Vol. 77 Tuesday, No. 200 October 16, 2012

Part IV

Department of the Interior

Fish and Wildlife Service 50 CFR Part 17 Endangered and Threatened Wildlife and Plants; Designation of Critical Habitat for the Cumberland Darter, Rush Darter, Yellowcheek Darter, Chucky , and Laurel Dace; Final Rule

VerDate Mar<15>2010 17:42 Oct 15, 2012 Jkt 229001 PO 00000 Frm 00001 Fmt 4717 Sfmt 4717 E:\FR\FM\16OCR2.SGM 16OCR2 tkelley on DSK3SPTVN1PROD with RULES2 63604 Federal Register / Vol. 77, No. 200 / Tuesday, October 16, 2012 / Rules and Regulations

DEPARTMENT OF THE INTERIOR designation will also be available at the designated as critical habitat for the Fish and Wildlife Service Web site and rush darter in Etowah, Jefferson, and Fish and Wildlife Service Field Office set out above, and may also Winston Counties, Alabama; 164 rkm be included in the preamble and/or at (102 rmi) are being designated as critical 50 CFR Part 17 http://www.regulations.gov. habitat for the yellowcheek darter in [Docket No. FWS–R4–ES–2011–0074; FOR FURTHER INFORMATION CONTACT: For Cleburne, Searcy, Stone, and Van Buren 4500030114] information regarding the Cumberland Counties, Arkansas; 32 rkm (20 rmi) are darter, contact Lee Andrews, Field being designated as critical habitat for RIN 1018–AX76 Supervisor, U.S. Fish and Wildlife the in Greene County, Tennessee; and 42 rkm (26 rmi) are Endangered and Threatened Wildlife Service, Kentucky Fish and Wildlife Office, J.C. Watts Federal Building, 330 being designated as critical habitat for and Plants; Designation of Critical the laurel dace in Bledsoe, Rhea, and Habitat for the Cumberland Darter, W. Broadway, Room 265, Frankfort, KY 40601; telephone 502–695–0468; Sequatchie Counties, Tennessee. Rush Darter, Yellowcheek Darter, The basis for our action. The Act Chucky Madtom, and Laurel Dace facsimile 502–695–1024. For information regarding the rush darter, requires that the Service designate AGENCY: Fish and Wildlife Service, contact Stephen Ricks, Field Supervisor, critical habitat at the time of listing to Interior. U.S. Fish and Wildlife Service, the extent prudent and determinable. We have determined that designation is ACTION: Final rule. Mississippi Fish and Wildlife Office, 6578 Dogwood View Parkway, Suite A, prudent and critical habitat is SUMMARY: We, the U.S. Fish and Jackson, MS 39213; telephone 601–965– determinable (see Critical Habitat Wildlife Service, designate critical 4900; facsimile 601–965–4340 or Bill section below). We prepared an economic analysis. habitat for the Cumberland darter Pearson, Field Supervisor, U.S. Fish and To ensure that we consider the ( susanae), rush darter Wildlife Service, Alabama Fish and (Etheostoma phytophilum), yellowcheek economic impacts, we prepared an Wildlife Office, 1208–B Main Street, economic analysis of the designation of darter (Etheostoma moorei), Chucky Daphne, AL 36526; telephone 251–441– madtom (Noturus crypticus), and laurel critical habitat. We published an 5181; facsimile 251–441–6222. For announcement and solicited public dace (Chrosomus saylori) under the information regarding the yellowcheek Endangered Species Act of 1973, as comments on the draft economic darter, contact Jim Boggs, Field analysis. The analysis found that the amended. In total, approximately 86 Supervisor, U.S. Fish and Wildlife river kilometers (rkm) (54 river miles present value of the total direct Service, Arkansas Fish and Wildlife (administrative) incremental cost of (rmi)) are being designated as critical Office, 110 South Amity Road, Suite habitat for the Cumberland darter, 44 critical habitat designation is $644,000 300, Conway, AR 72032; telephone 501– over the next 20 years assuming a seven rkm (27 rmi) and 12 hectares (ha) (29 513–4470; facsimile 501–513–4480. For acres (ac)) for the rush darter, 164 rkm percent discount rate. Primarily these information regarding the Chucky costs are associated with consultation (102 rmi) for the yellowcheek darter, 32 madtom or laurel dace, contact Mary rkm (20 rmi) for the Chucky madtom, for water quality management activities, Jennings, Field Supervisor, U.S. Fish transportation; coal mining; oil and and 42 rkm (26 rmi) for the laurel dace. and Wildlife Service, Tennessee Fish The effect of this regulation is to natural gas development; agriculture, and Wildlife Office, 446 Neal Street, ranching, and silviculture; dredging, conserve the five species’ habitat under Cookeville, TN 38501; telephone 931– the Endangered Species Act. channelization, impoundments, dams, 525–4973; facsimile 931–528–7075. If and diversions; and recreation at DATES: This rule becomes effective on you use a telecommunications device $10,000 (Industrial Economics, Inc. November 15, 2012. for the deaf (TDD), call the Federal 2012). ADDRESSES: This final rule and the Information Relay Service (FIRS) at Peer review and public comment. We associated final economic analysis are 800–877–8339. sought comments from independent available on the Internet at http:// SUPPLEMENTARY INFORMATION: specialists to ensure that our www.regulations.gov. Comments and Executive Summary designation is based on scientifically materials received, as well as supporting sound data and analyses. We invited documentation used in preparing this Why we need to publish a rule. Under these peer reviewers to comment on our final rule, are available for public the Endangered Species Act, any species conclusions in the critical habitat inspection, by appointment, during that is determined to be an endangered proposal. We also considered all normal business hours, at the U.S. Fish or threatened species requires critical comments and information received and Wildlife Service, Tennessee habitat to be designated, to the during the comment period. Ecological Services Field Office, 446 maximum extent prudent and Neal Street, Cookeville, TN 38501; determinable. Designations and Background telephone 931–528–6481; facsimile revisions of critical habitat can only be It is our intent to discuss in this final 931–528–7075. completed by issuing a rule. rule only those topics directly relevant The coordinates or plot points or both This rule will designate critical to the development and designation of from which the maps are generated are habitat for the Cumberland Darter, Rush critical habitat for the Cumberland included in the administrative record Darter, Yellowcheek Darter, Chucky darter, rush darter, yellowcheek darter, for this critical habitat designation and Madtom, and Laurel Dace. In total, Chucky madtom, and laurel dace under are available at http://www.fws.gov/ approximately 86 river kilometers (rkm) the Endangered Species Act of 1973, as cookeville, http://www.regulations.gov (54 river miles (rmi)) are being amended (Act; 16 U.S.C. 1531 et seq.). at Docket No. FWS–R4–ES–2011–0074, designated as critical habitat for the For more information on the biology and at the Tennessee Fish and Wildlife Cumberland darter in McCreary and and ecology of these five fishes, refer to Office (see FOR FURTHER INFORMATION Whitley Counties, Kentucky, and the final listing rule published in the CONTACT). Any additional tools or Campbell and Scott Counties, Federal Register on August 9, 2011 (76 supporting information that we may Tennessee; 44 rkm (27 rmi) and 12 FR 48722). For information on the five develop for this critical habitat hectares (ha) (29 acres (ac)) are being fishes’ critical habitat, refer to the

VerDate Mar<15>2010 17:42 Oct 15, 2012 Jkt 229001 PO 00000 Frm 00002 Fmt 4701 Sfmt 4700 E:\FR\FM\16OCR2.SGM 16OCR2 tkelley on DSK3SPTVN1PROD with RULES2 Federal Register / Vol. 77, No. 200 / Tuesday, October 16, 2012 / Rules and Regulations 63605

proposed rule to designate critical and Youngs Creek), which are storm water management; inappropriate habitat published in the Federal geographically separated from one placement of culverts, pipes, and Register on October 12, 2011 (76 FR another by an average distance of 30.5 bridges; road maintenance; inadequate 63360). Information on the associated stream km (19 stream mi) (O’Bara 1988, protection of groundwater recharge draft economic analysis for the p. 12; O’Bara 1991, p. 10; Thomas 2007, zones and aquifers; and haphazard proposed rule was published in the p. 3). silvicultural and agricultural practices. Federal Register on May 24, 2012 (77 The primary threat to the Cumberland The persistence of a constant flow of FR 30988). darter is physical habitat destruction or clean groundwater from various springs modification resulting from a variety of has somewhat offset the destruction of Previous Federal Actions human-induced impacts such as the species’ habitat, water quality, and The Cumberland darter, rush darter, siltation, disturbance of riparian water quantity; however, the species’ yellowcheek darter, Chucky madtom, corridors, and changes in channel status still appears to be declining. and laurel dace were listed as morphology (Waters 1995, pp. 2–3; Yellowcheek Darter endangered species under the Act on Skelton 1997, pp. 17, 19; Thomas 2007, August 9, 2011 (76 FR 48722). For the p. 5). The most significant of these The yellowcheek darter (Etheostoma full history of previous Federal actions impacts is siltation (excess sediments moorei) is endemic to the Devil’s, regarding these five species, please refer suspended or deposited in a stream) Middle, South, and Archey forks of the to the final listing rule (76 FR 48722). caused by excessive releases of Little Red River in Cleburne, Searcy, In the June 24, 2010, proposed listing sediment from activities such as Stone, and Van Buren Counties in rule (75 FR 36035) we determined that resource extraction (e.g., coal mining, Arkansas (Robison and Buchanan 1988, designation of critical habitat was silviculture, natural gas development), p. 429). These streams are located prudent for all five species. However, agriculture, road construction, and primarily within the Boston Mountains we found that critical habitat was not urban development (Waters 1995, pp. 2– subdivision of the Ozark Plateau. In determinable at the time and set forth 3; Skelton 1997, pp. 17, 19; KDOW 1962, the construction of a dam on the the steps we would undertake to obtain 2006, pp. 178–185; Thomas 2007, p. 5). Little Red River to create Greers Ferry Reservoir impounded much of the range the information necessary to develop a Rush Darter proposed designation of critical habitat. of this species, including the lower The proposed rule to designate critical The rush darter (Etheostoma reaches of Devil’s Fork, Middle Fork, habitat for these fishes published in the phytophilum) is a narrowly endemic, South Fork, and portions of the main Federal Register on October 12, 2011 rare, and difficult to collect fish species stem Little Red River, thus extirpating (76 FR 63360). Information on the in north-central Alabama. The rush the species from these reaches. Cold associated draft economic analysis for darter occurs in sparse, fragmented, and tailwater releases below the dam the proposed rule to designate critical isolated populations. The species is preclude the yellowcheek darter from habitat was published in the Federal currently known from tributaries and inhabiting the main stem Little Red Register on May 24, 2012 (77 FR 30988). associated spring systems of the Turkey River. The yellowcheek darter inhabits Creek (Jefferson County), Clear Creek high-gradient headwater tributaries with Species Information (Winston County), and Little Cove- clear water; permanent flow; moderate Bristow Creek watersheds (Etowah Cumberland Darter to strong riffles; and gravel, cobble, and County). Most of these tributaries boulder substrates (Robison and The Cumberland darter (Etheostoma contain sites with intact physical Buchanan 1988, p. 429). Prey items susanae) is a narrowly endemic fish characteristics such as riffles, runs, consumed by yellowcheek darters species, occurring in sparse, fragmented, pools, transition zones, and emergent include blackfly larvae, stoneflies, and and isolated populations in the upper vegetation. Rush darters prefer springs mayflies. Cumberland River system of Kentucky and spring-fed reaches of relatively low- Robison and Harp (1981, p. 5) and Tennessee. The species inhabits gradient, small streams (Bart and Taylor estimated the range of the yellowcheek pools or shallow runs of low to 1999, p. 32; Johnston and Kleiner 2001, darter in the South Fork to extend from moderate gradient sections of streams pp. 3–4; Stiles and Blanchard 2001, pp. 2.9 km (1.8 mi) north northeast of with stable sand, silt, or sand-covered 1–4; Bart 2002, p. 1; Fluker et al. 2007, Scotland, Arkansas, to U.S. Highway 65 bedrock substrates (O’Bara 1988, pp. p. 1; Stiles and Mills 2008, pp. 1–4). in Clinton, Arkansas. The Middle Fork 10–11; O’Bara 1991, p. 10; Thomas Rush darters are also found in wetland population was estimated to extend 2007, p. 4). Thomas (2007, p. 4) did not pools and in some ephemeral tributaries from just upstream of U.S. Highway 65 encounter the species in high-gradient of the aforementioned watersheds near Leslie, Arkansas, to 4.8 km (3.0 mi) sections of streams or areas dominated (Stiles and Mills 2008, pp. 2–3). This west of Shirley, Arkansas. The Archey by cobble or boulder substrates. Thomas species also relies heavily on aquatic Fork population extended from its (2007, p. 4) reported that streams vegetation (Fluker et al. 2007, p. 1), confluence with South Castleberry inhabited by Cumberland darters were including both small clumps and dense Creek to immediately downstream of second to fourth order, with widths stands, and root masses of emergent U.S. Highway 65 in Clinton, Arkansas. ranging from 4 to 9 meters (m) (11 to 30 vegetation along stream margins. These The Devil’s Fork population extended feet (ft)) and depths ranging from 20 to habitats tend to be shallow, clear, and from 4.8 km (3.0 mi) north of Prim, 76 centimeters (cm) (8 to 30 inches (in)). cool, with moderate current and Arkansas, to 6.1 km (3.8 mi) east The Cumberland darter’s current substrates composed of a combination of southeast of Woodrow, Arkansas. distribution is limited to 13 streams in sand with silt, muck, gravel, or bedrock. The yellowcheek darter is threatened McCreary and Whitley Counties, The species is found in both urban primarily by factors associated with the Kentucky, and Campbell and Scott and industrial zoned areas (Jefferson present destruction, modification, or Counties, Tennessee (Thomas 2007, pp. County) and rural settings (Winston and curtailment of its habitat or range. 11–12). Occurrences from these streams Etowah Counties). Within these areas, Threats include sedimentation and are thought to form six population the rush darters’ habitat has been nutrient enrichment from clusters (Bunches Creek, Indian Creek, degraded by alteration of stream banks impoundment, water diversion, gravel Marsh Creek, Jellico Creek, Wolf Creek, and bottoms; channelization; inadequate mining, channelization or channel

VerDate Mar<15>2010 17:42 Oct 15, 2012 Jkt 229001 PO 00000 Frm 00003 Fmt 4701 Sfmt 4700 E:\FR\FM\16OCR2.SGM 16OCR2 tkelley on DSK3SPTVN1PROD with RULES2 63606 Federal Register / Vol. 77, No. 200 / Tuesday, October 16, 2012 / Rules and Regulations

instability, and natural gas Laurel Dace Summary of Comments and development. Recommendations The laurel dace (Chrosomus saylori) is Chucky Madtom endemic to seven streams on the We requested written comments from the public on the proposed designation Walden Ridge portion of the The Chucky madtom (Noturus of critical habitat for the Cumberland Cumberland Plateau (Bledsoe, Rhea, and crypticus) is a rare found in darter, rush darter, yellowcheek darter, Sequatchie Counties, Tennessee), where Greene County, Tennessee. Specimens Chucky madtom, and laurel dace during collected in Little Chucky Creek have drainages generally meander eastward two comment periods. The first been found in stream runs with slow to before dropping abruptly down the comment period associated with the moderate current over pea gravel, plateau escarpment and draining into publication of the proposed rule (76 FR cobble, or slab-rock boulder substrates the Tennessee River. Laurel dace are 63360) opened on October 12, 2011, and (Burr et al. 2005, p. 797). These habitats known historically from seven streams closed on December 12, 2011. Based on are sparse in Little Chucky Creek, and in three disjunct systems: Soddy Creek; a request made after the comment the stream affords little loose, rocky three streams that are part of the Sale period had ended, we held a public cover suitable for (Shute et al. Creek system (the Horn and Laurel informational meeting concerning the 1997, p. 8). It is notable that intact branch tributaries to Rock Creek, and critical habitat designation for the riparian buffers are present in the the Cupp Creek tributary to Roaring yellowcheek darter on February 22, locations where Chucky madtoms have Creek); and three streams that are part 2012, in Clinton, Arkansas, where we been found (Shute et al. 1997, p. 9). of the Piney River system (Youngs, took comments on the proposed rule Little is known about Chucky madtom Moccasin, and Bumbee Creeks). In 1991, and notified the public that we would life history and behavior; however, this and in four other surveys (two in 1995, also take public comments on the rule information is available for other similar one in 1996, and one in 2004), laurel through the end of the comment period members of the Noturus group. Dinkins dace were not collected in Laurel for a draft economic analysis. That and Shute (1996, p. 50) found smoky Branch, leading Skelton to the comment period opened May 24, 2012, madtoms (N. baileyi) underneath slab- conclusion that laurel dace had been and closed on June 25, 2012 (77 FR rock boulders in swift to moderate extirpated from the stream (Skelton 30988). Based on a request received current during May to early November. 1997, p. 13; Skelton 2001, p. 126; during the first comment period, we Habitat use shifted to shallow pools Skelton 2009, pers. comm.). held a public hearing in Clinton, over the course of a 1-week period, The current distribution of laurel dace Arkansas, on June 7, 2012. We also coinciding with a drop in water contacted appropriate Federal, State, ° ° encompasses six of seven historical temperature to 7 or 8 C (45 to 46 F), streams; the species is considered and local agencies; scientific and persisted from early November to extirpated from Laurel Branch (see organizations; and other interested May. Eisenhour et al. (1996, p. 43) above). In these six streams, the species parties and invited them to comment on collected saddled madtoms (N. is known to occupy reaches ranging in the proposed rule and draft economic fasciatus) in gravel, cobble, and slab- length from 0.3 to 8.0 rkm (0.2 to 5 rmi). analysis during these comment periods. rock boulders in riffle habitats with Laurel dace have been most often We issued press releases and published depths ranging from 0.1 to 0.3 m (0.3 to collected from pools or slow runs from legal notices in The Times Tribune, 1.0 ft). Based on their limited number of undercut banks or beneath slab-rock Lexington Herald-Leader, Greenville observations, Eisenhour et al. (1996, p. boulders, typically in first or second Sun, Knoxville News Sentinel, The 43) hypothesized that saddled madtoms order, clear, cool (maximum Herald News, Chattanooga Times Free occupy riffles and runs in the daylight temperature 26 °C or 78.8 °F) streams. Press, Birmingham News, Sand hours and then move to pools at night Substrates in laurel dace streams Mountain Reporter, NW Alabamian, and during crepuscular hours (dawn typically consist of a mixture of cobble, Arkansas Democrat-Gazette, Van Buren and dusk) to feed. rubble, and boulders, and the streams County Democrat, The Sun Times, The The current range of the Chucky tend to have a dense riparian zone Stone County Leader, and the Marshall madtom is restricted to an approximate consisting largely of mountain laurel Mountain Wave. However, the Marshall 3-km (1.8-mi) reach of Little Chucky (Skelton 2001, pp. 125–126). Mountain Wave declined to publish a Creek in Greene County, Tennessee. legal notice announcing the first public Degradation from sedimentation, The primary threat to laurel dace comment period. physical habitat disturbance, and throughout its range is excessive During the first comment period, we contaminants threaten the habitat and siltation resulting from agriculture and received 66 comment letters directly water quality on which the Chucky extensive silviculture, especially those addressing the proposed critical habitat madtom depends. Sedimentation could involving inadequate riparian buffers in designation. During the February 22, negatively affect the Chucky madtom by harvest areas and the failure to use best 2012, public informational meeting, 11 reducing growth rates, disease tolerance, management practices (BMPs) during individuals or organizations made and gill function; reducing spawning road construction. Severe degradation comments on the designation of critical habitat, reproductive success, and egg, from sedimentation, physical habitat habitat for the yellowcheek darter. larval, and juvenile development; disturbance, and contaminants threatens During the second comment period, we reducing food availability through the habitat and water quality on which received 54 comment letters addressing reductions in prey; and reducing the laurel dace depends. Sedimentation the proposed critical habitat designation foraging efficiency. Contaminants negatively affects the laurel dace by or the draft economic analysis. During associated with agriculture (e.g., reducing growth rates, disease tolerance, the June 7, 2012, public hearing, four fertilizers, pesticides, herbicides, and and gill function; reducing spawning individuals or organizations made waste) can cause degradation of habitat, reproductive success, and egg, comments on the designation of critical water quality and habitats through larvae, and juvenile development; habitat for the yellowcheek darter. All instream oxygen deficiencies, excess reducing food availability through substantive information provided nutrification, and excessive algal reductions in prey; and reducing during the comment periods has either growths. foraging efficiency. been incorporated directly into this final

VerDate Mar<15>2010 17:42 Oct 15, 2012 Jkt 229001 PO 00000 Frm 00004 Fmt 4701 Sfmt 4700 E:\FR\FM\16OCR2.SGM 16OCR2 tkelley on DSK3SPTVN1PROD with RULES2 Federal Register / Vol. 77, No. 200 / Tuesday, October 16, 2012 / Rules and Regulations 63607

determination or is addressed below. species were found during this survey. Our Response: Historically, there was Comments received were grouped into The rush darter is located in a few an abundance of coal mining in Winston five general issues categories, and are scattered tributaries that drain into the County, Alabama. Recently, coal mining addressed in the following summary south side of Turkey Creek, which is a has accelerated south of the watershed and incorporated into the final rule as considerable distance from the proposed containing critical habitat for the rush appropriate. beltway impact areas. The corridor will darter. However, there are no active Peer Review not cross any rush darter habitat. mines that impact the surface water of The Service determined that the the proposed critical habitat for the rush In accordance with our peer review project would have minimal to no effect darter. The Poplar Springs Mine is policy published on July 1, 1994 (59 FR on the rush darter, which occurs in a active, but is outside the proposed 34270), we solicited expert opinions drainage removed from the action area critical habitat unit, and no impacts to from 15 knowledgeable individuals with (Everson 2012, pers. comm.). the surface waters are believed to occur scientific expertise that included (2) Comment: Predicted effects of (Drennen 2011, pers. obs.). Although familiarity with the five species and the climate change on the rush darter and there are no obvious coal mining geographic region in which the species its habitat should include protection of impacts to surface water, little is known occur. We received responses from three aquifers and recharge areas of about groundwater impacts within the of the peer reviewers. groundwater input and corresponding aquifer. These types of effects are We reviewed all comments received higher water temperatures. untimely in expressing themselves and from the peer reviewers for substantive Our Response: The information may not be known for many years, if issues and new information regarding currently available on the effects of indeed they do occur. critical habitat for the five fishes. The global climate change and increasing peer reviewers generally concurred with Comments from States temperatures does not make sufficiently our methods and conclusions, and precise estimates of the location and provided additional information, Section 4(i) of the Act states, ‘‘the magnitude of the effects. We are also not clarifications, and suggestions to Secretary shall submit to the State currently aware of any climate change improve the final critical habitat rule. agency a written justification for his information specific to the habitat of the Peer reviewer comments are addressed failure to adopt regulations consistent rush darter related to temperatures of in the following summary and with the agency’s comments or groundwater outflows and stormwater incorporated into the final rule as petition.’’ We received one comment inflows that are or would become appropriate. from the Kentucky Department of Fish For the Cumberland darter, rush important to the species in the future. and Wildlife Resources (KDFWR) darter, and Chucky madtom, the peer Therefore, we are unable to determine related to road crossings and culverts reviewers agreed we relied on the best what additional threats and acting as threats to the Cumberland scientific information available, corresponding appropriate actions to darter. This comment was incorporated accurately described the species and its include in the final critical habitat for into this final rule. We did not receive habitat requirements (primary the rush darter or the other fishes in this any other substantive comments from constituent elements (PCEs)), accurately rule to address the effects of this aspect the States (Alabama, Arkansas, characterized the reasons for the of climate change. Kentucky, or Tennessee) regarding the species’ decline and the threats to its (3) Comment: The critical habitat proposed rule. No official position was habitat, and concurred with our critical designated for the rush darter in the expressed by the States on the critical habitat selection criteria. We did not headwaters in Unit 2 should be habitat designation. receive any comments from peer expanded to adjacent areas and include (5) Comment: The KDFWR reviewers related to the yellowcheek the wetland on the western edge. commented that culverts and darter or laurel dace. We respond to all Our Response: Comment has been impassable road crossings (fords) could substantive comments below. noted and after further analysis of the act as barriers to dispersal for information within Service files and Cumberland darters, thereby Peer Reviewer Comments that provided by the commenter, the contributing to population (1) Comment: The Northern Beltline wetland on the western edge of Unit 2 fragmentation and reduced gene flow Corridor will cross and impact the has been included in the final critical among and between populations. proposed rush darter critical habitat habitat designation for the rush darter. Our Response: We agree that throughout its range in Jefferson County, This area contains the physical and impassable road crossings and culverts Alabama, and stimulate growth and biological features essential to the can limit or prevent natural dispersal of development throughout the area. conservation of the species (PCEs 1–3) Cumberland darters, which can lead to Our Response: The Northern Beltline and which may require special population fragmentation and reduced Corridor has a Federal nexus through management and protection. As a result gene flow. We discussed this potential the Federal Highway Administration of these changes, critical habitat threat (Factor E) in the final listing and (FHA). The Service has provided official designation has increased by an proposed critical habitat rules, and we comment and evaluated the potential additional 85.8 m (0.05 mi.) and 0.13 ha summarized our current knowledge of effects of the Beltline with respect to the (0.32 ac) in Unit 2 for the rush darter. Cumberland darter dispersal behavior in vermilion darter (Etheostoma (4) Comment: One peer reviewer the Physical and Biological Features chermockii), darter mentions that there are active strip section of this final critical habitat rule. (Etheostoma nuchale), rush darter mines in the area of the proposed rush (Etheostoma phytophylum), and other darter critical habitat in Doe and Public Comments trust resources in accordance with Wildcat Branch, Winston County, Landowner Rights section 7 of the Act and the Fish and Alabama. In the Energy Supply, Wildlife Coordination Act (16 U.S.C. Distribution, or Use determination, the (6) Comment: The proposed 661 et seq.). Species surveys were Service only mentions that coal mining designation will harm private conducted during the period of August occurs or could occur in Cumberland landowners in Arkansas through 29–30, 2011. No federally protected darter units. increased government regulation, and

VerDate Mar<15>2010 17:42 Oct 15, 2012 Jkt 229001 PO 00000 Frm 00005 Fmt 4701 Sfmt 4700 E:\FR\FM\16OCR2.SGM 16OCR2 tkelley on DSK3SPTVN1PROD with RULES2 63608 Federal Register / Vol. 77, No. 200 / Tuesday, October 16, 2012 / Rules and Regulations

will add unnecessary bureaucracy in the Our Response: When we issue a U.S.C. 1251 et seq.) to construct a dam use of surface waters. proposed rule, we want to ensure for the races, and may develop a habitat Our Response: The designation of widespread knowledge and opportunity conservation plan that would allow critical habitat will not increase for the public to comment, particularly incidental taking of the species under government regulation of private land in among those who may be potentially section 10(a)(1)(B) of the Act. Both of Arkansas. The effects of private affected by the action. The proposed these actions would lead to section 7 activities are not subject to the Act’s designation for yellowcheek darter consultations with the Service. section 7 consultation requirements covered portions of four Arkansas However, conservation measures that unless they are connected to a Federal counties; therefore, it was impossible to the Service would recommend to action. Federal activities conducted in personally contact all landowners in the prevent adverse effects to the species or adjacent to areas designated as area. However, we attempted to ensure would also most likely prevent adverse critical habitat are already subject to that as many people as possible would modification of critical habitat and section 7 consultation requirements of be aware of the proposed designation would occur regardless of critical the Act because of the presence of one through distribution of press releases to habitat designation. It is, therefore, or more species currently listed under all major media in the affected area, unlikely that critical habitat designation the Act. Most normal operations for including those in State capitols and itself would affect the races by rearing of livestock, or for other land major cities; publication of newspaper preventing horses from crossing the uses common to the upper Little Red notices; and direct notification of river or preventing the event from River watershed in Arkansas, do not affected State and Federal agencies, occurring. Therefore critical habitat require Federal permits or actions. We environmental groups, major industries, designation is not expected to affect the do not anticipate that this designation State Governors, Federal and State regional economy. will impose any additional direct elected officials, and representatives (10) Comment: Multiple commenters regulatory burdens to private associated with the National state generally that the DEA does not landowners in Arkansas. Championship Chuck Wagon Races (see adequately address the economic (7) Comment: The designation of Previous Federal Actions, above). We impacts of proposed critical habitat critical habitat for the yellowcheek continued to accept all comments designation for the yellowcheek darter darter will involve establishment of received after the initial public on cattle ranching, farming, silviculture, streamside buffers, exclusion of cattle comment period ended to ensure that all natural gas and oil exploration and from designated critical habitat through interested parties would have the development, and recreational installation of new fencing, or taking of opportunity to comment on the activities. The commenters request that private land by the Federal government. proposed designation. Further, although more studies be done on the economic Our Response: The designation of the request for a public hearing was critical habitat does not affect land impacts of the proposed designation. made after the deadline for such Multiple commenters suggest that the ownership or establish a refuge, requests, we held a public information wilderness, reserve, preserve, or other conservation measures that may result meeting on February 22, 2012, and a from the rule would put a significant conservation area. Critical habitat public hearing on June 7, 2012, designation does not regulate private burden on small ranching operations following the publication that made and other economic activities. actions on private lands or confiscate available the draft economic analysis private property. It does not affect Commenters specifically mention the (77 FR 30988). In short, we have following measures as being costly and individuals, organizations, States, local complied with or exceeded all of the potentially detrimental to their governments or other non-Federal notification requirements of the Act. entities that do not require Federal economic well-being: installation of permits or funding. Such designation Economic Impacts and Economic fencing along the river to prevent access does not allow the government or public Analysis by livestock; prohibition of bank to access private lands. (9) Comment: Multiple commenters stabilization activities; and prohibition The designation of critical habitat state that designation of critical habitat on using river water for irrigation does not create streamside buffers or for the yellowcheek darter would purposes. impose requirements to fence livestock negatively affect the National Our Response: As described in section or other from streams. Waters of Championship Chuck Wagon Races by 2.3.2 and Appendix D of the DEA, the navigable streams, such as those preventing horses from crossing the incremental impacts of critical habitat designated as critical habitat for the river or by preventing the event from designation are expected to be limited to yellowcheek darter, are considered occurring in the future. Additional any additional administrative costs of public waters by the State of Arkansas. comments state that the draft economic section 7 consultations. Voluntary The designation includes river channels analysis (DEA) fails to consider the conservation measures suggested by the within the ordinary high water line, impacts of designation on the local Service would be recommended which would not include adjacent economy of Van Buren County, regardless of critical habitat designation, private properties. Arkansas, where the event takes place. in order to avoid adverse effects to the The commenters state that if the event species. Therefore, it is unlikely that Procedural and Legal Considerations is cancelled, impacts would include loss critical habitat designation itself would (8) Comment: Landowners have not of business for local restaurants, motels, affect ranching, farming, silviculture, been contacted and given the grocery stores, gas stations, and feed natural gas and oil exploration and opportunity to respond to the proposed stores, and corresponding losses in local development, or recreational activities designation. Most landowners (in the and State tax revenues. through conservation recommendations Little Red River watershed, Arkansas) Our Response: As stated in section such as installing fencing, bank and the people of Arkansas did not 3.2.5 of the DEA, the Service anticipates stabilization, or prohibiting use of water know of the comment deadline; that the landowner who hosts the 2012 for irrigation purposes. therefore, the comment period should National Championship Chuck Wagon (11) Comment: One commenter be extended and public hearings Races could apply for a permit under expresses concern that designation of conducted. section 404 of the Clean Water Act (33 critical habitat would hamper local fire

