Vol. 77 Thursday, No. 144 July 26, 2012

Part II

Department of the Interior

Fish and Wildlife Service 50 CFR Part 17 Endangered and Threatened Wildlife and Plants; Endangered Status for the and Designation of Critical Habitat; Proposed Rule

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DEPARTMENT OF THE INTERIOR information you provide us (see the Act also requires that we designate Public Comments section below for critical habitat concurrently with listing Fish and Wildlife Service more information). determinations, if designation is The coordinates or plot points or both prudent and determinable. 50 CFR Part 17 from which the maps are generated are We have made the following finding [FWS–R5–ES–2012–0045; 4500030113] included in the administrative record related to these criteria: for this critical habitat designation and • Diamond darter is endangered by RIN 1018–AY12 are available at (http://www.fws.gov/ water quality degradation; habitat loss; westvirginiafieldoffice/index.html), inadequate existing regulatory Endangered and Threatened Wildlife www.regulations.gov at Docket No. mechanisms; a small population size and Plants; Endangered Status for the FWS–R5–ES–2012–0045, and at the that makes the species vulnerable to the Diamond Darter and Designation of West Virginia Field Office (see FOR effects of the spread of an invasive alga Critical Habitat FURTHER INFROMATION CONTACT). Any (Didymosphenia geminate); loss of AGENCY: Fish and Wildlife Service, additional tools or supporting genetic fitness; and catastrophic events, Interior. information that we may develop for such as oil and other toxic spills. ACTION: Proposed rule. this critical habitat designation will also This rule proposes to designate be available at the above locations. critical habitat for the diamond darter. SUMMARY: We, the U.S. Fish and FOR FURTHER INFORMATION CONTACT: • Critical habitat designation would Wildlife Service, propose to list the Deborah Carter, Field Supervisor, U.S. not be expected to increase threats to diamond darter ( cincotta) as Fish and Wildlife Service, West Virginia the species, and we have sufficient endangered under the Endangered Field Office, 694 Beverly Pike, Elkins, scientific information on the diamond Species Act of 1973, as amended (Act); WV 26241, by telephone (304) 636–6586 darter to determine the areas essential and propose to designate critical habitat or by facsimile (304) 636–7824. Persons to, and essential for, its conservation. for the species. In total, approximately who use a telecommunications device Accordingly, we have determined the 197.1 river kilometers (122.5 river for the deaf (TDD) may call the Federal designation of critical habitat is both miles) are being proposed for Information Relay Service (FIRS) at prudent and determinable. designation as critical habitat. The 800–877–8339. • In total, we propose to designate proposed critical habitat is located in SUPPLEMENTARY INFORMATION: approximately 197.1 river kilometers Kanawha and Clay Counties, West (122.5 miles) as critical habitat. The Virginia, and Edmonson, Hart, and Executive Summary proposed critical habitat is located in Green Counties, Kentucky. Why we need to publish a rule. Under Kanawha and Clay Counties, West DATES: We will consider comments the Endangered Species Act (Act), a Virginia, and Edmonson, Hart, and received or postmarked on or before species may warrant protection through Green Counties, Kentucky. September 24, 2012. Comments listing if it is endangered throughout all • Based on our interpretation of submitted electronically using the or a significant portion of its range. We directly regulated entities under the Federal eRulemaking Portal (see are proposing to list the diamond darter Regulatory Flexibility Act and relevant ADDRESSES section, below) must be as endangered under the Act because of case law, this designation of critical received by 11:59 p.m. Eastern Time on continued threats, and listing can only habitat will only directly regulate the closing date. We must receive be done by issuing a rule. The diamond Federal agencies, which are not by requests for public hearings, in writing, darter occurs as a single population in definition small business entities. at the address shown in the ADDRESSES the Elk River in West Virginia. We are However, though not necessarily section by September 10, 2012. also proposing to designate critical required by the Regulatory Flexibility ADDRESSES: You may submit comments habitat under the Act for the species. Act, in our draft economic analysis for by one of the following methods: Critical habitat represents geographical this proposal, we will consider and (1) Electronically: Go to the Federal areas that are essential to a species’ evaluate the potential effects to third eRulemaking Portal: http:// conservation, and is designated on the parties that may be involved with www.regulations.gov. In the Keyword basis of the best scientific information consultations with Federal action box, enter Docket No. FWS–R5–ES– available after taking into consideration agencies related to this action. 2012–0045, which is the docket number the economic impact, impact on Peer Review. We will seek the expert for this rulemaking. Then, in the Search national security, and any other relevant opinions of at least three appropriate panel on the left side of the screen, impact of specifying any particular area and independent specialists with under the Document heading, as critical habitat. A forthcoming draft scientific expertise to ensure our click on the Proposed Rules link to economic analysis will evaluate the determinations are based on locate this document. You may submit potential economic impacts that may be scientifically sound data, assumptions, a comment by clicking on ‘‘Send a attributable to the proposed designation and analyses. Comment or Submission.’’ of critical habitat for the species. Information Requested (2) By hard copy: Submit by U.S. mail The basis for our action. Under the or hand-delivery to: Public Comments Act, a species may be determined to be We intend that any final action Processing, Attn: FWS–R5–ES–2012– endangered or threatened based on any resulting from this proposed rule will be 0045; Division of Policy and Directives of five factors: (1) The present or based on the best scientific and Management; U.S. Fish and Wildlife threatened destruction, modification, or commercial data available and be as Service; 4401 N. Fairfax Drive, MS curtailment of its habitat or range; (2) accurate and as effective as possible. 2042–PDM; Arlington, VA 22203. overutilization for commercial, Therefore, we request comments or We request that you send comments recreational, scientific, or educational information from the public, other only by the methods described above. purposes; (3) disease or predation; (4) concerned governmental agencies, We will post all comments on http:// the inadequacy of existing regulations; Native American tribes, the scientific www.regulations.gov. This generally or (5) other natural or manmade factors community, industry, or any other means that we will post any personal affecting its continued existence. The interested parties concerning this

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proposed rule. We particularly seek change on the diamond darter and on http://www.regulations.gov, or by comments concerning: proposed critical habitat. appointment, during normal business (1) Biological, commercial trade, or (10) Any probable economic, national hours, at the U.S. Fish and Wildlife other relevant data concerning any security, or other relevant impacts of Service, West Virginia Field Office (see threats (or lack thereof) to this species designating any area that may be FOR FURTHER INFORMATION CONTACT). and regulations that may be addressing included in the final designation; in Previous Federal Actions those threats. particular, any impacts on small entities (2) Additional information concerning or families, and the benefits of including The diamond darter was first the historical and current status, range, or excluding areas that exhibit these identified as a candidate for protection distribution, and population size of this impacts. under the Act in the November 9, 2009, species, including the locations of any (11) Whether any specific areas we are Federal Register (74 FR 57804). As a additional populations of this species. proposing for critical habitat candidate, it was assigned a listing (3) The factors that are the basis for designation should be considered for priority number (LPN) of 2. Candidate making a listing determination for a exclusion under section 4(b)(2) of the species are assigned LPNs based on the species under section 4(a) of the Act, Act, and whether the benefits of magnitude and immediacy of threats, as which are: potentially excluding any specific area well as their taxonomic status. The (a) The present or threatened outweigh the benefits of including that lower the LPN, the higher priority that destruction, modification, or area under section 4(b)(2) of the Act. species is for us to determine curtailment of its habitat or range; (12) Whether we could improve or appropriate action using our available (b) Overutilization for commercial, modify our approach to designating resources. An LPN of 2 reflects threats recreational, scientific, or educational critical habitat in any way to provide for that are both imminent and high in purposes; greater public participation and magnitude, as well as the taxonomic (c) Disease or predation; understanding, or to better classification of the diamond darter as a (d) The inadequacy of existing accommodate public concerns and full species. We retained the LPN of 2 regulatory mechanisms; or comments. in our subsequent Notices of Review (e) Other natural or manmade factors Please note that submissions merely dated November 10, 2010 (75 FR 69222) affecting its continued existence. stating support for or opposition to the and October 26, 2011 (76 FR 66370). (4) Any information on the biological action under consideration without Status Assessment for Diamond Darter or ecological requirements of the species providing supporting information, and ongoing conservation measures for although noted, will not be considered Background the species and its habitat. in making a determination, as section It is our intent to discuss below only (5) Current or planned activities in the 4(b)(1)(A) of the Act directs that those topics directly relevant to the areas occupied by the species and determinations as to whether any proposed listing of the diamond darter possible impacts of these activities on species is a threatened or endangered as endangered in this section of the this species. species must be made solely on the proposed rule. A summary of topics (6) The reasons why we should or basis of the best scientific and relevant to this proposed rule is should not designate habitat as ‘‘critical commercial data available, and section provided below. Additional information habitat’’ under section 4 of the Act (16 4(b)(2) directs that critical habitat on this species may be found in the U.S.C. 1531 et seq.) including whether designations be made based on the best Candidate Notice of Review, which was there are threats to the species from scientific data available and after published October 26, 2011 (76 FR human activity, the degree of which can consideration of economic, national 66370). be expected to increase due to the security, and other relevant impacts. designation, and whether that increase You may submit your comments and Species Description in threat outweighs the benefit of materials concerning this proposed rule The diamond darter (Crystallaria designation such that the designation of by one of the methods listed in the cincotta) is a member of the critical habitat may not be prudent. ADDRESSES section. We request that you family (), a group characterized (7) Specific information on: send comments only by the methods by the presence of a dorsal (top) fin (a) The amount and distribution of described in ADDRESSES. separated into two parts, one spiny and diamond darter habitat; If you submit information via http:// the other soft (Kuehne and Barbour (b) What areas, that were occupied at www.regulations.gov, your entire 1983, p. 1). The darters differ from other the time of listing (or are currently submission—including any personal percids in being much smaller in overall occupied) and that contain features identifying information—will be posted size and having a more slender shape. essential to the conservation of the on the Web site. If your submission is Some darters, including those in the species, should be included in the made via a hardcopy that includes genus Crystallaria, lack a swim bladder. designation and why; personal identifying information, you This characteristic increases the density (c) Special management may request at the top of your document of the fish and facilitates their ability to considerations or protection that may be that we withhold this information from remain near the bottom of their riverine needed in critical habitat areas we are public review. However, we cannot habitats with little effort (Evans and proposing, including managing for the guarantee that we will be able to do so. Page 2003, p. 64). potential effects of climate change; and We will post all hardcopy submissions The diamond darter is overall (d) What areas not occupied at the on http://www.regulations.gov. Please translucent and is a silvery white on the time of listing are essential for the include sufficient information with your under side of the body and head and has conservation of the species and why. comments to allow us to verify any four wide, -brown saddles on the (8) Land use designations and current scientific or commercial information back and upper side (Welsh et al. 2008, or planned activities in the subject areas you include. p. 1). Between the saddles, olive-brown and their possible impacts on proposed Comments and materials we receive, colored pigments on the scale margins critical habitat. as well as supporting documentation we produce a fragmented cross-hatch (9) Information on the projected and used in preparing this proposed rule, pattern. A blotch under and in front of reasonably likely impacts of climate will be available for public inspection the eyes is dark and distinctly separated

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from the front margin of the orbital rim asprella) (Cincotta and Hoeft 1987, pp. number of rays in the anal fin. The around the eye. The side coloration 133–136). This was the first collection results of this study confirmed the includes 12 to 14 oblong, olive-brown of this species from the conclusions of Wood and Raley (2000, blotches overlain by an iridescent, olive- Basin in 41 years and the first time it pp. 20–26) in regard to the Elk River green stripe. Fins are clear with the was ever collected in West Virginia population. The magnitude of exception of sparse pigmentation on the (Cincotta and Hoeft 1987, p. 133). divergence between the Elk River tail fin. Although the diagnostic characteristics population and the other populations Documented standard lengths of the specimen were within those sampled, as estimated from mtDNA CR measured from the tip of the snout to described for the by Page data, was similar in magnitude to the beginning of the tail fin range from (1983), even at the time of collection mtDNA divergences measured between 73 to 77.3 millimeters (mm) (2.9 to 3.0 some researchers believed that the recognized species of darters and was an inches [in]) (Welsh and Wood 2008, pp. species, as then recognized, actually order of magnitude greater than some 64–66). constituted more than one subspecies or mtDNA CR divergence estimates for Characteristics that distinguish the species (Cincotta and Hoeft 1987, p. recognized subspecies (Morrison et al. diamond darter from the related crystal 134), particularly given the disjunct 2006, p. 139). Morphometric data were darter (C. asprella) that occurs in nature of existing crystal darter also consistent with molecular data freshwater rivers in the Gulf Coast populations. regarding the distinctiveness of the Elk States of Alabama, Florida, Louisiana, In order to explore this possibility, River population (Morrison et al. 2006, and Mississippi, and in the Mississippi Wood and Raley (2000) evaluated the p. 129). The study concluded that the and Wabash rivers, include: the width genetic variation of five crystal darter Elk River group likely constituted a of the mouth when opened is larger and populations by sequencing a specific distinct species (Morrison et al. 2006, p. is approximately equal to or exceeding gene referred to as the cytochrome b 143). the width between the pelvic fins; a gene. Individuals were evaluated from blotch under and in front of the eyes populations in the Pearl River in Welsh and Wood (2008) conducted that is distinctly separate from the front Louisiana, the Cahaba River in Alabama, additional morphological comparisons of the orbital rim; a pair of fins located the Saline River in Arkansas, the between Crystallaria populations from on the underside of the fish near the Zumbro River in Minnesota, and the Elk 18 rivers within the Ohio River pelvis girdle (pelvic fins) that are River in West Virginia. This analysis Drainage; the upper, middle, and lower distinctly curved like a sickle in both was conducted on these crystal darter drainages; and the sexes; a reduced number of cheek scale specimens, as well as individuals from Gulf Coast (Welsh and Wood 2008, p. rows (most frequently 2); a reduced eight other darter species (Wood and 63). This evaluation included specimens number of scale rows (most frequently Raley 2000, p. 20). This study found from extant populations, as well as 2) on the opercle, which is a bone near that there was an 11.2 to 11.8 percent museum specimens from currently the gills; a high count of mid-lateral difference between the cytochrome b extirpated populations that were blotches (most frequently 13); a low sequence of the Elk River crystal darter gathered during the late 1800s to early count of rays (most frequently 13) on the population and all other crystal darter 1900s. Nine specific morphological anal fin (a single fin located on the populations evaluated (Wood and Raley characteristics were identified that underside of the fish behind the anus); 2000, p. 24). This was one of the highest distinguish the Elk River population a low count of dorsal-fin spines (most differences in cytochrome b ever from other populations of the crystal frequently 12), and a high count of reported for a fish species (Wood and darter (see Species Description section). scales (most frequently 11) below the Raley 2000, p. 24), and was more typical Based on the results of this analysis, and , which is a sense organ fish of differences between species or genera the previous genetic studies, Welsh and use to detect movement and vibration in rather than subspecies (Wood and Raley Wood (2008, pp. 62–68) formally named the surrounding water (Welsh and 2000, p. 24). and described the Elk River population Wood 2008, p. 66). Because differentiation observed at a of the crystal darter as a separate and single gene region is generally not distinct species, the diamond darter considered sufficient evidence to (Crystallaria cincotta) (Welsh and Wood Previously, Crystallaria was regarded establish taxonomic status, additional 2008, pp. 62–68). Welsh and Wood as a subgenus within genetic and physical analyses were (2008, pp. 62–68) further identified that (Cincotta and Hoeft, 1987, p. 133; initiated by Morrison et al. (2006, p. specimens from extirpated populations Simons 1991, p. 934). However, in an 129). In that study, the authors sampled within the Cumberland, Green, and evaluation of the species’ evolutionary individuals from the same five disjunct Muskingum Rivers within the Ohio development based on morphology, crystal darter populations previously River Basin were consistent with the Simons (1991) elevated Crystallaria to a surveyed and compared genetic characteristics defined for the diamond separate genus. This taxonomic variation between these populations darter, thus establishing the extent of treatment has been adopted in other using additional genetic markers the species’ historical range. The crystal subsequent works (Page and Burr 1991, referred to as the mitochondrial control Simons 1992, and Wiley 1992 in region (mtDNA CR) and nuclear S7 darter’s current range, as described NatureServe 2008, p. 1). Allozyme data ribosomal gene (Morrison et al. 2006, p. above, does not appear to overlap with (variant forms of enzymes that are coded 129). In addition, morphometric (a the diamond darter’s current or by different forms of a gene at the same technique of taxonomic analysis using historical range (Grandmaison et al. gene locus) also seem consistent with measurements of the form of organisms) 2003, p. 6; Welsh and Wood 2008, pp. this taxonomy (Wood and Mayden 1997, measurements and meristic (divided 62–68). pp. 267–268). into segments) counts between We carefully reviewed the available When the diamond darter was first individuals from these populations were taxonomic information summarized collected from the Elk River, West compared (Morrison et al. 2006, p. 130). above and conclude that the species is Virginia, in 1980, the specimen was Meristics are systematic counts of fish a valid taxon based upon considerations identified and reported as the crystal characteristics such as the number of of genetic and morphological darter (Crystallaria ne: Ammocrypta scales along the lateral line or the characteristics.

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Life History and Habitat Very little information is available on expectancy for the crystal darter has the reproductive biology and early life been reported to range from 2 to 4 years Due to its rarity, little research exists history of the diamond darter (Welsh et (Osier 2005, pp. 10–11), although some on the natural history of this species al. 2008, p. 1; Ruble and Welsh 2010, p. authors have suggested the potential to (Osier 2005, p. 10). However, in some 1). When maintained in captivity, live up to 7 years (Simon and Wallus cases, potential characteristics can be females began to show signs of being 2006, p. 52). In Arkansas, sexual inferred from the information available gravid from late March to May. maturity for the crystal darter may occur on the closely related crystal darter, as Spawning likely occurs mid-April to during the first year, with the first noted below. May, and larvae hatch within 7 to 9 spawning event occurring the season The diamond darter is a species that days afterward (Ruble et al. 2010, pp. after hatching. However, in the Ohio inhabits medium to large, warmwater 11–12). Males appear to guard spawning River Basin this may not occur until age streams with moderate current and territories, but no guarding of eggs has 3 (George et al. 1996, p. 75; Simon and clean sand and gravel substrates (Simon been observed in captivity (Ruble 2012, Wallus 2006, p. 52). Reported and Wallus 2006, p. 52). In the Elk p. 1) differences in age and size at maturity If the diamond darter’s reproductive River, the diamond darter has been between northern and southern behavior is similar to crystal darters in collected from riffles and pools where populations of crystal darters have been the wild, then females may be capable swift currents result in clean swept, attributed to environmental differences, predominately sand and gravel of multiple spawning events and producing multiple clutches of eggs in such as flow regimes, photoperiod, and substrates that lack silty depositions temperature, with southern populations (Osier 2005, p. 11). one season (George et al. 1996, p. 75). Crystal darters lay their eggs in side maturing and reproducing at an earlier Diamond darters are more often channel riffle habitats over sand and age and thus having shorter lifespans collected at dusk or during the night gravel substrates in moderate current. (George et al. 1996, pp. 75–76). and are likely crepuscular (more active Adult crystal darters do not guard their Species Distribution and Status at dusk and dawn) (Welsh 2008, p. 10). eggs (Simon and Wallus 2006, p. 56). They may stay partially buried in the Embryos develop in the clean interstitial Historical Range/Distribution sand during the day and then come out spaces of the coarse substrate (Simon to feed during the night (Welsh 2009c, and Wallus 2006, p. 56). After hatching, As shown in Table 1 below, historical p. 1). Adult diamond darters are benthic the larvae are pelagic and drift within records of the species indicate that the invertivores, feeding primarily on the water column (Osier 2005, p. 12; diamond darter was distributed stream bottom-dwelling invertebrates Simon and Wallus 2006, p. 56; throughout the Ohio River Basin and (NatureServe 2008, p. 8). They may use NatureServe 2008, p. 1). See the that the range included the Muskingum an ambush foraging tactic by burying in discussion under Critical Habitat River in Ohio; the Ohio River in Ohio, the sand and darting out at prey Designation—Physical and Biological Kentucky and Indiana; the Green River (Robinson 1992 and Hatch 1997 in Osier Features below under ‘‘Sites for in Kentucky; and the Cumberland River 2005, pp. 12–13; NatureServe 2008, p. Breeding, Reproduction, or Rearing (or Drainage in Kentucky and Tennessee. 1). The large teeth seen in juvenile Development) of Offspring’’ for There is some difference of opinion as diamond darters hatched in captivity additional information. to how common the species was during suggest that young diamond darters may Life expectancy of diamond darters is the early portions of the 1900s. feed on other smaller fish larvae (Ruble unknown in the wild. Diamond darters Trautman (1981, p. 645) suggests that it et al. 2010, p. 15). However, because no have been maintained in captivity for 2 is quite probable that before 1900 the juveniles have been successfully reared years. During that time, it is suspected species was well distributed in the to adulthood, this has not been that one adult female died due to lower reaches of the southern Ohio confirmed. The juveniles may also eat senescence (old age). Because she was tributaries and the Ohio River. However zooplankton prey, which is a more brought into captivity as an adult in 1892, Woolman (in Cicerello 2003, typical behavior for pelagic (drifting in (approximately 2 years old) it is p. 6) noted that the species was likely open water) larval percids (Rakes 2011, suspected that she was 4 years or older neither widely distributed, nor common p. 1). at death (Ruble 2011b, p. 1). Life anywhere in Kentucky.

