Endangered and Threatened Wildlife and Plants; Determination of Threatened Status for the Cherokee Darter and Endangered Status for the Etowah Darter

DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AC01

Endangered and Threatened Wildlife and Plants; Determination of

Threatened Status for the Cherokee Darter and Endangered Status for the

Etowah Darter

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.

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SUMMARY: The Fish and Wildlife Service (Service) determines threatened

status for the Cherokee darter (Etheostoma (Ulocentra) sp.) and

endangered status for the Etowah darter (Etheostoma etowahae) under the

Endangered Species Act of 1973 (Act), as amended. The Cherokee darter

and Etowah darter are recently discovered species of fish that are

endemic to the Etowah River system in north Georgia.

The Cherokee darter is now known from approximately 20 small

tributary systems of the Etowah River, but healthy populations are

known from only a few sites. The Etowah darter is known from the upper

Etowah River mainstem and two tributary systems. Impoundments and

deteriorating water and benthic habitat quality resulting from

siltation, agricultural runoff, other pollutants, poor land use

practices, increased urbanization, and waste discharges have resulted

in the restriction and fragmentation of these species' current ranges.

These factors continue to impact the species and their habitat.

EFFECTIVE DATE: January 19, 1995.

ADDRESSES: The complete file for this rule is available for public

inspection, by appointment, during normal business hours at the U.S.

Fish and Wildlife Service, 6620 Southpoint Drive South, Suite 310,

Jacksonville, Florida 32216.

FOR FURTHER INFORMATION CONTACT: Mr. Robert S. Butler at the above

address (904/232-2580).

SUPPLEMENTARY INFORMATION:

Background

The Etowah River is one of three major upper Coosa River system

tributaries, the others being the Conasauga and Oostanaula Rivers. The

Etowah joins the Oostanaula River in Rome, Georgia, to form the Coosa

River. The Coosa River itself is the major eastern tributary of the

Mobile Basin and empties into the Gulf of Mexico in southwest Alabama.

The Etowah River system drains portions of the Blue Ridge, Piedmont,

and Valley and Ridge physiographic provinces. All streams in the

drainage are upland in nature and characterized by high gradients and

rocky substrates. Land use patterns of the Etowah system are largely of

a rural agrarian economy, with scattered municipalities, including the

encroaching Atlanta metropolitan area.

The diversity of the aquatic fauna is commensurate with the

diversity of physiographic provinces comprising the basin. Many of the

aquatic organisms reported from the Etowah system are rare. Records of

federally protected species are known for an endangered fish (amber

darter, Percina antesella), four endangered mussels (upland combshell,

Epioblasma metastriata; southern clubshell, Pleurobema decisum; ovate

clubshell, P. perovatum; and triangular kidneyshell, Ptychobranchus

greeni), and a threatened mussel (Alabama moccasinshell, Medionidus

acutissimus). In addition, several Category 2 candidate species from

the Service's animal notice of review published in the Federal Register

of November 21, 1991 (56 FR 58804) are also known from the Etowah River

system. These include a mussel (Tennessee heelsplitter, Lasmigona

holstonia), five fishes (rock darter, Etheostoma rupestre; freckled

darter, Percina lenticula; bronze darter, P. palmaris; lined chub,

Hybopsis lineapunctata; and frecklebelly madtom, Noturus munitus), and

at least three aquatic snails (spindle elimia, Elimia capillaris;

coldwater elimia, E. gerhardti; and rough hornsnail, Pleurocera

foremani). It is estimated that 35 of the potentially 50 freshwater

mussel species that once inhabited the Etowah River system have been

extirpated (Burkhead et al. 1992); several of these species are now

considered extinct. The Etowah River system at one time contained a

significant portion of the aquatic biodiversity of the upper Mobile

Basin.

Cherokee Darter

A small percid fish, the Cherokee darter is subcylindrical in

shape, and has a relatively blunt snout with a subterminal mouth. The

body shade is white to pale yellow. The side of adults is pigmented

with usually eight small dark olive black blotches that develop into

vertically elongate, slightly oblique bars in breeding adults,

especially in males. The back usually has eight small dark saddles and

intervening pale areas. The Cherokee darter has proven to be distinct

from the Coosa darter, E. coosae, a species with which it was

previously confused, by peak nuptial males never having five discrete

color bands in the spinous dorsal fin.

Cherokee darters inhabit small to medium size warm-water creeks of

moderate gradient, with predominately rocky bottoms. It is usually

found in shallow water in sections of reduced current, typically in

runs above and below riffles and at the ecotones of riffles and

backwaters. The Cherokee darter is associated with large gravel,

cobble, and small boulder substrates, and is uncommonly or rarely found

over bedrock, fine gravel, or sand. It is most abundant in stream

sections with relatively clear water and clean substrates (little silt

deposition). The Cherokee darter is intolerant of heavy to moderate

silt deposition. The Cherokee darter, like other members of the

subgenus Ulocentra, is intolerant of impoundment.

The Cherokee darter is endemic to the Etowah River system in north

Georgia, where it is primarily restricted to streams draining the

Piedmont physiographic province, and to a lesser extent, the Blue Ridge

physiographic province. The Cherokee darter occurs in about 20 small to

moderately large tributary systems of the middle and upper Etowah River

system. However, only a few sites contain healthy populations of this

species. The largest populations occur in northern tributaries upstream

of Allatoona Reservoir. Populations are smaller in tributaries draining

the southern portion of the system. The southern tributary systems tend

to drain areas exhibiting less relief and are on the average much more

degraded. Cherokee darter populations are found primarily above

Allatoona Reservoir. Downstream of Allatoona Dam, populations are

restricted to two tributary systems.