VerDate Mar<15>2010 17:42 Oct 15, 2012 Jkt 229001 PO 00000 Frm 00006 Fmt 4701 Sfmt 4700 E:\FR\FM\16OCR2.SGM 16OCR2 tkelley on DSK3SPTVN1PROD with RULES2 Federal Register / Vol. 77, No. 200 / Tuesday, October 16, 2012 / Rules and Regulations 63609

department use of river water for rural activities is expected to result from the expect any changes in economic activity fire fighting and pump testing. critical habitat designation. levels or the management of economic Our Response: The local fire (14) Comment: Multiple commenters activities to result from critical habitat departments’ use of river water would express support for the designation of designation for the five fishes. Absent be unlikely to result in adverse critical habitat for the laurel dace in these changes, we do not expect the modification of critical habitat due to Tennessee as they believe the designation to result in any incremental the small amounts of water used for designation would help prevent the economic benefits, such as water quality such activities and the fact that no development of new coal operations improvements, recreational Federal permit is required for these near Dayton, TN. Specifically, the opportunities, and increased property actions. Because there is no Federal comments state that proposed coal values. The DEA does, however, note permit required, there is no Federal mining operations in the area, if that conservation for these species nexus and no section 7 consultation initiated, would negatively affect the undertaken due to the listing (even required for these actions. Therefore, it laurel dace and other species. One absent the designation of critical is unlikely that critical habitat would comment states that the area where the habitat) may generate the types of generate recommendations that would laurel dace is found is located very close benefits described in these comments. hamper local fire departments’ use of to a ‘‘proposed coal processing plant river water. location on Ogden Road, Dayton TN by Best Scientific Information (12) Comment: Multiple commenters Iron Properties.’’ (16) Comment: Critical habitat express concern that their land values Our Response: The DEA discusses designation for the yellowcheek darter will be negatively impacted by the known coal mining activity in was not based on reliable scientific data designation of critical habitat and that Tennessee in section 3.2.2. Data from and not enough habitat area was the DEA does not take into account the the Office of Surface Mining surveyed. impact of critical habitat designation on Reclamation and Enforcement (OSMRE) Our Response: The Act requires the livelihoods and property values. indicate that there are two pending Secretary of the Interior to use the best Our Response: The activities that may permits for coal mining activities in the scientific and commercial data available occur on a parcel of land are not Dayton area of Rhea County, TN. when designating critical habitat for a expected to be limited by the However, only one of these potential species. designation of critical habitat because projects occurs within a watershed In fulfilling this requirement, we critical habitat is only designated below containing laurel dace critical habitat. received and used information on the the ordinary high water mark of streams As indicated in the DEA, this project is biology, ecology, distribution, and most activities occurring on lands located in the watershed containing abundance, status, and trends of species adjacent to streams do not require proposed critical habitat Unit 4 for the from a wide variety of sources. These Federal actions that would require laurel dace. As indicated in Exhibit 3– sources include status surveys, section 7 consultation. Therefore, direct 4 of the DEA, it is expected that the biological assessments, and other reductions in land value due to the Service will consult on this project with unpublished material (that is, ‘‘gray designation are not expected. However, OSMRE under the Local Interagency literature’’) from State natural resource it is true that section 2.3.2 of the DEA Working Agreement described in agencies and natural heritage programs, describes the potential indirect section 3.2.2 of the DEA. However, Tribal governments, other Federal regulatory uncertainty or stigma effect because conservation measures agencies, consulting firms, contractors, that the designation of critical habitat suggested by the Service would be and individuals associated with may have on property values. However, recommended regardless of critical professional organizations and higher due to uncertainty surrounding the habitat, in order to avoid adverse effects educational institutions. We also use likelihood and extent of such indirect to the species, it is unlikely that critical published articles from professional impacts, these potential effects are habitat will generate any additional journals. Service biologists are required considered speculative. The uncertainty recommendations that will prevent the to gather, review, and evaluate regarding the regulatory requirements development of new coal operations information from these sources prior to associated with critical habitat may near Dayton, TN. undertaking listing, recovery, diminish as section 7 consultations are (15) Comment: Multiple commenters consultation, and permitting actions. completed and additional information elaborate on the potential benefits of the Additionally, Service biologists becomes available on the effects of proposed designation. At least one of surveyed most of the areas proposed as critical habitat on specific activities. these commenters suggests that the critical habitat for the yellowcheek (13) Comment: One commenter long-term economic benefits of darter as part of a 2004 threats questioned how the DEA forecasts a designation are not adequately assessment for the endangered speckled value of $140,000 for impacts relating to addressed in the proposed rule and pocketbook mussel (Lampsilis streckeri) the designation of critical habitat for the DEA. Commenters suggest the indirect and yellowcheek darter (Davidson and yellowcheek darter. benefits of critical habitat designation Wine 2004). Our Response: As noted in Exhibit include: water quality and supply ES–4 of the DEA, the present value of improvements, opportunities to generate Factors Affecting the Species the total incremental costs of critical additional recreation-based economic (17) Comment: One commenter stated habitat designation for the yellowcheek activities (park visits, hiking, biking, that the Cumberland darter is threatened darter is $134,000 over the next 20 fishing, camping, boating, and service by degradation of water quality from years, assuming a 7 percent discount industry), regional small business large surface coal mines in the northern rate. These costs reflect additional growth (recreational equipment coalfields of Scott and Campbell administrative effort as part of future industry, lodging industry, food Counties, Tennessee. In addition to this section 7 consultations in order to industry, gas stations, and other general concern, the commenter was consider the potential for activities to services), increased property values, and aware of selenium contamination within result in adverse modification of critical increased tax revenues. these same watersheds and was aware of habitat. No change in economic activity Our Response: As detailed in section several notices of violation from the levels or the management of economic 3.4 of the DEA, the analysis does not Tennessee Department of Environment

VerDate Mar<15>2010 17:42 Oct 15, 2012 Jkt 229001 PO 00000 Frm 00007 Fmt 4701 Sfmt 4700 E:\FR\FM\16OCR2.SGM 16OCR2 tkelley on DSK3SPTVN1PROD with RULES2 63610 Federal Register / Vol. 77, No. 200 / Tuesday, October 16, 2012 / Rules and Regulations

and the OSMRE regarding degradation management activities that could clarified that Little Chucky Creek is the of water quality and impacts to aquatic ameliorate the threat. entire current range (but not the entire species within these watersheds. The (19) Comment: One commenter raised historic range) of the Chucky madtom in commenter feared that current mining the possibility that agricultural practices the Criteria Used to Identify Critical activities and issuance of new permits pose a threat to the Chucky madtom by Habitat section. would cause further degradation to fish eliminating riparian buffers, warming (3) We updated the total number of and wildlife habitats in Campbell and stream temperatures, and introducing river kilometers for the Cumberland Scott Counties. fertilizer into the water. darter unit 1, and all four yellowcheek Our Response: We concur with the Our Response: We agree with the darter units, due to a change in mapping commenter that large surface coal mine commenter that agriculture can pose a methodology. The beginning and ending operations in Campbell and Scott threat to the Chucky madtom. We have points of critical habitat, as well as the Counties, Tennessee, are a potential included additional text in the Special unit descriptions (as described in the threat to the Cumberland darter, and Management Considerations or proposed critical habitat rule) remain have the potential to degrade water Protection section (below) that identifies the same. The change in mapping quality of Cumberland darter streams in the threat and lists potential results from standardizing methods these watersheds. Streams associated management activities that could used to estimate the unit lengths with surface coal mining and valley fills ameliorate the threat. designated as critical habitat for all five are typically characterized by elevated (20) Comment: Two commenters species. This methodology better conductivity, elevated total dissolved raised the concern that coal exploration follows the meander of the river channel solids, and increased concentrations of in the Rock Creek Lands Unsuitable for and results in an additional 0.5 river sulfate, bicarbonate ions, and metals Mining area indicates a potential threat kilometers (rkm) (0.3 river miles (rmi)) such as manganese, iron, aluminum, to the laurel dace from future coal for the Cumberland darter, and an and selenium. Increased levels of mining in the southern coalfield areas of additional 6.6 rkm (4.1 rmi) for the selenium have been shown to Tennessee. yellowcheek darter. Our Response: We agree with the bioaccumulate in organisms, leading to (4) We revised the ownership of one commenters that possible future coal deformities in larval fish and potentially property for the yellowcheek darter mining in southern Tennessee harming birds that prey on fishes. The critical habitat, resulting in a change of represents a potential threat to the laurel final listing rule (75 FR 36035) provided the total number of river kilometers in dace. To address the potential threat a more detailed analysis of these and private ownership from 148 rkm (92 posed by coal mining and acid mine other water quality threats to the rmi) to 162.7 rkm (101.1 rmi), as well as drainage, we have included additional Cumberland darter under Summary of a corresponding downward revision in text in the Special Management Factors Affecting the Species (75 FR the other ownership types. Considerations or Protection section 36042). (5) We revised the Energy Supply, that identifies the threat and lists (18) Comment: Two commenters Distribution, or Use—Executive Order potential management activities that 13211 section to state that coal mining raised the possibility that perched could ameliorate the threat. culverts or impassable road crossings could potentially occur in one of six (fords) represent a threat to the Summary of Changes From Proposed critical habitat units for the laurel dace. Cumberland darter and suggested that Rule (6) We added a spring run and this potential threat may require special In preparing this final critical habitat associated wetlands to Unit 2 as critical management considerations or designation for the Cumberland darter, habitat for the rush darter. This 0.13 ha protection. The commenters explained rush darter, yellowcheek darter, Chucky (0.32 ac) spring associated wetland and that perched culverts are common madtom, and laurel dace, we reviewed 85.8 m (0.05 mi) spring run is adjacent within the upper Cumberland River and considered comments from the to the headwaters of the Unnamed system, and they often restrict fish public on the proposed designation of Tributary to Beaver Creek and is movements, as evidenced by lower critical habitat published on October 12, privately owned. (7) We corrected errors in calculating species diversity observed by the 2011 (76 FR 63360) and our total length and area in Table 2 for the commenters upstream of these culverts. announcement of the availability of the rush darter. The commenters also suggested that DEA published on May 24, 2012 (77 FR connectivity of Cumberland darter 30988). We likewise reviewed and Critical Habitat streams could be affected by these considered comments from a public Background barriers, leading to further isolation of informational meeting held on February these populations and preventing the 22, 2012, and a public hearing held on Critical habitat is defined in section 3 free exchange of genetic material June 7, 2012, both in Clinton, Arkansas. of the Act as: between populations. As a result of public comments and peer (1) The specific areas within the Our Response: We agree with the review, we made changes to our geographical area occupied by the commenters that perched culverts designation of critical habitat for these species, at the time it is listed in represent a potential threat to the five fishes. These changes are as accordance with the Act, on which are Cumberland darter. We, too, have follows: found those physical or biological observed perched culverts in the upper (1) We added additional threats features Cumberland River system, and we often information for the Cumberland darter, (a) Essential to the conservation of the observe lower species diversity in rush darter, Chucky madtom, and laurel species and reaches upstream of these culverts. To dace. (b) Which may require special address the potential threat posed by (2) We capitalized the common name management considerations or these barriers, we have included of the Chucky madtom, to reflect the protection; and additional text in the Special fact that it is named after Little Chucky (2) Specific areas outside the Management Considerations or Creek, and is therefore, a proper noun. geographical area occupied by the Protection section (below) that identifies We updated a reference for Chucky species at the time it is listed, upon a the threat and lists potential madtom habitat and threats, and determination that such areas are

VerDate Mar<15>2010 17:42 Oct 15, 2012 Jkt 229001 PO 00000 Frm 00008 Fmt 4701 Sfmt 4700 E:\FR\FM\16OCR2.SGM 16OCR2 tkelley on DSK3SPTVN1PROD with RULES2 Federal Register / Vol. 77, No. 200 / Tuesday, October 16, 2012 / Rules and Regulations 63611

essential for the conservation of the physical and biological features within materials, or experts’ opinions or species. an area, we focus on the principal personal knowledge. Conservation, as defined under biological or physical constituent Habitat is dynamic, and species may section 3 of the Act, means to use and elements (primary constituent elements move from one area to another over the use of all methods and procedures such as roost sites, nesting grounds, time. We recognize that critical habitat that are necessary to bring an seasonal wetlands, water quality, tide, designated at a particular point in time endangered or threatened species to the soil type) that are essential to the may not include all of the habitat areas point at which the measures provided conservation of the species. Primary that we may later determine are under the Act are no longer necessary. constituent elements are the elements of necessary for the recovery of the Such methods and procedures include, physical or biological features that, species. For these reasons, a critical but are not limited to, all activities when laid out in the appropriate habitat designation does not signal that associated with scientific resources quantity and spatial arrangement to habitat outside the designated area is management such as research, census, provide for a species’ life-history unimportant or may not be needed for law enforcement, habitat acquisition processes, are essential to the recovery of the species. Areas that are and maintenance, propagation, live conservation of the species. important to the conservation of the trapping, and transplantation, and, in Under the second prong of the Act’s species, both inside and outside the the extraordinary case where population definition of critical habitat, we can critical habitat designation, will pressures within a given ecosystem designate critical habitat in areas continue to be subject to: (1) cannot be otherwise relieved, may outside the geographical area occupied Conservation actions implemented include regulated taking. by the species at the time it is listed, under section 7(a)(1) of the Act, (2) Critical habitat receives protection upon a determination that such areas regulatory protections afforded by the under section 7 of the Act through the are essential for the conservation of the requirement in section 7(a)(2) of the Act requirement that Federal agencies species. For example, an area currently ensure, in consultation with the Service, occupied by the species but that was not for Federal agencies to insure their that any action they authorize, fund, or occupied at the time of listing may be actions are not likely to jeopardize the carry out is not likely to result in the essential to the conservation of the continued existence of any endangered destruction or adverse modification of species and may be included in the or threatened species, and (3) the critical habitat. The designation of critical habitat designation. We prohibitions of section 9 of the Act if critical habitat does not affect land designate critical habitat in areas actions occurring in these areas may ownership or establish a refuge, outside the geographical area occupied affect the species. Federally funded or wilderness, reserve, preserve, or other by a species only when a designation permitted projects affecting listed conservation area. Such designation limited to its range would be inadequate species outside their designated critical does not allow the government or public to ensure the conservation of the habitat areas may still result in jeopardy to access private lands. Such species. findings in some cases. These designation does not require Section 4 of the Act requires that we protections and conservation tools will implementation of restoration, recovery, designate critical habitat on the basis of continue to contribute to recovery of or enhancement measures by non- the best scientific and commercial data this species. Similarly, critical habitat Federal landowners. Where a landowner available. Further, our Policy on designations made on the basis of the seeks or requests Federal agency Information Standards Under the best available information at the time of funding or authorization for an action Endangered Species Act (published in designation will not control the that may affect a listed species or the Federal Register on July 1, 1994 (59 direction and substance of future critical habitat, the consultation FR 34271)), the Information Quality Act recovery plans, habitat conservation requirements of section 7(a)(2) would (section 515 of the Treasury and General plans (HCPs), or other species apply, but even in the event of a Government Appropriations Act for conservation planning efforts if new destruction or adverse modification Fiscal Year 2001 (Pub. L. 106–554; H.R. information available at the time of finding, the obligation of the Federal 5658)), and our associated Information these planning efforts calls for a action agency and the landowner is not Quality Guidelines, provide criteria, different outcome. to restore or recover the species, but to establish procedures, and provide Physical and Biological Features implement reasonable and prudent guidance to ensure that our decisions alternatives to avoid destruction or are based on the best scientific data In accordance with sections 3(5)(A)(i) adverse modification of critical habitat. available. They require our biologists, to and 4(b)(1)(A) of the Act and regulations Under the first prong of the Act’s the extent consistent with the Act and at 50 CFR 424.12, in determining which definition of critical habitat, areas with the use of the best scientific data areas within the geographical area within the geographical area occupied available, to use primary and original occupied by the species at the time of by the species at the time it was listed sources of information as the basis for listing to designate as critical habitat, are included in a critical habitat recommendations to designate critical we consider the physical or biological designation if they contain physical or habitat. features essential to the conservation of biological features (1) which are When we are determining which areas the species and which may require essential to the conservation of the should be designated as critical habitat, special management considerations or species and (2) which may require our primary source of information is protection. These include, but are not special management considerations or generally the information developed limited to: protection. For these areas, critical during the listing process for the (1) Space for individual and habitat designations identify, to the species. Additional information sources population growth and for normal extent known using the best scientific may include the recovery plan for the behavior; and commercial data available, those species, articles in peer-reviewed physical or biological features that are journals, conservation plans developed (2) Food, water, air, light, minerals, or essential to the conservation of the by States and counties, scientific status other nutritional or physiological species (such as space, food, cover, and surveys and studies, biological requirements; protected habitat). In identifying those assessments, other unpublished (3) Cover or shelter;

VerDate Mar<15>2010 17:42 Oct 15, 2012 Jkt 229001 PO 00000 Frm 00009 Fmt 4701 Sfmt 4700 E:\FR\FM\16OCR2.SGM 16OCR2 tkelley on DSK3SPTVN1PROD with RULES2 63612 Federal Register / Vol. 77, No. 200 / Tuesday, October 16, 2012 / Rules and Regulations

(4) Sites for breeding, reproduction, or County, Kentucky, demonstrate that reaches of relatively low-gradient, small rearing (or development) of offspring; Cumberland darters may make similar streams (Bart and Taylor 1999, p. 32; and movements (Thomas 2010, pers. Johnston and Kleiner 2001, pp. 3–4; (5) Habitats that are protected from comm.). Individuals tagged and released Stiles and Blanchard 2001, pp. 1–4; Bart disturbance or are representative of the by the Kentucky Department of Fish and 2002, p. 1; Fluker et al. 2007, p. 1; Stiles historical, geographical, and ecological Wildlife Resources (KDFWR) and and Mills 2008, pp. 1–4) and wetland distribution of a species. Conservation Fisheries, Inc. (CFI), pools (Stiles and Mills 2008, pp. 2–3). We derive the specific physical or traveled distances ranging from 0.4 to This species also relies heavily on biological features essential for the 0.7 rkm (0.2 to 0.4 rmi) between their aquatic vegetation (Fluker et al. 2007, p. Cumberland darter, rush darter, release date of September 22, 2010, and 1) including: Root masses of emergent yellowcheek darter, Chucky madtom, their recapture date of November 9, vegetation along the margins of spring- and laurel dace from studies of these 2010 (period of 48 days) (Thomas 2010, fed streams in very shallow, clear, cool, species’ habitats, ecology, and life pers. comm.). Over longer periods, it is and flowing water; and both small history as described in the Critical likely that Cumberland darters can clumps and dense stands of watercress Habitat section of the proposed rule to utilize stream reaches longer than 0.7 (Nasturtium officinale), parrots feather designate critical habitat published in rkm (0.4 rmi). (Myriophyllum sp.), rushes (Juncus the Federal Register on October 12, The current range of the Cumberland spp.), sedges (Carex spp.), bur reed 2011 (76 FR 63360), and in the darter has been reduced to 13 streams (Sparganium sp.), and coontail information presented below. (15 occurrences) due to destruction and (Ceratophyllum sp.). The rush darter Additional information can be found in fragmentation of habitat. Fragmentation inhabits streams with substrates of silt, the final listing rule published in the of the species’ habitat has subjected sand, sand and silt, muck and sand or Federal Register on August 9, 2011 (76 these small populations to genetic some gravel with sand, and bedrock. FR 48722). We have determined that isolation, reduced space for rearing and Geomorphically stable streams these five species require the physical or reproduction, reduced adaptive transport sediment while maintaining biological features described below. capabilities, and an increased likelihood their horizontal and vertical dimensions of local extinctions (Burkhead et al. (width to depth ratio and cross-sectional Space for Individual and Population 1997, pp. 397–399; Hallerman 2003, pp. area), pattern (sinuosity), and Growth and for Normal Behavior 363–364). Genetic variation and longitudinal profile (riffles, runs, and Cumberland Darter diversity within a species are essential pools), thereby conserving the physical for recovery, adaptation to characteristics of the stream, including Little is known about the specific environmental change, and long-term bottom features such as riffles, runs, and space requirements of the Cumberland viability (capability to live, reproduce, pools and the transition zones between darter; however, the species is typically and develop) (Noss and Cooperrider these features that contain some silt, found in low to moderate gradient, 1994, pp. 282–297; Harris 1984, pp. 93– sand, and finer substrates. The riffles, second- to fourth-order, geomorphically 107; Fluker et al. 2007, p. 2). The long- runs, and pools not only provide space stable streams, where it occupies term viability of a species is founded on for the rush darter, but also provide shallow pools or runs with gentle the conservation of numerous local space for emergent vegetation in current over sand or sand-covered populations throughout its geographic shallow water along the margins of the bedrock substrates with patches of range (Harris 1984, pp. 93–104). small streams and springs for cover, and gravel or debris (O’Bara 1991, p. 10; Connectivity of these habitats is shelter necessary for breeding, Thomas 2007, p. 4). Geomorphically essential in preventing further reproduction, and growth of offspring. stable streams transport sediment while fragmentation and isolation of The current range of the rush darter maintaining their horizontal and Cumberland darter populations and within the entire Turkey Creek, Clear vertical dimensions (width to depth promoting species movement and Creek, and Little Cove-Bristow Creek ratio and cross-sectional area), pattern genetic flow between populations. watersheds is reduced to localized sites (sinuosity), and longitudinal profile Therefore, based on the information due to fragmentation, separation, and (riffles, runs, and pools), thereby above, we identify shallow pools and destruction of rush darter habitats and conserving the physical characteristics runs and associated stream segments of populations. There are dispersal barriers of the stream, including bottom features geomorphically stable, second- to (pipes and culverts for road crossings; such as riffles, runs, and pools and the fourth-order streams to be an essential channelized stream segments; and transition zones between these features. physical or biological feature for the emergent aquatic plant control, which The protection and maintenance of Cumberland darter. The connectivity of eliminates cover habitat for the species) these habitat features accommodate these habitats is essential in and an increased amount of water spawning, rearing, growth, migration, accommodating feeding, breeding, extraction, which results in insufficient and other normal behaviors of the growth, and other normal behaviors of aquifer recharge zones that may Cumberland darter. the Cumberland darter and in promoting contribute to the separation and Limited information exists with gene flow within the species. isolation of rush darter populations and regard to upstream or downstream affect water quality. Fragmentation of movements of Cumberland darters; Rush Darter the species’ habitat has isolated however, Winn (1958a, pp. 163–164) Little is known about the specific populations and reduced available reported considerable pre-spawn space requirements of the rush darter in spaces for rearing and reproduction, movements for its closest relative, the the Turkey Creek, Little Cove-Bristow thereby reducing adaptive capability Johnny darter. In Beer Creek, Monroe Creek, and Clear Creek systems and increasing the likelihood of local County, Michigan, Johnny darters (Boschung and Mayden 2004, p. 551); extinctions (Burkhead et al. 1997, pp. migrated several miles between however, in general, darters depend on 397–399; Hallerman 2003, pp. 363–364). temporary stream habitats and space within geomorphically stable Genetic variation and diversity within a permanent pools in downstream streams with varying water quantities species are essential for recovery, reaches. Recent capture data for tagged and flow. Specifically, rush darters adaptation to environmental changes, individuals in Cogur Fork, McCreary appear to prefer springs and spring-fed and long-term viability (capability to

VerDate Mar<15>2010 17:42 Oct 15, 2012 Jkt 229001 PO 00000 Frm 00010 Fmt 4701 Sfmt 4700 E:\FR\FM\16OCR2.SGM 16OCR2 tkelley on DSK3SPTVN1PROD with RULES2 Federal Register / Vol. 77, No. 200 / Tuesday, October 16, 2012 / Rules and Regulations 63613

live, reproduce, and develop) (Harris reaches. The yellowcheek darter was (width to depth ratio and cross-sectional 1984, pp. 93–107; Noss and Cooperrider also extirpated from the Little Red River area), pattern (sinuosity), and 1994, pp. 282–297; Fluker et al. 2007, p. downstream of Greers Ferry Reservoir longitudinal profile (riffles, runs, and 2). Long-term viability is founded on due to cold tailwater releases. The lake pools), thereby conserving the physical numerous interbreeding, local flooded optimal habitat for the species, characteristics of the stream, including populations throughout the range and caused genetic isolation of bottom features, such as riffles, runs, (Harris 1984, pp. 93–107). Continuity of populations (McDaniel 1984, p. 1), with and pools and the transition zones water flow between suitable habitats is only the South and Archey forks of the between these features. The protection essential in preventing further Little Red River maintaining a non- and maintenance of these habitat fragmentation of the species’ habitat and inundated confluence. features accommodate spawning, populations, conserving the essential As stated earlier, of the four streams rearing, growth, migration, and other emergent vegetation in shallow water on supporting the yellowcheek darter, only normal behaviors of the Chucky the margins of small streams and the South and Archey forks maintain a madtom. springs, and promoting genetic flow non-inundated confluence. Instream The current range of the Chucky throughout the populations. Continuity habitat at the confluence of the two madtom has been reduced to only one of habitat will maintain spawning, streams is suboptimal due to previous stream due to fragmentation and foraging, and resting sites, and allow for channelization, but restoration could destruction of habitat. Habitat gene flow throughout the population. provide an opportunity for vital fragmentation has subjected the small Connectivity of habitats, as a whole, population interactions between streams population to genetic isolation, reduced also permits improvement in water to maintain genetic diversity. space for rearing and reproduction, quality and water quantity by allowing Fragmentation of the species’ habitat reduced adaptive capabilities, and unobstructed water flow throughout the has subjected these small populations to increased the likelihood of extinction connected habitats. genetic isolation, reduced space for (Burkhead et al. 1997, pp. 397–399; Therefore, based on the information rearing and reproduction, reduced Hallerman 2003, pp. 363–364). Genetic above, we identify springs and spring- adaptive capabilities, and an increased variation and diversity within a species fed reaches of relatively low-gradient, likelihood of local extinctions are essential for recovery, adaptation to geomorphically stable streams with (Burkhead et al. 1997, pp. 397–399; environmental change, and long-term emergent vegetation to be an essential Hallerman 2003, pp. 363–364). Genetic viability (capability to live, reproduce, physical or biological feature for the variation and diversity within a species and develop) (Harris 1984, pp. 93–107; rush darter. The connectivity of these are essential for recovery, adaptation to Noss and Cooperrider 1994, pp. 282– habitats is essential in accommodating environmental change, and long-term 297; Fluker et al. 2007, p. 2). The long- feeding, breeding, growth, and other viability (capability to live, reproduce, term viability of a species is founded on normal behaviors of the rush darter and and develop) (Harris 1984, pp. 93–107; the conservation of numerous local in promoting gene flow within the Noss and Cooperrider 1994, pp. 282– populations throughout its geographic species. 297; Fluker et al. 2007, p. 2). The long- range (Harris 1984, pp. 93–104). term viability of a species is founded on Connecting instream habitats is Yellowcheek Darter the conservation of numerous local essential in preserving the genetic The yellowcheek darter is typically populations throughout its geographic viability of the Chucky madtom in Little found in clear, high-gradient, second- to range (Harris 1984, pp. 93–104). Chucky Creek. fifth-order, geomorphically stable Connectivity of these habitats is Therefore, based on the information streams that maintain permanent year- essential to prevent further above, we identify shallow pools and round flows (Robison and Buchanan fragmentation and isolation of runs of geomorphically stable streams to 1988, p. 429). The species occupies yellowcheek darter populations and to be an essential physical or biological riffles with moderate to fast current over promote species movement and genetic feature for the Chucky madtom. The gravel, cobble, and boulder substrates flow between populations. connectivity of these habitats is (Robison and Buchanan 1988, p. 429). Therefore, based on the information essential to accommodate feeding, Geomorphically stable streams transport above, we identify riffles of breeding, growth, and other normal sediment while maintaining their geomorphically stable, second- to fifth- behaviors of the Chucky madtom and to horizontal and vertical dimensions order streams to be an essential physical promote gene flow within the species. (width to depth ratio and cross-sectional or biological feature for the yellowcheek area), pattern (sinuosity), and darter. The connectivity of these Laurel Dace longitudinal profile (riffles, runs, and habitats is essential to accommodate Little is known about the specific pools), thereby conserving the physical feeding, breeding, growth, and other space requirements of the laurel dace; characteristics of the stream, including normal behaviors of the yellowcheek however, the species is typically found bottom features such as riffles, runs, and darter and to promote gene flow within in low to moderate gradient, first- to pools and the transition zones between the species. second-order, geomorphically stable these features. The protection and streams. The laurel dace occupies pools maintenance of these habitat features Chucky Madtom or slow runs beneath undercut banks or accommodate spawning, rearing, Little is known about the specific slab-rock boulders in clear, cool growth, migration, and other normal space requirements of the Chucky (maximum temperature 26 °C (78.8 °F)) behaviors of the yellowcheek darter. madtom; however, all of the specimens streams. Substrates in streams where In 1962, the construction of Little Red collected in Little Chucky Creek have laurel dace are found typically consist River Dam to create Greers Ferry been found in shallow pool and run of a mixture of cobble, rubble, and Reservoir impounded much of the range habitats with slow to moderate current boulders, and the streams tend to have of the yellowcheek darter, including the over pea gravel, cobble, or slab-rock a dense riparian zone consisting largely lower reaches of Devil’s Fork, Middle boulder substrates (Burr et al. 2005, p. of mountain laurel (Skelton 2001, pp. Fork, South Fork, and portions of the 797). Geomorphically stable streams 125–126). main stem Little Red River, thus transport sediment while maintaining Geomorphically stable streams extirpating the species from these their horizontal and vertical dimensions transport sediment while maintaining

