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TABLE III—COMPARISON OF TOTAL PAYMENTS PER CASE—Continued [FY 2016 payments compared to FY 2017 payments]

Average FY Average FY Number of 2016 2017 Change hospitals payments/case payments/case

Less than 100 beds ...... 142 526 528 0.3 Urban teaching and DSH: Both teaching and DSH ...... 898 1,043 1,052 0.9 Teaching and no DSH ...... 109 942 948 0.6 No teaching and DSH ...... 1,107 813 820 0.8 No teaching and no DSH ...... 408 815 820 0.6 Rural Hospital Types: Non special status hospitals ...... 2,529 948 955 0.7 RRC/EACH ...... 189 772 782 1.4 SCH/EACH ...... 324 706 716 1.4 SCH, RRC and EACH ...... 126 748 756 1.1 Hospitals Reclassified by the Medicare Geographic Classification Review Board: FY2017 Reclassifications: All Urban Reclassified ...... 532 953 962 0.9 All Urban Non-Reclassified ...... 1,936 948 955 0.7 All Rural Reclassified ...... 277 650 655 0.9 All Rural Non-Reclassified ...... 489 578 580 0.3 Other Reclassified Hospitals (Section 1886(d)(8)(B)) ...... 42 599 602 0.5 Type of Ownership: Voluntary ...... 1,927 926 934 0.8 Proprietary ...... 881 820 827 0.8 Government ...... 522 963 969 0.6 Medicare Utilization as a Percent of Inpatient Days: 0–25 ...... 523 1,103 1,114 1.0 25–50 ...... 2,122 916 923 0.8 50–65 ...... 545 745 750 0.7 Over 65 ...... 89 529 531 0.4

14. On page 57342— (2) Second column, first partial (d) Line 23, the figure ‘‘746’’ is a. Top of the page— paragraph— corrected to read ‘‘755’’. (a) Line 12, the figure ‘‘809’’ is b. Middle of the page, the table titled (1) First column, first full paragraph— corrected to read ‘‘811’’. ‘‘TABLE V—ACCOUNTING (a) Line 11, the figure ‘‘987’’ is (b) Line 14, the figure’’680’’ is STATEMENT: CLASSIFICATION OF corrected to read ‘‘990’’. corrected to read ‘‘683’’. ESTIMATED EXPENDITURES UNDER (b) Line 23, the figure ‘‘809’’ is (c) Line 19, the figure ‘‘66’’ is THE IPPS FROM FY 2016 TO FY 2017’’ corrected to read ‘‘811’’. corrected to read ‘‘72’’. is corrected to read as follows:

TABLE V—ACCOUNTING STATEMENT: CLASSIFICATION OF ESTIMATED EXPENDITURES UNDER THE IPPS FROM FY 2016 TO FY 2017

Category Transfers

Annualized Monetized Transfers ...... $755 million. From Whom to Whom ...... Federal Government to IPPS Medicare Providers.

Dated: September 29, 2016. DEPARTMENT OF THE INTERIOR ACTION: Final rule. Madhura Valverde, Executive Secretary to the Department, Fish and Wildlife Service SUMMARY: We, the U.S. Fish and Department of Health and Human Services. Wildlife Service (Service), determine 50 CFR Part 17 [FR Doc. 2016–24042 Filed 9–30–16; 11:15 am] threatened species status under the BILLING CODE 4120–01–P [Docket No. FWS–R4–ES–2015–0132; Endangered Species Act of 1973 (Act), 4500030113] as amended, for Kentucky arrow darter (Etheostoma spilotum), a fish species RIN 1018–AZ09 from the upper Kentucky River basin in Kentucky. The effect of this regulation Endangered and Threatened Wildlife and Plants; Threatened Species Status will be to add this species to the List of for Kentucky Arrow Darter With 4(d) Endangered and Threatened Wildlife. Rule We are also adopting a rule under section 4(d) of the Act (a ‘‘4(d) rule’’) to AGENCY: Fish and Wildlife Service, further provide for the conservation of Interior. the Kentucky arrow darter.

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DATES: This rule becomes effective the conservation of threatened species. habitat for the Kentucky arrow darter November 4, 2016. The Secretary also has the discretion to under the Act. prohibit by regulation, with respect to a ADDRESSES: This final rule is available Previous Federal Action on the internet at http:// threatened species, any act prohibited www.regulations.gov and http:// by section 9(a)(1) of the Act. Please refer to the proposed listing www.fws.gov/frankfort/. Comments and Summary of the major provisions of rule for the Kentucky arrow darter (80 materials we received, as well as the 4(d) rule. The regulations in title 50 FR 60962, October 8, 2015) for a supporting documentation we used in of the Code of Federal Regulations at 50 detailed description of previous Federal preparing this rule, are available for CFR 17.31(a) apply to threatened actions concerning this species. public inspection at http:// wildlife all the general prohibitions for Summary of Comments and www.regulations.gov. Comments, endangered wildlife set forth at 50 CFR Recommendations materials, and documentation that we 17.21, and 50 CFR 17.31(c) states that whenever a 4(d) rule applies to a In the proposed rule published on considered in this rulemaking will be October 8, 2015 (80 FR 60962), we available by appointment, during threatened species, the provisions of § 17.31(a) do not apply to that species. requested that all interested parties normal business hours at: U.S. Fish and submit written comments on the Wildlife Service, Kentucky Ecological The regulations at 50 CFR 17.32 contain permit provisions for threatened proposal by December 7, 2015. We also Services Field Office (see FOR FURTHER contacted appropriate Federal and State INFORMATION CONTACT). species. Some activities that would normally agencies, scientific experts and FOR FURTHER INFORMATION CONTACT: be prohibited under 50 CFR 17.31 and organizations, and other interested Virgil Lee Andrews, Jr., Field 17.32 will contribute to the conservation parties and invited them to comment on Supervisor, U.S. Fish and Wildlife of the Kentucky arrow darter because the proposal. Newspaper notices Service, Kentucky Ecological Services habitat within some of the physically inviting general public comment were Field Office, 330 West Broadway, Suite degraded streams must be improved published in the Lexington Herald- 265, Frankfort, KY 40601; telephone before they are suitable for the species. Leader and Louisville Courier Journal. 502–695–0468, x108; facsimile 502– Therefore, the Service has authorized We did not receive any requests for a 695–1024. Persons who use a certain species-specific exceptions for public hearing. During the comment telecommunications device for the deaf the Kentucky arrow darter under section period, we received 47 comment letters (TDD) may call the Federal Information 4(d) of the Act that may be appropriate in response to the proposed rule: 5 from Relay Service (FIRS) at 800–877–8339. to promote the conservation of this peer reviewers, 1 from a State agency, SUPPLEMENTARY INFORMATION: species. This 4(d) rule also exempts and 41 from organizations or individuals. Two comment letters from Executive Summary from the general prohibitions in 50 CFR 17.32 take that is incidental to the organizations were accompanied by Why we need to publish a rule. Under following activities when conducted petitions containing a total of 15,388 the Endangered Species Act (Act), we within habitats currently occupied by signatures of persons supporting the may list a species if it is endangered or the Kentucky arrow darter: proposed listing. Another organization threatened throughout all or a (1) Channel reconfiguration or submitted a separate comment letter on significant portion of its range. Listing a restoration projects that create natural, behalf of itself and 14 other species as an endangered or threatened physically stable, ecologically organizations. None of the 47 comment species can only be completed by functioning streams (or stream and letters objected to the proposed rule to issuing a rule. wetland systems) that are reconnected list the Kentucky arrow darter as What this document does. This rule with their groundwater aquifers. threatened. All substantive information finalizes the listing of the Kentucky (2) Bank stabilization projects that use provided during the comment period arrow darter (Etheostoma spilotum) as a bioengineering methods specified by the has either been incorporated directly threatened species. It also includes Kentucky Energy and Environment into this final determination or provisions published under section 4(d) Cabinet and the Kentucky addressed below. of the Act that are necessary and Transportation Cabinet. Peer Reviewer Comments advisable for the conservation of the (3) Bridge and culvert replacement/ Kentucky arrow darter. removal projects that remove migration In accordance with our peer review The basis for our action. Under the barriers (e.g., collapsing, blocked, or policy published on July 1, 1994 (59 FR Act, we may determine that a species is perched culverts) or generally allow for 34270), we solicited expert opinion an endangered or threatened species improved upstream and downstream from seven knowledgeable individuals based on any of five factors: (A) The movements of Kentucky arrow darters. with scientific expertise that included present or threatened destruction, (4) Repair and maintenance of U.S. familiarity with Kentucky arrow darter modification, or curtailment of its Forest Service (USFS) concrete plank and its habitat, biological needs, and habitat or range; (B) overutilization for stream crossings in the Daniel Boone threats. We received responses from five commercial, recreational, scientific, or National Forest (DBNF). of the peer reviewers. educational purposes; (C) disease or Peer review and public comment. We We reviewed all comments received predation; (D) the inadequacy of sought comments from independent from the peer reviewers for substantive existing regulatory mechanisms; or (E) specialists to ensure that our listing issues and new information regarding other natural or manmade factors determination is based on scientifically the listing of Kentucky arrow darter. affecting its continued existence. This sound data, assumptions, and analyses. The peer reviewers all generally decision to list the Kentucky arrow We invited these peer reviewers to concurred with our methods and darter as threatened is based on three of comment on our listing proposal. We conclusions and provided additional the five factors (A, D, and E). also considered all comments and information on the taxonomy, life Under section 4(d) of the Act, the information received during the history, and threats; technical Secretary of the Interior has discretion comment period. clarifications; and suggestions to to issue such regulations as she deems Elsewhere in this Federal Register, improve the final rule. The comments necessary and advisable to provide for we finalize designation of critical and supplementary information

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provided by the peer reviewers conducted for the species between 2007 (7) Comment: One peer reviewer improved the final version of this and 2015, and the results of these offered new information on gill document, and we thank them for their surveys revealed a clear trend of habitat parasites and sewage bacteria, efforts. Peer reviewer comments are degradation and range curtailment for suggesting that these organisms addressed in the following summary the species. Kentucky arrow darters may represent potential threats to the and incorporated into the final rule as have gone undetected at a few sites (i.e., Kentucky arrow darter under Factor C. appropriate. our detection of the species may have Disease or Predation. (1) Comment: One peer reviewer been imperfect at a few collection sites), Our Response: We agree with the peer stated that the Service should include but the species’ overall decline and reviewer that these organisms have the any new information on growth, pattern of associated habitat degradation potential to adversely affect the feeding, reproduction, or spawning of (e.g., elevated conductivity) was clear Kentucky arrow darter, and we have the Kentucky arrow darter obtained based on our review of available survey added language to address this topic from recent captive-propagation efforts data. under the Factor C. Disease or Predation by Conservation Fisheries, Inc. (CFI) in (3) Comment: One peer reviewer section of this final listing Knoxville, Tennessee. pointed out that some information we determination. Our Response: New observations on included on the reproductive behavior (8) Comment: One peer reviewer spawning behavior and the growth and of the Kentucky arrow darter was commented that generalized natural viability of eggs and larvae were made actually based on research conducted on channel design projects (i.e., Rosgen) by CFI during recent captive- its closest relative, the Cumberland may not be sufficient under provisions propagation efforts (2010 to present). arrow darter (Etheostoma sagitta). of the proposed section 4(d) rule, and We have incorporated language Our Response: We concur with the individual designs would be needed to summarizing these findings under the peer reviewer and have incorporated benefit the Kentucky arrow darter. Our Response: In the proposed listing Background—Habitat and Life History language to address this topic under the determination, we proposed a species- section of this final listing Background—Habitat and Life History specific section 4(d) rule to further determination. section of this final listing (2) Comment: Two of the peer promote the conservation of the determination. reviewers asked that we discuss the Kentucky arrow darter. We concluded detectability of the Kentucky arrow (4) Comment: Two peer reviewers that activities such as stream darter during survey efforts and how suggested we expand our discussion of reconfiguration/riparian restoration, this could affect our conclusions the effects of elevated conductivity on bridge and culvert replacement or regarding the status of the species. More aquatic communities by including removal, bank stabilization, and stream specifically, the peer reviewers raised additional information related to the crossing repair and maintenance would the issue of imperfect detection, which vulnerability of salamanders or other improve or restore physical habitat is the inability of the surveyor to detect aquatic organisms. quality for the species and would a species (even if present) due to Our Response: We have added provide an overall conservation benefit surveyor error, low-density or rareness language to address this topic under the to the species. We concur with the peer of the target species, or confounding Factor A. The Present or Threatened reviewer that, under the proposed 4(d) variables such as environmental Destruction, Modification, or rule, generalized stream restoration conditions (e.g., stream flow). The peer Curtailment of its Habitat or Range— designs may not be sufficient to benefit reviewers asked the Service to explain Water Quality Degradation section of the species. For this reason, the Service how it accounted for imperfect this final listing determination. provided references and detailed detection when evaluating the species’ (5) Comment: One peer reviewer descriptions of stream reconfigurations current distribution and status. recommended we discuss the potential in the proposed rule, with an emphasis Our Response: We recognize the threat posed by anthropogenic barriers on stability, ecological function, and importance and significance of (e.g., perched culverts). reconnection with groundwater systems. imperfect detection when conducting Our Response: We added language to (9) Comment: One peer reviewer and surveys for rare or low-density species, address this topic under the Factor E. one other commenter stated that the and we agree that is possible a species Other Natural or Manmade Factors Service needed to clarify potentially can go undetected within a particular Affecting Its Continued Existence— conflicting statements regarding threats survey reach when it is actually present. Restricted Range and Population Size under Factor D (the inadequacy of the However, we are also required, by section of this final listing Surface Mining Control and statute and regulation, to base our determination. Reclamation Act (SMCRA) as an determinations solely on the basis of the (6) Comment: One peer reviewer existing regulatory mechanism) and our best scientific and commercial data suggested that the spatial degree of conclusion that surface coal mining and available. We are confident that the impacts facing the Kentucky arrow reclamation activities conducted in survey data available to us at the time darter could be more accurately accordance with the 1996 biological we prepared our proposed listing estimated using the Kentucky Division opinion (1996 BO) between the Service determination represented the best of Water’s probabilistic sampling data and the Office of Surface Mining scientific and commercial data from the upper Kentucky River basin, as Reclamation and Enforcement (OSM) available. These data were collected by opposed to relying on data generated are unlikely to result in a violation of well-trained, professional biologists, from fixed monitoring sites across the section 9 of the Act. who employed similar sampling species’ range. Our Response: The peer reviewer and techniques (single-pass electrofishing) Our Response: We agree with the peer commenter are correct in stating that we across the entire potential range of the reviewer and have added language to considered existing regulatory Kentucky arrow darter, which included address this topic under the Factor A. mechanisms such as SMCRA to be historical darter locations, random The Present or Threatened Destruction, inadequate in protecting the Kentucky locations, and locations associated with Modification, or Curtailment of its arrow darter and its habitats. Habitats regulatory permitting, such as mining or Habitat or Range section of this final across the species’ range have been transportation. Nearly 245 surveys were listing determination. degraded by water pollution and

