laurel dace as from one another, leaving them (Cinotto 2008, pers. comm.). Climate endangered. Under the Tennessee vulnerable to localized extinctions from change could intensify or increase the Nongame and Endangered or intentional or accidental toxic chemical frequency of drought events, such as the Threatened Wildlife Species spills, habitat modification, progressive one that occurred in 2007. Thomas et al. Conservation Act of 1974 (Tennessee degradation from runoff (non-point (2009, p. 112) report that the frequency, Code Annotated §§ 70-8-101-112), ‘‘[I]t source pollutants), natural catastrophic duration, and intensity of droughts are is unlawful for any person to take, changes to their habitat (e.g., flood likely to increase in the southeast as a attempt to take, possess, transport, scour, drought), other stochastic result of global climate change. export, process, sell or offer for sale or disturbances, and to decreased fitness Fluker et al. (2007, p. 10) reported ship nongame wildlife, or for any from reduced genetic diversity. that drought conditions, coupled with common or contract carrier knowingly Potential sources of unintentional spills rapid urbanization in watersheds that to transport or receive for shipment include accidents involving vehicles contain rush darters, render the nongame wildlife.’’ Further, regulations transporting chemicals over road populations vulnerable, especially included in the Tennessee Wildlife crossings of streams inhabited by one of during the breeding season when they Resources Commission Proclamation these five fish, or the accidental or concentrate in wetland pools and 00-15 Endangered Or Threatened intentional release into streams of shallow pools of headwater streams. Species state the following: ‘‘Except as chemicals used in agricultural or Drought conditions from 2006 to 2007 provided for in Tennessee Code residential applications. greatly reduced spawning habitat for

