[Federal Register Volume 75, Number 121 (Thursday, June 24, 2010)]
[Proposed Rules]
[Pages 36035-36057]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-15240]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-R4-ES-2010-0027]
[MO 92210-0-0008-B2]
RIN 1018-AV85


Endangered and Threatened Wildlife and Plants; Listing the 
Cumberland Darter, Rush Darter, Yellowcheek Darter, Chucky Madtom, and 
Laurel Dace as Endangered Throughout Their Ranges

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule; request for public comments.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), propose to 
list the Cumberland darter (Etheostoma susanae), rush darter 
(Etheostoma phytophilum), yellowcheek darter (Etheostoma moorei), 
chucky madtom (Noturus crypticus), and laurel dace (Phoxinus saylori) 
as endangered under the Endangered Species Act of 1973, as amended 
(Act). If we finalize this rule as proposed, it would extend the Act's 
protections to these species throughout their ranges, including, 
Cumberland darter in Kentucky and Tennessee, rush darter in Alabama, 
yellowcheek darter in Arkansas, and chucky madtom and laurel dace in 
Tennessee. We have determined that critical habitat for these species 
is prudent, but not determinable at this time.

DATES: We will consider comments we receive on or before August 23, 
2010. We must receive requests for public hearings, in writing, at the 
address shown in the ADDRESSES section by August 9, 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.
    U.S. mail or hand-delivery: Public Comments Processing, Attn: 
[Docket No. FWS-R4-ES-2010-0027]; Division of Policy and Directives 
Management, U.S. Fish and Wildlife Service, 4401 N. Fairfax Drive, 
Suite 222, Arlington, VA 22203.
    We will not accept e-mail or faxes. 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 Request for Public 
Comments section below for more information).

FOR FURTHER INFORMATION CONTACT: For information regarding the 
Cumberland darter, contact Lee Andrews, Field Supervisor, U.S. Fish and 
Wildlife Service, Kentucky Ecological Services Field Office, J.C. Watts 
Federal Building, 330 W. Broadway Rm. 265, Frankfort, KY 40601; 
telephone 502-695-0468; facsimile 502-695-1024. For information 
regarding the rush darter, contact Stephen Ricks, Field Supervisor, 
U.S. Fish and Wildlife Service, Mississippi Ecological Services Field 
Office, 6578 Dogwood View Parkway, Suite A, Jackson, MI 39213; 
telephone 601-965-4900; facsimile 601-965-4340 or Bill Pearson, Field 
Supervisor, U.S. Fish and Wildlife Service, Alabama Ecological Services 
Field Office, 1208-B Main Street, Daphne AL 36526; telephone 251-441-
5181; fax 251-441-6222. For information regarding the yellowcheek 
darter, contact Mark Sattelberg, Field Supervisor, U.S. Fish and 
Wildlife Service, Arkansas Ecological Services Field Office, 110 South 
Amity Road, Suite 300, Conway, AR 72032; telephone 501-513-4470; 
facsimile 501-513-4480. For information regarding the chucky madtom or 
laurel dace, contact Mary Jennings, Field Supervisor, U.S. Fish and 
Wildlife Service, Tennessee Ecological Services Field Office, 446 Neal 
Street, Cookeville, TN 38501; telephone 931-528-6481; facsimile 931-
528-7075. If you use a telecommunications device for the deaf (TDD), 
call the Federal Information Relay Service (FIRS) at 800-877-8339.

SUPPLEMENTARY INFORMATION:

Request for Public Comments

    We intend that any final action resulting from this proposed rule 
will be based on the best scientific and commercial data available and 
as accurate and effective as possible. Therefore, we request comments 
or information from the public, other concerned governmental agencies, 
the scientific community, industry, or any other interested party 
concerning this proposed rule. We particularly seek comments 
concerning:
    (1) Biological, commercial trade, or other relevant data concerning 
any threats (or lack thereof) to these species and regulations that may 
be addressing those threats;
    (2) Additional information concerning the ranges, distribution, and 
population size of these species, including the locations of any 
additional populations of the species;
    (3) Any additional information on the biological or ecological 
requirements of the species;
    (4) Current or planned activities in the areas occupied by the 
species and possible impacts of these activities on the species and 
their habitat;
    (5) Potential effects of climate change on the species and their 
habitats;
    (6) The reasons why areas should or should not be designated as 
critical habitat as provided by section 4 of the Act (16 U.S.C. 1531, 
et seq.), including whether the benefits of designation would outweigh 
threats to the species that designation could cause (e.g., exacerbation 
of existing threats, such as overcollection), such that the designation 
of critical habitat is prudent; and .
    (7) Specific information on:

 What areas contain physical and biological features essential 
for the conservation of the species;
 What areas are essential to the conservation of the species; 
and
 Special management considerations or protection that proposed 
critical habitat may require.

    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 
determinations as to whether any species is a threatened or endangered 
species mush be made ``solely on the basis of the best scientific and 
commercial data available.''
    You may submit your comments and materials concerning this proposed 
rule by one of the methods listed in the ADDRESSES section. We will not 
accept comments sent by e-mail or fax or to an address not listed in 
the ADDRESSES section.
    We will post your entire comment, including your personal 
identifying information, on http://www.regulations.gov. If you provide 
personal identifying information in your hard copy comments, such as 
your street address, phone number, or e-mail address, 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. We will post all hardcopy submissions on http://www.regulations.gov. Please include sufficient information with your 
comments to allow us to verify any scientific or commercial information 
you include.

[[Page 36036]]

    Comments and materials we receive, as well as supporting 
documentation we used in preparing this proposed rule, will be 
available for public inspection on http://www.regulations.gov, or by 
appointment, during normal business hours, at the U.S. Fish and 
Wildlife Service, Tennessee Ecological Services Field Office (see FOR 
FURTHER INFORMATION CONTACT section).

Background

Species Information

Cumberland darter
    The Cumberland darter, Etheostoma susanae (Jordan and Swain), is a 
medium-sized member of the fish tribe Etheostomatini (Family Percidae) 
that reaches over 5.5 centimeters (cm) (2 inches (in)) standard length 
(SL) (SL, length from tip of snout to start of the caudal peduncle 
(slender region extending from behind the anal fin to the base of the 
caudal fin)) (Etnier and Starnes 1993, pp. 512). The species has a 
straw-yellow background body color with brown markings that form six 
evenly spaced dorsal (back) saddles and a series of X-, C-, or W-shaped 
markings on its sides (Etnier and Starnes 1993, p. 510). During 
spawning season, the overall body color of breeding males darkens, and 
the side markings become obscure or appear as a series of blotches 
(Etnier and Starnes 1993, p. 510).
    The Cumberland darter was first reported as Boleosoma susanae by 
Jordan and Swain (1883, pp. 249-250) from tributaries of the Clear Fork 
of the Cumberland River, Kentucky. Subsequent studies by Kuhne (1939, 
p. 92) and Cole (1967, p. 29) formerly recognized the taxon as a 
subspecies (Etheostoma nigrum susanae) of E. n. nigrum (Johnny darter). 
Starnes and Starnes (1979, p. 427) clarified the subspecific status of 
the Cumberland darter, differentiating it from the Johnny darter by 
several diagnostic characteristics. Strange (1994, p. 14; 1998, p. 101) 
recommended that E. n. susanae be elevated to specific status based on 
the results of mitochondrial DNA analyses of E. n. susanae and E. n. 
nigrum. The Cumberland darter was recognized as a valid species, E. 
susanae (Cumberland darter), by Nelson et al. (2004, p. 233) based on 
the work of Strange (1994, p. 14; 1998, p. 101) and a personal 
communication with W. C. Starnes (May 2000), who suggested the common 
name.
    The Cumberland darter inhabits pools or shallow runs of low to 
moderate gradient sections of streams with stable sand, silt, or sand-
covered bedrock substrates (O'Bara 1988, pp. 10-11; O'Bara 1991, p. 10; 
Thomas 2007, p. 4). Thomas (2007, p. 4) did not encounter the species 
in high-gradient sections of streams or areas dominated by cobble or 
boulder substrates. Thomas (2007, p. 4) reported that streams inhabited 
by Cumberland darters were second to fourth order, with widths ranging 
from 4 to 9 meters (m) (11 to 30 feet (ft)) and depths ranging from 20 
to 76 cm (8 to 30 in).
    Little is known regarding the reproductive habits of the Cumberland 
darter. Thomas (2007, p. 4) reported the collection of males in 
breeding condition in April and May, with water temperatures ranging 
from 15 to 18\o\ Celsius (C) (59 to 64\o\ Fahrenheit (F)). Extensive 
searches by Thomas (2007, p. 4) produced no evidence of nests or eggs 
at these sites. Species commonly associated with the Cumberland darter 
during surveys by Thomas (2007, pp. 4-5) were creek chub (Semotilus 
atromaculatus), northern hogsucker (Hypentelium nigricans), stripetail 
darter (Etheostoma kennicotti), and Cumberland arrow darter (Etheostoma 
sagitta sagitta). Thomas (2007, p. 5) collected individuals of the 
Federally threatened blackside dace, Phoxinus cumberlandensis, from 
three streams that also supported Cumberland darters.
    The Cumberland darter is endemic to the upper Cumberland River 
system above Cumberland Falls in Kentucky and Tennessee (O'Bara 1988, 
p. 1; O'Bara 1991, p. 9; Etnier and Starnes 1993, p. 511). The earliest 
known collections of the species were made by Jordan and Swain (1883, 
pp. 249-250), who recorded it as abundant in tributaries of Clear Fork 
of the Cumberland River, Kentucky. The species was later reported from 
Gum Fork, Scott County, Tennessee, by Shoup and Peyton (1940, p. 11), 
and seven additional tributaries of the Cumberland River by Burr and 
Warren (1986, p. 310). More exhaustive surveys by O'Bara (1988, p. 6; 
1991, pp. 9-10) and Laudermilk and Cicerello (1998; pp. 83-233, 303-
408) determined that the Cumberland darter was restricted to short 
reaches of 20 small streams (23 sites) in the upper Cumberland River 
system in Whitley and McCreary Counties, Kentucky, and Campbell and 
Scott Counties, Tennessee. These studies suggested the extirpation of 
the species from Little Wolf Creek, Whitley County, Kentucky, and Gum 
Fork, Scott County, Tennessee. Preliminary reports of disjunct 
populations in the Poor Fork Cumberland River and Martins Fork in 
Letcher and Harlan Counties, Kentucky (Starnes and Starnes 1979, p. 
427; O'Bara 1988, p. 6; O'Bara 1991, pp. 9-10), were evaluated 
genetically and determined to be the Johnny darter (Strange 1998, p. 
101). Thomas (2007, p. 3) provided the most recent information on 
status and distribution of the species through completion of a range-
wide status assessment in the upper Cumberland River drainage in 
Kentucky. Between June 2005 and April 2007, a total of 47 sites were 
sampled qualitatively in the upper Cumberland River drainage. All 
Kentucky sites with historic records were surveyed (20 sites), as well 
as 27 others having potentially suitable habitat. Surveys by Thomas 
(2007, p. 3) produced a total of 51 specimens from 13 localities (12 
streams). Only one of the localities represented a new occurrence 
record for the species.
    Currently, the Cumberland darter is known from 14 localities in a 
total of 12 streams in Kentucky (McCreary and Whitley Counties) and 
Tennessee (Campbell and Scott Counties). All 14 extant occurrences of 
the Cumberland darter are restricted to short stream reaches, with the 
majority believed to be restricted to less than 1.6 kilometers (km) (1 
mile (mi)) of stream (O'Bara 1991, pp. 9-10; Thomas 2007, p. 3). These 
occurrences are thought to form six population clusters (Bunches Creek, 
Indian Creek, Marsh Creek, Jellico Creek, Clear Fork, and Youngs 
Creek), which are geographically separated from one another by an 
average distance of 30.5 stream km (19 mi) (O'Bara 1988, p. 12; O'Bara 
1991, p. 10; Thomas 2007, p. 3). Based on collection efforts by O'Bara 
(1991, pp. 9-10), Laudermilk and Cicerello (1998, pp. 83-233, 303-408), 
and Thomas (2007, p. 3), the species appears to be extirpated from 11 
historic collection sites and a total of 9 streams: Cumberland River 
mainstem, near mouth of Bunches Creek and Cumberland Falls (Whitley 
County); Sanders Creek (Whitley County); Brier Creek (Whitley County); 
Kilburn Fork of Indian Creek (McCreary County); Bridge Fork (McCreary 
County); Marsh Creek, near mouth of Big Branch and Caddell Branch 
(McCreary County); Cal Creek (McCreary County), Little Wolf Creek 
(Whitley County); and Gum Fork (Scott County). No population estimates 
or status trends are available for the Cumberland darter; however, 
survey results by Thomas (2007, p. 3) suggest that the species is 
uncommon or occurs in low densities across its range (Thomas (2007, p. 
3).
    The Cumberland darter is ranked by the Kentucky State Nature 
Preserves Commission (2009, p. 38) as a G1G2S1 species: critically 
imperiled or imperiled globally and critically imperiled in Kentucky. 
The Kentucky Department of Fish and Wildlife Resources State Wildlife 
Action Plan

[[Page 36037]]

identified the Cumberland darter as a species of Greatest Conservation 
Need (KDFWR 2005, p. 2.2.2). The plan identified several top 
conservation actions for the Cumberland darter and other species in its 
Aquatic Guild (Upland Headwater Streams in Pools): acquisition or 
conservation easements for critical habitat, development of financial 
incentives to protect riparian corridors, development and 
implementation of best management practices, and restoration of 
degraded habitats through various State and Federal programs.
Rush Darter
    The rush darter (Etheostoma phytophilum), a medium-sized darter in 
the subgenus Fuscatelum, was described by Bart and Taylor in 1999 (pp. 
27-33). The average size of the rush darter is 5 cm (2 in) SL (Bart and 
Taylor 1999, p. 28; Johnston and Kleiner 2001, p. 3). The rush darter 
is closely related to the goldstripe darter (Etheostoma parvipinne), a 
drab-colored species with a thin golden stripe along the lateral line 
(canal along the side of a fish with sensory capabilities) that is 
surrounded by heavily mottled or stippled sides (Shaw 1996, p. 85). 
However, the distinct golden stripe characteristic of goldstripe 
darters is not well developed in rush darters (Bart and Taylor 1999, p. 
29). Also, the brown pigment on the sides of the rush darter is usually 
not as intense as in the goldstripe darter. Other characteristics of 
the rush darter are described in Bart and Taylor (1999, p. 28).
    Rush darters have been collected from various habitats (Stiles and 
Mills 2008, pp. 1-4; Bart 2002, p. 1; Johnston and Kleiner 2001, pp. 3-
4; Stiles and Blanchard 2001, pp. 1-4; Bart and Taylor 1999, p. 32), 
including root masses of emergent vegetation along the margins of 
spring-fed streams in very shallow, clear, cool, and flowing water; and 
from both small clumps and dense stands of bur reed (Sparganium sp.), 
coontail (Ceratophyllum sp.), watercress (Nasturtium officinale), and 
rush (Juncus sp.) in streams with substrates of silt, sand, sand and 
silt, muck and sand or some gravel with sand, and bedrock. Rush darters 
appear to prefer springs and spring-fed reaches of relatively low-
gradient small streams which are generally influenced by springs 
(Stiles and Mills 2008, pp. 1-4; Fluker et al. 2007, p. 1; Bart 2002, 
p. 1; Johnston and Kleiner 2001, pp. 3-4; Stiles and Blanchard 2001, 
pp. 1-4; Bart and Taylor 1999, p. 32). Rush darters have also been 
collected in wetland pools (Stiles and Mills 2008; pp. 2-3). Water 
depth at collection sites ranged from 3.0 cm to 0.5 m ( 0.1 ft to 1.6 
ft), with moderate water velocity in riffles and no flow or low flow in 
pools. Rush darters have not been found in higher gradient streams with 
bedrock substrates and sparse vegetation (Stiles and Mills 2008, pp. 1-
4; Bart 2002, p. 1; Johnston and Kleiner 2001, pp. 3-4; Stiles and 
Blanchard 2001, pp. 1-4; Bart and Taylor 1999, p. 32).
    Stiles and Mills (2008, p. 2) found gravid rush darter females in 
February and fry (newly hatched larval fish) in late April from a 
wetland pool in the Mill Creek watershed (Winston County, Alabama). 
These pools act as nursery areas for the fry (Stiles and Mills 2008, p. 
5). Even though the life history of the rush darter is poorly known, it 
is likely similar to the closely related goldstripe darter. Spawning of 
the goldstripe darter in Alabama occurs from mid March through June 
(Mettee et al. 1996, p. 655). Goldstripe larvae reared in captivity 
avoid downstream drift (Conservation Fisheries, Inc., 2005, p. 7). This 
behavior alteration may inhibit dispersal capabilities between isolated 
suitable habitat patches, and may reduce the success of captively bred 
individuals in the wild. Preferred food items for the goldstripe darter 
include midges, mayflies, blackflies, beetles, and microcrustaceans 
(Mettee et al. 1996, p. 655). The life span of the goldstripe darter is 
estimated to be 2 to 3 years.
    The rush darter currently has a restricted distribution (Johnston 
and Kleiner 2001, p. 1). All rush darter populations are located above 
the Fall Line (the inland boundary of the Coastal Plain physiographic 
region) and other ``highland regions'' where topography and elevation 
changes are observed presenting a barrier for fish movement (Boshung 
and Mayden 2004, p. 18)) in the Tombigbee-Black Warrior drainage 
(Warren et al. 2000, pp. 9, 10, 24), in portions of the Appalachian 
Plateau, and Valley and Ridge physiographic provinces of Alabama. The 
closely related goldstripe darter in Alabama occurs essentially below 
the Fall Line in all major systems except the Coosa system (Boshung and 
Mayden 2004, p. 550). Reports of goldstripe darters from the 1960s and 
1970s in Winston and Jefferson Counties, Alabama (Caldwell 1965, pp. 
13-14; Barclay 1971, p. 38; Dycus and Howell 1974, pp. 21-24; Mettee et 
al. 1989, pp. 13, 61, 64), which are above the Fall Line, were made 
prior to the description of the rush darter, but are now considered to 
be rush darters (Kuhajda 2008, pers. comm.).
    Historically, rush darters have been found in three distinct 
watersheds in Alabama: Doe Branch, Wildcat Branch, and Mill Creek of 
the Clear Creek drainage in Winston County; an unnamed spring run of 
Beaver Creek and from Penny Springs of the Turkey Creek drainage in 
Jefferson County; and Cove Spring (Little Cove Creek system) and 
Bristow Creek of the Locust Fork drainage in Etowah County.
    Currently, the three rush darter populations occur in the same 
watersheds but in a more limited distribution. One population is 
located in Wildcat Branch and Mill Creek in the Clear Creek drainage in 
Winston County (Johnston and Kleiner 2001, p. 4); the second is located 
in an unnamed spring run to Beaver Creek and in Penny Springs in the 
Turkey Creek drainage in Jefferson County (Stiles and Blanchard 2001, 
p. 2); and the third is in the Little Cove Creek drainage population. 
The Little Cove Creek population in Etowah County was known from only a 
single specimen collected in Cove Spring in 1975 (Bart and Taylor 1999, 
p. 28) and one specimen from Bristow Creek collected in 1997 (Bart 
2002, p. 7). Kuhajda (2008, pers. comm.) discovered a single specimen 
of the species in 2005, at the confluence of the Cove Spring run where 
it drains into an unnamed swamp.
    Rush darter populations are separated from each other 
geographically, and individual rush darters are only sporadically 
collected at a particular site within their range. Where it occurs, the 
rush darter is apparently an uncommon species that is usually collected 
in low numbers (Bart and Taylor 1999, p. 32). Since 1969, approximately 
100 rush darters have been collected or captured and released within 
the species' range (compiled from Bart and Taylor 1999, pp. 31-32; 
Johnston and Kleiner 2001, pp. 2-4; Stiles and Blanchard 2001, pp. 1-4; 
Johnston 2003, pp.1-3; P. Rakes 2010, pers.comm.); however, there are 
no population estimates at this time.
    Cumulatively, the rush darter is only known from localized 
collection sites within approximately 14 km (9 mi ) of streams in the 
Clear Creek, Little Cove and Bristow Creek, and Turkey Creek drainages 
in Winston, Etowah, and Jefferson Counties, respectively. Currently, 
about 3 km (2 mi) of stream, or about 22 percent of the rush darter's 
known range, is not occupied, which may be due to non-point source 
pollution (e.g., sedimentation and chemicals) from agriculture, 
urbanization, and road construction and maintenance.
    Within the Clear Creek drainage, the rush darter has been collected 
in Wildcat Branch, Mill Creek, and Doe Creek, which represents about 13 
km (8 mi) of stream or about 94 percent of the species' total 
cumulative range. Recent