The Cherokee darter exhibits a disjunct and discontinuous

distribution pattern indicating fragmentation and isolation of

populations. The placement of Allatoona Reservoir in the middle Etowah

River system has caused much of the fragmentation of this species'

populations. One major tributary system in the upper Etowah system,

Amicalola Creek, apparently naturally lacks populations of Cherokee

darters, but contains a relatively close relative and also a narrow

endemic, the holiday darter, E. brevirostrum. The Cherokee darter is

allopatric (i.e., the ranges of the species do not overlap) with the

other two Ulocentra species in the watershed, the holiday darter and

Coosa darter. A formal description of the Cherokee darter is awaiting

publication (Bauer et al. in press).

Etowah Darter

The Etowah darter is a small-sized percid fish that is moderately

compressed laterally, and has a moderately pointed snout with a

terminal, obliquely angled mouth. The body ground shade is brown or

grayish-olive. The side is usually pigmented with 13 or 14 small dark

blotches just below the lateral line. The breast in nuptial males is

dark greenish-blue. The Etowah darter has proven distinct from the

greenbreast darter, E. jordani, a species with which it has previously

been confused, by the absence of red marks on the sides and anal fins

of male specimens.

The Etowah darter inhabits warm and cool, medium and large creeks

or small rivers that are moderate or high gradient with rocky bottoms.

It is found in relatively shallow riffles, with large gravel, cobble,

and small boulder substrates. The Etowah darter is typically associated

with the swiftest portions of shallow riffles, but occasionally adults

are taken at the tails of riffles. The sites having the greatest

abundance of Etowah darters had clear water and relatively little silt

in the riffles. The Etowah darter, like other members of the subgenus

Nothonotus, shuns pool habitats and is intolerant of impoundment.

The Etowah darter is endemic to the upper Etowah River system in

north Georgia, where it is restricted to the upper Etowah River

mainstem and two tributaries, Long Swamp and Amicalola Creeks. These

streams drain both the Blue Ridge and Piedmont physiographic provinces.

This distribution suggests habitat specialization; all streams

inhabited by this species are geographically adjacent in the most

upland portion of the river system. For a fish of moderate to large

creeks or small rivers, the Etowah darter has one of the most

restricted distributions in the southeast (Lee et al. 1980). The Etowah

darter has been formally described by Wood and Mayden (1993).

The Cherokee darter appeared as a category 2 species in the

Service's notice of review for animal candidates published in the

Federal Register of January 6, 1989 (54 FR 554) and November 21, 1991

(56 FR 58804). Category 2 species are taxa under review for listing,

but for which conclusive data on biological vulnerability and threat(s)

are not currently available to support proposed rules.

The Service commenced funding a status survey in 1989 to better

determine the status of the recently discovered Cherokee darter. After

field work had commenced, another undescribed fish was discovered in

the Etowah River system, the Etowah darter. The survey was modified to

address the population status of both these undescribed darters. A

final report was received on March 30, 1993 (Burkhead 1993), providing

sufficient information on biological vulnerability and threats to

support a proposed rule to classify the Cherokee darter as threatened

and the Etowah darter as endangered.

On April 6, 1993, the Service notified potentially affected Federal

and State agencies by mail that a status review was being conducted for

the Cherokee darter and Etowah darter. Two comments were received

concerning this notification. The U.S. Forest Service stated that it

was unlikely Forest Service lands harbored suitable habitat for the two

darter species. They also noted that future Forest Service activities

in the Etowah River watershed were expected to decrease, and that it

was unlikely these activities would produce any noticeable siltation

effects on downstream populations of the Cherokee darter and Etowah

darter. The Environmental Protection Agency commented on locating

specific watersheds having high cumulative non-point source stream

impacts for potential restoration work. This information would be

useful in the recovery of the Cherokee darter and Etowah darter.

Neither agency had objections to the potential listing of these

species.

Summary of Comments and Recommendations

In the October 18, 1993, proposed rule (58 FR 53696), and through

associated notifications, all interested parties were requested to

submit factual reports and information that might contribute to the

development of a final rule for the Cherokee darter and Etowah darter.

Appropriate Federal and State agencies, county governments, scientific

organizations, and interested parties were contacted by letter dated

November 1, 1993, and were requested to comment. Legal notices were

published in The Atlanta Journal/The Atlanta Constitution, Atlanta,

Georgia, on October 31, 1993, and in The Marietta Daily Journal,

Marietta, Georgia, on November 5, 1993.

In response to a formal request by the Cherokee County Board of

Commissioners, a public hearing on the Service's proposal to list the

Cherokee darter and the Etowah darter as threatened and endangered,

respectively, was held on January 12, 1994, at the Cherokee County

Administrative Building, Canton, Georgia. The comment period was

extended until January 24, 1994. A notice of the hearing and comment

period extension was published in the Federal Register on December 16,

1993 (58 FR 65696) and in the Cherokee Citizen, Canton, Georgia, on

December 29, 1993.

Seven written and 17 oral comments (fourteen at the public hearing)

were received regarding the proposed listing. Federal agencies

providing written comments included two agencies in the U.S. Department

of Agriculture, Animal Damage Control and Soil Conservation Service,

and the U.S. Army Corps of Engineers (Corps). The Animal Damage

Control, Coosa River Basin Initiative, and Georgia Environmental

Organization supported the listing; most of the other commenters did

not. Following is a summary of the comments, concerns, and questions

(referred to as ``Issues'' for the purpose of this summary) expressed

in writing and orally. Issues of similar content have been grouped

together. These issues and the Service's response to each are presented

below.

