[Federal Register Volume 66, Number 229 (Wednesday, November 28, 2001)]
[Rules and Regulations]
[Pages 59367-59373]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-29329]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AG05


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

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), determine 
the vermilion darter (Etheostoma chermocki) to be endangered under the 
authority of the Endangered Species Act of 1973, as amended (Act). The 
current range of the vermilion darter is 11.6 kilometers (km) (7.2 
miles (mi)) of the mainstem of Turkey Creek and the lower reaches of 
(0.8 km (0.5 mi) total) of Dry and Beaver Creeks where they intersect 
Turkey Creek. Turkey Creek is a tributary of the Locust Fork of the 
Black Warrior River, and is found in 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 action extends the protection 
of the Act to the vermilion darter.

EFFECTIVE DATE: December 28, 2001.

ADDRESSES: The complete file for this rule is available for inspection, 
by appointment, during normal business hours at the Mississippi Field 
Office, U.S. Fish and Wildlife Service, 6578 Dogwood View Parkway, 
Jackson, Mississippi, 39213.

FOR FURTHER INFORMATION CONTACT: Mr. Daniel J. Drennen at the above 
address, or telephone 601/321-1127; 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

[[Page 59368]]

(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 compressed laterally and 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 lower sides 
and 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 
just above the midline (Boschung et al. 1992, Suttkus and Bailey 1993, 
and Metee et al. 1996). The female's red spots are smaller.
    The Southeastern Fishes Council Technical Advisory Committee of the 
American Fisheries Society (Warren et al. 2000) listed the vermilion 
darter as endangered within the Tombigbee-Black Warrior river drainage. 
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 lower reaches (0.8 km (0.5 mi) total) of Dry and Beaver Creeks 
where they intersect Turkey Creek. Extensive surveys in similar 
habitats have failed to locate this species outside its current 
drainage (Boschung et al. 1992, Blanco et al. 1995, Mettee 1996, 
Shepard et al. 1998, Blanco and Mayden 1999). The Turkey Creek drainage 
is primarily owned by private landowners; approximately 2.2 km (1.4 mi) 
of stream bank is 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 current 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, the 
sparse populations of vermilion darters are isolated within certain 
areas of Turkey Creek, by both natural and manmade barriers, including 
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 the decline in water quality by point source 
pollution, like industrial effluent and nonpoint-source pollution, 
pollution created from larger processes and not from one concentrated 
point source, like excess sediment from a construction site washing 
into a stream after a rain. Blanco and Mayden (1999) estimated the 
population size of darters, assuming they are uniformly distributed 
throughout their range, as between 1,847 and 3,238 individuals, based 
on the number of vermilion darters caught per fishing attempts and the 
amount of time spent sampling 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, usually at 
the head and foot of riffles and downstream of the run habitat (stream 
zones with faster water) where the water becomes deeper and slower. 
They are usually absent from the riffle proper (shallow, fast-flowing 
water upstream of the run) and the run proper (deeper, fast-flowing 
water) and are found in the transition zone between a run/riffle (fast 
water) and pool (slow water) (Blanco and Mayden 1999). This species is 
generally not found in deeper pools. Vermilion darters are associated 
with aquatic vegetation such as Nasturtium officinale, Potamogeton 
spp., Ceratophyllum spp., and Myriophyllum spp. (Boshung et al. 1992, 
Blanco et al. 1995).
    The only documented spawning habitat for vermilion darters, near 
the confluence of Turkey Creek and the runoff from Tapawingo Springs, 
consists of a mixture of fine silt on small gravel interspersed with 
larger gravel, cobble, small boulders, aquatic vegetation, and 
occasional filamentous algae (Stiles, Samford University, Birmingham, 
Alabama, pers. comm. 1999). Clean rock surfaces, documented at this 
site, are necessary for egg laying (Stiles, 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 snubnose darters 
typically 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, 
Blanco et al. 1996, and Blanco and Mayden 1997) and a Partners for Fish 
and Wildlife Project which included restoration of a portion of the 
bank of Turkey Creek.
    We received a petition dated July 22, 1998, 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 
petitioners 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).
    The Act requires that we issue a finding as to whether the 
petitioned action is warranted within 12 months of receipt of the 
petition. The 12 month-finding resulted in a proposal to list the 
vermilion darter as endangered which we published in the Federal 
Register on April 18, 2000 (65 FR 20792). On March 9, 2001, 
Biodiversity Legal Foundation and Wild Alabama filed a complaint 
challenging the alleged failure of the Service to list the vermilion 
darter as an endangered species under the Act [CV-01-G-0607-S, D.-AL]. 
This final rule is made in accordance with a judicially approved 
settlement agreement, that requires us to submit for publication in the 
Federal Register a final listing determination for the vermilion darter 
on or before November 19, 2001.

