[Federal Register Volume 75, Number 21 (Tuesday, February 2, 2010)]
[Proposed Rules]
[Pages 5263-5278]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-2007]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[FWS-R4-ES-2008-0071; 92220-1113-0000-C6]
RIN 1018--AW07


Endangered and Threatened Wildlife and Plants; Proposed 
Reclassification of the Okaloosa Darter From Endangered to Threatened 
and Proposed Special Rule

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), propose to 
reclassify the Okaloosa darter (Etheostoma okaloosae) from endangered 
to threatened under the authority of the Endangered Species Act of 
1973, as amended (Act). The endangered designation no longer correctly 
reflects the current status of this fish due to a substantial 
improvement in the species' status. This proposed action is based on a 
thorough review of the best available scientific and commercial data, 
which indicates a substantial reduction in threats to the species, 
significant habitat restoration in most of the species' range, and a 
stable or increasing trend of darters in all darter stream systems. We 
also propose a special rule under section 4(d) of the Act. This special 
rule would allow Eglin Air Force Base to continue activities, with a 
reduced regulatory burden, and would provide a net benefit to the 
Okaloosa darter. We are seeking information, data and comments from the 
public on this proposal.

DATES: To ensure that we are able to consider your comments on this 
proposed rule, they must be received on or before April 5, 2010. We 
must receive requests for public hearings, in writing, at the address 
shown in the FOR FURTHER INFORMATION CONTACT section by March 19, 2010.

ADDRESSES: You may submit comments by one of the following methods:
     Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments to Docket No. FWS-R4-
ES-2008-0071.
     U.S. mail or hand-delivery: Public Comments Processing, 
Attn: FWS-R4-ES-2008-0071; Division of Policy and Directives 
Management; U.S. Fish and Wildlife Service; 4401 N. Fairfax Drive, 
Suite 222; Arlington, VA 22203.
    We will post all comments on http://www.regulations.gov. This 
generally means that we will post any personal information you provide 
us (see the Public Comments section below for more information).

FOR FURTHER INFORMATION CONTACT: Don Imm, Deputy Field Supervisor, U.S. 
Fish and Wildlife Service, Panama City Field Office, 1601 Balboa Ave., 
Panama City, FL 32405; telephone (850) 769-0552. Individuals who are 
hearing-impaired or speech-impaired may call the Federal Information 
Relay Service at (800) 877-8339 for TTY assistance 24 hours a day, 7 
days a week.

SUPPLEMENTARY INFORMATION: 

Public Comment Procedures

    To ensure that any final action resulting from this proposed rule 
will be as accurate and as effective as possible, we request that you 
send relevant information for our consideration. The comments that will 
be most useful and likely to influence our decisions are those that are 
supported by data or peer-reviewed studies and those that include 
citations to, and analyses of, applicable laws and regulations. Please 
make your comments as specific as possible and explain the basis for 
them. In addition, please include sufficient information with your 
comments to allow us to authenticate any scientific or commercial data 
you reference or provide. In particular, we seek comments concerning 
the following:
    (1) Biological, trade, or other relevant data concerning any threat 
(or lack thereof) to the Okaloosa darter, including whether or not 
climate change is a threat to the Okaloosa darter;
    (2) The location of any additional populations of the Okaloosa 
darter;
    (3) Additional information concerning the range, distribution, and 
population size and population trends of the Okaloosa darter;
    (4) Current or planned activities within the geographic range of 
the Okaloosa darter that may impact or benefit the species including 
the proposed toll bypass road; and
    (5) Activities relevant to Okaloosa darter and its habitat that are 
proposed for inclusion in the special rule under section 4(d) of the 
Act (16 U.S.C. 1531 et seq.).
    Please note that submissions merely stating support for or 
opposition to the action under consideration without providing 
supporting information, although noted, will not be considered in 
making a determination, as section 4(b)(1)(A) of the Act directs that a 
determination as to whether any species is a threatened or endangered 
species must be made ``solely on the basis of the best scientific and 
commercial data available.''
    Prior to issuing a final rule on this proposed action, we will take 
into consideration all comments and any additional information we 
receive. Such information may lead to a final rule that differs from 
this proposal. All comments and recommendations, including names and 
addresses, will become part of the administrative record.
    You may submit your comments and materials concerning this proposed 
rule by one of the methods listed in the ADDRESSES section. If you 
submit a comment via http://www.regulations.gov, your entire comment--
including any personal identifying information--will be posted on the 
Web site. Please note that comments posted to this Web site are

[[Page 5264]]

not immediately viewable. When you submit a comment, the system 
receives it immediately. However, the comment will not be publically 
viewable until we post it, which might not occur until several days 
after submission.
    If you mail or hand-deliver a hardcopy comment that includes 
personal identifying information, you may request at the top of your 
document that we withhold this information from public review. However, 
we cannot guarantee that we will be able to do so. To ensure that the 
electronic docket for this rulemaking is complete and all comments we 
receive are publicly available, we will post all hardcopy submissions 
on http://www.regulations.gov.
    In addition, comments and materials we receive, as well as 
supporting documentation we used in preparing this proposed rule, will 
be available for public inspection in two ways:
    (1) You can view them on http://www.regulations.gov. In the Search 
Documents box, enter, FWS-R4-ES-2008-0071, which is the docket number 
for this rulemaking. Then, in the Search panel on the left side of the 
screen, select the type of documents you want to view under the 
Document Type heading.
    (2) You can make an appointment during normal business hours to 
view the comments and materials in person at the U.S. Fish and Wildlife 
Service, Panama City Field Office (see FOR FURTHER INFORMATION 
CONTACT).

Public Availability of Comments

    Before including your address, phone number, e-mail address, or 
other personal identifying information in your comment, you should be 
aware that your entire comment--including your personal identifying 
information--may be made publicly available at any time. While you can 
ask us in your comment to withhold your personal identifying 
information from public review, we cannot guarantee that we will be 
able to do so.

Public Hearing

    Section 4(b)(5)(E) of the Act provides for one or more public 
hearings on this proposal, if requested. We must receive requests for 
public hearings, in writing, at the address shown in FOR FURTHER 
INFORMATION CONTACT section by the date shown in the DATES section. We 
will schedule public hearings on this proposal, if any are requested, 
and announce the dates, times, and places of those hearings, as well as 
how to obtain reasonable accommodations, in the Federal Register at 
least 15 days before the first hearing.

Previous Federal Action

    We proposed listing the Okaloosa darter as endangered on January 
15, 1973 (38 FR 1521) and listed the species as endangered under the 
Act on June 4, 1973 (38 FR 14678) due to its extremely limited range, 
habitat degradation, and apparent competition from a possibly 
introduced related species, the brown darter. We completed a recovery 
plan for the species on October 23, 1981, and a revised recovery plan 
on October 26, 1998.
    On June 21, 2005, we provided notice in the Federal Register that 
we were initiating a 5-year status review under the Act for the 
Okaloosa darter (70 FR 35689). In that notice, we specifically 
requested information on:
    (1) The status of the Okaloosa darter in areas outside the 
boundaries of Eglin Air Force Base (AFB), Florida;
    (2) Threats to the species and its habitat, including the areas in 
the Turkey Creek, Swift Creek, and East Turkey Creek watersheds outside 
the boundaries of Eglin AFB; and
    (3) Conservation measures in these same areas that may have 
benefited the Okaloosa darter.
    The 5-year status review was completed in July 2007, and is 
available on our Web site at http://www.fws.gov/southeast/5yearReviews/5yearreviews/okaloosa_darterfinal.pdf.

Background

    The Okaloosa darter, Etheostoma okaloosae, is a member of the 
family Percidae. It is a small, perch-like fish (maximum size is 49 
millimeters (mm) (1.93 inches (in.)) Standard Length) that is 
characterized by a well-developed humeral spot, a series of five to 
eight rows of small spots along the sides of the body, and the first 
anal spine being longer than the second. General body coloration varies 
from red-brown to green-yellow dorsally, and lighter ventrally, 
although breeding males have a bright orange submarginal stripe on the 
first dorsal fin (Burkhead et al. 1992, p. 23).
    The Okaloosa darter is known to occur in only six clear stream 
systems that drain into two Choctawhatchee Bay bayous in Walton and 
Okaloosa Counties in northwest Florida. They have been found only in 
the tributaries and main channels of Toms, Turkey, Mill, Swift, East 
Turkey, and Rocky Creeks. Approximately 90 percent of the 457 square 
kilometer (176 square mile) watershed drainage area is under the 
management of Eglin AFB, and we estimate that 98.7 percent of the 
darter's extant range is within the boundaries of Eglin AFB. The 
remainder of the watershed and extant range is within the urban complex 
of the Cities of Niceville and Valparaiso (USAF 2006, p. 3-1).
    Longleaf pine-wiregrass-red oak sandhill communities dominate the 
vegetation landscape in Okaloosa darter watershed basins. These areas 
are characterized by high sand ridges where soil nutrients are low and 
woodland fire is a regular occurrence. Where water seeps from these 
hills, acid bog communities of Sphagnum sp. (sphagnum moss), Sarracenia 
sp. (pitcher plants), and other plants adapted to low nutrient soils 
develop. In other areas, the water emerges from seepage springs 
directly into clear flowing streams where variation of both temperature 
and flow is moderated by the deep layers of sand. The streams support a 
mixture of Mayaca fluviatilis (bog moss), Scirpus etuberculatus 
(bulrush), Orontium aquaticum (golden club), Sparganium americanum 
(burr-weed), Potamogeton diversifolius (pondweed), Eleocharis sp. 
(spikerush), and other aquatic and emergent plants.
    Okaloosa darters typically inhabit the margins of moderate to fast 
flowing streams where detritus, root mats, and vegetation are present. 
Historic densities averaged about two darters per meter (3.28 feet) of 
stream length while more recent abundance estimates show an increase to 
an average of 2.9 darters per meter (Jordan and Jelks 2004, p. 3; USAF 
2006, p. 3-1). They have not been collected in areas where there is no 
current or in open sandy areas in the middle of the stream channel. The 
creeks with Okaloosa darters are generally shaded over most of their 
courses, with temperatures ranging from 20[deg] to 22[deg] Celsius 
(68[deg] to 72[deg] Fahrenheit) in the winter (Tate 2008, pers. comm.) 
to 22[deg] to 24[deg] Celsius (72[deg] to 75[deg] Fahrenheit) in the 
summer (Mettee and Crittenden 1977, p. 5).
    Okaloosa darters feed primarily on fly larvae (Diptera sp.) mayfly 
nymphs (Ephemeroptera sp.), and caddis fly (Trichoptera sp.) larvae 
(Ogilvie 1980, as referenced in Burkhead et al. 1992, p. 26). The 
breeding season extends from late March through October, although it 
usually peaks in April. Spawning pairs have been videographed attaching 
one or two eggs to vegetation, and observed attaching eggs to woody 
debris and root mats (Collete and Yerger 1962, p. 226; Burkhead et al. 
1994, p. 81). Ogilvie (1980, as referenced in Burkhead et al. 1992, p. 
26) found a mean of 76 ova (unfertilized eggs) and 29 mature ova in 201 
female Okaloosa darters, although these numbers may underrepresent 
annual fecundity as the prolonged spawning season is an indication of

[[Page 5265]]

fractional spawning (eggs develop and mature throughout the spawning 
season). Estimates of longevity range from 2 to 4 years (Burkhead et 
al. 1992, p. 27; Tate 2008, pers. comm.).

