Vol. 78 Thursday, No. 163 August 22, 2013

Part V

Department of the Interior

Fish and Wildlife Service 50 CFR Part 17 Endangered and Threatened Wildlife and Plants; Designation of Critical Habitat for the ( cincotta); Final Rule

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DEPARTMENT OF THE INTERIOR Virginia Field Office (see ADDRESSES conclusions, and they provided section). If you use a additional information, clarifications, Fish and Wildlife Service telecommunications device for the deaf and suggestions to improve this final (TDD), call the Federal Information rule. The information we received from 50 CFR Part 17 Relay Service (FIRS) at 800–877–8339. the peer review process is incorporated [Docket No. FWS–R5–ES–2013–0019; SUPPLEMENTARY INFORMATION: in this final revised designation. We 4500030114] also considered all comments and Executive Summary information received from the public RIN 1018–AZ40 Why we need to publish a rule. This during the comment periods and is a final rule to designate critical incorporated those comments, as Endangered and Threatened Wildlife habitat for the diamond darter. Under appropriate, into this final rule. and Plants; Designation of Critical the Endangered Species Act of 1973, as Previous Federal Actions Habitat for the Diamond Darter amended (16 U.S.C. 1531 et seq.) (Act), (Crystallaria cincotta) we must designate critical habitat, to the The diamond darter was first AGENCY: Fish and Wildlife Service, maximum extent prudent and identified as a candidate for protection Interior. determinable, for any species we under the Act in the November 9, 2009, Federal Register (74 FR 57804). As a ACTION: Final rule. determine to be endangered or threatened. Designation of critical candidate, it was assigned a listing SUMMARY: We, the U.S. Fish and habitat can only be completed by priority number (LPN) of 2. Candidate Wildlife Service (Service), designate issuing a rule. species are assigned LPNs based on the critical habitat for the diamond darter We listed the diamond darter as an magnitude and immediacy of threats (Crystallaria cincotta), a small fish in endangered species on July 26, 2013 (78 and their taxonomic status. The lower West Virginia, under the Endangered FR 45074). On July 26, 2012, we the LPN, the higher the priority is for Species Act (Act). In total, published in the Federal Register a determining appropriate action for the approximately 197.1 river kilometers proposed critical habitat designation for species using our available resources. (122.5 river miles) in Kanawha and Clay the diamond darter (77 FR 43906). An LPN of 2 reflects that the threats to Counties, West Virginia, and Edmonson, This rule consists of: A final rule to the diamond darter are both imminent Hart, and Green Counties, Kentucky, are designate critical habitat for the and high in magnitude. It also reflects being designated as critical habitat. The diamond darter. Section 4(b)(2) of the the taxonomic classification of the effect of this regulation is to designate Act states that the Secretary shall diamond darter as a full species. We critical habitat for the diamond darter designate critical habitat on the basis of retained the LPN of 2 in our subsequent under the Act. the best available scientific data after Notices of Review dated November 10, DATES: This rule becomes effective on taking into consideration the economic 2010 (75 FR 69222), and October 26, September 23, 2013. impact, national security impact, and 2011 (76 FR 66370). On July 26, 2012 any other relevant impact of specifying (77 FR 43906), we published a proposed ADDRESSES: This final rule is available any particular area as critical habitat. rule to list the diamond darter as on the Internet at http:// Here we are designating, in total, endangered. On July 26, 2013 (78 FR www.regulations.gov and at the West approximately 197.1 river kilometers 45074), we published a final rule to list Virginia Field Office. Comments and (km) (122.5 river miles (mi)) as critical the diamond darter as endangered. materials received, as well as supporting habitat for the species. The critical documentation used in the preparation habitat is located in Kanawha and Clay Background of this rule, are available for public Counties, West Virginia, and in The diamond darter is a small fish inspection, by appointment, during Edmonson, Hart, and Green Counties, that is a member of the family normal business hours at: U.S. Fish and Kentucky. (). The diamond darter is Wildlife Service, West Virginia Field We have prepared an economic overall translucent and is a silvery Office, 694 Beverly Pike, Elkins, West analysis of the designation of critical white on the underside of the body and Virginia 26241. The Field Office can be habitat. We have prepared an analysis head. It has four wide, -brown reached by telephone 304–636–6586 or of the economic impacts of the critical saddles on the back and upper side by facsimile 304–636–7824. habitat designation and related factors. (Welsh et al. 2008, p. 1). Diamond The coordinates or plot points or both We announced the availability of the darters are most active during the night from which the critical habitat maps are draft economic analysis (DEA) in the and may stay partially buried in the generated are included in the Federal Register on March 29, 2013 (78 stream substrates during the day (Welsh administrative record for this critical FR 19172), allowing the public to 2008, p. 10; Welsh 2009c, p. 1). Adult habitat designation and are available at provide comments on our analysis. We diamond darters are benthic http://www.fws.gov/ have incorporated the comments and invertivores, feeding primarily on westvirginiafieldoffice, have completed the final economic stream bottom-dwelling invertebrates www.regulations.gov at Docket No. analysis (FEA) concurrently with this (NatureServe 2008, p. 8). The diamond FWS–R5–ES–2013–0019, and at the final determination. darter was historically distributed West Virginia Field Office (see FOR Peer review and public comment. We throughout the Basin FURTHER INFORMATION CONTACT). Any sought comments from independent including the Muskingum River in additional tools or supporting specialists to ensure that our Ohio; the Ohio River in Ohio, Kentucky, information that we developed for this designation is based on scientifically and Indiana; the Green River in critical habitat designation are also sound data and analyses. We asked Kentucky; and the Cumberland River available at the U.S. Fish and Wildlife knowledgeable individuals with the Drainage in Kentucky and Tennessee. Service Web site and Field Office set out scientific expertise to review our The diamond darter has been extirpated above, and may also be included at technical assumptions, analysis, and from all these streams and is now www.regulations.gov. whether we had used the best available known to occur only within the lower FOR FURTHER INFORMATION CONTACT: John data. These peer reviewers generally Elk River in West Virginia. More Schmidt, Acting Field Supervisor, West concurred with our methods and detailed information on the diamond

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darter, including its , species (1) They concurred with the proposed Section 3(5) of the Act requires the description, and current and historical critical habitat designation; (2) the Service to specify the ‘‘specific areas’’ distribution, and a summary of its life proposed rule appropriately designated within the geographical area occupied history and habitat can be found in the the lower 45 km (28 mi) of the Elk River by the species at the time of listing that final listing rule published on July 26, as critical habitat; and (3) scientific are essential to the species’ conservation 2013 (78 FR 45074). evidence provided in the proposed rule or those areas outside the geographical supported our conclusion that this reach areas occupied by the species at the Summary of Comments and of river is needed to protect the only time of listing that are essential for the Recommendations remaining population of the diamond species’ conservation. Therefore, we We requested written comments from darter. One peer reviewer also have designated critical habitat based on the public on the proposed designation commented that the reach of the Green the best available data at this time. of critical habitat for the diamond darter River proposed for unoccupied critical In both our proposed and final critical during two comment periods. The first habitat was a logical choice for habitat designation for the Elk River, we comment period opened with the designation, in that it was more likely included some areas upstream and publication of the proposed rule (77 FR than any other historical habitat to offer downstream of known capture locations 43906) on July 26, 2012, and closed on the potential for reestablishment of a that have suitable habitat for the September 25, 2012. In a notice second population of the diamond species. These areas are contiguous with published on March 29, 2013 (78 FR darter. Another peer reviewer suggested known and documented capture sites, 19172), we also requested comments on that additional areas should be have similar habitat characteristics, the proposed critical habitat designation designated as critical habitat. have no barriers to dispersal, and are and associated DEA during a comment (1) Comment: The only known within general darter dispersal period that opened March 29, 2013, and collection of a young diamond darter capabilities. This should allow for some closed on April 29, 2013. We did not was at the extreme lower end of the upstream migrations of breeding and receive any requests for a public proposed critical habitat on the Elk spawning adult diamond darters, as hearing. We also contacted appropriate River in West Virginia. Although the well as some downstream migration of Federal, State, and local agencies, extent of diamond darter larval drift is larvae. However, we do not have scientific organizations, and other unknown, it may include portions of the scientific data available to be able to interested parties, and invited them to Kanawha River below the mouth of the determine whether the aforementioned comment on the proposed rule and DEA Elk River, which is not included in the capture location of the juvenile during these comment periods. proposed designation. The extent of diamond darter is downstream of or During the first comment period, we potential downstream larval drift should within the critical habitat designation. received 11 letters that provided be considered in the critical habitat The reach of the Elk River downstream comments specific to the proposed designation. Additional research is of the designated critical habitat to the critical habitat designation. During the needed to define how far larval drift confluence with the Kanawha River is second comment period, we received 10 occurs and what larvae are eating in the affected by impoundment from the comment letters addressing the wild. Winfield Lock and Dam on the Kanawha proposed critical habitat designation or Our Response: We concur that it is River, and is dredged by the U.S. Army the DEA. Comments received were important to consider all the diamond Corps of Engineers (ACOE). Therefore, grouped into general issues specifically darter’s life stages, including the larval this area was not designated as critical relating to the proposed critical habitat stage, when designating critical habitat. habitat because it did not contain the designation for the diamond darter, and However, very little is known about the required physical and biological are addressed in the following summary natural history of the larval and juvenile features (PBFs). We have incorporated and incorporated into the final rule as life stages of the diamond darter. As the additional discussion about the appropriate. Comments addressing only commenter stated, the only known uncertainty surrounding the location of the proposed listing are addressed record of a young diamond darter the juvenile diamond darter capture, as separately in the final listing rule (78 FR captured in the wild was from benthic well information about the potential for 45074, July 26, 2013). trawl surveys conducted in the Elk larval drift, in the final rule. Please refer River somewhere near the confluence to our response to comment #1 in the Peer Review with the Kanawha River in West final listing rule (78 FR 45074, July 26, In accordance with our peer review Virginia. Despite repeated requests to 2013) for more information on this policy published on July 1, 1994 (59 FR the researcher and his staff who topic. 34270), we solicited expert opinion captured the young diamond darter, we We also note in the final critical from five knowledgeable individuals have been unable to more precisely habitat rule that habitat is dynamic, and with scientific expertise on the diamond determine the exact location of this species may move from one area to darter and its habitat, biological needs, capture or the habitat conditions at the another over time. We recognize that and threats. We received individual capture location. Additionally, no critical habitat designated at a particular responses from three of the peer scientific data is available on how long point in time may not include all of the reviewers. The response from one peer diamond darter larvae remain in a habitat areas that we may later reviewer was incorporated into pelagic phase (drifting in open water) or determine are necessary for the recovery comments submitted by his employer, how far they may drift downstream after of the species. For these reasons, a the West Virginia Division of Natural they hatch. We are also unaware of any critical habitat designation does not Resources (WVDNR). Those comments scientific data available as to where signal that habitat outside the are addressed below under Comments diamond darters breed in the Elk River. designated area is unimportant or may from States. We concur that additional research is not be needed for recovery of the We reviewed all comments received needed to quantify diamond darter species. Similarly, critical habitat from the peer reviewers for substantive larval and breeding requirements. designations made on the basis of the and new information regarding critical However, we have used the best best available scientific data at the time habitat for the diamond darter. Two of available scientific data to define the of designation will not control the the peer reviewers explicitly stated that: extent of these life history requirements. direction and substance of future

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recovery plans, habitat conservation specimens after his death (Fowler 1906, concurred that these components are plans (HCPs), or other species p. 524). In a subsequent taxonomic present in the Elk River and necessary conservation planning efforts if new review of fish from Michigan, Fowler for the continued success of the information available at the time of determined that some of Cope’s other diamond darter. The WVDNR also these planning efforts calls for a Crystallaria specimens had been concurred with the proposed different outcome. When additional incorrectly identified (Fowler 1918, pp. designation of the 45-km (28-mi) reach information becomes available about 48–49). This is not surprising given the of the Elk River as critical habitat. The diamond darter larval requirements, or advances in fish taxonomy that occurred agency confirmed that this reach of the if the location of the previous capture between 1870 and 1918. Thus, it is Elk River supported all the PCEs, and can be more precisely determined, we possible that Cope’s Big South Fork of further commented that its survey data will fully consider that information the Cumberland River Crystallaria from Elk River tributaries supported our during future diamond darter specimen was also incorrectly conclusion that the diamond darter consultation and recovery efforts, and identified. However, we searched rarely or never uses these tributary may revise the critical habitat published literature and found no areas. Although the agency commented designation, if necessary. records of Fowler or any subsequent that the Service correctly proposed to (2) Comment: The Service should taxonomists confirming or refuting designate critical habitat in the Green consider designating the lower free- Cope’s original identification of this River based on the criteria provided, the flowing portion of the Big South Fork of specimen, or any written descriptions or agency deferred any additional the Cumberland River as unoccupied illustrations of this specimen that would comments on that portion of the critical habitat, similar to the Green have allowed us to verify its accuracy. diamond darter’s habitat to the River. Although the Big South Fork of Additionally, we have been unable to Kentucky Department of Fish and the Cumberland River may not be quite locate this specimen. Wildlife Resources (KYDFWR). The as high in quality as the Green River, it In 1918, Fowler noted that some of KYDFWR did not formally comment on meets the criteria for designation as Cope’s specimens were no longer extant, the proposed rule. The WVDEP cited, particularly in supporting rare and that some were in poor preservation provided two substantive comments and sensitive species, including (Fowler 1918, pp. 2–51). The Big South regarding the proposed critical habitat, streamline chubs (Erimystax dissimilis) Fork of the Cumberland River as detailed below. and tuxedo darters ( Crystallaria specimen is apparently one (3) Comment: The WVDEP asserted lemniscatum). of those specimens that was lost or that the primary cause of the diamond Our Response: We concur that the degraded since its original collection, darter’s decline was habitat loss and lower portions of the Big South Fork of and is no longer extant. Therefore, it isolation of the population through the the Cumberland River currently have cannot be inspected and verified. historical impoundment of streams the suitable habitat for the diamond darter Conversely, museum specimens from species inhabited. The agency therefore in that the river is free-flowing and has surveys conducted in 1890 in other suggested that PCE 3, which emphasizes riffle-pool complexes and areas with portions of the Cumberland River the darter’s need for flows unimpeded suitable substrates. It also supports watershed are extant and have been by impoundment, should be the first other rare species with similar life- independently reviewed and verified to priority PCE considered essential to the history requirements, and the National be the diamond darter (Welsh and Wood diamond darter’s persistence. Park Service provides some protections. 2008, p. 6). However, as described Our Response: We concur that Based on this information, we evaluated above, we do not have confirmed impoundment was one of the most this area for inclusion in the designation historical records that the diamond direct and dramatic historical causes of as unoccupied critical habitat. To be darter existed in the Big South Fork of diamond darter habitat loss. Water included in the unoccupied critical the Cumberland River. Therefore, the quality degradation and siltation also habitat designation, an area must have Big South Fork of the Cumberland River played key roles. See our response to historical darter occurrences that have did not meet the inclusion criteria for comment #4 in the final listing rule (78 been confirmed to be diamond darter. unoccupied critical habitat. However, FR 45074, July 26, 2013) for more Confirmation of the historical excluding this area from critical habitat information regarding the role of occurrences is completed through designation does not mean that it may impoundment and other factors in the examination of available museum not be important or appropriate for decline and extirpation of diamond specimens. future diamond darter recovery efforts. darter populations. While we agree that One specimen of a Crystallaria impoundment is an important cause of species was known to be collected from Comments From States diamond darter habitat loss, we do not the Big South Fork of the Cumberland Section 4(i) of the Act states, ‘‘the concur that the order of the PCEs should River around 1870, but very little Secretary shall submit to the State be changed. The diamond darter information is available about the actual agency a written justification for his requires all the listed PCEs to survive specimen. We note that it was one of the failure to adopt regulations consistent and recover, and the PCEs are not listed earliest collections of any Crystallaria with the agency’s comments or in order of priority. Rather, we have species, and occurred at a time when petition.’’ We received comments from listed the PCEs in an order that supports many fishes from the Ohio River Basin two State agencies, the WVDNR and the the species’ basic life-history were first being captured, identified, West Virginia Department of requirements. To support the diamond and described. Cope, who originally Environmental Protection (WVDEP). darter, there must first be a stream collected this specimen, did not Comments received from the State located in the historical range of the formally publish any records of his regarding the proposal to designate species. The stream must also be of the Crystallaria capture in the Big South critical habitat are summarized below, correct size (stream order) and have the Fork of the Cumberland River (Comisky followed by our responses. correct substrates. For example, small and Etnier 1972, p. 143). The first The WVDNR stated that the Service headwater streams, or naturally slow- reference to this specimen occurred in provided an excellent evaluation in moving streams with predominately silt 1906 when Fowler began curating and support of the proposed primary substrates, even if unimpounded, would cataloguing Cope’s collection of percid constituent elements (PCEs), and not support the diamond darter.