Summary of Comments and Recommendations

    In the April 18, 2000, proposed rule (65 FR 20792) and associated 
notifications, we requested that all interested parties submit factual 
reports or information that might contribute to the development of this 
final rule. The comment period for the proposed rule was open from 
April 18 through June

[[Page 59369]]

19, 2000. We contacted appropriate Federal and State agencies, county 
governments, scientific organizations, and other interested parties and 
requested that they comment. We published a legal notice in The 
Birmingham News on April 22, 2000, announcing the proposal and inviting 
comment. We received nine comment letters through regular mail and 
electronic mail (e-mail). Two of these were opposed and seven were in 
favor of the listing. The breakdown of the comments included two from 
the State of Alabama, one from Jefferson County, one from a business 
association, one from a non-profit environmental law firm, two from 
environmental groups, and two from academia. The Department of 
Conservation and Natural Resources for the State of Alabama supported 
the protection of the vermilion darter under the Act. We had no 
requests for a public hearing.
    We updated the final rule to reflect comments and information we 
received during the comment period. We address opposing comments and 
other substantive comments concerning the rule below.
    Issue 1. The current levels of environmental protections being 
utilized in residential construction and wastewater management are more 
than adequate to protect the darter.
    Response. We took into consideration and incorporated into the rule 
the part of the comment concerning current wastewater treatment 
management practices as adequate to protect the darter. We overstated 
the negative influence of treated effluent on the vermilion darter in 
the proposed rule. We have reevaluated its influence on the survival of 
the species. Based on current information, we believe that current 
protection at the Turkey Creek Waste Water Treatment Plant (TCWWTP) is 
adequate and not a significant threat to the vermilion darter. At this 
time, there are no data to document a negative influence of the 
wastewater treatment plant on the vermilion darter.
    However, no new information was presented concerning environmental 
protection at residential and industrial construction sites along 
Turkey Creek that would protect the vermilion darter. We do not believe 
that current measures are adequately protecting the vermilion darter. 
Specifically, sediment is the most abundant pollutant produced in the 
Mobile River Basin (Alabama Department of Environmental Management 
1996). Potential sediment sources within the vermilion darter's habitat 
include essentially all activities that disturb the land surface such 
as construction and urbanization. Vermilion darter habitat within 
Turkey Creek has been noted to be brown-orange from sediment and 
completely turbid after heavy to even medium rainfalls (Blanchard pers. 
comm. 1998, Drennen 1999 pers. obs.). Blanchard et al. (1998) 
identified five specific nonpoint-source siltation sites that are 
impacting or have impacted the Turkey Creek watershed, all which affect 
the vermilion darter's habitat. The application of current State and 
Federal water quality regulations have not adequately protected the 
vermilion darter habitat from point- and nonpoint-source pollution (see 
Factor A, Summary of Factors Affecting the Species).
    Issue 2. The current range of the vermilion darter is not 
adequately defined.
    Response: The description of the range of the vermilion darter in 
this final rule reflects the scientific literature published by species 
experts. There has been no information submitted to us to indicate 
otherwise. 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 lower reaches of (0.8 km (0.5 mi) total) Dry and Beaver Creeks 
where they intersect Turkey Creek. Extensive surveys in similar 
habitats have failed to locate this species outside of this drainage 
(Boschung et al. 1992, Blanco et al. 1995, Mettee et al. 1996, Shepard 
et al. 1998, Blanco and Mayden 1999).
    Issue 3: The Service's failure to designate critical habitat seems 
inconsistent with the purported urgency of the vermilion darter's 
listing.
    Response: We believe it is more important at this time to provide 
the vermilion darter with the protections the Act affords to endangered 
species then to delay a final listing decision while developing a 
critical habitat proposal. We will designate critical habitat for this 
species, when resources are available and consistent with our listing 
priorities.
    Issue 4: Scientific basis for listing is not adequately documented.
    Response: We disagree. We thoroughly reviewed all scientific data 
available on this species in preparing the proposed rule. We contacted 
experts and sought and reviewed historic and recent publications and 
unpublished reports concerning the vermilion darter and the subgenus 
Ulocentra (``snub-nosed darters''). We based our opinion on the best 
scientific and commercial data available, as required by section 
4(b)(1) of the Act. We have reviewed this information and any new 
information available since the date of the proposed rule in making 
this final listing decision.

