[Federal Register Volume 65, Number 75 (Tuesday, April 18, 2000)]
[Proposed Rules]
[Pages 20792-20798]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-9672]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AG02


Endangered and Threatened Wildlife and Plants; Proposed Rule To 
List the Vermilion Darter as Endangered

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule and notice of petition finding.

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SUMMARY: We, the Fish and Wildlife Service (Service), propose to list 
the vermilion darter (Etheostoma chermocki) as endangered under the 
authority of the Endangered Species Act of 1973, as amended (Act). The 
vermilion darter is found only in 11.6 kilometers (7.2 miles) of the 
main-stem of Turkey Creek, and the lowermost reaches of Dry Creek and 
Beaver Creek,

[[Page 20793]]

within the Turkey Creek drainage, a tributary of the Locust Fork of the 
Black Warrior River, northeast Jefferson County, Alabama. Impoundments 
within the upper mainstem of Turkey Creek and its tributaries, along 
with water quality degradation, have altered the stream's dynamics and 
reduced the darter's range significantly. The surviving population is 
currently threatened by pollutants (i.e., sediment, nutrients, 
pesticide and fertilizer runoff) that wash into the streams from the 
land surfaces. Since the vermilion darter has such a restricted range, 
it is also threatened by potential catastrophic events (e.g., toxic 
chemical spill). This proposed rule, if made final, will extend the 
protection of the Act to the vermilion darter. We are seeking data and 
comments from the public.

DATES: Comments from all interested parties must be received by June 
19, 2000. Requests for public hearings must be received by June 2, 
2000.

ADDRESSES: If you wish to comment, you may submit your comments and 
materials concerning this proposal by any one of several methods. (1) 
You may submit written comments to the Field Supervisor, U.S. Fish and 
Wildlife Service, Mississippi Field Office, 6578 Dogwood View Parkway, 
Jackson, Mississippi 39213.
    (2) You may send comments by e-mail to [email protected]. 
Please submit these comments as an ASCII file and avoid the use of 
special characters and any form of encryption. Please also include 
``Attn: [RIN number]'' and your name and return address in your e-mail 
message. If you do not receive a confirmation from the system that we 
have received your e-mail message, contact us directly at the above 
address or by telephone at 601/965-4900.
    (3) You may hand-deliver comments to the above address. Comments 
and materials received, as well as supporting documentation used in the 
preparation of this proposed rule, will be available for public 
inspection, by appointment, during normal business hours at the above 
address.

FOR FURTHER INFORMATION CONTACT: Mr. Daniel J. Drennen at the above 
address, or telephone 601/965-4900; facsimile 601/965-4340.

SUPPLEMENTARY INFORMATION:  

