# Endangered and Threatened Wildlife and Plants; Designation of Critical Habitat for the Cumberland Darter, Rush Darter, Yellowcheek Darter, Chucky Madtom, and Laurel Dace

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/fr%3A2012-24468

## Record

- **Collection:** Federal Register
- **Document type:** Rule
- **Published:** October 16, 2012
- **Citation:** 77 FR 63604

## Text

DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
[Docket No. FWS-R4-ES-2011-0074; 4500030114]
RIN 1018-AX76
Endangered and Threatened Wildlife and Plants; Designation of Critical Habitat for the Cumberland Darter, Rush Darter, Yellowcheek Darter, Chucky Madtom, and Laurel Dace

AGENCY:

Fish and Wildlife Service, Interior.

ACTION:

Final rule.

SUMMARY:

We, the U.S. Fish and Wildlife Service, designate critical habitat for the Cumberland darter (
Etheostoma susanae
), rush darter (
Etheostoma phytophilum
), yellowcheek darter (
Etheostoma moorei
), Chucky madtom (
Noturus crypticus
), and laurel dace (
Chrosomus saylori
) under the Endangered Species Act of 1973, as amended. In total, approximately 86 river kilometers (rkm) (54 river miles (rmi)) are being designated as critical habitat for the Cumberland darter, 44 rkm (27 rmi) and 12 hectares (ha) (29 acres (ac)) for the rush darter, 164 rkm (102 rmi) for the yellowcheek darter, 32 rkm (20 rmi) for the Chucky madtom, and 42 rkm (26 rmi) for the laurel dace. The effect of this regulation is to conserve the five species' habitat under the Endangered Species Act.

DATES:

This rule becomes effective on November 15, 2012.

ADDRESSES:

This final rule and the associated final economic analysis are available on the Internet at
http://www.regulations.gov.
Comments and materials received, as well as supporting documentation used in preparing this final rule, are available for public inspection, by appointment, during normal business hours, at the U.S. Fish and Wildlife Service, Tennessee Ecological Services Field Office, 446 Neal Street, Cookeville, TN 38501; telephone 931-528-6481; facsimile 931-528-7075.

The coordinates or plot points or both from which the maps are generated are included in the administrative record for this critical habitat designation and are available at
http://www.fws.gov/cookeville, http://www.regulations.gov
at Docket No. FWS-R4-ES-2011-0074, and at the Tennessee Fish and Wildlife Office (see
FOR FURTHER INFORMATION CONTACT
). Any additional tools or supporting information that we may develop for this critical habitat designation will also be available at the Fish and Wildlife Service Web site and Field Office set out above, and may also be included in the preamble and/or at
http://www.regulations.gov.

FOR FURTHER INFORMATION CONTACT:

For information regarding the Cumberland darter, contact Lee Andrews, Field Supervisor, U.S. Fish and Wildlife Service, Kentucky Fish and Wildlife Office, J.C. Watts Federal Building, 330 W. Broadway, Room 265, Frankfort, KY 40601; telephone 502-695-0468; facsimile 502-695-1024. For information regarding the rush darter, contact Stephen Ricks, Field Supervisor, U.S. Fish and Wildlife Service, Mississippi Fish and Wildlife Office, 6578 Dogwood View Parkway, Suite A, Jackson, MS 39213; telephone 601-965-4900; facsimile 601-965-4340 or Bill Pearson, Field Supervisor, U.S. Fish and Wildlife Service, Alabama Fish and Wildlife Office, 1208-B Main Street, Daphne, AL 36526; telephone 251-441-5181; facsimile 251-441-6222. For information regarding the yellowcheek darter, contact Jim Boggs, Field Supervisor, U.S. Fish and Wildlife Service, Arkansas Fish and Wildlife Office, 110 South Amity Road, Suite 300, Conway, AR 72032; telephone 501-513-4470; facsimile 501-513-4480. For information regarding the Chucky madtom or laurel dace, contact Mary Jennings, Field Supervisor, U.S. Fish and Wildlife Service, Tennessee Fish and Wildlife Office, 446 Neal Street, Cookeville, TN 38501; telephone 931-525-4973; facsimile 931-528-7075. If you use a telecommunications device for the deaf (TDD), call the Federal Information Relay Service (FIRS) at 800-877-8339.

SUPPLEMENTARY INFORMATION:

Executive Summary

Why we need to publish a rule.
Under the Endangered Species Act, any species that is determined to be an endangered or threatened species requires critical habitat to be designated, to the maximum extent prudent and determinable. Designations and revisions of critical habitat can only be completed by issuing a rule.

This rule will designate critical habitat for the Cumberland Darter, Rush Darter, Yellowcheek Darter, Chucky Madtom, and Laurel Dace.
In total, approximately 86 river kilometers (rkm) (54 river miles (rmi)) are being designated as critical habitat for the Cumberland darter in McCreary and Whitley Counties, Kentucky, and Campbell and Scott Counties, Tennessee; 44 rkm (27 rmi) and 12 hectares (ha) (29 acres (ac)) are being designated as critical habitat for the rush darter in Etowah, Jefferson, and Winston Counties, Alabama; 164 rkm (102 rmi) are being designated as critical habitat for the yellowcheek darter in Cleburne, Searcy, Stone, and Van Buren Counties, Arkansas; 32 rkm (20 rmi) are being designated as critical habitat for the Chucky madtom in Greene County, Tennessee; and 42 rkm (26 rmi) are being designated as critical habitat for the laurel dace in Bledsoe, Rhea, and Sequatchie Counties, Tennessee.

The basis for our action.
The Act requires that the Service designate critical habitat at the time of listing to the extent prudent and determinable. We have determined that designation is prudent and critical habitat is determinable (see Critical Habitat section below).

We prepared an economic analysis.
To ensure that we consider the economic impacts, we prepared an economic analysis of the designation of critical habitat. We published an announcement and solicited public comments on the draft economic analysis. The analysis found that the present value of the total direct (administrative) incremental cost of critical habitat designation is $644,000 over the next 20 years assuming a seven percent discount rate. Primarily these costs are associated with consultation for water quality management activities, transportation; coal mining; oil and natural gas development; agriculture, ranching, and silviculture; dredging, channelization, impoundments, dams, and diversions; and recreation at $10,000 (Industrial Economics, Inc. 2012).

Peer review and public comment.
We sought comments from independent specialists to ensure that our designation is based on scientifically sound data and analyses. We invited these peer reviewers to comment on our conclusions in the critical habitat proposal. We also considered all comments and information received during the comment period.

Background

It is our intent to discuss in this final rule only those topics directly relevant to the development and designation of critical habitat for the Cumberland darter, rush darter, yellowcheek darter, Chucky madtom, and laurel dace under the Endangered Species Act of 1973, as amended (Act; 16 U.S.C. 1531
et seq.
). For more information on the biology and ecology of these five fishes, refer to the final listing rule published in the
Federal Register
on August 9, 2011 (76 FR 48722). For information on the five fishes' critical habitat, refer to the

proposed rule to designate critical habitat published in the
Federal Register
on October 12, 2011 (76 FR 63360). Information on the associated draft economic analysis for the proposed rule was published in the
Federal Register
on May 24, 2012 (77 FR 30988).

Previous Federal Actions

The Cumberland darter, rush darter, yellowcheek darter, Chucky madtom, and laurel dace were listed as endangered species under the Act on August 9, 2011 (76 FR 48722). For the full history of previous Federal actions regarding these five species, please refer to the final listing rule (76 FR 48722). In the June 24, 2010, proposed listing rule (75 FR 36035) we determined that designation of critical habitat was prudent for all five species. However, we found that critical habitat was not determinable at the time and set forth the steps we would undertake to obtain the information necessary to develop a proposed designation of critical habitat. The proposed rule to designate critical habitat for these fishes published in the
Federal Register
on October 12, 2011 (76 FR 63360). Information on the associated draft economic analysis for the proposed rule to designate critical habitat was published in the
Federal Register
on May 24, 2012 (77 FR 30988).

Species Information

Cumberland Darter

The Cumberland darter (
Etheostoma susanae
) is a narrowly endemic fish species, occurring in sparse, fragmented, and isolated populations in the upper Cumberland River system of Kentucky and Tennessee. The species inhabits pools or shallow runs of low to moderate gradient sections of streams with stable sand, silt, or sand-covered bedrock substrates (O'Bara 1988, pp. 10-11; O'Bara 1991, p. 10; Thomas 2007, p. 4). Thomas (2007, p. 4) did not encounter the species in high-gradient sections of streams or areas dominated by cobble or boulder substrates. Thomas (2007, p. 4) reported that streams inhabited by Cumberland darters were second to fourth order, with widths ranging from 4 to 9 meters (m) (11 to 30 feet (ft)) and depths ranging from 20 to 76 centimeters (cm) (8 to 30 inches (in)).

The Cumberland darter's current distribution is limited to 13 streams in McCreary and Whitley Counties, Kentucky, and Campbell and Scott Counties, Tennessee (Thomas 2007, pp. 11-12). Occurrences from these streams are thought to form six population clusters (Bunches Creek, Indian Creek, Marsh Creek, Jellico Creek, Wolf Creek, and Youngs Creek), which are geographically separated from one another by an average distance of 30.5 stream km (19 stream mi) (O'Bara 1988, p. 12; O'Bara 1991, p. 10; Thomas 2007, p. 3).

The primary threat to the Cumberland darter is physical habitat destruction or modification resulting from a variety of human-induced impacts such as siltation, disturbance of riparian corridors, and changes in channel morphology (Waters 1995, pp. 2-3; Skelton 1997, pp. 17, 19; Thomas 2007, p. 5). The most significant of these impacts is siltation (excess sediments suspended or deposited in a stream) caused by excessive releases of sediment from activities such as resource extraction (e.g., coal mining, silviculture, natural gas development), agriculture, road construction, and urban development (Waters 1995, pp. 2-3; Skelton 1997, pp. 17, 19; KDOW 2006, pp. 178-185; Thomas 2007, p. 5).

Rush Darter

The rush darter (
Etheostoma phytophilum
) is a narrowly endemic, rare, and difficult to collect fish species in north-central Alabama. The rush darter occurs in sparse, fragmented, and isolated populations. The species is currently known from tributaries and associated spring systems of the Turkey Creek (Jefferson County), Clear Creek (Winston County), and Little Cove-Bristow Creek watersheds (Etowah County). Most of these tributaries contain sites with intact physical characteristics such as riffles, runs, pools, transition zones, and emergent vegetation. Rush darters prefer springs and spring-fed reaches of relatively low-gradient, small streams (Bart and Taylor 1999, p. 32; Johnston and Kleiner 2001, pp. 3-4; Stiles and Blanchard 2001, pp. 1-4; Bart 2002, p. 1; Fluker
et al.
2007, p. 1; Stiles and Mills 2008, pp. 1-4). Rush darters are also found in wetland pools and in some ephemeral tributaries of the aforementioned watersheds (Stiles and Mills 2008, pp. 2-3). This species also relies heavily on aquatic vegetation (Fluker
et al.
2007, p. 1), including both small clumps and dense stands, and root masses of emergent vegetation along stream margins. These habitats tend to be shallow, clear, and cool, with moderate current and substrates composed of a combination of sand with silt, muck, gravel, or bedrock.

The species is found in both urban and industrial zoned areas (Jefferson County) and rural settings (Winston and Etowah Counties). Within these areas, the rush darters' habitat has been degraded by alteration of stream banks and bottoms; channelization; inadequate storm water management; inappropriate placement of culverts, pipes, and bridges; road maintenance; inadequate protection of groundwater recharge zones and aquifers; and haphazard silvicultural and agricultural practices. The persistence of a constant flow of clean groundwater from various springs has somewhat offset the destruction of the species' habitat, water quality, and water quantity; however, the species' status still appears to be declining.

Yellowcheek Darter

The yellowcheek darter (
Etheostoma moorei
) is endemic to the Devil's, Middle, South, and Archey forks of the Little Red River in Cleburne, Searcy, Stone, and Van Buren Counties in Arkansas (Robison and Buchanan 1988, p. 429). These streams are located primarily within the Boston Mountains subdivision of the Ozark Plateau. In 1962, the construction of a dam on the Little Red River to create Greers Ferry Reservoir impounded much of the range of this species, including the lower reaches of Devil's Fork, Middle Fork, South Fork, and portions of the main stem Little Red River, thus extirpating the species from these reaches. Cold tailwater releases below the dam preclude the yellowcheek darter from inhabiting the main stem Little Red River. The yellowcheek darter inhabits high-gradient headwater tributaries with clear water; permanent flow; moderate to strong riffles; and gravel, cobble, and boulder substrates (Robison and Buchanan 1988, p. 429). Prey items consumed by yellowcheek darters include blackfly larvae, stoneflies, and mayflies.