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sedimentation associated with coal dispersal events. Most are likely trout represents a widespread, high- mining (e.g., elevated conductivity), and intrapopulational (pool to pool within magnitude threat to the species across there is evidence of recent extirpations the same stream), but a few observations its range. Potential competition from in watersheds impacted by mining (16 on Elisha Creek and Long Fork may nonnative trout is limited to Big Double historical streams since the mid-1990s). provide evidence of dispersal events Creek, and recent surveys in Big Double In the Provisions of the 4(d) Rule (interpopulational). We have added Creek demonstrate that the Kentucky section of the proposed listing rule, we language to address this topic under the arrow darter population is healthy and also stated that surface coal mining and Background—Habitat and Life History stable (see Factor C: Disease or reclamation activities, if conducted in section of this final listing Predation). accordance with existing regulations determination. (16) Comment: One peer reviewer, the and permit conditions, would not result (12) Comment: One peer reviewer Kentucky Division of Forestry, and in violations of section 9 of the ESA. stated that the Service should explain several other commenters provided The 1996 BO is the result of a formal how we estimated abundance and comments on the effectiveness of best section 7 consultation between OSM recruitment of Kentucky arrow darters. management practices (BMP) and and the Service on OSM’s approval of Our Response: Kentucky arrow darter compliance issues related to the State regulatory programs (primacy) abundance per sampling reach was Kentucky Forest Conservation Act. In under SMCRA. In Kentucky, the State estimated based on observed captures general, the peer reviewers and has approved primacy under SMCRA during single-pass electrofishing commenters stated that BMPs were and, therefore, operates under the 1996 surveys. As described in the proposed effective at preventing sediment runoff BO to address adverse effects to rule, these surveys typically involved from logging sites, thereby protecting federally listed species. Under the 1996 qualitative searches of all available water quality and instream habitats. BO, SMCRA regulatory authorities are habitats within a 100- to 150-meter They also explained that BMP exempt from prohibitions of section 9 of survey reach. Evidence of recruitment implementation rates in the upper the ESA if they comply with the terms was based on the presence of multiple Kentucky River basin were higher than and conditions of the 1996 BO. The age-classes within a survey reach. All those reported in the proposed listing terms and conditions of the 1996 BO captured Kentucky arrow darters were determination. Based on these factors, require that each SMCRA regulatory measured (total length in millimeters), the reviewers stated the Service should authority implement and comply with allowing for the discrimination of age reconsider its claim that the Kentucky species-specific protective measures for classes. Forest Conservation Act is an ineffective federally listed species as developed by (13) Comment: One peer reviewer regulatory mechanism. To support their the Service and the regulatory authority. stated that the Service did not mention request, the reviewers provided updated These measures may not eliminate all or discuss the relationship between land and revised inspection data and new adverse effects (‘‘take’’) on the species or use and instream habitat conditions. information related to BMP elements its habitat, but they are intended to Our Response: We do not specifically designed to improve BMP effectiveness. minimize and avoid impacts to the mention the influence of land use and Our Response: We agree with the greatest extent practical and to ensure how it relates to instream habitat commenters that BMP implementation that the proposed activity will not conditions; however, the Factor A rates are relatively high in the upper jeopardize the species’ continued discussion offers multiple examples of Kentucky River basin (greater than 70 existence. how differing land uses (e.g., resource percent), and forestry BMPs are effective (10) Comment: One peer reviewer extraction, residential development) can in protecting water quality and instream stated the Service needs to coordinate affect water quality and physical habitat habitats. However, as we discuss in the with other agencies on protective conditions. Factor D. The Inadequacy of Existing conductivity levels under Kentucky’s (14) Comment: One peer reviewer Regulatory Mechanisms section of this narrative aquatic life standards in order asked us to clarify whether the final listing determination, BMP to protect the species. Kentucky arrow darter was sensitive to compliance at inspected sites in the Our Response: We continue to share high light conditions (loss of riparian upper Kentucky River basin was only 73 information with the Kentucky vegetation and stream canopy). percent between May 2014 and October Department of Environmental Protection Our Response: Increased light 2015. Remedial actions were (KYDEP) on the species’ status and conditions have been shown to be a implemented at most noncompliant threats; however, any future threat to other aquatic organisms, but its sites (74 percent) within a few months, modifications to Kentucky’s narrative impact on the Kentucky arrow darter is but 26 percent of these sites remained aquatic life standards will be the unknown. We have added language to noncompliant. The primary reason for responsibility of KYDEP and the U.S. address this topic under the Factor A. noncompliance was related to the Environmental Protection Agency The Present or Threatened Destruction, inadequate control of sediment laden (USEPA). We will continue to provide Modification, or Curtailment of its runoff from skid trails, roads, and technical assistance when requested. Habitat or Range section of this final landings. Therefore, we agree with the (11) Comment: One peer reviewer listing determination. commenters that forestry BMPs are commented that the Service should (15) Comment: One peer reviewer effective in protecting water quality and explain if recorded Kentucky arrow commented that nonnative rainbow preventing sedimentation; however, darter movements in Elisha Branch, trout may compete with Kentucky arrow these impacts continue to occur within Long Fork, and Hector Branch represent darters for food resources and space. the upper Kentucky River basin due to simple movements within home ranges Our Response: Within Big Double BMP noncompliance. We have (intrapopulational movements from Creek, the only stream occupied by both incorporated new compliance pool to pool) or dispersal events species, nonnative rainbow trout and information provided by the (interpopulational movements). Kentucky arrow darters could complete commenters under the Factor D—The Our Response: We can only speculate for food and space as both feed on Inadequacy of Existing Regulatory as to whether the recorded movements aquatic insects and both occupy similar Mechanisms section of this final listing in these streams represent simple habitats (pools). However, we do not determination. We have also included movements within home ranges or believe that competition from nonnative additional text regarding recent changes

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to Kentucky’s BMP standards, which within the Redbird Ranger District are our final listing determination. The will be more protective of stream privately owned, the commenter actions outlined in the CCA apply only habitats. We agree with the peer believed resource extraction activities in to portions of Kentucky arrow streams reviewer and other commenters that these areas would be exempt from located within the DBNF. The majority BMP compliance rates were higher than National Environmental Policy Act of Kentucky arrow populations those reported in the proposed listing (NEPA) requirements, and these projects (streams) and about 74 percent of the rule, and recent changes to Kentucky’s would not be evaluated as closely for species’ occupied habitat are located in BMP standards will be more protective potential adverse effects to natural areas outside of the DBNF that are not of stream habitats. However, BMP resources as activities occurring in areas covered by the CCA. These populations noncompliance continues to occur at under public ownership. will not benefit from specific some sites (about 26 percent), remedial Our Response: The commenter is conservation measures described in the actions at these sites sometimes take correct that mineral resources (i.e., coal, CCA and will continue to be vulnerable several months to complete, and some natural gas, oil) underlying much of the to a variety of threats (see Factor A: The of these sites (6.5 percent) are never Redbird District of the DBNF are in Present or Threatened Destruction, remediated. private ownership, and that no Federal Modification, or Curtailment of Its (17) Comment: One peer reviewer nexus exists with regard to actions Habitat or Range). recommended that the Service modify associated with these minerals (21) Comment: One commenter the discussion regarding genetic (including coal, oil/gas) in the DBNF. disagreed with our description of roads variation and gene flow because a Because these mineral resources are in on Robinson Forest, a 59.9-km 2 (14,800- detailed study of these factors is lacking. private ownership, oil and gas acre (ac)) experimental forest owned Our Response: We concur with the exploration activities taking place and managed by the University of peer reviewer and have modified our within them would not be subject to Kentucky (UK). The commenter stated text accordingly in the Factor E. Other NEPA, and there would be no that the roads on Robinson Forest are Natural or Manmade Factors Affecting requirement for the DBNF to consult used for forest access and management Its Continued Existence—Restricted with the Service under section 7 of the and should not be described as logging Range and Population Size section of ESA or apply standards of the DBNF’s roads. The same commenter also stated this final listing determination. Land and Resource Management Plan that, in addition to protection from Public Comments (Forest Plan) to these privately held mining provided through the Lands areas. The Service recognizes these Unsuitable for Mining designation in (18) Comment: One commenter stated regulatory gaps (with respect to the Kentucky Administrative that the Service failed to consider how privately held minerals) on the DBNF Regulations (405 KAR 24:040), habitats the Kentucky arrow darter’s habitat is and has added language to the Factor D. within Robinson Forest are protected affected by the surrounding human The Inadequacy of Existing Regulatory from potential habitat disturbance population. This same commenter also Mechanisms section in this final listing associated with private or recreational suggested that mountaintop mining and determination. all-terrain vehicle (ATV) use. fracking were not considered as (20) Comment: One commenter stated Our Response: We agree with the potential threats to the species in the that the recently signed Candidate commenter that roads on Robinson proposed rule, but should have been. Conservation Agreement (CCA) between Forest should not be described as Our Response: We discussed a variety the Service and U.S. Forest Service fails logging roads, and we have revised the of human-induced habitat threats under to create new conservation measures corresponding text under the Population the Factor A. The Present or Threatened that will be implemented on the DBNF Estimates and Status section of this Destruction, Modification, or to protect the Kentucky arrow darter. final rule. Under the Factor D. The Curtailment of its Habitat or Range Our Response: The CCA involves Inadequacy of Existing Regulatory section of this listing determination. In several new conservation measures that Mechanisms section of this final listing that section, we also provided a detailed will benefit the species. Some of these determination, we have added a summary of threats related to fracking measures include (1) the development description of UK’s management and described specific impacts and implementation of a long-term guidelines for Robinson Forest. Under associated with a spill of chemicals management and monitoring program these guidelines, public access to used during the drilling process. for Kentucky arrow darter populations Robinson Forest is controlled, and Mountaintop coal mining is not on the DBNF; (2) an inventory and potential impacts from such activities as mentioned within the proposed rule, mapping project of natural gas lines, oil recreational ATV use are avoided. but any potential impacts associated wells, roads, other facilities, land with mountaintop mining are addressed ownership, and mineral ownership Summary of Changes From the in our detailed discussion of impacts within Kentucky arrow darter Proposed Rule associated with surface coal mining in watersheds on the DBNF; (3) the We have considered all comments the Factor A. The Present or Threatened identification of restoration or and information received during the Destruction, Modification, or enhancement opportunities for open comment period for the proposed Curtailment of its Habitat or Range Kentucky arrow darter streams in rule to list the Kentucky arrow darter as section of this listing determination. coordination with Forest Plan threatened. In this final rule, we have Surface coal mining is a broad category standards, implementing those added species description and life- of coal mining that includes a variety of opportunities as funding and other history information to the background methods, such as area, auger, contour, resources allow; and (4) the initiation of section, and we have revised and and mountaintop mining. an annual Kentucky arrow darter updated the threats discussion (19) Comment: One commenter had conservation meeting between the (Summary of Factors Affecting the concerns over perceived regulatory gaps Service and DBNF to discuss the results Species section). We added new associated with oil and gas development of implementing the CCA. These and information on spawning behavior and (and related infrastructure) on the other conservation measures included the development and viability of eggs, Redbird Ranger District of the DBNF. in the CCA will benefit the species; based on observations made during Because some oil and gas resources however, these actions did not influence captive-propagation efforts by CFI. We