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Current Range/Distribution collection marked the rediscovery of the ‘‘the habitat of few other Ohio fishes species in the Ohio River Basin, where seemed so vulnerable to annihilation’’ The species is currently known to it formerly had been considered (Trautman 1981, p. 646). In addition, exist only within the lower Elk River in extirpated from all states in which it researchers at the Ohio State University Kanawha and Clay Counties, West had previously been recorded (Cincotta have conducted extensive sampling in Virginia, and is considered extirpated and Hoeft 1987, pp. 133–134). The the Ohio River and its tributaries, from the remainder of the Ohio River species has not been collected since starting with Ed Wickliff in the 1920s Basin (Cicerello 2003, p. 3; Welsh and 1899 in Ohio, 1929 in Kentucky, and and continuing through the present Wood 2008, pp. 62, 68). The species was 1939 in Tennessee (Grandmaison et al. (Kibbey 2008, p. 1; Ohio State first collected from the Elk River in 2003, p. 6). University 2008, p. 1). Despite November 1980, when one individual Trautman (1981, p. 645) suggests that semiannual survey efforts in likely was collected during boat increased silt load and subsequent diamond darter habitats, such as the electroshocking surveys conducted near smothering of suitable habitats likely riffles below Devola on the Mink Shoals in Kanawha County caused the extirpation of the species Muskingum River, no additional (Cincotta and Hoeft 1987, p. 133). This from the State of Ohio by 1925 and that diamond darters have been located

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(Kibbey 2008, p. 1). The Midwest and Starnes, 1993, p. 443; TWRA 2005, 2005, pp. 135–136). Despite these Biodiversity Institute has also p. 14; Saylor, 2009, p. 1). Cold water threats, the Cumberland aquatic region conducted recent surveys in the discharges from many of these still contains some of the most diverse Muskingum River using both trawls and have changed the natural temperature populations of fish, mussel, and crayfish electroshocking. These surveys also regimes so that the river no longer species in (TWRA 2005, failed to locate any Crystallaria species functions as a warmwater fishery p. 14), and some ichthyologists have (Kibbey 2008, p. 1). Furthermore, (TWRA 2005, p. 14; Fiss 2009, p. 1). suggested that there is a ‘‘remote despite conducting over 20,000 In addition, when the Cumberland possibility’’ that the diamond darter individual sampling events at over River impoundments were being may still exist in the cleaner large 10,000 locations throughout the State of constructed, a fish barrier was installed tributaries of the Cumberland or the Ohio, including sampling in both large near the mouth of the Roaring River in lower Tennessee rivers (Etnier and rivers and small creeks, the Ohio order to keep species that might Starnes 1993, p. 444). Therefore, some Environmental Protection Agency has frequent the impoundments, such as targeted sampling may be warranted never collected any Crystallaria species carp, from moving into the Roaring (Fiss 2009, p. 1). The TWRA has (Mishne 2008, p. 1). As a result of these River, thus impeding any connectivity conducted 111 fish survey samples from efforts, the species is considered between the two systems (Fiss 2009, 1996 to 2007 throughout the extirpated from both the State of Ohio p. 1). Surveys in the Roaring River Cumberland River system, although the and the Ohio River (Mishne 2008, p. 1; between 1972 and 1986 noted a loss of gear used during some of these surveys Trautman 1981, p. 646). Pearson and silt-intolerant fish species and increased was not targeted towards capturing the Krumholtz (1984, p. 252) state that the disturbance from activities such as diamond darter (Fiss 2009, p. 1),, and chances of the diamond darter currently gravel , highway construction, has no recent records of recent diamond being present in the entire mainstem and poor agricultural practices that were darter captures (Kirk 2009, p. 1). Despite Ohio River are ‘‘remote at best.’’ degrading habitat quality in the stream. extensive sampling in the Duck River, as The species is also considered Although these surveys included the well as the Blood and Big Sandy Rivers, extirpated from Kentucky (Burr and reach of river where Crystallaria had there are no current or historical records Warren 1986, p. 285; Evans 2008b, p. 1). previously been documented, no of the diamond darter in those rivers Kentucky has been fairly well surveyed diamond darters were captured during either (Saylor 2009, p. 1). by numerous researchers without this effort (Crumby et al. 1990, pp. 885– resulting in any recent collections of the 891). Population Estimates/Status species (Evans 2008, p. 1). All historical Surveys conducted in 1939 in the Big Although there is currently not Green River sites have been repeatedly South Fork Cumberland River near sufficient information available to but unsuccessfully sampled for the where Crystallaria was previously develop an overall population estimate diamond darter (Cicerello 2003, p. 6). documented noted that chemical for the species, the results of numerous Both the Kentucky State Nature conditions of the drainage were so survey efforts confirm that the species is Preserves Commission (KSNPC) and adverse to biological productivity that extremely rare. Fish surveys have been Southern Illinois University have the waters of the region are conducted in the Elk River in 1936, conducted surveys targeting the species comparatively barren in contrast to 1971, 1973, 1978 to 1983, 1986, 1991, throughout the upper portion of the surrounding regions (Shoup and Peyton 1993, 1995, 1996, and every year since Green River Basin (Cicerello 2003, p. 6). 1940, p. 106). Comprehensive fisheries 1999 (Welsh et al. 2004, pp. 17–18; Most recently in 2007, the Kentucky surveys were conducted in the Big Welsh 2008, p. 2; Welsh 2009a, p. 1). Department of Fish and Wildlife South Fork Cumberland River from Survey methods included backpack and Resources, the Missouri Department of 2003 to 2006. Collection methods boat electrofishing, underwater Conservation, and KSNPC sampled included backpack electroshocking, observation, kick seines, and bag seines below Lock and Dam 5 and 6 on the seines, dip nets, snorkeling, boat (Welsh et al. 2004, p. 4). Starting in Green River, as well as in river reaches shocking, gill nets, and minnow traps early 1990s, the timing of sampling and downstream of the dams using a Hertzog (Scott 2007, p. 2). No Crystallaria were specific methods used were targeted trawl (Evans 2008a, p. 1). The Kentucky documented during this effort and the towards those shown to be effective at Department of Fish and Wildlife report concludes that the species is one capturing similar darter species during Resources has also done some site of six that will likely never be previous efforts (Welsh et al. 2004, pp. monitoring in the Green River at three encountered in the area due to 4–5; Hatch 1997, Shepard et al. 1999, sites below Green River dam and has extinction, extirpation, and being and Katula 2000 in Welsh et al. 2004, not collected the species. isolated from downstream populations p. 9; Ruble 2011a, p. 1). Despite these The diamond darter has not been by Wolf Creek Dam (Scott 2007, p. 21). extensive and targeted survey efforts documented to occur in Tennessee since Those surveys document that water within the species’ known range and 1939, and all previous records of the quality within the Big South Fork preferred habitat in the Elk River, fewer species within the State were from the Cumberland River has improved since than 50 individuals have been collected Cumberland River Drainage (Etnier and the 1970’s and that fish-diversity in the over the last 30 years since the species Starnes 1993, p. 443). Starting in the system is in the process of recovery was first collected in the Elk River 1950s, dams were installed on the (Scott 2007, pp. 14–19). (SEFC 2008 p. 10; Cincotta 2009a, p. 1; mainstem Cumberland River that Currently, the Cumberland River Cincotta 2009b, p. 1; Welsh 2009b, p. 1, impounded much of its entire length watershed is subject to threats to water Ruble and Welsh 2010, p. 2). More than from Barkley Dam in Kentucky to quality from inadequate pasture and half of these collections (n = 26) have Cumberland Falls near the headwaters grazing management practices, forest occurred in the last 5 years as a result (Tennessee Wildlife Resources Agency clearing, heavy navigation and of focused conservation efforts and (TWRA) 2005, p. 14). This dramatically recreational use, active , sampling that targeted known or altered most of the riverine habitat historical mining and acid mine suspected diamond darter locations qualities that made the river suitable for drainage issues, oil and gas drilling, lack based on habitat mapping (Cincotta the diamond darter and likely resulted of riparian buffers, and poor stormwater 2009b, p. 1; Cincotta 2009c, p. 1; Ruble in the extirpation of the species (Etnier and wastewater management (TWRA 2011a, pp. 1–2).

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Welsh et al. (2004, p. 8) concludes Stream Condition Index, with results of potentially being subject to mountain that the number of individuals in the 77 or higher out of a potential 100 top removal mining activities (Strager Elk River is likely small given the low points (WVDEP 1997, p. 41). 2008, p. 17). catch per unit effort totals recorded in Criteria for placement on the high- Coal mining can contribute significant both previous and recent surveys. quality streams list are based solely on amounts of sediment to streams and Independent publications that have the quality of fisheries populations and degrade their water quality. Impacts to evaluated the status of the species the utilization of those populations by instream water quality (chemistry) occur further corroborate the rarity of the the public and do not include water through inputs of dissolved metals and species. For example, the diamond quality or threats to the watershed other solids that elevate stream darter was recently highlighted as a (WVDNR 2001, p. 36; Brown 2009, p. 1). conductivity, increase sulfate levels, Threatened Fish of the World (Welsh et Despite the high quality of the fishery alter stream pH, or a combination of al. 2008, pp. 1–2) and was listed by the populations, there are continuing and these (Curtis 1973, pp. 153–155; Pond Southeastern Fishes Council as one of pervasive threats within the watershed. 2004, pp. 6–7, 38–41; Hartman et al. the 12 most imperiled fishes (i.e., the In fact, the WVDEP evaluation also 2005, p. 95; Mattingly et al. 2005, p. 59; ‘‘desperate dozen’’) of the southeastern noted that because larger rivers offer a Palmer et al. 2010, pp. 148–149). As United States (SEFC 2008, pp. 2–3). wider variety of microhabitats, the high rock strata and overburden (excess benthic macroinvertebrate scores may material) are exposed to the atmosphere, Summary of Factors Affecting the mask some degradation in water quality precipitation leaches metals and other Species (WVDEP 1997, p. 41). Noted threats to solids (e.g., calcium, magnesium, Section 4 of the Act (16 U.S.C. 1533), the watershed include coal mining, oil sulfates, iron, and manganese) from and its implementing regulations at 50 and gas development, sedimentation these materials and carries them in CFR part 424, set forth the procedures and erosion, timber harvesting, water solution to receiving streams (Pond for adding species to the Federal Lists quality degradation, and poor 2004, p. 7). If valley fills are used as part of Endangered and Threatened Wildlife wastewater treatment (WVDEP 1997, of the mining activity, precipitation and and Plants. Under section 4(a)(1) of the p. 15; Strager 2008, pp. 1–39; WVDEP groundwater percolate through the fill Act, we may list a species based on any 2008b, pp. 1–2). and dissolve minerals until they of the following five factors: (A) The Many sources have recognized that discharge at the toe of the fill as surface present or threatened destruction, Crystallaria species appear to be water (Pond et al. 2008, p. 718). Both of modification, or curtailment of its particularly susceptible to habitat these scenarios result in elevated habitat or range; (B) overutilization for alterations and changes in water quality. conductivity, sulfates, and hardness commercial, recreational, scientific, or Threats similar to those experienced in (increased pH) in the receiving stream. educational purposes; (C) disease or the Elk River watershed have likely Increased levels of these metals and predation; (D) the inadequacy of contributed to the extirpation of other dissolved solids have been shown existing regulatory mechanisms; and (E) Crystallaria within other watersheds to exclude other sensitive fish species other natural or manmade factors (Clay 1975, p. 315; Trautman 1981, pp. and darters from streams, including the affecting its continued existence. Listing 24–29, 646; Grandmaison 2003, pp. 16– federally threatened blackside dace actions may be warranted based on any 19). In addition, the current range of the (Chrosomus cumberlandensis) in the of the above threat factors, singly or in diamond darter is restricted and isolated upper Cumberland River Basin combination. Each of these factors is from other potential and historical (Mattingly et al. 2005, pp. 59–62). The discussed below. habitats by impoundments. Kentucky arrow darter ( Factor A. The Present or Threatened Coal Mining sagitta spilotum) was found to be excluded from mined watersheds when Destruction, Modification, or Coal mining occurs throughout the Curtailment of Its Habitat or Range conductivity exceeded 250 micro entire Elk River watershed. Most of the Siemens per cm (mS/cm) (Thomas 2008, As indicated by the continued active mining occurs in the half of the pp. 3–6; U.S. Fish and Wildlife Service persistence of the diamond darter, the watershed south of the Elk River (see (Service) 2009, pp. 1–4). Elk River in West Virginia currently Unit 1 Map below), which flows east to Mining-associated water quality provides overall high-quality aquatic west (Strager 2008, p. 17). The most impacts have been noted in the Elk habitat. The Elk River is one of the most recent summarized data, as of January River. For example, in the Jacks Run ecologically diverse rivers in the State 2008, indicates more than 5,260 watershed, a tributary to the Elk River, (Green 1999, p. 2) supporting over 100 hectares (ha) (13,000 acres [ac]) of one third of the entire watershed had species of fish and 30 species of actively mined areas including 91 been subject to mining-related land use mussels, including 5 federally listed surface mine permits, 79 underground changes that cleared previously existing mussel species (Welsh 2009a, p. 1). The mine permits, 1,351 ha (3,339 ac) of vegetation. In a sampling site river, including those portions that are valley fills, 582 km (362 mi) of haul downstream of mining, the WVDEP within the range of the diamond darter, roads, 385 km (239 mi) of mine drainage documented embedded substrates with is listed as a ‘‘high quality stream’’ by structures, 473 National Pollutant dark silt, most likely from manganese the West Virginia Division of Natural Discharge Elimination System (NPDES) precipitate or coal fines, and benthic Resources (WVDNR 2001, pp. 1, 2, 5). discharge points associated with mines, scores that indicated severe impairment Streams in this category are defined as and 3 mining related dams (Strager (WVDEP 1997, p. 60). Another Elk River having ‘‘significant or irreplaceable fish, 2008, pp. 19–21). There are also 615 ha tributary, Blue Creek, had low pH levels wildlife, and recreational resources’’ (1,519 ac) of abandoned mine lands and associated with contour mining and (WVDNR 2001, p. iii). In an evaluation 155 mine permit sites that have forfeited acid drainage and three sample sites had of the watershed, the West Virginia their bonds and have not adequately pH values of 4.2 or less (WVDEP 1997, Department of Environmental Protection remediated the sites (Strager 2008, p. p. 47; WVDEP 2008b, p. 6). At pH levels (WVDEP) noted that all four sampling 18). Approximately 47 percent of the of 5.0 or less, most fish eggs cannot sites within the mainstem of the Elk entire Elk River watershed is within the hatch (USEPA 2009, p. 2). River scored well for benthic area that the U.S. Environmental Sampling sites below a large mining macroinvertebrates on the West Virginia Protection Agency has identified as reclamation site in the Buffalo Creek

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drainage of the Elk River watershed had by mining activities such as Blue Creek, smothering of stream habitats, violations of the West Virginia water which occurs within the known range of discharges from abandoned mine sites quality criteria for acute aluminum and the diamond darter, and Buffalo Creek, often have elevated levels of metals and manganese water quality criteria, poor which is upstream of the known low pH (Stoertz et al. 2001, p. 1). In habitat quality, and substrates that were diamond darter locations. 2010, a fish kill occurred in Blue Creek, heavily embedded with coal fines and In addition to chronic sediment a tributary of the Elk River in Kanawha clay (WVDEP 1997, pp. 4, 56–57). Other releases and water quality effects from County, when a contractor working for sites in the watershed, where coal mine areas, the potential exists for WVDEP attempted to cleanup an topographic maps showed extensive failure of large-scale mine waste (coal abandoned mine site. When they surface mining, had pH readings of 4.7, slurry) impoundment structures breached an impoundment, the mine elevated aluminum levels, and benthic contained by dams constructed of earth, discharged highly acidic water that then communities that were dominated by mining refuse, and various other flowed into the stream. Approximately acid-tolerant species (WVDEP 1997, materials, which could release massive 14.5 km (9 mi) of Blue Creek was pp. 4, 56–57). quantities of mine wastes that could affected by the fish kill (McCoy 2010, A U.S. Geological Survey (USGS) cover the stream bottoms. There are p. 1). The effects of the fish kill were study of the Kanawha River Basin, currently two coal slurry impoundments stopped by response crews 9.5 km (5.9 which includes the Elk River, found that within the Elk River watershed. These mi) upstream from where Blue Creek streams draining basins that have been impoundments have a capacity of enters the Elk River within the known mined since 1980 showed increased 6,258,023 and 1,415,842 cubic meters range of the diamond darter. dissolved sulfate, decreased median (m3) (221,000,000 and 50,000,000 cubic bed-sediment particle size, and feet [cf]). The larger structure covers 19 Oil and Gas Development impaired benthic invertebrate ha (48 ac) and is considered a ‘‘class C’’ The Elk River watershed is also one communities when compared to streams dam which could result in the loss of of the more densely drilled areas of the not mined since 1980. Stream-bottom human life and serious damage to State, with over 5,800 oil or gas wells in sedimentation in mined basins was also homes, and industrial and commercial the watershed as of the most recent data greater than in undisturbed basins facilities in the event of failure (Strager in January 2011 (WVDEP 2011a, p. 1). (USGS 2000, p. 1). In streams that 2008, pp. 21–22). A third coal refuse The lower section of the Elk River, drained areas where large quantities of disposal impoundment is permitted and which currently contains the diamond coal had been mined, the benthic planned for construction with an darter, has the highest concentration of invertebrate community was impaired additional 54,821 m3 (1,936,000 cf) of both active and total wells in the in comparison to rural parts of the study capacity (Fala 2009, p. 1; WVDEP 2012, watershed, with over 2,320 active wells area where little or no coal had been p. 1). These three impoundments are on and 285 abandoned wells (WVDEP mined since 1980 (USGS 2000, p. 7). tributaries of the Elk River upstream of 2011a, p. 1). That report notes that benthic the reach of river known to support the Although limited data are available to invertebrates are good indicators of diamond darter. In October 2000, a coal quantify potential impacts, development overall stream water quality and that an slurry impoundment near Inez, of oil and gas resources can increase impaired invertebrate community Kentucky breached, releasing almost sedimentation rates in the stream and indicates that stream chemistry or 991,090 m3 (35,000,000 cf) of slurry into degrade habitat and water quality in a physical habitat, or both, are impaired, the Big Sandy Creek Watershed. ‘‘The manner similar to that described for coal causing a disruption in the aquatic food slurry left fish, turtles, snakes and other mining. Oil and gas wells can web (USGS 2000, p. 8). aquatic species smothered as the slurry specifically cause elevated chloride In another study that specifically covered the bottoms of the streams and levels through discharge of brine and evaluated fish data, the Index of Biotic rivers and extended out into the runoff from materials used at the site, Integrity (IBI) scores at sites downstream adjacent floodplain’’ (USEPA 2001a, p. and the erosion of roads associated with of valley fills were significantly reduced 2). Over 161 km (100 mi) of stream were these wells can contribute large by an average of 10 points when impacted by the spill (USEPA 2001a, p. amounts of sediment to the streams compared to unmined sites, indicating 2). If a similar dam failure were to occur (WVDEP 1997, p. 54). For example, that fish communities were degraded in the Elk River watershed, it could WVDEP sampling sites within Summers below mined areas (Fulk et al. 2003, have detrimental consequences for the Fork, a tributary to the Elk River with p. iv). In addition, that study noted a diamond darter population. a ‘‘high density of oil and gas wells,’’ significant correlation between the There is also a potential for had elevated chloride and conductivity number of fishes that were benthic abandoned underground mines to fill levels as well as impaired benthic invertivores and the amount of mining with water and ‘‘blow out’’ causing large invertebrate scores despite ‘‘good in the study watershed: the number of discharges of sediment and benthic substrate’’ (WVDEP 1997, p. 52). those types of fish species decreased contaminated water. Similar events Within the Buffalo Creek watershed, with increased mining (Fulk et al. 2003, have happened in nearby areas, another Elk River tributary, the pp. 41–44). As described above in the including one in Kanawha County, West impaired benthic invertebrate scores at Life History section, the diamond darter Virginia, in April 2009 that discharged sample sites were attributed to oil is a benthic invertivore. The effects ‘‘hundreds of thousands of gallons of compressor stations next to the creek, described above are often more water’’ onto a nearby highway, and pipes running along the bank parallel to pronounced in smaller watersheds that caused a ‘‘massive earth and rock slide’’ the stream, and associated evidence of do not have the capacity to buffer or (Marks 2009, p. 1). A second situation past stream channelization (WVDEP dilute degraded water quality (WVDEP occurred in March 2009 in Kentucky 1997, p. 55). 1997, p. 42; Fulk et al. 2003, pp. ii–iv). where water from the mine portal was High levels of siltation have been Because the mainstem Elk River drains discharged into a nearby creek at an noted in the impaired sections of the Elk a relatively large watershed, these types estimated rate of 37,854 liters (l) (10,000 River (USEPA 2001b, pp. 3–6). Oil and of adverse effects are more likely to be gallons [ga]) a minute (Associated Press gas access roads have been identified as noticed near the confluences of 2009, p. 1). In addition to the increased a source that contributes ‘‘high’’ levels tributaries that are most severely altered levels of sediment and potential of sediment to the Elk River (USEPA