Robison and Harp (1981, p. 5) estimated the range of the yellowcheek darter in the South Fork to extend from 2.9 km (1.8 mi) north northeast of Scotland, Arkansas, to U.S. Highway 65 in Clinton, Arkansas. The Middle Fork population was estimated to extend from just upstream of U.S. Highway 65 near Leslie, Arkansas, to 4.8 km (3.0 mi) west of Shirley, Arkansas. The Archey Fork population extended from its confluence with South Castleberry Creek to immediately downstream of U.S. Highway 65 in Clinton, Arkansas. The Devil's Fork population extended from 4.8 km (3.0 mi) north of Prim, Arkansas, to 6.1 km (3.8 mi) east southeast of Woodrow, Arkansas.

The yellowcheek darter is threatened primarily by factors associated with the present destruction, modification, or curtailment of its habitat or range. Threats include sedimentation and nutrient enrichment from impoundment, water diversion, gravel mining, channelization or channel

instability, and natural gas development.

Chucky Madtom

The Chucky madtom (
Noturus crypticus
) is a rare catfish found in Greene County, Tennessee. Specimens collected in Little Chucky Creek have been found in stream runs with slow to moderate current over pea gravel, cobble, or slab-rock boulder substrates (Burr
et al.
2005, p. 797). These habitats are sparse in Little Chucky Creek, and the stream affords little loose, rocky cover suitable for madtoms (Shute
et al.
1997, p. 8). It is notable that intact riparian buffers are present in the locations where Chucky madtoms have been found (Shute
et al.
1997, p. 9).

Little is known about Chucky madtom life history and behavior; however, this information is available for other similar members of the
Noturus
group. Dinkins and Shute (1996, p. 50) found smoky madtoms (
N. baileyi
) underneath slab-rock boulders in swift to moderate current during May to early November. Habitat use shifted to shallow pools over the course of a 1-week period, coinciding with a drop in water temperature to 7 or 8 °C (45 to 46 °F), and persisted from early November to May. Eisenhour
et al.
(1996, p. 43) collected saddled madtoms (
N. fasciatus
) in gravel, cobble, and slab-rock boulders in riffle habitats with depths ranging from 0.1 to 0.3 m (0.3 to 1.0 ft). Based on their limited number of observations, Eisenhour
et al.
(1996, p. 43) hypothesized that saddled madtoms occupy riffles and runs in the daylight hours and then move to pools at night and during crepuscular hours (dawn and dusk) to feed.

The current range of the Chucky madtom is restricted to an approximate 3-km (1.8-mi) reach of Little Chucky Creek in Greene County, Tennessee. Degradation from sedimentation, physical habitat disturbance, and contaminants threaten the habitat and water quality on which the Chucky madtom depends. Sedimentation could negatively affect the Chucky madtom by reducing growth rates, disease tolerance, and gill function; reducing spawning habitat, reproductive success, and egg, larval, and juvenile development; reducing food availability through reductions in prey; and reducing foraging efficiency. Contaminants associated with agriculture (e.g., fertilizers, pesticides, herbicides, and animal waste) can cause degradation of water quality and habitats through instream oxygen deficiencies, excess nutrification, and excessive algal growths.

Laurel Dace

The laurel dace (
Chrosomus saylori
) is endemic to seven streams on the Walden Ridge portion of the Cumberland Plateau (Bledsoe, Rhea, and Sequatchie Counties, Tennessee), where drainages generally meander eastward before dropping abruptly down the plateau escarpment and draining into the Tennessee River. Laurel dace are known historically from seven streams in three disjunct systems: Soddy Creek; three streams that are part of the Sale Creek system (the Horn and Laurel branch tributaries to Rock Creek, and the Cupp Creek tributary to Roaring Creek); and three streams that are part of the Piney River system (Youngs, Moccasin, and Bumbee Creeks). In 1991, and in four other surveys (two in 1995, one in 1996, and one in 2004), laurel dace were not collected in Laurel Branch, leading Skelton to the conclusion that laurel dace had been extirpated from the stream (Skelton 1997, p. 13; Skelton 2001, p. 126; Skelton 2009, pers. comm.).

The current distribution of laurel dace encompasses six of seven historical streams; the species is considered extirpated from Laurel Branch (see above). In these six streams, the species is known to occupy reaches ranging in length from 0.3 to 8.0 rkm (0.2 to 5 rmi). Laurel dace have been most often collected from pools or slow runs from undercut banks or beneath slab-rock boulders, typically in first or second order, clear, cool (maximum temperature 26 °C or 78.8 °F) streams. Substrates in laurel dace streams typically consist of a mixture of cobble, rubble, and boulders, and the streams tend to have a dense riparian zone consisting largely of mountain laurel (Skelton 2001, pp. 125-126).

The primary threat to laurel dace throughout its range is excessive siltation resulting from agriculture and extensive silviculture, especially those involving inadequate riparian buffers in harvest areas and the failure to use best management practices (BMPs) during road construction. Severe degradation from sedimentation, physical habitat disturbance, and contaminants threatens the habitat and water quality on which the laurel dace depends. Sedimentation negatively affects the laurel dace by reducing growth rates, disease tolerance, and gill function; reducing spawning habitat, reproductive success, and egg, larvae, and juvenile development; reducing food availability through reductions in prey; and reducing foraging efficiency.

Summary of Comments and Recommendations

We requested written comments from the public on the proposed designation of critical habitat for the Cumberland darter, rush darter, yellowcheek darter, Chucky madtom, and laurel dace during two comment periods. The first comment period associated with the publication of the proposed rule (76 FR 63360) opened on October 12, 2011, and closed on December 12, 2011. Based on a request made after the comment period had ended, we held a public informational meeting concerning the critical habitat designation for the yellowcheek darter on February 22, 2012, in Clinton, Arkansas, where we took comments on the proposed rule and notified the public that we would also take public comments on the rule through the end of the comment period for a draft economic analysis. That comment period opened May 24, 2012, and closed on June 25, 2012 (77 FR 30988). Based on a request received during the first comment period, we held a public hearing in Clinton, Arkansas, on June 7, 2012. We also contacted appropriate Federal, State, and local agencies; scientific organizations; and other interested parties and invited them to comment on the proposed rule and draft economic analysis during these comment periods. We issued press releases and published legal notices in
The Times Tribune, Lexington Herald-Leader, Greenville Sun, Knoxville News Sentinel, The Herald News, Chattanooga Times Free Press, Birmingham News, Sand Mountain Reporter, NW Alabamian, Arkansas Democrat-Gazette, Van Buren County Democrat, The Sun Times, The Stone County Leader,
and the
Marshall Mountain Wave.
However, the
Marshall Mountain Wave
declined to publish a legal notice announcing the first public comment period.

During the first comment period, we received 66 comment letters directly addressing the proposed critical habitat designation. During the February 22, 2012, public informational meeting, 11 individuals or organizations made comments on the designation of critical habitat for the yellowcheek darter. During the second comment period, we received 54 comment letters addressing the proposed critical habitat designation or the draft economic analysis. During the June 7, 2012, public hearing, four individuals or organizations made comments on the designation of critical habitat for the yellowcheek darter. All substantive information provided during the comment periods has either been incorporated directly into this final

determination or is addressed below. Comments received were grouped into five general issues categories, and are addressed in the following summary and incorporated into the final rule as appropriate.

Peer Review

In accordance with our peer review policy published on July 1, 1994 (59 FR 34270), we solicited expert opinions from 15 knowledgeable individuals with scientific expertise that included familiarity with the five species and the geographic region in which the species occur. We received responses from three of the peer reviewers.

We reviewed all comments received from the peer reviewers for substantive issues and new information regarding critical habitat for the five fishes. The peer reviewers generally concurred with our methods and conclusions, and provided additional information, clarifications, and suggestions to improve the final critical habitat rule. Peer reviewer comments are addressed in the following summary and incorporated into the final rule as appropriate.

For the Cumberland darter, rush darter, and Chucky madtom, the peer reviewers agreed we relied on the best scientific information available, accurately described the species and its habitat requirements (primary constituent elements (PCEs)), accurately characterized the reasons for the species' decline and the threats to its habitat, and concurred with our critical habitat selection criteria. We did not receive any comments from peer reviewers related to the yellowcheek darter or laurel dace. We respond to all substantive comments below.

Peer Reviewer Comments

(1)
Comment:
The Northern Beltline Corridor will cross and impact the proposed rush darter critical habitat throughout its range in Jefferson County, Alabama, and stimulate growth and development throughout the area.

Our Response:
The Northern Beltline Corridor has a Federal nexus through the Federal Highway Administration (FHA). The Service has provided official comment and evaluated the potential effects of the Beltline with respect to the vermilion darter (
Etheostoma chermockii),
watercress darter (
Etheostoma nuchale),
rush darter (
Etheostoma phytophylum
), and other trust resources in accordance with section 7 of the Act and the Fish and Wildlife Coordination Act (16 U.S.C. 661
et seq.
). Species surveys were conducted during the period of August 29-30, 2011. No federally protected species were found during this survey. The rush darter is located in a few scattered tributaries that drain into the south side of Turkey Creek, which is a considerable distance from the proposed beltway impact areas. The corridor will not cross any rush darter habitat.

The Service determined that the project would have minimal to no effect on the rush darter, which occurs in a drainage removed from the action area (Everson 2012, pers. comm.).

(2)
Comment:
Predicted effects of climate change on the rush darter and its habitat should include protection of aquifers and recharge areas of groundwater input and corresponding higher water temperatures.

Our Response:
The information currently available on the effects of global climate change and increasing temperatures does not make sufficiently precise estimates of the location and magnitude of the effects. We are also not currently aware of any climate change information specific to the habitat of the rush darter related to temperatures of groundwater outflows and stormwater inflows that are or would become important to the species in the future. Therefore, we are unable to determine what additional threats and corresponding appropriate actions to include in the final critical habitat for the rush darter or the other fishes in this rule to address the effects of this aspect of climate change.

(3)
Comment:
The critical habitat designated for the rush darter in the headwaters in Unit 2 should be expanded to adjacent areas and include the wetland on the western edge.

Our Response:
Comment has been noted and after further analysis of the information within Service files and that provided by the commenter, the wetland on the western edge of Unit 2 has been included in the final critical habitat designation for the rush darter. This area contains the physical and biological features essential to the conservation of the species (PCEs 1-3) and which may require special management and protection. As a result of these changes, critical habitat designation has increased by an additional 85.8 m (0.05 mi.) and 0.13 ha (0.32 ac) in Unit 2 for the rush darter.

(4)
Comment:
One peer reviewer mentions that there are active strip mines in the area of the proposed rush darter critical habitat in Doe and Wildcat Branch, Winston County, Alabama. In the Energy Supply, Distribution, or Use determination, the Service only mentions that coal mining occurs or could occur in Cumberland darter units.

Our Response:
Historically, there was an abundance of coal mining in Winston County, Alabama. Recently, coal mining has accelerated south of the watershed containing critical habitat for the rush darter. However, there are no active mines that impact the surface water of the proposed critical habitat for the rush darter. The Poplar Springs Mine is active, but is outside the proposed critical habitat unit, and no impacts to the surface waters are believed to occur (Drennen 2011, pers. obs.). Although there are no obvious coal mining impacts to surface water, little is known about groundwater impacts within the aquifer. These types of effects are untimely in expressing themselves and may not be known for many years, if indeed they do occur.

Comments from States

Section 4(i) of the Act states, “the Secretary shall submit to the State agency a written justification for his failure to adopt regulations consistent with the agency's comments or petition.” We received one comment from the Kentucky Department of Fish and Wildlife Resources (KDFWR) related to road crossings and culverts acting as threats to the Cumberland darter. This comment was incorporated into this final rule. We did not receive any other substantive comments from the States (Alabama, Arkansas, Kentucky, or Tennessee) regarding the proposed rule. No official position was expressed by the States on the critical habitat designation.

(5)
Comment:
The KDFWR commented that culverts and impassable road crossings (fords) could act as barriers to dispersal for Cumberland darters, thereby contributing to population fragmentation and reduced gene flow among and between populations.