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also clarified information related to the upper Kentucky River basin in and how long it continues (Petty et al. darter movements, discussing the Kentucky. 2015, p. 7). The appearance of larvae in difference between dispersal the laboratory appeared to be delayed by Habitat and Life History (intertributary movement) and simple cool water temperatures (less than movements within the same stream Kentucky arrow darters typically 10 °C), suggesting that cooler (intratributary movement). We added a inhabit pools or transitional areas temperatures may (1) affect egg viability more detailed description of feeding between riffles and pools (glides and and/or larval survivorship or (2) simply behavior, relying on observations made runs) in moderate- to high-gradient, increase development times of eggs and/ for the closely related Cumberland first- to third-order streams with rocky or larvae. Another potential factor arrow darter in Tennessee. With regard substrates (Thomas 2008, p. 6). The related to spawning period is the age to threats, we: species is most often observed near and size of breeding darters. In the —Used new probabilistic data generated some type of cover in depths ranging laboratory, large, older individuals by the Kentucky Division of Water from 10 to 45 centimeters (cm) (4 to 18 spawned earlier and terminated earlier, (KDOW) to demonstrate the spatial in) and in streams ranging from 1.5 to while smaller, younger individuals degree of threats across the species’ 20 meters (m) (4.9 to 65.6 feet (ft)) wide. matured and spawned later. Petty et al. range, During spawning (April to June), the (2015, p. 7) cautioned that hatchery —Added new information summarizing species utilizes riffle habitats with observations are necessarily biased by the vulnerability of salamanders and moderate flow (Kuehne and Barbour the selection and use of mostly larger other aquatic organisms to elevated 1983, p. 71). Kentucky arrow darters individuals in attempts to maximize conductivity, typically occupy streams with production, so these larger individuals —Briefly discussed the potential impact watersheds of 25.9 square kilometers may not reflect the natural variation in of high light conditions (stream (km2) (10 square miles (mi2)) or less, wild populations with greater canopy loss), and many of these habitats, especially in demographic (and environmental) —Discussed the potential threat posed first-order reaches, can be intermittent diversity. by sewage bacteria and parasites, in nature (Thomas 2008, pp. 6–9). Kentucky arrow darters can reach 50 —Incorporated new forestry BMP During drier periods (late summer or mm (2 in) in length by the end of the compliance information and fall), some Kentucky arrow darter first year (Lotrich 1973, pp. 384–385; descriptions of new BMP standards in streams may cease flowing, but the Lowe 1979, pp. 44–48; Kuehne and Kentucky, and species appears to survive these Barbour 1983, p. 71). One-year-olds are —Added text summarizing the threat conditions by retreating into shaded, generally sexually mature and posed by anthropogenic barriers (e.g., isolated pools or by dispersing into participate in spawning with older age perched culverts). larger tributaries (Lotrich 1973, p. 394; classes (Etnier and Starnes 1993, p. Lowe 1979, p. 26; Etnier and Starnes Background 523). Juvenile Kentucky arrow darters 1993, p. 523; ATS 2011, p. 7; Service can be found throughout the channel Species Information unpublished data). but are often observed in shallow water Little information is available on the Species Description and Taxonomy along stream margins near root mats, reproductive behavior of the Kentucky rock ledges, or some other cover. As A thorough account of Kentucky arrow darter; however, general details stream flow lessens and riffles begin to arrow darter life history is presented in were provided by Kuehne and Barbour shrink, most Kentucky arrow darters the preamble to the proposed rule (1983, p. 71), and more specific move into pools and tend to remain (October 8, 2015, 80 FR 60962), and that information can be inferred from studies there even when late autumn and winter information is incorporated here by of the closely related Cumberland arrow rains restore stream flow (Kuehne and reference. The following is a summary darter conducted by Bailey (1948, pp. Barbour 1983, p. 71). of that information. We have 82–84) and Lowe (1979, pp. 44–50). Limited information exists with incorporated new information into the Male Kentucky arrow darters establish regard to upstream or downstream final rule, as appropriate (see Summary territories over riffles and defend a movements of Kentucky arrow darters; of Changes from the Proposed Rule). fanned out depression in the substrate. however, a movement study at Eastern The Kentucky arrow darter, After spawning, it is assumed the male Kentucky University (EKU) and a Etheostoma spilotum Gilbert, is a small continues to defend the nest until the reintroduction project in the DBNF and compressed fish, with a background eggs have hatched. The spawning period suggest that Kentucky arrow darters can color of straw yellow to pale greenish extends from April to June, but peak move considerable distances (Baxter and a body covered by a variety of activity occurs when water temperatures 2015, entire; Thomas 2015a, pers. stripes and blotches. During the reach 13 degrees Celsius (°C) (55 degrees comm.), which we summarize below. spawning season, breeding males Fahrenheit (°F)), typically in mid-April. The EKU study used PIT-tags exhibit vibrant coloration. Most of the Females produce between 200 and 600 (electronic tags placed under the skin) body is blue-green in color, with eggs per season, with tremendous and placed antenna systems (installed scattered scarlet spots and scarlet to variation resulting from size, age, in the stream bottom) to monitor intra- orange vertical bars laterally. condition of females, and stream and inter-tributary movement of The Kentucky arrow darter belongs to temperature (Rakes 2014, pers. comm.). Kentucky arrow darters in Gilberts Big the Class Actinopterygii (ray-finned Captive-propagation efforts by CFI Creek and Elisha Creek, two second- fishes), Order Perciformes, and Family (2010-present) have yielded order tributaries of Red Bird River in Percidae (perches) (Etnier and Starnes observations related to spawning Clay and Leslie Counties (Baxter 2015, 1993, pp. 18–25; Page and Burr 2011, p. behavior and the development and pp. 9–11). PIT-tags were placed in a 569). A similar darter species, the viability of eggs and larvae (Petty et al. total of 126 individuals, and Kentucky Cumberland arrow darter, E. sagitta 2015, pp. 4–7). The spawning period is arrow darter movements were tracked (Jordan and Swain), is restricted to the dependent on several factors, but from May 2013 to May 2014 (Baxter upper Cumberland River basin in laboratory observations suggest that 2015, pp. 15, 19–21, 35–36). Recorded Kentucky and Tennessee, and the water temperature is likely a significant movements ranged from 134 m (439 ft) Kentucky arrow darter is restricted to determinant of when spawning begins (upstream movement) to 4,078 m

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(13,379 ft or 2.5 mi) (downstream the species formerly occurred but has following is a summary of that movement by a female in Elisha Creek). been extirpated. Researchers have information with new information Intermediate recorded movements tagged and released a total of 1,447 added as appropriate (see Summary of included 328 m (1,076 ft) (downstream), Kentucky arrow darters (about 50–55 Changes from the Proposed Rule). 351 m (1,151 ft) (upstream), 900 m mm TL) and have conducted monitoring The Kentucky arrow darter occurred (2,952 ft) (upstream/downstream), 950 on 14 occasions since the initial release historically in at least 74 streams in the m (3,116 ft) (downstream), 1,282 m using visual searches and seining upper Kentucky River basin of eastern (4,028 ft) (downstream), and 1,708 m methods. Tagged darters have been Kentucky (Gilbert 1887, pp. 53–54; (5,603 ft) (downstream). Based on this observed throughout the Long Fork Woolman 1892, pp. 275–281; Kuehne research, we believe it is likely that mainstem, and some individuals have and Bailey 1961, pp. 3–4; Kuehne 1962, most of these documented movements moved considerable distances (up to 1.0 pp. 608–609; Branson and Batch 1972, could best be described as km (0.4 mi)) downstream into Hector pp. 507–514; Lotrich 1973, p. 380; intrapopulational and represent Branch. Based on these results, it is Branson and Batch 1974, pp. 81–83; individual darters moving between clear that young Kentucky arrow darters Harker et al. 1979, pp. 523–761; stream pools of Elisha Creek. In the case can disperse both upstream and Greenberg and Steigerwald 1981, p. 37; of the female arrow darter that moved downstream from their place of origin Branson and Batch 1983, pp. 2–13; unidirectionally from the headwaters of and can move considerable distances. Elisha Creek to its mouth (a distance of Kentucky arrow darters feed primarily Branson and Batch 1984, pp. 4–8; more than 4,000 m (2.5 mi)), this on mayflies (Order Ephemeroptera), Kornman 1985, p. 28; Burr and Warren documented movement could represent with larger darters also feeding on small 1986, p. 316; Measel 1997, pp. 1–105; an interpopulational event (dispersal), crayfishes. Other food items include Kornman 1999, pp. 118–133; Stephens where an individual leaves one larval blackflies, midges, caddisfly 1999, pp. 159–174; Ray and Ceas 2003, population and travels to another larvae, stonefly nymphs, beetle larvae, p. 8; Kentucky State Nature Preserves population (or stream). Further research microcrustaceans, and dipteran larvae Commission (KSNPC) unpublished is needed to differentiate these (Lotrich 1973, p. 381; Etnier and Starnes data). Its distribution spanned portions behaviors. 1993, p. 523). of 6 smaller sub-basins or watersheds Since August 2012, the Kentucky (North Fork Kentucky River, Middle Department of Fish and Wildlife Historical Range and Distribution Fork Kentucky River, South Fork Resources (KDFWR) and CFI have been A thorough account of the Kentucky Kentucky River, Silver Creek, Sturgeon releasing captive-bred Kentucky arrow arrow darter’s historical range is Creek, and Red River) in 10 Kentucky darters into a 1.5-km (0.9 mi) reach of presented in the preamble to the counties (Breathitt, Clay, Harlan, Long Fork, a DBNF stream and first- proposed rule (October 8, 2015, 80 FR Jackson, Knott, Lee, Leslie, Owsley, order tributary to Hector Branch in 60962), and that information is Perry, and Wolfe) (Thomas 2008, p. 3) eastern Clay County, Kentucky, where incorporated here by reference. The (figure 1).

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Current Range and Distribution Bullskin, Buffalo, and Lower Buffalo favorable for reproduction (e.g., low Based on surveys completed since Creek watersheds); siltation, water chemistry at normal • 2006, extant populations of the Silver Creek; levels). Kentucky arrow darter are known from • Sturgeon Creek (Travis, Wild Dog, We are using the following 47 streams in the upper Kentucky River and Granny Dismal Creek watersheds); generalized sets of criteria to categorize basin in eastern Kentucky. These and the relative status of populations of 83 populations are scattered across 6 sub- • Red River (Rock Bridge Fork streams (74 historical and 9 basins (North Fork Kentucky River, watershed). nonhistorical, discovered or established since 2006) included in table 1. Similar Middle Fork Kentucky River, South Population Estimates and Status Fork Kentucky River, Silver Creek, criteria have been used by the Service Sturgeon Creek, and Red River) in 10 The species’ status in all streams of in previous proposed listing rules (76 Kentucky counties: Breathitt, Clay, historical or recent occurrence is FR 3392, January 19, 2011; 77 FR 63440, Harlan, Jackson, Knott, Lee, Leslie, summarized in table 1, below, which is October 16, 2012): Owsley, Perry, and Wolfe Counties organized by sub-basin, beginning at the The status of a population is (Thomas 2008, pp. 3–6; Service southeastern border (upstream end) of considered ‘‘stable’’ if: (1) There is little unpublished data). Populations in eight the basin (North Fork Kentucky River) evidence of significant habitat loss or of these streams have been discovered and moving downstream. In this final degradation; (2) darter abundance has since 2006, and one additional rule, the term ‘‘population’’ is used in remained relatively constant or population (Long Fork, Clay County) a geographical context and not in a increased during recent surveys; or (3) was reestablished through a genetic context, and is defined as all evidence of relatively recent recruitment reintroduction project led by KDFWR. individuals of the species living in one has been documented since 2006. Current populations occur in the stream at a given time. Using the term The status of a population is following Kentucky River sub-basins in this way allows the status, trends, considered ‘‘vulnerable’’ if: (1) There is (and smaller watersheds): and threats to be discussed ample evidence of significant habitat • North Fork Kentucky River comparatively across streams where the loss or degradation since the species’ (Troublesome, Quicksand, Frozen, species occurs. In using this term, we do original capture; (2) there is an obvious Holly, Lower Devil, Walker, and Hell not imply that the populations are decreasing trend in abundance since the Creek watersheds); currently reproducing and recruiting or historical collection; or (3) no evidence • Middle Fork Kentucky River (Big that they are distinct genetic units. We of relatively recent recruitment (since Laurel, Rockhouse, Hell For Certain considered populations of the Kentucky 2006) has been documented. Creek, and Squabble Creek watersheds); arrow darter as extant if live specimens The status of a population is • South Fork Kentucky River (Red have been observed or collected since considered ‘‘extirpated’’ if: (1) All Bird River, Hector Branch, and Goose, 2006, and habitat conditions are known suitable habitat has been

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destroyed or severely degraded; (2) no conditions do not appear to be suitable individuals are transients (fishes live individuals have been observed for reproduction to occur (e.g., elevated originating from another stream that since 2006; or (3) live individuals have conductivity, siltation) and there is occupy a particular habitat for only a been observed since 2006, but habitat supporting evidence that the observed short time).

TABLE 1—KENTUCKY ARROW DARTER STATUS IN ALL STREAMS OF HISTORICAL (74) OR RECENT OCCURRENCE 1 (9; NOTED IN BOLD) IN THE UPPER KENTUCKY RIVER BASIN

1 Current Date of last Sub-basin Sub-basin tributaries Stream County status observation

North Fork ...... Lotts Creek ...... Lotts Creek ...... Perry ...... Extirpated ..... 1890 Troublesome Creek ...... Left Fork ...... Knott ...... Extirpated ..... 1890 Troublesome Creek ...... Perry ...... Extirpated ..... 1890 Mill Creek ...... Knott ...... Extirpated ..... 1995 Laurel Fork (of Balls Fork) ...... Knott ...... Extirpated ..... 1995 Buckhorn Creek (Prince Fork) ... Knott ...... Vulnerable .... 2011 Eli Fork 1 ...... Knott ...... Vulnerable .... 2011 Boughcamp Branch ...... Knott ...... Extirpated ..... 2011 Coles Fork ...... Breathitt, Knott ...... Stable ...... 2011 Snag Ridge Fork ...... Knott ...... Stable ...... 2008 Clemons Fork ...... Breathitt ...... Stable ...... 2013 Millseat Branch ...... Breathitt ...... Extirpated ..... 1976 Lewis Fork ...... Breathitt ...... Extirpated ..... 1959 Long Fork ...... Breathitt ...... Extirpated ..... 1959 Bear Branch ...... Breathitt ...... Extirpated ..... 2015 Laurel Fork (of Buckhorn) ...... Breathitt ...... Extirpated ..... 1976 Lost Creek ...... Breathitt ...... Extirpated ..... 1997 Quicksand Creek ...... Laurel Fork ...... Knott ...... Stable ...... 2014 Baker Branch ...... Knott ...... Extirpated ..... 1994 Middle Fork ...... Knott ...... Stable ...... 2015 Spring Fork 1 ...... Breathitt ...... Vulnerable .... 2013 Wolf Creek ...... Breathitt ...... Extirpated ..... 1995 Hunting Creek ...... Breathitt ...... Vulnerable .... 2013 Leatherwood Creek ...... Breathitt ...... Extirpated ..... 1982 Bear Creek ...... Breathitt ...... Extirpated ..... 1969 Smith Branch ...... Breathitt ...... Extirpated ..... 1995 Frozen Creek ...... Frozen Creek ...... Breathitt ...... Stable ...... 2013 Clear Fork ...... Breathitt ...... Vulnerable .... 2008 Negro Branch ...... Breathitt ...... Vulnerable .... 2008 Davis Creek ...... Breathitt ...... Vulnerable .... 2008 Cope Fork ...... Breathitt ...... Extirpated ..... 1995 Boone Fork ...... Breathitt ...... Extirpated ..... 1998 Holly Creek ...... Holly Creek ...... Wolfe ...... Vulnerable .... 2007 Lower Devil Creek ...... Lower Devil Creek ...... Lee, Wolfe ...... Extirpated ..... 1998 Little Fork 1 ...... Lee, Wolfe ...... Vulnerable .... 2011 Walker Creek ...... Walker Creek ...... Lee, Wolfe ...... Stable ...... 2013 Hell Creek ...... Hell Creek ...... Lee ...... Vulnerable .... 2013 Middle Fork ...... Greasy Creek ...... Big Laurel Creek ...... Harlan ...... Vulnerable .... 2009 Greasy Creek ...... Leslie ...... Extirpated ..... 1970 Cutshin Creek ...... Cutshin Creek ...... Leslie ...... Extirpated ..... 1890 Middle Fork ...... Middle Fork ...... Leslie ...... Extirpated ..... 1890 Rockhouse Creek ...... Laurel Creek 1 ...... Leslie ...... Vulnerable .... 2013 Hell For Certain Creek ...... Hell For Certain Creek ...... Leslie ...... Stable ...... 2013 Squabble Creek ...... Squabble Creek ...... Perry ...... Vulnerable .... 2015 South Fork ...... Red Bird River ...... Blue Hole Creek ...... Clay ...... Stable ...... 2008 Upper Bear Creek ...... Clay ...... Stable ...... 2013 Katies Creek ...... Clay ...... Stable ...... 2007 Spring Creek ...... Clay ...... Stable ...... 2007 Bowen Creek ...... Leslie ...... Stable ...... 2009 Elisha Creek ...... Leslie ...... Stable ...... 2014 Gilberts Big Creek ...... Clay, Leslie ...... Stable ...... 2013 Sugar Creek 1 ...... Clay, Leslie ...... Stable ...... 2008 Big Double Creek ...... Clay ...... Stable ...... 2014 Little Double Creek ...... Clay ...... Stable ...... 2008 Big Creek ...... Clay ...... Extirpated ..... 1890 Jacks Creek ...... Clay ...... Vulnerable .... 2009 Hector Branch ...... Clay ...... Extirpated ..... 2015 Long Fork (of Hector Br.) 1 ..... Clay ...... Stable ...... 2014 Goose Creek ...... Horse Creek ...... Clay ...... Vulnerable .... 2013 Laurel Creek ...... Clay ...... Extirpated ..... 1970 Bullskin Creek ...... Bullskin Creek ...... Clay, Leslie ...... Vulnerable .... 2014 Buffalo Creek ...... Laurel Fork ...... Owsley ...... Stable ...... 2014 Cortland Fork 1 ...... Owsley ...... Vulnerable .... 2014 Lucky Fork ...... Owsley ...... Stable ...... 2014 Left Fork ...... Owsley ...... Stable ...... 2014