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2001b, pp. 3–7). The WVDEP estimates the disturbed area, road usage, and elevated levels of iron and aluminum the size of the average access road construction. (USEPA 2001b, p. 1–1; Strager 2008, associated with an oil or gas well to be Shale gas wells typically employ a p. 36; WVDEP 2008a, p. 18; WVDEP 396 meters (m) (1,300 feet [ft]) long by technique called hydrofracking which 2008b, p. 1). The WVDEP has since 7.6 m (25 ft) wide or approximately .30 involves pumping a specially blended revised those water quality criteria in ha (0.75 ac) per well site (WVDEP liquid mix of water and chemicals down order to address bioavailability of those 2008b, p. 10). If each of the wells in the a well, into a geologic formation. The metals, and established maximum watershed has this level of disturbance, pumping occurs under high pressure, amounts of these pollutants allowed to there would be over 1,821 ha (4,500 ac) causing the formation to crack open and enter the waterbody (known as Total of access roads contributing to increased form passages through which gas can Maximum Daily Loads [TMDL]) sedimentation and erosion in the basin. flow into the well. During the drilling (WVDEP 2010, p. 26; WVDEP 2008a, Lack of road maintenance, improper process, each well may utilize between p. A–2). The WVDEP identified that construction, and subsequent use by the 7 and 15 million liters (2 and 4 million impairment due to metals usually timber industry and all-terrain vehicles ga) of water (Higginbotham et al. 2010, indicates excess sediment conditions can increase the amount of erosion p. 40). This water is typically (WVDEP 2008b, p. 5), and identified associated with these roads (WVDEP withdrawn from streams and coal mining, oil and gas development, 2008b, pp. 5–6). waterbodies in close proximity to the timber harvesting, all-terrain vehicle Shale gas development is an emerging location where the well is drilled. usage, and stream bank erosion as issue in the area. Although this is Excessive water withdrawals can reduce sources of increased sedimentation currently not the most productive area the quality and quantity of habitat within the Elk River watershed (USEPA of the State, the entire current range of available to fish within the streams, 2001b, pp. 1–1, 3–4 and 6; WVDEP the diamond darter is underlain by the increase water temperatures, reduce 2008b, p. 1). Within two subwatersheds Marcellus and Utica Shale formation dissolved oxygen concentrations, and that make up approximately 11 percent and potentially could be affected by increase the concentration of any of the total Elk River watershed area, the well drilling and development (National pollutants in the remaining waters WVDEP identified 433 km (269 miles) of Energy Technology Laboratory (NETL) (Freeman and Marcinek 2006, p. 445; unimproved dirt roads and 76 km (47 2010 pp. 6–10). The pace of drilling for PSU 2010, p. 9). Increasing water mi) of severely eroding stream banks Marcellus Shale gas wells is expected to withdrawals has been shown to be (WVDEP 2008b, p. 5). There was also an associated with a loss of native fish increase substantially in the future, estimated 1,328 ha (3,283 ac) of lands species that are dependent on flowing- growing to about 700 additional wells being actively timbered in those two water habitats. Darters were one group per year in West Virginia starting in watersheds in 2004 (WVDEP 2008b, p. of species that were noted to be 2012 (NETL 2010, p. 27). This is 6). Although data on timber harvesting particularly vulnerable to this threat consistent with what has been reported for the entire Elk River watershed are (Freeman and Marcinek 2006, p. 444). not available, it is likely that these types in the area around the Elk River. In In addition to water withdrawals, of activities are common because there March 2011, there were 15 Marcellus there is a potential for spills and are 11 known sawmills within the Shale gas wells reported within discharges from oil and gas wells, watershed, and forested land is the Kanawha County (West Virginia particularly Marcellus Shale drilling predominant land-use category in the Geological and Economic Survey operations. Pipelines and ponds being area (Strager 2008, pp. 13, 29). (WVGES) 2011, p. 1). As of January used to handle brine and wastewaters 2012, there were 188 completed from fracking operations can rupture, Siltation has long been recognized as Marcellus Shale gas wells within fail, or overflow and discharge into a pollutant that alters aquatic habitats Kanawha County and an additional 27 nearby streams and waterways. In by reducing light penetration, changing wells that had been permitted (WVGES Pennsylvania, accidental discharges of heat radiation, increasing turbidity, and 2012, p. 1). Data specific to the Elk River brine water from a well site have killed covering the stream bottom (Ellis 1936 watershed are not available for previous fish, invertebrates, and amphibians up in Grandmaison et al. 2003, p. 17). years, but there are currently at least 100 to 0.4 mi (0.64 km) downstream of the Increased siltation has also been shown completed and 21 additional permitted discharge, even though the company to abrade and suffocate bottom-dwelling Marcellus Shale gas wells within the immediately took measures to control organisms, reduce aquatic insect watershed (WVGES 2012, p 1). and respond to the spill (PADEP 2009, diversity and abundance, and, Marcellus Shale gas wells require the pp. 4–22). In 2011, the WVDEP cited a ultimately, negatively impact fish use of different techniques than company for a spill at a well site in growth, survival, and reproduction previously used for most gas well Elkview, West Virginia. Up to 50 barrels (Berkman and Rabeni 1987, p. 285). development in the area. When of oil leaked from a faulty line on the Siltation directly affects the availability compared to more traditional methods, oil well site. The spill entered a of food for the diamond darter by Marcellus Shale wells usually require tributary of Indian Creek, traveled into reducing the diversity and abundance of more land disturbance, and more water Indian Creek and then flowed into the aquatic invertebrates on which the and chemicals for operations. In Elk River (Charleston Gazette 2011, p. diamond darter feeds (Powell 1999, addition to the size and length of any 1). This spill occurred within the reach pp. 34–35), and by increasing turbidity, required access roads, between 0.8 and of the Elk River known to be occupied which reduces foraging efficiency 2.0 ha (2 and 5 ac) are generally by the diamond darter, and therefore (Berkman and Rabeni 1987, pp. 285– disturbed per well (Hazen and Sawyer could have affected the species and its 294). Research has found that when the 2009, p. 7). Each well also requires habitat. percentage of fine substrates increases about 500 to 800 truck trips to the site in a stream, the abundance of benthic (Hazen and Sawyer 2009, p. 7). Siltation (Sedimentation) insectivorous fishes decreases (Berkamn Construction of these wells in close Excess siltation has been specifically and Rabeni 1987, p. 285). Siltation also proximity to the Elk River and its noted as a threat to the Elk River system. affects the ability of diamond darters to tributaries could increase the amount of Portions of the lower Elk River were successfully breed by filling the small siltation in the area due to erosion from previously listed as impaired due to interstitial spaces between sand and

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gravel substrates with silt. Diamond discharge of poorly treated sewage into fecal coliform levels (WVDEP 2008a, darters lay their eggs within these streams and rivers (OEPA 2004 in p. 18; WVDEP 2010, p. 26). There have interstitial spaces. The complexity and Service 2008, p. 23). According to the been noticeable increases in fecal abundance of interstitial spaces is data available in 2008, there were a total coliform near population centers reduced dramatically with increasing of 30 sewage treatment plants within the adjacent to the Elk River, including the sediment inputs and the resulting Elk River watershed (Strager 2008, p. cities of Charleston, Elkview, increase in substrate embeddedness. 30). Frametown, Gassaway, Sutton, and Clay Consequently, the amount of suitable Untreated domestic sewage (straight (WVDEP 2008b, p. 8). Elk River breeding microhabitat for species such piping) and poorly operating septic tributaries near Clendenin also show as the diamond darter is reduced systems are still problems within the evidence of organic enrichment and (Bhowmik and Adams 1989, Kessler and Elk River watershed (WVDEP 1997, elevated levels of fecal coliform Thorp 1993, Waters 1995, and Osier and p. 54; WVDEP 2008b, p. 3). Untreated or (WVDEP 1997, p. 48). The WVDEP notes Welsh 2007 all in Service 2008, poorly treated sewage contributes a that failing or nonexistent septic pp. 15–16). variety of chemical contaminants to a systems are prevalent throughout the Many researchers have noted that stream including ammonia, pathogenic lower Elk River watershed (WVDEP Crystallaria species are particularly bacteria, nutrients (e.g., phosphorous 2008b, p. 1). In order to address water susceptible to the effects of siltation, and nitrogen), and organic matter that quality problems, the WVDEP and Grandmaison et al. (2003, pp. 17– can increase biochemical oxygen conducted a more detailed analysis of 18) summarize the information as demand (BOD) (Chu-Fa Tsai 1973, pp. two major tributary watersheds to the follows: ‘‘Bhowmik and Adams (1989) 282–292; Cooper 1993, p. 405). The lower Elk River. They found that all provide an example of how sediment BOD is a measure of the oxygen residences in these watersheds were deposition has altered aquatic habitat in consumed through aerobic respiration of ‘‘unsewered’’ (WVDEP 2008b, p. 7). The the Upper Mississippi River system, micro-organisms that break down Kanawha County Health Department where the construction of locks and organic matter in the sewage waste. Sanitarians estimate that the probable dams has resulted in siltation leading to Excessive BOD and nutrients in streams failure rate for these types of systems is a successional shift from open water to can lead to low dissolved oxygen (DO) between 25 and 30 percent, and habitats dominated by submergent and levels in interstitial areas of the monitoring suggests it may be as high as emergent vegetation. This successional substrate where a high level of 70 percent (WVDEP 2008b, p. 7). process is not likely to favor species decomposition and, consequently, In another study, it was noted that such as the crystal darter which rely on oxygen depletion takes place (Whitman straight pipe and grey water discharges extensive clean sand and gravel and Clark 1982, p. 653). Low interstitial are often found in residences within the raceways for population persistence DO has the potential to be particularly Elk River watershed because the extra (Page 1983). For example, the crystal detrimental to fish such as the diamond grey water would overburden septic darter was broadly distributed in darter which live on and under the systems. These untreated wastes are tributaries of the Ohio River until high bottom substrates of streams and lay discharged directly into streams. This silt loading and the subsequent eggs in interstitial areas (Whitman and grey water can contain many household smothering of sandy substrates occurred Clark 1982, p. 653). Adequate oxygen is cleaning and disinfectant products that (Trautman 1981). In the Upper an important aspect of egg development, can harm stream biota (WVDEP 1997, Mississippi River, the relative rarity of and reduced oxygen levels can lead to p. 54). Finally, there is the potential for crystal darters has been hypothesized as increased egg mortality, reduced inadvertent spills and discharges of a response to silt deposition over sand hatching success, and delayed hatching sewage waste. In 2010, a section of and gravel substrates (Hatch 1998)’’. (Keckeis et al. 1996, p. 436). stream bank along the Elk River near Although the Trautman (1981) citation Elevated nutrients in substrates can Clendenin failed and fell into the river, within the above quote mentions the also make these habitats unsuitable for damaging a sewerline when it fell. The crystal darter, we now know that he was fish spawning, breeding, or foraging and line then discharged raw sewage into referring to individuals that have since reduce aquatic insect diversity which the river (Marks 2010, p. 1). The been identified as diamond darters. In may impact availability of prey and diamond darter is known to occur in the summary, Crystallaria species, ultimately fish growth (Chu-Fa Tsai Elk River near Clendenin; therefore, this including both the diamond darter and 1973, pp. 282–292; Wynes and Wissing discharge could have likely affected the the crystal darter, are known to be 1981, pp. 259–267). Darters are noted to species. particularly susceptible to the effects of be ‘‘highly sensitive’’ to nutrient Impoundment sedimentation, and populations of these increases associated with sewage species have likely become extirpated or discharges, and studies have One of the reasons the diamond darter severely reduced in size as a result of demonstrated that the abundance and may have been able to persist in the Elk this threat. distribution of darter species decreases River is because the river remains downstream of these effluents (Katz and largely unimpounded. Although there is Water Quality/Sewage Treatment Gaufin 1953, p. 156; Wynes and Wissing one dam on the Elk River near Sutton, One common source of chemical 1981, p. 259). Elevated levels of fecal approximately 161 km (100 mi) of the water quality impairments is untreated coliform signal the presence of river downstream of the dam retains or poorly treated wastewater (sewage). improperly treated wastes (WVDEP natural, free-flowing riffle and pool Municipal wastewater treatment has 2008a, p. 7) that can cause the types of characteristics, including the portion improved dramatically since passage of spawning, breeding, and foraging that supports the diamond darter the 1972 amendments to the Federal problems discussed above. (Strager 2008, p. 5; Service 2008). All Water Control Act (which was The reach of the Elk River from the the other rivers with documented amended to become the Clean Water Act mouth to River Mile 102.5, which historical diamond darter occurrences in 1977), but some wastewater treatment includes the area supporting the are now either partially or completely plants, especially smaller plants, diamond darter, is currently on the impounded. There are 4 dams on the continue to experience maintenance and State’s CWA section 303(d) list of Green River, 8 dams on the Cumberland operation problems that lead to impaired waters due to violations of River, and 11 locks and dams on the

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Muskingum River. A series of 20 locks leading to increased sedimentation or fish physiology, survival, growth, and and dams have impounded the entire erosion. Placement of fill in the river reproductive success (Levesque and Ohio River for navigation. Construction could result in the overall reduction of Dube 2007, p. 399). Studies have found of most of these structures was habitat that could support the species, decreased abundance of fish completed between 1880 and 1950; and could alter flows and substrate downstream of crossings, as well as however, the most recent dam conditions, making the area less suitable signs of physiological stress such as constructed on the Cumberland River for the species (Welsh 2009d, p. 1). increased oxygen consumption and loss was completed in 1973 (Clay 1975, p. 3; In addition, the expansion of gas of equilibrium in remaining fish Trautman 1981, p. 25; Tennessee development in the basin will likely downstream of crossings (Reid and Historical Society 2002, p. 4; American lead to additional requests for new or Anderson 1999, pp. 244–245; Levesque Canal Society 2009, p. 1; Ohio Division upgraded gas transmission lines across and Dube 2007, pp. 399–401). Increased of Natural Resources 2009, p. 1). the river. Pipeline stream crossings can sediment deposition and substrate These impoundments have affect fish habitat; food availability; and compaction from pipeline crossing permanently altered habitat suitability fish behavior, health, reproduction, and construction can degrade spawning in the affected reaches and fragmented survival. The most immediate effect of habitat, result in the production of fewer stream habitats, blocking fish instream construction is the creation of and smaller fish eggs, impair egg and immigration and emigration between short-term pulses of highly turbid water larvae development, limit food the river systems, and preventing and total suspended solids (TSS) availability for young-of-the-year fish, recolonization (Grandmaison et al. downstream of construction (Levesque and increase stress and reduce disease 2003, p. 18). Trautman (1981, p. 25) and Dube 2007, pp. 399–400). Although resistance of fish (Reid and Anderson notes that the impoundment of the these pulses are usually of relatively 1999, pp. 244–245; Levesque and Dube Muskingum and Ohio Rivers for short duration and there is typically a 2007, pp. 401–402). navigation purposes almost entirely rapid return to background conditions The duration and severity of these eliminated riffle habitat in these rivers, after activities cease, instream effects depends on factors such as the increased the amount of silt settling on construction has been shown to have duration of disturbance, the length of the bottom which covered former sand considerable effects on stream substrates stream segment directly impacted by and gravel substrates, and affected the and benthic invertebrate communities construction, and whether there are ability of the diamond darter to survive that persist after construction has been repeated disturbances (Yount and Niemi in these systems. In addition, almost the completed (Levesque and Dube 2007, 1990, p. 557). Most studies documented entire length of the Kanawha River, p. 396–397). Commonly documented recovery of the affected stream reach including the 53 km (33 mi) upstream effects include substrate compaction, as within 1 to 3 years after construction of the confluence with the Elk River and well as silt deposition within the direct (Yount and Niemi 1990, pp. 557–558, an additional 93 km (58 mi) impact area and downstream that fills 562; Reid and Anderson 1999, p. 247). downstream to Kanawha’s confluence interstitial spaces and reduces water However, caution should be used when with the Ohio River, has been flow through the substrate, increasing interpreting results of short-term impounded for navigation (U.S. Army substrate embeddedness and reducing studies. Yount and Niemi (1990, p. 558) Corps of Engineers (ACOE) 1994, pp. 1, habitat quality (Reid and Anderson cite an example of one study that made 13, 19). The series of dams and 1999, p. 243; Levesque and Dube 2007, a preliminary determination of stream impoundments on this system likely pp. 396–397; Penkal and Phillips 2011, recovery within 1 year, but when the impede movement between the only pp. 6–7). Construction also directly site was reexamined 6 years later, fish remaining population of the diamond alters stream channels, beds, and banks biomass, fish populations, darter in the Elk River and the larger resulting in changes in cover, channel macroinvertebrate densities, and species Ohio River watershed, including the morphology, and sediment transport composition were still changing. It was other known river systems with dynamics. Stream bank alterations can suspected that shifts in sediment and historical populations. Range lead to increased water velocities, nutrient inputs to the site as a result of fragmentation and isolation (see Factor stream degradation, and stream channel construction in and around the stream E below) is noted to be a significant migrations. Removal of vegetation from contributed to the long-term lack of threat to the persistence of the diamond the banks can change temperature recovery. In another study, alterations in darter (Warren et al. 2000 in regimes, and increase sediment and channel morphology, such as increased Grandmaison et al. 2003, p. 18). nutrient loads (Penkal and Phillips channel width and reduced water 2011, pp. 6–7). depth, were evident 2 to 4 years post- Direct Habitat Disturbance These instream changes not only construction at sites that lacked an There is the potential for direct directly affect the suitability of fish intact forest canopy (Reid and Anderson disturbance, alteration, and fill of habitat, they also affect the availability 1999, p. 243). diamond darter habitat in the Elk River. and quality of fish forage by altering the There is also the potential for Since 2009, there have been at least composition and reducing the density of cumulative effects. While a single three proposed projects that had the benthic invertebrate communities crossing may have only short-term or potential to directly disturb habitat in within and downstream of the minor effects, multiple crossings or the Elk River in reaches that are known construction area (Reid and Anderson multiple sources of disturbance and to support the species. Plans for these 1999, pp. 235, 244; Levesque and Dube sedimentation in a watershed can have projects have not yet been finalized. 2007, pp. 396–399; Penkal and Phillips cumulative effects on fish survival and Project types have included bridges and 2011, pp. 6–7). Various studies have reproduction that exceed the recovery waterline crossings. Direct disturbances documented adverse effects to the capacity of the river, resulting in to the habitat containing the diamond benthic community that have been permanent detrimental effects (Levesque darter could kill or injure adult apparent for between 6 months and 4 and Dube 2007, pp. 406–407). Whether individuals, young, or eggs. Waterline years post-construction (Reid and or how quickly a stream population construction that involves direct Anderson 1999, pp. 235, 244; Levesque recovers depends on factors such as the trenching through the diamond darter’s and Dube 2007, pp. 399–400). Stream life-history characteristics of the habitat could destabilize the substrates, crossings have also been shown to affect species, and the availability of