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rush darter in Jefferson County p. 58) could limit the potential for during the most recent surveys by (Drennen 2007, pers. obs.). Survey populations to rebound from Thomas (2007, p. 3)). Rush darter numbers for the rush darter within the disturbance events. The short life span populations are isolated from each spring-fed headwaters for the unnamed exhibited by members of the N. other, and individual rush darters are tributary to Turkey Creek during 2007 hildebrandi clade (a taxonomic group of only sporadically collected within their were reduced due to a lack of water organisms classified together on the range. Where it occurs, the rush darter (Kuhajda 2008, pers. comm.). In basis of homologous features traced to a is an uncommon species that is usually Winston County, Stiles and Mills (2008, common ancestor) of madtoms, if also collected in low numbers. Yellowcheek pp. 5–6) noted that Doe Branch almost true of chucky madtoms, would further darter populations are restricted to completely dried up during the summer limit the species’ viability by rendering portions of four headwater streams, of 2007. (Stiles 2008, pers. comm.). it vulnerable to severe demographic have declined drastically over the last The federally endangered watercress shifts from disturbances that prevent 30 years and are effectively isolated as darter (Etheostoma nuchale) was reproduction in even a single year, and a result of reservoir construction. Only translocated outside of its native range could be devastating to the population three specimens of the chucky madtom by the Service into Tapawingo Springs if the disturbance persists for successive have been encountered since 2000 (one in 1988 in order to assist in the species, years. in 2000 and two in 2004), despite recovery by expanding its range (Moss In summary, because the Cumberland several surveys that have been 1995, p. 5). The watercress darter is now darter, rush darter, yellowcheek darter, conducted in Little Chucky Creek and reproducing and may be competing with chucky madtom, and laurel dace all several streams in the Nolichucky, rush darters in Tapawingo Springs have limited geographic ranges and Holston, and French Broad River (USFWS 1993, p. 1; Drennen 2004, pers. small population sizes, they are subject watersheds of the upper Tennessee obs.). More recently, a population of to several ongoing natural and manmade River basin, which are similar in size watercress darters was found in the threats. Since these threats are ongoing, and character to Little Chucky Creek. Penny Springs site (Stiles and they are considered to be imminent. The laurel dace is restricted to six Blanchard 2001, p. 3). We require Exacerbation of natural drought cycles streams, where they are only known to further investigation to determine as a result of global climate change occupy reaches of approximately 0.3 to whether interspecific competition is could have detrimental effects on these 8 km (0.2 to 5 mi) in length. These occurring between the watercress darter five species which is expected to isolated species have a limited ability to and the rush darter at this site. (Stiles continue or increase in the future. The recolonize historically occupied stream 2008, pers. comm.). magnitude of these threats is high for and river reaches and are vulnerable to The Little Red River watershed in each of these species because of their natural or human-caused changes in Arkansas experienced moderate drought reduced ranges and population sizes their stream and river habitats. Their conditions during 1997-2000 (Southern which result in a reduced ability to range curtailment, small population Regional Climate Center 2000), which adapt to environmental change. Further, size, and