Our Response:
We agree that impassable road crossings and culverts can limit or prevent natural dispersal of Cumberland darters, which can lead to population fragmentation and reduced gene flow. We discussed this potential threat (Factor E) in the final listing and proposed critical habitat rules, and we summarized our current knowledge of Cumberland darter dispersal behavior in the Physical and Biological Features section of this final critical habitat rule.

Public Comments

Landowner Rights

(6)
Comment:
The proposed designation will harm private landowners in Arkansas through increased government regulation, and

will add unnecessary bureaucracy in the use of surface waters.

Our Response:
The designation of critical habitat will not increase government regulation of private land in Arkansas. The effects of private activities are not subject to the Act's section 7 consultation requirements unless they are connected to a Federal action. Federal activities conducted in or adjacent to areas designated as critical habitat are already subject to section 7 consultation requirements of the Act because of the presence of one or more species currently listed under the Act. Most normal operations for rearing of livestock, or for other land uses common to the upper Little Red River watershed in Arkansas, do not require Federal permits or actions. We do not anticipate that this designation will impose any additional direct regulatory burdens to private landowners in Arkansas.

(7)
Comment:
The designation of critical habitat for the yellowcheek darter will involve establishment of streamside buffers, exclusion of cattle from designated critical habitat through installation of new fencing, or taking of private land by the Federal government.

Our Response:
The designation of critical habitat does not affect land ownership or establish a refuge, wilderness, reserve, preserve, or other conservation area. Critical habitat designation does not regulate private actions on private lands or confiscate private property. It does not affect individuals, organizations, States, local governments or other non-Federal entities that do not require Federal permits or funding. Such designation does not allow the government or public to access private lands.

The designation of critical habitat does not create streamside buffers or impose requirements to fence livestock or other animals from streams. Waters of navigable streams, such as those designated as critical habitat for the yellowcheek darter, are considered public waters by the State of Arkansas. The designation includes river channels within the ordinary high water line, which would not include adjacent private properties.

Procedural and Legal Considerations

(8)
Comment:
Landowners have not been contacted and given the opportunity to respond to the proposed designation. Most landowners (in the Little Red River watershed, Arkansas) and the people of Arkansas did not know of the comment deadline; therefore, the comment period should be extended and public hearings conducted.

Our Response:
When we issue a proposed rule, we want to ensure widespread knowledge and opportunity for the public to comment, particularly among those who may be potentially affected by the action. The proposed designation for yellowcheek darter covered portions of four Arkansas counties; therefore, it was impossible to personally contact all landowners in the area. However, we attempted to ensure that as many people as possible would be aware of the proposed designation through distribution of press releases to all major media in the affected area, including those in State capitols and major cities; publication of newspaper notices; and direct notification of affected State and Federal agencies, environmental groups, major industries, State Governors, Federal and State elected officials, and representatives associated with the National Championship Chuck Wagon Races (see
Previous Federal Actions,
above). We continued to accept all comments received after the initial public comment period ended to ensure that all interested parties would have the opportunity to comment on the proposed designation. Further, although the request for a public hearing was made after the deadline for such requests, we held a public information meeting on February 22, 2012, and a public hearing on June 7, 2012, following the publication that made available the draft economic analysis (77 FR 30988). In short, we have complied with or exceeded all of the notification requirements of the Act.

Economic Impacts and Economic Analysis

(9)
Comment:
Multiple commenters state that designation of critical habitat for the yellowcheek darter would negatively affect the National Championship Chuck Wagon Races by preventing horses from crossing the river or by preventing the event from occurring in the future. Additional comments state that the draft economic analysis (DEA) fails to consider the impacts of designation on the local economy of Van Buren County, Arkansas, where the event takes place. The commenters state that if the event is cancelled, impacts would include loss of business for local restaurants, motels, grocery stores, gas stations, and feed stores, and corresponding losses in local and State tax revenues.

Our Response:
As stated in section 3.2.5 of the DEA, the Service anticipates that the landowner who hosts the 2012 National Championship Chuck Wagon Races could apply for a permit under section 404 of the Clean Water Act (33 U.S.C. 1251
et seq.
) to construct a dam for the races, and may develop a habitat conservation plan that would allow incidental taking of the species under section 10(a)(1)(B) of the Act. Both of these actions would lead to section 7 consultations with the Service. However, conservation measures that the Service would recommend to prevent adverse effects to the species would also most likely prevent adverse modification of critical habitat and would occur regardless of critical habitat designation. It is, therefore, unlikely that critical habitat designation itself would affect the races by preventing horses from crossing the river or preventing the event from occurring. Therefore critical habitat designation is not expected to affect the regional economy.

(10)
Comment:
Multiple commenters state generally that the DEA does not adequately address the economic impacts of proposed critical habitat designation for the yellowcheek darter on cattle ranching, farming, silviculture, natural gas and oil exploration and development, and recreational activities. The commenters request that more studies be done on the economic impacts of the proposed designation. Multiple commenters suggest that the conservation measures that may result from the rule would put a significant burden on small ranching operations and other economic activities. Commenters specifically mention the following measures as being costly and potentially detrimental to their economic well-being: installation of fencing along the river to prevent access by livestock; prohibition of bank stabilization activities; and prohibition on using river water for irrigation purposes.

Our Response:
As described in section 2.3.2 and Appendix D of the DEA, the incremental impacts of critical habitat designation are expected to be limited to any additional administrative costs of section 7 consultations. Voluntary conservation measures suggested by the Service would be recommended regardless of critical habitat designation, in order to avoid adverse effects to the species. Therefore, it is unlikely that critical habitat designation itself would affect ranching, farming, silviculture, natural gas and oil exploration and development, or recreational activities through conservation recommendations such as installing fencing, bank stabilization, or prohibiting use of water for irrigation purposes.

(11)
Comment:
One commenter expresses concern that designation of critical habitat would hamper local fire

department use of river water for rural fire fighting and pump testing.

Our Response:
The local fire departments' use of river water would be unlikely to result in adverse modification of critical habitat due to the small amounts of water used for such activities and the fact that no Federal permit is required for these actions. Because there is no Federal permit required, there is no Federal nexus and no section 7 consultation required for these actions. Therefore, it is unlikely that critical habitat would generate recommendations that would hamper local fire departments' use of river water.

(12)
Comment:
Multiple commenters express concern that their land values will be negatively impacted by the designation of critical habitat and that the DEA does not take into account the impact of critical habitat designation on livelihoods and property values.

Our Response:
The activities that may occur on a parcel of land are not expected to be limited by the designation of critical habitat because critical habitat is only designated below the ordinary high water mark of streams and most activities occurring on lands adjacent to streams do not require Federal actions that would require section 7 consultation. Therefore, direct reductions in land value due to the designation are not expected. However, it is true that section 2.3.2 of the DEA describes the potential indirect regulatory uncertainty or stigma effect that the designation of critical habitat may have on property values. However, due to uncertainty surrounding the likelihood and extent of such indirect impacts, these potential effects are considered speculative. The uncertainty regarding the regulatory requirements associated with critical habitat may diminish as section 7 consultations are completed and additional information becomes available on the effects of critical habitat on specific activities.

(13)
Comment:
One commenter questioned how the DEA forecasts a value of $140,000 for impacts relating to the designation of critical habitat for the yellowcheek darter.

Our Response:
As noted in Exhibit ES-4 of the DEA, the present value of the total incremental costs of critical habitat designation for the yellowcheek darter is $134,000 over the next 20 years, assuming a 7 percent discount rate. These costs reflect additional administrative effort as part of future section 7 consultations in order to consider the potential for activities to result in adverse modification of critical habitat. No change in economic activity levels or the management of economic activities is expected to result from the critical habitat designation.

(14)
Comment:
Multiple commenters express support for the designation of critical habitat for the laurel dace in Tennessee as they believe the designation would help prevent the development of new coal operations near Dayton, TN. Specifically, the comments state that proposed coal mining operations in the area, if initiated, would negatively affect the laurel dace and other species. One comment states that the area where the laurel dace is found is located very close to a “proposed coal processing plant location on Ogden Road, Dayton TN by Iron Properties.”

Our Response:
The DEA discusses known coal mining activity in Tennessee in section 3.2.2. Data from the Office of Surface Mining Reclamation and Enforcement (OSMRE) indicate that there are two pending permits for coal mining activities in the Dayton area of Rhea County, TN. However, only one of these potential projects occurs within a watershed containing laurel dace critical habitat. As indicated in the DEA, this project is located in the watershed containing proposed critical habitat Unit 4 for the laurel dace. As indicated in Exhibit 3-4 of the DEA, it is expected that the Service will consult on this project with OSMRE under the Local Interagency Working Agreement described in section 3.2.2 of the DEA. However, because conservation measures suggested by the Service would be recommended regardless of critical habitat, in order to avoid adverse effects to the species, it is unlikely that critical habitat will generate any additional recommendations that will prevent the development of new coal operations near Dayton, TN.

(15)
Comment:
Multiple commenters elaborate on the potential benefits of the proposed designation. At least one of these commenters suggests that the long-term economic benefits of designation are not adequately addressed in the proposed rule and DEA. Commenters suggest the indirect benefits of critical habitat designation include: water quality and supply improvements, opportunities to generate additional recreation-based economic activities (park visits, hiking, biking, fishing, camping, boating, and service industry), regional small business growth (recreational equipment industry, lodging industry, food industry, gas stations, and other services), increased property values, and increased tax revenues.

Our Response:
As detailed in section 3.4 of the DEA, the analysis does not expect any changes in economic activity levels or the management of economic activities to result from critical habitat designation for the five fishes. Absent these changes, we do not expect the designation to result in any incremental economic benefits, such as water quality improvements, recreational opportunities, and increased property values. The DEA does, however, note that conservation for these species undertaken due to the listing (even absent the designation of critical habitat) may generate the types of benefits described in these comments.

Best Scientific Information

(16)
Comment:
Critical habitat designation for the yellowcheek darter was not based on reliable scientific data and not enough habitat area was surveyed.

Our Response:
The Act requires the Secretary of the Interior to use the best scientific and commercial data available when designating critical habitat for a species.

In fulfilling this requirement, we received and used information on the biology, ecology, distribution, abundance, status, and trends of species from a wide variety of sources. These sources include status surveys, biological assessments, and other unpublished material (that is, “gray literature”) from State natural resource agencies and natural heritage programs, Tribal governments, other Federal agencies, consulting firms, contractors, and individuals associated with professional organizations and higher educational institutions. We also use published articles from professional journals. Service biologists are required to gather, review, and evaluate information from these sources prior to undertaking listing, recovery, consultation, and permitting actions. Additionally, Service biologists surveyed most of the areas proposed as critical habitat for the yellowcheek darter as part of a 2004 threats assessment for the endangered speckled pocketbook mussel (
Lampsilis streckeri
) and yellowcheek darter (Davidson and Wine 2004).

Factors Affecting the Species

(17)
Comment:
One commenter stated that the Cumberland darter is threatened by degradation of water quality from large surface coal mines in the northern coalfields of Scott and Campbell Counties, Tennessee. In addition to this general concern, the commenter was aware of selenium contamination within these same watersheds and was aware of several notices of violation from the Tennessee Department of Environment

and the OSMRE regarding degradation of water quality and impacts to aquatic species within these watersheds. The commenter feared that current mining activities and issuance of new permits would cause further degradation to fish and wildlife habitats in Campbell and Scott Counties.

Our Response:
We concur with the commenter that large surface coal mine operations in Campbell and Scott Counties, Tennessee, are a potential threat to the Cumberland darter, and have the potential to degrade water quality of Cumberland darter streams in these watersheds. Streams associated with surface coal mining and valley fills are typically characterized by elevated conductivity, elevated total dissolved solids, and increased concentrations of sulfate, bicarbonate ions, and metals such as manganese, iron, aluminum, and selenium. Increased levels of selenium have been shown to bioaccumulate in organisms, leading to deformities in larval fish and potentially harming birds that prey on fishes. The final listing rule (75 FR 36035) provided a more detailed analysis of these and other water quality threats to the Cumberland darter under Summary of Factors Affecting the Species (75 FR 36042).

(18)
Comment:
Two commenters raised the possibility that perched culverts or impassable road crossings (fords) represent a threat to the Cumberland darter and suggested that this potential threat may require special management considerations or protection. The commenters explained that perched culverts are common within the upper Cumberland River system, and they often restrict fish movements, as evidenced by lower species diversity observed by the commenters upstream of these culverts. The commenters also suggested that connectivity of Cumberland darter streams could be affected by these barriers, leading to further isolation of these populations and preventing the free exchange of genetic material between populations.