Recovery

    Section 4(f) of the Act directs us to develop and implement 
recovery plans for the conservation and survival of threatened and 
endangered species unless we determine that such a plan will not 
promote the conservation of the species. The Act directs that, to the 
maximum extent practicable, we incorporate into each plan:
    (1) Site-specific management actions that may be necessary to 
achieve the plan's goals for conservation and survival of the species;
    (2) Objective, measurable criteria, which when met would result in 
a determination, in accordance with the provisions of section 4 of the 
Act, that the species be removed from the list; and
    (3) Estimates of the time required and cost to carry out the plan.
    However, revisions to the list (adding, removing, or reclassifying 
a species) must reflect determinations made in accordance with sections 
4(a)(1) and 4(b) of the Act. Section 4(a)(1) requires that the 
Secretary determine whether a species is threatened or endangered (or 
not) because of one or more of five threat factors. Therefore, recovery 
criteria must indicate when a species is no longer threatened or 
endangered by any of the five factors. In other words, objective, 
measurable criteria, or recovery criteria, contained in recovery plans 
must indicate when an analysis of the five threat factors under 4(a)(1) 
would result in a determination that a species is no longer threatened 
or endangered. Section 4(b) requires the determination made under 
section 4(a)(1) as to whether a species is threatened or endangered 
because of one or more of the five factors be based on the best 
available science.
    Thus, while recovery plans are intended to provide guidance to the 
Service, states, and other partners on methods of minimizing threats to 
listed species and on criteria that may be used to determine when 
recovery is achieved, they are not regulatory documents and cannot 
substitute for the determinations and promulgation of regulation 
required under section 4(a)(1). Determinations to remove a species from 
the list made under section 4(a)(1) must be based on the best 
scientific and commercial data available at the time of the 
determination, regardless of whether that information differs from the 
recovery plan.
    In the course of implementing conservation actions for a species, 
new information is often gained that requires recovery efforts to be 
modified accordingly. There are many paths to accomplishing recovery of 
a species, and recovery may be achieved without all criteria being 
fully met. For example, one or more criteria may have been exceeded 
while other criteria may not have been accomplished, yet the Service 
may judge that, overall, the threats have been minimized sufficiently, 
and the species is robust enough, to reclassify the species from 
endangered to threatened or perhaps delist the species. In other cases, 
recovery opportunities may have been recognized that were not known at 
the time the recovery plan was finalized. These opportunities may be 
used instead of methods identified in the recovery plan.
    Likewise, information on the species may be learned that was not 
known at the time the recovery plan was finalized. The new information 
may change the extent that criteria need to be met for recognizing 
recovery of the species. Overall, recovery of species is a dynamic 
process requiring adaptive management, planning, implementing, and 
evaluating the degree of recovery of a species that may, or may not, 
fully follow the guidance provided in a recovery plan.
    Thus, while the recovery plan provides important guidance on the 
direction and strategy for recovery, and indicates when a rulemaking 
process may be initiated, the determination to remove a species from 
the Federal List of Endangered and Threatened Species is ultimately 
based on an analysis of whether a species is no longer threatened or 
endangered. The following discussion provides a brief review of 
recovery planning for the Okaloosa darter as well as an analysis of the 
recovery criteria and goals as they relate to evaluating the status of 
the species.
    The recovery plan for the Okaloosa darter was approved on October 
23, 1981 (Service 1981, 18 pp.) and revised on October 26, 1998 
(Service 1998, 42 pp.). The recovery plan identifies a recovery 
objective of downlisting, and eventually delisting, the Okaloosa darter 
by enabling wild populations capable of coping with natural habitat 
fluctuations to persist indefinitely in the six stream systems they 
inhabit by restoring and protecting stream habitat, water quality, and 
water quantity. The Okaloosa darter may be considered for 
reclassification from endangered to threatened (downlisted) when:
    (1) Instream flows and historical habitat of stream systems have 
been protected through management plans, conservation agreements, 
easements or acquisitions or both;
    (2) Eglin AFB has and is implementing an effective habitat 
restoration program to control erosion from roads, clay pits, and open 
ranges;
    (3) The Okaloosa darter population is stable or increasing and 
comprised of two plus age-classes in all six stream systems for 5 
consecutive years;
    (4) The range of the Okaloosa darter has not decreased at all 
historical monitoring sites; and
    (5) No foreseeable threats exist that would impact the survival of 
the species.
    For more information on the recovery plan for the Okaloosa darter, 
a copy of the plan is posted on our Web site at http://ecos.fws.gov/docs/recovery_plan/970407.pdf.
    Each of the above criteria for downlisting the Okaloosa darter to 
threatened has been met, as described below. Additionally, the level of 
protection currently afforded to the species and its habitat and the 
current status of threats are outlined in the Summary of Factors 
Affecting the Species section below.

Downlisting Criterion (1): Instream Flows and Historical Habitat of 
Stream Systems Have Been Protected Through Management Plans, 
Conservation Agreements, Easements or Acquisitions or Both

    Water quality, water quantity and stream habitat have been 
adequately protected or restored for the Okaloosa darter. The Okaloosa 
darter's extant range occurs almost exclusively (98.7 percent) within 
the boundaries of Eglin AFB. This affords the species considerable 
protections from development and large-scale habitat disturbances. 
Eglin AFB is implementing an effective habitat restoration program to 
control erosion from roads, borrow pits (areas where materials like 
sand or gravel are removed for use at another location), and cleared 
test ranges. Since 1995, Eglin AFB has restored 317 sites covering 
196.2 hectares (ha) (484.8 acres (ac)) that were eroding into Okaloosa 
darter streams. All 38 borrow pits within Okaloosa darter drainages are 
now stabilized (59.3 ha; 146.5 ac) (USAF 2005, p. 3-18). The other 279 
sites (136.9 ha; 338.3 ac) included in the total area are characterized 
as non-point sources (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) of stream 
sedimentation. Eglin AFB

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estimates that these efforts have reduced soil loss from roughly 69,000 
tons/year in darter watersheds in 1994 to approximately 3,000 tons/year 
in 2004 (Pizzalotto 2005, pers. comm.). As of 2006, Eglin AFB had 
completed about 95 percent of the erosion control projects identified 
for the darter watersheds (USAF 2006, p. 3-5). Restoration activities 
began earlier in the Boggy Bayou drainages. Accordingly, darter numbers 
increased in the Boggy Bayou drainages earlier than in the Rocky Bayou 
drainages. Increases in darter numbers over the past 10 years generally 
track the cumulative area restored in that timeframe (Jordan and Jelks 
2004, p. 9).
    Many road crossing structures have been eliminated as part of Eglin 
AFB's restoration activities. Of the 152 road crossings that previously 
existed in Okaloosa darter drainages, 57 have been eliminated: 28 in 
Boggy Bayou streams, and 29 in Rocky Bayou streams. Most of these were 
likely barriers to fish passage or problems for stream channel 
stability, and removing them has improved habitat and reduced 
population fragmentation. Of the remaining 95 road crossings, we have 
determined that 21 are barriers to fish passage. Many of these are 
culverts with the downstream end perched above the stream bed, 
precluding the upstream movement of fish during normal and low-flow 
conditions. Ten of the 21 barriers are of little to no adverse 
consequence to darter habitat connectivity because they occur on the 
outskirts of the current range or immediately adjacent to another 
barrier or impoundment. However, darters downstream of the 11 remaining 
barriers cannot move upstream during normal and low-flow conditions.
    Impoundments may also fragment darter habitat and populations. Like 
road-crossing barriers to passage, many of the 32 impoundments within 
the darter's range are located within reaches from which darters are 
extirpated or are near the margins of the extant range. Only three 
impoundments, one each in the Toms Creek, Turkey Creek, and Rocky Creek 
basins, separate more than 1 kilometer (km) (0.62 miles (mi)) of stream 
from the rest of the stream network in the basin.
    In FY 2007, Eglin AFB restored portions of Mill Creek. Staff from 
Eglin Natural Resources, the Eglin golf course, and the Service 
determined that it was feasible to restore all impoundments upstream of 
Plew Lake, the largest impoundment on the system, to free-flowing 
streams and to remove all but one of the culverts that convey the 
stream underneath fairways on the golf course. The Service prepared the 
designs for the restoration, and Eglin AFB and Florida Fish and 
Wildlife Conservation Commission (FWC) secured funding for the work, 
which was completed in May 2007. Present in the smallest of the six 
darter watersheds, the darter population in Mill Creek is probably most 
vulnerable to extirpation. We anticipate that restoration at Mill Creek 
will secure a viable population in this system. Eglin and FWC also 
secured funding for removal of the abandoned railroad crossing of 
Little Rocky Creek and completed the removal in May 2007. These two 
projects eliminated five fish passage barriers and three impoundments, 
restoring approximately 3 km (1.8 mi) of stream habitat. 
Accomplishments have been made in recovering Okaloosa darter habitat, 
and the Service continues to work with Eglin AFB, the City of 
Niceville, and Okaloosa and Walton Counties to restore additional 
habitat through the removal and replacement of road crossings and 
impoundments throughout the darter's range.
    The management plans of several agencies apply to streams in the 
range of the Okaloosa darter and are being implemented to protect this 
fish's water quality and quantity and its overall habitat. Probably the 
most influential of these is Eglin's Integrated Natural Resource 
Management Plan (INRMP) (USAF 2007), including the Final Threatened and 
Endangered Species Component Plan (USAF 2006). The INRMP is updated 
every 5 years in consultation with the Service and FWC (see Factor D. 
under the Summary of Factors Affecting the Species section below for 
further detail and description of Department of Defense (DOD) 
protections, and the Available Conservation Measures section for 
Endangered Species Act protections). The INRMP defines goals and 
specific objectives for managing natural resources on the base. The 
primary goal of Okaloosa darter management on Eglin AFB is to provide 
the highest level of capability and flexibility to the military testing 
and training mission while meeting the legal requirements of the 
Endangered Species Act, Clean Water Act (33 U.S.C. 1251 et seq.), and 
other applicable laws. Another goal of the 2007 INRMP is to maintain or 
restore hydrologic processes in streams, floodplains, and wetlands when 
feasible. The specific objectives of Okaloosa darter management on 
Eglin AFB include:
    (1) Downlist the Okaloosa darter from endangered to threatened by 
the end of 2007 and delist the darter by the end of 2012;
    (2) Complete the restoration of Mill Creek for Okaloosa darter by 
2008;
    (3) Annually restore 2 fish passage barriers from the 20 identified 
sites in Okaloosa darter drainages as funding allows;
    (4) Develop a public information and awareness program for 
threatened and endangered species on Eglin AFB that have greater 
potential to be impacted by public activities, such as Okaloosa 
darters;
    (5) Complete a program by 2010 that would include an A3 class 
(combined with Endangered Species Act class), informational brochures, 
and portable display boards;
    (6) Cooperate with the City of Niceville, Okaloosa County, and 
private landowners adjacent to Eglin AFB to recover the Okaloosa 
darter;
    (7) Identify and rehabilitate 150 soil erosion sites that have the 
potential to impact threatened and endangered species (Gulf sturgeon 
and Okaloosa darter) habitat by 2011; and
    (8) Train and use Okaloosa darter monitoring crews and aquatic 
monitoring crews to survey and report the presence of invasive 
nonnative plants and animals during their regular monitoring activities 
and treat invasive nonnative plants as necessary.
    In 2005, the Service, Eglin's Natural Resources Branch, the Nature 
Conservancy, and the FWC signed an agreement to cooperate in the 
stewardship of aquatic systems on lands of the Gulf Coastal Plain 
Ecosystem Partnership (GCPEP) in western Florida. GCPEP's Aquatic Team 
agreed to initially assign priority to strategies and projects that 
contribute to the recovery of the Okaloosa darter. We are working with 
GCPEP to use stream restoration techniques and management actions that 
have been established for Okaloosa darter watersheds on partner lands.
    The Three Rivers Resource Conservation and Development Council is a 
nonprofit organization set up to conserve the natural resources for, 
and to improve the overall economic condition of, rural and urban 
citizens. The Council is composed of representatives from the county 
Commissions and Soil and Water Conservation Districts, and includes 
three members at large from Escambia, Santa Rosa, Okaloosa, Walton, 
Bay, Washington, and Holmes Counties in Florida. The Council has 
developed an Area Plan (2003-2008) which includes:
    (1) A natural resources goal of encouraging proper management use 
and protection of the natural resource base;

[[Page 5267]]