Issue 1: Several commenters questioned the validity of both the

Cherokee darter and Etowah darter as taxonomically distinct species.

Response: These two fishes were recently recognized as species new

to science by prominent ichthyologists highly knowledgeable of fish in

southeastern United States streams. A few years prior to the status

survey for these species in the Etowah River system (see response to

Issue 5 below), the Cherokee darter had been considered the Coosa

darter (Etheostoma coosae) and the Etowah darter had been considered

the greenbreast darter (E. jordani). Status survey collections in the

Etowah River system provided material sufficient for ichthyologists to

determine that the Cherokee darter and Etowah darter were indeed valid

biological entities distinct from the species they had heretofore been

confused with. Specifically, unique color differences in nuptial

(breeding) males of both species were discovered. Publication of a

species description in scientific journal and peer review by the

scientific community is the primary safeguard to ensure that species

descriptions are based on sound scientific information. Therefore, the

Service accepts the biological basis of species validity provided in

the forthcoming scientific description and distinction of the Cherokee

darter from the Coosa darter (Bauer et al. in press), and the published

scientific description and distinction of the Etowah darter from the

greenbreast darter (Wood and Mayden, 1993).

Issue 2: One commenter wanted clarification as to the timing of the

determination of the Cherokee darter as a valid species in relation to

the impoundment of Allatoona Reservoir, and insinuated that since the

Cherokee darter was not formally recognized as a species at the time of

reservoir construction, the preimpoundment records for populations of

the Cherokee darter alluded to in the proposed rule referred actually

to the Coosa darter.

Response: As stated in the response to Issue 1 above, these two

species were recognized as new species within the past few years, and

decades after Allatoona Reservoir was completed in the 1950's. However,

the Service is not indicating that these two fishes evolved into

separate species since construction of this reservoir. The evolution of

new species is a slow process that takes thousands or millions of

years. There is no scientific basis to suggest the Cherokee darter or

the Etowah darter evolved since the construction of Allatoona

Reservoir, or that this reservoir played any part in the evolution of

these species. Therefore, the preimpoundment records of Cherokee

darters stated in the proposed rule pertain to that species, and do not

refer to populations of the Coosa darter.

Issue 3: Some commenters thought that since the Cherokee County

Water and Sewerage Authority (County) had taken the habitat

requirements of the federally threatened amber darter (Percina

antesella) into consideration in the design of the proposed dam

impounding the Yellow Creek Reservoir, that the habitat requirements of

the Cherokee darter or Etowah darter could also be considered having

been addressed.

Response: There are over 150 recognized species of darters in 4

genera and approximately two dozen subgenera. Darters occupy a wide

variety of habitats in rivers, lakes, and swamps from the Appalachian

Mountains to near sea level throughout much of eastern North America.

The Etowah River system alone harbors at least 11 species of darters.

Each species inhabits discreet portions of the drainage and specific

habitats within its streams. The habitat requirements of the Cherokee

darter differ significantly from those of the amber darter. However,

the habitat requirements of the amber darter are similar, but not

identical, to that of the Etowah darter. The habitat requirements of

the Cherokee darter have therefore not been taken into consideration

during the design of the proposed dam.

Issue 4: Numerous commenters questioned the timing of the proposed

rule to provide protection for the Cherokee darter and Etowah darter in

relation to the proposed Yellow Creek Reservoir project, and one

commenter made the same assertion concerning a proposed regional

connector highway (Atlanta beltway).

Response: The Service is required by the Act to protect any species

that is in danger of extinction. This determination is based upon the

best available biological information. When the Service first learned

of the occurrence of the undescribed Cherokee darter, a narrowly

distributed and potentially imperilled fish in the Etowah River system,

a survey was funded to determine its status. That survey was initiated

during the fall of 1989. The following summer, the Etowah darter was

determined to be a distinct and highly localized species, and the

survey continued for both darters until 1992. When information was

obtained on the population status and distribution of the Cherokee

darter and Etowah darter sufficient to support federal listing of these

species, a rule was proposed to afford them protection under the Act.

The timing of the proposed rule to list these two fishes was therefore

coincidental with any proposed construction projects.

Issue 5: Several commenters questioned the extent of the status

survey for the Cherokee darter and Etowah darter and the possibility

that other area streams may harbor populations of these species.

Response: From the fall of 1989 to summer 1992, a survey of the

Etowah River system was funded by the Service to determine the

population status and total distribution of the Cherokee darter and

Etowah darter (see response to Issue 4 above). A total of 146

collections at 141 sites throughout the Etowah River system were made

for these two fish. Although sites outside the Etowah River system were

not surveyed for the Cherokee darter and Etowah darter, the Service

believes that the fish faunas in surrounding drainages are adequately

known to assure that these two darters are not present. The discovery

of additional populations of one or both species within the Etowah

River system is possible. However, based on the extensive status survey

conducted for the Cherokee darter and Etowah darter, the Service

believes no further surveys are warranted before listing these species.

Issue 6: Numerous commenters were concerned with the potential

economic impact that this listing proposal might have on completion of

the proposed Yellow Creek Reservoir project, and one commenter had the

same concerns regarding the proposed Atlanta beltway.

Response: The Service is required by the Act to use the best

available biological information in the assessment of determining

whether Federal protection under the Act is warranted for a species.