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Therefore, our PCEs describe first the and Kentucky Waterways Alliance the final rule, as appropriate. We also type and location of stream habitat the (KYWA), and the one individual were concur with the assessment of potential diamond darter requires, second the strongly supportive of the proposed benefits of restoring healthy intact type of substrate, and third the need for critical habitat designation. The KYWA aquatic ecosystems. relatively natural flows unimpeded by confirmed that the Green River contains (6) Comment: The KYWA and TNC impoundment. We have thus retained the PCEs required to support the described numerous ongoing efforts that the original order of the PCEs. diamond darter, including connected the organizations and their partners (4) Comment: The WVDEP riffle-pool complex habitats that are have conducted to protect and enhance commented that the concept of unaffected by any impoundments with the Green River and to educate the embeddedness described in the clean sand and gravel substrates and public on the river’s biodiversity. These proposed rule is inconsistent with the healthy and diverse benthic efforts included river cleanups, the species’ habitat requirements. The macroinvertebrate prey populations. addition of lands to Western Kentucky agency stated that, because the diamond The KYWA also confirmed the Green University’s (WKU) Upper Green River darter occupies habitats with ample River has a number of protective use Biological Reserve, and the sand, some embeddedness of the larger designations that provide protections establishment of a Watershed Watch particles in these areas is expected and consistent with the recovery of the program under which volunteers are quite necessary. The agency further diamond darter. trained to monitor the biological suggested that we clarify the concepts of The CBD, on behalf of itself and 16 conditions in the river. The organization siltation versus sedimentation since it additional organizations, submitted further expressed a willingness to work would appear that the diamond darter is comments in support of the proposed with the Service and appropriate State susceptible to the effects of siltation, critical habitat designation, reiterated agencies on restoration of diamond which is the accumulation of fines, or information presented in the proposed darter populations in the Green River. particles smaller than sand, while being rule, and suggested that the designation Our Response: The KYWA and TNC dependent upon a relative abundance of of unoccupied critical habitat in have acted proactively to protect and sand to fulfill life-history functions. The Kentucky will greatly increase the restore the Green River and its aquatic agency suggested that PCE 2 should be diamond darter’s potential for survival species. The Service appreciates these clarified with regard to these two issues. and recovery. In addition, efforts and the offer to assist in diamond Our Response: We concur with the approximately 4,840 individuals darter recovery. We recognize that WVDEP that the diamond darter is associated with CBD provided form partnerships are essential for the susceptible to the effects of siltation, letters supporting the proposed critical conservation of aquatic habitats and the which is the accumulation of fines, or habitat that reiterated the comments diamond darter, and we look forward to particles smaller than sand, while being provided by CBD. One individual, the continuing to work with these dependent upon a relative abundance of WVRC, the CBD, and associated organizations on Green River restoration natural sand to fulfill life-history individuals responding by form letter, and diamond darter conservation. functions. We have, therefore, reviewed urged the Service to act quickly to (7) Comment: The WVCC, WVCA, our use of the terms ‘‘siltation’’ and finalize the critical habitat designation, WVFA, and WVONGA all commented ‘‘sedimentation’’ in the final critical with the WVRC suggesting that that data are insufficient to habitat rule and clarified that the protection is needed now while there quantitatively define specific water diamond darter requires substrates that still may be a viable breeding quality standards required by the are not embedded with fine silts or population of diamond darters. diamond darter. These organizations clays. See our response to comment #5 Additional substantive comments from noted that conductivity was described in the final listing rule (78 FR 45074, the eight organizations are detailed as a threat to the diamond darter in the July 26, 2013) for additional information below. proposed listing rule even though an on our definitions of the terms (5) Comment: The KYWA provided appropriate conductivity range for the ‘‘substrate embeddedness,’’ ‘‘siltation,’’ additional supporting information on diamond darter has not yet been and ‘‘sedimentation’’ and on the the current and historical biological established and scientific studies have relationship of these terms to the diversity of the Green River. The not conclusively shown that elevated diamond darter’s life-history organization noted that the diamond conductivity causes harm to fish requirements. darter is one of the native fish species species. These organizations stated that, currently missing from the system, and if the final rule suggests ideal water Public Comments that darters play an important role in quality conditions for parameters such We received comments addressing the aquatic systems as indicators of good as conductivity, these parameters proposed critical habitat designation water quality and diversity. The should be based on observations where from eight organizations and one organization suggested that the diamond darter population currently individual. Four organizations, the West reintroducing the diamond darter into exists in the Elk River or on direct Virginia Chamber of Commerce the river would create a more complete testing on the diamond darter. Finally, (WVCC), the West Virginia Oil and aquatic ecosystem, would help to the organizations recommend that the Natural Gas Association (WVONGA), sustain other populations of fish, such use of the (Crystallaria the West Virginia Coal Association as muskellunge (Esox masquinongy) or asprella) as a surrogate for the diamond (WVCA), and the West Virginia Forestry bass (Micropterus spp.), and contribute darter to establish water quality Association (WVFA), were critical of the to a healthy robust native ecosystem. parameters is not justified because the proposed rule and provided substantive The KYWA concluded that the ranges of these two species do not comments in that regard. Each of these organization strongly supports all efforts overlap and the two species are four organizations submitted comments to fully restore and protect all native genetically distinct. during each of the two comment species to the Green River. Our Response: See our responses to periods. Four other organizations, The Our Response: We appreciate the comments #12 and #13 in the final Nature Conservancy (TNC), West additional information on historical listing rule (78 FR 45074, July 26, 2013) Virginia Rivers Coalition (WVRC), biodiversity in the Green River, and we for a detailed response to the threat that Center for Biological Diversity (CBD), have incorporated this information into conductivity poses to the diamond

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darter, and our approach to describing consultations annually), and that some of stream crossings. The organizations appropriate water quality parameters for of these consultations may result in time did not provide detailed information on the diamond darter, including using delays. In addition, section 2.3.2 trends within the oil and natural gas data from surrogate species. presents the DEA’s methodology for industry to support the comment. (8) Comment: The WVCC, WVCA, identifying incremental impacts, which Our Response: As discussed in WVFA, and WVONGA all suggested that relies partly upon the Service’s section 3.2.1 of the DEA, there is the DEA inappropriately fails to Incremental Effects Memorandum for considerable uncertainty about future consider the potential economic effects the Economic Analysis for the Proposed demand levels for oil and natural gas on Kanawha County, and that our Rule to Designate Critical Habitat for the activity within the study area. If reliable justification that the county ‘‘does not Diamond Darter (Incremental projections of the demand for oil and meet the definition of small Memorandum) and which is provided natural gas were available, we would government’’ is insufficient. They as DEA Appendix D. The Incremental incorporate this information into the specifically mention a sentence on page Memorandum explains that areas economic analysis. When drafting the ES–9 of the DEA. occupied by the diamond darter or other DEA, we contacted WVONGA to obtain Our Response: As described in co-occurring listed species are unlikely more detailed or reliable projections of Section 4.2.1 of the DEA, the Economic to incur incremental impacts (those the demand for oil and gas in the Study Analysis takes into account all associated solely with a critical habitat Area. However, WVONGA did not economic impacts that occur within the designation) because ‘‘there is a close respond to our requests for information. study area, such as impacts to coal relationship between the health of the In addition, the comment letters mining in Unit 1. The study area diamond darter and the health of its provided on the DEA did not provide includes Kanawha County; therefore, habitat.’’ This means that the any detailed information that would the economic impacts to the County are conservation measures needed to avoid allow us to estimate future trends in the analyzed in the DEA. The DEA sentence adverse modification of critical habitat demand for oil and gas within the Study the commenter mentioned refers would typically already be included in Area. Therefore, absent such specifically to the DEA’s analysis of any measures required to avoid projections, we rely on historical economic impacts on small entities, jeopardizing the continued existence of permitting data to forecast future levels including governmental entities. The the diamond darter. In other words, of economic activity related to oil and DEA appendix (see page A–2) further there would be no substantial time natural gas exploration and drilling clarifies the definition of small entities delays in evaluating a project that has within the Study Area. under the Small Business Regulatory the potential to affect critical habitat (11) Comment: The WVCC, WVCA, Enforcement Flexibility Act (SBREFA; 5 versus a project that has the potential to WVONGA, and WVFA stated that the U.S.C. 801 et seq.) as ‘‘small affect the diamond darter. DEA does not appropriately consider all governmental jurisdictions as As described in section 3.2.1, because economic impacts on small business governments of cities, counties, towns, consultations related to coal mining and entities. The organizations disagreed townships, villages, school districts, or natural gas production would fall with the Service’s amended special districts with a population of within occupied habitat, the DEA finds determination certifying that, ‘‘if less than 50,000.’’ We note that that these consultations and any related promulgated, the proposed critical Kanawha County has a population of time delays would result from the habitat designation would not have a 192,179, which is more than the 50,000 listing of the diamond darter and the significant economic impact on a population-level threshold. Therefore, presence of co-occurring listed mussel substantial number of small business Kanawha County, by definition, cannot species, regardless of the designation of entities. Therefore, an initial regulatory be considered ‘‘small’’ under the diamond darter critical habitat. Based flexibility analysis is not required.’’ The SBREFA. However, Chapter 4 of the on the case law and guidance from the organizations further stated that the DEA, in particular Exhibit 4–1, presents U.S. Office of Management and Budget amended determination should be the overall economic impacts in the (OMB) reviewed in Chapter 2 of the reconsidered to adequately account for Unit 1 Study Area, which includes all DEA, the DEA quantifies only those the complete economic impact on small impacts within Kanawha and Clay economic impacts that are specifically businesses as required under the Counties, West Virginia. attributable solely to the designation of Regulatory Flexibility Act (RFA; 5 (9) Comment: The WVCC, WVONGA, critical habitat, and provides a narrative U.S.C. 601 et seq.), as amended by and WVCA disagreed with the DEA’s description of other forecast impacts SBREFA. The WVFA also expressed assertion that, if time delay impacts to that may stem from diamond darter concern that small businesses do not the resource extraction industry were to conservation efforts requested under the have sufficient unfilled working hours occur, the impacts would be attributable Act’s jeopardy standard. Accordingly, to manage the consultation process that to the listing of the diamond darter and the DEA qualitatively describes, but would be contracted to third party co-occurring mussel species rather than does not quantify, these potential vendors. to the designation of the diamond impacts to coal mining and natural gas Our Response: Section 7 of the Act is darter’s proposed critical habitat. The production activities. the regulatory mechanism requiring organizations also stated that the DEA (10) Comment: The WVONGA and the Federal agencies, in consultation with fails to quantify the likely impacts to the WVCC stated that oil and natural gas the Service, to insure that any action regulated community, particularly exploration and drilling have surged authorized, funded, or carried out by the relative to the coal mining and oil and within the Study Area. Based on this agency is not likely to jeopardize the natural gas production and anticipated increased activity, the continued existence of any threatened manufacturing industries. organizations expressed concern that or endangered species or result in the Our Response: Page 4–2 of the DEA the DEA fails to consider future impacts destruction or adverse modification of notes that approximately 66 of the proposed critical habitat critical habitat. Therefore, as discussed consultations related to coal mining and designation to oil and natural gas in our proposed rule and notice of natural gas production activities are exploration and drilling, including the availability of the DEA, it is the anticipated to occur over the next 20 adverse outcome of increased regulatory Service’s interpretation of the definition years (a rate of approximately 3 actions that will impact the construction of a ‘‘directly regulated entity’’ that only