Background

    Boschung et al. (1992) formally described the vermilion darter 
(Etheostoma chermocki (Teleostei: Percidae)) from the Black Warrior 
River drainage of Alabama. This fish is a medium-sized darter reaching 
about 7.1 centimeters (2.8 inches) total length (length from tip of 
snout to longest portion of tail fin) (Boschung et al. 1992, Suttkus 
and Bailey 1993, Mettee et al. 1996). The vermilion darter belongs to 
the subgenus Ulocentra (``snub-nosed darters''), which includes fish 
that are slightly laterally compressed, have complete lateral lines, 
broadly connected gill membranes, a short head, and a small pronounced 
mouth. The vermilion darter is distinguished by extensive vermilion 
(reddish-orange) pigmentation on the fins and body, especially on the 
belly. Males have a bright red spot on the membrane between the first 
spines of the spinous dorsal (upper) fin. During breeding, the males 
have red blotches along the side of the body (Boschung et al. 1992, 
Suttkus and Baily 1993, and Metee et al. 1996). The female's red spots 
are smaller.
    Currently, the vermilion darter is found only in the Turkey Creek 
drainage, a tributary of the Locust Fork of the Black Warrior River, 
Jefferson County, Alabama. The current range of the vermilion darter is 
11.6 kilometers (km) (7.2 miles (mi)) of the mainstem of Turkey Creek 
and the lowermost reaches (0.8 km (0.5 mi) total) of Dry and Beaver 
Creeks. Extensive surveys in similar habitats have failed to locate 
this species outside of its current drainage (Boschung et al. 1992, 
Blanco et al. 1995, Mettee et al. 1996, Shepard et al. 1998, Blanco and 
Mayden 1999). The Turkey Creek drainage is primarily owned by private 
landowners, with only approximately 1.6 km (1 mi) of stream bank owned 
by Jefferson County.
    The historic population size of the vermilion darter within the 
Turkey Creek drainage is unknown. In the 1960s and 1970s, the vermilion 
darter was common at the Highway 79 bridge site, which roughly bisects 
the fish's range, but by 1992, occurrences of the darter had become 
very rare at that site (Boschung et al. 1992; K. Marion, University of 
Alabama in Birmingham, pers. comm. 1998). Currently, populations of 
vermilion darters are meager and isolated within certain areas of 
Turkey Creek, due to natural or manmade barriers, like a waterfall and 
several impoundments. Dispersal beyond the current range of this 
species is not likely (Blanco and Mayden 1997) because of these 
barriers and increasing point-source pollution (pollution created from 
a single source, like sewage effluent) and nonpoint-source pollution 
(pollution created from larger processes and not from one concentrated 
point source, like excess sediment washing into a stream after a rain). 
Blanco and Mayden (1999) estimated the population size at more than 
1,800 individuals, based on the number of vermilion darters caught per 
fishing attempts and amount of time within the Turkey Creek mainstem 
and the tributaries of Dry and Beaver Creeks.
    Habitat for the vermilion darter is similar to that of other snub-
nosed darters found in small to medium-sized clear streams, with gravel 
riffles and moderate currents (Kuehne and Barbour 1983, Etnier and 
Starnes 1993). Boschung et al. (1992) described the stream habitat for 
vermilion darters as 3 to 20 meters (m) (10 to 65 feet (ft)) wide, 0.01 
to more than 0.5 m (0.03 to more than 1.64 ft) in depth, with pools of 
moderate current alternating with riffles of moderately swift current, 
and low water turbidity. Blanco and Mayden (1999) found this species 
primarily in areas dominated by fine gravel with some coarse gravel or 
cobble. This species is absent in habitats with only a bedrock bottom, 
but has been found on bedrock with sand and gravel. Vermilion darters 
have been found in habitats with consistent water velocity, within run 
habitats (stream zones with faster water), upstream at the foot of a 
run, and in the transition zone between a run/riffle (fast water) and 
pool (slow water) habitat (Blanco and Mayden 1999). This species is 
generally not found in deeper pool habitats. Vermilion darters are 
associated with aquatic vegetation such as Potamogeton spp., 
Ceratophyllum spp., and Myriophyllum spp. (Boshung et al. 1992). 
Vermilion darters are absent from habitats immediately downstream of 
impoundments and areas of point-source pollution (Blanco and Mayden 
1999).
    The only known spawning habitat for vermilion darters, at the 
confluence of Turkey Creek and the runoff from Tapawingo Springs (near 
the Highway 79 bridge), consists of a mixture of fine silt on small 
gravel interspersed with larger gravel, cobble, small boulders, 
vegetation, and occasional filamentous algae. Clean rock surfaces, as 
found here, are necessary for egg laying (Stiles, Samford University, 
Birmingham, Alabama, pers. comm. 1999). There are also small sticks and 
limbs on the bottom substrate and within the water column (Stiles, 
pers. comm. 1999). Little is known about the life-history of the 
vermilion darter; however, most Ulocentra species live 2 to 3 years and 
feed primarily on snails and aquatic insects (Carlander 1997).

Previous Federal Action

    We have been monitoring the status of the species since the early 
1990s and have funded several status surveys (Blanco et al. 1995 and 
Blanco and

[[Page 20794]]