isolation make these five reduced flows in its tributaries and the information available to us at this species more vulnerable to threats such affected yellowcheek darter time does not indicate that the as sedimentation, disturbance of populations. Stage height was 1 foot magnitude or imminence of this threat riparian corridors, changes in channel lower during the sampling period for is likely to be appreciably reduced in morphology, point and non-point source the 2000 status survey than during the the foreseeable future. pollutants, urbanization, and introduced 1979–1980 study (Wine et al. 2000, p. Proposed Determination species. 7). Stream flow is strongly correlated Therefore, as described above, these with important physical and chemical We have carefully assessed the best five species are in danger of extinction parameters that limit the distribution scientific and commercial information throughout their highly localized ranges and abundance of riverine species available regarding the past, present, due to their reduction of habitat and (Power et al. 1995, p. 159, Resh et al. and future threats to the Cumberland ranges, small population sizes, current 1988, p. 437) and regulates the darter, rush darter, yellowcheek darter, habitat threats, and resulting ecological integrity of flowing water chucky madtom, and laurel dace. Based vulnerability due to lack of regulatory systems (Poff et al. 1997, p. 769). on the immediate and ongoing mechanisms and natural or human Yellowcheek darter was not found in significant threats to these species induced catastrophic events. Efforts to the upper reaches of any study streams throughout their entire ranges, as control excessive sedimentation and or in the Turkey/Beech Fork reach of described above in the five-factor improve general water quality Devils Fork, a likely result of drought analyses, we consider these species to throughout their ranges coupled with conditions, and indicates a contraction be in danger of extinction throughout all efforts to increase population levels will of yellowcheek darter range to stream of their ranges. The Endangered Species be essential for these species’ survival. reaches lower in the watershed where Act (Sec. 3(5)(C)(6)) defines an flows are maintained for a greater endangered species as ‘‘any species Available Conservation Measures portion of the year (Wine et al. 2000, p. which is in danger of extinction Conservation measures provided to 11). The threat immediacy and throughout all or a significant portion of species listed as endangered or magnitude of drought is imminent and its range.’’ Therefore, on the basis of the threatened under the Act include moderate to high, respectively, in all best available scientific and commercial recognition, recovery actions, four watersheds for the yellowcheek information, we are proposing to list requirements for Federal protection, and darter. Exacerbation of natural drought these five fishes as endangered species, prohibitions against certain practices. cycles as a result of global climate in accordance with Section 4(a)(1) of the Recognition through listing encourages change could have detrimental effects Act. and results in public awareness and on the species which could continue for The Cumberland darter is threatened conservation by Federal, State, and local the foreseeable future. with range curtailment, specifically its agencies, private organizations, and The low fecundity rates exhibited by disappearance from 9 streams and 11 individuals. The Act encourages many madtom catfishes (Breder and historic sites, and its small population cooperation with the States and requires Rosen 1966 in Dinkins and Shute 1996, size (only 51 individuals observed that recovery actions be carried out for