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Federal action agencies are subject to a in West Virginia. The development of habitat is unlikely to result in future regulatory requirement (i.e., to avoid programmatic measures would reduce project modifications. Based on the case adverse modification) as the result of regulatory uncertainty and the costs law and guidance from OMB reviewed the critical habitat designation. Federal associated with consultation for both in Chapter 2, the DEA quantifies only agencies are not considered small the Federal agencies and the 190 those economic effects (both benefits entities under the RFA as amended by potentially affected small entities below and costs) that are specifically SBREFA. Accordingly, the Service has the level currently estimated in the attributable solely to the designation of determined that small businesses are DEA. critical habitat. In addition, the CBD did not directly regulated by this The remaining 68 potentially affected not provide information that would designation of critical habitat. small entities would be associated with assist the Service in quantifying such Therefore, the Service may certify that resource extraction and other instream benefits. As a result, economic or the proposed critical habitat rule will work. This equates to an average of environmental justice benefits are not not have a significant economic impact fewer than four affected small entities expected to occur as a result of the on a substantial number of small per year. The DEA further estimates critical habitat designation and are, entities, and thus no additional analysis costs associated with each of these therefore, not quantified in the DEA. is required. activity types. The DEA Exhibit A–1 However, we acknowledge that in estimates incremental costs of between Summary of Changes From the some cases third-party proponents of $880 and $8,800 per entity; this cost is Proposed Rule the action subject to Federal permitting an impact of less than 0.1 percent to or funding may participate in a section each entity’s annual revenue. While we This final rule incorporates 7 consultation and thus may be recognize that each of the four entities appropriate changes to our proposed indirectly affected. While these entities affected per year may consider the cost critical habitat based on the comments are not directly regulated, the DEA to be significant, the Service does not we received, as discussed above, and provides information about the potential consider the total number of entities and newly available scientific data. number of third parties participating in the associated potential costs to be Substantive changes include new or section 7 consultations on an annual substantial or significant, respectively, additional information on: (1) The basis and the associated per- under SBREFA. Based on our potential space required to provide for consultation cost. This information is interpretation of the directly regulated larval drift; (2) current conservation included to ensure a robust examination entities under the RFA and the efforts conducted by private of the effects of the proposed diamond evaluation of potential impacts to third organizations in the Green River; and (3) darter critical habitat. For example, the parties that may be affected by this recent survey efforts on the distribution DEA estimates that 258 small entities designation, the Service concludes that of the diamond darter in the Elk River. may be affected over the next 20 years. the designation of diamond darter We also clarify (1) that we excluded This equates to an average of critical habitat as proposed will not areas from designation as unoccupied approximately 13 entities being affected have a significant economic impact on critical habitat if extant museum per year. The large majority of these a substantial number of small entities. specimens were not available that could affected entities (190 or 82 percent) (12) Comment: The CBD suggested be independently verified as the would be agriculture and timbering that the Service should consider the diamond darter; (2) the text of PCE 2 entities in Kentucky that would be economic benefits of protecting habitat and associated discussions to indicate receiving assistance through the Natural for the diamond darter, including that the diamond darter requires stream Resources Conservation Service (NRCS). ecosystem services, the protection of substrates that are not embedded with We note that participation in NRCS clean water and the reduced cost of and are relatively free from silts and assistance programs is voluntary. water treatment for drinking supplies, clays, while being dependent on a Potentially affected small timbering and and the environmental justice benefits natural abundance of sand in the agricultural entities could choose not to of protecting human health from substrate; and (3) the use of the terms participate in these programs and thus mining. The CBD further stated that the ‘‘siltation’’ and ‘‘sedimentation.’’ not be affected by the critical habitat Elk River is one of the most biodiverse Although the discussion of our PCEs is designation. rivers in West Virginia and the Service somewhat different from that in our In addition, NRCS assistance should also consider the economic proposed rule, the analysis and our programs are typically designed to benefits of preserving the State’s natural conclusions are a logical outgrowth of restore ecological conditions and heritage. the proposed rule commenting process, improve land management practices. Our Response: Section 4.4 of the DEA and none of the information changed Funded activities include assistance to discusses the economic benefits of our determination of critical habitat for landowners to install riparian buffers, critical habitat designation. Quantifying the diamond darter. improve water quality, and control and monetizing the conservation and nutrient and sediment inputs into ancillary benefits associated with the Critical Habitat streams. Most of these activities would proposed critical habitat designation Background provide ecological benefits to the requires information on the incremental diamond darter while also providing change in the probability of diamond Critical habitat is defined in section 3 economic benefits to the small entity darter conservation that is expected to of the Act as: that is receiving Federal assistance. result solely from the critical habitat Finally, NRCS comments on the designation. As described in DEA (1) The specific areas within the combined proposed listing and critical Chapters 3 and 4, given the baseline geographical area occupied by the habitat rule (NRCS 2013) indicated a protections provided to the species species, at the time it is listed in desire to develop programmatic (including the proposed listing of the accordance with the Act, on which are measures to avoid and minimize any diamond darter), and the characteristics found those physical or biological potential adverse effects to the diamond of the specific projects anticipated to features darter in Kentucky, similar to the occur over the 20-year timeframe of the (a) Essential to the conservation of the approach that was recently completed analysis, the designation of critical species, and

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(b) Which may require special protection. For these areas, critical materials, or experts’ opinions or management considerations or habitat designations identify, to the personal knowledge. protection; and extent known using the best scientific Habitat is dynamic, and species may (2) Specific areas outside the and commercial data available, those move from one area to another over geographical area occupied by the physical or biological features that are time. We recognize that critical habitat species at the time it is listed, upon a essential to the conservation of the designated at a particular point in time determination that such areas are species (such as space, food, cover, and may not include all of the habitat areas essential for the conservation of the protected habitat). In identifying those that we may later determine are species. physical or biological features within an necessary for the recovery of the Conservation, as defined under area, we focus on the principal species. For these reasons, a critical section 3 of the Act, means to use and biological or physical constituent habitat designation does not signal that the use of all methods and procedures elements (PCEs such as roost sites, habitat outside the designated area is that are necessary to bring an nesting grounds, seasonal wetlands, unimportant or may not be needed for endangered or threatened species to the water quality, tide, soil type) that are recovery of the species. Areas that are point at which the measures provided essential to the conservation of the important to the conservation of the pursuant to the Act are no longer species. The PCEs are those specific species, both inside and outside the necessary. Such methods and elements of the physical or biological critical habitat designation, will procedures include, but are not limited features that provide for a species’ life- continue to be subject to: (1) to, all activities associated with history processes and are essential to Conservation actions implemented scientific resources management such as the conservation of the species. under section 7(a)(1) of the Act, (2) research, census, law enforcement, Under the second prong of the Act’s regulatory protections afforded by the habitat acquisition and maintenance, definition of critical habitat, we can requirement in section 7(a)(2) of the Act propagation, live trapping, and designate critical habitat in areas for Federal agencies to ensure their transplantation, and, in the outside the geographical area occupied actions are not likely to jeopardize the extraordinary case where population by the species at the time it is listed, continued existence of any endangered pressures within a given ecosystem upon a determination that such areas or threatened species, and (3) section 9 cannot be otherwise relieved, may are essential for the conservation of the of the Act’s prohibitions on taking any include regulated taking. individual of the species, including Critical habitat receives protection species. We designate critical habitat in areas outside the geographical area taking caused by actions that affect under section 7 of the Act through the habitat. Federally funded or permitted requirement that Federal agencies occupied by a species only when a designation limited to its range would projects affecting listed species outside ensure, in consultation with the Service, their designated critical habitat areas be inadequate to ensure the that any action they authorize, fund, or may still result in jeopardy findings in conservation of the species. carry out is not likely to result in the some cases. These protections and destruction or adverse modification of Section 4 of the Act requires that we conservation tools will continue to critical habitat. The designation of designate critical habitat on the basis of contribute to recovery of this species. critical habitat does not affect land the best scientific and commercial data Similarly, critical habitat designations ownership or establish a refuge, available. Further, our Policy on made on the basis of the best available wilderness, reserve, preserve, or other Information Standards Under the data at the time of designation will not conservation area. Such designation Endangered Species Act (published in control the direction and substance of does not allow the government or public the Federal Register on July 1, 1994 (59 future recovery plans, HCPs, or other to access private lands. Such FR 34271)), the Information Quality Act species conservation planning efforts if designation does not require (section 515 of the Treasury and General new information available at the time of implementation of restoration, recovery, Government Appropriations Act for these planning efforts calls for a or enhancement measures by non- Fiscal Year 2001 (Pub. L. 106–554; H.R. different outcome. Federal landowners. Where a landowner 5658)), and our associated Information In addition, we recognize that climate requests Federal agency funding or Quality Guidelines provide criteria, change may cause changes in the authorization for an action that may establish procedures, and provide arrangement of occupied habitat and affect a listed species or critical habitat, guidance to ensure that our decisions stream reaches. The synergistic the consultation requirements of section are based on the best scientific data interaction between climate change and 7(a)(2) of the Act would apply, but even available. They require our biologists, to habitat fragmentation results in a greater in the event of a destruction or adverse the extent consistent with the Act and threat to biodiversity than climate modification finding, the obligation of with the use of the best scientific data change alone (Hannah and Lovejoy the Federal action agency and the available, to use primary and original 2003, p. 4). Current climate change landowner is not to restore or recover sources of information as the basis for predictions for the central Appalachians the species, but to implement recommendations to designate critical indicate that aquatic habitats will be reasonable and prudent alternatives to habitat. subject to increased temperatures and avoid destruction or adverse When we are determining which areas drought stress, especially during the modification of critical habitat. should be designated as critical habitat, summer and early fall. There will likely Under the first prong of the Act’s our primary source of information is be an increase in the variability of definition of critical habitat, areas generally the information developed stream flow, and the frequency of within the geographical area occupied during the listing process for the extreme events, such as drought, severe by the species at the time it was listed species. Additional information sources storms, and flooding is likely to increase are included in a critical habitat may include the recovery plan for the statewide (Buzby and Perry 2000, p. designation if they contain physical or species, articles in peer-reviewed 1774; Byers and Norris 2011, p. 20). biological features (1) which are journals, conservation plans developed Species with limited ranges and that essential to the conservation of the by States and counties, scientific status have either natural or anthropomorphic species and (2) which may require surveys and studies, biological barriers to movement, such as the dams special management considerations or assessments, other unpublished that fragment and isolate diamond

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darter habitat, have been found to be designate critical habitat published in material, with a particle size dominated especially vulnerable to the effects of the Federal Register on July 26, 2012 by silt or clay. It refers both to the climate change (Byers and Norris 2011, (77 FR 43906), and in the information increased concentration of suspended p. 18). presented below. Additional sediments and to the increased Precise estimates of the location and information can be found in the final accumulation (temporary or permanent) magnitude of impacts from global listing rule published in the Federal of fine sediments on stream bottoms. climate change and increasing Register on July 26, 2013 (78 FR 45074). Both the diamond darter and the crystal temperatures cannot be made from the Because diamond darters are rare, very darter are noted to be particularly currently available information. Nor are little information is available with susceptible to the effects of siltation and we currently aware of any climate which to quantitatively define the may have been extirpated from change information specific to the optimal conditions or range of suitable historical habitats due to excessive habitat of the diamond darter that conditions for a specific biological or siltation (Grandmaison et al. 2003, pp. would indicate what areas may become physical feature needed by the species. 17–18). important to the species in the future. When species-specific information is Siltation can result from increased However, among the most powerful limited, we rely on information from the sedimentation and erosion along strategies for the long-term conservation crystal darter and other similar darter streambanks and roads and deposition of biodiversity is establishment of species. Because the crystal darter is in caused by land-based disturbances networks of intact habitats and the same genus, shares many similar (Rosgen 1996, pp. 1–3). Additionally, conservation areas that represent a full life-history traits, and was previously coal mining, oil and gas development, range of ecosystems and include considered the same species as the timber harvesting, and all-terrain multiple, robust examples of each type. diamond darter, information on this vehicle use have been identified as The principles of resiliency and species can reasonably be used to land-based disturbances that are sources redundancy are at the core of many suggest factors or conditions that may of increased erosion and siltation within conservation planning efforts, and are also be important to the diamond darter. the Elk River watershed (U.S. increasingly important as the stresses of All of the available information is Environmental Protection Agency climate change erode existing habitats sufficient for us to qualitatively discuss 2001b, pp. 1–1, 3–4, 6; WVDEP 2008b, (Byers and Norris 2011, p. 24). the PBFs needed to support the species. p. 1). Streambank erosion and the Therefore, we have attempted to Based on this review, we have resulting sedimentation and siltation incorporate these principles into our determined that the diamond darter can also be a source of increased determination of critical habitat by requires the following physical or channel instability (Rosgen 1996, pp. 1– delineating two units that are biological features: 3). Geomorphically stable streams representative of the range of habitats transport sediment while maintaining Space for Individual and Population their horizontal and vertical dimensions currently and previously occupied by Growth and for Normal Behavior the species. (width/depth ratio and cross-sectional The diamond darter inhabits area), pattern (sinuosity), longitudinal Physical or Biological Features moderate to large, warmwater streams profile (riffles, runs, and pools), and In accordance with section 3(5)(A)(i) with clean sand and gravel substrates substrate composition, whereas unstable and 4(b)(1)(A) of the Act and regulations (Simon and Wallus 2006, p. 52). streams cannot maintain these features at 50 CFR 424.12, in determining which Moderate- to large-sized warmwater (Rosgen 1996, pp. 1–3 to 1–6). Thus, areas within the geographical area streams are defined as fourth- to eighth- geomorphically stable streams maintain occupied by the species at the time of order streams with a drainage area the riffles, pools, and silt-free substrates listing to designate as critical habitat, exceeding 518 square kilometers (km2) necessary to provide typical habitats for we consider the physical or biological (200 square miles (mi2)), and water the diamond darter. Based on this ° ° features essential to the conservation of temperatures exceeding 20 C (68 F) at information, geomorphically stable the species and which may require some point during the year (Winger streams with clean sand and gravel special management considerations or 1981, p. 40; Oliverio and Anderson substrates and low levels of silt are a protection. These include, but are not 2008, p. 12). In the Elk River, adult critical component of diamond darter limited to: diamond darters have been collected in habitat. (1) Space for individual and transition areas between riffles and Fragmentation and destruction of population growth and for normal pools where substrates were greater than habitat has reduced the range of the behavior; 40 percent sand and gravel (Welsh et al. diamond darter to only one stream and (2) Food, water, air, light, minerals, or 2004, p. 6; Osier 2005, p. 11; Welsh and has isolated the last remaining other nutritional or physiological Wood 2008, pp. 62–68). These habitat population, reducing the currently requirements; characteristics are similar to those available space for rearing and (3) Cover or shelter; described for the crystal darter (Welsh et reproduction. Small, isolated (4) Sites for breeding, reproduction, or al. 2008, p. 1). populations may have reduced adaptive rearing (or development) of offspring; Many studies have found that the capability and an increased likelihood and crystal darter does not occur in areas of extinction (Gilpin and Soule´ 1986, (5) Habitats that are protected from with large amounts of silt, clay, detritus, pp. 32–34; Noss and Cooperrider 1994, disturbance or are representative of the or submerged vegetation (George et al. p. 61). Continuity of water flow and historical, geographical, and ecological 1996, p. 71; Shepard et al. 1999 in Osier connectivity between remaining suitable distributions of a species. 2005, p. 11; NatureServe 2008, p. 1). habitats is essential in preventing We derive the specific physical or Substrates with high levels of silt are further fragmentation of the species’ biological features essential for the unsuitable for the diamond darter. habitat and population. Free movement diamond darter from studies of this Siltation has been shown to negatively of water within the stream allows species’ habitat, ecology, and life history impact fish growth, survival, and darters to move between available as described in the Critical Habitat reproduction (Berkman and Rabeni habitats. This is necessary to provide section of the proposed rule to list the 1987, p. 285). Siltation is the pollution sufficient space for the population to diamond darter as endangered and of water by fine particulate terrestrial grow and to promote genetic flow