    (2) An objective to assist local military bases in conservation 
planning efforts;
    (3) A strategy to continue a non-point project to control erosion 
with Eglin AFB; and
    (4) Several projects funded for 2008 that will assist with Okaloosa 
darter restoration.
    The Florida Department of Environmental Protection (DEP) (2003) 
classifies all streams in the range of the Okaloosa darter as Class III 
waters for administration of the Clean Water Act. Class III waters are 
used for recreation, propagation, and maintenance of a healthy, well-
balanced population of fish and wildlife. Although no streams in the 
Okaloosa darter's range are designated as impaired in DEP's 2003 Basin 
Status Report, six stream segments are on the ``3c planning list,'' 
which means that ``enough data and information are present to determine 
that one or more designated uses may not be attained according to the 
Planning List methodology.'' The six segments are:
    (1) Anderson Branch (Turkey Creek tributary);
    (2) Lower Turkey Creek (including South Branch near the City of 
Niceville landfill and the rest of the basin downstream to Boggy 
Bayou);
    (3) Mill Creek;
    (4) Shaw Still Branch (Swift Creek Basin);
    (5) Little Rocky Creek; and
    (6) Open Branch (Rocky Creek Basin).
    All six segments are considered potentially impaired using a set of 
three biological indicators based upon aquatic insect samples. DEP 
characterized a site on South Branch near the landfill as severely 
limited by pollutants from the landfill (Ray 2001, p. 1).
    Using aquatic insect sampling methods and indicators comparable to 
DEP's, we sampled 42 sites in the darter's range (Thom and Herod 2005, 
pp. 4-3 thru 4-17). About 26 sites appeared healthy, 4 were suspect, 
and 12 were impaired. Three small darter basins, Mill Creek, Swift 
Creek, and East Turkey Creek, had the highest percentage of impaired 
sites. Several sites in these three basins, plus a site on South Branch 
near the Niceville landfill, also had unusually high stream 
conductivity measurements, which is generally an indicator of degraded 
water quality (Thom and Herod 2005, p. 5-3). It appears likely that the 
wastewater treatment sprayfields located near the headwaters of East 
Turkey Creek and Swift Creek are adversely affecting water quality, as 
this is the principal non-forested land use in the area. The Okaloosa 
darter recovery plan identifies wastewater treatment sprayfields as 
potential sources of habitat degradation.
    In 2007, the Service, along with the U.S. Geological Survey, Loyola 
University, and Eglin AFB, initiated a 3-year research project to 
comprehensively assess water quality data for these two streams. 
Preliminary samples show unusually high conductivity and salinity--an 
indication of wastewater introduction. Water quality data will be 
compared to darter population status and trends information. This will 
enable us to identify the problems and recommend corrective actions 
that will prevent future declines in Okaloosa darter populations. 
Elimination of stressors originating from these sprayfields will 
prevent continued declines in Okaloosa darter populations. It will also 
achieve recovery objectives outlined in the recovery plan (Objectives 
2.2, 3.2, 3.2.2), and meet a critical delisting criterion (1F).
    The Eglin golf course dominates land use in the Mill Creek Basin. 
Along with West Long Creek in the Rocky Creek Basin, these are the same 
drainages where monitoring suggests darter numbers have been declining 
in recent years. As noted above, the Service and Eglin AFB have 
recently completed a habitat restoration project in the portion of Mill 
Creek that runs through the Eglin golf course. Work is ongoing to 
assess causes of declines in East Turkey and West Long Creeks.
    The Choctawhatchee Basin Alliance (a citizen's group), along with 
supporting state and Federal agencies, is implementing a program called 
``Breaking New Ground,'' which is a set of place-based air and 
watershed action plans for the Choctawhatchee River and Bay watershed. 
These plans address water quality monitoring, point- and non-point 
source pollution, growth management, water supply, education, and 
citizen involvement in all Choctawhatchee Bay watersheds, including the 
darter drainages. This planning effort has resulted in the funding of 
studies to assess point and non-point source water pollution in the 
basin, including darter watersheds, and is expected to continue to 
assist in identifying and addressing potential long-term water quality 
and supply issues in the watershed, which is a positive step towards 
securing permanent protections for Okaloosa darter water quality and 
quantity.
    In addition, the Northwest Florida Water Management District 
(NWFWMD) (in conjunction with the DEP) has a Surface Water Improvement 
and Management (SWIM) Plan that addresses water issues in the 
Choctawhatchee River and Bay System, including the projected water 
supply needs of the coastal portions of Okaloosa and Walton Counties. 
Protecting water-dependent endangered species and their habitats are 
integral components of the SWIM Plan. In its water supply plan for the 
counties that encompass the range of the darter, the NWFWMD examines 
the water sources that could supply growing human water demands in the 
region (Bartel et al. 2000). Depending on its magnitude and spatial 
distribution, substantial new use of the Sand and Gravel Aquifer could 
diminish stream flow in the darter streams; however, the potential well 
fields that the NWFWMD identified are located south and west of the 
darter drainages.
    The opportunities for easements or acquisitions or both to protect 
the Okaloosa darter are limited, because 98.7 percent of the extant 
range is on Federal land. Because Eglin AFB and others have 
demonstrated a commitment to recovery of the Okaloosa darter through 
natural resource management planning and coordination with the Service, 
we consider this downlisting criterion to be satisfied.

Downlisting Criterion (2): Eglin AFB Has (and Is Implementing) an 
Effective Habitat Restoration Program To Control Erosion From Roads, 
Clay Pits, and Open Ranges

    Eglin AFB has implemented a habitat restoration program to control 
erosion since 1995. The details and accomplishments previously 
described above in downlisting criterion (1) all contribute to this 
criterion. Based on the facts shared above, Eglin AFB has effectively 
implemented this downlisting criterion and continues to make additional 
progress in reducing remaining erosion problems on the base. These 
actions have resulted in identifiable increases in Okaloosa darter 
numbers and occupied range. We will continue to partner with Eglin AFB 
to find similar opportunities like Mill Creek to restore habitat and 
reduce erosion.
    In addition, Eglin's Threatened and Endangered Species Component 
Plan (Eglin 2006, pp. 3-3 and 3-4) identifies several objectives for 
the Okaloosa darter, including the development of a public information 
program for threatened and endangered species on Eglin AFB that have 
greater potential to be impacted by public activities. The public 
information program would include an Air Armament Academy (A3) class 
(Eglin's civilian employee training program), combined with an 
Endangered Species Act class,

[[Page 5268]]

informational brochures, and portable display boards. The goal of 
completion of the public information program is 2010. The program will 
be provided to both Eglin military users and the general public. As of 
December 2007, Eglin has completed two brochures and portable display 
boards. There is also a permanent display board in the lobby of the 
Natural Resources Section, known as Jackson Guard, which provides 
information to the public about the darter and efforts to protect and 
restore its habitat. The A3 class is in the process of being designed, 
and as needed it will be scheduled and presented twice a year beginning 
in 2008. Additionally, tours of Eglin, for military personnel, non-
government delegates, and the general public frequently involve 
presentations of ongoing darter conservation activities. Because Eglin 
AFB and others have demonstrated a commitment to recovery of the 
Okaloosa darter through natural resource management planning and 
coordination with the Service, we consider this downlisting criterion 
to be satisfied.

Downlisting Criterion (3): Okaloosa Darter Population Is Stable or 
Increasing and Comprised of Two Plus Age-Classes in All Six Stream 
Systems for 5 Consecutive Years

    We had no estimate of population size at the time of listing, 
although the historic range of the Okaloosa darter is fairly well 
documented. Relative abundance estimates were determined annually from 
1987-88 to 1998 while monitoring increases in sprayfield loading at 
Eglin AFB. Bortone (1999, p. 15) compared the relative abundance 
(number per sampling hour) of darters at 16 to 18 stations over 10 
sampling seasons. The mean number of Okaloosa darters per sample (in 
those samples that yielded darters) was slightly lower in the earlier 
sampling period (1987 to 1991), higher during the middle sampling years 
(1992 to 1997), and distinctly lower in 1998 and 1999. Bortone (1999, 
p. 9) concluded that this may not have indicated an overall trend in 
the reduction in Okaloosa darters as much as it may be indicative of 
changes that specifically reduced preferable habitat and increased 
sampling effectiveness at certain sites, as several sites were altered 
by beaver activity while others became more rooted with undergrowth. 
Generally, the data do not indicate any overall major trends in decline 
or increase during the 10-year sampling period (Bortone 1999, p. 10).
    The U.S. Geological Survey (USGS) and cooperators have surveyed 
between 12 and 60 sites for Okaloosa darters annually since 1995 
(Jordan and Jelks 2004, p. 2), primarily using visual counts in 20-m 
(66-ft) segments. Collectively, Jordan and Jelks' data show an almost 
tripling of darter numbers in a 10-year timeframe, from an average of 
about 20 darters per 20-m (66-ft) segment sampled in 1995 to about 55 
darters per segment in 2004. A dip in the increasing trend occurred in 
2001 and 2002, which corresponded with years of regional drought 
conditions. Even during these years, however, darter numbers were 
almost double those of 1995 and 1996.
    The current rangewide population, estimated by applying Jordan and 
Jelks (2004, p. 3) study area-wide density estimate of 3.1 darters per 
meter (m) (or per 3.28 feet) to our estimates of occupied stream length 
in each of the six Okaloosa darter basins, gives a total population 
estimate of 802,668 darters with an estimated 625,279 mature 
individuals (Service 2007, Table 2). In order to expand the surveyed 
range of the species, 69 sites were seine surveyed in 50-m (164-ft) 
segments by the Service in 2004-2005, with many of those being outside 
the area surveyed by Jordan and Jelks (2004). Observed segment 
densities were transformed to local abundance estimates based upon 
Jordan and Jelks' (2004, App. 1) comparison of seine versus visual 
counts and depletion sampling. These surveys produced an overall 
density estimate of 1.28 darters per meter (or per 3.28 ft) and an 
abundance estimate of 259,355 mature individuals (Service 2007, Table 
3). Acknowledging the greater error likely associated with seine-based 
calculations, they provide a more conservative population estimate.
    Annual population monitoring is conducted at 26 long-term 
monitoring sites by the USGS per the sampling methodology outlined in 
the Okaloosa darter recovery plan (Service 1998). This methodology has 
evolved into counting darters using mask and snorkel visual surveys, 
and includes collection of numerous habitat conditions including water 
depth and discharge, substrate type, and canopy cover. Annual 
monitoring has been conducted on Eglin AFB by personnel from Loyola 
University (New Orleans) and the Service since 1995, and on private 
lands since 1987. For complete information, see the Service's 2007 5-
year status review of the Okaloosa darter (Service 2007).
    Downlisting criterion number (3) is further defined in Appendix A 
of the Okaloosa darter recovery plan to include a specific standardized 
sampling methodology. An operational definition of a ``stable'' 
population is also provided in Appendix A of the recovery plan. The 
definition of a ``stable'' population applies to 26 long-term 
monitoring sites and has three parts:
    (1) Okaloosa darter numbers remain above 1.75 standard deviations 
below the cumulative long-term average at each of the monitoring sites;
    (2) The long-term trend in the average counts at each monitoring 
site is increasing, or neutral; and
    (3) The range that the species inhabits is not decreased by more 
than a 500-meter (1,640.4-ft) stream reach within any of the six stream 
systems.
    Although the darter meets the criterion for a stable population, 
the validity of the criteria in the operational definition of 
``stable'' has come into question since 1998 when the recovery plan was 
prepared.
    As identified in our 2007 5-year status review of the Okaloosa 
darter (Service 2007, p. 6), monitoring has shown that natural 
variation coupled with sampling method (seining versus visual survey) 
might result in a variation greater than 1.75 standard deviations while 
still maintaining a stable or increasing trend. Therefore, we have 
found that this operational definition may no longer reflect the best 
available science. Current estimates of Okaloosa darter numbers have 
instead been calculated using two different methods of standardizing 
monitoring and survey data. Using visual survey methods in 28 20[dash]m 
(66-ft) segments of stream, encompassing the six principal basins, a 
study areawide density estimate was then applied to the known occupied 
stream length for a total population estimate of 802,668 darters 
(Service 2007, Table 2). A population estimate based on seine samples, 
which transformed density estimates to local abundance estimates based 
upon Jordan and Jelks' (Jordan and Jelks 2004, App. 1; Jordan et al. 
2008) comparison of seine versus visual counts and depletion sampling, 
calculated a 2004-2005 population estimate of 302,590 darters (Service 
2007, Table 3).
    The long-term trend in the average counts at each monitoring site 
indicates that the four smallest darter basins (Toms, Swift, Mill, and 
East Turkey), as well as West Long Creek and East Long Creek, are 
decreasing while the other watersheds of Rocky Creek and Turkey Creek 
are increasing. However, after restoration activities on Mill Creek in 
2007, darter numbers are now increasing. Using the estimated length of 
occupied habitat for these creeks, darter numbers are increasing in 
223.6 km (138.9 mi) or 86 percent of their range and decreasing in 37.1 
km (23.1