[[Page 36038]]

surveys (Stiles and Mills 2008, pp. 1-4; Johnston and Kleiner 2001, p. 
3) have documented the absence of the rush darter in Doe Creek, 
possibly indicating a reduction of the species' known range within the 
Clear Creek drainage by about 3 km (2 mi) of stream or 22 percent. Rush 
darters were collected in October 2005 and again in June 2008 and 2009 
in the Little Cove Creek drainage (Cove Spring run), a first since 
1975, despite sporadic surveys over the last 30 years. This rediscovery 
of the species confirms the continued existence of the species in 
Etowah County and Cove Spring. However, the Little Cove Creek drainage 
constitutes an increase of only 0.05 km (0.02 mi) of occupied stream 
habitat or a 1.6 percent addition to the total range of the species. No 
collections of the species have occurred at Bristow Creek since 1997. 
Bristow Creek has since been channelized (straightened and deepened to 
increase water velocity). In the Turkey Creek drainage, rush darters 
have been collected sporadically within Penny Springs and at the type 
locality for the species (an unnamed spring run in Jefferson County, 
Alabama) (Bart and Taylor 1999, pp. 28, 33). This area contains about 
0.5 km (0.3 mi) of occupied stream habitat or approximately 4 percent 
of the rush darter's total range.
    The rush darter is ranked by the Alabama Department of Conservation 
and Natural Resources (2005) as a P1G1S1 species signifying its rarity 
in Alabama and its status as critically imperiled globally. It is also 
considered a species of Greatest Conservation Need (GCN) by the State. 
The rush darter has a High Priority Conservation Actions Needed and Key 
Partnership Opportunities ranking of ``CA 6,'' the highest of any fish 
species listed. The plan states that the species consists of disjoint 
populations and information is needed to determine genetic structuring 
within the populations. Conservation Actions for the species may 
require population augmentation and/or reintroduction of the species to 
suitable habitats to maintain viability.
Yellowcheek Darter
    The yellowcheek darter (Etheostoma moorei) is a small and 
compressed fish which attains a maximum SL of about 64 mm (2.5 in), and 
has a moderately sharp snout, deep body, and deep caudal peduncle 
(Raney and Suttkus 1964, p. 130). The back and sides are grayish brown, 
often with darker brown saddles and lateral bars. Breeding males are 
brightly colored with a bright blue or brilliant turquoise breast, and 
throat and light green belly, while breeding females possess orange and 
red-orange spots but are not brightly colored (Robison and Buchanan 
1988, pp. 427-429). First collected in 1959 from the Devils Fork Little 
Red River, Cleburne County, Arkansas, this species was eventually 
described by Raney and Suttkus in 1964, using 228 specimens from the 
Middle, South, and Devils Forks of the Little Red River (Devils Fork, 
Turkey Fork, and Beech Fork represent one stream with three different 
names and are subsequently referred to in this proposed rule as 
``Devils Fork''). Wood (1996, p. 305) verified the taxonomic status of 
the yellowcheek darter within the subgenus Nothonotus. The yellowcheek 
darter is one of only two members of the subgenus Nothonotus known to 
occur west of the Mississippi River.
    The yellowcheek darter inhabits high-gradient headwater tributaries 
with clear water; permanent flow; moderate to strong riffles; and 
gravel, rubble, and boulder substrates (Robison and Buchanan 1988, p. 
429). Yellowcheek darter prey items include aquatic dipteran larvae, 
stoneflies, mayflies, and caddisflies (McDaniel 1984, p. 56).
    Male and female yellowcheek darters reach sexual maturity at one 
year of age, and maximum life span is around five years (McDaniel 1984, 
pp. 25, 76). Spawning occurs from late May through June in the swift to 
moderately swift portions of riffles, often around or under the largest 
substrate particles (McDaniel 1984, p. 82), although brooding females 
have been found at the head of riffles in smaller gravel substrate 
(Wine et al. 2000, p. 3). During non-spawning months, there is a 
general movement to portions of the riffle with smaller substrate, such 
as gravel or cobble, and less turbulence (Robison and Harp 1981, p. 3). 
Weston and Johnson (2005, p. 24) observed that the yellowcheek darter 
moved very little during a 1-year migration study. It was noted that 
the yellowcheek darter appears to be a relatively non-mobile species, 
with 19 of 22 recaptured darters found within 9 meters (29.5 feet) of 
their original capture position after periods of several months. A 
number of life history characteristics, including courtship patterns, 
specific spawning behaviors, egg deposition sites, number of eggs per 
nest, degree of nest protection by males, and degree of territoriality 
are unknown at this time; however, researchers have suggested that the 
yellowcheek darter deposit eggs on the undersides of larger rubble in 
swift water (McDaniel 1984, p. 82). Wine and Blumenshine (2002, p. 10) 
noted that during laboratory spawning, female yellowcheek darters bury 
themselves in fine gravel/sand substrates (often behind large cobble or 
boulders) with only their heads and caudal fin exposed. A male 
yellowcheek darter will then position upstream of the buried female and 
fertilize her eggs as she releases them in a vibrating motion. Clutch 
size and nest defense behavior were not observed.
    The yellowcheek darter is endemic to the Devils, Middle, South, and 
Archey Forks of the Little Red River and main stem Little Red River in 
Cleburne, Searcy, Stone, and Van Buren Counties, Arkansas (Robison and 
Buchanan 1988, p. 429). In 1962, the construction of a dam on the 
Little Red River to create Greers Ferry Reservoir impounded much of the 
range of this species, including the lower reaches of Devils Fork, 
Middle Fork, South Fork, and portions of the main stem Little Red 
River, thus extirpating the species from these reaches. Yellowcheek 
darter was also extirpated from the Little Red River downstream of 
Greers Ferry Reservoir due to cold tailwater releases. The lake flooded 
optimal habitat for the species, and caused the genetic isolation of 
populations (McDaniel 1984, p. 1). The yellowcheek darter was known to 
historically occur in portions of these streams that maintained 
permanent year-round flows.
    In the 1978-81 study by Robison and Harp (1981, pp. 15-16), 
yellowcheek darter occurred in greatest numbers in the Middle and South 
Forks of the Little Red River, with populations estimated at 36,000 and 
13,500 individuals, respectively, while populations in both Devils Fork 
and Archey Fork were estimated at approximately 10,000 individuals 
(Robison and Harp 1981, pp. 5-11). During this study, the four forks of 
the Little Red River supported an estimated yellowcheek darter 
population of 60,000 individuals, and the species was considered the 
most abundant riffle fish present (Robison and Harp 1981, p. 14). 
Extensive sampling of the first two tributaries of the Little Red River 
below Greers Ferry Dam (both named Big Creek) failed to find any 
yellowcheek darters, and no darters were found in immediately adjacent 
watersheds (Robison and Harp 1981, p. 5).
    Two subsequent studies have failed to observe specimens of 
yellowcheek darter in the Turkey Fork reach of the Devils Fork Little 
Red River (Wine et al. 2000, p. 9; Wine and Blumenshine 2002, p. 11), 
since four individuals were last collected by Arkansas State University 
(ASU) researchers in 1999 (Mitchell et al. 2002, p. 129). They have 
been observed downstream within that system in the Beech Fork reach, 
where flows are more permanent. The reach

[[Page 36039]]

downstream of Raccoon Creek is influenced by inundation from Greers 
Ferry Reservoir and no longer supports yellowcheek darter. The U.S. 
Army Corps of Engineers channelized approximately 5.6-km (3.5 mi) of 
the lower Archey and South Forks Little Red River located within the 
city limits of Clinton, Arkansas, in 1985 for flood control purposes. 
Yellowcheek darter has not been collected within this 5.6-km (3.5-mi) 
reach since channelization. The yellowcheek darter otherwise inhabits 
most of its historical range, although in greatly reduced numbers in 
the Middle, South, Archey, and Devils Forks of the Little Red River.
    While collecting specimens for the 1999 genetic study, ASU 
researchers discovered that the yellowcheek darter was no longer the 
most abundant riffle fish and was more difficult to find (Wine et al. 
2000, p. 2). Because optimal habitat had been destroyed by the creation 
of Greers Ferry Lake, yellowcheek darters were confined to upper stream 
reaches with lower summer flow, smaller substrate particle size, and 
reduced gradient. A thorough status survey conducted in 2000 found the 
yellowcheek darter in three of four historic forks in greatly reduced 
numbers (Wine et al. 2000, p. 9). Populations in the Middle Fork were 
estimated at approximately 6,000 individuals, the South Fork at 2,300, 
and the Archey Fork at 2,000. Yellowcheek darter was not collected from 
the Devils Fork. Yellowcheek darter was the fifth most abundant riffle 
fish rangewide, while historically it was the most abundant riffle 
fish. Fish community composition was similar from 1978-1981 and 2000 
studies, but the proportion of yellowcheek darter declined from 
approximately 28 percent to 6 percent of the overall composition. Fish 
known to co-exist with yellowcheek darter include the rainbow darter 
(E. caeruleum) and greenside darter (E. blennioides), which can use 
pool habitats during periods of low flow, as evidenced by the 
collection of these two species from pools during electroshocking 
activities. Electroshocking has not revealed yellowcheek darter in 
pools, suggesting perhaps that they are unable to tolerate pool 
conditions (deep, slow-moving water usually devoid of cobble 
substrate). An inability to use pools during low flows would make them 
much more vulnerable to seasonal fluctuations in flows that reduce 
riffle habitat. As a result, researchers have suggested that 
yellowcheek darter declines are more likely a species rather than 
community phenomenon (Wine et al. 2000, p. 11).
    Weston and Johnson (2005, p. 22) estimated yellowcheek darter 
populations within the Middle Fork to be between 15,000 and 40,000 
individuals, and between 13,000 and 17,000 individuals in the South 
Fork. Such increases since the status survey done in 2000 would 
indicate remarkable adaptability to changing environmental conditions. 
However, it should be noted that estimates were based upon mark/
recapture estimates using the Jolly-Seber method which requires high 
numbers of recaptured specimens for accurate estimations. Recaptures 
were extremely low during that study; therefore, population estimates 
were highly variable and confidence in the resulting estimates is low.
    The yellowcheek darter is ranked by the Arkansas Natural Heritage 
Commission (ANHC) (2007, pp. 2-118) as an S1G1 species: extremely rare 
in Arkansas, and critically imperiled globally. The Arkansas Game and 
Fish Commission's Arkansas Wildlife Action Plan assigns the yellowcheek 
darter a score of 100 out of 100, representing a critically imperiled 
species with declining populations (AGFC 2005, pp. 452-454).
Chucky Madtom
    The chucky madtom (Noturus crypticus) is a small catfish, with the 
largest specimen measuring 6.47 cm (2.55 in) SL (Burr et al. 2005, p. 
795). Burr et al. (2005) described the chucky madtom, confirming 
previous analyses (Burr and Eisenhour 1994), which indicated that the 
chucky madtom is a unique species, a member of the Rabida subgenus 
(i.e., the ``mottled'' or ``saddled'' madtoms), and a member of the 
Noturus elegans species complex (i.e., N. elegans, N. albater, and N. 
trautmani) ascribed by Taylor (1969 in Grady and LeGrande 1992). A 
robust madtom, the chucky madtom body is wide at the pectoral fin 
origins, greater than 23 percent of the SL. The dorsum (back) contains 
three dark, nearly black blotches ending abruptly above the lateral 
midline of the body, with a moderately contrasting, oval, pale saddle 
anterior to each blotch (Burr et al. 2005, p. 795).
    The chucky madtom is a rare catfish known from only 15 specimens 
collected from two Tennessee streams. A lone individual was collected 
in 1940 from Dunn Creek (a Little Pigeon River tributary) in Sevier 
County, and 14 specimens have been encountered since 1991 in Little 
Chucky Creek (a Nolichucky River tributary) in Greene County. Only 3 
chucky madtom individuals have been encountered since 2000, 1 in 2000 
(Lang et al. 2001, p. 2) and 2 in 2004 (Conservation Fisheries, Inc. 
2008, unpublished data), despite surveys that have been conducted in 
both historic localities at least twice a year since 2000 (Rakes and 
Shute 2004 pp. 2-3; Weber and Layzer 2007, p. 4 Conservation Fisheries, 
Inc. 2008, unpublished data). In addition, several streams in the 
Nolichucky, Holston, and French Broad River watersheds of the upper 
Tennessee River basin, which are similar in size and character to 
Little Chucky Creek, have been surveyed with no success (Burr and 
Eisenhour 1994 pp. 1-2; Shute et al. 1997 p. 5; Lang et al. 2001, pp. 
2-3; Rakes and Shute 2004 p.1). Conservation Fisheries, Inc., did not 
find chucky madtoms in 2007 after attempting new sampling techniques 
(e.g., PVC ``jug'' traps) (Conservation Fisheries, Inc. 2008, 
unpublished data).
    Originally, museum specimens collected from the Roaring River 
(Cumberland River drainage) and from the Paint Rock River system in 
Alabama (a Tennessee River tributary well downstream of the Nolichucky 
and Little Pigeon River sites) were first identified and catalogued as 
Noturus elegans and thought to be chucky madtoms. The Roaring River 
specimens are now considered to be a member of the N. elegans group, 
but have not been assigned to a species. While the specimens from the 
Paint Rock River system share typical anal ray counts with the chucky 
madtom, they lack the distinctive cheek characteristics, differ in 
pelvic ray counts, and are intermediately shaped between the chucky and 
saddled madtoms, Noturus fasciatus, with respect to body width as a 
proportion of SL (Burr et al. 2005, p. 796). Thus, the Little Chucky 
and Dunn Creek forms are the only forms that are recognized as chucky 
madtoms.
    All of the specimens collected in Little Chucky Creek have been 
found in stream runs with slow to moderate current over pea gravel, 
cobble, or slab-rock substrates (Burr and Eisenhour 1994, p. 2). 
Habitat of these types is sparse in Little Chucky Creek, and the stream 
affords little loose, rocky cover suitable for madtoms (Shute et al. 
1997, p. 8). It is notable that intact riparian buffers are present in 
the locations where chucky madtoms have been found (Shute et al. 1997, 
p. 9).
    No studies to determine the life history and behavior of this 
species have been conducted. While nothing is known specifically about 
chucky madtom reproductive biology, recruitment, growth and longevity, 
food habits, or mobility, available