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throughout the population. Continuity After hatching, diamond darter larvae crystal darter, adult diamond darters are of habitat helps to maintain space for are pelagic and drift within the water benthic invertivores (NatureServe 2008, spawning, foraging, and resting sites, column (Osier 2005, p. 12; Simon and p. 8). Adult crystal darters eat midge and also permits improvement in water Wallus 2006, p. 56; NatureServe 2008, and caddisfly larvae, and water mites in quality and water quantity by allowing p. 1). The larva may drift downstream lesser quantities (Osier 2005, p. 13). unobstructed water flow throughout the until they reach slower water conditions Similarly, juvenile and young crystal connected habitats. Thus, free such as pools, backwaters, or eddies darters feed on immature stages of movement of water that provides (Lindquist and Page 1984, p. 27). It is aquatic insects such as mayflies, connectivity between habitats is not known how long diamond darters or craneflies, blackflies, caddisflies, and necessary to support diamond darter crystal darters remain in this pelagic midges (Simon and Wallus 2006, pp. populations. phase. The only known record of a 56–57). Juvenile diamond darters Little information is available on the young diamond darter captured in the hatched in captivity had teeth and a amount of space needed by either the wild was from benthic trawl surveys large gape width, which suggests that diamond darter or the crystal darter for conducted in the Elk River somewhere the larvae may feed on other smaller population growth and normal behavior. near the confluence with the Kanawha fish larvae (Ruble et al. 2010, p. 15). Many individuals of other darter species River. We have been unable to Researchers were unable to confirm this that use similar habitat types have been determine the exact location of this hypothesis due to poor survivorship of found to remain in one habitat area capture, so we cannot determine how the diamond darter larvae and lack of during short-term mark-and-recapture far downstream from known adult available smaller fish larvae to provide studies. However, upstream and darter capture locations this young was as a potential food source (Ruble et al. downstream movements of other darters found (Cincotta 2009a, p. 1). For more 2010, pp. 12–14). Juveniles may also eat between riffles and between riffles and information on diamond darter larva zooplankton prey, which is more typical pools have been documented. Within- drift, please see the Summary of for pelagic larval percids (Rakes 2011, p. year movements typically ranged from Biological Status and Threats section of 1). This information suggests that loose 36 to 420 meters (m) (118.1 to 1,378.0 the final listing rule (78 FR 45074, July sand and gravel substrates suitable for feet (ft)), and movements of up to 4.8 km 26, 2013). ambush feeding behavior and healthy (3.0 mi) have been documented (May Based on this information, free populations of benthic invertebrates and 1969, pp. 86–87, 91; Freeman 1995, p. movement between habitat types within fish larvae for prey items are required to 363; Roberts and Angermeier 2007, pp. a significant length of stream may be support the feeding requirements of the 422, 424–427). important to provide sufficient space to diamond darter. In addition, a number of researchers support genetic mixing and normal Like most other darters, the diamond have suggested that Crystallaria move behavior of the diamond darter, darter depends on clean water and upstream to reproduce, and that free- including potential upstream perennial stream flows to successfully floating young-of-the-year disperse movements during the breeding period complete its life cycle (Page 1983, pp. considerable distances downstream and downstream larval drift. 160–170). Sufficient water quality and during spring high water where they Based on the biological information quantity is required to support normal eventually find suitable habitat to grow and needs discussed above, we identify reproduction, growth, and survival. and mature (Stewart et al. 2005, p. 472; connected riffle-pool complexes in Because so few diamond darters have Hrabik 2012, p. 1). This suggests that moderate- to large-sized (fourth- to been captured, available data are Crystallaria may make long-distance eighth-order), warmwater streams that insufficient to quantitatively define the movements in large rivers. This type of are geomorphically stable with standards for water quantity or quality migratory behavior has been moderate current, clean sand and gravel that are required to support the species. documented in bluebreast darters substrates, and low levels of siltation to However, some data available from (Etheostoma camurum) (Trautman 1981, be physical or biological features areas that are known to support the pp. 673–675). This species inhabits essential to the conservation of the diamond darter or the closely related moderate to large-sized streams with diamond darter. crystal darter provide examples of low turbidity and is typically found in suitable conditions. Food, Water, Air, Light, Minerals, or riffles, similar to the diamond darter. Water quantity, including depth and Other Nutritional or Physiological Trautman (1981, pp. 673–675) found current velocity, are known to be Requirements that bluebreast darters were well- important habitat characteristics that distributed throughout a 51–km (32–mi) Feeding habits of the diamond darter determine whether an area is suitable to reach of river during the breeding in the wild are not known. However, support a specific species of fish (Osier season, but that there was a reduction in diamond darters kept in captivity were 2005, p. 3). Sites where Crystallaria numbers in the upper half of this reach fed and survived on live blackworms, have been captured are consistently starting in September and continuing daphnia, and dragonfly larvae, frozen described as having moderate to strong through late winter to early spring. bloodworms, and adult brine shrimp velocities (Grandmaison et al. 2003, p. There was a corresponding increase in (Ruble et al. 2010, p. 4). When in 4; Osier 2005, p. 15). Moderate to strong numbers in the lower half of the reach captivity, diamond darters were also velocities contribute to the clean-swept during this time. Individual darters observed resting on the bottom of the substrates and lack of silt commonly captured in the spring were documented tank and taking food from slightly above reported in documented crystal darter to have moved 152 m (500 ft) in a single their position, in front of them, or off habitat (Osier 2005, p. 11). In the Elk day. In September and October, the bottom (Welsh 2009c, p. 1). River, the diamond darter has been Trautman captured bluebreast darters in Diamond darters may also use an collected from transition areas between deep, low-velocity pools, which are not ambush foraging tactic by burying in the riffles and pools at depths from 50 to typical habitats for the species. He substrate and darting out at prey 150 centimeters (cm) (20 to 59 inches concluded that bluebreast and other (Robinson 1992 and Hatch 1997 in Osier (in)) and in moderate to strong velocities darter species migrated upstream in 2005, pp. 12–13; NatureServe 2008, p. 1; that are typically greater than 20 cm/ spring and downstream in the fall Ruble 2011c, p. 1). Researchers, second (sec) (8 in/sec) (Osier 2005, p. (Trautman 1981, pp. 673–675). therefore, expect that, similar to the 31). Similarly, the crystal darter has

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been described as generally inhabiting excessive conductivity is an important snout) out of the substrate. However, waters deeper than 60 cm (24 in) with habitat component for the diamond individuals were often on top of the strong currents typically greater than 32 darter. substrate at night time (Welsh 2009c, p. cm/sec (13 in/sec) (Grandmaison et al. Impoundment was one of the most 1). Burying occurred by the individual 2003, p. 4). Crystal darters were direct and dramatic historical causes of rising slightly up above the substrate collected in Arkansas in water from 114 diamond darter habitat loss. and then plunging headfirst into the to 148 cm (45 to 58 in) deep with Impoundment of rivers for navigation sand and using its tail motion to burrow current velocities between 46 and 90 may have been the final factor resulting (Welsh 2009c, p. 1). This type of cm/sec (18 and 35 in/sec) (George et al. in extirpation of the diamond darter burying behavior has also been reported 1996 in Grandmaison et al. 2003, p. 4). from many of its historical habitats. in the crystal darter (Osier 2005, p. 11; Many of the measurements were taken Impoundment alters the quantity and NatureServe 2008, p. 1). at base or low flows when it is easiest flow of water in rivers, reduces or Substrates that are heavily embedded to conduct fish surveys. Current eliminates riffle habitats, reduces with silts and clays may impede this velocity, water depth, and stream current velocities, and increases the behavior. Embeddedness is the degree discharge are interrelated and variable, amount of fine particles in the substrate that cobble or gravel substrates are dependent on seasonal and daily (Rinne et al. 2005, pp. 3–5, 432–433). impacted by being surrounded or patterns of rainfall (Bain and Stevenson Diamond darters have been extirpated covered by fine silt and clay materials 1999, p. 77; Grandmaison et al. 2003, p. from many areas as a result of these (Shipman 2000, p. 12). Embedded 4). Therefore, velocities and depths at effects (Grandmaison et al. 2003, p. 18; substrates are not easily dislodged, and suitable habitat sites may change over Trautman 1981, p. 25). Excessive water would therefore be difficult for the time, or diamond darters may also move withdrawals can also reduce current diamond darter to burrow into for cover. to other locations within a stream as velocities, reduce water depth, increase Heavily embedded substrates can be the seasonal and daily velocity and depth temperatures, concentrate pollution result of human activities increasing the conditions change. levels, and result in deposition of fine amount of sedimentation and siltation particles in the substrate, making the Water quality is also important to the occurring in the stream (Shipman 2000, areas less suitable to support the persistence of the diamond darter. p. 12). While some definitions of diamond darter (Pennsylvania State Specific water quality requirements embeddedness include sands as ‘‘fines’’ University 2010, p. 9; Freeman and (such as temperature, dissolved oxygen, that increase embeddedness, naturally Marcinek 2006, p. 445). An ample and sandy streams are not considered pH, and conductivity) for the species unimpeded supply of flowing water that embedded. However, a sand- have not been determined, but existing closely resembles natural peaks and predominated stream that is the result of data provide some examples of lows typically maintains riffle habitats, anthropogenic activities that have conditions where Crystallaria were transports nutrients and food items, buried the natural course substrates is present. It is not known whether moderates water temperatures and considered embedded (Barbour et al. existing water quality conditions at dissolved oxygen levels, removes fine 1999, pp. 5–13; Shipman 2000, p. 12). capture sites are adequate to protect all sediments that could damage spawning The diamond darter requires substrates life stages of Crystallaria species. or foraging habitats, and dilutes non- unembedded with silts and clays with a Diamond darters were successfully point-source pollutants. Therefore, an naturally high percentage of sands maintained in captivity when water unimpeded flowing water supply is temperatures did not go below 2 °C intermixed with loose gravel to fulfill ° ° essential to the diamond darter. (35.6 F) in the winter or above 25 C Based on the biological information these life-history requirements. ° (77 F) in the summer (Ruble et al. 2010, and needs discussed above, we identify Variability in the substrate and p. 4). In Arkansas, crystal darter capture perennial streams with moderate available habitat is also an important areas had dissolved oxygen levels that velocities, seasonally moderated sheltering requirement for the diamond ranged from 6.81 to 11.0 parts per temperatures, good water quality, loose darter. Darters may shift to different million; pH levels from 5.7 to 6.6; sand and gravel substrates, and healthy habitat types during different life specific conductivities from 175 to 250 populations of benthic invertebrates and phases, or due to changing mS/cm, and water temperatures from fish larvae for prey items to be physical environmental conditions such as high 14.5 to 26.8 °C (58 to 80 °F) (George et or biological features essential to the water or warm temperatures (Osier al. 1996, p. 71). In general, optimal conservation for the diamond darter. We 2005, p. 7). Deeper or sheltered habitats water quality conditions for warmwater also identify an ample and unimpeded may provide refuge during warm fishes are characterized as having supply of flowing water that closely weather, and it has been suggested that moderate stream temperatures, high resembles natural peaks and lows to be Crystallaria species may use deeper dissolved oxygen concentrations, and essential to the conservation for the pools during the day (Osier 2005, p. 10). near-neutral pH levels. They are also diamond darter. Substrate variety, such as the presence characterized as lacking harmful levels of boulders or woody materials, may of conductivity or pollutants including Cover or Shelter provide velocity shelters for young inorganic contaminants like iron, Adult diamond darters and crystal darters during high flows (Osier 2005, p. manganese, selenium, and cadmium; darters typically have been captured in 4). Larval and young diamond darters and organic contaminants such as riffle-pool transition areas with may also use pools (Rakes 2013, p. 1). human and waste products, predominately (greater than 20 percent Darter larva may be poorly developed pesticides and herbicides, fertilizers, each) sand and gravel substrates (Osier skeletally and unable to hold position or and petroleum distillates (Winger 1981, 2005, pp. 51–52). Diamond darters will swim upstream where stronger currents pp. 36–38; Alabama Department of bury in these types of substrates for exist (Lindquist and Page 1984, p. 27). Environmental Management 1996, pp. cover and shelter. Individuals observed The slower velocity habitats found in 13–15; Maum and Moulton undated, pp. in captivity were frequently seen either pools may provide darter larva with 1–2). Good water quality that is not completely buried in the substrate refuge from strong currents and allow degraded by inorganic or organic during the day or partially buried with them to find cover and forage (Lindquist pollutants, low dissolved oxygen, or only the head (eyes and top of the and Page 1984, p. 27).

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Based on the biological information range of water quality conditions Levesque and Dube 2007, pp. 396–402; and needs discussed above, we identify needed for successful reproduction. Welsh 2009d, p. 1; Penkal and Phillips riffle-pool transition areas with Factors that can impair egg viability 2011, pp. 6–7). Direct disturbance and relatively silt-free sand and gravel include high temperatures, low oxygen instream construction can also increase substrates, as well as access to a variety levels, siltation, and other water quality substrate compaction and silt deposition of other substrate and habitat types, conditions (Ruble 2011b, p. 2). within the direct impact area and including pool habitats, to be physical Inadequate water flow through the downstream. This reduces water flow or biological features essential to the substrate or low oxygen levels within through the substrate, and increases conservation for the diamond darter. the substrate can lead to poor egg substrate embeddedness (Reid and development or poor larval condition Anderson 1999, p. 243; Levesque and Sites for Breeding, Reproduction, or (Ruble 2011b, p. 2). Dube 2007, pp. 396–397; Penkal and Rearing (or Development) of Offspring In addition to information from the Phillips 2011, pp. 6–7). This can impede Very little information is available on CFI diamond darter reproduction study, the normal burrowing behavior of the reproductive biology and early life there is some information available on diamond darter, which is required for history of the diamond darter (Welsh et crystal darter reproduction (Welsh et al. successful foraging and shelter, degrade al. 2008, p. 1; Ruble and Welsh 2010, p. 2008, p. 1). In Arkansas, the spawning habitat, result in the 1), and to date, only one young-of-the- reproductive season was from late production of fewer and smaller eggs, year of this species has been found in January through mid-April, which and impair egg and larvae development the wild. We have not been able to roughly correlates with early April in (Reid and Anderson 1999, pp. 244–245; obtain specific information on this the Ohio River Basin (George et al. 1996, Levesque and Dube 2007, pp. 401–402). collection, which probably occurred in p. 75; Simon and Wallus 2006, p. 52). Intact riparian vegetation is also an 2007 in the Elk River near the Evidence suggests that females are important component of aquatic habitats confluence with the Kanawha River, capable of multiple spawning events that support the diamond darter. Darters West Virginia (Cincotta 2009a, p. 1). and producing multiple clutches of eggs are particularly susceptible to impacts However, research on reproductive in one season (George et al. 1996, p. 75). associated with disturbance to riparian biology of the species is being Spawning occurs in the spring when the vegetation such as alteration of instream conducted by Conservation Fisheries crystal darters lay their eggs in side habitat characteristics and increased Inc. (CFI) in partnership with the U.S. channel riffle habitats over sand and sedimentation and siltation (Jones et al. Geological Service (USGS) West gravel substrates in moderate current. 1999, pp. 1461–1462; Pusey and Virginia Cooperative Fish and Wildlife Adult darters do not guard their eggs Arthington 2003, p. 1). Removal of Research Unit at West Virginia (Simon and Wallus 2006, p. 56). riparian vegetation can lead to decreases University. Five individual diamond Embryos develop in the clean interstitial in fish species, such as the diamond darters, consisting of at least three spaces of the coarse substrate (Simon darter, that do not guard eggs or that are females, one male, and one of and Wallus 2006, p. 56). After hatching, dependent on swift, shallow water that undetermined sex, have been held in the larvae are pelagic and drift within flows over relatively sediment-free captivity at the CFI facility and were the water column (Osier 2005, p. 12; substrates (Jones et al. 1999, p. 1462). maintained in simulated stream Simon and Wallus 2006, p. 56; Thus, avoiding disturbances to conditions. Water temperature and NatureServe 2008, p. 1). streambeds and banks is important to daylight were also adjusted throughout Based on the biological information maintaining stable substrates, food the seasons to simulate natural and needs discussed above, we identify availability, successful reproduction, fluctuations that would be experienced streams with naturally fluctuating and and habitat suitability for the diamond in the wild (Ruble and Welsh 2010, p. seasonally moderated water darter. 2). temperatures, high dissolved oxygen All current and historical capture Spawning began when water levels, and clean, relatively silt-free locations of the diamond darter are from temperatures were consistently above 15 sand and gravel substrates to be moderate- to large-sized (fourth- to °C and ceased when temperatures physical or biological features essential eighth-order), warmwater streams reached 22 °C (Ruble 2011b, p. 2). to the conservation for the diamond within the Ohio River Watershed Females showed signs of being gravid darter. (Welsh 2008, p. 3; Southeast Aquatics from late March to May (Ruble et al. Resources Partnership 2011, pp. 1–19). Habitats That Are Protected From 2010, pp. 11–12). Both eggs and hatched The species was historically distributed Disturbance or Are Representative of the larvae were observed in April (Ruble et in at least four major drainages Historical, Geographical, and Ecological al. 2010, pp. 11–12; Ruble 2011, p. 1). throughout the watershed and is now Distributions of a Species Peak breeding time is likely mid-April likely extirpated from Ohio, Kentucky, when water temperatures range from 15 As described above, clean, stable and Tennessee. The current range is to 20 °C (59 to 68 °F) (Ruble et al. 2010, substrates, good water quality, and restricted to a small segment of one river p. 12). Although incubation time is healthy benthic invertebrate within West Virginia. Therefore, the difficult to determine because most eggs populations are habitat features current range of the species is not that survived already showed essential to the diamond darter. Direct representative of the historical or considerable development, it is disturbance, alteration, or fill of geographical distribution of the species estimated that, at 15 °C (59 °F), hatch instream habitat can degrade these and is not sufficient for the conservation time is 7 to 9 days (Ruble et al. 2010, essential features; kill or injure adult of the diamond darter. Given that the p. 11). Although eggs were produced fish, young, or eggs; destabilize the current distribution is restricted to every year, no young have survived and substrates leading to increased approximately 45 km (28 mi) within one matured (Ruble et al. 2010, pp. 11–12; sedimentation and erosion; and reduce river, the species is vulnerable to the Ruble 2011b, p. 1). the amount of available food and habitat threats of reduced fitness through Because no young have been to support fish populations. These genetic inbreeding, and extinction from successfully maintained in captivity and impacts make the area less suitable for a combination of cumulative effects or no studies of wild populations are fish such as the diamond darter (Reid a single catastrophic event such as a available, we are not able to quantify the and Anderson 1999, pp. 235–245; toxic chemical spill (Gilpin and Soule