Peer Review

    In accordance with our peer review policy published on July 1, 1994 
(59 FR 34270), we requested the expert opinions of three independent 
specialists regarding pertinent scientific or commercial data and 
assumptions relating to supportive biological and ecological 
information in the proposed rule. The purpose of such review is to 
ensure that the listing decision is based on scientifically sound data, 
assumptions, and analyses, including input of appropriate experts and 
specialists.
    We requested three academicians who possess expertise on darter 
natural history and ecology to review the proposed rule and provide any 
relevant scientific data relating to taxonomy, distribution, or to the 
supporting biological data used in our analyses of the listing factors. 
All expressed their belief that the data supported protection of the 
vermilion darter under the Act. We have incorporated their comments 
into the final rule, as appropriate, and summarized their observations 
below.
    One reviewer clarified the exact location of the reddish-orange 
pigmentation of the darter to the lower sides and especially on the 
belly. This same reviewer specified the upper population estimates of 
the vermilion darter (Blanco and Mayden 1999) at an estimated 3,300 
individuals, based on drainage units and habitat types and being 
uniformly distributed within their range. In the discussion on habitats 
of the vermilion darters and water velocities, one reviewer commented 
that vermilion darters usually do not occur in fast water and are found 
at the head of riffles and are absent in the riffle proper (shallow, 
fast-flowing water downstream and adjacent to the riffle) and at the 
foot of the run.

Summary of Factors Affecting the Species

    After a thorough review and consideration of all information 
available, we determined that the vermilion darter should be classified 
as an endangered species. We followed the procedures found at section 
4(a)(1) of the Act (16 U.S.C. 1531 et seq.) and regulations (50 CFR 
part 424) issued to implement the listing provisions of the Act. We may 
determine a species to be endangered or threatened due to one or more 
of the five factors described in

[[Page 59370]]

section 4(a)(1). These factors and their application to the vermilion 
darter (Etheostoma chermocki Boschung and Mayden 1992) 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 present, such as 
nitrogen and phosphorus), 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 suffocate periphyton (organisms that 
live attached to objects underwater), disrupt aquatic insect 
communities, and negatively impact fish growth, physiology, behavior, 
reproduction, and survival (Waters 1995, Knight and Welch 2001). 
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. Local land use practices, such as 
construction, urbanization, and silviculture, affect the amount of 
sedimentation and its impact to fish habitat. 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); all are considered highly erodible due to the 
steep topography (R. Goode, Natural Resources Conservation Service, 
Birmingham, Alabama, pers. comm. 1998). Urbanization has contributed 
significantly to siltation within the Turkey Creek watershed. Turkey 
Creek watershed drains 22,149 hectares (54,731 acres) of Jefferson 
County, the most populous county in the State. Blanco (2001) believed 
that the greatest threat to the fauna of Turkey Creek was siltation 
from development projects. Blanchard et al. (1998) identified five 
specific nonpoint-source siltation sites that have impacted the Turkey 
Creek watershed, including a major road extension within 304 m (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).
    Nutrification is a major problem in Turkey Creek. Water quality 
data for Turkey Creek taken between September 1996 and February 1997 
upstream of the 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 (run off)) 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 the clean rock or gravel habitats necessary for 
vermilion darter feeding and spawning. Shepard et al. (1998) noted a 
thin veneer of algae, and O'Neil and Shepard (2001) documented high 
turbidity, both indicating eutrophic conditions (increased levels of 
nitrogen and phosphorus) in Turkey Creek at the town of Morris, 
approximately 9.6 km (6.0 mi) 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). Historically, Turkey Creek, 
along with other tributaries to the Locust Fork of the Warrior River, 
have not met dissolved oxygen standards due primarily to inadequate 
flows necessary to assimilate treated wastewater discharges (Shepard et 
al. 1998).
    In the proposed rule we believed the absence of vermilion darters 
in Turkey Creek, below the TCWWTP effluent pipe, was the result of a 
combination of marginal habitat, sedimentation, and possibly 
chlorinized effluent. However, investigations by TCWWTP biologists 
attributed a past fish kill to pesticide runoff into the creek from a 
close housing development (Swann 2000). In addition, Howell (1998, memo 
to James Wood, Jefferson County Barton Laboratories) collected a 
vermilion darter 106 m (350 ft) downstream of the TCWWTP and noted five 
adults and one juvenile vermilion darter below the weir of the effluent 
pipe.
    Finally, the TCWWTP has been noted nationally for experiencing 5 or 
less exceptions to their discharge permit requirements in 1999 
(Jefferson County, 2000 a). Current management has demonstrated careful 
monitoring of all effluent (wastewater outflows) into Turkey Creek 
(Drennen pers.obs. 2000) and does not appear to be a threat to the 
vermilion darter at this time. Specifically, chlorine sterilization of 
effluent was replaced with ultraviolet light sterilization. An 
abundance of unidentified fish species, including darters, were 
observed at the effluent pipe in July, 2000 (Drennen pers. obs.). 
Blanco (2001) was optimistic that recolonization of darters would occur 
in areas immediately below the effluent pipe.
    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, altering temperature, 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 (8.2 km (5.1 
mi)) in vermilion darter habitat within the species' current range. 
This loss of vermilion darter habitat occurred between 1995 and 1998 
and appears to be associated with 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