[[Page 5269]]

mi) or 14 percent of their range. All of the declining trends were 
sampled by seining, not visual surveys, and may reflect variable 
sampling efficiency over time. For example, one site has become almost 
impossible to seine due to the exposure of tree roots resulting from 
stream bed degradation. Because seining detects only about 32 percent 
as many Okaloosa darters as visual surveys (Jordan and Jelks 2004, 
App.1), the long-term trends in darter counts at sites sampled by seine 
may be subject to error during interpretation. Furthermore, there 
appears to be a reduction in numbers at many of the sites beginning in 
1998, prior to which counts appear to be relatively consistent or 
generally increasing, which may correspond to a drought which began 
in1998 or could reflect a difference in sampling ability as a shift in 
USGS personnel occurred at this time.
    The range of the Okaloosa darter is represented as the cumulative 
stream length of occupancy in a basin. However, the annual monitoring 
identified in the recovery plan is not specifically designed to measure 
the length of a range reduction. Therefore, we are unable to determine 
whether part (3) of the operational definition of ``stable'' (A 
population will be considered stable if * * * (3) the range that the 
species inhabits is not decreased by more than a 500-meter (1,640.4-ft) 
stream reach within any of the six stream systems) has been met. 
Further, as noted previously, seining has been shown (Jordan et al. 
2008, p. 313) to detect only about 32 percent as many darters as visual 
surveys, increasing the probability of incorrectly concluding that 
darters are absent when using this survey method. Acknowledging these 
limitations, we consider this downlisting criterion to be satisfied. 
Okaloosa darters appear to have expanded their range in two areas, one 
in Mill Creek following habitat restoration activities in 2007, and the 
other a 1- to 2-mile expansion in the southern/western tributary of 
Tom's Creek previously thought to be uninhabited. Annual population 
monitoring by USGS has detected young-of-the-year and adult fish in all 
six stream systems for the past 5 years (Service 2007).

Downlisting Criterion (4): The Range of the Okaloosa Darter Has Not 
Decreased at All Historical Monitoring Sites

    As noted above, trends in the range of the Okaloosa darter are 
difficult to interpret. However, darters appear to have expanded their 
range in two tributaries: Mill's Creek and the southern/western 
tributary of Tom's Creek. Although Okaloosa darters appear to have 
decreased their range in Swift's Creek, this decrease seems to have 
occurred prior to 1987. The Okaloosa darter has been extirpated from 
only about 9 percent of the 402 km (249.8 mi) of streams that comprise 
its total historical range. Given that the small decrease likely 
occurred more than 20 years ago, and since then the species has 
expanded their range as noted above, we consider this criterion to be 
met.

Downlisting Criterion (5): No Foreseeable Threats Exist That Would 
Impact the Survival of the Species

    At this stage of the recovery of Okaloosa darter, threats remain 
under Listing Factor A: The present or threatened destruction, 
modification, or curtailment of its habitat or range. Resource 
stewardship on Eglin AFB is generally reducing the threat of habitat 
destruction and range reduction from sedimentation from unpaved roads 
and areas adjacent to poorly designed or maintained paved roads. As of 
2006, about 95 percent of the erosion control projects identified in 
darter watersheds had been completed (USAF 2006, pp. 3-5). Eglin AFB is 
continuing to fund these projects to completely eliminate the threat. 
We will continue to work with Eglin AFB to remove remaining erosion 
sources or point and non point pollution sources in Okaloosa darter 
habitat. In addition, new projects are being considered on Eglin AFB 
and we will work with the AFB to ensure Okaloosa darter habitat is 
protected. Although water quality issues associated with the Niceville 
landfill and sprayfield continue to threaten the darter, they are being 
examined in a 3-year research project, which began in 2007. We recently 
worked with the city of Niceville to improve its wastewater collection 
system and install more appropriate culverts at a number of road 
crossings. In addition, as stated above, a few of the Okaloosa darter's 
streams have been indicated as potentially impaired due to biological 
indicators. We will continue to work with Eglin to determine the causes 
of impairment and remove them. Proposed plans to assign additional 
military forces to Eglin AFB may alter the military mission and could 
potentially impact Okaloosa darter populations. On the smaller creeks, 
where we noted a general long-term decline in average counts, we will 
continue to investigate if habitat attributes at these sites are the 
cause while simultaneously trying to improve survey protocols.
    The Okaloosa darter was listed in 1973 as an endangered species. At 
the time of listing, the species faced significantly greater threats 
than it does today, as evidenced by the numerous recovery actions to 
date that have improved and restored its habitat conditions. These 
recovery actions include completing 95 percent of the erosion control 
projects identified in darter watersheds, thereby significantly 
reducing the most intense threat to the species (see the Summary of 
Factors Affecting the Species section below for further details). Now, 
more than 35 years after it was listed under the Act, the Okaloosa 
darter continues to survive and its overall status has improved. Given 
that the threats to the species have been significantly reduced, and 
that for the purposes of this proposed rule we have defined 
``foreseeable future'' for the Okaloosa darter as a 20-year period (see 
the Foreseeable Future section below), we have determined that the 
Okaloosa darter has recovered to the point where it now better meets 
the definition of a threatened species--one that is ``likely to become 
an endangered species within the foreseeable future throughout all or a 
significant portion of its range.'' In other words, although some 
threats to the Okaloosa darter continue to exist, these threats are not 
likely to cause the species to become extinct throughout all or a 
significant portion of its range within the next 20 years. Data 
collected on the distribution and abundance of the species indicate 
that the species' range has expanded and overall population numbers are 
increasing. The Okaloosa darter has met all five downlisting criteria 
in its recovery plan.

Summary of Factors Affecting the Species

    Section 4 of the Act and its implementing regulations (50 CFR part 
424) set forth the procedures for listing, reclassifying, or removing 
species from the Federal Lists of Endangered and Threatened Species. 
``Species'' is defined by the Act as including any species or 
subspecies of fish or wildlife or plants, and any distinct vertebrate 
population segment of fish or wildlife that interbreeds when mature (16 
U.S.C. 1532(16)). Once the ``species'' is determined, we then evaluate 
whether that species may be endangered or threatened because of one or 
more of the five factors described in section 4(a)(1) of the Act. Those 
factors are: (1) Habitat modification, destruction, or curtailment; (2) 
overutilization of the species for commercial, recreational, scientific 
or educational purposes; (3) disease or predation; (4) inadequacy of 
existing regulatory mechanisms; or (5) other natural or manmade factors

[[Page 5270]]

affecting it's continued existence. We must consider these same five 
factors in reclassifying or delisting a species. Listing, 
reclassifying, or delisting may be warranted based on any of the above 
threat factors, either singly or in combination.
    For species that are already listed as threatened or endangered, 
this analysis of threats is an evaluation of both the threats currently 
facing the species and the threats that are reasonably likely to affect 
the species in the foreseeable future following the delisting or 
downlisting and the removal or reduction of the Act's protections.
    Under section 3 of the Act, a species is ``endangered'' if it is in 
danger of extinction throughout all or a significant portion of its 
range and is ``threatened'' if it is likely to become an endangered 
species within the foreseeable future throughout all or a significant 
portion of its range. The word ``species'' also includes any subspecies 
or, for vertebrates, distinct population segments. The word ``range'' 
in the phrase ``significant portion of its range'' (SPR) refers to the 
range in which the species currently exists, and the word 
``significant'' refers to the value of that portion of the range being 
considered to the conservation of the species.
    The Act does not define the term ``foreseeable future.'' However, 
in a January 16, 2009, memorandum addressed to the Acting Director of 
the Service from the Office of the Solicitor, Department of the 
Interior, concluded, ``* * * as used in the [Act], Congress intended 
the term `foreseeable future' to describe the extent to which the 
Secretary can reasonably rely on predictions about the future in making 
determinations about the future conservation status of the species'' 
(U.S. Department of the Interior 2009). ``Foreseeable future'' is 
determined by the Service on a case-by-case basis, taking into 
consideration a variety of species-specific factors such as lifespan, 
genetics, breeding behavior, demography, threat projection timeframes, 
and environmental variability.
    In considering the foreseeable future as it relates to the status 
of the Okaloosa darter, we defined the ``foreseeable future'' to be the 
extent to which, given the amount and substance of available data, 
events, or effects can and should be anticipated, or the threats 
reasonably extrapolated. We considered the historical data to identify 
any relevant existing threats acting on the species, ongoing 
conservation efforts, data on species abundance and persistence at 
individual sites since the time of listing, identifiable informational 
gaps and uncertainties regarding residual and emerging threats to the 
species, as well as population status and trends, its life history, and 
then looked to see if reliable predictions about the status of the 
species in response to those factors could be drawn. We considered the 
historical data to identify any relevant existing trends that might 
allow for reliable prediction of the future (in the form of 
extrapolating the trends). We also considered whether we could reliably 
predict any future events (not yet acting on the species and therefore 
not yet manifested in a trend) that might affect the status of the 
species, recognizing that our ability to make reliable predictions into 
the future is limited by the variable quantity and quality of available 
data.
    The average lifespan of an Okaloosa darter is 2-4 years with a 
breeding season that extends from March to October, peaking in April. 
This lengthy breeding season is an indicator of fractional spawning 
(eggs develop and mature throughout the spawning season). The early 
results of recently funded and ongoing genetic studies of the darter 
indicate that the two large lineages (Turkey and Rocky Creek) are 
similar in size and have been relatively stable since diverging from 
their ancestral population (Austin 2007, pers. comm.), suggesting 
demographic stability over time. Therefore, a genetics consideration 
does not appear relevant to determination of the foreseeable future.
    Threat projection timeframes are typically fairly short for 
Okaloosa darter and range from the 5-year planning cycle of the INRMP, 
to mission-specific activities that can arise at any time, to the 
Department of Transportation's 20-year planning projections. Lastly, 
because the darter's streams are mostly small, spring-fed systems, 
environmental variability is most simply expressed in terms of the 
variability in the hydrologic cycle.
    The Okaloosa darter recovery plan identifies one recovery 
criterion, a stable or increasing population for 20 years, based on the 
20-year hydrologic cycle. Therefore, for the purposes of this proposed 
rule, we define ``foreseeable future'' for the Okaloosa darter as a 20-
year period, which encompasses both the variable hydrologic cycle and 
the long-term planning projections. Given the available data, we 
believe this represents a reasonable timeframe to measure demographic 
changes that could reflect potential threat factors to the Okaloosa 
darter.
    The following threats analysis examines the five factors currently 
affecting, or that are likely to affect the listed Okaloosa darter 
within the foreseeable future. For the purposes of this analysis, we 
will first evaluate whether the currently listed species, the Okaloosa 
darter, should be considered threatened or endangered throughout its 
range. Then we will consider whether there are any portions of the 
species' range where it is in danger of extinction or likely to become 
endangered within the foreseeable future.