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1986, pp. 23–33; Noss and Cooperrider water quality is defined as the quality Criteria Used To Identify Critical 1994, p. 61). In addition, because the necessary for normal behavior, growth, Habitat current range is isolated from other and viability of all life stages of the As required by section 4(b)(2)(A) of suitable habitats due to the presence of diamond darter. the Act, we use the best scientific data dams and impoundments, the species (5) PCE 5—A prey base of other fish available to designate critical habitat. has limited ability to naturally expand larvae and benthic invertebrates We reviewed the available information its current range and recolonize including midge, caddisfly, and mayfly pertaining to the habitat requirements of previously occupied habitats (Warren et larvae. the species. In accordance with the Act al. 2000 in Grandmaison et al. 2003, p. and its implementing regulation at 50 18). A species’ distribution that includes Special Management Considerations or CFR 424.12(e), we considered whether populations in more than one moderate Protections designating additional areas—outside to large river within the Ohio River those currently occupied as well as When designating critical habitat, we watershed would provide some those occupied at the time of listing— assess whether the specific areas within protection against these threats and are necessary to ensure the conservation the geographical area occupied by the would be more representative of the of the species. As discussed in more historical geographic distribution of the species at the time of listing contain detail below, we are designating as species. features which are essential to the critical habitat all habitat that is Based on the biological information conservation of the species, and which occupied by the species at the time of and needs discussed above, we identify may require special management listing in 2013; that is, the lower Elk stable, undisturbed streambeds and considerations or protection. The area River. This river reach constitutes the banks, and ability for populations to be we are designating as currently entire current range of the species. We distributed in multiple moderate- to occupied critical habitat for the are also designating one specific area large-sized (fourth- to eighth-order) diamond darter is not under special outside the geographical area occupied streams throughout the Ohio River management or protection provided by by the species at the time of listing, but watershed to be physical or biological a legally operative management plan or that was historically occupied, because features essential to the conservation for agreement specific to conservation of we have determined this area is the diamond darter. the diamond darter, and has not been essential for the conservation of the Primary Constituent Elements for the designated as critical habitat for other species. Diamond Darter species under the Act. This unit will For our evaluation of critical habitat, require some level of management to Under the Act and its implementing we reviewed available literature, regulations, we are required to identify address the current and future threats to reports, and field notes prepared by the physical or biological features the PBFs of the diamond darter. Various biologists, as well as historical and (PBFs) essential to the conservation of activities in or adjacent to the critical current survey results. We also spoke to the diamond darter in areas occupied at habitat unit described in this rule may fisheries experts and conservation the time of listing, focusing on the affect one or more of the PCEs and may professionals that are familiar with features’ primary constituent elements require special management darters or the current status of aquatic (PCEs). The PCEs are those specific considerations or protection. Some of systems within the current and elements of the PBFs that provide for a these activities include, but are not historical range of the diamond darter. species’ life-history processes and are limited to, resource extraction (coal To identify currently occupied essential to the conservation of the mining, timber harvests, and natural gas habitats, we delineated known capture species. and oil development activities), sites and reviewed habitat assessments Based on our current knowledge of construction and maintenance projects, and mapping efforts that have been the PBFs and habitat characteristics stream bottom disturbance from sewer, conducted on the Elk River. Known required to sustain the species’ life- gas, and water lines, removal of riparian occurrences of the diamond darter are history processes, we determine that the vegetation, and other sources of non- extremely localized, and the species can PCEs specific to the diamond darter are: point-source pollution. be difficult to locate. Because it is (1) PCE 1—A series of connected reasonably likely that this rare and Management activities that could cryptic species is present in suitable riffle-pool complexes with moderate ameliorate these threats include, but are velocities in moderate- to large-sized habitats outside the immediate locations not limited to: use of best management of the known captures, we considered (fourth- to eighth-order), geomorphically practices designed to reduce stable streams within the Ohio River the entire reach between the uppermost sedimentation, erosion, and streambank and lowermost known collection watershed. destruction; development of alternatives (2) PCE 2—Stable, undisturbed sand locations as occupied habitat. We also that avoid and minimize streambed and gravel stream substrates, that are included some areas of the mainstem relatively free of and not embedded disturbances; implementation of Elk River that have not been specifically with silts and clays. regulations that control the amount and surveyed for diamond darters but have (3) PCE 3—An instream flow regime quality of point-source discharges; and been determined to have suitable habitat (magnitude, frequency, duration, and reduction of other watershed and for the species based on species-specific seasonality of discharge over time) that floodplain disturbances that release habitat assessments (Osier 2005, pp. ii– is relatively unimpeded by sediments or other pollutants. Special 50). These areas are contiguous with impoundment or diversions such that management consideration or protection known capture sites, have similar there is minimal departure from a may be required to eliminate, or to habitat characteristics, have no barriers natural hydrograph. reduce to negligible levels, the threats to dispersal, and are within general (4) PCE 4—Adequate water quality affecting the physical or biological darter dispersal capabilities including characterized by seasonally moderated features of each unit. Additional upstream spawning movements and temperatures, high dissolved oxygen discussion of threats facing individual downstream larval drift. In addition, levels, and moderate pH, and low levels units is provided in the individual unit river habitats are highly dependent on of pollutants and siltation. Adequate descriptions below. upstream and downstream habitat

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conditions for their maintenance, so of the diamond darter are highly of fish and mussels including other these contiguous areas upstream and localized and isolated, and are restricted sensitive, rare, or threatened and downstream are critical to maintaining to one reach of the Elk River. The range endangered species; and (3) the reach habitat conditions of known capture has been severely curtailed, and has special management or protections sites. population size is small. Small isolated in place such as being a designated wild Because we have not been able to aquatic populations are subject to river or exceptional use waters under obtain a precise location of the young chance catastrophic events and to State law. Only one reach that we diamond darter that was captured in the changes in human activities and land identified, in the Green River of Elk River somewhere near the use practices that may result in their Kentucky, met all three criteria. confluence with the Kanawha River, elimination. Threats to the diamond Applying these criteria, we confirmed this capture was not included in the darter are imminent and are present that the identified area had high-quality analysis. We cannot be sure whether the throughout the entire range of the habitats sufficient to support the species capture location of this young diamond species. As described in the final listing and could be managed for the darter is downstream of or within the rule (78 FR 45074, July 26, 2013), these conservation of the species. No other critical habitat designation for this unit. threats are compounded by its limited areas were identified that met all three Areas of the Elk River downstream of distribution and isolation, making the criteria. the unit near the confluence with the species extremely vulnerable to Next, we delineated the upstream and Kanawha River that do not currently extinction; therefore, it is unlikely that downstream boundaries of the unit on provide the PCEs required to support currently occupied habitat is adequate the Green River: The Green River the species, and no longer have suitable for its conservation (Soule 1980, pp. immediately downstream of Green River habitat characteristics, were not 157–158; Noss and Cooperrider 1994, p. Lake (River Mile 308.8 to 294.8) is included. Specifically, the reach of the 61; Hunter 2002, pp. 97–101; Allendorf excluded from the designated critical Elk River downstream of the unit to the and Luikart 2007, pp. 117–146). Larger, habitat unit due to artificially variable confluence with the Kanawha River is more dispersed populations can reduce flow, temperature, and dissolved oxygen affected by impoundment from the the threat of extinction due to habitat conditions resulting from periodic Winfield Lock and Dam on the Kanawha fragmentation and isolation (Harris discharges from Green River Dam. Fish River. It is also routinely dredged for 1984, pp. 93–104; Noss and Cooperrider community data collected between commercial navigation by the ACOE. 1994, pp. 264–297; Warren et al. 2000 Greensburg and Green River Dam The portion of the Elk River upstream in Grandmaison et al. 2003, p. 18). For indicate a general trend of increasing of the designated unit may provide these reasons, we find that conservation species richness and abundance from suitable habitat for the diamond darter, of the diamond darter requires Tebb’s Bend (approximately 2.7 km (1.7 but we have no records of diamond expanding its range into suitable, mi) below the dam) downstream to darters being captured in this reach. The currently unoccupied portions of its Roachville Ford (approximately 22.7 km upper Elk River reach does contain the historical habitat. The inclusion of (14.1 mi) below the dam). Also, some favorable general habitat characteristics relatively intolerant benthic fish species of riffle-pool complexes with sand and essential, unoccupied areas will provide habitat for population reintroduction present at Roachville Ford and other gravel substrates, and there are no sites downstream within The Nature barriers to upstream fish movement and will improve the species’ status through added redundancy, resiliency, Conservancy’s designated Green River (Service 2008, entire). However, only Bioreserve are absent at Tebb’s Bend, and representation. limited survey efforts and no diamond including mountain madtom (Noturus darter species-specific habitat To identify areas of unoccupied eleutherus), spotted darter (Etheostoma assessments have been conducted that habitat that should be designated as maculatum), and Tippecanoe darter would allow us to further refine our critical habitat, we first selected rivers (Etheostoma tippecanoe) (Thomas et al. assessment of whether this area contains that had historical records confirmed to 2004, p. 10). In contrast with Roachville any of the PCEs necessary to support the be of the diamond darter. By examining Ford and other downstream sites, cobble species. Surveys at four shoals in this available museum specimens, we were and gravel substrates at Tebb’s Bend are upstream reach were conducted in 2012, able to independently verify the coated with a black substance and no diamond darters were located accuracy of the historical record. For characteristic of manganese and iron, (Welsh et al. 2012, p. 10). Additional rivers that had more than one historical which precipitates out and is deposited survey efforts may further define capture, approximate capture locations on the streambed following whether the upstream area is occupied were mapped so that the minimum hypolimnetic discharge from reservoirs by the diamond darter or which, if any, previously occupied extent could be (Thomas 2012, p. 1). Because fish PCEs are present that may require established. We then identified areas of community structure and habitat special management considerations. As contiguous habitat that still contained conditions at Roachville Ford are more a result, we are not proposing to characteristics sufficient to support the similar to other downstream locations designate additional critical habitat life history of the species. Areas that no that are not affected by impoundment, upstream of King Shoals. longer provided suitable habitat, were this location (River Mile 294.8) We have not included Elk River impounded, or did not contain a series represents the upstream limit of the tributaries as part of the designation of connected riffle-pool complexes were designated critical habitat section, because we have no records of the eliminated from consideration. For river which continues downstream to Cave diamond darter occurring in those reaches that passed this initial screen, Island (River Mile 200.3) within locations, and there have been no we then applied the following criteria to Mammoth Cave National Park (NP). species-specific habitat assessments in identify the unoccupied, potential Downstream of Cave Island, the Green the tributaries documenting that these critical habitat: (1) The reach supports River becomes affected by areas are suitable to support the species. fish species with habitat preferences impoundment from the ACOE Lock and We then considered whether similar to the diamond darter such as Dam #6. The lock and dam was occupied habitat was adequate for the the shoal chub (Macrhybopsis constructed in 1906 and was disabled in conservation of the species. As just hyostoma) and the streamline chub; (2) 1950. Although the lock has been described, currently occupied habitats the reach supports diverse populations disabled and is becoming unstable, the

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dam still partially impedes water flow, confluences are logical and recognizable the physical or biological features in the resulting in a system with slower, termini. When a named tributary was adjacent critical habitat. The warmer water and a loss of riffle and not available, or if another landmark designation of critical habitat does not shoal habitat types (Grubbs and Taylor provided a more recognizable boundary, imply that streams outside of critical 2004, p. 26; Olson 2006, pp. 295–297). another landmark was used. In the unit habitat do not play an important role in The delineation between the portions of descriptions, distances between the the conservation of the diamond darter. the river affected by Lock and Dam #6 upstream or downstream extent of a and those that retain free-flowing stream segment are given in kilometers The critical habitat designation is characteristics occurs distinctly at Cave rounded to one decimal point and defined by the map or maps, as Island (Grubbs and Taylor 2004, pp. 19– equivalent miles. Distances for the Elk modified by any accompanying 26). There is a marked decrease in River were measured by tracing the regulatory text, presented at the end of benthic macroinvertebrates that are course of the stream as depicted by the this document in the rule portion. We intolerant of siltation below this point, NHD. Distances for the Green River include more detailed information on which is attributable to slower current were measured using river miles as the boundaries of the critical habitat velocities and a lack of shallow riffles designated by the Kentucky Division of designation in the preamble of this and associated course sediments Water, which were generated using the document. We will make the (Grubbs and Taylor 2004, p. 26). For NHD. coordinates or plot points or both on these reasons, Cave Island was selected When determining critical habitat which each map is based available to as the downstream limit of the critical boundaries within this final rule, we the public on http:// habitat designation in this unit. made every effort to avoid including www.regulations.gov at Docket No. Once we determined the areas of the developed areas such as lands covered FWS–R5–ES–2013–0019, on our Web Elk and Green Rivers that met our by buildings, pavement, and other site at http://www.fws.gov/ criteria, we used ArcGIS software and structures because such lands lack westvirginiafieldoffice/index.html, and the National Hydrography Dataset physical or biological features essential at the West Virginia Field Office (see (NHD) to delineate the specific river for the conservation of the diamond FOR FURTHER INFORMATION CONTACT reaches being designated. These areas darter. The scale of the maps we above). include only Elk River and Green River prepared under the parameters for mainstem stream channels within the publication within the Code of Federal Final Critical Habitat Designation ordinary high-water line. We set the Regulations may not reflect the upstream and downstream limits of exclusion of such developed lands. Any We are designating two units as each critical habitat unit by identifying such lands inadvertently left inside critical habitat for the diamond darter. landmarks (islands, confluences, critical habitat boundaries shown on the The critical habitat areas we describe roadways, crossings, dams) that clearly maps of this final rule have been below constitute our current best delineated each river reach. Stream excluded by text in the rule and are not assessment of areas that meet the confluences are often used to delineate designated as critical habitat. Therefore, definition of critical habitat for the the boundaries of a unit for an aquatic a Federal action involving these lands diamond darter. Those units are: (1) The species because the confluence of a will not trigger section 7 consultation lower Elk River; and (2) the Green River. tributary typically marks a significant with respect to critical habitat and the Table 1 shows the occupancy of the change in the size or habitat requirement of no adverse modification units and the ownership of the characteristics of the stream. Stream unless the specific action would affect designated areas for the diamond darter.