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unaffected populations upstream and analyses required to determine the known, it may become attractive to downstream as a source of organisms for taxonomic and of collectors. However, there is no recolonization (Yount and Niemi 1990, the species. The extent and scope of information available to suggest that this p. 547). Species such as the diamond these studies were determined and is currently a threat. There are no darter that are particularly susceptible reviewed by a variety of entities known recreational or educational uses to the effects of sedimentation and including the WVDNR, the Service, for the species. substrate embeddedness, and that have USGS, university scientists, and As a result, we find that limited distribution and population professional ichthyologists (Tolin 1995, overutilization for commercial, numbers, are likely to be more severely p. 1; Wood and Raley 2000, pp. 20–26; recreational, scientific, or educational affected by instream disturbances than Lemarie 2004, pp. 1–57; Welsh and purposes is not an imminent threat to other more common and resilient Wood 2008, pp. 62–68). the diamond darter at this time. For a species. In addition, when these collections species with a limited range and were initiated, insufficient data were population size, there is the potential Summary of Factor A available to establish the overall that overutilization for scientific In summary, there are significant imperiled and unique status of the purposes could have an effect on the threats to the diamond darter from the species. Because these studies are now viability of the species. However, there present and threatened destruction, complete, there should be limited need is limited need for additional research modification, or curtailment of its to sacrifice additional individuals for that would require the sacrifice of habitat. Threats include discharges from scientific analysis. The captive breeding individuals. Based on our review of the activities such as coal mining and oil program was established after a review best available scientific and commercial and gas development, sedimentation of the conservation status of the species information, overutilization is not from a variety of sources, pollutants identified that there were imminent currently or likely to become a originating from inadequate wastewater threats to the last remaining population, significant threat to the species in the treatment, habitat changes caused by and species experts identified the need future. impoundments, and direct habitat to establish a captive ‘‘ark’’ population Factor C. Disease or Predation disturbance. These threats are ongoing, in order to avert extinction in the event severe, and occur throughout the of a spill or continued chronic threats to There is no specific information species’ entire range. We have no the species. The establishment of this available to suggest that disease or information indicating that these threats program should contribute to the overall predation present an unusual threat to are likely to be appreciably reduced in conservation of the species and may diamond darters. Although some natural the future, and in the case of gas lead to the eventual augmentation of predation by fish and wildlife may development, we expect this threat to populations. However, caution must occur, darters usually constitute only an increase over the next several years as still be used to ensure that any almost incidental component in the diet shale gas development continues to additional collections do not affect the of predators (Page 1983, p. 172). This intensify. status of wild populations. incidental predation is not considered It is possible that future surveys to currently pose a significant threat to Factor B. Overutilization for conducted within the range of the the species. Commercial, Recreational, Scientific, or species could inadvertently result in Commonly reported parasites and Educational Purposes mortality of additional individuals. For diseases of darters, in general, include Due to the small size and limited example, during some types of black-spot disease, flukes, nematodes, distribution of the only remaining inventory work, fish captured are leeches, spiny-headed worms, and population, the diamond darter is preserved in the field and brought back copepods (Page 1983, p. 173). None of potentially vulnerable to overutilization. to the lab for identification. Young-of- the best available information regarding Particular care must be used to ensure the-year diamond darters are not easily diamond darters captured to date, or that collection for scientific purposes distinguished from other species, and reports on the related crystal darter, does not become a long-term or their presence within these samples note any incidences of these types of substantial threat. It is possible that may not be realized until after the issues. As a result, we find that disease previous scientific studies may have samples are processed. This was the or predation does not currently pose a impacted the population. Of the fewer case during studies recently conducted threat to the species, and we found no than 50 individuals captured to date, 14 by a local university (Cincotta 2009a, p. available information that indicates either died as a result of the capture or 1). Future surveys should be designed disease or predation is currently or were sacrificed for use in scientific with protocols in place to minimize the likely to become a threat to the diamond studies. Nineteen were removed from risk that diamond darters will be darter in the future. the system and were used for the inadvertently taken during nontarget establishment of a captive breeding studies. The WVDNR currently issues Factor D. The Inadequacy of Existing program. Two have died in captivity. It collecting permits for all surveys and Regulatory Mechanisms should be noted that there were valid scientific collections conducted within There are few existing Federal or State scientific purposes for most of these the State and incorporates appropriate regulatory mechanisms that specifically collections. In order to verify the conditions into any permits issued for protect the diamond darter or its aquatic identification and permanently studies that will occur within the habitat where it currently occurs. The document the first record of the species potential range of the species. This diamond darter and its habitats are in West Virginia, the specimen captured limits the overall potential for afforded some protection from water in 1980 was preserved as a voucher overutilization for scientific purposes. quality and habitat degradation under specimen consistent with general Although the species has no present the Clean Water Act of 1977 (33 U.S.C. scientific protocols of the time. commercial value, it is possible that live 1251 et seq.), Surface Mining Control Subsequent surveys in the 1990s were specimens may be collected for the and Reclamation Act of 1977 (30 U.S.C. conducted for the specific purpose of aquarium trade (Walsh et al. 2003 in 1234–1328), West Virginia Logging and collecting additional specimens to be Grandmaison et al. 2003 p. 19), and that Sediment Control Act (WVSC § 19–1B), used in the genetic and morphological once its rarity becomes more widely and additional West Virginia laws and

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regulations regarding natural resources Nonpoint-source pollution, to fish and wildlife resources. They also and environmental protection (WVSC originating from many sources at do not contain or provide any formal § 20–2–50; § 22–6A; § 22–26–3). different locations, is considered to be a mechanism requiring coordination with, However, as demonstrated under Factor continuing threat to diamond darter or input from, the Service or the A, degradation of habitat for this species habitats. Current laws do not adequately WVDNR regarding the presence of is ongoing despite the protection protect diamond darter and its habitats federally threatened, endangered, or afforded by these laws and from nonpoint-source pollution, candidate species, or other rare and corresponding regulations. While these because there is limited compliance sensitive species. Thus, although the laws have resulted in some with existing laws to prevent sediment State Code is designed to protect fresh improvements in water quality and entering waterways. For example, water resources and the environment, stream habitat for aquatic life, including forestry operations do not have compliance with this existing oil and the diamond darter, they alone have not permitting requirements under the gas development regulatory mechanism been adequate to fully protect this Clean Water Act because there is a is insufficient to protect the diamond species. Water quality degradation, silvicultural exemption as long as best darter or its habitat. management practices (BMPs) are used sedimentation, nonpoint-source West Virginia State Code § 20–2–50 pollutants, and habitat alteration to help control nonpoint-source prohibits taking fish species for continue to threaten the species. pollution (Ryder and Edwards 2006, p. 272). The West Virginia Logging scientific purposes without a permit. Although water quality has generally The WVDNR currently issues collecting improved since 1977 when the Clean Sediment Control Act was developed to protect aquatic resources, such as the permits for surveys conducted within Water Act (33 U.S.C. 1251 et seq.) and the State and incorporates appropriate Surface Mining Control and diamond darter’s habitat, in response to the requirements of the Clean Water Act conditions into any permits issued for Reclamation Act (30 U.S.C. 1234–1328) studies that will occur within the were enacted or amended in 1977, there and mandates the use of BMPS in order to reduce the amount of sediment from potential range of the species. While is continuing, ongoing degradation of this should limit the number of water quality within the range of the logging operations that enters nearby waterways (West Virginia Division of individuals impacted by survey and diamond darter. A total of 214 streams Forestry (WVDOF) undated, p. 1). research efforts, this requirement does within the Elk River watershed have Without properly installed BMPs, not provide any protection to the been identified as impaired by the logging operations can increase species’ habitat. WVDEP and placed on the State’s 303(d) sediment loading into streams (WVDEP list (WVDEP 2011b, p. viii). Causes of The diamond darter is indirectly 2011b, p. 35). provided some protection from Federal impairment that were identified include A survey of randomly selected logging existing mining operations, abandoned actions and activities through the operations throughout West Virginia Federal Endangered Species Act mine lands, fecal coliform from sewage estimated that overall compliance with discharges, roads, oil and gas because the Elk River also supports five these BMPs averaged 74 percent, and federally endangered mussel species. operations, timbering, land use compliance with specific categories of disturbance (urban, residential, or The reach of the Elk River currently BMPs varied from 81 percent known to support the diamond darter agriculture), and stream bank erosion compliance with BMPs related to (WVDEP 2011b, pp. viii–ix). For water also supports the pink mucket construction of haul roads, to only 55 (Lampsilis abrupta), the northern bodies on the 303(d) list, States are percent compliance with BMPs related required under the Clean Water Act to riffleshell (Epioblasma torulosa to the establishment and protection of rangiana), the rayed bean (Villosa establish a TMDL for the pollutants of streamside management zones (Wang et concern that will improve water quality fabalis), and the snuffbox (Epioblasma al. 2007, p. 60). Another study triquetra). The clubshell mussel to meet the applicable standards. The evaluating the effects of forestry haul WVDEP has established TMDLs for total (Pleurobema clava) occurs in the reach roads documented that watershed of the Elk River upstream of the iron, dissolved aluminum, total turbidities increased significantly selenium, pH, and fecal coliform diamond darter. However, protective following road construction and that silt measures for listed freshwater mussels bacteria. The total iron TMDL is used as fences installed to control erosion a surrogate to address impacts have generally involved surveys for became ineffectual near stream mussel species presence and associated with excess sediments crossings and allowed substantial (WVDEP 2011b, p. 47). Because these minimization of direct habitat amounts of sediment to reach the disturbance in areas with confirmed TMDLs have just recently been channel (Wang et al. 2010, p. 1). presence. The diamond darter is more established, it is not known how Because the BMPs are not always mobile and therefore is likely to be effective they will be at reducing the strictly applied and logging activities present within a less restricted area than levels of these pollutants, or how long can still be a significant nonpoint- most mussel species. Surveys for streams within the Elk River watershed source of water quality impairment, the mussels will not detect diamond will remain impaired. In addition, West Virginia Logging Sediment Control darters. As a result, these measures TMDLs apply primarily to point-source Act is currently considered an provide some limited protection for the discharge permits, and since nonpoint inadequate regulatory mechanism for diamond darter, but only in specific sources may also contribute to sediment the protection of aquatic habitats that locations where it co-occurs with these loading in the watershed, TMDLs are support the diamond darter. not, at this time, an adequate West Virginia State laws regarding oil mussel species. mechanism to address sedimentation. and gas drilling, including recently In summary, degradation of habitat for The Service is also not aware of any enacted changes to West Virginia State the diamond darter is ongoing despite other current or future changes to State Code § 22–6A, are generally designed to existing regulatory mechanisms. These or Federal water quality or mining laws protect fresh water resources like the regulatory measures have been that will substantially affect the diamond darter’s habitat, but the laws insufficient to significantly reduce or currently observed degradation of water do not contain specific provisions remove the threats to the diamond quality. requiring an analysis of project impacts darter.

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Factor E. Other Natural or Manmade which is over 120 km (74.5 mi) level of isolation and restricted range Factors Affecting Its Continued upstream from known diamond darter seen in this species makes natural Existence locations (WVDNR 2008, p. 1). Anglers repopulation of historical habitats or have also reported seeing heavy algal other new areas following previous Didymosphenia geminate mats, assumed to be didymo, in the localized extirpations virtually The presence of Didymosphenia upstream reach of the river (WVDNR impossible without human intervention. geminate, an alga known as ‘‘didymo’’ 2008, p. 1). Therefore, there is potential Climate change has the potential to or ‘‘rock snot’’ has the potential to that the species could spread increase the vulnerability of the adversely affect diamond darter downstream to within the current range diamond darter to random catastrophic populations in the Elk River. This alga, of the diamond darter in the future. If events and to compound the effects of historically reported to occur in cold, it does spread into the diamond darter restricted genetic variation and northern portions of North America habitat, it could degrade habitat quality isolation. Current climate change (e.g., British Columbia), has been and pose a significant threat to the predictions for the central Appalachians steadily expanding its range within the species. indicate that aquatic habitats will be last 10 to 20 years, and has now been subject to increased temperatures and reported to occur in watersheds as far Geographic Isolation, Loss of Genetic increased drought stress, especially east and south as Arkansas and North Variation, and Climate Change during the summer and early fall (Buzby Carolina (Spaulding and Elwell 2007, The one existing diamond darter and Perry 2000, p. 1774; Byers and pp. 8–21). The species has also begun population is small in size and range, Norris 2011, p. 20). There will likely be occurring in large nuisance blooms that and it is geographically isolated from an increase in the variability of stream can dominate stream surfaces by other areas that previously supported flow, and the frequency of extreme covering 100 percent of the substrate the species. The diamond darter’s events such as drought, severe storms, with mats up to 20 cm (8 in) thick, distribution is restricted to a short and flooding is likely to increase extending over 1 km (0.6 mi) and stream reach, and its small population statewide (Buzby and Perry 2000, p. persisting for several months (Spaulding size makes it extremely susceptible to 1774; Byers and Norris 2011, p. 20). and Elwell 2007, pp. 3, 6). Didymo can extirpation from a single catastrophic While the currently available greatly alter the physical and biological event (such as a toxic chemical spill or information on the effects of climate conditions of streams in which it occurs storm event that destroys its habitat). change is not precise enough to predict and cause changes to algal, invertebrate, Therefore, reducing the potential ability the extent to which climate change will and fish species diversity and to recover from the cumulative effects of degrade diamond darter habitat, species population sizes; stream foodweb smaller chronic impacts to the with limited ranges that are faced with structure; and stream hydraulics population and habitat such as either natural or anthropomorphic (Spaulding and Elwell 2007, pp. 3, 12). progressive degradation from runoff barriers to movement, such as the dams Didymo is predicted to have particularly (nonpoint source pollutants), and direct that fragmented and isolated the detrimental effects on fish, such as the disturbances. historical diamond darter habitat, have diamond darter, that inhabit stream Species that are restricted in range been found to be especially vulnerable bottom habitats or consume bottom- and population size are more likely to to the effects of climate change (Byers dwelling prey (Spaulding and Elwell suffer loss of genetic diversity due to and Norris 2011, p. 18). Thus, the small 2007, p. 15). genetic drift, potentially increasing their population size and distribution of the While didymo was previously thought susceptibility to inbreeding depression, diamond darter makes the species to be restricted to cold water streams, it and reducing the fitness of individuals particularly susceptible to risks from is now known to occur in a wider range (Soule 1980, pp. 157–158; Hunter 2002, catastrophic events, loss of genetic of temperatures, and it has been pp. 97–101; Allendorf and Luikart 2007, variation, and climate change. documented in waters that were up as pp. 117–146). Similarly, the random high as 27 °C (80 °F) (Spaulding and loss of adaptive genes through genetic Summary of Factor E Elwell 2007, pp. 8, 10, 16). It can also drift may limit the ability of diamond In summary, because the diamond occur in a wide range of hydraulic darters to respond to changes in their darter has a limited geographic range conditions including slow-moving, environment such as climate change, or and small population size, it is subject shallow areas, and areas with high the catastrophic events and chronic to several other ongoing, natural and depths and velocities (Spaulding and impacts described above (Noss and manmade threats. These threats include Elwell 2007, pp. 16–17). Didymo can be Cooperrider 1994, p. 61). Small the spread of Didymosphenia geminate; spread large distances either through the population sizes and inhibited gene loss of genetic fitness; and susceptibility water column or when items such as flow between populations may increase to spills, catastrophic events, and fishing equipment, boots, neoprene the likelihood of local extirpation impacts from climate change. These waders, and boats are moved between (Gilpin and Soule´ 1986, pp. 32–34). The threats to the diamond darter are current affected and unaffected sites (Spaulding long-term viability of a species is and are expected to continue rangewide and Elwell 2007, pp. 19–20). For founded on the conservation of into the future. The severity of these example, in New Zealand, didymo numerous local populations throughout threats is high because of the reduced spread to two sites over 100 km (62.1 its geographic range (Harris 1984, pp. range and population size which result mi) and 450 km (279.6 mi) away from 93–104). These separate populations are in a reduced ability to adapt to the location of the first documented essential for the species to recover and environmental change. Further, our bloom within 1 year (Kilroy and Unwin adapt to environmental change (Harris review of the best available scientific 2011, p. 254). 1984, pp. 93–104; Noss and Cooperrider and commercial information indicates Although it has not been documented 1994, pp. 264–297). The current that these threats are likely to continue to occur in the lower Elk River where population of the diamond darter is or increase in the future. the diamond darter occurs, in 2008 the restricted to one section of one stream. WVDNR documented the presence of This population is isolated from other Proposed Determination didymo in the upper Elk River, above suitable and historical habitats by dams We have carefully assessed the best Sutton Dam near Webster Springs, that are barriers to fish movement. The scientific and commercial information

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available regarding the past, present, to one small, isolated population in an point where they are secure, self- and future threats to the diamond aquatic environment that is currently sustaining, and functioning components darter. The primary threats to the facing numerous, severe, and ongoing of their ecosystems. diamond darter are related to the water quality threats which are likely to Recovery planning includes the present or threatened destruction, increase over time, we find that the development of a recovery outline modification, or curtailment of its diamond darter does not meet the shortly after a species is listed, and habitat or range (Factor A). The species definition of a threatened species. preparation of a draft and final recovery is currently known to exist only in the Therefore, on the basis of the best plan. The recovery outline guides the lower Elk River, West Virginia. This available scientific and commercial immediate implementation of urgent portion of the watershed is currently information, we propose listing the recovery actions and describes the impacted by ongoing water quality diamond darter as endangered in process to be used to develop a recovery degradation and habitat loss from accordance with sections 3(6) and plan. Revisions of the plan may be done activities associated with coal mining 4(a)(1) of the Act. to address continuing or new threats to and oil and gas development, siltation Under the Act and our implementing the species, as new substantive from these and other sources, regulations, a species may warrant information becomes available. The inadequate sewage and wastewater listing if it is threatened or endangered recovery plan identifies site-specific treatment, and direct habitat loss and throughout all or a significant portion of management actions that will achieve alteration. The impoundment of rivers its range. The diamond darter proposed recovery of the species, measurable in the Ohio River Basin, such as the for listing in this rule is highly restricted criteria that set a trigger for review of Kanawha, Ohio, and Cumberland in its range and the threats to the the five factors that control whether a Rivers, has eliminated much of the survival of the species are not restricted species remains endangered or may be species’ habitat and isolated the existing to any particular significant portion of downlisted or delisted, and methods for population from other watersheds that that range. Therefore, we assessed the monitoring recovery progress. Recovery the species historically occupied. status of the species throughout its plans also establish a framework for The species could potentially be entire range. Accordingly, our agencies to coordinate their recovery vulnerable to overutilization for assessment and proposed determination efforts and provide estimates of the cost scientific purposes (Factor B), but the apply to the species throughout its of implementing recovery tasks. significance of this threat is adequately entire range. Recovery teams (comprising species regulated through the State’s experts, Federal and State agencies, Available Conservation Measures administration of scientific collecting nongovernmental organizations, and permits. There are no known threats to Conservation measures provided to stakeholders) are often established to the diamond darter from disease or species listed as endangered or develop recovery plans. When predation (Factor C). Existing Federal threatened under the Act include completed, the recovery outline, draft and State regulatory mechanisms such recognition, recovery actions, recovery plan, and the final recovery as the Clean Water Act, Surface Mining requirements for Federal protection, and plan will be available on our Web site Control and Reclamation Act, and the prohibitions against certain practices. (http://www.fws.gov/endangered), or West Virginia Sediment Logging Control Recognition of the species through its from our West Virginia Field Office (see Act do not provide adequate protections listing results in public awareness and FOR FURTHER INFORMATION CONTACT). for the diamond darter or its aquatic conservation by Federal, State, Tribal, Implementation of recovery actions habitat (Factor D). The small size and and local agencies, private generally requires the participation of a restricted range of the remaining organizations, and individuals. The Act broad range of partners, including other diamond darter population makes it encourages cooperation with the States Federal agencies, states, tribes, particularly susceptible to the spread of and requires that recovery actions be nongovernmental organizations, didymo and effects of genetic carried out for all listed species. The businesses, and private landowners. inbreeding, and extirpation from spills protection measures required of Federal Examples of recovery actions include and other catastrophic events (Factor E). agencies and the prohibitions against habitat restoration (e.g., restoration of In addition to the individual threats certain activities are discussed in Effects native vegetation), research, captive discussed under Factors A and E, each of Critical Habitat Designation and are propagation and reintroduction, and of which is sufficient to warrant the further discussed, in part, below. outreach and education. The recovery of species’ listing, the cumulative effect of The primary purpose of the Act is the many listed species cannot be Factors A, D, and E is such that the conservation of endangered and accomplished solely on Federal lands magnitude and imminence of threats to threatened species and the ecosystems because their range may occur primarily the diamond darter are significant upon which they depend. The ultimate or solely on non-Federal lands. To throughout its entire current range. goal of such conservation efforts is the achieve recovery of these species The Act defines an endangered recovery of these listed species, such requires cooperative conservation efforts species as any species that is ‘‘in danger that they no longer need the protective on private, State, and Tribal lands. of extinction throughout all or a measures of the Act. Subsection 4(f) of If this species is listed, funding for significant portion of its range’’ and a the Act requires the Service to develop recovery actions will be available from threatened species as any species ‘‘that and implement recovery plans for the a variety of sources, including Federal is likely to become endangered conservation of endangered and budgets, state programs, and cost share throughout all or a significant portion of threatened species, unless we find that grants for non-Federal landowners, the its range within the foreseeable future.’’ such a plan will not promote the academic community, and We find that the diamond darter, which conservation of the species. The nongovernmental organizations. In consists of only one population recovery planning process involves the addition, pursuant to section 6 of the (occurrence), is presently in danger of identification of actions that are Act, the States of West Virginia, extinction throughout its entire range, necessary to halt or reverse the species’ Kentucky, Tennessee, and Ohio would due to the immediacy, severity, and decline by addressing the threats to its be eligible for Federal funds to scope of the threats described above. survival and recovery. The goal of this implement management actions that Because the species is currently limited process is to restore listed species to a promote the protection or recovery of