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all listed species. The protection accomplished solely on Federal lands the survival and recovery of the species. required of Federal agencies and the because their range may occur primarily The section 7(a)(2) analysis is focused prohibitions against take and harm are or solely on non-Federal lands. To not only on these populations but also discussed, in part, below. achieve recovery of these species on the habitat conditions necessary to The primary purpose of the Act is the requires cooperative conservation efforts support them. conservation of endangered and on private, State, and Tribal lands. The jeopardy analysis usually threatened species and the ecosystems Listing will also require the Service to expresses the survival and recovery upon which they depend. The ultimate review any actions on Federal lands and needs of the species in a qualitative goal of such conservation efforts is the activities under Federal jurisdiction that fashion without making distinctions recovery of these listed species, so that may adversely affect the five species; between what is necessary for survival they no longer need the protective allow State plans to be developed under and what is necessary for recovery. measures of the Act. Subsection 4(f) of section 6 of the Act; encourage scientific Generally, if a proposed Federal action the Act requires the Service to develop investigations of efforts to enhance the is incompatible with the viability of the and implement recovery plans for the propagation or survival of the affected core area populations(s), conservation of endangered and under section 10(a)(1)(A) of the Act; and inclusive of associated habitat threatened species. The recovery promote habitat conservation plans on conditions, a jeopardy finding is planning process involves the non-Federal lands and activities under considered to be warranted, because of identification of actions that are section 10(a)(1)(B) of the Act. the relationship of each core area necessary to halt or reverse the species’ Section 7(a) of the Act, as amended, population to the survival and recovery decline by addressing the threats to its requires Federal agencies to evaluate of the species as a whole. survival and recovery. The goal of this their actions with respect to any species Section 9 Take process is to restore listed species to a that is proposed or listed as endangered point where they are secure, self- or threatened and with respect to its Section 9(a)(2) of the Act, and its sustaining, and functioning components critical habitat, if any is designated. implementing regulations found at 50 of their ecosystems. Regulations implementing this CFR 17.21, set forth a series of general Recovery planning includes the interagency cooperation provision of the prohibitions and exceptions that apply development of a recovery outline Act are codified at 50 CFR part 402. to all endangered wildlife. These shortly after a species is listed, Federal agencies are required to confer prohibitions, in part, make it illegal for preparation of a draft and final recovery with us informally on any action that is any person subject to the jurisdiction of plan, and revisions to the plan as likely to jeopardize the continued the United States to take (includes significant new information becomes existence of a proposed species. Section harass, harm, pursue, hunt, shoot, available. The recovery outline guides 7(a)(4) requires Federal agencies to wound, kill, trap, or collect, or to the immediate implementation of urgent confer with the Service on any action attempt any of these), import or export, recovery actions and describes the that is likely to jeopardize the continued ship in interstate commerce in the process to be used to develop a recovery existence of a species proposed for course of commercial activity, or sell or plan. The recovery plan identifies site- listing or result in destruction or offer for sale in interstate or foreign specific management actions that will adverse modification of proposed commerce any listed species. It also is achieve recovery of the species, critical habitat. If a species is listed illegal to knowingly possess, sell, measurable criteria that determine when subsequently, section 7(a)(2) requires deliver, carry, transport, or ship any a species may be downlisted or delisted, Federal agencies to ensure that activities wildlife that has been taken illegally. and methods for monitoring recovery they authorize, fund, or carry out are not Certain exceptions apply to agents of the progress. Recovery plans also establish likely to jeopardize the continued Service and State conservation agencies. a framework for agencies to coordinate existence of the species or destroy or We may issue permits to carry out their recovery efforts and provide adversely modify its critical habitat. If a otherwise prohibited activities estimates of the cost of implementing Federal action may adversely affect a involving endangered wildlife species recovery tasks. Recovery teams listed species or its critical habitat, the under certain circumstances. (comprised of species experts, Federal responsible Federal agency must enter Regulations governing permits are at 50 and State agencies, non-government into formal consultation with the CFR 17.22 for endangered species. Such organizations, and stakeholders) are Service. permits are available for scientific often established to develop recovery Federal activities that may affect the purposes, to enhance the propagation or plans. When completed, the recovery Cumberland darter, rush darter, survival of the species or for incidental outline, draft recovery plan, and the yellowcheek darter, chucky madtom, take in connection with otherwise final recovery plan will be available on and laurel dace include, but are not lawful activities. The yellowcheek our website (http://www.fws.gov/ limited to, the funding, carrying out, or darter is currently covered under a joint endangered), or from our Fish and the issuance of permits for reservoir Safe Harbor/Candidate Conservation Wildlife Service Field Office (see FOR construction, natural gas extraction, Agreement with Assurances (SHA/ FURTHER INFORMATION CONTACT). stream alterations, discharges, CCAA) in the upper Little Red River Implementation of recovery actions wastewater facility development, water watershed in Arkansas along with the generally requires the participation of a withdrawal projects, pesticide endangered speckled pocketbook broad range of partners, including other registration, mining, and road and mussel. Seven landowners have Federal agencies, States, Tribal, bridge construction. enrolled 3,845 hectares (9,500 acres) in nongovernmental organizations, the program since its inception in mid- businesses, and private landowners. Jeopardy Standard 2007 and 10 more landowners with Examples of recovery actions include Prior to and following listing and approximately 19, 420 hectares (48,000 habitat restoration (e.g., restoration of designation of critical habitat, if prudent acres) are pending with draft native vegetation), research, captive and determinable, the Service applies agreements. The CCAA would convert propagation and reintroduction, and an analytical framework for jeopardy to a SHA if the species becomes listed outreach and education. The recovery of analyses that relies heavily on the as threatened or endangered and would many listed species cannot be importance of core area populations to be covered by an enhancement of