TABLE 1—OCCUPANCY AND OWNERSHIP OF DESIGNATED DIAMOND DARTER CRITICAL HABITAT UNITS.

Federal, State, or other Private Total Unit Location Occupied? public ownership length km ownership km (mi) (mi) km (mi)

1 ...... lower Elk River ...... yes ...... 45.0* (28.0) *** 45.0 (28.0) 2 ...... Green River ...... no ...... 16.3 (10.1) 135.8 (84.4) 152.1 (94.5)

Total** ...... 197.1 (122.5) * As described below, this includes a combination of State ownership and easements. The State considers the easement area under its juris- diction. These are the best data available to us for calculating river mile ownership in the Elk River. Therefore, we have included this habitat under public ownership. ** Totals may not sum due to rounding. *** None.

We present brief descriptions of each characteristics such as a clear, natural with a public easement between the unit and reasons why each unit meets water line impressed on the bank; ordinary low-water and high-water the definition of critical habitat below. changes in the character of soil; marks (George 1998, p. 461). The water The critical habitat units include the destruction of terrestrial vegetation; the is also under State jurisdiction (WVSC stream channels of the rivers within the presence of litter and debris; or other § 22–26–3). In Kentucky, adjoining ordinary high-water line. As defined in appropriate means that consider the landowners also own the land under 33 CFR 329.11, the ordinary high-water characteristics of the surrounding areas. streams (e.g., the stream channel or line on nontidal rivers is the line on the In West Virginia, the State owns the bed bottom) in the designated unit, but the shore established by the fluctuations of and banks of streams between the water is under State jurisdiction. water and indicated by physical ordinary low-water marks, and is vested

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Unit 1: Lower Elk River, Kanawha and impaired due to high levels of fecal 1929, diamond darters were recorded Clay Counties, West Virginia coliform bacteria and iron (PCE 4) from three locations within this unit: Unit 1 represents the habitat (WVDEP 2010, p. 16). adjacent to Cave Island in Edmonson supporting the only remaining occupied Within this unit, the diamond darter County, and near Price Hole and diamond darter population. This and its habitat may require special Greensburg, in Green County. population could provide a source to management considerations or The Green River is a seventh-order, protection to address threats from warmwater stream with a total drainage repopulate other areas within the 2 2 diamond darter’s historical range. Unit resource extraction (coal mining, timber area of 23,879.7 km (9,220 mi ). The 1 includes 45.0 km (28.0 mi) of the Elk harvesting, and natural gas and oil largely free-flowing 160.3-km (100-mi) River from the confluence with King development); impoundment; water section of the Green River from the diversion or withdrawals; construction Shoals Run near Wallback Wildlife Green River Dam downstream to its and maintenance projects; stream confluence with the Nolin River in Management Area downstream to the bottom disturbance from sewer, gas, and Mammoth Cave NP is among the most confluence with an unnamed tributary water line crossings; lack of adequate significant aquatic systems in the entering the Elk River on the right riparian buffers; sewage discharges, and United States in terms of aquatic species descending bank adjacent to Knollwood non-point-source pollution. Special diversity and endemism. This reach of Drive in Charleston, West Virginia. As management to address water quality the Green River currently supports over described above, all the habitat within degradation is particularly important 150 species of fish and 70 species of this unit is under public control or since prolonged water quality freshwater mussels, including 9 ownership (see table 1 above). The State impairments can also affect the federally endangered mussel species, of West Virginia owns or has a public availability of relatively silt-free sand but there is no designated critical easement on the streambed and banks of and gravel substrates (PCE 2) and habitat in this section of the Green River the Elk River up to the ordinary high- healthy populations of fish larvae and (Thomas et al. 2004, p. 5; USDA 2006, water mark (George 1998, p. 461). The benthic invertebrates that provide a prey p. 16). Populations of fish species that water is also publicly owned. The base for the diamond darter (PCE 5). have similar habitat preferences as the majority of lands adjacent to this unit diamond darter, such as the shoal chub Unit 2: Green River, Edmonson, Hart, are privately owned. There are two areas and streamline chub are present and Green Counties, Kentucky of public land adjacent to the unit: the throughout this reach (Thomas 2012, p. 3,996-hectare (ha) (9,874-acre (ac)) Unit 2, although it is not currently 1). Morris Creek Wildlife Management occupied by the diamond darter, The entire reach of the Green River Area, which is leased and managed by represents the best remaining within this unit is designated by the WVDNR (2007, p. 9), and Coonskin historically occupied habitat for future Kentucky as both Outstanding State Park, an approximately 405-ha (1,000- diamond darter reintroductions that will Resource Waters and Exceptional ac) park owned by Kanawha County improve the species’ redundancy, Waters. Outstanding State Resource (Kanawha County Parks and Recreation resiliency, and representation essential Waters are those surface waters 2008, p. 1). for its conservation. Unit 2 includes designated by the Kentucky Energy and Live diamond darters have been 152.1 km (94.5 mi) of the Green River Environment Cabinet (KYEEC) as documented throughout this unit, from Roachville Ford near Greensburg containing federally threatened and including near the towns of Clendenin, (River Mile 294.8) downstream to the endangered species. Exceptional Waters Elk View, Blue Creek, Walgrove, Mink end of Cave Island in Mammoth Cave are waterbodies whose quality exceeds Shoals, Reamer Hill, and at sites NP (River Mile 200.3). Approximately that necessary to support propagation of between Broad Run and Burke Branch. 16.3 km (10.1 mi) of this unit is fish, shellfish, wildlife, and recreation. This unit contains space for individual publically owned (see table 1 above) These waters support excellent fish and and population growth and for normal and is contained within the 20,750-ha macroinvertebrate communities (KYEEC behavior; food, water, air, light, (51,274.1-ac) Mammoth Cave NP. The 2012, p. 1). The entire reach of the river minerals, or other nutritional or remainder of the unit, 135.8 km (84.4 within Mammoth Cave NP, including physiological requirements; cover or mi), is privately owned. With the the 16.3 km (10.1 mi) that are shelter; and sites for breeding, exception of the lands owned by designated as critical habitat, is also reproduction, or rearing (or Mammoth Cave NP, the lands within designated as a Kentucky Wild River. development) of offspring, and is the Green River watershed are also These rivers have exceptional quality essential to the conservation of the privately owned. Through the U.S. and aesthetic character and are species. Diamond darter habitat Department of Agriculture’s (USDA) designated by the State General assessments have documented that this Conservation Reserve Program (CRP) Assembly in recognition of their reach of the Elk River contains 28 riffle- and other conservation programs, TNC unspoiled character, outstanding water pool transition areas with moderate owns or has easements on quality, and natural characteristics currents and sand and gravel substrates approximately 794.4 ha (1,962.9 ac) (KYEEC 2012, p. 1). Each Wild River is that are suitable for the diamond darter within the watershed, either adjacent to actually a linear corridor encompassing (PCEs 1 and 2) (Osier 2005, p. 34). or in close proximity to the river. In all visible land on each side of the river Connectivity between these habitats addition, WKU owns or manages 1,300 up to a distance of 609.6 m (2,000 ft). provides access to various spawning, ac (526.1 ha) along the Green River in To protect the features and quality of foraging, and resting sites, to allow for Hart County as part of the Upper Green Wild Rivers, land use changes are larval drift, and promote gene flow (PCE River Biological Preserve (WKU 2012, p. regulated by a permit system, and 1). This reach of the Elk River also has 1). certain highly destructive land use a natural flow regime that is relatively This unit is within the historical changes, such as strip mining and unimpeded by impoundment (PCE 3), range of the species, but is not currently clearcutting, are prohibited within and has healthy benthic considered occupied. The Green River corridor boundaries (KYEEC 2012, p. 1). macroinvertebrate populations (PCE 5) historically supported approximately As described in the Criteria Used To (WVDEP 1997, pp. 20–89). However, 170 species of fish, including the Identify Critical Habitat section above, water quality within this unit is diamond darter. Between 1890 and the inclusion of this unoccupied area is

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essential for the conservation of the Management may be needed to address As a result of section 7 consultation, diamond darter. This area will provide resource extraction (timber harvests, we document compliance with the currently suitable habitat for a natural gas and oil development requirements of section 7(a)(2) through population reintroduction that will activities); water discharges or our issuance of: allow expansion of diamond darter withdrawals; construction and (1) A concurrence letter for Federal populations into historically occupied maintenance projects; stream bottom actions that may affect, but are not habitat, adding to the species’ disturbance from sewer, gas, and water likely to adversely affect, listed species redundancy, resiliency, and line crossings; lack of adequate riparian or critical habitat; or representation. While not required buffers; sedimentation, sewage (2) A biological opinion for Federal under section 3(5)(A)(ii) of the Act, this discharges, and non-point-source actions that may affect and are likely to area also contains all of the PCEs. This pollution. reach of the Green River is a moderate- adversely affect, listed species or critical to-large warmwater stream with a series Effects of Critical Habitat Designation habitat. of connected riffle-pool complexes that Section 7 Consultation When we issue a biological opinion is unaffected by impoundment (PCEs 1 concluding that a project is likely to and 3). The reach has good water quality Section 7(a)(2) of the Act requires jeopardize the continued existence of a and supports fish species that have Federal agencies, including the Service, listed species or destroy or adversely similar habitat requirements including to ensure that any action they fund, modify critical habitat, or both, we clean sand and gravel substrates, low authorize, or carry out is not likely to provide reasonable and prudent levels of siltation, and healthy benthic jeopardize the continued existence of alternatives to the project, if any are macroinvertebrate populations for prey any endangered or threatened species or identifiable, that would avoid the items (PCEs 2, 3, 4, and 5). result in the destruction or adverse likelihood of jeopardy or destruction or The reach of the Green River being modification of designated critical adverse modification of critical habitat, designated as critical habitat is the focus habitat of such species. or both. We define ‘‘reasonable and of many ongoing conservation efforts. Decisions by the 5th and 9th Circuit prudent alternatives’’ (at 50 CFR 402.02) The Nature Conservancy has designated Courts of Appeals have invalidated our as alternative actions identified during this area as the Green River Bioreserve regulatory definition of ‘‘destruction or consultation that: (Thomas et al. 2004, p. 5), and the adverse modification’’ (50 CFR 402.02) (1) Can be implemented in a manner KYDFWR identified this portion of the (see Gifford Pinchot Task Force v. U.S. consistent with the intended purpose of Green River as a Priority Conservation Fish and Wildlife Service, 378 F. 3d the action, Area in its Comprehensive Wildlife 1059 (9th Cir. 2004) and Sierra Club v. (2) Can be implemented consistent Conservation Strategy (USDA 2006, p. U.S. Fish and Wildlife Service et al., 245 35). Since 2001, more than 40,568.6 ha with the scope of the Federal agency’s F.3d 434 (5th Cir. 2001)), and we do not legal authority and jurisdiction, (100,000 ac) within the watershed have rely on this regulatory definition when (3) Are economically and been enrolled in CRP (USDA 2010, p. 3). analyzing whether an action is likely to technologically feasible, and The goal of this program is to work with destroy or adversely modify critical private landowners to greatly reduce habitat. Under the provisions of the Act, (4) Would, in the Director’s opinion, sediments, nutrients, pesticides, and we determine destruction or adverse avoid the likelihood of jeopardizing the pathogens from agricultural sources that modification on the basis of whether, continued existence of the listed species could have an adverse effect on the with implementation of the proposed and/or avoid the likelihood of health of the Green River system (USDA Federal action, the affected critical destroying or adversely modifying 2006, p. 16). These organizations along habitat would continue to serve its critical habitat. with the Service, KYWA, WKU, intended conservation role for the Reasonable and prudent alternatives Kentucky State University, the ACOE, species. can vary from slight project private landowners, and other partners modifications to extensive redesign or are also working toward conserving If a Federal action may affect a listed relocation of the project. Costs natural resources in this watershed by species or its critical habitat, the associated with implementing a restoring riparian buffers, constructing responsible Federal agency (action reasonable and prudent alternative are fences to keep livestock out of the river, agency) must enter into consultation similarly variable. managing dam operations at the Green with the Service. Examples of actions River Reservoir to more closely mimic that are subject to the section 7 Regulations at 50 CFR 402.16 require natural discharges, and conducting consultation process are actions on Federal agencies to reinitiate long-term ecological research on fish State, tribal, local, or private lands that consultation on previously reviewed and invertebrates (Hensley 2012, p. 1; require a Federal permit (such as a actions in instances where we have TNC 2012, p. 1; WKU 2012, p. 1). The permit from the ACOE under section listed a new species or subsequently feasibility of removing Lock and Dam #6 404 of the Clean Water Act (33 U.S.C. designated critical habitat that may be has also been evaluated, but no decision 1251 et seq.) or a permit from the affected and the Federal agency has on this proposal has been made yet Service under section 10 of the Act) or retained discretionary involvement or (Olson 2006, pp. 295–297). There are that involve some other Federal action control over the action (or the agency’s also a number of ongoing efforts to (such as funding from the Federal discretionary involvement or control is educate the public on the biodiversity Highway Administration, Federal authorized by law). Consequently, the river supports. These efforts include Aviation Administration, or the Federal Federal agencies sometimes may need to river cleanups and the establishment of Emergency Management Agency). request reinitiation of consultation with a Watershed Watch program under Federal actions not affecting listed us on actions for which formal which volunteers are trained to monitor species or critical habitat, and actions consultation has been completed, if the biological conditions in the river. on state, tribal, local, or private lands those actions with discretionary Land use within this watershed is that are not federally funded or involvement or control may affect primarily agriculture and forestry and authorized, do not require section 7 subsequently listed species or also some oil and gas development. consultation. designated critical habitat.