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

    The Okaloosa darter was listed under the Act in 1973, because of 
its extremely limited range and potential problems resulting from 
erosion, water impoundment, and competition with brown darters. The 
Okaloosa darter has been extirpated from only about 9 percent of the 
402 km (249.8 mi) of streams that comprise its total historical range. 
This historic loss of range is most likely due to physical and chemical 
habitat degradation from sediment and pollutant loading and the 
urbanization of the City of Niceville. Recent surveys in a southern/
western tributary of Tom's Creek, however, have established the 
darter's presence in a 1- to 2-mile stretch of stream previously 
thought to be uninhabited. All but 5 km (3.1 mi), or 1.3 percent, of 
the extant range is also currently within Eglin AFB.
    Sediment loading is perhaps the most intense and uniform factor 
continuing to threaten the Okaloosa darter. A recent report (Rainer et 
al. 2005, pp. 3-13) identified the following primary sources of 
sediment to aquatic ecosystems on Eglin AFB: accelerated streamside 
erosion, borrow pits, developed areas, land test areas, silviculture, 
and roads. Of these, the stream crossings of unpaved roads and 
subsequent bank erosion probably have the greatest impact because of 
their distribution on Eglin AFB, relative permanence as base 
infrastructure, and long-term soil disturbance characteristics. The 
largest remaining source of sediment input to darter streams is the 
unpaved road network. As of 2005, 87 percent (4,348 km or 2,701.7 mi) 
of Eglin's road network was unpaved. However, as of 2006, Eglin AFB had 
completed about 95 percent of the erosion control projects identified 
in darter watersheds, substantially reducing runoff and sedimentation 
(USAF 2006, pp. 3-5). From 1995 to 2004, 317 borrow pits and non-point 
erosion sites (485 ac) were rehabilitated and maintained. Although most 
of the erosion control projects have already been completed, Eglin has 
a continuing objective of identifying and rehabilitating 150 soil 
erosion sites that

[[Page 5271]]

have the potential to impact threatened and endangered species like the 
listed Okaloosa darter. These remaining soil erosion sites pose a 
continuing threat to the darter and its habitat. For example, five road 
crossings in the Turkey Creek drainage have repeatedly exceeded state 
water quality standards for turbidity.
    Of the 153 road crossings that previously existed in Okaloosa 
darter drainages, 57 have been eliminated: 28 in Boggy Bayou streams 
and 29 in Rocky Bayou streams. Eglin AFB estimates that these and other 
restoration efforts have reduced soil loss from roughly 69,000 tons/
year in darter watersheds in 1994 to approximately 3,000 tons/year in 
2004 (Pizzalotto 2005, pers. comm.).
    Borrow pits were a major source of sediment loading to darter 
streams cited in the 1998 darter recovery plan. At that time, 29 of 39 
borrow pits located within or immediately adjacent to Okaloosa darter 
drainages had been restored so that they no longer posed sedimentation 
threats. As of 2004, all of the remaining borrow pits within Okaloosa 
darter drainages have been restored and no longer pose sedimentation 
threats (Rainer et al. 2005, p. 3-18).
    While sedimentation and erosion problems still exist on Eglin, they 
have been significantly reduced through improvements such as bottomless 
culverts, bridges over streams, and bank restoration and revegetation. 
There are other areas where sedimentation remains a higher magnitude 
threat to the continued existence of the Okaloosa darter. Primarily in 
the downstream-most portion of the darter's range, urban development 
and construction activity pose a threat to the darter due to poor 
stormwater runoff control and pollution prevention measures that 
degrade habitat and may pose potential barriers to movement between 
basins. This threat is present primarily in the 5 km (3.1 mi) of 
habitat located outside of Eglin AFB. With improvement and reduction of 
sediment erosion on Eglin (98.7 percent of the darter's range), we 
believe that, with lessons learned, we can continue to work with off-
base partners in recovery efforts that will enable delisting of this 
fish.
    Additionally, one road development project has surfaced as a new 
potential threat that may negatively impact the Okaloosa darter. The 
Northwest Florida Transportation Corridor Authority has proposed a new, 
high-speed, toll bypass road across Eglin AFB. However, the proposed 
bypass road would not prevent implementation of management actions for 
the Okaloosa darter in Eglin's INRMP, which will continue to provide a 
benefit to the darter. Eglin AFB has granted the Transportation 
Corridor Authority conceptual agreement for the proposed bypass road. 
Although this project may cross darter drainages, the agreement 
includes 19 stipulations that will minimize impacts to darter 
drainages. For example, road and bridge design must also address 
maintenance of riparian zones and stream habitat. In addition, 
placement of interchanges should be outside sensitive natural areas. 
Therefore, we do not consider the proposed bypass road to be a serious 
threat to Okaloosa darters. Currently, this project has yet to complete 
National Environmental Policy Act (NEPA) (42 U.S.C. 4321 et seq.) 
requirements or consultation requirements under the Act, the latter of 
which will require specific measures to avoid and minimize take of the 
darter. We are seeking additional information on proposed activities or 
ongoing activities like this one (see Public Comments section) during 
the comment period for this proposed rule.
    Eglin AFB is a military training facility and as such is divided 
into 37 land test areas where weapons testing and training operations 
are conducted, 12 of which are wholly or partially within darter 
drainages (SAIC 2001, pp. 2 and 7). Eglin AFB maintains large portions 
of the test areas in an early stage of plant succession with few mature 
trees and varying degrees of soil disturbance as a result of 
maintenance or military missions. Since 1998, only one section 7 
consultation with Eglin under the Act (related to test area activities) 
has resulted in the issuance of an incidental take statement. However, 
there is a proposal to increase the military personnel and use at Eglin 
through the 2005 Defense Base Realignment and Closure (BRAC). The BRAC 
action involves establishing the Joint Strike Fighter Integrated 
Training Center and relocating the Army 7th Special Forces Group 
(Airborne) to Eglin AFB, increasing the number of personnel present on 
base, the number of test ranges, and the amount of test area 
activities. The Service has provided preliminary comments on the 
military's Notice of Intent to Prepare an Environmental Impact 
Statement under NEPA and completed a formal consultation for other 
species but not the Okaloosa darter. We do not anticipate any increase 
in threats to the Okaloosa darter from this action as the new ranges 
have been moved outside of Okaloosa darter habitat and Eglin has agreed 
to provide a 300-ft. buffer along all darter streams when conducting 
any troop maneuvers.
    While poorly designed silvicultural programs can result in 
accelerated soil erosion and stream sedimentation, Eglin has designed 
its program within darter habitat to avoid and minimize impacts to the 
aquatic ecosystems such that the program is not likely to adversely 
affect the Okaloosa darter.
    Pollution other than sedimentation poses a potential threat to 
darters in six stream segments. While no streams in the darter's range 
are designated by DEP as impaired, 6 of the 13 segments sampled using 
three biological indicators were considered potentially impaired and 
are on the ``3c planning list,'' which means that ``enough data and 
information are present to determine that one or more designated uses 
may not be attained according to the Planning List methodology.'' One 
stream site has been characterized as ``severely limited by pollutants 
from the landfill.'' Using comparable aquatic insect sampling methods, 
the Service (Thom and Herod 2005, Table 4-1) found 12 out of the 42 
sites sampled within the darter's range to be impaired. An impaired 
water body is one where the biological integrity of the system as 
determined through indicators has been compromised because of 
pollutants, indicating that Okaloosa darter habitat is degraded.
    Water withdrawals for human consumption in and around the range of 
the Okaloosa darter are presently served by wells that tap the Floridan 
Aquifer, which is declining substantially in the most populated areas 
near the coast. However, at this time, there is no evidence that 
pumping from the aquifer has reduced flows in darter streams. The 
darter drainages are spring-fed from the shallow sand and gravel 
aquifer that is not used for human consumption. Additionally, the low 
permeability of the Pensacola Clay confining bed probably severely 
limits hydraulic connectivity between the two aquifers (Fisher et al. 
1994, p. 86). Therefore, we do not anticipate that local population 
growth would adversely affect water flows in the darter's drainages.
    The Intergovernmental Panel on Climate Change (IPCC) concluded that 
warming of the climate system is unequivocal (IPCC 2007a, p. 30). 
Numerous long-term changes have been observed including changes in 
arctic temperatures and ice, widespread changes in precipitation 
amounts, ocean salinity, wind patterns and aspects of extreme weather 
including droughts, heavy precipitation, heat waves and the intensity 
of tropical cyclones (IPCC 2007b, p. 7). While continued change is 
certain, the magnitude and rate of change is unknown in many cases.
    The currently occupied range of the darter is restricted to 
approximately

[[Page 5272]]

364.6 and 402 km (227.9 and 251.3 mi.) of streams, respectively, in 
Walton and Okaloosa Counties, Florida. While we acknowledge the general 
scientific consensus that global scale increases in temperatures have 
occurred, we do not have any data to indicate that climate change poses 
a threat to the Okaloosa darter and do not believe that climate change 
will adversely affect this species because the darter drainages are 
spring-fed. The information currently available on the effects of 
climate change and the available climate change models do not make 
sufficiently accurate estimates of location and magnitude of effects at 
a scale small enough to apply to the range of the Okaloosa darter. 
There is no evidence that climate changes observed to date have had any 
adverse impact on the Okaloosa darter or its habitat.
    Summary of Factor A: About 51,397 hectares (127,000 acres), or 457 
square kilometers (176 square miles), of the darter's drainage basins 
(90 percent) are managed by Eglin AFB, while 485.6 hectares or 12,000 
acres (10 percent) of the drainage basins are situated within the 
Niceville-Valparaiso urban complex. Urban runoff continues to degrade 
darter habitat off Eglin through pollution and sedimentation. 
Additionally, there is a continued threat of further development in the 
darter's drainages outside of the AFB.
    The military mission or mandate of Eglin AFB, which holds 98.7 
percent of the darter's range and 90 percent of the drainage basins for 
the darter, will lead to foreseeable actions that could impact the 
darter's range. Impacts resulting from a road development project 
within the darter's range have been minimized, and it does not present 
a significant threat to the species. On the other hand, the growing 
coastline human population in Florida that is pressing into the 
boundaries of Eglin AFB will have foreseeable needs that could cross 
Eglin's boundaries and impact the darter's range.
    Stream sedimentation and erosion control problems still exist on 
Eglin AFB and we will continue to cooperatively work with our partner 
to resolve these. Habitat restoration efforts done on the base to date 
have reduced 95 percent of the sedimentation into streams occupied by 
the Okaloosa darter, nearly eliminating the largest threat to the 
species. Okaloosa darter populations are stable or increasing in the 
majority of the species' range. The current rangewide population is 
estimated at 802,668 darters with an estimated 625,279 mature 
individuals (Service 2007, Table 2). We do not have any data to 
indicate that climate change poses a threat to the Okaloosa darter. 
Therefore, we believe the rangewide threat of habitat destruction, 
modification, or fragmentation over this large area from sources like 
sedimentation and pollution has been reduced to a point where the 
Okaloosa darter no longer meets the definition of an endangered 
species. We find that the present or threatened destruction, 
modification, or curtailment of its habitat or range is not likely to 
place the Okaloosa darter in danger of extinction throughout all or a 
significant portion of its range. However, although the threats under 
this factor have been reduced, they have not been entirely eliminated. 
Accordingly we find that the Okaloosa darter meets the definition of a 
threatened species because it is likely to become an endangered species 
within the foreseeable future throughout all or a significant portion 
of its range.

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

    Overutilization for commercial, recreational, scientific, or 
educational purposes is not, nor has it ever been, a significant threat 
to the Okaloosa darter anywhere within the species' range. Any 
utilization for recreational purposes is limited to the occasional 
mistaken use as a bait fish. Therefore, we find that this factor is not 
likely to cause the Okaloosa darter to become an endangered species 
within the foreseeable future throughout all or a significant portion 
of its range. We do not have any data to suggest that this threat will 
increase in any portion of the darter's range now or within the future.

Factor C. Disease or Predation

    Neither disease nor predation is considered a threat to the 
Okaloosa darter. The six basins of the darter's range are relatively 
free of introduced aquatic predators, and the native predators, such as 
the largemouth bass, are relatively low in numbers due to the generally 
low productivity of the groundwater-fed streams. We have no indications 
that terrestrial predation is a problem. It is possible that diseases 
or parasites were indirectly associated with the extirpation of the 
darter from various stream segments as a result of physical or chemical 
habitat degradation. However, apart from this potential association, we 
do not otherwise suspect that disease or predation unduly limits the 
distribution or abundance of the darter. Therefore, we find that this 
factor is not likely to cause the Okaloosa darter to become an 
endangered species within the foreseeable future throughout all or a 
significant portion of its range. We do not have any data to suggest 
that this threat will increase in any portion of the darter's range now 
or within the future.