[[Page 36040]]

information for other similar members of the Noturus group are known. 
N. hildebrandi may reach sexual maturity at one or more years of age 
(i.e., during their second summer) (Mayden and Walsh 1984, p. 351). 
Only the largest females of N. albater were found to be sexually 
mature, and males were found to be sexually mature primarily within the 
second age class (Mayden et al. 1980, p. 339). Though, a single large 
male of the first age class showed evidence of sexual maturity (Mayden 
et al. 1980, p. 339). The breeding season in N. hildebrandi and N. 
baileyi was primarily during June through July, though development of 
breeding condition was initiated as early as April in N. hildebrandi 
and May in N. baileyi (Mayden and Walsh 1984, p. 353; Dinkins and Shute 
1996, p. 56). Fecundity varied among the species for which data were 
available; however, it should be noted that fecundity in madtoms is 
generally lower in comparison to other North American freshwater fishes 
(Breder and Rosen 1966 in Dinkins and Shute 1996, p. 58). Dinkins and 
Shute (1996, p. 58) commented that for N. baileyi the combination of 
relatively large egg size and high level of parental care given to the 
fertilized eggs and larvae reduce early mortality and therefore the 
need to produce a large number of young. Sexual dimorphism (two 
different forms for male and female individuals) has been observed only 
in a single pair of specimens of N. baileyi collected during the month 
of May; the male of this pair had swollen lips and enlarged mandibulae 
(lower jaw) muscles behind the eyes, and the female had a distended 
abdomen (Burr et al. 2005, p. 795).
    Both Noturus baileyi and N. elegans were found to nest under flat 
rocks at or near the head of riffles (Dinkins and Shute 1996, p. 56; 
Burr and Dimmick 1981, p. 116). Shallow pools were also used by N. 
baileyi, which was observed to select rocks of larger dimension for 
nesting than were used for shelter during other times of year (Dinkins 
and Shute 1996, p. 56). Single madtoms were found to guard nests in N. 
baileyi and N. elegans, behavior also exhibited by N. albater and N. 
hildebrandi (Dinkins and Shute 1996, p. 56; Burr and Dimmick 1981, p. 
116; Mayden et al. 1980, p. 337; Mayden and Walsh 1984, p. 357). Males 
of these species were the nest guardians and many were found to have 
empty stomachs suggesting that they do not feed during nest guarding, 
which can last as long as 3 weeks.
    Conservation Fisheries, Inc., had one male chucky madtom in 
captivity from 2004 through 2008. However, based on information from 
other members of this genus for which longevity data are available, 
Noturus hildebrandi and N. baileyi, it is unlikely that chucky madtoms 
can survive this long in the wild. The shorter lived of these, N. 
hildebrandi reached a maximum age of 18 months, though most individuals 
lived little more than 12 months, dying soon after reproducing (Mayden 
and Walsh 1984, p. 351). Based on length-frequency distributions, N. 
baileyi exhibited a lifespan of 2 years, with two cohorts present in a 
given year (Dinkins and Shute 1996, p. 53). Collection of two age 
classes together provided evidence that life expectancy exceeds 1 year 
in N. stanauli (Etnier and Jenkins 1980, p. 20). Noturus albater lives 
as long as 3 years (Mayden et al. 1980, p. 337).
    Invertebrate taxa form the primary food base for madtoms. 
Chironomid (midge), trichopteran (caddisfly), plecopteran (stonefly), 
and ephemeropteran (mayfly) larvae were frequently encountered in 
stomach contents of Noturus hildebrandi (Mayden and Walsh 1984, p. 
339). In N. baileyi, ephemeropteran nymphs comprised 70.7 percent of 
stomach contents analyzed, dipterans (flies, mosquitoes, midges, and 
gnats) 2.4 percent, trichopterans 4.4 percent, and plecopterans 1.0 
percent (Dinkins and Shute 1996, p. 61). Significant daytime feeding 
was observed in N. baileyi.
    The only data on mobility were for Noturus baileyi, which were 
found underneath slabrocks in swift to moderate current during May to 
early November. Habitat use shifted to shallow pools over the course of 
a 1-week period, coinciding with a drop in water temperature to 7 or 
8[deg] C (45 to 46 [deg] F), and persisted from early November to May 
(Dinkins and Shute 1996, p. 50).
    The current range of the chucky madtom is believed to be restricted 
to an approximately 3-km (1.8-mi) reach of Little Chucky Creek in 
Greene County, Tennessee. Because this species was also collected from 
Dunn Creek, a stream that is in a different watershed and physiographic 
province than Little Chucky Creek, it is likely that the historic range 
of the chucky madtom encompassed a wider area in the Ridge and Valley 
and the Blue Ridge physiographic provinces in Tennessee than is 
demonstrated by its current distribution. A survey for the chucky 
madtom in Dunn Creek in 1996 was not successful at locating the species 
(Shute et al. 1997, p. 8). The Dunn Creek population may be extirpated 
(Shute et al. 1997, p. 6; Burr et al. 2005, p. 797), because adequate 
habitat and a diverse fish community were present at the time of the 
surveys, but no chucky madtoms were found. There are no population size 
estimates or status trends for the chucky madtom due to low numbers and 
only sporadic collections of specimens.
    The chucky madtom is ranked by the Tennessee Natural Heritage 
Program (Withers 2009, p. 58) as an S1G1 species: extremely rare in 
Tennessee, and critically imperiled globally. In the Tennessee 
Comprehensive Wildlife Conservation Strategy (CWCS), species of 
Greatest Conservation Need (GCN) were selected based on their Global 
imperilment (G1-G3; critically imperiled globally--very rare or 
restricted throughout their range), knowledge of declining trends or 
vulnerability, or due to significance of an otherwise wide-ranging 
species (TWRA 2005, p. 36). Species of GCN were further prioritized 
into three different tiers to distinguish their status within the State 
and to determine conservation funding availability. The CWCS designated 
the chucky madtom as a Tier 1 GCN species in the State, representing 
species defined as wildlife (amphibians, birds, fish, mammals, 
reptiles, crustaceans, and mollusks) under Tennessee Code Annotated 70-
8-101, and excluding Federally listed species (TWRA 2005, p. 44, 49). 
Tier 1 species were the primary focus of the Tennessee CWCS (TWRA 2005, 
p. 44).
Laurel Dace
    The laurel dace (Phoxinus saylori) has two continuous black lateral 
stripes and black pigment covering the breast and underside of the head 
of nuptial (breeding) males (Skelton 2001, p. 120). While the belly, 
breast, and lower half of the head are typically a whitish-silvery 
color, at any time of the year laurel dace may develop red coloration 
below the lateral stripe that extends from the base of the pectoral 
fins to the base of the caudal fin (Skelton 2001, p. 121).
    Nuptial males often acquire brilliant coloration during the 
breeding season, as the two lateral stripes, breast, and underside of 
head turn intensely black and the entire ventral (lower/abdominal) 
portion of the body, contiguous with the lower black stripe and black 
breast, becomes an intense scarlet color. All of the fins acquire a 
yellow color, which is most intense in the paired fins and less intense 
in the dorsal, anal, and caudal fins. Females also develop most of 
these colors, though of lesser intensity (Skelton 2001, p. 121). 
Broadly rounded pectoral fins of males are easily discerned from the 
broadly pointed fins of females at any time during the year. The 
maximum SL

[[Page 36041]]

observed is 5.1 cm (2 in) (Skelton 2001, p. 124).
    Laurel dace have been most often collected from pools or slow runs 
from undercut banks or beneath slab boulders, typically in first or 
second order, clear, cool (maximum temperature 26[deg] C or 78.8[deg] 
F) streams. Substrates in streams where laurel dace are found typically 
consist of a mixture of cobble, rubble, and boulders, and the streams 
tend to have a dense riparian zone consisting largely of mountain 
laurel (Skelton 2001, pp. 125-126).
    Skelton (2001, p. 126) reported having collected nuptial 
individuals from late March until mid-June, though Call (Call 2004, 
pers. obs.) observed males in waning nuptial color during surveys on 
July 22, 2004. Laurel dace may be a spawning nest associate where 
syntopic (sharing the same habitat) with nest-building minnow species, 
as has been documented in Phoxinus cumberlandensis (Starnes and Starnes 
1981, p. 366). Soddy Creek is the only location in which Skelton (2001, 
p. 126) has collected a nest-building minnow with laurel dace. Skelton 
(2001, p. 126) reports finding as many as three year classes in some 
collections of laurel dace, though young-of-year fish are uncommon in 
collections. Observations of three year classes indicate that laurel 
dace live as long as 3 years.
    Skelton (2001, p. 126) qualitatively analyzed stomach contents of 
12 laurel dace and found the species eats a mixture of food items, 
dominantly benthic invertebrates, including Trichopteran, Plecopteran, 
and Dipteran larva. Some intestines contained plant material and sand 
grains. Skelton observed that the morphological feeding traits of 
laurel dace, including large mouth, short digestive tract, reduced 
number of pharyngeal (located within the throat) teeth, and primitively 
shaped basioccipital bone (bone that articulates the vertebra) are 
consistent with a diet consisting largely of animal material.
    Laurel dace are known historically from seven streams on the Walden 
Ridge portion of the Cumberland Plateau, where drainages generally 
meander eastward before dropping abruptly down the plateau escarpment 
and draining into the Tennessee River. Specifically, these seven 
streams occur in three independent systems: Soddy Creek; three streams 
that are part of the Sale Creek system (the Horn and Laurel branch 
tributaries to Rock Creek, and the Cupp Creek tributary to Roaring 
Creek); and three streams that are part of the Piney River system 
(Young's, Moccasin, and Bumbee creeks). Skelton (2001, p. 126) 
considered collections by the Tennessee Valley Authority (TVA) during a 
rotenone survey of Laurel Branch in 1976 to represent laurel dace that 
were misidentified as southern redbelly dace, as was found to be true 
for specimens collected by TVA from Horn Branch in 1976, but no 
specimens are available for confirmation. In 1991, and in four other 
surveys (in 1995, 1996 and 2004), laurel dace were not collected in 
Laurel Branch, leading Skelton to the conclusion that laurel dace have 
been extirpated from this stream (Skelton 1997, p. 13; 2001, p. 126, 
Skelton 2009, pers. comm.). Skelton (2009, pers. comm.) also noted that 
the site was impacted by silt.
    The current distribution of laurel dace comprises six of the seven 
streams that were historically occupied; the species is considered 
extirpated from Laurel Branch (see above). In these six streams, they 
are known to occupy reaches of approximately 0.3 to 8 km (0.2 to 5 mi) 
in length. The laurel dace is known from a single reach in Soddy Creek, 
and surveys in 2004 produced only a single, juvenile laurel dace 
(Strange and Skelton 2005, pp. 5-6 and Appendices 1 and 2). In Horn 
Branch, laurel dace are known from approximately 900 m (2,953 ft), but 
have become increasingly difficult to collect (Skelton 1997, pp. 13-
14). Skelton (1997, p. 14) reports that minnow traps have been the most 
successful method for collecting live laurel dace from Horn Branch, as 
it is difficult to electroshock due to in-stream rock formations and 
fallen trees. Only a single juvenile was caught in 2004 (Strange and 
Skelton 2005, p. 6). A total of 19 laurel dace were collected from Cupp 
Creek during 1995 and 1996 using an electroshocker (Skelton 1996, p. 
14). However, Skelton found no laurel dace in this stream in 2004, 
despite attempts to collect throughout an approximately 700-m (2,297-
ft) reach (Strange and Skelton 2005, p. 6).
    Laurel dace were initially found in Young's, Moccasin, and Bumbee 
creeks in the Piney River system in 1996 (Skelton 1997, pp. 14-15). 
Sampling in 2004 led to the discovery of additional laurel dace 
localities in Young's and Moccasin creeks, but the locality where 
laurel dace were found in Young's Creek in 1996 was inaccessible due to 
the presence of a locked gate (Strange and Skelton 2005, p. 6-7). The 
new localities were in the headwaters of these two streams. Persistence 
of laurel dace at the Bumbee Creek locality was confirmed in 2004 by 
surveying from a nearby road using binoculars. Direct surveys were not 
possible because the land had been leased to a hunt club for which 
contact information was not available, and therefore survey permission 
could not be obtained (Strange and Skelton 2005, p. 7). Nuptial males 
are easily identified from other species present in Bumbee Creek due to 
their brilliant coloration during the breeding season, as the two 
lateral stripes, breast, and underside of head turn intensely black and 
the entire ventral (lower/abdominal) portion of the body, contiguous 
with the lower black stripe and black breast, becomes an intense 
scarlet color. This brilliant coloration is easily seen through 
binoculars at short distances by trained individuals.
    No population estimates are available for laurel dace. However, 
based on trends observed in surveys and collections since 1991, Strange 
and Skelton (2005, p. 8) concluded that this species is persisting in 
Young's, Moccasin, and Bumbee creeks in the Piney River watershed, but 
is at risk of extirpation from the southern part of Walden Ridge in 
Soddy Creek, and in the Horn Branch and Cupp Creek areas that are 
tributaries to Sale Creek. As noted above, the species is considered to 
be extirpated from Laurel Branch, which is part of the Sale Creek 
system.
    The laurel dace is ranked by the Tennessee Natural Heritage Program 
(Withers 2009, p. 60) as an S1G1 species: extremely rare in Tennessee, 
and critically imperiled globally.
    In the Tennessee CWCS, species of GCN were selected based on their 
Global imperilment (G1-G3; critically imperiled globally--very rare or 
restricted throughout their range), knowledge of declining trends or 
vulnerability, or due to significance of an otherwise wide-ranging 
species (TWRA 2005, p. 36). Species of GCN were further prioritized 
into three different tiers to distinguish their status within the State 
and to determine conservation funding availability. The CWCS designated 
the laurel dace as a Tier-1 GCN species in the State, representing 
species defined as wildlife (amphibians, birds, fish, mammals, 
reptiles, crustaceans, and mollusks) under Tennessee Code Annotated 70-
8-101, and excluding federally listed species (TWRA 2005, p. 44, 49). 
Tier 1 species were the primary focus of the Tennessee CWCS(TWRA 2005, 
p. 44).

Previous Federal Action

Cumberland Darter
    On September 18, 1985, the Service announced that the Cumberland 
darter was being considered for possible addition to the List of 
Endangered and Threatened Wildlife (50 FR 37958). It was assigned a 
Category 2 status, which was given to those species for which the 
Service possessed information

[[Page 36042]]

indicating that proposing to list as endangered or threatened was 
possibly appropriate, but for which conclusive data on biological 
vulnerability and threat was not currently available to support 
proposed rules. In the 1989, 1991, and 1994 Candidate Notices of 
Review, the Cumberland darter was again assigned a Category 2 status 
(54 FR 554, 56 FR 58804, 59 FR 58982).
    Assigning categories to candidate species was discontinued in 1996, 
and only species for which the Service had sufficient information on 
biological vulnerability and threats to support issuance of a proposed 
rule were regarded as candidate species (61 FR 7596). Candidate species 
were also assigned listing priority numbers based on immediacy and the 
magnitude of threat, as well as their taxonomic status. In the 1999, 
2001, 2002, and 2004 Candidate Notices of Review, the Cumberland darter 
was identified as a listing priority 6 candidate species (64 FR 57533, 
66 FR 54807, 67 FR 40657, 69 FR 24875). We published a petition finding 
for Cumberland darter in the 2005 Candidate Notice of Review (70 FR 
24869) in response to a petition received on May 11, 2004. We continued 
to assign the Cumberland darter a listing priority number of 6, 
reflecting a threat magnitude and immediacy of high and non-imminent, 
respectively. In the 2006 Candidate Notice of Review, we changed the 
listing priority number for Cumberland darter from 6 to 5, because it 
was formally described as a distinct species (71 FR 53755). Based on 
new molecular evidence, the subspecies Etheostoma nigrum susanae was 
elevated to specific status, Etheostoma susanae. The Cumberland darter 
continued to be recognized as a listing priority 5 candidate in the 
2009 Candidate Notice of Review (74 FR 57869).
Rush Darter
    We first identified the rush darter as a candidate for listing in 
the 2002 Candidate Notice of Review (67 FR 40657). The rush darter was 
assigned a listing priority number of 5. In the 2004 (69 FR 24875) and 
2005 (70 FR 24869) Candidate Notice of Review, the rush darter retained 
a listing priority number of 5. We published a petition finding for 
rush darter in the 2005 Candidate Notice of Review (70 FR 24869) in 
response to a petition received on May 11, 2004. The rush darter 
retained a listing priority number of 5 in the 2005 Candidate Notice of 
Review (70 FR 24869), in accordance with our priority guidance 
published on September 21, 1983 (48 FR 43098).
    In 2006, we changed the listing priority number of the rush darter 
from 5 to 2 based on the imminent threat of water quality deterioration 
(i.e., increased sedimentation due to urbanization, road maintenance, 
and silviculture practices) (71 FR 53755). In the 2009 Candidate Notice 
of Review (74 FR 57869), the rush darter retained a listing priority of 
2.
Yellowcheek Darter
    We first identified the yellowcheek darter as a candidate for 
listing in the 2001 Candidate Notice of Review (66 FR 54807). The 
yellowcheek darter was assigned a listing priority number of 2 and has 
retained that status in the 2002, 2004, 2005, 2006, 2007, 2008, and 
2009 Candidate Notices of Review (67 FR 40657, 69 FR 24875, 70 FR 
24869, 71 FR 53755, 72 FR 69073, 73 FR 75175). We published a petition 
finding for yellowcheek darter in the 2005 Candidate Notice of Review 
in response to a petition received on May 11, 2004 (70 FR 24869). The 
yellowcheek darter is covered by a 2007 programmatic Candidate 
Conservation Agreement with Assurances (71 FR 53129) that covers the 
entire range of the species.
Chucky Madtom
    We first identified the chucky madtom as a possible candidate for 
listing in the 1994 Candidate Notice of Review (59 FR 58982). It was 
assigned a Category 2 status, which was given to those species for 
which the Service possessed information indicating that proposing to 
list as endangered or threatened was possibly appropriate, but for 
which persuasive data on biological vulnerability and threat was not 
currently available to support proposed rules. In the 2002, 2004, 2005, 
2006, 2007, 2008, and 2009 Candidate Notices of Review, the chucky 
madtom was again identified as a listing priority 2 candidate species 
(67 FR 40657, 69 FR 24875, 70 FR 24869, 71 FR 53755, 72 FR 69033, 73 FR 
75236, 74 FR 57869).
    We published a petition finding for chucky madtom in the 2005 
Candidate Notice of Review (70 FR 24869) in response to a petition 
received on May 11, 2004, stating the chucky madtom would retain a 
listing priority of 2.
    In 1994, the chucky madtom was first added to the candidate list as 
Noturus sp. (59 FR 58982). Subsequently, and based on morphological and 
molecular evidence, the chucky madtom was formally described as a 
distinct species, Noturus crypticus (Burr et al. 2005). We included 
this new information in the 2006 Candidate Notice of Review (71 FR 
53755).
Laurel Dace
    We first identified the laurel dace as a new candidate for listing 
in the 2007 Candidate Notice of Review (72 FR 69036). New candidates 
are those taxa for which we have sufficient information on biological 
vulnerability and threats to support preparation of a listing proposal, 
but for which development of a listing regulation is precluded by other 
higher priority listing activities.
    In the 2007 Candidate Notice of Review, we assigned the laurel dace 
a listing priority of 5 (72 FR 69036), and it was again identified as a 
listing priority 5 candidate species in the 2008 and 2009 Candidate 
Notices of Review (73 FR 75236, 74 FR 57869). This number reflects the 
high magnitude and non-imminence of threats to the species.