VerDate Mar<15>2010 17:42 Oct 15, 2012 Jkt 229001 PO 00000 Frm 00011 Fmt 4701 Sfmt 4700 E:\FR\FM\16OCR2.SGM 16OCR2 tkelley on DSK3SPTVN1PROD with RULES2 63614 Federal Register / Vol. 77, No. 200 / Tuesday, October 16, 2012 / Rules and Regulations

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

VerDate Mar<15>2010 17:42 Oct 15, 2012 Jkt 229001 PO 00000 Frm 00012 Fmt 4701 Sfmt 4700 E:\FR\FM\16OCR2.SGM 16OCR2 tkelley on DSK3SPTVN1PROD with RULES2 Federal Register / Vol. 77, No. 200 / Tuesday, October 16, 2012 / Rules and Regulations 63615

changes in water chemistry that can and would significantly impair the contaminants such as human and negatively impact aquatic species normal life stages and behavior of the animal waste products; endocrine- (KDOW 1996, pp. 48–50; 2006, pp. 70– rush darter. disrupting chemicals; pesticides; 73). Favorable water quantity for the rush nitrogen, potassium, and phosphorous Therefore, based on the information darter includes moderate water velocity fertilizers; and petroleum distillates above, we identify aquatic in riffles and no flow or low flow in (Alabama Department of Environmental macroinvertebrate prey items; pools (Stiles and Mills 2008, pp. 1–4), Management (ADEM) 1996, pp. 13–15). permanent surface flows, as measured a continuous daily discharge that allows Sediment is the most abundant during average rainfall years; and for longitudinal connectivity within the pollutant produced in the Mobile River adequate water quality with substrates species’ habitat (Instream Flow Council Basin (ADEM 1996, pp. 13–15). Siltation that are relatively silt-free to be an 2004, p. 117), and discharge from both (excess sediments suspended or essential physical or biological feature surface water runoff and groundwater deposited in a stream) contributes to for the Cumberland darter. Relatively sources (springs and seepages). Along turbidity of the water and has been silt-free is defined for the purpose of with the continuous daily discharge, shown to reduce photosynthesis in this rule as silt or fine sand within both minimum and flushing flows are aquatic plants, suffocate aquatic , interstitial spaces of substrates in necessary to remove fine sediments and smother fish eggs, clog fish gills, and amounts low enough to have minimal dilute other pollutants (Moffett and may fill in essential interstitial spaces impact to the species. Moser 1978, pp. 20–21; Gilbert et al., (spaces between stream substrates) used eds. 1994, pp. 505–522; Instream Flow Rush Darter by aquatic organisms for spawning and Council 2004, pp. 103–104; Drennen foraging; therefore, excessive siltation Feeding habits of the rush darter are 2009, pers. obs.). At some sites, water negatively impacts fish growth, unknown but are likely similar to that depth ranges from 3.0 to 50 cm (0.1 to physiology, behavior, reproduction, and of its sister species, the 1.6 ft). Groundwater provides a constant survival. Nutrification (excessive (Etheostoma parvipinne). The goldstripe source of flows to dilute pollutants and nutrients present, such as nitrogen and darter is a benthic (bottom) insectivore maintain water quality for the phosphorous) promotes heavy algal and is known to consume midge larvae, persistence of the rush darter. growth that covers and eliminates clean mayfly nymphs, blackfly larvae, beetles, Factors that can potentially alter rock or gravel habitats and aquatic and and microcrustaceans (Mettee et al. water quality include: Droughts and emergent vegetation, which are 1996, p. 655). Extremes in variations in periods of low seasonal flow, necessary for rush darter feeding and instream flows maintain the stream precipitation events, nonpoint source spawning. Generally, early life stages of bottom substrates, providing oxygen and runoff, human activities within the fishes are less tolerant of environmental other attributes to various invertebrate watershed, random spills, unregulated contamination than adults or juveniles life stages. Sedimentation has been stormwater discharge events (Instream (Little et al. 1993, p. 67). Appropriate shown to wear away and suffocate Flow Council 2004, pp. 29–50), and water quality and quantity are necessary periphyton (organisms that live attached water extraction. Instream pooling may to dilute impacts from stormwater and to objects underwater), disrupt aquatic also affect water quality by reducing other unnatural effluents. Harmful insect communities (Waters 1995, pp. water flow, altering temperatures, levels of pollutants impair critical 53–86; Knight and Welch 2001, pp. concentrating pollutants (Blanco and behavior processes in fishes, as reflected 132–135), and reduce photosynthesis in Mayden 1999, pp. 5–6, 36), and in population-level responses (reduced aquatic vegetation. In addition, retarding aquatic and emergent population size, biomass, year class nutrification promotes heavy algal vegetation growth. growth that covers and eliminates the Fishes require acceptable levels of success, etc.). However, excessive water clean rock, gravel, and vegetative dissolved oxygen. Generally, among quantity in the form of substantial habitats necessary for rush darter fishes, the young life forms require more stormwater runoff may destabilize and feeding. Thus, a decrease in water dissolved oxygen and are the most move bottom and bankside substrates quality and instream flow would sensitive. The amount of dissolved and increase instream sedimentation. correspondingly cause a decline in the oxygen that is present in the water (the Essential water quality attributes for major food species for the rush darter. saturation level) depends upon water darters and other fish species in fast to On the other hand, excessive instream temperature. As water temperature medium water flow streams include the flow can also damage and uproot increases, the saturated dissolved following: Dissolved oxygen levels aquatic vegetation necessary for foraging oxygen level decreases. The more greater than 6 parts per million (ppm), and feeding habitat. oxygen there is in the water, the greater temperatures between 7 and 26.7 °C (45 Much of the cool, clean water the assimilative capacity (ability to and 80 °F) with spring egg incubation provided to the Turkey Creek system consume organic wastes with minimal temperatures from 12.2 to 18.3 °C (54 to (Beaver Creek, Unnamed Tributary to impact) of that water; lower water flows 65 °F), a specific conductance (ability of Beaver Creek, Tapawingo or Penny have a reduced assimilative capacity water to conduct an electric current, Springs and the Highway 79 site; (Pitt 2000, pp. 6–7). Low-flow based on dissolved solids in the water) Jefferson County) and Cove Spring run conditions affect the chemical of less than approximately 225 micro of Little Cove Creek (Etowah County) environment occupied by fishes; Siemens per cm at 26.7 °C (80 °F), and comes from consistent and steady extended low-flow conditions coupled low concentrations of free or suspended groundwater sources (springs and with higher pollutant levels could likely solids (organic and inorganic sediments) seeps). Clear, flowing water provides a result in behavioral changes within all less than 10 Nephelometric Turbidity means for transporting nutrients and life stages, which could be particularly Units (NTU; units used to measure food items, moderating water detrimental to early life stages (e.g., sediment discharge) and 15 milligrams/ temperatures and dissolved oxygen embryo, larvae, and juvenile). Liter (mg/L) total suspended solids levels, and diluting nonpoint and point Optimal water quality lacks harmful (TSS; measured as mg/L of sediment in source pollution. Without clean water levels of pollutants, such as inorganic water) (Teels et al. 1975, pp. 8–9; sources, water quality and water contaminants like copper, arsenic, Ultschet et al. 1978, pp. 99–101; quantity would be considerably lower mercury, and cadmium; organic Ingersoll et al. 1984, pp. 131–138;

VerDate Mar<15>2010 17:42 Oct 15, 2012 Jkt 229001 PO 00000 Frm 00013 Fmt 4701 Sfmt 4700 E:\FR\FM\16OCR2.SGM 16OCR2 tkelley on DSK3SPTVN1PROD with RULES2 63616 Federal Register / Vol. 77, No. 200 / Tuesday, October 16, 2012 / Rules and Regulations

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

VerDate Mar<15>2010 17:42 Oct 15, 2012 Jkt 229001 PO 00000 Frm 00014 Fmt 4701 Sfmt 4700 E:\FR\FM\16OCR2.SGM 16OCR2 tkelley on DSK3SPTVN1PROD with RULES2 Federal Register / Vol. 77, No. 200 / Tuesday, October 16, 2012 / Rules and Regulations 63617

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

VerDate Mar<15>2010 17:42 Oct 15, 2012 Jkt 229001 PO 00000 Frm 00015 Fmt 4701 Sfmt 4700 E:\FR\FM\16OCR2.SGM 16OCR2 tkelley on DSK3SPTVN1PROD with RULES2 63618 Federal Register / Vol. 77, No. 200 / Tuesday, October 16, 2012 / Rules and Regulations

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

VerDate Mar<15>2010 17:42 Oct 15, 2012 Jkt 229001 PO 00000 Frm 00016 Fmt 4701 Sfmt 4700 E:\FR\FM\16OCR2.SGM 16OCR2 tkelley on DSK3SPTVN1PROD with RULES2 Federal Register / Vol. 77, No. 200 / Tuesday, October 16, 2012 / Rules and Regulations 63619

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

VerDate Mar<15>2010 17:42 Oct 15, 2012 Jkt 229001 PO 00000 Frm 00017 Fmt 4701 Sfmt 4700 E:\FR\FM\16OCR2.SGM 16OCR2 tkelley on DSK3SPTVN1PROD with RULES2 63620 Federal Register / Vol. 77, No. 200 / Tuesday, October 16, 2012 / Rules and Regulations

Siltation (excess sediments suspended the physical or biological features sites to promote gene flow throughout or deposited in a stream) contributes to essential to the conservation of the the species’ range. turbidity of the water and has been Cumberland darter, rush darter, (2) Primary Constituent Element 2— shown to smother fish eggs, clog fish yellowcheek darter, Chucky madtom, Stable bottom substrates consisting of a gills, and may fill in essential interstitial and laurel dace in areas occupied at the combination of sand with silt, muck, spaces (spaces between stream time of listing, focusing on the features’ gravel, or bedrock and adequate substrates) used by aquatic organisms primary constituent elements. Primary emergent vegetation in shallow water on for spawning and foraging; therefore, constituent elements are those specific the margins of small permanent and excessive siltation negatively impacts elements of the physical or biological ephemeral streams and spring runs. fish growth, physiology, behavior, features that provide for a species’ life- (3) Primary Constituent Element 3— reproduction, and survival. history processes and are essential to Instream flow with moderate velocity Therefore, based on the information the conservation of the species. and a continuous daily discharge that above, we identify streams containing Based on our current knowledge of allows for a longitudinal connectivity gently flowing run and pool habitats the physical or biological features and regime inclusive of both surface runoff with flat or slab-rock boulder substrates habitat characteristics required to and groundwater sources (springs and that are relatively silt-free to be an sustain the five species’ life history seepages) and exclusive of flushing essential physical or biological feature processes, we determine that the flows caused by stormwater runoff. for the Chucky madtom. primary constituent elements specific to (4) Primary Constituent Element 4— Water quality with temperature not Laurel Dace these five fishes are: exceeding 26.7 °C (80 °F), dissolved Little is known regarding the Cumberland Darter oxygen 6.0 milligrams or greater per reproductive habits of the laurel dace. (1) Primary Constituent Element 1— liter (mg/L), turbidity of an average Skelton (2001, p. 126) reported having Shallow pools and gently flowing runs monthly reading of 10 Nephelometric collected nuptial individuals from late of geomorphically stable, second- to Turbidity Units (NTU; units used to March until mid-June, although Call fourth-order streams with connectivity measure sediment discharge) and 15mg/ (2004, pers. obs.) observed males in between spawning, foraging, and resting L total suspended solids (TSS; measured waning nuptial color during surveys on sites to promote gene flow throughout as mg/L of sediment in water) or less; July 22, 2004. Laurel dace may be a the species’ range. and a specific conductance (ability of spawning nest associate with nest- (2) Primary Constituent Element 2— water to conduct an electric current, building minnow species, as has been Stable bottom substrates composed of based on dissolved solids in the water) documented in blackside dace (Starnes relatively silt-free sand and sand- of no greater than 225 micro Siemens and Starnes 1981, p. 366). Soddy Creek ° ° covered bedrock, boulders, large cobble, per centimeter at 26.7 C (80 F). is the only location in which Skelton woody debris, or other cover. (5) Primary Constituent Element 5— (2001, p. 126) collected a nest-building Prey base of aquatic macroinvertebrates, (3) Primary Constituent Element 3— minnow with laurel dace. Skelton including midge larvae, mayfly nymphs, An instream flow regime (magnitude, (2001, p. 127) observed laurel dace blackfly larvae, beetles, and frequency, duration, and seasonality of burying their noses in the gravel of microcrustaceans. largescale stoneroller (Campostoma discharge over time) sufficient to Yellowcheek Darter oligolepis) nests. The nests used by provide permanent surface flows, as blackside dace had moderate flow and measured during years with average (1) Primary Constituent Element 1— consisted of gravel substrate at depths of rainfall, and to maintain benthic Geomorphically stable, second- to fifth- 20 cm (7.9 in) (Starnes and Starnes habitats utilized by the species. order streams with riffle habitats, and 1981, p. 366). These nests were noted to (4) Primary Constituent Element 4— connectivity between spawning, be approximately 0.7 m (2.3 ft) from Adequate water quality characterized by foraging, and resting sites to promote undercut banks (Starnes and Starnes moderate stream temperatures, gene flow within the species’ range 1981, p. 366). acceptable dissolved oxygen where possible. Siltation (excess sediments suspended concentrations, moderate pH, and low (2) Primary Constituent Element 2— or deposited in a stream) contributes to levels of pollutants. Adequate water Stable bottom composed of relatively turbidity of the water and has been quality is defined for the purpose of this silt-free, moderate to strong velocity shown to smother fish eggs, clog fish rule as the quality necessary for normal riffles with gravel, cobble, and boulder gills, and may fill in essential interstitial behavior, growth, and viability of all life substrates. spaces (spaces between stream stages of the Cumberland darter. (3) Primary Constituent Element 3— substrates) used by aquatic organisms (5) Primary Constituent Element 5— An instream flow regime (magnitude, for spawning and foraging; therefore, Prey base of aquatic macroinvertebrates, frequency, duration, and seasonality of excessive siltation negatively impacts including midge larvae, mayfly nymphs, discharge over time) sufficient to fish growth, physiology, behavior, caddisfly larvae, and microcrustaceans. provide permanent surface flows, as measured during years with average reproduction, and survival. Rush Darter Therefore, based on the information rainfall, and to maintain benthic above, we identify headwater streams (1) Primary Constituent Element 1— habitats utilized by the species. containing moderately flowing run and Springs and spring-fed reaches of (4) Primary Constituent Element 4— pool habitats with gravel substrates, geomorphically stable, relatively low- Adequate water quality characterized by containing undercut banks, and that are gradient, headwater streams with moderate stream temperatures, relatively silt-free to be an essential appropriate habitat (bottom substrates) acceptable dissolved oxygen physical or biological feature for the to maintain essential riffles, runs, and concentrations, moderate pH, and low laurel dace. pools; emergent vegetation in shallow levels of pollutants. Adequate water water and on the margins of small quality is defined for the purpose of this Primary Constituent Elements streams and spring runs; cool, clean, rule as the quality necessary for normal Under the Act and its implementing flowing water; and connectivity behavior, growth, and viability of all life regulations, we are required to identify between spawning, foraging, and resting stages of the yellowcheek darter.

VerDate Mar<15>2010 17:42 Oct 15, 2012 Jkt 229001 PO 00000 Frm 00018 Fmt 4701 Sfmt 4700 E:\FR\FM\16OCR2.SGM 16OCR2 tkelley on DSK3SPTVN1PROD with RULES2 Federal Register / Vol. 77, No. 200 / Tuesday, October 16, 2012 / Rules and Regulations 63621

(5) Primary Constituent Element 5— levels of pollutants. Adequate water are not presently under the special Prey base of aquatic macroinvertebrates, quality is defined for the purpose of this management or protection provided by including blackfly larvae, stonefly rule as the quality necessary for normal a legally operative plan or agreement for larvae, mayfly nymphs, and caddisfly behavior, growth, and viability of all life the conservation of the species. larvae. stages of the laurel dace. Activities in or adjacent to these 15 (5) Primary Constituent Element 5— critical habitat areas may affect one or Chucky Madtom Prey base of aquatic macroinvertebrates, more of the physical and biological (1) Primary Constituent Element 1— including midge larvae, caddisfly features essential to the Cumberland Gently flowing run and pool reaches of larvae, and stonefly larvae. darter. For example, features in this geomorphically stable streams with With this designation of critical critical habitat designation may require cool, clean, flowing water; shallow habitat, we intend to identify the special management due to threats depths; and connectivity between physical or biological features essential posed by resource extraction (coal spawning, foraging, and resting sites to to the conservation of these five species, surface mining, silviculture, natural gas promote gene flow throughout the through the identification of the and oil exploration activities), species’ range. features’ primary constituent elements agricultural activities (livestock), lack of (2) Primary Constituent Element 2— sufficient to support life-history adequate riparian buffers, presence of Stable bottom substrates composed of processes of these species. perched road culverts or impassable relatively silt-free, flat gravel, cobble, Special Management Considerations or road crossings that restrict fish and slab-rock boulders. Protection movement, construction and (3) Primary Constituent Element 3— maintenance of State and county roads, An instream flow regime (magnitude, When designating critical habitat, we nonpoint source pollution arising from frequency, duration, and seasonality of assess whether the areas within the stormwater runoff, and canopy loss discharge over time) sufficient to geographical area occupied by the caused by infestations of the hemlock provide permanent surface flows, as species at the time of listing contain woolly adelgid. These threats are in measured during years with average features that are essential to the addition to adverse effects of drought, rainfall, and to maintain benthic conservation of the species and which floods, or other natural phenomena. habitats utilized by the species. may require special management Other activities that may affect physical (4) Primary Constituent Element 4— considerations or protection. and biological features in the critical Adequate water quality characterized by Cumberland Darter habitat units include those listed in the moderate stream temperatures, Effects of Critical Habitat Designation acceptable dissolved oxygen The 15 units we are designating as section below. concentrations, moderate pH, and low critical habitat for the Cumberland Management activities that could levels of pollutants. Adequate water darter will require some level of ameliorate these threats include, but are quality is defined for the purpose of this management to address the current and not limited to: Use of BMPs designed to rule as the quality necessary for normal future threats to the physical and reduce sedimentation, erosion, and bank behavior, growth, and viability of all life biological features of the species. Due to side destruction; moderation of surface stages of the Chucky madtom. their location on the Daniel Boone and ground water withdrawals to (5) Primary Constituent Element 5— National Forest (DBNF), at least a maintain natural flow regimes; increase Prey base of aquatic macroinvertebrates, portion of 13 of the 15 critical habitat of stormwater management and including midge larvae, mayfly nymphs, units are being managed and protected reduction of stormwater flows into the caddisfly larvae, and stonefly larvae. under DBNF’s Land and Resource systems; preservation of headwater Management Plan (LRMP) (United springs and streams; regulation of off- Laurel Dace States Forest Service (USFS) 2004, pp. road vehicle use; removal or (1) Primary Constituent Element 1— 1–14). The LRMP is implemented replacement of perched culverts or fords Pool and run habitats of geomorphically through a series of project-level that can restrict darter movements and stable, first- to second-order streams decisions based on appropriate site- reduce genetic exchange between with riparian vegetation; cool, clean, specific analysis and disclosure. It does populations; and reduction of other flowing water; shallow depths; and not contain a commitment to select any watershed and floodplain disturbances connectivity between spawning, specific project; rather, it sets up a that release sediments, pollutants, or foraging, and resting sites to promote framework of desired future conditions nutrients into the water. gene flow throughout the species’ range. with goals, objectives, and standards to In summary, we find that the areas we (2) Primary Constituent Element 2— guide project proposals. Projects are are designating as critical habitat for the Stable bottom substrates composed of proposed to solve resource management Cumberland darter contain the physical relatively silt-free gravel, cobble, and problems, move the forest environment or biological features for the species, slab-rock boulder substrates with toward desired future conditions, and and that these features may require undercut banks and canopy cover. supply goods and services to the public special management considerations or (3) Primary Constituent Element 3— (USFS 2004, pp. 1–14). The LRMP protection. Special management An instream flow regime (magnitude, contains a number of protective consideration or protection may be frequency, duration, and seasonality of standards that in general are designed to required to eliminate, or to reduce to discharge over time) sufficient to avoid and minimize potential adverse negligible levels, the threats affecting provide permanent surface flows, as effects to the Cumberland darter and the physical or biological features of measured during years with average other federally listed species; however, each unit. rainfall, and to maintain benthic the DBNF will continue to conduct habitats utilized by the species. project-specific section 7 consultation Rush Darter (4) Primary Constituent Element 4— under the Act when their activities may The eight units we are designating as Adequate water quality characterized by adversely affect streams supporting critical habitat for the rush darter will moderate stream temperatures, Cumberland darters. require some level of management to acceptable dissolved oxygen Two of the 15 critical habitat units are address the current and future threats to concentrations, moderate pH, and low located entirely on private property and the physical and biological features of

VerDate Mar<15>2010 17:42 Oct 15, 2012 Jkt 229001 PO 00000 Frm 00019 Fmt 4701 Sfmt 4700 E:\FR\FM\16OCR2.SGM 16OCR2 tkelley on DSK3SPTVN1PROD with RULES2 63622 Federal Register / Vol. 77, No. 200 / Tuesday, October 16, 2012 / Rules and Regulations

the rush darter. None of the critical biological features for the species, and and ground water withdrawals to habitat units (or their corresponding that these features may require special maintain natural flow regimes; increase aquifer recharge zones, which are not management considerations or of stormwater management and designated as critical habitat) are protection. Special management reduction of stormwater flows into the presently under special management or consideration or protection may be systems; preservation of headwater protection provided by a legally required to eliminate, or to reduce to springs and streams; regulation of off- operative plan or agreement for the negligible levels, the threats affecting road vehicle use; and reduction of other conservation of the rush darter. the physical or biological features of watershed and floodplain disturbances However, 4.7 rkm (2.9 rmi) of the each unit. that release sediments, pollutants, or Turkey Creek watershed (Jefferson nutrients into the water. Yellowcheek Darter County) is designated critical habitat for In summary, we find that the areas we the vermilion darter (Etheostoma The four units we are designating as are designating as critical habitat for the chermocki) (75 FR 75913, December 7, critical habitat for the yellowcheek yellowcheek darter contain the physical 2010) which includes a portion of rush darter will require some level of or biological features for the species, darter unit 2. Various activities in or management to address the current and and that these features may require adjacent to the critical habitat units future threats to the physical and special management considerations or described in this final rule may affect biological features of the species. The protection. Special management one or more of the physical and yellowcheek darter is currently covered consideration or protection may be biological features. For example, under a candidate conservation required to eliminate, or to reduce to features in the critical habitat agreement with assurances (CCAA) in negligible levels, the threats affecting designation may require special the upper Little Red River watershed in the physical or biological features of management due to threats posed by the Arkansas, along with the endangered each unit. speckled pocketbook mussel, which following activities or disturbances: Chucky Madtom Urbanization activities and inadequate does not have critical habitat stormwater management (such as stream designated. Of the 205,761 hectares (ha) The single unit we are designating as channel modification for flood control (508,446 acres (ac)) within the upper critical habitat for the Chucky madtom or gravel extraction) that could cause an Little Red River watershed known to will require some level of management increase in bank erosion; significant support the yellowcheek darter, to address the current and future threats changes in the existing flow regime approximately 35,208 ha (87,000 ac) are to the physical and biological features of within the streams due to water owned by private parties (Service 2007, the species. The critical habitat unit is diversion or withdrawal; significant p. 4). To date, multiple landowners have located on private property and is not alteration of water quality; significant enrolled 4,672 ha (11,544 ac) in the presently under the special management alteration in the quantity of program since its inception in mid- or protection provided by a legally groundwater, prevention of water from 2007, and 10 more landowners with operative plan or agreement for the percolating into the aquifer recharge approximately 20,234 ha (50,000 ac) conservation of the species. Various zone, and alteration of spring discharge have pending draft agreements. Lands activities in or adjacent to the critical sites; significant changes in stream bed enrolled in these conservation programs habitat unit described in this rule may material composition and quality due to include areas within the critical habitat affect one or more of the physical and construction projects and maintenance as well as riparian and upland areas that biological features. For example, activities; off-road vehicle use; sewer, are outside of the critical habitat features in this critical habitat gas, and water easements; bridge boundary. Various activities in or designation may require special construction; culvert and pipe adjacent to critical habitat may affect management due to threats posed by installation; and other watershed and one or more of the physical and agricultural activities (e.g., row crops floodplain disturbances that release biological features. For example, and livestock), lack of adequate riparian sediments or nutrients into the water. features in this critical habitat buffers, construction and maintenance Other activities that may affect physical designation may require special of State and county roads, gravel and biological features in the critical management due to threats posed by mining, and nonpoint source pollution habitat units include those listed in the natural gas extraction; timber harvest; (e.g., agrochemicals, sediment) arising Effects of Critical Habitat Designation gravel mining; unrestricted cattle access from a wide variety of human activities. section below. into streams; water diversion for These threats are in addition to random Management activities that could agriculture, industry, municipalities, or effects of drought, floods, or other ameliorate these threats include, but are other purposes; lack of adequate natural phenomena. Other activities that not limited to: Use of BMPs designed to riparian buffers; construction and may affect physical and biological reduce sedimentation, erosion, and bank maintenance of county and State roads; features in the critical habitat unit side destruction; moderation of surface and nonpoint source pollution arising include those listed in the Effects of and ground water withdrawals to from development and a broad array of Critical Habitat Designation section maintain natural flow regimes; increase human activities. These threats are in below. of stormwater management and addition to random effects of drought, Management activities that could reduction of stormwater flows into the floods, or other natural phenomena. ameliorate these threats include, but are systems; preservation of headwater Other activities that may affect physical not limited to: Use of BMPs designed to springs, spring runs, and ephemeral and biological features in the critical reduce sedimentation, erosion, and bank rivulets; regulation of off-road vehicle habitat units include those listed in the side destruction; moderate application use; and reduction of other watershed Effects of Critical Habitat Designation of agrochemicals; moderation of surface and floodplain disturbances that release section below. and ground water withdrawals to sediments, pollutants, or nutrients into Management activities that could maintain natural flow regimes; increase the water. ameliorate these threats include, but are of stormwater management and In summary, we find that the areas we not limited to: Use of BMPs designed to reduction of stormwater flows into the are designating as critical habitat for the reduce sedimentation, erosion, and bank systems; preservation of headwater rush darter contain the physical or side destruction; moderation of surface streams; and reduction of other