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the diamond darter. Information on our trap, capture, or collect; or to attempt individuals, or otherwise impairs grant programs that are available to aid any of these), import, export, ship in essential life-sustaining behaviors such species recovery can be found at: interstate commerce in the course of as breeding, feeding, or finding shelter. http://www.fws.gov/grants. commercial activity, or sell or offer for Other activities not identified above Although the diamond darter is only sale in interstate or foreign commerce will be reviewed on a case-by-case basis proposed for listing under the Act at any listed species. Under the Lacey Act to determine if a violation of section 9 this time, please inform us of your (18 U.S.C. 42–43; 16 U.S.C. 3371–3378), of the Act may be likely to result from interest in participating in recovery it is also illegal to possess, sell, deliver, such activity should we list the efforts for this species. Additionally, we carry, transport, or ship any such diamond darter as endangered. invite you to submit any new wildlife that has been taken illegally. Compliance with a State permit, or lack information on this species whenever it Certain exceptions apply to agents of the of need for a State permit, does not becomes available and any information Service and state conservation agencies. necessarily provide coverage against you may have for recovery planning We may issue permits to carry out violations of section 9 of the Act, purposes (see FOR FURTHER INFORMATION otherwise prohibited activities particularly if the State review has not CONTACT). involving endangered and threatened yet included protections to ensure that Section 7(a) of the Act requires wildlife species under certain adverse effects to federally listed species Federal agencies to evaluate their circumstances. Regulations governing are avoided. The Service does not actions with respect to any species that permits are codified at 50 CFR 17.22 for consider the description of future and is proposed or listed as endangered or endangered species, and at 17.32 for ongoing activities provided above to be threatened and with respect to its threatened species. With regard to exhaustive; we provide them simply as critical habitat, if any is designated. endangered wildlife, a permit must be information to the public. Regulations implementing this issued for the following purposes: for Questions regarding whether specific interagency cooperation provision of the scientific purposes, to enhance the activities would constitute a violation of Act are codified at 50 CFR part 402. propagation or survival of the species, section 9 of the Act should be directed Section 7(a)(4) of the Act requires and for incidental take in connection to the West Virginia Field Office (see Federal agencies to confer with the with otherwise lawful activities. FOR FURTHER INFORMATION CONTACT). Service on any action that is likely to It is our policy, as published in the Requests for copies of the regulations jeopardize the continued existence of a Federal Register on July 1, 1994 (59 FR concerning listed and general species proposed for listing or result in 34272), to identify to the maximum inquiries regarding prohibitions and destruction or adverse modification of extent practicable at the time a species permits may be addressed to the U.S. proposed critical habitat. If a species is is listed, those activities that would or Fish and Wildlife Service, Endangered listed, section 7(a)(2) of the Act requires would not constitute a violation of Species Permits, 300 Westgate Center Federal agencies to ensure that activities section 9 of the Act. The intent of this Drive, Hadley, MA 01035–9589 (Phone they authorize, fund, or carry out are not policy is to increase public awareness of 413–253–8200; Fax 413–253–8482) or the effect of a proposed listing on likely to jeopardize the continued information can be viewed at our permit existence of the species or destroy or proposed and ongoing activities within Web site at http://www.fws.gov/ adversely modify its critical habitat. If a the range of species proposed for listing. endangered/permits/how-to-apply.html. Federal action may affect a listed The following activities could species or its critical habitat, the potentially result in a violation of Critical Habitat Designation for responsible Federal agency must enter section 9 of the Act; this list is not Diamond Darter into formal consultation with the comprehensive: Background Service. (1) Unauthorized collecting, handling, Federal agency actions within the possessing, selling, delivering, carrying, It is our intent to discuss below only species’ habitat that may require or transporting of the species, including those topics directly relevant to the conference or consultation or both as import or export across State lines and designation of critical habitat for the described in the preceding paragraph international boundaries, except for diamond darter in this section of the include the issuance of section 404 properly documented antique proposed rule. Clean Water Act permits by the Army specimens at least 100 years old, as Critical habitat is defined in section 3 Corps of Engineers; construction and defined by section 10(h)(1) of the Act. of the Act as: management of gas pipeline and power (2) Violation of any permit that results (1) The specific areas within the line rights-of-way or hydropower in harm or death to any individuals of geographical area occupied by the facilities by the Federal Energy this species or that results in species, at the time it is listed in Regulatory Commission; construction degradation of its habitat to an extent accordance with the Act, on which are and maintenance of roads, highways, that essential behaviors such as found those physical or biological and bridges by the Federal Highway breeding, feeding and sheltering are features; Administration; pesticide regulation by impaired. (a) Essential to the conservation of the the U.S. Environmental Protection (3) Unlawful destruction or alteration species; Agency; and issuance of coal mining of diamond darter habitats (e.g., (b) Which may require special permits by the Office of Surface Mining. unpermitted instream dredging, management considerations or The Act and its implementing impoundment, water diversion or protection; and regulations set forth a series of general withdrawal, channelization, discharge (2) Specific areas outside the prohibitions and exceptions that apply of fill material) that impairs essential geographical area occupied by the to all endangered wildlife. The behaviors such as breeding, feeding, or species at the time it is listed, upon a prohibitions of section 9(a)(2) of the Act, sheltering, or results in killing or determination that such areas are codified at 50 CFR 17.21 for endangered injuring a diamond darter. essential for the conservation of the wildlife, in part, make it illegal for any (4) Unauthorized discharges or species. person subject to the jurisdiction of the dumping of toxic chemicals or other Conservation, as defined under United States to take (includes harass, pollutants into waters supporting the section 3 of the Act, means to use and harm, pursue, hunt, shoot, wound, kill, diamond darter that kills or injures the use of all methods and procedures

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that are necessary to bring an such as roost sites, nesting grounds, interaction of additional stressors endangered or threatened species to the seasonal wetlands, water quality, tide, associated with climate change and point at which the measures provided soil type) that are essential to the current stressors may push species pursuant to the Act are no longer conservation of the species. Primary beyond their ability to survive (Lovejoy necessary. Such methods and constituent elements are those specific 2005, pp. 325–326). The synergistic procedures include, but are not limited elements of physical or biological implications of climate change and to, all activities associated with features that provide for a species’ life- are the most scientific resources management such as history processes, and are essential to threatening facet of climate change for research, census, law enforcement, the conservation of the species. biodiversity (Hannah and Lovejoy 2003, habitat acquisition and maintenance, Under the second prong of the Act’s p. 4). In particular, we recognize that propagation, live trapping, and definition of critical habitat, we can climate change may cause changes in transplantation, and in the designate critical habitat in areas the arrangement of occupied habitat and extraordinary case where population outside the geographical area occupied stream reaches. Current climate change pressures within a given ecosystem by the species at the time it is listed, predictions for the central Appalachians cannot be otherwise relieved, may upon a determination that such areas indicate that aquatic habitats will be include regulated taking. are essential for the conservation of the subject to increased temperatures and Critical habitat receives protection species. For example, an area currently increased drought stress, especially under section 7 of the Act through the occupied by the species but that was not during the summer and early fall. There requirement that Federal agencies occupied at the time of listing may be will likely be an increase in the ensure, in consultation with the Service, essential to the conservation of the variability of stream flow, and the that any action they authorize, fund, or species and may be included in the frequency of extreme events, such as carry out is not likely to result in the critical habitat designation. We drought, severe storms, and flooding, is destruction or adverse modification of designate critical habitat in areas likely to increase statewide (Buzby and critical habitat. The designation of outside the geographical area occupied Perry 2000, p. 1774; Byers and Norris critical habitat does not affect land by a species only when a designation 2011, p. 20). Species with limited ranges ownership or establish a refuge, limited to its range would be inadequate and that are faced with either natural or wilderness, reserve, preserve, or other to ensure the conservation of the anthropomorphic barriers to movement, conservation area. Such designation species. such as the dams that fragment and does not allow the government or public Section 4 of the Act requires that we isolate diamond darter habitat, have to access private lands. Such designate critical habitat on the basis of been found to be especially vulnerable designation does not require the best scientific data available. to the effects of climate change (Byers implementation of restoration, recovery, Further, our Policy on Information and Norris 2011, p. 18). or enhancement measures by non- Standards Under the Endangered Precise estimates of the location and Federal landowners. Where a landowner Species Act (published in the Federal magnitude of impacts from global requests Federal agency funding or Register on July 1, 1994 (59 FR 34271)), climate change and increasing authorization for an action that may the Information Quality Act (section 515 temperatures cannot be made from the affect a listed species or critical habitat, of the Treasury and General currently available information. Nor are the consultation requirements of section Government Appropriations Act for we currently aware of any climate 7(a)(2) of the Act would apply, but even Fiscal Year 2001 (Pub. L. 106–554; H.R. change information specific to the in the event of a destruction or adverse 5658)), and our associated Information habitat of the diamond darter that modification finding, the obligation of Quality Guidelines, provide criteria, would indicate what areas may become the Federal action agency and the establish procedures, and provide important to the species in the future. landowner is not to restore or recover guidance to ensure that our decisions However, among the most powerful the species, but to implement are based on the best scientific data strategies for the long-term conservation reasonable and prudent alternatives to available. They require our biologists, to of biodiversity is establishment of avoid destruction or adverse the extent consistent with the Act and networks of intact habitats and modification of critical habitat. with the use of the best scientific data conservation areas that represent a full Under the first prong of the Act’s available, to use primary and original range of ecosystems, and include definition of critical habitat, areas sources of information as the basis for multiple, robust examples of each type. within the geographical area occupied recommendations to designate critical The principles of resiliency and by the species at the time it was listed habitat. redundancy are at the core of many are included in a critical habitat When we are determining which areas conservation planning efforts, and are designation if they contain physical or should be designated as critical habitat, increasingly important as the stresses of biological features (1) which are our primary source of information is climate change erode existing habitats essential to the conservation of the generally the information developed (Byers and Norris 2011, p. 24). species, and (2) which may require during the listing process for the Therefore, we have attempted to special management considerations or species. Additional information sources incorporate these principles into our protection. For these areas, critical may include the recovery plan for the proposed determination of critical habitat designations identify, to the species, articles in peer-reviewed habitat by delineating two units that are extent known using the best scientific journals, conservation plans developed representative of the range of habitats and commercial data available, those by States and counties, scientific status currently and previously occupied by physical or biological features that are surveys and studies, biological the species. essential to the conservation of the assessments, other unpublished We recognize that critical habitat species (such as space, food, cover, and materials, or experts’ opinions or designated at a particular point in time protected habitat). In identifying those personal knowledge. may not include all of the habitat areas physical and biological features within Habitat is dynamic, and species may that we may later determine are an area, we focus on the principal move from one area to another over necessary for the recovery of the biological or physical constituent time. Climate change will be a particular species. For these reasons, a critical elements (primary constituent elements challenge for biodiversity because the habitat designation does not signal that

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habitat outside the designated area is in new areas for actions in which there located. This and other information unimportant or may not be needed for may be a Federal nexus where it would represent the best scientific data recovery of the species. Areas that are not otherwise occur because, for available and led us to conclude that the important to the conservation of the example, it is or has become designation of critical habitat is species, both inside and outside the unoccupied or the occupancy is in determinable for diamond darter. critical habitat designation, will question; (2) focusing conservation continue to be subject to: (1) activities on the most essential features Physical or Biological Features Conservation actions implemented and areas; (3) providing educational In accordance with section 3(5)(A)(i) under section 7(a)(1) of the Act, (2) benefits to State or county governments and 4(b)(2) of the Act and regulations at regulatory protections afforded by the or private entities; and (4) preventing 50 CFR 424.12, in determining which requirement in section 7(a)(2) of the Act people from causing inadvertent harm areas within the geographical area for Federal agencies to ensure their to the species. occupied by the species at the time of actions are not likely to jeopardize the The primary regulatory effect of listing to designate as critical habitat, continued existence of any endangered critical habitat is the section 7(a)(2) we consider the physical or biological or threatened species, and (3) section 9’s requirement that Federal agencies features that are essential to the prohibition on taking any individual of refrain from taking any action that conservation of the species and which the species, including taking caused by destroys or adversely modifies critical may require special management actions that affect habitat. Federally habitat. At this time, the diamond darter considerations or protection (50 CFR funded or permitted projects affecting occurs on State and private lands along 424.12(b)). These include, but are not listed species outside their designated the Elk River in West Virginia. Lands limited to: critical habitat areas may still result in proposed for designation as critical (1) Space for individual and jeopardy findings in some cases. These habitat would be subject to Federal population growth and for normal protections and conservation tools will actions that trigger section 7 behavior; continue to contribute to recovery of consultation requirements. These (2) Food, water, air, light, minerals, or this species. Similarly, critical habitat include land management planning and other nutritional or physiological designations made on the basis of the Federal agency actions. There may also requirements; best available information at the time of be educational or outreach benefits to (3) Cover or shelter; designation will not control the the designation of critical habitat. These (4) Sites for breeding, reproduction, or direction and substance of future benefits include the notification of rearing (or development) of offspring; recovery plans, habitat conservation lessees and the general public of the and plans (HCPs), or other species importance of protecting the habitats of (5) Habitats that are protected from conservation planning efforts if new both of these rare species. disturbance or are representative of the information available at the time of In the case of the diamond darter, historical, geographical, and ecological these planning efforts calls for a these aspects of critical habitat distributions of a species. different outcome. designation would potentially benefit We derive the specific physical or biological features required for the Prudency Determination the conservation of the species. Therefore, if the threat of commercial or diamond darter from studies of this Section 4(a)(3) of the Act, as private collection exists for the species, species’ habitat, ecology, and life history amended, and implementing regulations it is outweighed by the conservation as described below. Because diamond (50 CFR 424.12), require that, to the benefits derived from the designation of darters are so rare, there is very little maximum extent prudent and critical habitat. We therefore find that information available with which to determinable, the Secretary designate designation of critical habitat is prudent quantitatively define the optimal or critical habitat at the time the species is for the diamond darter. range of suitable conditions for a determined to be endangered or specific biological or physical feature threatened. Our regulations (50 CFR Critical Habitat Determinability needed by the species. However, the 424.12(a)(1)) state that the designation Having determined that designation is available, species-specific information, of critical habitat is not prudent when prudent, under section 4(a)(3) of the Act in combination with information from one or both of the following situations we must find whether critical habitat for the closely related crystal darter and exist: (1) The species is threatened by the eight species is determinable. Our other similar darter species, provides taking or other human activity, and regulations at 50 CFR 424.12(a)(2) state sufficient information to qualitatively identification of critical habitat can be that critical habitat is not determinable discuss the physical and biological expected to increase the degree of threat when one or both of the following features needed to support the species. to the species; or (2) such designation of situations exist: Based on this review, we have critical habitat would not be beneficial (i) Information sufficient to perform determined that the following physical to the species. required analyses of the impacts of the and biological features are essential for There is no documentation of designation is lacking, or the diamond darter: commercial or private collection of the (ii) The biological needs of the species Space for Individual and Population diamond darter. Although that activity are not sufficiently well known to Growth and for Normal Behavior is identified as a possible but unlikely permit identification of an area as threat to the species, the significance of critical habitat. The diamond darter inhabits collection to the viability of the species’ When critical habitat is not moderate to large, warmwater streams populations is not known. In the determinable, the Act allows the Service with clean sand and gravel substrates absence of a finding that the designation an additional year to publish a critical (Simon and Wallus 2006, p. 52). of critical habitat would increase threats habitat designation (16 U.S.C. Moderate to large warmwater streams to a species, if there are any benefits to 1533(b)(6)(C)(ii)). are defined as fourth to eighth order a critical habitat designation, then a We reviewed the available streams with a drainage area exceeding prudent finding is warranted. The information pertaining to the biological 518 km2 (200 mi2) and temperatures potential benefits include: (1) Triggering needs of the species and habitat exceeding 20 °C (68 °F) at some point consultation under section 7 of the Act, characteristics where these species are during the year (Winger 1981, p. 40;

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Oliverio and Anderson 2008, p. 12). In habitats is essential in preventing day. In September and October, the Elk River, the diamond darter has further fragmentation of the species’ Trautman captured bluebreast darters in been collected in transition areas habitat and population. Free movement deep, low-velocity pools, which are not between riffles and pools where of water within the stream allows typical habitats for the species. He substrates were greater than 40 percent darters to move between available concluded that bluebreast and other sand and gravel (Welsh et al. 2004, p. habitats. This is necessary to provide darter species migrated upstream in 6; Osier 2005, p. 11; Welsh and Wood sufficient space for the population to spring and downstream in the fall 2008, pp. 62–68). These habitat grow and to promote genetic flow (Trautman 1981, pp. 673–675). Based on characteristics are similar to those throughout the population. Continuity this information, free movement described for the crystal darter (Welsh et of habitat helps to maintain space for between habitat types within a al. 2008, p. 1). Many studies have found spawning, foraging, and resting sites, significant length of stream may be that the crystal darter does not occur in and also permits improvement in water important to provide sufficient space to areas with large amounts of mud, clay, quality and water quantity by allowing support normal behavior and genetic detritus, or submerged vegetation unobstructed water flow throughout the mixing of the diamond darter. (George et al. 1996, p. 71; Shepard et al. connected habitats. Thus, free Based on the biological information 1999 in Osier 2005, p. 11; NatureServe movement of water that provides and needs discussed above, we identify 2008, p. 1). The presence of clean sand connectivity between habitats is riffle-pool complexes in moderate to and gravel substrates with low levels of necessary to support diamond darter large-sized (fourth to eighth order), silt appears to be a critical component populations. warmwater streams that are of diamond darter habitat. There is little information available geomorphically stable with moderate Siltation (excess sediments suspended on the amount of space needed by either current, clean sand and gravel or deposited in a stream) has been the diamond darter or the crystal darter substrates, and low levels of siltation to shown to negatively impact fish growth, for population growth and normal be physical or biological features survival, and reproduction (Berkman behavior. Many individuals of other essential to the conservation of the and Rabeni 1987, p. 285). Both the darter species that use similar habitat diamond darter. diamond darter and the crystal darter types have been found to remain in one Food, Water, Air, Light, Minerals, or are noted to be particularly susceptible habitat area during short-term mark and Other Nutritional or Physiological to the effects of siltation and may have recapture studies. However upstream Requirements been extirpated from historical habitats and downstream movements of other due to excessive siltation (Grandmaison darters between riffles and between Feeding habits of the diamond darter et al. 2003, pp. 17–18). Siltation can riffles and pools have been documented. in the wild are not known. However, it result from increased erosion along Within-year movements typically is expected that, similar to the crystal stream banks and roads and deposition ranged from 36 to 420 meters (118.1 to darter, adult diamond darters are caused by land-based disturbances 1,378.0 ft), and movements of up to 4.8 benthic invertivores (NatureServe 2008, (Rosgen 1996, p. 1-3). Coal mining, oil km (3.0 mi) have been documented p. 8). Crystal darters eat midge and and gas development, timber harvesting, (May 1969, pp. 86–87, 91; Freeman caddisfly larvae, and water mites in and all-terrain vehicle usage have been 1995, p. 363; Roberts and Angermeier lesser quantities (Osier 2005, p. 13). identified as land-based disturbances 2007, pp. 422, 424–427). Juvenile and young crystal darters feed that are sources of increased siltation In addition, a number of researchers on immature stages of aquatic insects within the Elk River watershed (USEPA have suggested that Crystallaria move such as mayflies, craneflies, blackflies, 2001b, pp. 1–1, 3–4, 6; WVDEP 2008b, upstream to reproduce when they caddisflies, and midges (Simon and p. 1). Increased siltation can also result mature, and that free-floating young-of- Wallus 2006, pp. 56–57). Diamond from stream bank erosion and channel the-year disperse considerable distances darters kept in captivity were fed and instability (Rosgen 1996, p. 1–3). downstream during spring high water survived on live blackworms, daphnia, Geomorphically stable streams transport where they eventually find suitable and dragonfly larvae, frozen sediment while maintaining their habitat to grow and mature (Stewart et bloodworms, and adult brine shrimp horizontal and vertical dimensions al. 2005, p. 472; Hrabik 2012, p. 1). This (Ruble et al. 2010, p. 4). Diamond (width/depth ratio and cross-sectional suggests that Crystallaria may make darters may use an ambush foraging area), pattern (sinuosity), longitudinal long-distance movements in large rivers. tactic by burying in the sand and darting profile (riffles, runs, and pools), and This type of migratory behavior has out at prey (Robinson 1992 and Hatch substrate composition (Rosgen 1996, pp. been documented in bluebreast darters 1997 in Osier 2005, pp. 12–13; 1–3 to 1–6). Thus, geomorphically stable (Etheostoma camurum) (Trautman 1981, NatureServe 2008, p. 1; Ruble 2011c, p. streams maintain the riffles and pools pp. 673–675). This species inhabits 1). When in captivity, diamond darters and silt-free substrates necessary to moderate to large-sized streams with were also observed resting on the provide typical habitats for the diamond low turbidity and is typically found in bottom of the tank and taking food from darter. riffles, similar to the diamond darter. slightly above their position, in front of Fragmentation and destruction of Trautman (1981, pp. 673–675) found them, or off the bottom (Welsh 2009c, p. habitat has reduced the current range of that bluebreast darters were well 1). Juvenile diamond darters hatched in the diamond darter to only one stream distributed throughout a 51-km (32- captivity had teeth and a large gape and has isolated the last remaining mile) reach of river during the breeding width, which suggests that the larvae population, reducing the currently season, but that there was a reduction in may feed on other smaller fish larvae available space for rearing and numbers in the upper half of this reach (Ruble et al. 2010, p. 15). reproduction. Small, isolated starting in September and continuing Researchers were unable to confirm populations may have reduced adaptive through late winter to early spring. this hypothesis due to poor survivorship capability and an increased likelihood There was a corresponding increase in of the diamond darter larvae and lack of of extinction (Gilpin and Soule´ 1986, numbers in the lower half of the reach available smaller fish larvae to provide pp. 32–34; Noss and Cooperrider 1994, during this time. Individual darters as a potential food source (Ruble et al. p. 61). Continuity of water flow and captured in the spring were documented 2010, pp. 12–14). As explained in the connectivity between remaining suitable to have moved 152 m (500 ft) in a single Life History and Habitat section above,