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TABLE 1—KENTUCKY ARROW DARTER STATUS IN ALL STREAMS OF HISTORICAL (74) OR RECENT OCCURRENCE 1 (9; NOTED IN BOLD) IN THE UPPER KENTUCKY RIVER BASIN—Continued

1 Current Date of last Sub-basin Sub-basin tributaries Stream County status observation

Right Fork ...... Owsley ...... Vulnerable .... 2009 Buffalo Creek ...... Owsley ...... Vulnerable .... 1969 Sexton Creek ...... Bray Creek ...... Clay ...... Extirpated ..... 1997 Robinsons Creek ...... Clay ...... Extirpated ..... 1997 Sexton Creek ...... Owsley ...... Extirpated ..... 1978 Lower Island Creek ...... Lower Island Creek ...... Owsley ...... Extirpated ..... 1997 Cow Creek ...... Right Fork Cow Creek ...... Owsley ...... Extirpated ..... 1997 Buck Creek ...... Buck Creek ...... Owsley ...... Extirpated ..... 1978 Lower Buffalo Creek ...... Lower Buffalo Creek ...... Lee, Owsley ...... Vulnerable .... 2007 Silver Creek ...... Lee ...... Vulnerable .... 2008 Sturgeon Creek ...... Travis Creek 1 ...... Jackson ...... Vulnerable .... 2008 Brushy Creek ...... Jackson, Owsley .... Extirpated ..... 1996 Little Sturgeon Creek ...... Owsley ...... Extirpated ..... 1996 Wild Dog Creek ...... Jackson, Owsley .... Stable ...... 2007 Granny Dismal Creek 1 ...... Lee, Owsley ...... Vulnerable .... 2013 Cooperas Cave Branch ...... Lee ...... Extirpated ..... 1996 Sturgeon Creek ...... Lee ...... Extirpated ..... 1998 Red River ...... Swift Camp Creek ...... Rockbridge Fork ...... Wolfe ...... Vulnerable .... 2013 1Non-historical occurrence discovered or established since 2006.

In the period 2007–2012, the Service, included quantitative surveys at 80 few individuals observed in Bear KSNPC, and KDFWR conducted a status randomly chosen sites within the Branch were transients originating from review for the Kentucky arrow darter species’ historical range (Service Clemons Fork. (Thomas 2008, pp. 1–33; Service 2012, unpublished data). Kentucky arrow Based on historical records and pp. 1–4). Surveys were conducted darters were observed at only seven survey data collected at more than 200 qualitatively using single-pass sites, including two new localities sites since 2006, the Kentucky arrow electrofishing techniques (Smith-Root (Granny Dismal Creek in Owsley County backpack electrofishing unit) within an and Spring Fork Quicksand Creek in darter has declined significantly approximate 100-m (328-ft) reach. Breathitt County) and one historical rangewide and has been eliminated During these efforts, fish surveys were stream (Hunting Creek, Breathitt from large portions of its former range, conducted at 69 of 74 historical streams, County) where the species was not including 36 of 74 historical streams 103 of 119 historical sites, and 40 new observed during status surveys by (figure 2) and large portions of the basin (nonhistorical) sites (sites correspond to Thomas (2008, pp. 1–33) and Service that would have been occupied individual sampling reaches and more (2012, pp. 1–4). historically by the species (figure 3). than one may be present on a given During 2014–2015, additional Forty-four percent of the species’ stream). Kentucky arrow darters were qualitative surveys (single-pass extirpations (16 streams) have occurred observed at 36 of 69 historical streams electrofishing) were completed at more since the mid-1990s, and the species has (52 percent), 53 of 103 historical sites than 20 sites within the basin. Kentucky disappeared completely from several (52 percent), and 4 of 40 new sites (10 arrow darters were observed in Bear watersheds (e.g., Sexton Creek, South percent). New sites were visited in an Branch, Big Double Creek, Big Laurel Fork Quicksand Creek, Troublesome effort to locate additional populations Creek, Bullskin Creek, Clemons Fork, Creek headwaters). Of the species’ 47 and were specifically selected based on Coles Fork, Cortland Fork, Laurel Fork extant streams, we consider half of these habitat suitability and the availability of Buffalo Creek, and Squabble Creek. populations (23) to be ‘‘vulnerable’’ Based on the poor habitat conditions previous collection records (sites (table 1), and most remaining observed in Bear Branch (e.g., elevated lacking previous collections were populations are isolated and restricted chosen). conductivity, siltation, and embedded From June to September 2013, KSNPC substrates) and its close proximity to to short stream reaches. and the Service initiated a study that Robinson Forest, we suspect that the BILLING CODE 4333–15–P

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Map Location

Kentucky Middle Fork Kentucky

0 10 20 30 40 Miles

I I I I I 0 10 20 30 40 Kilometers j

Figure 2. A summary of Kentucky arrow darter survey results at all historical sites visited between 2007 and 2015. Circles indicate survey sites (reaches) where the species was observed. Triangles indicate survey sites (reaches) where the species was not observed. Black lines indicate sub-basin boundaries; grey lines indicate 4th to 6th order streams.

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Map Location

Sturgeon Creek

NorthFork Kentucky

Kentucky Middle Fork Kentucky

0 10 20 30 40 Maes

I 40 Kilometers

Figure 3. A summary of Kentucky arrow darter survey results at all historical and new sites visited between 2007 and 2014. Circles indicate survey sites (reaches) where the species was observed. Triangles indicate survey sites (reaches) where the species was not observed. Black lines indicate sub-basin boundaries; grey lines indicate 4th to 6th order streams.

BILLING CODE 4333–15–C indicate that Kentucky arrow darters densities at occupied sampling reaches A synopsis of the Kentucky arrow occur in low densities. Sampling in the Buckhorn Creek watershed. darter’s current range and status is reaches where arrow darters were Surveys in 2011 by the DBNF from provided in the preamble to the observed had an average of only 3 Laurel Fork and Cortland Branch of Left proposed rule, and that information is individuals per 100-m (328-ft) reach and Fork Buffalo Creek (South Fork incorporated here by reference. a median of 2 individuals per reach Kentucky River sub-basin) produced Our recent survey data (Thomas 2008, (range of 1 to 10 individuals). ATS slightly higher capture rates (an average pp. 25–27; Service 2012, pp. 1–4) (2011, pp. 4–6) observed similar of 5 darters per 100-m (328-ft) sampling

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reach) (Mulhall 2014, pers. comm.). The imperiled or vulnerable within the extraction (e.g., coal mining, logging, low abundance values (compared to State) (KSNPC 2014, p. 40). Kentucky’s oil/gas well development), land other darters) are not surprising since Comprehensive Wildlife Conservation development, agricultural activities, and Kentucky arrow darters generally occur Strategy (KDFWR 2013, pp. 9–11) inadequate sewage treatment have all in low densities, even in those streams identified the Kentucky arrow darter as contributed to the degradation of where disturbance has been minimal a Species of Greatest Conservation Need streams within the range of the species (Thomas 2015b, pers. comm.). (rare or declining species that requires (Branson and Batch 1972, pp. 513–516; Detailed information on population conservation actions to improve its Branson and Batch 1974, pp. 82–83; size is generally lacking for the species, status). Thomas 2008, pp. 6–7; KDOW 2010, pp. but estimates have been completed for Summary of Factors Affecting the 70–84; KDOW 2013a, pp. 189–214, 337– three streams: Clemons Fork (Breathitt Species 376; KDOW 2013b, pp. 88–94). These County), Elisha Creek (Clay and Leslie Section 4 of the Act (16 U.S.C. 1533), land use activities have led to chemical Counties), and Gilberts Big Creek (Clay and physical changes to stream habitats and Leslie Counties) (Service and its implementing regulations at 50 that have adversely affected the species. unpublished data). Based on field CFR part 424, set forth the procedures Specific stressors have included inputs surveys completed in 2013 by EKU, for adding species to the Federal Lists of dissolved solids and elevation of KSNPC, and the Service, population of Endangered and Threatened Wildlife estimates included 986–2,113 and Plants. Under section 4(a)(1) of the instream conductivity, sedimentation/ individuals (Clemons Fork), 592–1,429 Act, we may list a species based on (A) siltation of stream substrates (excess individuals (Elisha Creek), and 175–358 the present or threatened destruction, sediments deposited in a stream), individuals (Gilberts Big Creek) (ranges modification, or curtailment of its turbidity, inputs of nutrients and reflect 95 percent confidence intervals) habitat or range; (B) overutilization for organic enrichment, and elevation of (Baxter 2015, pp. 14–15, 18–19). commercial, recreational, scientific, or stream temperatures (KDOW 2010, p. Based on observed catch rates and educational purposes; (C) disease or 84; KDOW 2013a, pp. 189–214, 337– habitat conditions throughout the upper predation; (D) the inadequacy of 376). KDOW (2013a, pp. 337–376) Kentucky River basin, the most stable existing regulatory mechanisms; or (E) provided a summary of specific threats and largest populations of the Kentucky other natural or manmade factors within the upper Kentucky River arrow darter appear to be located in the affecting its continued existence. Listing drainage, identifying impaired reaches following streams: may be warranted based on any of the in 21 streams within the Kentucky • Hell For Certain Creek, Leslie above threat factors, singly or in arrow darter’s historical range (table 2). County; combination. Six of these streams continue to support • Laurel and Middle Forks of Factor A: The Present or Threatened populations of the species, but only one Quicksand Creek, Knott County; • Destruction, Modification, or of these populations (Frozen Creek) is Frozen and Walker Creeks, Breathitt Curtailment of Its Habitat or Range considered to be stable (see table 1, and Lee Counties; above). Results of probabilistic surveys • Clemons Fork and Coles Fork, A thorough discussion of Kentucky (i.e., surveys conducted at randomly Breathitt and Knott Counties; arrow darter habitat destruction or • Several direct tributaries (e.g., modification is presented in the selected sites with sites selected in a Bowen Creek, Elisha Creek, and Big preamble to the proposed rule (October statistically valid way) by KDOW Double Creek) of the Red Bird River, 8, 2015, 80 FR 60962), and that demonstrate the spatial degree of threats Clay and Leslie Counties; and information is incorporated here by across the species’ range. Out of 22 • Wild Dog Creek, Jackson and reference. The following is a summary probabilistic sites (streams) visited Owsley Counties. of that information. within the upper Kentucky River basin The Kentucky arrow darter is The Kentucky arrow darter’s habitat in 2003, 18 were considered to be considered ‘‘threatened’’ by the State of and range have been destroyed, impaired (Payne 2016, pers. comm.), Kentucky and has been ranked by modified, and curtailed due to a variety suggesting habitats across the species’ KSNPC as a G2G3/S2S3 species of anthropogenic activities in the upper range are impacted by the specific (imperiled or vulnerable globally and Kentucky River drainage. Resource stressors identified above.

TABLE 2—SUMMARY OF 303(d) LISTED STREAM SEGMENTS WITHIN THE HISTORICAL RANGE OF THE KENTUCKY ARROW DARTER (KDOW 2013a, pp. 337–376)

Impacted stream seg- Stream County ment(s)— Pollutant source Pollutant stream km (stream mi)

Buckhorn Creek ...... Breathitt ..... 0–10.0 Abandoned Mine Lands, Unknown Fecal Coliform (FC), Sediment/Sil- (0–6.8) Sources. tation, Total Dissolved Solids (TDS). Cope Fork (of Frozen Creek) ...... Breathitt ..... 0–3.0 Channelization, Riparian Habitat Sediment/Siltation, TDS. (0–1.9) Loss, Logging, Agriculture, Stream Bank Modification, Sur- face Coal Mining. Cutshin Creek ...... Leslie ...... 15.6–17.2 Riparian Habitat Loss, Stream Bank Sediment/Siltation. (9.7–10.7) Modification, Surface Coal Mining. Frozen Creek * ...... Breathitt ..... 0–22.4 Riparian Habitat Loss, Post-Devel- Sediment/Siltation. (0–13.9) opment Erosion and Sedimenta- tion.