Mayden 1997). We received a petition to emergency-list the vermilion 
darter as endangered on July 23, 1998, from Robert Reid, Jr., of 
Birmingham, Alabama. On August 18, 1998, we received supplemental 
information on the species and a request to be copetitioner from Dr. 
Paul Blanchard of Samford University, Birmingham, Alabama. The petition 
stated that the vermilion darter was limited in range and imminently 
threatened with extinction. We found that the petition presented 
substantial information indicating that listing the species may be 
warranted, but that emergency listing was not warranted. We published a 
notice announcing our 90-day finding and initiation of the species' 
status review in the Federal Register on January 26, 1999 (64 FR 3913).
    Section 4(b)(3)(B) of the Act requires that, for any petition to 
revise the Lists of Endangered and Threatened Wildlife and Plants that 
contains substantial scientific and commercial information, we make a 
finding within 12 months of the date of the receipt of the petition, on 
whether the action requested is (a) not warranted, (b) warranted, or 
(c) warranted but precluded from immediate proposal by other pending 
proposals of higher priority. This proposed rule constitutes our 12-
month finding on the petitioned action.
    The processing of this proposed rule conforms with our Listing 
Priority Guidance published in the Federal Register on October 22, 1999 
(64 FR 57114). The guidance clarifies the order in which we will 
process rulemakings. Highest priority is processing emergency listing 
rules for any species determined to face a significant and imminent 
risk to its well-being (Priority 1). Second priority (Priority 2) is 
processing final determinations on proposed additions to the lists of 
endangered and threatened wildlife and plants. Third priority is 
processing new proposals to add species to the lists. The processing of 
administrative petition findings (petitions filed under section 4 of 
the Act) is the fourth priority. The processing of this proposed rule 
is a Priority 3 action.

Summary of Factors Affecting the Species

    The procedures for adding species to the Federal Lists are found in 
section 4 of the Act (16 U.S.C. 1531 et seq.) and the accompanying 
regulations (50 CFR part 424). A species may be determined to be an 
endangered or a threatened species due to one or more of the five 
factors described in section 4(a)(1). These factors and their 
application to the vermilion darter (Etheostoma chermocki Boschung) are 
as follows.

A. The Present or Threatened Destruction, Modification, or Curtailment 
of Its Habitat or Range

    The primary threats to the vermilion darter within the Turkey Creek 
watershed are nonpoint-source pollution and alteration of flow regimes. 
Restricted and localized in range, the vermilion darter is vulnerable 
to human-induced impacts to its habitat, such as siltation (excess 
sediments suspended or deposited in a stream), nutrification (excessive 
nutrients, such as nitrogen and phosphorus, present), and impoundments.
    Excessive siltation renders the habitat unsuitable for feeding and 
reproduction of vermilion darters and associated fish species. Sediment 
has been shown to wear away and/or suffocate periphyton (organisms that 
live attached to objects underwater), disrupt aquatic insect 
communities, and negatively impact fish growth, survival, and 
reproduction (Waters 1995). Sediment is the most abundant pollutant 
produced in the Mobile River Basin (Alabama Department of Environmental 
Management 1996). Potential sediment sources within a watershed include 
virtually all activities that disturb the land surface. The amount and 
impact of sedimentation on the vermilion darter's habitat may be 
locally correlated with the land use practices such as construction, 
urbanization, and silviculture. Turkey Creek has been noted to be 
brown-orange from sediment and completely turbid after heavy to even 
medium rainfalls (Blanchard pers. comm. 1998). Four major soil types 
occur within the Turkey Creek watershed (Gorgas, Leesburg, Montevallo, 
and Nauvoo), and all are considered highly erodible due to the steep 
topography (R. Goode, Natural Resources Conservation Service, 
Birmingham, Alabama, pers. comm. 1988). Urbanization has contributed 
significantly to siltation within the Turkey Creek watershed. The 
approximately 91-square kilometer (sq km) (35-square mile (sq mi)) 
Turkey Creek watershed drains 22,149 hectares (54,731 acres) of 
Jefferson County, the most populous county in the State. Blanchard et 
al. (1998) identified five specific nonpoint-source siltation sites 
that are currently impacting the Turkey Creek watershed, including a 
major road extension within 0.3 km (1,000 ft) of Turkey Creek and four 
sites affecting Beaver Creek, a major tributary to Turkey Creek (i.e., 
a bridge, road and sewer line construction, and a wood pallet plant). A 
proposed expansion of the Jefferson County landfill, if implemented, 
would likely contribute to increased sedimentation of Turkey Creek.
    Nutrification is a major problem in Turkey Creek. Water quality 
data for Turkey Creek taken between September 1996 and February 1997 
upstream of the Turkey Creek Waste Water Treatment Plant (TCWWTP), 
located within the range of the darter, showed high values for 
conductivity (Blanco and Mayden 1999). Similarly, water quality data 
for Turkey Creek taken along Turkey Creek Road, also within the 
darter's range, in June 1997 indicated high values for conductivity 
(Shepard et al. 1998). High conductivity values are an indicator of 
hardness and alkalinity and may denote water nutrification (Hackney et 
al. 1992, Tennessee Valley Authority 1992). Domestic pollution (septic 
and grey water) and excessive use of fertilizers and pesticides on 
lawns and along roadsides result in the concentration of nutrients and 
toxic chemicals within watersheds such as Turkey Creek. Nutrification 
promotes heavy algal growth that covers and eliminates clean rock or 
gravel habitats necessary for vermilion darter feeding and spawning. 
Shepard et al. (1998) noted a thin veneer of algae, indicating 
eutrophic conditions (increased levels of nitrogen and phosphorus) in 
Turkey Creek at the town of Morris, downstream of the range of the 
darter. Blanco et al. (1995) also noted increased levels of filamentous 
algae in Dry Creek and above the Turkey Creek Falls, within the range 
of the darter. The vermilion darter habitat along Turkey Creek Road was 
given a poor general index of biological integrity score (a numerical 
evaluation of the biological health of a stream) in 1997 because of 
domestic pollution (Shepard et al. 1998).
    The Alabama Department of Environmental Management has reported 
seven violations for the TCWWTP between April 1995 and March 1998 
(Blanchard in litt. 1998). These violations were for daily maximum 
fecal coliform values of almost 2 to 4 times more than permit limits. 
With local human population growing in the area, the TCWWTP is expected 
to be at full capacity soon, discharging 11,355 cubic meters per day 
(3,000,000 gallons per day) (Blanchard, pers. comm. 1999). A fish kill 
in Turkey Creek in 1997 may have been caused by raw sewage released 
into the creek following a sewage line break and repair (Moss 1997). 
Blanco and Mayden (1999) attributed the absence of darters immediately 
downstream of the TCWWTP to chlorine in treated wastewater overflows. 
However,