The economic impacts resulting from endangered species protection are

not to be considered when proposing to list a species under the Act.

Section 7 of the Act requires Federal agencies to ensure that their

actions are not likely to jeopardize the continued existence of any

listed species (see the ``Available Conservation Measures'' section of

this rule and the response to Issue 7 below). The Corps has consulted

with the Service regarding the potential effects this federally

permitted reservoir project might have on the amber darter, which

occurs in the Etowah River mainstem both upstream and downstream of the

Yellow Creek confluence. The County conducted a study addressing issues

pertaining to the amber darter and its habitat and has made

modifications to the dam that should minimize any impacts upon this

federally endangered fish. The Service is currently in conference with

the Corps regarding the dam's potential impacts upon the Cherokee

darter and Etowah darter. As mentioned elsewhere (see response to Issue

3 above), the habitat requirements of the Etowah darter are similar to

that of the amber darter. The design changes of the proposed dam that

addressed the amber darter may possibly also protect the Etowah darter

and its habitat. However, the Cherokee darter, which has a population

in Yellow Creek very near the dam site, has different environmental

requirements. The County has proven that it was willing to work with

the Corps and the Service in addressing issues related to the amber

darter. The Service commends these efforts by the County, and is

confident that a similar agreement can be reached for Cherokee darter

issues. The Service's Brunswick, Georgia, Field Office is currently

working with the Corps and County to resolve specific issues relating

to the Cherokee darter. Additionally, for the proposed Atlanta beltway

project, the Federal Highway Administration must consult with the

Service's Brunswick Field Office regarding potential impacts to the

Cherokee darter and Etowah darter during the planning and construction

phases.

Issue 7: One commenter requested the Service prepare a ``takings

analysis'' under Executive Order 12630 that assesses the impacts of the

listing of the Cherokee darter and the Etowah darter on private

property rights.

Response: The Attorney General has issued guidelines to the

Department of the Interior (Department) on the implementation of

Executive Order 12630: Governmental Actions and Interference with

Constitutionally Protected Property Rights. Under these guidelines, a

special rule applies when an agency within the Department is required

by law to act solely upon specified criteria that leave the agency no

discretion. In enacting the Act, Congress required the Department to

list species based solely upon scientific and commercial data

indicating whether they are in danger of extinction. The Service is

prohibited by law from withholding a listing based on concerns

regarding economic impact and is required to act, with appropriate

public notice, under strict time tables. Any failure to comply may

subject the agency to legal action. Accordingly, the provisions of the

Attorney General's guidelines relating to nondiscretionary actions

clearly are applicable to the determination of threatened status for

the Cherokee darter and endangered status for the Etowah darter, and

Taking Implication Assessments under Executive Order 12630 cannot be

considered in making this administrative decision. Since the Act

precludes consideration of economic factors during the listing process,

the Service's policy is to not consider taking implications at this

time.

Issue 8: Several commenters were concerned with potential impacts

the listing of the Cherokee darter and the Etowah darter might have on

normal agricultural activities and those of other private property

owners in the watershed.

Response: Based on the results of listing other aquatic organisms

in north Georgia streams, the Service does not believe there will be

any major impact to these activities as a result of listing these two

fishes. Concerning the use of agricultural chemicals, the Service

consults with the Environmental Protection Agency to determine if

pesticides they register are likely to jeopardize the continued

existence of listed species. When the use of a particular chemical is

likely to jeopardize a listed species, the use of that chemical is

restricted. Thus, it is possible that the use of a pesticide could be

restricted to avoid jeopardizing either of these darters. Any other new

restrictions that might be placed on farmers or other local landowners

would be due to activities involving Federal agencies, which must

review their actions and determine, under Section 7 of the Act, if such

actions would adversely affect these species (see the ``Available

Conservation Measures'' section of this rule and the response to Issue

6 above). The Service stresses to landowners the importance of

maintaining development-free streamside buffer zones to protect stream

habitat and water quality upon which the Cherokee darter and Etowah

darter depend. Maintaining such buffers should avoid many potential

impacts to these two fishes.

Issue 9: One commenter stated that reservoirs act as sediment

traps, and suggested that dams may actually improve habitat conditions

in downstream areas.

Response: The Service concurs that dams may act as traps of

alluvial sediments that are conducted down stream beds and overbank

areas during flood conditions. However, conditions below Allatoona

Reservoir, despite an obvious reduction in the bed load and other

transported sediments, have deteriorated since reservoir construction

several decades ago. Riverine habitat has been altered due primarily to

the disruption of the normal flow and temperature regime in the lower

Etowah River below Allatoona Dam. Dams should not be perceived as

beneficial sediment traps; rather efforts should be made on a

watershed-wide basis to abate sources of silt and other sediments

resulting from poor landuse practices from entering streams in the

first place.

Summary of Factors Affecting the Species

After a thorough review and consideration of all information

available, the Service has determined that the Cherokee darter and

Etowah darter should be classified as threatened and endangered,

respectively. Procedures found at Section 4(a)(1) of the Act (16 U.S.C.