VerDate Mar<15>2010 17:42 Oct 15, 2012 Jkt 229001 PO 00000 Frm 00020 Fmt 4701 Sfmt 4700 E:\FR\FM\16OCR2.SGM 16OCR2 tkelley on DSK3SPTVN1PROD with RULES2 Federal Register / Vol. 77, No. 200 / Tuesday, October 16, 2012 / Rules and Regulations 63623

watershed and floodplain disturbances laurel dace contain the physical or best available scientific information that release sediments, pollutants, or biological features for the species, and indicating portions of streams nutrients into the water. that these features may require special containing necessary physical or In summary, we find that the area we management considerations or biological features to support the are designating as critical habitat for the protection. Special management Cumberland darter. We set the upstream Chucky madtom contains the physical consideration or protection may be and downstream limits of each critical or biological features for the species, required to eliminate, or to reduce to habitat unit by identifying landmarks and that these features may require negligible levels, the threats affecting (bridges, confluences, road crossings, special management considerations or the physical or biological features of dams) above and below the upper and protection. Special management each unit. lowermost reported locations of the consideration or protection may be Cumberland darter in each stream reach Criteria Used To Identify Critical required to eliminate, or to reduce to to ensure incorporation of all potential Habitat negligible levels, the threats affecting sites of occurrence. the physical or biological features of the As required by section 4(b)(1)(A) of We used ARCGIS to delineate the unit. the Act, we used the best scientific and specific stream segments occupied by commercial data available to designate the Cumberland darter at the time of Laurel Dace critical habitat. We reviewed available listing, and those locations outside the The six units we are designating as information pertaining to the habitat geographical area occupied by the critical habitat will require some level of requirements of the species. In species at the time it was listed that management to address the current and accordance with the Act and its were determined to be essential for the future threats to the physical and implementing regulation at 50 CFR conservation of the species. Areas biological features of the laurel dace. 424.12(e), we considered whether designated as critical habitat for the These units are located on private designating additional areas—outside Cumberland darter include only stream property and are not presently under the those currently occupied as well as channels within the ordinary high water special management or protection those occupied at the time of listing— line and do not contain any developed provided by a legally operative plan or are necessary to ensure the conservation areas or structures. agreement for the conservation of the of the species. We are designating We are designating as critical habitat species. Various activities in or adjacent critical habitat in areas within the all stream reaches in occupied habitat. to these areas of critical habitat may geographical area occupied by the These stream reaches comprise the affect one or more of the physical and species at the time of listing in 2011. We entire known range of the species. As biological features. For example, also are designating specific areas discussed above, currently occupied features in this critical habitat outside the geographical area occupied habitat for the Cumberland darter is designation may require special by the Cumberland darter at the time of limited to 13 streams in McCreary and management due to threats posed by listing that are within the historical Whitley Counties, Kentucky, and resource extraction (coal and gravel range of the species, but currently Campbell and Scott Counties, mining, silviculture, natural gas and oil unoccupied, because we have Tennessee. All currently occupied areas exploration activities), agricultural determined that such areas are essential contain the physical or biological activities (row crops and livestock), lack for the conservation of the species. features of the species. of adequate riparian buffers, Below is a discussion of the criteria To identify essential areas outside of construction and maintenance of State used to identify critical habitat for each the geographical area occupied at the and county roads, nonpoint source of the five species. time of listing, we identified areas pollution arising from a wide variety of historically occupied (currently human activities, and canopy loss Cumberland Darter unoccupied) in the upper Cumberland caused by infestations of the hemlock We are designating critical habitat in River basin in Kentucky (McCreary and woolly adelgid. These threats are in areas within the geographical area Whitley Counties) and Tennessee addition to random effects of drought, occupied by the Cumberland darter at (Campbell and Scott Counties). We then floods, or other natural phenomena. the time of listing in 2011. We also are assessed the critical life-history Other activities that may affect physical designating specific areas outside the components of the Cumberland darter, and biological features in the critical geographical area occupied by the as they relate to the physical or habitat units include those listed in the species at the time of listing that were biological features. We determined the Effects of Critical Habitat Designation historically occupied but are presently appropriate length of stream segments section below. unoccupied, because we have by identifying the upstream and Management activities that could determined that: (1) Such areas are downstream limits of unoccupied ameliorate these threats include, but are essential for the conservation of the sections necessary for the conservation not limited to: Use of BMPs designed to species; and (2) designation of only of the Cumberland darter. reduce sedimentation, erosion, and bank occupied habitats is not sufficient to In addition, we are designating as side destruction; moderation of surface conserve this species. Unoccupied critical habitat reaches that were not and ground water withdrawals to habitats provide additional habitat for occupied by the Cumberland darter at maintain natural flow regimes; increase population expansion and promote the time of listing, but that are located of stormwater management and greater genetic diversity, which will within the historical range of the reduction of stormwater flows into the decrease the risk of extinction for the species. During our evaluation of systems; preservation of headwater species. unoccupied stream reaches, we streams; regulation of off-road vehicle We used information from surveys considered the availability of potential use; and reduction of other watershed and reports prepared by the Kentucky habitat throughout the historical range and floodplain disturbances that release Department of Fish and Wildlife that may be essential to the survival and sediments, acid mine drainage, Resources, Kentucky Division of Water, conservation of the species. We pollutants, or nutrients into the water. and Service records to identify specific eliminated from consideration streams In summary, we find that the areas we locations occupied by the Cumberland with degraded habitat and water quality are designating as critical habitat for the darter. Delineations were based on the conditions, and other streams with

VerDate Mar<15>2010 17:42 Oct 15, 2012 Jkt 229001 PO 00000 Frm 00021 Fmt 4701 Sfmt 4700 E:\FR\FM\16OCR2.SGM 16OCR2 tkelley on DSK3SPTVN1PROD with RULES2 63624 Federal Register / Vol. 77, No. 200 / Tuesday, October 16, 2012 / Rules and Regulations

potentially suitable habitat but that are species is limited and isolated. The were occupied at the time of listing and separated from basins with occupied species is currently located within contain sufficient elements of physical habitats. This screening process tributaries of three watersheds in three or biological features to support life- produced two unoccupied stream counties in Alabama: the Turkey Creek history processes essential to the reaches (Indian Creek and Kilburn watershed (Jefferson County) (Drennen conservation of rush darter. Some units Fork), which we are designating as 2008, pers. obs.); the Clear Creek contain all of the identified elements of critical habitat. These reaches are watershed (Winston County); and the physical or biological features and adjacent to currently occupied areas Little Cove-Bristow Creek watershed support multiple life-history processes. where there is potential for natural (Etowah County). In the Turkey Creek Some units contain only some elements dispersal and reoccupation by the watershed, the species is found in four of the physical or biological features species. tributaries including Beaver Creek, an necessary to support the rush darter’s Currently occupied habitats of the unnamed tributary to Beaver Creek and particular use of that habitat. Cumberland darter are highly localized associated springs and wetland, the and fragmented, with populations Highway 79 site, and Tapawingo or Yellowcheek Darter separated from one another by an Penny Springs. In the Clear Creek We are designating critical habitat in average distance of 30.5 stream km (19 watershed, it is found in Wildcat areas within the geographical area stream mi). As explained above, this Branch, Doe Branch, and Mill Creek. In occupied by the yellowcheek darter at fragmentation and isolation of the Little Cove-Bristow Creek the time of listing in 2011. We are not populations reduces the amount of watershed, it is found in Little Cove designating any areas outside the space for rearing and reproduction, Creek, Cove Spring and spring run, and geographical area occupied by the reduces the connectivity between Bristow Creek. yellowcheek darter because occupied populations, and decreases genetic Following the identification of the areas are sufficient for the conservation diversity. Long-term viability is founded specific locations occupied by the rush of the species. on the conservation of numerous local darter, we determined the appropriate We used information from surveys populations that can move freely length of stream segments by identifying and reports prepared by Arkansas State between habitats and exchange genetic the upstream and downstream limits of University, Arkansas Tech University, information. These reaches are essential these occupied sections necessary for Arkansas Game and Fish Commission, to the Cumberland darter because they the conservation of the rush darter. Arkansas Department of Environmental provide additional habitat for Because populations of rush darters are Quality, and the Service to identify the population expansion and will promote isolated due to dispersal barriers, to set specific locations occupied by the connectivity and genetic exchange the upstream and downstream limits of yellowcheek darter. We identified those between populations; in addition, both each critical habitat unit, we identified areas for designation as critical habitat, streams support diverse fish landmarks (bridges, confluences, road within the geographical area occupied assemblages, including federally listed crossings, and dams), and in some by the species at the time of listing, that and at-risk species. instances latitude and longitude contain the physical or biological We are designating as critical habitat coordinates and section lines above and features of the yellowcheek darter and 13 units that we determined were below the upper and lowermost which may require special management occupied at the time of listing. These reported locations of the rush darter, in consideration or protection. All of the units are designated because sufficient each stream reach to ensure elements of physical or biological incorporation of all potential sites of areas we are designating are currently features are present to support occurrence. In addition, within the Cove part of ongoing recovery initiatives for Cumberland darter life-history Spring run and Tapawingo or Penny this species and are targeted for special processes. Two additional units outside Spring run, the total area of water that management considerations. the geographical area occupied by the is pooled, and is rush darter habitat, was We used ARCGIS to delineate the species at the time of listing are calculated in hectares (acres). The specific stream segments occupied by designated because we consider them to critical habitat areas were then mapped the yellowcheek darter at the time of be essential to the conservation of the using ARCGIS to produce the critical listing, which contain the physical or species. habitat map. biological features essential to the We are designating as critical habitat species. We assessed the critical life- Rush Darter all stream and spring reaches in history components of the yellowcheek We are designating critical habitat in occupied habitat. These stream reaches darter, as they relate to habitat. areas within the geographical area comprise the entire known range of the Delineations were based on the best occupied by the rush darter at the time rush darter. We are not designating any available scientific information of listing in 2011. We are not areas outside the occupied range of the indicating portions of streams designating any areas outside the species because occupied areas are containing necessary physical or geographical area occupied by the rush sufficient for the conservation of the biological features necessary to support darter because occupied areas are species, and because the historical range the yellowcheek darter. We set the sufficient for the conservation of the of the rush darter, beyond currently upstream and downstream limits of species. occupied areas, is unknown and each critical habitat unit by identifying We used information from surveys dispersal beyond the current range is landmarks (bridges, confluences, road and reports prepared by the Alabama not likely due to dispersal barriers. crossings, dams, reservoir inundation Department of Conservation and Natural Areas designated for critical habitat for elevations) above and below the upper Resources, Alabama Geological Survey, the rush darter below include only and lowermost reported locations of the Samford University, University of stream channels within the ordinary yellowcheek darter in each stream reach Alabama, the U.S. Forest Service, the high water line and spring pool areas to ensure incorporation of all potential Natural Resources Conservation Service, and do not contain any developed areas sites of occurrence. Areas designated as and the Service to identify the specific or structures. yellowcheek darter critical habitat locations occupied by the rush darter. We are designating as critical habitat include only stream channels within the Currently, occupied habitat for the eight units that we have determined ordinary high water line and do not

VerDate Mar<15>2010 17:42 Oct 15, 2012 Jkt 229001 PO 00000 Frm 00022 Fmt 4701 Sfmt 4700 E:\FR\FM\16OCR2.SGM 16OCR2 tkelley on DSK3SPTVN1PROD with RULES2 Federal Register / Vol. 77, No. 200 / Tuesday, October 16, 2012 / Rules and Regulations 63625

contain any developed areas or stream channel within the ordinary high sufficient elements of physical or structures. water line and does not contain any biological features present to support We are designating as critical habitat developed areas or structures. laurel dace life-history processes. All four units that we have determined were units contain all of the identified Laurel Dace occupied at the time of listing and elements of physical or biological contain sufficient elements of physical We are designating critical habitat in features and support multiple life- or biological features to support life- areas within the geographical area history processes. history processes essential to the occupied by the laurel dace at the time When determining critical habitat conservation of the yellowcheek darter. of listing in 2011. We are not boundaries, we made every effort to All units contain all of the identified designating any areas outside the avoid including developed areas such as elements of physical or biological geographical area occupied by the laurel lands covered by buildings, pavement, features and support multiple life- dace because occupied areas are and other structures because such lands history processes. sufficient for the conservation of the usually lack physical and biological species. features for the listed species. The scale Chucky Madtom We used information from surveys of the maps we prepared under the We are designating critical habitat in and reports prepared by the Tennessee parameters for publication within the areas within the geographical area Valley Authority, Tennessee Wildlife Code of Federal Regulations may not occupied by the Chucky madtom at the Resources Agency, University of reflect the exclusion of such developed time of listing in 2011. We are not Tennessee, and the Service to identify lands. Any such lands inadvertently left designating any areas outside the the specific locations occupied by the inside critical habitat boundaries shown geographical areas occupied by the laurel dace. Currently, occupied habitat on the maps of this final rule have been Chucky madtom at the time of listing for the species is limited and isolated. excluded by text in the rule and are not because the historical range, beyond The species is currently located in three designated as critical habitat. Therefore, currently occupied areas, is not well independent systems: Soddy Creek, the a Federal action involving these lands known. Sale Creek system, and the Piney River would not trigger section 7 consultation We used information from surveys system. Following the identification of with respect to critical habitat and the and reports prepared by Conservation the specific locations occupied by the requirement of no adverse modification Fisheries, Inc., and the Tennessee laurel dace, we determined the unless the specific action would affect Valley Authority to identify the specific appropriate length of stream segments the physical and biological features in locations occupied by the Chucky by identifying the upstream and the adjacent critical habitat. The madtom. Currently, occupied habitat for downstream limits of these occupied designation of critical habitat does not the species is limited and isolated. At sections necessary for the conservation imply that lands outside of critical the time of listing, the current range of of the laurel dace. Because populations habitat do not play an important role in the Chucky madtom was restricted to an of laurel dace are isolated due to the conservation of the species. approximately 3-km (1.8-mi) reach of dispersal barriers, to set the upstream The critical habitat designation is Little Chucky Creek in Greene County, and downstream limits of each critical defined by the map or maps, as Tennessee. habitat unit, we identified landmarks modified by any accompanying Following the identification of the (bridges, confluences, and road regulatory text, presented at the end of specific locations occupied by the crossings), and in some instances this document in the rule portion. We Chucky madtom, we determined the latitude and longitude coordinates and include more detailed information on appropriate length of stream segments section lines above and below the upper the boundaries of the critical habitat by identifying the upstream and and lowermost reported locations of the designation in the preamble of this downstream limits of these occupied laurel dace, in each stream reach to document. We will make the sections necessary for the conservation ensure incorporation of all potential coordinates or plot points or both on of the species. To set the upstream and sites of occurrence. The designated which each map is based available to downstream limits of the single critical critical habitat areas were then mapped the public on http://www.regulations. habitat unit, we identified landmarks using ARCGIS to produce the critical gov at Docket No. FWS–R4–ES–2011– (bridges, confluences, and road habitat unit maps. 0074, on our Internet sites at http:// crossings) above and below the upper We are designating as critical habitat www.fws.gov/cookeville/, and at the and lowermost reported locations of the all stream reaches in occupied habitat. field office responsible for the Chucky madtom in Little Chucky Creek We have defined occupied habitat as designation (see FOR FURTHER to ensure incorporation of all potential those stream reaches occupied at the INFORMATION CONTACT above). sites of occurrence. The critical habitat time of listing and still known to be We are designating as critical habitat areas were then mapped using ARCGIS occupied by the laurel dace; these lands that we have determined are to produce the critical habitat unit map. stream reaches comprise the entire occupied at the time of listing and We are designating as critical habitat known range of the laurel dace. Areas contain sufficient physical or biological a single stream reach in Little Chucky designated as critical habitat for the features to support life-history processes Creek, which is occupied habitat. This laurel dace include only stream essential for the conservation of these stream reach comprises the entire channels within the ordinary high water five species, and lands outside of the current known range of the Chucky line and do not contain any developed geographical area occupied at the time madtom. The unit contains one or more areas or structures. of listing that we have determined are of the physical or biological features in We are designating as critical habitat essential for the conservation of the the appropriate quantity and spatial six units that we determined were Cumberland darter. arrangement essential to the occupied at the time of listing and Units are designated based on conservation of this species and contain all of the identified elements of sufficient elements of physical or supports multiple life-history processes physical or biological features to biological features being present to for the Chucky madtom. The area support life-history processes essential support the Cumberland darter, rush designated for critical habitat for the to the conservation of the laurel dace. darter, yellowcheck darter, Chucky Chucky madtom includes only the Six units are designated based on madtom, and laurel dace life processes.

VerDate Mar<15>2010 17:42 Oct 15, 2012 Jkt 229001 PO 00000 Frm 00023 Fmt 4701 Sfmt 4700 E:\FR\FM\16OCR2.SGM 16OCR2 tkelley on DSK3SPTVN1PROD with RULES2 63626 Federal Register / Vol. 77, No. 200 / Tuesday, October 16, 2012 / Rules and Regulations

Some units contain all of the identified Final Critical Habitat Designation Creek, (4) Barren Fork, (5) Indian Creek, elements of physical or biological Cumberland Darter (6) Cogur Fork, (7) Kilburn Fork, (8) features and support multiple life Laurel Fork, (9) Laurel Creek, (10) Elisha processes. Some units contain only We are designating 15 units as critical Branch, (11) Jenneys Branch, (12) Wolf some elements of the physical or habitat for the Cumberland darter. These Creek, (13) Jellico Creek, (14) Rock biological features necessary to support units, which constitute our current best Creek, and (15) Capuchin Creek. Table the five species’ particular use of that assessment of areas that meet the 1 shows the occupancy of the units and definition of critical habitat for the habitat. ownership of the designated areas for Cumberland darter, are: (1) Bunches the Cumberland darter. Creek, (2) Calf Pen Fork, (3) Youngs

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

Federal, state, Private county, city Total length Unit Location Occupied ownership ownership rkm (rmi) rkm (rmi) rkm (rmi)

1 ...... Bunches Creek ...... Yes ...... 0 5.8 (3.6) 5.8 (3.6) 2 ...... Calf Pen Fork ...... Yes ...... 0 2.9 (1.8) 2.9 (1.8) 3 ...... Youngs Creek ...... Yes ...... 7.4 (4.6) 0 7.4 (4.6) 4 ...... Barren Fork ...... Yes ...... 0 6.3 (3.9) 6.3 (3.9) 5 ...... Indian Creek ...... No ...... 0 4.0 (2.5) 4.0 (2.5) 6 ...... Cogur Fork ...... Yes ...... 2.7 (1.7) 5.9 (3.7) 8.6 (5.4) 7 ...... Kilburn Fork ...... No ...... 0.9 (0.6) 3.7 (2.3) 4.6 (2.9) 8 ...... Laurel Fork ...... Yes ...... 1.3 (0.8) 2.2 (1.4) 3.5 (2.2) 9 ...... Laurel Creek ...... Yes ...... 0.6 (0.4) 8.8 (5.5) 9.4 (5.9) 10 ...... Elisha Branch ...... Yes ...... 0 2.1 (1.3) 2.1 (1.3) 11 ...... Jenneys Branch ...... Yes ...... 0 3.1 (1.9) 3.1 (1.9) 12 ...... Wolf Creek ...... Yes ...... 6.3 (3.9) 0 6.3 (3.9) 13 ...... Jellico Creek ...... Yes ...... 8.2 (5.1) 3.3 (2.1) 11.5 (7.2) 14 ...... Rock Creek ...... Yes ...... 3.9 (2.4) 2.2 (1.4) 6.1 (3.8) 15 ...... Capuchin Creek ...... Yes ...... 3.4 (2.1) 0.8 (0.5) 4.2 (2.6)

Total ...... 85.8 (53.5)

We present brief descriptions of all Unit 1: Bunches Creek, Whitley County, 146.241). The Bunches Creek- units and reasons why they meet the Kentucky Cumberland River confluence is located definition of critical habitat for the approximately 3.0 km (1.9 mi) upstream Cumberland darter. The designated This unit is located between Kentucky of Cumberland Falls. The Bunches critical habitat units include the stream Highway 90 (KY 90) and the Creek watershed is relatively channels of the creek within the Cumberland River and includes 5.8 rkm undisturbed, and access is limited (no (3.6 rmi) of Bunches Creek from the ordinary high water line. As defined in road crossings). The channel within confluence of Seminary Branch and 33 CFR 329.11, the ordinary high water Unit 1 is relatively stable, with excellent Amos Falls Branch downstream to its mark on nontidal rivers is the line on instream habitat (PCE 1). There is an confluence with the Cumberland River. the shore established by the fluctuations abundance of pool and run habitats Live Cumberland darters have been (PCE 1), with relatively silt-free sand of water and indicated by physical captured at two sites within Unit 1 characteristics, such as a clear, natural and bedrock substrates (PCE 2) and (Thomas 2007, pp. 11–12), specifically adequate instream flows (PCE 3). Water line impressed on the bank; shelving; at the mouth of Bunches Creek and just quality is good to excellent (PCE 4), as changes in the character of soil; below its confluence with Calf Pen Fork. evidenced by diverse fish and destruction of terrestrial vegetation; the This unit was included in the macroinvertebrate communities (PCE 5). presence of litter and debris; or other geographical area occupied by the Within Unit 1, the Cumberland darter appropriate means that consider the species at the time of listing and and its habitat may require special characteristics of the surrounding areas. contains elements of essential physical management considerations or Critical habitat units are either in or biological features. This unit is protection to address potential adverse private ownership or public ownership. located entirely on Federal lands within effects associated with silviculture- In Kentucky and Tennessee, the owners the DBNF. Land and resource related activities, natural gas and oil of adjacent land also own the land management decisions and activities exploration activities in headwater under non-navigable streams (e.g., the within the DBNF are guided by DBNF’s reaches, illegal off-road vehicle use and stream channel or bottom), but the water LRMP (USFS 2004, pp. 1–14). The lower other recreational activities, nonpoint is under State jurisdiction. Portions of portion of Bunches Creek (stream rkm 0 source pollution originating in the public-to-private boundary for units to 0.3 (rmi 0 to 0.1)) flows through a headwater reaches, and canopy loss 6, 7, 8, 9, and 13 were located along the designated Kentucky Wild River caused by infestations of the hemlock mid-line of the stream channel; lengths corridor (KRS 146.200 to 146.360) that woolly adelgid. extends along an approximately 25.7 km for these segments were divided equally Unit 2: Calf Pen Fork, Whitley County, between public and private ownership. (16 mi) reach of the Cumberland River. This Wild River corridor extends from Kentucky Summer Shoals downstream to the This unit includes 2.9 rkm (1.8 rmi) backwaters of Lake Cumberland (KRS of Calf Pen Fork, a tributary of Bunches

VerDate Mar<15>2010 17:42 Oct 15, 2012 Jkt 229001 PO 00000 Frm 00024 Fmt 4701 Sfmt 4700 E:\FR\FM\16OCR2.SGM 16OCR2 tkelley on DSK3SPTVN1PROD with RULES2 Federal Register / Vol. 77, No. 200 / Tuesday, October 16, 2012 / Rules and Regulations 63627

Creek, from its confluence with Polly in spawning, foraging, and other and 2. The watershed is mostly forested, Hollow downstream to its confluence behaviors (PCEs 1 and 2). Flow is with relatively stable channels (PCE 1), with Bunches Creek. Live Cumberland adequate as measured during years with abundant pool and run habitats (PCE 1), darters have been captured in Calf Pen average rainfall (PCE 3), water quality is relatively silt-free sand and bedrock Fork just above its confluence with adequate (PCE 4), and macroinvertebrate substrates (PCE 2), adequate flow (PCE Bunches Creek (Thomas 2007, pp. 11– prey items are present (PCE 5). 3), adequate water quality (PCE 4), and 12). This unit was included in the Within this unit, the Cumberland a diverse macroinvertebrate community geographical area occupied by the darter and its habitat may require (PCE 5). species at the time of listing and special management considerations or Within this unit, the Cumberland contains elements of essential physical protection to address potential adverse darter and its habitat may require or biological features. This unit is effects caused by resource extraction special management considerations or located entirely on Federal lands within (mining, silviculture, natural gas and oil protection to address potential adverse the DBNF. Land and resource exploration activities), agricultural effects caused by resource extraction management decisions and activities activities (livestock), lack of adequate (mining, silviculture, natural gas and oil within the DBNF are guided by DBNF’s riparian buffers, perched road culverts exploration activities), lack of adequate LRMP (USFS 2004, pp. 1–14). Similar to or impassable road crossings (fords), riparian buffers, construction and the watershed of Unit 1, the Calf Pen construction and maintenance of State maintenance of county roads, illegal off- Fork watershed is relatively and county roads, illegal off-road road vehicle use, nonpoint source undisturbed, and access is limited (no vehicle use, nonpoint source pollution pollution arising from a wide variety of road crossings). Within Unit 2, the arising from a wide variety of human human activities, and canopy loss channel is relatively stable, with activities, and canopy loss caused by caused by infestations of the hemlock excellent instream habitat (PCE 1), an infestations of the hemlock woolly woolly adelgid. abundance of run and pool habitats adelgid. Unit 5: Indian Creek, McCreary County, (PCE 1), relatively silt-free sand and Unit 4: Barren Fork, McCreary County, Kentucky bedrock substrates (PCE 2), and Kentucky adequate instream flows (PCE 3). Water Unit 5 includes 4.0 rkm (2.5 rmi) of quality is good to excellent (PCE 4), Unit 4 includes 6.3 rkm (3.9 rmi) of Indian Creek from its confluence with with diverse fish and macroinvertebrate Barren Fork from its confluence with an Strunk Branch, downstream to its communities (PCE 5). unnamed tributary downstream to its confluence with Barren Fork. Live Within Unit 2, the Cumberland darter confluence with Indian Creek. Based on Cumberland darters have not been and its habitat may require special survey results by Thomas (2007, pp. 11– captured within Unit 5. This unit was management considerations or 12) and Stephens (2009, pp. 10–23), not included in the geographical area protection to address potential adverse Barren Fork supports the most robust occupied by the species at the time of effects associated with silviculture- population of Cumberland darters listing, and it is not currently occupied related activities, natural gas and oil within the species’ range. Over the past by the species. exploration activities, illegal off-road 4 years, over 75 Cumberland darters This unit is located entirely on vehicle use and other recreational have been observed within this unit Federal lands within the DBNF. Land activities, nonpoint source pollution (Thomas 2007, pp. 11–12; Stephens and resource management decisions and arising from headwater reaches, and 2009, pp. 10–23). This unit was activities within the DBNF are guided canopy loss caused by infestations of included in the geographical area by DBNF’s LRMP (USFS 2004, pp. 1– the hemlock woolly adelgid. occupied by the species at the time of 14). listing and contains elements of This unit is located within the Unit 3: Youngs Creek, Whitley County, essential physical or biological features. historical range of the species, and is Kentucky This unit is located entirely on Federal adjacent to currently occupied areas Unit 3 includes 7.4 rkm (4.6 rmi) of lands within the DBNF. Land and where there is potential for natural Youngs Creek from Brays Chapel Road resource management decisions and dispersal and reoccupation by the downstream to its confluence with the activities within the DBNF are guided Cumberland darter. This unit is Cumberland River. Live Cumberland by DBNF’s LRMP (USFS 2004, pp. 1– essential for the conservation of the darters have been captured within Unit 14). In the summer and fall of 2008, the Cumberland darter because it provides 3 (Thomas 2007, pp. 11–12), specifically Barren Fork watershed was adversely additional habitat for population at the KY 204 bridge crossing. This unit affected by several large sedimentation expansion and will promote was included in the geographical area events originating from a county park connectivity and genetic exchange occupied by the species at the time of construction site in the headwaters of between adjacent units to the south listing and contains elements of the basin. Inadequate site planning and (Unit 4, Barren Fork) and to the north essential physical or biological features. poor BMP implementation allowed (Unit 6, Cogur Fork). This unit is located entirely on private significant quantities of sediment to land. The watershed of Youngs Creek is leave the construction site and enter Unit 6: Cogur Fork, McCreary County, less forested than Units 1 and 2, with headwater tributaries of Barren Fork. Kentucky scattered residences and small farms. The sediment was carried downstream Unit 6 includes 8.6 rkm (5.4 rmi) of The channel is relatively stable (PCE 1), into the mainstem of Barren Fork, Cogur Fork from its confluence with an but activities associated with eventually affecting the entire reach of unnamed tributary downstream to its agriculture, silviculture, and residential Unit 4. Until the construction site was confluence with Indian Creek. Live development have contributed to a more stabilized in 2009, important spawning Cumberland darters have been captured open riparian zone, increased bank and foraging habitats for the at several locations within an erosion, and some siltation of instream Cumberland darter were degraded. approximately 1-km (0.62-mi) reach habitats. Despite these impacts, Unit 3 Despite these significant adverse upstream of the KY 1045 road crossing continues to provide pool and run effects, habitat conditions have (Thomas 2010, pers. comm.). This unit habitats with suitable sand and bedrock improved since 2008, and are now was included in the geographical area substrates for Cumberland darters to use similar to those described for Units 1 occupied by the species at the time of

VerDate Mar<15>2010 17:42 Oct 15, 2012 Jkt 229001 PO 00000 Frm 00025 Fmt 4701 Sfmt 4700 E:\FR\FM\16OCR2.SGM 16OCR2 tkelley on DSK3SPTVN1PROD with RULES2 63628 Federal Register / Vol. 77, No. 200 / Tuesday, October 16, 2012 / Rules and Regulations

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

VerDate Mar<15>2010 17:42 Oct 15, 2012 Jkt 229001 PO 00000 Frm 00026 Fmt 4701 Sfmt 4700 E:\FR\FM\16OCR2.SGM 16OCR2 tkelley on DSK3SPTVN1PROD with RULES2 Federal Register / Vol. 77, No. 200 / Tuesday, October 16, 2012 / Rules and Regulations 63629

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

VerDate Mar<15>2010 17:42 Oct 15, 2012 Jkt 229001 PO 00000 Frm 00027 Fmt 4701 Sfmt 4700 E:\FR\FM\16OCR2.SGM 16OCR2 tkelley on DSK3SPTVN1PROD with RULES2 63630 Federal Register / Vol. 77, No. 200 / Tuesday, October 16, 2012 / Rules and Regulations

of listing and contains elements of infestations of the hemlock woolly substrates for Cumberland darters to use essential physical or biological features. adelgid. in spawning, foraging, and other A portion of this unit (2.2 rkm (1.4 rmi)) behaviors (PCEs 1 and 2). Flow is Unit 15: Capuchin Creek, McCreary and is in public ownership (DBNF), but the adequate as measured during years with Whitley Counties, Kentucky, and majority (3.9 rkm (2.4 rmi)) is in private average rainfall (PCE 3), water quality is Campbell County, Tennessee ownership. Land and resource adequate (PCE 4), and macroinvertebrate management decisions and activities Unit 15 includes 4.2 rkm (2.6 rmi) of prey items are present (PCE 5). within the DBNF are guided by DBNF’s Capuchin Creek from its confluence Within this unit, the Cumberland LRMP (USFS 2004, pp. 1–14). with Hatfield Creek downstream to its darter and its habitat may require Most of the watershed is forested confluence with Jellico Creek. Live special management considerations or (especially along the ridge tops), but the Cumberland darters have been captured protection to address potential adverse valley floor has several open fields and within Unit 15 at the Kentucky- effects caused by resource extraction is easily accessible via Little Rock Creek Tennessee State line (Thomas 2007, pp. (mining, silviculture, natural gas and oil Road. Portions of the channel in Unit 14 11–12). This unit was included in the exploration activities), agricultural have been modified by beaver (with geographical area occupied by the activities (livestock), lack of adequate some ponding), but it continues to be species at the time of listing and riparian buffers, perched road culverts relatively stable, with excellent instream contains elements of essential physical or impassable road crossings (fords), habitat (PCE 1), an abundance of run or biological features. A portion of this construction and maintenance of State and pool habitats (PCE 1), relatively silt- unit in Kentucky (0.8 rkm (0.5 rmi)) is and county roads, illegal off-road free sand and bedrock substrates (PCE in public ownership (DBNF); the vehicle use, and nonpoint source 2), and adequate instream flows (PCE 3). remainder in Kentucky and Tennessee pollution arising from a wide variety of Water quality is good to excellent (PCE (3.4 rkm (2.1 rmi)) is in private human activities. 4), with diverse fish and ownership. Land and resource Rush Darter macroinvertebrate communities (PCE 5). management decisions and activities Within this unit, the Cumberland within the DBNF are guided by DBNF’s We are designating eight units as darter and its habitat may require LRMP (USFS 2004, pp. 1–14). critical habitat for the rush darter. The special management considerations or Land use within the watershed of below units, which constitute our protection to address potential adverse Capuchin Creek is predominately forest, current best assessment of areas that effects caused by resource extraction with scattered residences and small meet the definition of critical habitat for (mining, silviculture, natural gas and oil farms (cattle and hay production). The the rush darter, are: (1) Beaver Creek, (2) exploration activities), agricultural channel in Unit 15 is relatively stable Unnamed Tributary to Beaver Creek and activities (livestock), lack of adequate (PCE 1), but activities associated with Highway 79 Spring Site, (3) Tapawingo riparian buffers, perched road culverts agriculture, silviculture, and residential or Penny Spring and Spring Run, (4) or impassable road crossings (fords), development have contributed to a more Wildcat Branch, (5) Mill Creek, (6) Doe construction and maintenance of State open riparian zone, increased bank Branch, (7) Little Cove Creek, Cove and county roads, illegal off-road erosion, and some siltation of instream Spring Site, and (8) Bristow Creek. vehicle use, nonpoint source pollution habitats. Despite these impacts, Unit 15 Table 2 shows the occupancy of the arising from a wide variety of human continues to provide pool and run units and ownership of the designated activities, and canopy loss caused by habitats with suitable sand and bedrock areas for the rush darter.