[[Page 20795]]

chlorine sterilization of effluent (wastewater outflows) was recently 
replaced with ultraviolet light sterilization.
    There are six impoundments in Turkey and Dry Creeks (i.e., Turkey 
Creek Lakes, Shadow Lake, Strip-mine Lake, Innsbrook Lake, Pinson 
Valley High Pond, and Horse Ranch Pond) (Blanco and Mayden 1999). These 
impoundments serve as dispersal barriers, affect water quality by 
reducing water flow and concentrating pollutants, and contribute to the 
isolation and separation of the vermilion darter populations (Blanco 
and Mayden 1999). Blanco and Mayden (1999) noted a 40-percent decline 
of vermilion darters collected between 1995 and 1998 at two sites 
directly affected by impoundments. Population density estimates, 
expressed as the number of vermilion darters caught per fishing 
attempts and vermilion darters caught per amount of time spent fishing, 
declined by approximately 42 percent and 71 percent, respectively 
(Blanco and Mayden 1997). However, since historical population 
information is unknown, Blanco and Mayden (1997) were unclear if the 
decline represented a long- or short-term decline. Blanco and Mayden 
(1999) noted a 71-percent decline of vermilion darter habitat within 
the species' 11.6-km (7.2-mi) range in the Turkey Creek drainage 
between 1995 and 1998. Approximately 8.2 km (5.1 mi) of the lost 
vermilion darter habitat was associated with the TCWWTP; two 
impoundments, a housing development, and pond dredging along Turkey 
Creek and Dry Creek; and increased siltation due to road maintenance 
along Beaver Creek (Blanco et al. 1995, Blanco and Mayden 1997, Blanco 
and Mayden 1999).

B. Overutilization for Commercial, Recreational, Scientific, or 
Educational Purposes

    In general, small species of fish such as the vermilion darter, 
which are not utilized for either sport or bait purposes, are unknown 
to the general public. However, listing the vermilion darter may make 
it more attractive to collectors through recognition of its rarity. 
Vermilion darters are found in shallow riffles and pools in restricted 
portions of Turkey Creek. These areas are easily accessible from public 
roads or bridges. The darter is also sensitive to a variety of easily 
obtained chemicals and products. These factors would make vandalism 
virtually undetectable and uncontrollable. Collection for scientific 
and educational purposes is not currently identified as a threat, but 
it must be regulated based on this species' restricted range and 
deteriorating habitat.