Our Response:
We agree with the commenters that perched culverts represent a potential threat to the Cumberland darter. We, too, have observed perched culverts in the upper Cumberland River system, and we often observe lower species diversity in reaches upstream of these culverts. To address the potential threat posed by these barriers, we have included additional text in the
Special Management Considerations or Protection
section (below) that identifies the threat and lists potential management activities that could ameliorate the threat.

(19)
Comment:
One commenter raised the possibility that agricultural practices pose a threat to the Chucky madtom by eliminating riparian buffers, warming stream temperatures, and introducing fertilizer into the water.

Our Response:
We agree with the commenter that agriculture can pose a threat to the Chucky madtom. We have included additional text in the
Special Management Considerations or Protection
section (below) that identifies the threat and lists potential management activities that could ameliorate the threat.

(20)
Comment:
Two commenters raised the concern that coal exploration in the Rock Creek Lands Unsuitable for Mining area indicates a potential threat to the laurel dace from future coal mining in the southern coalfield areas of Tennessee.

Our Response:
We agree with the commenters that possible future coal mining in southern Tennessee represents a potential threat to the laurel dace. To address the potential threat posed by coal mining and acid mine drainage, we have included additional text in the
Special Management Considerations or Protection
section that identifies the threat and lists potential management activities that could ameliorate the threat.

Summary of Changes From Proposed Rule

In preparing this final critical habitat designation for the Cumberland darter, rush darter, yellowcheek darter, Chucky madtom, and laurel dace, we reviewed and considered comments from the public on the proposed designation of critical habitat published on October 12, 2011 (76 FR 63360) and our announcement of the availability of the DEA published on May 24, 2012 (77 FR 30988). We likewise reviewed and considered comments from a public informational meeting held on February 22, 2012, and a public hearing held on June 7, 2012, both in Clinton, Arkansas. As a result of public comments and peer review, we made changes to our designation of critical habitat for these five fishes. These changes are as follows:

(1) We added additional threats information for the Cumberland darter, rush darter, Chucky madtom, and laurel dace.

(2) We capitalized the common name of the Chucky madtom, to reflect the fact that it is named after Little Chucky Creek, and is therefore, a proper noun. We updated a reference for Chucky madtom habitat and threats, and clarified that Little Chucky Creek is the entire current range (but not the entire historic range) of the Chucky madtom in the
Criteria Used to Identify Critical Habitat
section.

(3) We updated the total number of river kilometers for the Cumberland darter unit 1, and all four yellowcheek darter units, due to a change in mapping methodology. The beginning and ending points of critical habitat, as well as the unit descriptions (as described in the proposed critical habitat rule) remain the same. The change in mapping results from standardizing methods used to estimate the unit lengths designated as critical habitat for all five species. This methodology better follows the meander of the river channel and results in an additional 0.5 river kilometers (rkm) (0.3 river miles (rmi)) for the Cumberland darter, and an additional 6.6 rkm (4.1 rmi) for the yellowcheek darter.

(4) We revised the ownership of one property for the yellowcheek darter critical habitat, resulting in a change of the total number of river kilometers in private ownership from 148 rkm (92 rmi) to 162.7 rkm (101.1 rmi), as well as a corresponding downward revision in the other ownership types.

(5) We revised the
Energy Supply, Distribution, or Use—Executive Order 13211
section to state that coal mining could potentially occur in one of six critical habitat units for the laurel dace.

(6) We added a spring run and associated wetlands to Unit 2 as critical habitat for the rush darter. This 0.13 ha (0.32 ac) spring associated wetland and 85.8 m (0.05 mi) spring run is adjacent to the headwaters of the Unnamed Tributary to Beaver Creek and is privately owned.

(7) We corrected errors in calculating total length and area in Table 2 for the rush darter.

Critical Habitat

Background

Critical habitat is defined in section 3 of the Act as:

(1) The specific areas within the geographical area occupied by the species, at the time it is listed in accordance with the Act, on which are found those physical or biological features

(a) Essential to the conservation of the species and

(b) Which may require special management considerations or protection; and

(2) Specific areas outside the geographical area occupied by the species at the time it is listed, upon a determination that such areas are

essential for the conservation of the species.

Conservation, as defined under section 3 of the Act, means to use and the use of all methods and procedures that are necessary to bring an endangered or threatened species to the point at which the measures provided under the Act are no longer necessary. Such methods and procedures include, but are not limited to, all activities associated with scientific resources management such as research, census, law enforcement, habitat acquisition and maintenance, propagation, live trapping, and transplantation, and, in the extraordinary case where population pressures within a given ecosystem cannot be otherwise relieved, may include regulated taking.

Critical habitat receives protection under section 7 of the Act through the requirement that Federal agencies ensure, in consultation with the Service, that any action they authorize, fund, or carry out is not likely to result in the destruction or adverse modification of critical habitat. The designation of critical habitat does not affect land ownership or establish a refuge, wilderness, reserve, preserve, or other conservation area. Such designation does not allow the government or public to access private lands. Such designation does not require implementation of restoration, recovery, or enhancement measures by non-Federal landowners. Where a landowner seeks or requests Federal agency funding or authorization for an action that may affect a listed species or critical habitat, the consultation requirements of section 7(a)(2) would apply, but even in the event of a destruction or adverse modification finding, the obligation of the Federal action agency and the landowner is not to restore or recover the species, but to implement reasonable and prudent alternatives to avoid destruction or adverse modification of critical habitat.

Under the first prong of the Act's definition of critical habitat, areas within the geographical area occupied by the species at the time it was listed are included in a critical habitat designation if they contain physical or biological features (1) which are essential to the conservation of the species and (2) which may require special management considerations or protection. For these areas, critical habitat designations identify, to the extent known using the best scientific and commercial data available, those physical or biological features that are essential to the conservation of the species (such as space, food, cover, and protected habitat). In identifying those physical and biological features within an area, we focus on the principal biological or physical constituent elements (primary constituent elements such as roost sites, nesting grounds, seasonal wetlands, water quality, tide, soil type) that are essential to the conservation of the species. Primary constituent elements are the elements of physical or biological features that, when laid out in the appropriate quantity and spatial arrangement to provide for a species' life-history processes, are essential to the conservation of the species.

Under the second prong of the Act's definition of critical habitat, we can designate critical habitat in areas outside the geographical area occupied by the species at the time it is listed, upon a determination that such areas are essential for the conservation of the species. For example, an area currently occupied by the species but that was not occupied at the time of listing may be essential to the conservation of the species and may be included in the critical habitat designation. We designate critical habitat in areas outside the geographical area occupied by a species only when a designation limited to its range would be inadequate to ensure the conservation of the species.

Section 4 of the Act requires that we designate critical habitat on the basis of the best scientific and commercial data available. Further, our Policy on Information Standards Under the Endangered Species Act (published in the
Federal Register
on July 1, 1994 (59 FR 34271)), the Information Quality Act (section 515 of the Treasury and General Government Appropriations Act for Fiscal Year 2001 (Pub. L. 106-554; H.R. 5658)), and our associated Information Quality Guidelines, provide criteria, establish procedures, and provide guidance to ensure that our decisions are based on the best scientific data available. They require our biologists, to the extent consistent with the Act and with the use of the best scientific data available, to use primary and original sources of information as the basis for recommendations to designate critical habitat.

When we are determining which areas should be designated as critical habitat, our primary source of information is generally the information developed during the listing process for the species. Additional information sources may include the recovery plan for the species, articles in peer-reviewed journals, conservation plans developed by States and counties, scientific status surveys and studies, biological assessments, other unpublished materials, or experts' opinions or personal knowledge.

Habitat is dynamic, and species may move from one area to another over time. We recognize that critical habitat designated at a particular point in time may not include all of the habitat areas that we may later determine are necessary for the recovery of the species. For these reasons, a critical habitat designation does not signal that habitat outside the designated area is unimportant or may not be needed for recovery of the species. Areas that are important to the conservation of the species, both inside and outside the critical habitat designation, will continue to be subject to: (1) Conservation actions implemented under section 7(a)(1) of the Act, (2) regulatory protections afforded by the requirement in section 7(a)(2) of the Act for Federal agencies to insure their actions are not likely to jeopardize the continued existence of any endangered or threatened species, and (3) the prohibitions of section 9 of the Act if actions occurring in these areas may affect the species. Federally funded or permitted projects affecting listed species outside their designated critical habitat areas may still result in jeopardy findings in some cases. These protections and conservation tools will continue to contribute to recovery of this species. Similarly, critical habitat designations made on the basis of the best available information at the time of designation will not control the direction and substance of future recovery plans, habitat conservation plans (HCPs), or other species conservation planning efforts if new information available at the time of these planning efforts calls for a different outcome.

Physical and Biological Features

In accordance with sections 3(5)(A)(i) and 4(b)(1)(A) of the Act and regulations at 50 CFR 424.12, in determining which areas within the geographical area occupied by the species at the time of listing to designate as critical habitat, we consider the physical or biological features essential to the conservation of the species and which may require special management considerations or protection. These include, but are not limited to:

(1) Space for individual and population growth and for normal behavior;

(2) Food, water, air, light, minerals, or other nutritional or physiological requirements;

(3) Cover or shelter;

(4) Sites for breeding, reproduction, or rearing (or development) of offspring; and

(5) Habitats that are protected from disturbance or are representative of the historical, geographical, and ecological distribution of a species.

We derive the specific physical or biological features essential for the Cumberland darter, rush darter, yellowcheek darter, Chucky madtom, and laurel dace from studies of these species' habitats, ecology, and life history as described in the Critical Habitat section of the proposed rule to designate critical habitat published in the
Federal Register
on October 12, 2011 (76 FR 63360), and in the information presented below. Additional information can be found in the final listing rule published in the
Federal Register
on August 9, 2011 (76 FR 48722). We have determined that these five species require the physical or biological features described below.

Space for Individual and Population Growth and for Normal Behavior

Cumberland Darter

Little is known about the specific space requirements of the Cumberland darter; however, the species is typically found in low to moderate gradient, second- to fourth-order, geomorphically stable streams, where it occupies shallow pools or runs with gentle current over sand or sand-covered bedrock substrates with patches of gravel or debris (O'Bara 1991, p. 10; Thomas 2007, p. 4). Geomorphically stable streams transport sediment while maintaining their horizontal and vertical dimensions (width to depth ratio and cross-sectional area), pattern (sinuosity), and longitudinal profile (riffles, runs, and pools), thereby conserving the physical characteristics of the stream, including bottom features such as riffles, runs, and pools and the transition zones between these features. The protection and maintenance of these habitat features accommodate spawning, rearing, growth, migration, and other normal behaviors of the Cumberland darter.

Limited information exists with regard to upstream or downstream movements of Cumberland darters; however, Winn (1958a, pp. 163-164) reported considerable pre-spawn movements for its closest relative, the Johnny darter. In Beer Creek, Monroe County, Michigan, Johnny darters migrated several miles between temporary stream habitats and permanent pools in downstream reaches. Recent capture data for tagged individuals in Cogur Fork, McCreary County, Kentucky, demonstrate that Cumberland darters may make similar movements (Thomas 2010, pers. comm.). Individuals tagged and released by the Kentucky Department of Fish and Wildlife Resources (KDFWR) and Conservation Fisheries, Inc. (CFI), traveled distances ranging from 0.4 to 0.7 rkm (0.2 to 0.4 rmi) between their release date of September 22, 2010, and their recapture date of November 9, 2010 (period of 48 days) (Thomas 2010, pers. comm.). Over longer periods, it is likely that Cumberland darters can utilize stream reaches longer than 0.7 rkm (0.4 rmi).

The current range of the Cumberland darter has been reduced to 13 streams (15 occurrences) due to destruction and fragmentation of habitat. Fragmentation of the species' habitat has subjected these small populations to genetic isolation, reduced space for rearing and reproduction, reduced adaptive capabilities, and an increased likelihood of local extinctions (Burkhead
et al.
1997, pp. 397-399; Hallerman 2003, pp. 363-364). Genetic variation and diversity within a species are essential for recovery, adaptation to environmental change, and long-term viability (capability to live, reproduce, and develop) (Noss and Cooperrider 1994, pp. 282-297; Harris 1984, pp. 93-107; Fluker
et al.
2007, p. 2). The long-term viability of a species is founded on the conservation of numerous local populations throughout its geographic range (Harris 1984, pp. 93-104). Connectivity of these habitats is essential in preventing further fragmentation and isolation of Cumberland darter populations and promoting species movement and genetic flow between populations.