Summary of Factors Affecting the Species

    Section 4 of the Act (16 U.S.C 1533), and its implementing 
regulations (50 CFR Part 424), set forth the procedures for adding 
species to the Federal Lists of Endangered and Threatened Wildlife and 
Plants. We may determine a species to be endangered or threatened due 
to one or more of the five factors described in section 4(a)(1) of the 
Act. The five listing factors are: (A) The present or threatened 
destruction, modification, or curtailment of its habitat or range; (B) 
overutilization for commercial, recreational, scientific, or 
educational purposes; (C) disease or predation; (D) the inadequacy of 
existing regulatory mechanisms; and (E) other natural or manmade 
factors affecting its continued existence. Listing actions may be 
warranted based on any of the above threat factors, singly or in 
combination. Each of these factors is discussed below.

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

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

[[Page 36043]]

urban development (Waters 1995, pp. 2-3; KDOW 2006, pp. 178-185; 
Skelton 1997, pp. 17, 19; Thomas 2007, p. 5).
    Land use practices that affect sediment and water discharges into a 
stream can also increase the erosion or sedimentation pattern of the 
stream, which can lead to the destruction or modification of in-stream 
habitat and riparian vegetation, stream bank collapse, and increased 
water turbidity and temperature. Sediment has been shown to abrade and 
or suffocate bottom-dwelling algae and other organisms by clogging 
gills; reducing aquatic insect diversity and abundance; impairing fish 
feeding behavior by altering prey base and reducing visibility of prey; 
impairing reproduction due to burial of nests; and, ultimately, 
negatively impacting fish growth, survival, and reproduction (Waters 
1995, pp. 5-7, 55-62; Knight and Welch 2001, pp. 134-136). Wood and 
Armitage (1997, pp. 211-212) identified at least five impacts of 
sedimentation on fish, including (1) reduction of growth rate, disease 
tolerance, and gill function; (2) reduction of spawning habitat and 
egg, larvae, and juvenile development; (3) modification of migration 
patterns; (4) reduction of food availability through the blockage of 
primary production; and (5) reduction of foraging efficiency. The 
effects of these types of threats will likely increase as development 
increases in these watersheds.
    Non-point source pollution from land surface runoff can originate 
from virtually any land use activity and may be correlated with 
impervious surfaces and storm water runoff. Pollutants may include 
sediments, fertilizers, herbicides, pesticides, animal wastes, septic 
tank and gray water leakage, pharmaceuticals, and petroleum products. 
These pollutants tend to increase concentrations of nutrients and 
toxins in the water and alter the chemistry of affected streams such 
that the habitat and food sources for species like the Cumberland 
darter, rush darter, yellowcheek darter, chucky madtom, and laurel dace 
are negatively impacted. Construction and road maintenance activities 
associated with urban development typically involve earth-moving 
activities that increase sediment loads into nearby streams. Other 
siltation sources, including timber harvesting, natural gas development 
activities, clearing of riparian vegetation, mining, and agricultural 
practices, allow exposed earth to enter streams during or after 
precipitation events. These activities result in canopy removal, 
elevated stream temperatures, and increased siltation, thereby 
degrading habitats used by fishes for both feeding and reproduction 
(Mattingly et al. 2005, p. 5). Undisturbed riparian corridors are 
important because they prevent elevated stream temperatures due to 
solar heating, serve as buffers against non-point source pollutants, 
provide submerged root materials for cover and feeding, and help to 
stabilize stream banks (Mattingly et al. 2005, p. 5).
Cumberland Darter
    The Cumberland darter's preferred habitat characteristics (i.e., 
low- to moderate-gradient, low current velocity, backwater nature) make 
it extremely susceptible to the effects of siltation (O'Bara 1991, p. 
11). Sediment (siltation) has been listed repeatedly by the Kentucky 
Natural Resources and Environmental Protection Cabinet (Division of 
Water) as the most common stressor of aquatic communities in the upper 
Cumberland River basin (KDOW 1996, pp. 50-53, 71-75; 2002, pp. 39-40; 
2006, pp. 178-185). The primary source of sediment was identified as 
resource extraction (e.g., coal mining, logging). The streams within 
the Cumberland darter's current range that are identified as impaired 
(due to siltation from mining, logging, and agricultural activities) 
and have been included on Kentucky's 303(d) list of impaired waters 
(KDOW 2007, pp. 155-166) include Jenneys Branch (Indian Creek basin), 
an unnamed tributary of Jenneys Branch (Indian Creek basin), Ryans 
Creek (Jellico Creek basin), Marsh Creek, and Wolf Creek (Clear Fork 
basin).
    Siltation can also occur in the Cumberland darter's known habitat 
as a result of construction activities for human development. For 
example, during the fall of 2007, an 8.4-km (5.2-mi) reach of Barren 
Fork in McCreary County, Kentucky, was subjected to a severe 
sedimentation event (Floyd 2008, pers. obs.). This event occurred 
despite the fact that approximately 95 percent of the Barren Fork 
watershed is under Federal ownership within the Daniel Boone National 
Forest (DBNF). Construction activities associated with the development 
of a 40.47-hectare (100-acre) park site caused excessive sedimentation 
of two unnamed headwater tributaries of Barren Fork. Successive, large 
rainfall events in September and October carried sediment off site and 
impacted downstream areas of Barren Fork known to support Cumberland 
darters and the Federally threatened blackside dace. Our initial site 
visit on September 7, 2007, confirmed that sediment had been carried 
off site, resulting in significant habitat degradation in the Barren 
Fork mainstem and ``adverse effects'' on the blackside dace. Several 
smaller sediment events have occurred despite Federal and State 
attempts to resolve the issue, and on July 31, 2008, another large 
rainfall event resulted in excessive sedimentation in two Barren Fork 
watershed streams.
    Another significant threat to the Cumberland darter is water 
quality degradation caused by a variety of non-point source pollutants. 
Coal mining represents a major source of these pollutants (O'Bara 1991, 
p. 11; Thomas 2007, p. 5), because it has the potential to contribute 
high concentrations of dissolved metals and other solids that lower 
stream pH or lead to elevated levels of stream conductivity (Pond 2004, 
pp. 6-7, 38-41; Mattingly et al. 2005, p. 59). These impacts have been 
shown to negatively affect fish species, including listed species, in 
the Clear Fork system of the Cumberland basin (Weaver 1997, pp. 29; 
Hartowicz 2008, pers. comm.). The direct effect of elevated stream 
conductivity on fishes, including the Cumberland darter, is poorly 
understood, but some species, such as blackside dace, have shown 
declines in abundance over time as conductivity increased in streams 
affected by mining (Hartowicz 2008, pers. comm.). Studies indicate that 
blackside dace are generally absent when conductivity values exceed 240 
microSiemens ([micro]S) (Mattingly et al. 2005, p. 59; Black and 
Mattingly 2007, p. 12).
    Other non-point source pollutants that affect the Cumberland darter 
include domestic sewage (through septic tank leakage or straight pipe 
discharges); agricultural pollutants such as fertilizers, pesticides, 
herbicides, and animal waste; and other chemicals associated with oil 
and gas development. Non-point source pollutants can cause excess 
nutrification (increased levels of nitrogen and phosphorus), excessive 
algal growth, instream oxygen deficiencies, increased acidity and 
conductivity, and other changes in water chemistry that can seriously 
impact aquatic species (KDOW 1996, pp. 48-50; KDOW 2006, pp. 70-73).
    In summary, habitat loss and modification represent significant 
threats to the Cumberland darter. Severe degradation from 
sedimentation, physical habitat disturbance, and contaminants threatens 
the habitat and water quality on which the Cumberland darter depends. 
Sedimentation from coal mining, silviculture, agriculture, and 
development sites within the upper Cumberland basin negatively affect 
the

[[Page 36044]]

Cumberland darter by reducing growth rates, disease tolerance, and gill 
function; reducing spawning habitat, reproductive success, and egg, 
larvae, and juvenile development; modifying migration patterns; 
reducing food availability through reductions in prey; and reducing 
foraging efficiency. Contaminants associated with coal mining (metals, 
other dissolved solids), domestic sewage (bacteria, nutrients), and 
agriculture (fertilizers, pesticides, herbicides, and animal waste) 
cause degradation of water quality and habitats through increased 
acidity and conductivity, instream oxygen deficiencies, excess 
nutrification, and excessive algal growths. Furthermore, these threats 
faced by the Cumberland darter from sources of sedimentation and 
contaminants are imminent; the result of ongoing projects that are 
expected to continue indefinitely. As a result of the imminence of 
these threats combined with the vulnerability of the remaining small 
populations to extirpation from natural and manmade threats, we have 
determined that the present or threatened destruction, modification, or 
curtailment of the Cumberland darter habitat and range represents a 
significant threat of high magnitude. We have no information indicating 
that the magnitude or imminence of this threat is likely to be 
appreciably reduced in the foreseeable future.
Rush Darter
    Sediment is the most abundant pollutant in the Mobile River Basin 
(Alabama Department of Environmental Management 1996, pp. 14-15). 
Within the Clear Creek drainage, Johnston and Kleiner (2001, p. 4) 
reported that during August 2001, land uses in the Doe Branch and Mill 
Creek area appeared to be dominated by forests, and that there were no 
obvious threats to water quality. However, Johnston and Kleiner (2001, 
p. 4) reported that clear cutting in the Wildcat Branch watershed may 
have increased sedimentation into the stream. Approximately 84 percent 
(i.e., 5 km or 3 mi) of Wildcat Branch is privately owned, and recent 
land exchanges within the Bankhead National Forest have taken about 0.9 
km (0.6 mi) of stream west of Clear Creek out of U.S. Forest Service 
(USFS) management and protection. In 2001, Service and USFS personnel 
noted heavy siltation at the County Road 329 Bridge over Doe Branch 
during a modest spring rain and also noted heavy siltation at several 
other road crossings and in other tributary streams in the immediate 
area. Drennen (2005, pers. obs.) noted increasing erosion and deepening 
of roadside ditches, and erosion of the gravel County Road 329 at Doe 
and Wildcat branches, contributing to the sediment in these streams.
    Blanco (2001, p. 68) identified siltation from development projects 
as the greatest threat to the fauna of Turkey Creek. Point source 
siltation sites have impacted the Turkey Creek watershed, including 
four sites affecting Beaver Creek, a major tributary to Turkey Creek. 
These sites included bridge, road, and sewer line construction sites 
and a wood pallet plant (Drennen 1999, pers. obs.). In addition, Turkey 
Creek at the confluence of Tapawingo and Penny Springs is often 
sediment laden and completely turbid after medium to heavy rainfall. 
Rapid urbanization in this area renders this population extremely 
vulnerable during the breeding season when rush darters concentrate in 
wetland pools and shallow pools with aquatic vegetation in headwater 
streams (Stiles and Mills 2008, p. 5; Fluker et al. 2007, p. 10).
    Four major soil types occur within the Turkey Creek watershed, and 
all are considered highly erodible due to the steep topography (Spivey 
1982, pp. 5, 7, 8, 14). Therefore, any activity that removes native 
vegetation on these soils can be expected to lead to increased sediment 
loads in Turkey Creek (USFWS 2001, p. 59370), including the areas near 
Penny and Tapawingo Springs. Industrialization is extensive and 
expanding throughout the watershed, particularly near the type locality 
for the rush darter (Bart and Taylor 1999, p. 33; Drennen 2007, pers. 
obs.).
    Abundant water from springs throughout the rush darter's range, 
especially in Pinson Valley, Alabama, is needed as a flushing effect to 
provide constant cleansing of the streams with cool, fresh water. 
However, ongoing destruction of spring heads and wetlands has 
significantly reduced the species' movement and colonization. Little 
Cove Creek and Bristow Creek spring heads have been channelized, and 
the head of Cove Spring has a pumping facility built on it (Fluker et 
al. 2007, p. 1). Spring water in these systems may be more impacted by 
site-specific spring head disturbances rather than overall spring 
drainage disturbances (Drennen 2005, per. obs.). Alteration of spring 
head habitats has reduced water quality and increased sediment loads 
into spring-fed tributary streams throughout the range of the rush 
darter.
    In summary, the most significant threat to rush darters is 
siltation, caused by an increase in urbanization surrounding the 
streams and springs, road maintenance and silviculture practices. This 
threat is ongoing and thus considered imminent. The magnitude of the 
threat is high due to the small population and high levels of siltation 
in the springs and streams. We have no information indicating that the 
magnitude or imminence of this threat is likely to be appreciably 
reduced in the foreseeable future.
Yellowcheek Darter
    Robison and Harp (1981, p. 17), McDaniel (1984, p. 92), and Robison 
and Buchanan (1988, p. 429) have attributed the decline in populations 
of yellowcheek darters in the four forks of the Little Red River and 
main stem Little Red River to habitat alteration and degradation. The 
suspected primary cause of the species' decline is the impoundment of 
the Little Red River and lower reaches of the Devils, Middle, and South 
Forks, areas that in the past provided optimal habitat for this 
species. The creation of Greers Ferry Lake in 1962 converted optimal 
yellowcheek darter habitat (clear, cool, perennial flow with large 
substrate particle size (Robison and Buchanan 1988, p. 429)), to a 
deep, standing water environment. This dramatic change in habitat 
flooded spawning sites, altered habitat radically, and changed chemical 
and physical characteristics in the streams which provide optimal 
habitat for this species. Impoundments profoundly alter channel 
characteristics, habitat availability, and flow regime with serious 
consequences for biota (Allan and Flecker 1993, p. 36, Ward and 
Stanford 1995, pp. 105-119). Some of these include converting flowing 
to still waters, increasing depths and sedimentation, decreasing 
dissolved oxygen, drastically altering resident fish populations (Neves 
et al. 1997, p. 63), disrupting fish migration, and destroying spawning 
habitat (Ligon et al. 1995, pp. 185-86). Channelization of the lower 
5.6 km (3.5 miles) of Archey and South Forks in 1985 and subsequent 
channel maintenance to this day by the U.S. Army Corps of Engineers and 
City of Clinton, Arkansas, degraded habitat in this reach as well as 
segments upstream of the project area. Based upon current knowledge and 
a 2004-2005 threats assessment (Davidson and Wine 2004, pp. 6-13; 
Davidson 2005, pp. 1-4), gravel mining, unrestricted cattle access into 
streams, water withdrawal for agricultural and recreational purposes 
(i.e., golf courses), lack of adequate riparian buffers, construction 
and maintenance of county roads, and non-point source pollution arising 
from a broad array of activities