C. Disease or Predation

    Disease or natural predators do not present any known threats to 
the vermilion darter. To the extent that disease or predation occurs, 
these factors become a more important consideration as the total 
population decreases in number.

D. The Inadequacy of Existing Regulatory Mechanisms

    No environmental laws require persons to specifically consider the 
vermilion darter or ensure that a project will not jeopardize its 
continued existence. The vermilion darter has been designated an 
endangered species by Alabama and is protected under Alabama's Nongame 
Species Regulation 220-2-.92-.90ER, which protects the species from 
overcollecting. Application of current State and Federal water quality 
regulations have not adequately protected the vermilion darter habitat 
from point- and nonpoint-source pollution.

E. Other Natural or Manmade Factors Affecting Its Continued Existence

    The current range of the vermilion darter is restricted to 
localized sites within the mainstem of Turkey Creek and the lowermost 
reaches of Dry Creek and Beaver Creek, within the Turkey Creek 
drainage. Subsequently, genetic diversity has likely declined due to 
fragmentation, separation, and destruction of vermilion darter 
populations. Potential 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, Harris 1984). The long-term viability of a 
species is founded on conservation of numerous interbreeding local 
populations throughout the range of the species (Harris 1984). 
Interbreeding populations of vermilion darters are becoming 
increasingly separated.
    The limited distribution of the vermilion darter makes populations 
vulnerable to extirpation (elimination) from catastrophic events such 
as an accidental toxic chemical spill, heavy pesticide or contaminant 
runoff, increased siltation, vandalism, or changes in flow regimes. A 
major highway (State Highway 79) divides the watershed. Eastward 
(upstream), the watershed is experiencing rapid residential and 
business growth; while to the west (downstream), there are numerous 
commercial, residential, and reclaimed strip-mining sites.
    We have carefully assessed the best scientific and commercial 
information available regarding the past, present, and future threats 
faced by the vermilion darter in determining to propose this rule. 
Based on this evaluation, the preferred action is to list the vermilion 
darter as endangered. The Act defines an endangered species as one that 
is in danger of extinction throughout all, or a significant portion, of 
its range. A threatened species is one that is likely to become 
endangered in the foreseeable future throughout all or a significant 
portion of its range. Endangered status is appropriate for the 
vermilion darter due to its occurrence as isolated meager populations 
within a very limited range, segmented by barriers (i.e., 
impoundments). The escalation of nonpoint-source pollution from 
siltation and nutrification within the species' habitat further 
threatens this species' survival. Isolated population segments are also 
subject to declining genetic diversity, reducing their chances for 
long-term viability. The possibility for catastrophic events (e.g., 
discharges, toxic chemical spills) also poses a threat to the survival 
of the vermilion darter.

Critical Habitat

    Critical habitat is defined in section 3, paragraph (5)(A) of the 
Act as the specific areas within the geographical area occupied by a 
species, at the time it is listed in accordance with the Act, on which 
are found those physical or biological features essential to the 
conservation of the species and that may require special management 
considerations or protection; and specific areas outside the 
geographical area occupied by a species at the time it is listed in 
accordance with the provisions of section 4 of the Act, upon a 
determination by the Secretary that such areas are essential for the 
conservation of the species. ``Conservation'' means the use of all 
methods and procedures needed to bring the species to the point at 
which listing under the Act is no longer necessary.
    Critical habitat designation directly affects only Federal agency 
actions through consultation under section 7(a)(2) of the Act. 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 a listed species or destroy or adversely modify 
its critical habitat.
    Section 4(a)(3) of the Act, as amended, and implementing 
regulations

[[Page 20796]]