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

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

1 ...... Beaver Creek ...... Yes ...... 0.9 (0.6) <0.1 (<0.1) 1.0 (0.6) ...... 2 ...... Unnamed Tributary to Yes ...... 3.7 (2.3) 0.7 (0.4) 4.4 (2.7) 0.1 (0.3) Beaver Creek and High- way 79 Spring Site. 3 ...... Tapawingo or Penny Yes ...... 0.6 (0.4) <0.1 (<0.06) 0.6 (0.4) 6.7 (16.5) Spring and Spring Run. 4 ...... Wildcat Branch ...... Yes ...... 6.6 (4.1) <0.1 (<0.06) 6.6 (4.1) ...... 5 ...... Mill Creek ...... Yes ...... 5.9 (3.7) <0.1 (<0.06) 5.9 (3.7) ...... 6 ...... Doe Branch ...... Yes ...... 4.3 (2.7) <0.1 (<0.06) 4.3 (2.7) ...... 7 ...... Little Cove Creek, Cove Yes ...... 11.2 (6.1) <0.1 (<0.06) 11.2 (6.1) 5.1 (12.7) Spring, Spring Run. 8 ...... Bristow Creek ...... Yes ...... 10.2 (6.3) <0.1 (<0.06) 10.2 (6.3) ......

Total* ...... 44.2 (26.6) 11.9 (29.5) * Totals may not sum due to rounding. ** Total area in ha (ac) are in private ownership.

We present brief descriptions of each flooded spring pool in the case of line on nontidal rivers is the line on the unit and reasons why they meet the Tapawingo or Penny Springs (Jefferson shore established by the fluctuations of definition of critical habitat below. The County), Unnamed Tributary to Beaver water and indicated by physical designated critical habitat units include Creek (Jefferson County), and Cove characteristics such as a clear, natural the stream channels of the creek within Springs (Etowah County). As defined in water line impressed on the bank; the ordinary high water line, and the 33 CFR 329.11, the ordinary high water shelving; changes in the character of

VerDate Mar<15>2010 17:42 Oct 15, 2012 Jkt 229001 PO 00000 Frm 00028 Fmt 4701 Sfmt 4700 E:\FR\FM\16OCR2.SGM 16OCR2 tkelley on DSK3SPTVN1PROD with RULES2 Federal Register / Vol. 77, No. 200 / Tuesday, October 16, 2012 / Rules and Regulations 63631

soil; destruction of terrestrial vegetation; use, sewer, gas and water easements, groundwater that constantly supplies the presence of litter and debris; or bridge and road construction and this reach with clean and flowing water other appropriate means that consider maintenance, culvert and pipe (PCEs 3 and 4), the reach has been able the characteristics of the surrounding installation, and other watershed and to support significant emergent areas. In Alabama, the riparian floodplain disturbances that release vegetation in shallow water on the landowner owns the stream to the sediments or nutrients into the water. margins to support several rush darter middle of the channel for non-navigable There are three road crossings over populations. The headwaters of the streams and rivers. For the spring pools, Beaver Creek (Pinson Valley Parkway, Unnamed Tributary to Beaver Creek is the area was determined and delineated Old Bradford Road, and Spring Street) characterized by natural flows that are by the presence of emergent vegetation that at times may limit the overall attributed to an abundance of spring patterns as noted on aerial photographs. connectivity and movement of the groundwater discharges contributing species within this unit. Movement adequate water quality, water quantity, Unit 1: Beaver Creek, Jefferson County, might be limited due to changes in flow emergent vegetation and appropriate Alabama regime and habitat, including emergent substrates (PCEs 1, 2, 3, and 4). The 0.13 Unit 1 includes 1.0 rkm (0.6 rmi) of vegetation, water quality, water ha (0.33 ac) spring run and associated Beaver Creek from the confluence with quantity, and stochastic events such as wetlands is characterized by adequate Dry Creek, downstream to the drought. Populations of rush darters are spring water flow and associated confluence with Turkey Creek. This unit small and isolated within specific vegetation (PCEs 1 and 2). Increasing the was included in the geographical area habitat sites of Beaver Creek. connectivity of the rush darter occupied by the species at the time of Unit 2: Unnamed Tributary to Beaver populations (PCE 1) throughout the listing and contains elements of reaches of this tributary is an essential essential physical or biological features. Creek and Highway 79 Spring Site, Jefferson County, Alabama conservation requirement as it would Almost 0.9 rkm (0.6 rmi), or 94 percent decrease the vulnerability of these of this area is privately owned. The Unit 2 includes 4.4 rkm (2.7 rmi) of populations to stochastic threats. The remaining 0.1 rkm (< 0.1 rmi), or 6 the Unnamed Tributary of Beaver Creek Highway 79 Spring Site is the type percent, is publicly owned by the City and two spring runs. The site begins at locality for the species (Bart 2004, p. of Pinson or Jefferson County in the the Section 1 and 2 (T16S, R2W) line, 194), supporting populations of rush form of bridge crossings and road as taken from the U.S. Geological darters and providing supplemental easements. Survey 7.5 topographical map (Pinson water quantity to the Unnamed Beaver Creek contains adequate quadrangle), downstream to its Tributary to Beaver Creek (PCEs 1 and bottom substrate and emergent confluence with Dry Creek, and 3). The reach contains adequate bottom vegetation for rush darters to use in includes a spring run beginning at the substrate and emergent vegetation for spawning, foraging, and other life springhead (33.67449, -86.69300) just rush darters to use in spawning, processes (PCE 2). Beaver Creek makes northwest of Old Pinson Road and foraging, and other life processes (PCE available additional habitat and intersecting with the Unnamed 2). The Highway 79 Spring site provides spawning sites, and offers connectivity Tributary to Beaver Creek on the west habitat and spawning sites, and offers with other rush darter populations side of Highway 79, and a spring connectivity with rush darter within the Highway 79 Spring System associated wetland (0.1 ha, 0.33 ac) populations in the Unnamed Tributary site and the Unnamed Tributary to within the headwaters, south of Pinson to Beaver Creek (PCE 1). Beaver Creek (PCE 1). Heights Road, flowing 0.9 km (0.05 mi) Threats to the rush darter and its Beaver Creek provides habitat for the from the northwest (33.668173, habitat that may require special rush darters with adequate number of -86.708577) and adjoining to the management and protection of PBFs are: pools, riffles, runs (PCE 1), and Unnamed Tributary (33.667344,- Urbanization activities (such as channel emergent vegetation (PCE 2). These 86.707429). This unit was included in modification for flood control, and geomorphic structures provide the the geographical area occupied by the gravel extraction) that could result in species with spawning, foraging, and species at the time of listing and increased bank erosion; significant resting areas (PCE 1), along with good contains elements of essential physical changes in the existing flow regime due water quality, quantity, and flow, which or biological features. to inadequate stormwater management support the normal life stages and Almost 3.7 rkm (2.3 rmi), or 85 and impoundment construction, water behavior of the rush darter (PCEs 3 and percent, of this area is privately owned. diversion, or water withdrawal; 4), the species’ prey sources (PCE 5), The remaining 0.7 rkm (0.4 rmi), or 15 significant alteration of water quality; and associated aquatic vegetation. percent, is publicly owned by the City and significant changes in stream bed Threats to the rush darter and its of Pinson or Jefferson County in the material composition and quality as a habitat at Beaver Creek that may require form of bridge crossings and road result of construction projects and road special management of the PBFs include easements. maintenance activities, off-road vehicle the potential of: Urbanization activities The Unnamed Tributary to Beaver use, sewer, gas and water easements, (such as channel modification for flood Creek supports populations of rush bridge construction, culvert and pipe control, construction of impoundments, darters and is a feeder stream to Beaver installation, and other watershed and and gravel extraction) that could result Creek (PCEs 1 and 2). The Unnamed floodplain disturbances that release in increased bank erosion; significant Tributary to Beaver Creek has been sediments or nutrients into the water. changes in the existing flow regime due intensely geomorphically changed by to inadequate stormwater management, man over the last 100 years. The Unit 3: Tapawingo or Penny Spring and water diversion, or water withdrawal; majority of this reach has been Spring Run, Jefferson County, Alabama significant alteration of water quality; channelized for flood control, as it runs Unit 3 includes 0.6 rkm (0.4 rmi) of and significant changes in stream bed parallel to Highway 79. There are spring run, historically called material composition and quality as a several bridge crossings and culverts Tapawingo Plunge, along with 6.7 ha result of construction projects and that interfere with connectivity, and the (16.5 ac) of flooded spring basin making maintenance activities, destruction of reach has a history of industrial uses up Penny Springs. Unit 3 is located emergent vegetation, off-road vehicle along the bank. However, owing to the south of Turkey Creek, north of Bud

VerDate Mar<15>2010 17:42 Oct 15, 2012 Jkt 229001 PO 00000 Frm 00029 Fmt 4701 Sfmt 4700 E:\FR\FM\16OCR2.SGM 16OCR2 tkelley on DSK3SPTVN1PROD with RULES2 63632 Federal Register / Vol. 77, No. 200 / Tuesday, October 16, 2012 / Rules and Regulations

Holmes Road, and just east of privately owned except for that small and flow (PCEs 3 and 4), which support Tapawingo Trail Road. The east amount that is publicly owned by the normal life stages and behavior of boundary is at (33.69903, -86.66528): 1.0 Winston County in the form of bridge the rush darter and the species’ prey km (0.6 mi) west of Section Line 28 to crossings and road easements. sources (PCE 5). Rush darters are 29 (T15S, R1W) (U.S. Geological Survey Wildcat Branch provides habitat for consistently collected in Mill Creek. 7.5 topographical map (Pinson rush darters with a network of small Threats that may require special quadrangle)). This unit was included in pools and spring runs, along with an management and protection of PBFs the geographical area occupied by the abundance of emergent vegetation (PCE include: Poor silviculture and species at the time of listing and 1 and 2). These geomorphic structures agriculture practices; road and roadside contains elements of essential physical provide the species with spawning, maintenance; local residential or biological features. All 0.6 rkm (0.4 foraging, and resting areas (PCE 1), development and urbanization activities rmi) and 6.7 ha (16.5 ac) of Unit 3 is along with good water quality, quantity, (such as channel modification for flood privately owned except for that small and flow (PCEs 3 and 4), which support control and gravel extraction) that could amount that is publicly owned in the the normal life stages and behavior of result in increased bank erosion; form of bridge crossings and road the rush darter and the species’ prey significant changes in the existing flow easements. sources (PCE 5). Rush darters are regime due to inadequate stormwater The Tapawingo or Penny Spring consistently collected in Wildcat management and impoundment complex consists of an abundance of Branch, but not in large numbers. construction, water diversion, or water springs that drain directly into Turkey Threats that may require special withdrawal; significant alteration of Creek by means of a large spring run at management and protection of physical water quality; significant alteration or the old railroad crossing and Tapawingo and biological features include: Poor destruction of aquatic and emergent Springs Road (PCEs 1 and 2). The silviculture and agriculture practices; vegetation; and significant changes in historical spring run discharge ranges road and roadside maintenance; local stream bed material composition and from 0.03 to 2.4 cubic meters per second residential development and quality as a result of construction (m3/s) (500 to 38,800 gallons per minute urbanization activities (such as channel projects and maintenance activities, off- (gal/min)) (Chandler and Moore 1987, p. modification for flood control and road vehicle use, sewer, gas and water 49), and there is an abundance of gravel extraction) that could result in easements, bridge construction, culvert emergent vegetation (PCEs 1, 2, and 3). increased bank erosion; significant and pipe installation, and other Historically small numbers of rush changes in the existing flow regime due watershed and floodplain disturbances darter have been collected in the spring to inadequate stormwater management that release sediments or nutrients into area. and impoundment construction, water the water. Threats to the rush darter and its diversion, or water withdrawal; habitat that may require special significant alteration of water quality; Unit 6: Doe Branch, Winston County, management and protection of physical significant alteration or destruction of Alabama and biological features are: Urbanization aquatic and emergent vegetation; and Unit 6 includes 4.3 rkm (2.7 rmi) of activities (such as channel modification significant changes in stream bed Doe Branch from the stream headwaters for flood control, vegetation material composition and quality as a north and west of Section Line 23 and management, and gravel extraction) that result of construction projects and 14 (R9W, T11S; Popular Springs could result in increased bank erosion; maintenance activities, off-road vehicle Quadrangle) to the confluence with significant changes in the existing flow use, sewer, gas and water easements, Wildcat Branch. This unit was included regime due to inadequate stormwater bridge construction, culvert and pipe in the geographical area occupied by the management and impoundment installation, and other watershed and species at the time of listing and construction, water diversion, or water floodplain disturbances that release contains elements of essential physical withdrawal; significant alteration of sediments or nutrients into the water. or biological features. Almost 4.3 rkm water quality; introduced species; (2.7 rmi), or 100 percent, of this area is Unit 5: Mill Creek, Winston County, significant alteration or destruction of privately owned except for that small aquatic and emergent vegetation; and Alabama amount that is publicly owned by significant changes in stream bed Unit 5 includes 5.9 rkm (3.7 rmi) of Winston County in the form of bridge material composition and quality as a Mill Creek from the stream headwaters crossings and road easements. result of construction projects and just east of Winston County Road 195 to Doe Branch provides habitat for the maintenance activities, off-road vehicle the confluence with Clear Creek. This rush darter with a small network of use, sewer, gas and water easements, unit was included in the geographical small pools, and spring runs, along with bridge construction, culvert and pipe area occupied by the species at the time adequate emergent vegetation (PCE 1 installation, and other watershed and of listing and contains elements of and 2). These geomorphic structures floodplain disturbances that release essential physical or biological features. provide the species with spawning, sediments or nutrients into the water. Almost 5.9 rkm (3.7 rmi), or 100 foraging, and resting areas (PCE 1), percent, of this area is privately owned along with good water quality, quantity, Unit 4: Wildcat Branch, Winston except for that small amount that is and flow (PCEs 3 and 4), which support County, Alabama publicly owned by Winston County in the normal life stages and behavior of Unit 4 includes 6.6 rkm (4.1 rmi) of the form of bridge crossings and road the rush darter and the species’ prey Wildcat Branch from the streams easements. sources (PCE 5). Although the species is headwaters just east of Winston County Mill Creek provides habitat for the considered rare in Doe Branch, there Road 29 to the confluence with Clear rush darter with a network of small have been few collection attempts in the Creek. This unit was included in the pools, and spring runs, along with an stream with a few darters captured geographical area occupied by the abundance of emergent vegetation (PCE (Mettee et al. 1989, p. 61). Doe Branch species at the time of listing and 1 and 2). These geomorphic structures contains habitat for the species and is contains elements of essential physical provide the species with spawning, considered occupied. The stream joins or biological features. Almost 6.6 rkm foraging, and resting areas (PCE 1), Wildcat Branch before flowing into (4.1 rmi), or 100 percent, of this area is along with good water quality, quantity, Clear Creek.

VerDate Mar<15>2010 17:42 Oct 15, 2012 Jkt 229001 PO 00000 Frm 00030 Fmt 4701 Sfmt 4700 E:\FR\FM\16OCR2.SGM 16OCR2 tkelley on DSK3SPTVN1PROD with RULES2 Federal Register / Vol. 77, No. 200 / Tuesday, October 16, 2012 / Rules and Regulations 63633

Threats that may require special geomorphic structures provide the beginning at the bridge at Fairview management and protection of physical species with spawning, foraging, and Road, downstream to the confluence and biological features include: Poor resting areas (PCE 1), along with good with the Locust Fork River is privately silviculture and agriculture practices; water quality, quantity, and flow (PCEs owned except for that small amount that road and roadside maintenance; local 3 and 4), which support the normal life is publicly owned by Etowah County in residential development and stages and behavior of the rush darter the form of bridge crossings and road urbanization activities (such as channel and the species’ prey sources (PCE 5). easements. modification for flood control and Rush darters are collected in Little Cove Bristow Creek, although channelized gravel extraction) that could result in Creek, but not in large numbers. The in some locations, provides habitat and increased bank erosion; significant Cove Spring and Spring Run site connectivity for the rush darters (PCE changes in the existing flow regime due supports small populations of rush 1). Locations within the creek have the to inadequate stormwater management darters and provides supplemental necessary stream attributes of some and impoundment construction, water water quantity to Little Cove Creek diversion, or water withdrawal; (PCEs 1 and 3). Water quantity from the small pools, and spring runs (PCE 1) significant alteration of water quality; spring averages 0.2 m3/s (3,000 gal/min) along with emergent vegetation (PCE 2). significant alteration or destruction of (Snead 2011, pers. comm.) (PCE 4). The These geomorphic structures provide aquatic and emergent vegetation; and spring contains an abundance of gravel the species with spawning, foraging, significant changes in stream bed and silt along with significant emergent and resting areas (PCE 1), along with material composition and quality as a vegetation for rush darters to use in supplemental water quantity and flow result of construction projects and spawning, foraging, and other life (PCE 3), which support the normal life maintenance activities, off-road vehicle processes (PCE 2). The Cove Spring and stages and behavior of the rush darter use, sewer, gas and water easements, Spring Run site provides habitat and and the species’ prey sources (PCE 5). bridge construction, culvert and pipe spawning sites, and offers connectivity The rush darter is considered rare in installation, and other watershed and with rush darter populations to Little Bristow Creek, but sampling has been floodplain disturbances that release Cove Creek (PCE 1). limited. sediments or nutrients into the water. Threats that may require special Threats that may require special management and protection of physical Unit 7: Little Cove Creek, Cove Spring management and protection of physical and biological features include: Road and biological features include: Road and Spring Run, Etowah County, and roadside maintenance; agricultural Alabama and roadside maintenance; agricultural and silviculture activities that could and silviculture activities that could Unit 7 includes 11.2 rkm (6.1 rmi) of result in increased bank erosion; result in increased bank erosion; Little Cove Creek and the Cove Spring significant changes in the existing flow significant changes in the existing flow run system along with 5.1 ha (12.7 ac) regime due to inadequate stormwater regime due to inadequate stormwater of the spring run floodplain. management; impoundment management; significant alteration or Specifically, the Little Cove Creek construction, water diversion, or water destruction of aquatic and emergent section (11.0 rkm (6.0 rmi)) is from the withdrawal for livestock and irrigation; vegetation; impoundment construction, intersection of Etowah County Road 179 significant alteration or destruction of water diversion, or water withdrawal for near the creek headwaters, downstream aquatic and emergent vegetation; livestock and irrigation; and off-road to its confluence with the Locust Fork significant alteration of water quality vehicle use, sewer, gas and water River. The Cove Spring and spring run due to release of chlorinated water and easements, septic tank drain fields, section includes 0.2 rkm (0.1 rmi) of the other chemicals into the Cove Spring bridge construction and maintenance, spring run from the springhead at the run or Little Cove Creek by the water culvert and pipe installation, and other West Etowah Water and Fire Authority pumping facility or other sources; and watershed and floodplain disturbances pumping station on Cove Spring Road to off-road vehicle use, sewer, gas and that release sediments or nutrients into the confluence with Little Cove Creek water easements, bridge construction, the water. and includes 5.1 ha (12.7 ac) of the culvert and pipe installation, and other spring run floodplain due south of the watershed and floodplain disturbances Yellowcheek Darter pumping facility. This unit was that release sediments or nutrients into included in the geographical area the water. We are designating four units as occupied by the species at the time of critical habitat for the yellowcheek listing and contains elements of Unit 8: Bristow Creek, Etowah County, darter. These units, all of which are on essential physical or biological features. Alabama the Little Red River, constitute our All 11.2 rkm (6.1 rmi) of Unit 7 is Unit 8 includes 10.2 rkm (6.3 rmi) of current best assessment of areas that privately owned except for that small Bristow Creek beginning from its meet the definition of critical habitat for amount that is publicly owned by intersection with Fairview Cove Road, the yellowcheek darter and are as Etowah County in the form of bridge downstream to the confluence with the follows: (1) Middle Fork, (2) South Fork, crossings and road easements. Locust Fork River. This unit was (3) Archey Fork, and (4) Devil’s Fork Little Cove Creek provides habitat for included in the geographical area (includes Turkey Creek and Beech the rush darter with a network of small occupied by the species at the time of Fork). Table 3 shows the occupancy of pools, and spring runs, along with an listing and contains elements of the units and ownership of the abundance of emergent aquatic essential physical or biological features. designated areas for the yellowcheek vegetation (PCE 1 and 2). These All 10.2 rkm (6.3 rmi) of Bristow Creek, darter.

VerDate Mar<15>2010 17:42 Oct 15, 2012 Jkt 229001 PO 00000 Frm 00031 Fmt 4701 Sfmt 4700 E:\FR\FM\16OCR2.SGM 16OCR2 tkelley on DSK3SPTVN1PROD with RULES2 63634 Federal Register / Vol. 77, No. 200 / Tuesday, October 16, 2012 / Rules and Regulations

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

Private State, county, Unit Location Occupied ownership city ownership Total length rkm (rmi) rkm (rmi) rkm (rmi)

1 ...... Middle Fork Little Red River Yes ...... 73.2 (45.5) 0 73.2 (45.5) 2 ...... South Fork Little Red River .. Yes ...... 33.3 (20.7) 0.5 (0.3) 33.8 (21.0) 3 ...... Archey Fork Little Red River Yes ...... 28.2 (17.5) 0.3 (0.2) 28.5 (17.7) 4 ...... Devil’s Fork Little Red River Yes ...... 28.0 (17.4) 0 28.0 (17.4)

Total ...... 162.7 (101.1) 0.8 (0.5) 163.5 (101.6)

We present brief descriptions of all occupied by the species at the time of and just above the Hwy 65 Bridge in units and reasons why they meet the listing and contains elements of Clinton, Arkansas. This unit was definition of critical habitat for the essential physical or biological features. included in the geographical area yellowcheek darter. The designated Approximately 100 percent of Unit 1 is occupied by the species at the time of critical habitat units include the river privately owned. County and State road listing and contains elements of channels within the ordinary high water crossings exist in all three counties and essential physical or biological features. line. As defined in 33 CFR 329.11, the account for less than one percent of total Approximately 33.3 rkm (20.7 rmi), or ordinary high water mark on nontidal Unit 1 ownership. >99 percent, of Unit 2 is privately rivers is the line on the shore This unit contains stable riffle areas of owned, and 0.5 rkm (0.3 rmi) is within established by the fluctuations of water moderate to swift velocity (PCE 1) that the boundary of property owned by the and indicated by physical are relatively silt-free (PCE 2) and city of Clinton, Arkansas. County and characteristics, such as a clear, natural maintain surface flows year round (PCE State road crossings account for less line impressed on the bank; shelving; 3). Such characteristics are necessary for than one percent of total Unit 2 changes in the character of soil; reproductive and sheltering ownership. destruction of terrestrial vegetation; the requirements of yellowcheek darters. This unit contains stable riffle areas of presence of litter and debris; or other Water quality within this unit is also moderate to swift velocity (PCE 1) that appropriate means that consider the characterized by moderate temperatures, are relatively silt-free (PCE 2) and characteristics of the surrounding areas. relatively high dissolved oxygen maintain surface flows year round (PCE In Arkansas, the state owns the stream concentrations, moderate pH, and low 3). Such characteristics are necessary for channel within the ordinary high water levels of pollutants (PCE 4), which reproductive and sheltering lines for navigable streams and rivers, support abundant populations of requirements of yellowcheek darters. including all streams within the critical aquatic macroinvertebrates that serve as Water quality within this unit is also habitat designation for yellowcheek prey items for yellowcheek darters (PCE characterized by moderate temperatures, darter. For each stream reach designated 5). relatively high dissolved oxygen as a critical habitat unit, the upstream Threats that may require special concentrations, moderate pH, and low and downstream boundaries are management and protection of physical levels of pollutants (PCE 4), which described generally below. and biological features include: Changes support abundant populations of in the existing stream ecology due to aquatic macroinvertebrates that serve as Unit 1: Middle Fork of the Little Red activities associated with natural gas prey items for yellowcheek darters (PCE River, Searcy, Stone, and Van Buren development, livestock grazing, county 5). Counties, Arkansas road maintenance, timber harvest, water Threats that may require special diversion, gravel mining, and rock management and protection of physical Unit 1 includes 73.2 rkm (45.5 rmi) of harvesting operations. Alteration of and biological features include: Changes the Middle Fork of the Little Red River water quality and changes in streambed in the existing stream ecology due to from Searcy County Road 167 material composition from any other activities associated with natural gas approximately 3.4 km (2.1 mi) activities that would release sediments, development, livestock grazing, county southwest of Leslie, Arkansas, to a point nutrients, or toxins into the water also road maintenance, timber harvest, water on the stream 7.7 rkm (4.8 rmi) act as threats to the yellowcheek darter. diversion, and gravel mining. Alteration downstream (35.66515, -92.25942) of of water quality and changes in Unit 2: South Fork of the Little Red the Arkansas Highway 9 crossing of the streambed material composition from River, Van Buren County, Arkansas Middle Fork near Shirley, Arkansas. any other activities that would release The lower boundary coincides with the Unit 2 includes 33.8 rkm (21.0 rmi) of sediments, nutrients, or toxins into the 140.5-m (461-ft) elevation of the the South Fork of the Little Red River water also act as threats to the conservation pool for Greers Ferry Lake from Van Buren County Road 9 three yellowcheek darter. where suitable habitat becomes miles north of Scotland, Arkansas, to a inundated by Greers Ferry Lake and no point on the stream (35.57364, Unit 3: Archey Fork of the Little Red longer supports the yellowcheek darter. -92.42718) approximately 5.5 rkm (3.4 River, Van Buren County, Arkansas Live yellowcheek darters have been rmi) downstream of U.S. Highway 65 in Unit 3 includes 28.5 rkm (17.7 rmi) of collected from four sites within Unit 1. Clinton, Arkansas, where suitable the Archey Fork of the Little Red River The uppermost site is immediately habitat becomes inundated by Greers from its junction with South Castleberry below the Hwy 65 Bridge near Leslie, Ferry Lake and no longer supports the Creek to its confluence with the South Arkansas, and the lowermost site is yellowcheek darter. Live yellowcheek Fork of the Little Red River near immediately below the Hwy 9 Bridge in darters have been collected from four Clinton, Arkansas. Live yellowcheek Shirley, Arkansas (Wine and sites along the South Fork Little Red darters have been collected just above Blumenshine 2002, p. 18). This unit was River, including the uppermost the confluence of the Archey and South included in the geographical area boundary at the County Road 9 Bridge Forks (Wine et al. 2000, p. 10) and at a