Factor D. The Inadequacy of Existing Regulatory Mechanisms

    The State of Florida has listed the Okaloosa darter as an 
endangered species under its protected species statute since 1976. 
Recently, the FWC incorporated the IUCN Red List Criteria (http://www.iucnredlist.org) in its procedures for classifying species (Florida 
Administrative Code 68A-27.0012), but the FWC has not yet evaluated the 
Okaloosa darter using the new procedures (Gruver 2008, pers. comm.). 
Our application of the Red List Criteria classifies the darter as 
``near threatened'' (Service 2007, p. 43).
    In addition, land management on DOD lands is governed by the Sikes 
Act (16 U.S.C. 670a et seq.) and the Sikes Improvement Act, which 
provide for the conservation and rehabilitation of natural resources 
and require DOD to periodically prepare an INRMP in consultation with 
the Service and the applicable state wildlife agency. Because the 
Okaloosa darter's extant range occurs almost exclusively on Eglin AFB, 
the species is afforded considerable protections from large-scale 
habitat disturbance. Its habitat is further conserved and 
rehabilitated, through fish and wildlife and land management actions, 
consistent with the use of the military installation, as required by 
the Sikes Act, as amended by the Sikes Improvement Act.
    Department of Defense Instruction (DODI) 4715.3, Environmental 
Conservation Program, is the overarching instruction for Department of 
Defense (DOD) natural and cultural resource management, and is the 
primary agent for implementing policy (including the Sikes Act), 
assigning responsibility, and prescribing procedures for the integrated 
management of natural and cultural resources on DOD properties. In 
compliance with these programs, Eglin AFB has taken a proactive role in 
the recovery of the Okaloosa darter by managing its lands to provide 
for the recovery of the darter and assuring that its recovery is 
integrated with the military training purposes of the base.
    Air Force Policy Directive (AFPD) 32-70, Environmental Quality, 
establishes policy to: Responsibly manage natural and cultural 
resources on Air Force properties, clean up past environmental damage, 
meet current environmental standards, plan future activities to 
minimize impacts, and eliminate pollution from Air Force activities 
whenever possible. Under this

[[Page 5273]]

Directive, an Air Force Environmental Quality Program was developed. 
This program includes the following activities: cleanup, compliance, 
conservation, and pollution prevention. Additionally, this directive 
states that the Air Force will pursue adequate funding to meet 
environmental legal obligations. Compliance with this directive has 
resulted in funding and implementation of considerable erosion control 
measures and fish barrier removal, which has significantly reduced 
runoff and sedimentation in Okaloosa darter streams and expanded the 
range of the species.
    Air Force Instruction (AFI) 32-7064, Integrated Natural Resources 
Management, implements AFPD 32-70 and DODI 4715.3. This instruction 
provides details on how to manage natural resources on Air Force 
installations to comply with applicable Federal, state, and local laws 
and regulations. The current INRMP and Threatened and Endangered 
Species Component Plan for Eglin AFB identify management practices to 
benefit the Okaloosa darter. The purpose of the INRMP for Eglin AFB is 
to provide interdisciplinary strategic guidance for the management of 
the base's natural resources, while the primary objective of the Air 
Force Natural Resources Program is to ensure continued access to land 
and air space required to accomplish the Air Force mission while 
maintaining these resources in a healthy condition. The INRMP for Eglin 
AFB facilitates compliance with Federal, state, and local environmental 
requirements. These requirements deal with analysis of potential 
environmental impacts, water and air quality, wetlands, endangered 
species, marine mammals, migratory birds, other wildlife, forest and 
fire management, and public access and recreation. Eglin AFB has a 
recently approved INRMP (2007) and Threatened and Endangered Species 
Component Plan (2006) that identifies conservation objectives for the 
Okaloosa darter as described under item (2) in the Recovery section 
above.
    Summary of Factor D: We estimate that 98.7 percent of the darter's 
extant range is within the boundaries of Eglin AFB. The 1.3 percent of 
the range that is not on Eglin is in all instances downstream of the 
base boundary. For this reason, almost all human activities that may 
affect the existing darter population are Federal actions, including 
actions implemented, funded, or approved by the DOD. The INRMP prepared 
for Eglin AFB under the Sikes Act and Sikes Improvement Act requires 
habitat improvements that will continue to benefit the darter. Federal 
actions must also comply with the National Environmental Policy Act, 
the Clean Water Act, and applicable state law. These regulatory 
mechanisms will remain in place if the Okaloosa darter is downlisted to 
threatened. Therefore, the existing regulatory mechanisms are 
substantial, and they will be adequate to protect the darter and its 
habitat in the majority of its range now and within the foreseeable 
future. We do not have any data to suggest that this threat will 
increase in any portion of the darter's range now or within the future.

Factor E. Other Natural or Manmade Factors Affecting Its Continued 
Existence

    Okaloosa darters were not adversely affected by the active 
hurricane and storm seasons of 2004 and 2005, which brought numerous 
severe storm events to the southern boundaries of Eglin AFB. Nor were 
the darters affected by the ongoing 2007-2008 drought affecting much of 
Florida. This is likely due to the spring-fed nature of the darter's 
drainages.
    Two natural factors are identified in the recovery plan as possibly 
affecting the Okaloosa darter: the brown darter as an introduced 
competitor species, and the beaver as an agent adversely modifying 
darter habitat. In 1964, a potential competitor, the brown darter 
(Etheostoma edwini), was found in the lower reaches of Swift Creek. The 
brown darter is a widespread species in drainages that surround the 
streams containing the Okaloosa darter, but had not previously been 
documented in any Okaloosa darter drainages. Early indications were 
that the brown darter may have been introduced into darter drainages 
from releases from bait buckets by fishermen, dispersed from Eagle 
Creek along the shoreline of Choctawhatchee Bay. Otherwise, the brown 
darter could have simply been overlooked in early collections. Recent 
genetics analyses of the brown darter shows high genetic structure, and 
little support for introductions from eastern Florida (Austin 2007, 
pers. comm.), supporting the theory that they were overlooked in early 
collections.
    Although annual monitoring (1995-2004) of Okaloosa and brown darter 
populations shows a weak negative correlation between the abundance of 
the two species, the relative abundance of Okaloosa darters at sites 
where both species occur has generally increased or remained constant 
in this timeframe, and the range of the brown darter has not expanded 
(Jordan and Jelks 2004, p. 3). Earlier comparisons of microhabitat use 
found little evidence of competitive displacement (Burkhead et al. 
1994, p. 60). Therefore, at this time, we do not believe the brown 
darter is an introduced species or that it poses a significant threat 
to the recovery of the Okaloosa darter because it has not been shown to 
successfully compete with the Okaloosa darter.
    Okaloosa darters do not appear to tolerate impounded conditions and 
are generally absent in the relatively still water upstream of manmade 
dams, beaver dams, culverts, and other instream obstructions that act 
like dams. Jordan and Jelks (2004, p. 29) observed the effects of a 
beaver dam and a culvert at two locations on Rogue Creek that supported 
Okaloosa darters before these structures were placed in the stream. 
Both structures had similar effects on darters and important darter 
habitat features, including increased water temperature, accumulation 
of flocculent substrate, loss of typical microhabitat features, and 
virtual elimination of darters in the impounded areas. However, Jordan 
and Jelks (2004, p. 29) also observed that darters returned to these 
locations within a year following removal of the beaver dam and the 
culvert, the former by Eglin AFB resource managers and the latter by a 
hurricane.
    Because beavers often alter areas contrary to human intentions for 
those areas, and also because beaver ponds displace Okaloosa darter 
habitat, resource managers, with the assistance of the U.S. Department 
of Agriculture--Wildlife Services, control beaver numbers in some areas 
on Eglin AFB (USAF 2007, pp. 1-6). Although a nuisance in the urban 
environment, beavers are a natural feature of the landscape in the 
range of the Okaloosa darter. While the waters impounded behind a 
beaver dam do not support Okaloosa darters, darter densities in 
``beaver meadows'' were among the highest observed in monitoring 
surveys. Beaver meadows occur in the vicinity of beaver ponds where the 
dam and pond induces the stream to assume a braided (multi-channel) 
form, sometimes in the pond itself following dam blowout or removal. 
Floodplain trees are killed by the year-round high water level 
maintained near the pond and by the beavers themselves, and herbaceous 
vegetation thrives in the resulting open canopy, which apparently 
creates favorable habitat conditions for the darter as aquatic 
macrophytes thrive under the open canopy and in higher nutrient 
substrates. We suspect that a beaver meadow supports as many or more 
darters than were displaced from the beaver pond itself.
    Beaver dams are not permanent structures and may be broken by the

[[Page 5274]]

high flows associated with hurricanes and other major storm events. The 
organic matter that accumulates in a beaver pond is suddenly released 
when the dam blows out, which provides a pulse of nutrients in the 
otherwise nutrient-poor darter streams. The pond is gone immediately, 
of course, and over time the braided channel through the beaver meadow 
returns to a single channel form. This channel is eventually shaded by 
riparian trees and shrubs, and the concentrated patch of darter habitat 
that the meadow provided is also gone. Given the balance of the effects 
beavers have on their habitats, we do not know at this time whether 
their numbers pose a threat to Okaloosa darters. However, even if they 
do pose localized threats, we do not believe these to be significant to 
the overall Okaloosa darter population.
    Summary of Factor E: While brown darters and beavers may pose 
localized threats to the Okaloosa darter, there is no evidence 
indicating that these threats are significantly affecting the species 
on a rangewide or population level because the Okaloosa darter persists 
in all six basins, with a minimum of 1,200 mature individuals (Service 
2007, Table 2). Substantial increasing trends are evident in the two 
largest basins, Turkey Creek and Rocky Creek, with a minimum of 244,795 
and 217,272 mature individuals respectively (Service 2007, Table 2).
    At only one of the 26 monitoring sites does the multiyear 
disappearance of the Okaloosa darter strongly suggest a local 
extirpation and possible loss of range, but this potential loss is 
small. This site is a tributary of a tributary of Rocky Creek, and 
Okaloosa darters have been collected in recent years from sites both 
upstream and downstream in the West Long Creek watershed. As noted 
earlier, Okaloosa darters expanded their ranges in two areas: One in 
Mill Creek following habitat restoration and one in a tributary of 
Tom's Creek previously thought to be uninhabited. Therefore, we find 
that this factor is not likely to cause the Okaloosa darter to become 
an endangered species within the foreseeable future throughout all or a 
significant portion of its range. We do not have any data to suggest 
that this threat will increase in any portion of the darter's range now 
or within the future.

Conclusion of the 5-Factor Analysis

    In developing this proposed rule, we have carefully assessed the 
best scientific and commercial data available regarding the threats 
facing this species, as well as the ongoing conservation efforts. As 
identified above, only one of the five listing factors currently poses 
a known threat to the Okaloosa darter, namely, Factor A.--The present 
or threatened destruction, modification, or curtailment of its habitat 
or range. Eglin AFB manages the vast majority of the Okaloosa darter's 
range, 98.7 percent. We have seen substantial progress on Eglin AFB 
addressing threats to the darter's habitat under the base's INRMP and 
general ongoing habitat restoration. Resource stewardship on Eglin AFB 
is generally reducing the threat of habitat destruction and range 
reduction (for example, restoring erosive, near-stream borrow pits). 
Eglin AFB is addressing the threat of sedimentation from unpaved roads 
and from areas adjacent to poorly designed and maintained paved roads. 
Similarly, restoration of Mill Creek on the Eglin Golf Course, which 
had been substantially altered by culverts and manmade impoundments, 
has recently (2007) been completed. As the smallest of the six darter 
watersheds, the darter population in Mill Creek is probably most 
vulnerable to extirpation. We anticipate that restoration at Mill Creek 
will secure a viable population in this system. Eglin has worked 
diligently to generally improve habitat quality within its boundaries. 
Outside of Eglin's borders, we have recently been working with the City 
of Niceville to improve their wastewater collection system and install 
more appropriate culverts at a number of road crossings. However, 
additional improvements are necessary before this threat of 
sedimentation and pollution is completely removed.
    Brown darters and habitat loss from beaver activity were identified 
as other natural and manmade factors affecting the continued existence 
of darters. After several years of monitoring and recent genetics work, 
it does not appear that the brown darter is either expanding its range 
or displacing Okaloosa darters in most sympatric areas. The overall 
effect of beaver activity on the darter is poorly understood. However, 
even if brown darters and habitat loss from beaver activity do pose 
localized threats, we do not believe these to be significant to the 
overall Okaloosa darter population.
    Recovery plans are intended to guide and measure recovery. Recovery 
criteria for downlisting and delisting are developed in the recovery 
planning process to provide measureable goals on the path to recovery; 
however, precise attainment of all recovery criteria is not a 
prerequisite for downlisting or delisting. Rather, the decision to 
change the status of a listed species under the Act is based on the 
analysis of the 5 listing factors identified in section 4 of the Act. 
The Act provides for downlisting from endangered to threatened when the 
best available data indicate that a species, subspecies, or distinct 
population segment is no longer in danger of extinction throughout all 
or a significant portion of its range.
    The 1998 Recovery Plan for the Okaloosa darter identifies five 
downlisting criteria. We believe that the intent of all five of the 
downlisting criteria have been fulfilled; however, the delisting 
criteria have not been met at this time (see the Recovery section 
above). While significantly reduced, sedimentation and pollution remain 
a threat in portions of the darter's range, as well as development.
    Based on the analysis above and given the substantial reduction in 
threats to its habitat, we believe that the Okaloosa darter does not 
currently meet the definition of endangered in that it is not ``in 
danger of extinction throughout all or a significant portion of its 
range.'' Instead, we believe it meets the definition of threatened in 
that it is ``likely to become endangered in the foreseeable future 
throughout all or a significant portion of its range.'' Actions still 
needed for the Okaloosa darter to continue to recover (for example, 
actions to remove threats to the point that the species no longer meets 
the definition of threatened) include:
    (1) Cooperative agreements to protect and restore habitat, water 
quality, and water quantity for the Okaloosa darter outside of Eglin 
AFB to protect the species in the foreseeable future; and
    (2) Improved and maintained water quality and riparian habitat on 
Eglin AFB, minimizing erosion at clay pits, road crossings, and steep 
slopes to the extent that resembles historic, predisturbance 
conditions.