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survival permit, which expires January including interstate and foreign (ii) specific areas outside the 1, 2044. commerce, or harming, or attempting geographic area occupied by a species at Under the Interagency Cooperative any of these actions, of the Cumberland the time it is listed, upon a Policy for Endangered Species Act darter, rush darter, yellowcheek darter, determination that such areas are Section 9 Prohibitions, published in the chucky madtom, and laurel dace; essential for the conservation of the Federal Register on July 1, 1994 (59 FR (2) Unlawful destruction or alteration species. 34272), we identify to the maximum of their habitats (e.g., unpermitted Conservation, as defined under extent practicable those activities that instream dredging, impoundment, section 3 of the Act, means to use and would or would not constitute a channelization, discharge of fill the use of all methods and procedures violation of section 9 of the Act if the material) that impairs essential that are necessary to bring an Cumberland darter, rush darter, behaviors such as breeding, feeding, or endangered or threatened species to the yellowcheek darter, chucky madtom, sheltering, or results in killing or point at which the measures provided and laurel dace are listed. The intent of injuring any of these species; pursuant to the Act are no longer this policy is to increase public (3) Violation of any discharge or water necessary. awareness as to the effects of these withdrawal permit that results in harm Critical habitat receives protection proposed listings on future and ongoing or death to any of these species or that under section 7 of the Act through the activities within a species’ range. We results in degradation of their occupied prohibition against Federal agencies believe, based on the best available habitat to an extent that essential carrying out, funding, or authorizing the information, that the following actions behaviors such as breeding, feeding and destruction or adverse modification of will not result in a violation of the sheltering are impaired; and critical habitat. Section 7(a)(2) requires provisions of section 9 of the Act, (4) Unauthorized discharges or consultation on Federal actions that provided these actions are carried out in dumping of toxic chemicals or other may affect critical habitat. The accordance with existing regulations pollutants into waters supporting the designation of critical habitat does not and permit requirements: Cumberland darter, rush darter, affect land ownership or establish a (1) Possession, delivery, or movement, yellowcheek darter, chucky madtom, refuge, wilderness, reserve, preserve, or including interstate transport that does and laurel dace that kills or injures other conservation area. Such not involve commercial activity, of these species, or otherwise impairs designation does not allow the specimens of these species that were essential life-sustaining requirements government or public to access private legally acquired prior to the publication such as breeding, feeding, or shelter. lands. Such designation does not in the Federal Register of the Federal Other activities not identified above require implementation of restoration, List of Endangered or Threatened will be reviewed on a case-by-case basis recovery, or enhancement measures by Wildlife and Plants; to determine if a violation of section 9 non-Federal landowners. Where a (2) Discharges into waters supporting of the Act may be likely to result from landowner seeks or requests Federal the Cumberland darter, rush darter, such activity should these fishes agency funding or authorization for an yellowcheek darter, chucky madtom, become listed. The Service does not action that may affect a listed species or and laurel dace, provided these consider these lists to be exhaustive and critical habitat, the consultation activities are carried out in accordance provides them as information to the requirements of section 7(a)(2) of the with existing regulations and permit public. Act would apply, but even in the event requirements (e.g., activities subject to If you have questions regarding of a destruction or adverse modification section 404 of the Clean Water Act and whether specific activities will likely finding, the obligation of the Federal discharges regulated under the National violate the provisions of section 9 of the action agency and the applicant is not Pollutant Discharge Elimination System Act, contact the Alabama, Arkansas, to restore or recover the species, but to (NPDES)); Tennessee, Kentucky, or Mississippi implement reasonable and prudent (3) Development and construction Ecological Services Field Office (see FOR alternatives to avoid destruction or activities designed and implemented FURTHER INFORMATION CONTACT section). adverse modification of critical habitat. under State and local water quality Requests for copies of regulations Prudency Determination regulations and implemented using regarding listed species and inquiries approved Best Management Practices; Section 4(a)(3) of the Act, as about prohibitions and permits should amended, and implementing regulations and be addressed to the U.S. Fish and (4) Any actions that may affect the (50 CFR 424.12), require that, to the Wildlife Service, Ecological Services Cumberland darter, rush darter, maximum extent prudent and Division, 1875 Century Boulevard, yellowcheek darter, chucky madtom, determinable, we designate critical Atlanta, GA 30345 (Phone 404/679- and laurel dace that are authorized, habitat at the time the species is 7313; Fax 404/679-7081). funded, or carried out by a Federal determined to be endangered or agency (e.g., bridge and highway Critical Habitat threatened. Our regulations (50 CFR construction, pipeline construction, 424.12(a)(1)) state that the designation Background hydropower licensing, etc.), when the of critical habitat is not prudent when action is conducted in accordance with Critical habitat is defined in section 3 one or both of the following situations the consultation and planning of the Act as: exist: (1) The species is threatened by requirements for listed species pursuant (i) the specific areas within the taking or other human activity, and to sections 7 and 10 of the Act. geographical area occupied by a species, identification of critical habitat can be Potential activities that we believe at the time it is listed in accordance expected to increase the degree of threat will likely be considered a violation of with the Act, on which are found those to the species, or (2) such designation of section 9 if these species become listed, physical or biological features critical habitat would not be beneficial include, but are not limited to, the (I) essential to the conservation of the to the species. following: species, and There is no documentation that the (1) Unauthorized possession, (II) that may require special Cumberland darter, rush darter, collecting, trapping, capturing, killing, management considerations or yellowcheek darter, chucky madtom, or harassing, sale, delivery, or movement, protection; and laurel dace are threatened by taking or