1531 et seq.) and regulations (50 CFR part 424) promulgated to

implement the listing provisions of the Act were followed. A species

may be determined to be an endangered or threatened species due to one

or more of the five factors described in Section 4(a)(1). These factors

and their application to the Cherokee darter (Etheostoma (Ulocentra)

sp.) and the Etowah darter (Etheostoma etowahae) are as follows:

A. The present or threatened destruction, modification, or

curtailment of its habitat or range. The Cherokee darter and Etowah

darter are both endemic to the Etowah River system in north Georgia

(Burkhead 1993). These species have been rendered vulnerable to

extinction by significant loss of habitat within their restricted range

in the Etowah River system. The primary causes of habitat loss in the

Etowah River system result from impoundments, siltation, point source

and nonpoint source pollution which includes, but is not limited to,

municipal and industrial waste discharges, agricultural runoff from

crop monoculture and poultry farms, poultry processing plants, and

silvicultural activities. Much non-agricultural and non-silvicultural

habitat degradation in the watershed can be attributed to increased

urbanization in the Atlanta metropolitan area. All such forms of

habitat degradation and pollution disrupt the aquatic ecosystem,

particularly impacting benthic (bottom) habitat. Certain pollutants may

be particularly harmful in cumulative concentrations or if synergistic

interactions with other pollutants or chemicals occur.

Impoundments have destroyed a significant portion of the free-

flowing stream habitat in which the Cherokee darter lives, and to a

lesser extent they have impacted the Etowah darter as well. Based on

museum records, at least five preimpoundment populations of the

Cherokee darter were extirpated by the inundation of the 4,800 hectare

(11,856 acre) Allatoona Reservoir, which was completed in 1955.

Undoubtedly other, undocumented, Cherokee darter populations were

destroyed by the filling of Allatoona Reservoir. The lower portions of

some of the tributary systems that harbor populations of the Cherokee

darter are inundated by Allatoona Reservoir, isolating these

populations from other populations in adjacent tributaries. These

tributaries include Butler, Shoal, and Stamp Creeks.

Besides Allatoona Reservoir, numerous small impoundments and ponds

are scattered throughout the range of the Cherokee darter and Etowah

darter. Impoundments directly destroy stream habitat by converting

free-flowing streams to man-made lakes and ponds and by causing

population isolation. Furthermore, small impoundments are numerous

enough in the Etowah system to have a negative effect on both these

species by causing population fragmentation and isolation, thereby

blocking genetic interchange. Impoundments also alter the thermal

regimen of the stream sections immediately below the dam and can cause

community shifts favoring centrarchid fishes (Brim 1991), potential

predators on both Cherokee darters and Etowah darters. The Yellow Creek

population of the Cherokee darter is directly threatened by a proposed

water supply impoundment planned by the Cherokee County government.

During low flow periods, 30 percent of the flow in the Etowah River

above a known Etowah darter site will be comprised of water from Yellow

Creek reservoir. Although the effects of this flow augmentation in the

Etowah River are not known, the change in water quality and temperature

could potentially have a negative impact on the Etowah darter.

Erosion from poor land use practices causes extensive topsoil

erosion and subsequent siltation of stream bottoms. Sources of

siltation include timber clearcutting, clearing of riparian vegetation,

and those construction, mining, and agricultural practices that allow

exposed earth to enter streams. Light to moderate levels of siltation

are ubiquitous in many streams of the Etowah River system which have

populations of the Cherokee darter and Etowah darter. Siltation

problems are severe in many tributaries that have or probably had

populations of the Cherokee darter, including Allatoona Creek, the

Little River system, Settingdown Creek, Pumpkinvine Creek, and portions

of Shoal Creek (Cherokee County), Sharp Mountain Creek, Long Swamp

Creek, and Raccoon Creek. Siltation and dust from marble quarries in

Pickens County are also major problems in Long Swamp Creek, the only

known site where the Cherokee darter and Etowah darter are found

together. A rock quarry has been proposed for Stamp Creek in Bartow

County. If permitted, this quarry may have an adverse effect on the

Stamp Creek Cherokee darter population.

The extreme isolation or absence of populations of the Cherokee

darter in Settingdown, Allatoona, and Raccoon Creeks and the Little

River also strongly suggests localized extirpation of populations.

These intermediate streams probably once supported populations of the

fish. Much of the Little River system is heavily affected by large silt

and bed loads; the remaining fish fauna is depauperate and at many

sites dominated by species tolerant of degraded habitats.

The Cherokee darter and Etowah darter are obligate benthic species

living, foraging, and spawning on the stream bottom. Hence, their well-

being is directly tied to benthic habitat quality. Negative effects of

silt on benthic fishes were summarized by Burkhead and Jenkins (1991).

Silt reduces or destroys habitat heterogeneity and primary

productivity, increases fish egg and larval mortality, abrades

organisms, and alters, degrades, and entombs macrobenthic communities.

The geological strata drained by the Etowah River, particularly in the

middle and upper portion of the system, contain micaceous schist. The

erosion of this substrata adds an extremely abrasive mica component to

the silt which must render this silt even more noxious to benthic

organisms. Current State and Federal regulations preventing silt from

entering streams are lacking, inadequate, or not rigorously enforced.

The current rate of development in the counties surrounding Atlanta

is very high. The most rapid development appears to be in Gwinnett,

Cobb and Fulton Counties, but it is also high in Cherokee County, which

is in the heart of the Cherokee darter's current range. The effects of

creeping urbanization may be seen as far away as Dawson County, where

the majority of Etowah darter populations, as well as some Cherokee

darter populations, are known. One of the principal concerns to the

continued existence of the Cherokee darter and Etowah darter is the

trend of converting farmland into localized subdivisions in areas

relatively remote from Atlanta. Associated with increased development

and land clearing is increased siltation from erosion, accelerated

runoff, and transport of pollutants into the Etowah River system.