Significant Portion of the Range Analysis

    Having determined that the Okaloosa darter is no longer endangered 
throughout its range as a consequence of the threats evaluated under 
the five threat factors in the Act, we must next consider whether there 
are any significant portions of its range where the species is 
currently endangered. On March 16, 2007, a formal opinion was issued by 
the Solicitor of the Department of the Interior, ``The Meaning of `In 
Danger of Extinction Throughout All or a Significant Portion of Its 
Range' '' (U.S. DOI 2007). We have summarized our interpretation of 
that opinion and the underlying statutory language below. A portion of 
a species' range is significant if it is part of the current range of 
the species and is important to the conservation of the species because 
it contributes meaningfully to the representation,

[[Page 5275]]

resiliency, or redundancy of the species. The contribution must be at a 
level such that its loss would result in a decrease in the ability to 
conserve the species.
    The first step in determining whether a species is endangered in a 
significant portion of its range is to identify any portions of the 
range that warrant further consideration. The range of a species can 
theoretically be divided into portions in an infinite number of ways. 
However, there is no purpose to analyzing portions of the range that 
are not reasonably likely to be significant and endangered. To identify 
only those portions that warrant further consideration, we determine 
whether there is substantial information indicating that: (1) The 
portions may be significant, and (2) the species may be in danger of 
extinction there. In practice, a key part of this analysis is whether 
the threats are geographically concentrated in some way. If the threats 
to the species are essentially uniform throughout its range, no portion 
is likely to warrant further consideration. Moreover, if any 
concentration of threats applies only to portions of the range that are 
not significant to the conservation of the species, such portions will 
not warrant further consideration.
    If we identify any portions that warrant further consideration, we 
then determine whether in fact the species is endangered in any 
significant portion of its range. Depending on the biology of the 
species, its range, and the threats it faces, it may be more efficient 
for the Service to address the significance question first, and in 
others the status question first. Thus, if the Service determines that 
a portion of the range is not significant, the Service need not 
determine whether the species is endangered there. Conversely, if the 
Service determines that the species is not endangered in a portion of 
its range, the Service need not determine if that portion is 
significant. If the Service determines that both a portion of the range 
of a species is significant and the species is endangered there, the 
Service will specify that portion of the range where the species is in 
danger of extinction pursuant to section 4(c)(1) of the Act.
    The terms ``resiliency,'' ``redundancy,'' and ``representation'' 
are intended to be indicators of the conservation value of portions of 
the range. Resiliency of a species allows the species to recover from 
periodic or occasional disturbance. A species will likely be more 
resilient if large populations exist in high-quality habitat that is 
distributed throughout the range of the species in such a way as to 
capture the environmental variability within the range of the species. 
It is likely that the larger size of a population will help contribute 
to the viability of the species. Thus, a portion of the range of a 
species may make a meaningful contribution to the resiliency of the 
species if the area is relatively large and contains particularly high-
quality habitat or if its location or characteristics make it less 
susceptible to certain threats than other portions of the range. When 
evaluating whether or how a portion of the range contributes to 
resiliency of the species, it may help to evaluate the historical value 
of the portion and how frequently the portion is used by the species. 
In addition, the portion may contribute to resiliency for other 
reasons--for instance, it may contain an important concentration of 
certain types of habitat that are necessary for the species to carry 
out its life-history functions, such as breeding, feeding, migration, 
dispersal, or wintering.
    Redundancy of populations may be needed to provide a margin of 
safety for the species to withstand catastrophic events. This does not 
mean that any portion that provides redundancy is a significant portion 
of the range of a species. The idea is to conserve enough areas of the 
range such that random perturbations in the system act on only a few 
populations. Therefore, each area must be examined based on whether 
that area provides an increment of redundancy that is important to the 
conservation of the species.
    Adequate representation insures that the species' adaptive 
capabilities are conserved. Specifically, the portion should be 
evaluated to see how it contributes to the genetic diversity of the 
species. The loss of genetically based diversity may substantially 
reduce the ability of the species to respond and adapt to future 
environmental changes. A peripheral population may contribute 
meaningfully to representation if there is evidence that it provides 
genetic diversity due to its location on the margin of the species' 
habitat requirements.
    For the Okaloosa darter, we applied the process described above to 
determine whether any portions of the range warranted further 
consideration to qualify for endangered status. We concluded through 
the five-factor analysis, in particular Factor A, that the existing or 
potential threats are consistent throughout the darter's range, and 
there is no portion of the range where one or more threats are 
geographically concentrated. We believe that there are no small 
geographic areas where localized threats still exist. Because the low 
level of threats to the species is essentially uniform throughout its 
range, no portion warrants further consideration as a significant 
portion of the range. A summary of our reasoning follows.
    The quality of Okaloosa darter habitat is quite variable throughout 
its range. However, the basic biological components necessary for the 
darter to complete its life-history functions are present throughout 
the range in each of the six stream systems. There is no particular 
location or area that provides a unique or biologically significant 
function. The currently occupied range of the darter is restricted to 
approximately 364.6 and 402 km (227.9 and 251.3 mi.) of streams, 
respectively, in Walton and Okaloosa Counties, Florida. The threats 
identified above are fairly uniform throughout this range. The vast 
majority of the range of the darter, 98.7 percent, is managed by Eglin 
AFB according to the 2007 INRMP and Threatened and Endangered Species 
Component Plan. The Component Plan applies equally throughout the 
darter's range on the base. The greatest threat to the species, 
sediment loading mainly from stream crossings of unpaved roads, is 
ubiquitous throughout the darter's range on the base. While there are 
certain specific locations within the darter's range where pollution 
impacts are greater than in other locations, for example, those 
locations considered to be ``potentially impaired'' by DEP, in no 
circumstance is an entire stream system so affected.
    An exception to the above includes the approximately 5 km (3.1 mi.) 
of the range that does not occur on Eglin AFB. In this small percentage 
of the range, several of the threats are more pronounced, including 
those from urban development and construction activity. However, as 
this more pronounced threat is only present on 1.3 percent of the range 
of the Okaloosa darter, it is not ``significant'' to the species. 
Therefore, we have determined that there are no portions of the range 
that qualify as a significant portion of the range in which the darter 
is in danger of extinction.
    In summary, the threats to Okaloosa darter habitat have been 
significantly reduced as a result of Eglin implementing habitat 
improvement measures on the AFB. Okaloosa darter populations remain 
stable throughout most of their range, and have even expanded their 
range in some areas. Based on the darter's improved status throughout 
its range and the reduction in threats, we have determined that none of 
the threats result in the darter being in danger of extinction 
throughout all or a significant portion of its range.

[[Page 5276]]

However, several threats to the darter and its habitat remain. We have 
determined that, based on the status of the species and these remaining 
threats, the Okaloosa darter meets the definition of threatened in that 
it is likely to become endangered within the foreseeable future 
throughout all or a significant portion of its range. Therefore, we are 
proposing to reclassify the darter's status from endangered to 
threatened under the Act.

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 increases public awareness of 
threats to the Okaloosa darter, and promotes conservation actions by 
Federal, state, and local agencies; private organizations; and 
individuals. The Act provides for possible land acquisition and 
cooperation with the state, and provides for recovery planning and 
implementation. 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 the Okaloosa darter. Regulations 
implementing this interagency cooperation provision of the Act are 
codified at 50 CFR part 402. If a Federal action may affect the 
Okaloosa darter or its habitat, the responsible Federal agency must 
consult with the Service to ensure that any action authorized, funded, 
or carried out by such agency is not likely to jeopardize the continued 
existence of the Okaloosa darter. Federal agency actions that may 
require consultation include: Eglin AFB mission activities, new 
construction, culvert replacements, stream restoration, sediment 
control projects, vegetation control, and right-of-way permitting for 
pipelines and cables; U.S. Army Corps of Engineers involvement in 
projects such as dredge and fill permits for roads, bridges, and 
culverts; and Federal Highway Administration road projects.
    The Act and its implementing regulations set forth a series of 
general prohibitions and exceptions that apply to all endangered and 
threatened wildlife. These prohibitions, codified at 50 CFR 17.21 and 
50 CFR 17.31, in part, make it illegal for any person subject to the 
jurisdiction of the United States to take (includes harm, harass, 
pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to 
attempt to engage in 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 listed species. It 
is also illegal to possess, sell, deliver, carry, transport, or ship 
any such wildlife that has been taken in violation of the Act. Certain 
exceptions apply to Service agents and agents of state conservation 
agencies.
    We may issue permits to carry out otherwise prohibited activities 
involving threatened and endangered species under certain 
circumstances. Regulations governing permits are codified at 50 CFR 
part 13 and at 50 CFR 17.32 for threatened wildlife species. Such 
permits are available for scientific purposes, to enhance the 
propagation or survival of the species, and for incidental take in the 
course of otherwise lawful activities. For threatened species, permits 
are also available for zoological exhibition, educational purposes, or 
special purposes consistent with the purposes of the Act.
    Because the Okaloosa darter's extant range occurs almost 
exclusively on Eglin AFB, the species is afforded considerable 
protections from large-scale habitat disturbance. Those protections 
have already been discussed under Factor D. above, and are incorporated 
here by reference.
    Questions regarding whether specific activities will constitute a 
violation of section 9 of the Act and applicable regulations should be 
directed to Don Imm, Deputy Field Supervisor, Panama City Field Office 
(see FOR FURTHER INFORMATION CONTACT). Requests for copies of the 
regulations regarding listed species and inquiries about prohibitions 
and permits may be addressed to the U.S. Fish and Wildlife Service, 
Ecological Services Division, 1875 Century Boulevard, Suite 200, 
Atlanta, GA 30345, telephone (404) 679-7217, facsimile (404) 679-7081.