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other human activity such that future for these species may be subject (3) Cover or shelter; identification of critical habitat for each to Federal actions that trigger the (4) Sites for breeding, reproduction, of these species could be expected to section 7 consultation requirement, and rearing (or development) of increase the degree of threat to them. In such as the granting of Federal monies offspring; and the absence of finding that the for conservation projects and/or the (5) Habitats that are protected from designation of critical habitat would need for Federal permits for projects disturbance or are representative of the increase threats to a species, if there are (e.g., construction and maintenance of historical geographical and ecological any benefits to a critical habitat roads and bridges subject to section 404 distributions of a species. designation, then we would determine of the Clean Water Act). We are currently unable to identify that the designation of critical habitat is There may also be some educational the physical and biological features for prident. For these species, the potential or informational benefits to the the Cumberland darter, rush darter, benefits include: (1) Triggering designation of critical habitat. yellowcheek darter, chucky madtom, consultation under section 7 of the Act, Educational benefits include the and laurel dace, because information on in new areas for actions in which there notification of land owners, land the physical and biological features that may be a Federal nexus where it would managers, and the general public of the are considered essential to the not otherwise occur because, for importance of protecting the habitat of conservation of these species is not example, it is or has become these species. In the case of these known at this time. As discussed in the unoccupied or the occupancy is in species, this aspect of critical habitat ‘‘Species Information’’ section of this question; (2) focusing conservation designation would potentially benefit proposed rule, the life histories of these activities on the most essential features the conservation of these species. species are poorly known. Although, as and areas; (3) providing educational Therefore, since we have determined described above, we can surmise that benefits to State or county governments, that the designation of critical habitat habitat degradation from a variety of private entities, and the public as a will not likely increase the degree of factors has contributed to the decline of whole; and (4) preventing people from threat to the species and may provide these species, we do not know specifically the essential physical or causing inadvertent harm to the species. some measure of benefit, we find that biological features the habitat is The primary regulatory effect of designation of critical habitat is prudent for the Cumberland darter, rush darter, currently lacking. As we are unable to critical habitat is the section 7(a)(2) identify the physical and biological requirement that Federal agencies yellowcheek darter, chucky madtom, and laurel dace. features essential to the conservation of refrain from taking any action that these species, we are unable to identify destroys or adversely affects critical Critical Habitat Determinability areas that contain these features. habitat. Extant populations of the As stated above, section 4(a)(3) of the Therefore, although we have determined Cumberland darter occur in watersheds Act requires the designation of critical that the designation of critical habitat is that are roughly 60 percent privately habitat concurrently with the species’ prudent for the Cumberland darter, rush owned and 40 percent publicly-owned listing ‘‘to the maximum extent prudent darter, yellowcheek darter, chucky (U.S. Forest Service (USFS), DBNF). The and determinable.’’ Our regulations at 50 madtom, and laurel dace, since the U.S. Forest Service’s ownership is CFR 424.12(a)(2) state that critical biological requirements of these species typically fragmented and often occurs habitat is not determinable when one or are not sufficiently known, we find that on only one side of the stream. The rush both of the following situations exist: critical habitat for these species is not darter occupies streams that are (i) Information sufficient to perform determinable at this time. approximately 96 percent privately required analyses of the impacts of the How the Service Intends to Proceed owned industrial, forestry, agricultural, designation is lacking, or and urbanized lands. The State of (ii) The biological needs of the species We intend to begin preparation of Alabama, Jefferson County, and the are not sufficiently well known to proposed rulemaking in Fiscal Year Freshwater Land Trust own and permit identification of an area as 2011 and publish a proposed critical maintain about two percent of the rush critical habitat. habitat designation for Cumberland darter’s habitat; and the USFS manages When critical habitat is not darter, rush darter, yellowcheek darter, approximately two percent of habitat in determinable, the Act provides for an chucky madtom, and laurel dace in June the Bankhead National Forest. The U.S. additional year to publish a critical 2011. We will take the following steps Forest Service owns two percent of habitat designation (16 U.S.C. to develop a proposal of critical habitat yellowcheek darter habitat in Arkansas, 1533(b)(6)(C)(ii)). for the Cumberland darter, rush darter, while the Arkansas Game and Fish In accordance with section 3(5)(A)(i) yellowcheek darter, chucky madtom, Commission owns one percent. The and 4(b)(1)(A) of the Act and the and laurel dace: (1) Determine the remaining 97 percent is privately regulations at 50 CFR 424.12, in geographical area occupied by the owned. In the Little Chucky Creek determining which areas occupied by species at the time of listing; (2) identify watershed, the chucky madtom the species at the time of listing to the physical or biological features occupies habitat that is primarily designate as critical habitat, we consider essential to the conservation of the privately owned. Approximately five the physical and biological features species; (3) delineate areas within the percent of the Dunn Creek watershed is essential to the conservation of the geographical area occupied by the owned by the National Park Service species which may require special species that contain these features, and (i.e., portions of the Great Smoky management considerations or identify the special management Mountains National Park and Foothills protection. These include, but are not considerations or protections the Parkway), but the majority of the limited to: features may require; (4) delineate any watershed is privately owned habitat for (1) Space for individual and areas outside of the geographical area the madtom. The laurel dace is only population growth and for normal occupied by the species at the time of known to occur in waters within behavior; listing that are essential for the privately owned lands. Any of the (2) Food, water, air, light, minerals, or conservation of the species; and (5) abovementioned lands that may be other nutritional or physiological conduct appropriate analyses under designated as critical habitat in the requirements; section 4(b)(2) of the Act.