VerDate Mar<15>2010 17:42 Oct 15, 2012 Jkt 229001 PO 00000 Frm 00032 Fmt 4701 Sfmt 4700 E:\FR\FM\16OCR2.SGM 16OCR2 tkelley on DSK3SPTVN1PROD with RULES2 Federal Register / Vol. 77, No. 200 / Tuesday, October 16, 2012 / Rules and Regulations 63635

point 15.3 rkm (9.5 rmi) above the any other activities that would release maintain surface flows year round (PCE confluence (Brophy and Stoeckel 2006, sediments, nutrients, or toxins into the 3). Such characteristics are necessary for p. 3). This unit was included in the water also act as threats to the reproductive and sheltering geographical area occupied by the yellowcheek darter. requirements of yellowcheek darters. species at the time of listing and Unit 4: Devil’s Fork of the Little Red Water quality within this unit is also contains elements of essential physical River (including Turkey Creek and characterized by moderate temperatures, or biological features. Unit 3 is nearly Beech Fork), Stone and Cleburne relatively high dissolved oxygen 100 percent privately owned with the Counties, Arkansas concentrations, moderate pH, and low exception of a small city park in levels of pollutants (PCE 4), which Clinton, Arkansas. County and State Unit 4 includes 28.0 rkm (17.4 rmi) of support abundant populations of road crossings and portions within the stream from Stone County Road 21 aquatic macroinvertebrates that serve as city of Clinton, Arkansas, account for approximately 3 miles north of Prim, prey items for yellowcheek darters (PCE less than one percent of total Unit 3 Arkansas, to a point (35.63556, 5). ownership. -92.03400) on the Devil’s Fork Threats that may require special This unit contains stable riffle areas of approximately 5.1 km (3.2 mi) southeast management and protection of physical moderate to swift velocity (PCE 1) that of Woodrow, Arkansas, where suitable are relatively silt-free (PCE 2) and habitat becomes inundated by Greers and biological features include: Changes maintain surface flows year round (PCE Ferry Lake and no longer supports the in the existing stream ecology due to 3). Such characteristics are necessary for yellowcheek darter. Live yellowcheek activities associated with natural gas reproductive and sheltering darters have not been collected at the development, livestock grazing, county requirements of yellowcheek darters. uppermost site (Turkey Creek) since road maintenance, timber harvest, water Water quality within this unit is also 1999 (Mitchell et al. 2002, p. 131). diversion, and gravel mining. Alteration characterized by moderate temperatures, However, Wine and Blumenshine (2002, of water quality and changes in relatively high dissolved oxygen p. 11) did detect yellowcheek darters in streambed material composition from concentrations, moderate pH, and low the Beech Fork, and it is likely that the any other activities that would release levels of pollutants (PCE 4), which species persists in very low numbers sediments, nutrients, or toxins into the support abundant populations of within the upper portions of the water also act as threats to the aquatic macroinvertebrates that serve as watershed during normal flow years. yellowcheek darter. prey items for yellowcheek darters (PCE This unit was included in the Chucky Madtom 5). geographical area occupied by the Threats that may require special species at the time of listing and We are designating one unit as critical management and protection of physical contains elements of essential physical habitat for the Chucky madtom. The and biological features include: Changes or biological features. Approximately unit, which constitutes our current best in the existing stream ecology due to 100 percent of Unit 4 is privately assessment of the area that meets the activities associated with natural gas owned. County road crossings exist in definition of critical habitat for the development, livestock grazing, county both counties and account for less than Chucky madtom, is Little Chucky Creek, road maintenance, timber harvest, water one percent of total Unit 4 ownership. which was occupied at the time of diversion, and gravel mining. Alteration This unit contains stable riffle areas of listing. Table 4 shows the occupancy of of water quality and changes in moderate to swift velocity (PCE 1) that the unit and ownership of the streambed material composition from are relatively silt-free (PCE 2) and designated unit for the Chucky madtom.

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

Private State, county, Unit Location Occupied ownership city ownership Total length rkm (rmi) rkm (rmi) rkm (rmi)

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

Total ...... 31.9 (19.8)

We present a brief description of the areas. Lands in the critical habitat unit the Chucky madtom has not been unit and reasons why it meets the are either in private ownership or public observed since 2004, we still consider it definition of critical habitat for the ownership (Greene County road to exist in Little Chucky Creek. Chucky madtom. The critical habitat easements). In Tennessee, landowners Observations of the species have always unit includes the river channel within own the land under non-navigable been sporadic, and it is a cryptic species the ordinary high water line. As defined streams (e.g., the stream channel or that is hard to locate. This unit was in 33 CFR 329.11, the ordinary high bottom), but the water is under State included in the geographical area water mark on nontidal rivers is the line jurisdiction. occupied by the species at the time of on the shore established by the Unit 1: Little Chucky Creek, Greene listing and contains elements of fluctuations of water and indicated by County, Tennessee essential physical or biological features. physical characteristics, such as a clear, Almost 31.9 rkm (19.8 rmi), or 100 natural line impressed on the bank; This unit includes 31.9 rkm (19.8 rmi) percent, of this area is privately owned shelving; changes in the character of of Little Chucky Creek from its except for that small amount that is soil; destruction of terrestrial vegetation; confluence with an unnamed tributary, publicly owned by Greene County in the the presence of litter and debris; or downstream to its confluence with the form of bridge crossings and road other appropriate means that consider Nolichucky River, at the Greene and easements. the characteristics of the surrounding Cocke County line, Tennessee. Although

VerDate Mar<15>2010 17:42 Oct 15, 2012 Jkt 229001 PO 00000 Frm 00033 Fmt 4701 Sfmt 4700 E:\FR\FM\16OCR2.SGM 16OCR2 tkelley on DSK3SPTVN1PROD with RULES2 63636 Federal Register / Vol. 77, No. 200 / Tuesday, October 16, 2012 / Rules and Regulations

This unit contains stable riffle and prey items for the Chucky madtom (PCE and county roads, gravel mining, and run areas of moderate to swift velocity 5). nonpoint source pollution arising from (PCE 1); flat gravel, cobble, and slab- This critical habitat unit is almost a wide variety of human activities. entirely located on private property and rock boulders that are relatively silt-free Laurel Dace (PCE 2); and surface flows that are is not presently under the special maintained year round (PCE 3). Such management or protection provided by We are designating six units as critical characteristics are necessary for a legally operative plan or agreement for habitat for the laurel dace. The units, reproductive and sheltering the conservation of the species. Various which constitute our current best requirements of Chucky madtoms. activities in or adjacent to the critical assessment of areas that meet the Water quality within this unit is also habitat unit described in this rule may definition of critical habitat for the characterized by moderate temperatures, affect one or more of the PBFs. Features laurel dace, are: (1) Bumbee Creek, (2) relatively high dissolved oxygen in this critical habitat designation that Youngs Creek, (3) Moccasin Creek, (4) may require special management are Cupp Creek, (5) Horn Branch, and (6) concentrations, moderate pH, and low due to threats posed by agricultural Soddy Creek. Table 5 shows the levels of pollutants (PCE 4), which activities (e.g., row crops and livestock), occupancy of the units and ownership support abundant populations of lack of adequate riparian buffers, of the designated areas for the laurel aquatic macroinvertebrates that serve as construction and maintenance of State dace.

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

Private State, county, Unit Location Occupied ownership city ownership Total length rkm (rmi) rkm (rmi) rkm (rmi)

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

Total ...... 42.2 (26.2)

We present brief descriptions of all Almost 7.7 rkm (4.7 rmi), or 100 nonpoint source pollution arising from units and reasons why they meet the percent, of this area is privately owned a wide variety of human activities, and definition of critical habitat for the except for that small amount that is canopy loss caused by infestations of laurel dace. The designated critical publicly owned by Bledsoe and Rhea the hemlock woolly adelgid. habitat units include the river channels Counties in the form of bridge crossings Unit 2: Youngs Creek, Bledsoe and Rhea within the ordinary high water line. As and road easements. Counties, Tennessee defined in 33 CFR 329.11, the ordinary This unit contains stable headwater high water mark on nontidal rivers is streams (PCE 1) that are relatively silt- Unit 2 includes 7.9 rkm (4.9 rmi) of the line on the shore established by the free, contain cobble and slab-rock Youngs Creek from its headwaters in fluctuations of water and indicated by boulder substrates with canopy cover Bledsoe County, downstream to its physical characteristics, such as a clear, (PCE 2), and have surface flows that are confluence with Moccasin Creek in natural line impressed on the bank; maintained year round (PCE 3). Such Rhea County, Tennessee. This unit was shelving; changes in the character of characteristics are necessary for included in the geographical area soil; destruction of terrestrial vegetation; reproductive and sheltering occupied by the species at the time of the presence of litter and debris; or requirements of laurel dace. Water listing and contains elements of other appropriate means that consider quality within this unit is also essential physical or biological features. the characteristics of the surrounding characterized by moderate temperatures, Almost 7.8 rkm (4.8 rmi), or 100 areas. Lands in critical habitat units are relatively high dissolved oxygen percent, of this area is privately owned either in private ownership or public concentrations, moderate pH, and low except for that small amount that is ownership (county road easements). In levels of pollutants (PCE 4), which publicly owned by Bledsoe and Rhea Tennessee, landowners own the land support abundant populations of Counties in the form of bridge crossings under non-navigable streams (e.g., the aquatic macroinvertebrates that serve as and road easements. stream channel or bottom), but the water prey items for laurel dace (PCE 5). This unit contains stable headwater is under State jurisdiction. Various activities in or adjacent to streams (PCE 1) that are relatively silt- these areas of critical habitat may affect free, contain cobble and slab-rock Unit 1: Bumbee Creek, Bledsoe and one or more of the physical and boulder substrates with canopy cover Rhea Counties, Tennessee biological features. Features in this (PCE 2), and have surface flows that are Unit 1 includes 7.8 rkm (4.8 rmi) of critical habitat designation that may maintained year round (PCE 3). Such Bumbee Creek from its headwaters in require special management are due to characteristics are necessary for Bledsoe County, downstream to its threats posed by resource extraction reproductive and sheltering confluence with Mapleslush Branch in (coal and gravel mining, silviculture, requirements of laurel dace. Water Rhea County, Tennessee. This unit was natural gas and oil exploration quality within this unit is also included in the geographical area activities), agricultural activities (row characterized by moderate temperatures, occupied by the species at the time of crops and livestock), lack of adequate relatively high dissolved oxygen listing and contains elements of riparian buffers, construction and concentrations, moderate pH, and low essential physical or biological features. maintenance of State and county roads, levels of pollutants (PCE 4), which

VerDate Mar<15>2010 17:42 Oct 15, 2012 Jkt 229001 PO 00000 Frm 00034 Fmt 4701 Sfmt 4700 E:\FR\FM\16OCR2.SGM 16OCR2 tkelley on DSK3SPTVN1PROD with RULES2 Federal Register / Vol. 77, No. 200 / Tuesday, October 16, 2012 / Rules and Regulations 63637

support abundant populations of a wide variety of human activities, and Bledsoe County in the form of bridge aquatic macroinvertebrates that serve as canopy loss caused by infestations of crossings and road easements. prey items for laurel dace (PCE 5). the hemlock woolly adelgid. This unit contains stable headwater Various activities in or adjacent to streams (PCE 1) that are relatively silt- these areas of critical habitat may affect Unit 4: Cupp Creek, Bledsoe County, free, contain cobble and slab-rock one or more of the physical and Tennessee boulder substrates with canopy cover biological features. Features in this Unit 4 includes 5.0 rkm (3.1 rmi) of (PCE 2), and have surface flows that are critical habitat designation that may Cupp Creek from its headwaters maintained year round (PCE 3). Such require special management are due to downstream to its confluence with an characteristics are necessary for threats posed by resource extraction unnamed tributary in Bledsoe County, reproductive and sheltering (coal and gravel mining, silviculture, Tennessee. This unit was included in requirements of laurel dace. Water natural gas and oil exploration the geographical area occupied by the quality within this unit is also activities), agricultural activities (row species at the time of listing and characterized by moderate temperatures, crops and livestock), lack of adequate contains elements of essential physical relatively high dissolved oxygen riparian buffers, construction and or biological features. Almost 4.9 rkm concentrations, moderate pH, and low maintenance of State and county roads, (3.0 rmi), or 100 percent, of this area is levels of pollutants (PCE 4), which nonpoint source pollution arising from privately owned except for that small support abundant populations of a wide variety of human activities, and amount that is publicly owned by aquatic macroinvertebrates that serve as canopy loss caused by infestations of Bledsoe County in the form of bridge prey items for laurel dace (PCE 5). the hemlock woolly adelgid. crossings and road easements. Various activities in or adjacent to This unit contains stable headwater these areas of critical habitat may affect Unit 3: Moccasin Creek, Bledsoe streams (PCE 1) that are relatively silt- one or more of the physical and County, Tennessee free; contain cobble and slab-rock biological features. Features in this Unit 3 includes 9.0 rkm (5.6 rmi) of boulder substrates with canopy cover critical habitat designation that may Moccasin Creek from its headwaters (PCE 2), and have surface flows that are require special management are due to downstream to 0.1 rkm (0.6 rmi) below maintained year round (PCE 3). Such threats posed by resource extraction its confluence with Lick Creek in characteristics are necessary for (coal and gravel mining, silviculture, Bledsoe County, Tennessee. This unit reproductive and sheltering natural gas and oil exploration was included in the geographical area requirements of laurel dace. Water activities), agricultural activities (row occupied by the species at the time of quality within this unit is also crops and livestock), lack of adequate listing and contains elements of characterized by moderate temperatures, riparian buffers, construction and essential physical or biological features. relatively high dissolved oxygen maintenance of State and county roads, Almost 8.9 rkm (5.5 rmi), or 100 concentrations, moderate pH, and low nonpoint source pollution arising from percent, of this area is privately owned levels of pollutants (PCE 4), which a wide variety of human activities, and except for that small amount that is support abundant populations of canopy loss caused by infestations of publicly owned by Bledsoe County in aquatic macroinvertebrates that serve as the hemlock woolly adelgid. the form of bridge crossings and road prey items for laurel dace (PCE 5). easements. Various activities in or adjacent to Unit 6: Soddy Creek, Sequatchie and This unit contains stable headwater these areas of critical habitat may affect Bledsoe Counties, Tennessee streams (PCE 1) that are relatively silt- one or more of the physical and Unit 6 includes 8.4 rkm (5.2 rmi) of free, contain cobble and slab-rock biological features. Features in this Soddy Creek from its headwaters in boulder substrates with canopy cover critical habitat designation that may Sequatchie County, downstream to its (PCE 2), and have surface flows that are require special management are due to confluence with Harvey Creek in maintained year round (PCE 3). Such threats posed by resource extraction Sequatchie County, Tennessee. This characteristics are necessary for (coal and gravel mining, silviculture, unit was included in the geographical reproductive and sheltering natural gas and oil exploration area occupied by the species at the time requirements of laurel dace. Water activities), agricultural activities (row of listing and contains elements of quality within this unit is also crops and livestock), lack of adequate essential physical or biological features. characterized by moderate temperatures, riparian buffers, construction and Almost 8.3 rkm (5.1 rmi), or 100 relatively high dissolved oxygen maintenance of State and county roads, percent, of this area is privately owned concentrations, moderate pH, and low nonpoint source pollution arising from except for a small amount that is levels of pollutants (PCE 4), which a wide variety of human activities, and publicly owned by Sequatchie and support abundant populations of canopy loss caused by infestations of Bledsoe Counties in the form of bridge aquatic macroinvertebrates that serve as the hemlock woolly adelgid. crossings and road easements. prey items for laurel dace (PCE 5). This unit contains stable headwater Various activities in or adjacent to Unit 5: Horn Branch, Bledsoe County, streams (PCE 1) that are relatively silt- these areas of critical habitat may affect Tennessee free, contain cobble and slab-rock one or more of the physical and Unit 5 includes 4.0 rkm (2.5 rmi) of boulder substrates with canopy cover biological features. Features in this Horn Branch from its headwaters (PCE 2), and have surface flows that are critical habitat designation that may downstream to its confluence with Rock maintained year round (PCE 3). Such require special management are due to Creek in Bledsoe County, Tennessee. characteristics are necessary for threats posed by resource extraction This unit was included in the reproductive and sheltering (coal and gravel mining, silviculture, geographical area occupied by the requirements of laurel dace. Water natural gas and oil exploration species at the time of listing and quality within this unit is also activities), agricultural activities (row contains elements of essential physical characterized by moderate temperatures, crops and livestock), lack of adequate or biological features. Almost 3.9 rkm relatively high dissolved oxygen riparian buffers, construction and (2.4 rmi), or 100 percent, of this area is concentrations, moderate pH, and low maintenance of State and county roads, privately owned except for that small levels of pollutants (PCE 4), which nonpoint source pollution arising from amount that is publicly owned by support abundant populations of

VerDate Mar<15>2010 17:42 Oct 15, 2012 Jkt 229001 PO 00000 Frm 00035 Fmt 4701 Sfmt 4700 E:\FR\FM\16OCR2.SGM 16OCR2 tkelley on DSK3SPTVN1PROD with RULES2 63638 Federal Register / Vol. 77, No. 200 / Tuesday, October 16, 2012 / Rules and Regulations

aquatic macroinvertebrates that serve as the U.S. Army Corps of Engineers under discretionary involvement or control is prey items for laurel dace (PCE 5). section 404 of the Clean Water Act (33 authorized by law). Consequently, Various activities in or adjacent to U.S.C. 1251 et seq.) or a permit from the Federal agencies sometimes may need to these areas of critical habitat may affect Service under section 10 of the Act) or request reinitiation of consultation with one or more of the physical and that involve some other Federal action us on actions for which formal biological features. Features in this (such as funding from the Federal consultation has been completed, if critical habitat designation that may Highway Administration, Federal those actions with discretionary require special management are due to Aviation Administration, or the Federal involvement or control may affect threats posed by resource extraction Emergency Management Agency). subsequently listed species or (coal and gravel mining, silviculture, Federal actions not affecting listed designated critical habitat. natural gas and oil exploration species or critical habitat, and actions Application of the ‘‘Adverse activities), agricultural activities (row on State, tribal, local, or private lands Modification’’ Standard crops and livestock), lack of adequate that are not Federally funded or riparian buffers, construction and authorized do not require section 7 The key factor related to the adverse maintenance of State and county roads, consultation. modification determination is whether, nonpoint source pollution arising from As a result of section 7 consultation, with implementation of the proposed a wide variety of human activities, and we document compliance with the Federal action, the affected critical canopy loss caused by infestations of requirements of section 7(a)(2) through habitat would continue to serve its the hemlock woolly adelgid. our issuance of: intended conservation role for these (1) A concurrence letter for Federal species. Activities that may destroy or Effects of Critical Habitat Designation actions that may affect, but are not adversely modify critical habitat are Section 7 Consultation likely to adversely affect, listed species those that alter the physical and or critical habitat; or Section 7(a)(2) of the Act requires biological features to an extent that (2) A biological opinion for Federal Federal agencies, including the Service, appreciably reduces the conservation actions that may affect, or are likely to to ensure that any action they fund, value of critical habitat for these adversely affect, listed species or critical authorize, or carry out is not likely to species. As discussed above, the role of habitat. jeopardize the continued existence of critical habitat is to support life-history When we issue a biological opinion needs of these species and provide for any endangered species or threatened concluding that a project is likely to species or result in the destruction or the conservation of these species. jeopardize the continued existence of a Section 4(b)(8) of the Act requires us adverse modification of designated listed species or destroy or adversely critical habitat of such species. In to briefly evaluate and describe, in any modify critical habitat, we provide proposed or final regulation that addition, section 7(a)(4) of the Act reasonable and prudent alternatives to requires Federal agencies to confer with designates critical habitat, activities the project, if any are identifiable, that involving a Federal action that may the Service on any agency action which would avoid the likelihood of jeopardy is likely to jeopardize the continued destroy or adversely modify such or destruction or adverse modification habitat, or that may be affected by such existence of any species proposed to be of critical habitat. We define listed under the Act or result in the designation. ‘‘reasonable and prudent alternatives’’ Activities that may affect critical destruction or adverse modification of (at 50 CFR 402.02) as alternative actions proposed critical habitat. habitat, when carried out, funded, or identified during consultation that: authorized by a Federal agency, should Decisions by the 5th and 9th Circuits (1) Can be implemented in a manner result in consultation for the Court of Appeals have invalidated our consistent with the intended purpose of Cumberland darter, rush darter, regulatory definition of ‘‘destruction or the action, adverse modification’’ (50 CFR 402.02) (2) Can be implemented consistent yellowcheek darter, Chucky madtom, (see Gifford Pinchot Task Force v. U.S. with the scope of the Federal agency’s and laurel dace. These activities Fish and Wildlife Service, 378 F.3d 1059 legal authority and jurisdiction, include, but are not limited to: (9th Cir. 2004) and Sierra Club v. U.S. (3) Are economically and (1) Actions that would alter the Fish and Wildlife Service et al., 245 F.3d technologically feasible, and geomorphology of stream habitats. Such 434, 442 (5th Cir. 2001)), and we do not (4) Would, in the Director’s opinion, activities could include, but are not rely on this regulatory definition when avoid the likelihood of jeopardizing the limited to, instream excavation or analyzing whether an action is likely to continued existence of the listed species dredging, impoundment, destroy or adversely modify critical or avoid the likelihood of destroying or channelization, road and bridge habitat. Under the statutory provisions adversely modifying critical habitat. construction, mining, and discharge of of the Act, we determine destruction or Reasonable and prudent alternatives fill materials. These activities could adverse modification on the basis of can vary from slight project cause aggradation or degradation of the whether, with implementation of the modifications to extensive redesign or channel bed elevation or significant proposed Federal action, the affected relocation of the project. Costs bank erosion, result in entrainment or critical habitat would continue to serve associated with implementing a burial of these fishes, and cause other its intended conservation role for the reasonable and prudent alternative are direct or cumulative adverse effects to species. similarly variable. these species. If a Federal action may affect a listed Regulations at 50 CFR 402.16 require (2) Actions that would significantly species or its critical habitat, the Federal agencies to reinitiate alter the existing flow regime or water responsible Federal agency (action consultation on previously reviewed quantity. Such activities could include, agency) must enter into consultation actions in instances where we have but are not limited to, impoundment, with us. Examples of actions that are listed a new species or subsequently water diversion, water withdrawal, and subject to the section 7 consultation designated critical habitat that may be hydropower generation. These activities process are actions on State, tribal, affected and the Federal agency has could eliminate or reduce the habitat local, or private lands that require a retained discretionary involvement or necessary for growth and reproduction Federal permit (such as a permit from control over the action (or the agency’s of these fishes.

VerDate Mar<15>2010 17:42 Oct 15, 2012 Jkt 229001 PO 00000 Frm 00036 Fmt 4701 Sfmt 4700 E:\FR\FM\16OCR2.SGM 16OCR2 tkelley on DSK3SPTVN1PROD with RULES2 Federal Register / Vol. 77, No. 200 / Tuesday, October 16, 2012 / Rules and Regulations 63639

(3) Actions that would significantly 136) amended the Act to limit areas Exclusions Based on Economic Impacts alter water quantity or water quality (for eligible for designation as critical example, temperature, pH, habitat. Specifically, section 4(a)(3)(B)(i) Under section 4(b)(2) of the Act, we contaminants, and excess nutrients). of the Act (16 U.S.C. 1533(a)(3)(B)(i)) consider the economic impacts of Such activities could include, but are now provides: ‘‘The Secretary shall not specifying any particular area as critical not limited to, hydropower discharges, designate as critical habitat any lands or habitat. In order to consider economic or the release of chemicals, biological other geographical areas owned or impacts, we prepared a draft economic pollutants, or heated effluents into controlled by the Department of analysis of the proposed critical habitat surface water or connected groundwater Defense, or designated for its use, that designation and related factors at a point source or by dispersed release are subject to an integrated natural (Industrial Economics, Incorporated (nonpoint source). These activities resources management plan prepared 2012). The draft analysis, dated May 1, could alter water conditions that are under section 101 of the Sikes Act (16 2012, was made available for public beyond the tolerances of these fishes U.S.C. 670a), if the Secretary determines review from May 24, 2012, through June and result in direct or cumulative in writing that such plan provides a 25, 2012 (77 FR 30988). Following the adverse effects to these species. benefit to the species for which critical close of the comment period, a final (4) Actions that would significantly habitat is proposed for designation.’’ analysis (dated July 31, 2012) of the alter stream bed material composition potential economic effects of the and quality by increasing sediment There were no Department of Defense designation was developed taking into deposition or filamentous algal growth. lands with a completed INRMP within consideration the public comments and Such activities could include, but are the proposed critical habitat any new information (Industrial not limited to, construction projects, designation. Therefore, we are not Economics, Incorporated 2012). livestock grazing, timber harvest, off- exempting lands from this final The intent of the final economic road vehicle use, and other watershed designation of critical habitat for the analysis (FEA) is to identify and analyze and floodplain disturbances that release Cumberland darter, rush darter, the potential economic impacts sediments or nutrients into the water. yellowcheek darter, Chucky madtom, or associated with the critical habitat These activities could eliminate or laurel dace under section 4(a)(3)(B)(i) of designation for these five species. The reduce habitats necessary for the growth the Act. final economic analysis describes the and reproduction of these fishes by economic impacts of all potential causing excessive sedimentation or Exclusions conservation efforts for the these five nutrification. Application of Section 4(b)(2) of the Act fishes; some of these costs will likely be Exemptions Section 4(b)(2) of the Act states that incurred regardless of whether we Application of Section 4(a)(3) of the Act the Secretary shall designate and make designate critical habitat. The economic revisions to critical habitat on the basis impact of the final critical habitat The Sikes Act Improvement Act of designation is analyzed by comparing 1997 (Sikes Act) (16 U.S.C. 670a) of the best available scientific data after taking into consideration the economic scenarios both ‘‘with critical habitat’’ required each military installation that and ‘‘without critical habitat.’’ The includes land and water suitable for the impact, national security impact, and any other relevant impact of specifying ‘‘without critical habitat’’ scenario conservation and management of represents the baseline for the analysis, natural resources to complete an any particular area as critical habitat. The Secretary may exclude an area from considering protections already in place integrated natural resources for the species (e.g., under the Federal management plan (INRMP) by critical habitat if he determines that the benefits of such exclusion outweigh the listing and other Federal, State, and November 17, 2001. An INRMP local regulations). The baseline, benefits of specifying such area as part integrates implementation of the therefore, represents the costs incurred of the critical habitat, unless he military mission of the installation with regardless of whether critical habitat is determines, based on the best scientific stewardship of the natural resources designated. The ‘‘with critical habitat’’ data available, that the failure to found on the base. Each INRMP scenario describes the incremental designate such area as critical habitat includes: impacts associated specifically with the (1) An assessment of the ecological will result in the extinction of the designation of critical habitat for the needs on the installation, including the species. In making that determination, species. The incremental conservation need to provide for the conservation of the statute on its face, as well as the efforts and associated impacts are those listed species; legislative history, is clear that the not expected to occur absent the (2) A statement of goals and priorities; Secretary has broad discretion regarding designation of critical habitat for these (3) A detailed description of which factor(s) to use and how much species. In other words, the incremental management actions to be implemented weight to give to any factor. to provide for these ecological needs; costs are those attributable solely to the and In considering whether to exclude a designation of critical habitat above and (4) A monitoring and adaptive particular area from the designation, we beyond the baseline costs; these are the management plan. identify the benefits of including the costs we consider in the final Among other things, each INRMP area in the designation, identify the designation of critical habitat when must, to the extent appropriate and benefits of excluding the area from the evaluating the benefits of excluding applicable, provide for fish and wildlife designation, and evaluate whether the particular areas under section 4(b)(2) of management; fish and wildlife habitat benefits of exclusion outweigh the the Act. The analysis looks enhancement or modification; wetland benefits of inclusion. If the analysis retrospectively at baseline impacts protection, enhancement, and indicates that the benefits of exclusion incurred since these species were listed, restoration where necessary to support outweigh the benefits of inclusion, the and forecasts both baseline and fish and wildlife; and enforcement of Secretary may exercise his discretion to incremental impacts likely to occur with applicable natural resource laws. exclude the area only if such exclusion the designation of critical habitat. For a The National Defense Authorization would not result in the extinction of the further description of the methodology Act for Fiscal Year 2004 (Pub. L. 108– species. of the analysis, see the ‘‘Framework for