Proposed Special Rule

    The information presented just above generally applies to 
threatened species of fish and wildlife. However, the Service has the 
discretion under section 4(d) of the Act to issue special regulations 
for a threatened species that are necessary and advisable for the 
conservation of the species. Threatened species implementing 
regulations at 50 CFR 17.31 incorporate the prohibitions of section 9 
of the Act for endangered species, except when a ``special rule'' is 
promulgated under section 4(d) of the Act for a particular threatened 
species. A special rule for a particular threatened species defines the 
specific take prohibitions and exceptions that apply for that species 
rather than incorporating all of the prohibitions of section 9 of the 
Act. The prohibitions under section 9 of the Act currently make it 
illegal to import, export, take, possess, deliver, receive, carry, 
transport, ship in interstate commerce, sell or offer for sale in 
interstate or foreign commerce species listed under the Act. Take, as 
defined in section 3 of the Act, means to harass, harm, pursue, hunt, 
shoot, wound, kill, trap, capture, or collect, or to attempt to engage 
in any such conduct. Threatened species that have special rules under 
section 4(d) of the Act are listed in our regulations at 50 CFR 17.40 
through 17.48.
    Because we originally listed the Okaloosa darter as endangered, we 
did not promulgate a special rule. However, now that we are proposing 
to reclassify the darter to threatened status, we believe that a 
special rule is appropriate to provide for the continued conservation 
of the species. Therefore, a proposed special rule is included as part 
of this proposed reclassification from endangered to threatened status.
    Although the range of the species is small, it is almost entirely 
(98.7 percent) on Eglin AFB Federal lands. Darter drainages comprise 24 
percent of the Eglin AFB, subjecting almost all actions undertaken on 
24 percent of the base to the interagency cooperation requirements of 
section 7 of the Act, including habitat management and restoration both 
specifically targeted at darter conservation and as required by the 
Sikes Act and SAIA through the Eglin INRMP. This proposed special rule:
    (1) Recognizes the positive recovery efforts and accomplishments of 
Eglin AFB and the DOD in recovering the Okaloosa darter to the extent 
that the darter no longer meets the definition of endangered;
    (2) Provides increased regulatory and mission flexibility for Eglin 
AFB;
    (3) Will help streamline or eliminate review and permitting 
requirements for habitat management and restoration activities, thus 
providing a net benefit to the Okaloosa darter; and
    (4) Will better enable the Service and Eglin AFB to target limited 
resources to other, more vulnerable areas or species.
    Therefore, under section 4(d) of the Act, we propose, through this 
special rule, that it is necessary and advisable to provide for the 
conservation of the Okaloosa darter by allowing the take in accordance 
with applicable Federal, state, and local laws, during the following 
activities on Eglin AFB that are consistent with a Service-approved 
INRMP and the Threatened and Endangered Species Component Plan:

[[Page 5277]]

    (1) Prescribed fire for land management to promote a healthy 
ecosystem;
    (2) Instream habitat restoration;
    (3) Unpaved range road stabilization;
    (4) Removal or replacement of culverts for the purpose of road 
decommissioning, improving fish passage, or enhancing stream habitat; 
and
    (5) Scientific research and monitoring activities consistent with 
an approved Okaloosa darter recovery plan, or otherwise approved by the 
Service, both on and off of Eglin AFB.
    All other activities resulting in take of Okaloosa darter would 
remain prohibited.
    This proposed special rule would provide for the continued 
conservation of Okaloosa darter by reducing the regulatory burden under 
the Act, and thereby encouraging further recovery efforts on DOD lands. 
Minor adverse impacts to the Okaloosa darter, consistent with 
provisions of a final 4(d) special rule, if adopted, would not 
appreciably diminish the likelihood of recovery of the Okaloosa darter.

Effects of This Proposed Rule

    This rule, if made final, would revise our regulations at 50 CFR 
17.11(h) to reclassify the Okaloosa darter from endangered to 
threatened throughout its range on the Federal List of Endangered and 
Threatened Wildlife. If made final, this rule would formally recognize 
that this species is no longer in imminent danger of extinction 
throughout all or a significant portion of its range. However, this 
reclassification would not significantly change the protection afforded 
this species under the Act. The regulatory protections of section 9 and 
section 7 of the Act would remain in place. Anyone taking, attempting 
to take, or otherwise possessing an Okaloosa darter, or parts thereof, 
in violation of section 9 of the Act would still be subject to a 
penalty under section 11 of the Act, unless their action is covered 
under a special rule under section 4(d) of the Act. Under section 7 of 
the Act, Federal agencies must ensure that any actions they authorize, 
fund, or carry out are not likely to jeopardize the continued existence 
of the Okaloosa darter.
    If the Okaloosa darter is listed as threatened, recovery actions 
directed at the darter would continue to be implemented as outlined in 
the recovery plan for the Okaloosa darter (Service 1998), including:
    (1) Restoring and protecting habitat in the six Okaloosa darter 
stream watersheds;
    (2) Protecting water quality and quantity in the six Okaloosa 
darter streams;
    (3) Monitoring and annually assessing populations and habitat 
conditions of Okaloosa and brown darters, and water quality and 
quantity in the streams; and
    (4) Establishing a public information and education program and 
evaluating its effectiveness.
    Finalization of this proposed rule would not constitute an 
irreversible commitment by the Service. Reclassification of the 
Okaloosa darter back to endangered status (uplisting) would be possible 
if changes occur in management, population status, and habitat or other 
actions that detrimentally affect the species or increase threats to 
the species. Federal agencies must still ensure that any actions they 
authorize, fund, or carry out are not likely to jeopardize the 
continued existence of the Okaloosa darter when this action is made 
final.

Peer Review

    In accordance with our joint peer review policy with the National 
Marine Fisheries Service, ``Notice of Interagency Cooperative Policy 
for Peer Review in Endangered Species Act Activities,'' that was 
published in the Federal Register on July 1, 1994 (50 FR 34270), and 
the Office of Management and Budget's Final Information Quality 
Bulletin for Peer Review, dated December 16, 2004, we will seek the 
expert opinions of at least three appropriate and independent 
specialists regarding the science in this proposed rule. The purpose of 
this review is to ensure that decisions are based on scientifically 
sound data, assumptions, and analyses. We will send these peer 
reviewers copies of this proposed rule immediately following 
publication in the Federal Register. We will invite these peer 
reviewers to comment, during the public comment period, on the specific 
assumptions and conclusions regarding the proposed reclassification of 
the Okaloosa darter from endangered to threatened and our proposed 
special rule. The final decision on this proposed rule will take into 
consideration all of the comments and any additional information we 
receive during the comment period. Accordingly, the final decision may 
differ from this proposal.

Required Determinations

Regulatory Planning and Review (Executive Order 12866)

    The Office of Management and Budget (OMB) has determined that this 
rule is not significant under Executive Order 12866 (E.O. 12866) and 
has not reviewed this rule. OMB bases its determination upon the 
following four criteria:
    (a) Whether the rule will have an annual effect of $100 million or 
more on the economy or adversely affect an economic sector, 
productivity, jobs, the environment, or other units of the government.
    (b) Whether the rule will create inconsistencies with other Federal 
agencies' actions.
    (c) Whether the rule will materially affect entitlements, grants, 
user fees, loan programs, or the rights and obligations of their 
recipients.
    (d) Whether the rule raises novel legal or policy issues.

Clarity of the Rule

    We are required by Executive Orders 12866 and 12988 and by 
Presidential Memorandum of June 1, 1998, to write all rules in plain 
language. This means that each rule we publish must:
    (a) Be logically organized;
    (b) Use the active voice to address readers directly;
    (c) Use clear language rather than jargon;
    (d) Be divided into short sections and sentences; and
    (e) Use lists and tables wherever possible.
    If you feel that we have not met these requirements, send us 
comments by one of the methods listed in the ADDRESSES section. To 
better help us revise the rule, your comments should be as specific as 
possible. For example, you should tell us the numbers of the sections 
or paragraphs that are unclearly written, which sections or sentences 
are too long, the sections where you feel lists or tables would be 
useful, etc.

Section 7 Consultation

    A proposed special rule under section 4(d) of the Act is included 
in this proposed downlisting rule. The Service is not required to 
consult on this rule under section 7(a)(2) of the Act. The development 
of protective regulations for a threatened species are an inherent part 
of the section 4 listing process. The Service must make this 
determination considering only the ``best scientific and commercial 
data available.'' A necessary part of this listing decision is also 
determining what protective regulations are ``necessary and advisable 
to provide for the conservation of [the] species.'' Determining what 
prohibitions and authorizations are necessary to conserve the species, 
like the listing determination of whether the species meets the 
definition of threatened or endangered, is not a decision that

[[Page 5278]]

Congress intended to undergo section 7 consultation.

Paperwork Reduction Act of 1995

    Office of Management and Budget (OMB) regulations at 5 CFR part 
1320 implement provisions of the Paperwork Reduction Act (44 U.S.C. 
3501 et seq.). These regulations require that Federal agencies obtain 
approval from OMB before collecting information from the public. The 
OMB regulations at 5 CFR 1320.3(c) define a collection of information 
as the obtaining of information by or for an agency by means of 
identical questions posed to, or identical reporting, recordkeeping, or 
disclosure requirements imposed on, 10 or more persons. Furthermore, 5 
CFR 1320.3(c)(4) specifies that ``ten or more persons'' refers to the 
persons to whom a collection of information is addressed by the agency 
within any 12-month period. For purposes of this definition, employees 
of the Federal government are not included. The Service may not conduct 
or sponsor, and you are not required to respond to, a collection of 
information unless it displays a currently valid OMB control number.
    This proposed rule does not contain any collections of information 
that require OMB approval under the Paperwork Reduction Act. This rule 
will not impose recordkeeping or reporting requirements on state or 
local governments, individuals, businesses, or organizations.

National Environmental Policy Act

    We have determined that we do not need to prepare an Environmental 
Assessment, or an Environmental Impact Statement, as defined under the 
authority of the National Environmental Policy Act of 1969 (42 U.S.C. 
4321 et seq.), in connection with regulations adopted under section 
4(a) of the Endangered Species Act. We published a notice outlining our 
reasons for this determination in the Federal Register on October 25, 
1983 (48 FR 49244).

References Cited

    A complete list of the references used to develop this proposed 
rule is available upon request from Don Imm, Deputy Field Supervisor, 
Panama City Field Office (see FOR FURTHER INFORMATION CONTACT).

Author

    The primary author of this document is Janet Mizzi, Chief, Species 
and Habitat Assessment, U.S. Fish and Wildlife Service, Southeast 
Regional Office, Atlanta, GA.

List of Subjects in 50 CFR Part 17

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

Proposed Regulation Promulgation

    We propose to amend part 17, subchapter B of chapter I, title 50 of 
the Code of Federal Regulations, 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; Public Law 99-625, 100 Stat. 3500; unless otherwise 
noted.

    2. Amend Sec.  17.11(h) by revising the entry for ``Darter, 
Okaloosa'' under ``FISHES'' in the list of Endangered and Threatened 
Wildlife 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, Okaloosa.................  Etheostoma okaloosae  U.S.A. (FL)........  Entire.............  T                         6           NA    17.44(aa)
 
                                                                      * * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------

    3. Amend Sec.  17.44 by adding a new paragraph (aa) to read as 
follows:


Sec.  17.44  Special rules--fishes.

* * * * *
    (aa) Okaloosa darter (Etheostoma okaloosae). (1) Except as noted in 
paragraphs (aa)(2) and (aa)(3) of this section, all prohibitions of 50 
CFR 17.31 and exemptions of 50 CFR 17.32 apply to the Okaloosa darter.
    (i) No person may possess, sell, deliver, carry, transport, ship, 
import, or export, by any means whatsoever, any Okaloosa darters taken 
in violation of this section or in violation of applicable state fish 
and wildlife conservation laws or regulations.
    (ii) It is unlawful for any person to attempt to commit, solicit 
another to commit, or cause to be committed, any offense listed in this 
special rule.
    (2) The following activities, which may result in incidental take 
of the Okaloosa darter, are allowed on Eglin Air Force Base (AFB), 
provided that the activities occur in accordance with applicable 
Federal, state and local laws, and are consistent with a Service-
approved Integrated Natural Resource Management Plan by Eglin AFB and 
with Eglin AFB's Threatened and Endangered Species Component Plan:
    (i) Prescribed fire for land management to promote a healthy 
ecosystem;
    (ii) Instream habitat restoration;
    (iii) Unpaved range road stabilization; and
    (iv) Removal or replacement of culverts for the purpose of road 
decommissioning, improving fish passage, or enhancing stream habitat.
    (3) Scientific research and monitoring activities that may result 
in incidental take of the Okaloosa darter are allowed, provided these 
activities are consistent with a Service-approved Okaloosa darter 
recovery plan, or otherwise approved by the Service, whether those 
activities occur on and off of Eglin AFB.
    (4) All activities not listed in paragraph (aa)(2) and (aa)(3) of 
this section that result in take of the Okaloosa darter are prohibited.

    Dated: January 14, 2010.
Sam D. Hamilton,
Director, Fish and Wildlife Service.
[FR Doc. 2010-2007 Filed 2-1-10; 8:45 am]
BILLING CODE 4310-55-P