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the juveniles may also eat zooplankton may also move to other locations within An ample and unimpeded supply of prey, which is more typical for pelagic a stream as seasonal and daily velocity flowing water that closely resembles larval percids (Rakes 2011, p. 1). This and depth conditions change. natural peaks and lows typically information suggests that loose sandy Water quality is also important to the provides a means of maintaining riffle substrates suitable for ambush feeding persistence of the diamond darter. habitats, transporting nutrients and food behavior and healthy populations of Specific water quality requirements items, moderating water temperatures benthic invertebrates and fish larvae for (such as temperature, dissolved oxygen, and dissolved oxygen levels, removing prey items are required to support the pH, and conductivity) for the species fine sediments that could damage feeding requirements of the diamond have not been determined, but existing spawning or foraging habitats, and darter. data provide some examples of diluting nonpoint-source pollutants, Like most other darters, the diamond conditions where Crystallaria were and is thus essential to the diamond darter depends on clean water and present. Diamond darters were darter. perennial stream flows to successfully successfully maintained in captivity Based on the biological information complete its life cycle (Page 1983, pp. when water temperatures did not go and needs discussed above, we identify 160–170). Sufficient water quality and below 2 °C (35.6 °F) in the winter or perennial streams containing riffle-pool quantity is required to support normal above 25 °C (77 °F) in the summer transition areas with moderate reproduction, growth, and survival. (Ruble et al. 2010, p. 4). In Arkansas, velocities, seasonally moderated Because so few diamond darters have crystal darter capture areas had temperatures, and good water quality been captured, there are insufficient dissolved oxygen levels that ranged with healthy populations of benthic data available to quantitatively define from 6.81 to 11.0 parts per million; pH invertebrates and fish larvae for prey the standards for water quantity or levels from 5.7 to 6.6; specific items and loose, sandy substrates to be quality that are suitable to support the conductivities from 175 to 250 mS/cm, physical or biological features essential species. However, some data are and water temperatures from 14.5 to to the conservation for the diamond available from areas that are known to 26.8 °C (58 to 80 °F) (George et al. 1996, darter. support the diamond darter or the p. 71). In general, optimal water quality Cover or Shelter closely related crystal darter that conditions for warmwater fishes are provide examples of suitable conditions. characterized as having moderate stream Diamond darters and crystal darters Water quantity, including depth and temperatures, high dissolved oxygen typically have been captured in riffle- current velocity, are known to be concentrations, and near-neutral pH pool transition areas with important habitat characteristics that levels. They are also characterized as predominately (greater than 20 percent determine whether an area is suitable to lacking harmful levels of conductivity each) sand and gravel substrates (Osier support a specific species of fish (Osier or pollutants including inorganic 2005, pp. 51–52). Diamond darters will 2005, p. 3). Sites where Crystallaria contaminants like iron, manganese, bury in these types of substrates for have been captured are consistently selenium, and cadmium; and organic cover and shelter. Individuals observed described as having moderate to strong contaminants such as human and in captivity were frequently seen either velocities (Grandmaison et al. 2003, p. waste products, pesticides and completely buried in the sand during 4; Osier 2005, p. 15). Moderate to strong herbicides, fertilizers, and petroleum the day or partially buried with only the velocities contribute to the clean swept distillates (Winger 1981, pp. 36–38; head (eyes and top of the snout) out of substrates and lack of silt commonly Alabama Department of Environmental the sand. However, individuals were reported in documented crystal darter Management 1996, pp. 13–15; Maum often on top of the sand at night time habitat (Osier 2005, p. 11). In the Elk and Moulton undated, pp. 1–2). (Welsh 2009c, p. 1). Burying occurred River, the diamond darter has been Good water quality that is not by the individual rising slightly up collected from transition areas between degraded by inorganic or organic above the substrate and then plunging riffles and pools at depths from 50 to pollutants, low dissolved oxygen, or headfirst into the sand and using its tail 150 cm (20 to 59 in) and in moderate to excessive conductivity is an important motion to burrow (Welsh 2009c, p. 1). strong velocities that are typically habitat component for the diamond This type of burying behavior has also greater than 20 cm/sec (8 in/sec) (Osier darter. been reported in the crystal darter (Osier 2005, p. 31). Similarly, the crystal darter As described in the Summary of 2005, p. 11; NatureServe 2008, p. 1). has been described as generally Factors Affecting the Species section Heavily embedded substrates may inhabiting waters deeper than 60 cm (24 above, impoundment of many rivers impede this behavior. Embeddedness is inches) with strong currents typically that historically supported the diamond the degree that cobble or gravel greater than 32 cm/sec (13 inch/sec) darter has altered the quantity and flow substrates are impacted by being (Grandmaison et al. 2003, p. 4). Crystal of water in those rivers. This has surrounded or covered by fine silty darters were collected in Arkansas in reduced or eliminated riffle habitats, materials (Shipman 2000, p. 12). water from 114 to 148 cm (45 to 58 in) reduced current velocities, and Embedded substrates are not easily deep with current velocities between 46 increased the amount of fine particles in dislodged, and would therefore be and 90 cm/sec (18 and 35 in/sec) the substrate (Rinne et al. 2005, pp. 3– difficult for the diamond darter to (George et al. 1996 in Grandmaison et 5, 432–433). Diamond darters have been burrow into for cover. Heavily al. 2003, p. 4). Many of the extirpated from many areas as a result embedded substrates can be the result of measurements were taken at base or low (Grandmaison et al. 2003, p. 18; human activities increasing the amount flows when it is easiest to conduct fish Trautman 1981, p. 25). Excessive water of siltation occurring in the stream surveys. Current velocity, water depth, withdrawals can also reduce current (Shipman 2000, p. 12). While diamond and stream discharge are interrelated velocities, reduce water depth, increase darter capture sites in the Elk River have and variable, dependent on seasonal temperatures, concentrate pollution had a sparse (25–50 percent) to low (less and daily patterns of rainfall (Bain and levels, and result in deposition of fine than 25 percent) degree of Stevenson 1999, p. 77; Grandmaison et particles in the substrate, making the embeddedness, these sites were less al. 2003, p. 4). Therefore, velocities and areas less suitable to support the embedded than other surrounding areas depths at suitable habitat sites may diamond darter (PSU 2010, p. 9; (Shipman 2000, p. 12; Welsh et al. 2004, change over time, or diamond darters Freeman and Marcinek 2006, p. 445). p. 7; Osier 2005, p. 57), and lower levels

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of embeddedness are preferred by the larvae were observed in April (Ruble et Habitats That Are Protected From diamond darter. al. 2010, p. 11–12; Ruble 2011, p. 1). Disturbance or Are Representative of the Variability in the substrate and Peak breeding time is likely mid-April Historical, Geographical, and Ecological available habitat is also an important when water temperatures range from 15 Distributions of a Species sheltering requirement for the diamond to 20 °C (59 to 68 °F) (Ruble et al. 2010, As described above, clean, stable darter. Darters may shift to different p. 12). Although incubation time is substrates, good water quality, and habitat types due to changing difficult to determine because most eggs healthy benthic invertebrate environmental conditions such as high that survived already showed populations are habitat features water or warm temperatures (Osier considerable development, it is essential to the diamond darter. Direct 2005, p. 7). Deeper or sheltered habitats estimated that at 15 °C (59 °F), hatch disturbance, alteration, or fill of may provide refuge during warm time is 7 to 9 days (Ruble et al. 2010, instream habitat can degrade these weather and it has been suggested that p. 11). Although eggs were produced in essential features. Disturbance, Crystallaria species may use deeper both years, no young survived and alteration, and instream fill can kill or pools during the day (Osier 2005, p. 10). matured during either year (Ruble et al. injure adult fish, young, or eggs; Substrate variety, such as the presence 2010, pp. 11–12; Ruble 2011b, p. 1). destabilize the substrates leading to of boulders or woody materials, increased sedimentation or erosion; and provides velocity shelters for young Because no young have been reduce the amount of available food and darters during high flows (Osier 2005, p. successfully maintained in captivity and habitat to support fish populations. 4). no studies of wild populations are Based on the biological information available, we are not able to quantify the These impacts make the area less and needs discussed above, we identify range of water quality conditions suitable for the fish such as the diamond riffle-pool transition areas with needed for successful reproduction. darter (Reid and Anderson 1999, pp. 235–245; Levesque and Dube 2007, pp. relatively sand and gravel substrates, as Factors that can impair egg viability 396–402; Welsh 2009d, p. 1; Penkal and well as access to a variety of other include high temperatures, low oxygen Phillips 2011, pp. 6–7). Direct substrate and habitat types, including levels, siltation, and other water quality disturbance and instream construction pool habitats, to be physical or conditions (Ruble 2011, p. 2). can also increase substrate compaction biological cover and shelter features Inadequate water flow through the and silt deposition within the direct essential to the conservation for the substrate or low oxygen levels within diamond darter. impact area and downstream, reducing the substrate can lead to poor egg water flow through the substrate, and Sites for Breeding, Reproduction, or development or poor larval condition increasing substrate embeddedness Rearing (or Development) of Offspring (Ruble 2011, p. 2). (Reid and Anderson 1999, p. 243; Very little information is available on There is also some information Levesque and Dube 2007, pp. 396–397; reproductive biology and early life available on reproduction of the crystal Penkal and Phillips 2011, pp. 6–7). This history of the diamond darter (Welsh et darter (Welsh et al. 2008, p. 1). In can impede the normal burrowing al. 2008, p. 1; Ruble and Welsh 2010, p. Arkansas, the reproductive season was behavior of the diamond darter required 1), and to date, only one young-of-the- from late January through mid-April, for successful foraging and shelter, year of this species has been found in roughly correlating with early April in degrade spawning habitat, result in the the wild. We have not been able to the Ohio River Basin (George et al. 1996, production of fewer and smaller eggs, obtain specific information on this p. 75; Simon and Wallus 2006, p. 52). and impair egg and larvae development collection, which probably occurred in Evidence suggests that females are (Reid and Anderson 1999, pp. 244–245; 2007 in the Elk River near the capable of multiple spawning events Levesque and Dube 2007, pp. 401–402). confluence with the Kanawha River, and producing multiple clutches of eggs Intact riparian vegetation is also an West Virginia (Cincotta 2009a, p. 1). in one season (George et al. 1996, p. 75). important component of aquatic habitats However, research on reproductive Spawning occurs in the spring when the that support the diamond darter. Darters biology of the species was recently crystal darters lay their eggs in side are particularly susceptible to impacts initiated by Conservation Fisheries Inc. channel riffle habitats over sand and associated with disturbance to riparian (CFI) in partnership with the USGS gravel substrates in moderate current. vegetation such as increased West Virginia Cooperative Fish and Adult darters do not guard their eggs sedimentation and alteration of instream Wildlife Research Unit at West Virginia (Simon and Wallus 2006, p. 56). habitat characteristics (Jones et al. 1999, University (WVU). Five individual Embryos develop in the clean interstitial pp. 1461–1462; Pusey and Arthington diamond darters, consisting of at least spaces of the coarse substrate (Simon 2003, p. 1). Removal of riparian three females, one male, and one of and Wallus 2006, p. 56). After hatching, vegetation can lead to decreases in fish undetermined sex, have been held in the larvae are pelagic and drift within species, such as the diamond darter, captivity at the CFI facility and were the water column (Osier 2005, p. 12; that do not guard eggs or that are maintained in simulated stream Simon and Wallus 2006, p. 56; dependent on swift, shallow water that conditions. Water temperature and NatureServe 2008, p. 1). flows over relatively sediment-free daylight were also adjusted throughout substrates (Jones et al. 1999, p. 1462). the seasons to simulate natural Based on the biological information Thus, avoiding disturbances to stream fluctuations that would be experienced and needs discussed above, we identify beds and banks is important to in the wild (Ruble and Welsh 2010, p. streams with naturally fluctuating and maintaining stable substrates, food 2). seasonally moderated water availability, successful reproduction, Spawning began when water temperatures, high dissolved oxygen and habitat suitability for the diamond temperatures were consistently above levels, and clean, relatively silt-free darter. 15 °C and ceased when temperatures sand and gravel substrates to be All current and historical capture reached 22 °C (Ruble 2011b, p. 2). physical or biological breeding, locations of the diamond darter are from Females showed signs of being gravid reproduction, or rearing of offspring moderate to large, fourth to eighth order, from late March to May (Ruble et al. features essential to the conservation for warmwater streams within the Ohio 2010, p. 11–12). Both eggs and hatched the diamond darter. River Watershed (Welsh 2008, p. 3;

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SARP 2011, pp. 1–19). The species was processes, we determine that the constituent elements (PCEs) and may historically distributed in at least four primary constituent elements specific to require special management major drainages throughout the the diamond darter are: considerations or protection. Some of watershed and is now likely extirpated (1) Primary Constituent Element 1—A these activities include, but are not from Ohio, Kentucky, and Tennessee. series of connected riffle-pool limited to, those discussed in the The current range is restricted to a small complexes with moderate velocities in ‘‘Summary of Factors Affecting the segment of one river within West moderate to large-sized (fourth to eighth Species,’’ above. Other activities that Virginia. Therefore, the current range of order), geomorphically stable streams may affect PCEs in the proposed critical the species is not representative of the within the Ohio River watershed. habitat unit include those listed in the historical or geographical distribution of (2) Primary Constituent Element 2— ‘‘Available Conservation Measures’’ the species and not sufficient for the Stable, undisturbed bottom substrates section and include resource extraction conservation of the diamond darter. composed of relatively silt-free, (coal mining, timber harvests, natural Given the distribution is restricted to unembedded sand and gravel. gas and oil development activities); approximately 45 km (27.96 mi) within (3) Primary Constituent Element 3— construction and maintenance projects; one river, the species is vulnerable to An instream flow regime (magnitude, stream bottom disturbance from sewer, the threats of reduced fitness through frequency, duration, and seasonality of gas, and water lines; lack of adequate genetic inbreeding, and extinction from discharge over time) that is relatively riparian buffers; and other sources of a combination of cumulative effects or unimpeded by impoundment or nonpoint-source pollution. a single catastrophic event such as a diversions such that there is minimal Management activities that could toxic chemical spill (Gilpin and Soule departure from a natural hydrograph. ameliorate these threats include, but are 1986, pp. 23–33; Noss and Cooperrider (4) Primary Constituent Element 4— not limited to: use of BMPs designed to 1994, p. 61). In addition, because the Adequate water quality characterized by reduce sedimentation, erosion, and current range is isolated from other seasonally moderated temperatures, stream bank destruction; development suitable habitats due to the presence of high dissolved oxygen levels, and of alternatives that avoid and minimize dams and impoundments, the species moderate pH, and low levels of streambed disturbances; has limited ability to naturally expand pollutants and siltation. Adequate water implementation of regulations that its current range and recolonize quality is defined as the quality control the amount and quality of point- previously occupied habitats (Warren et necessary for normal behavior, growth, source discharges; and reduction of al. 2000 in Grandmaison et al. 2003, p. and viability of all life stages of the other watershed and floodplain 18). A species distribution that includes diamond darter. disturbances that release sediments or populations in more than one moderate (5) Primary Constituent Element 5—A other pollutants. Special management to large river within the Ohio River prey base of other fish larvae and consideration or protection may be watershed would provide some benthic invertebrates including midge, required to eliminate, or to reduce to protection against these threats and caddisfly, and mayfly larvae. negligible levels, the threats affecting would be more representative of the With this proposed designation of the physical or biological features of historical geographic distribution of the critical habitat, we intend to identify the each unit. Additional discussion of species. physical or biological features essential threats facing individual units is Based on the biological information to the conservation of the species, provided in the individual unit and needs discussed above, we identify through the identification of the primary descriptions below. stable, undisturbed stream beds and constituent elements sufficient to Criteria Used To Identify Critical banks, and ability for populations to be support the life-history processes of the Habitat distributed in multiple moderate-to- species. large (fourth to eighth order) streams As required by section 4(b)(2)(A) of Special Management Considerations or the Act, we use the best scientific data throughout the Ohio River watershed to Protection be physical or biological features available to designate critical habitat. protected from disturbance or are When designating critical habitat, we We review available information representative of the historical, assess whether the specific areas within pertaining to the habitat requirements of geographical, and ecological the geographical area occupied by the the species. In accordance with the Act distributions that are essential to the species at the time of listing contain and its implementing regulation at 50 conservation for the diamond darter. features which are essential to the CFR 424.12(e), we consider whether conservation of the species and which designating additional areas, outside Primary Constituent Elements for the may require special management those currently occupied as well as Diamond Darter considerations or protection. The area those occupied at the time of listing, are Under the Act and its implementing we are proposing for designation as necessary to ensure the conservation of regulations, we are required to identify currently occupied critical habitat for the species. We are proposing to the physical or biological features the diamond darter is not under special designate as critical habitat all habitat essential to the conservation of the management or protection provided by that is currently occupied by the diamond darter in areas occupied at the a legally operative management plan or species; that is, the lower Elk River. time of listing, focusing on the features’ agreement specific to conservation of This one river reach constitutes the primary constituent elements. Primary the diamond darter and has not been entire current range of the species. We constituent elements are those specific designated as critical habitat for other are also proposing to designate a elements of physical or biological species under the Act. This unit will specific area that is not currently features that provide for a species’ life- require some level of management to occupied by the diamond darter but was history processes and are essential to address the current and future threats to historically occupied, because we have the conservation of the species. the physical and biological features determined this area (i.e., the Green Based on our current knowledge of (PBFs) of the species. Various activities River) is essential for the conservation the physical or biological features and in or adjacent to the critical habitat unit of the diamond darter and designating habitat characteristics required to described in this proposed rule may only occupied habitat is not sufficient to sustain the species’ life-history affect one or more of the primary conserve this species.

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For our evaluation of potential critical complexes with sand and gravel In order to identify areas of habitat, we reviewed available substrates, and there are no barriers to unoccupied habitat that should be literature, reports, and field notes upstream fish movement (Service 2008, designated as critical habitat, we prepared by biologists, as well as entire). However, only limited survey focused on rivers that had historical historical and current survey results. We efforts and no diamond darter species- records confirmed to be diamond darter also spoke to fisheries experts and specific habitat assessments have been through the examination of available conservation professionals that are conducted that would allow us to museum specimens. For rivers that had familiar with darters or the current further refine our assessment of whether more than one historical capture, status of aquatic systems within the this area contains any of the PCEs approximate capture locations were current and historical range of the necessary to support the species. mapped so that the minimal, previously species. Additional survey efforts are being occupied extent could be established. In order to identify currently planned that may further define We then identified areas of contiguous occupied habitats, we delineated known whether the upstream area is occupied habitat that still contained the habitat capture sites and reviewed habitat by the diamond darter or which, if any, characteristics sufficient to support the assessments and mapping efforts that PCEs are present that may require life history of the species. Areas that no have been conducted on the Elk River. special management considerations. As longer provided suitable habitat were Known occurrences of the diamond a result, we are not proposing to impounded, or did not contain a series darter are extremely localized, and the designate additional critical habitat of connected riffle-pool complexes were species can be difficult to locate. upstream of King Shoals. eliminated from consideration. We then Because it is reasonably likely that this We have not included Elk River applied the following criteria to identify rare and cryptic species is present in tributaries as part of the proposed the unoccupied, potential critical suitable habitats outside the immediate designation because we have no records habitat: (1) The reach supports fish locations of the known captures, we of the diamond darter occurring in those species with habitat preferences similar considered the entire reach between the locations, and there have been no to the diamond darter such as the shoal uppermost and lowermost locations as species-specific habitat assessments in chub (Macrhybopsis hyostoma) and the occupied habitat. We also included the tributaries documenting that these streamline chub (Erimystax dissimilis); some areas of the mainstem Elk River areas are suitable to support the species. (2) the reach supports diverse that have not been specifically surveyed We then considered whether populations of fish and mussels for diamond darters but have been occupied habitat was adequate for the including other sensitive, rare, or determined to have suitable habitat for threatened and endangered species; and the species based on diamond darter conservation of the species. Currently occupied habitats of the diamond darter (3) the reach has special management or species-specific habitat assessments protections in place such as being a (Osier 2005, pp. ii–50). These areas are are highly localized and isolated, and are restricted to one reach of the Elk designated wild river or exceptional use contiguous with known capture sites, waters under State law. The reach that have similar habitat characteristics, River. The range has been severely curtailed, and population size is small. we identified in the Green River of have no barriers to dispersal, and are Kentucky met all three criteria. These within general darter dispersal Small isolated aquatic populations are subject to chance catastrophic events factors helped to confirm that the capabilities. In addition, river habitats identified area had high-quality habitats are highly dependent upon upstream and to changes in human activities and land use practices that may result in sufficient to support the species and and downstream habitat conditions for could be managed for the conservation their maintenance, so these contiguous their elimination. Threats to the of the species. No other areas were areas upstream and downstream are diamond darter are imminent and are identified that met the full screening critical to maintaining habitat present throughout the entire range of process. conditions of known capture sites. the species. As described under Factor Areas of the Elk River downstream of E, these threats are compounded by its We delineated the upstream and the proposed unit near the confluence limited distribution and isolation downstream boundaries of the proposed with the Kanawha River that do not making the species extremely unit on the Green River based on the currently provide the PCEs required to vulnerable to extinction; therefore, it is following information. The Green River support the species, and no longer have unlikely that currently occupied habitat immediately downstream of Green River suitable habitat characteristics because is adequate for its conservation (Soule Lake (River Mile 308.8 to 294.8) is they are affected by impoundment or 1980, pp. 157–158; Noss and excluded from the proposed critical routine navigation dredging, were not Cooperrider 1994, p. 61; Hunter 2002, habitat unit due to artificially variable included. The downstream reach of the pp. 97–101; Allendorf and Luikart 2007, flow, temperature, and dissolved oxygen Elk River to the confluence with the pp. 117–146). Larger, more dispersed conditions resulting from periodic Kanawha River is affected by populations can reduce the threat of discharges from Green River Dam. Fish impoundment from the Winfield Lock extinction due to habitat fragmentation community data collected between and Dam on the Kanawha River. It is and isolation (Harris 1984, pp. 93–104; Greensburg and Green River Dam also routinely dredged for commercial Noss and Cooperrider 1994, pp. 264– indicate a general trend of increasing navigation by the ACOE. 297; Warren et al. 2000 in Grandmaison species richness and abundance from The portion of the Elk River upstream et al. 2003, p. 18). For these reasons, we Tebb’s Bend (approximately 2.7 km [1.7 of the proposed unit may provide find that conservation of the diamond mi] below the dam) downstream to suitable habitat for the diamond darter, darter requires expanding its range into Roachville Ford (approximately 22.7 km but we have no records of diamond suitable, currently unoccupied portions [14.1 mi] below the dam). Also, some darters being captured in this reach or of its historical habitat. The inclusion of relatively intolerant benthic fish species diamond darter species-specific habitat essential, unoccupied areas will provide present at Roachville Ford and other assessments like there have been in the habitat for population reintroduction sites downstream within the Bioreserve lower Elk River. The upper Elk River and will improve the species’ status are absent at Tebb’s Bend, including reach does contain the favorable general through added redundancy, resiliency, mountain madtom (Noturus eleutherus), habitat characteristics of riffle-pool and representation. spotted darter (Etheostoma maculatum),