(50 CFR 424.12) require that, to the maximum extent prudent and 
determinable, we designate critical habitat at the time the species is 
determined to be endangered or threatened. Our 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.
    We propose that critical habitat is prudent for the vermilion 
darter. In the last few years, a series of court decisions have 
overturned Service determinations regarding a variety of species that 
designation of critical habitat would not be prudent (e.g., Natural 
Resources Defense Council v. U.S. Department of the Interior 113 F. 3d 
1121 (9th Cir. 1997); Conservation Council for Hawaii v. Babbitt, 2 F. 
Supp. 2d 1280 (D. Hawaii 1998)). Based on the standards applied in 
those judicial opinions, we believe that the designation of critical 
habitat for this species would be prudent.
    Due to the small number of populations, the vermilion darter is 
vulnerable to unrestricted collection, vandalism, or other disturbance. 
We remain concerned that these threats might be exacerbated by the 
publication of critical habitat maps and further dissemination of 
locational information. However, we have examined the evidence 
available and have not found specific evidence of taking, vandalism, 
collection, or trade of this species or any similarly situated species. 
Consequently, consistent with applicable regulations (50 CFR 
424.12(a)(1)(i)) and recent case law, we do not expect that the 
identification of critical habitat will increase the degree of threat 
to this species of taking or other human activity.
    In the absence of a finding that critical habitat would increase 
threats to a species, if any benefits would result from critical 
habitat designation, then a prudent finding is warranted. In the case 
of this species, designation of critical habitat may provide some 
benefits. The primary regulatory effect of critical habitat is the 
section 7 requirement that Federal agencies refrain from taking any 
action that destroys or adversely modifies critical habitat. While a 
critical habitat designation for habitat currently occupied by this 
species would not be likely to change the section 7 consultation 
outcome because an action that destroys or adversely modifies such 
critical habitat would also be likely to result in jeopardy to the 
species, in some instances, section 7 consultation might be triggered 
only if critical habitat is designated. Examples could include 
unoccupied habitat or occupied habitat that may become unoccupied in 
the future. Some educational or informational benefits may result from 
designating critical habitat. Therefore, we find that critical habitat 
is prudent for the vermilion darter.
    As explained in detail in the Final Listing Priority Guidance for 
FY2000 (64 FR 57114), our listing budget is currently insufficient to 
allow us to immediately complete all of the listing actions required by 
the Act. We anticipate in FY 2000 and beyond giving higher priority to 
critical habitat designation, including designations deferred pursuant 
to the Final Listing Priority Guidance for FY2000, such as the 
designation for this species, than we have in recent fiscal years. We 
plan to employ a priority system for deciding which outstanding 
critical habitat designations should be addressed first. We will focus 
our efforts on those designations that will provide the most 
conservation benefit, taking into consideration the efficacy of 
critical habitat designation in addressing the threats to the species, 
and the magnitude and immediacy of those threats. Deferral of the 
critical habitat designation for this species will allow us to 
concentrate our limited resources on higher priority critical habitat 
and other listing actions, while allowing us to put in place 
protections needed for the conservation of the vermilion darter without 
further delay. We will make the final critical habitat determination 
with the final listing determination for the vermilion darter. If this 
final critical habitat determination is that critical habitat 
designation is prudent, we will develop a proposal to designate 
critical habitat for this species as soon as feasible, considering our 
workload priorities.

Available Conservation Measures

    Conservation measures provided to species listed as endangered or 
threatened under the 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 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)(4) of the Act requires Federal agencies to 
confer informally with us on any action that is likely to jeopardize 
the continued existence of a proposed species or result in destruction 
or adverse modification of proposed critical habitat. If a species is 
subsequently listed, 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 us.
    Federal activities that could occur and impact the vermilion darter 
include, but are not limited to, the carrying out or the issuance of 
permits for reservoir construction, stream alteration, discharges, 
wastewater facility development, water withdrawal projects, pesticide 
registration, mining, and road and bridge construction. Activities 
affecting water quality may also impact the vermilion darter and are 
subject to the U.S. Army Corps of Engineers' and the U.S. Environmental 
Protection Agency's regulations and permit requirements under the 
authority of the Clean Water Act and the National Pollutant Discharge 
Elimination System (NPDES). It has been our experience, however, that 
nearly all section 7 consultations have been resolved so that species 
are protected and project objectives are met.
    Listing the vermilion darter provides for the development and 
implementation of a recovery plan for the species. This plan will bring 
together Federal, State, and regional agency efforts for conservation 
of the species. A recovery plan will establish a framework for agencies 
to coordinate their recovery efforts. It will also describe the site-
specific management actions necessary to achieve conservation and 
survival of the species.
    The Act and its implementing regulations, found at 50 CFR 17.21, 
set forth a series of general prohibitions and exceptions that apply to 
all endangered wildlife. These prohibitions, in part,