[[Page 36045]]

also appear to be degrading suitable habitat for the species. The 
threats assessment documented occurrences of the aforementioned 
activities and found 52 sites on the Middle Fork, 28 sites on the South 
Fork, 8 sites on Archey Fork (Davidson 2005, pp. 1-4), and 1 site in 
the Turkey/Beech/Devils Fork system that are adversely affected by 
these activities and likely contributors to the decline of the species.
    Yellowcheek darter numbers have declined by 83 percent in both the 
Middle Fork and South Fork of the Upper Little Red River watershed, and 
60 percent in the Archey Fork in the past 20 years. Yellowcheek darter 
was not found in the Turkey Fork reach of the Devils Fork during the 
2000 status survey, and is presumed to be extirpated in this reach. A 
comparison of inhabited stream reaches in the 1981 survey versus the 
2000 survey reveals that the largest decline occurred in the South 
Fork, where reaches formerly inhabited by the yellowcheek darter 
declined by 70 percent. The second largest decline occurred in the 
Archey Fork, where there was a 60 percent reduction in inhabited stream 
reach. The Middle Fork showed the least decline in inhabited stream 
reach, at 22 percent.
    Ozark headwater streams typically exhibit seasonal fluctuations in 
flows, with flow rates highest in spring, and lowest in late summer and 
fall. The upper reaches of these small streams are most affected by 
seasonally fluctuating water levels (Robison and Harp 1981, p. 17). As 
a result, they often lack consistent and adequate flows, and by late 
summer or fall are reduced to a series of isolated pools (Wine 2008, 
pers. comm.). Expanding natural gas development activities that began 
in the upper Little Red River watershed in 2006 require large 
quantities of water and pose an imminent threat to the continued 
existence of yellowcheek darter as these activities rapidly expand and 
increase in the watersheds of all four forks (Davidson 2008, pers. 
comm.). Because the yellowcheek darter requires permanent flows with 
moderate to strong current (Robison and Buchanan 1988, p. 429), and 
because downstream refugia have been lost, seasonal fluctuations in 
stream flows that reduce moving water (lotic habitat) to a series of 
isolated pool habitats are a serious threat.
    Additional contributors to yellowcheek declines and continuing 
threats include habitat degradation from land use activities in the 
watershed, including agriculture and forestry. Traditional farming 
practices, feed-lot operations, and associated poor land use practices 
contribute many pollutants to rivers. Neves et al. (1997, p. 65) 
suggest that agriculture affects 72 percent of impaired river reaches 
in the United States. Nutrients, bacteria, pesticides, and other 
organic compounds generally are found in higher concentrations in 
agricultural areas than forested areas. Nutrient concentrations in 
streams may result in increased algal growth in streams, and a related 
alteration in fish community composition (Petersen et al. 1999, p. 16). 
Major agricultural activities within the Little Red River watershed 
include poultry, dairy, swine, and beef cattle operations.
    The Arkansas Natural Resources Conservation Service has identified 
animal wastes, nutrients, excessive erosion, loss of plant diversity, 
and declining species as water quality concerns associated with 
agricultural land use activities in the upper Little Red River 
watershed (NRCS 1999). Large poultry and dairy operations increase 
nutrient inputs to streams when producers apply animal waste to 
pastures to stimulate vegetation growth for grazing and hay production. 
Continuous grazing methods in the watershed allow unrestricted animal 
access to grazing areas, and on steeper slopes this results in 
increased runoff and erosion (NRCS 1999). Since pastures often extend 
directly to the edge of the stream, and lack a riparian zone with 
native vegetation, runoff from pastures carries pollutants directly 
into streams. Eroding stream banks also result in alterations to stream 
hydrology and geomorphology, degrading habitat. Livestock spend a 
disproportionate amount of time in riparian areas during hot summer 
months. Trampling and grazing can change and reduce vegetation and 
eliminate riparian areas by channel widening, channel aggradation, or 
lowering of the water table (Armour et al. 1991, pp. 7-11).
    Additionally, earthen dams were constructed across a riffle in the 
lower South Fork to create a pool for annual chuck wagon races for many 
years leading up to 2003. The Service and U.S. Army Corps of Engineers 
met with the responsible landowner in 2004 and suggested an alternative 
to dam construction that would minimize impacts to the yellowcheek 
darter. These recommendations were followed for several years; however, 
another earthen dam was constructed in 2008 using material from the 
South Fork to facilitate events associated with the annual chuck wagon 
races. This dam, like its predecessors, was unpermitted and resulted in 
significant habitat degradation and alteration for several miles 
upstream and downstream of the site.
    The chuck wagon race event draws approximately 20,000 to 30,000 
people per year to the South Fork Little Red River for a 1-week period 
around Labor Day. Horses and wagons traverse the river and its 
tributaries for miles leading to increased habitat disturbance, 
sedimentation, and trampling. The chuck wagon races continue to grow 
annually and pose a significant threat to the continued existence of 
yellowcheek darters in the South Fork Little Red River.
    Timber harvesting activities involving clear-cutting entire steep 
hillsides were observed during 1999-2000 in the Devils Fork watershed 
(Wine 2008, pers. comm.). The failure to implement voluntary State best 
management practices (BMPs) for intermittent and perennial streams 
during timber harvests has resulted in water quality degradation and 
habitat alteration in stream reaches adjacent to harvesting operations. 
When timber harvests involve clear cutting to the water's edge, without 
leaving a riparian buffer, silt and sediment enter streams lying at the 
bottom of steep slopes. The lack of stream side vegetation also 
promotes bank erosion that alters stream courses and introduces large 
quantities of sediment into the channel (Allan 1995, p. 321). Timber 
harvest operations that use roads on steep slopes to transport timber 
can carry silt and sediment from the road into the stream at the bottom 
of the slope. Logging impacts on sediment production are considerable, 
but often erosion of access and haul roads produces more sediment than 
the land harvested for timber (Brim Box and Mossa 1999, p. 102). These 
activities have occurred historically and continue to occur in the 
upper Little Red River watershed.
    Natural gas exploration and development is a newly emerging threat 
to yellowcheek darter populations. Significant erosion and 
sedimentation issues associated with natural gas development 
activities, particularly pipelines (herein defined as all flow lines, 
gathering lines, and non-interstate pipelines), were first documented 
by Service biologists during 2007 in the South Fork Little Red River 
watershed. In June 2008, the Service began documenting significant 
erosion and sedimentation issues associated with natural gas pipeline 
construction and maintenance as natural gas development activities 
expanded into the watershed. Service biologists documented significant 
erosion and sedimentation at almost every new pipeline stream crossing 
in the South Fork and Middle Fork Little Red River watersheds, 
regardless of the diameter of the pipe.

[[Page 36046]]

 Channel incision was documented at numerous stream crossings that are 
tributaries to the South Fork Little Red River. The incision increased 
erosion and sedimentation, as well as altering the hydrology and 
geomorphology characteristics of the streams. Pipeline rights-of-way 
were found to have one of the following conditions: (1) no BMPs (i.e., 
silt fences, grade breaks, non-erodible stream crossing materials) 
installed to prevent erosion and sedimentation, (2) ineffective erosion 
minimization practices in place, (3) effective erosion minimization 
practices that had not been maintained and, thus, had become 
ineffective, or (4) final reclamation of the pipeline right-of-way had 
not occured for months and in some cases greater than a year after 
construction activities ceased leading to prolonged periods of erosion 
and sedimentation. The magnitude of the impacts to the South Fork and 
Middle Fork Little Red River from 2007-2008 also was exacerbated due to 
above average rainfall, which led to more frequent and larger pipeline 
erosion events.
    In summary, threats to the yellowcheek darter from the present 
destruction, modification, or curtailment of its habitat or range 
negatively impact the species. Threats include such activities as 
impoundment, sedimentation (from a broad array of activities), nutrient 
enrichment, gravel mining, channelization/channel instability, and 
natural gas development. These threats are considered imminent and of 
high magnitude throughout the species' entire range. We have no 
information indicating that the magnitude or imminence of these threats 
is likely to be appreciably reduced in the foreseeable future, and in 
the case of pipeline disturbance, we expect this threat to become more 
problematic over the next several years as natural gas development 
continues to intensify.
Chucky Madtom
    The current range of the chucky madtom is believed to be restricted 
to an approximately 1.8-mi (3-km) reach of Little Chucky Creek in 
Greene County, Tennessee. Land use data from the Southeast GAP Analysis 
Program (SE-GAP) show that land use within the Little Chucky Creek 
watershed is predominantly dominated by agricultural use, with the vast 
majority of agricultural land being devoted to production of livestock 
and their forage base (USGS 2008).
    Traditional farming practices, feed-lot operations, and associated 
land use practices contribute many pollutants to rivers. Neves et al. 
(1997, p. 65) suggest that agriculture affects 72 percent of impaired 
river reaches in the United States. These practices erode stream banks 
and result in alterations to stream hydrology and geomorphology, 
degrading habitat. Nutrients, bacteria, pesticides, and other organic 
compounds generally are found in higher concentrations in agricultural 
areas than forested areas. Nutrient concentrations in streams may 
result in increased algal growth in streams, and a related alteration 
in fish community composition (Petersen et al. 1999, p. 16).
    The TVA Index of Biological Integrity results indicate that Little 
Chucky Creek is biologically impaired (Middle Nolichucky Watershed 
Alliance 2006, p. 13). Given the predominantly agricultural land use 
within the Little Chucky Creek watershed, non-point source sediment and 
agrochemical discharges may pose a threat to the chucky madtom by 
altering the physical characteristics of its habitat, thus potentially 
impeding its ability to feed, seek shelter from predators, and 
successfully reproduce. The Little Chucky Creek watershed also contains 
a portion of the city of Greeneville, providing an additional source 
for input of sediments and contaminants into the creek and threatening 
the chucky madtom. Wood and Armitage (1997, pp. 211-212) identify at 
least five impacts of sedimentation on fish, including (1) reduction of 
growth rate, disease tolerance, and gill function; (2) reduction of 
spawning habitat and egg, larvae, and juvenile development; (3) 
modification of migration patterns; (4) reduction of food availability 
through the blockage of primary production; and (5) reduction of 
foraging efficiency.
    The chucky madtom is a bottom-dwelling species. Bottom-dwelling 
fish species are especially susceptible to sedimentation and other 
pollutants that degrade or eliminate habitat and food sources (Berkman 
and Rabeni 1987, pp. 290-292; Richter et al. 1997, p. 1091; Waters 
1995, p. 72). Etnier and Jenkins (1980, p. 20) suggested that madtoms, 
which are heavily dependent on chemoreception (detection of chemicals) 
for survival, are susceptible to human-induced disturbances, such as 
chemical and sediment inputs, because the olfactory (sense of smell) 
``noise'' they produce could interfere with a madtom's ability to 
obtain food and otherwise monitor its environment.
    In summary, threats to the chucky madtom from the present 
destruction, modification, or curtailment of its habitat or range 
negatively impact the species. Degradation from sedimentation, physical 
habitat disturbance, and contaminants threaten the habitat and water 
quality on which the chucky madtom depends. Sedimentation from 
agricultural lands could negatively affect the chucky madtom by 
reducing growth rates, disease tolerance, and gill function; reducing 
spawning habitat, reproductive success, and egg, larvae, and juvenile 
development; reducing food availability through reductions in prey; and 
reducing foraging efficiency. Contaminants associated with agriculture 
(e.g., fertilizers, pesticides, herbicides, and animal waste) can cause 
degradation of water quality and habitats through instream oxygen 
deficiencies, excess nutrification, and excessive algal growths. 
Furthermore, these threats faced by the chucky madtom from sources of 
sedimentation and contaminants are imminent; the result of ongoing 
agricultural practices that are expected to continue indefinitely. As a 
result of the imminence of these threats combined with the 
vulnerability of the remaining small population to extirpation from 
natural and manmade threats, we have determined that the present or 
threatened destruction, modification, or curtailment of the chucky 
madtom habitat and range represents a significant threat of high 
magnitude. We have no information indicating that the magnitude or 
imminence of these threats is likely to be appreciably reduced in the 
foreseeable future.
Laurel Dace
    Skelton (2001, p. 127) concluded that the laurel dace is 
``presumably tolerant of some siltation.'' However, Strange and Skelton 
(2005, p. 7 and Appendix 2) observed levels of siltation they 
considered problematic during later surveys for the laurel dace and 
concluded this posed a threat in several localities throughout the 
range of the species. Sediment has been shown to abrade and or 
suffocate bottom-dwelling fish and other organisms by clogging gills; 
reducing aquatic insect diversity and abundance; impairing fish feeding 
behavior by altering prey base and reducing visibility of prey; 
impairing reproduction due to burial of nests; and, ultimately, 
negatively impacting fish growth, survival, and reproduction (Waters 
1995, pp. 5-7, 55-62; Knight and Welch 2001, pp. 134-136). However, we 
do not currently know what levels of siltation laurel dace are able to 
withstand before populations begin to decline due to these siltation-
related stressors. The apparent stability of the northern population of 
laurel dace in the Piney River system suggests

[[Page 36047]]

that this species is at least moderately tolerant of siltation-related 
stressors. We do not know the extent to which other factors might have 
driven the decline of the southern populations in Sale and Soddy 
Creeks.
    Of the streams inhabited by the southern populations recognized by 
Strange and Skelton (2005, p. Appendix 2), the reaches from which 
laurel dace have been collected in Soddy Creek and Horn Branch approach 
0.6 mi (1 km) in length. In Cupp Creek, collections of this species are 
restricted to less than 984 ft (300 m) of stream, in spite of surveys 
well beyond the reach known to be inhabited. In each of the streams 
occupied by the southern populations, Strange and Skelton (2005, 
Appendix 2) identified siltation as a factor that could alter the 
habitat and render it unsuitable for laurel dace. The restricted 
distribution of laurel dace in streams inhabited by the southern 
populations leaves them highly vulnerable to potential deleterious 
effects of excessive siltation or other localized disturbances.
    A newly emerging threat to laurel dace in Soddy Creek is the 
conversion of pine plantations to row crop agriculture. Two large 
plantations within the Soddy Creek Watershed were harvested and then 
converted to tomato farms. An irrigation impoundment was built on one 
Soddy Creek tributary and another is under construction. As a result of 
these activities, a large silt source was introduced into the Soddy 
Creek headwaters. In addition to contributing sediment, crop fields 
often allow runoff from irrigation water to flow directly into the 
creek. This water contains fungicides, herbicides, and fertilizers 
(Thurman 2010, pers. comm.).
    Strange and Skelton (2005, p. 7 and Appendix 2) identified 
siltation as a threat in all of the occupied Piney River tributaries 
(Young's, Moccasin, and Bumbee Creeks). The Bumbee Creek type locality 
for the laurel dace is located within industrial forest that has been 
subjected to extensive clear-cutting and road construction in close 
proximity to the stream. Strange and Skelton (2005, p. 7) noted a heavy 
sediment load at this locality and commented that conditions there in 
2005 had deteriorated since the site was visited by Skelton in 2002. 
Strange and Skelton (2005, pp. 7 and 8 and Appendix 2) also commented 
on excessive siltation in localities they sampled on Young's and 
Moccasin Creeks, and observed localized removal of riparian vegetation 
around residences in the headwaters of each of these streams. They 
considered the removal of riparian vegetation problematic not only for 
the potential for increased siltation, but also for the potential 
thermal alteration of these small headwater streams. Skelton (2001, p. 
125) reported that laurel dace occupy cool streams with a maximum 
recorded temperature of 26[deg] C (78.8[deg] F). The removal of 
riparian vegetation could potentially increase temperatures above the 
laurel dace's maximum tolerable limit.
    Water temperature may be a limiting factor in the distribution of 
this species (Skelton 1997, pp. 17, 19). Canopy cover of laurel dace 
streams often consists of eastern hemlock, mixed hardwoods, pine, and 
mountain laurel. The hemlock woolly adelgid (Adelges tsugae) is a 
nonnative insect that infests hemlocks, causing damage or death to 
trees. The woolly adelgid was recently found in Hamilton County, 
Tennessee, and could impact eastern hemlock in floodplains and riparian 
buffers (land adjacent to stream channels) along laurel dace streams in 
the future (Simmons 2008, pers. comm.). Riparian buffers filter 
sediment and nutrients from overland runoff, allow water to soak into 
the ground, protect stream banks and lakeshores, and provide shade for 
streams. Because eastern hemlock is primarily found in riparian areas, 
the loss of this species adjacent to laurel dace streams would be 
detrimental to fish habitat.
    Habitat destruction and modification also stem from existing or 
proposed infrastructure development in association with timber 
harvesting. The presence of culverts at one or more road crossings in 
most of the streams inhabited by laurel dace may disrupt upstream 
dispersal within those systems (Chance 2008, pers. obs.). Such 
dispersal barriers could prevent re-establishment of laurel dace 
populations in reaches where they suffer localized extinctions due to 
natural or human-caused events.
    In summary, the primary threat to laurel dace throughout its range 
is excessive siltation resulting from agriculture and extensive timber 
harvesting involving both inadequate riparian buffers in harvest areas 
and the failure to use best management practices in road construction. 
Severe degradation from sedimentation, physical habitat disturbance, 
and contaminants threatens the habitat and water quality on which the 
laurel dace depends. Sedimentation from negatively affects the laurel 
dace by reducing growth rates, disease tolerance, and gill function; 
reducing spawning habitat, reproductive success, and egg, larvae, and 
juvenile development; reducing food availability through reductions in 
prey; and reducing foraging efficiency. These threats faced by the 
laurel dace from sources of sedimentation and contaminants are 
imminent; the result of ongoing agriculture and forestry practices that 
are expected to continue. As a result of the imminence of these 
threats, we have determined that the present or threatened destruction, 
modification, or curtailment of the laurel dace habitat and range 
represents a significant threat of high magnitude. We have no 
information indicating that the magnitude or imminence of these threats 
is likely to be appreciably reduced in the foreseeable future.