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TABLE 2—SUMMARY OF 303(d) LISTED STREAM SEGMENTS WITHIN THE HISTORICAL RANGE OF THE KENTUCKY ARROW DARTER (KDOW 2013a, pp. 337–376)—Continued

Impacted stream seg- Stream County ment(s)— Pollutant source Pollutant stream km (stream mi)

Goose Creek ...... Clay ...... 0–13.4 Septic Systems ...... FC. (0–8.3) Hector Branch ...... Clay ...... 0–8.8 Unknown ...... Unknown. (0–5.5) Holly Creek * ...... Wolfe ...... 0–9.8 Agriculture, Riparian Habitat Loss, Sediment/Siltation, Unknown. (0–6.2) Stream Bank Modification, Sur- face Coal Mining. Horse Creek * ...... Clay ...... 0–13.4 Riparian Habitat Loss, Managed Sediment/Siltation. (0–8.3) Pasture Grazing, Surface Coal Mining. Laurel Creek ...... Clay ...... 6.1–7.7 Managed Pasture Grazing, Crop Nutrients/Eutrophication. (3.8–4.8) Production. Left Fork Island Creek ...... Owsley ...... 0–8.0 Crop Production ...... Sediment/Siltation. (0–5.0) Long Fork ...... Breathitt ..... 0–7.4 Surface Coal Mining ...... Sediment/Siltation, TDS. (0–4.6) Lost Creek ...... Breathitt ..... 0–14.3 Coal Mining, Riparian Habitat Loss, FC, Sedimentation, TDS, Turbidity. (0–8.9) Logging, Stream Bank Modifica- tion. Lotts Creek ...... Perry ...... 0.6–1.6, 1.9– Riparian Habitat Loss, Land Devel- Sediment/Siltation, TDS, Turbidity. 9.6 opment, Surface Coal Mining, (0.4–1.0, 1.2– Logging, Stream Bank Modifica- 6.0) tion. Quicksand Creek ...... Breathitt ..... 0–27.4, Surface Coal Mining, Riparian Habi- FC, Turbidity, Sediment/Siltation, 34.9–49.6 tat Loss, Logging, Stream Bank TDS. (0–17.0, 21.7– Modification. 30.8) Sexton Creek ...... Clay, 0–27.7 Crop Production, Highway/Road/ Sediment/Siltation, TDS. Owsley. (0–17.2) Bridge Runoff. South Fork Quicksand Creek ...... Breathitt ..... 0–27.2 Riparian Habitat Loss, Petroleum/ Sediment/Siltation, TDS. (0–16.9) Natural Gas Production Activities, Surface Coal Mining. Spring Fork (Quicksand Creek) * ..... Breathitt ..... 5.0–11.1 Abandoned Mine Lands (Inactive), Sediment/Siltation, TDS, Turbidity. (3.1–6.9) Riparian Habitat Loss, Logging, Stream Bank Modification. Squabble Creek * ...... Perry ...... 0–7.6 Land Development, Surface Coal Sediment/Siltation, TDS. (0–4.7) Mining. Sturgeon Creek ...... Lee ...... 12.9–19.6 Riparian Habitat Loss, Crop Pro- Sediment/Siltation. (8.0–12.2) duction, Surface Coal Mining. Swift Camp Creek ...... Wolfe ...... 0–22.4 Unknown ...... Unknown. (0–13.9) Troublesome Creek ...... Breathitt ..... 0–72.6 Surface Coal Mining, Municipal Sediment/Siltation, Specific Con- (0–45.1) Point Source Discharges, Petro- ductance, TDS, Turbidity. leum/Natural Gas Activities. * Stream segment still occupied by Kentucky arrow darters.

Water Quality Degradation column that increases as the hardness in the receiving stream. Stream One threat to the Kentucky arrow concentration of dissolved solids conductivity in mined watersheds can darter is water quality degradation increases), (2) increase sulfates (a be significantly higher compared to caused by a variety of nonpoint-source common dissolved ion with empirical unmined watersheds, and conductivity ¥2 pollutants (contaminants from many formula of SO4 ), and (3) cause wide values can remain high for decades diffuse and unquantifiable sources). fluctuations in stream pH (a measure of (Merricks et al. 2007, pp. 365–373; Within the upper Kentucky River the acidity or alkalinity of water) (Curtis Johnson et al. 2010, pp. 1–2). drainage, coal mining has been the most 1973, pp. 153–155; Dyer and Curtis Elevated levels of metals and other significant historical source of these 1977, pp. 10–13; Dyer 1982, pp. 1–16; dissolved solids (i.e., elevated pollutants, and this activity continues to Hren et al. 1984, pp. 5–34; USEPA 2003, conductivity) in Appalachian streams occur throughout the drainage. pp. 77–84; Hartman et al. 2005, p. 95; have been shown to negatively impact Activities associated with coal mining Pond et al. 2008, pp. 721–723; Palmer biological communities, including have the potential to contribute high et al. 2010, pp. 148–149; USEPA 2011, losses of mayfly and caddisfly taxa concentrations of dissolved salts, pp. 27–44). The coal mining process (Chambers and Messinger 2001, pp. 34– metals, and other solids that (1) elevate also results in leaching of metals and 51; Pond 2004, p. 7; Hartman et al. 2005, stream conductivity (a measure of other dissolved solids that can result in p. 95; Pond et al. 2008, pp. 721–723; electrical conductance in the water elevated conductivity, sulfates, and Pond 2010, pp. 189–198), reduced

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occupancy and conditional abundance macroinvertebrate abundance (Pond et in water chemistry that can seriously of salamanders (Price et al. 2015, pp. 6– al. 2008, pp. 725–726; Pond 2012, p. impact aquatic species (KDOW 2010, 9), and decreases in fish diversity 111), and Johnson et al. (2015, pp. 170– pp. 70–84; KDOW 2013a, pp. 189–214; (Kuehne 1962, pp. 608–614; Branson 171) showed that daily growth rates and KDOW 2013b, pp. 88–94). Nonpoint- and Batch 1972, pp. 507–512; Branson development of a mayfly (Neocleon source pollution may be correlated with and Batch 1974, pp. 81–83; Stauffer and triagnulifer) declined with increasing impervious surfaces and storm water Ferreri 2002, pp. 11–21; Fulk et al. 2003, ionic concentrations. Increased levels of runoff (Allan 2004, pp. 266–267) and pp. 55–64; Mattingly et al. 2005, pp. 59– specific conductance have been shown include sediments, fertilizers, 62; Thomas 2008, pp. 1–9; Service 2012, to influence the behavior (Karraker et al. herbicides, pesticides, animal wastes, pp. 1–4; Black et al. 2013, pp. 34–45; 2008, pp. 728–732) and corticosterone septic tank and gray water leakage, Hitt 2014, pp. 5–7, 11–13; Hitt and levels (a hormone secreted by the pharmaceuticals, and petroleum Chambers 2014, pp. 919–924; Daniel et adrenal cortex that regulates energy, products. al. 2015, pp. 50–61; Hitt et al. 2016, pp. immune reactions, and stress responses) Physical Habitat Disturbance 46–52). of amphibians (Chambers 2011, pp. There is a pattern of increasing 220–222). Embryonic and larval survival Sedimentation (siltation) has been conductivity and loss of arrow darter of amphibians were reduced listed repeatedly by KDOW as the most populations that is evident in the fish significantly at moderate (500 mS/cm) common stressor of aquatic and water quality data from the and high (3,000 mS/cm) specific communities in the upper Kentucky Buckhorn Creek basin (1962 to present) conductance levels (Karraker et al. 2008, River basin (KDOW 2010, pp. 70–84; in Breathitt and Knott Counties. pp. 728–732). KDOW 2013a, pp. 189–214; KDOW Kentucky arrow darters tend to be less Mine drainage can also cause 2013b, pp. 88–94). Sedimentation comes abundant in streams with elevated chemical (and some physical) effects to from a variety of sources, but KDOW conductivity levels (Service 2012, pp. streams as a result of the precipitation identified the primary sources of 1–4; Service 2013, p. 9), and are of entrained metals and sulfate, which sediment as loss of riparian habitat, typically excluded from these streams as become unstable in solution (USEPA surface coal mining, legacy coal conductivity increases (Branson and 2003, pp. 24–65; Pond 2004, p. 7). extraction, logging, and land Batch 1972, pp. 507–512; Branson and Precipitants accumulate on substrates, development (KDOW 2010, pp. 70–84; Batch 1974, pp. 81–83; Thomas 2008, encrusting and cementing stream KDOW 2013b, pp. 88–94). All of these pp. 3–6). Recent range-wide surveys of sediments, making them unsuitable for activities can result in canopy removal, historical sites by Thomas (2008, pp. 3– colonization by invertebrates and channel disturbance, and increased 6) and the Service (2012, pp. 1–4) rendering them unsuitable as foraging or siltation, thereby degrading habitats demonstrated that Kentucky arrow spawning habitat for the Kentucky used by Kentucky arrow darters for both darters are excluded from watersheds arrow darter. feeding and reproduction. when conductivity levels exceed about Oil and gas exploration and drilling Resource extraction activities (e.g., 250 mS/cm. The species was observed at activities represent another significant surface coal mining, legacy coal only two historical sites where source of harmful pollutants in the extraction, logging, oil and gas conductivity values exceeded 250 mS/ upper Kentucky River basin (KDOW exploration and drilling) are major cm, and average conductivity values 2013a, pp. 189–214). Once used, fluid sources of sedimentation in streams were much lower at sites where wastes containing chemicals used in the (Paybins et al. 2000, p. 1; Wiley et al. Kentucky arrow darters were observed drilling and fracking process (e.g., 2001, pp. 1–16; KDOW 2013a, pp. 189– (115 mS/cm) than at sites where the hydrochloric acid, surfactants, 214). Similarly, logging activities can species was not observed (689 mS/cm). potassium chloride) are stored in open adversely affect Kentucky arrow darters Hitt et al. (2016, entire) reported that pits (retention basins) or trucked away and other fishes through removal of conductivity was a strong predictor of to treatment plants or some other riparian vegetation, direct channel Kentucky arrow darter abundance in the storage facility. If spills occur during disturbance, and sedimentation of upper Kentucky River drainage, and transport or releases occur due to instream habitats (Allan and Castillo sharp declines in abundance were retention basin failure or overflow, there 2007, pp. 332–333). Stormwater runoff observed at 258 mS/cm (95 percent is a risk for surface and groundwater from unpaved roads, ATV trails, and confidence intervals of 155–590 mS/cm). contamination. Any such release can driveways represents a significant but Based on the research presented in the cause significant adverse effects to water difficult to quantify source of sediment preamble to the proposed rule and quality and aquatic organisms that that impacts streams in the upper incorporated by reference here, we inhabit these watersheds (Wiseman Kentucky River basin. believe it is clear that the overall 2009, pp. 127–142; Kargbo et al. 2010, Sediment has been shown to damage conductivity level is important in pp. 5,680–5,681; Osborn et al. 2011, pp. and suffocate fish gills and eggs, larval determining the Kentucky arrow darter’s 8,172–8,176; Papoulias and Velasco fishes, bottom-dwelling algae, and other presence and vulnerability, but the 2013, pp. 92–111). organisms; reduce aquatic insect species’ presence is more likely tied to Other nonpoint-source pollutants diversity and abundance; and, what individual metals or dissolved common within the upper Kentucky ultimately, negatively impact fish solids (e.g., sulfate) are present. River drainage with potential to affect growth, survival, and reproduction Determination of discrete conductivity the Kentucky arrow darter include (Berkman and Rabeni 1987, pp. 285– thresholds or the mechanisms through domestic sewage (through septic tank 294; Waters 1995, pp. 5–7; Wood and which the Kentucky arrow darter is leakage or straight pipe discharges) and Armitage 1997, pp. 211–212; Meyer and influenced will require additional study agricultural pollutants such as animal Sutherland 2005, pp. 2–3). (KSNPC 2010, p. 3; Pond 2015, pers. waste, fertilizers, pesticides, and comm.); however, conductivity herbicides (KDOW 2013a, pp. 189–214). Invasion of Hemlock Wooly Adelgid thresholds have been evaluated for other Nonpoint-source pollutants can cause The hemlock woolly adelgid (Adelges aquatic species. Elevated specific increased levels of nitrogen and tsugae), an aphid-like insect native to conductance has been positively phosphorus, excessive algal growths, Asia, represents a potential threat to the correlated with decreased oxygen deficiencies, and other changes Kentucky arrow darter because it has