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and Tippecanoe darter (E. Tippecanoe) downstream limits of each critical We are proposing for designation of (Thomas et al. 2004, p. 10). In contrast habitat unit by identifying landmarks critical habitat lands and waters that we with Roachville Ford and other (islands, confluences, roadways, have determined are occupied at the downstream sites, cobble and gravel crossings, dams) that clearly delineated time of listing and contain sufficient substrates at Tebb’s Bend are coated each river reach. Stream confluences are elements of physical or biological with a black substance characteristic of often used to delineate the boundaries features to support life-history processes manganese and iron, which precipitates of a unit for an aquatic species because essential tor the conservation of the out and is deposited on the stream bed the confluence of a tributary typically species and that may require special following hypolimnetic discharge from marks a significant change in the size or management considerations. This area reservoirs (Thomas 2012, p. 1). Because habitat characteristics of the stream. of the Elk River in West Virginia is fish community structure and habitat Stream confluences are logical and identified as Unit 1. We are also conditions at Roachville Ford are more recognizable termini. When a named proposing to designate lands and waters similar to other locations in the Green tributary was not available, or if another outside of the geographical area River Bioreserve, this location (River landmark provided a more recognizable occupied at the time of listing that we Mile 294.8) represents the upstream boundary, another landmark was used. have determined are essential for the limit of the proposed critical habitat In the unit descriptions, distances conservation of the diamond darter. section, which continues downstream to between the upstream or downstream This area of the Green River in Cave Island (River Mile 200.3) within extent of a stream segment are given in Kentucky is identified as Unit 2. The Mammoth Cave National Park. kilometers (km) rounded to one decimal two proposed units contain sufficient Downstream of Cave Island, the Green point and equivalent miles (mi). (more than one, but not all) elements of River becomes affected by Distances for the Elk River were impoundment from the ACOE Lock and physical and biological features (PBFs) measured by tracing the course of the present to support diamond darter life- Dam #6. The lock and dam was stream as depicted by the NHD. constructed in 1906 and was disabled in history processes, but may require Distances for the Green River were special management considerations or 1950. Although the lock has been measured using river miles as disabled and is becoming unstable, the protection to achieve the presence of all designated by the Kentucky Division of the identified PBFs. dam still partially impedes water flow Water which were generated using the resulting in a system with slower, NHD. The critical habitat designation is warmer water and a loss of riffle and defined by the map or maps, as shoal habitat types (Grubbs and Taylor When determining proposed critical modified by any accompanying 2004, p. 26; Olson 2006, pp. 295–297). habitat boundaries, we made every regulatory text, presented at the end of The delineation between the portions of effort to avoid including developed this document in the rule portion. We areas such as lands covered by the river affected by Lock and Dam #6 include more detailed information on buildings, pavement, and other and those that retain free-flowing the boundaries of the critical habitat structures because such lands lack characteristics occurs distinctly at Cave designation in the preamble of this physical or biological features essential Island (Grubbs and Taylor 2004, pp. 19– document. We will make the for the conservation of diamond darter. 26). There is a marked decrease in coordinates or plot points or both on The scale of the maps we prepared benthic macroinvertebrates that are which each map is based available to under the parameters for publication intolerant of siltation below this point, the public on http:// within the Code of Federal Regulations which is attributable to slower current www.regulations.gov at Docket No. may not reflect the exclusion of such velocities and a lack of shallow riffles FWS–R5–ES–2012–0045, on our developed lands. Any such lands and associated course sediments Internet site at http://www.fws.gov/ inadvertently left inside critical habitat (Grubbs and Taylor 2004, p. 26). For westvirginiafieldoffice/index.html, and these reasons, Cave Island was selected boundaries shown on the maps of this proposed rule have been excluded by at the field office responsible for the as the downstream limit of the critical FOR FURTHER text in the proposed rule and are not designation (see habitat designation in this unit. INFORMATION CONTACT above). Once we determined that the areas of proposed for designation as critical Elk and Green Rivers met our criteria, habitat. Therefore, if the critical habitat Proposed Critical Habitat Designation we then used ArcGIS software and the is finalized as proposed, a Federal National Hydrography Dataset (NHD) to action involving these lands would not We are proposing two units as critical delineate the specific river reach being trigger section 7 consultation with habitat for the diamond darter. The proposed for diamond darter critical respect to critical habitat and the critical habitat areas we describe below habitat. Areas proposed for diamond requirement of no adverse modification, constitute our current best assessment of darter critical habitat include only Elk unless the specific action would affect areas that meet the definition of critical and Green River mainstem stream the physical or biological features in the habitat for the diamond darter. The channels within the ordinary high-water adjacent critical habitat. The areas we propose as critical habitat are: line. We have not included Elk or Green designation of critical habitat does not (1) The lower Elk River; and (2) the River tributaries as part of the proposed imply that lands or streams outside of Green River. Table 2 shows the designation because we have no records critical habitat do not play an important occupancy of the units and ownership of the diamond darter occurring in those role in the conservation of the diamond of the proposed designated areas for the locations. We set the upstream and darter. diamond darter.

TABLE 2—OCCUPANCY AND OWNERSHIP OF PROPOSED DIAMOND DARTER CRITICAL HABITAT UNITS

Federal, State, or Unit Location Occupied? other public own- Private owner- Total length km ership km (mi) ship km (mi) (mi)

1 ...... Lower Elk River ...... yes ...... 45.0 * (28.0) none 45.0 (28.0) 2 ...... Green River ...... no ...... 16.3 (10.1) 135.8 (84.4) 152.1 (94.5)

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TABLE 2—OCCUPANCY AND OWNERSHIP OF PROPOSED DIAMOND DARTER CRITICAL HABITAT UNITS—Continued

Federal, State, or Unit Location Occupied? other public own- Private owner- Total length km ership km (mi) ship km (mi) (mi)

Total ** ...... 197.1 (122.5) * As described below, this includes a combination of State ownership and easements. The State considers the easement area under their juris- diction. This is the best information available to us for calculating river mile ownership in the Elk River. Therefore, we have included this habitat under public ownership. ** Totals may not sum due to rounding.

We present brief descriptions of each of public land within the watershed: address water quality degradation is unit and reasons why each unit meets The 3,996-ha (9,874-ac) Morris Creek particularly important since prolonged the definition of critical habitat below. Wildlife Management Area, which is water quality impairments can also The critical habitat units include the leased and managed by the WVDNR affect the availability of relatively silt- stream channels of the rivers within the (2007, p. 9), and Coonskin Park, an free sand and gravel substrates (PCE 2) ordinary high-water line. As defined in approximately 405-ha (1,000-ac) park and healthy populations of fish larvae 33 CFR 329.11, the ordinary high-water owned by Kanawha County (Kanawha and benthic invertebrates that provide a line on nontidal rivers is the line on the County Parks and Recreation 2008, p. 1). prey base for the diamond darter (PCE shore established by the fluctuations of Live diamond darters have been 5). water and indicated by physical documented at four sites within this Unit 2: Green River, Edmonson, Hart, characteristics such as a clear, natural unit, including at sites near Clendenin, and Green Counties, Kentucky water line impressed on the bank; Mink Shoals, Reamer Hill, and between changes in the character of soil; Broad Run and Burke Branch. This unit Unit 2 represents the best remaining destruction of terrestrial vegetation; the contains space for individual and historically occupied habitat for future presence of litter and debris; or other population growth and for normal diamond darter reintroductions that will appropriate means that consider the behavior; food, water, air, light, improve the species’ redundancy, characteristics of the surrounding areas. minerals, or other nutritional or resiliency, and representation essential In West Virginia, the State owns the bed physiological requirements; cover or for its conservation. Unit 2 includes and banks of streams between the shelter; and sites for breeding, 152.1 km (94.5 mi) of the Green River ordinary low-water marks, and is vested reproduction, or rearing (or from Roachville Ford near Greensburg with a public easement between the development) of offspring, and is (River Mile 294.8) downstream to the ordinary low-water and high-water essential to the conservation of the end of Cave Island in Mammoth Cave marks (George 1998, p. 461). The water species. Diamond darter habitat National Park (NP) (River Mile 200.3). is also under State jurisdiction (WVSC assessments have documented that this Approximately 16.3 km (10.1 mi) of this § 22–26–3). In Kentucky, landowners reach of the Elk River contains 28 riffle- unit is publically owned (see Table 1 own the land under streams (e.g., the pool transition areas with moderate above) and is contained within the stream channel or bottom) in the currents and sand and gravel substrates 20,750-ha (51,274.1-ac) Mammoth Cave designated unit, but the water is under that are suitable for the diamond darter NP. The remainder of the unit, 135.8 km State jurisdiction. (PCEs 1 and 2) (Osier 2005, p. 34). There (84.4 mi), is privately owned. With the exception of the lands owned by Unit 1: Lower Elk River, Kanawha and is connectivity between these habitats to Mammoth Cave NP, the lands within Clay Counties, West Virginia provide access to various spawning, foraging, and resting sites and promote the Green River watershed are also Unit 1 represents the habitat gene flow (PCE 1). This reach of the Elk privately owned. Through the U.S. supporting the only remaining occupied River also has a natural flow regime that Department of Agriculture’s (USDA) diamond darter population. This is relatively unimpeded by Conservation Reserve Program (CRP) population could provide a source to impoundment (PCE 3), and has healthy and other conservation programs, the repopulate other areas within the benthic macroinvertebrate populations Nature Conservancy owns or has diamond darter’s historical range. Unit (PCE 5) (WVDEP 1997, pp. 20–89). easements on approximately 794.4 ha 1 includes 45.0 km (28.0 mi) of the Elk However, water quality within this unit (1,962.9 ac) within the watershed, either River from the confluence with King is impaired due to high levels of fecal adjacent to or in close proximity to the Shoals Run near Wallback Wildlife coliform bacteria and iron (PCE 4) river. In addition, Western Kentucky Management Area downstream to the (WVDEP 2010, p. 16). University owns or manages 1,300 ac confluence with an unnamed tributary Within this unit, the diamond darter (526.1 ha) along the Green River in Hart entering the Elk River on the right and its habitat may require special County as part of the Upper Green River descending bank adjacent to Knollwood management considerations or Biological Preserve (Western Kentucky Drive in Charleston, West Virginia. As protection to address threats from University 2012, p. 1). In Kentucky, described above, all of the habitat resource extraction (coal mining, timber landowners own the land under streams within this unit is under public control harvests, natural gas and oil (e.g., the stream channel or bottom) in or ownership (see Table 1 above). The development activities); impoundment; the designated units, but the water is State of West Virginia owns or has a water diversion or withdrawals; under State jurisdiction. public easement on the streambed and construction and maintenance projects; This unit is within the historical banks of the Elk River up to the ordinary stream bottom disturbance from sewer, range of the species, but is not currently high-water mark (George 1998, p. 461). gas, and water line crossings; lack of considered occupied. Between 1890 and The water is also publically owned. The adequate riparian buffers; sewage 1929, diamond darters were recorded majority of lands adjacent to this unit discharges, and nonpoint-source from three locations within this unit: are privately owned. There are two areas pollution. Special management to Adjacent to Cave Island in Edmonson

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County, and near Price Hole and habitat adding to the species’ Effects of Critical Habitat Designation Greensburg, in Green County. redundancy, resiliency, and Section 7 Consultation The Green River is a seventh-order representation. In addition, this reach of warmwater stream with a total drainage the Green River is a moderate-to-large Section 7(a)(2) of the Act requires area of 23,879.7 km2 (9,220 mi2). The warmwater stream with a series of Federal agencies, including the Service, largely free-flowing 160.3-km (100-mile) connected riffle-pool complexes that is to ensure that any action they fund, section of the Green River from the unaffected by impoundment (PCEs 1 authorize, or carry out is not likely to Green River Dam downstream to its and 3). The reach has good water quality jeopardize the continued existence of confluence with the Nolin River in and supports fish species that have any endangered species or threatened Mammoth Cave NP is among the most similar habitat requirements including species or result in the destruction or significant aquatic systems in the clean sand and gravel substrates, low adverse modification of designated United States in terms of aquatic species levels of siltation, and healthy benthic critical habitat of such species. In diversity and endemism and supports macroinvertebrate populations for prey addition, section 7(a)(4) of the Act over 150 species of fish and 70 species items (PCEs 2, 3, and 4). requires Federal agencies to confer with of freshwater mussels, including 7 The reach of the Green River being the Service on any agency action that is federally endangered mussel species, proposed as critical habitat is the focus likely to jeopardize the continued but no designated critical habitat of many ongoing conservation efforts. existence of any species proposed to be (Thomas et al. 2004, p. 5; USDA 2006, The Nature Conservancy has designated listed under the Act or result in the destruction or adverse modification of p.16). Populations of fish species that this area as the Green River Bioreserve proposed critical habitat. have similar habitat preferences as the (Thomas et al. 2004, p. 5) and the diamond darter, such as the shoal chub Decisions by the 5th and 9th Circuit Kentucky Department of Fish and Courts of Appeals have invalidated our and streamline chub are present Wildlife Resources identified this throughout this reach (Thomas 2012, p. regulatory definition of ‘‘destruction or portion of the Green River as a Priority adverse modification’’ (50 CFR 402.02) 1). Conservation Area in their The entire reach of the Green River (see Gifford Pinchot Task Force v. U.S. Comprehensive Wildlife Conservation within this unit is designated by Fish and Wildlife Service, 378 F. 3d Strategy (USDA 2006, p. 35). Since Kentucky as both Outstanding State 1059 (9th Cir. 2004) and Sierra Club v. 2001, more than 40,568.6 ha (100,000 Resource Waters and Exceptional U.S. Fish and Wildlife Service et al., 245 ac) within the watershed have been Waters. Outstanding State Resource F.3d 434, 442 (5th Cir. 2001)), and we enrolled in CRP (USDA 2010, p. 3). The Waters are those surface waters do not rely on this regulatory definition goal of this program is to work with designated by the Energy and when analyzing whether an action is private landowners to greatly reduce Environment Cabinet as containing likely to destroy or adversely modify federally threatened and endangered sediments, nutrients, pesticides, and critical habitat. Under the statutory species. Exceptional Waters are pathogens from agricultural sources that provisions of the Act, we determine waterbodies whose quality exceeds that could have an adverse effect on the destruction or adverse modification on necessary to support propagation of fish, health of the Green River system (USDA the basis of whether, with shellfish, wildlife, and recreation. These 2006, p. 16). These organizations along implementation of the proposed Federal waters support excellent fish and with the Service, Western Kentucky action, the affected critical habitat macroinvertebrate communities (KYEEC University, Kentucky State University, would continue to serve its intended 2012, p. 1). The entire reach of the river the ACOE, private landowners, and conservation role for the species. within Mammoth Cave NP, including other partners are also working towards If a Federal action may affect a listed the 16.3 km (10.1 mi) that are proposed conserving natural resources in this species or its critical habitat, the as critical habitat, is also designated as watershed by restoring riparian buffers, responsible Federal agency (action a Kentucky Wild River. These rivers constructing fences to keep livestock out agency) must enter into consultation have exceptional quality and aesthetic of the river, managing dam operations at with us. Examples of actions that are character and are designated by the the Green River Reservoir to more subject to the section 7 consultation State General Assembly in recognition closely mimic natural discharges, and process are actions on state, tribal, local, of their unspoiled character, conducting long-term ecological or private lands that require a Federal outstanding water quality, and natural research on fish and invertebrates permit (such as a permit from the ACOE characteristics (KYEEC 2012, p. 1). Each (Hensley 2012, p. 1; TNC 2012, p. 1; under section 404 of the Clean Water Wild River is actually a linear corridor WKU 2012, p.1). The feasibility of Act (33 U.S.C. 1251 et seq.) or a permit encompassing all visible land on each removing Lock and Dam #6 has also from the Service under section 10 of the side of the river up to a distance of been evaluated, but no decision on this Endangered Species Act) or that involve 609.6 m (2,000 ft). In order to protect proposal has been made yet (Olson some other Federal action (such as their features and quality, land-use 2006, pp. 295–297). funding from the Federal Highway changes are regulated by a permit Land use within this watershed is Administration, Federal Aviation system, and certain highly destructive primarily agricultural or forested. There Administration, or Federal Emergency land-use changes, such as strip mining is also some oil and gas development Management Agency). Federal actions and clear-cutting, are prohibited within within the watershed. Management may not affecting listed species or critical corridor boundaries (KYEEC 2012, p.1). be needed to address resource extraction habitat and actions on state, tribal, local, As described in the Criteria Used to (timber harvests, natural gas and oil or private lands that are not federally Identify Critical Habitat section above, development activities); water funded or authorized do not require the inclusion of unoccupied areas is discharges or withdrawals; construction section 7 consultation. essential for the conservation of the and maintenance projects; stream As a result of section 7 consultation, diamond darter because it will provide bottom disturbance from sewer, gas, and we document compliance with the currently suitable habitat for a water line crossings; lack of adequate requirements of section 7(a)(2) through population reintroduction that will riparian buffers; sedimentation, sewage our issuance of: allow expansion of diamond darter discharges, and nonpoint-source (1) A concurrence letter for Federal populations into historically occupied pollution. actions that may affect, but are not

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likely to adversely affect, listed species species. Activities that may destroy or activities could include, but are not or critical habitat; or adversely modify critical habitat are limited to, certain construction projects, (2) A biological opinion for Federal those that alter the physical or oil and gas development, mining, timber actions that may affect and are likely to biological features to an extent that harvest, and other watershed and adversely affect, listed species or critical appreciably reduces the conservation floodplain disturbances if they release habitat. value of critical habitat for the diamond sediments or nutrients into the water. When we issue a biological opinion darter. As discussed above, the role of These activities could eliminate or concluding that a project is likely to critical habitat is to support life-history reduce habitats necessary for the growth jeopardize the continued existence of a needs of the species and provide for the and reproduction of these fish by listed species and/or destroy or conservation of the species. causing excessive sedimentation or adversely modify critical habitat, we Section 4(b)(8) of the Act requires us nutrification. provide reasonable and prudent to briefly evaluate and describe, in any Exemptions alternatives to the project, if any are proposed or final regulation that identifiable, that would avoid the designates critical habitat, activities Application of Section 4(a)(3) of the Act likelihood of jeopardy and/or involving a Federal action that may The Sikes Act Improvement Act of destruction or adverse modification of destroy or adversely modify such 1997 (Sikes Act) (16 U.S.C. 670a) critical habitat. We define ‘‘reasonable habitat, or that may be affected by such required each military installation that and prudent alternatives’’ (at 50 CFR designation. includes land and water suitable for the Activities that may affect critical 402.02) as alternative actions identified conservation and management of habitat, when carried out, funded, or during consultation that: natural resources to complete an authorized by a Federal agency, should (1) Can be implemented in a manner integrated natural resources result in consultation for the diamond consistent with the intended purpose of management plan (INRMP) by darter. These activities include, but are the action; November 17, 2001. An INRMP not limited to: (2) Can be implemented consistent integrates implementation of the (1) Actions that would alter the with the scope of the Federal agency’s military mission of the installation with geomorphology of stream habitats. Such legal authority and jurisdiction; stewardship of the natural resources (3) Are economically and activities could include, but are not found on the base. Each INRMP limited to, instream excavation or technologically feasible; and includes: dredging, impoundment, (4) Would, in the Director’s opinion, (1) An assessment of the ecological channelization, removal of riparian avoid the likelihood of jeopardizing the needs on the installation, including the vegetation, road and bridge continued existence of the listed species need to provide for the conservation of construction, discharge of mine waste or and/or avoid the likelihood of listed species; destroying or adversely modifying spoil, and other discharges of fill (2) A statement of goals and priorities; critical habitat. materials. These activities could cause (3) A detailed description of Reasonable and prudent alternatives aggradation or degradation of the management actions to be implemented can vary from slight project channel bed elevation or significant to provide for these ecological needs; modifications to extensive redesign or bank erosion, result in entrainment or and relocation of the project. Costs burial of these fishes, and cause other (4) A monitoring and adaptive associated with implementing a direct or cumulative adverse effects to management plan. reasonable and prudent alternative are the species. Among other things, each INRMP similarly variable. (2) Actions that would significantly must, to the extent appropriate and Regulations at 50 CFR 402.16 require alter the existing flow regime or water applicable, provide for fish and wildlife Federal agencies to reinitiate quantity. Such activities could include, management; fish and wildlife habitat consultation on previously reviewed but are not limited to, impoundment, enhancement or modification; wetland actions in instances where we have water diversion, water withdrawal, and protection, enhancement, and listed a new species or subsequently hydropower generation. These activities restoration where necessary to support designated critical habitat that may be could eliminate or reduce the habitat fish and wildlife; and enforcement of affected and the Federal agency has necessary for growth and reproduction applicable natural resource laws. retained discretionary involvement or of the diamond darter. The National Defense Authorization control over the action (or the agency’s (3) Actions that would significantly Act for Fiscal Year 2004 (Pub. L. 108– discretionary involvement or control is alter water chemistry or water quality 136) amended the Act to limit areas authorized by law). Consequently, (for example, dissolved oxygen, eligible for designation as critical Federal agencies sometimes may need to temperature, pH, contaminants, and habitat. Specifically, section 4(a)(3)(B)(i) request reinitiation of consultation with excess nutrients). Such activities could of the Act (16 U.S.C. 1533(a)(3)(B)(i)) us on actions for which formal include, but are not limited to, now provides: ‘‘The Secretary [of the consultation has been completed, if hydropower discharges or the release of Interior (Secretary)] shall not designate those actions with discretionary chemicals, biological pollutants, or toxic as critical habitat any lands or other involvement or control may affect effluents into surface water or geographical areas owned or controlled subsequently listed species or connected groundwater at a point by the Department of Defense, or designated critical habitat. source or by dispersed release (nonpoint designated for its use, that are subject to source). These activities could alter an integrated natural resources Application of the ‘‘Adverse water conditions beyond the tolerances management plan prepared under Modification’’ Standard of these fish and result in direct or section 101 of the Sikes Act (16 U.S.C. The key factor related to the adverse cumulative adverse effects to the 670a), if the Secretary determines in modification determination is whether, species. writing that such plan provides a benefit with implementation of the proposed (4) Actions that would significantly to the species for which critical habitat Federal action, the affected critical alter stream bed material composition is proposed for designation.’’ habitat would continue to serve its and quality by increasing sediment There are no Department of Defense intended conservation role for the deposition or embeddedness. Such (DOD) lands with a completed INRMP