Therefore, based on the information above, we identify shallow pools and runs and associated stream segments of geomorphically stable, second- to fourth-order streams to be an essential physical or biological feature for the Cumberland darter. The connectivity of these habitats is essential in accommodating feeding, breeding, growth, and other normal behaviors of the Cumberland darter and in promoting gene flow within the species.

Rush Darter

Little is known about the specific space requirements of the rush darter in the Turkey Creek, Little Cove-Bristow Creek, and Clear Creek systems (Boschung and Mayden 2004, p. 551); however, in general, darters depend on space within geomorphically stable streams with varying water quantities and flow. Specifically, rush darters appear to prefer springs and spring-fed reaches of relatively low-gradient, small streams (Bart and Taylor 1999, p. 32; Johnston and Kleiner 2001, pp. 3-4; Stiles and Blanchard 2001, pp. 1-4; Bart 2002, p. 1; Fluker
et al.
2007, p. 1; Stiles and Mills 2008, pp. 1-4) and wetland pools (Stiles and Mills 2008, pp. 2-3). This species also relies heavily on aquatic vegetation (Fluker
et al.
2007, p. 1) including: Root masses of emergent vegetation along the margins of spring-fed streams in very shallow, clear, cool, and flowing water; and both small clumps and dense stands of watercress (
Nasturtium officinale
), parrots feather (
Myriophyllum
sp
.
), rushes (
Juncus
spp.), sedges (
Carex
spp.), bur reed (
Sparganium
sp.), and coontail (
Ceratophyllum
sp.). The rush darter inhabits streams with substrates of silt, sand, sand and silt, muck and sand or some gravel with sand, and bedrock.

Geomorphically stable streams transport sediment while maintaining their horizontal and vertical dimensions (width to depth ratio and cross-sectional area), pattern (sinuosity), and longitudinal profile (riffles, runs, and pools), thereby conserving the physical characteristics of the stream, including bottom features such as riffles, runs, and pools and the transition zones between these features that contain some silt, sand, and finer substrates. The riffles, runs, and pools not only provide space for the rush darter, but also provide space for emergent vegetation in shallow water along the margins of the small streams and springs for cover, and shelter necessary for breeding, reproduction, and growth of offspring.

The current range of the rush darter within the entire Turkey Creek, Clear Creek, and Little Cove-Bristow Creek watersheds is reduced to localized sites due to fragmentation, separation, and destruction of rush darter habitats and populations. There are dispersal barriers (pipes and culverts for road crossings; channelized stream segments; and emergent aquatic plant control, which eliminates cover habitat for the species) and an increased amount of water extraction, which results in insufficient aquifer recharge zones that may contribute to the separation and isolation of rush darter populations and affect water quality. Fragmentation of the species' habitat has isolated populations and reduced available spaces for rearing and reproduction, thereby reducing adaptive capability and increasing the likelihood of local extinctions (Burkhead
et al.
1997, pp. 397-399; Hallerman 2003, pp. 363-364). Genetic variation and diversity within a species are essential for recovery, adaptation to environmental changes, and long-term viability (capability to

live, reproduce, and develop) (Harris 1984, pp. 93-107; Noss and Cooperrider 1994, pp. 282-297; Fluker
et al.
2007, p. 2). Long-term viability is founded on numerous interbreeding, local populations throughout the range (Harris 1984, pp. 93-107). Continuity of water flow between suitable habitats is essential in preventing further fragmentation of the species' habitat and populations, conserving the essential emergent vegetation in shallow water on the margins of small streams and springs, and promoting genetic flow throughout the populations. Continuity of habitat will maintain spawning, foraging, and resting sites, and allow for gene flow throughout the population. Connectivity of habitats, as a whole, also permits improvement in water quality and water quantity by allowing unobstructed water flow throughout the connected habitats.

Therefore, based on the information above, we identify springs and spring-fed reaches of relatively low-gradient, geomorphically stable streams with emergent vegetation to be an essential physical or biological feature for the rush darter. The connectivity of these habitats is essential in accommodating feeding, breeding, growth, and other normal behaviors of the rush darter and in promoting gene flow within the species.

Yellowcheek Darter

The yellowcheek darter is typically found in clear, high-gradient, second- to fifth-order, geomorphically stable streams that maintain permanent year-round flows (Robison and Buchanan 1988, p. 429). The species occupies riffles with moderate to fast current over gravel, cobble, and boulder substrates (Robison and Buchanan 1988, p. 429). Geomorphically stable streams transport sediment while maintaining their horizontal and vertical dimensions (width to depth ratio and cross-sectional area), pattern (sinuosity), and longitudinal profile (riffles, runs, and pools), thereby conserving the physical characteristics of the stream, including bottom features such as riffles, runs, and pools and the transition zones between these features. The protection and maintenance of these habitat features accommodate spawning, rearing, growth, migration, and other normal behaviors of the yellowcheek darter.

In 1962, the construction of Little Red River Dam to create Greers Ferry Reservoir impounded much of the range of the yellowcheek darter, including the lower reaches of Devil's Fork, Middle Fork, South Fork, and portions of the main stem Little Red River, thus extirpating the species from these reaches. The yellowcheek darter was also extirpated from the Little Red River downstream of Greers Ferry Reservoir due to cold tailwater releases. The lake flooded optimal habitat for the species, and caused genetic isolation of populations (McDaniel 1984, p. 1), with only the South and Archey forks of the Little Red River maintaining a non-inundated confluence.

As stated earlier, of the four streams supporting the yellowcheek darter, only the South and Archey forks maintain a non-inundated confluence. Instream habitat at the confluence of the two streams is suboptimal due to previous channelization, but restoration could provide an opportunity for vital population interactions between streams to maintain genetic diversity. Fragmentation of the species' habitat has subjected these small populations to genetic isolation, reduced space for rearing and reproduction, reduced adaptive capabilities, and an increased likelihood of local extinctions (Burkhead
et al.
1997, pp. 397-399; Hallerman 2003, pp. 363-364). Genetic variation and diversity within a species are essential for recovery, adaptation to environmental change, and long-term viability (capability to live, reproduce, and develop) (Harris 1984, pp. 93-107; Noss and Cooperrider 1994, pp. 282-297; Fluker
et al.
2007, p. 2). The long-term viability of a species is founded on the conservation of numerous local populations throughout its geographic range (Harris 1984, pp. 93-104). Connectivity of these habitats is essential to prevent further fragmentation and isolation of yellowcheek darter populations and to promote species movement and genetic flow between populations.

Therefore, based on the information above, we identify riffles of geomorphically stable, second- to fifth-order streams to be an essential physical or biological feature for the yellowcheek darter. The connectivity of these habitats is essential to accommodate feeding, breeding, growth, and other normal behaviors of the yellowcheek darter and to promote gene flow within the species.

Chucky Madtom

Little is known about the specific space requirements of the Chucky madtom; however, all of the specimens collected in Little Chucky Creek have been found in shallow pool and run habitats with slow to moderate current over pea gravel, cobble, or slab-rock boulder substrates (Burr
et al.
2005, p. 797). Geomorphically stable streams transport sediment while maintaining their horizontal and vertical dimensions (width to depth ratio and cross-sectional area), pattern (sinuosity), and longitudinal profile (riffles, runs, and pools), thereby conserving the physical characteristics of the stream, including bottom features, such as riffles, runs, and pools and the transition zones between these features. The protection and maintenance of these habitat features accommodate spawning, rearing, growth, migration, and other normal behaviors of the Chucky madtom.

The current range of the Chucky madtom has been reduced to only one stream due to fragmentation and destruction of habitat. Habitat fragmentation has subjected the small population to genetic isolation, reduced space for rearing and reproduction, reduced adaptive capabilities, and increased the likelihood of extinction (Burkhead
et al.
1997, pp. 397-399; Hallerman 2003, pp. 363-364). Genetic variation and diversity within a species are essential for recovery, adaptation to environmental change, and long-term viability (capability to live, reproduce, and develop) (Harris 1984, pp. 93-107; Noss and Cooperrider 1994, pp. 282-297; Fluker
et al.
2007, p. 2). The long-term viability of a species is founded on the conservation of numerous local populations throughout its geographic range (Harris 1984, pp. 93-104). Connecting instream habitats is essential in preserving the genetic viability of the Chucky madtom in Little Chucky Creek.

Therefore, based on the information above, we identify shallow pools and runs of geomorphically stable streams to be an essential physical or biological feature for the Chucky madtom. The connectivity of these habitats is essential to accommodate feeding, breeding, growth, and other normal behaviors of the Chucky madtom and to promote gene flow within the species.

Laurel Dace

Little is known about the specific space requirements of the laurel dace; however, the species is typically found in low to moderate gradient, first- to second-order, geomorphically stable streams. The laurel dace occupies pools or slow runs beneath undercut banks or slab-rock boulders in clear, cool (maximum temperature 26 °C (78.8 °F)) streams. Substrates in streams where laurel dace are found typically consist of a mixture of cobble, rubble, and boulders, and the streams tend to have a dense riparian zone consisting largely of mountain laurel (Skelton 2001, pp. 125-126).

Geomorphically stable streams transport sediment while maintaining

their horizontal and vertical dimensions (width to depth ratio and cross-sectional area), pattern (sinuosity), and longitudinal profile (riffles, runs, and pools), thereby conserving the physical characteristics of the stream, including bottom features such as riffles, runs, and pools and the transition zones between these features. The protection and maintenance of these habitat features accommodate spawning, rearing, growth, migration, and other normal behaviors of the laurel dace.

Strange and Skelton (2005, p. 8) assessed the genetic structure within populations of laurel dace, and, based on distribution of genetic diversity among populations, they recognized two genetically distinct management units: (1) The southern populations in Sale and Soddy creeks, and (2) the northern population in the Piney River system.

The current range of the laurel dace has been reduced to short reaches (approximately 0.3 to 8 rkm (0.2 to 5 rmi) in length) of six streams due to fragmentation and destruction of habitat. Fragmentation of the species' habitat has subjected these small populations to genetic isolation, reduced space for rearing and reproduction, reduced adaptive capabilities, and an increased likelihood of local extinctions (Burkhead
et al.
1997, pp. 397-399; Hallerman 2003, pp. 363-364). Genetic variation and diversity within a species are essential for recovery, adaptation to environmental change, and long-term viability (capability to live, reproduce, and develop) (Harris 1984, pp. 93-107; Noss and Cooperrider 1994, pp. 282-297; Fluker
et al.
2007, p. 2). The long-term viability of a species is founded on the conservation of numerous local populations throughout its geographic range (Harris 1984, pp. 93-104). Connectivity of these habitats is essential in preventing further fragmentation and isolation of laurel dace populations.

Therefore, based on the information above, we identify shallow pools and runs and associated stream segments of geomorphically stable, first- to second-order streams with riparian vegetation to be an essential physical or biological feature for the laurel dace. The connectivity of these habitats is essential in accommodating feeding, breeding, growth, and other normal behaviors of the laurel dace and in promoting gene flow within the species.

Food, Water, Air, Light, Minerals, or Other Nutritional or Physiological Requirements

Cumberland Darter

Feeding habits of the Cumberland darter are unknown but are likely similar to that of its sister species, the Johnny darter (
Etheostoma nigrum
Rafinesque). Johnny darters are diurnal sight feeders, with prey items consisting of midge larvae, mayfly nymphs, caddisfly larvae, and microcrustaceans (Kuehne and Barbour 1983, p. 104; Etnier and Starnes 1993, p. 511). Similar to other darters, juvenile Cumberland darters likely feed on planktonic organisms or other small invertebrates.

Like most other darters, the Cumberland darter depends on perennial stream flows that create suitable habitat conditions needed for successful completion of its life cycle. An ample supply of flowing water provides a means of transporting nutrients and food items, moderating water temperatures and dissolved oxygen levels, removing fine sediments that could damage spawning or foraging habitats, and diluting nonpoint source pollutants. Water withdrawals do not represent a significant threat to the species, but the species is faced with occasional low-flow conditions that occur during periods of drought. One such event occurred in the summer and fall of 2007, when recorded streamflows in the upper Cumberland River basin of Kentucky and Tennessee (USGS Station Number 03404000) were among the lowest monthly values of the last 67 years (Cinotto 2008, pers. comm.).