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the potential to severely damage stands occasionally in minnow traps by nonnative rainbow trout does not pose of eastern hemlocks (Tsuga canadensis) recreational anglers and used as live a threat to the species. that occur within the species’ range. bait, but we believe these activities are In short, our review of available Loss of hemlocks along Kentucky arrow practiced infrequently and do not information indicates that neither darter streams has the potential to result represent a threat to the species. Our disease nor predation is currently a in increased solar exposure and review of the available information does threat to the species or likely to become subsequent elevated stream not indicate that overutilization is a a threat to the Kentucky arrow darter in temperatures, bank erosion, and threat to the Kentucky arrow darter now the future. excessive inputs of woody debris that or likely to become so in the future. Factor D: The Inadequacy of Existing will clog streams and cause channel Factor C: Disease or Predation Regulatory Mechanisms instability and erosion (Townsend and Rieske-Kinney 2009, pp. 1–3). We No specific information is available The Kentucky arrow darter has been expect these impacts to occur in some suggesting that disease is a threat to the identified as a threatened species within Kentucky arrow darter watersheds; Kentucky arrow darter; however, in Kentucky (KSNPC 2014, p. 40), but this however, we do not believe these marginal Kentucky arrow darter streams State designation conveys no legal impacts will be widespread or severe (those with impacts from industrial or protection for the species or its habitat. because eastern hemlocks are not residential development), the Kentucky law prohibits the collection of abundant in all portions of the Kentucky occurrence of sewage-bacteria the Kentucky arrow darter (or other arrow darter’s range, and even where (Sphaerotilus) may a pose a threat with fishes) for scientific purposes without a hemlocks are more common, we expect respect to fish condition and health valid State-issued collecting permit them to be replaced by other tree (Pond 2015, pers. comm.). These (Kentucky Revised Statutes (KRS) sec. species. bacteria are prevalent in many eastern 150.183). Kentucky regulations (301 In summary, habitat loss and Kentucky streams where straight-pipe KAR 1:130, sec. 1(3)) also allow persons modification represent threats to the sewage discharges exist and can often who hold a valid Kentucky fishing Kentucky arrow darter. Severe affect other freshwater organisms. The license (obtained from KDFWR) to degradation from contaminants, presence of these bacteria could also collect up to 500 minnows per day (a sedimentation, and physical habitat indicate the presence of other minnow is defined as any nongame fish disturbance have contributed to pathogens. Gill and body parasites such less than 6 inches in length, with the extirpations of Kentucky arrow darter as flukes (flatworms) and nematodes exception of federally listed species). populations, and these threats continue (roundworms) have been noted in other These existing regulatory mechanisms to impact water quality and habitat species of Etheostoma (Page and provide some protections for the conditions across the species’ range. Mayden 1981, p. 8), but it is unknown species. Contaminants associated with surface if these parasites infest or harm the Streams within UK’s Robinson Forest coal mining (metals, other dissolved Kentucky arrow darter. (Coles Fork, Snag Ridge Fork, and solids), domestic sewage (bacteria, Although the Kentucky arrow darter Clemons Fork) are currently protected nutrients), and agriculture (fertilizers, is undoubtedly consumed by native from the effects of surface coal mining pesticides, herbicides, and animal predators (e.g., fishes, amphibians, and due to a 1990 ‘‘lands unsuitable for waste) cause degradation of water birds), this predation is naturally mining’’ designation (405 KAR 24:040). quality and habitats through increased occurring and a normal aspect of the Streams within Robinson Forest (e.g., conductivity and sulfates, instream species’ population dynamics. Clemons Fork and Coles Fork) are also oxygen deficiencies, excess Nonnative rainbow trout protected from general disturbance by nutrification, and excessive algal (Oncorhynchus mykiss) represent a management guidelines approved by the growths. Sedimentation from surface potential predation threat (Etnier and UK’s Board of Trustees in 2004 (Stringer coal mining, logging, agriculture, and Starnes 1993, p. 346) in one Kentucky 2015, pers. comm.). These guidelines land development negatively affect the arrow darter stream, Big Double Creek provide general land use allocations, Kentucky arrow darter by burying or (Clay County), because KDFWR stocks sustainable allowances for active covering instream habitats used by the up to 1,000 trout annually in the stream, research and demonstration projects species for foraging, reproduction, and with releases occurring in March, April, involving overstory manipulation, sheltering. These impacts can cause May, and October. To assess the allocations of net revenues from reductions in growth rates, disease potential predation of rainbow trout on research and demonstration activities, tolerance, and gill function; reductions Kentucky arrow darters or other fishes, and management and oversight in spawning habitat, reproductive the Service and DBNF surveyed a 2.1- responsibilities (Stringer 2015, pers. success, and egg, larval, and juvenile km (1.3-mile) reach of Big Double Creek comm.). Under these guidelines, public development; modifications of on April 21, 2014, which was 17 days access to Robinson Forest is controlled migration patterns; decreased food after KDFWR’s April stocking event (250 and potential impacts from such availability through reductions in prey; trout). A total of seven rainbow trout activities as recreational ATV use are and reduction of foraging efficiency. were captured, and the gut contents of avoided. Furthermore, these threats faced by the these individuals were examined. Food A significant portion (about 47 Kentucky arrow darter are the result of items were dominated by percent) of the species’ remaining ongoing land uses that are expected to Ephemeroptera (mayflies), with lesser populations are located on the DBNF continue indefinitely. amounts of Plecoptera (stoneflies), and receive management and protection Trichoptera (caddisflies), Diptera (flies), through DBNF’s land and resource Factor B: Overutilization for Decapoda (crayfish), and terrestrial management plan (LRMP) (USFS 2004, Commercial, Recreational, Scientific, or Coleoptera (beetles). No fish remains pp. 7–16) and a recently signed CCA Educational Purposes were observed. Based on all these between the DBNF and the Service (see The Kentucky arrow darter is not factors and the absence of rainbow trout Comment and Response #20 in the believed to be utilized for commercial, from the majority (98 percent) of Summary of Comments and recreational, scientific, or educational Kentucky arrow darter streams Recommendations section). Both of purposes. Individuals may be collected demonstrates that predation by these documents contain conservation

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measures and protective standards that provide any formal mechanism scour, drought), and other stochastic are intended to conserve the Kentucky requiring coordination with, or input disturbances (Soule´ 1980, pp. 157–158; arrow darter on the DBNF. Populations from, the Service or the KDOW Hunter 2002, pp. 97–101; Allendorf and within the DBNF have benefited from regarding the presence of federally Luikart 2007, pp. 117–146). Inbreeding management goals, objectives, and endangered, threatened, or candidate and loss of neutral genetic variation protective standards included in the species, or other rare and sensitive associated with small population size LRMP. Collectively, these streams species. can further reduce the fitness of the contain some of the best remaining In July of 2015, the Office of Surface population (Reed and Frankham 2003, habitats for the species and support Mining Reclamation and Enforcement pp. 230–237), subsequently accelerating some of the species’ most robust published in the Federal Register a population decline (Fagan and Holmes populations. notice of availability for a draft 2006, pp. 51–60). The Kentucky arrow darter and its environmental impact statement Species that are restricted in range habitats are afforded some protection regarding a proposed Stream Protection and population size are more likely to from water quality and habitat Rule (80 FR 42535, July 17, 2015) and suffer loss of genetic diversity due to degradation under the Federal Water the proposed Stream Protection Rule genetic drift, potentially increasing their Pollution Control Act of 1977, itself (80 FR 44436, July 27, 2015). The susceptibility to inbreeding depression, commonly referred to as the Clean preamble for that proposed rule stated decreasing their ability to adapt to Water Act (33 U.S.C. 1251 et seq.); the that the rule would better protect environmental changes, and reducing Federal Surface Mining Control and streams, fish, wildlife, and related the fitness of individuals (Soule´ 1980, Reclamation Act (SMCRA) (30 U.S.C. environmental values from the adverse pp. 157–158; Hunter 2002, pp. 97–101; 1201 et seq.) of 1977; Kentucky’s Forest impacts of surface coal mining Allendorf and Luikart 2007, pp. 117– Conservation Act of 1998 (KRS secs. operations and provide mine operators 146). It is likely that some of the 149.330–355); Kentucky’s Agriculture with a regulatory framework to avoid Kentucky arrow darter populations are Water Quality Act of 1994 (KRS secs. water pollution and the long-term costs below the effective population size 224.71–140); and additional Kentucky associated with water treatment (80 FR required to maintain long-term genetic laws and regulations regarding natural 44436, July 27, 2015; see SUMMARY). and population viability (Soule´ 1980, resources and environmental protection While the OSM proposed rule may pp. 162–164; Hunter 2002, pp. 105– (KRS secs. 146.200–360; KRS sec. 224; provide benefits for the Kentucky arrow 107). The long-term viability of a 401 KAR secs. 5:026, 5:031). While darter in the future, until the rule is species is founded on the conservation these laws have undoubtedly resulted in finalized and implemented, we are of numerous local populations some improvements in water quality unable to evaluate its potential throughout its geographic range (Harris and stream habitat for aquatic life, effectiveness with regard to the 1984, pp. 93–104). These separate including the Kentucky arrow darter, Kentucky arrow darter and its habitat. populations are essential for the species sedimentation and other nonpoint- In summary, degradation of habitat for to recover and adapt to environmental source pollutants continue to pose a the Kentucky arrow darter is ongoing change (Noss and Cooperrider 1994, pp. threat to the species. despite existing regulatory mechanisms. 264–297; Harris 1984, pp. 93–104). The KDOW has not established total maximum daily load (TMDLs) pursuant Factor E: Other Natural or Manmade Climate Change to the Clean Water Act for identified Factors Affecting Its Continued The Intergovernmental Panel on pollutants within portions of the upper Existence Climate Change (IPCC) concluded that warming of the climate system is Kentucky River basin historically Restricted Range and Population Size occupied by the Kentucky arrow darter. unequivocal (IPCC 2014, p. 3). Species TMDLs do not address chemical The disjunct nature of some Kentucky that are dependent on specialized pollutants or sedimentation of aquatic arrow darter populations (figures 2 and habitat types, limited in distribution, or habitats. The Service is also not aware 3, above) likely restricts the natural at the extreme periphery of their range of any other current or future changes to exchange of genetic material between may be most susceptible to the impacts State or Federal water quality or mining populations and could make natural of climate change (see 75 FR 48911, laws that will substantially address the repopulation following localized August 12, 2010); however, while currently observed degradation of water extirpations of the species unlikely continued change is certain, the quality. without human intervention. magnitude and rate of change is Despite the current laws to prevent Populations can be further isolated by unknown in many cases. sediment and other pollutants from anthropogenic barriers, such as dams, Climate change has the potential to entering waterways, nonpoint-source perched culverts, and fords, which can increase the vulnerability of the pollution, originating from mine sites, limit natural dispersal and restrict or Kentucky arrow darter to random unpaved roads, ATV trails, driveways, eliminate connectivity among catastrophic events (McLaughlin et al. logging skid trails, and other disturbed populations (Eisenhour and Floyd 2013, 2002, pp. 6060–6074; Thomas et al. habitats is considered to be a continuing pp. 82–83). Such dispersal barriers can 2004, pp. 145–148) associated with an threat to Kentucky arrow darter habitats. prevent reestablishment of Kentucky expected increase in both severity and Kentucky State laws and regulations arrow populations in reaches where variation in climate patterns with regarding oil and gas drilling are they suffer localized extinctions due to extreme floods, strong storms, and generally designed to protect fresh- natural or human-caused events. The droughts becoming more common (Cook water resources like the Kentucky arrow localized nature and small size of many et al. 2004, pp. 1015–1018; Ford et al. darter’s habitat, but these regulatory populations also likely makes them 2011, p. 2065; IPCC 2014, pp. 58–83). mechanisms do not contain specific vulnerable to extirpation from Estimates of the effects of climate provisions requiring an analysis of intentional or accidental toxic chemical change using available climate models project impacts to fish and wildlife spills, habitat modification, progressive typically lack the geographic precision resources (Kentucky Division of Oil and degradation from runoff (nonpoint- needed to predict the magnitude of Gas et al. 2012, entire). Current source pollutants), natural catastrophic effects at a scale small enough to regulations also do not contain or changes to their habitat (e.g., flood discretely apply to the range of a given

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species. However, data on recent trends factors affecting its continued existence from 47 streams, but these populations and predicted changes for Kentucky (Factor E). continue to be threatened by small (Girvetz et al. 2009, pp. 1–19), and, Anthropogenic activities such as population size, isolation, more specifically, the upper Kentucky surface coal mining, logging, oil/gas fragmentation, climate change, and the River drainage (Alder and Hostetler development, land development, habitat degradation summarized above. 2013, entire), provide some insight for agriculture, and inadequate sewage All of these factors make the species evaluating the potential threat of climate treatment have all contributed to the particularly susceptible to extinction in change to the Kentucky arrow darter. degradation of stream habitats within the future. These models provide estimates of the species’ range (Factor A). These land We find that endangered status is not average annual increases in maximum use activities have led to chemical and appropriate for the Kentucky arrow and minimum temperature, physical changes to stream habitats that darter because we do not consider the precipitation, snowfall, and other continue to affect the species. Specific species’ threats to be so severe that variables. stressors include inputs of dissolved extinction is imminent. Although There is uncertainty about the specific solids and elevation of instream threats to the species are ongoing, often effects of climate change (and their conductivity, sedimentation/siltation of severe, and occurring across the range, magnitude) on the Kentucky arrow stream substrates, turbidity, and inputs populations continue to occupy 47 darter; however, climate change is of nutrients and organic enrichment. scattered streams, 23 of which appear to almost certain to affect aquatic habitats These high-magnitude stressors, support stable populations (see table 1, in the upper Kentucky River drainage of especially the inputs of dissolved solids above). Additionally, a significant Kentucky through increased water and sedimentation, have had profound number of extant Kentucky arrow darter temperatures and more frequent negative effects on Kentucky arrow populations (49 percent) occur droughts (Alder and Hostetler 2013, darter populations and have been the primarily on public lands (i.e., DBNF entire), and species with limited ranges, primary factor in the species’ decline. and Robinson Forest) that are at least fragmented distributions, and small Existing regulatory mechanisms (e.g., partially managed to protect habitats population size are thought to be the Clean Water Act) have provided for used by the species. For example, the especially vulnerable to the effects of some improvements in water quality CCA with the U.S. Forest Service climate change (Byers and Norris 2011, and habitat conditions across the (USFS) for DBNF should provide an p. 18). Thus, we consider climate species’ range; however, recent elevated level of focused management change to be a threat to the Kentucky extirpations have occurred (16 streams and conservation for portions of 20 arrow darter. since the 1990s), and 21 streams within streams that support populations of the In summary, we have determined that the species’ historical range have been Kentucky arrow darter. Based on all other natural and manmade factors, added to Kentucky’s 303(d) list of these factors, the Kentucky arrow darter such as geographical isolation, small impaired streams. The Kentucky arrow does not meet the definition of an population size, and climate change, are darter’s vulnerability to these threats is endangered species. Therefore, on the threats to remaining populations of the even greater due to its reduced range, basis of the best available scientific and Kentucky arrow darter across its range. fragmented populations, and small or commercial information, we are listing The severity of these threats is high declining population sizes (Factor E) the Kentucky arrow darter as a because of the species’ reduced range (Primack 2012, pp. 146–150). The threatened species in accordance with and population size, which result in a effects of certain threats, particularly sections 3(19) and 4(a)(1) of the Act. reduced ability to adapt to habitat degradation and loss, increase in Under the Act and our implementing environmental change. Further, our magnitude when population size is regulations, a species may warrant review of the best available scientific small (Primack 2012, pp. 150–152). listing if it is an endangered or and commercial information indicates The Act defines an endangered threatened species throughout all or a that these threats are likely to continue species as any species that is ‘‘in danger significant portion of its range. Because or increase in the future. of extinction throughout all or a we have determined that the Kentucky significant portion of its range’’ and a arrow darter is a threatened species Determination threatened species as any species ‘‘that throughout all of its range, no portion of We have carefully assessed the best is likely to become endangered its range can be ‘‘significant’’ for scientific and commercial information throughout all or a significant portion of purposes of the definitions of available regarding the past, present, its range within the foreseeable future.’’ ‘‘endangered species’’ and ‘‘threatened and future threats to the Kentucky arrow We find that the Kentucky arrow darter species.’’ See the Final Policy on darter. As described in detail above, the meets the definition of a threatened Interpretation of the Phrase ‘‘Significant Kentucky arrow darter has been species based on the immediacy, Portion of Its Range’’ in the Endangered extirpated from about 49 percent of its severity, and scope of the threats Species Act’s Definitions of historical range (36 of 74 historical identified above. The species’ overall ‘‘Endangered Species’’ and ‘‘Threatened streams), 16 of these extirpations have range has been reduced substantially, Species’’ (79 FR 37577, July 1, 2014). occurred since the mid-1990s, most of the species’ historical habitat populations in nearly half of the has been degraded, and much of the Available Conservation Measures species’ occupied streams are ranked as remaining habitat exists primarily in Conservation measures provided to vulnerable (see table 1, above), and fragmented patches. Despite existing species listed as endangered or remaining populations are fragmented regulatory mechanisms and threatened under the Act include and isolated. Despite existing regulatory conservation efforts, current Kentucky recognition, recovery actions, mechanisms (Factor D) and arrow darter habitats continue to be lost requirements for Federal protection, and conservation efforts, the species or degraded due to surface coal mining, prohibitions against certain practices. continues to be at risk throughout all of logging, oil/gas development, land Recognition through listing results in its range due to the immediacy, severity, development, agriculture, and public awareness and conservation by and scope of threats from habitat inadequate sewage treatment, and it Federal, State, Tribal, and local degradation and range curtailment appears this trend will continue in the agencies; private organizations; and (Factor A and other natural or manmade future. Extant populations are known individuals. The Act encourages