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Application of the ‘‘Adverse point source). These activities could Under section 4(b)(2) of the Act, we Modification’’ Standard alter water conditions beyond the may exclude an area from designated The key factor related to the adverse tolerances of these fish and result in critical habitat based on economic modification determination is whether, direct or cumulative adverse effects to impacts, impacts on national security, with implementation of the proposed the species. or any other relevant impacts. In Federal action, the affected critical (4) Actions that would significantly considering whether to exclude a habitat would continue to serve its alter streambed material composition particular area from the designation, we intended conservation role for the and quality by increasing sediment identify the benefits of including the species. Activities that may destroy or deposition or embeddedness. Such area in the designation, identify the benefits of excluding the area from the adversely modify critical habitat are activities could include, but are not designation, and evaluate whether the those that alter the physical or limited to, certain construction projects, benefits of exclusion outweigh the biological features to an extent that oil and gas development, mining, timber benefits of inclusion. If the analysis appreciably reduces the conservation harvest, and other watershed and indicates that the benefits of exclusion value of critical habitat for the diamond floodplain disturbances if they release outweigh the benefits of inclusion, the darter. As discussed above, the role of sediments or nutrients into the water. Secretary may exercise his discretion to critical habitat is to support life-history These activities could eliminate or exclude the area only if such exclusion needs of the species and provide for the reduce habitats necessary for the growth would not result in the extinction of the conservation of the species. and reproduction of these fish by species. Section 4(b)(8) of the Act requires us causing excessive siltation or to briefly evaluate and describe, in any nutrification. Exclusions Based on Economic Impacts proposed or final regulation that Exemptions Under section 4(b)(2) of the Act, we designates critical habitat, activities consider the economic impacts of Application of Section 4(a)(3) of the Act involving a Federal action that may specifying any particular area as critical destroy or adversely modify such Section 4(a)(3)(B)(i) of the Act (16 habitat. To consider economic impacts, habitat, or that may be affected by such U.S.C. 1533(a)(3)(B)(i)) provides that: we prepared a DEA of the proposed designation. ‘‘The Secretary shall not designate as critical habitat designation and related Activities that may affect critical critical habitat any lands or other factors (Industrial Economics Inc. habitat, when carried out, funded, or geographic areas owned or controlled by 2013a, entire). The draft analysis, dated authorized by a Federal agency, should the Department of Defense, or February 27, 2013, was made available result in consultation for the diamond designated for its use, that are subject to for public review from March 29, 2013, darter. These activities include, but are an integrated natural resources through April 29, 2013 (78 FR 19172). not limited to: management plan [INRMP] prepared Following the close of the comment (1) Actions that would alter the under section 101 of the Sikes Act (16 period, a final analysis (dated June geomorphology of stream habitats. Such U.S.C. 670a), if the Secretary determines 2013) of the potential economic effects activities could include, but are not in writing that such plan provides a of the designation (FEA) was developed limited to, instream excavation or benefit to the species for which critical taking into consideration the public dredging, impoundment, habitat is proposed for designation.’’ comments and any new information channelization, removal of riparian There are no Department of Defense (Industrial Economics Inc. 2013b, vegetation, road and bridge lands with a completed INRMP within entire). construction, discharge of mine waste or the proposed critical habitat The intent of the FEA is to quantify spoil, and other discharges of fill designation. the economic impacts of all potential materials. These activities could cause conservation efforts for the diamond aggradation or degradation of the Exclusions darter. The economic impact of the final streambed or significant bank erosion, Application of Section 4(b)(2) of the Act critical habitat designation is analyzed result in entrainment or burial of these by comparing scenarios ‘‘with critical fishes, and cause other direct or Section 4(b)(2) of the Act states that habitat’’ and ‘‘without critical habitat.’’ cumulative adverse effects to the the Secretary shall designate and make The ‘‘without critical habitat’’ scenario species. revisions to critical habitat on the basis represents the baseline for the analysis, (2) Actions that would significantly of the best available scientific data after considering protections already in place alter the existing flow regime or water taking into consideration the economic for the species (e.g., listing under the quantity. Such activities could include, impact, national security impact, and Act as well as other Federal, State, and but are not limited to, impoundment, any other relevant impact of specifying local authorities). The baseline therefore water diversion, water withdrawal, and any particular area as critical habitat. represents the costs incurred regardless hydropower generation. These activities The Secretary may exclude an area from of whether critical habitat is designated. could eliminate or reduce the habitat critical habitat if he determines that the The ‘‘with critical habitat’’ scenario necessary for growth and reproduction benefits of such exclusion outweigh the describes the incremental impacts of the diamond darter. benefits of specifying such area as part associated specifically with the (3) Actions that would significantly of the critical habitat, unless he designation of critical habitat for the alter water chemistry or water quality determines, based on the best scientific species, and which are not expected to (for example, dissolved oxygen, data available, that the failure to occur absent the designation of critical temperature, pH, contaminants, and designate such area as critical habitat habitat for the species. In other words, excess nutrients). Such activities could will result in the extinction of the the incremental costs are those include, but are not limited to, species. The statute on its face, as well attributable solely to the designation of hydropower discharges or the release of as the legislative history, is clear that critical habitat above and beyond the chemicals, biological pollutants, or toxic the Secretary has broad discretion baseline costs. These are the costs we effluents into surface water or regarding which factor(s) to use and consider in the final designation of connected groundwater at a point how much weight to give to any factor critical habitat. The FEA looks at source or by dispersed release (non- in making that determination. baseline impacts occurring due to listing

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the species, and forecasts both baseline diamond darter habitat under the A copy of the FEA with supporting and incremental impacts likely to occur adverse modification and jeopardy documents may be obtained by with the designation of critical habitat. standards are likely to be similar contacting the West Virginia Field The FEA also addresses how potential because the diamond darter’s entire life Office (see ADDRESSES) or by economic impacts are likely to be history is reliant on the presence of all downloading from the Internet at distributed, including an assessment of the PCEs being present within one http://www.regulations.gov. any local or regional impacts of habitat contiguous stream reach. Thus, project conservation and the potential effects of modifications that minimize impacts to Exclusions Based on National Security conservation activities on government the species to avoid jeopardy would Impacts agencies, private businesses, and coincidentally minimize impacts to Under section 4(b)(2) of the Act, we individuals. The FEA measures lost critical habitat. consider whether there are lands owned economic efficiency associated with In addition, although one of the or managed by the Department of residential and commercial critical habitat units for the diamond Defense where a national security development and public projects and darter is unoccupied, incremental impact might exist. In preparing this activities, such as economic impacts on impacts of the critical habitat final rule, we have determined that no water management and transportation designation will be limited because the lands within the designation of critical projects, Federal lands, small entities, unit is currently occupied by nine habitat for the diamond darter are and the energy industry. Decision- federally endangered mussels. owned or managed by the Department of makers can use this information to Management recommendations made to Defense, and therefore we anticipate no assess whether the effects of the avoid adverse effects during previous impact on national security. designation might unduly burden a mussel consultations included using Consequently, the Secretary is not particular group or economic sector. enhanced sedimentation and erosion exerting her discretion to exclude any Finally, the FEA looks at costs that may control measures, avoiding water areas from this final designation based occur in the 20 years following the quality degradation through the use of on impacts on national security. designation of critical habitat, which spill and run-off prevention and control was determined to be the appropriate measures, avoiding instream Exclusions Based on Other Relevant period for analysis because limited disturbances through the use of project Impacts planning information was available for alternatives such as directional drilling, Under section 4(b)(2) of the Act, we most activities to forecast activity levels conducting project activities away from consider any other relevant impacts, in for projects beyond a 20-year timeframe. the river, and minimizing disturbances addition to economic impacts and The FEA quantifies economic impacts of to and fill of lands adjacent to the river impacts on national security. We diamond darter conservation efforts and stream tributaries. These consider a number of factors, including associated with the following categories recommendations are similar to the whether the landowners have developed of activity: (1) Resource extraction (coal types of management recommendations any HCPs or other management plans mining, gravel and rock mining, and oil that would be used to avoid adverse for the area, or whether any and natural gas exploration) and modifications to diamond darter critical conservation partnerships would be utilities; (2) timber management, habitat. encouraged by designation of, or agriculture, and grazing; (3) other The FEA concludes that incremental exclusion from, critical habitat. In instream work (dredging, impacts of critical habitat designation addition, we look at any tribal issues, channelization, diversions, dams, are limited to additional administrative and consider the government-to- instream construction of boat docks, costs of consultations and that indirect government relationship of the United etc.); (4) transportation (roads, incremental impacts are unlikely to States with tribal entities. We also highways, bridges); and (5) water result from the designation of critical consider any social impacts that might quality/sewage management. habitat for the diamond darter. The occur because of the designation. The FEA concludes that the types of present value of the total direct In preparing this final rule, we have conservation efforts requested by the (administrative) incremental cost of determined that there are currently no Service during section 7 consultation critical habitat designation is $800,000 HCPs or other management plans for the regarding the diamond darter were not assuming a 7 percent discount rate, or diamond darter, and the final expected to change due to critical $70,000 on an annualized basis. designation does not include any tribal habitat designation. The results of Transportation activities are likely to be lands or trust resources. We anticipate consultation under the adverse subject to the greatest incremental no impact on tribal lands, partnerships, modification and jeopardy standards are impacts at $320,000 over 20 years, or HCPs from this critical habitat likely to be similar because there is a followed by timber management, designation. Accordingly, the Secretary close relationship between the health of agriculture, and grazing activities is not exercising his discretion to the diamond darter and the health of its collectively at $260,000; resource exclude any areas from this final habitat. Alterations of habitat that extraction activities at $150,000; other designation based on other relevant diminish the value (e.g., actions that instream work at $50,000; and water impacts. alter hydrology, water quality, or quality/sewage management at $18,000. suitability of substrate) and the amount These numbers represent present value Required Determinations of diamond darter habitat would likely at a 7 percent discount rate and may not Regulatory Planning and Review affect its population size and ability to total due to rounding. (Executive Orders 12866 and 13563) recruit young, would likely cause Our economic analysis did not further range declines, and could identify any disproportionate costs that Executive Order (E.O.) 12866 provides appreciably reduce the species’ are likely to result from the designation. that the Office of Information and likelihood of survival and recovery in Consequently, the Secretary is not Regulatory Affairs (OIRA) in the Office the wild. Such habitat alterations could, exerting his discretion to exclude any of Management and Budget will review therefore, constitute jeopardy to the areas from this designation of critical all significant rules. The OIRA has species. In most cases, the results of habitat for the diamond darter based on determined that this rule is not consultation on projects in occupied economic impacts. significant.

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Executive Order 13563 reaffirms the $27.5 million in annual business, evaluated the potential economic effects principles of E.O. 12866 while calling special trade contractors doing less than on small business entities resulting from for improvements in the nation’s $11.5 million in annual business, and conservation actions related to the regulatory system to promote agricultural businesses with annual listing of the diamond darter and the predictability, to reduce uncertainty, sales less than $750,000. To determine designation of critical habitat. The and to use the best, most innovative, if potential economic impacts on these analysis is based on the estimated and least burdensome tools for small entities are significant, we impacts associated with the rulemaking achieving regulatory ends. The E.O. consider the types of activities that as described in Chapters 3 through 4 directs agencies to consider regulatory might trigger regulatory impacts under and Appendix A of the analysis and approaches that reduce burdens and this rule, as well as the types of project evaluates the potential for economic maintain flexibility and freedom of modifications that may result. In impacts from resource extraction; timber choice for the public where these general, the term ‘‘significant economic management, agriculture, and grazing; approaches are relevant, feasible, and impact’’ is meant to apply to a typical instream activities; transportation; and consistent with regulatory objectives. small business firm’s business water quality and sewer management. The E.O. 13563 emphasizes further that operations. regulations must be based on the best To determine if the rule could We determined from our analysis available science and that the significantly affect a substantial number (Appendix A in FEA) that there will be rulemaking process must allow for of small entities, we consider the minimal additional economic impacts to public participation and an open number of small entities affected within small entities resulting from the exchange of ideas. We have developed particular types of economic activities designation of critical habitat, because this rule in a manner consistent with (e.g., resource extraction; timber almost all of the potential costs related these requirements. management, agriculture, and grazing; to modification of activities and instream activities; transportation; and conservation that were identified in the Regulatory Flexibility Act (5 U.S.C. 601 water quality and sewer management). et seq.) economic analysis represent baseline We apply the ‘‘substantial number’’ test costs that would be realized in the Under the RFA (5 U.S.C. 601 et seq.), individually to each industry to absence of critical habitat. The as amended by SBREFA of 1996 (5 determine if certification is appropriate. economic analysis estimates that U.S.C 801 et seq.), whenever an agency However, the SBREFA does not approximately 245 small entities may be must publish a notice of rulemaking for explicitly define ‘‘substantial number’’ affected over the next 20 years. This any proposed or final rule, it must or ‘‘significant economic impact.’’ equates to fewer than 13 entities prepare and make available for public Consequently, to assess whether a affected per year. The large majority of comment a regulatory flexibility ‘‘substantial number’’ of small entities is analysis that describes the effects of the affected by this designation, this these affected entities (190 or 82 rule on small entities (small businesses, analysis considers the relative number percent) are agriculture and timbering small organizations, and small of small entities likely to be impacted in entities in Kentucky that receive government jurisdictions). However, no an area. In some circumstances, assistance through the NRCS. regulatory flexibility analysis is required especially with critical habitat Participation in NRCS assistance if the head of an agency certifies the rule designations of limited extent, we may programs is voluntary. The remaining will not have a significant economic aggregate across all industries and 68 potentially affected small entities are impact on a substantial number of small consider whether the total number of associated with resource extraction and entities. The SBREFA amended the RFA small entities affected is substantial. In other instream work. This equates to an to require Federal agencies to provide a estimating the number of small entities average of fewer than four affected small certification statement of the factual potentially affected, we also consider entities per year. The FEA estimates basis for certifying that the rule will not whether the activities have any Federal incremental costs of between $880 and have a significant economic impact on involvement. $8,800 per affected entity engaging in a substantial number of small entities. Designation of critical habitat only resource extraction or other instream In this final rule, we are certifying that affects activities authorized, funded, or work; this cost equals an impact of less the critical habitat designation for the carried out by Federal agencies. Some than 0.1 percent to each entity’s annual diamond darter will not have a kinds of activities are unlikely to have revenue. All of these costs are derived significant economic impact on a any Federal involvement and so will not from the added effort associated with substantial number of small entities. be affected by critical habitat considering adverse modification in the The following discussion explains our designation. In areas where the species context of section 7 consultations. rationale. is present, Federal agencies already are According to the Small Business required to consult with us under In summary, we considered whether Administration, small entities include section 7 of the Act on activities they this designation would result in a small organizations, such as authorize, fund, or carry out that may significant economic effect on a independent nonprofit organizations; affect the diamond darter. Federal substantial number of small entities. small governmental jurisdictions, agencies also must consult with us if Based on the above reasoning and including school boards and city and their activities may affect critical currently available data, we conclude town governments that serve fewer than habitat. Designation of critical habitat, that this rule would not result in a 50,000 residents; as well as small therefore, could result in an additional significant economic impact on a businesses. Small businesses include economic impact on small entities due substantial number of small entities. manufacturing and mining concerns to the requirement to reinitiate Therefore, we are certifying that the with fewer than 500 employees, consultation for ongoing Federal designation of critical habitat for the wholesale trade entities with fewer than activities (see Application of the diamond darter will not have a 100 employees, retail and service ‘‘Adverse Modification Standard’’ significant economic impact on a businesses with less than $5 million in section). substantial number of small entities, annual sales, general and heavy In our final economic analysis of the and a regulatory flexibility analysis is construction businesses with less than critical habitat designation, we not required.