Water quality is also important to the persistence of the Cumberland darter. The species requires relatively clean, cool, flowing water to successfully complete its life cycle, but specific water quality requirements (such as temperature, dissolved oxygen, pH, and conductivity) that define suitable habitat conditions for the Cumberland darter have not been determined. In general, optimal water quality conditions for fishes and other aquatic organisms are characterized by moderate stream temperatures, acceptable dissolved oxygen concentrations, and the lack of harmful levels of pollutants, such as inorganic contaminants like iron, manganese, selenium, and cadmium; organic contaminants such as human and animal waste products; pesticides and herbicides; nitrogen, potassium, and phosphorus fertilizers; and petroleum distillates.

Sediment is the most common pollutant within the upper Cumberland River system (KDOW 1996, pp. 50-53, 71-75; 2002, pp. 39-40; 2006, pp. 178-185), and the primary sources of sediment include resource extraction (e.g., coal mining, silviculture, natural gas development), agriculture, road construction, and urban development (Waters 1995, pp. 2-3; Skelton 1997, pp. 17, 19; KDOW 2006, pp. 178-185; Thomas 2007, p. 5). Siltation (excess sediments suspended or deposited in a stream) has been shown to abrade and suffocate bottom-dwelling organisms; reduce aquatic insect diversity and abundance; impair fish feeding behavior by altering prey base and reducing visibility of prey; impair reproduction due to burial of nests; and, ultimately, negatively impact fish growth, survival, and reproduction (Waters 1995, pp. 5-7, 55-62; Knight and Welch 2001, pp. 134-136). O'Bara (1991, p. 11) reported that Cumberland darter habitats are very susceptible to siltation because of the habitat's low to moderate gradient, low velocity, and shallow depth. O'Bara (1991, p. 11) concluded that siltation was the major limiting factor for the species' continued existence and its ability to colonize new stream systems.

Cumberland darters are threatened by water quality degradation caused by a variety of nonpoint source pollutants. Coal mining represents a major source of nonpoint source pollutants (O'Bara 1991, p. 11; Thomas 2007, p. 5), because it has the potential to contribute high concentrations of dissolved metals and other solids that lower stream pH or lead to elevated levels of stream conductivity (Pond 2004, pp. 6-7, 38-41; Mattingly
et al.
2005, p. 59). These impacts have been shown to negatively affect fish species, including listed species, in the Clear Fork system of the Cumberland basin (Weaver 1997, pp. 29; Hartowicz 2008, pers. comm.). The direct effect of elevated stream conductivity on fishes, including the Cumberland darter, is poorly understood, but some species, such as blackside dace (
Chrosomus cumberlandensis
), have shown declines in abundance over time as conductivity increased in streams affected by mining (Hartowicz 2008, pers. comm.). Other nonpoint source pollutants that affect the Cumberland darter include domestic sewage (through septic tank leakage or straight pipe discharges); agricultural pollutants such as fertilizers, pesticides, herbicides, and animal waste; and other chemicals associated with oil and gas development. Nonpoint source pollutants can cause excess nutrification (increased levels of nitrogen and phosphorus), excessive algal growth, instream oxygen deficiencies, increased acidity and conductivity, and other

changes in water chemistry that can negatively impact aquatic species (KDOW 1996, pp. 48-50; 2006, pp. 70-73).

Therefore, based on the information above, we identify aquatic macroinvertebrate prey items; permanent surface flows, as measured during average rainfall years; and adequate water quality with substrates that are relatively silt-free to be an essential physical or biological feature for the Cumberland darter. Relatively silt-free is defined for the purpose of this rule as silt or fine sand within interstitial spaces of substrates in amounts low enough to have minimal impact to the species.

Rush Darter

Feeding habits of the rush darter are unknown but are likely similar to that of its sister species, the goldstripe darter (
Etheostoma parvipinne
). The goldstripe darter is a benthic (bottom) insectivore and is known to consume midge larvae, mayfly nymphs, blackfly larvae, beetles, and microcrustaceans (Mettee
et al.
1996, p. 655). Extremes in variations in instream flows maintain the stream bottom substrates, providing oxygen and other attributes to various invertebrate life stages. Sedimentation has been shown to wear away and suffocate periphyton (organisms that live attached to objects underwater), disrupt aquatic insect communities (Waters 1995, pp. 53-86; Knight and Welch 2001, pp. 132-135), and reduce photosynthesis in aquatic vegetation. In addition, nutrification promotes heavy algal growth that covers and eliminates the clean rock, gravel, and vegetative habitats necessary for rush darter feeding. Thus, a decrease in water quality and instream flow would correspondingly cause a decline in the major food species for the rush darter. On the other hand, excessive instream flow can also damage and uproot aquatic vegetation necessary for foraging and feeding habitat.

Much of the cool, clean water provided to the Turkey Creek system (Beaver Creek, Unnamed Tributary to Beaver Creek, Tapawingo or Penny Springs and the Highway 79 site; Jefferson County) and Cove Spring run of Little Cove Creek (Etowah County) comes from consistent and steady groundwater sources (springs and seeps). Clear, flowing water provides a means for transporting nutrients and food items, moderating water temperatures and dissolved oxygen levels, and diluting nonpoint and point source pollution. Without clean water sources, water quality and water quantity would be considerably lower and would significantly impair the normal life stages and behavior of the rush darter.

Favorable water quantity for the rush darter includes moderate water velocity in riffles and no flow or low flow in pools (Stiles and Mills 2008, pp. 1-4), a continuous daily discharge that allows for longitudinal connectivity within the species' habitat (Instream Flow Council 2004, p. 117), and discharge from both surface water runoff and groundwater sources (springs and seepages). Along with the continuous daily discharge, both minimum and flushing flows are necessary to remove fine sediments and dilute other pollutants (Moffett and Moser 1978, pp. 20-21; Gilbert
et al.,
eds. 1994, pp. 505-522; Instream Flow Council 2004, pp. 103-104; Drennen 2009, pers. obs.). At some sites, water depth ranges from 3.0 to 50 cm (0.1 to 1.6 ft). Groundwater provides a constant source of flows to dilute pollutants and maintain water quality for the persistence of the rush darter.

Factors that can potentially alter water quality include: Droughts and periods of low seasonal flow, precipitation events, nonpoint source runoff, human activities within the watershed, random spills, unregulated stormwater discharge events (Instream Flow Council

2004, pp. 29-50), and water extraction. Instream pooling may also affect water quality by reducing water flow, altering temperatures, concentrating pollutants (Blanco and Mayden 1999, pp. 5-6, 36), and retarding aquatic and emergent vegetation growth.

Fishes require acceptable levels of dissolved oxygen. Generally, among fishes, the young life forms require more dissolved oxygen and are the most sensitive. The amount of dissolved oxygen that is present in the water (the saturation level) depends upon water temperature. As water temperature increases, the saturated dissolved oxygen level decreases. The more oxygen there is in the water, the greater the assimilative capacity (ability to consume organic wastes with minimal impact) of that water; lower water flows have a reduced assimilative capacity (Pitt 2000, pp. 6-7). Low-flow conditions affect the chemical environment occupied by fishes; extended low-flow conditions coupled with higher pollutant levels could likely result in behavioral changes within all life stages, which could be particularly detrimental to early life stages (e.g., embryo, larvae, and juvenile).

Optimal water quality lacks harmful levels of pollutants, such as inorganic contaminants like copper, arsenic, mercury, and cadmium; organic contaminants such as human and animal waste products; endocrine-disrupting chemicals; pesticides; nitrogen, potassium, and phosphorous fertilizers; and petroleum distillates (Alabama Department of Environmental Management (ADEM) 1996, pp. 13-15). Sediment is the most abundant pollutant produced in the Mobile River Basin (ADEM 1996, pp. 13-15). Siltation (excess sediments suspended or deposited in a stream) contributes to turbidity of the water and has been shown to reduce photosynthesis in aquatic plants, suffocate aquatic insects, smother fish eggs, clog fish gills, and may fill in essential interstitial spaces (spaces between stream substrates) used by aquatic organisms for spawning and foraging; therefore, excessive siltation negatively impacts fish growth, physiology, behavior, reproduction, and survival. Nutrification (excessive nutrients present, such as nitrogen and phosphorous) promotes heavy algal growth that covers and eliminates clean rock or gravel habitats and aquatic and emergent vegetation, which are necessary for rush darter feeding and spawning. Generally, early life stages of fishes are less tolerant of environmental contamination than adults or juveniles (Little
et al.
1993, p. 67). Appropriate water quality and quantity are necessary to dilute impacts from stormwater and other unnatural effluents. Harmful levels of pollutants impair critical behavior processes in fishes, as reflected in population-level responses (reduced population size, biomass, year class success, etc.). However, excessive water quantity in the form of substantial stormwater runoff may destabilize and move bottom and bankside substrates and increase instream sedimentation.

Essential water quality attributes for darters and other fish species in fast to medium water flow streams include the following: Dissolved oxygen levels greater than 6 parts per million (ppm), temperatures between 7 and 26.7 °C (45 and 80 °F) with spring egg incubation temperatures from 12.2 to 18.3 °C (54 to 65 °F), a specific conductance (ability of water to conduct an electric current, based on dissolved solids in the water) of less than approximately 225 micro Siemens per cm at 26.7 °C (80 °F), and low concentrations of free or suspended solids (organic and inorganic sediments) less than 10 Nephelometric Turbidity Units (NTU; units used to measure sediment discharge) and 15 milligrams/Liter (mg/L) total suspended solids (TSS; measured as mg/L of sediment in water) (Teels
et al.
1975, pp. 8-9; Ultschet
et al.
1978, pp. 99-101; Ingersoll
et al.
1984, pp. 131-138;

Kundell and Rasmussen 1995, pp. 211-212; Henley
et al.
2000, pp. 125-139; Meyer and Sutherland 2005, pp. 43-64).

Therefore, based on the information above, we identify cool, clean, flowing water; shallow depths; moderate water velocity in riffles and low flow in pools; aquatic macroinvertebrate prey items; aquatic vegetation; and adequate water quality to be an essential physical or biological feature for the rush darter.

Yellowcheek Darter

Adult and juvenile yellowcheek darters' prey items include blackfly larvae, stonefly larvae, mayfly nymphs, and caddisfly larvae among other stream insects (McDaniel 1984, p. 56). McDaniel (1984, p. 37) noted a strong selectivity by yellowcheek darters for fly larvae year round, while other prey taxa were consumed proportionally depending on seasonal availability. Larval stages of yellowcheek darters have not been studied in the field but are assumed to feed on planktonic organisms based on laboratory rearing efforts and known larval fish dietary habits.

Drought conditions and low water levels have been identified as contributing factors in the decline of the yellowcheek darter (Wine
et al.
2000, p. 11). Expanding natural gas development activities that began in the upper Little Red River watershed in 2005 require large quantities of water and pose a threat to the continued existence of the yellowcheek darter (75 FR 36045, June 24, 2010). Water diversion from the Middle and South forks has increased in recent years due to large-scale extraction of natural gas in the Fayetteville Shale (which encompasses nearly all of the upper Little Red River drainage). Natural gas development is imminent in the Archey and Devil's forks as well and is predicted to affect numerous tributaries in all four watersheds. Because the yellowcheek darter requires permanent flows with moderate to strong current (Robison and Buchanan 1988, p. 429), seasonal fluctuations in stream flows exacerbated by water diversion for natural gas, agricultural, municipal, or other land uses represent a serious threat to the species.

In addition to water quantity, water quality is also important to the persistence of the yellowcheek darter. Although the Middle Fork is designated as an Extraordinary Resource Water, it is listed as impaired along a 33.5-km (20.8-mi) reach due to fecal coliform bacteria contamination according to the Arkansas Department of Environmental Quality (ADEQ) List of Impaired Waterbodies. This same report listed a 3.2-km (2.0-mi) stretch of the South Fork as impaired due to elevated mercury levels (ADEQ 2010, p. 22). Boston Mountain streams that support the yellowcheek darter are typically characterized by adequate water quality; however, increasing activity within the watersheds related to resource extraction, urban development, and other human-related activities is reason for concern regarding the recovery potential of the yellowcheek darter.

Therefore, based on the information above, we identify aquatic macroinvertebrate prey items; permanent surface flows, as measured during average rainfall years; moderate to strong water velocity in riffles; and adequate water quality to be an essential physical or biological feature for the yellowcheek darter.