The tributaries harboring the Cherokee darter and Etowah darter are

crossed by numerous road and railroad bridges. These stream crossings

are potential sites for accidents which could spill toxic material into

streams. Spills of toxic chemicals at such crossings could cause

catastrophic fish kills and local extirpation of these species. The

high number of bridge crossings over Cherokee darter and Etowah darter

streams increases the probability that such an accident will occur in

the future.

Attending the urbanization associated with the growth of the

Atlanta metropolitan area is a proposed bypass that would

circumnavigate Atlanta to the northwest, connecting Interstate 75 with

Georgia State Route 371. The bypass would cross several Cherokee darter

streams in portions of Forsyth, Cherokee, and Bartow Counties. It will

also traverse the Etowah River at the lower portion of the Etowah

darter's range. Bridge construction sites, some located in the upper

Etowah River watershed, would be potential sources of sedimentation to

Cherokee and Etowah darter habitat. In addition, since this roadway is

not being planned as a limited access highway, the project will foster

development not just at major road intersections, as occurs with

interstate highways, but along the entire corridor.

It has been reported that 75 percent of Georgia's landfills will

reach capacity in five years (The Atlanta Journal/The Atlanta

Constitution, February 23, 1992). Several landfill sites have been

proposed within the range of the Cherokee darter; one such site occurs

between two Cherokee darter streams: Riggins and Edward Creeks,

Cherokee County. On the banks of the upper Etowah River, within the

known limited range of the Etowah darter, the Sanitfill Pine Bluff

landfill is being constructed. Refuse may ultimately be received from

as far away as New York. When this facility reaches its full potential,

it will purportedly be the largest landfill in the eastern United

States. While modern landfills are purportedly designed to contain

runoff, it seems doubtful that such landfills would actually retain

barrier integrity for decades to come.

B. Overutilization for commercial, recreational, scientific, or

educational purposes. In general, small species of fish, such as the

Cherokee darter and Etowah darter, which are not utilized for either

sport or bait purposes, are unknown to the general public. Therefore,

take of these species by the general public has not been a problem.

Publication of this rule will inform the general public as to the

presence of these two darters in the Etowah River system. Considering

the restricted distribution and small populations of the Etowah and

Cherokee darters, it would be easy for vandals or unscrupulous

collectors to eliminate or seriously impact populations in specific

stream reaches if their exact location were known. The distribution of

these species has therefore been described only in general terms for

the purposes of this rule. Federal protection will serve to minimize

adverse population impacts from illegal take, but the Act's penalties

are not likely to act as a complete deterrent to such actions.

C. Disease or predation. Predation upon the Cherokee darter and

Etowah darter undoubtedly occurs. However, there is no evidence to

suggest that predation threatens these species, except possibly in

altered stream reaches immediately below dams.

D. The inadequacy of existing regulatory mechanisms. The Official

Code of Georgia Annotated 27-2-12 prohibits the taking of these fish

without a state collecting permit. Federal listing provides protection

under Section 9 of the Act by requiring Federal permits for taking the

Cherokee darter and Etowah darter. Additional protection is gained

under Section 7 of the Act by requiring Federal agencies to consult

with the Service when projects they fund, authorize, or conduct may

affect these species.

E. Other natural or manmade factors affecting its continued

existence. The range of the Cherokee darter has been fragmented, and a

significant portion of the middle Etowah River system has been

permanently altered by Allatoona Reservoir. The streams inhabited by

the Cherokee darter and Etowah darter exhibit, on average, moderate to

heavy degradation from poor land use practices and small impoundments.

These strong negative forces have caused local extirpation of both

Cherokee darter and Etowah darter populations and have induced range

fragmentation and subsequent isolation of the Cherokee darter into

small populations. Genetic diversity has subsequently been lost due to

these population losses. The genetic diversity of all populations may

be needed to provide the species enough genetic variability to adapt to

environmental change and thus assure long-term viability. The

restricted distribution of both the Cherokee darter and Etowah darter

also makes populations vulnerable to extirpation from catastrophic

events, such as an accidental toxic chemical spill. Range fragmentation

and loss of genetic diversity, independently and in concert, clearly

threaten the continued existence of these species.

The Service has carefully assessed the best scientific and

commercial information available regarding the past, present, and

future threats faced by both darters in determining to make this rule

final. Based on this evaluation, the preferred action is to list the

Cherokee darter and Etowah darter as threatened and endangered species,

respectively. The Cherokee darter is now known from approximately 20

tributary systems of the Etowah River, but healthy populations are

known from just a few sites. The Etowah darter is known from only the

upper Etowah River mainstem and two tributary systems. Both species are

restricted to the Etowah River system in north Georgia. These fish and

their benthic habitat have been, and continue to be, impacted by range

reduction, isolation by impoundment, and general habitat destruction.

Despite its wider distribution and greater number of known populations,

the Cherokee darter appears to have more of its habitat threatened by

these factors, which have already resulted in a higher level of

population fragmentation and isolation relative to the Etowah darter.

The restricted distribution of these two species also makes localized

populations susceptible to catastrophic events. Because of these

factors, endangered appears the most appropriate status for the Etowah

darter and threatened appears most appropriate for the Cherokee darter.

Critical Habitat

Section 4(a)(3) of the Act, as amended, requires that, to the

maximum extent prudent and determinable, the Secretary propose critical

habitat at the time a species is determined to be endangered or

threatened. The Service's regulations (50 CFR 424.12(a)(1)) state that

designation of critical habitat is not prudent when one or both of the

following situations exist: (1) The species is threatened by taking or

other activity and the identification of critical habitat can be

expected to increase the degree of threat to the species or (2) such

designation of critical habitat would not be beneficial to the species.