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To aid us in completing these steps, • Special management considerations or that are the basis for our conclusions we will use the best science available. protection that proposed critical regarding the proposal to list We also solicit the public for additional habitat may require; Cumberland darter (Etheostoma information (see Request for Public • Conservation programs and plans that susanae), rush darter (Etheostoma Information section below) and will protect these species and their phytophilum), yellowcheek darter consult experts on the Cumberland habitat; and; (Etheostoma moorei), chucky madtom darter, rush darter, yellowcheek darter, • Whether we could improve or modify (Noturus crypticus), and laurel dace chucky madtom, and laurel dace. our approach to designating critical (Phoxinus saylori) as endangered and While the proposed designation of habitat in any way to provide for our proposal regarding critical habitat critical habitat for these fishes is under greater public participation and for this species. preparation, the areas occupied by these understanding, or to better We will consider all comments and species in the United States will accommodate public concerns and information we receive during the continue to be subject to conservation comments. comment period on this proposed rule actions implemented under section Public Comment Procedures during preparation of a final 7(a)(1) of the Act, as well as rulemaking. Accordingly, our final consultation pursuant to section 7(a)(2) To ensure that any final action decision may differ from this proposal. resulting from this finding will be as of the Act for Federal activities that may Public Hearings affect any of these species, as accurate and as effective as possible, we determined on the basis of the best request that you send relevant The Act provides for one or more available scientific information at the information for our consideration. The public hearings on this proposal, if time of the action. In addition, the comments that will be most useful and requested. Requests must be received prohibition of taking Cumberland likely to influence our decisions are within 45 days after the date of darter, rush darter, yellowcheek darter, those that you support by quantitative publication of this proposal in the chucky madtom, and laurel dace under information or studies and those that Federal Register. Such requests must be section 9 of the Act (e.g., prohibitions include citations to, and analyses of, the made in writing and be addressed to the against killing, harming, harassing, and applicable laws and regulations. Please Field Supervisor at the address in the capturing endangered species) make your comments as specific as FOR FURTHER INFORMATION CONTACT continues to apply. possible and explain the bases for them. section. We will schedule public In addition, please include sufficient We will also continue to use our hearings on this proposal, if any are information with your comments to authorities to work with agencies and requested, and announce the dates, allow us to authenticate any scientific or other partners in the to conserve and times, and places of those hearings, as commercial data you include. For recover these species. We are working well as how to obtain reasonable instructions on how to submit with the partners to develop and accommodations, in the Federal comments, please see the Request for implement a framework for the Register and local newspapers at least Public Comments conservation of the Cumberland darter, 15 days before the hearing. Section. rush darter, yellowcheek darter, chucky Persons needing reasonable madtom, and laurel dace. Public Availability of Comments accommodations to attend and participate in a public hearing should As stated above in more detail, before Request for Public Information contact the Tennessee Ecological including your address, phone number, Services Field Office by telephone at We intend that any designation of e-mail address, or other personal 931-528-6481, as soon as possible. To critical habitat for the Cumberland identifying information in your allow sufficient time to process darter, rush darter, yellowcheek darter, comment, you should be aware that requests, please call no later than one chucky madtom, and laurel dace be as your entire comment—including your week before the hearing date. accurate as possible. Therefore, we will personal identifying information—may Information regarding this proposed continue to accept additional be made publicly available at any time. rule is available in alternative formats information and comments from all While you can ask us in your comment upon request. concerned governmental agencies, the to withhold your personal identifying scientific community, industry, or any information from public review, we Required Determinations other interested party concerning this cannot guarantee that we will be able to Clarity of the Rule finding. We are particularly interested do so. in information concerning: We are required by Executive Orders (1)The reasons why areas should or Peer Review 12866 and 12988 and by the should not be designated as critical In accordance with our joint policy Presidential Memorandum of June 1, habitat as provided by section 4 of the published in the Federal Register on 1998, to write all rules in plain Act (16 U.S.C. 1531, et seq.), including July 1, 1994 (59 FR 34270), we will seek language. This means that each rule we whether the benefits of designation the expert opinions of at least three publish must: would outweigh threats to the species appropriate and independent specialists (a) Be logically organized; that designation could cause (e.g., regarding this proposed rule. The (b) Use the active voice to address exacerbation of existing threats, such as purpose of such review is to ensure that readers directly; overcollection), such that the our proposed rule is based on (c) Use clear language rather than designation of critical habitat is scientifically sound data, assumptions, jargon; prudent; and and analyses. We will send these peer (d) Be divided into short sections and (2)Specific information on: reviewers copies of this proposed rule sentences; and • What areas contain physical and immediately following publication in (e) Use lists and tables wherever biological features essential for the the Federal Register. We will invite possible. conservation of the species; these peer reviewers to comment, If you feel that we have not met these • What areas are essential to the during the public comment period, on requirements, send us comments by one conservation of the species; and the specific assumptions and the data of the methods listed in the ADDRESSES