Chucky Madtom

The Chucky madtom's prey items are unknown; however, least madtom (
Noturus hildebrandi
) prey items include midge larvae, caddisfly larvae, stonefly larvae, and mayfly nymphs (Mayden and Walsh 1984, p. 339). In smoky madtoms, mayfly nymphs comprised 70.7 percent of stomach contents analyzed, followed by fly, mosquito, midge, and gnat larvae (2.4 percent); caddisfly larvae (4.4 percent); and stonefly larvae (1.0 percent) (Dinkins and Shute 1996, p. 61). Significant daytime feeding was observed in smoky madtoms.

The TVA Index of Biological Integrity results indicate that Little Chucky Creek is biologically impaired (Middle Nolichucky Watershed Alliance 2006, p. 13). Given the predominantly agricultural land use within the Little Chucky Creek watershed, nonpoint source sediment and agrochemical discharges may pose a threat to the Chucky madtom by altering the physical characteristics of its habitat, thus potentially impeding its ability to feed, seek shelter from predators, and successfully reproduce. The City of Greeneville also discharges sediments and contaminants into the creek, thereby threatening the Chucky madtom. Wood and Armitage (1997, pp. 211-212) identify at least five impacts of sedimentation on fish, including: (1) Reduction of growth rate, disease tolerance, and gill function; (2) reduction of spawning habitat and egg, larvae, and juvenile development; (3) modification of migration patterns; (4) reduction of food availability through the blockage of primary production; and (5) reduction of foraging efficiency.

Water quality is important to the persistence of the Chucky madtom. The species requires relatively clean, cool, flowing water to successfully complete its life cycle, but specific water quality requirements (such as temperature, dissolved oxygen, pH, and conductivity) that define suitable habitat conditions for the Chucky madtom have not been determined. In general, optimal water quality conditions for fishes and other aquatic organisms are characterized by moderate stream temperatures and acceptable dissolved oxygen concentrations, and they lack harmful levels of pollutants, such as inorganic contaminants like iron, manganese, selenium, and cadmium; organic contaminants such as human and animal waste products; pesticides and herbicides; nitrogen, potassium, and phosphorus fertilizers; and petroleum distillates.

As relatively sedentary animals, madtoms must tolerate the full range of such parameters that occur naturally within the streams where they persist. Both the amount of water (flow) and its physical and chemical conditions (water quality) vary widely according to seasonal precipitation events and seasonal human activities within the watershed. In general, the species survives in areas where the magnitude, frequency, duration, and seasonality of water flow is adequate to remove fine particles and sediments (silt-free) without causing degradation, and where water quality is adequate for year-round survival (for example, moderate to high levels of dissolved oxygen, low to moderate input of nutrients, and relatively unpolluted water and sediments). Relatively silt-free is defined for the purpose of this rule as silt or fine sand within interstitial spaces of substrates in amounts low enough to have minimal impact to the species.

Therefore, based on the information above, we identify aquatic macroinvertebrate prey items; cool, clean, flowing water; shallow depths; permanent surface flows, as measured during average rainfall years; and adequate water quality with substrates that are relatively silt-free to be an essential physical or biological feature for the Chucky madtom.

Laurel Dace

The laurel dace's preferred prey items include fly larvae, stonefly larvae, and caddisfly larvae (Skelton 2001, p. 126). Skelton observed that the morphological feeding traits of laurel dace, including a large mouth, short digestive tract, reduced number of pharyngeal (located within the throat) teeth, and primitively shaped basioccipital bone (bone that articulates the vertebra), are consistent with a diet consisting largely of animal material.

Strange and Skelton (2005, p. 7 and Appendix 2) identified siltation as a threat in all of the occupied Piney River tributaries (Youngs, Moccasin, and Bumbee Creeks). The Bumbee Creek type locality for the laurel dace is located within industrial forest that has been subjected to extensive clear-cutting and road construction in close proximity to the stream. Strange and Skelton (2005, p. 7) noted a heavy sediment load at this locality and commented that conditions there in 2005 had deteriorated since the site was visited by Skelton in 2002. In general, the species occupies areas that are relatively silt-free. Relatively silt-free is defined for the purpose of this rule as silt or fine sand within interstitial spaces of substrates in amounts low enough to have minimal impact to the species.

Strange and Skelton (2005, pp. 7 and 8 and Appendix 2) also commented on excessive siltation in localities they sampled on Youngs and Moccasin creeks, and observed localized removal of riparian vegetation around residences in the headwaters of each of these streams. They considered the removal of riparian vegetation problematic not only for the potential for increased siltation, but also for the potential thermal alteration of these small headwater streams. Skelton (2001, p. 125) reported that laurel dace occupy cool streams with a maximum recorded temperature of 26 °C (78.8 °F). The removal of riparian vegetation could potentially increase temperatures above the laurel dace's maximum tolerable limit.

Water quality is important to the persistence of the laurel dace. The species requires relatively clean, cool, flowing water to successfully complete its life cycle, but specific water quality requirements (such as temperature, dissolved oxygen, pH, and conductivity) that define suitable habitat conditions for the laurel dace have not been determined. In general, optimal water quality conditions for fishes and other aquatic organisms are characterized by moderate stream temperatures and acceptable dissolved oxygen concentrations, and they lack harmful levels of pollutants, such as inorganic contaminants like iron, manganese, selenium, and cadmium; organic contaminants such as human and animal waste products; pesticides and herbicides; nitrogen, potassium, and phosphorus fertilizers; and petroleum distillates.

Other factors that can potentially alter water quality and quantity are droughts and periods of low flow, nonpoint source run-off from adjacent land surfaces (for example, excessive amounts of nutrients, pesticides, and sediment), and random spills or unregulated discharge events. Run-off or discharges could be particularly harmful during drought conditions when flows are depressed and pollutants are more concentrated. Adequate water quality is essential for normal behavior, growth, and viability during all life stages of the laurel dace. Adequate water quantity and flow and good to optimal water quality are essential for normal behavior, growth, and viability during all life stages. Culverts, pipes, and bridge or road maintenance sites within the watersheds serve as dispersal barriers and have altered stream flows from natural conditions.

Other nonpoint source pollutants that affect the laurel dace include domestic sewage (through septic tank leakage or straight pipe discharges) and agricultural pollutants such as fertilizers, pesticides, herbicides, and animal waste. There are no active coal mines within the range of the laurel dace; however, coal mining represents a potential threat to the species in the foreseeable future. Coal mining represents a major source of nonpoint source pollutants because it has the potential to contribute high concentrations of dissolved metals and other solids that lower stream pH or lead to elevated levels of stream conductivity (Pond 2004, pp. 6-7, 38-41; Mattingly
et al.
2005, p. 59). The direct effect of elevated stream conductivity on fishes, including the laurel dace, is poorly understood, but some species, such as blackside dace, have shown declines in abundance over time as conductivity increased in streams affected by mining (Hartowicz 2008, pers. comm.).

Water temperature may also be a limiting factor in the distribution of this species (Skelton 1997, pp. 17, 19). Canopy cover of laurel dace streams often consists of eastern hemlock (
Tsuga canadensis
), mixed hardwoods, pines (
Pinus
sp.), and mountain laurel (
Kalmia latifolia
). The hemlock woolly adelgid (
Adelges tsugae
) is a nonnative insect that infests hemlocks, causing damage or death to trees. The hemlock woolly adelgid was recently found in Hamilton County, Tennessee, and could impact eastern hemlock in floodplains and riparian buffers along laurel dace streams in the future (Simmons 2008, pers. comm.). Riparian buffers filter sediment and nutrients from overland runoff, allow water to soak into the ground, protect stream banks and lakeshores, and provide shade for streams. Because eastern hemlock is primarily found in riparian areas, the loss of this species adjacent to laurel dace streams would be detrimental to fish habitat.

Therefore, based on the information above, we identify aquatic macroinvertebrate prey items; cool, clean, flowing water; shallow depths; permanent surface flows, as measured during average rainfall years; and adequate water quality with substrates that are relatively silt-free to be an essential physical or biological feature for the laurel dace.

Cover or Shelter

Cumberland Darter

Cumberland darters depend on specific habitats and bottom substrates for normal life processes such as spawning, rearing, resting, and foraging. As described above, the species' preferred habitats (shallow pools and runs) are dominated by sand or sand-covered bedrock with patches of gravel or debris (Thomas 2007, p. 4). Individuals were observed by O'Bara (1991, p. 10) and Thomas (2007, p. 4) in gently flowing runs or pools at depths ranging from 20 to 76 cm (average 36.2 cm) (3.9 to 30 in, average 14.3 in). Most of these habitats contain isolated boulders and large cobble that the species likely uses as cover. According to O'Bara (1991, p. 11), areas used by the Cumberland darter for cover and shelter are very susceptible to the effects of siltation, and the presence of relatively silt-free substrates is the major limiting factor for both the species' continued existence and its ability to colonize new habitats. Relatively silt-free is defined for the purpose of this rule as silt or fine sand within interstitial spaces of substrates in amounts low enough to have minimal impact to the species.

Therefore, based on the information above, we identify stable, shallow pools and runs with relatively silt-free sand, sand-covered bedrock substrates, and isolated boulders and large cobble substrates to be an essential physical or biological feature for the Cumberland darter.

Rush Darter

Rush darters depend on specific stream substrates and stream margins consisting of aquatic vegetation for normal and robust life processes such as spawning, rearing, protection of young, protection of adults when threatened, foraging, and feeding. Preferred substrates are dominated by fine gravel, with lesser amounts of sand, fine silt, coarse gravel, cobble, and bedrock (Blanco and Mayden 1999, pp. 24-26; Drennen 2009, pers. obs.). In addition to these preferred substrates, rush darters

generally prefer aquatic emergent vegetation such as watercress (
Nasturtium officinale
), parrots feather (
Myriophyllum
sp.), rushes (
Juncus
spp.), sedges (
Carex
spp.), burr reed (
Sparganium
sp.), and coontail (
Ceratophyllum
sp.). This emergent vegetation is utilized by the rush darter, especially in the quiet water along stream margins and in ephemeral pools and tributaries (Boschung and Mayden 2004, p. 552; Stiles 2011, pers. comm.).

Excessive siltation of gravel substrates removes foraging and feeding sites for the rush darter (Sylte and Fischenich 2002, pp. 1-25), and eliminates conditions necessary for some aquatic plant species to flourish. Similarly, excessive nutrients promote dense filamentous algae growth on the substrate and within the water column (Drennen 2007, pers. obs.; Stiles 2011, pers. comm.), which may restrict rush darter habitat for foraging and spawning (Stiles 2011, pers. comm.).

Stormwater flows may result in scouring and erosion of important cover, breeding, and sheltering sites for the rush darter. Conversely, drought conditions render the darter populations vulnerable to higher water temperatures and restricted habitat, especially during the breeding season when they concentrate in wetland pools and shallow pools of headwater streams (Fluker
et al.
2007, p. 10).

Therefore, based on the information above, we identify quiet water along stream margins and in shallow ephemeral pools and headwater tributaries; aquatic emergent vegetation; a combination of silt, sand, and gravel substrates; and seasonal stream flows sufficient to provide connectivity and to remove excessive sediment covering the vegetation and stream bottom substrates to be an essential physical or biological feature for the rush darter.

Yellowcheek Darter

Summertime habitat selected by the yellowcheek darter includes high-velocity (greater than 0.4 meters per second or 1.3 feet per second) water over 8 to 128 millimeters (mm) (0.3 to 5.0 in) gravel and cobble substrate at depths of 11 to 30 cm (4.3 to 11.8 in) (Brophy and Stoeckel 2006, p. 42), which lends evidence to the suggestion by other researchers that it is a “riffle-obligate” species and is unlikely to occupy pool or run habitats when riffles are available. Preferred water depths for yellowcheek darters ranged between 11 and 30 cm (4.3 and 11.8 in), but yellowcheek darters have been found in shallower water, when greater depths with suitable velocities were scarce. Gravel and cobble from 8 to 128 mm (0.3 to 5.0 in) median diameter appears to be the important substrate type for yellowcheek darter (Brophy and Stoeckel 2006, p. 42). Larger boulder substrates are important during spring spawning periods (McDaniel 1984, p. 82). Siltation (excess sediments suspended or deposited in a stream) contributes to turbidity of the water and has been shown to suffocate aquatic insects, smother fish eggs, clog fish gills, and may fill in essential interstitial spaces (spaces between stream substrates) used by aquatic organisms for spawning and foraging; therefore, excessive siltation negatively impacts fish growth, physiology, behavior, reproduction, and survival. In general, the species occupies areas that are relatively silt-free. Relatively silt-free is defined for the purpose of this rule as silt or fine sand within interstitial spaces of substrates in amounts low enough to have minimal impact to the species.