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

    The Cumberland darter, rush darter, yellowcheek darter, chucky 
madtom, and laurel dace are not commercially utilized. Individuals have 
been taken for scientific and private collections in the past, but 
collecting is not considered a factor in the decline of these species 
and is not expected to be so in the future. The available information 
does not indicate that overutilization is likely to become a threat to 
any of these five fishes in the foreseeable future.

C. Disease or Predation

    Disease is not considered to be a factor in the decline of the 
Cumberland darter, rush darter, yellowcheek darter, chucky madtom, or 
laurel dace. Although the Cumberland darter, rush darter, yellowcheek 
darter, and laurel dace are undoubtedly consumed by predators, the 
available information suggests that this predation is naturally 
occurring, or a normal aspect of the population dynamics. As a result, 
we do not believe that predation is considered to currently pose a 
threat to these species. Furthermore, the information we do have, does 
not indicate that disease or predation is likely to become a threat to 
any of these five fishes in the foreseeable future.

D. The Inadequacy of Existing Regulatory Mechanisms

Cumberland Darter
    The Cumberland darter and its habitats are afforded some protection 
from water quality and habitat degradation under the Clean Water Act of 
1977 (33 U.S.C. 1251 et seq.), Kentucky's Forest Conservation Act of 
1998 (KRS 149.330-355), Kentucky's Agriculture Water Quality Act of 
1994 (KRS 224.71-140), additional Kentucky laws and regulations 
regarding natural resources and environmental protection (KRS 146.200-
360; KRS 224; 401 KAR 5:026, 5:031), and Tennessee's Water Quality 
Control Act of 1977 (T.C.A. 69-

[[Page 36048]]

3-101). However, as demonstrated under Factor A, population declines 
and degradation of habitat for this species are ongoing despite the 
protection afforded by these laws and corresponding regulations. While 
these laws have resulted in some improvements in water quality and 
stream habitat for aquatic life, including the Cumberland darter, they 
alone have not been adequate to fully protect this species; 
sedimentation and non-point source pollutants continue to be a 
significant problem.
    States maintain water-use classifications through issuance of 
National Pollutant Discharge Elimination System (NPDES) permits to 
industries, municipalities, and others that set maximum limits on 
certain pollutants or pollutant parameters. For water bodies on the 
303(d) list, States are required under the Clean Water Act to establish 
a total maximum daily load (TMDL) for the pollutants of concern that 
will bring water quality into the applicable standard. Three Cumberland 
darter streams, Jenneys Branch, Marsh Creek, and Wolf Creek, have been 
identified as impaired by the Kentucky Division of Water and placed on 
the State's 303(d) list (KDOW 2008). Causes of impairment were listed 
as siltation/sedimentation from agriculture, coal mining, land 
development, and silviculture and organic enrichment/eutrophication 
from residential areas. TMDLs have not yet been developed for these 
pollutants.
    The Cumberland darter has been designated as an endangered species 
by Tennessee (TWRA 2005, p. 240) and Kentucky (KSNPC 2005, p. 11), but 
the designation in Kentucky conveys no legal protection. Under the 
Tennessee Nongame and Endangered or Threatened Wildlife Species 
Conservation Act of 1974 (Tennessee Code Annotated Sec. Sec.  70-8-101-
112), ``[I]t is unlawful for any person to take, attempt to take, 
possess, transport, export, process, sell or offer for sale or ship 
nongame wildlife, or for any common or contract carrier knowingly to 
transport or receive for shipment nongame wildlife.'' Further, 
regulations included in the Tennessee Wildlife Resources Commission 
Proclamation 00-15 Endangered Or Threatened Species state the 
following: ``Except as provided for in Tennessee Code Annotated, 
Section 70-8-106 (d) and (e), it shall be unlawful for any person to 
take, harass, or destroy wildlife listed as threatened or endangered or 
otherwise to violate terms of Section 70-8-105 (c) or to destroy 
knowingly the habitat of such species without due consideration of 
alternatives for the welfare of the species listed in (1) of this 
proclamation, or (2) the United States list of Endangered fauna.'' 
Under these regulations, potential collectors of this species are 
required to have a State collection permit. However, in terms of 
project management, this regulation only provides for the consideration 
of alternatives, and does not require the level of project review 
afforded by the Act.
    In 7 of 12 streams where the Cumberland darter still occurs, the 
species is indirectly provided some protection from Federal actions and 
activities through the Endangered Species Act of 1973, as amended (16 
U.S.C. 1531 et seq.), because these streams (or basins) also support 
the Federally threatened blackside dace and occupy watersheds that are 
at least partially owned by the Federal government (Daniel Boone 
National Forest). The five remaining streams supporting populations of 
the Cumberland darter are not afforded this protection.
    In summary, population declines and degradation of habitat for the 
Cumberland darter are ongoing despite the protection afforded by State 
and Federal laws and corresponding regulations. Because of the 
vulnerability of the small remaining populations of the Cumberland 
darter and the imminence of these threats, we find the inadequacy of 
existing regulatory mechanisms to be a significant threat of high 
magnitude. Further, the information available to us at this time does 
not indicate that the magnitude or imminence of this threat is likely 
to be appreciably reduced in the foreseeable future.
Rush Darter
    The rush darter and its habitats are afforded some protection from 
water quality and habitat degradation under the Clean Water Act and the 
Alabama Water Pollution Control Act, as amended, 1975 (Code of Alabama, 
Sec. Sec.  22-22-1 to 22-22-14). However, as demonstrated under Factor 
A, population declines and degradation of habitat for this species are 
ongoing despite the protection afforded by these laws. While these laws 
have resulted in some improvement in water quality and stream habitat 
for aquatic life, including the rush darter, they alone have not been 
adequate to fully protect this species; sedimentation and non-point 
source pollutants continue to be a significant problem. Sediment is the 
most abundant pollutant in the Mobile River Basin and the greatest 
threat to the rush darter. There are currently no requirements within 
the scope of other environmental laws within Alabama to specifically 
consider the rush darter or ensure that a project will not jeopardize 
its continued existence.
    The State of Alabama maintains water-use classifications through 
issuance of NPDES permits to industries, municipalities, and others 
that set maximum limits on certain pollutants or pollutant parameters. 
For water bodies on the 303(d) list, States are required under the 
Clean Water Act to establish a TMDL for the pollutants of concern that 
will bring water quality into the applicable standard. The State of 
Alabama has not identified any impaired water bodies in Jefferson, 
Winston, and Etowah Counties in the immediate or upstream portion of 
the rush darter range or watersheds in Winston or Etowah County. 
However, sedimentation events are usually related to the stormwater 
runoff episodes, and are usually not captured by routine water quality 
sampling. Although stormwater events are temporary, they are still very 
significant and destructive to the species, habitat, vegetation and 
food sources, as previously mentioned. When the stormwater water events 
abate, the water becomes more hospitable to the species, due to the 
spring influences and constant flushing from spring water. Thus, there 
is no listing or label for these bodies as impaired and are generally 
considered satisfactory for the species when stormwater is not 
involved.
    In summary, population declines and degradation of habitat for the 
rush darter are ongoing despite the protection afforded by State and 
Federal laws and corresponding regulations. Despite these laws, 
sedimentation and non-point source pollution continue to adversely 
affect the species. Because of the vulnerability of the small remaining 
populations of the rush darter and the imminence of these threats, we 
find the inadequacy of existing regulatory mechanisms to be a 
significant threat of high magnitude. Further, the information 
available to us at this time does not indicate that the magnitude or 
imminence of this threat is likely to be appreciably reduced in the 
foreseeable future.
Yellowcheek Darter
    The Arkansas Department of Environmental Quality (ADEQ) has 
established water quality standards for surface waters in Arkansas, 
including specific standards for those streams designated as 
``extraordinary resource waters'' (ERW) based on ``a combination of the 
chemical, physical, and biological characteristics of a waterbody and 
its watershed, which is characterized by

[[Page 36049]]

scenic beauty, aesthetics, scientific values, broad scope recreation 
potential, and intangible social values'' (ADEQ Regulation 2, November 
25, 2007). As described in ADEQ's Regulation 2, Section 2.203, ERW 
``shall be protected by (1) water quality controls, (2) maintenance of 
natural flow regime, (3) protection of in stream habitat, and (4) 
pursuit of land management protective of the watershed.'' This 
regulatory mechanism has precluded most large scale commercial gravel 
mining in the watershed; however, illegal gravel mining is still 
considered a cause of habitat degradation and a threat in the Little 
Red River watershed. The Middle, Archey, and Devils (and its major 
tributaries) forks are designated as ERW. The South Fork has not been 
designated as an ERW. The applicable water quality standards have not 
protected yellowcheek darter habitat from the damaging habitat 
alterations and water quality degradation from traditional land use and 
expanding natural gas development activities.
    The Arkansas Forestry Commission is the State agency responsible 
for establishing Best Management Practices (BMPs) for timber harvests 
in Arkansas. BMPs for timber harvests in Arkansas are only 
recommendations. There is no requirement that timber harvesters include 
BMPs in timber operations. The BMPs are currently under revision, but 
the Service does not know what effect these revisions will have on 
aquatic habitats within the range of the species.
    Natural gas production in the upper Little Red River watershed 
presents a unique problem for yellowcheek darter conservation. In 
Arkansas, mineral rights for properties supersede the surface rights. 
Even where private landowners agree to implement certain BMPs or 
conservation measures on their lands for yellowcheek darter 
conservation, there is no guarantee that these BMPs or conservation 
measures will be implemented by natural gas companies, their 
subsidiaries, or contractors that lease and develop the mineral rights 
for landowners. For this reason, the intended benefits of conservation 
measures agreed to by landowners in agreements such as Candidate 
Conservation Agreements with Assurances may never be realized. 
Additionally, natural gas projects often do not contain a Federal nexus 
that would allow the Service to comment on proposed or ongoing 
projects.
    The Arkansas Natural Resources Commission regulates water 
withdrawal in Arkansas streams. To date, they have not precluded water 
withdrawal for natural gas development activities in the upper Little 
Red River watershed. The U.S. Army Corps of Engineers regulates 
instream activities under the Clean Water Act. Their policy to date has 
been to issue permits for instream activities associated with pipeline 
construction and maintenance under Nationwide Permits rather than 
Individual Permits that require more public involvement. ADEQ lacks 
resources necessary to enforce existing regulations under the Clean 
Water Act and Arkansas Water and Air Pollution Act for activities 
associated with natural gas development.
    The yellowcheek darter receives incidental protection under the Act 
due to the coexistence of the federally endangered speckled pocketbook 
mussel (Lampsilis streckeri), which occurs throughout the upper Little 
Red River drainage.
    In summary, the threats of inadequacy of existing regulatory 
mechanisms are imminent and considered high in magnitude. This is of 
particular concern in regard to the vulnerability of the species to 
threats from natural gas development which is already impacting 
populations in the South and Middle forks of the Little Red River and 
is expected to intensify in the next several years throughout the range 
of the species. Further, the information available to us at this time 
does not indicate that the magnitude or imminence of this threat is 
likely to be appreciably reduced in the foreseeable future.
Chucky Madtom
    The chucky madtom and its habitats are afforded some protection 
from water quality and habitat degradation under the Clean Water Act 
and TDEC's Division of Water Pollution Control under the TWQCA. 
However, as demonstrated under Factor A, population declines and 
degradation of habitat for this species are ongoing despite the 
protection afforded by these laws. While these laws have resulted in 
improved water quality and stream habitat for aquatic life, including 
the Chucky madtom, they alone have not been adequate to fully protect 
this species; sedimentation and non-point source pollutants continue to 
be a significant problem. Sediment is the most abundant pollutant in 
the Little Chucky Creek watershed and is the greatest threat to the 
Chucky madtom.
    Portions of the Nolichucky River and its tributaries in Greene 
County, Tennessee, are listed as impaired (303d) by the State of 
Tennessee due to pasture grazing, irrigated crop production, 
unrestricted cattle access, land development, municipal point source 
discharges, septic tank failures, gravel mining, agriculture, and 
channelization (Tennessee Department of Environment and Conservation 
(TDEC) 2008, pp. 62-70). However, Little Chucky Creek is not listed as 
``an impaired water'' by the State of Tennessee (TDEC 2008, pp. 62-70). 
For water bodies on the 303(d) (impaired) list, States are required 
under the Clean Water Act to establish a TMDL for the pollutants of 
concern that will bring water quality into the applicable standard. The 
Tennessee Department of Environment and Conservation has developed 
TMDLs for the Nolichucky River watershed to address the problems of 
fecal coliform loads, siltation, and habitat alteration by agriculture.
    The chucky madtom receives incidental protection under the Act due 
to the coexistence of the Federally endangered Cumberland bean (Villosa 
trabalis), which is still thought to occur in Little Chucky Creek, 
Greene County, Tennessee (Ahlstedt 2008, pers. comm.).
    The chucky madtom was listed as Endangered by the State of 
Tennessee in September of 2000. Under the Tennessee Nongame and 
Endangered or Threatened Wildlife Species Conservation Act of 1974 
(Tennessee Code Annotated Sec. Sec.  70-8-101-112), ``[I]t is unlawful 
for any person to take, attempt to take, possess, transport, export, 
process, sell or offer for sale or ship nongame wildlife, or for any 
common or contract carrier knowingly to transport or receive for 
shipment nongame wildlife.'' Further, regulations included in the 
Tennessee Wildlife Resources Commission Proclamation 00-15 Endangered 
Or Threatened Species state the following: ``Except as provided for in 
Tennessee Code Annotated, Section 70-8-106 (d) and (e), it shall be 
unlawful for any person to take, harass, or destroy wildlife listed as 
threatened or endangered or otherwise to violate terms of Section 70-8-
105 (c) or to destroy knowingly the habitat of such species without due 
consideration of alternatives for the welfare of the species listed in 
(1) of this proclamation, or (2) the United States list of Endangered 
fauna.'' Under these regulations, potential collectors of this species 
are required to have a State collection permit. However, in terms of 
project management, this regulation only provides for the consideration 
of alternatives, and does not require the level of project review 
afforded by the Act.
    In summary, population declines and degradation of habitat for the 
chucky madtom are ongoing despite the protection afforded by State and 
Federal laws and corresponding regulations. Despite these laws, 
sedimentation and

[[Page 36050]]

non-point source pollution continue to adversely affect the species. 
Because of the vulnerability of the small remaining populations of the 
chucky madtom and the imminence of these threats, we find the 
inadequacy of existing regulatory mechanisms to be a significant threat 
of high magnitude. Further, the information available to us at this 
time does not indicate that the magnitude or imminence of this threat 
is likely to be appreciably reduced in the foreseeable future.
Laurel Dace
    The laurel dace and its habitats are afforded some protection from 
water quality and habitat degradation under the Clean Water Act and by 
TDEC's Division of Water Pollution Control under the TWQCA. However, as 
demonstrated under Factor A, population declines and degradation of 
habitat for this species are ongoing despite the protection afforded by 
these laws. While these laws have resulted in improved water quality 
and stream habitat for aquatic life, including the laurel dace, they 
alone have not been adequate to fully protect this species; 
sedimentation and non-point source pollutants continue to be a 
significant problem. Sediment is the most abundant pollutant in the 
watershed and one of the greatest threat to the laurel dace.
    The State of Tennessee maintains water-use classifications through 
issuance of NPDES permits to industries, municipalities, and others 
that set maximum limits on certain pollutants or pollutant parameters. 
For water bodies on the 303(d) list, States are required under the 
Clean Water Act to establish a TMDL for the pollutants of concern that 
will bring water quality into the applicable standard. The Tennessee 
Department of Environment and Conservation has not identified any 
impaired water bodies in the Soddy Creek, the Sale Creek system, or the 
Piney River system (TDEC 2008).
    The TWRA lists the laurel dace as endangered. Under the Tennessee 
Nongame and Endangered or Threatened Wildlife Species Conservation Act 
of 1974 (Tennessee Code Annotated Sec. Sec.  70-8-101-112), ``[I]t is 
unlawful for any person to take, attempt to take, possess, transport, 
export, process, sell or offer for sale or ship nongame wildlife, or 
for any common or contract carrier knowingly to transport or receive 
for shipment nongame wildlife.'' Further, regulations included in the 
Tennessee Wildlife Resources Commission Proclamation 00-15 Endangered 
Or Threatened Species state the following: ``Except as provided for in 
Tennessee Code Annotated, Section 70-8-106 (d) and (e), it shall be 
unlawful for any person to take, harass, or destroy wildlife listed as 
threatened or endangered or otherwise to violate terms of Section 70-8-
105 (c) or to destroy knowingly the habitat of such species without due 
consideration of alternatives for the welfare of the species listed in 
(1) of this proclamation, or (2) the United States list of Endangered 
fauna.'' Under these regulations, potential collectors of this species 
are required to have a State collection permit. However, in terms of 
project management, this regulation only provides for the consideration 
of alternatives, and does not require the level of project review 
afforded by the Act.
    In summary, population declines and degradation of habitat for the 
laurel dace are ongoing despite the protection afforded by State and 
Federal water quality laws. While these laws have resulted in improved 
water quality and stream habitat for aquatic life, including the laurel 
dace, they alone have not been adequate to fully protect this species; 
sedimentation and non-point source pollutants continue to be a 
significant problem. Non-point pollution is not regulated by the Clean 
Water Act. Due to the vulnerability of the laurel dace, we find the 
threat of inadequate regulatory mechanisms to be imminent and of high 
magnitude. Further, the information available to us at this time does 
not indicate that the magnitude or imminence of this threat is likely 
to be appreciably reduced in the foreseeable future.