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section. To better help us revise the defined under the authority of the List of Subjects in 50 CFR Part 17 rule, your comments should be as National Environmental Policy Act of Endangered and threatened species, specific as possible. For example, you 1969, need not be prepared in Exports, Imports, Reporting and should tell us the names of the sections connection with regulations adopted recordkeeping requirements, or paragraphs that are unclearly written, pursuant to section 4(a) of the Act. We Transportation. which sections or sentences are too published a notice outlining our reasons long, the sections where you feel lists or for this determination in the Federal Proposed Regulation Promulgation tables would be useful, etc. Register on October 25, 1983 (48 FR Accordingly, we propose to amend 49244). Paperwork Reduction Act of 1995 (44 part 17, subchapter B of chapter I, title U.S.C. 3501, et seq.) References Cited 50 of the Code of Federal Regulations, as set forth below: This rule does not contain any new A complete list of all references cited collections of information that require in this rule is available on the Internet PART 17—[AMENDED] approval by Office of Management and at http://www.regulations.govor upon Budget (OMB) under the Paperwork 1. The authority citation for part 17 request from the Field Supervisor, Reduction Act. This rule will not continues to read as follows: impose recordkeeping or reporting Tennessee Ecological Services Field Office (see FOR FURTHER INFORMATION Authority: 16 U.S.C. 1361-1407; 16 U.S.C. requirements on State or local 1531-1544; 16 U.S.C. 4201-4245; Public Law CONTACT section). governments, individuals, businesses, or 99-625, 100 Stat. 3500; unless otherwise organizations. An agency may not Author(s) noted. conduct or sponsor, and a person is not 2. In §17.11(h) add the following to The primary authors of this document required to respond to, a collection of the List of Endangered and Threatened information unless it displays a are staff members of the U.S. Fish and Wildlife in alphabetical order under currently valid OMB control number. Wildlife Service’s Tennessee Ecological Fishes: Services Field Office, Kentucky National Environmental Policy Act Ecological Services Field Office, §17.11 Endangered and threatened We have determined that Arkansas Ecological Services Office, and wildlife. environmental assessments and the Mississippi Ecological Services * * * * * environmental impact statements, as Field Office. (h) * * *

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

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FISHES

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Dace, laurel Phoxinus U.S.A (TN) Entire E TBD NA NA saylori

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Darter, Etheostoma U.S.A. (KY, Entire E TBD NA NA Cumberland susanae TN)

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Darter, rush Etheostoma U.S.A. (AL) Entire E TBD NA NA phytophilum

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Darter, Etheostoma U.S.A. (AR) Entire E TBD NA NA yellowcheek moorei

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

*******

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* * * * * Dated: June 2, 2010 Jeffrey L. Underwood, Acting Director, U.S. Fish and Wildlife Service. [FR Doc. 2010–15240 Filed 6–23– 10; 8:45 am] BILLING CODE 4310–55–S

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