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Energy Supply, Distribution, or Use— under which $500,000,000 or more is adversely affect the critical habitat. This Executive Order 13211 provided annually to State, local, and rule will not produce a Federal mandate Executive Order 13211 (Actions tribal governments under entitlement of $100 million or greater in any year; Concerning Regulations That authority,’’ if the provision would that is, it is not a ‘‘significant regulatory Significantly Affect Energy Supply, ‘‘increase the stringency of conditions of action’’ under the Unfunded Mandates Distribution, or Use) requires agencies assistance’’ or ‘‘place caps upon, or Reform Act. Consequently, we do not to prepare Statements of Energy Effects otherwise decrease, the Federal believe that the critical habitat when undertaking certain actions. The Government’s responsibility to provide designation would significantly or OMB has provided guidance for funding,’’ and the State, local, or tribal uniquely affect small government governments ‘‘lack authority’’ to adjust entities. As such, a Small Government implementing this E.O. that outlines accordingly. At the time of enactment, Agency Plan is not required. nine outcomes that may constitute ‘‘a these entitlement programs were: significant adverse effect’’ when Takings—Executive Order 12630 Medicaid; Aid to Families with compared to not taking the regulatory Dependent Children work programs; In accordance with E.O. 12630 action under consideration. The FEA Child Nutrition; Food Stamps; Social (Government Actions and Interference considered the potential effects of the Services Block Grants; Vocational with Constitutionally Protected Private diamond darter critical habitat Rehabilitation State Grants; Foster Care, Property Rights), we have analyzed the designation on coal, oil, and gas Adoption Assistance, and Independent potential takings implications of development. The FEA found that some Living; Family Support Welfare designating critical habitat for the limited impacts to these energy Services; and Child Support diamond darter in a takings development activities are anticipated, Enforcement. ‘‘Federal private sector implications assessment. As discussed but they will mostly be limited to the mandate’’ includes a regulation that above, the designation of critical habitat administrative costs of consultation. ‘‘would impose an enforceable duty affects only Federal actions. Although Therefore, reductions in energy upon the private sector, except (i) a private parties that receive Federal production are not anticipated, and condition of Federal assistance or (ii) a funding, assistance, or require approval consultation costs are not anticipated to duty arising from participation in a or authorization from a Federal agency increase the cost of energy production voluntary Federal program.’’ for an action may be indirectly impacted or distribution in the United States in The designation of critical habitat by the designation of critical habitat, the excess of one percent. None of the nine does not impose a legally binding duty legally binding duty to avoid outcome thresholds of impact are on non-Federal Government entities or destruction or adverse modification of exceeded, and the economic analysis private parties. Under the Act, the only critical habitat rests squarely on the finds that none of these criteria are regulatory effect is that Federal agencies Federal agency. The takings relevant to this analysis. Thus, based on must ensure that their actions do not implications assessment concludes that information in the economic analysis, destroy or adversely modify critical this designation of critical habitat for energy-related impacts associated with habitat under section 7. While non- the diamond darter does not pose diamond darter conservation activities Federal entities that receive Federal significant takings implications for within critical habitat are not expected. funding, assistance, or permits, or that lands within or affected by the As such, the designation of critical otherwise require approval or designation. habitat is not expected to significantly authorization from a Federal agency for Federalism—Executive Order 13132 affect energy supplies, distribution, or an action, may be indirectly impacted use. Therefore, this action is not a by the designation of critical habitat, the In accordance with E.O. 13132 significant energy action, and no legally binding duty to avoid (Federalism), this rule does not have Statement of Energy Effects is required. destruction or adverse modification of significant Federalism effects. A critical habitat rests squarely on the federalism impact summary statement is Unfunded Mandates Reform Act (2 not required. In keeping with U.S.C. 1501 et seq.) Federal agency. Furthermore, to the extent that non-Federal entities are Department of the Interior and In accordance with the Unfunded indirectly impacted because they Department of Commerce policy, we Mandates Reform Act (2 U.S.C. 1501 et receive Federal assistance or participate requested information from, and seq.), we make the following findings: in a voluntary Federal aid program, the coordinated development of, this (1) This rule will not produce a Unfunded Mandates Reform Act would critical habitat designation with Federal mandate. In general, a Federal not apply, nor would critical habitat appropriate State resource agencies in mandate is a provision in legislation, shift the costs of the large entitlement West Virginia and Kentucky. We statute, or regulation that would impose programs listed above onto State received comments from the State of an enforceable duty upon State, local, or governments. West Virginia and have addressed them tribal governments, or the private sector, (2) We do not believe that this rule in the Summary of Comments and and includes both ‘‘Federal will significantly or uniquely affect Recommendations section of the rule. intergovernmental mandates’’ and small governments. The FEA concludes The designation of critical habitat in ‘‘Federal private sector mandates.’’ incremental impacts may occur due to areas currently occupied by the These terms are defined in 2 U.S.C. administrative costs of section 7 diamond darter imposes no additional 658(5)–(7). ‘‘Federal intergovernmental consultations for projects in the restrictions to those currently in place mandate’’ includes a regulation that following categories that have a Federal and therefore has little incremental ‘‘would impose an enforceable duty nexus: resource extraction; timber impact on State and local governments upon State, local, or tribal governments’’ management, agriculture, and grazing; and their activities. The designation with two exceptions. It excludes ‘‘a instream activities; transportation; and may have some benefit to these condition of Federal assistance.’’ It also water quality and sewer management. governments in that the areas that excludes ‘‘a duty arising from Small governments will be affected only contain the PBFs essential to the participation in a voluntary Federal to the extent that they must ensure that conservation of the species are more program,’’ unless the regulation ‘‘relates their actions that involve Federal clearly defined, and the elements of the to a then-existing Federal program funding or authorization will not features of the habitat necessary to the

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conservation of the species are recordkeeping or reporting requirements available to tribes. We determined that specifically identified. This information on State or local governments, there are no tribal lands occupied by the does not alter where and what federally individuals, businesses, or diamond darter at the time of listing that sponsored activities may occur. organizations. An agency may not contain the PBFs essential to However, it may assist local conduct or sponsor, and a person is not conservation of the species, and that governments in long-range planning required to respond to, a collection of there are no tribal lands unoccupied by (rather than having them wait for case- information unless it displays a the diamond darter that are essential for by-case section 7 consultations to currently valid OMB control number. the conservation of the species. occur). Therefore, we are not designating National Environmental Policy Act (42 Where State and local governments critical habitat for the diamond darter U.S.C. 4321 et seq.) require approval or authorization from a on tribal lands. Federal agency for actions that may It is our position that, outside the References Cited affect critical habitat, consultation jurisdiction of the U.S. Court of Appeals under section 7(a)(2) would be required. for the Tenth Circuit, we do not need to A complete list of all references cited While non-Federal entities that receive prepare environmental analyses in this rule is available on the Internet Federal funding, assistance, or permits, pursuant to the National Environmental at http://www.regulations.gov or upon or that otherwise require approval or Policy Act in connection with request from the Field Supervisor, West authorization from a Federal agency for designating critical habitat under the Virginia Field Office (see ADDRESSES an action, may be indirectly impacted Act. We published a notice outlining section). by the designation of critical habitat, the our reasons for this determination in the Author(s) legally binding duty to avoid Federal Register on October 25, 1983 destruction or adverse modification of (48 FR 49244). This position was upheld The primary author of this document critical habitat rests squarely on the by the U.S. Court of Appeals for the is staff from the West Virginia Field Federal agency. Ninth Circuit (Douglas County v. Office (see ADDRESSES). Civil Justice Reform—Executive Order Babbitt, 48 F.3d 1495 (9th Cir. 1995), List of Subjects in 50 CFR Part 17 12988 cert. denied 516 U.S. 1042 (1996)). Endangered and threatened species, In accordance with E.O. 12988 (Civil Government-to-Government Exports, Imports, Reporting and Justice Reform), the Office of the Relationship With Tribes recordkeeping requirements, Solicitor has determined that the rule Transportation. does not unduly burden the judicial In accordance with the President’s system and that it meets the applicable memorandum of April 29, 1994 Regulation Promulgation (Government-to-Government Relations standards set forth in sections 3(a) and Accordingly, we amend part 17, 3(b)(2) of the Executive Order. We are with Native American Tribal subchapter B of chapter I, title 50 of the designating critical habitat in Governments; 59 FR 22951), E.O. 13175 Code of Federal Regulations, as set forth accordance with the provisions of the (Consultation and Coordination With below: Act. To assist the public in Indian Tribal Governments), and the Department of the Interior’s manual at understanding the habitat needs of the PART 17—[AMENDED] species, the rule identifies the elements 512 DM 2, we readily acknowledge our responsibility to communicate of PBFs essential to the conservation of ■ 1. The authority citation for part 17 meaningfully with recognized Federal the diamond darter. The designated continues to read as follows: areas of critical habitat are presented on tribes on a government-to-government Authority: 16 U.S.C. 1361–1407; 1531– maps, and the rule provides several basis. In accordance with Secretarial Order 3206 of June 5, 1997 (American 1544; 16 U.S.C. 4201–4245; unless otherwise options for the interested public to noted. obtain more detailed location Indian Tribal Rights, Federal-Tribal information, if desired. Trust Responsibilities, and the ■ 2. Amend § 17.11(h) by revising the Endangered Species Act), we readily entry for ‘‘Darter, diamond’’ under Paperwork Reduction Act of 1995 (44 acknowledge our responsibilities to U.S.C. 3501 et seq.) ‘‘Fishes’’ in the List of Endangered and work directly with tribes in developing Threatened Wildlife to read as follows: This rule does not contain any new programs for healthy ecosystems, to collections of information that require acknowledge that tribal lands are not § 17.11 Endangered and threatened approval by OMB under the Paperwork subject to the same controls as Federal wildlife. Reduction Act of 1995 (44 U.S.C. 3501 public lands, to remain sensitive to * * * * * et seq.). This rule will not impose Indian culture, and to make information (h) * * *

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

******* FISHES

******* Darter, diamond ...... Crystallaria cincotta U.S.A. (IN, KY, OH, Entire ...... E 815 17.95(e) NA TN, WV)

*******

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■ 3. In § 17.95, amend paragraph (e) by (iii) An instream flow regime projection used in mapping was adding an entry for ‘‘Diamond Darter (magnitude, frequency, duration, and Universal Transverse Mercator (UTM), (Crystallaria cincotta),’’ in the same seasonality of discharge over time) that NAD 83, Zone 16 North for the Green alphabetical order that the species is relatively unimpeded by River, Kentucky, unit; and UTM, NAD appears in the table at § 17.11(h), to read impoundment or diversions such that 83, Zone 17 North for the Elk River, as follows: there is minimal departure from a West Virginia, unit. The following data natural hydrograph. sources were referenced to identify § 17.95 Critical habitat—fish and wildlife. (iv) Adequate water quality features used to delineate the upstream * * * * * characterized by seasonally moderated and downstream reaches of critical (e) Fishes. temperatures, high dissolved oxygen habitat units: USGS 7.5′ quadrangles * * * * * levels, and moderate pH, and low levels and topographic maps, NHD data, 2005 Diamond Darter (Crystallaria cincotta) of pollutants and siltation. Adequate National Inventory of Dams, Kentucky water quality is defined as the quality Land Stewardship data, pool and shoal (1) Critical habitat units are depicted necessary for normal behavior, growth, data on the Elk River, Esri’s Bing Maps for Kanawha and Clay Counties, West and viability of all life stages of the Road. The maps in this entry, as Virginia, and Edmonson, Hart, and diamond darter. modified by any accompanying Green Counties, Kentucky, on the maps (v) A prey base of other fish larvae regulatory text, establish the boundaries below. and benthic invertebrates including of the critical habitat designation. The (2) Within these areas, the primary midge, caddisfly, and mayfly larvae. coordinates or plot points or both on constituent elements of the physical or (3) Critical habitat does not include which each map is based are available biological features essential to the manmade structures (such as bridges, to the public at the field office Internet conservation of diamond darter consist docks, aqueducts and other paved areas) site (http://www.fws.gov/ of five components: and the land on which they are located westvirginiafieldoffice/index.html), (i) A series of connected riffle-pool existing within the legal boundaries on http://www.regulations.gov at Docket complexes with moderate velocities in the effective date of this rule. No. FWS–R5–ES–2013–0019, and at the moderate- to large-sized (fourth- to (4) Critical habitat map units. Data Service’s West Virginia Field Office. eighth-order), geomorphically stable layers defining map units were created You may obtain field office location streams within the Ohio River with U.S. Geological Survey National information by contacting one of the watershed. Hydrography Dataset Geographic Service regional offices, the addresses of (ii) Stable, undisturbed sand and Information System data. Esri’s ArcGIS which are listed at 50 CFR 2.2. gravel stream substrates that are 10.1 software was used to determine (5) Note: Index map of critical habitat relatively free of and not embedded longitude and latitude in decimal locations for the diamond darter in West with silts and clays. degrees for the river reaches. The Virginia and Kentucky follows:

(6) Unit 1: Lower Elk River, Kanawha Wildlife Management Area downstream Knollwood Drive in Charleston, West and Clay Counties, West Virginia. to the confluence with an unnamed Virginia. (i) Unit 1 includes 45.0 km (28.0 mi) tributary entering the Elk River on the (ii) Note: Map of Unit 1 (lower Elk of the Elk River from the confluence right descending bank adjacent to River) follows: with King Shoals Run near Wallback

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(7) Unit 2: Green River, Edmonson, near Greensburg (River Mile 294.8) (ii) Note: Map of Unit 2 (Green River) Hart, and Green Counties, Kentucky. downstream to the downstream end of follows: (i) Unit 2 includes 152.1 km (94.5 mi) Cave Island in Mammoth Cave National of the Green River from Roachville Ford Park (River Mile 200.3).

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* * * * * Dated: August 6, 2013. Rachel Jacobson, Principal Deputy Assistant Secretary for Fish and Wildlife and Parks. [FR Doc. 2013–20449 Filed 8–21–13; 8:45 am] BILLING CODE 4310–55–P

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