The Service finds that designation of critical habitat is not prudent

for these species. Such a determination would result in no known

benefit to these species, and designation of critical habitat could

further threaten them.

Section 7(a)(2) and regulations codified at 50 CFR part 402 require

Federal agencies to ensure, in consultation with and with the

assistance of the Service, that activities they authorize, fund, or

carry out are not likely to jeopardize the continued existence of

listed species or destroy or adversely modify their critical habitat,

if designated. (See ``Available Conservation Measures'' section for a

further discussion of Section 7.) As part of the development of this

final rule, Federal and State agencies were notified of the darters'

general distribution, and they were requested to provide data on

proposed Federal actions that might adversely affect the two species.

Should any future projects be proposed in areas inhabited by these

fishes, the involved Federal agency will already have the general

distributional data needed to determine if the species may be impacted

by their action; and if needed more specific distributional information

would be provided.

Regulations promulgated for implementing Section 7, referenced

above, provide for both a jeopardy standard, based on listing alone,

and for a destruction or adverse modification standard, in cases where

critical habitat has been designated. The Cherokee and Etowah darters

occupy very restricted stream reaches. Any significant adverse

modification or destruction of their habitat would likely jeopardize

their continued existence. Under these conditions the two standards are

essentially equivalent. Therefore, no additional protection for the

species would accrue from critical habitat designation that would not

also accrue from listing these species. Once listed, the Service

believes that protection of their habitat can be accomplished through

the Section 7 jeopardy standard, and through Section 9 prohibitions

against take.

These two fish are very rare. Therefore, taking for scientific

purposes and private collections could pose a threat to their continued

existence if site specific information were released to the general

public. The publication of critical habitat maps in the Federal

Register and local newspapers and other publicity accompanying critical

habitat designation could increase the collection threat and also

increase the potential for vandalism during the often controversial

critical habitat designation process. The potential for future habitat

disruption within one or both of these species' ranges resulting from

the rapidly expanding Atlanta metropolitan area makes designation of

critical habitat potentially more contentious and controversial,

increasing the possibility for vandalism to occur. The locations of

these species' populations have consequently been described only in

general terms in this rule. Any existing precise locality data would be

available to appropriate Federal, State, and local governmental

agencies from the Service office described in the ADDRESSES section;

from the Service's Brunswick Field Office, Federal Building, Room 334,

801 Gloucester Street, Brunswick, Georgia 31520; and from the Georgia

Department of Natural Resources, and Georgia Natural Heritage Program.

For the foregoing reasons the Service believes that critical

habitat designation is not prudent for these species, and that their

protection can be adequately accomplished through the Section 7

jeopardy standard and Section 9 prohibitions against take.

Available Conservation Measures

Conservation measures provided to species listed as endangered or

threatened under the Endangered Species Act include recognition,

recovery actions, requirements for Federal protection, and prohibitions

against certain practices. Recognition through listing encourages and

results in conservation actions by Federal, State, and private

agencies, groups, and individuals. The Endangered Species Act provides

for possible land acquisition and cooperation with the States and

requires that recovery actions be carried out for all listed species.

The protection required of Federal agencies and the prohibitions

against taking and harm are discussed, in part, below.

Section 7(a) of the Act, as amended, requires Federal agencies to

evaluate their actions with respect to any species that is proposed or

listed as endangered or threatened and with respect to its critical

habitat, if any is being designated. Regulations implementing this

interagency cooperation provision of the Act are codified at 50 CFR

part 402. Section 7(a)(2) requires Federal agencies to ensure that

activities they authorize, fund, or carry out are not likely to

jeopardize the continued existence of such a species or to destroy or

adversely modify its critical habitat. If a Federal action may affect a

listed species or its critical habitat, the responsible Federal agency

must enter into formal consultation with the Service.

Federal involvement is expected to include the Environmental

Protection Agency through the Clean Water Act's provisions for

pesticide registration and waste management actions. The Corps of

Engineers will consider these species in project planning and

operation, and during the permit review process. The Federal Highway

Administration will consider impacts of federally funded bridge and

road construction projects when known habitat may be impacted.

Continuing urban development within the Etowah River system may involve

the Farmers Home Administration and their loan programs. The Soil

Conservation Service will consider the species during project planning

and under their farmer's assistance programs. The Forest Service will

consider downstream impacts to habitat of the Etowah darter when

planning or implementing silvicultural, recreational, or other programs

in the headwaters of Amicalola Creek and the extreme upper portion of

the Etowah River mainstem occurring in the Chattahoochee National

Forest. It has been the experience of the Service that nearly all

Section 7 consultations can be resolved so that the species is

protected and the project objectives are met.

The Act and implementing regulations found at 50 CFR 17.21 for

endangered species, and 17.21 and 17.31 for threatened species set

forth a series of general prohibitions and exceptions that apply to all

endangered and threatened wildlife. These prohibitions, in part, make

it illegal for any person subject to jurisdiction of the United States

to take (includes harass, harm, pursue, hunt, shoot, wound, kill, trap,

or collect; or attempt any of these), import or export, ship in

interstate commerce in the course of commercial activity, or sell or

offer for sale in interstate or foreign commerce any listed species. It

also is illegal to possess, sell, deliver, carry, transport, or ship

any such wildlife that has been taken illegally. Certain exceptions

apply to agents of the Service and State conservation agencies.