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cooperation with the States and calls for propagation and reintroduction, and and projects funded through Federal recovery actions to be carried out for outreach and education. The recovery of loan programs, which may include, but listed species. The protection required many listed species cannot be are not limited to, roads and bridges, by Federal agencies and the prohibitions accomplished solely on Federal lands utilities, recreation sites, and other against certain activities are discussed, because their range may occur primarily forms of development. in part, below. or solely on non-Federal lands. To The Service, in cooperation with The primary purpose of the Act is the achieve recovery of these species KDFWR, KSNPC, the U.S. Geological conservation of endangered and requires cooperative conservation efforts Survey (USGS), KDOW, DBNF, CFI, and threatened species and the ecosystems on private, State, and Tribal lands. The Appalachian Wildlife Foundation, upon which they depend. The ultimate Following publication of this final Inc., completed a conservation strategy goal of such conservation efforts is the rule, funding for recovery actions will for the Kentucky arrow darter in 2014 recovery of these listed species, so that be available from a variety of sources, (Service 2014, entire). The strategy was they no longer need the protective including Federal budgets, State developed as a guidance document that measures of the Act. Subsection 4(f) of programs, and cost-share grants for non- would assist the Service and its partners the Act calls for the Service to develop Federal landowners, the academic in their conservation efforts for the and implement recovery plans for the community, and nongovernmental species. The strategy is divided into four conservation of endangered and organizations. In addition, pursuant to major sections: (1) Biology and status, threatened species. The recovery section 6 of the Act, the State of (2) listing factors/current threats, (3) planning process involves the Kentucky would be eligible for Federal current conservation efforts, and (4) identification of actions that are funds to implement management conservation objectives/actions. The necessary to halt or reverse the species’ actions that promote the protection or strategy’s first conservation objective decline by addressing the threats to its recovery of the Kentucky arrow darter. addresses current informational needs survival and recovery. The goal of this Information on our grant programs that on the species’ biology, ecology, process is to restore listed species to a are available to aid species recovery can viability, and survey methods, while the point where they are secure, self- be found at: http://www.fws.gov/grants. remaining three conservation objectives sustaining, and functioning components Please let us know if you are address specific threats facing the of their ecosystems. interested in participating in recovery species (Factors A and E, respectively). Recovery planning includes the efforts for the Kentucky arrow darter. Several conservation efforts have been development of a recovery outline Additionally, we invite you to submit completed or are ongoing for the shortly after a species is listed and any new information on this species Kentucky arrow darter, and some of preparation of a draft and final recovery whenever it becomes available and any these efforts have been described plan. The recovery outline guides the information you may have for recovery previously in this listing determination. immediate implementation of urgent planning purposes (see FOR FURTHER Previously mentioned efforts include recovery actions and describes the INFORMATION CONTACT). the development of a CCA with the process to be used to develop a recovery Section 7(a) of the Act requires USFS (see Public Comments, Comment plan. The plan may be revised to Federal agencies to evaluate their 20), a propagation and reintroduction address continuing or new threats to the actions with respect to any species that study by KDFWR and CFI (see species, as new substantive information is listed as an endangered or threatened Background—Habitat and Life History), becomes available. The recovery plan species and with respect to its critical field investigations to determine the also identifies recovery criteria for habitat, if any is designated. Regulations predatory risk posed by nonnative trout review of when a species may be ready implementing this interagency (see Factor C: Disease or Predation), and for reclassification from endangered to cooperation provision of the Act are a movement and ecological study by threatened or for delisting and methods codified at 50 CFR part 402. Section EKU, KDFWR, and the Service (Baxter for monitoring recovery progress. 7(a)(2) of the Act requires Federal 2015, entire). Other important Recovery plans also establish a agencies to ensure that activities they conservation actions include studies on framework for agencies to coordinate authorize, fund, or carry out are not the species’ distribution, status, and their recovery efforts and provide likely to jeopardize the continued population size; movement and estimates of the cost of implementing existence of the species or destroy or microhabitat characteristics; genetics; recovery tasks. Recovery teams adversely modify its critical habitat. If a and response to changes in water (composed of species experts, Federal Federal action may affect a listed quality (e.g., conductivity). Details of and State agencies, nongovernmental species or its critical habitat, the these efforts are provided below. organizations, and stakeholders) are responsible Federal agency must enter In 2013, KSNPC and the Service often established to develop recovery into consultation with the Service. initiated a study to investigate the plans. When completed, the recovery Federal agency actions within the distribution, status, population size, and outline, draft recovery plan, and the species’ habitat that may require habitat use of the Kentucky arrow darter final recovery plan will be available on consultation as described in the within the upper Kentucky River basin. our Web site (http://www.fws.gov/ preceding paragraph include One important aspect of the study was endangered), or from our Kentucky management and any other landscape- to account for imperfect detection when Ecological Services Field Office (see FOR altering activities on Federal lands surveying for the species. Studies that FURTHER INFORMATION CONTACT). administered by the USFS; issuance of do not account for imperfect detection Implementation of recovery actions section 404 Clean Water Act permits by can often lead to an underestimation of generally requires the participation of a the U.S. Army Corps of Engineers; the true proportion of sites occupied by broad range of partners, including other construction and maintenance of gas a species and can bias assessments and Federal agencies, States, Tribes, pipeline and power line rights-of-way sampling efforts (MacKenzie et al. 2002, nongovernmental organizations, by the Federal Energy Regulatory entire; MacKenzie et al. 2005, entire). businesses, and private landowners. Commission; USEPA pesticide From June to September 2013, KSNPC Examples of recovery actions include registration; construction and and the Service visited 80 randomly habitat restoration (e.g., restoration of maintenance of roads or highways by chosen sites (ranging from first- to third- native vegetation), research, captive the Federal Highway Administration; order) across the upper Kentucky River

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basin in order to address these concerns darter abundance and stream habitat degradation is widespread and meet project objectives. As conductivity in the upper Kentucky within the species’ range, and sediment expected, Kentucky arrow darters were River basin (Hitt 2014, entire). has been identified as the most common rare during the study and were observed Nonlinear regression techniques were stressor (KDOW 2013a, pp. 189–214; at only 7 of the 80 sites, including two used to evaluate significant thresholds KDOW 2013b, pp. 88–94). new localities (Granny Dismal Creek in and associated confidence intervals for Sedimentation may originate from areas Owsley County and Spring Fork Kentucky arrow darter abundance outside of the stream channel as a result Quicksand Creek in Breathitt County) related to conductivity levels. As a of land use activities associated with and one historical stream (Hunting contrast to Kentucky arrow darter, Dr. surface coal mining, legacy coal Creek, Breathitt County) where the Hitt also evaluated blackside dace extraction, logging, land development, species was not observed during status occurrence in this regard. Data for the channel relocations, and riparian surveys by Thomas (2008, pp. 1–33) and study were supplied by the Service’s clearing. All of these activities can cause the Service (2012, pp. 1–4). Presently, Kentucky and Tennessee field offices, sedimentation, but they may also lead to KSNPC and the Service are in the data KDFWR, and KSNPC. Nonlinear canopy removal, clearing of riparian analysis stage of this project. regressions indicated a distinct decline vegetation, and elevation of stream In July 2013, EKU, the Service, and in Kentucky arrow darter abundance at temperatures, thereby degrading KSNPC initiated a population estimate 258 mS/cm (95 percent confidence habitats used by Kentucky arrow darters and microhabitat characterization study intervals 155–590 mS/cm), above which for feeding, sheltering, and on Clemons Fork, Breathitt County. The abundances were negligible. Nonlinear reproduction. Sedimentation may also study was designed to estimate the threshold declines for blackside dace originate from areas within the stream Kentucky arrow darter’s current were observed at 343 mS/cm, and 95 channel as a result of channel instability population size and average density percent confidence intervals bounded and bank or stream bed erosion. within Clemons Fork and to compare this relationship between 123–632 mS/ Numerous streams within the species’ current densities with historical cm. Boosted regression results indicated current range have been identified as densities reported by Lotrich (1973). that stream conductivity was the impaired (primarily due to siltation) and Additionally, population densities and strongest predictor in separate analyses have been included on Kentucky’s habitat parameters will be compared to of Kentucky arrow darter and blackside 303(d) list of impaired waters (see table data from Gilberts Big Creek and Elisha dace abundance. Hitt (2014, pp. 7–8) 2, above). Activities such as stream Creek (both DBNF) to aid in delineation concluded that the similar responses of reconfiguration/riparian restoration, of essential habitat characteristics and these ecologically distinct taxa suggest bridge and culvert replacement or development and implementation of the general importance of this water removal, bank stabilization, and stream conservation efforts. Field surveys were quality attribute for stream fish ecology crossing repair and maintenance that completed in August 2013. Data in central Appalachia. follow the provisions of the species- analyses are incomplete, but initial specific 4(d) rule below will improve or 4(d) Rule results include a mean density of 9.69 restore physical habitat quality for the Kentucky arrow darters per sampling Under section 4(d) of the Act, the Kentucky arrow darter and will provide reach and a population estimate of 986 Service has discretion to issue an overall conservation benefit to the to 2,113 darters in Clemons Fork (95 regulations that we find necessary and species. percent confidence intervals). advisable to provide for the The 4(d) rule will not remove or alter Preliminary findings of this study were conservation of threatened wildlife. We in any way the consultation requirement presented at the 2013 Southeastern may also prohibit by regulation, with under section 7 of the Act. However, we Fishes Council Meeting, Lake respect to threatened wildlife, any act expect the 4(d) rule to provide greater Guntersville, Alabama (November 14– that is prohibited by section 9(a)(1) of certainty to Federal agencies and any 15, 2013). the Act for endangered wildlife. third parties (e.g., permit applicants) in Austin Peay State University is Exercising this discretion, the Service the consultation process for activities currently working with KDFWR and the has developed general prohibitions that conducted in accordance with the Service on the first comprehensive are appropriate for most threatened provisions of the 4(d) rule. The assessment of genetic variation and gene species at 50 CFR 17.31 and exceptions consultation process may be further flow patterns across the range of the to those prohibitions at 50 CFR 17.32. streamlined through programmatic Kentucky arrow darter (Johansen et al. While most of the prohibitions of consultations between Federal agencies 2013, pp. 1–3). Approximately 25 §§ 17.31 and 17.32 are appropriate for and the Service for these activities. individuals per population from up to the Kentucky arrow darter, we find that 12 populations across the range of the some activities that would normally be Provisions of the 4(d) Rule species will be genotyped using prohibited under §§ 17.31 and 17.32 are This 4(d) rule exempts from the microsatellite markers. Resulting data necessary for the conservation of this general prohibitions in 50 CFR 17.32 will be used to generate robust estimates species because the species could take that is incidental to the following of effective population sizes and overall benefit from habitat improvements in activities when conducted within population and species’ variability. This first- to third-order streams that are habitats currently occupied by the information is essential to the physically degraded (e.g., unstable Kentucky arrow darter. All of the development of effective conservation stream channels, eroding banks, no activities listed below must be and recovery measures to ensure the canopy cover). Therefore, the Service conducted in a manner that (1) long-term persistence of the species. has determined that a species-specific maintains connectivity of suitable Funding for this project is being section 4(d) rule is appropriate to Kentucky arrow darter habitats, provided through the Service’s section 6 promote the conservation of the allowing for dispersal between streams; program. Kentucky arrow darter. As discussed in (2) minimizes instream disturbance by Through Service-USGS Quick the Summary of Factors Affecting the conducting activities during low-flow Response funding, the USGS Leetown Species section of this rule, the primary periods when possible; and (3) Science Center evaluated the threat to the species is the continuing maximizes the amount of instream cover relationship between Kentucky arrow loss and degradation of habitat. Physical that is available for the species:

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(1) Channel reconfiguration or (4) Repair and maintenance of USFS policy is to increase public awareness of restoration projects that create natural, concrete plank stream crossings in the the effect of a final listing on proposed physically stable, ecologically DBNF that allow for safe vehicle passage and ongoing activities within the range functioning streams (or stream and while maintaining instream habitats, of a listed species. Based on the best wetland systems) that are reconnected reducing bank and stream bed erosion available information, the following with their groundwater aquifers (Parola and instream sedimentation, and actions are unlikely to result in a and Biebighauser 2011, pp. 8–13; Parola improving habitat conditions for the violation of section 9, if these activities and Hansen 2011, pp. 2–7; Floyd et al. species. These concrete plank crossings are carried out in accordance with 2013, pp. 129–135). These projects can have been an effective stream crossing existing regulations and permit be accomplished using a variety of structure in the DBNF and have been requirements, although this list is not methods, but the desired outcome is a used for decades. Over time, the planks comprehensive: natural, sinuous channel with low shear can be buried by sediment or undercut (1) Normal agricultural and stress (force of water moving against the during storm events, or simply break silvicultural practices, including channel); low bank heights and down and decay. If these situations herbicide and pesticide use, which are reconnection to the floodplain; a occur, the DBNF must make repairs or carried out in accordance with any reconnection of surface and replace the affected plank. existing regulations, permit and label groundwater systems, resulting in We believe that these actions and requirements, and best management perennial flows in the channel; riffles activities, while they may have some practices; and and pools composed of existing soil, minimal level of mortality, harm, or (2) Surface coal mining and disturbance to the Kentucky arrow rock, and wood instead of large reclamation activities conducted in darter, are not expected to adversely imported materials; low compaction of accordance with the 1996 BO between affect the species’ conservation and soils within adjacent riparian areas; and the Service and OSM. inclusion of riparian wetlands. First- to recovery efforts. In fact, we believe that However, we believe the following third-order, headwater streams they would have a net beneficial effect activities may potentially result in a reconstructed in this way would offer on the species. Across the species’ violation of section 9 of the Act, suitable habitats for the Kentucky arrow range, instream habitats have been darter and contain stable channel degraded physically by sedimentation although this list is not comprehensive: features, such as pools, glides, runs, and and by direct channel disturbance. The (1) Unauthorized collecting or riffles, which could be used by the activities identified in this rule will handling of the species. species for spawning, rearing, growth, correct some of these problems, creating (2) Destruction or alteration of the feeding, migration, and other normal more favorable habitat conditions for habitat of the Kentucky arrow darter behaviors. the species. (e.g., unpermitted instream dredging, (2) Bank stabilization projects that Based on the rationale above, the impoundment, water diversion or utilize bioengineering methods outlined provisions included in this 4(d) rule are withdrawal, channelization, discharge by the Kentucky Energy and necessary and advisable to provide for of fill material) that impairs essential Environment Cabinet and Kentucky the conservation of the Kentucky arrow behaviors such as breeding, feeding, or Transportation Cabinet (Kentucky darter. Nothing in this 4(d) rule would sheltering, or results in killing or Environmental and Public Protection change in any way the recovery injuring a Kentucky arrow darter. Cabinet and Kentucky Transportation planning provisions of section 4(f) of the (3) Discharges or dumping of toxic Cabinet 2005, pp. 116–128) to replace Act, the consultation requirements chemicals, contaminants, or other pre-existing, bare, eroding stream banks under section 7 of the Act, or the ability pollutants into waters supporting the with vegetated, stable stream banks, of the Service to enter into partnerships Kentucky arrow darter that kills or thereby reducing bank erosion and for the management and protection of injures individuals, or otherwise instream sedimentation and improving the Kentucky arrow darter. impairs essential life-sustaining habitat conditions for the species. We may issue permits to carry out behaviors such as breeding, feeding, or Following these methods, stream banks otherwise prohibited activities sheltering. may be stabilized using live stakes (live, involving threatened wildlife under Questions regarding whether specific vegetative cuttings inserted or tamped certain circumstances. Regulations activities would constitute a violation of into the ground in a manner that allows governing permits are codified at 50 section 9 of the Act should be directed the stake to take root and grow), live CFR 17.32. With regard to threatened to the Kentucky Ecological Services fascines (live branch cuttings, usually wildlife, a permit may be issued for Field Office (see FOR FURTHER scientific purposes, to enhance the willows, bound together into long, cigar- INFORMATION CONTACT). shaped bundles), or brush layering propagation or survival of the species, (cuttings or branches of easily rooted economic hardship, zoological Required Determinations tree species layered between successive exhibition, educational purposes, and National Environmental Policy Act (42 lifts of soil fill). These methods would for incidental take in connection with U.S.C. 4321 et seq.) not include the sole use of quarried rock otherwise lawful activities. There are (rip-rap) or the use of rock baskets or also certain statutory exemptions from We have determined that gabion structures. the prohibited activities, which are environmental assessments and (3) Bridge and culvert replacement/ found in sections 9 and 10 of the Act. environmental impact statements, as removal projects that remove migration It is our policy, as published in the defined under the authority of the barriers (e.g., collapsing, blocked, or Federal Register on July 1, 1994 (59 FR National Environmental Policy Act, perched culverts) or generally allow for 34272), to identify to the maximum need not be prepared in connection improved upstream and downstream extent practicable at the time a species with listing a species as an endangered movements of Kentucky arrow darters is listed, those activities that would or or threatened species under the while maintaining normal stream flows, would not constitute a violation of Endangered Species Act. We published preventing bed and bank erosion, and section 9 of the Act (for this species, a notice outlining our reasons for this improving habitat conditions for the those section 9 prohibitions adopted determination in the Federal Register species. through the 4(d) rule). The intent of this on October 25, 1983 (48 FR 49244).

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Government-to-Government controls as Federal public lands, to Regulation Promulgation Relationship With Tribes remain sensitive to Indian culture, and Accordingly, we amend part 17, to make information available to tribes. In accordance with the President’s subchapter B of chapter I, title 50 of the No tribal lands or other interests are memorandum of April 29, 1994 Code of Federal Regulations, as set forth affected by the rule. (Government-to-Government Relations below: with Native American Tribal References Cited PART 17—ENDANGERED AND Governments; 59 FR 22951), Executive A complete list of references cited in THREATENED WILDLIFE AND PLANTS Order 13175 (Consultation and this rulemaking is available on the Coordination With Indian Tribal Internet at http://www.regulations.gov Governments), and the Department of ■ 1. The authority citation for part 17 in Docket No. FWS–R4–ES–2015–0132 continues to read as follows: the Interior’s manual at 512 DM 2, we and upon request from the Kentucky readily acknowledge our responsibility Ecological Services Field Office (see FOR Authority: 16 U.S.C. 1361–1407; 1531– to communicate meaningfully with FURTHER INFORMATION CONTACT). 1544; and 4201–4245, unless otherwise recognized Federal Tribes on a noted. government-to-government basis. In Authors ■ 2. Amend § 17.11(h) by adding an accordance with Secretarial Order 3206 The primary authors of this final rule entry for ‘‘Darter, Kentucky arrow’’ to of June 5, 1997 (American Indian Tribal are the staff members of the Kentucky the List of Endangered and Threatened Rights, Federal-Tribal Trust Ecological Services Field Office. Wildlife in alphabetical order under Responsibilities, and the Endangered FISHES to read as set forth below: Species Act), we readily acknowledge List of Subjects in 50 CFR Part 17 our responsibilities to work directly Endangered and threatened species, § 17.11 Endangered and threatened with tribes in developing programs for Exports, Imports, Reporting and wildlife. healthy ecosystems, to acknowledge that recordkeeping requirements, * * * * * tribal lands are not subject to the same Transportation. (h) * * *

Scientific Where Common name name listed Status Listing citations and applicable rules

*******

FISHES

******* Darter, Kentucky arrow ...... Etheostoma Wherever T ...... 81 FR [Insert Federal Register page where the document begins]; spilotum. found. October 5, 2016, 50 CFR 17.44(p)4d, 50 CFR 17.95(e) CH.

*******

■ 3. Amend § 17.44 by adding paragraph currently occupied by the Kentucky species for spawning, rearing, growth, (p) to read as follows: arrow darter: feeding, migration, and other normal behaviors. § 17.44 Special rules—fishes. (A) Channel reconfiguration or restoration projects that create natural, * * * * * (B) Bank stabilization projects that use physically stable, ecologically (p) Kentucky arrow darter State-approved bioengineering methods functioning streams (or stream and (Etheostoma spilotum). (specified by the Kentucky Energy and (1) Prohibitions. Except as noted in wetland systems) that are reconnected Environment Cabinet and the Kentucky paragraph (p)(2) of this section, all with their groundwater aquifers. These Transportation Cabinet) to replace prohibitions and provisions of 50 CFR projects can be accomplished using a preexisting, bare, eroding stream banks 17.31 and 17.32 apply to the Kentucky variety of methods, but the desired with vegetated, stable stream banks, arrow darter. outcome is a natural, sinuous channel thereby reducing bank erosion and with low shear stress (force of water (2) Exceptions from prohibitions. instream sedimentation and improving moving against the channel); low bank (i) All of the activities listed in habitat conditions for the species. heights and reconnection to the paragraph (p)(2)(ii) of this section must Following these methods, stream banks be conducted in a manner that: floodplain; a reconnection of surface and groundwater systems, resulting in may be stabilized using live stakes (live, (A) Maintains connectivity of suitable vegetative cuttings inserted or tamped Kentucky arrow darter habitats, perennial flows in the channel; riffles into the ground in a manner that allows allowing for dispersal between streams; and pools composed of existing soil, (B) Minimizes instream disturbance rock, and wood instead of large the stake to take root and grow), live by occurring during low-flow periods imported materials; low compaction of fascines (live branch cuttings, usually when possible; and soils within adjacent riparian areas; and willows, bound together into long, cigar- (C) Maximizes the amount of instream inclusion of riparian wetlands. First- to shaped bundles), or brush layering cover that is available for the species. third-order headwater streams (cuttings or branches of easily rooted (ii) Incidental take of the Kentucky reconstructed in this way would offer tree species layered between successive arrow darter will not be considered a suitable habitats for the Kentucky arrow lifts of soil fill). These methods would violation of section 9 of the Act if the darter and contain stable channel not include the sole use of quarried rock take results from any of the following features, such as pools, glides, runs, and (rip-rap) or the use of rock baskets or when conducted within habitats riffles, which could be used by the gabion structures.

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(C) Bridge and culvert replacement/ ADDRESSES: This final rule is available specialists to ensure that our removal projects that remove migration on the internet at http:// designation is based on scientifically barriers (e.g., collapsing, blocked, or www.regulations.gov and at http:// sound data, assumptions, and analyses. perched culverts) or generally allow for www.fws.gov/verobeach/. Comments We invited these peer reviewers to improved upstream and downstream and materials we received, as well as comment on our listing proposal. We movements of Kentucky arrow darters supporting documentation we used in also considered all other comments and while maintaining normal stream flows, preparing this rule, are available for information received during the preventing bed and bank erosion, and public inspection at http:// comment period. improving habitat conditions for the www.regulations.gov. Comments, Previous Federal Action species. materials, and documentation that we (D) Repair and maintenance of U.S. considered in this rulemaking will be Please refer to the proposed listing Forest Service concrete plank stream available by appointment, during rule for the Miami tiger beetle (80 FR crossings on the Daniel Boone National normal business hours at: U.S. Fish and 79533), published on December 22, Forest (DBNF) that allow for safe vehicle Wildlife Service, South Florida 2015, for a detailed description of passage while maintaining instream Ecological Services Office, 1339 20th previous Federal actions concerning this habitats, reducing bank and stream bed Street, Vero Beach, FL 32960; telephone species. We will also be proposing a erosion and instream sedimentation, 772–562–3909; facsimile 772–562–4288. designation of critical habitat for the Miami tiger beetle under the Act in the and improving habitat conditions for the FOR FURTHER INFORMATION CONTACT: near future. species. These concrete plank crossings Roxanna Hinzman, Field Supervisor, have been an effective stream crossing U.S. Fish and Wildlife Service, South Background structure on the DBNF and have been Florida Ecological Services Office, 1339 The discussion below incorporates used for decades. Over time, the planks 20th Street, Vero Beach, FL 32960, by can be buried by sediment, undercut revisions to the discussion in the telephone 772–562–3909 or by facsimile proposed listing rule for the Miami tiger during storm events, or simply break 772–562–4288. Persons who use a down and decay. If these situations beetle (80 FR 79533; December 22, 2015) telecommunications device for the deaf on taxonomy, distribution, and occur, the DBNF must make repairs or (TDD) may call the Federal Information replace the affected plank. population estimates and status based Relay Service (FIRS) at 800–877–8339. on internal and peer review and public * * * * * SUPPLEMENTARY INFORMATION: comments. Please refer to the proposed Dated: September 19, 2016. Executive Summary listing rule for discussion of the species’ Stephen Guertin, description, habitat, and biology. Why we need to publish a rule. Under Acting Director, U.S. Fish and Wildlife Taxonomy Service. the Endangered Species Act, a species [FR Doc. 2016–23545 Filed 10–4–16; 8:45 am] may warrant protection through listing Determining the taxonomy of a plant BILLING CODE 4333–15–P if it is endangered or threatened or animal and the relationship that this throughout all or a significant portion of plant or animal has with similar, closely its range. Listing a species as an related members of its taxon involves DEPARTMENT OF THE INTERIOR endangered or threatened species can the review of comparative morphology only be completed by issuing a rule. and descriptive characteristics, Fish and Wildlife Service The basis for our action. Under the geographic range and separation of Endangered Species Act, we may members, reproductive capabilities 50 CFR Part 17 determine that a species is an between members, and the genetic [Docket No. FWS–R4–ES–2015–0164; endangered or threatened species based distinctiveness between them. Together 4500030113] on any of five factors: (A) The present the available information is assessed to or threatened destruction, modification, determine the validity of a species. RIN 1018–BA16 or curtailment of its habitat or range; (B) The Miami tiger beetle (Cicindelidia overutilization for commercial, floridana Cartwright) is a described Endangered and Threatened Wildlife recreational, scientific, or educational species in the Subfamily Cicindelinae of and Plants; Endangered Species purposes; (C) disease or predation; (D) the Family Carabidae (ground beetles). Status for the Miami Tiger Beetle the inadequacy of existing regulatory Previously, tiger beetles were (Cicindelidia floridana) mechanisms; or (E) other natural or considered a separate family, but are AGENCY: Fish and Wildlife Service, manmade factors affecting its continued now classified as a subfamily of the Interior. existence. We have determined that the family Carabidae on the basis of recent ACTION: Final rule. threats to the Miami tiger beetle consist genetic studies and other characters of habitat loss, degradation, and (Bousquet 2012, p. 30). The Miami tiger SUMMARY: We, the U.S. Fish and fragmentation, and proposed future beetle is in the C. abdominalis group Wildlife Service (Service), determine development of habitat (Factor A); that also includes the eastern endangered species status under the collection, trade, and sale (Factor B); pinebarrens tiger beetle (C. Endangered Species Act of 1973 (Act), inadequate protection from existing abdominalis), scabrous tiger beetle (C. as amended, for the Miami tiger beetle regulatory mechanisms (Factor D); and a scabrosa), and Highlands tiger beetle (C. (Cicindelidia floridana), a beetle species small isolated population with a highlandensis). New treatments of tiger from Miami-Dade County, Florida. The restricted geographical range, limited beetles (Bousquet 2012, p. 30; Pearson et effect of this regulation will be to add genetic exchange, and restricted al. 2015, p. 138) have also elevated most this species to the Federal List of dispersal potential that is subject to of the previous subgenera of tiger Endangered and Threatened Wildlife demographic and environmental beetles to genera, resulting in a change and extend the Act’s protections to this stochasticity, including climate change of the genus of the tiger beetles in the species. and sea level rise (Factor E). C. abdominalis group from Cicindela to DATES: This rule becomes effective Peer review and public comment. We Cicindelidia. These genera were November 4, 2016. sought comments from independent originally proposed by Rivalier (1954,

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