[[Page 20797]]

make it illegal for any person subject to the jurisdiction of the 
United States to take (includes harass, harm, pursue, hunt, shoot, 
wound, kill, trap, capture, collect, or to attempt any such conduct), 
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 endangered wildlife species. It is also illegal to 
possess, sell, deliver, carry, transport, or ship any such wildlife 
that has been taken illegally. Certain exceptions apply to our agents 
and agents of State conservation agencies.
    Our policy, published in the Federal Register on July 1, 1994 (59 
FR 34272), is to identify, to the maximum extent practicable, those 
activities that would or would not constitute a violation of section 9 
of the Act if this species is listed. The intent of this policy is to 
increase public awareness as to the effects of the listing on future 
and ongoing activities within a species' range.
    If the species is listed, we believe the following would not be 
likely to result in a violation of section 9:
    (1) Existing discharges into waters supporting this species, which 
require Federal authorization or permits (e.g., activities subject to 
sections 402, 404, and 405 of the Clean Water Act and discharges 
regulated under the NPDES), provided such discharges are in compliance 
with an incidental take statement and any reasonable and prudent 
measures issued pursuant to a consultation conducted in accordance with 
section 7 of the Act;
    (2) Normal agricultural and silvicultural practices, including 
pesticide and herbicide use, that are carried out in accordance with 
any existing regulations, permit and label requirements, and best 
management practices;
    (3) Development and construction activities designed and 
implemented pursuant to State and local water quality regulations and 
implemented using best management practices;
    (4) Existing recreational activities such as swimming, wading, 
canoeing, and fishing; and
    (5) Lawful commercial and sport fishing.
    Activities that we believe could potentially result in a violation 
of section 9 of the Act, if the vermilion darter was listed, include, 
but are not limited to:
    (1) The unauthorized collection or capture of this species;
    (2) Unauthorized destruction or alteration of the species' habitat 
(e.g., unpermitted instream dredging, channelization, and discharge of 
fill material);
    (3) Violation of any discharge or water withdrawal permit having an 
effect on vermilion darter habitat;
    (4) Illegal discharge or dumping of toxic chemicals or other 
pollutants into waters supporting the vermilion darter; and
    (5) Use of pesticides and herbicides in violation of label 
restrictions within the species' watershed.
    We will review other activities not identified above on a case-by-
case basis to determine if a violation of section 9 of the Act may be 
likely to result from such activity should the vermilion darter become 
listed. We do not consider these lists to be exhaustive and provide 
them as information to the public.
    Questions regarding whether specific activities may constitute a 
violation of section 9 should be directed to the Field Supervisor of 
our Mississippi Field Office (see ADDRESSES section).
    We may issue permits to carry out otherwise prohibited activities 
involving endangered wildlife species under certain circumstances. 
Regulations governing permits are at 50 CFR 17.22 and 17.23. Such 
permits are available for scientific purposes, to enhance the 
propagation or survival of the species, for incidental take in 
connection with otherwise lawful activities, and/or economic hardship. 
Requests for copies of the regulations and inquiries about prohibitions 
and permits may be addressed to the U.S. Fish and Wildlife Service, 
Ecological Services Division, 1875 Century Blvd., Atlanta, GA, 30345 
(telephone 404/679-7313; facsimile 404/679-7081).