VerDate Mar<15>2010 17:42 Oct 15, 2012 Jkt 229001 PO 00000 Frm 00037 Fmt 4701 Sfmt 4700 E:\FR\FM\16OCR2.SGM 16OCR2 tkelley on DSK3SPTVN1PROD with RULES2 63640 Federal Register / Vol. 77, No. 200 / Tuesday, October 16, 2012 / Rules and Regulations

the Analysis’’ section of the final units are situated at least partially Exclusions Based on Other Relevant economic analysis. within the DBNF, which is managed Impacts The FEA also addresses how potential according to a land and resource Under section 4(b)(2) of the Act, we economic impacts are likely to be management plan that includes specific consider any other relevant impacts, in distributed, including an assessment of measures to protect sensitive species; addition to economic impacts and any local or regional impacts of habitat and (3) both unoccupied units are impacts on national security. We conservation and the potential effects of located within the same hydrologic unit consider a number of factors, including conservation activities on government as three other occupied critical habitat whether the landowners have developed agencies, private businesses, and units (Cumberland darter units 4, 6, and any HCPs or other management plans individuals. The FEA measures lost 8). for the area, or whether there are economic efficiency associated with The FEA concludes that incremental conservation partnerships that would be residential and commercial impacts of critical habitat designation encouraged by designation of, or development and public projects and are limited to additional administrative exclusion from, critical habitat. In activities, such as economic impacts on costs of consultations and that indirect addition, we look at any tribal issues, water management and transportation incremental impacts are unlikely to and consider the government-to- projects, Federal lands, small entities, result from the designation of critical government relationship of the United and the energy industry. Decision- habitat for the five fishes. The present makers can use this information to States with tribal entities. We also value of the total direct (administrative) consider any social impacts that might assess whether the effects of the incremental cost of critical habitat designation might unduly burden a occur because of the designation. designation is $644,000 over the next 20 In preparing this final rule, we have particular group or economic sector. years assuming a 7 percent discount determined that the yellowcheek darter Finally, the FEA looks retrospectively at rate, or $56,800 on an annualized basis. is currently covered under a joint safe costs that have been incurred since 2011 Water quality management activities are (year of these species’ listing) (76 FR harbor agreement (SHA) and candidate likely to be subject to the greatest conservation agreement with assurances 48722), and considers those costs that incremental impacts at $273,000 over may occur in the 20 years following the (CCAA) in the upper Little Red River the next 20 years, followed by watershed in Arkansas along with the designation of critical habitat, which transportation at $161,000; coal mining was determined to be the appropriate endangered speckled pocketbook at $79,000; oil and natural gas mussel. The CCAA will convert to a period for analysis because limited development at $73,700; agriculture, planning information was available for SHA, as a result of the endangered ranching, and silviculture at $36,100; status of the yellowcheek darter, and most activities to forecast activity levels dredging, channelization, for projects beyond a 20-year timeframe. will be covered by an enhancement of impoundments, dams, and diversions at The FEA quantifies economic impacts of survival permit, which expires January $10,700; and recreation at $10,000 the five fishes conservation efforts 1, 2044. The SHA is strictly voluntary (Industrial Economics, Inc. 2012). associated with the following categories on the part of participating private of activity: coal mining; oil and natural In short, the FEA did not identify any landowners, who can opt out of the gas development; agriculture, ranching, disproportionate costs that are likely to agreement at any time. This agreement and silviculture; recreational uses; result from the designation. provides added benefits for the recovery dredging, channelization, Consequently, the Secretary is not of the yellowcheek darter, but does not impoundments, dams, and diversions; exerting his discretion to exclude any guarantee long-term protection of transportation (roads, highways, areas from this designation of critical habitat. The properties enrolled in the bridges); and residential and habitat for the five fishes based on SHA are not technically included in the commercial development. economic impacts. critical habitat designation, which The FEA concluded that the types of A copy of the FEA with supporting includes only the stream channel within conservation efforts requested by the documents may be obtained by the ordinary high water line. Because Service during section 7 consultation contacting the Tennessee Ecological these waters are technically state regarding the five fishes were not Services Field Office (see ADDRESSES) or owned, we cannot exclude them from expected to change due to critical by downloading from the Internet at the designation. The CCAA provides habitat designation. The Service http://www.regulations.gov. assurances to enrolled landowners that if additional conservation measures are believes that results of consultation Exclusions Based on National Security necessary to respond to changed under the adverse modification and Impacts jeopardy standards are likely to be circumstances, we will not require such similar because: (1) The physical and Under section 4(b)(2) of the Act, we measures in addition to those provided biological features that define critical consider whether there are lands owned for in the agreement without the consent habitat are also essential for the survival or managed by the Department of of the landowner if the species becomes of the five fishes; (2) the five fishes are Defense where a national security listed. However like the SHA, the limited or severely limited in their impact might exist. In preparing this properties enrolled in the CCAA are not respective ranges; and (3) numbers of final rule, we have determined that the technically included in the critical individuals in the surviving populations lands within the designation of critical habitat designation, which includes are small or very small. In addition, habitat for the Cumberland darter, rush only the stream channel within the although two of the critical habitat units darter, yellowcheek darter, Chucky ordinary high water line. Because these for the Cumberland darter are madtom, and laurel dace are not owned waters are technically state owned, we unoccupied, incremental impacts of the or managed by the Department of cannot exclude them from the critical habitat designations will be Defense, and, therefore, we anticipate designation. limited for the following reasons: (1) no impact on national security. There are currently no HCPs or other Both units are currently occupied by the Consequently, the Secretary is not management plans for the Cumberland federally threatened blackside dace, exerting his discretion to exclude any darter, rush darter, yellowcheek darter, Chrosomus cumberlandensis (listed as areas from this final designation based Chucky madtom, or laurel dace, and the Phoxinus cumberlandensis); (2) both on impacts on national security. final designation does not include any

VerDate Mar<15>2010 17:42 Oct 15, 2012 Jkt 229001 PO 00000 Frm 00038 Fmt 4701 Sfmt 4700 E:\FR\FM\16OCR2.SGM 16OCR2 tkelley on DSK3SPTVN1PROD with RULES2 Federal Register / Vol. 77, No. 200 / Tuesday, October 16, 2012 / Rules and Regulations 63641

tribal lands or trust resources. We the critical habitat designation for these Designation of critical habitat only anticipate no impact on tribal lands, five fishes will not have a significant affects activities authorized, funded, or partnerships, or HCPs from this critical economic impact on a substantial carried out by Federal agencies. Some habitat designation. number of small entities. The following kinds of activities are unlikely to have Accordingly, the Secretary is not discussion explains our rationale. any Federal involvement and so will not exercising his discretion to exclude any According to the Small Business be affected by critical habitat areas from this final designation based Administration, small entities include designation. In areas where the five on other relevant impacts. small organizations, such as fishes are present, Federal agencies already are required to consult with us Required Determinations independent nonprofit organizations; small governmental jurisdictions, under section 7 of the Act on activities Regulatory Planning and Review— including school boards and city and they authorize, fund, or carry out that Executive Order 12866 and 13563 town governments that serve fewer than may affect the five fishes. Federal agencies also must consult with us if Executive Order 12866 provides that 50,000 residents; as well as small their activities may affect critical the Office of Information and Regulatory businesses. Small businesses include habitat. Designation of critical habitat, Affairs (OIRA) will review all significant manufacturing and mining concerns therefore, could result in an additional rules. The Office of Information and with fewer than 500 employees, economic impact on small entities due Regulatory Affairs has determined that wholesale trade entities with fewer than to the requirement to reinitiate this rule is not significant. 100 employees, retail and service consultation for ongoing Federal Executive Order 13563 reaffirms the businesses with less than $5 million in activities (see Application of the principles of E.O. 12866 while calling annual sales, general and heavy ‘‘Adverse Modification’’ Standard for improvements in the nation’s construction businesses with less than $27.5 million in annual business, section). regulatory system to promote In our FEA of the critical habitat predictability, to reduce uncertainty, special trade contractors doing less than $11.5 million in annual business, and designation (see ‘‘Exclusions Based on and to use the best, most innovative, Economic Impacts’’ above) we evaluated and least burdensome tools for agricultural businesses with annual sales less than $750,000. To determine the potential economic effects on small achieving regulatory ends. The business entities resulting from executive order directs agencies to if potential economic impacts on these small entities are significant, we conservation actions related to the consider regulatory approaches that designation of critical habitat of the five consider the types of activities that reduce burdens and maintain flexibility fishes. The analysis is based on the might trigger regulatory impacts under and freedom of choice for the public estimated impacts associated with the this rule, as well as the types of project where these approaches are relevant, rulemaking as described in Appendix A modifications that may result. In feasible, and consistent with regulatory of the FEA and evaluates the potential general, the term ‘‘significant economic objectives. E.O. 13563 emphasizes for economic impacts related to: Coal impact’’ is meant to apply to a typical further that regulations must be based mining; oil and natural gas small business firm’s business on the best available science and that development; recreation; dredging, operations. the rulemaking process must allow for channelization, impoundments, dams, public participation and an open To determine if the rule could and diversions; and transportation exchange of ideas. We have developed significantly affect a substantial number (roads, highways, bridges). this rule in a manner consistent with of small entities, we consider the For activities related to coal mining, these requirements. number of small entities affected within we anticipate that 10 small entities particular types of economic activities could be affected in a single year at a Regulatory Flexibility Act (5 U.S.C. 601 (e.g., coal mining; agriculture, ranching, et seq.) cost of $875 each, representing less than and silviculture; oil and natural gas 3 percent of annual revenues. For oil Under the Regulatory Flexibility Act development; recreational uses; and natural gas development, we (RFA; 5 U.S.C. 601 et seq.) as amended dredging, channelization, estimate that two small entities could be by the Small Business Regulatory impoundments, dams, and diversions; affected within a single year at a cost of Enforcement Fairness Act (SBREFA) of and transportation (roads, highways, $875 each, representing less than 3 1996 (5 U.S.C. 801 et seq.), whenever an bridges)). We apply the ‘‘substantial percent of annual revenues. For agency must publish a notice of number’’ test individually to each recreation activities, it is estimated that rulemaking for any proposed or final industry to determine if certification is one small entity could be affected rule, it must prepare and make available appropriate. However, the SBREFA does within a single year at a cost of $4,150. for public comment a regulatory not explicitly define ‘‘substantial This cost to this entity is estimated to flexibility analysis that describes the number’’ or ‘‘significant economic be 29 percent of the entity’s annual effects of the rule on small entities impact.’’ Consequently, to assess revenue from cattle sales; however, the (small businesses, small organizations, whether a ‘‘substantial number’’ of entity has other revenues, and this and small government jurisdictions). small entities is affected by this percentage is likely overstated. For However, no regulatory flexibility designation, this analysis considers the activities relating to by dredging, analysis is required if the head of the relative number of small entities likely channelization, impoundments, dams, agency certifies the rule will not have a to be impacted in an area. In some and diversions, one small entity could significant economic impact on a circumstances, especially with critical be affected within a single year, at a cost substantial number of small entities. habitat designations of limited extent, of $2,630, representing less than 1 The SBREFA amended RFA to require we may aggregate across all industries percent of annual revenues. For Federal agencies to provide a and consider whether the total number transportation activities, one small certification statement of the factual of small entities affected is substantial. entity could be affected within a single basis for certifying that the rule will not In estimating the number of small year, at a cost of $1,750, representing have a significant economic impact on entities potentially affected, we also less than 1 percent of annual revenues. a substantial number of small entities. consider whether their activities have Please refer to the FEA of the critical In this final rule, we are certifying that any Federal involvement. habitat designation for a more detailed

VerDate Mar<15>2010 17:42 Oct 15, 2012 Jkt 229001 PO 00000 Frm 00039 Fmt 4701 Sfmt 4700 E:\FR\FM\16OCR2.SGM 16OCR2 tkelley on DSK3SPTVN1PROD with RULES2 63642 Federal Register / Vol. 77, No. 200 / Tuesday, October 16, 2012 / Rules and Regulations

discussion of potential economic Control and Reclamation Act of 1977 under which $500,000,000 or more is impacts. (30 U.S.C. 1201 et seq.). Through its provided annually to State, local, and In summary, we considered whether analysis, the Service concluded that the tribal governments under entitlement this designation will result in a proposed action (surface coal mining authority,’’ if the provision would significant economic effect on a and reclamation activities) was not ‘‘increase the stringency of conditions of substantial number of small entities. likely to jeopardize the continued assistance’’ or ‘‘place caps upon, or Based on the above reasoning and existence of any threatened, otherwise decrease, the Federal currently available information, we endangered, or proposed species or Government’s responsibility to provide concluded that this rule will not result result in adverse modification of funding,’’ and the State, local, or tribal in a significant economic impact on a designated or proposed critical habitat. governments ‘‘lack authority’’ to adjust substantial number of small entities. OMB has provided guidance for accordingly. At the time of enactment, Therefore, we are certifying that the implementing this Executive Order that these entitlement programs were: designation of critical habitat for the outlines nine outcomes that may Medicaid; Aid to Families with Cumberland darter, rush darter, constitute ‘‘a significant adverse effect’’ Dependent Children work programs; yellowcheek darter, Chucky madtom, when compared to not taking the Child Nutrition; Food Stamps; Social and laurel dace will not have a regulatory action under consideration. Services Block Grants; Vocational significant economic impact on a The potential effects of this designation Rehabilitation State Grants; Foster Care, substantial number of small entities, on oil and gas development were Adoption Assistance, and Independent and a regulatory flexibility analysis is considered in the economic analysis. Living; Family Support Welfare not required. The FEA finds that impacts to oil and Services; and Child Support gas development activities will be Energy Supply, Distribution, or Use— Enforcement. ‘‘Federal private sector anticipated, but they will be limited to Executive Order 13211 mandate’’ includes a regulation that the administrative costs of consultation. ‘‘would impose an enforceable duty Executive Order 13211 (Actions Therefore, reductions in oil and gas upon the private sector, except (i) a Concerning Regulations That production are not anticipated, and condition of Federal assistance or (ii) a Significantly Affect Energy Supply, consultation costs are not anticipated to duty arising from participation in a Distribution, or Use) requires agencies increase the cost of energy production voluntary Federal program.’’ to prepare Statements of Energy Effects or distribution in the United States in The designation of critical habitat when undertaking certain actions. We excess of 1 percent. Thus, none of the does not impose a legally binding duty do not expect this designation to nine outcome thresholds of impacts is on non-Federal Government entities or significantly affect energy supplies, exceeded. The economic analysis finds private parties. Under the Act, the only distribution, or use. Natural gas and oil that none of these criteria is relevant to regulatory effect is that Federal agencies exploration and development activities this analysis. Thus, based on must ensure that their actions do not occur or could potentially occur within information in the economic analysis, destroy or adversely modify critical the Cumberland darter (13 of 15 critical energy-related impacts associated with habitat under section 7. While non- habitat units) and yellowcheek darter (4 these five fishes’ conservation activities Federal entities that receive Federal of 4 critical habitat units) critical habitat within critical habitat are not expected. funding, assistance, or permits, or that units. However, compliance with State As such, the designation of critical otherwise require approval or regulatory requirements or voluntary habitat is not expected to significantly authorization from a Federal agency for BMPs would be expected to minimize affect energy supplies, distribution, or an action, may be indirectly impacted impacts of natural gas and oil use. Therefore, this action is not a by the designation of critical habitat, the exploration and development in the significant energy action, and no legally binding duty to avoid areas of designated critical habitat for Statement of Energy Effects is required. destruction or adverse modification of both species. The measures for natural critical habitat rests squarely on the Unfunded Mandates Reform Act (2 gas and oil exploration and Federal agency. Furthermore, to the U.S.C. 1501 et seq.) development are generally not extent that non-Federal entities are considered a substantial cost compared In accordance with the Unfunded indirectly impacted because they to overall project costs and are already Mandates Reform Act (2 U.S.C. 1501 et receive Federal assistance or participate being implemented by oil and gas seq.), we make the following findings: in a voluntary Federal aid program, the companies. (1) This rule will not produce a Unfunded Mandates Reform Act would Coal mining occurs or could Federal mandate. In general, a Federal not apply, nor would critical habitat potentially occur in 11 of the 15 mandate is a provision in legislation, shift the costs of the large entitlement proposed critical habitat units for the statute, or regulation that would impose programs listed above onto State Cumberland darter, and coal mining an enforceable duty upon State, local, governments. could potentially occur in 1 of the 6 tribal governments, or the private sector (2) We do not believe that this rule critical habitat units for the laurel dace. and includes both ‘‘Federal will significantly or uniquely affect Incidental take for listed species intergovernmental mandates’’ and small governments. The lands with associated with surface coal mining ‘‘Federal private sector mandates.’’ Cumberland darter critical habitat activities is currently covered under a These terms are defined in 2 U.S.C. designation are owned by the DBNF and programmatic, non-jeopardy biological 658(5)–(7). ‘‘Federal intergovernmental private landowners. The lands with opinion between the Office of Surface mandate’’ includes a regulation that rush darter critical habitat designation Mining and the Service completed in ‘‘would impose an enforceable duty are mostly owned by private 1996 (Service 1996, entire). The upon State, local, or tribal governments’’ landowners; a small portion of the City biological opinion covers existing, with two exceptions. It excludes ‘‘a of Pinson; and road easements in proposed, and future endangered and condition of Federal assistance.’’ It also Etowah, Jefferson, and Winston threatened species that may be affected excludes ‘‘a duty arising from Counties, Alabama. The lands by the implementation and participation in a voluntary Federal designated as critical habitat for the administration of surface coal mining program,’’ unless the regulation ‘‘relates yellowcheek darter are mostly owned by programs under the Surface Mining to a then-existing Federal program private landowners and road easements

VerDate Mar<15>2010 17:42 Oct 15, 2012 Jkt 229001 PO 00000 Frm 00040 Fmt 4701 Sfmt 4700 E:\FR\FM\16OCR2.SGM 16OCR2 tkelley on DSK3SPTVN1PROD with RULES2 Federal Register / Vol. 77, No. 200 / Tuesday, October 16, 2012 / Rules and Regulations 63643

in Cleburne, Searcy, Stone, and Van areas currently occupied by these five conduct or sponsor, and a person is not Buren Counties, Arkansas. Most of the fishes may impose nominal additional required to respond to, a collection of lands designated as critical habitat for regulatory restrictions to those currently information unless it displays a the Chucky madtom are private, except in place and, therefore, may have little currently valid OMB control number. for a small portion consisting of road incremental impact on State and local National Environmental Policy Act (42 easements in Greene County, Tennessee. governments and their activities. The Most of the lands designated as critical designation may have some benefit to U.S.C. 4321 et seq.) habitat for the laurel dace are located on these governments because the areas It is our position that, outside the private lands, except for a small portion that contain the physical and biological jurisdiction of the U.S. Court of Appeals consisting of road easements in Bledsoe, features essential to the conservation of for the Tenth Circuit, we do not need to Rhea, and Sequatchie Counties, the species are more clearly defined, prepare environmental analyses Tennessee. Consequently, we do not and the elements of the features of the pursuant to the National Environmental believe that the critical habitat habitat necessary to the conservation of Policy Act (NEPA; 42 U.S.C. 4321 et designation would significantly or these species are specifically identified. seq.) in connection with designating uniquely affect small government This information does not alter where critical habitat under the Act. We entities. As such, a Small Government and what Federally sponsored activities published a notice outlining our reasons Agency Plan is not required. may occur. However, it may assist these for this determination in the Federal local governments in long-range Takings—Executive Order 12630 Register on October 25, 1983 (48 FR planning (rather than having them wait 49244). This position was upheld by the In accordance with Executive Order for case-by-case section 7 consultations U.S. Court of Appeals for the Ninth 12630 (Government Actions and to occur). Circuit (Douglas County v. Babbitt, 48 Interference with Constitutionally Where State and local governments F.3d 1495 (9th Cir. 1995), cert. denied Protected Private Property Rights), we require approval or authorization from a 516 U.S. 1042 (1996)). have analyzed the potential takings Federal agency for actions that may implications of designating critical affect critical habitat, consultation Government-to-Government habitat for the Cumberland darter, rush under section 7(a)(2) would be required. Relationship With Tribes darter, yellowcheek darter, Chucky While non-Federal entities that receive In accordance with the President’s madtom, and laurel dace in a takings Federal funding, assistance, or permits, memorandum of April 29, 1994 implications assessment. As discussed or that otherwise require approval or (Government-to-Government Relations above, the designation of critical habitat authorization from a Federal agency for with Native American Tribal affects only Federal actions. Although an action, may be indirectly impacted Governments; 59 FR 22951), Executive private parties that receive Federal by the designation of critical habitat, the Order 13175 (Consultation and funding, assistance, or require approval legally binding duty to avoid Coordination With Indian Tribal or authorization from a Federal agency destruction or adverse modification of Governments), and the Department of for an action may be indirectly impacted critical habitat rests squarely on the Interior’s manual at 512 DM 2, we by the designation of critical habitat, the Federal agency. legally binding duty to avoid readily acknowledge our responsibility destruction or adverse modification of Civil Justice Reform—Executive Order to communicate meaningfully with critical habitat rests squarely on the 12988 recognized Federal Tribes on a Federal agency. Therefore, the takings In accordance with Executive Order government-to-government basis. In implications assessment concludes that 12988 (Civil Justice Reform), the Office accordance with Secretarial Order 3206 this designation of critical habitat for of the Solicitor has determined that the of June 5, 1997 (American Indian Tribal these five species does not pose rule does not unduly burden the judicial Rights, Federal-Tribal Trust significant takings implications for system and that it meets the Responsibilities, and the Endangered lands within or affected by the requirements of sections 3(a) and 3(b)(2) Species Act), we readily acknowledge designation. of the Order. We are designating critical our responsibilities to work directly habitat in accordance with the with tribes in developing programs for Federalism—Executive Order 13132 provisions of the Act. This final rule healthy ecosystems, to acknowledge that In accordance with Executive Order uses standard property descriptions and tribal lands are not subject to the same 13132 (Federalism), this rule does not identifies the elements of physical and controls as Federal public lands, to have significant Federalism effects. A biological features essential to the remain sensitive to Indian culture, and federalism impact summary statement is conservation of the Cumberland darter, to make information available to tribes. not required. In keeping with rush darter, yellowcheek darter, Chucky We determined that there are no tribal Department of the Interior and madtom, and laurel dace within the lands that were occupied by the Department of Commerce policy, we designated areas to assist the public in Cumberland darter, rush darter, requested information from, and understanding the habitat needs of these yellowcheek darter, Chucky madtom, or coordinated development of, this species. laurel dace at the time of listing that critical habitat designation with contain the features essential for appropriate State resource agencies in Paperwork Reduction Act of 1995 (44 conservation of these species, and no Kentucky, Alabama, Arkansas, and U.S.C. 3501 et seq.) tribal lands unoccupied by these five Tennessee. We received one comment This rule does not contain any new species that are essential for the from the Kentucky Department of Fish collections of information that require conservation of these species. Therefore, and Wildlife Resources related to road approval by OMB under the Paperwork we are not designating critical habitat crossings and culverts acting as threats Reduction Act of 1995 (44 U.S.C. 3501 for these five species on tribal lands. to the Cumberland darter. This et seq.). This rule will not impose References Cited comment was incorporated into this recordkeeping or reporting requirements final rule. We did not receive any other on State or local governments, A complete list of references cited is comments from the four affected States. individuals, businesses, or available on the Internet at http:// The designation of critical habitat in organizations. An agency may not www.regulations.gov and upon request

VerDate Mar<15>2010 17:42 Oct 15, 2012 Jkt 229001 PO 00000 Frm 00041 Fmt 4701 Sfmt 4700 E:\FR\FM\16OCR2.SGM 16OCR2 tkelley on DSK3SPTVN1PROD with RULES2 63644 Federal Register / Vol. 77, No. 200 / Tuesday, October 16, 2012 / Rules and Regulations

from the Tennessee Ecological Services Regulation Promulgation ■ 2. Amend § 17.11(h) by revising the Field Office (see ADDRESSES). entries for ‘‘Dace, laurel,’’ ‘‘Darter, Accordingly, we amend part 17, Cumberland,’’ ‘‘Darter, rush,’’ ‘‘Darter, Authors subchapter B of chapter I, title 50 of the yellowcheek,’’ and ‘‘Madtom, chucky’’ Code of Federal Regulations, as set forth The primary authors of this package under FISHES in the List of Endangered below: are the staff members of the Arkansas, and Threatened Wildlife to read as Kentucky, Mississippi, and Tennessee follows: Ecological Services Field Offices. PART 17—[AMENDED] § 17.11 Endangered and threatened List of Subjects in 50 CFR Part 17 ■ 1. The authority citation for part 17 wildlife. Endangered and threatened species, continues to read as follows: * * * * * Exports, Imports, Reporting and Authority: 16 U.S.C. 1361–1407; 16 U.S.C. recordkeeping requirements, 1531–1544; 16 U.S.C. 4201–4245; Pub. L. 99– (h) * * * Transportation. 625, 100 Stat. 3500; unless otherwise noted.

Species Vertebrate popu- Historic range lation where endan- Status When listed Critical Special Common name Scientific name gered or threatened habitat rules

******* FISHES

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

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

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

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

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

*******

■ 3. In § 17.95, amend paragraph (e) by cool, clean, flowing water; shallow normal behavior, growth, and viability adding entries for ‘‘Laurel Dace depths; and connectivity between of all life stages of the laurel dace. (Chrosomus saylori)’’, ‘‘Cumberland spawning, foraging, and resting sites to (v) Prey base of aquatic Darter (Etheostoma susanae)’’, ‘‘Rush promote gene flow throughout the macroinvertebrates, including midge Darter (Etheostoma phytophilum)’’, species’ range. larvae, caddisfly larvae, and stonefly ‘‘Yellowcheek Darter (Etheostoma (ii) Stable bottom substrates larvae. moorei)’’, and ‘‘Chucky Madtom composed of relatively silt-free gravel, (3) Critical habitat does not include (Noturus crypticus)’’ in the same order cobble, and slab-rock boulder substrates manmade structures (such as buildings, that those species appear in the table at with undercut banks and canopy cover. aqueducts, runways, roads, and other § 17.11(h), to read as follows: Relatively silt-free is defined for the paved areas) and the land on which they are located existing within the legal § 17.95 Critical habitat—fish and wildlife. purpose of this rule as silt or fine sand within interstitial spaces of substrates in boundaries on November 15, 2012. * * * * * (4) Critical habitat unit maps. Data (e) Fishes. amounts low enough to have minimal impact to the species. layers defining map units were created * * * * * on a base of USGS digital ortho-photo (iii) An instream flow regime Laurel Dace (Chrosomus saylori) quarter-quadrangles, and critical habitat (magnitude, frequency, duration, and units were then mapped using (1) Critical habitat units are depicted seasonality of discharge over time) Tennessee State Plane, Lambert for Bledsoe, Rhea, and Sequatchie sufficient to provide permanent surface Conformal Conic Projection, units feet. Counties, Tennessee, on the maps flows, as measured during years with Upstream and downstream limits were below. average rainfall, and to maintain benthic then identified by longitude and (2) Within these areas, the primary habitats utilized by the species. latitude using decimal degrees and constituent elements of the physical and (iv) Adequate water quality projected in WGS 1984. The maps in biological features essential to the characterized by moderate stream this entry, as modified by any conservation of the laurel dace consist temperatures, acceptable dissolved accompanying regulatory text, establish of five components: oxygen concentrations, moderate pH, the boundaries of the critical habitat (i) Pool and run habitats of and low levels of pollutants. Adequate designation. The coordinates or plot geomorphically stable, first- to second- water quality is defined for the purpose points or both on which each map is order streams with riparian vegetation; of this rule as the quality necessary for based are available to the public at the

VerDate Mar<15>2010 17:42 Oct 15, 2012 Jkt 229001 PO 00000 Frm 00042 Fmt 4701 Sfmt 4700 E:\FR\FM\16OCR2.SGM 16OCR2 tkelley on DSK3SPTVN1PROD with RULES2 Federal Register / Vol. 77, No. 200 / Tuesday, October 16, 2012 / Rules and Regulations 63645

field office Internet site (http:// Service’s Tennessee Fish and Wildlife addresses of which are listed at 50 CFR www.fws.gov/cookeville), http:// Office. You may obtain field office 2.2. www.regulations.gov at Docket No. location information by contacting one (5) Index map follows: FWS–R4–ES–2011–0074, and at the of the Service regional offices, the

VerDate Mar<15>2010 17:42 Oct 15, 2012 Jkt 229001 PO 00000 Frm 00043 Fmt 4701 Sfmt 4725 E:\FR\FM\16OCR2.SGM 16OCR2 tkelley on DSK3SPTVN1PROD with RULES2 ER16OC12.045 63646 Federal Register / Vol. 77, No. 200 / Tuesday, October 16, 2012 / Rules and Regulations

(6) Units 1, 2, and 3: Bumbee Creek with Mapleslush Branch in Rhea (iii) Unit 3 includes 9.0 rkm (5.6 rmi) and Youngs Creek, Bledsoe and Rhea County, Tennessee. of Moccasin Creek from its headwaters Counties, Tennessee; and Moccasin (ii) Unit 2 includes 7.9 rkm (4.9 rmi) downstream to 0.1 rkm (0.6 rmi) below Creek, Bledsoe County, Tennessee. of Youngs Creek from its headwaters in its confluence with Lick Creek in (i) Unit 1 includes 7.8 river kilometers Bledsoe County, downstream to its Bledsoe County, Tennessee. (rkm) (4.8 river miles (rmi)) of Bumbee Creek from its headwaters in Bledsoe confluence with Moccasin Creek in (iv) Map of Units 1, 2, and 3 of critical County, downstream to its confluence Rhea County, Tennessee. habitat for the laurel dace follows:

VerDate Mar<15>2010 17:42 Oct 15, 2012 Jkt 229001 PO 00000 Frm 00044 Fmt 4701 Sfmt 4725 E:\FR\FM\16OCR2.SGM 16OCR2 tkelley on DSK3SPTVN1PROD with RULES2 ER16OC12.046 Federal Register / Vol. 77, No. 200 / Tuesday, October 16, 2012 / Rules and Regulations 63647

(7) Unit 4: Cupp Creek, Bledsoe downstream to its confluence with an (ii) Map of Unit 4 of critical habitat for County, Tennessee. unnamed tributary in Bledsoe County, the laurel dace follows: (i) Unit 4 includes 5.0 rkm (3.1 rmi) Tennessee. of Cupp Creek from its headwaters

VerDate Mar<15>2010 17:42 Oct 15, 2012 Jkt 229001 PO 00000 Frm 00045 Fmt 4701 Sfmt 4725 E:\FR\FM\16OCR2.SGM 16OCR2 tkelley on DSK3SPTVN1PROD with RULES2 ER16OC12.047 63648 Federal Register / Vol. 77, No. 200 / Tuesday, October 16, 2012 / Rules and Regulations

(8) Unit 5: Horn Branch, Bledsoe downstream to its confluence with Rock County, Tennessee. Creek, Bledsoe County, Tennessee. (i) Unit 5 includes 4.0 rkm (2.5 rmi) (ii) Map of Unit 5 of critical habitat for of Horn Branch from its headwaters the laurel dace follows:

VerDate Mar<15>2010 17:42 Oct 15, 2012 Jkt 229001 PO 00000 Frm 00046 Fmt 4701 Sfmt 4725 E:\FR\FM\16OCR2.SGM 16OCR2 tkelley on DSK3SPTVN1PROD with RULES2 ER16OC12.048 Federal Register / Vol. 77, No. 200 / Tuesday, October 16, 2012 / Rules and Regulations 63649

(9) Unit 6: Soddy Creek, Sequatchie Sequatchie County, downstream to its (ii) Map of Unit 6 of critical habitat for and Bledsoe Counties, Tennessee. confluence with Harvey Creek in the laurel dace follows: (i) Unit 6 includes 8.4 rkm (5.2 rmi) Sequatchie County, Tennessee. of Soddy Creek from its headwaters in

* * * * * Kentucky, and Campbell and Scott conservation of the Cumberland darter Counties, Tennessee, on the maps consist of five components: Cumberland Darter (Etheostoma below. susanae) (i) Shallow pools and gently flowing (2) Within these areas, the primary runs of geomorphically stable, second- (1) Critical habitat units are depicted constituent elements of the physical and to fourth-order streams with for McCreary and Whitley Counties, biological features essential to the connectivity between spawning,

VerDate Mar<15>2010 17:42 Oct 15, 2012 Jkt 229001 PO 00000 Frm 00047 Fmt 4701 Sfmt 4700 E:\FR\FM\16OCR2.SGM 16OCR2 tkelley on DSK3SPTVN1PROD with RULES2 ER16OC12.049 63650 Federal Register / Vol. 77, No. 200 / Tuesday, October 16, 2012 / Rules and Regulations

foraging, and resting sites to promote of all life stages of the Cumberland then identified by longitude and gene flow throughout the species’ range. darter. latitude using decimal degrees and (ii) Stable bottom substrates (v) Prey base of aquatic projected in WGS 1984. The maps in composed of relatively silt-free sand and macroinvertebrates, including midge this entry, as modified by any sand-covered bedrock, boulders, large larvae, mayfly nymphs, caddisfly larvae, accompanying regulatory text, establish cobble, woody debris, or other cover. and microcrustaceans. the boundaries of the critical habitat (iii) An instream flow regime (3) Critical habitat does not include designation. The coordinates or plot (magnitude, frequency, duration, and manmade structures (such as buildings, points or both on which each map is seasonality of discharge over time) aqueducts, bridges, runways, roads, and sufficient to provide permanent surface other paved areas) and the land on based are available to the public at the flows, as measured during years with which they are located existing within field office Internet site (http:// average rainfall, and to maintain benthic the legal boundaries on November 15, www.fws.gov/cookeville), http:// habitats utilized by the species. 2012. www.regulations.gov at Docket No. (iv) Adequate water quality (4) Critical habitat map units. Data FWS–R4–ES–2011–0074, and at the characterized by moderate stream layers defining map units were created Service’s Tennessee Fish and Wildlife temperatures, acceptable dissolved on a base of USGS digital ortho-photo Office. You may obtain field office oxygen concentrations, moderate pH, quarter-quadrangles, and critical habitat location information by contacting one and low levels of pollutants. Adequate units were then mapped using of the Service regional offices, the water quality is defined for the purpose Tennessee State Plane, Lambert addresses of which are listed at 50 CFR of this rule as the quality necessary for Conformal Conic Projection, units feet. 2.2. normal behavior, growth, and viability Upstream and downstream limits were

VerDate Mar<15>2010 17:42 Oct 15, 2012 Jkt 229001 PO 00000 Frm 00048 Fmt 4701 Sfmt 4700 E:\FR\FM\16OCR2.SGM 16OCR2 tkelley on DSK3SPTVN1PROD with RULES2 Federal Register / Vol. 77, No. 200 / Tuesday, October 16, 2012 / Rules and Regulations 63651

(5) Index map follows:

(6) Units 1 and 2: Bunches Creek and Creek from the Seminary Branch and (ii) Unit 2 includes 2.9 rkm (1.8 rmi) Calf Pen Fork, Whitley County, Amos Falls Branch confluence of Calf Pen Fork from its confluence Kentucky. downstream to its confluence with the with Polly Branch downstream to its (i) Unit 1 includes 5.8 river kilometers Cumberland River. confluence with Bunches Creek. (rkm) (3.6 river miles (rmi)) of Bunches

VerDate Mar<15>2010 17:42 Oct 15, 2012 Jkt 229001 PO 00000 Frm 00049 Fmt 4701 Sfmt 4700 E:\FR\FM\16OCR2.SGM 16OCR2 tkelley on DSK3SPTVN1PROD with RULES2 ER16OC12.050 63652 Federal Register / Vol. 77, No. 200 / Tuesday, October 16, 2012 / Rules and Regulations

(iii) Map of Units 1 and 2 of critical habitat for the Cumberland darter follows:

VerDate Mar<15>2010 17:42 Oct 15, 2012 Jkt 229001 PO 00000 Frm 00050 Fmt 4701 Sfmt 4725 E:\FR\FM\16OCR2.SGM 16OCR2 tkelley on DSK3SPTVN1PROD with RULES2 ER16OC12.051 Federal Register / Vol. 77, No. 200 / Tuesday, October 16, 2012 / Rules and Regulations 63653

(7) Unit 3: Youngs Creek, Whitley Road downstream to its confluence with County, Kentucky. the Cumberland River. (i) Unit 3 includes 7.4 rkm (4.6 rmi) (ii) Map of Unit 3 of critical habitat for of Youngs Creek from Brays Chapel the Cumberland darter follows:

(8) Units 4, 5, 6, 7, and 8: Barren Fork, (ii) Unit 5 includes 4.0 rkm (2.5 rmi) (iv) Unit 7 includes 4.6 rkm (2.9 rmi) Indian Creek, Cogur Fork, Kilburn Fork, of Indian Creek from its confluence with of Kilburn Fork from its confluence with and Laurel Fork, McCreary County, an unnamed tributary downstream to its an unnamed tributary downstream to its Kentucky. confluence with Barren Fork. confluence with Laurel Fork. (i) Unit 4 includes 6.3 rkm (3.9 rmi) (iii) Unit 6 includes 8.6 rkm (5.4 rmi) (v) Unit 8 includes 3.5 rkm (2.2 rmi) of Barren Fork from its confluence with of Cogur Fork from its confluence with of Laurel Fork from its confluence with an unnamed tributary downstream to its Strunk Branch downstream to its Toms Fork downstream to its confluence with Indian Creek. confluence with Indian Creek. confluence with Indian Creek.

VerDate Mar<15>2010 17:42 Oct 15, 2012 Jkt 229001 PO 00000 Frm 00051 Fmt 4701 Sfmt 4700 E:\FR\FM\16OCR2.SGM 16OCR2 tkelley on DSK3SPTVN1PROD with RULES2 ER16OC12.052 63654 Federal Register / Vol. 77, No. 200 / Tuesday, October 16, 2012 / Rules and Regulations

(vi) Map of Units 4, 5, 6, 7, and 8 of critical habitat for the Cumberland darter follows:

VerDate Mar<15>2010 17:42 Oct 15, 2012 Jkt 229001 PO 00000 Frm 00052 Fmt 4701 Sfmt 4725 E:\FR\FM\16OCR2.SGM 16OCR2 tkelley on DSK3SPTVN1PROD with RULES2 ER16OC12.053 Federal Register / Vol. 77, No. 200 / Tuesday, October 16, 2012 / Rules and Regulations 63655

(9) Units 9, 10, and 11: Laurel Creek, (ii) Unit 10 includes 2.1 rkm (1.3 rmi) with an unnamed tributary downstream Elisha Branch, and Jenneys Branch, of Elisha Branch from its confluence to its confluence with Laurel Creek. McCreary County, Kentucky. with an unnamed tributary downstream (iv) Map of Units 9, 10, and 11 of (i) Unit 9 includes 9.4 rkm (5.9 rmi) to its confluence with Laurel Creek. critical habitat for the Cumberland of Laurel Creek from Laurel Creek (iii) Unit 11 includes 3.1 rkm (1.9 rmi) darter follows: Reservoir downstream to its confluence of Jenneys Branch from its confluence with Jenneys Branch.

VerDate Mar<15>2010 17:42 Oct 15, 2012 Jkt 229001 PO 00000 Frm 00053 Fmt 4701 Sfmt 4725 E:\FR\FM\16OCR2.SGM 16OCR2 tkelley on DSK3SPTVN1PROD with RULES2 ER16OC12.054 63656 Federal Register / Vol. 77, No. 200 / Tuesday, October 16, 2012 / Rules and Regulations

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

(11) Units 13, 14, and 15: Jellico Scott Branch, Scott County, Tennessee, Sid Anderson Branch downstream to its Creek, Rock Creek, and Capuchin Creek, downstream to its confluence with confluence with Jellico Creek. McCreary and Whitley Counties, Capuchin Creek, McCreary County, (iii) Unit 15 includes 4.2 rkm (2.6 rmi) Kentucky, and Campbell and Scott Kentucky. of Capuchin Creek from its confluence Counties, Tennessee. (ii) Unit 14 includes 6.1 rkm (3.8 rmi) with Hatfield Creek downstream to its (i) Unit 13 includes 11.5 rkm (7.2 rmi) of Rock Creek from its confluence with confluence with Jellico Creek. of Jellico Creek from its confluence with

VerDate Mar<15>2010 17:42 Oct 15, 2012 Jkt 229001 PO 00000 Frm 00054 Fmt 4701 Sfmt 4700 E:\FR\FM\16OCR2.SGM 16OCR2 tkelley on DSK3SPTVN1PROD with RULES2 ER16OC12.055 Federal Register / Vol. 77, No. 200 / Tuesday, October 16, 2012 / Rules and Regulations 63657

(iv) Map of Units 13, 14, and 15 of critical habitat for the Cumberland darter follows:

* * * * * between spawning, foraging, and resting liter (mg/L), turbidity of an average sites to promote gene flow throughout monthly reading of 10 Nephelometric Rush Darter (Etheostoma phytophilum) the species’ range. Turbidity Units (NTU; units used to (1) The critical habitat units are (ii) Stable bottom substrates measure sediment discharge) and 15 depicted for Jefferson, Winston, and consisting of a combination of sand with mg/L total suspended solids (TSS; Etowah Counties in Alabama, on the silt, muck, gravel, or bedrock and measured as mg/L of sediment in water) maps below. adequate emergent vegetation in or less; and a specific conductance (2) Within these areas, the primary shallow water on the margins of small (ability of water to conduct an electric constituent elements of the physical and permanent and ephemeral streams and current, based on dissolved solids in the biological features essential to the spring runs. water) of no greater than 225 micro conservation of the rush darter consist (iii) Instream flow with moderate Siemens per centimeter at 26.7 °C (80 of five components: velocity and a continuous daily °F). (i) Springs and spring-fed reaches of discharge that allows for a longitudinal geomorphically stable, relatively low- connectivity regime inclusive of both (v) Prey base of aquatic gradient, headwater streams with surface runoff and groundwater sources macroinvertebrates, including midge appropriate habitat (bottom substrates) (springs and seepages) and exclusive of larvae, mayfly nymphs, blackfly larvae, to maintain essential riffles, runs, and flushing flows caused by stormwater beetles, and microcrustaceans. pools; emergent vegetation in shallow runoff. (3) Critical habitat does not include water and on the margins of small (iv) Water quality with temperature manmade structures (such as buildings, streams and spring runs; cool, clean, not exceeding 26.7 °C (80 °F), dissolved aqueducts, runways, roads, and other flowing water; and connectivity oxygen 6.0 milligrams or greater per paved areas) and the land on which they

VerDate Mar<15>2010 17:42 Oct 15, 2012 Jkt 229001 PO 00000 Frm 00055 Fmt 4701 Sfmt 4700 E:\FR\FM\16OCR2.SGM 16OCR2 tkelley on DSK3SPTVN1PROD with RULES2 ER16OC12.056 63658 Federal Register / Vol. 77, No. 200 / Tuesday, October 16, 2012 / Rules and Regulations

are located existing within the legal by longitude and latitude using decimal gov at Docket No. FWS–R4–ES–2011– boundaries on November 15, 2012. degrees and projected in WGS 1984. The 0074, and at the Service’s Tennessee (4) Critical habitat map units. Data maps in this entry, as modified by any Fish and Wildlife Office. You may layers defining map units were created accompanying regulatory text, establish obtain field office location information on a base of USGS digital ortho-photo the boundaries of the critical habitat by contacting one of the Service regional quarter-quadrangles, and critical habitat designation. The coordinates or plot offices, the addresses of which are listed units were then mapped using Universal points or both on which each map is at 50 CFR 2.2. Transverse Mercator (UTM) Zone 16N, based are available to the public at the NAD1983, coordinates. Upstream and field office Internet site (http://www.fws. (5) Index map follows: downstream limits were then identified gov/cookeville), http://www.regulations. BILLING CODE 4310–55–P

VerDate Mar<15>2010 17:42 Oct 15, 2012 Jkt 229001 PO 00000 Frm 00056 Fmt 4701 Sfmt 4725 E:\FR\FM\16OCR2.SGM 16OCR2 tkelley on DSK3SPTVN1PROD with RULES2 ER16OC12.057 Federal Register / Vol. 77, No. 200 / Tuesday, October 16, 2012 / Rules and Regulations 63659

(6) Units 1, 2, and 3: Beaver Creek, 7.5 topographical map (Pinson (iii) Unit 3 includes 0.6 rkm (0.4 rmi) Unnamed Tributary to Beaver Creek and quadrangle), downstream to its of spring run, historically called Highway 79 Spring Site, and Tapawingo confluence with Dry Creek, and Tapawingo Plunge, along with 6.7 ha or Penny Spring and Spring Run, includes a spring run beginning at the (16.5 ac) of flooded spring basin making Jefferson County, Alabama. springhead just northwest of Old Pinson up Penny Springs, located south of (i) Unit 1 includes 1.0 river kilometers Road and intersecting with an unnamed Turkey Creek, north of Bud Holmes (rkm) (0.6 river miles (rmi)) of Beaver tributary to Beaver Creek on the west Road, east of Tapawingo Trail Road. The Creek from the confluence with an side of Highway 79, and a spring east boundary is at latitude 33° 41′ unnamed tributary to Beaver Creek, associated wetland (0.13 ha, 0.33 ac) 56.50″ N and longitude 86° 39′ 55.01″ downstream to the confluence with within the headwaters, south of Pinson W: 1.0 km (0.6 mi) west of section line Turkey Creek. (ii) Unit 2 includes 4.4 rkm (2.7 rmi) Heights Road, flowing 0.9 km (0.05 mi) 28 and 29 (T15S, R1W) (U.S. Geological of an unnamed tributary of Beaver Creek from the northwest (33.668173, Survey 7.5 topographical map (Pinson and two spring runs. The site begins at -86.708577) and adjoining to the quadrangle)). the section 1 and 2 (T16S, R2W) line, as Unnamed Tributary (33.667344, (iv) Map of Units 1, 2, and 3 of critical taken from the U.S. Geological Survey -86.707429). habitat for the rush darter follows:

VerDate Mar<15>2010 17:42 Oct 15, 2012 Jkt 229001 PO 00000 Frm 00057 Fmt 4701 Sfmt 4725 E:\FR\FM\16OCR2.SGM 16OCR2 tkelley on DSK3SPTVN1PROD with RULES2 ER16OC12.058 63660 Federal Register / Vol. 77, No. 200 / Tuesday, October 16, 2012 / Rules and Regulations

(7) Units 4, 5, and 6: Wildcat Branch, (ii) Unit 5 includes 5.9 rkm (3.7 rmi) line 23 and 14 (R9W, T11S; Popular Mill Creek, and Doe Branch, Winston of Mill Creek from the streams Springs Quadrangle) to the confluence County, Alabama. headwaters just east of Winston County with Wildcat Branch. (i) Unit 4 includes 6.6 rkm (4.1 rmi) Road 195 to the confluence with Clear (iv) Map of Units 4, 5, and 6 of critical of Wildcat Branch from the streams Creek. headwaters just east of Winston County (iii) Unit 6 includes 4.3 rkm (2.7 rmi) habitat for the rush darter follows: Road 29 to the confluence with Clear of Doe Branch from the streams Creek. headwaters north and west of section

VerDate Mar<15>2010 17:42 Oct 15, 2012 Jkt 229001 PO 00000 Frm 00058 Fmt 4701 Sfmt 4725 E:\FR\FM\16OCR2.SGM 16OCR2 tkelley on DSK3SPTVN1PROD with RULES2 ER16OC12.059 Federal Register / Vol. 77, No. 200 / Tuesday, October 16, 2012 / Rules and Regulations 63661

(8) Units 7 and 8: Little Cove Creek, intersection of Etowah County Road 179 spring run floodplain due south of the Cove Spring and Spring Run; and near the creek headwaters, downstream pumping facility. Bristow Creek, Etowah County, to its confluence with the Locust Fork (ii) Unit 8 includes 10.2 rkm (6.3 rmi) Alabama. River. The Cove Spring and spring run of Bristow Creek beginning from the (i) Unit 7 includes 11.2 rkm (6.1 rmi) section includes 0.2 rkm (0.1 rmi) of the bridge at Fairview Cove Road, of Little Cove Creek and the Cove Spring spring run from the springhead at the downstream to the confluence with the run system along with 5.1 ha (12.7 ac) West Etowah Water and Fire Authority of the spring run floodplain. pumping station on Cove Spring Road to Locust Fork River. Specifically, the Little Cove Creek the confluence with Little Cove Creek (iii) Map of Units 7 and 8 of critical section (11.0 rkm (6.0 rmi)) is from the and includes 5.1 ha (12.7 acres) of the habitat for the rush darter follows:

* * * * * conservation of the yellowcheek darter (iii) An instream flow regime consist of five components: (magnitude, frequency, duration, and Yellowcheek darter (Etheostoma seasonality of discharge over time) moorei) (i) Geomorphically stable, second- to fifth-order streams with riffle habitats, sufficient to provide permanent surface (1) Critical habitat units are depicted and connectivity between spawning, flows, as measured during years with for Cleburne, Searcy, Stone, and Van foraging, and resting sites to promote average rainfall, and to maintain benthic Buren Counties, Arkansas, on the maps gene flow within the species’ range habitats utilized by the species. below. where possible. (iv) Adequate water quality (2) Within these areas, the primary (ii) Stable bottom composed of characterized by moderate stream relatively silt-free, moderate to strong temperatures, acceptable dissolved constituent elements of the physical and velocity riffles with gravel, cobble, and oxygen concentrations, moderate pH, biological features essential to the boulder substrates. and low levels of pollutants. Adequate

VerDate Mar<15>2010 17:42 Oct 15, 2012 Jkt 229001 PO 00000 Frm 00059 Fmt 4701 Sfmt 4700 E:\FR\FM\16OCR2.SGM 16OCR2 tkelley on DSK3SPTVN1PROD with RULES2 ER16OC12.060 63662 Federal Register / Vol. 77, No. 200 / Tuesday, October 16, 2012 / Rules and Regulations

water quality is defined for the purpose are located existing within the legal the boundaries of the critical habitat of this rule as the quality necessary for boundaries on November 15, 2012. designation. The coordinates or plot normal behavior, growth, and viability (4) Critical habitat unit maps. Data points or both on which each map is of all life stages of the yellowcheek layers defining map units were created based are available to the public at the darter. on a base of USGS digital ortho-photo field office Internet site (http://www.fws. quarter-quadrangles, and critical habitat gov/cookeville), http://www.regulations. (v) Prey base of aquatic units were then mapped using Universal gov at Docket No. FWS–R4–ES–2011– macroinvertebrates, including blackfly Transverse Mercator (UTM) Zone 15N, 0074, and at the Service’s Tennessee larvae, stonefly larvae, mayfly nymphs, NAD1983, coordinates. Upstream and Fish and Wildlife Office. You may and caddisfly larvae. downstream limits were then identified obtain field office location information (3) Critical habitat does not include by longitude and latitude using decimal by contacting one of the Service regional manmade structures (such as buildings, degrees and projected in WGS 1984. The offices, the addresses of which are listed aqueducts, runways, roads, and other maps in this entry, as modified by any at 50 CFR 2.2. paved areas) and the land on which they accompanying regulatory text, establish (5) Index map follows:

VerDate Mar<15>2010 17:42 Oct 15, 2012 Jkt 229001 PO 00000 Frm 00060 Fmt 4701 Sfmt 4725 E:\FR\FM\16OCR2.SGM 16OCR2 tkelley on DSK3SPTVN1PROD with RULES2 ER16OC12.061 Federal Register / Vol. 77, No. 200 / Tuesday, October 16, 2012 / Rules and Regulations 63663

(6) Unit 1: Middle Fork Little Red of the Middle Fork of the Little Red downstream of the Arkansas Highway 9 River; Searcy, Stone and Van Buren River from Searcy County Road 167 crossing of the Middle Fork near Counties, Arkansas. approximately 3.4 rkm (2.1 rmi) Shirley, Arkansas. (i) Unit 1 includes 73.2 river southwest of Leslie, Arkansas, to a point (ii) Map of Unit 1 of critical habitat for kilometers (rkm) (45.5 river miles (rmi)) on the stream 7.7 rkm (4.8 rmi) the yellowcheek darter follows:

VerDate Mar<15>2010 17:42 Oct 15, 2012 Jkt 229001 PO 00000 Frm 00061 Fmt 4701 Sfmt 4725 E:\FR\FM\16OCR2.SGM 16OCR2 tkelley on DSK3SPTVN1PROD with RULES2 ER16OC12.062 63664 Federal Register / Vol. 77, No. 200 / Tuesday, October 16, 2012 / Rules and Regulations

(7) Unit 2: South Fork Little Red miles north of Scotland, Arkansas, to a it becomes inundated by Greers Ferry River; Van Buren County, Arkansas. point on the stream approximately 5.5 Lake. (i) Unit 2 includes 33.8 rkm (21.0 rmi) rkm (3.4 rmi) downstream of U.S. (ii) Map of Unit 2 of critical habitat for of the South Fork of the Little Red River Highway 65 in Clinton, Arkansas, where the yellowcheek darter follows: from Van Buren County Road 9 three

VerDate Mar<15>2010 17:42 Oct 15, 2012 Jkt 229001 PO 00000 Frm 00062 Fmt 4701 Sfmt 4725 E:\FR\FM\16OCR2.SGM 16OCR2 tkelley on DSK3SPTVN1PROD with RULES2 ER16OC12.063 Federal Register / Vol. 77, No. 200 / Tuesday, October 16, 2012 / Rules and Regulations 63665

(8) Unit 3: Archey Fork Little Red River from its confluence with South (ii) Map of Unit 3 of critical habitat for River; Van Buren County, Arkansas. Castleberry Creek to its confluence with the yellowcheek darter follows: (i) Unit 3 includes 28.5 rkm (17.7 rmi) the South Fork of the Little Red River of the Archey Fork of the Little Red near Clinton, Arkansas.

VerDate Mar<15>2010 17:42 Oct 15, 2012 Jkt 229001 PO 00000 Frm 00063 Fmt 4701 Sfmt 4725 E:\FR\FM\16OCR2.SGM 16OCR2 tkelley on DSK3SPTVN1PROD with RULES2 ER16OC12.064 63666 Federal Register / Vol. 77, No. 200 / Tuesday, October 16, 2012 / Rules and Regulations

(9) Unit 4: Devil’s Fork Little Red (i) Unit 4 includes 28.0 rkm (17.4 rmi) of Woodrow, Arkansas, at the point of River (including Turkey Creek and of stream from Stone County Road 21 inundation by Greers Ferry Lake. Beech Fork); Cleburne and Stone approximately 3 miles north of Prim, (ii) Map of Unit 4 of critical habitat for Counties, Arkansas. Arkansas, to a point on the Devil’s Fork the yellowcheek darter follows: approximately 5.1 km (3.2 mi) southeast

* * * * * sites to promote gene flow throughout water quality is defined for the purpose the species’ range. of this rule as the quality necessary for Chucky Madtom (Noturus crypticus) (ii) Stable bottom substrates normal behavior, growth, and viability (1) The critical habitat unit is composed of relatively silt-free, flat of all life stages of the Chucky madtom. depicted for Greene County, Tennessee, gravel, cobble, and slab-rock boulders. (v) Prey base of aquatic on the maps below. (iii) An instream flow regime macroinvertebrates, including midge (magnitude, frequency, duration, and larvae, mayfly nymphs, caddisfly larvae, (2) Within this area, the primary seasonality of discharge over time) and stonefly larvae. constituent elements of the physical and sufficient to provide permanent surface (3) Critical habitat does not include biological features essential to the flows, as measured during years with manmade structures (such as buildings, conservation of the Chucky madtom average rainfall, and to maintain benthic aqueducts, runways, roads, and other consist of five components: habitats utilized by the species. paved areas) and the land on which they (i) Gently flowing run and pool (iv) Adequate water quality are located existing within the legal reaches of geomorphically stable characterized by moderate stream boundaries on November 15, 2012. streams with cool, clean, flowing water; temperatures, acceptable dissolved (4) Critical habitat unit maps. Data shallow depths; and connectivity oxygen concentrations, moderate pH, layers defining map units were created between spawning, foraging, and resting and low levels of pollutants. Adequate on a base of USGS digital ortho-photo

VerDate Mar<15>2010 17:42 Oct 15, 2012 Jkt 229001 PO 00000 Frm 00064 Fmt 4701 Sfmt 4700 E:\FR\FM\16OCR2.SGM 16OCR2 tkelley on DSK3SPTVN1PROD with RULES2 ER16OC12.065 Federal Register / Vol. 77, No. 200 / Tuesday, October 16, 2012 / Rules and Regulations 63667

quarter-quadrangles, and critical habitat accompanying regulatory text, establish Service’s Tennessee Fish and Wildlife units were then mapped using the boundaries of the critical habitat Office. You may obtain field office Tennessee State Plane, Lambert designation. The coordinates or plot location information by contacting one Conformal Conic Projection, units feet. points or both on which each map is of the Service regional offices, the Upstream and downstream limits were based are available to the public at the addresses of which are listed at 50 CFR then identified by longitude and field office Internet site (http:// 2.2. latitude using decimal degrees and www.fws.gov/cookeville), http:// (5) Index map follows: projected in WGS 1984. The maps in www.regulations.gov at Docket No. this entry, as modified by any FWS–R4–ES–2011–0074, and at the

VerDate Mar<15>2010 17:42 Oct 15, 2012 Jkt 229001 PO 00000 Frm 00065 Fmt 4701 Sfmt 4725 E:\FR\FM\16OCR2.SGM 16OCR2 tkelley on DSK3SPTVN1PROD with RULES2 ER16OC12.066 63668 Federal Register / Vol. 77, No. 200 / Tuesday, October 16, 2012 / Rules and Regulations

(6) Little Chucky Creek Unit, Greene confluence with an unnamed tributary, (ii) Map of Little Chucky Creek Unit County, Tennessee. downstream to its confluence with the of critical habitat for the Chucky (i) Little Chucky Creek Unit includes Nolichucky River, at the Greene and madtom follows: 31.9 river kilometers (19.8 river miles) Cocke County line, Tennessee. of Little Chucky Creek from its

* * * * * Dated: September 25, 2012. Rachel Jacobson, Principal Deputy Assistant Secretary for Fish and Wildlife and Parks. [FR Doc. 2012–24468 Filed 10–15–12; 8:45 am] BILLING CODE 4310–55–P

VerDate Mar<15>2010 17:42 Oct 15, 2012 Jkt 229001 PO 00000 Frm 00066 Fmt 4701 Sfmt 9990 E:\FR\FM\16OCR2.SGM 16OCR2 tkelley on DSK3SPTVN1PROD with RULES2 ER16OC12.067