[[Page 59371]]

public. However, listing the vermilion darter may make it more 
attractive to collectors through recognition of its rarity. Vermilion 
darters are found around shallow riffles and pools in specific portions 
of the Turkey Creek drainage. 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 
over-collecting. 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; to the west (downstream), there are numerous 
commercial, residential, and reclaimed strip-mining sites.
    Jefferson County has proposed an acquisition plan to preserve 254 
ha (630 ac) of the Turkey Creek watershed between Alabama Highway 79 
and Disposal Plant Road (Jefferson County 2000b). This will assist in 
protecting the water quality of 2.9 km (1.8 mi) of the creek. Penny 
Springs has been acquired and current negotiations to acquire Tapawingo 
Springs and other surrounding lands by the Cahaba Land Trust will 
protect water quality of Turkey Creek at the darter's known spawning 
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 make this rule final. 
Based on this evaluation, the most appropriate 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 small 
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: (i) 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 (I) essential to 
the conservation of the species and (II) that may require special 
management considerations or protection; and (ii) specific areas 
outside the geographical area occupied by a species at the time it is 
listed, 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.
    Section 4(a)(3) of the Act and our implementing regulations (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--(i) the species is threatened 
by taking or other human activity, and the identification of critical 
habitat can be expected to increase the degree of threat to the 
species, or (ii) such designation of critical habitat would not be 
beneficial to the species.
    In the last few years, a series of court decisions have overturned 
Service determinations regarding a variety of species (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 are 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 identification of critical habitat 
would increase threats to a species, if any benefits would result from 
the designation of critical habitat, then a prudent finding is 
warranted.
    In the proposed rule, where we also determined critical habitat to 
be prudent, we stated that we would make a final critical habitat 
determination with the final listing determination for

[[Page 59372]]

the vermilion darter. However, our budget for listing activities is 
currently insufficient to allow us to immediately complete all of the 
listing actions required by the Act. Listing the vermilion darter 
without designation of critical habitat will allow us to concentrate 
our limited resources on other listing actions that must be addressed, 
while allowing us to invoke protections needed for the conservation of 
this species without further delay. This is consistent with section 
4(b)(6)(C)(i) of the Act, which states that final listing decisions may 
be issued without critical habitat designation when it is essential 
that such determinations be promptly published. We will prepare a 
critical habitat designation in the future at such time when our 
available resources and priorities allow.

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 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 
designated. Regulations implementing this interagency cooperation 
provision of the Act are codified at 50 CFR part 402. Section 7(a)(4) 
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) 
of the Act 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.
    Section 9 of 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, 
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.
    We believe, based on the best available information, that the 
following activities are unlikely 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 the take of 
the vermilion darter, 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 when the vermilion darter is 
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.

[[Page 59373]]

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, 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 404/679-4176; facsimile 404/679-7081).

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 
Endangered Species Act, as amended. 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) (601/321-1127).

List of Subjects in 50 CFR Part 17

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

Regulation Promulgation

    Accordingly, we 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, 
to read as follows:


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                       715           NA           NA
 
                   *                  *                  *                  *                  *                  *                  *
--------------------------------------------------------------------------------------------------------------------------------------------------------


    Dated: November 15, 2001.
Marshall P. Jones Jr.,
Acting Director, Fish and Wildlife Service.
[FR Doc. 01-29329 Filed 11-27-01; 8:45 am]
BILLING CODE 4310-55-P