Permits may be issued to carry out otherwise prohibited activities

involving endangered or threatened wildlife species under certain

circumstances. Regulations governing permits are at 50 CFR 17.22,

17.23, and 17.32. Such permits are available for scientific purposes,

to enhance the propagation or survival of the species, and/or for

incidental take in connection with otherwise lawful activities. For

threatened species, there are also permits for zoological exhibition,

educational purposes, or special purposes consistent with the purpose

of the Act. In some instances, permits may be issued for a specified

time to relieve undue economic hardship that would be suffered if such

relief were not available. Since these species are not in trade, such

permit requests are not expected.

It is the policy of the Service (59 FR 34272) to identify to the

maximum extent practicable at the time a species is listed those

activities that would or would not constitute a violation of section 9

of the Act. The intent of this policy is to increase public awareness

of the effect of the listing on proposed and ongoing activities within

a species' range. The Service is not aware of any otherwise lawful

activities being conducted by the public that will be affected by this

listing and result in a violation of section 9.

Questions regarding whether specific activities will constitute a

violation of section 9 should be directed to the Field Supervisor of

the Service's Jacksonville Office (see ADDRESSES section). Requests for

copies of the regulations concerning listed animals and general

inquiries regarding prohibitions and permits may be addressed to the

U.S. Fish and Wildlife Service, Southeast Regional Office, Ecological

Services Division, Threatened and Endangered Species, 1875 Century

Boulevard, Atlanta, Georgia 30345-3301 (Telephone 404/679-7099,

Facsimile 404/679-7081).

National Environmental Policy Act

The Service has determined that an Environmental Assessment, as

defined under the authority of the National Environmental Policy Act of

1969, need not be prepared in connection with regulations adopted

pursuant to section 4(a) of the Endangered Species Act of 1973, as

amended. A notice outlining the Service's reasons for this

determination was published in the Federal Register on October 25, 1983

(48 FR 49244).

References Cited

Bailey, R.M., and D.A. Etnier. 1988. Comments on the subgenera of

darters (Percidae) with descriptions of two new species from the

southeastern United States. Misc. Pub. Univ. Michigan Mus. Zool.

175:1-48.

Bauer, B.H., D.A. Etnier, and N.M. Burkhead. In press. Etheostoma

(Ulocentra) sp. (Osteichthyes: Percidae), a new darter from the

Etowah River system in Georgia. Bull. Alabama Mus. Nat. Hist.

Brim, J. 1991. Coastal Plain fishes: floodplain utilization and the

effects of impoundments. Unpublished masters thesis, Dept. Biol.,

Univ. South Carolina, Columbia.

Burkhead, N.M. 1993. Status survey for two freshwater fishes, the

Cherokee and Etowah darters (Pisces, Percidae), endemic to the

Etowah River system of north Georgia. Final report submitted to the

U.S. Fish and Wildlife Service, Jacksonville Field Office, Florida.

25 pp.

Burkhead, N.M., and R.E. Jenkins. 1991. Fishes. Pp. 321-409, in: K.

Terwilliger (coordinator). Virginia's endangered species. McDonald

and Woodward Pub. Co., Blacksburg, Virginia.

Burkhead, N.M, J.D. Williams, and B.J. Freeman. 1992. A river under

siege. Georgia Wildlife 2(2):10-17.

Lee, D.S., C.R. Gilbert, C.H. Hocutt, R.E. Jenkins, D.E. McAllister,

and J.R. Stauffer, Jr. 1980. Atlas of North American freshwater

fishes. North Carolina State Mus. Nat. Hist., Raleigh.

Wood, R.M., and R.L. Mayden. 1993. Systematics of the Etheostoma

jordani species group (Teleostei: Percidae), with descriptions of

three new species. Bull. Alabama Mus. Nat. Hist. 16:29-44.

Author

The primary author of this final rule is Robert S. Butler (see

ADDRESSES section).

List of Subjects in 50 CFR Part 17

Endangered and threatened species, Exports, Imports, Reporting and

recordkeeping requirements, and Transportation.

Regulation Promulgation

Accordingly, part 17, subchapter B of chapter I, title 50 of the

Code of Federal Regulations, is amended as set forth below:

PART 17--[AMENDED]

1. The authority citation for Part 17 continues to read as follows:

Authority: 16 U.S.C. 1361-1407; 16 U.S.C. 1531-1544; 16 U.S.C.

4201-4245; Pub. L. 99-625, 100 Stat. 3500; unless otherwise noted.

2. Amend Sec. 17.11(h) by adding the following, in alphabetical

order under ``FISHES'', to the List of Endangered and Threatened

Wildlife to read as follows:

Sec. 17.11 Endangered and threatened wildlife.

* * * * *

(h) * * *

--------------------------------------------------------------------------------------------------------------------------------------------------------

Species Vertebrate population

---------------------------------------------------- Historic range where endangered or Status When listed Critical Special

Common name Scientific name threatened habitat rules

--------------------------------------------------------------------------------------------------------------------------------------------------------

Fishes

* * * * * * *

Darter, Cherokee......... Etheostoma (Ulocentra) U.S.A. (GA)............. Entire.................. T 569 NA NA

sp.

* * * * * * *

Darter, Etowah........... Etheostoma etowahae..... U.S.A. (GA)............. Entire.................. E 569 NA NA

* * * * * * *

--------------------------------------------------------------------------------------------------------------------------------------------------------

Dated: November 23, 1994.

Mollie H. Beattie,

Director, Fish and Wildlife Service.

[FR Doc. 94-31195 Filed 12-19-94; 8:45 am]

BILLING CODE 4310-55-P