Public Comments Solicited

    We intend that any final action resulting from this proposal will 
be as accurate and as effective as possible. Therefore, we request 
comments or suggestions from the public, other concerned governmental 
agencies, the scientific community, industry, or any other interested 
party concerning this proposed rule. We particularly seek comments 
concerning:
    (1) Biological, commercial trade, or other relevant data concerning 
any threat (or lack thereof) to this species;
    (2) The location of any additional populations of this species and 
the reasons why any habitat should or should not be determined to be 
critical habitat as provided by section 4 of the Act;
    (3) Additional information concerning the range, distribution, and 
population size of this species; and
    (4) Current or planned activities in the subject area and their 
possible impacts on this species.
    We will take into consideration any comments and additional 
information received on this species when making a final determination 
regarding this proposal. Our practice is to make comments, including 
names and home addresses of respondents, available for public review 
during regular business hours. Individual respondents may request that 
we withhold their home address from the rulemaking record, which we 
will honor to the extent allowable by law. There also may be 
circumstances in which we would withhold from the rulemaking record a 
respondent's identity, as allowable by law. If you wish us to withhold 
your name and/or address, you must state this prominently at the 
beginning of your comment. However, we will not consider anonymous 
comments. We will make all submissions from organizations or 
businesses, and from individuals identifying themselves as 
representatives or officials of organizations or businesses, available 
for public inspection in their entirety.
    In accordance with interagency policy published on July 1, 1994 (59 
FR 34270), upon publication of this proposed rule in the Federal 
Register, we will solicit expert reviews by at least three specialists 
regarding pertinent scientific or commercial data and assumptions 
relating to the taxonomic, biological, and ecological information for 
the vermilion darter. The purpose of such a review is to ensure that 
listing decisions are based on scientifically sound data, assumptions, 
and analyses, including the input of appropriate experts. We will 
summarize the opinions of these reviewers in the final decision 
document. The final determination may differ from this proposal based 
upon the information we receive.
    You may request a public hearing on this proposal. Your request for 
a hearing must be made in writing and filed within 45 days of the date 
of publication of this proposal in the Federal Register. Address your 
requests to the Field Supervisor (see ADDRESSES section).

Executive Order 12866

    Executive Order 12866 requires each agency to write regulations 
that are easy to understand. We invite your comments on how to make 
this rule easier to understand including answers to the following: (1) 
Are the requirements of the rule clear? (2) Is the discussion of the 
rule in the Supplementary Information section of the preamble helpful 
to understanding

[[Page 20798]]

the rule? (3) What else could we do to make the rule easier to 
understand?

National Environmental Policy Act

    We have determined that an environmental assessment and 
environmental impact statement, 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 
Act. We published a notice outlining our reasons for this determination 
in the Federal Register on October 25, 1983 (48 FR 49244).

Paperwork Reduction Act

    This rule does not contain any new collections of information other 
than those already approved under the Paperwork Reduction Act, 44 
U.S.C. 3501 et seq., and assigned Office of Management and Budget 
clearance number 1018-0094. An agency may not conduct or sponsor, and a 
person is not required to respond to, a collection of information 
unless it displays a currently valid control number. For additional 
information concerning permit and associated requirements for 
endangered species, see 50 CFR 17.22.

References Cited

    A complete list of all references cited in this document, as well 
as others, is available upon request from the Field Supervisor (see 
ADDRESSES section).

Author

    The primary author of this document is Daniel J. Drennen (see 
ADDRESSES section) (601/965-4900).

List of Subjects in 50 CFR Part 17

    Endangered and threatened species, Exports, Imports, Reporting and 
recordkeeping requirements, Transportation.

Proposed Regulation Promulgation

    Accordingly, we propose to amend part 17, subchapter B of chapter 
I, title 50 of the Code of Federal Regulations, as follows:

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 section 17.11(h) by adding the following to the List of 
Endangered and Threatened Wildlife, in alphabetical order under FISHES:


Sec. 17.11  Endangered and threatened wildlife.

* * * * *
    (h) * * *

--------------------------------------------------------------------------------------------------------------------------------------------------------
                        Species                                                    Vertebrate
--------------------------------------------------------                        population where                                  Critical     Special
                                                            Historic range       endangered or         Status      When listed    habitat       rules
           Common name                Scientific name                              threatened
--------------------------------------------------------------------------------------------------------------------------------------------------------
              Fishes
 
                   *                  *                  *                  *                  *                  *                  *
Darter, vermilion................  Etheostoma chermocki  U.S.A. (AL)........  Entire.............  E               ...........           NA           NA
 
                   *                  *                  *                  *                  *                  *                  *
--------------------------------------------------------------------------------------------------------------------------------------------------------


    Dated: April 5, 2000.
Jamie Rappaport Clark,
Director, Fish and Wildlife Service.
[FR Doc. 00-9672 Filed 4-17-00; 8:45 am]
BILLING CODE 4310-55-P