E. Other Natural or Manmade Factors Affecting Its Continued Existence

    The Cumberland darter, rush darter, yellowcheek darter, chucky 
madtom, and laurel dace have limited geographic ranges and small 
population sizes. Their existing populations are extremely localized, 
and geographically isolated from one another, leaving them vulnerable 
to localized extinctions from intentional or accidental toxic chemical 
spills, habitat modification, progressive degradation from runoff (non-
point source pollutants), natural catastrophic changes to their habitat 
(e.g., flood scour, drought), other stochastic disturbances, and to 
decreased fitness from reduced genetic diversity. Potential sources of 
unintentional spills include accidents involving vehicles transporting 
chemicals over road crossings of streams inhabited by one of these five 
fish, or the accidental or intentional release into streams of 
chemicals used in agricultural or residential applications.
    Species that are restricted in range and population size are more 
likely to suffer loss of genetic diversity due to genetic drift, 
potentially increasing their susceptibility to inbreeding depression, 
decreasing their ability to adapt to environmental changes, and 
reducing the fitness of individuals (Soule 1980, pp. 157-158; Hunter 
2002, pp. 97-101; Allendorf and Luikart 2007, pp. 117-146). It is 
likely that some of the Cumberland darter, rush darter, yellowcheek 
darter, chucky madtom, and laurel dace populations are below the 
effective population size required to maintain long-term genetic and 
population viability (Soule 1980, pp. 162-164; Hunter 2002, pp. 105-
107). The long-term viability of a species is founded on the 
conservation of numerous local populations throughout its geographic 
range (Harris 1984, pp. 93-104). These separate populations are 
essential for the species to recover and adapt to environmental change 
(Noss and Cooperrider 1994, pp. 264-297; Harris 1984, pp. 93-104). The 
level of isolation seen in these five species makes natural 
repopulation following localized extirpations virtually impossible 
without human intervention.
    Climate change has the potential to increase the vulnerability of 
the Cumberland darter, rush darter, yellowcheek darter, chucky madtom, 
and laurel dace to random catastrophic events (e.g., McLaughlin et al. 
2002; Thomas et al. 2004). Climate change is expected to result in 
increased frequency and duration of droughts and the strength of storms 
(e.g., Cook et al. 2004). During 2007, a severe drought affected the 
upper Cumberland River basin in Kentucky and Tennessee. Streamflow 
values for the Cumberland River at Williamsburg, Kentucky (USGS Station 
Number 03404000), in September and October of 2007 were among the 
lowest recorded monthly values (99th percentile for low-flow periods) 
during the last 67 years (Cinotto 2008, pers. comm.). Climate change 
could intensify or increase the frequency of drought events, such as 
the one that occurred in 2007. Thomas et al. (2009, p. 112) report that 
the frequency, duration, and intensity of droughts are likely to 
increase in the southeast as a result of global climate change.
    Fluker et al. (2007, p. 10) reported that drought conditions, 
coupled with rapid urbanization in watersheds that contain rush 
darters, render the populations vulnerable, especially during the 
breeding season when they concentrate in wetland pools and shallow 
pools of headwater streams. Drought conditions from 2006 to 2007 
greatly reduced spawning habitat for

[[Page 36051]]

rush darter in Jefferson County (Drennen 2007, pers. obs.). Survey 
numbers for the rush darter within the spring-fed headwaters for the 
unnamed tributary to Turkey Creek during 2007 were reduced due to a 
lack of water (Kuhajda 2008, pers. comm.). In Winston County, Stiles 
and Mills (2008, pp. 5-6) noted that Doe Branch almost completely dried 
up during the summer of 2007. (Stiles 2008, pers. comm.).
    The federally endangered watercress darter (Etheostoma nuchale) was 
translocated outside of its native range by the Service into Tapawingo 
Springs in 1988 in order to assist in the species, recovery by 
expanding its range (Moss 1995, p. 5). The watercress darter is now 
reproducing and may be competing with rush darters in Tapawingo Springs 
(USFWS 1993, p. 1; Drennen 2004, pers. obs.). More recently, a 
population of watercress darters was found in the Penny Springs site 
(Stiles and Blanchard 2001, p. 3). We require further investigation to 
determine whether interspecific competition is occurring between the 
watercress darter and the rush darter at this site. (Stiles 2008, pers. 
comm.).
    The Little Red River watershed in Arkansas experienced moderate 
drought conditions during 1997-2000 (Southern Regional Climate Center 
2000), which reduced flows in its tributaries and affected yellowcheek 
darter populations. Stage height was 1 foot lower during the sampling 
period for the 2000 status survey than during the 1979-1980 study (Wine 
et al. 2000, p. 7). Stream flow is strongly correlated with important 
physical and chemical parameters that limit the distribution and 
abundance of riverine species (Power et al. 1995, p. 159, Resh et al. 
1988, p. 437) and regulates the ecological integrity of flowing water 
systems (Poff et al. 1997, p. 769). Yellowcheek darter was not found in 
the upper reaches of any study streams or in the Turkey/Beech Fork 
reach of Devils Fork, a likely result of drought conditions, and 
indicates a contraction of yellowcheek darter range to stream reaches 
lower in the watershed where flows are maintained for a greater portion 
of the year (Wine et al. 2000, p. 11). The threat immediacy and 
magnitude of drought is imminent and moderate to high, respectively, in 
all four watersheds for the yellowcheek darter. Exacerbation of natural 
drought cycles as a result of global climate change could have 
detrimental effects on the species which could continue for the 
foreseeable future.
    The low fecundity rates exhibited by many madtom catfishes (Breder 
and Rosen 1966 in Dinkins and Shute 1996, p. 58) could limit the 
potential for populations to rebound from disturbance events. The short 
life span exhibited by members of the N. hildebrandi clade (a taxonomic 
group of organisms classified together on the basis of homologous 
features traced to a common ancestor) of madtoms, if also true of 
chucky madtoms, would further limit the species' viability by rendering 
it vulnerable to severe demographic shifts from disturbances that 
prevent reproduction in even a single year, and could be devastating to 
the population if the disturbance persists for successive years.
    In summary, because the Cumberland darter, rush darter, yellowcheek 
darter, chucky madtom, and laurel dace all have limited geographic 
ranges and small population sizes, they are subject to several ongoing 
natural and manmade threats. Since these threats are ongoing, they are 
considered to be imminent. Exacerbation of natural drought cycles as a 
result of global climate change could have detrimental effects on these 
five species which is expected to continue or increase in the future. 
The magnitude of these threats is high for each of these species 
because of their reduced ranges and population sizes which result in a 
reduced ability to adapt to environmental change. Further, the 
information available to us at this time does not indicate that the 
magnitude or imminence of this threat is likely to be appreciably 
reduced in the foreseeable future.

Proposed Determination

    We have carefully assessed the best scientific and commercial 
information available regarding the past, present, and future threats 
to the Cumberland darter, rush darter, yellowcheek darter, chucky 
madtom, and laurel dace. Based on the immediate and ongoing significant 
threats to these species throughout their entire ranges, as described 
above in the five-factor analyses, we consider these species to be in 
danger of extinction throughout all of their ranges. The Endangered 
Species Act (Sec. 3(5)(C)(6)) defines an endangered species as ``any 
species which is in danger of extinction throughout all or a 
significant portion of its range.'' Therefore, on the basis of the best 
available scientific and commercial information, we are proposing to 
list these five fishes as endangered species, in accordance with 
Section 4(a)(1) of the Act.
    The Cumberland darter is threatened with range curtailment, 
specifically its disappearance from 9 streams and 11 historic sites, 
and its small population size (only 51 individuals observed during the 
most recent surveys by Thomas (2007, p. 3)). Rush darter populations 
are isolated from each other, and individual rush darters are only 
sporadically collected within their range. Where it occurs, the rush 
darter is an uncommon species that is usually collected in low numbers. 
Yellowcheek darter populations are restricted to portions of four 
headwater streams, have declined drastically over the last 30 years and 
are effectively isolated as a result of reservoir construction. Only 
three specimens of the chucky madtom have been encountered since 2000 
(one in 2000 and two in 2004), despite several surveys that have been 
conducted in Little Chucky Creek and several streams in the Nolichucky, 
Holston, and French Broad River watersheds of the upper Tennessee River 
basin, which are similar in size and character to Little Chucky Creek. 
The laurel dace is restricted to six streams, where they are only known 
to occupy reaches of approximately 0.3 to 8 km (0.2 to 5 mi) in length. 
These isolated species have a limited ability to recolonize 
historically occupied stream and river reaches and are vulnerable to 
natural or human-caused changes in their stream and river habitats. 
Their range curtailment, small population size, and isolation make 
these five species more vulnerable to threats such as sedimentation, 
disturbance of riparian corridors, changes in channel morphology, point 
and non-point source pollutants, urbanization, and introduced species.
    Therefore, as described above, these five species are in danger of 
extinction throughout their highly localized ranges due to their 
reduction of habitat and ranges, small population sizes, current 
habitat threats, and resulting vulnerability due to lack of regulatory 
mechanisms and natural or human induced catastrophic events. Efforts to 
control excessive sedimentation and improve general water quality 
throughout their ranges coupled with efforts to increase population 
levels will be essential for these species' survival.

Available Conservation Measures

    Conservation measures provided to species listed as endangered or 
threatened under the Act include recognition, recovery actions, 
requirements for Federal protection, and prohibitions against certain 
practices. Recognition through listing encourages and results in public 
awareness and conservation by Federal, State, and local agencies, 
private organizations, and individuals. The Act encourages cooperation 
with the States and requires that recovery actions be carried out for

[[Page 36052]]

all listed species. The protection required of Federal agencies and the 
prohibitions against take and harm are discussed, in part, below.
    The primary purpose of the Act is the conservation of endangered 
and threatened species and the ecosystems upon which they depend. The 
ultimate goal of such conservation efforts is the recovery of these 
listed species, so that they no longer need the protective measures of 
the Act. Subsection 4(f) of the Act requires the Service to develop and 
implement recovery plans for the conservation of endangered and 
threatened species. The recovery planning process involves the 
identification of actions that are necessary to halt or reverse the 
species' decline by addressing the threats to its survival and 
recovery. The goal of this process is to restore listed species to a 
point where they are secure, self-sustaining, and functioning 
components of their ecosystems.
    Recovery planning includes the development of a recovery outline 
shortly after a species is listed, preparation of a draft and final 
recovery plan, and revisions to the plan as significant new information 
becomes available. The recovery outline guides the immediate 
implementation of urgent recovery actions and describes the process to 
be used to develop a recovery plan. The recovery plan identifies site-
specific management actions that will achieve recovery of the species, 
measurable criteria that determine when a species may be downlisted or 
delisted, and methods for monitoring recovery progress. Recovery plans 
also establish a framework for agencies to coordinate their recovery 
efforts and provide estimates of the cost of implementing recovery 
tasks. Recovery teams (comprised of species experts, Federal and State 
agencies, non-government organizations, and stakeholders) are often 
established to develop recovery plans. When completed, the recovery 
outline, draft recovery plan, and the final recovery plan will be 
available on our website (http://www.fws.gov/endangered), or from our 
Fish and Wildlife Service Field Office (see FOR FURTHER INFORMATION 
CONTACT).
    Implementation of recovery actions generally requires the 
participation of a broad range of partners, including other Federal 
agencies, States, Tribal, nongovernmental organizations, businesses, 
and private landowners. Examples of recovery actions include habitat 
restoration (e.g., restoration of native vegetation), research, captive 
propagation and reintroduction, and outreach and education. The 
recovery of many listed species cannot be accomplished solely on 
Federal lands because their range may occur primarily or solely on non-
Federal lands. To achieve recovery of these species requires 
cooperative conservation efforts on private, State, and Tribal lands.
    Listing will also require the Service to review any actions on 
Federal lands and activities under Federal jurisdiction that may 
adversely affect the five species; allow State plans to be developed 
under section 6 of the Act; encourage scientific investigations of 
efforts to enhance the propagation or survival of the animals under 
section 10(a)(1)(A) of the Act; and promote habitat conservation plans 
on non-Federal lands and activities under section 10(a)(1)(B) of the 
Act.
    Section 7(a) of the Act, as amended, requires Federal agencies to 
evaluate their actions with respect to any species that is proposed or 
listed as endangered or threatened and with respect to its critical 
habitat, if any is designated. Regulations implementing this 
interagency cooperation provision of the Act are codified at 50 CFR 
part 402. Federal agencies are required to confer with us informally on 
any action that is likely to jeopardize the continued existence of a 
proposed species. Section 7(a)(4) requires Federal agencies to confer 
with the Service on any action that is likely to jeopardize the 
continued existence of a species proposed for listing or result in 
destruction or adverse modification of proposed critical habitat. If a 
species is listed subsequently, section 7(a)(2) requires Federal 
agencies to ensure that activities they authorize, fund, or carry out 
are not likely to jeopardize the continued existence of the species or 
destroy or adversely modify its critical habitat. If a Federal action 
may adversely affect a listed species or its critical habitat, the 
responsible Federal agency must enter into formal consultation with the 
Service.
    Federal activities that may affect the Cumberland darter, rush 
darter, yellowcheek darter, chucky madtom, and laurel dace include, but 
are not limited to, the funding, carrying out, or the issuance of 
permits for reservoir construction, natural gas extraction, stream 
alterations, discharges, wastewater facility development, water 
withdrawal projects, pesticide registration, mining, and road and 
bridge construction.
Jeopardy Standard
    Prior to and following listing and designation of critical habitat, 
if prudent and determinable, the Service applies an analytical 
framework for jeopardy analyses that relies heavily on the importance 
of core area populations to the survival and recovery of the species. 
The section 7(a)(2) analysis is focused not only on these populations 
but also on the habitat conditions necessary to support them.
    The jeopardy analysis usually expresses the survival and recovery 
needs of the species in a qualitative fashion without making 
distinctions between what is necessary for survival and what is 
necessary for recovery. Generally, if a proposed Federal action is 
incompatible with the viability of the affected core area 
populations(s), inclusive of associated habitat conditions, a jeopardy 
finding is considered to be warranted, because of the relationship of 
each core area population to the survival and recovery of the species 
as a whole.
Section 9 Take
    Section 9(a)(2) of the Act, and its implementing regulations found 
at 50 CFR 17.21, set forth a series of general prohibitions and 
exceptions that apply to all endangered wildlife. These prohibitions, 
in part, make it illegal for any person subject to the jurisdiction of 
the United States to take (includes harass, harm, pursue, hunt, shoot, 
wound, kill, trap, or collect, or to attempt any of these), import or 
export, ship in interstate commerce in the course of commercial 
activity, or sell or offer for sale in interstate or foreign commerce 
any listed species. It also is illegal to knowingly possess, sell, 
deliver, carry, transport, or ship any wildlife that has been taken 
illegally. Certain exceptions apply to agents of the Service and State 
conservation agencies.
    We may issue permits to carry out otherwise prohibited activities 
involving endangered wildlife species under certain circumstances. 
Regulations governing permits are at 50 CFR 17.22 for endangered 
species. Such permits are available for scientific purposes, to enhance 
the propagation or survival of the species or for incidental take in 
connection with otherwise lawful activities. The yellowcheek darter is 
currently covered under a joint Safe Harbor/Candidate Conservation 
Agreement with Assurances (SHA/CCAA) in the upper Little Red River 
watershed in Arkansas along with the endangered speckled pocketbook 
mussel. Seven landowners have enrolled 3,845 hectares (9,500 acres) in 
the program since its inception in mid-2007 and 10 more landowners with 
approximately 19, 420 hectares (48,000 acres) are pending with draft 
agreements. The CCAA would convert to a SHA if the species becomes 
listed as threatened or endangered and would be covered by an 
enhancement of

[[Page 36053]]

survival permit, which expires January 1, 2044.
    Under the Interagency Cooperative Policy for Endangered Species Act 
Section 9 Prohibitions, published in the Federal Register on July 1, 
1994 (59 FR 34272), we identify to the maximum extent practicable those 
activities that would or would not constitute a violation of section 9 
of the Act if the Cumberland darter, rush darter, yellowcheek darter, 
chucky madtom, and laurel dace are listed. The intent of this policy is 
to increase public awareness as to the effects of these proposed 
listings on future and ongoing activities within a species' range. We 
believe, based on the best available information, that the following 
actions will not result in a violation of the provisions of section 9 
of the Act, provided these actions are carried out in accordance with 
existing regulations and permit requirements:
    (1) Possession, delivery, or movement, including interstate 
transport that does not involve commercial activity, of specimens of 
these species that were legally acquired prior to the publication in 
the Federal Register of the Federal List of Endangered or Threatened 
Wildlife and Plants;
    (2) Discharges into waters supporting the Cumberland darter, rush 
darter, yellowcheek darter, chucky madtom, and laurel dace, provided 
these activities are carried out in accordance with existing 
regulations and permit requirements (e.g., activities subject to 
section 404 of the Clean Water Act and discharges regulated under the 
National Pollutant Discharge Elimination System (NPDES));
    (3) Development and construction activities designed and 
implemented under State and local water quality regulations and 
implemented using approved Best Management Practices; and
    (4) Any actions that may affect the Cumberland darter, rush darter, 
yellowcheek darter, chucky madtom, and laurel dace that are authorized, 
funded, or carried out by a Federal agency (e.g., bridge and highway 
construction, pipeline construction, hydropower licensing, etc.), when 
the action is conducted in accordance with the consultation and 
planning requirements for listed species pursuant to sections 7 and 10 
of the Act.
    Potential activities that we believe will likely be considered a 
violation of section 9 if these species become listed, include, but are 
not limited to, the following:
    (1) Unauthorized possession, collecting, trapping, capturing, 
killing, harassing, sale, delivery, or movement, including interstate 
and foreign commerce, or harming, or attempting any of these actions, 
of the Cumberland darter, rush darter, yellowcheek darter, chucky 
madtom, and laurel dace;
    (2) Unlawful destruction or alteration of their habitats (e.g., 
unpermitted instream dredging, impoundment, channelization, discharge 
of fill material) that impairs essential behaviors such as breeding, 
feeding, or sheltering, or results in killing or injuring any of these 
species;
    (3) Violation of any discharge or water withdrawal permit that 
results in harm or death to any of these species or that results in 
degradation of their occupied habitat to an extent that essential 
behaviors such as breeding, feeding and sheltering are impaired; and
    (4) Unauthorized discharges or dumping of toxic chemicals or other 
pollutants into waters supporting the Cumberland darter, rush darter, 
yellowcheek darter, chucky madtom, and laurel dace that kills or 
injures these species, or otherwise impairs essential life-sustaining 
requirements such as breeding, feeding, or shelter.
    Other activities not identified above will be reviewed on a case-
by-case basis to determine if a violation of section 9 of the Act may 
be likely to result from such activity should these fishes become 
listed. The Service does not consider these lists to be exhaustive and 
provides them as information to the public.
    If you have questions regarding whether specific activities will 
likely violate the provisions of section 9 of the Act, contact the 
Alabama, Arkansas, Tennessee, Kentucky, or Mississippi Ecological 
Services Field Office (see FOR FURTHER INFORMATION CONTACT section). 
Requests for copies of regulations regarding listed species and 
inquiries about prohibitions and permits should be addressed to the 
U.S. Fish and Wildlife Service, Ecological Services Division, 1875 
Century Boulevard, Atlanta, GA 30345 (Phone 404/679-7313; Fax 404/679-
7081).