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within the proposed critical habitat During the development of a final based on scientifically sound data, designation. designation, we will consider economic assumptions, and analyses. We will impacts, public comments, and other Exclusions invite these peer reviewers to comment new information, and areas may be during this public comment period on Application of Section 4(b)(2) of the Act excluded from the final critical habitat our specific assumptions and Section 4(b)(2) of the Act states that designation under section 4(b)(2) of the conclusions in this proposed the Secretary shall designate and make Act and our implementing regulations at designation of critical habitat. 50 CFR 424.19. revisions to critical habitat on the basis We will consider all comments and of the best available scientific data after Exclusion Based on National Security information received during this taking into consideration the economic Impacts comment period on this proposed rule impact, national security impact, and Under section 4(b)(2) of the Act, we during our preparation of a final any other relevant impact of specifying consider whether there are lands owned determination. Accordingly, the final any particular area as critical habitat. or managed by the DOD where a decision may differ from this proposal. The Secretary may exclude an area from national security impact might exist. In Public Hearings critical habitat if he determines that the preparing this proposal, we have benefits of such exclusion outweigh the determined that the lands within the Section 4(b)(5) of the Act provides for benefits of specifying such area as part proposed designation of critical habitat of the critical habitat, unless he one or more public hearings on this for the diamond darter are not owned or proposal, if requested. Requests must be determines, based on the best scientific managed by the DOD, and therefore, we data available, that the failure to received within 45 days after the date of anticipate no impact to national publication of this proposed rule in the designate such area as critical habitat security. will result in the extinction of the Federal Register. Such requests must be species. In making that determination, Exclusions Based on Other Relevant sent to the West Virginia Ecological the statute on its face, as well as the Impacts Services Field Office (see FOR FURTHER legislative history, are clear that the Under section 4(b)(2) of the Act, we INFORMATION CONTACT). We will Secretary has broad discretion regarding consider any other relevant impacts, in schedule public hearings on this which factor(s) to use and how much addition to economic impacts and proposal, if any are requested, and weight to give to any factor. impacts on national security. We announce the dates, times, and places of Under section 4(b)(2) of the Act, we consider a number of factors including those hearings, as well as how to obtain may exclude an area from designated whether landowners have developed reasonable accommodations, in the critical habitat based on economic any conservation plans or other Federal Register and local newspapers impacts, impacts on national security, management plans for the area, or at least 15 days before the hearing. or any other relevant impacts. In whether there are conservation Required Determinations considering whether to exclude a partnerships that would be encouraged particular area from the designation, we by designation of, or exclusion of lands Regulatory Planning and Review— identify the benefits of including the from, critical habitat. In addition, we Executive Orders 12866 and 13563 area in the designation, identify the look at any tribal issues, and consider benefits of excluding the area from the the government-to-government Executive Order 12866 provides that designation, and evaluate whether the relationship of the United States with the Office of Information and Regulatory benefits of exclusion outweigh the tribal entities. We also consider any Affairs (OIRA) in the Office of benefits of inclusion. If the analysis social impacts that might occur because Management and Budget will review all indicates that the benefits of exclusion of the designation. significant rules. The Office of outweigh the benefits of inclusion, the In preparing this proposed rule, we Information and Regulatory Affairs has Secretary may exercise his discretion to have determined that there are currently determined that this rule is not exclude the area only if such exclusion no conservation plans or other significant. would not result in the extinction of the management plans for the species, and Executive Order 13563 reaffirms the species. the proposed designation does not principles of E.O. 12866 while calling Exclusions Based on Economic Impacts include any tribal lands or trust for improvements in the nation’s resources. We anticipate no impact to Under section 4(b)(2) of the Act, we regulatory system to promote tribal lands, partnerships, or predictability, to reduce uncertainty, consider the economic impacts of management plans from this proposed specifying any particular area as critical and to use the best, most innovative, critical habitat designation. and least burdensome tools for habitat. In order to consider economic Notwithstanding these decisions, as achieving regulatory ends. The impacts, we are preparing an analysis of stated under ‘‘Public Comments’’ above, executive order directs agencies to the economic impacts of the proposed we are seeking specific comments on critical habitat designation and related whether any areas we are proposing for consider regulatory approaches that factors. designation should be excluded under reduce burdens and maintain flexibility We will announce the availability of section 4(b)(2) of the Act. and freedom of choice for the public the draft economic analysis as soon as where these approaches are relevant, it is completed, at which time we will Peer Review feasible, and consistent with regulatory seek public review and comment. At In accordance with our joint policy on objectives. E.O. 13563 emphasizes that time, copies of the draft economic peer review published in the Federal further that regulations must be based analysis will be available for Register on July 1, 1994 (59 FR 34270), on the best available science and that downloading from the Internet at we will seek the expert opinions of at the rulemaking process must allow for http://www.regulations.gov, or by least three appropriate and independent public participation and an open contacting the West Virginia Ecological specialists regarding this proposed rule. exchange of ideas. We have developed Services Field Office directly (see FOR The purpose of peer review is to ensure this rule in a manner consistent with FURTHER INFORMATION CONTACT section). that our critical habitat designation is these requirements.

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Regulatory Flexibility Act (5 U.S.C. 601 may certify. Likewise, if the per-entity However, though not necessarily et seq.) economic impact is likely to be required by the RFA, in our draft Under the Regulatory Flexibility Act significant, but the number of affected economic analysis for this proposal, we (RFA; 5 U.S.C. 601 et seq.) as amended entities is not substantial, the Service will consider and evaluate the potential by the Small Business Regulatory may also certify. effects to third parties that may be Under the RFA, as amended, and Enforcement Fairness Act of 1996 involved with consultations with following recent court decisions, (SBREFA; 5 U.S.C. 801 et seq.), Federal action agencies related to this Federal agencies are only required to whenever an agency is required to action. evaluate the potential incremental publish a notice of rulemaking for any impacts of rulemaking on those entities Energy Supply, Distribution, or Use— proposed or final rule, it must prepare directly regulated by the rulemaking Executive Order 13211 and make available for public comment itself, and not the potential impacts to Executive Order 13211 (Actions a regulatory flexibility analysis that indirectly affected entities. The Concerning Regulations That describes the effects of the rule on small regulatory mechanism through which Significantly Affect Energy Supply, entities (small businesses, small critical habitat protections are realized Distribution, or Use) requires agencies organizations, and small government is section 7 of the Act, which requires to prepare Statements of Energy Effects jurisdictions). However, no regulatory Federal agencies, in consultation with when undertaking certain actions. We flexibility analysis is required if the the Service, to ensure that any action do not expect the designation of this head of the agency certifies the rule will authorized, funded, or carried by the proposed critical habitat to significantly not have a significant economic impact Agency is not likely to adversely modify affect energy supplies, distribution, or on a substantial number of small critical habitat. Therefore, only Federal use. entities. The SBREFA amended the RFA action agencies are directly subject to Natural gas and oil exploration and to require Federal agencies to provide a the specific regulatory requirement development activities occur or could certification statement of the factual (avoiding destruction and adverse potentially occur in both of the basis for certifying that the rule will not modification) imposed by critical proposed critical habitat units for the have a significant economic impact on habitat designation. Under these diamond darter. Both of the proposed a substantial number of small entities. circumstances, it is our position that units already support other federally According to the Small Business only Federal action agencies will be endangered species, and the Service is Administration, small entities include directly regulated by this designation. already actively engaged in discussions small organizations such as Therefore, because Federal agencies are with many gas companies to develop independent nonprofit organizations; not small entities, the Service may measures to avoid impacts to these small governmental jurisdictions, certify that the proposed critical habitat habitats. Oil and gas exploration and including school boards and city and rule will not have a significant development within the Green River town governments that serve fewer than economic impact on a substantial unit is expected to be limited. There are 50,000 residents; and small businesses number of small entities. at least six existing gas pipelines (13 CFR 121.201). Small businesses We acknowledge, however, that in crossing the Elk River within the include such businesses as some cases, third-party proponents of proposed unit, and others may be manufacturing and mining concerns the action subject to permitting or proposed in the future. Development with fewer than 500 employees, funding may participate in a section 7 and compliance with voluntary BMPs wholesale trade entities with fewer than consultation, and thus may be indirectly and avoidance measures such as the use 100 employees, retail and service affected. We believe it is good policy to of directional drilling or rerouting businesses with less than $5 million in assess these impacts if we have proposed transmission lines would be annual sales, general and heavy sufficient data before us to complete the expected to minimize impacts of natural construction businesses with less than necessary analysis, whether or not this gas and oil exploration and $27.5 million in annual business, analysis is strictly required by the RFA. development in the areas of proposed special trade contractors doing less than While this regulation does not directly critical habitat. These types of measures $11.5 million in annual business, and regulate these entities, in our draft are already being implemented by some forestry and logging operations with economic analysis we will conduct a oil and gas companies or other fewer than 500 employees and annual brief evaluation of the potential number industries in the proposed units or in business less than $7 million. To of third parties participating in other areas. determine whether small entities may consultations on an annual basis in Coal mining occurs or could be affected, we will consider the types order to ensure a more complete potentially occur in the Elk River of activities that might trigger regulatory examination of the incremental effects proposed critical habitat unit for the impacts under this designation as well of this proposed rule in the context of diamond darter. Incidental take for as types of project modifications that the RFA. listed species associated with surface may result. In general, the term In conclusion, we believe that, based coal mining activities is currently ‘‘significant economic impact’’ is meant on our interpretation of directly covered under a programmatic, to apply to a typical small business regulated entities under the RFA and nonjeopardy biological opinion between firm’s business operations. relevant case law, this designation of the Office of Surface Mining and the Importantly, the incremental impacts critical habitat will only directly Service completed in 1996 (Service of a rule must be both significant and regulate Federal agencies, which are not 1996, entire). The biological opinion substantial to prevent certification of the by definition small business entities. covers existing, proposed, and future rule under the RFA and to require the And as such, we certify that, if endangered and threatened species that preparation of an initial regulatory promulgated, this designation of critical may be affected by the implementation flexibility analysis. If a substantial habitat would not have a significant and administration of surface coal number of small entities are affected by economic impact on a substantial mining programs under the Surface the proposed critical habitat number of small business entities. Mining Control and Reclamation Act of designation, but the per-entity economic Therefore, an initial regulatory 1977. Through its analysis, the Service impact is not significant, the Service flexibility analysis is not required. concluded that the proposed action

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(surface coal mining and reclamation on non-Federal Government entities or this designation of critical habitat for activities) was not likely to jeopardize private parties. Under the Act, the only the diamond darter does not pose the continued existence of any regulatory effect is that Federal agencies significant takings implications for threatened, endangered, or proposed must ensure that their actions do not lands within or affected by the species or result in adverse modification destroy or adversely modify critical designation. of designated or proposed critical habitat under section 7. While non- Federalism—Executive Order 13132 habitat. Federal entities that receive Federal Therefore, we do not believe this funding, assistance, or permits, or that In accordance with Executive Order action is a significant energy action, and otherwise require approval or 13132 (Federalism), the rule does not no Statement of Energy Effects is authorization from a Federal agency for have significant Federalism effects. A required. However, we will further an action, may be indirectly impacted Federalism assessment is not required. evaluate this issue as we conduct our by the designation of critical habitat, the In keeping with Department of the economic analysis, and review and legally binding duty to avoid Interior and Department of Commerce revise this assessment as warranted. destruction or adverse modification of policy, we requested information from, critical habitat rests squarely on the and coordinated development of this Unfunded Mandates Reform Act (2 proposed critical habitat designation U.S.C. 1501 et seq.) Federal agency. Furthermore, to the extent that non-Federal entities are with, appropriate State resource In accordance with the Unfunded indirectly impacted because they agencies in West Virginia and Kentucky. Mandates Reform Act (2 U.S.C. 1501 et receive Federal assistance or participate The designation of critical habitat in seq.), we make the following findings: in a voluntary Federal aid program, the areas currently occupied by this fish (1) This rule will not produce a Unfunded Mandates Reform Act would may impose nominal additional Federal mandate. In general, a Federal not apply, nor would critical habitat regulatory restrictions to those currently mandate is a provision in legislation, shift the costs of the large entitlement in place for other listed species and, statute, or regulation that would impose programs listed above onto state therefore, may have little incremental an enforceable duty upon state, local, or governments. impact on state and local governments tribal governments, or the private sector, (2) We do not believe that this rule and their activities. The designation and includes both ‘‘Federal will significantly or uniquely affect may have some benefit to these intergovernmental mandates’’ and small governments. The diamond darter governments because the areas that ‘‘Federal private sector mandates.’’ only occurs in navigable waters within contain the physical or biological These terms are defined in 2 U.S.C. West Virginia in which the river bottom features essential to the conservation of 658(5)–(7). ‘‘Federal intergovernmental is owned by the State of West Virginia. the species are more clearly defined, mandate’’ includes a regulation that The adjacent upland properties are and the elements of the features of the ‘‘would impose an enforceable duty owned by private entities. Within habitat necessary to the conservation of upon state, local, or tribal governments’’ Kentucky, the lands being proposed for the species are specifically identified. with two exceptions. It excludes ‘‘a critical habitat are mostly owned by This information does not alter where condition of Federal assistance.’’ It also private landowners; a small portion is and what federally sponsored activities excludes ‘‘a duty arising from owned by Mammoth Cave National may occur. However, it may assist local participation in a voluntary Federal Park. None of these government entities governments in long-range planning program,’’ unless the regulation ‘‘relates fit the definition of ‘‘small governmental (rather than having them wait for case- to a then-existing Federal program jurisdiction.’’ Small governments will by-case section 7 consultations to under which $500,000,000 or more is be affected only to the extent that any occur). provided annually to state, local, and programs having Federal funds, permits, Where state and local governments tribal governments under entitlement or other authorized activities must require approval or authorization from a authority,’’ if the provision would ensure that their actions will not Federal agency for actions that may ‘‘increase the stringency of conditions of adversely affect the critical habitat. As affect critical habitat, consultation assistance’’ or ‘‘place caps upon, or such, a Small Government Agency Plan under section 7(a)(2) would be required. otherwise decrease, the Federal is not required. We will, however, While non-Federal entities that receive Government’s responsibility to provide further evaluate this issue as we Federal funding, assistance, or permits, funding,’’ and the state, local, or tribal conduct our economic analysis and or that otherwise require approval or governments ‘‘lack authority’’ to adjust revise this assessment if appropriate. authorization from a Federal agency for accordingly. At the time of enactment, an action, may be indirectly impacted Takings—Executive Order 12630 these entitlement programs were: by the designation of critical habitat, the Medicaid; Aid to Families with In accordance with Executive Order legally binding duty to avoid Dependent Children work programs; 12630 (Government Actions and destruction or adverse modification of Child Nutrition; Food Stamps; Social Interference with Constitutionally critical habitat rests squarely on the Services Block Grants; Vocational Protected Private Property Rights), we Federal agency. Rehabilitation State Grants; Foster Care, have analyzed the potential takings Adoption Assistance, and Independent implications of designating critical Civil Justice Reform—Executive Order Living; Family Support Welfare habitat for the diamond darter in a 12988 Services; and Child Support takings implications assessment. Critical In accordance with Executive Order Enforcement. ‘‘Federal private sector habitat designation does not affect (Order) 12988 (Civil Justice Reform), the mandate’’ includes a regulation that landowner actions that do not require Office of the Solicitor has determined ‘‘would impose an enforceable duty Federal funding or permits, nor does it that the rule does not unduly burden the upon the private sector, except (i) a preclude development of habitat judicial system and that it meets the condition of Federal assistance or (ii) a conservation programs or issuance of requirements of sections 3(a) and 3(b)(2) duty arising from participation in a incidental take permits to permit actions of the Order. We have proposed voluntary Federal program.’’ that do not require Federal funding or designating critical habitat in The designation of critical habitat permits to go forward. The takings accordance with the provisions of the does not impose a legally binding duty implications assessment concludes that Act. This proposed rule uses standard

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

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

******* FISHES

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

*******

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3. In § 17.95, amend paragraph (e) by seasonality of discharge over time) that NAD 83, Zone 16 North for the Green adding an entry for ‘‘Diamond Darter is relatively unimpeded by River, Kentucky, unit; and UTM, NAD (Crystallaria cincotta),’’ in the same impoundment or diversions such that 83, Zone 17 North for the Elk River, alphabetical order that the species there is minimal departure from a West Virginia, unit. The following data appears in the table at § 17.11(h), to read natural hydrograph. sources were referenced to identify as follows: (iv) Adequate water quality features used to delineate the upstream characterized by seasonally moderated and downstream reaches of critical § 17.95 Critical habitat—fish and wildlife. temperatures, high dissolved oxygen habitat units: USGS 7.5’ quadrangles * * * * * levels, and moderate pH, and low levels and topographic maps, NHD data, 2005 (e) Fishes. of pollutants and siltation. Adequate National Inventory of Dams, Kentucky * * * * * water quality is defined as the quality Land Stewardship data, pool and shoal Diamond Darter (Crystallaria cincotta) necessary for normal behavior, growth, data on the Elk River, ESRI’s Bing Maps and viability of all life stages of the Road. The maps in this entry, as (1) Critical habitat units are depicted diamond darter. modified by any accompanying for Kanawha and Clay Counties, West (v) A prey base of other fish larvae regulatory text, establish the boundaries Virginia, and Edmonson, Hart, and and benthic invertebrates including of the critical habitat designation. The Green Counties, Kentucky, on the maps midge, caddisfly and mayfly larvae. coordinates or plot points or both on below. (3) Critical habitat does not include which each map is based are available (2) Within these areas, the primary to the public at the field office internet constituent elements of the physical or manmade structures (such as buildings, aqueducts, runways, roads, and other site (http://www.fws.gov/ biological features essential to the westvirginiafieldoffice/index.html), conservation of diamond darter consist paved areas) and the land on which they are located existing within the legal http://www.regulations.gov at Docket of five components: No. FWS–R5–ES–2012–0045 and at the (i) A series of connected riffle-pool boundaries on the effective date of this Service’s West Virginia Field Office. complexes with moderate velocities in rule. You may obtain field office location moderate to large-sized (fourth to eighth (4) Critical habitat map units. Data information by contacting one of the order), geomorphically stable streams layers defining map units were created Service regional offices, the addresses of within the Ohio River watershed. with USGS NHD GIS data. ESRI’s (ii) Stable, undisturbed, bottom ArcGIS 10.1 software was used to which are listed at 50 CFR 2.2. substrates composed of relatively silt- determine longitude and latitude in (5) Note: Index map of critical habitat free, unembedded sand and gravel. decimal degrees for the river reaches. locations for the diamond darter in West (iii) An instream flow regime The projection used in mapping was Virginia and Kentucky follows: (magnitude, frequency, duration, and Universal Transverse Mercator (UTM), BILLING CODE 4310–55–P

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

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

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* * * * * Dated: July 13, 2012. Michael Bean, Acting Assistant Secretary for Fish and Wildlife and Parks. * * * * * [FR Doc. 2012–17950 Filed 7–25–12; 8:45 am] BILLING CODE 4310–55–C

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