Therefore, based on the information above, we identify high-quality riffle substrates that are relatively silt-free and contain a mixture of gravel, cobble, and boulder substrates to be an essential physical or biological feature for the yellowcheek darter.

Chucky Madtom

While nothing is known specifically about Chucky madtom habitat preferences, available information for other similar members of the
Noturus
group is known. Both smoky and elegant madtoms (
N. elegans
) were found to nest under flat rocks (slab-rock boulders) at or near the head of riffles (Burr and Dimmick 1981, p. 116; Dinkins and Shute 1996, p. 56). Smoky madtoms have also been observed using shallow pools and to select rocks of larger dimension for nesting than were used for shelter during other times of year (Dinkins and Shute 1996, p. 56). Siltation (excess sediments suspended or deposited in a stream) contributes to turbidity of the water and has been shown to smother fish eggs, clog fish gills, and may fill in essential interstitial spaces (spaces between stream substrates) used by aquatic organisms for spawning and foraging; therefore, excessive siltation negatively impacts fish growth, physiology, behavior, reproduction, and survival.

Dinkins and Shute (1996, p. 50) found smoky madtoms underneath slab-rock boulders in swift to moderate current during May to early November. Habitat use shifted to shallow pools over the course of a 1-week period, coinciding with a drop in water temperature to 7 or 8 °C (45 to 46 °F), and persisted from early November to May. Eisenhour
et al.
(1996, p. 43) collected saddled madtoms in gravel, cobble, and slab-rock boulder substrates in riffle habitats with depths ranging from 0.1 to 0.3 m (0.33 to 0.98 ft). Based on their limited number of observations, Eisenhour
et al.
(1996, p. 43) hypothesized that saddled madtoms occupy riffles and runs in the daylight hours and then move to pools at night and during crepuscular hours (dawn and dusk) to feed.

Therefore, based on the information above, we identify gently flowing runs and pools with relatively silt-free flat gravel, cobble, and slab-rock boulder substrates to be an essential physical or biological feature for the Chucky madtom.

Laurel Dace

Laurel dace have been most often collected from pools or slow runs from undercut banks or beneath slab-rock boulders, typically in first- or second- order, clear, cool (maximum recorded temperature 26 °C or 78.8 °F) streams. Substrates in streams where laurel dace are found typically consist of a mixture of cobble, rubble, and boulder, and the streams tend to have a dense riparian zone consisting largely of mountain laurel (Skelton 2001, pp. 125-126). Siltation (excess sediments suspended or deposited in a stream) contributes to turbidity of the water and has been shown to smother fish eggs, clog fish gills, and may fill in essential interstitial spaces (spaces between stream substrates) used by aquatic organisms for spawning and foraging; therefore, excessive siltation negatively impacts fish growth, physiology, behavior, reproduction, and survival.

Water temperature may be a limiting factor in the distribution of this species (Skelton 1997, pp. 17, 19). Canopy cover of laurel dace streams often consists of eastern hemlock (
Tsuga canadensis
), mixed hardwoods, pines (
Pinus
spp.), and mountain laurel (
Kalmia latifolia
). Riparian buffers filter sediment and nutrients from overland runoff, allow water to soak into the ground, protect stream banks and lakeshores, and provide shade for streams. The hemlock woolly adelgid is a nonnative insect that infests hemlocks, causing damage or death to trees. The woolly adelgid was recently found in Hamilton County, Tennessee, and could impact eastern hemlock in floodplains and riparian buffers along laurel dace streams in the future (Simmons 2008, pers. comm.). Because eastern hemlock is primarily found in riparian areas, the loss of this species adjacent to laurel dace streams would be detrimental to fish habitat.

Habitat destruction and modification also stem from existing or proposed

infrastructure development in association with silvicultural activities. The presence of culverts at one or more road crossings in most of the streams inhabited by laurel dace may disrupt upstream dispersal within those systems (Chance 2008, pers. obs.). Such dispersal barriers could prevent re-establishment of laurel dace populations in reaches where they suffer localized extinctions due to natural or human-caused events.

Therefore, based on the information above, we identify stream connectivity, gently flowing runs and pools with relatively silt-free cobble and slab-rock boulder substrates with undercut banks, and canopy cover to be an essential physical or biological feature for the laurel dace.

Sites for Breeding, Reproduction, or Rearing (or Development) of Offspring

Cumberland Darter

Little is known regarding the reproductive habits of the Cumberland darter. Thomas (2007, p. 4) reported the collection of male Cumberland darters in breeding condition in April and May, with water temperatures ranging from 15 to 18 °C (59 to 64 °F). Extensive searches by Thomas (2007, p. 4) produced no evidence of nests or eggs at these sites. Reproductive habits of its closest relative, the Johnny darter, have been well studied by Winn (1958a, pp. 163-183; 1958b, pp. 205-207), Speare (1965, pp. 308-314), and Bart and Page (1991, pp. 80-86). Spawning occurs from April to June, with males migrating to spawning areas prior to females and establishing territories at selected spawning sites. Males establish a nest under a submerged object (boulder or woody debris) by using fin movements to remove silt and fine debris. Females enter the nests, the spawning pair inverts, and females deposit between 40 and 200 adhesive eggs on the underside of the nest object. Males care for the nest by periodically fanning the area to remove silt. The eggs hatch in about 6 to 16 days, depending on water temperature. Hatchlings are about 5 mm (0.2 in) and reach 29 to 38 mm (1.1 to 1.5 in) at age 1. Given these specialized reproductive behaviors, it is apparent that the Cumberland darter requires second- to fourth-order streams containing gently flowing run and pool habitats with sand and bedrock substrates, boulders, woody debris, or other cover and that are relatively silt-free. It is essential to maintain the connectivity of these sites, to accommodate breeding, growth, and other normal behaviors of the Cumberland darter and to promote gene flow within the species.

Therefore, based on the information above, we identify stable, second- to fourth-order streams containing gently flowing run and pool habitats with sand and bedrock substrates, boulders, large cobble, woody debris, or other cover and that are relatively silt-free and stream connectivity to be an essential physical or biological feature for the Cumberland darter.

Rush Darter

Rush darters depend on bottom substrates dominated by sand, fine silt, fine gravel and some coarse gravel, and that have significant amounts of emergent aquatic and overhanging terrestrial vegetation (Drennen 2009, pers. obs.).

In July 2008, rush darter young-of-the-year were collected within areas of very little water in the headwaters of an unnamed tributary in Jefferson County (Kuhajda 2008, pers. comm.), and in January 2008, the same tributary was dry. In previous years, this area was a spawning and nursery site for rush darters (Kuhajda 2008, pers. comm.). During May and June, rush darters spawned at this site even though the area had been dewatered occasionally in the summer, fall, and winter (Kuhajda 2008, pers. comm.). Adult rush darters are present in headwater areas for spawning during May and June, and may leave these sites or become trapped in ephemeral pools during the summer. Adults may be migrating upstream from watered areas, or juveniles and adults may be moving downstream from the spring-fed wetland that constitutes the headwaters of the unnamed tributary (Kuhajda 2008, pers. comm.).

Therefore, based on the information above, we identify permanent and ephemeral shallow streams with quiet water along stream margins and in shallow ephemeral pools and headwater tributaries, along with seasonal stream flows sufficient to provide connectivity and refugia to promote the emergent aquatic vegetation necessary for spawning and rearing of young, to be an essential physical or biological feature for the rush darter.

Yellowcheek Darter

Yellowcheek darter spawning occurs from late May through June in the swift to moderately swift portions of riffles, often around or under the largest rocks (McDaniel 1984, p. 82), although brooding females have been found at the head of riffles in smaller gravel substrate (Wine
et al.
2000, p. 3). During non-spawning months, there is a general movement to portions of the riffle with smaller substrate, such as gravel or cobble, and less turbulence (Robison and Harp 1981, p. 3). Weston and Johnson (2005, p. 24) observed that the yellowcheek darter moved very little during a 1-year migration study, with 19 of 22 recaptured darters found within 9 m (29.5 ft) of their original capture position after periods of several months.

A number of life-history characteristics, including courtship patterns, specific spawning behaviors, egg deposition sites, number of eggs per nest, degree of nest protection by males, and degree of territoriality, are unknown at this time; however, researchers suggest that yellowcheek darters deposit eggs on the undersides of larger rubble in swift water (McDaniel 1984, p. 82). Wine and Blumenshine (2002, p. 10) noted that during laboratory spawning, yellowcheek darter females bury themselves in fine gravel or sand substrates (often behind large, fist-sized cobble) with only their heads and caudal fin exposed. A yellowcheek darter male will then position himself upstream of the buried female and fertilize her eggs. Clutch size and nest defense behavior were not observed. Given these specialized reproductive behaviors, the importance of riffle habitats that are characterized by good water quality and sufficient substrates that are relatively silt-free is apparent.

Therefore, based on the information above, we identify swift to moderately swift riffles with gravel, cobble, and boulder substrates that are characterized by good water quality and are relatively silt-free to be an essential physical or biological feature for the yellowcheek darter.

Chucky Madtom

Little is known regarding the reproductive habits of the Chucky madtom; however, both smoky and elegant madtoms were found to nest under flat slab-rock boulders at or near the head of riffles (Burr and Dimmick 1981, p. 116; Dinkins and Shute 1996, p. 56). Shallow pools were also used by the smoky madtom. Smoky madtoms selected larger rocks for nesting than were used for shelter during other times of year (Dinkins and Shute 1996, p. 56). A single male madtom guards the nest in the cases of smoky, elegant, Ozark (
Noturus albater
), and least madtoms (Mayden
et al.
1980, p. 337; Burr and Dimmick 1981, p. 116; Mayden and Walsh 1984, p. 357; Dinkins and Shute 1996, p. 56). While guarding the nest, many were found to have empty stomachs suggesting that they do not feed during nest guarding, which can last as long as 3 weeks.

Siltation (excess sediments suspended or deposited in a stream) contributes to turbidity of the water and has been shown to smother fish eggs, clog fish gills, and may fill in essential interstitial spaces (spaces between stream substrates) used by aquatic organisms for spawning and foraging; therefore, excessive siltation negatively impacts fish growth, physiology, behavior, reproduction, and survival.

Therefore, based on the information above, we identify streams containing gently flowing run and pool habitats with flat or slab-rock boulder substrates that are relatively silt-free to be an essential physical or biological feature for the Chucky madtom.

Laurel Dace

Little is known regarding the reproductive habits of the laurel dace. Skelton (2001, p. 126) reported having collected nuptial individuals from late March until mid-June, although Call (2004, pers. obs.) observed males in waning nuptial color during surveys on July 22, 2004. Laurel

dace may be a spawning nest associate with nest-building minnow species, as has been documented in blackside dace (Starnes and Starnes 1981, p. 366). Soddy Creek is the only location in which Skelton (2001, p. 126) collected a nest-building minnow with laurel dace. Skelton (2001, p. 127) observed laurel dace burying their noses in the gravel of largescale stoneroller (
Campostoma oligolepis
) nests. The nests used by blackside dace had moderate flow and consisted of gravel substrate at depths of 20 cm (7.9 in) (Starnes and Starnes 1981, p. 366). These nests were noted to be approximately 0.7 m (2.3 ft) from undercut banks (Starnes and Starnes 1981, p. 366).

Siltation (excess sediments suspended or deposited in a stream) contributes to turbidity of the water and has been shown to smother fish eggs, clog fish gills, and may fill in essential interstitial spaces (spaces between stream substrates) used by aquatic organisms for spawning and foraging; therefore, excessive siltation negatively impacts fish growth, physiology, behavior, reproduction, and survival.

Therefore, based on the information above, we identify headwater streams containing moderately flowing run and pool habitats with gravel substrates, containing undercut banks, and that are relatively silt-free to be an essential physical or biological feature for the laurel dace.

Primary Constituent Elements

Under the Act and its implementing regulations, we are required to identify the physical or biological features essential to the conservation of the Cumberland darter, rush darter, yellowcheek darter, Chucky madtom, and laurel dace in areas occupied at the time of listing, focusing on the features' primary constituent elements. Primary constituent elements are those specific elements of the physical or biological features that provide for a species' l

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3A2012-24468. Public record. Not legal advice.