Critical Habitat

Background
    Critical habitat is defined in section 3 of the Act as:
    (i) the specific areas within the geographical area occupied by a 
species, at the time it is listed in accordance with the Act, on which 
are found those physical or biological features
    (I) essential to the conservation of the species, and
    (II) that may require special management considerations or 
protection; and
    (ii) specific areas outside the geographic area occupied by a 
species at the time it is listed, upon a determination that such areas 
are essential for the conservation of the species.
    Conservation, as defined under section 3 of the Act, means to use 
and the use of all methods and procedures that are necessary to bring 
an endangered or threatened species to the point at which the measures 
provided pursuant to the Act are no longer necessary.
    Critical habitat receives protection under section 7 of the Act 
through the prohibition against Federal agencies carrying out, funding, 
or authorizing the destruction or adverse modification of critical 
habitat. Section 7(a)(2) requires consultation on Federal actions that 
may affect critical habitat. The designation of critical habitat does 
not affect land ownership or establish a refuge, wilderness, reserve, 
preserve, or other conservation area. Such designation does not allow 
the government or public to access private lands. Such designation does 
not require implementation of restoration, recovery, or enhancement 
measures by non-Federal landowners. Where a landowner seeks or requests 
Federal agency funding or authorization for an action that may affect a 
listed species or critical habitat, the consultation requirements of 
section 7(a)(2) of the Act would apply, but even in the event of a 
destruction or adverse modification finding, the obligation of the 
Federal action agency and the applicant is not to restore or recover 
the species, but to implement reasonable and prudent alternatives to 
avoid destruction or adverse modification of critical habitat.

Prudency Determination

    Section 4(a)(3) of the Act, as amended, and implementing 
regulations (50 CFR 424.12), require that, to the maximum extent 
prudent and determinable, we designate critical habitat at the time the 
species is determined to be endangered or threatened. Our regulations 
(50 CFR 424.12(a)(1)) state that the designation of critical habitat is 
not prudent when one or both of the following situations exist: (1) The 
species is threatened by taking or other human activity, and 
identification of critical habitat can be expected to increase the 
degree of threat to the species, or (2) such designation of critical 
habitat would not be beneficial to the species.
    There is no documentation that the Cumberland darter, rush darter, 
yellowcheek darter, chucky madtom, or laurel dace are threatened by 
taking or

[[Page 36054]]

other human activity such that identification of critical habitat for 
each of these species could be expected to increase the degree of 
threat to them. In the absence of finding that the designation of 
critical habitat would increase threats to a species, if there are any 
benefits to a critical habitat designation, then we would determine 
that the designation of critical habitat is prident. For these species, 
the potential benefits include: (1) Triggering consultation under 
section 7 of the Act, in new areas for actions in which there may be a 
Federal nexus where it would not otherwise occur because, for example, 
it is or has become unoccupied or the occupancy is in question; (2) 
focusing conservation activities on the most essential features and 
areas; (3) providing educational benefits to State or county 
governments, private entities, and the public as a whole; and (4) 
preventing people from causing inadvertent harm to the species.
    The primary regulatory effect of critical habitat is the section 
7(a)(2) requirement that Federal agencies refrain from taking any 
action that destroys or adversely affects critical habitat. Extant 
populations of the Cumberland darter occur in watersheds that are 
roughly 60 percent privately owned and 40 percent publicly-owned (U.S. 
Forest Service (USFS), DBNF). The U.S. Forest Service's ownership is 
typically fragmented and often occurs on only one side of the stream. 
The rush darter occupies streams that are approximately 96 percent 
privately owned industrial, forestry, agricultural, and urbanized 
lands. The State of Alabama, Jefferson County, and the Freshwater Land 
Trust own and maintain about two percent of the rush darter's habitat; 
and the USFS manages approximately two percent of habitat in the 
Bankhead National Forest. The U.S. Forest Service owns two percent of 
yellowcheek darter habitat in Arkansas, while the Arkansas Game and 
Fish Commission owns one percent. The remaining 97 percent is privately 
owned. In the Little Chucky Creek watershed, the chucky madtom occupies 
habitat that is primarily privately owned. Approximately five percent 
of the Dunn Creek watershed is owned by the National Park Service 
(i.e., portions of the Great Smoky Mountains National Park and 
Foothills Parkway), but the majority of the watershed is privately 
owned habitat for the madtom. The laurel dace is only known to occur in 
waters within privately owned lands. Any of the abovementioned lands 
that may be designated as critical habitat in the future for these 
species may be subject to Federal actions that trigger the section 7 
consultation requirement, such as the granting of Federal monies for 
conservation projects and/or the need for Federal permits for projects 
(e.g., construction and maintenance of roads and bridges subject to 
section 404 of the Clean Water Act).
    There may also be some educational or informational benefits to the 
designation of critical habitat. Educational benefits include the 
notification of land owners, land managers, and the general public of 
the importance of protecting the habitat of these species. In the case 
of these species, this aspect of critical habitat designation would 
potentially benefit the conservation of these species.
    Therefore, since we have determined that the designation of 
critical habitat will not likely increase the degree of threat to the 
species and may provide some measure of benefit, we find that 
designation of critical habitat is prudent for the Cumberland darter, 
rush darter, yellowcheek darter, chucky madtom, and laurel dace.

Critical Habitat Determinability

    As stated above, section 4(a)(3) of the Act requires the 
designation of critical habitat concurrently with the species' listing 
``to the maximum extent prudent and determinable.'' Our regulations at 
50 CFR 424.12(a)(2) state that critical habitat is not determinable 
when one or both of the following situations exist:
    (i) Information sufficient to perform required analyses of the 
impacts of the designation is lacking, or
    (ii) The biological needs of the species are not sufficiently well 
known to permit identification of an area as critical habitat.
    When critical habitat is not determinable, the Act provides for an 
additional year to publish a critical habitat designation (16 U.S.C. 
1533(b)(6)(C)(ii)).
    In accordance with section 3(5)(A)(i) and 4(b)(1)(A) of the Act and 
the regulations at 50 CFR 424.12, in determining which areas occupied 
by the species at the time of listing to designate as critical habitat, 
we consider the physical and biological features essential to the 
conservation of the species which may require special management 
considerations or protection. These include, but are not limited to:
    (1) Space for individual and population growth and for normal 
behavior;
    (2) Food, water, air, light, minerals, or other nutritional or 
physiological requirements;
    (3) Cover or shelter;
    (4) Sites for breeding, reproduction, and rearing (or development) 
of offspring; and
    (5) Habitats that are protected from disturbance or are 
representative of the historical geographical and ecological 
distributions of a species.
    We are currently unable to identify the physical and biological 
features for the Cumberland darter, rush darter, yellowcheek darter, 
chucky madtom, and laurel dace, because information on the physical and 
biological features that are considered essential to the conservation 
of these species is not known at this time. As discussed in the 
``Species Information'' section of this proposed rule, the life 
histories of these species are poorly known. Although, as described 
above, we can surmise that habitat degradation from a variety of 
factors has contributed to the decline of these species, we do not know 
specifically the essential physical or biological features the habitat 
is currently lacking. As we are unable to identify the physical and 
biological features essential to the conservation of these species, we 
are unable to identify areas that contain these features. Therefore, 
although we have determined that the designation of critical habitat is 
prudent for the Cumberland darter, rush darter, yellowcheek darter, 
chucky madtom, and laurel dace, since the biological requirements of 
these species are not sufficiently known, we find that critical habitat 
for these species is not determinable at this time.

How the Service Intends to Proceed

    We intend to begin preparation of proposed rulemaking in Fiscal 
Year 2011 and publish a proposed critical habitat designation for 
Cumberland darter, rush darter, yellowcheek darter, chucky madtom, and 
laurel dace in June 2011. We will take the following steps to develop a 
proposal of critical habitat for the Cumberland darter, rush darter, 
yellowcheek darter, chucky madtom, and laurel dace: (1) Determine the 
geographical area occupied by the species at the time of listing; (2) 
identify the physical or biological features essential to the 
conservation of the species; (3) delineate areas within the 
geographical area occupied by the species that contain these features, 
and identify the special management considerations or protections the 
features may require; (4) delineate any areas outside of the 
geographical area occupied by the species at the time of listing that 
are essential for the conservation of the species; and (5) conduct 
appropriate analyses under section 4(b)(2) of the Act.

[[Page 36055]]

    To aid us in completing these steps, we will use the best science 
available. We also solicit the public for additional information (see 
Request for Public Information section below) and will consult experts 
on the Cumberland darter, rush darter, yellowcheek darter, chucky 
madtom, and laurel dace.
    While the proposed designation of critical habitat for these fishes 
is under preparation, the areas occupied by these species in the United 
States will continue to be subject to conservation actions implemented 
under section 7(a)(1) of the Act, as well as consultation pursuant to 
section 7(a)(2) of the Act for Federal activities that may affect any 
of these species, as determined on the basis of the best available 
scientific information at the time of the action. In addition, the 
prohibition of taking Cumberland darter, rush darter, yellowcheek 
darter, chucky madtom, and laurel dace under section 9 of the Act 
(e.g., prohibitions against killing, harming, harassing, and capturing 
endangered species) continues to apply.
    We will also continue to use our authorities to work with agencies 
and other partners in the to conserve and recover these species. We are 
working with the partners to develop and implement a framework for the 
conservation of the Cumberland darter, rush darter, yellowcheek darter, 
chucky madtom, and laurel dace.

Request for Public Information

    We intend that any designation of critical habitat for the 
Cumberland darter, rush darter, yellowcheek darter, chucky madtom, and 
laurel dace be as accurate as possible. Therefore, we will continue to 
accept additional information and comments from all concerned 
governmental agencies, the scientific community, industry, or any other 
interested party concerning this finding. We are particularly 
interested in information concerning:
    (1)The reasons why areas should or should not be designated as 
critical habitat as provided by section 4 of the Act (16 U.S.C. 1531, 
et seq.), including whether the benefits of designation would outweigh 
threats to the species that designation could cause (e.g., exacerbation 
of existing threats, such as overcollection), such that the designation 
of critical habitat is prudent; and
    (2)Specific information on:
 What areas contain physical and biological features essential 
for the conservation of the species;
 What areas are essential to the conservation of the species; 
and
 Special management considerations or protection that proposed 
critical habitat may require;
 Conservation programs and plans that protect these species and 
their habitat; and;
 Whether we could improve or modify our approach to designating 
critical habitat in any way to provide for greater public participation 
and understanding, or to better accommodate public concerns and 
comments.

Public Comment Procedures

    To ensure that any final action resulting from this finding 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 you 
support by quantitative information or studies and those that include 
citations to, and analyses of, the applicable laws and regulations. 
Please make your comments as specific as possible and explain the bases 
for them. In addition, please include sufficient information with your 
comments to allow us to authenticate any scientific or commercial data 
you include. For instructions on how to submit comments, please see the 
Request for Public Comments
    Section.

Public Availability of Comments

    As stated above in more detail, 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.

Peer Review

    In accordance with our joint policy published in the Federal 
Register on July 1, 1994 (59 FR 34270), we will seek the expert 
opinions of at least three appropriate and independent specialists 
regarding this proposed rule. The purpose of such review is to ensure 
that our proposed rule is 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 the data that 
are the basis for our conclusions regarding the proposal to list 
Cumberland darter (Etheostoma susanae), rush darter (Etheostoma 
phytophilum), yellowcheek darter (Etheostoma moorei), chucky madtom 
(Noturus crypticus), and laurel dace (Phoxinus saylori) as endangered 
and our proposal regarding critical habitat for this species.
    We will consider all comments and information we receive during the 
comment period on this proposed rule during preparation of a final 
rulemaking. Accordingly, our final decision may differ from this 
proposal.

Public Hearings

    The Act provides for one or more public hearings on this proposal, 
if requested. Requests must be received within 45 days after the date 
of publication of this proposal in the Federal Register. Such requests 
must be made in writing and be addressed to the Field Supervisor at the 
address in the FOR FURTHER INFORMATION CONTACT 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 and local 
newspapers at least 15 days before the hearing.
    Persons needing reasonable accommodations to attend and participate 
in a public hearing should contact the Tennessee Ecological Services 
Field Office by telephone at 931-528-6481, as soon as possible. To 
allow sufficient time to process requests, please call no later than 
one week before the hearing date. Information regarding this proposed 
rule is available in alternative formats upon request.

Required Determinations

Clarity of the Rule

    We are required by Executive Orders 12866 and 12988 and by the 
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

[[Page 36056]]

section. To better help us revise the rule, your comments should be as 
specific as possible. For example, you should tell us the names 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.

Paperwork Reduction Act of 1995 (44 U.S.C. 3501, et seq.)

    This rule does not contain any new collections of information that 
require approval by Office of Management and Budget (OMB) under the 
Paperwork Reduction Act. This rule will not impose recordkeeping or 
reporting requirements on State or local governments, individuals, 
businesses, or organizations. An agency may not conduct or sponsor, and 
a person is not required to respond to, a collection of information 
unless it displays a currently valid OMB control number.

National Environmental Policy Act

    We have determined that environmental assessments and environmental 
impact statements, as defined under the authority of the National 
Environmental Policy Act of 1969, need not be prepared in connection 
with regulations adopted pursuant to section 4(a) of the Act. We 
published a notice outlining our reasons for this determination in the 
Federal Register on October 25, 1983 (48 FR 49244).

References Cited

    A complete list of all references cited in this rule is available 
on the Internet at http://www.regulations.govor upon request from the 
Field Supervisor, Tennessee Ecological Services Field Office (see FOR 
FURTHER INFORMATION CONTACT section).

Author(s)

    The primary authors of this document are staff members of the U.S. 
Fish and Wildlife Service's Tennessee Ecological Services Field Office, 
Kentucky Ecological Services Field Office, Arkansas Ecological Services 
Office, and the Mississippi Ecological Services Field Office.

List of Subjects in 50 CFR Part 17

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

Proposed Regulation Promulgation

    Accordingly, we propose to amend part 17, subchapter B of chapter 
I, title 50 of the Code of Federal Regulations, as 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. In Sec. 17.11(h) add the following to the List of Endangered and 
Threatened Wildlife in alphabetical order under Fishes:


Sec. 17.11  Endangered and threatened wildlife.

* * * * *
    (h) * * *

--------------------------------------------------------------------------------------------------------------------------------------------------------
                    Species                                           Vertebrate
------------------------------------------------                   population where                                         Critical
                                                  Historic range     endangered or        Status         When listed        habitat      Special rules `
         Common name            Scientific name                       threatened
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                      * * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                         FISHES
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                      * * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
Dace, laurel                   Phoxinus saylori  U.S.A (TN)        Entire            E                 TBD              NA               NA
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                      * * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
Darter, Cumberland             Etheostoma        U.S.A. (KY, TN)   Entire            E                 TBD              NA               NA
                                susanae
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                      * * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
Darter, rush                   Etheostoma        U.S.A. (AL)       Entire            E                 TBD              NA               NA
                                phytophilum
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                      * * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
Darter, yellowcheek            Etheostoma        U.S.A. (AR)       Entire            E                 TBD              NA               NA
                                moorei
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                      * * * * * * *
Madtom, chucky                 Noturus           U.S.A. (TN)       Entire            E                 TBD              NA               NA
                                crypticus
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                      * * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------


[[Page 36057]]

* * * * *

    Dated: June 2, 2010
Jeffrey L. Underwood,
Acting Director, U.S. Fish and Wildlife Service.
[FR Doc. 2010-15240 Filed 6-23- 10; 8:45 am]
BILLING CODE 4310-55-S